  1. Definitions.—Salvage may be defined as a legal liability which is created by the rescue of maritime property from perils of the sea. It may be quite independent of contract or agreement and these do not affect its nature. The word also designates the reward or compensation for the rescue and, sometimes, the property which is saved. Its essentials are maritime property in peril and a voluntary successful effort to save it. From the standpoint of the owner of the property, it is the price of safety. The ingredients of a salvage service are, first, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow-creatures, and to rescue the property of their fellow-subjects; secondly, the degree of danger and distress from which the property is rescued—whether it were in imminent peril, and almost certain to be lost if not at the time rescued and preserved; thirdly, the degree of labor and skill which the salvors incur and display, and the time occupied. Lastly, the value. Where all these circumstances concur, a large and liberal reward ought to be given; but where none, or scarcely any take place, the compensation can hardly be denominated a salvage compensation: it is little more than a remuneration pro opere et labore (The Clifton, 3 Hagg. Adm. 14, 48 [quoted with approval in Cope v. Drydock Co., 119 U.S. 625]). General Average is also the price of safety under different circumstances. It is the contribution required of the parties interested in a maritime venture to compensate the sacrifice of a part for the safety of the rest. The typical instance is the jettison of cargo in order that the ship may be saved; the loss is equalized by a general average. 2. What May Be Salved.—The subject of salvage can only be vessels and property that is or has been on board a vessel. In Chapter I §4, there is some discussion of what constitutes a ship within the meaning of the law. In Cope v. Drydock Co., 119 U.S. 625, salvage was claimed rescuing a floating drydock, which had been in collision with a steamship and was on the point of A ship or vessel, used for navigation and commerce, though lying at a wharf, and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service. ***** If we search through all the books, from the Rules of OlÉron to the present time, we shall find that salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to, or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued. ***** There has been some conflict of decision with respect to claims for salvage service in rescuing goods lost at sea and found floating on the surface or cast upon the shore. When they have belonged to a ship or vessel as part of its furniture or cargo they clearly come under the head of wreck, flotsam, jetsam, ligan, or derelict, and salvage may be claimed upon them. But when they have no connection with a ship or vessel some authorities are against the claim, and others are in favor of it. It was held by the Supreme Court of the United States (The Jefferson, 215 U.S. 130) that where a vessel, laid up in drydock in a shipyard for repairs, was saved from destruction by a fire, which was raging in the shipyard, by tug boats in the stream which played streams of water from the stream upon the endangered vessel, it was a case of salvage. The Court after remarking that a maritime lien for repairs existed against a vessel in drydock, said: There is no distinction between the continued control of admiralty over a vessel when she is in a drydock for the purpose of being repaired, and the subjection of the vessel when in a drydock for repairs to the jurisdiction of a court of admiralty for the purpose of passing upon claims for salvage services, by which it is asserted the vessel, while in the dock, was saved from destruction. 3. Salvor's Lien.—Whoever performs a salvage service acquires a maritime lien of the highest rank upon the property saved for this compensation. This lien is quite independent of possession and will be enforced by a court of admiralty by a proceeding 4. Amount of Reward.—The amount of salvage is usually regulated by the value of the property saved and the value of that engaged in the operation; the degree of risk or peril and the time and expense of the salvors. The expenses of volunteer salvors cannot be recovered as such, though the court may take them into consideration in fixing the amount of the award.[24] Success is essential. There can be no salvage award for the most meritorious efforts if unsuccessful. It is the policy of the admiralty to stimulate efforts for the rescue of property in distress by liberal rewards and also to discourage exorbitant demands and inequitable behavior by correspondingly reducing them. In the case of the Sandringham, 10 Fed. 556, the court listed the factors involved in determining the amount to be awarded as salvage as follows: (1) The degree of danger from which the lives or property are rescued. (2) The value of the property saved. (3) The risk incurred by the salvors. (4) The value of the property employed by the salvors in the wrecking enterprise, and the danger to which it was exposed. (5) The skill shown in rendering the service. (6) The time and labor occupied. (7) The degree of success achieved, and the proportions of value lost and saved. Work of this nature is often performed by contract, by vessels and corporations equipped and organized for the purpose. This fact does not militate against their claims as salvors in proper cases but the courts will not hesitate to modify the contract if they consider it unjust. The case of the Leamington, 86 Fed. 675, As a general thing salvage is not allowed in an amount exceeding 50 per cent of the value of the thing salved, although there are cases where as high as 75 per cent has been allowed. There was an old rule, "50 per cent for a derelict." This rule has been departed from in many cases. The amount to be awarded lies largely in the sound discretion of the trial court which takes into consideration all of the elements of labor, risk, value, time, expense, and any other features that may enter into the case. It is practically impossible to lay down rules for determining the amount to be awarded. The books, however, say that the award should not be so great that the salvage service becomes of no use to the owner of the thing salved. For example if the charges and expenses of the owner come to 50 per cent of the value of the thing salved, an award of 50 per cent will not be made to the salvors, no matter how perilous, arduous and meritorious their work may have been to the owners. Sometimes the award when computed on percentage of the value of the salved property is very small, in some cases only about 4 per cent. These are cases where the service performed was not extensive or highly meritorious and the salvage property was of large value, so that the amount of money received by the salvors was considerable, though the percentage was small. The amount awarded to salvors is not always calculated on the basis of a percentage or proportion of the value salved; in many cases the trial court fixes a flat figure which it thinks the service worth. 5. Who May Be Salvors.—Generally, any one not under obligation to render the service, may rank as a salvor, and, conversely, those obliged to work, cannot claim any reward. Sailors on the ship in peril cannot be salvors until released from their engagement or an abandonment of the ship. A passenger cannot earn salvage by mere labor on a vessel in peril, for this is his duty, yet for extraordinary services he may have a salvage award. Such was the case of the Great Eastern when she had been disabled by a gale and was lying helpless in the trough of the sea. Among the passengers was a civil engineer who ingeniously devised and after twenty-four hours' labor carried out a plan for A pilot acting within the line of his duty, however he may entitle himself to extraordinary pilotage compensation as distinct from ordinary pilotage for ordinary services, cannot be entitled to claim salvage, but a pilot is not disabled from becoming a salvor if he performs salvage services outside the scope of his duties. He stands in the same relation to the property as any other salvor (Hobart et al. v. Drogan, 10 Peters 108). 6. Distinction Between Towage and Salvage.—Cases have frequently arisen in which a vessel that has towed another into a place of safety has claimed salvage for so doing. Whether or not the service rendered amounts to salvage and entitles the towing vessel to a salvage reward, or is mere towage to be recompensed as such, is sometimes difficult to determine. There is no fixed guide. In the J.C. Pfluger, 109 Fed. 93, the Court said: If the vessel towed was by this means aided in escaping from a present or prospective danger, the service will be regarded as one of salvage, and the towage as merely an incident. If, upon the other hand, the vessel thus assisted was not encompassed by any immediate or probable future peril, such service will be treated as one of towage merely, and compensated as such. It was said by Dr. Lushington (The Charlotte, 3 W. Rob. Adm. 68) that, in order to constitute a salvage service, it is "not necessary that the distress should be actual or immediate, or the danger imminent and absolute; it is sufficient if, at the time the assistance is rendered, the ship has encountered any damage or misfortune which might possibly expose her to destruction if the service were not rendered." In McConochie v. Kerr (D.C. 9 Fed. 50), Judge Brown, in pointing out the distinction between a salvage and towage service, said: "A salvage service is a service which is voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger, either present or to be reasonably apprehended. A towage service is one which is rendered for the mere purpose of expediting her voyage, without reference to any circumstances of danger." In the case of the Emily B. Souder, 15 Blatch. 185, Fed. Cas. No. 4,458, Chief Justice Waite stated the law upon this point as follows: "It is well settled that, if there is not actual or probable danger, and the employment is simply for the purpose of expediting the voyage, such service is towage and not salvage." In the Reward, 1 W. Rob. 174, a distinguished English judge laid it down that, Mere towage service is confined to vessels that have received no injury or damage; and mere towage reward is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be in without having encountered any damage or accident. 7. Distribution of Salvage Award.—The rule of the admiralty is that all who materially contribute to the rescue are entitled to share in the award. Thus the master and crew of the salving vessel are entitled to participate with the owner, according to their individual exertions and success. The owner should not appropriate the whole unless the crew were especially employed for the work. The court will frequently divide the amount between the owner and the crew and apportion the share of the latter in proportion to their wages. The principal element in determining the owner's share is the value of the ship and the risk to which it was exposed. Under special circumstances the cargo-owner may also participate. Where the salving vessel is a steamer the owners' share of the salvage is larger and that of the crew proportionately smaller than if she were a sailing vessel or other craft because of the superior efficiency of a steamer in salvage work. Credit and compensation for the superior character of the salving vessel must go to her owners. In Transportation Co. v. Pearsall, 90 Fed. 435, there is a discussion of salvage distribution. In that case three tugs, all belonging to the same owner, had salved a steamer which had gone ashore. The owner of the tugs affected a settlement with the owners of the steamer and received $13,000 in full of all demands. A libel in personam against the master and owner of the tugs was brought by the engineer and fireman of the third, each claiming a share of the $13,000. The court decided that the owner of the tugs was entitled to two-thirds of the salvage award, and ordered the remaining one-third to be distributed among the An examination of the cases will show that there is no fixed rule with regard to the proportion in the salvage award allotted to the owners of the salving vessel. Most frequently salvage services are rendered upon a voyage, in the absence of the owners, and when the salving vessel is under the charge of, and is controlled by, the master and crew. As salvage is awarded for the encouragement of promptness, energy, efficiency, and heroic endeavor in saving life and property in peril, the claims of the master and crew who exhibited these qualities must meet the most favorable consideration. At the same time an allowance is made for the owners whose property has been imperiled. But when the owners direct the service, or when the peril encountered is chiefly that of the salving vessel, with no proportionate peril to the crew, an award to the owners is more liberal. It was also said that the making of distribution in proportion to the wages is a "just and uniform rule in all ordinary cases." Where salvage is performed by successive sets of salvors,—for instance, if one set of salvors gets a ship off a reef, and a second set takes her into port—the award is apportioned between the two sets, special consideration being shown to the first set of salvors because they made the work of the second possible. The vessel, cargo, and freight money saved are to contribute to the payment of the salvage award according to their relative values at the port of rescue. As between the ship and cargo, each is liable for its own proportion alone. The salvor cannot recover the entire salvage from either, but only the proportion for which respondent is liable. As was said by Justice Story in Stratton v. Jarvis, 8 Peters 4: It is true that the salvage service was in one sense entire; but it certainly cannot be deemed entire for the purpose of founding a right against all the claimants jointly, so as to make them all jointly Where a ship is saved and unable to continue her voyage and carry out her contracts of affreightment, the freight is one of the things of value saved, but in determining the value of the freight saved for the purpose of assessing a salvage award against it, "the freight to be considered is only such proportion of the freight earned by the entire voyage as the distance at which the salvage service was rendered from the port of departure bears to the whole voyage." The Sandringham, 10 Fed. 556. 9. Statutory Regulations.—By the Act of August 1, 1912, (7 U.S. Comp St. §§7990-7994) it is provided that the right to remuneration for salvage services shall not be affected by the fact that the same person owns both vessels; that the master must render assistance to every person found at sea who is in danger of being lost, so far as he can do so without serious danger to his own vessel, under penalty of not exceeding one thousand dollars or imprisonment not exceeding two years, or both; that salvors of human life are entitled to share in the award; that salvage suits must be brought within two years; and that nothing in the Act shall apply to ships of war or Government ships on public duty. 10. Instances of Salvage Services.—Where a fishing schooner on the Atlantic picked up a floating body on which was a wallet containing a considerable sum of money and promptly delivered the treasure to the court, they were awarded one-half the amount, to be apportioned one-third to the owners of the fishing vessel, one-third to the master and one-third to the crew; the master's share was made somewhat larger because he had resisted the proposal of some of the crew to merely divide the coin and say nothing. The balance was turned over to the public administrator of Massachusetts to hold for the benefit of the unknown heirs, and, if they failed to appear, for further disposition according to law (Gardner v. Gold coins, 111 Fed. 552). The Egyptian obelisk, now in London and known as "Cleopatra's Needle," became the subject of salvage services in the Bay of Biscay, during its voyage from Alexandria and the award was two thousand In cases of salvage, the party founds himself upon a meritorious service, and upon an implied understanding that he brings before the court, for its final award, all the property saved, with entire good faith, and he asks a compensation for the restitution of it uninjured and unembezzled by him. The merit is not in saving the property alone, but it is in saving and restoring it to the owners. However meritorious the act of saving may have been, if the property is subsequently 11. Distinction Between General and Particular Average.—The former is a partial loss, voluntarily incurred for common safety, and recompensed by all benefited thereby; the latter is a partial loss involuntarily caused, which must be borne by the party on whom it falls. One of the most approved definitions of general average is,—"All loss which arises in consequence of extraordinary sacrifices made, or expenses, incurred, for the preservation of the ship and cargo, comes within general average, and must be borne proportionately by all who are interested." In the case of Barnard v. Adams, 10 How. (U.S.) 270, the ingredients of general salvage were thus stated: In order to constitute a case for general average, three things must concur: 1st. A common danger; a danger in which the ship, cargo and crew all participate; a danger imminent and apparently "inevitable," except by voluntarily incurring the loss of a portion of the whole to save the remainder. 2nd. There must be a voluntary jettison, jactus, or casting away, of some portion of the joint concern for the purpose of avoiding this imminent peril, periculi imminentis evitandi causa, or, in other words, a transfer of the peril from the whole to a particular portion of the whole. 3rd. This attempt to avoid the imminent common peril must be successful. 12. Essential Elements.—The rule expresses the plainest principles of common justice but is confined to maritime law and within somewhat precise limitations. The sacrifice for which contribution is sought must be directed by the master of the ship or by his authority;[26] it must be voluntary and for the safety of the entire venture;[27] it must be necessary and successful;[28] and neither 13. Instances of General Average.—The classic example[30] is throwing overboard (or, as it was called, jettisoning) a part of the cargo in order to escape a storm. Thus if there is a ship worth $20,000, freight list, $10,000, and cargo $70,000, of which X owns $30,000, Y $20,000, and Z $20,000, and $10,000 of X's goods were jettisoned, each interest, including X, will bear 10 per cent of the sacrifice; the ship pays X $2,000; the freight list pays him $1,000; and Y and Z pay him $2,000 each; he receives $7,000 and stands $3,000 and so the sacrifice is equally borne by all. Cargo may be burnt as fuel, or lost by a sale or pledge to Ordinarily a jettison of cargo carried on deck does not give rise to general average, although deck cargo is not exempt from contributing its share of the average for other cargo jettisoned for its safety. But deck cargo will be entitled to participate in general average where the goods are of such character as it is customary in the trade to carry on deck; also where the other cargo-owners have expressly consented that it be carried on deck; also usually in coasting and river voyages. The cases excluding deck cargo from average have generally arisen out of sailing vessels and it may be that the rule should be confined to sailing vessels. 14. The Adjustment.—This ascertains the amount of the claim and the respective shares of contribution. It is the duty of the master and shipowner to see that timely steps are taken for this purpose. After a voluntary sacrifice of part of the adventure, and a consequent escape of the rest from imminent peril, the owner of the ship, or in his absence, the master as his agent, has the duty of having an adjustment made of the general average, and has a maritime lien on the interests saved, and remaining in his possession, for the amount due in contribution to the owner of the ship; and the owner of goods sacrificed has a corresponding lien on what is saved, for the amount due him (Ralli v. Troop, 157 U.S. 386). The work is usually done by an adjuster and often requires a high degree of professional skill. He determines what losses are to be adjusted, what goods contribute, how the values of the receiving and contributory interest are estimated, and when and where the adjustment should be made. He must necessarily bring to this work a special acquaintance with maritime law and the current decisions of the courts on the subject as well as a practical acquaintance with the values involved and the methods of business which they represent. He is, however, merely an expert [24] Teutonia v. Erlanger, 248 U.S. 521. [25] See §10, this title, infra. [26] The reason is that the master "derives his authority from the implied consent of all concerned in the common adventure" (The Hornet, 17 How. 100). "The character of agent respecting the cargo is thrown upon the master by the policy of the law, acting on the necessity of the circumstances in which he is placed" (The Gratitudine, 3 C. Rob. Adm. 240). [27] "Where the sacrifice, while for the general benefit of the whole adventure, was also for the particular benefit of the cargo, it was not a subject of general average" (The Mary, 1 Sprague 19). [28] Expenses voluntarily and successfully incurred, or the necessary consequences of resolution voluntarily and successfully taken, by a person in charge of a sea adventure, for the safety of life, ship and cargo, under the pressure of a danger of total loss or destruction imminent and common to them, give, the ship being saved, a claim to general average contribution (Abbott on Shipping, 537, note). [29] Thus where a tug abandoned her tow in order to save the tug; the owners of the tow were not entitled to general average contribution because it was not a part of the ship or cargo. [30] Probably the earliest recorded case is that mentioned in Jonah 1, where cargo was jettisoned to lighten a ship in peril on a voyage from Joppa to Tarshish. The elements of general average were present, though it does not appear that an adjustment was made. |
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