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KITTELSAA v. UNITED STATES

February 26, 1948

KITTELSAA et al.
v.
UNITED STATES. THE MONTAUK POINT



The opinion of the court was delivered by: BYERS

This is a salvage cause in which the officers and crew of the Motor Vessel Montauk Point (seagoing tug) seek an award for salvaging the S.S. Abraham Baldwin, a steel screw steamship owned by the United States, of 7,176 gross and 4,380 net tonnage, 422.8 feet by 57 feet, on May 19, 20, and 21, 1946.

The services are admitted in general, and the case for the Government is, first that they were rendered by the libellants while the latter were attached to the government-owned Montauk Point which was being operated by Moran Towing Company, and were involuntary in that they were such as under their Articles the libellants were required to render to another government-owned ship; and second, if the foregoing is not efficacious to defeat the claims, then the award must be very modest because the operation was merely that of towage. In other words, the Court is required to minimize what was accomplished by way of safely bringing into port a steamship which had been abandoned at sea, having an agreed value, for present purposes, of $ 556,766.00.

As to the first argument, it is to be understood that the claim is not advanced by Moran. It is therefore unnecessary to decide whether that company was required to send the Montauk Point to the assistance of the Baldwin under the terms of its general agency contract, Article 10 of which clearly contemplates that salvage claims may arise for services rendered to vessels, both those owned or controlled by the United States, and those which are not.

 Moreover, Moran did not send the Montauk Point to the Baldwin.

 There is authority for the view that the common ownership of these vessels is not of itself a reason for denying to salvors a fair reward for their services: The Olockson, 5 Cir., 281 F. 690, 694, in which two government vessels were involved. It also declares that the employment of a vessel for a fixed compensation (the Montauk Point) 'does not prevent her crew from being awarded salvage for meritorious services not contemplated by the engagement. The existence of the contract is but an element to be considered in fixing the amount to be awarded for the unexpected service. The Excelsior, 123 U.S. 40, 8 S. Ct. 33, 31 L. Ed. 75 * * * .'

 See also Jacobson et al. v. Panama R. Co., 2 Cir., 266 F. 344, at page 346.

 This question of law being necessarily resolved against the respondent, it becomes necessary to consider the nature and extent of the salvage services which were performed, in order to essay a fair valuation thereof.

 It may be said at once that the difference between a mere towage and salvage has been pointed out by Judge Addison Brown in this language: '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.' McConnochie et al. v. Kerr et al., D.C., 9 F. 50, 53.

 Since the Baldwin was bound to Philadelphia from New York, it cannot be argued with even a trace of plausibility, that bringing her back to her port of departure was a service rendered to expedite her southbound voyage in any proximate sense.

 These questions being thus disposed of, and to avoid repetition, the recital of the pertinent facts as to the salvage service will be set forth in the following:

 Findings

 (1) The S.S. Abraham Baldwin, light, was bound from New York to Philadelphia on May 19, 1946, and at about 12:27 A.M. (N.Y. time) was in collision with the S.S. Santa Olivia off the coast of New Jersey, about 28 miles south of Ambrose Lightship, and perhaps 6 or 7 miles easterly from Beach Island which forms the seaward barrier of Barnegat Bay, about opposite Sea Side Heights.

 (2) The damage suffered by the Baldwin was a hole stove in her starboard side in the way of the number 2 hold, at the water-line, extending above and below, which was 6 feet in its fore and aft dimension. That hole admitted sea water into holds 2 and 1, which filled to sea level in a short space of time; the ship soon developed a list of between 30 degrees and 35 degrees.

 (3) At about 12:40 A.M. the Master ordered all hands to abandon the ship and take to the life-boats because he considered the vessel to be in a very dangerous condition. That order was executed and the ship was abandoned by her Master and crew, shortly after 1:00 A.M.

 (4) The life-boats stood by at a distance of about 100 yards to see if the Baldwin was going to turn over, but gradually the boats drifted away in a westerly direction and finally sight of the Baldwin was lost.

 (5) The Santa Olivia stood by, and was boarded by the Master and crew of the Baldwin about one hour after the latter had been abandoned.

 (6) A condition of intermittent fog prevailed so that the Santa Olivia's searchlight was not able to keep the Bladwin in sight continuously between the time of collision and daylight, for she was lost to view at least twice.

 (7) At the time of the collision and until about 11:00 A.M., the sea was smooth, with a light wind out of the northeast (Force 2 to 3), and visibility varied according ...


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