The John E. Clayton. THE JOHN E. CLAYTON. As a general rule, the rate of salvage allowed in the case of a vessel found derelict at sea, is a moiety of her value; and this, except in very special cases, is the extreme limit. The considerations stated, which are taken into account, in fixing a salvage compensation. An allowance by the District Court, as salvage, in this case, of two-fifths of the value of a derelict vessel, reduced by this Court to one-fourth of such value. (Before NELSON, J., Southern District of New York, October 6th, 1859.) THIS was a libel in rem, filed in the District Court, to recover salvage. The master and hands of the sloop Thomas E. Crocker, five in number, were on their way to the fishing grounds, which were about thirty miles from Sandy Hook, on the morning of November 27th, 1856, and, when some twelve or fifteen miles from the Hook, discovered a vessel, which was afterwards found to be the schooner John E. Clayton, on her beam ends, with a large hole stove in her side, sufficiently to have sunk her instantly, had it not been for her cargo, which was wood. She lay in the open sea, about two miles from their track, and, when reached, it was ascertained that her crew had abandoned her. The weather was fair, but the sea somewhat rough, with a strong breeze from the land. The sea was breaking over the vessel, and drifting her further from the land. It was necessary to strip her of her sails, and cut away her foremast, in order to right her. The libellants were assisted by another vessel, the Tobiatha, and both vessels were engaged from six or seven o'clock in the morning till two in the afternoon, in righting the derelict vessel and preparing her to be towed to New York. nine o'clock that evening. be of the value of $3,000. gross sum of salvage, to the They reached Jersey City about The John E. Clayton. fifths of the value of the vessel. The claimants appealed to this Court. Frederick R. Sherman, for the libellants. Charles Donohue, for the claimants. NELSON, J. As a general rule, it is undoubtedly true, that the rate of salvage of a vessel which is derelict at sea, is a moiety of her value. This, however, except in very special cases, in which great hardships and dangers have been encountered, is the extreme limit. The Courts always look to the nature and character of the service, the time consumed by the salvors, the peril involved and the expense, as well as to the situation and condition of the vessel saved and its value, in fixing the compensation; not upon the idea of a quantum meruit, but by way of rewarding the service in proportion to the degree of merit belonging to the particular case. Now, in the present case, there is nothing in the evidence showing any extraordinary degree of merit, or any great sacrifice of time or money. The vessel was found some twelve or fifteen miles from the bay of New York, within two miles. of the track of the salvors on their fishing expedition, and only a day was consumed in raising and bringing the derelict to port. The weather was pleasant, and no particular hardship or danger was encountered. I cannot but think that the amount allowed by the Court below exceeded a reasonable compensation for the service, and that one-fourth of the value will afford ample reward to the salvors, and is the most that should be awarded under the circumstances. The service rendered by the Tobiatha seems to have been very slight, according to the evidence. I shall, therefore, modify the decree of the Court below, by awarding to the Thomas E. Crocker and hands $600, and to the Tobiatha and hands $150, without costs on either side in this Court; the costs to the libellants in the Court below, as there decreed, to stand. The Fanny Fosdick. THE FANNY FOSDICK. The question of usage, as to the stowage of wheat in bags, in the presence of kerosene, in a general ship, considered. A libel in rem, filed against a vessel, to recover damages for injury to wheat in bags so stowed, the injury alleged being an offensive odor imparted to the wheat by the kerosene, was dismissed on the ground, as to a part of the wheat, that there was no sufficient evidence that it was affected by such odor, and, as to the rest, that the testimony was conflicting, and that the odor might have been removed by properly ventilating the wheat, after its delivery. (Before NELSON, J., Southern District of New York, October 8th, 1859.) THIS was a libel in rem, filed in the District Court, to recover damages for injury to a quantity of wheat, shipped from New Orleans to New York. That Court having dismissed the libel, the claimant appealed to this Court. Townsend Scudder, for the libellants. Benjamin F. Mudgett, for the claimant. NELSON, J. The wheat, 990 sacks, containing 2,306 bushels, was put on board the vessel in the month of December, 1857, and arrived at New York on the 10th of January following. The vessel was a general ship, engaged in carrying general cargo, and had laden on board, with the wheat, flour, sugar, molasses, hides, oil, &c. It is claimed that the wheat, when it was discharged at New York, emitted an offensive smell, as if impregnated with the odor of kerosene, or Breckenridge coal oil, of which some one hundred and fifty barrels had been stowed in the hold of the ship. Two hundred bags of the wheat were stowed in the hold, on barrels of flour, which rested on a ground tier of hogheads of molasses. The wheat was not, however, within twenty feet of the oil. The rest of the wheat was stowed between decks. The cargo was well stowed and properly cared for during the voyage, unless The Fanny Fosdick. the stowage of the oil in the presence of the wheat affords evidence of bad and unskilful stowage, and want of due care and caution in the transportation. The wheat was, when discharged, in fine condition in all respects, except the offensive odor. This smell, the witnesses state, reduced its value some twenty-five cents per bushel. The case, upon the facts, is peculiar. There is considerable conflict of evidence, upon the questions-(1) whether or not there was any stench or offensive odor emitted from the wheat, when delivered; (2) whether, if there was, exposing it to the air a short time, with proper ventilation, would not have removed the smell; and (3) whether coal oil would produce the effect sought to be established in this case, it being claimed, as the result of actual shipments with assorted cargoes, that it would not. The solution, doubtless, of this contrariety of evidence, may, in part, be found in the fact, that the article of coal oil is comparatively new, as a commodity in the trade, and its effects upon other cargo, stowed in the same hold of the vessel, are not yet understood. For this reason, I am not prepared to say, that there can have been such a clear and well-known usage and custom, in respect to its stowage with other cargo, as would exempt the carrier, within the principle of the case of Baxter v. Leland, 1 Blatchf. C. C. R., 526.) But, there is another ground upon which, on the facts of the case, I think that the libel was properly dismissed by the Court below. The wheat was delivered from the ship, in the sacks, into lighters, and was discharged from the sacks into the lighters in bulk, mingling the portion stowed in the hold, which was in the vicinity of the oil, with the portion stowed between decks. The consignees are responsible for thus blending the two parcels, and I am not at all satisfied, upon the evidence, that the portion stowed between decks was affected by the disagreeable odor of the oil, even if it had been otherwise with the portion stowed in the hold. As it respects the two hundred bags in the hold, I am not, in the conflict of the testimony, disposed to interfere with the decree. Indeed, Nourse. Allen. I am inclined to think, that, if some care had been bestowed in airing and ventilating the wheat, the offensive odor would have disappeared, and the damages would have been slight, if any. A sample was brought into the Court below, which the Judge states, in his opinion, " clearly failed to show that it retained any discernible effects of the taint." The decree of the Court, dismissing the libel, is affirmed. JOEL NOURSE AND OTHERS V8. RICHARD L. ALLEN. IN EQUITY. A bill in Equity, founded upon four patents for improvements in reaping machines, they being improvements intended to be used in all such machines, and not limited to any particular machine, and not being necessarily connected together in use, is not bad for multifariousness, on demurrer, where it appears that the machine sued contains all the improvements. A deduction of title to the patents being set forth in the bill, with an averment that the title to them was vested in the plaintiffs: Held, that the latter averment would have been sufficient, and that the deduction of title was unnecessary. (Before NELSON, J., Southern District of New York, October 13th, 1859.) This was a demurrer to a bill in Equity, filed to restrain the infringement of four several Letters Patent for improvements in reaping machines. George Gifford, for the plaintiffs. J. C. Bancroft Davis, for the defendant. NELSON, J. I. The demurrer to this bill is grounded mainly upon the multifariousness of the matters set up in the bill, namely, four distinct and several patents for as many |