The Neshaminy

• Decision Date: 10 December 1915
• Docket Number: 1972.,1971
• Citation: The Neshaminy, 228 F. 285 (3rd Cir. 1915)
• Parties: THE NESHAMINY (two cases .
• Court: U.S. Court of Appeals — Third Circuit

228 F. 285

THE NESHAMINY (two cases .

Nos. 1971, 1972.

United States Court of Appeals, Third Circuit.

December 10, 1915

Wm Clarke Mason, of Philadelphia, Pa., for appellant.

J Frank Staley and Lewis, Adler & Laws, all of Philadelphia Pa., for appellee Walker.

Henry R. Edmunds, of Philadelphia, Pa., for appellee Murray.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

The question, as presented, is whether an indirect advantage to a vessel, arising out of services in the nature of salvage services rendered to other property, is a proper basis for a salvage award.

The facts found by the District Court appear in its opinion. 220 F. 182. Only a brief summary will here be made.

The Barge 'Neshaminy' was in a floating dry dock undergoing repairs. She was resting upon blocks and was elevated to the level of the decks of the dock. Upon one deck of the dock and in a position amidships the barge was an engine house, one side of which was flush with the inner wall of the dock. The other side projected over the outer wall about five feet. The barge was but ten feet from the engine house. Early one morning, a fire broke out in the engine house. Responding to an alarm, the Tug Delaware hastened to the scene, ran her bow under the overhang of the engine house and played a stream of water upon the fire, which burned fiercely for two hours or more. While the fire was still beyond control, the Tug Crawford arrived, ran a hose upon the deck of the barge, and from that position played upon the fire of the engine house until it was extinguished. The fire however, had crept into the interior of the dock and extended down between its inner and outer walls. For an hour or more, the 'Crawford' was engaged in extinguishing this fire.

The dry dock was beyond the reach of the local fire department. The crew of the barge was aboard. Its means for fighting fire were entirely inadequate, and the safety of the barge lay either in sinking the dock and causing the barge to float away or remaining in the dock and depending upon the services of the tugs. The barge was not afire, although close enough to the fire for its side to be blistered. Slush upon its decks protected it from sparks. The master of the barge did not ask for assistance, and none was rendered by the tugs in the sense of playing their streams upon it.

From the nature, extent and duration of the fire, and its proximity to the barge, the court found that danger to the barge was not merely to be apprehended, but was actually present. It also found that in rendering assistance, the Tug Delaware was in a position of some danger, while the Tug Crawford was in a position of safety.

Upon these findings of fact, the District Court awarded salvage to each tug, proportioned to the services rendered and the risks encountered.

The facts found by the trial court, after observing and hearing the witnesses, should not be disturbed unless the testimony clearly discloses a serious mistake and compels the appellate court to different findings and conclusions. The testimony amply justifies the findings. Therefore, the only matter for review is the question of law, whether the services indirectly rendered the imperiled barge, under the circumstances, raise a claim for salvage.

Preliminary to a discussion of this question, it may be conceded that a floating dry dock is not a subject of salvage service, Cope v. Dry Dock Co., 119 U.S. 625, 7 Sup.Ct. 336, 30 L.Ed. 501, and that a vessel while undergoing repairs in a dry dock, may be the subject of such service. The Robert W. Parsons, 191 U.S. 17, 24 Sup.Ct. 8, 48 L.Ed. 73; The Jefferson, 215 U.S. 130, 30 Sup.Ct. 54, 54 L.Ed. 125, 17 Ann.Cas. 907.

It is admitted that if services had been rendered directly to the barge, or to the dock upon the request of the master of the barge, salvage should have been awarded. The Jefferson, supra; The Blackwell, 10 Wall. 1, 19 L.Ed. 870; The Rosalie, 1 Spinks, 188; The City of Newcastle, 7 Asp.Mar.Cas. (N.S.) 546; The Clarita and The Clara, 23 Wall. 1, 23 L.Ed. 146. But the appellant distinguishes the cases under review from the cases cited, (in which services were rendered directly to imperiled craft) and urges that the services performed by the tugs were rendered directly to the dock, and that the advantage which the barge indirectly derived from them was not a service rendered the barge or a benefit for which it should respond in salvage. The appellant cites The San Cristobal (D.C.) 215 F. 615, in which are cited The Acre (D.C.) 195 F. 1022, and The City of Atlanta (D.C.) 56 F. 252, as authority for the proposition that an indirect advantage to one vessel arising from a salvage service rendered to another cannot be a basis of a salvage award.

We make no criticism of this statement of the law as applied to the cases in which it appears, for those cases were decided, as this one must be, upon the fact of service rendered the vessel endangered, and not upon the claim of an indirect benefit incidentally derived from a service rendered another.

The facts of The City of Atlanta, supra, were these: The City of Columbia, a sister ship, was moored to a dock and to her side was moored the City of Atlanta. Fire broke out on the latter. Without requests or acts by the officers of the City of Columbia, from which it appeared or might be inferred that she was seeking or accepting assistance, tugs rushed to the City of Atlanta, pulled her out into the stream and extinguished the fire. The tugs libeled both ships. The court held that no service was rendered to the City of Columbia, though indirectly she may have derived a benefit from the service rendered the City of Atlanta; that the removal of the City of Atlanta to midstream, where she could be reached and the fire fought on both sides, was a prudent and necessary thing done exclusively for the protection of the ship afire and as a means by which the fire could more readily be reached and extinguished, and that the unsolicited and indirect benefit to the City of Columbia, concerning whose danger there was conflict in the testimony, was merely incidental and did not constitute salvage service. The facts apparently justify this finding. The point of the finding is that no service was rendered the City of Columbia.

In The Acre, supra, the court found that an indirect service may be the basis of a salvage award. Upon facts in some respect similar to though distinguishable from those in The City of Atlanta, the court said:

'The salvage of the Javary necessitated moving the Acre. The fire proved to have been dangerous to the Acre only by communication from the Javary. The Acre was, however, in a dangerous situation because of the possibility of that communication and the aid given her

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