It is now quite certain that gross misconduct on the part of the salvors connected with the property saved forfeits all claims for salvage. This is especially true of embezzlement of the cargo. The whole purpose of the law of salvage is to reward and encourage the saving of imperilled maritime property. And there would seem to be no stronger reason for denying salvage than any depredation upon the property. And this reason is strengthunless fraud could be proved against the The Bark Island City, 1 Black, U. S., master. The Resultalet, 22 Eng. L. & 121. This was a libel for salvage by Eq. 620. In The William Lushington, the owners of the steamer Western7 Notes of Cases, 361, an agreement or port, against the bark Island City. understanding between the owners of The latter, on her voyage from Galvesthe vessel'saved and the owners of a ton to Boston, being in distress off Cape cutter engaged by them to render the Cod, was taken in tow by the Westernservice (no specific sum being fixed port and brought into Hyannis. While therein) was held to bar the parties the Island City was in possession of the suing (including the master and crew Westerport, the officers and crew of the of the cutter) who acted in the service latter vessel broke open the chests of under the personal direction of the the master and seamen of the bark, owner of the cutter, but were not par- and robbed them of their clothes, ties to, or cognizant of, the understand watches, etc., etc. Mr. Justice Grier ing. In the case of The Salaria, 2 held, that "a right to compensation for Hagg. Adm. 262-265, where the cap- salvage presupposes good faith, meritoritain of the saving ship was reported to ous service, complete restoration, and have said "that he should not demand incorruptible vigilance, so far as the any salvage, but that his crew would property is within the reach or under not work unless paid for their labor, and the control of the salvors. If salvors that they declined to take a dollar a are guilty of embezzlement, whether at day, but would accept two," the court sea or in port, or even after the proprefused to give consideration to loose erty has been delivered into the custody conversations of this kind. The Fire- of the law, their claim for salvage is fly, 1 Swabey, Adm. 240. In this case forfeited to the owners. Dr. Lushington, in delivering the opin- of this rule does not depend on the ion of the court, held, that where an amount or value of the property emagreement for salvage services is clearly bezzled; the law visits any embezzleestablished, the court will uphold it, un- ment, though small, with an entire forless wholly inequitable, and will not set feiture of all claim for salvage. Where it aside on the ground that it is a hard the embezzlement is secret and purely bargain. See also Bondies v. Sher- an individual act, it will not prejudice wood, 22 Howard, 214. co-salvors, who are innocent and ignorant of it; but all are guilty who consent to, connive at, or conceal it, who encourage it, or fail to prevent it when they can."

1 The Joseph Harvey, 1 Rob. Adm. 306; The Bello Corrunes, 6 Wheat. 152; The Clarisse, 1 Swabey, Adm. 129, 133; The Charles Adolphe, 1 Swabey, Adm. 153; The Perla, 1 Swabey, Adm. 230;

The operation

ened by the fact that the property is so absolutely within the power of the salvors, with no protection whatever but that which the law can give to it.

But this forfeiture reaches only the guilty individuals, and does not affect innocent co-salvors. But if it be the master who has embezzled the property, and he is also part owner, he forfeits his share in both capacities.2 It has even been contended that the master is so far the servant of the owners that they are responsible for his wrong-doings, and that his embezzlement of the cargo forfeits their share. But it seems to be the rule of admiralty that only the parties who are actually guilty shall be punished. In one case in Massachusetts, the share of a salvor was diminished, because of some carelessness whereby others were enabled to plunder the vessel. So, too, all oppression or attempts at extortion, or exaggeration of the service rendered, are punished by the court by forfeiture or diminution of salvage.5

Salvors are witnesses in their own case, because for the most

1 Mason v. Ship Blaireau, 2 Cranch,

340.

The Schooner Boston, 1 Sumner, 328. This was a suit for salvage by the master and owners of the schooner Magnolia. Embezzlement was proved against the master, who was also part owner, and the mate; and it was held that this forfeited the claim of the master of the Magnolia, both as master and part owner, also that of the mate. Story, J., in delivering the opinion of the court, observed: "The maritime law demands from all persons engaged in maritime concerns scrupulous good faith and uprightness of conduct. And it prescribes this most emphatically to salvors, giving them a liberal reward for fidelity and vigilance, and visiting them with severe reprobation and diminished compensation for every negligence. But in cases of embezzlement the law would fall short of its usual foresight if it did not inflict a more admonitory punishment. Accordingly it will be found, I believe, in the maritime jurisprudence

of the whole world, that embezzlement by salvors, directly or by connivance, is punished by a forfeiture of all claim to salvage. In morals, in general justice, and in sound policy, it should be so."

The Rising Sun, Ware, 385, where it was held that embezzlement by a salvor works a forfeit of his claim of salvage, but does not prejudice his cosalvors who are innocent; and that if the master and all the crew are implicated in the embezzlement, it will not work a forfeiture of the share of the innocent owners of the salvor ship.

496.

The John Perkins, 19 Law Rep.

Houseman v. Schooner North Carolina, 15 Pet. 40; The Susannah, cited 3 Hagg. Adm. 345, note; The Giacomo, 3 Hagg. Adm. 344; The Rising Sun, Ware, 378; Schooner Boston, 1 Sumner, 328; Ship Octavia, cited in Marvin on Salvage, 113; The Elizabeth & Jane, Ware, 35, 37; The Towan, 2 W. Rob. 259.

part they alone know the facts. But where this reason wholly fails, because the facts can be proved as well by other and disinterested witnesses, their testimony is not, generally at least, received. From the fact that they are thus permitted to testify, from necessity, it has been, we know, earnestly contended, that false testimony from any of them should forfeit their shares. The truth of the case is in their keeping as much as the goods are, and they are permitted to testify because it is; and an embezzlement of the truth, for so falsification of evidence may be considered, should have the same effect as embezzlement of property. But we are not aware of any

direct authoritative decision on this point.

SECTION IX. Of the Amount of Salvage decreed.

THIS is always and entirely within the discretion of the court. It is never regarded as mere compensation for time and labor, or as only wages, but as a reward, intended to stimulate all who come within reach of endangered maritime property to do all that can possibly be done to save it. Hence, the courts are very liberal in cases of exposure to peril or suffering on the part of salvors, and always reward largely great courage in encountering dangers, and persistent efforts to save the property, not only in defiance of peril, but with much exposure to suffering.

It is impossible to state any rules which may serve as the constant measure of salvage. And it ought to be so, for it is far better that each should be determined on its own facts and merits. One effect of this may be noticed. In cases of salvage

1 The Schooner Boston, 1 Sumner, 328, 345. In this case Story, J., observed: "The constant course of practice has been, in salvage cases, to allow the testimony of the salvors to be taken as to the facts occurring at the time of the salvage service, and especially where these are exclusively within their knowledge. Of course the evidence being of interested persons is in the nature of semi-plenary evidence only, and will weigh little, unless corroborated by other circumstances. It will be of less weight when it leaves behind it

disinterested testimony which might be taken; and it will be greatly abated in force by opposing testimony from persons belonging to the crew of the saved ship." See also The Ship Henry Ewbank, 1 Sumner, 400.

Bond v. The Brig Cora, 2 Wash. C. C. 80. This was a libel for salvage filed by the owners, mister, and crew of the brig Ceres. Washington, J., in giving the opinion of the court, remarked: "In appreciating and properly rewarding such services, no rule but that which a sound discretion may sug

on our Western waters, the rates of compensation decreed are said by the courts to be less than those of the Eastern courts, because the peril of life is generally much less in disasters on inland waters than on the ocean. At the same time, there are, and perhaps always have been, certain principles or usages which guide the courts.

These vary from time to time. Thus, it was formerly almost a rule, certainly a very general custom, to give to salvors half of the property they saved, when the property was derelict. This word means "abandoned," and is used in the law of admiralty to signify maritime property which all who had charge and possession of have left and utterly deserted, whether voluntarily or by compulsion. So long ago as in 1798, Lord Stowell declared this rule to be "obsolete." 2 And as far as we can judge from recent cases, we should not expect that admiralty, either in England or in this country, would give so much as one half, in a case even of unquestionable derelict, unless there were some grounds for peculiar liberality, as danger to property or person bravely encountered, or severe and continued labor and exposure.3

gest, upon a view of all the circumstances of each particular case, can be laid down." In the case of Post v. Jones, 19 How. 150-161, which was a case of salvage, Mr. Justice Grier delivered the opinion of the court, in the course of which he observed: "Where it is not fixed by statute, the amount of salvage must necessarily rest on an enlarged discretion, according to the circumstances of each case. The case before us is properly one of derelict. In such cases it had frequently been asserted, as a general rule, that the compensation should not be more than half nor less than a third of the property saved. But we agree with Dr. Lushington (The Florence, 20 Eng. L. & Eq. 622), that the reward in derelict cases should be governed by the same principles as other salvage cases, namely, danger to property, value, risk of life, skill, labor, and the duration of the service'; and that no valid

reason can be assigned for fixing a reward for saving derelict property at a moiety, or any given proportion; and that the true principle is adequate reward, according to the circumstances of the case.'" See also The Thetis, 2 Knapp, 410.

1 McGinnis v. Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, 359–368. In this case, in the course of his opinion, Leavitt, J., observed: "It may not be improper here to remark, that, in salvage claims arising on the Western rivers, the precedents of courts administering the admiralty law on the ocean, in regard to the amount of compensation, cannot be safely adopted. In general, the peril of life, in cases of disaster on our rivers, affording a claim for salvage service, is not equal to those resulting from disasters on the ocean." 2 The Aquila, 1 Rob. Adm. 37–45.

The position seems now to be established that the reward in derelict

More than half has been, and may be, given in extraordinary cases.1 But the amount decreed may be anything less, down to mere wages, or a very slight compensation. It is still a general

rule, that where the property is large, and a smaller proportion necessarily amounts to a large sum, the proportion given is smaller than where the property saved is small. In a recent case, the Supreme Court of the United States have said that great distance