wreck bills of exchange, or other evidences of debt or documents of title. It has also been held that admiralty will not allow, in a suit for salvage, charges made by the salvors for repairs; but this, we should think, could not always be true, when these repairs were necessary and properly made.2

The rights of co-shippers are sometimes quite distinct, the goods of each shipper paying the salvage decreed for saving his goods only, if there be any difference in the facts, circumstances, or merits attending the saving of different parcels of the cargo.3 But it would seem that no difference is to be made between the ship and cargo. The value of the one is to be added to the value of the other, and a proportion of this amount is to be given.4

In a well-considered case the rule is stated as follows: "When a ship and cargo accidentally stranded are saved by lightening the ship, by carrying out anchors, or by other common or continuous labor or service, carried on with a view to the saving of both ship and cargo, the salvage expenses are properly to be apportioned upon the ship, freight, and cargo, in proportion to their respective values, as in a case of general average. . . . But where, as in the present case, the ship is lost, and the voyage broken up, no such rule obtains, but each article of the cargo or invoice is to be charged with its own particular expenses of saving. The interests of the parties are sundered by the destruction of the ship, and the maxim sauve qui peut, save who can, applies." 5

SECTION VIII.

OF THE MANNER IN WHICH A CLAIM FOR SALVAGE MAY BE BARRED.

If assistance is rendered to a vessel under circumstances which would generally constitute it a salvage service, it may yet not be

1 The Emblem, Daveis, 61.

The Rainger, 2 Hagg. Adm. 42. This decision seems to have proceeded on the ground that the admiralty had no jurisdiction over a shipwright's bill. See The Samuel, 4 Eng. L. & Eq. 581; Stephens v. Bales of Cotton, Bee,

170.

* The Vesta, 2 Hagg. Adm. 189; Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421.

The Mulhouse, U. S. D. C. Florida, Marvin, J., 22 Law Rep. 276.

such; as where the service is rendered under a custom to give assistance gratuitously in similar instances, or where the aid is given under a special contract. And even after the right of action has accrued, it may be lost by misconduct or by a lapse of time. We shall consider these in their order.

If two vessels sail as consorts, and under an agreement to assist each other, neither can claim salvage for assistance rendered to the other. It has been questioned, whether if two ships be owned by one owner, or by the same parties, and one of them relieves the other in distress, the relieving ship can claim salvage.2

It has also been questioned whether a custom to render assistance might not be such and so proved as to bar a claim for salvage. We should say that even where vessels sailing together are not consorts, nor owned by the same party, it is possible that there may be a usage of mutual help, which would defeat a claim of salvage, and under such circumstances, such a claim would be materially diminished, even if no usage were proved. Thus it is said that if a steamer be stranded on a sand-bank in the Mississippi, and another steamer draws her off, usage prohibits any claim for salvage.5

But a custom of one port that vessels shall assist each other gratuitously, is not binding on vessels of other ports rendering assistance to vessels of the port where the custom exists.

And

we should doubt whether a custom that steamers should aid sail

1 The Zephyr, 2 Hagg. Adm. 43.

The Margaret, 2 Hagg. Adm. 48, note.

The Harriot, 1 W. Rob. 439. This was a case of salvage in the South Sea, rendered by one whaling vessel to another. The service was not denied, but the respondents contended that a custom existed in the South Sea Fishery for vessels to render assistance to each other gratuitously. Such a custom being proved to exist, Dr. Lushington held that it was legal. But such a usage does not apply to the case of a whaling vessel being frozen up in Davis's Straits, and another whaling vessel sailing from England for the purpose of rescuing her. But in such a case, government bounty having been granted for the rescue of the vessel, the claim of the salvors for demurrage and the payment of stores was not allowed by the court. The Swan, 1 W. Rob. 68.

The Ganges, 1 Notes of Cases, 87; The Trelawney, 4 Rob. Adm. 223, 227; The Waterloo, 2 Dods. 433, 443. But see Williamson v. The Brig Alphonso, 1 Curtis, C. C. 376.

$ Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421, 429.

ing vessels, and vice versa, would be good, there being no mutuality between the two classes of vessels.1

If at the time of the service the salvors make a bargain with the owners of the property in peril, or their servants, as to the amount of salvage, this is enforced by the court only so far as it seems equitable and conformable to the merits of the case. And it is wholly disregarded if it be deemed unconscionable and oppressive to the owners of the property saved, or entered into under circumstances which amount to compulsion.2

1 See The Africa, 1 Spinks, 299. In The Coringa, U. S. D. C. Mass., Lowell, J., a vessel lost her rudder-head off Cape Cod, and came to anchor in an exposed place. She was finally towed to Boston by the Charles Pearson, a powerful steamer owned in whole or in part by insurance companies of Boston, and which was known as the underwriters' boat. It appeared in evidence that the officers and crew of the Pearson were hired by the month, and their contract was understood to require them to perform duty in saving vessels without further or other compensation. It also appeared that the steamer usually made a special contract in such a case for payment by the day, or hour, or the job; and that when this was not done, her services were usually settled for upon similar principles. No special contract was made by the master of the Coringa, but he testified that he knew he was dealing with the underwriters' boat, and he inferred that salvage would not be demanded. The service performed in this case was rendered under such circumstances that it was one of salvage, unless the facts above set forth took away this character from it. Judge Lowell held that they did not, and that the libellants were entitled to recover salvage. The learned judge said: "So far as these respondents are concerned, their officers and men must be considered to be volunteers; they were under no contract or duty toward the respondents, and their rights among themselves must be settled independently. I do not consider this fact, nor the fact that the managers of the Pearson usually made a bargain for her use, nor both together, constitute such a holding out to the world as should require me to insist that they undertake salvage services for towage wages."

2 Williams v. Barge Jenny Lind, 1 Newb. Adm. 443, where an agreement that the salvor should have half of the property saved was set aside. See also The Sch. Emulous, 1 Sumner, 207; Bearse v. Pigs of Copper, 1 Story, 314; Post v. Jones, 19 How. 150; Cowell v. The Brothers, Bee, 136; Schutz v. Ship Nancy, id. 139; The Theodore, Swabey, Adm. 351; The Enchantress, Lush. Adm. 93; The Crus. V., Lush. Adm. 583. What we consider to be the true rule, is stated in the case of Eads v. The Steamboat H. D. Bacon, 1 Newb. Adm. 274, 280, "that a contract should be presumed primâ facie to be fair; but if proven to be unconscionable, the court of admiralty, like the court of equity, would refuse to enforce it." In The Helen & George, Swabey, Adm. 368, Dr. Lushington said: "This case turns upon the effect of the agreement, which was certainly made by the master. It was truly contended by Dr. Jenner that such

2

The salvors may also make an agreement with the master of the vessel for a compensation which falls far short of that due for a salvage service," provided there be a clear understanding of the nature of the agreement; that it is made with fairness and impartiality to all concerned; and that the parties to it are competent to form a judgment as to the obligations to which they are binding themselves." But, in the language of Dr. Lushington, in order to bar a salvage claim, there must be a distinct agreement between the parties, for a given sum and in explicit terms.3 Mere loose conversation between the parties concerning compensation is, therefore, disregarded. But it is no objection to an agreement that it was verbal, and the court will not set it aside unless it is wholly inequitable, although it is a hard bargain. And if a proposal is made by the salvors and refused by the vessel, this is no

agreements will generally be enforced by the court. The principle upon which the court acts is, that if satisfied that an agreement has been made, it will carry it into effect unless totally contrary to justice and the equity of the case; but the owner of the ship, against whom the agreement is attempted to be enforced, may show that it was improperly obtained. The owner may contend that, under the circumstances, the sum of money was grossly exorbitant; and à fortiori, if he can show that the agreement was obtained by fraud or compulsion, no court would hold it to be binding. But when the execution of such an instrument is once proved, it is primâ facie binding, and the burden of proof falls on those who dispute the validity of the instrument.”

1

1 The Mulgrave, 2 Hagg. Adm. 77; Bondies v. Sherwood, 22 How. 214. The Whitaker, 1 Sprague, 282; Dominy v. Anchors, &c. of the Brig D'Alberti, 1 Bened. Adm. 77. In this case it was held that even if there were no formal authorization of the person who made the contract, by the other libellants, yet as he was their head and spokesman, and they must have been cognizant that some agreement was made by him, they must be deemed to have acquiesced in it.

The True Blue, 2 W. Rob. 176; The Henry, 2 Eng. L. & Eq. 564; The Resultatet, 22 Eng. L. & Eq. 620; The Phantom, Law Rep. 1 Adm. 58. In the case of The British Empire, 6 Jurist, 608, Dr. Lushington said: "Now the general principle with respect to such agreements I apprehend to be this, that it lies upon the party setting it up to prove two things, first that such agreement was made and secondly that it was just. Where there has been a definite, distinct agreement, with ample time for the parties to consider what they are doing, the court would be reluctant to interfere with it, but only under these circumstances." * The Wm. Lushington, 7 Notes of Cases, 361. See The Pensacola, Brow. & L. Adm. 306.

* The Salacia, 2 Hagg. Adm. 262, 265.

5 The Fire-Fly, Swabey, Adm. 240.

evidence, in a suit by the salvors, of the value of their service.1 So if an agreement is afterwards rescinded by mutual consent.2

If a vessel in need of salvage assistance makes a signal for a steamer, and assistance is rendered in pursuance of that signal, the signal is to be construed as a signal for assistance, although not necessarily one of distress, and the service as one of salvage.3

It has been held that if a vessel is hired to do a stated service, as to tow a dismasted vessel which is anchored in a dangerous situation to a place of safety, but no price is named, because the time it may take is not altogether certain, this is a salvage service, and the agreement is of no avail. We cannot, however, assent to

The Jan Hendrik, 1 Spinks, 181.

2 The Africa, 1 Spinks, 299.

The Brig Susan, 1 Sprague, 499; The James T. Abbott, 2 id. 101; The M. B. Stetson, U. S. D. C. Mass., Lowell, J., Jan. 1867; The John Bunyan, 8 Law Times, N. s. 704; The Little Joe, Lush. Adm. 88. In The Bomarsund, Lush. Adm. 77, Dr. Lushington said: "The signal hoisted was for a pilot only, but this does not prevent the services rendered from being in the nature of salvage. The true question always is, what was the condition of the ship? Was she in distress? And the character of the signal hoisted is only one piece of evidence bearing upon this question. The court will form its conclusions upon all the evidence and all the circumstances." See The Hedwig, 1 Spinks, 19, 24 Eng. L. & Eq. 582.

Hennessey v. Ship Versailles, 1 Curtis, C. C. 353; The Independence, 2 Curtis, C. C. 350. We consider ourselves justified in our doubt of the doctrine of these cases, because when the latter one was taken up to the Supreme Court of the United States, that court were equally divided in opinion, as appears by the report of the case on another point. Hemmenway v. Fisher, 20 How. 255. In The William Lushington, 7 Notes of Cases, 361, Dr. Lushington held where the owners of a vessel in distress agreed with the owner of a cutter that should go to the relief of the vessel, but no sum was fixed as compensation, that the master and crew of the cutter, who did not know of the agreement, were not bound by it, but might sue as salvors. See also The Island City, 1 Clifford, C. C. 210. In such a case, even if it were held that the persons hired could maintain an action for salvage, it would seem just that the party with whom the contract was made should be a party to the suit, and the court would decree as salvage the amount agreed upon, so that the owner of the property saved would not be obliged to pay for the service more than once. See The Whitaker, 1 Sprague, 282. In The John Shaw, 1 Clifford, C. C. 230, the master of a vessel which was aground on a shoal off Nantucket, made an agreement with persons who came from the shore that they should go to work to get the vessel off, and if successful, and the parties could not agree on the amount to be paid, it should be left out to referees. If unsuccessful the salvors were to have the privilege of stripping the vessel. It was held that this did not bar a suit for salvage, and that the refusal of the salvors to