Lubker v. The A. H. Quinby

After a careful review of the evidence, I am of opinion that, while the sum awarded is “ample compensation,” it is not excessive. It is true the services rendered were of the lowest grade; the risk incurred and the skill and appliances required not great; and the time devoted to the service very short; but there was considerable expenditure in bringing the schooner to Wilmington, and the salvage allowed bears no undue proportion to the value of the property saved. I shall therefore affirm the decree of the district court so far as it awarded $400 to the libellant. But I cannot concur with that court in condemning the respondent to pay all the costs of the suit. Costs in admiralty are undoubtedly given or refused at the discretion of the court; but that discretion is to be exercised in accordance with settled practice, for the furtherance of justice, and with reference to the facts of the case. Here the libel was filed on the 10th of Hay. 1S77, about two weeks after the salvage services rendered. Ten days thereafter, Hay 20, the claimant, the owner of this schooner tendered to the libel-lant the sum of $400, as compensation for the services rendered, and also $(¡3 the full amount of costs incurred to that day. The tender was refused. On the 1st June, 1877, the respondent filed her answer, in which she renewed the offer of $403, and concurrently she paid that sum into the registry of the court. The sufficiency of the tender is not controverted, and it is therefore to be considered what its effect is. I think, as the li-bellant recovers no more than $40u, no more than he might have had on the 20th day of May, 1877, he is justly chargeable with the costs that have accrued since that date, because they have been needlessly made by him. Such I understand to be the general rule in salvage cases in courts of admiralty. It is certainly the English rule, and. so far as the decided cases show, it is the rule in this country. It is sufficient to refer to a few decisions, most of which were called to my attention during the argument. Thus, in the case of The Vrouw Hargaretha, 4 C. Rob. Adm. 103, Sir Wm. Scott said: “If a tender be pronounced sufficient, the court will make the party who refuses such an offer liable not only to his own costs but also to those of the other party, if it shall appear that proceedings have been vexatiously pursued.” The John & Thomas, 1 Hagg. Adm. 137, note 1. In The Emu, 1 W. Rob. Adm. 15, where the tender was held sufficient, no costs were given (against the salvors], but the court said that in future where a tender was pronounced for, costs would always be given. In The Batavier, 1 Spinks, 109, a tender was held sufficient, and costs were adjudged against the salvors. The Albion, 2 Hagg. Adm. 180, note 2; The Clifton, 3 Hagg. Adm. 124.

It is true the rule is not an unbending one. It may yield to circumstances in the particular case. It is, almost without exception, ruled that when the tender is held sufficient, the salvor is not entitled to subsequent costs. But whether he must pay the costs of an owner incurred after the refusal of a sufficient tender is not so well settled. In the case of The Queen, 1 Spinks, 175, note, Dr. Eushington said: “The rule I have endeavored to follow is not to bind myself in all salvage cases to give costs against salvors, unless I think the tender was so large that the salvors, in the exercise of a sound discretion, could not do otherwise than accept it. Here the tender is sufficient; but it is not so much as to lead me to blame the salvors for not accepting it. I therefore pronounce for the tender, but without costs.” In a subsequent case (The Paris, 1 Spinks, 289) he said: “I consider it my duty to pronounce for the tender, and, I am sorry to say, to condemn the parties in the costs. That is a measure which I am reluctant to pursue; though, according to practice in other courts, when the tender is considered sufficient, they uniformly follow that course.” Such, then is the general rale. I do not question that there may exist in some cases sufficient reason for departing from this rule. There may exist a reasonable doubt respecting the sufficiency of the tender or the conduct of the owners may have been such as to justify imposition of the costs or a part of the costs upon them. Public policy required that favor should be shown to the salvors when they have acted in good faith, without any disposition to oppress unfortunate owners. But I find no such reasons existing in the present case. The ingenious argument made on behalf of the li-bellant urges that the owner exhibited bad faith in not appearing before the Philadelphia board of underwriters, to submit to that board the question what sum was due to the libellant. To this 1 cannot assent. It is in evidence that when the libellant came on board the schooner, and before he began his salvage services, he obtained from the master of the schooner a contract that he should receive for his salvage services such sum of money as the board of underwriters of and in the city of Philadelphia should, within a reasonable time, award to him as being justly due for his salvage services; or, if the amount of said compensation should not be otherwise determined, that he should receive such compensation as should be just in the premises. It is proved that the owner did not appear before the board when notified by the libellant to appear; and this is charged as bad faith and a breach of the contract made by the master of the schooner. But the contract, admitting it to have been fairly made *1063and binding, did not obligate the owner to submit the determination of the amount due to the arbitrament of the board of underwriters. It was in the alternative. She was at liberty to submit the assessment to the board, or to tender or submit to such compensation as was just. She chose the latter, as she had the right to do. She made a sufficient tender within what appears to me to have been a reasonable time. There was, then, no breach of faith or of the contract on her part. On the contrary, I think the conduct of the libellant was harsh and oppressive. He never exhibited the contract to the owner or her agent until after the schooner was seized, and after the tender was made. He insisted on a determination by the underwriters, practically refusing to the owner her alternative right. He filed his libel before areasonable time had elapsed, I think, for a settlement of the amount due; and when the tender was made, on the 2Gth day of May, 1S77, after no unreasonable delay, he refused to accept it, saying “he would lose $100 more before he would take that.” The impression made upon my mind by all this is that the conduct of the libellant was oppressive and arbitrary, dictated more by the consciousness that he had an advantage than by a desire to secure a just and reasonable settlement. Certainly, there is nothing in all these facts which can justify a departure from the rule respecting the imposition of costs. I feel constrained, therefore, to order that the libellant shall pay all the costs that have accrued since May 26, 1877, when the tender was made. While salvors are to be treated with favor, they are not to be encouraged in oppressing unfortunate owners.

It was urged in argument that the decision of the district court on the subject of costs is not reviewable on appeal. I think otherwise. It is true, it has been said that the matter of costs is not per se the proper subject of an appeal, and that notice can umy be taken of it incidentally as connected with tlie principal decree, when the correctness of the latter is directly before the court. The Malek Adhel, 2 How. [43 U. S.] 210, 237. But here there is a general appeal of the whole case, including the ascertainment and determination of the amount due the libel-lant, and it has been contended that the sum awarded by the district court was excessive. The entire case is before me, as well the adjudication of the salvage as incidentally the costs. I am not bound by the amount of the unaccepted tender. I can decree either more or less, or nothing. What is in controversy now is the amount of salvage. Costs are only an incident, though it unfortunately happens in this ease that the incident is greater than the principal, in consequence, as I think, of the unjustifiable course of the libellant.

I notice another position taken by the proctor of the salvor. It is that inasmuch as the respondent tendered $400, the amount in controversy in this appeal does not exceed $50, and therefore that the circuit court has no jurisdiction. This position cannot be maintained. The appeal brings the whole case before me. The appellant contends against the entire claim of the libellant. It is true she tendered $400, but the tender not having been accepted, and the libellant having chosen to keep the case open, she is not bound by the amount of her tender. I am at liberty to award a less sum if, in my judgment, a less sum would be sufficient compensation. If a tender be made in admiralty, the court will afterwards, for good cause, reduce the amount, and decree a less sum to the libel-lant The General Palmer, 2 Hagg. Adm. 176.

I do not deem it' necessary to say more. From what I have said my conclusion will be manifest. I shall decree against respondent the sum of $400, together with $63 costs, and I shall direct that the costs of this appeal and all costs made since May 26. 1877, be paid by the libellant. Decree accordingly.