The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III, Part 101

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440

USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III > Part 101

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If goods are abandoned by those whose duty it was to take care of them, or if those persons arc unable to protect them, it may be correctly said that they owed their preservation to those who came to their aid; but it is difficult to ascertain their proportion, when the prop- er guardians of the property remain with it, and have both the ability and inclination to protect it from loss or damage.

Therfore, if property abandoned by the master and crew be taken possession ofby a set of salvors, a second set have no right to interfere with them, and become participators of the salvage, 'unless that it appears that the first would not have been able to effect the purpose without the aid of the others. The same principle must apply to the case when the master and crew of the vessel are able to effect the purpose of preserving and carrying her safely in, without the aid of others .- My main doubt throughout this case, has been upon this point. I have not clearly seen the necessity of any interference on the part of the salvors. I have not been satisfied that the Elvira could not have made her proper port, or some other of safety; that she might not have come into the Delaware, without the assistance of a pilot boat-that she was "saved from impending peril." A service may be convenient, beneficial, mer- itorious; and not necessarily a salvage service. I will not, however, urge this objection upon the libellants. The master of the Elvira thought proper to accept the assis- tance offered to him, and the owner now is willing to pay what may be considered a just and reasonable com- pensation for it. No exceptation has been taken to it on this account. The respondent has met the claim on liberal grounds. It may be, that the master of the El- vira acted with a proper precaution and attention to the interests of her owner, in coming here to refit. A change of weather might have been apprehended, at that season, which would have been dangerous to him, but in the actual state of things, when he put himself under the protection of the Leo, his danger was not pressing, or apparent. The "impending peril," was not immediate or perceptible. The schooner had pre- viously met with several vessels, had asked no assistance from any of them, further than some small articles of provisions and water: her master and crew had never in- timated any apprehension of personal danger, nor any intention of seeking safety by leaving her. She was sound and tight in her hull, and with masts and sails, with which she could be pretty well managed. She had encountered and conquered much greater hardships and dangers, than any that lay between her and her port, and the fair presumption is that she would have reach- ed it. We must enquire into the quantum of salvage which should be allowed in such a case, according to the principles and practice of Admiralty Courts in other

cases. The compensation which may be justly allowed for this service, should be governed by a compound con- sideration of the importance of the service rendered, and the danger and labour to which the salvors were ex- posed in rendering it, and the importance of service de- pends upon the value of the property saved, and the ex- tent of the danger which threatened it. With a view to public policy, this allowance should be measured on a liberal scale, but with a primary regard for the unfor- tunate sufferer, whose protection, relief and interests are the true objects of the policy. It has frequently fallen to the lot of Sir William Scott, a most liberal admiralty judge, to estimate the value of salvage ser- vices, and we will see the measure he has adopted.

1 Rob. 32, (Am. ed.) 'The Aquila.'

In this case the ship and cargo were found at sea ab- solu tely deserted by those whose duty it was to protect them, a total loss was certain unless prevented by stran- gers. The finders contended for a property in the goods as their own, and not-merely for a reward as salvors .- This and several other interesting questions were dis- cussed in the case, which are not to our present pur- pose. The rate of salvage is our inquiry, and in this most desperate case, in which the owners owed every dollar that was restored to them to the services of the salyors. Sir William Scott gave them but two-fifths -- less than one-half.

In the same volume, p. 257, the case of the "Joseph Harvey" is reported. This was the petition of a pilot for salvage, in which it was decided that a pilot may ren- der a service to a ship in distress, which will entitle him to be considered something of a salvor. The petitioner espied the "Joseph Harvey" under a signal of distress, the wind blowing hard-the waves running high. He went to her and got on board with great difficulty. This, the Judge thought, gave no claim to any thing more than common pilotage. It is not, says he, for such rea- sons that pilots can be entitled as salvors; their occupa- tion is hazardous from its nature.

3 Rob. 286, "The William Beckford."

Sir William Scott says-"The principles on which the Court of Admiralty proceeds, lead to a liberal re- muneration in salvage cases, for they look not to the mere quantum of service performed in the case itself, but to the general interests of the navigation and com- merce of the country, which are greatly protected by exertions of this nature. The fatigue, the anxiety, the determination to encounter danger if necessary, the spi- rit of adventure, the skill and dexterity which are ac- quired by the exercise of that spirit-all require to be taken into consideration. What enliances the preten- sions of the salvors most is the actual danger which they have incurred. I cannot forbear to observe that not one of these elements of salvage, so eloquently described, is found in the case before us-neither fatigue, nor anxie- ry, nor courage, nor spirit of adventure, nor skill and dexterity, nor the least actual danger."

In this case of the "William Beckford," the Judge thought there was no peril of life in the degree contend- ed før by the salvors' counsel, from which expression we must presume it did exist in some degree; but there was great alarm about the possibility of saving the ship after she got upon the sand. It was proposed to the master to throw the cargo overboard, and he acquiesced in it; and it was resisted by the salvors, who used their efforts and employed their skill, and the ship and cargo were finally saved. These exertions were continued through the third day, and the salvors were numerous, a circum- stance always and properly considered. The Judge ac- ting in so strong a case of labour, skill, and service, and applying to it the liberal principles with which he pre- faces his decree, gave to the salvors less than one-four- teenth part of the value of the property saved, that is something more than £1200 on £17,604.

4 Rob. 184, "The Trelawny."

In this case, the "Lord Nelson," a slave ship, had re-

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LAW CASE.

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covered the Trelawny, another slave ship, on the coast of Africa, from some insurgent slaves who had disposses- sed the master and crew and sent them on shore. This was done after a severe conflict with very desperate per- sons, in which some of the crew of the "Lord Nelson" were wounded. Without this adventurous effort, the "Trelawny" and her cargo would have been inevitably lost. The Judge, in deciding the case, says-He will consider the value of the property and the service per- formed, which he adds "is to be considered as a rescue effected from pirates, and to say the least of it full as meritorious as recovering the property out of the hands of a public enemy." On this view he would have giv- en salvage as high as is directed by the prize act for ca- ses of recapture of war-but he remembers the nature of the trade in which the two ships were employed, their common danger, and the policy and duty of ren- dering mutual assistance, and not as ships accidentally rendering such assistance-considerations which have some bearing upon the case before us. Under these circumstances the court allowed one tenth of the value of the ship and cargo, both confessedly saved from total and inevitable loss.

Dods. 414, the "Blenden-Hall."

This vessel, loaded with naval stores, was separated from her convoy by tempestuous weather, by which she was greatly damaged in her hull and rigging. She was taken by a French frigate, her master and crew taken out, and the ship scuttled. She was found in this situa- tion by the packet "Eliza;" who put a number of her crew on board of her. Afterwards being in great peril from stormy weather and in great distress, she was re- lieved by the "Challenger," who put men on board of her, and she was brought to Plymouth. Sir Wm. Scott gave one tenth of the value of the property saved to the salvors.

Hagg. 246, "The Raikes."

This was the first case of salvage service by a steam- boat. Lord Stowell declares his inclination to encour- age as much as possible similar exertions on account of the great skill and power of vessels of this description. The ship saved was delivered from a perilous situation. There was great alacrity in rendering the assistance -- the steam boat went out from Dover, being sent for on purpose to release the "Raikes," lay by her all night in the month of December watching and attending her, and finally brought her safe in. The vessel and cargo were estimated at the value of £12,500, and the judge meaning før the reason stated to be exceeding liberal, allowed the salvors £200. The commissioneis from whose award this was an appeal had given but £150.

These are the leading English cases, and fix a princi- ple of liberality, tempered by moderation, and a just re- gard to the rights and owners of property exposed to marine hazards, that may be safely followed.

The American decisions on this subject do not differ in their principles from those cited from abroad, although the allowances appear to be rather more liberal. I shall refer to some of the best authority.

The circumstances were these: The Libel stated that when the saving ship fell in with the Belle Creole, she was declared to be sinking-her master desired the sal- vors to remain by him-the weather was tempestuous, and the Captain and crew at their repeated solici- tations were taken on board the Amiable. A pro- position was made to burn the Creole. The Cap- tain and crew declared when they left her, that they relinquished and abandoned her and every thing on board of her. She was left without a living person on board. The next day the master and crew of the Amiable took from her a quantity of merchandise, and she was set on fire at the request of her master .-- The answer admits that she was in great distress and in danger of perishing, and the leading facts stated in the libel were established by the evidence-she had eleven feet water in the hold when the articles were taken out of her, and one-half of the cargo had been thrown over- board before she fell in with the Amiable. The Judge speaks of her situation as distressed and hopeless.

In the same volume, page 48, in the case of the Cato. She was found by the Alexander "in great distress and on the point of perishing." Her master, crew, and part of ber cargo were taken out of her and she was aban- doned. A gross sum of $1500 was allowed to the sal- vors, being about two-fifths of the property saved.

1 Gali. 133-The schooner Polly, with a cargo of flour, was dismasted at sea-continued nine days under jury masts, and was in a very distressed situation. Fell in with the Triton-the whole crew of the Polly went on board of her, and remained by her that day and the following night. Then another ship, "The Reserve," came up. The Triton being heavily loaded, the cap- tain and crew of the Polly went on board of the Re- serve. The Triton left them. The Reserve took the Polly in tow for five or six days, and during that time took out of her the articles libelled, having been detain- ed on the service a week on her voyage. Judge Story affirming the decree of the District Court, allowed a sal- vage of one-third-observing that by the stoppage it seems to have been generally considered that a devia- tion resulted, and of course that the ship was put at the hazard of the owners."

In the Blairean, 2 Cr. 240, two-fifths were allowed by the Supreme Court of the United States in a very hope- less case, recovered altogether by the salvors.

The Cora, 2 Adm. Dec. 361, was a deplorable case of distress; she was deserted by her crew, with five feet water in her hold, and brought into port by part of the crew of the Ceres, with great difficulty, exposing the Ceres to great danger, from the absence of so many of her hands. The men put on board the Cora were also exposed to much danger during a storm. In such case, one third of the gross amount of sales was given to the salvors by the District Court, and affirmed on appeal, by the Circuit Court.

The Maria, same book, page 424, suffered in a storm, "so long and so much, that she became a mere wreck, and no hope of safety was left." One third of the arti- cles saved from her was allowed to the salvors. The Maria was sunk, and lost.

An early and leading case in this district is that of the "Belle Creole," 1 Adm. Dec. 31. Judge Peters, who examined the question very carefully, says -- That the With these precedents in our view, I will recur to the case of these libellants. I have already shown that the "impending peril," if any existed, was inconsiderable, uncertain and distant: resting rather on apprehension, than reality. The danger of the original disaster had gone by. "We thought ourselves safe," says the mate; and the conduct of all on board shows that they really did think so. Such being the condition of those to whom the assistance of the libellants was tendered and given, what is the amount of the merit of this assistance, in re- ference to the labor, skill, risk and expense with which it was attended-when the libellants descried the Elvi- ra, they were cruising in their ordinary vocation, look. ing out for employment. They were, it is true, with- out the prescribed limits of their Pilotage ground, but compensation is not to be a mere quantum meruerunt, but an exemplary reward comprehending a reward for the risk of life and property for the salvors' labour and danger, and even as a premium for similar exertions .-- He quotes the principle, that "he who has recovered the property of another from imminent danger by great labor, or perhaps at the peril of his life, should be re- warded by him who has been so materially benefitted by that labour; thus imminent danger, great labor, ha- zard of life, and material benefit, are the ingredients of meritorious salvage. In page 41 the Judge says: "The maritime law has varied from a twentieth to one half ac- cording to the description and value of the articles sa- ved, and the risk, labor, and expense of salvage." In this case of the "Belle Creole," the court allowed a sal- they had gone for their own pleasure or profit, and not vage of one third.

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[JUNE

in the service of the Elvira; at the moment, they were steering for their harbor within the Capes for the night. They returned 6 or 8 miles to the Elvira, and this was all the distance they went out of their way; they made fast a tow line, resumed their course to their harhour, and came to it in fine weather and with a favoring wind, a few hours later than they would have done had they left the Elvira to her fate. So far they have endured neither labour, risk nor expense in this service. On account of a head wind they remained snug and safe in this harbor during the next day, which was the 20th of March. In the morning of the 21st they make sail and proceed up the bay, and in the evening came to anchor about three miles below Reedy Island.

The next morning at about 8 o'clock they are under weigh again and come to above the point house, that is about three miles below the city, at between 2 and 3 o'- clock in the same afternoon. In a short time they were at the wharf in this city. All this was done without one moment of anxiety or danger-one effort of labour and a very small expense. The sails of the Leo and Elvira acted upon by a favoring breeze performed the whole duty, and for aught we know the crews of both vessels reposed in total inactivity during the whole pas- sage. In coming within the Capes on the night of the 19th, the libellants only did what they would have done for their own purpose and accommodation, and all they added to their labour in service of the Elvira, was the passage from thence to Philadelphia, and the towing her into the Capes. The Elvira appears to have been so entirely able to get up to the city of herself, that I am inclined to believe the Leo accompanied her, not because her aid was necessary, but to look after her re- ward. When we consider the rate at which these ves- sels came up the bay and river, sailing from their an- chorage a few miles below Reedy Island to Gloucester Point, a distance of 55 miles, in about seven hours, it is clear the Elvira did not hang very heavily upon her conductor, but must have been greatly aided by her own sails in her progress. I must repeat that it can hardly be doubted that she could have come up of her- self; that after she got within the Capes she was no lon- ger in any danger; and that the necessary, and indecd the useful service she received from the Leo, ended on their anchoring in their harbour on the first night. It will be recollected that she then got a new anchor from the shore, and her danger, at least, was at an end.

In assessing the compensation which should be paid to these libellants, we must not overlook the great loss irretrievably sustained by the owner of the Elvira and her cargo by this disaster. Her masts, sails and rigging entirely demolished-her anchor and chain cable lost --- her load thrown or swept overboard, and a voyage pro- tracted for six weeks that might have been performed in as many days.

It is perhaps not too much to say that half of her pro- perty has been sunk in this misfortune. It would be cruel and unjust to aggravate so much suffering by an extravagant charge for such inconsiderable services .- We must not teach a salvor that he may stand ready to devour what the Ocean may spare. He must not be permitted to believe that he brings in a prize of war and not a friend in distress. If he has afforded his assis- tance to the distressed in a proper spirit he will be sat- isfied with a just and fair remuneration for the labours, hazard and expense he has encountered in the service, and it is only a proper spirit that we should seek or de- sire to satisfy. To this measure of compensation the Judge governed by a liberal policy will add a reasona- ble encouragement which the generous and humane will hardly need to prompt them to exertions to relieve their fellow men in danger and distress. But we must re- member that the policy of the law is not to provoke or satisfy the appetite of avarice, but to hold an induce- ment to such as require it, to make extraordinary ef- forts to save those who may be encompassed with per- ils beyond their own strength to subdue,

In the present case, we can hardly say that any extra- ordinary effort was made. To take a tow-line from a dis- abled vessel, is one of the most ordinary acts of courte- sy, among sea-faring men. I know of no probable or plausible calculations, on which I can suppose that the pilot-boat and those on board of her, could have earned half the amount tendered by the respondent, while en- gaged with the Elvira, and certainly they could not have earned it with less labor, risk and expense.

I decree that the sum of three hundred dollars, above one-ninth of the value of the property saved, be paid clear of costs, to the libellants, for the services rendered to the schooner Elvira and her cargo. If, in fixing this amount of salvage, I have been influenced by the sum offered by the respondent, I can assure the libellants that that influence has been altogether favourable to them.

I make no order of distribution among the salvors, as their counsel has informed the court they have arran- ged, or will arrange this matter among themselves.

REPORT OF INFANT SCHOOL SOCIETY.

Another year has elapsed since the Managers of the Infant School Society laid before its patrons a statement of their proceedings.

At this interesting period, interesting, because it completes the second year of the existence of Infant Schools in our city, would the Managers congratulate the friends of this noble cause on the success which has attended their efforts, and give thanks where alone thanks are due, to a benignant Providence, who through their instrumentality has transformed many a miserable unlettered hovel into the abode of instruction, prayer and praise.

At the close of the last year your committee were able to number three hundred and six infant children who were the recipients of your bounty. At this time the schools, four in number, embrace between seven and eight hundred, making the number more than double. In May last, your committee found it necessary to make some arrangements for the removal of School No. 1-as the room in which it was opened was merely loaned un- til more suitable and permanent accommodations could be obtained. Accordingly a brick building formerly used as a place of worship, situate on the west side of Thirteenth street, between Race and Vine streets, with a lot of ground and two small dwelling houses in the rear, was rented at two hundred and fifty dollars per annum, for the term of two years-possession to be giv- en on the first of June. On the 11th of that month the school was removed to that place. Four hundred & forty nine children have there been instructed. The number who have been removed from various causes, dismissed as past age, and died, is one hundred & cleven; leaving three hundred and thirty eight-of this number, two hun- dred and fifty may be considered regular attendants .- Your committee have spared neither pains nor expense to render this, a model school, where the system should be properly developed, persons prepare themselves for teachers, and strangers gain such an insight into this mode of instructing the infant mind, as to feel that they had something to do-in this cause. We have reason to think that many streams have issued from this fountain. We believe that many hearts have been warmed by the scene there exhibited, many judgments convinced, and many resolutions formed-which have resulted in the establishment of schools in different parts of our coun- try; which are living witnesses, even in this point of view, that the labor and expense there bestowed have not been in vain. On the 7th of May, 1829, this school passed from the care of Mr. and Mrs. Bacon, who have had the charge of it since its formation, into the hands of female teachers. Successful experiment led your com- mittee to this measure.

In the month of June last a committee was appoint- ed to open a second school for white children. Suita-

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REPORT OF INFANT SCHOOLS.

1829.]

ble accommodations were found in College Avenue in Tenth street, between Chesnut and Markets streets. A large room and play ground attached to it, were rented at $80 per annum-possession to be given on the first of October. Two female teachers were engaged, and thirty-seven children received on the 13th of the same month. This school is in a very flourishing state and stands as a record of the faithfulness of its teachers. The whole number who have been instructed in it within its walls is two hundred and thirty-five. Left from various causes, forty-seven; removed by death three; dismissed as over age fifteen-leaving one hundred and seventy.

In February last it was resolved to open a third school In the eastern part of our city, so as to gather in the children who inhabit the garrets and cellars of Water street. A committee was appointed, who succeeded in obtaining rooms at No. 20 Spruce street, at the rent of $100 per annum. These rooms have been fitted up by said committee with donations collected for that pur- pose without encroaching on the annual contributions by which the society is principally supported. The school was opened on the 28th of April with forty-two children, which number in three weeks has increased to ninety-four. Female teachers are employed.

The colored school is also in a flourishing state, en- couraging the hearts of those who feel an interest in the welfare of this long-neglected people. The whole number who have been under the care of your commit- tee is one hundred and sixty-nine. Left from various cau- ses, six; removed by death, three; dismissed as over age, three-leaving one hundred and fifty-seven Of this number 115 may be considered regular attendants .- Your committee have been obliged to refuse receiving children, as the room is crowded, and the accommoda- tions confined. It is important to open another colored school at once-what is 115 coloured children to the hundreds, nay even thousands that inhabit our lanes and alleys. It is truly painful to see the disappointment which clouds the brow of a mother anxious to snatch her offspring from the contagion of vice and iniquity and place it under the influence of morality and reli- gion, when she is told that her infant must still be expo- sed to the danger from which she would willingly res- cue it, because the school is full and there is no provi- sion made for another. It may not be generally known this fund is entirely separate, and in no way benefitted by any contribution to the Infant School Society. . Peo- ple of color contribute to its support, and some of the parents manifest an interest in this institution. In seve- ral instances persons whose circumstances are above those whose children are the objects of your charity, have offered with apparent anxiety any reasonable sum to have their children admitted. The reason given for this request was the moral improvement observable at home of several who were named. One in particular was pointed out, who was actually picked up in the street, in a violent fit of rage, with a large stone raised to throw at his brother. This child was brought in, a a violent, headstrong and ungovernable boy-but the li- on seems to be changed into the lamb, and this, without any punishment, simply by mildness and unbending firmnees, connected with instruction received.

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The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. III, Part 101

Author: Hazard, Samuel, 1784-1870 Publication date: 1828 Publisher: Philadelphia : Printed by W.F. Geddes ; Number of Pages: 440

Author: Hazard, Samuel, 1784-1870
Publication date: 1828
Publisher: Philadelphia : Printed by W.F. Geddes ;
Number of Pages: 440