was finally permitted to take measures for getting the ship afloat. He then arranged to take out the Thornley's starboard anchor. The schooner was brought alongside, the lines of the other boats taken, and the steamer's starboard anchor (4,200 pounds), with 15 fathoms of chain and 90 fathoms of wire, carried out astern of the Thornley, and a line made fast to the steamer's winches. Subsequently the steamer Miami, a vessel of 1,500 tons, plying between Miami, Key West, and Havana, also took a hawser from the Thornley's port quarter, and brought all her power to bear, with the result that the Miami broke the hawser, and then went away. During the afternoon the crew was engaged discharging coal. Capt. Baker and the salvors brought barrels from shore, cut some up into tubs, and at 1 o'clock began discharging the coal, with the salvors' men also below filling the tubs. Later in the day an attempt was again made to heave on the anchor, aided by the engines full speed astern, but without effect. The salvors continued discharging coal throughout the night, working all the hatches except No. 3, which could not be used, as the winch at that hatch was required to heave on the anchor.

In the beginning no arrangement was made for compensation, as the work had been proceeding on the usual salvage basis. On the first day there were more than a hundred men from shore working on the ship. In the afternoon of that first day, Capt. Legg requested Capt. Baker to come into the cabin to have a talk. As to this interview Capt. Baker testifies as follows: "After all my men had gone to work, about one o'clock that same day, after I had come aboard of the ship, the captain said to me, 'I would like for you to go down in my cabin; I want to have a talk with you.' I went down in this cabin, and he told me that he had eighty tons of dynamite in his number four hatch, and he would like for me not to tell my men; that he thought they would not like to work aboard the ship, because they would be scared, and would go away, and would not work; and I told him I would not tell the men. He says then, 'I would like to enter into an agreement with you to say how much you will take my ship off for.' I then told him that I did not wish to enter into an agreement on the reef; that I had entered into several agreements, and found they were not worth the paper they were written on. If he entered into an agreement, he must state that he entered into it freely and voluntarily, and that I was not taking any advantage of him. He then asked me what I would take it off for. I told him that I would not make any offer, but what would he be willing to give. He told me, under the circumstances, with the dynamite on board, he thought it was a great risk, and said that twenty thousand dollars would be enough, and be reasonable for all interested. Then he wrote the contract, agreement,-and then called his first and second officers down in the cabin, and they witnessed, and I did also. * Q. At what time, captain,

was it that the contract was made and signed? A. It was somewhere about one o'clock p. m. Q. How long had you been working then? A. Not more than a half hour. Q. Now, previous to the making of this contract, did you have any conversation with the master in regard to the value of your services being determined by the court? A. We did, sir; and I offered to do it, and would rather have it settled by the court: and he asked me what court we had here, and I told him, 'United States admiralty court.' Q. What did he say as to that? A. He said he would rather enter into an agreement, and know what it would cost to relieve the ship; that he and his two brothers owned a large portion of the ship."

On the subject the master testifies as follows: "Q. Is it the fact that Baker offered to do this on a salvage basis, and take what the court gave him? A. I understood him to say that when he came on board at first. Q. But you preferred to do it by contract? A. After some trouble, some two or three hours considering the matter, I concluded it was better for the interests of all concerned that I should have an agreement with him. Q. And this agreement that was drawn up was in whose handwriting? A. My own. Q. Is this copy that is annexed to the libel (Exhibit A),-is this the copy of it? Just look at it. A. Yes; I consider that is. I haven't the original before me, but I consider that is a copy. Q. Did you consult with Mr. Welling, the first officer, and Mr. Landers, the second officer, at the time of the making of this agreement? A. No. Q. I see their signatures are on as witnesses. A. Yes; I read the agreement in their presence, and asked them to sign it. Q. As near as you can tell,

what time in the day was it when this agreement was made? A. I should say about four o'clock in the afternoon. Q. That is, you had already been on the reef then? A. For eight hours. Q. Had any work proceeded before the paper was signed? A. Yes. Q. You say that Captain Baker didn't really care for a written agreement of this kind? A. I don't know that he cared. What the man said to me was this: If I preferred to sign an agreement- It was words to the effect that he didn't consider it worth the paper it was written on. Q. Did you have any discussion before you reached the sum of $20,000? A. No; I asked him to sign the agreement, and he said this. Q. Who suggested the $20,000? A. He, himself. Q. Then you were not obliged to make any such agreement, and it was rather your idea to have the agreement? A. It was my own idea."

The salvage contract entered into reads as follows:

"S. S. Thornley.

"It is this day mutually agreed between John Legg, master of the above steamer, and Capt. Enoch Baker, master wrecker, that the said Enoch Baker agrees to float the ship off Florida reef, and deliver safely in the port of Key West, for the sum of $20,000 (twenty thousand dollars).

floated off the reef, no payment to be made.

"Dec. 1, A. D. 1898.

"[Sd.]
"[Sd.]

"Witnesses:

"S. Waldo Welling, 1st Officer.

"Frank Ellsworth Landers, 2d Officer."

If the ship is not

John Legg, Master.
Enoch W. Baker.

At 7:20 p. m. the hawser was again hove taut, and engines went full speed astern, which was continued till 10:15, when the log shows the engines were stopped, "ship not moving." From 11 p. m. till morning the discharge of cargo was continued. At 7 a. m. Friday the steamer's stream anchor (2,000 or 2,500 pounds) was taken out by the wreckers' boat Winfield, with 180 fathoms of 5-inch manila rope from the port quarter, and another ineffectual attempt was made to heave the ship off. Between 9 and 10 a. m. the tugboat Geo. W. Childs came and pulled on the steamer. The log records: "Ship swinging slightly on center. Noon. Wind east. Sea raising. Ship rolling and grinding. Found 1 & 2 tanks leaking; also starboard 1 & 2 bilge and port No. 2. Wind freshening."

The

Capt. Legg testified: "Q. What was the effect during Friday on the vessel? A. She was striking heavily on the reef,-rolling heavily and grinding. more solid the ship was on the reef, she didn't roll so much. Q. Did it have any effect upon your vessel in the way of showing leaks? A. Yes; she began to leak when she began to knock about. Q. When was that? A. During the early hours of Friday morning. Q. Where was that leak indicated? A. She leaked slightly in the bilge,-in the No. 2 hold and the bilges,-and she leaked considerably in the No. 1 and 2 tanks; No. 2 particularly. Q. How much water was there? A. I think during the night something like 34 inches of water accumulated in No. 2. Q. Were there any other indications of strain on the vessel besides this leak? A. Yes; I knew the ship was straining. I could see the effect of it on the cabin. The doors wouldn't close, and the mantelpiece in the cabin was smashed, and the marble hearth was broken. Q. The mantel was of marble? A. Yes, sir; and the hearth marble tiles. Q. They cracked? A. Yes."

Naturally, this state of things caused great alarm and solicitude regarding the dynamite, which was stowed aft between the cabin. Capt. Baker testifies: "On Friday morning, about two o'clock, the ship commenced to pound very heavily on the reef. I had gone down in the cabin to rest myself a little while, and I told the captain to call if he wanted me, and I would come immediately, and left a foreman to superintend the work. I hadn't been there more than twenty minutes when the captain came and spoke to me, and asked me if I was not afraid to lie down there; that the ship was pounding so heavily that at any time one of those cartridges might explode, and explode the entire amount, and not only the vessel, but all the vessels around it, and possibly everybody would be killed, and the houses of Key Largo, too; that

it would be as bad as if the entire amount should explode. Q. What was done then? A. I told him, then, to let me take the cargo. I says, 'I haven't a vessel that is large enough to take the whole of the cargo, but I can take the small schooners alongside, and put it on their decks, and take it out in the Gulf, and throw it overboard. He said, 'Have you ever handled dynamite?' and I said, 'No.' He said, 'If you take that dynamite on your vessels, and go out in the Gulf into fifty fathoms of water,' and he says the first case that strikes the bottom is likely to make a concussion that will explode all on the deck. He says then, says to me, 'Can't you send to Key West, and get a vessel large enough to take off enough to relieve the vessel the next tide?' I told him I thought I would relieve the ship the next tide."

The master of the tug Geo. W. Childs was finally induced to proceed to Key West for this additional vessel to take off the dynamite. On this occasion Capt. Legg had a conversation with Capt. Ocasta, a pilot not interested. Capt. Ocasta testifies as follows: "That very day, about the time I was talking to him, the tide then was about to slack, and the ship was pounding pretty heavily aft, and every time she would strike he would jar himself, and I says, 'What is the matter, captain?' and he says, 'Don't talk about what is the matter; I am scared.' 'We are standing here now,' he says, 'and we don't know what minute we may go up.' I said, 'You never heard of sailors going up; they always go down.' And he stated right there that there was eighty or eighty-four tons of dynamite in the No. 4 hatch."

The log notes that there was "quite a roll on," and that they continued discharge of cargo. At 8 p. m. another attempt was made to heave the vessel off, and at 12:15, shortly after midnight, they desisted, as the vessel did not move. Saturday morning they were again engaged casting over cargo, and found that tank No. 2 had leaked so as to fill 34 inches. At 9:45 again the attempt was made to heave the ship off and work the engines astern. The Thornley moved slightly, and then quickly, off the reef. Though the engines were stopped as soon as the motion astern was felt, they were unable to pick up the starboard anchor and chain, which had to be let go to allow the ship to go back far enough to float in deep water. Some 600 tons of coal had been taken out to lighten the ship. Except the occasional use of the ship's donkey engines, all this shoveling, hoisting, and discharging of coal was done by the wreckers. About 40 vessels were engaged, and after the first day some 204 men were employed in the day and night gangs into which this wreckage force was divided.

The Thornley then proceeded to Key West. Her log entries during the stranding were written up, and read over to the libelant, who, at the master's request, signed his name at the foot of each page, in attestation of the details recorded. On Sunday morning libelant arrived with the Thornley at Key West, where she was safely anchored, and the salvage service then concluded. All that day Sunday it blew a gale, so severe that even in the port of Key West the master had considerable difficulty in getting ashore from his steamer. On December 7th a libel in admiralty was filed in the district court for the Southern district of Florida by Capt. Baker and his associate wreckers. It averred the facts of the stranding; the wrecking operations, with the result; and alleged that the master requested an agreement, which was set forth, a copy being appended to the libel; which concluded with the prayer "that this honorable court will be pleased to decree to the libelants the sum of $20,000 as a reasonable and proper salvage in proportion to the value of said steamship and cargo." The answer denied that libelants had jettisoned as much as 600 tons of coal; that the reason the master sent the tug Geo. W. Childs to Key West "was for the reason that the salvors would not work at discharging the dynamite, which comprised a part of his cargo, and, further, for the reason that salvors had no vessel of sufficient tonnage to take the same." Regarding the contract, the answer continued: "Twelfth. For further answer to this libel, respondent says that it is true that he entered into a contract with salvors to relieve his vessel for the sum of twenty thousand dollars ($20,000.00), but that said contract was made by him while upon the reef, and without his having an opportunity to communicate with his owners or agents, and that the same was made under duress, and is out of all proportion to the value of the ship and cargo, the skill displayed, and the risk and danger of salvors. Thirteenth.

For further answer to said libel, this respondent says that the services of the salvors were never especially meritorious nor skillful; that the service which they performed was an ordinary one, and consisted mainly of jettisoning cargo and running an anchor, and did not require the exercise of any great skill, nor were salvors or their vessel exposed at any time to any great risk." It was stipulated that the Thornley was worth $80,000, and her cargo $25,000, making in all $105,000.

The district judge (Honorable James W. Locke) held (1) that there was no inconsistency in pleading the contract and averring the salvage services; (2) that the contract was entered into fairly, without fraud, concealment, or pressure, and the amount was neither exorbitant nor extortionate. A decree was rendered for libelant for the sum contracted for, less $500, the value of the anchor and chain lost by the salvors, making a net recovery of $19,500. The claimant of the Thornley has appealed, and assigned as error the action of the court in treating the suit as on contract, and in sustaining the contract, and in decreeing the sum of $19,500 for the salvors' services.

Wilhelmus Mynderse, for appellant.
Harrington Putnam, for appellee.

Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges.

After stating the facts as above, the opinion of the court was delivered by PARDEE, Circuit Judge.

Pickles Reef is a well-known dangerous reef, being exposed to the full force of the sea from northeast and around to the south. The Oxford (D. C.) 66 Fed. 584, 590; Baker v. The Slobodna (D. C.) 35 Fed. 537. When the Thornley was aground on that reef, she was in a position of imminent peril. While the weather was clear she pounded, and from that and her violent grounding she was decidedly strained and set aleak. Such being her condition in ordinary weather, nothing but destruction was before her if she had remained aground to encounter the stormy weather that immediately followed her floating. Her release from this peril was entirely due to the services rendered by the libelant and his colleagues, which were onerous, faithful, continuous, and successful. Considering the consignment of explosives on board, supposed by the master, in accordance with popular opinion, to be very dangerous, there was an element of risk and danger, if not of gallantry and heroism, attendant upon the services. It is true there was no saving of life, but unquestionably, in the opinion. of the master, there was great risking of life.

It is true that on the hearing evidence was brought forward tending to show that certain grades of dynamite, properly packed, are not dangerous, under ordinary circumstances, nor liable to be exploded by concussion; but the evidence is not sufficient for us to be able to say that dynamite of a high grade, like that on board the Thornley, is not dangerous, nor liable to be exploded by concussion, nor through decomposition, from which spontaneous explosion is said to sometimes follow. The evidence shows that these explosives require for safety great precaution in preparation, storing, handling, and shipping. They are not allowed to be carried on passenger vessels, nor on all railroads, nor on any railroad except under special regulations. Under these circumstances, the salvage services rendered to the Thornley cannot be classed as a low order of salvage, to be sufficiently compensated on the basis of work and labor mer

itoriously rendered; and, considering the services and attendant circumstances, in connection with the stipulated value of the property salved, we are not able to say that the amount of $19,500, salvage actually allowed by the district judge, was in violation of any correct principle applicable to salvage services, nor that it was exorbitant to any such extent as of itself to show reversible error.

The

We have just decided, in The Trefusis, 98 Fed. 314, that where the salvage compensation is based upon correct principles, and cannot be said to be exorbitant, this court will not interfere, although the amount actually awarded may be in excess of the sum the judges themselves would have allowed. The contract for salvage was entered into after the salvage services had commenced. It was entered into at the express instance and request of the master of the Thornley. There was no intimidation, oppression, concealment, misrepresentation, nor other misconduct on the part of the salvors. master, who suggested the contract, was fully advised of the situation. Aside from his position of master, he was personally interested as an owner in the ship. Unless his mind was decidedly unsettled, through fear of danger on account of the explosives on board, he was in full possession of his faculties, able and competent to represent owners. By the contract, the salvors released any lien they might have on the cargo salved; limited their demands to $20,000 in case of success, no matter what their time and expenses for service might be; and, in case of failure to successfully float the ship, they abandoned all claim, even to cargo saved by them.

"We do not say that, to impugn a salvage contract, such duress must be shown as would require a court of law to set aside an ordinary contract; but, where no such circumstances exist as amount to a moral compulsion, the contract should not be held bad simply because the price agreed to be paid turned out to be much greater than the services were actually worth. The presumptions are in favor of the validity of the contract (The Helen and George, Swab. 368; The Medina, 2 Prob. Div. 5), although, in passing upon the question of compulsion, the fact that the contract was made at sea, or under circumstances demanding immediate action, is an important consideration. If, when the contract is made, the price agreed to be paid appears to be just and reasonable, in view of the value of the property at stake, the danger from which it is to be rescued, the risk to the salvors and the salving property, the time and labor probably necessary to effect the salvage, and the contingency of losing all in case of failure, this sum ought not to be reduced by an unexpected success in accomplishing the work, unless the compensation for the work actually done be grossly exorbitant." The Elfrida, 172 U. S. 186, 197, 19 Sup. Ct. 146, 43 L. Ed. 413. Taking an excerpt from the same case (page 194, 172 U. S., page 148, 19 Sup. Ct., and page 416, 43 L. Ed.), as follows: "It may be said, in this connection, that the American and English courts are in entire accord in holding that a contract which the master has been corruptly or recklessly induced to sign will be wholly disregarded," the learned proctor for the claimant contends that the reckless proffer of a contract is a better reason for disregarding his engagement than the reckless