Opinion
No. 7217.
September 23, 1931.
Stratton Kane, of Seattle, Wash., for libelants.
Hayden, Langhorne Metzger, of Tacoma, Wash., for claimant.
The libel is by the owners of the steam tug Audrey for salvage service rendered to the fishing boat Star. Lee J. Rice was at the time in question master as well as part owner of the Audrey.
The Star, on August 30, 1929, was stranded upon a submerged reef in Kanaka Bay near the south end of San Juan Island across the entrance to Haro Strait from the city of Victoria. She signaled for assistance, which signal the Audrey answered. A line from the Star was made fast to the bits of the Audrey, and after a number of pulls, the last of which was a "run" on the line, the Star was pulled off the reef uninjured. The Audrey was, at the time, employed as a cannery tender.
Libelants cite 27 R.C.L. page 164, § 12; First National Bank of Cincinnati v. Burkhardt, 100 U.S. 686, 25 L. Ed. 766; The Impoco (D.C.) 287 F. 400; Rodriguez v. Bagalini (C.C.A.) 17 F.2d 921; The Sahara (D.C.) 246 F. 141; Daniel Kern, 27 F.2d 920; 35 Cyc. 731; The Elm Branch (D.C.) 106 F. 952; The Erin (D.C.) 36 F. 712.
Claimant cites 17 C.J. 471; Maru Navigation Co. v. Societa Commerciale Italiana Di Navigation (D.C.) 271 F. 97, at page 102; Montgomery v. T.P. Leathers, 17 Fed. Cas. 640, No. 9736; 17 C.J. 461 and cases cited in the note thereto; Hughes on Admiralty, page 129; Societa Commerciale Italiana di Navigazione v. Maru Navigation Co. (C.C.A.) 280 F. 334; Holbrook v. Freeport Sulphur Trans. Co. (C.C.A.) 300 F. 63; The Lizzie Crawford (D.C.) 156 F. 201; Howe v. City of New York (D.C.) 184 F. 478; The Professor Koch (D.C.) 260 F. 969; The Urko Mendi (D.C.) 216 F. 427; The Hesper (C.C.) 18 F. 696; The I.W. Nicholas (D.C.) 147 F. 793; The D.L. Co. No. XX (D.C.) 205 F. 188; Rodriguez v. Bagalini (C.C.A.) 17 F.2d 921, and cases there cited.
In Admiralty. Libel by Lee J. Rice and wife against the gas boat Star, her engines, tackle, apparel, and appurtenances, Mate Bakovic being the claimant.
Decree for the libelants.
Upon the part of the claimant, it is contended that there existed among boats engaged in the fishing trade in the waters in question a general custom of rendering such assistance as that for which the suit is brought, without obligation upon the part of the aided, save to render like assistance to other boats so employed upon occasion.
While the expectation of like assistance in time of need may furnish a strong incentive to the owner of the boats in this trade to aid other boats, so employed, in distress, the receipt of such reward is uncertain, and in no way dependent upon the risk taken or success achieved. The court cannot say that the incentive furnished by such a custom, if it exists, is as strong as that growing out of the right the admiralty law gives to a salvage award. Such being the case, to give effect to such a custom as superseding the right to a salvage award would be contrary to public policy.
A further contention of claimant is that the service was not a voluntary service; that the Audrey, being chartered as a cannery tender, contracted with her employer to render such services. There is no evidence of such an express contract, and the custom relied upon by claimant, if it exists, being against public policy, there was no implied contract.
The circumstances and situation show that there was little danger in so far as the crews were concerned. There was no great danger to the Audrey. The evidence is in conflict as to the likelihood of the Star coming off the reef without assistance with the rising tide, but, under all the evidence, it is reasonably clear that the peril to the Star was considerable. I am unable to find that there were no swells at the time. The working of the Star upon the reef might soon have put a hole in her bottom that not only would have kept her from floating but would have held her and kept her from being pulled off without serious damage.
The value of the Audrey was at least $5,000; of the Star, her cargo, provisions and seine, approximately $7,000. The service rendered was a salvage service, though not of a high order.
Libelants will be allowed $500, the engineer, Church, $75, and the other two members of the crew $25, each. Libelants will recover costs. The decree will be settled upon notice.
The clerk will notify the attorneys for the parties of this ruling.