Page:Federal Reporter, 1st Series, Volume 9.djvu/71

56 FEDERAL REPORTER. �On the twenty-seveiith of July, 1880, shortly af ter the arrivai of the Colon in New York, the respondents flled a libel against the Colon and her cargo, " in behalf of themselves and all others entitled," claiming salvage compensation, but net stating the amount claimed. The vessel and cargo were attached, and bonds in the sum of $50,000 executed for her release. An answer was flled on September 7th by the Pacific Mail Steam-ship Company, as owner and claimant, which concluded by alleging that " the service rendered was only towage, and shonld not be ranked as salvage service of peculiar merit," and tendered $1,000 as " a just compenaation for the services rendered." Though the libel purported to be "in behalf pf ^1 others entitled," it didnot state the namjCS or the number of the, offlcers or crew, or make any other reference to them, or pray for any relief in their behalf. No other persons were made co-libellants, and there were no other actual parties to that suit. It does not appeax that any citation was published, nor that any of the offlcers or crew of the Pbmona, except the captain, who was one of the libellants, had any kiiowledge of the suit or of the subsequent proceedings. �On October 2, 1880, Mr. Kerr, the owner of the Pomona, and Mr. Houston, agent of the sjteam-ship company, ^greed upop^a submiasion of the claim to arbitration. The submission was oral, and the award, made on the same day, was also oral. Mr. Dennis, the arbitrator, was called as a witness in this action. From his testimony it appears that at the hearing before him Mr. Houston and Capt. G-rifEen were present in behalf of the Colon, and Mr. Kerr and his agent, Mr. Wessels, of the Pomona ; that Capt. Malilman was not present, nor these libellants, nor any other member of the offlcers or crew of the Pomona; that the questions submitted to the arbitrators were — "First, whether it was a salvage service ; second, as to compensation ; " that the parties present " agieed to abide by his award, whatever it might be;" that Capt. Griffen made a statement of the condition of the vessel and her general ex- posure, and submitted his private log; that Mr. Kerr and Mr. Wessels made a statement of what they had received f rora Capt. Mahlman ; and " whether it was a salvage case" was pretty thoroughly diseussed. He says: "I made my award in these words : that I did not regard the services as any- thing more than in the nature of a towing service, and that I should consider $3,000 would be a very liberal amount for compensation, and my decision was to award $3,000 in f ull for the service ; the owner of the Colon to pay the legal expenses that had been incurred by the Pomona." He also testifled: �" I did not intend, in the $3,000, to provide or inelude any compensation for any one other than the owner of the steam-ship Pomona. I did not consider the crew as entitled to any portion. That question was not raised, but it was considered in my mind. I regarded this exclusively as a towage service. It was compensation awarded to the owner of the vessel for the service. The gross freights usually earned by the Pomona, on a regular trip of 25 days, would be about $4,000. In awarding $3,000 I did not go on the basis of ordinary towage rates. I did not consider such services ordinary towage. I had regard to the position of the vessel, her capacity to make harbor herself, and the danger to which she might be exposed. In my judgment, compensa- tion for the diversion of such a vessel from her regular business for such ser- vice cannot be measured by the daily earnings of her regular business," �The respective owners expressed themselves satisfled with this award, and ��� �