1. Are the officers and crew of the Holder Borden, to be deemed salvors, in rescuing from the waves, and placing upon the island, the oil and fragments of the vessel? In the case of The Neptune, 1 Hagg. Adm. 227; The Massasoit [Case No. 9,2(30]; and the recently reported case of The Reliance, 2 W. Rob. Adm. 119,— it is decided that, in case of shipwreck, and part of the vessel being saved by the exertions of the crew, they are entitled to wages; but cannot be deemed salvors, unless under very extraordinary circumstances. It is insisted, that this case comes within that exception. Immediately upon the disaster, the captain resolved upon building a schooner, as the only means of escaping from the island. He put upon this service as many men as could be employed to advantage, and it took nearly five months to complete her for sea, during which time the residue of the crew had no other employment than that of saving the oil. The weather was fine, the sea was smooth, and although the service was laborious, it was not attended with danger, or any particular suffering. We should keep in mind, that this was a whaling voyage, in which the great principle of maritime policy, of uniting the interest of the mariner with that of the owner, is adopted, in its greatest force. By express contract, the compensation of a mariner is to be only a share of the net proceeds, which shall be brought to the hands of the owner. In taking the oil from' the wreck, therefore, they were laboring to secure the proceeds of the voyage, upon which their compensation depended, which was enhanced by every barrel ultimately saved. I do not think that the circumstances were such as to entitle them to be considered as salvors, for merely placing the remnants of the ship, and the oil, out of the reach of the waves.
The men worked only during the day, not being pressed for time, subsisted upon the *334provisions of the ship, and acted under the direction of her officers. The captain exhibited great ability, promptness and energy, in the trying and novel circumstances in which he was placed; and all parties concur in paying a deserved tribute to his merit. But the crew had no responsibility, except that of obedience to his commands.
NOTE. In The Neptune, 1 Hagg. Adm. 237. Lord Stowell, giving judgment in favor of seamen’s claim for wages, in a case of wreck, where materials had been saved by them. said, as to their being considered salvors: “I will not say, that in the infinite range of possible events, that may happen in the intercourse of men, circumstances might not present themselves, that might induce the court to open itself to their claim of a persona standi in ju-dicio. But they must be very extraordinary circumstances indeed.” In The Florence [16 Jur. (pt. 1) 572], nearly thirty years after-wards, Dr. Lushington speaks of such a claim, as of novel impression in an English court; and he sustained it. on the ground, that the seaman’s contract had been vacated, by an abandonment of the ship at sea, on account of damage received and the state of the elements, for the purpose of saving life, without hope of return, in good faith, and by the master’s order; and so the libellants, not being seamen. might be salvors of the ship. .The case of The Holder Borden [Case No. 6,600], and the American authorities cited below, do not seem to enlarge this doctrine, nor to sustain the claim of seamen to salvage reward for services rendered during the existence of the contract. Mesner v. Suffolk Bank [Id. 9,493]: Hiller v. Kelley [Id. 9.577]; The Star. 14 Law Rep. 487; The Robert & Anne, Stn. Adm. 254: Nickerson v. The .Tohn Perkins [Case No. 10.252]; The Acorn [Id. 30]; The John Perkins rid. 7.360]; Mason v. The Blaireau. 2 Cranch [6 U. S.] 240; The Wave [Case No. 17.300]. The case of The Mary Hale [Id. 9.-213] seems to go farther in favor of the seaman than the cáse in the text, or the cases cited. The numerous eases, already cited in The Massasoit [Id. 9.260], in which wages have been allowed, out of wreck, as salvage, or quasi salvage, can hardly be considered, in view of subsequent decisions, as an authority for the exception.*3342. The next question is, what are the rights of the officers and crew, with respect to the schooner Hope, and the property transported in her to Oahu? The remnants of the ship belonged to her owners; but, under the circumstances, were rightfully used by the officers and crew, in building the schooner. None of the old materials could be made use of, in the form in which they were found. All had to be re-fashioned, with very great labor. The mariners were under no obligation, by virtue of their original contract, to build this vessel; and the owners of the ship acquired no right from the building of her, their materials used in her construction, being found, by the assessor’s report, to have been of no value to them. In a whaling voyage, the owners are to furnish the ship, and the mariners to perform the labor. If the captain had hired a vessel, to transport the property from this island, he would have been entitled to remuneration of the expense thus incurred. If the captain and mariners employ their own vessel, they, also, are entitled to compensation.
3. The brig Delaware, purchased at Oahu, is to be deemed the property of Dr. Durfee. The purchase was made in his name; the bill of sale given to him alone. He has paid the purchase-money, and although the captain states, that he purchased her for the owners of the Holder Borden, whoever they might be, it does not appear that any of the other owners have, in any manner, ratified his acts, or participated in the purchase. For going from Oahu to the island, which I shall call “Pell’s Island,” and taking from thence the oil, and the few remnants of the ship, the brig was entitled to compensation, and has a lien, therefor, on the property taken on board and brought to the United States. It appears, that the officers and crew of the Delaware, have been paid by her owner, for their services in going from Oahu to Pell’s Island, and taking and conveying her cargo thence to the United States, and are not now to be compensated for that service.
It is found, by the assessor, that the actual expenses incurred by the owner of the Delaware, in saving this property, including the purchase of the brig, and deducting her value at Fall River, was $11,303.12; and he has reported, that five per cent will be a fair rate of insurance. This, I am satisfied from the evidence, is a moderate estimate. Beside the amount of expenses and insurance, the owner ought to be allowed such further compensation, as would have been an adequate inducement to him, if he had been present, to allow his vessel to be employed in this extraordinary enterprize.
For this, including the risk of the brig, I shall allow the sum of $1650, which, added to the expenses above stated, makes an aggregate of $12,953.12. The assessor has reported, that one-third of the net proceeds would be a fair compensation to the owners of the Hope, for taking, and carrying to Oahu, the oil and remnants, which were conveyed in that vessel, and that sum, being $755.60. will be allowed to them accordingly; and as Captain Pell has not been adequately rewarded, for his peculiar and meritorious services, in the extraordinary circumstances in which he was placed, I shall award to him the further sum of $200.
The net proceeds of the oil and remnants of the ship, taken by the brig Delaware from Pell’s Island, amounted to $17,628.57; deduct $12,953.12; leaves $4,675.45. The net proceeds of the oil and remnants, conveyed by the Hope, was $2266.80; deduct $755.60, and $200, leaves $1311.20; from the above sums of $4675.45, and $1311.20, will be deducted the costs of the libellants; and the residue will remain to the owners of the Holder Borden, and her officers and crew. So far as this fund is the proceeds of the remnants of the ship, it belongs exclusively to her owners. So far as it is the proceeds of the oil, it belongs to the owners, officers, and crew of the ship, in the proportions prescribed by the shipping articles. Decree accordingly.