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Statement of the Case.

202 U.S.

UNITED STATES v. CORNELL STEAMBOAT COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND

CIRCUIT.

No. 239. Argued April 20, 1906.-Decided May 14, 1906.

While a claim for salvage of Government property based on services rendered without request of any officer of the Government does not arise upon any contract, express or implied, it is properly one for unliquidated damages in a case not sounding in tort, in respect to which the claimant would be entitled to redress in the admiralty court if the United States were suable, and, under the Tucker Act, the Court of Claims, or the proper District Court where the claim is for less than $1,000, has jurisdiction of a suit therefor.

The successful salving of undelivered merchandise on which duties have been paid, but which the Secretary of the Treasury is authorized by §§ 2984, 3689, Rev. Stat., to refund if the goods were lost, entitles the salvors to recover from the Government a reasonable salvage, equal to that recovered on the private property saved at the same time, on the amount of duties which the Government would have been under obligation to refund had the merchandise been lost. In such a case it will be assumed that the duties will be refunded, and the claim therefor will be regarded as a liability, although § 2984 is permissive and not mandatory in form. Although courts of admiralty have no general equity jurisdiction, and cannot afford equitable relief in a direct proceeding for that purpose, they may apply equitable principles to subjects within their jurisdiction.

THIS was a petition under what is known as the Tucker Act, defining the jurisdiction of the Court of Claims, to recover salvage upon the duties on 1,883 bags of sugar, cargo of the lighter Bangor.

The facts agreed upon and found by the court are substantially as follows:

The Steamboat Company, a New York corporation, and owner of the steam tug R. G. Townsend, at great risk and peril to the tug, saved a certain lot of 1,883 bags of sugar on board of a lighter called the Bangor, in the waters of the port

202 U. S.

Argument for the United States.

of New York, which was in danger of being destroyed by fire. The sugar had been imported from a foreign country, was subject to duty under the laws of the United States, and at the time of the fire had not been delivered to the consignees, and was still in the possession and control of the customs officers. The duties on this sugar amounting to $6,000 had been paid to the Government.

Petitioner filed a libel in the District Court against the cargo to recover salvage compensation for services rendered in saving the sugar. The case resulted in a decree awarding the petitioner salvage, amounting to ten per cent of the value of the property saved, viz., $1,274.03. 108 Fed. Rep. 277. In fixing this sum the District Court considered the invoice value of the sugar only, excluding salvage upon the duties saved to the United States by the salving services.

Upon these facts the District Court awarded the appellant. ten per cent upon the amount of the duties saved to the United States, namely, $600, with clerk's fees, $3.60. 130 Fed. Rep. 480. The Circuit Court of Appeals affirmed this judgment, 137 Fed. Rep. 455, whereupon the United States applied for this writ of certiorari.

Mr. J. C. McReynolds, Assistant Attorney General, for the United States:

The District Court has no jurisdiction.

Unless granted by the Tucker Act the trial court was without authority to afford relief. Obviously the present controversy, if provided for at all, must be one arising out of contract, expressed or implied, or from damages, in respect to which respondent would be entitled to redress against the United States in a court of law, equity, or admiralty if suable as a private individual.

There was no contract, expressed or implied, between the Government and the respondent and no such thing is alleged in the petition. The services to the cargo were purely voluntary. The claim is not one in respect of which respondent

Argument for the United States.

202 U.S.

would be entitled to redress in a court of law, equity, or admiralty against a private individual. No recovery, either at law or in equity, is possible for purely voluntary services.

A proceeding in admiralty in personam against a private individual for salvage allowance is not permissible unless the service was performed "at his request and for his benefit," or unless in some way a proceeding in rem against the thing salved has become impossible-as, e. g., by clandestine removal or destruction after delivery to the owner. Benefit, however great, from salving a cargo cannot support a claim in personam for the services rendered. Admiralty Rule 19; The Sabine, 101 U. S. 384, 389.

It follows that if the Government were subject to suit as an individual, respondent's claim for saving the cargo in question could not be enforced by a proceeding in personam against it.

Section 2984, Revised Statutes, specifies the sole method assented to by the Government for securing refund of duties paid upon merchandise afterwards destroyed. The courts have no jurisdiction of an original proceeding to enforce such a claim-whatever might be their power in a case where the Secretary should refuse to perform his duty.

The claim set up in the present proceeding must be regarded as under the revenue laws. Such claims are not within the jurisdiction of the courts, since those laws constitute a distinct and exclusive system of collection and redress. Nichols v. United States, 7 Wall. 122, 131; D. M. Ferry & Co. v. United States, 85 Fed. Rep. 550. See also State Railroad Tax Cases, 92 U. S. 614; Auffmordt v. Hedden, 137 U. S. 324; Treat v. Staples, 1 Holmes, 5; S. C., 24 Fed. Cas. 14,162.

Upon the facts, respondent's claim is without merit. What respondent did was purely voluntary and such services, however meritorious or beneficial, create no obligation enforceable against the beneficiary either in law or equity.

The maritime law, for the purposes of public policy, and for the advantage of trade and commerce, imposes in cases of

202 U. S.

Argument for Respondent.

salvage a jus in re, a liability upon the thing saved—a liability which is a special consequence arising out of the character of mercantile enterprise, the nature of the sea perils, and the fact that the thing saved was saved under great stress and exceptional circumstances. Kennedy on Civil Salvage, 6; Falcke v. Scottish Imperial Ins. Co., 34 Ch. Div. 234, 248; The Blaireau, 2 Cranch, 240, 265; The Emblem, 8 Fed. Cas. 4434.

Salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to, or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued. Cope v. Vallette Dry Dock Company, 119 U. S. 625. The right does not arise on saving property of other kinds which may have been moored afloat, and have got adrift, such as a raft of timber, a buoy, or a floating dry dock. Carver's Carriage by Sea, 3d ed., § 322.

The foundation of the admirality jurisdiction in the awarding of salvage is the power of enforcing the maritime lien obtained on property saved by salvors. The Cargo Ex. Schiller, 2 L. R., P. D. 145, 149; The Emblem, 8 Fed. Cas. No. 4434; The Independence, 13 Fed. Cas. 7014; The Sabine, 101 U. S. 384.

Salving charges cannot be enforced for rescuing bills of exchange and other evidences of debt. The Emblem, 8 Fed. Cas. No. 4434. Salvage cannot be awarded for saving the United States mails because not subject to detention and sale. The Merchant, 17 Fed. Cas. No. 9435.

Mr. R. D. Benedict for respondent:

The United States Government is liable to pay salvage. In this the Government differs from an ordinary shipowner only in the form in which it must be sued, and in the fact that no attachment can be made of its vessel to which the service was rendered. But its liability to pay salvage-not compensation for work, labor and services, but salvage, with all that the word means-has been affirmed by the Supreme Court, by the

Argument for Respondent.

202 U. S.

Court of Claims, by the Circuit Courts of Appeals for the Fourth and Second Circuits, by the Circuit Court for the District of Connecticut, and by the District Court for the Northern District of California, and has never been denied by any court. The Davis, 10 Wall. 15; Gould v. United States, 1 C. Cl. 184; Bryan v. United States, 6 C. Cl. 128; McGowan v. United States, 20 C. Cl. 147; United States v. Morgan, 99 Fed. Rep. 570; Hartford & N. Y. Trans. Co. v. United States, 138 Fed. Rep. 618; Rees v. United States, 134 Fed. Rep. 146.

The United States, in relation to the proprietorship of real or personal property, has, in its public capacity, like authority and remedies, and is subject to like liabilities in dealing with it through legal agencies or otherwise as natural persons. Eight Hundred and Fifty-eight Bales of Cotton, Bl. Pr. Cas. 325.

When the United States allows itself to be sued it must stand before the court like any other party before the court, affected by the same considerations as any other party. Cook v. United States, 10 Blatch. 59; Eight Hundred and Fiftyeight Bales of Cotton, supra; United States v. Bostwick, 94 U. S. 53, 66.

It is claimed that the suit for salvage cannot lie here, because the United States did not request the service. That proof of a specific request is not necessary is held in all the cases above cited, for in none of them was there proof of any specific request by the United States. The "implied contract growing out of the successful event of the service," United States v. Morgan, 99 Fed. Rep. 572, has always been held sufficient ground for the jurisdiction of the court to award salvage.

There is no merit in the claim that the Secretary of the Treasury might refuse to repay the duties under § 2984, Rev. Stat.

The supposition that the Government will not do justice is not to be indulged. Gibbons v. United States, 8 Wall. 269; Supervisors v. United States, 4 Wall. 435, 446; Galena v. Amy, 5 Wall. 708; French v. Edwards, 13 Wall. 511.

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