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BURKE v. UNITED STATES

March 30, 1951

BURKE et al.
v.
UNITED STATES et al.



The opinion of the court was delivered by: WEINFELD

This is a libel for salvage by the master and nine members of the crew of the Pt. Cabrillo. Eighteen other members of the crew have heretofore settled with respondent. The basic issue is the nature of the salvaging operation and the amount of the award to libelants.

The SS George R. Poole, the salvaged vessel, en route from England to Philadelphia, collided with the tanker SS Silver Peak at about 11:25 P.M. on November 13th, 1945. She sustained a gaping hole in the starboard hull above and below the waterline. Her engine room was flooded and she was rendered disabled and without power or electricity. The collision occurred in the north-south coastal shipping lane of the Atlantic Ocean about 48 miles east of the Five Fathom Light Vessel with the New Jersey coast at its nearest point about the same distance.

The Poole sent out an SOS which was received at 11:35 P.M. on November 13th by the salvor vessel, the tug Pt. Cabrillo, then about 45 miles from the Poole and proceeding from Newport News to New York. The Pt. Cabrillo was within 150 miles of its destination and under normal conditions was due to arrive there at 4:00 P.M. on November 14th. She promptly responded to the distress call and diverted her course, reaching the Poole about 2:30 A.M. on November 14th, having traveled approximately 60 miles, the Poole in the meantime having drifted northeasterly due to a southwesterly wind.

 When the Pt. Cabrillo arrived at the scene it was dark and the Poole was located through searchlight assistance rendered by the Silver Peak which was still nearby. Also present was a Navy tug but she rendered no aid. Passengers on the Poole had been transferred by lifeboat to the Silver Peak for transportation to Philadelphia.

 The Pt. Cabrillo was a new type vessel especially equipped and designed for deep sea towing. She was equipped with a stern guard rail and anchor which protruded so that only a limited area of her hull could be placed alongside the Poole, resulting in difficult and hazardous maneuvering.

 A number of attempts were made to pass heaving lines from one vessel to the other before success was achieved. These activities lasted from 2:30 A.M. to 6:00 A.M. when the port section of a towing bridle was secured. Efforts to fasten the starboard section of the bridle were unrealized. That there was delay in getting a heaving line aboard and securing the one section of the bridle is clear but responsibility is shifted from one crew to the other. The convincing evidence, however, indicates that in the main activity was carried on by the members of the Pt. Carbillo with little or no assistance from the crew of the salvaged vessel.

 When the Pt. Cabrillo first reached the disabled vessel weather conditions were good except for mist and visibility, but grew steadily worse. The weather got so bad that one of the life rafts of the Pt. Cabrillo weighing about a ton and a half was hurled 30 feet crashing on the main deck of the Poole. Due to adverse and uncertain weather conditions it was decided to proceed with just the one leg of the bridle rather than two and the tow finally got under way at 7:37 A.M. on November 14th.

 The Pt. Cabrillo was equipped with a towing machine designed to maintain a constant tension on the tow wire. The engine adjusts the working stress depending on weather and sea conditions and can be operated either automatically or manually. It could not slack wire fast enough to overcome the sudden plunging and surging of the two vessels. The captain claims there were many submerged wrecks in the vicinity not very far beneath the keel of passing ships and so it was impossible to slack out the amount of wire ordinarily used in such towing operations, approximately 2,500 feet, due to the danger of fouling one of the submerged vessels. To avoid these hazards the Pt. Cabrillo was forced to use a short tow line which was operated manually from time to time by the captain and the chief engineer, the other members of the crew being unfamiliar with its operation. The captain went without sleep whereas the chief engineer snatched a few hours here and there.

 Libelants also claim there was danger of being rammed by coastal traffic, the tow having followed the shipping lanes, and a searchlight was trained on the Poole during the nighttime to minimize danger of collision.

 On the return trip rain and squall occurred, the sea becoming increasingly rough and there was much pitching and rolling. During the night of November 14th heavy gales were encountered. The velocity of the wind increased to force 8. It became necessary to change the course about 30 degrees to make up for the leeway, and at times the weather became so bad they could make no headway at all and once even lost ground.

 The tow finally reached the Port of New York, a distance of 113 miles, arriving at Ambrose Lightship at 8:00 A.M. on November 15th and inside New pyork Harbor at noon. Thus the delay to the Pt. Cabrillo was about 20 hours and the total time consumed from the moment she altered her course to render aid to the Poole until she left her at safe anchorage was 1 day and 12 hours.

 Libelants request $ 1,000 to each unlicensed member of the crew with a triple share to the captain and chief engineer and double shares to the two other officers, a total of $ 16,000. As is not unusual, respondent asserts that this demand is grossly excessive; that the nature of the services has been greatly magnified and libelants should be restricted to a total award of $ 1,000 in proportion to their ratings.

 Salvage awards are not intended merely as compensation for work and labor performed. Public policy intends them as rewards in the nature of a bounty to encourage voluntary services by seamen and others to save imperilled lives, ships and their cargoes. The Blackwall, 10 Wall. 1, 19 L. Ed. 870; Petition of Atlantic Gulf & West Indies S.S. Lines, 2 Cir., 49 F.2d 263; Waterman S.S. Corporation v. Dean, 4 Cir., 171 F.2d 408; Joncich v. Xitco, 9 Cir., 172 F.2d 1003. Although liberality is of the essence an award should not be excessive and 'The problem usually is not to award so little as to discourage salvage aid, nor so much as to encourage unnecessary or exaggerated service * * * .' The No. 92, 1 Cir., 252 F. 117, 119; The Neils Neilsen, 2 Cir., 277 F. 164.

 The traditional elements of a salvage award are: '(1) The value of the property in peril and the proportion of the value lost and saved; (2) the degree of peril from which lives and property are rescued; (3) the value of the property employed by the salvor, and the risk of life and property incurred; (4) the skill and dispatch shown in rendering the service together with the foresight and skill exercised in the preparation to render it; (5) the time consumed and the labor performed by the salvor.' The Kia Ora, 4 Cir., 252 F. 507, 508; Waterman S.S. Corporation v. Dean, supra. Thus we see that the ...


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