And, whether the general average consists of sacrifices to be made good, or expenses to be reimbursed, the contributory values are the same and are the values saved at the termination of the adventure. In both cases, if there is no salvage, there is no contribution. Cauvet, § 418.

But the English and American courts do not limit the liability of the ship-owner to the value of the ship and freight. 7 Johnson's (New York) Rep., 413; 9 Massachusetts Rep., 548; 14 Id., 66 ; 2 Phillips, § 1374; 2 Arnould, 344; 5 Common Bench Rep., 330.

And in the law of these countries, a distinction obtains, in certain cases, between sacrifices and expenditures, in fixing the contributory values in the adjustment of general averages. As to losses arising out of sacrifices, the law is the same as in the other countries above named. But in adjusting losses arising from expenditures, not secured by bottomry or respondentia, the value of the property at the time the expenses are incurred, is taken as the true contributory value, and contribution may be exacted in this case, though nothing is ultimately saved. 2 Phillips, § 1374; 2 Arnould, §§ 344–349; 9 Massachusetts Rep., 548; Phillips' Benecke, 241.

CHAPTER XXXV.

SALVAGE.

ARTICLE 402. When allowed.

403. Officers, seamen and pilots.

404. Forfeiture of salvage.

405. Special contract.

406. Amount, how fixed.

407. Apportionment between several salvors.

When allowed.

1

3

2

402. Except as provided in the next article, any person who rescues, or contributes to rescue from danger a ship, her appurtenances, cargo, or other property, against which a court of admiralty may give a remedy; or who rescues, or contributes to rescue the lives of the persons belonging to such ship, ̊ is entitled to a reasonable compensation therefor, to be paid out of the property saved."

Such compensation is termed salvage.'

5

It has been a mooted question in American courts, whether salvage

should be awarded to wrecking companies organized, and employing paid servants at regular wages, to rescue wrecks and vessels in distress. 1 Abbott's Jurisdiction & Practice of U. S. Courts, 583. But it seems to accord with sound public policy to recognize such claims. The Camanche, 8 Wallace's U. S. Sup. Ct. Rep., 448. Therefore, no restriction is inserted here. The apportionment of the sum awarded between the company and their servants, in such cases, must depend upon their contract.

'An abandoned attempt does not entitle the maker to share in the salvage of a subsequent successful attempt by others. Otherwise, where successive assistances are rendered by different persons, all contributing to the rescue. The Island City, 1 Black's U. S. Sup. Ct. Rep., 121.

Attempted services performed under an agreement of salvage, are entitled to be rewarded when the performance of them is rendered impossible by overruling necessity. The Undaunted, 29 Law Journal, Adm., 176; Lushington's Rep., 90.

3 The danger may be of damages of the seas, fires, pirates, or enemies. Jones on Salvage, p. 1.

The German law says, in case of "distress" or "danger." The American doctrine is, that there must be danger beyond the ordinary exposures, and requiring more than the ordinary services. Certainty of destruction without the service is not essential. 1 Abbott's Jurisdiction & Practice of U. S. Courts, 574. See, also, The Charlotte, 3 W. Robinson's Rep., 71.

Even though a vessel has sustained no real damage, yet if she is in a position of reasonable apprehension of actual danger, assistance rendered to her under such circumstances will be of the nature of a salvage service. Jones on Salvage, p. 3; The Aztecs, 21 Law Times, (N. S.,) 797. See, also, The Raikes, 1 Haggard's Adm., 246; The Phantom, Law Rep., 1 Adm. & Ecc., 58; and The Joseph C. Griggs, 1 Benedict's Adm., 80.

It would be equally a salvage service whether it were rendered at sea, or upon property wrecked at sea, but then upon land. Stephens v. Bales of Cotton, Bee, 170.

A Raft of Spars, Abbott's Adm. Rep., 485; and see Tome v. Dubois, 6 Wallace's U. S. Supreme Court Rep., 548.

Valuable papers, &c., and life are not the subjects of salvage. The Emblem, Dareis' Rep., 61; The Mulhouse, 12 American Law Rep., (N. S.,) 276.

The principle seems to be, that salvage may be allowed upon any description of property found in peril at sea, which is of such a nature that it might be the specific subject of proceedings in admiralty as a means of paying the amount awarded. The remedy, however, is personal, as well as against the specific thing.

The English Merchant Shipping Act, 1854. See, also, The Eastern Monarch, Lushington's Rep., 81; The Thomas Fielden, 32 Law Jour., Ad., 61. See, however, note 4, above.

Where there is a joint salvage, a vessel saving life as well as property has been awarded a higher remuneration than one saving property alone. The Clarisse, Swabey's Rep., 129. See, also, The Coromandel, Id., 205; The Bartley, Id., 198: The Alma, Lushington's Rep., 378.

The owners of the cargo must bear their proportion of salvage awarded for saving the lives of passengers on board the vessel; and it seems that their liability in this respect is not affected by the fact that the efforts of the salvors did not contribute to the safety of the cargo. The Fusileer, 34 Law Journ., Ad., 25.

The German Code further provides, (§ 753,) that "with respect to the salvage and assistance expenses, which shall be understood to include the amount awarded for such salvage and assistance, the creditor has a lien on the salved or preserved articles, and with respect to the salved, may detain them until security for the amount has been given.".

...

($ 754.) The master may not deliver the goods, either wholly or in -part, until the creditor has been paid, or has received security; otherwise, he makes himself personally liable to the creditor, so far as the latter's claim could have been satisfied out of the delivered goods, at the time of their delivery." . . .

(§ 755.) "Salvage and rendering of assistance do not of themselves impose a personal responsibility for payment of salvage and assistance expenses. But the receiver of the goods, when it is known to him at the time he received them that the same were liable for salvage or assistance expenses, becomes personally liable for such expenses," under certain restrictions.

The German law makes a distinction between salvage, which it only allows "when, in case of distress, a ship or its cargo, being no longer under the control of the crew, or having been abandoned by the same, are taken charge of, either wholly or in part, by third parties, and brought into safety;" and, what is called a claim for assistance, which is allowed "when, in any other case than the above, a ship or its cargo is rescued from a state of distress by the help of third parties."

Officers, seamen and pilots.

403. Officers and seamen of the ship concerned, or of a public ship of the nation of the ship concerned,' are not entitled to salvage, except in case of services rendered after being discharged from the obligations of their contract.'

A pilot not belonging to the ship' concerned may claim salvage for services not part of his official duties as pilot.*

1 The English rule is now understood to be, that salvage is not allowed to a national vessel for recapture of another vessel employed in the public service; and this rests upon the ground that the service is in the direct line of duty of a national [public] vessel; but the United States allow salvage in such cases. 12 Opinions of U. S. Attorneys-General, 289.

It has been held in the United States, that the officers and crew of a foreign war vessel are entitled to claim as salvors. Robson v. The Hun.tress, 2 Wallace Jr.'s U. S. Circ. Ct. Rep., 59.

If the contract between the owners and the crew be terminated by a bona fide and final abandonment of the vessel, the crew may become entitled to salvage reward for the services they subsequently render towards the preservation of the ship or cargo. Jones on Salvage, p. 19; The Florence, 16 Jurist, 572; The Warrior, 1 Lushington's Rep., 476; The Neptune, 1 Haggard's Rep., 227–237; The Vrede, 30 Law Joural, Adm., 209. Capture by a belligerent dissolves or suspends the connection between the seamen and their vessel; and if they rescue the vessel from the enemy, they are entitled to salvage. Jones on Salvage, p. 21; The Two Friends, 1 C. Rob., 271. See, also, Phillips v. McCall, 4 Washington's U. S. Circ. Ct. Rep., 141; Williams o. Suffolk Ins. Co., 3 Sumner's U. S. Circ. Ct. Rep., 270.

The American doctrine recognizes another qualification, namely, that services entirely above the duties of a seaman, rendered in a spirit of gal. lantry, may be compensated upon salvage principles. The John Taylor, Newberry's Adm. Rep., 341; The John Perkins, 9 American Law Rep., (N. 8.) 490; The Dawn, Daveis' Rep., 121, 142; Mary Hale, Marvin on Salvage, 161.

* Hobart v. Drogan, 10 Peters' U. 8. Sup. Ct. Rep., 108; Hand v. The El vira, Gilpin's Rep., 60.

The laws of most of the States of the Union make it a part of the duty of a pilot to assist vessels in distress; and, in some instances, give the rate of extra compensation to be awarded; their services being considered as extra-pilotage services, and not as salvage. 2 Parsons on Shipping, 271. The Wave. Hyer, 2 Paine's U. S. Circ. Ot. Rep., 131.

Forfeiture of salvage.

404. No person has a claim for salvage :

1. Who unnecessarily forced the acceptance of his services; or,

1

2. Who has not immediately notified to the master or owner, if possible, and to the local authorities, the property saved; or,

3. Who has embezzled or connived at the emblezzle- ?

ment of any part, however small, of the property saved.'

The law upon this point is laid down by Sir JOHN COLERIDGE, in The Atlas, 1 Lushington's Rep., 518, 528: Where "success is finally obtained, no mere mistake or error of judgment in the manner of procuring it-no misconduct short of that which is willful, and may be considered criminal, proved beyond a reasonable doubt by the owners resisting the claim -will work an entire forfeiture of salvage. Mistake or misconduct other than criminal, which diminishes the value of the property salved, or occasions expense to the owners, are properly considered in the amount of compensation to be awarded." See Jones on Salvage, ch. VII.

Whoever the salvors may be, whether licensed wreckers or not, they are not only bound to be scrupulously honest themselves, but, whilst the property is in their custody, they are expected to employ every reasonable degree of diligence to guard it from plunder by others; and any negli gence in this respect will affect the amount of their remuneration. The John Perkins, 19 American Law Rep., 490.

The misconduct of any individual salvor will work a forfeiture of all compensation for his share of the service. The Waterloo, 1 Blatchford & Howland's Rep., 114; The Blaireau, 2 Cranch's U. S. Sup. Ct. Rep., 240.

1 For instance, a second party of salvors, who wrongfully interfere with the first party. The Blenden Hall, 1 Dods., 414; The Fleece, 3 W. Robinson's Rep., 278.

2 German Law, § 752.

The Island City, 1 Black's U. S. Sup. Ct. Rep., 121; Sch. Dove, 1 Gallison's U. S. Circ. Ct. Rep., 585; The Bello Corrunes, 6 Wheaton's U. S. Sup. Ct. Rep., 152.

Parsons suggests that positive and material falsehood should be regarded as an "embezzlement of the truth," and should work a forfeiture in the same way and to the same extent as an embezzlement of the property. Law of Contracts, title Shipping, vol. 2, P. 322.

Special contract.

405. When during the danger a contract has been made in good faith' respecting the amount of the salvage, such contract must regulate the amount, unless excessive; in which case, it may be reduced to such amount as is proved to be reasonable.'

I The Theodore, Swabey's Rep., 351; The Helen & George, Id., 368; The Arthur, 6 Law Times, (N. S.,) 556.

* Bondies v. Sherwood, 22 Howard's U. S. Supreme Court Rep.,

214.

3 A. D. Patchin, 1 Blatchford's U. S. Circ. Ct. Rep., 414; Eads o. The H. D. Bacon, 1 Newberry's Adm. Rep., 274.

Amount, how fixed.

406. The amount awarded for salvage must be fixed, in the discretion of the court, in each case, as an adequate reward, not only for the work done, and expenses incurred, but the zeal shown, the risks run, and the value of that which was saved.

It does not include, however, the costs and fees of the legal authorities, the duties and charges to which the articles saved may be liable, or the expenses of storing, preserving, valuing, or disposing of the same.