Page:Federal Reporter, 1st Series, Volume 9.djvu/733

718 FEDERAL REPORTER. �the right to sliare in the salvage award referred to ; which reward, it may be remarked, was conceded at the argument to have been paid to Scott, the owner of the Alert, since the filing of the libel herein, upon his agreeing to assume the defence oithis action. �The fact relied on to sustain the position that the libellants are not entitled to maintain this action is thus stated in the answer : "As the claimants are informed and believe, none of the oliicers or crew of said tng had any interest whatever in the compensation to be paid for the services, having engaged in the wrecking business, and being paid for such partieular service ; and theref ore never had any claim against said schooner for compensation for the services performed by said steam-tug." In regard to this defence it may be remarked that on its face it seems insufficient. The fact that the libellants engaged to work for pay in the wrecking business does not necessarily deprive th^ of the right to engage in a salvage service, and to participate in the reward thereof. Wrecking business is not in all cases salvage business. Whether, in any case, a wrecker performs a salvage service depends upon the circumstanoes. Scott, the owner of this tug, claims to be a wrecker by occupation, while he admits that he rendered a salvage service to the Cetewayo, and has not only claimed but been paid a salvage reward for the same, Treating the answer, however, as setting up an agreement on the part of the libellants to abandon to the owner any right ihey might acquire by reason of being engaged in performing salvage services while employed on the Alert, the question arises whether such an agreement can be upheld in the face of the provision of law to be found in section 4535, Eev. St., where it is declared that every stipulation in a seaman's agreement, to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative. This ptatute certainly affords room to contend that' such an agreement as the claimant relies on must be held void, notwithstanding the subsequent act of June 9, 1874, (18 St. at Large, 64; Supp. Eev. St. vol. 1, p. 31.) See remarks in case of M'Carty v. Steam-propeller City of New Bedford, 4 Fed. Eep. 818. It may, perhaps, be possible to hold that the pro- vision in section 4535 was not intended to apply in cases where a .seaman, with full knowledge by an express agreement, undertakes to engage in a salvage service, and to waive any compensation therefor other than his regular wages. Although in England, where the Merchants' Shipping Act contains a provision from which the pro- vision of pur statute appears to have been copied, with the rest, it ��� �