Baker v. Hemenway (The City of Valparaiso). tenant; and it was held that the tenant could not afterwards remove a building which he had put up during his first term. Both these cases turn on the intent to be derived from a written instrument, and do not govern the case of a mere holding over. Upon that the following dictum is more pertinent: "If a tenant remain in possession after the expiration of his term, and perform all the conditions of the lease,1 it amounts to a renewal of the lease from year to year, and, I take it, he would be entitled to remove fixtures during the year:" per Woodward, J., in Davis v. Moss, 38 Penn. St. (2 Wright) 353. Those cases, I say, turn on the implied agreement of the parties; and this case finds "there was never any agreement between the landlord and tenants who succeeded said Meserve or said Roberts & Champlin in respect to said fixtures," and goes on to say that bills of sale were made of the chattels and fixtures from one tenant to the next, but without any notice to the landlord. Under these circumstances, I am of opinion that the fixtures of the bar-room were never surrendered to the landlord. It was said that each tenant should have severed the fixtures when he sold his lease, or whatever he did sell, and the new tenant should have reannexed them. But the law does not compel vain and useless trouble and expense. If that would have saved the right, I am clear that it was saved without it. Judgment, that the landlord owns the gas fixtures, and the assignee those of the bar-room. BAKER v. HEMENWAY (THE CITY OF VALPARAISO). NOVEMBER, 1876. A steamship, worth, with her cargo, $500,000, took the ground in the harbor of Boston, and was pulled off, at about high water, by a large tug, assisted by the engines of the steamship, and by two small tugs, the principal power being furnished by the ship and the large tug, and the small tugs being occupied less than an hour. Held, that the small tugs had rendered a salvage service : That they were to be paid a liberal compensation, much more than their hire for an hour, but not one into which the value saved would enter as a very important element: Sums decreed, $800 and $400. 1 A written lease was in question. Baker v. Hemenway (The City of Valparaiso). SALVAGE.The City of Valparaiso was a new steamship, built in England, and intended for the trade between Boston and Chili. In going down the harbor of Boston on her first voyage she grounded on Lovell's Island in the daytime, about an hour and a half or two hours before high water. The wind was strong from the north-west, and tended to set her further on the shoal. She had a large and powerful tug, called the C. S. Winch, in attendance, to bring back some passengers; and, while lying aground and backing her own engines with all their power, she accepted the services of the two comparatively small tugs, the Macy and the Woolley, whose owners and crews bring this libel. The Macy assisted the Winch in pushing against the steamer's quarter, to keep her up to the wind; the Woolley assisted in drawing her off. The steamer was aground a little more than an hour. The facts were not seriously disputed; but the opinions of the witnesses were opposed upon the question how far the services of the tugs were important to the safety of the ship, her own witnesses testifying that she had ample means to haul off by anchors, &c., in addition to her engines, in case those alone had failed. The after-part of the ship was lightened by pumping out the water ballast. The vessel pursued her voyage to Valparaiso and back, and on her return was found to have been considerably injured by taking the ground, though the leak caused by it was not large. The ship and cargo were worth nearly half a million dollars. J. C. Dodge, for the libellants. E. R. Hoar & S. Hoar, for the respondent. LOWELL, J. That a vessel in distress accepting services without a special contract, and in the absence of a usage of the port, accepts a salvage assistance, is abundantly established. It will be enough to cite some of the decisions in this circuit, though the law is the same in all: The Versailles, 1 Curtis, C. C. 353; The Independence, 2 id. 350; The Island City, 1 Clifford, 210; The Susan, 1 Sprague, 499; The James T. Abbott, 2 id. 101; M. B. Stetson, 1 Lowell, 119; The Coringa, id. 154. The The important and difficult part of the case is not the name by which it is called, but the amount which shall be decreed. A very large value was saved, but under circumstances which Baker v. Hemenway (The City of Valparaiso). do not contain other elements which should require the quantum to be large. The service resembled towage. I do not mean that there is any generic difference between towage and salvage. In the absence of a contract, the towing of a vessel in peril or disabled is salvage; but as a convenient word to distinguish an ordinary case of contract from one of salvage, "towage " is often used. The increased use of tugs, and their rivalry, have operated to reduce the value of a salvage service in most of the ports to something not very much beyond the price of a towage contract contingent upon success. Competition has established what might almost be called a quantum meruit for cases of this kind. A striking illustration of this is found in the history of two cases which were tried in the southern district of New York. It had been held by the courts there that a corporation organized for saving vessels, and paying its men wages which did not vary with the service performed, could not be salvors. The decision was overruled by the supreme court: see The Morning Light, 6 Blatch. 154; The Camanche, 8 Wall. 448. In the mean time, two more cases of the kind had arisen in that district, and Judge Blatchford, refusing salvage, had allowed to the corporations what he called a liberal allowance for work and labor: The J. F. Farlan, 3 Bened. 206; The Stratton Audley, id. 241. When these cases were reviewed in the circuit court, the decision of the supreme court had reversed the rule on which they were avowedly decided; but Judge Woodruff, nevertheless, affirmed the decrees, as having awarded a sufficient salvage: The J. F. Farlan, 8 Blatch. 207; The Stratton Audley, id. 264. That affirmance was wrong, unless Judge Blatchford had in fact, though not in name, given salvage. And such I suppose to be the case. He spoke of a liberal compensation; but liberality is salvage there is no place for liberality in an action of contract. The circuit court in effect decided in those cases that salvage performed by means of towage in the harbor of New York should be compensated without any close attention to the amount saved, but rather as a liberal and enlarged compensation for work and labor. We are told by the privy council that value is never wholly lost sight of in these cases: The Amérique, L. R. 6 P. C. 468; and this is true; for the salvage for a small : Baker v. Hemenway (The City of Valparaiso). vessel might be much less than the worth of the time and labor employed; and, in a case precisely like this in other respects, if only $500 had been saved, no one would expect my decree to be what it will be in this case. The essential difference in assessing damages in contract and in salvage is, that in the former nothing can be considered but the means employed; in salvage, even when the value saved is left out of account, or nearly so, the general results are quite as important as the means used to accomplish them.1 That the City of Valparaiso was in need of assistance, and that it was highly desirable that she should not lie on that shore beyond high water, was and is clear; more so, perhaps, since the amount of injury which she suffered has been found out than it was at the time. I should consider that her master and her owner, who was on board and was insured, had incurred a grave responsibility if they had not accepted assistance. If she had lain there twelve hours, no one will venture to say what the damage would have been. When, therefore, some of the witnesses say that they do not think she was in peril, all they can mean is, that they believe she would have come off without assistance, not that her position, in itself considered, was not perilous. The weight of the evidence is, that by carrying out anchors and hauling on them with her winches, which were worked by steam, she could have applied as much and even more power in the general direction in which the tugs furnished it. But I have heard no witness say that this operation could have been successfully performed before high water; and I very much doubt it. High water was so near, that the witnesses dispute whether it had been actually reached or not when she came off; and that carrying out anchors would have been a slower work than hitching on a tug needs no testimony. Most of the work was done by the steamer's engine, and by the large tug which makes no claim here. That which the libellants did appears to have been useful, and, I am inclined to think, essential to the rescue at that time. 1 For the sense in which contract and salvage are contrasted with each other, see The Louisa Jane, ante, p. 295. I have looked at many of the cases besides those already cited, to see how much has been given under various circumstances more or less like these. As well as I can estimate the intent of the courts, it has been to give to tugs what will be a handsome gratuity, enough to induce prompt and even eager assistance; and this would be enhanced slightly by a great value at risk, though in no important or definite proportion to value. Taking all these circumstances into view, and intending to be liberal, I award To the Macy $800, to the Woolley $400, and costs. The word "creditors," in the section of the bankrupt act relating to composition, means all whose debts are provable in bankruptcy. A mistake, without fraud, made by the debtor in his statement of the amount due to a creditor will not vitiate a composition. The true amount of a disputed claim may be proved by the creditor. The court may provide for an unliquidated claim in composition cases, as if the case were in bankruptcy, by permitting the prosecution of a pending action in the State court, or by ordering an inquiry in the matter at the bar of the court of bankruptcy. BANKRUPTCY.-COMPOSITION.-The bankrupt, having offered a composition of twenty per cent to his creditors, now informs the court by petition that Charles F. Roberts claims a considerable sum as due to him, which the bankrupt wholly denies. He has placed the name and residence of Roberts on his list, but with a statement that he disputes the whole claim. An action is pending between the parties in one of the State courts upon this alleged debt; and the prayer is, that the bankrupt may have thirty days after the determination of that action in which to tender twenty per cent of the amount therein ascertained to be due to Roberts, if any thing; or that Roberts be required to come into this court and prove his claim, or for other relief. G. R. Fowler, for the bankrupt. B. D. Washburn, for the creditor. |