Supreme Court of United States.
*340 Mr. J. Hubley Ashton, for the appellants.
Mr. T.J. Durant, contra.
*342 Mr. Justice MILLER delivered the opinion of the court.
Some attempt is made to show that the Laura and the Savory were rival vessels in the same trade, and that the result was due to the wish of the owner or the master of the Laura to remove a competitor in business. But of this there is nothing but suspicion. On the contrary, there is strong evidence that the master of the Laura, who controlled her entirely in the matter, though her owner was on board, was governed by a sincere wish to afford all the relief he could to the Savory and her passengers and crew.
It is also argued that the master showed a culpable want of skill and judgment in attempting to carry the Laura across the lake, instead of trying to get her into the mouth of the old or new canal, within a mile or two of where she was abandoned. But though there is some apparent conflict of testimony on this point, we are satisfied that the master of the Laura was justified in assuming that in such a gale as was then blowing, it was more dangerous to attempt to land her in either canal than to tow her across the lake to calmer water, and a safe harbor on the other side.
The only question of any doubt in the case arises on his right to interfere at all to save the vessel. The libellants *343 deny this right on two grounds: 1st, that she was safe where she was; and, 2dly, that the master of the Laura was distinctly informed by the master of the Savory, that he was going ashore to get a tug to relieve her.
1. In regard to the condition of the vessel at the time the Laura took her in tow, we are of opinion that it justified the belief that her condition was one of great peril and that she would sink in a short time if left alone.
The testimony of the master of the Savory, which it is argued shows a state of facts that would not justify this conclusion, is so fully contradicted, and he appears to have been so overcome with fear at the time of leaving the vessel, that but little credit can be given to any of his statements.
2. It is sworn by the master of the Savory that on his way to the railroad landing he told the master of the Laura that he was going ashore to get a tug to bring his boat in. The master of the Laura swears that the master of the Savory did say that he was going to try to get a tug to bring the Savory out, to which he replied that he could not get a tug in the whole basin that would come and bring the boat in, as the weather was too rough.
This conversation evidently had reference to the tugs in the basin at the mouth of the canal, and the efforts of the master to get a tug in New Orleans were not in pursuance of this conversation, for he expressly says that he saw the Laura start with the Savory before he left the shore for New Orleans. This effort was to bring her back from such place as the Laura might have carried her to, and shows that he did not think it probable she could be navigated without such assistance.
In the case of The Esperance the claimants received a letter from the master, who, with the crew, had left the vessel, advising them of the fact, and immediately sent proper persons to take charge of her and her cargo. But before they arrived other salvors had taken the vessel and finally brought her in and libelled her. Sir W. Scott said it was a clear case of derelict; there was first the chance of the party sent *344 by the claimants not finding her; and, secondly, that if found, she would be a complete wreck.[*]
In the case of the brig John Gilpin,[] Judge Betts, in considering a question of derelict somewhat analogous, said, that "she" (the vessel) "was apparently abandoned, and if her crew might have been absent to procure assistance from other vessels and more force, their ability to return to the wreck, or the chance of affording any aid after the lapse of a few hours, must, in the then condition of things, have been most dubious contingencies."
In The Coromandel,[] Dr. Lushington, in speaking of a case very similar to this, remarks: "It may be perfectly true that the master and these fifteen men, when they had got on board the Young Frederick, and were sailing away to Yarmouth, intended, if possible, to employ steamers to go and rescue the vessel, which was at no great distance. But is not that the case every day? A master and crew abandon a vessel for the safety of their lives; he does not contemplate returning to use his own exertions, but the master hardly ever abandons a vessel on the coast without the intention, if he can obtain assistance, to save his vessel. That does not take away from the legal character of derelict." This language applies with a precision remarkable to the case before us. And the casual observation of the master abandoning the vessel in great fear for his own immediate personal safety, that he designed to get a tug to bring his boat in, is of the class of intentions referred to by Dr. Lushington above, and that he made no response to the reply of the captain of the Laura, that he could get no tug to try it in such rough weather, shows the truth of Dr. Lushington's remarks.
We think that the master of the Laura was authorized to conclude that the Savory was in a condition of immediate peril, and abandoned so far as any timely effort to save her was contemplated; that he acted in good faith, and with reasonable judgment and skill, and that, therefore, the libel *345 of appellants was properly dismissed by the Circuit Court. The decree is accordingly
AFFIRMED.
[*] L'Esperance, 1 Dodson, 46
[] Olcott, 78.
[] 1 Swabey, 208.
