it is generally held that persons assisting to tow a ship from a dock where she is in imminent danger of catching fire are as much entitled to salvage compensation as persons who render assistance to prevent a ship from being wrecked, or in securing a wreck or pro tecting the cargo of a stranded vessel, 18 though there are decisions. to the effect that the towing of a burning vessel away from another lying near is not a salvage service to the latter, at least in the absence of a request.19 Services rendered will be rewarded as salvage services if they are of value, although the salvors are informed that their services were not needed. But if they force their services where they are not needed, and do not accomplish anything of value, no award will be made.20

7. Recapture as Salvage Service.-The recapture of a vessel from pirates, or an enemy, is service for which salvage will be awarded.* But in such case the recapture must be lawful, for no claim can be maintained in a court of justice, founded on an act in itself tortious. On a recapture, therefore, made by a neutral power, no claim for salvage can arise, because the act of retaking is a hostile act, not justified by the situation of the nation to which the vessel making the recapture belongs, in relation to that from the possession of which such recaptured vessel was taken. The degree of service rendered the rescued vessel is precisely the same as if it had been rendered by a belligerent; yet the rights accruing to the recaptor are not the same, because no right can accrue from an act in itself unlawful. In the application of the general principle that salvage is only payable where a meritorious service has been rendered, it has been decided that neutrals carried in by a belligerent for examination, being in no danger, receive no benefit from recapture; and ought not, therefore, to pay salvage. But when the laws and practice of a nation are such as to subject to condemnation all neutrals captured by its cruisers, it cannot be held that no benefit is conferred by a recapture, and therefore those who recapture a neutral ship under such circumstances are entitled to salvage."

8. Contract for Salvage Services Generally.-It is at least doubtful whether an ordinary claim for salvage can be said to arise upon con

146; The Connemara, 108 U. S. 352, 2 S. Ct. 754, 27 U. S. (L. ed.) 751; The Jefferson, 215 U. S. 130, 30 S. Ct. 54, 54 U. S. (L. ed.) 125, 17 Ann. Cas. 907 and note.

Note: 24 Eng. Rul. Cas. 528.

18. The Blackwall, 10 Wall. 1, 19 U. S. (L. ed.) 870; The Jefferson, 215 U. S. 130, 30 S. Ct. 54, 54 U. S. (L. ed.) 125, 17 Ann. Cas. 907 and note.

19. Note: 24 Eng. Rul. Cas. 528.

20. Notes: 17 Ann. Cas. 912; 24 Eng. Rul. Cas. 526.

1. Talbot v. Seeman, 1 Cranch 1, 2 U. S. (L. ed.) 15.

2. Talbot v. The Amelia, 4 Dall. 34, 1 U. S. (L. ed.) 730; Bas v. Tingy, 4 Dall. 37, 1 U. S. (L. ed.) 731; Talbot v. Seeman, 1 Cranch 1, 2 U. S. (L. ed.) 15.

3. Talbot v. Seeman, 1 Cranch 1, 2 U. S. (L. ed.) 15.

tract, inasmuch as such services are rendered voluntarily, frequently in the absence of the owner of the property, and usually without a definite agreement for compensation. But however this may be, it is held that the most formal agreements for salvage or rescue services. do not bar the admiralty from reaching the merits, or from applying its fundamental rules when circumstances justify it. The rights or duties of salvors, and of masters in charge of property in distress in making or enforcing contracts, are not to be judged or measured by the strict rules of common law, but with a greater flexibility, which will protect the reasonable and equitable rights of all. Perils of the sea are always to be considered in contracts or agreements covering maritime services, and where the question is whether the time occupied was so unreasonable as to forfeit the rights of the salvors to continue their efforts consideration must be given to the state of the weather during the period. But where, in spite of the honest. efforts of the original salvors, either on account of their inefficient appliances, or bad weather, or other circumstances beyond their control, they are not making such progress as justifies the belief in a final success, it is unreasonable and against public policy to compel the master, where superior aid can be secured, to wait until the last moment of the prior salvors' efforts and take all the chances of final failure. However, in contracting for and accepting such superior aid the parties making such contract make it subject to all the existing rights of the original salvors, and in any such contract the property becomes responsible to them, regardless of any amount which may be promised the newcomers. Even if such later contract should be considered void, it could not affect the prior rights of others not parties to it. An agreement does not alter the character of the service rendered, so that if it was in fact a salvage service, it is none the less so because the compensation to be received is regulated by the terms of an agreement between the master of the ship or the owners of the salved property."

9. Validity of Contract.-Although courts of admiralty will enforce contracts made for salvage service and definite salvage compensation where the salvor has not taken advantage of his power to make an unreasonable bargain, the American and English courts are in entire

4. United States v. Cornell Steamboat Co., 202 U. S. 184, 26 S. Ct. 648, 50 U. S. (L. ed.) 987.

5. The Pine Forest, 129 Fed. 700, 64 C. C. A. 228, 1 L.R.A.(N.S.) 873. Note: 24 Eng. Rul. Cas. 586.

6. The Bayamo, 171 Fed. 65. 96 C. C. A. 1, 17 Ann. Cas. 1156; The Medina, 2 P. D. 5, 35 L. T. N. S. 779, 25 W. R. 156, 24 Eng. Rul. Cas. 580.

7. The Bayamo, 171 Fed. 65, 96 C. C. A. 1, 17 Ann. Cas. 1156.

8. Good Intent Tow-Boat Co. V. Atlantic Mut. Ins. Co., 109 U. S. 110, 3 S. Ct. 78. 27 U. S. (L. ed.) 874: The Bayamo, 171 Fed. 65, 96 C. C. A. 1, 17 Ann. Cas. 1156.

9. The Camanche, 8 Wall. 448, 19 U. S. (L. ed.) 397.

accord in holding that a contract which the master has been corruptly or recklessly induced to sign will be wholly disregarded. 10 These courts, however, carefully preserve the distinction between such contracts as are entered into corruptly, fraudulently, compulsorily, or under a clear mistake of facts, and such as merely involve a bad bargain, or are accompanied with a greater or less amount of labor, difficulty, or danger than was originally expected. While it is not necessary to impugn a salvage contract that such duress must be shown as would require a court of law to set aside an ordinary contract, still where no such circumstances exist as amount to a moral compulsion, the contract should not be held bad simply because the price agreed to be paid turned out to be much greater than the services were actually worth. The presumptions are in favor of the validity of the contract. The disproportion of the compensation to the work done is not the sole criterion as to the validity of a salvage contract, nor is such a contract objectionable, when prudently entered into, upon the ground that it may result more or less favorably to the parties interested than was anticipated when the contract was made.13 On the other hand a contract duly entered into cannot be repudiated by the salvor and the vessel libeled for salvage merely because the contract is unprofitable. Under the continental system the courts appear to exercise a wider discretion, and to treat contracts as of no effect when made while the vessel is in danger. Some intimations go so far as to say that they will be disregarded whenever made before the services are rendered. The doctrine of these courts seems to be based on the Rules of Oleron. 15

12

10. Persons Liable for Salvage.-The right of the salvor is merely a right to proceed against the thing salved, to obtain his satisfaction, and is not a personal claim on the owner, unless he has requested the service, or has, by taking possession of the thing saved, rendered himself personally liable for the reward.16 Where the shipowner

10. Post v. Jones, 19 How. 150, 15 U. S. (L. ed.) 618; The E celsior, 123 U. S. 40, 8 S. Ct. 33, 31 U. S. (L. ed.) 75; The Elfrida, 172 U. S. 186, 19 S. Ct. 146, 43 U. S. (L. ed.)

413.

Note: 24 Eng. Rul. Cas. 587. 11. The Elfrida, 172 U. S. 186, 19 S. Ct. 146, 43 U. S. (L. ed.) 413.

12. The Elfrida, 172 U. S. 186, 19 S. Ct. 146, 43 U. S. (L. ed.) 413. Note: 24 Eng. Rul. Cas. 587. And see infra, par. 28. 13. The Elfrida, 172 U. S. 186, 19 S. Ct. 146, 43 U. S. (L. ed.) 413. 14. Bondies v. Sherwood, 22 How. 214, 16 . S. (L. ed.) 238.

R. C. L. Vol. XXIV.-34.

529

15. The Elfrida, 172 U. S. 186, 19 S. Ct. 146, 43 U. S. (L. ed.) 413, wherein, the court, after quoting from the codes of several continental countries, said: "We have examined the cases cited by counsel in the Revue Internationale de Droit Maritime, and find that they are more favorable to the respondent than the English and American authorities. In short, they appear to pay much less regard to the sanctity of contracts than obtains under our system, and we are loath to accept them as expressing the true rule upon the subject."

16. Note: 24 Eng. Rul. Cas. 527.

pays a just claim of salvage for preservation of ship and cargo, he is entitled, by implied contract, to a general average contribution from the owners of the cargo.17 But when ship and cargo are in peril, the fact that the shipowners have by the act of the master become bound to pay and have paid a sum of money for preservation of ship and cargo, and that the master in so binding them pursued a reasonable course under the circumstances, is not conclusive that the whole sum was chargeable to general average so as to bind the cargo owners to pay their proportion.18 While an action cannot be maintained against the government without its consent, nevertheless personal property of the government, saved by salvors, is subject to a lien to fix the salvage, which is enforceable against the property so long as it has not come into the direct possession of the officer of the government.19 The liability of the federal government, as having a direct pecuniary interest in the property saved, for salvage on the duties collected by it on a cargo afterwards saved from loss while in the possession and under the control of the customs officers, may be founded on the assumption that the Secretary of the Treasury, acting under statutory authority, would have refunded the duties if the property had been destroyed. But where the duties have not been collected, the government cannot be held liable, since the services were not performed for its benefit, although, as a remote consequence therefrom, it might be benefited.20

II. PERSONS ENTITLED TO SALVAGE

11. In General.-In general any person who is not a member of the crew of the imperiled ship or a passenger thereon who renders salvage service is entitled to reward. So a passenger on a salving ship who renders service in saving the imperiled ship is entitled to share in the salvage awarded to the officers and crew of the salving ship.1 A passenger on the salved ship cannot recover salvage for every service which would support a claim by one in nowise connected with the ship. In the case of a common danger, it is the duty of everyone on board the ship to give every assistance he can, by the use of all ordinary means in working and pumping the ship, to avert the danger. Yet a passenger is not, as the officers and crew are, bound to stand by the ship to the last; he may leave her at any time and seek

17. Anderson v. Ocean Steamship Co., 10 App. Cas. 107, 54 L. J. Q. B. 192, 52 L. T. N. S. 441, 33 W. R. 433, 14 Eng. Rul. Cas. 409.

18. Anderson v. Ocean Steamship Co., 10 App. Cas. 107, 54 L. J. Q. B. 192, 52 L. T. N. S. 441, 33 W. R. 433, 14 Eng. Rul. Cas. 409. And see SHIPPING.

19. The Davis, 10 Wall. 15, 19 U. S. (L. ed.) 875.

20. United States v. Cornell Steamboat Co., 202 U. S. 184, 26 S. Ct. 648, 50 U. S. (L. ed.) 987.

2

1. The Connemara, 108 U. S. 352, S. Ct. 754, 27 U. S. (L. ed.) 751. Note: 17 Ann. Cas. 913.

his own safety; and for extraordinary services, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage.2 Soldiers who are being transported on a ship under a contract between their government and the shipowner are not passengers, and are entitled to salvage for saving by bailing the ship when leaking badly. Where a vessel is at a wharf within a municipality when she is found to be on fire, services rendered by the municipal fire department in extinguishing the fire do not entitle the members thereof to salvage, for the reason that such services cannot be said to be rendered voluntarily, but are only such as come within the scope of the legal duties of the fire department. But services rendered by a municipal fire department to a burning vessel which has been brought within the limits of the municipality upon condition that the fire department shall take charge of her without expense to the municipality may be made the basis of a claim for salvage. The fact that a part owner in the rescued vessel has also an interest in the salving vessel does not preclude him from sharing in the salvage, the danger not being caused by the fault of either vessel. So the owners of a salving ship who are also the owners of the salved ship may obtain salvage remuneration from the owners of the salved cargo, provided the circumstances which caused the necessity for the salvage services. do not amount to a breach of the contract of carriage between the ship's owners and the owners of the cargo which is on board the salved ship. But a shipowner cannot gain a salvor's lien on his own vessel, and a plaintiff in replevin cannot claim salvage for rescuing the replevied property after it had sunk while in his possession, since it was his legal duty to care for and preserve it.9

12. Owner of Salving Vessel.-While as a general rule a person not actually occupied in effecting a salvage service is not entitled to a share in the salvage remuneration, yet modern text writers, apparently without an exception, uphold the right of the owners of ships and vessels, whether propelled by steam or otherwise, to claim salvage compensation when such services are rendered by their vessels, whether they are present or absent at the time the service is performed.10 Remuneration for salvage service is awarded to the own

2. The Connemara, 108 U. S. 352, 2 S. Ct. 754, 27 U. S. (L. ed.) 751. Notes: 17 Ann. Cas. 913; 24 Eng. Rul. Cas. 526.

3. Note: 24 Eng. Rul. Cas. 526. 4. Notes: 17 Ann. Cas. 913;

Eng. Rul. Cas. 527.

5. Note: 17 Ann. Cas. 913. 6. Notes: 17 Ann. Cas. 912; Eng. Rul. Cas. 527.

24

7. The Pine Forest, 129 Fed. 700, 64 C. C. A. 228, 1 L.R.A. (N.S.) 873. 8. Note: 24 Eng. Rul. Cas. 527. 9 Three States Lumber Co. V. Blanks, 133 Frd. 479. 66 C. C. A. 353, 69 L.R.A. 283.

10. The Camanche, 8 Wall. 448, 19 U. S. (L. ed.) 397; The Blackwall, 10 24 Wall. 1, 19 U. S. (L. ed.) 870 Note: 17 Ann. Cas. 912