In re The Snow Maiden, 56-20.

• Decision Date: 23 September 1957
• Docket Number: No. 56-20.,56-20.
• Citation: 155 F. Supp. 518
• Parties: THE SNOW MAIDEN. Lawrence H. POWERS v. Frederick T. WHITE.
• Court: U.S. District Court — District of Massachusetts

155 F. Supp. 518

THE SNOW MAIDEN.

Lawrence H. POWERS v. Frederick T. WHITE.

No. 56-20.

United States District Court D. Massachusetts.

September 23, 1957.

Andre R. Sigourney, Badger, Pratt, Doyle & Badger, Boston, Mass., for plaintiff.

Thomas H. Walsh, Boston, Mass., for defendant.

WYZANSKI, District Judge.

This is a libel seeking an award for alleged salvage services voluntarily rendered to The Snow Maiden.

While under the command of her owner, Frederick T. White, the schooner Snow Maiden went aground on Brown's Bank, near Plymouth Harbor, during a storm on Saturday, November 19, 1955. The Coast Guard, in the presence of some private persons, and to the knowledge of many people in the community, removed on that Saturday night four members of the crew. At 4 a. m. on Sunday, White and the other crew members left The Snow Maiden without any intention of returning. White, by 3 that afternoon, engaged George A. Davis, the owner and operator of a well-known yard in Plymouth, to do all necessary work to salve the vessel. By Monday morning the schooner had broken up, leaving on the sandy beach the engine and certain other gear.

At 7 that Monday morning, Lawrence H. Powers, a fisherman, headed out to sea to fish. When he started he knew that there had been a wreck, but he did not inquire about who was the owner or what, if any, arrangement he had made for salvage. One of his fishing crew spotted through binoculars the engine on the beach. Salt water and sand were causing the engine and gear to deteriorate. There was some risk that they might become lost in the sand or sea.

After three hours work Powers and his crew salved the engine, a gas driven pump, some batteries, and a fire extinguisher. The then value of the engine was about $400, as is persuasively shown both by a contemporaneous, disinterested expert appraisal of the Plymouth shipyard man, George A. Davis, and by the net proceeds realized when the engine was later sold. The then value of the pump was $15, and the other items were of no value.

Powers brought the salved property to Plymouth Harbor at once. But he did not and would not turn it over unconditionally to White, who was at the dock. He claimed one thousand dollars for his services, and declined to surrender the property before payment. White refused to pay, and pointed out that he had not authorized Powers' action and that his demand was so exorbitant as to be "crazy". Local Harbor and police authorities (none of whom was quite sure of the law,) suggested that Powers should at least turn the engine over to Davis at once for immediate oiling, stripping down and reconditioning, so that further deterioration would not occur. Powers did this. Some weeks later, after consulting counsel, Powers told Davis to give the engine to White; and this was done.

With White's permission Powers went back to the scene of the wreck and salved the mast. In salvaging this spar, Powers damaged his vessel in the amount of $30 and used up wire worth $100. But the mast itself proved to be worth only $50.

From the foregoing facts, this Court concludes that Powers was warranted in volunteering his services as a salvor. Two alternative paths reach that result. The first is that White had abandoned the vessel, and left her a derelict. The Barque Island City, 1 Black 121, 66 U.S. 121, 128, 17 L.Ed. 70. The Gerbeviller, D.C.Mass., 34 F.2d 825, 826. The other is that, in the words of Justice Butler in Merritt & Chapman Derrick & Wrecking Co. v. United States, 274 U.S. 611, 613, 47 S.Ct. 663, 664, 71 L.Ed. 1232, "any prudent man would have accepted" the services of Powers as a salvor, since the engine and gear might have disappeared before Davis could reach them. See the explanation of The Esperance, 1 Dodson 46 given by Justice Miller in The Laura, 14 Wall. 336, 343-344, 20 L.Ed. 813.

Powers is not debarred from presenting his claim merely because White had previously engaged Davis to effect the salvage. It is, of course, well recognized that if there is a derelict or if there is a perilous situation, a would-be salvor need not await a request or invitation from the owner or master. Merritt & Chapman Derrick & Wrecking Co. v. United States, supra. The Annapolis, Lushington 355, 375. But it may be said that this rule does not apply where the owner has given a third person a contract to perform the salvage.

We may assume that (1) if the volunteer knows of the contract, (2) if the safety of men's lives is not at stake See Kennedy, The Law of Civil Salvage, (3rd ed., 1936), p. 218, Gilmore & Black, The Law of Admiralty, p. 446, note 12, and (3) if the volunteer does not reasonably believe that the contractor will arrive too late to rescue the property, Cf. The Esperance, supra, the volunteer must respect the ship's or owner's first choice. This is because usually the volunteer's "assistance" cannot be "forced upon a ship". Justice Butler's interpretation of The Bolivar v. The Chalmette, C.C., Fed.Cas.No.1,611, 1 Woods 397, given in Merritt & Chapman Derrick & Wrecking Co. v. United States, 274 U.S. 611, 613, 47 S.Ct. 663, 71 L.Ed. 1232. The volunteer's right to remuneration would be lost by what is in effect an "express and reasonable...