Savannah Sugar Refining Corp. v. Atlantic Towing Co.

• Decision Date: 23 October 1926
• Docket Number: No. 4887.,4887.
• Citation: 15 F.2d 648
• Parties: SAVANNAH SUGAR REFINING CORPORATION et al. v. ATLANTIC TOWING CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

15 F.2d 648 (1926)

SAVANNAH SUGAR REFINING CORPORATION et al. v. ATLANTIC TOWING CO. et al.

No. 4887.

Circuit Court of Appeals, Fifth Circuit.

October 23, 1926.

Geo. T. Cann, Robert M. Hitch, and A. B. Lovett, all of Savannah, Ga., and John M. Woolsey, of New York City, for appellants.

T. M. Cunningham, Jr., and Walter C. Hartridge, both of Savannah, Ga., and Earl Farwell and James K. Symmers, both of New York City, for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The steamship Silverway and her cargo of sugar were libeled for alleged salvage services rendered. The court, by its decree entered June 3, 1926, awarded to libelants $16,850 for salvage services rendered to the Silverway, her cargo, and pending freight, and prorated that amount according to salved values found, with the result that the sum of $4,653 was adjudged against the claimant of the Silverway and its surety, and the sum of $12,197 was adjudged against the claimant of the cargo and its surety, with interest on those sums from the date of the decree. The claimant of the cargo and its surety appealed from the decree, which is complained of on the grounds: (1) That the amount awarded was excessive; and (2) that the court erred in holding that the cargo was primarily liable for any part of the amount properly allowable as salvage.

After the libel was filed, and after the steamship and the cargo had been released upon the giving of bonds, with surety, by the respective claimants thereof, the cargo owner filed a petition which prayed that the owner of the Silverway and its charterer be made parties, and that the amount of any salvage awards to which the libelants might be found to be entitled be decreed to be paid in the first instance by the Silverway and her charterer. That petition asserted the claim that the Silverway was unseaworthy by reason of not being equipped with adequate charts and sailing directions on her voyage from Cuba to Savannah, which was in progress when she stranded, that the stranding of the Silverway was due to such unseaworthiness, and that such unseaworthiness was a violation of the contract of affreightment under which the cargo was accepted and carried. There was no service of process under that petition, and the parties so sought to be brought in did not appear or respond to it.

The following statements contained in an opinion rendered by the District Judge are supported by the record:

"On the afternoon of June 29, 1924, at 5:50 p. m., at about high water, the steamship Silverway, bound from Cuban port to Savannah with a cargo of raw sugar, went aground on the shoals off the north end of Warsaw Island. The ship was going at full speed ahead and ran hard aground. The captain of the Silverway sent this wireless to the Savannah Sugar Refinery Corporation: `Want immediate assistance Vessel aground Making no water. Tybee Island Light bearing N. 14 E. eleven miles.'

"Knowledge of this was first brought to the captain of the Atlantic Towing Company by a boy who had received it over radio, and thereafter he was advised of it by Mr. Robertson, of the Savannah Refining Corporation, about 8:30 o'clock in the evening. The pilot boat Christabel arrived at the scene of the stranding at 11 p. m., June 29th. The tugs Cynthia and Henry W. Grady began preparation at Savannah, about 30 miles from the Silverway, at 8:30 p. m., and arrived at the scene of the stranding at 3 a. m. on June 30th. The pilot boat and these two tugs attempted to pull off the Silverway on the morning tide of June 30th. The tug Jacob Paulsen left Jenkins Island at 1:25 p. m. June 30th, and arrived at scene of stranding at 4:15 p. m. Those three tugs pulled on the Silverway the afternoon of June 30th; the Christabel not being present. The tug Wm. F. McAuley was notified on June 30th to come from Georgetown, and arrived at the ship at 3 a. m. on July 1st, went to Savannah, and brought back a 4,000-pound anchor and 200 fathoms of hawser, and arrived at the Silverway at 12:30 p. m. July 1st. On the morning tide of July 1st, the Christabel, Cynthia, Grady, and Paulsen pulled on the steamer. On the afternoon tide of July 1st, the Christabel, Cynthia, Grady, Paulsen, and McCauley pulled on the vessel, aided by the wrecking anchor, thereby succeeding in putting the Silverway afloat in about 15 minutes. The Cynthia supplied the steamship with fresh water necessary in working her engines. The value of the vessels engaged in the pulling and the supplying of water was approximately $250,000; 281 bags of sugar were lightered before the vessel was finally floated. The weather was warm and on the whole free from storms or menace thereof, though there was a slight brief blow. The Silverway was, at low water, aground substantially throughout its length, more deeply imbedded at the bow than at the stern. There was no loss to cargo. The service was strictly a salvage service, as no recovery for the service could be had, unless success should be attained. There were 46 men engaged in the salvage, outside of the crew of the Silverway. The Silverway was valued at $100,000, the freight at $10,826.64, and the cargo at $290,537. * * * There was some risk of injury to the ship being permanently disabled, if it had become firmly imbedded in the sand."

The ship sustained no damage, except from a slight injury to her engines, due to sucking in sand while she was aground. Two hawsers supplied by tugs engaged in the service broke during the pulling operations, and new hawsers were supplied and used. There was evidence as to the loss resulting from the injury to the hawsers, but there was no finding as to the value of those hawsers,...