poses for which it is intended to be used. Of course, if a seller takes active steps to conceal dangerous defects in the article sold, his liability is the more obvious.8 And, accordingly, it has been held that the manufacturer of an implement, who wilfully and fraudulently places therein defective material which he conceals by putty and paint, is liable for injuries thereby caused to one attempting to put it to its intended use, although it has passed through the hands of wholesale and retail dealers, so that there is no privity of contract between the manufacturer and consumer. Likewise it has been held that the seller of a horse affected with glanders is liable for the death of one who contracts the disease while having charge of the horse for the buyer, if the seller knew the disease to be imminently dangerous to human beings, and that getting it would be the natural and probable consequence of coming in contact with the animal, and fraudulently represented its condition. 10 809. Violation of Statute in Sale of Article.-According to the prevailing view, a violation of statute is negligence 11 rendering a seller liable to a remote purchaser for injuries caused by an article illegally sold.12 Accordingly it is held that a wholesaler who, contrary to the prohibition of the statute, sells retailers toy pistols for resale is liable for injury by one of the toys to a person who purchases it from the retailer. 13 Where the seller of a poison is guilty of negli gence in not labeling it as required by statute and injury is caused to another thereby, it has been held that the former is not relieved from liability by the fact that the buyer of the poison was also guilty of negligence in leaving it, without any label, in a place where it was likely to injure others. 14 810. Disclosure of Danger and Buyer's Knowledge Thereof.-If the manufacturer or wholesaler would avoid liability to third persons, 7. Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 52 A. S. R. 146, 31 L.R.A. 220. 8. Lewis v. Terry, 111 Cal. 39, 43 Pac. 398, 52 A. S. R. 146, 31 L.R.A. 220; Woodward v. Miller, 119 Ga. 618, 46 S. E. 847, 100 A. S. R. 188, 64 L.R.A. 932. Note: 111 A. S. R. 708. 9. Kuelling v. Roderick Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 111 A. S. R. 691 and note, 5 Ann. Cas. 124, 2 L.R.A. (N.S.) 303. 10. State v. Fox, 79 Md. 514, 29 Atl. 601, 47 A. S. R. 424, 24 L.R.A. 679. p. 38 426, 42 Am. Rep. 508; Gately v. Taylor, 211 Mass. 60, 97 N. E. 619, 39 L.R.A. (N.S.) 472; Mazetti V. Armour, 75 Wash. 622, 135 Pac. 633, Ann. Cas. 1915C 140, 48 L.R.A. (N.S.) 213; Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, Ann. Cas. 1913C 803 and note, 38 L.R.A. (N.S.) 678. Notes: 48 L.R.A. (N.S.) 219. 13. Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508; Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, Ann. Cas. 1913C 803, 38 L.R.A. (N.S.) 678. 11. See NEGLIGENCE, vol. 20, et seq. 12. Binford v. Johnston, 82 Ind. Note: Ann. Cas. 1913C 804. 14. Burk V. Creamery Package Mfg. Co., 126 Ia. 730, 102 N. W. 793, 106 A. S. R. 377. he can do so ordinarily by putting his immediate buyer in full possession of the facts, as in the case of the balance wheel, referred to in a preceding paragraph.15 And ordinarily if it is made to appear that the buyer of an article dangerous solely by reason of the manner of its construction had knowledge of the defects at or before the time the third person was injured in using it, the maker or seller cannot be held liable.16 The reason for this is that the action against the maker or seller proceeds on the theory, and is founded on the fact, that in selling the article he practiced fraud and deceit in concealing the defects that made its use unsafe and dangerous; and, of course, when it is admitted or proven that he has not practiced any concealment and that the buyer was well informed as to the defects, the bottom drops out of the case against the maker, and the liability is shifted to other shoulders. Another reason is that the maker's wrongful act in such a case is not the proximate cause of the injury, when it is shown that there was the intervention of a new agent, to wit, the buyer, who, with knowledge of the danger, used and permitted others to use the article. If the article is dangerous by reason of its inherent character, as where it consists of a proprietary medicine or the like containing dangerous poisons labeled as harmless, the seller must, it seems, in addition to disclosing to the buyer its character eliminate his name and personality from the subsequent transactions with respect to the article in question. For if his name appears upon the package containing the offending article, he will not be permitted to escape on the score that the retailer knew of the danger and should have given warning thereof.18 The fact that the buyer could have by inspection discovered the defect in the thing sold which renders it imminently dangerous will not necessarily relieve the seller from liability for injuries to third persons. Thus it has been held that although a rumble seat is so insecurely fastened to an automobile that slight examination would disclose its danger, the buyer will not be charged with notice of it, so as to relieve the manufacturer from liability for injury to a third person through its attempted use, if the buyer was assured by the manufacturer that it was safe, and thereby induced not to make an examination.19 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560. 18. Clement v. Crosby, 148 Mich. 293, 111 N. V. 745, 12 Ann. Cas. 265, 10 L.R.A. (N.S.) 588; Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, Ann. Cas. 1913C 803, 38 L.R.A. (N.S.) 678. 15. Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 543. See also Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. Cas. 1913B 689, 37 L.R.A. (N.S.) 560; Griffin v. Jackson Light, etc., Co., 128 Mich. 653, 87 N. W. 888, 92 A. S. R. 496, 55 L.R.A. 318. 16. Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, Ann. 19. Olds Motor Works v. Shaffer, Cas. 1913B 689, 37 L.R.A. (N.S.) 560. 145 Ky. 616, 140 S. W. 1047, Ann. 17. Olds Motor Works v. Shaffer. Cas. 1913B 689, 37 L.R.A. (N.S.) 560. 2. Subjects of Salvage Generally 3. Saving Life as Supporting Claim for Salvage 4. Elements Necessary to Valid Salvage Claims 5. Perils Constituting Basis of Salvage; Place of Salvage 6. Acts Constituting Salvage Services Generally 7. Recapture as Salvage Service 8. Contract for Salvage Services Generally 9. Validity of Contract 10. Persons Liable for Salvage II. Persons Entitled to Salvage 11. In General 12. Owner of Salving Vessel 13. Seamen Generally 14. After Discharge from Service or Abandonment of Vessel 15. Pilots 16. Salvage of Tow by Towing Ship 17. Salvage by Owners of Vessel in Fault 26. Value of Salved Property and Salving Ship as Element in Making Award 27. Injury to Salving Vessel 28. Amount Fixed by Contract 29. Apportionment of Award V. Procedure 30. Jurisdiction 31. Actions in Rem and in Personam 32. Parties 33. Increase or Diminution of Award on Appeal I. INTRODUCTORY 1. Definition and Nature.-Salvage is the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sca peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict or recapture. Salvage is not generally a mere compensation for work and labor done, but is a reward granted on a liberal and generous scale. Whenever upon the high scas or on the sea coast or elsewhere within the admiralty and maritime jurisdiction any services are rendered by persons not composing the ship's crew to ships in distress, by saving them or their cargoes from impending perils or losses, or by recovering them after they have been lost, or by bringing them in and preserving them when found 1. The Blackwall, 10 Wall. 1, 19 U. S. (L. ed.) 870; The Sabine, 101 U. S. 384, 25 U. S. (L. ed.) 982; The Connemara, 108 U. S. 352, 2 S. Ct. 754, 27 U. S. (L. ed.) 751; Cope v. Vallette Dry Dock Co., 119 U. S. 625, 7 S. Ct. 336, 30 U. S. (L. ed.) 501; The Jefferson, 215 U. S. 130, 30 S. Ct. 54, 54 U. S. (L. ed.) 125, 17 Ann. Cas. 907; Three States Lumber Co. v. Blanks, 133 Fed. 479, 66 C. C. A. 353, 69 L.R.A. 283; Pike v. Balch, 38 Notes: 55 Am. Dec. 510, 511; 24 2. See infra, par. 21. derelict, in order to have them restored to the rightful owners, such persons are denominated salvors. If the property of an individual on land be exposed to the greatest peril, and be saved by the voluntary exertions of any persons whatever; if valuable goods be rescued from a house in flames, at the imminent hazard of life by the salvor, no remuneration in the shape of salvage is allowed. The act is highly meritorious, and the service is as great as if rendered at sea. Yet the claim for salvage could not, perhaps, be supported. It is certainly not made. Let precisely the same service, at precisely the same hazard, be rendered at sea, and a very ample reward will be bestowed in the courts of justice. It has been held that the apparent prodigality in rewarding services rendered at sea, often much exceeding the mere risk encountered and labor employed, is intended as an inducement to render them, which it is for the public interests, and for the general interest of humanity, to hold forth to those who navigate the ocean. It is perhaps difficult, on any other principle, to account satisfactorily for the very great difference which is made between the reward allowed for services at sea and on land; neither will a fair calculation of the real hazard or labor be a foundation for such a difference; nor will the benefit received always account for it.1 Salvage services are (1) voluntary, wherein the compensation is dependent upon success; (2) rendered under a contract for a per diem or per horam wage, payable at all events; or (3) under a contract for a compensation payable only in case of success. When the property is brought to a port of safety, the salvage service is complete. 6 2. Subjects of Salvage Generally.-Irrespective of statutes, it seems to be uniformly held by judges and writers of authority that the jurisdiction as to salvage is exercised in respect of a ship, her apparel, and her cargo; of freight in danger, and saved by reason of the sav ing of the ship or cargo; and of flotsam, jetsam, or ligan, being each of them part of the cargo of a ship. The term "salvage" is used only in relation to ships and vessels and their cargoes, or those things which have been committed to, or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued.8 The words "ships and vessels" are, however, used in a very broad sense to include all navigable structures intended for transportation, and the word "ship" is not used in connection with salvage service in the technical sense as denoting a vessel of a particular rig. In popu 3. Baker v. Hoag, 7 N. Y. 555, 59. Am. Dec. 431. 4. Mason v. Blaireau, 2 Cranch 240, 2 U. S. (L. ed.) 266; The Blackwall, 10 Wall. 1, 19 U. S. (L. ed.) 870. And see infra, par. 23. 5. The Elfrida, 172 U. S. 186, 19 S. Ct. 146, 43 U. S. (L. ed.) 413. 6. Post v. Jones, 19 How. 150, 15 U. S. (L. ed.) 618. 7. Note: 24 Eng. Rul. Cas. 524. 8. Cope v. Vallette Dry Dock Co., 119 U. S. 625, 7 S. Ct. 336, 30 U. S. (L. ed.) 501. Note: 16 Eng. Rul. Cas. 111. |