claims as to all matters named in the preceding section, with the provision that the district courts have jurisdiction when the amount of the claim does not exceed $1,000. And the circuit courts have jurisdiction when the amount of the claim exceeds $1,000, and does not exceed $10,000.

The first question is, is it a claim for salvage upon a contract, express or implied, or is it a claim for damages, liquidated or unliquidated, in a case not sounding in tort, in respect of which claim the party would be entitled to redress against the United States in a court of admiralty, if the United States were suable? If it be either, the court has jurisdiction. Salvage is a reasonable reward for services rendered in saving property in danger of perishing from a maritime misadventure by parties under no obligation of duty, who voluntarily undertake the service. Maude & P. Shipp. 419; Macl. Shipp. 597; The H. M. S. Thetis, 3 Hagg. Adm. 14. It is a reward for service. And the service is rendered in the expectation of the reward. The compensation is supervised and controlled by the court of admiralty, even although there be an agreement as to the amount. The Tornado, 109 U. S. 110, 3 Sup. Ct. 78, 27 L. Ed. 874. But, it having been determined a case of salvage, the right to be compensated is recognized and assumed. It resembles the common-law contract for work and labor done. Only the compensation is allowed upon a liberal scale. Very frequently the compensation for saving property in maritime peril is given only pro opere et labore, as when it is reduced to a towage service, as in The Emily B. Souder, 15 Blatchf. 185, Fed. Cas. No. 4,458, clearly on the implied contract. In other words, the salvor renders the service upon the understanding and expectation that he will be rewarded for it, the amount of the award to be fixed by a court of admiralty, if the salvor and the owner of the property salved cannot agree.

A claim for salvage is secured by a lien, and the lien cannot arise except from a maritime contract or a maritime tort. Salvage, clearly, is not a tort. When the effort to save property exposed to perils of the sea is successfully performed, an obligation at once arises upon the part of the owner of the salved property to compensate the salvor for such service. The compensation is to be measured by the risk encountered and the heroism displayed in the successful enterprise. The Oregon (D. C.) 27 Fed. 872. The courts award such compensation in a liberal spirit, as well to reward the salvor as to encourage others in similar cases. The Alphonso, 1 Curt. 376, Fed. Cas. No. 17, 749. The Sandringham (D. C.) 10 Fed. 556; The Suliote (C. C.) 5 Fed. 99; The Blaireaw, 2 Cranch, 265, 2 L. Ed. 266. Salvage is said to be independent of contract. Kenn. Civ. Salv. p. 3. That is to say, notwithstanding any express contract made between the salvor and the owner of the property salved, the court will always exercise an equitable jurisdiction with respect to such an agreement, and will set it aside if inequitable in its origin. The Waverley, L. R. 3 Adm. & Ecc. 378. "The jurisdiction which the court exercises in salvage cases is of a peculiarly equitable character. The right to salvage may arise out of an actual contract, but it does not necessarily do so. It is a presumption of law arising out of the fact that the

property has been saved; that the owner of the property, who has had the benefit of it, should remunerate those who have conferred the benefit on him, notwithstanding that he has not entered into any express contract on the subject." In re Five Steel Barges, 15 Prob. Div. 142. Whether, therefore, we treat a claim for salvage service as based upon an implied contract for compensation growing out of its successful event, or whether we treat it as among that class of claims "in respect of which the party would be entitled to redress against the United States in a court of admiralty, if the United States were suable," we must conclude that the present case comes within the scope of the act of March 3, 1887. In The Davis, 10 Wall. 18, 19 L. Ed. 877, the question was made whether property of the United States on a salved vessel is liable for salvage. Mr. Justice Miller, speaking for the court, quoting the authorities, declares that there is no reasonable doubt on the subject. "We are quite satisfied," he says, "with the reasons on which the principle rests, and are of the opinion that when property of the government has been salved from destruction by salvors, or by those sacrifices which are compensated by a contribution in general average, justice and sound policy require that it should bear its share of the burden which the unanimous voice of maritime nations imposes on all other property in like condition." There is one exception with regard to the government, and that is that no proceeding in rem can be had in such a case. Briggs v. The Lightboat, 11 Allen, 157. And this on the ground of public policy. All the property of the government is held and used for public purposes. The possession of the government cannot be disturbed, as this might defeat the public purpose. The Davis, supra. In The Viola (C. C.) 52 Fed. 172, the district court of Pennsylvania took jurisdiction of and awarded salvage for a government lightship. The decree was affirmed in the circuit court of appeals of the Third circuit (5 C. C. A. 283, 55 Fed. 829). The question of jurisdiction was not raised. There is a close analogy in cases like this at bar and cases in which the government takes and uses private property for public purposes. These are the use of patents with the consent of the owner and "with the thought of compensation therefor." U. S. v. Palmer, 128 U. S. 262, 9 Sup. Ct. 104, 32 L. Ed. 442; U. S. v. Berdan Firearms Mfg. Co., 156 U. S. 552, 15 Sup. Ct. 420, 39 L. Ed. 530. There an implied contract was construed to exist, and a suit thereon was entertained against the United States.

It might be objected that the suit is in admiralty, and that jurisdiction over cases of salvage is vested only in the district courts of the United States. Housman v. The North Carolina, 15 Pet. 40, 10 L. Ed. 653. But the act of congress gives jurisdiction to the court of claims of cases in which the party would be entitled to redress in a court of admiralty as well as in a court of law or equity. That court has uniformly entertained jurisdiction and awarded compensation in cases of salvage. Gould v. U. S., 1 Ct. Cl. 184; Bryan v. U. S., 6 Ct. Cl. 128, in which this point is decided; McGowan v. U. S., 20 Ct. Cl. 147. The act of congress gives the circuit court, in cases of claims not exceeding $10,000, precisely the same jurisdiction as the court of claims. It is true that the form of proceeding in the case

at bar is the same as a libel in admiralty. But this is merely modal and formal. The essence of the pleading is a petition to be awarded compensation for valuable and highly meritorious services rendered the government in saving its property in maritime peril. The facts are stated in the terse and clear form adopted by admiralty courts for similar cases. We are of the opinion that the circuit court was not in error in permitting the petition to be filed, in requiring the respondent to answer, and in adjudicating the case.

The merits of the case require little discussion. The petitioner is master of the Frank A. Lowe, a steam tug 76.5 feet long, 16.7 feet beam, 7.9 feet deep, gross tonnage 52.67 tons, crew, all told, five men. Her value is about $15,000. She was used in towing vessels in the Elizabeth and James rivers, Chesapeake Bay, and adjacent waters, and on the high seas. The regular station of the United States lightship No. 49 is off Smith's Island, marking the northern entrance of the capes of Virginia. She had two masts, with one sail on each, and a jib. Her crew were seven men in all, including her master. Her value was $50,000. During a heavy gale from the northeast on the 26th of September, 1894, said lightship broke adrift from her moorings, and, after anchoring twice at intervals and losing all her anchors, said lightship was carried before the gale into Chesapeake Bay, and in past Thimble Light, a lighthouse station about three miles a little to the northward of east of Old Point Comfort. She passed Thimble Light in the afternoon of the 27th, and had set two of the three sails she carried, the other, the foresail, having been carried away in the gale, and her spare foresail not having been bent. The sails she had set were a jib and a mainsail, closereefed. The tide was running strong flood, and the wind, though it had slightly moderated, was still blowing a heavy gale from the E. N. E. The sea was described by many witnesses as being the highest ever known in Hampton Roads. The tug Lowe had gone out in the teeth of the gale to seek communication with a schooner, the Jane Burrell, which had broken from her anchorage in Hampton Roads, and had drifted against a steamship. The tug had not been able to get up to the schooner, and could only communicate with her by floating a bottle with a message therein. About 4 o'clock in the afternoon, Capt. Morgan, on the Lowe, sighted lightship No. 49 between Old Point and the bell buoy, a buoy situated a little more than half way between Old Point and the mouth of the Elizabeth river (as shown on the chart herewith filed as evidence in this cause), coming up before the wind and sea with a signal for assistance, consisting of a flag in the rigging. The master of the lightship, upon seeing the tug, had hoisted this signal. The tug immediately went to her assistance in answer to this signal, which master of the tug describes as a signal for a tow, but, owing to the gale of wind and heavy sea prevailing, was unable to approach her in the usual manner from the leeward and pass a hawser, but found it necessary to go the windward side and use a heaving line. Three efforts to cast this heaving line were made before it was caught on board the lightship, the tug, in the meantime, being in the trough of the sea, with the seas breaking over the man casting the line. A hawser from the tug was thus finally passed to

39 C.C.A. 42

the lightship between half past 4 and 5 o'clock on the afternoon of April 27th, and the lightship was then taken in tow and towed by the tug with some difficulty until she had gone up the river a little distance, but afterwards with little trouble, and brought to the buoy wharf at Portsmouth, where she arrived at 7:30. The circuit court, hearing all the testimony, awarded the tug $1,200, as for a salvage service of low order of merit, on the border line of towage service, or, as the judge below expresses it, extraordinary towage. The award is liberal in the extreme. Yet we cannot say that it is in violation of just principles, or a clear and palpable mistake, or a gross overallowance. Under these circumstances, the award will not be disturbed. The Akaba, 4 C. C. A. 281, 54 Fed. 198; Transportation Co. v. Pearsall, 33 C. C. A. 161, 90 Fed. 439; The Excelsior, 123 U. S. 40, 8 Sup. Ct. 33, 31 L. Ed. 75. The decree of the circuit court is affirmed, without costs.

(99 Fed. 575.)

THE KIRKHILL.

(Circuit Court of Appeals, Fourth Circuit. February 6, 1900.)

No. 309.

1. SHIPPING-CHARTER PARTIES-CLEAN BILLS OF LADING.

A British ship was chartered to carry cotton to Germany in November, when storms are likely to be encountered. For a distance amidships, and extending from side to side, was an upper deck house, supporting the officers' bridge, in which erection were gaps forward and aft of the bridge, where the main deck was left open. The covering over the midship part of such deck space had fore and aft passages on each side leading out. which were called "alleyways." At the front end of each alleyway was a door opening out on the open main deck. Bales of cotton were placed as close as possible on the outboard side of such passage, so as to leave a narrow gangway alongside the cotton for the passage of the crew and engineers. The spaces were covered over, but could not be permanently closed in, as the doors in the end have to be opened by the crew in passing in and out. The spaces could not be made water-tight, because they could not be covered by tarpaulin covers, and the doors had to stand the full impact of the seas which might sweep over the deck. Held, that the master of the ship was justified in refusing to give a clean bill of lading for the cotton stored in the alleyways, under the general rule that a clean bill of lading negatives any carriage except under deck.1

2. SAME-CONSTRUCTION OF CHARTER PARTY.

A charter party of a British ship provided that bills of lading were to be signed when presented, without prejudice to the charter party, for any portion of the cargo, and at any rate of freight. It also provided that the whole of the steamer, including cross bunkers, bridge, deck bunkers, alleyways, peaks, lazarettes, space under bridge, deck, etc., consistent with the steamer's seaworthiness, and all covered-over spaces on deck, should be placed at the disposal of the charterers, for their sole use. The English Board of Trade, in its official manual to surveyors, directs that permanent erections, with one or more openings in the sides or ends, not fitted with doors, or other permanently attached means of closing them, shall not be measured or included in the tonnage. The charter party gave the net registered tonnage, and guarantied a certain number of cubic feet “of actual cargo space available for cotton in bales," in consideration whereof

1 As to bills of lading, see note to The Dunbritton, 19 C. C. A. 465.

freight was to be paid at a certain sum per ton, net register, British measurement. Held, that the clause placing “at the disposal of the charterers" certain additional deck spaces did not impose on the master of the ship the duty to sign clean bills of lading for cotton stored in alleyways spaces on deck, which could not be permanently closed because of the crew being compelled to pass through such spaces.

Appeal from the District Court of the United States for the Eastern District of North Carolina.

Thomas Evans, for appellant.

Harrington Putnam, of Cowen, Wing, Putnam & Burlingham (George Rountree, on the brief), for appellee.

Before SIMONTON, Circuit Judge, and PAUL and BRAWLEY, District Judges.

BRAWLEY, District Judge. The British steamship Kirkhill, of 2,347 tons net register, and guarantied to have at least cubic feet of actual cargo space available for cotton in bales, was chartered September 13, 1897, to load a full and complete cargo of cotton from the port of Wilmington, N. C., to Hamburg, Bremen, Amsterdam, or Rotterdam. The ship commenced loading on October 16th, and in progress of loading a dispute arose as to whether the charterers had the right to load cargo in certain alleyways which at that time, as appears from the master's protest, were filled with coal for the voyage. At a later date, and before the loading was completed, the master removed the coal there stowed to the deck, and gave notice to the charterers that he would stow cotton there, but that he would only sign bills of lading for the alleyways cargo at the shippers' risk, as the cotton stowed in the alleyways would be necessarily exposed to the weather during the voyage, and might meet with some damage. To this proposal the charterers objected, and demanded a clean bill of lading for the part of the cargo to be stowed in the alleyways. Upon the refusal of the master to give such clean bills of lading, the ship was cleared for Bremen on November 5, 1897, and this libel was filed, alleging damage caused by the refusal to sign clean bills of lading for the proposed alleyways cargo. The district court held that the libelant had no right to demand a clean bill of lading for this portion of the cargo, and dismissed the libel.

The sole question for decision is whether the charterer was entitled to demand clean bills of lading for cotton which was to be carried in the alleyways spaces on deck. The record does not contain a precise description of the steamship Kirkhill, but the alleyways spaces were described in the argument before us by the proctor for appellee, and the description was accepted as substantially correct, and is about as follows: For a distance amidships, and extending from side to side, is an upper deck house which supports the offi cers' bridge. There are gaps in this deck erection forward and aft of the bridge, where the main deck is left quite open. The covering over the midship part of such deck space is for the protection of the engine room and the quarters for the men, with fore and aft passages on each side leading out. These are the alleyways. At