The Camanche

• Decision Date: 01 December 1869
• Citation: 19 L.Ed. 397,8 Wall. 448,75 U.S. 448
• Parties: THE CAMANCHE
• Court: U.S. Supreme Court

75 U.S. 448

19 L.Ed. 397

8 Wall. 448

THE CAMANCHE.

December Term, 1869

APPEAL from the Circuit Court for California.

The case was this:

In November, 1863, in the midst of a violent southeast gale, the ship Aquila, then but a few days in port, sunk at her moorings in deep water, alongside her wharf, in San Francisco. She had just hauled in there to discharge her cargo, consisting of the materials and armament—shot, shells, guns, ordnance, stores, &c. of the monior Camanche, which was to be constructed under contract with the government by Donahue & Ryan, who owned both the Aquila and the whole cargo sunk.

The materials, armament, &c., were valued at $400,000. Of this, $340,000 were insured by various companies, each having a certain part of the risk. This left $60,000 at the risk of Donahue & Ryan, the owners.

The Aquila had been anxiously expected at San Francisco with her cargo. Her foundering in an exposed and difficult part of the bay, made the loss of the monitor highly probable. The public mind, excited by the civil war then raging, and by fears of attacks by hostile cruisers on a harbor and city inadequately defended, was shocked by the shipwreck of the only sure means of protection provided by the government for both; and this feeling extended itself throughout the country.

Measures were promptly taken to save, if possible, the vessel and cargo. Donahue & Ryan, who owned her and the cargo, and had contracted to build the monitor, then in San Francisco, of which they were residents, made within a day or two after the Aquila sunk, an abandonment of ship and cargo to the agent of the underwriters at San Francisco.

The agent did not accept, but took vigorous measures to save the property. The government superintendent for the building of the monitor was early on the ground and was active.

The best mechanics of the city were contriving measures. A dry-dock was thought of, and plans were drafted. The first attempt actually made was by pumping out the ship. This was after full consultation. It proved unsuccessful. The next attempt was to lift the ship by chains under her bottom. Different modes of getting these under were tried by divers: by blowing a hole underneath, &c. all in vain. This attempt, like the other, was abandoned.

These efforts were continued several weeks, at a cost to the underwriters of $38,000 in gold, but were finally given up. Ryan, one of the contractors, bore a leading part in these operations; had charge of the pumping process, and received $1000 for his services.

In this juncture, the efforts at San Francisco having proved abortive, a company called the Coast Wrecking Company, agreed at New York, with the underwriters, to undertake the recovery of the materials of the monitor.

The peculiar character of this company, and their agreement in the case—matters, both of them, much discussed in the argument must here be stated.

The company was an incorporated stock company, incorporated by the legislature of the State of New York, and invested by their charter with authority to hire or own vessels manned and equipped, to be employed in towing, aiding, protecting, and saving vessels and their cargoes wrecked or in distress, whenever such wrecks or distress occur, and to receive compensation or salvage for such services in like manner as private persons, and entitled to like liens and remedies.

The location of the company was in the city of New York, and its chief business was with the cruising grounds of the large Eastern ports. Its business of wrecking or salvage was conducted exclusively by vessels, equipments, and materials supplied and paid for out of the corporate funds; and the officers and men executing the work done, did not participate in the losses or gains springing out of the services rendered on the occasion of their employment; but, of whatever rank and position, were paid by the corporation, and out of its funds, as in cases of pure contracts of hiring.

The company was in the habit of paying to its agents and servants who were engaged in services of difficulty or danger, a rate of wages or salary proportionately high, and in case of injury to any of them while so engaged, its practice was to take care of them till they recovered, and in case of their death, to take care of their families, and to place them or their families, as the case might be, in a position to earn a livelihood. It also paid the medical bills of men hurt in its employment.

The rate of wages paid was high in proportion, and above pay for mere work and labor. Merritt's (the captain) salary was $4500 a year, with primage (for the service in this case, about $1500 to $2000), besides all expenses paid. His assistant had $1200 a year, and $500 primage. He and the others who went out with the expedition had all their expenses paid from the time they left New York until they returned. The principal divers averaged $13 a day, for the same time out and back; their day's work being four hours; besides expenses paid. The divers regularly employed by the company were on half pay while not engaged in service.

The agreement which the company made, was between itself and different insurance companies who had taken risks on the cargo, to raise it for $110,000, to be paid by the companies, each in proportion to its interest in the $400,000 valuation, insured; the Wrecking Company agreeing to complete the work in ten months, with a proviso, however, that if not completed in that time, the company should forfeit ten per cent.; and, also, that if there was no substantial recovery, the Wrecking Company should receive nothing. The proviso as to time was made because a cargo of the nature that this was, would, as to part of it, be injured by remaining long in water.

The agreement being made, the Wrecking Company promptly despatched to San Francisco a party of men, divers and wreckers, specially selected from New York, Boston, and Providence, and fully provided with suitable apparatus and machinery; the whole under the command of Captain Merritt, the company's general superintendent, a man of twenty years' experience, and of admitted skill in his calling.

The expedition left New York, December 24th, 1863, and arrived in San Francisco, January 17th, 1864. Captain Merritt on the 23d of January received possession of the wreck, and on the 25th of January, after examination and study as to the best plan, began operations.

The winter had just begun, and there was reason to expect cold and stormy weather. The ship, as she lay, was exposed to the southeast gales of the season, one of which had sunk her, with the rake of the bay for thirty miles, and to its currents. She lay ten feet from the wharf, with a list to starboard (off-shore) of forty-five degrees; pitched by the head at thirty to thirty-two degrees. Her forward part, for one-third of her length, projected beyond the end of the wharf, with the bow exposed to the force of the tides and currents. Her bow was sunk in forty-eight to fifty feet of water; her stern in about nineteen feet. At low water about one-sixteenth of her deck was out of water; at high water she was submerged, except a space on one side, close astern. In effect she was at the bottom of the bay, and at such angles of inclination fore and aft, and from side to side, as to make it, independent of the depth of water and the darkness, somewhat difficult to stand on her decks, and even more difficult to work at getting out her cargo. Besides, she rested on a rocky bottom, shelving off shore; making her liable, if her fasts should part at any time, to slip off into deeper water.

Besides the difficulties of the ship's position, the cargo was perplexing in its character and in its stowage.

The materials of the monitor comprised a great number of iron pieces, from twenty-six tons to one hundred pounds in weight. The frame was of angle-iron, long, crooked pieces, very difficult to handle. Floor timbers, also of iron, were of irregular shape, and some very heavy and long. There were two main engines for propelling the monitor, and eight smaller engines. The guns weighed twenty-two tons each, and there was a number of shot and shell. The guns, as well as the other heavy pieces, as ex. gr., the pilot-house, twenty-six tons, were liable, in the progress of loosening and getting out the cargo, to break away and do great damage. There were also a multitude of construction tools, machinery for a machine shop, and small pieces, bolts, rivets, &c., by thousands. The weight of the whole was fourteen hundred tons.

By reason of the very unusual nature, construction, value, and weight of the cargo, and to keep it from shifting, extraordinary means and care had been used in the stowage of it. It was 'stowed down solid,' 'firmly fixed in the hold,' shored by staunchions or joists, one end resting under the deck-beams, and the other resting on the cargo or the flooring over the cargo, in such angles and positions as required, and some of them tied with braces; the whole thoroughly wedged in. The stowage was such, as in the opinion of Mr. Ryan, one of the claimants, to make it impossible to remove the cargo with divers.

After full examination, the plan adopted by Merritt and his company, was to get out the cargo by divers, as far as necessary, and then to raise the ship, lay her on the flats, and hoist out the remaining cargo. It was considered impracticable to raise the ship with the cargo in her.

The first part of the work, getting out the cargo by divers, was commenced January 28th, 1864, and by unremitting labor from early in the morning until late at night, except two and a half days stormy and Sundays, it was completed about April 20th, 1864; somewhat less than three months.

The risk of life and limb during this part of the labor, was testified to be 'great and constant.' 'The divers were obliged to work in entire darkness, and the inclination of the deck both ways, and the mud which rendered it...