Irvine v. the Hesper

after stating the case as reported above, delivered the opinion of the court.

It is assigned for error, that the Circuit Court erred in deciding that the services rendered by the Estelle and the Buckthorn were salvage services of the lowest grade. This is found by the Circuit Court both as a conclusion of fact and a conclusion of law. Regarding it as a conclusion of fact, it is not reviewable here. Regarding it as a conclusion of law, it is based upon the finding of fact that the salvage services involved “neither risk of property, peril of fife or limb, nor unusual expense, nor gallantry, courage or heroism.” The Estelle having been engaged in the services three days and one night, and the Buckthorn two days and one night, the" court, treating the whole service as a service for seven days, and finding that the outside earnings of either of the .boats, with its appliances, was $300 per day, being $2100 for seven days, doubled the compensation, and made it $4200,' stating that that would be a full compensation, on the basis of towage and lighterage services.

The Circuit Court, in its opinion, 18 Fed. Rep. 698, says: “Proctor- for respondents in this case admits in argument, that, by reason of the service of the extra anchor furnished by. the libellants, the service amounts to salvage service. But for this admission I have grave doubts whether. I could- have found as a fact that the services ranked above towage and lighterage service, to be compensated on the principle of a quantum meruit. But salvage services being taken as established, the question is one solely of amount. As a fact in the case, I have found that there was neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage or heroisiñ. The .evidence shows there was no enterprise in going out-in tempestuous weather, as the weather was moderate and the . libellants’ tug. only went out when called upon and employed so to do. The labor and skill furnished were of. the ordinary kind, such as libellants’ boats were seeking as ordinary employment. Salvage, then, is to be determined entirely' by the distress in which the salved property , was. The distress of the Hesper was the salvors’ opportunity, and the. amount of salvagej on this point, determines the whole case.”

The principle upon which the Circuit Court proceeded, as-stated in its opinion, was, that, although storms might have come which' would have destroyed the Hesper, the services actually rendered to her by the tug. and the lighter were ordinary services, and that, if storms had come, the tug and the lighter might easily have sought safety.

"We recently had occasion to fully consider the question of salvage in the case of The Connemara, 108 U. S. 352, where it was contended that the facts found by the Circuit Court did not constitute salvage service, and that, if a salvage service^ it was salvage of the lowest grade, and the amount "allowed was exorbitant. Holding the services to have been salvage services, this court, speaking by Mr. Justice Gray, said, (p. 359): “ The amount of salvage to be awarded, although stated by the Circuit Court in the form'of a conclusion of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case.” It is further there said, that, by the uniform course of decision in this court, during the period in which it had jurisdiction to reverse decrees in admiralty upon both facts and law, the amount decreed below was. never reduced unless for some violation of just principles, or for clear and palpable mistake, or gross over-allowance; and that, since the act of Congress of February 16, 1875, c. 77, restricting the appellate power of this court within narrower bounds, and limiting its authority to revise any decree in admiralty of the Circuit Court to questions of law, this court may, in cases of salvage as in other admiralty cases, “ revise the decree appealed from for matter of law, but for matter of law only; and should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case.” The decree appealed from in that case was affirmed, upon the ground that this court could not say, upon the findings of facts, that the amount awarded was so excessive as to violate any rule of law. The same principle was applied in The Tornado, 109 U. S. 110, 115.

These views are equally sound in the case of an alleged under-allowance. We cannot say, from the facts found in the case- at bar, that the Circuit Court did not properly exercise its discretion in making the allowance it did, even though that amount was less than the amount allowed by the District Court.

The claimants not having appealed to the Circuit Court, it is suggested that they are liable for at least the amount awarded by the District Court and that the Circuit Court could not reduce that amount, but had jurisdiction, on the actual appeal, only to increase it. It is well settled, however, that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is .tried de novo in the Circuit Court. Yeaton v. United States, 5 Cranch, 281; Anonymous, 1 Gallison, 22; The Roarer, 1 Blatchford, 1; The Saratoga v. 438 Bales of Cotton, 1 Woods, 75; The Lucille, 19 Wall. 73; The Charles Morgan, 115 U. S. 69, 75. "We do not think that the fact that the claimants did not appeal from the decree of the District Court alters the rule. When the libellants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo. The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only by the claimants.

The decree of the Circuit Court is affirmed, with costs, and without interest to the libellants on that decree.