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Akbar was, is peculiar: well calculated to deter any one from rendering voluntary assistance, and entitled to special reward. It is for the interest of commerce that this be so, and the more, in a case like this, because vessels from the West Indies are often infected, and it is important that inducement to board · them be held out to those who may meet them when in such distress.
On the other hand, the Munson lost no time and sustained no detriment whatever by the departure of Donald. Donald did not take the fever, and suffered no bodily harm by the labor and anxiety he endured. In point of fact no risk of taking the fever was actually run, for, as the event proved, the Akbar was not infected; but the service was rendered under a state of facts that justified all in believing that she was infected, and that there was great risk of taking the fever from her. In view of these considerations and of the facts proved, I consider that the sum of $3,600 should be paid by the Akbar and her cargo for the service rendered. Of this sum I award $2,500 to Donald; $500 to the owners of the Munson; $350 to Captain Coffin, the master of the Munson; and direct that the remainder of $250 be divided among the crew of the Munson, the two seamen who went in the boat to the Akbar to receive each a double share. A claim to share in the salvage has been put forth in behalf of Peter Green, the one well seaman on the Akbar, who assisted Donald from the time he took charge. This claim is without foundation. Peter Green was one of the crew of the distressed vessel, and did no more than he was bound by his contract to do under such circumstances.
HARRIMAN ». THE ROCKAWAY BEACH PIER COMPANY.
(District Court, E. D. New York.
August 30, 1880.)
1. ATTACHMENT-MARSIAL'S RETURN.
An attachment, under an ordinary process in personam, will not be vacated upon the ground that the marshal attached the property without having made any proper effort to serve the defendant, where the marshal returned that he made a reasonable effort to serve the
defendant before making the attachment. 2. SAME_FALSE RETURN.
The proper course, under such circumstances, is to allow the return to stand, and leave the marshal to justify it in an action against him
for a false return. 3. SAYE-IRON PIER.
An iron pier is not attachable under such process as coming within the designation of goods and chattels.-[ED.
BENEDICT, D. J.' This is a motion on the part of the defendant for the release of the iron pier at Rockaway from a seizure thereof made by the marshal on the 19th inst.
The process was the ordinary process in personam, and contained a clause directing the marshal, in case the defendant could not be found within his district, to attach the goods and chattels thereof within the district to the amount sued for. In pursuance of this direction the marshal attached the iron pier in question, and also certain Jamps, benches, a life-boat, a clock, some life-preservers, awnings, and a quantity of rope, oil, varnish, paints, lumber, etc., and made return to the process that the defendant, not having been found, he had, in obedience to the writ, attached the iron pier and other property above described. The defendant now moves to vacate the attachment. One ground of the motion is that the marshal attached the property without having made any proper effort to serve the defendants. The facts, as they appear in the affidavits that have been read, are not sufficient to justify a discharge of the attachment on this ground. The marshal's return to the process is, in legal effect, that he made a reasonable effort to serve the defendant before making the
attachment. This return is not shown to have been the result of any collusion or fraud on the part of the libellant; and the marshal now insists that all proper effort to serve the defendant was made by him before he levied the attachment. If the marshal's return be true, the right to attach is clear. If the return be false, the marshal is liable for a false return. The proper course, under those circumstances, is to allow the return to stand, and leave the marshal to justify it in an action against him for a false return.
But there is another ground upon which the motion is pressed, so far as it relates to the pier itseif. This ground is that the pier is real property, and not within the scope of the process that was issued to the marshal. The process authorized the marshal, in case the defendant should not be found within this district, then to attach the defendant's goods and chattels to the amount sued for. The marshal's authority was therefore limited, by the terms of the writ, to the seizure of goods and chattels, and he had no power to attach the iron pier in question, unless it can be held that such a structure comes within the designation of goods as used in the process. In my opinion it cannot be so held, and therefore the attachment, so far as it affects the pier proper, cannot be maintained. Whether it would have been competent for this court, sitting in admiralty, to direct the attachment of real estate upon re-issue process is a question not presented by this case, and as to which I express no opinion; nor do I express any opinion as to the power of the court to amend the process at this stage of the cause, for such amendment, if now made, would be of no benefit to the libellant, as the defendants now stand ready to enter their appearance. The objection that the question whether the pier attached comes within the designation of goods should not be decided upon in a suit like the present, is obviated by the offer to the defendant to give the usual bond for the other property seized in an amount sufficient to cover the libellant's demand. The attachment of the pier proper is, therefore, set aside, and the pier itself discharged from custody. As to the other property seized the attachment must stand.
NEW HARBOR PROTECTION Co. v. STEAMEB CHARLES P.
(District Court, D. Louisiana. January, 1881.)
1. SALVAGE-BURNING VESSEL-SERVICES DECLINED.
Salvage cannot be claimed for aid tendered a burning vessel, when such assistance was absolutely declined. 2. SAME-ATTEMPT TO COMPEL ACCEPTANCE OF SERVICES.
An attempt to compel an acceptance of such aid will forfeit all right to compensation for expenses incurred in going to the relief of the burning vessel.--[ED.
On the twenty-fourth day of March, 1880, about 8:15 P. M., a fire was discovered, which had originated in some bales of jute stored on the larboard guards of the Charles P. Chouteau, some 50 feet aft of the boilers. The officers and crew immediately assembled and commenced to put it out, and in about two minutes the fire-engines of the boat were in operation and playing three streams of water on the fire. Two Babcock extinguishers were also playing on the flames, and the crew were so alive and vigilant that in about five minutes after the fire was discovered it was put out by their efforts, without aid from any one else. Soon after the fire was discovered the watchman rang the bell several times as a signal to the pilot to stop the boat. The sound of this bell, and the smoke rising from the flames, drew to the scene the Protector, a fire-boat belonging to livellants, which is always kept in a state of readiness to render service at any point on the city front. Although the fire was nearly extinguished, the Protector came along-side, and, without any hailing or the usual inquiry if any aid was needed, endeavored to force her aid in putting out the remainder of the fire. The captain of the Chouteau told the crew of the Protector that he did not need their aid, and ordered them to desist. In spite of this order, they began to pump water on the burning vessel, whereupon the captain of the latter threatened to shoot them if they did not stop. The Protector was finally driven off,
and returned to her station. The damages by fire were so
M. M. Cohen, for libellant.
BILLINGS, D. J. A large amount of testimony has been taken in this case to ascertain the amount of services that were rendered by the Protector, and the circumstances under which they were rendered. The statements of the witnesses are very conflicting, but this much seems to be fully established: that although a bell was rung several times, and the Protector, thinking it an alarm-bell, responded to it, yet the captain of the burning boat absolutely refused to accept the aid of the libellant's boat. This, I think, it was competent for him to do. If the master of a burning vessel prefers to allow her to burn rather than to permit outside parties to extinguish the flames, he may do so. He has a perfect right to decline any assistance that may be offered him: he should not be assisted against his will.
Even if the crew of the Protector had rendered any serv. ices, which, it appears, they did not do, after having been ordered off by the captain of the Chouteau, they could not claim anything for such services. At first I was in some doubt as to whether the Protector was not entitled to recover the value of the fuel used in getting up steam, and for the labor employed in going to where the Chouteau was lying. Had she merely gone to the scene of the fire, offered her services in the usual manner, and, on the refusal of the captain of the burning vessel to accept them, returned to her wharf, I should have allowed her something for the labor and fuel expended in doing thus much; but the subsequent unjustifiable conduct of her crew in endeavoring to force their aid on an unwilling subject, deprived her of the right to demand compensation for what little she did do.