In admiralty, the lien which a ship injured by a collision has upon the ship that causes the damage, continues long enough to give the injured party a reasonable opportunity to enforce his claim. (2)

We have hitherto considered only those questions arising between the colliding vessels. But questions may also come up between the owner of, and the shipper of the cargo in, the injured vessel; for the owner is responsible to the shipper, if the collision was caused merely by a fault of the master, but not if the collision were caused by a peril of the sea. (a) If, however, it were caused by the fault of another vessel, wilfully, or by mere negligence, and without any violence of wind or tide, or any stress of navigation, we should doubt whether this would be either a peril of the sea, (b) or the act of God, (c) or would excuse the owner, whether a bill of lading was given or not. It has been intimated, however, that a collision caused by no fault, nor an act of God, or any inevitable accident, is nevertheless, in itself, a peril of the sea. (d)

Cases arising from collision are very frequent in the courts having jurisdiction of them. In our note we give the most interesting among the recent cases. (dd)

C. - Of Salvage.

1. WHAT SALVAGE IS.

This word has two distinct meanings in maritime law. It sometimes means that which is saved from wrecked property,

(2) That the lien exists, and that it will be enforced even though the vessel be in the hands of a bona fide purchaser, provided there are no laches on the part of the libellants, is now well established. The Bold Buccleugh, 3 W. Rob. 220, Harmer v. Bell, 7 Moore, P. C. 267; Edwards v. Steamer R. F. Stockton, Crabbe, 580. But this lien, like any other in admiralty, may be lost by a delay to enforce it. The Admiral, 18 Law Reporter,

91.

(a) Buller v. Fisher, 3 Esp. 67; Wilson v. Cargo per Xantho, 12 App. Cas. 503.

(b) Marsh v. Blythe, 1 McCord, 360. (c) Mershon v. Hobensack, 2 Zab. 372. (d) Plaisted v. Boston, &c. Nav. Co. 27 Maine, 132. See also Steamboat New Jersey, Olcott, Adm. 448; Wilson v. Cargo per Xantho, 12 App. Cas. 503.

(dd) That the necessity imposed by a State law, of taking a pilot, does not prevent the liability of the ship for his negli

gence. The China, 7 Wallace, 53. Of the behavior of ships when meeting. The Nichols, 7 Wallace, 656; Baker v. Steamship City of New York, 1 Clifford, 75; Wakefield v. The Governor, 1 Clifford, 93; Pope v. R. B. Forbes, 1 Clifford, 331; The Scotia, 5 Blatchf. 227; The Island City, 5 Blatchf. 264; The Scranton and Wm. F. Burden, 5 Blatchf. 400; Amoskeag, &c. Co. v. The John Adams, 1 Clifford, 404; The Illinois, 5 Blatchf. 256, The Nellie D. 5 Blatchf. 245; The Chesapeake, 1 Benedict, 23; The Favorita, 1 Benedict, 30; The Empire State, 1 Benedict, 57; The Cayuga, 1 Benedict, 171; The Electra, 1 Benedict, 282; The Havre and the Scotland, 1 Benedict, 295; The Jupiter, 1 Benedict, 536. Of the measure of damages. The Ocean Queen, 5 Blatchf. 493; The Heroine, 1 Benedict, 226. What is a proper look-out. The Parkersburg, 5 Blatchf. 247.

whether ship or cargo; and questions respecting it in this sense arise under policies of insurance, and will be considered in the next chapter.

*It also means the compensation which is earned by * 315 persons who have voluntarily assisted in saving a ship or cargo from destruction. This last sense is the more general, and the more important; and it is of salvage in this sense that we are now to treat.

The essential principle on which a claim to maritime salvage rests, is confined to the sea; being, as we apprehend, wholly unknown on the land. Some intimations have been thrown out, on high authority, that one who finds property lost on land and labors to save it, may claim of the owner compensation therefor. (e) But we believe there is no such rule or principle known to the common law.1

Not only is salvage in this sense confined to the law-merchant, but it is generally confined to admiralty jurisdiction. It is believed, that no action at common law would lie for maritime salvage, unless the salvor could prove a contract with the owner of the property saved. (f)

Salvors have a lien on the property saved until the case is heard and a final settlement made, and this lien does not depend on possession. (g) Sometimes the property is sold under a decree, and the proceeds held to await the decree of distribution or return. But the property is always returned to owners, if they ask for it, and give bonds, or stipulations, as they are called in admiralty, with sufficient security to abide and satisfy a final decree.

2. BY WHAT SERVICES SALVAGE IS EARNED.

The ground upon which the liberal compensation usually granted in salvage cases rests, is three-fold. First: A marine.

peril. Second: Voluntary service. Third: Success.

It is necessary that the property be saved from extraordinary danger. This danger or distress must have been real, or appeared to be so in the exercise of a sound discretion, though it need not

(e) See ante, vol. i. p. * 580. (Lipson v. Harrison, 24 Eng. L. & Eq. 208.

(9) Box of Bullion, Sprague, 57; The

Missouri's Cargo, id. 272; The Ame thyst, Daveis, 20; The Maria, Edw. Adm.

175.

1 See, however, Chase v. Corcoran, 106 Mass. 286.

have been immediate, or certainly destructive. (h) If * 316 the master, with his crew, might have saved it, the interference of the salvors would be presumed to be unnecessary; (i) they may, however, still make out their claim by proof that the master would not have saved it. It would be equally a salvage service whether it were rendered at sea, or upon property wrecked at sea but then on the land. (j) And a salvage service may be rendered either by seamen or by landsmen. (k) 1

3. OF DERELICT.

The salvage service most liberally rewarded is that of saving "derelict" property. This word simply means abandoned. As a maritime term, used in salvage law, it means a vessel or cargo abandoned and deserted by the master and crew, with no purpose of returning to it, and no hope of saving or recovering it themselves. (1) If the master and crew remain on board, although they give up the possession and control to the salvors, it is not derelict. (m) On the other hand, if the master and crew have left the vessel, a mere intention to send assistance to her would not prevent the ship from being derelict. (n) And if the vessel be deserted, it will be presumed to be derelict, unless an intention to return be proved on the part of those who left her, or some of them. (0) A ship or a cargo sunk is considered derelict; but not if the owner had not lost the hope and purpose of recovering his property, and had not ceased his efforts for that purpose. (p) So are goods floating from the vessel out to sea; not, however, if the goods are on the water, and the master is endeavoring to save them. (9) At common law, a finder of property has title against all the world, except the owner. The admiralty practice, country, in respect to

317 however, in one district of this
property derelict and saved, is to keep the balance of the

(h) The Charlotte, 3 W. Rob. 71; The Strathnaver, 1 App. Cas. 58.

170.

(i) Hand v. The Elvira, Gilpin, 67.
(j) Stephens v. Bales of Cotton, Bee,

(k) Ibid.

(1) The Clarisse, 1 Swabey, Adm. 129; The Minerva, 1 Spinks, Adm. 271; The Watt, 2 W. Rob. 70; Rowe v. Brig 1 Mason, 372; The Amethyst, Daveis, 20; Mason v. Ship Blaireau, 2 Cranch, 240.

(m) Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421.

205.

(n) The Coromandel, 1 Swabey, Adm.

(0) The Barque Island City, 1 Black, 121; The Upnor, 2 Hagg. Adm. 3; The Bee, Ware, 332; Tyson r. Prior, 1 Gallis. 133; Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651; The Sch. Emulous, 1 Sumner, 207; The John Perkins, C. S. C. C. Mass., 21 Law Rep. 94.

(p) The Barefoot, 1 Eng L. & Eq. 661; Bearse v. Pigs of Copper, 1 Story,

314.

(2) The Samuel, 4 Eng. L. & Eq. 581.

1 Persons who render service to a ship on fire at a wharf are salvors. The Florida,

22 Fed. Rep. 617.

proceeds a year and a day, that is, more than a year, after the salvage compensation is paid out of the proceeds: and then, if no owner appears, to pay the balance to the finder. (r) But if the case appears to demand it, the court may require from the finder bonds to restore this balance to the owner, whenever he appears and claims it.

4. WHO MAY BE SALVORS.

It is a general rule, that persons who are bound by their legal duty to render salvage services, cannot claim salvage compensation therefor. (s) Therefore the master or crew of the ship in peril cannot claim such compensation. (t) And the only exceptions to the rule appear to be where the contract of the seamen is at an end, (u) or where the service is so entirely out of the line of their ordinary duty, that it may be considered as not done under the contract. (v) It would obviously be unwise to tempt

(r) Marvin on Salvage, 143, note 1. See M'Donough v. Dannery, 3 Dall. 188. In an early case in Massachusetts it was held, that after the salvage was paid the property belonged to the government, to be held in trust till an owner should appear. Peabody v. Proceeds of 28 Bags of Cotton, U. S. D. C., Mass., 1829, 2 Am. Jurist, 119.

(s) The Neptune, 1 Hagg. Adm. 236. (t) Miller v. Kelley, Abbott, Adm. 564; The John Perkins, U. S. C. C. Mass. 21 Law Rep. 87; The Steamer Acorn, same court, 21 Law Rep. 99; Beane v. The Mayurka, 2 Curtis, Č. C. 72; Mesner 7. Suffolk Bank, 1 Law Rep. 249; The Holder Borden, Sprague, 144.

(u) Where a ship is abandoned at sea by most of her crew, the contract of those who remain is considered at an end. Mason v. Ship Blaireau, 2 Cranch, 240; The Sch. Triumph, Sprague, 428; The Florence, 20 Eng. L. & Eq. 607. See Taylor v. Ship Cato, 1 Pet. Adm. 48. In Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421, it was held, that where a steamboat, which was on fire, was surrendered by the captain to the master of another boat, the contract of a pilot was dissolved, and he might be a salvor.

(v) Le Jonet, L. R. 3 A. & E. 556. In The Mary Hale, Marvin on Salvage, 161, the vessel was wrecked, and the mate and four seamen crossed the Gulf Stream in

1 For ordinary salvage services passengers of the saved vessel cannot claim compensation. But if their services are extraordinary, they may. Candee v. Sixty-eight Bales Cotton, 48 Fed. Rep. 479. The master is agent of the cargo as well as of the ship, and is not entitled to salvage for providing for the safety of the cargo. The Aguan, 48 Fed. Rep. 320. Seamen, though ordinarily not entitled to salvage, are entitled to extra compensation for assisting in saving cargo after the ship is wrecked, the voyage broken up and the crew discharged. Ibid. A stevedore's crew engaged in stowing cargo in the defendant ship cannot be salvors, their relations to the ship being like those of the passengers and crew. Kidney v. The Ocean Prince, 38 Fed. Rep. 259. Where a steam-ship loaded partly with live cattle towed a derelict ship to port, it was held that the men in charge of the cattle were not entitled to share in the award of salvage. The Coriolanus, 15 P. D. 103. See also The P'ersian Monarch, 23 Fed. Rep. 820. The owner of a vessel cannot acquire a salvor's lien thereon against the insurers to whom it has been abandoned. The Manitoba, 30 Fed. Rep 129. But where the ship in distress and the ship rendering aid belong to the same owners, the master and crew of the latter are entitled to salvage if the services they performed are not within the contract into which they entered with the owners. The Sappho, L. R. 3 A. & E. 142: L. R. 3 P. C. 690; The Glenfruin, 10 P. D. 103. And the owners of two such vessels are entitled to remuneration against the cargo of the rescued ship. The Miranda, L. R. 3 A. & E. 561; The Cargo ex Laertes, 12 P. D. 187. It is not a bar to salvage remuneration that the same person is a part owner of each vessel. The Glengaber, L. R. 3 A. & E. 534.

the sailors to let their ship and cargo incur extreme peril, that by extreme exertion they might recover salvage compensation.

Those who may claim salvage compensation for salvage services may render these services against the will or even the resistance of the master or crew of the vessel in danger. But in such case it must be clearly shown, that their reluctance or resist

ance was wrongful, and that the interference of the salvors *318 * was necessary. (w) If a part of a crew leave their own

ship, and go on board another, and save it, those of the crew who remain behind share, though not equally, in the salvage claim; their share of the claim resting on the increase of their labor or exposure, by reason of the diminution of their numbers; and their share is greater if they were willing to go, than if they remained from an unwillingness to encounter efforts or perils for which others volunteered. (x)

A passenger on board a saving ship may render and claim for salvage services; (y) but it is said that the passengers, generally, at least, are so bound to render assistance to the ship they are in, that they cannot claim salvage compensation therefor. (z) This rule, if it be one, must be open to many exceptions. (a)

A pilot cannot claim as salvor, for any exertions or services rendered as pilot, and within the line of his duty. (b)1

an open boat, a distance of one hundred and eighty miles, to procure assistance to take off the passengers and cargo. They succeeded in accomplishing their purpose, and it was held that they were entitled to salvage, on the ground that their services exceeded the duty they owed to the ship.

(w) See The Jonge Bastiaan, Rob. Adm. 322; The Bee, Ware, 332, Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651; The Choteau, 4 Woods, 127.

(x) The Mountaineer, 2 W. Rob. 7; The Centurion, Ware, 483; The Baltimore, 2 Dods. 132; The Roe, 1 Swabey, Adm. 84; The Janet Mitchell, 1 Swabey, Adm. 111; The Ship Henry Ewbank, 1, Sumner, 400.

(y) Bond v. Brig Cora, 2 Wash. C. C. 80; McGinnis v. Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, 359; The Hope, 3 Hagg. Adm. 423; The Connemara, 108 U. S. 352.

(z) The Branston, 2 Hagg. Adm. 3, note.

(a) See Newman v. Walters, 3 B. & P. 612; The Two Friends, 1 Rob. Adm. 285; Clayton v. Ship Harmony, 1 Pet. Adm. 70.

(b) The Cumberland, 9 Jurist, 191; The Johannes, 6 Notes of Cases, 288; The City of Edinburgh, 2 Hagg. Adm. 333; The Jonge Andries, 1 Swabey, Adm. 229, 303. In England, pilotage is defined to be "the conducting a vessel into port in the ordinary and common course of navigation," and it is not simple pilotage "when a vessel from real danger, or from what may afterwards turn out to be an unfounded alarm, is seeking a port of safety, out of the course of her intended voyage." The Elizabeth, 8 Jurist, 365; The Persia, 1 Spinks, Adm. 166; The Industry, 3 Hagg. Adm. 203; The Hedwig, 1 Spinks, 19. The decisions in this coun

1 But a pilot may be remunerated for salvage services when the services were such as he was not bound to render, as where a vessel was drifting in a storm upon the coast, and some pilots at the peril of their lives, being unable to board her, by preceding and signalling brought her safely to anchorage. Akerblom v. Price, &c. Co. 7 Q. B. D. 129. Or if a pilot has not assumed the duties of pilot. The Wisconsin, 30 Fed. Rep. 846. See also The Aeolus, L. R. 4 A. & E. 29; The Anders Knape, 4 P. D. 213.