CHAPTER VIII. OF SALVAGE. SECTION I. OF THE GENERAL PRINCIPLES OF SALVAGE. SALVAGE is eminently a subject for admiralty jurisdiction,1 and we may state, that it has been decided that no action will lie at common law, unless the salvor can prove a contract with the owner of the property saved or with his agent.2 If the court of admiralty has jurisdiction over the property, for the purpose of decreeing salvage, it has the power to determine to whom the residue of the property shall be delivered, and may be obliged to decide whether a capture by a foreign nation is valid or not.3 The word salvage is used in two senses; it sometimes means the property which is saved from a wrecked vessel, and frequently has this meaning among insurers and in insurance. But in admiralty, and generally in the law merchant, it means the compensation which is earned by persons who voluntarily assist in saving a ship or her cargo from peril; and we use the word in this last sense in this chapter. The interest of co-salvors is not joint but several; and payment or satisfaction to any one is not so to any other. If, therefore, 1 See ante, p. 177, n. 1. Lipson v. Harrison, Q. B. 1854, 24 Eng. L. & Eq. 208. The sailor in this case, was ordered by his captain to leave his vessel, and go in a boat fourteen miles to the assistance of another vessel which was stranded, and to place himself under the command of the captain of the other vessel. It was held, under these circumstances, that he could not maintain an action against the owner of the ship saved, for his services. 'M'Donough v. Dannery, 3 Dall. 188. payment is made to the master, although his receipt would bind himself and his owners, and an action would lie against him by the seamen for their shares,1 yet it is also true, that the seamen may bring an action against the property saved, if the settlement was made with the master without their consent.2 The court should not give different parts or parcels of the ship or cargo to different salvors, or different proportions of specific parts; and this, we believe, is never done in this country; but different proportions of, or sums from, the value of the whole property saved. And sometimes a specific sum is given.5 A salvor in possession has a qualified property in the thing saved, whether ship or cargo, or both. And it is not necessary that he should remain in actual possession, in order to maintain his rights or preserve this qualified property. Nor should he do so, to the detriment of the property or the inconvenience of the master and crew.7 Salvors cannot be divested of this legal interest in the property saved, until it is taken from them by adjudication in a court of competent authority. The owner does not lose his right of property by the salvage, but it is qualified by the sal 1 The Centurion, Ware, 477. The Britain, 1 W. Rob. 40; The Sarah Jane, 2 W. Rob. 110. But see 9 & 10 Vict. c. 99, § 26. The Vesta, 2 Hagg. Adm. 189. 4 The practice in this country is to give a proportion of the value of the property and not a part of the property itself. Hennessey v. The Versailles, 1 Curtis, C. C. 363. The power of the court, however, to adjudge the latter is recognized by a dictum in M'Donough v. Dannery, 3 Dall. 188. “ Admiralty courts having the thing saved under their control, may either adjudge a portion of such thing to the persons who have saved it, or a sum of money to be paid by the proprietor or from the produce of the thing saved." See also The Inca, Swabey, Adm. 370. 359. McGinnis v. The Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, C. C. The Maria, Edw. Adm. 175; The Amethyst, Daveis, 20; The Bee, Ware, 332; The Brig John Gilpin, Olcott, Adm. 77; Eads v. The Steamboat H. D. Bacon, 1 Newb. Adm. 274; A Box of Bullion, 1 Sprague, 57; The Missouri's Cargo, 1 Sprague, 260, 272. See dicta to the contrary in Brevoor v. The Fair American, 1 Pet. Adm. 87, 94; Packard v. The Sloop Louisa, 2 Woodb. & M. 48, 58. See The Eleanora Charlotta, 1 Hagg. Adm. 156; The Lady Worsley, 2 Spinks, Adm. 253. The Blenden Hall, 1 Dods. 414. vor's right, and the interest of the owners is sufficient to entitle them to oppose the claim of a co-salvor.2 If the amount claimed by salvors is not too great, the master may relieve his property from their lien by paying them at once. If this be done in the honest exercise of a reasonable discretion, he will be justified. If the demand seems to him exorbitant, he cannot turn the salvors off, but should proceed to the nearest and most convenient port where he may have adjudication. And in selecting his port, he must consult their rights and convenience, as well as his own. Otherwise, they may lawfully resist him and determine for themselves the course of the ship.. But this power can exist only in an extreme case.1 So great is the power of the salvors over a vessel, that it has been held, where a vessel came into collision with another, and all the crew, with the exception of two, escaped on board the other vessel, that a third vessel which fell in with the one thus partly abandoned was not afterwards obliged to delay her course for the purpose of taking on board again the crew of that vessel.5 As all salvors may join in one libel, they should so join to save expense; and if different libels are filed unnecessarily, the costs will not be charged to the proceeds of the salvage property. 1 The Bee, Ware, 332. The Blenden Hall, 1 Dods. 414. See Houseman v. Sch. North Carolina, 15 Pet. 40, 45. But ⚫ See The Houthandel, 1 Spinks, 25. And after a vessel has been brought into port by salvors, her owners have no right to take her to another port, without the consent of the salvors. The Nicolai Heinrich, 22 Eng. L. & Eq. 615. Due regard is also to be paid by the salvors to the convenience of the owners, in determining to what port the vessel is to be taken, when the salvage service is performed at sea. The Eleanora Charlotta, 1 Hagg. Adm. 156. In the case of L'Esperance, 1 Dods. 46, a vessel bound from Dantzic to London struck upon the Lemon and Ower Bank, and was abandoned by her crew. Two days afterwards she was discovered in latitude 53° 17' N., and longitude 2° 24′ E. by an English sloop-of-war bound to Heligoland, to which place the wreck was towed. Her papers were not on board, and there were no means of telling to what port she was going. The owners contended that she should have been taken into an English port, but the court held that the salvors were justified in taking her to Heligoland. 'The Orbona, 1 Spinks, 161. The Ship Henry Ewbank, 1 Sumner, 400; The Sch. Boston, 1 Sumner, 328. And in Hessian v. The Edward Howard, 1 Newb. Adm. 522, the court said it was the duty of salvors in bringing a suit for salvage, to make all the co-salvors parties, in order in one final decree to do full justice to all concerned. if the parties stand upon adverse rights, as where the salvage has been partly performed by one vessel and completed by another, each may file a libel.1 But a claim of the ship-owners for freight, or general average on the property saved, should be made in a separate libel, because this is only a claim on the balance of proceeds after the salvage is paid, and is a claim against the owners of the cargo, with which the salvors may have nothing to do. If the property saved belongs to the same person, the salvors may, by process against a part, enforce their lien upon the whole.3 Co-shippers should not interfere by a claim of the proceeds for the benefit of other shippers with whom they have no privity of interest, and from whom they have no authority to represent them.1 If a settlement is made with several salvors, and the money paid over to their agent, a salvor who is not included in the settlement is not entitled, either at common law or in England under the statutes of 3 & 4 Vict. c. 65, and 9 & 10 Vict. c. 99, to a monition directing such agent to bring the money into court for distribution among all the salvors.5 If a vessel while engaged in performing a salvage service, or while assisting another vessel under circumstances which prevent the assistance from being considered as salvage, unintentionally and unavoidably injures such vessel, she is not liable in damages." A vessel is not liable for the salvage due from the cargo, nor the cargo for that due from the vessel, but each must pay its own portion.7 The Ship Henry Ewbank, 1 Sumner, 400, 408. But if separate libels are filed, the actions may be consolidated by the court for its own convenience. The London Merchant, 3 Hagg. Adm. 394; Rich v. Lambert, 12 How. 347, 353. 2 The Sybil, 4 Wheat. 98. * The Missouri's Cargo, 1 Sprague, 260. Stratton v. Jarvis, 8 Pet. 4. • The Tenth of June, 29 Eng. L. & Eq. 585. Stevens v. The S. W. Downs, 1 Newb. Adm. 458. 'The Pyrennee, Brow. & L. Adm. 189. SECTION II. WHO MAY BE SALVORS. The salvage services must be performed by persons not bound by their legal duty to render them. And if such salvors perform such service, and all their acts are legal, the law refuses to inquire very carefully into the motives which influence their conduct; although it cannot be doubted that some inquiry of this kind may sometimes be proper, when the court is considering whether any compensation shall be paid, or if any compensation, what.2 It has been made a question whether persons forcibly taking possession of a vessel against the will of the master can claim as salvors. But we think it must be obvious and certain that, on the one hand, the master's reluctance or resistance to the saving of the property under his charge should not bar the claims of salvors, but rather enhance them, if their services were necessary, or in all respects meritorious and useful. But, on the other, his opposition would be a circumstance of great weight in determining whether their services were necessary or meritorious. It is a question of much importance, who may be salvors; or rather, who may not be, because already bound by legal obligation to render the same service. Thus, a crew, generally, cannot claim as salvors of their own ship or cargo; not only because it is their duty to save her, if possible, but because it would be most unwise to tempt them to let the ship and cargo get into a position of extreme danger, that then, by extreme exertion, they might claim salvage.5 The Neptune, 1 Hagg. Adm. 227, 236. In The Lady Worsley, 2 Spinks, Adm. 253, it was held that the commercial agent of the owners of a vessel on a foreign coast could not, by getting the vessel off the rocks when she had been abandoned by her crew, entitle himself to salvage compensation. The vessel in this case was wrecked on the coast of Africa. See post, p. 272, n. 5. 2 In the case of Le Tigre, 3 Wash. C. C. 567, a revenue officer, who intended to do merely his official duty, transcended his authority and seized a vessel, whereby she was saved for the owners. It was held that the officer was entitled to salvage, although when he seized it he did it from another motive. Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651. See The Jonge Bastiaan, 5 Rob. Adm. 322; The Bee, Ware, 332. 'Miller v. Kelly, Abbott, Adm. 564. This question was considered at length |