Perriam v. Pacific Coast Co.

• Decision Date: 03 October 1904
• Docket Number: 1,028.
• Citation: 133 F. 140
• Parties: PERRIAM v. PACIFIC COAST CO. et al (OREGON R. & NAV. CO. et al., Interveners).
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 140

PERRIAM v. PACIFIC COAST CO. et al (OREGON R. & NAV. CO. et al., Interveners).

No. 1,028.

United States Court of Appeals, Ninth Circuit.

October 3, 1904

On November 25, 1901, the British ship Nelson, of 1,310 tons gross and 1,247 tons net register, with a crew of 23 including officers, carrying a cargo of wheat of the value of $35,000, with pending freight of $15,000, sailed from the mouth of the Columbia river, Or., on a voyage to the United Kingdom. She had proceeded a little more than 100 miles off the coast of Oregon when she encountered heavy weather and gales of unusual violence, which so distressed her by damage to her rigging, gear, and sails, and by causing her cargo to list to starboard, that she was compelled to abandon her course, and return to some port of refuge for repairs and to restow her cargo so as to bring her to an even keel. She returned to the mouth of the Columbia river for the purpose of entering the port of Astoria. She arrived off the mouth of the river about December 1st. On the morning of December 3d the tug Wallula, then plying off the bar, observed her signals, and spoke her. The Nelson was then heading inshore. The morning was squally, with fog and occasional rain. The ship requested assistance to be towed into Astoria. The tug answered that the bar was impassable, and that it would be best for the ship to go to Puget Sound or San Francisco. The ship replied that it had no sails other than those spread which were the fore topmast staysail, the fore lower topsail the main lower topsail, and lower mizzen topsail and mizzen staysail. The tug declined to undertake, alone, to take the ship in tow, but replied that she would go toward Astoria and secure assistance. She returned inward, and spoke the tug Tatoosh. Both tugs then went out to the Nelson. At about 10 o'clock in the morning of December 3d the tugs mast fast to the ship. The wind had then veered more to the south, the weather was squally, and the barometer was falling. The Tatoosh laid her hawser on the lee side of the ship, and the Wallula laid hers on the weather side, and from that time until 3 o'clock in the afternoon they towed the ship in an attempt to get over the Columbia river bar. During this time the wind arose to stiff gales, and by 3 o'clock it had veered to northerly of west. The force of the wind and the sea became so great that it was impossible for the tugs to hold the ship to the wind without making sternway. They were then about three miles off shore. The ship was rolling and pitching, and the strain on the hawsers was severe. The Wallula, having depleted her coal supply, was compelled to slip her hawser and return to port. The Tatoosh then shaped her course northwest by West-westerly, to get the wind on the quarter, and signaled the ship to make sail and follow. The course so adopted was for the track of vessels plying coastwise between the Puget Sound and San Francisco. The wind veered still further to the west, and was blowing with great force, and the weather was rainy, and the sea choppy and heavy. The ship signaled that her sails were all split and blown away, and she did not comply with the tug's signal to set her sails in accordance with the new course. At 10 o'clock on the night of December 3d the hawser of the Tatoosh parted. Thereafter the tug cruised for the ship, but was unable to sight her. The tug made efforts to ship her trailing hawser, but the seas were so heavy that she was unable to do so and the hawser was cut. On arriving at Astoria the captain of the Tatoosh sent to his owners at Seattle the following telegram: 'Ship Nelson broke adrift from me ten last night, fifteen miles west Shoalwater Bay. Could not find her. Probably go Sound. Salvage.' The ship, after the hawser parted, set all hands to make said, and proceeded up the coast about 25 miles off shore, and flying signals of distress. When about 35 miles southeast of Carroll's Island she spoke the Steamship Walla Walla, a passenger steamer bound for Puget Sound, and requested the steamship to give her a tow into the Puget Sound. At that time some of the Nelson's sails were blown away, others were so injured as to be of little use, her lifeboats and other boats were smashed, and the weather was thick and the barometer falling. At about half past 3 o'clock on the afternoon of December 4th the steamship made fast her hawser to the Nelson and took her in tow on her course to Puget Sound. She arrived with her tow at Port Townsend in the afternoon of December 5th. On the libels of the Pacific Coast Company and the Pacific Coast Steamship Company, respectively the charterer and the owner of the Walla Walla, the Nelson was arrested, and released on a bond. The tugs Tatoosh and Wallula belonged to the Puget Sound Tugboat Company, but at this time were chartered to the Oregon Railroad & Navigation Company under a charter party which provided that the owner and the charterer should share jointly in all salvage awards earned by the tugs. These two corporations intervened, and sought awards for services which the tugs had rendered to the ship, and asserted that the Pacific Coast Company and the Pacific Coast Steamship Company were not primary salvors, and that, had it not been for the services of the tugs, the Nelson would have become a total loss. Capt. Perriam, claimant of the ship, filed a cross-libel against the Oregon Railroad & Navigation Company and the Puget Sound Tugboat Company, seeking to recover damages in the sum of the value of the services of the steamship Walla Walla, 'for the recovery of which suit is pending as aforesaid, and the amount of which has not yet been by the court, less the reasonable value of the towage service performed by said tug Tatoosh under said contract, and in the further sum of the amount of costs and expenses of said suit of the Walla Walla against said ship and cargo. ' On the trial in the District Court of the issues involved in these pleadings the cross-libel of Capt. Perriam, the claimant, was by the court dismissed on the ground that the allegations thereof was not sustained by the evidence. The decree of the court awarded to the Pacific Coast Company for the services of the steamship $15,000, to her master, officers, and crew $5,200, and to the intervening libelants, for the services of the tugboat Tatoosh, $2,000, and for the services of the tug Wallula $500. The District Court in the decree made the finding that the steamship Walla Walla, her master, officers, and crew, 'Enforced a highly meritorious salvage service, whereby the ship Nelson, her Tackle, apparel, furniture, and cargo, were saved from total loss on the 4th day of December, 1901, while she was in a helpless condition, and the lives of her officers and crew were greatly imperiled,' and that 'said tugboats, on the 3d day of December, 1901, at the request of the master of the ship Nelson, performed towage services for the said ship Nelson at a time when she was in distress and danger. ' In the opinion filed by the trial court it was said: 'There is conflict in the testimony as to some of the important facts. The testimony of the captain of the ship Nelson and the witnesses on his side is in a large measure discredited by the manifest disposition of said witnesses to prevaricate and minimize the peril from which they were rescued, and the exertions made in their behalf by the salvors. I am convinced by the evidence that the steamship Walla Walla, her captain, officers, and crew, rescued the ship Nelson from extraordinary peril and probable destruction, and, considering that the steamship Walla Walla was a passenger ship, having on board a large number of passengers and a valuable cargo, and that she was not seeking employment as a towboat, the services rendered were of a high order of merit, and entitled to be compensated on a scale of liberality. It is my opinion that the Wallula and the Tatoosh did not earn salvage, because their efforts did not place the ship Nelson in any better position or condition that she was when they first went to her assistance; but they did not fall to make the utmost endeavors to rescue the ship, and committed no fault which in any way contributed to increase the peril to which the Nelson was exposed. The lives of the men on board the steam tugs were placed at risk, as well as the property of their charge. Fuel was consumed, and a towline was sacrificed, and more or less damage was done to the steam tugs in the efforts to tow the ship at the request of her captain; and for this compensation should be awarded, not as salvage, but for extraordinary towage.'

William H. Gorham and ...