Pike v. Balch

Where a voyage is broken up by ungovernable circumstances, the master, acting in good faith for all concerned, and under supreme necessity, is authorized to sell the ship and cargo. But the master acts for the owners or insurers only, because they cannot act for themselves; his acts will be valid to the extent of then; extreme necessity. Before resorting to a sale of the cargo, if its situation will admit of it before it will probably be lost, he should communicate with the owners; and to effect such communication, he is bound to use any available means within his power. Where he has sold the cargo, whether, under all the circumstances, he has exercised a sound judgment and discretion, is a question of fact to be determined by the jury. Sales at auction fall under the provisions of B. S., c. 136, § 4. And property exposed at such sale does not become vested in the highest bidder by being fairly knocked off to him. The auctioneer, after he has knocked off property, if he recognizes a higher bid, may re-open the sale. Until some of the requirements of the statute at such sales are fulfilled, the right to the property sold does not pass, even to the highest bidder. Whether certain proceedings at an auction sale, proved to have transpired between the purchaser and another person present, did not prevent fair competition and so made the sale invalid, may properly be left to the determination ’of the jury. Salvage can only be obtained in courts of admiralty jurisdiction. Where one claims title to property under an unlawful sale, he cannot after-wards claim possession against the owner for disbursements made and services rendered in saving the property.

On Report from Nisi Prius, Appleton, J., presiding. Replevin. Plea, non cepit, and a brief statement that the property described in the writ was the property of defendants and not the property of the plaintiff; and that plaintiff had no right to the possession of the property at the time of the service of the writ. The officer who served the writ in this case, had another writ of replevin against the same defendants in favor of one William Todd; and the property taken on both was a cargo of lumber which had been shipped by the plaintiff and William Todd, on board the schooner Baltimore, for New York. These shippers belonged to Calais where the cargo was taken in. In a week or more after the vessel left port, she went ashore in a calm and fog, on an island called the " old man,” off Little Machias Bay, and was much damaged upon the rocks, and full of water. The accident occurred on May 18, 1852, upon that part of the island exposed to the open sea. A protest was noted, surveyors called, and on the next day, the captain caused the vessel to be stripped of her sails and rigging, to be advertized and the vessel and cargo sold at public auction the same afternoon. The defendants claimed title to the cargo through that sale. One point made was, as to the fairness of the sale, but the principal question at issue, and upon which most of the evidence bore, was its necessity. No means were taken to notify the plaintiff of the disaster, or to request any advice as to what measures should be taken. It appeared, that when the captain went to a notary at Machias Port, to make his protest, he was advised that there was a telegraphic station at Machias, which communicated with Calais, and that his ride would not have been an hour longer by coming that way; and was advised to go there and give notice to the owners, but the captain thought it of no use as the danger to the cargo was so great. It was testified that the vessel might' have been got off by a steamboat, but how far it was, where one might be obtained, did not appear. A tender was made by plaintiff, on May 26, 1852, for the amount paid for the cargo, and expenses of taking it out, which not being accepted, and the defendants claiming the cargo as their own, this suit was commenced. Several requests were made by the defendants for instructions to the jury, among which the 2d, 3d, 7th, 8th, 9th and 10th were as follows; viz: — 2. That the true criterion for determining the occurrence of the master’s authority to sell, is the inquiry, whether the owners or insurers, where they are distant from the scene of stranding, can by the earliest use of the ordinary means to convey intelligence, be informed of the situation of the vessel and cargo in time to direct the master before they will probably be lost; that, if there is a probability of loss, and it is made more hazardous by every day’s delay, the master may then act promptly, to save something for the benefit of all concerned, though but little may be saved; that there is no way of doing so more effectual than by exposing the vessel and cargo to sale, by which the enterprise of such men is brought into competition with such as are accustomed to encounter such risks, and’ who know from experience how to estimate the probable profits and losses of such adventures. 3. That, where a vessel is wrecked or stranded on an island in the open ocean, and the vessel and cargo are in imminent peril of immediate loss, and there is a telegraph station within a distance of twenty miles by sea and land from the scene of the wreck or stranding, it is not the duty, of the master to leave the vessel and cargo and proceed to such telegraph station, and communicate with the owners prior to a sale for the benefit of all concerned. 7. That, if the jury should find, that the sale of the cargo of schooner Baltimore was fairly conducted and the lumber was fairly knocked off to Stevens, for himself and the other defendants, as the highest bidder, for §241; and that was the fair value of the property, and the highest bid heard and known by the auctioneer; although a higher bid may have been made, not loud enough for the auctioneer to hear, or not until the cargo had been knocked off to Stevens; the title to the cargo became thereby vested in them. 8. That, if they shall find, that the cargo was fairly knock•ed off to Stevens, as the highest bidder, at the best price which the property was fairly worth in the exposed situation it was at the time of the sale, it would not be the duty of the auctioneer, on a suggestion that a higher bid had been made, which he did not hear, to reopen the sale, and offer the property again for a higher bid. 9. That, if they shall find that the cargo was fairly knocked off to Stevens as the highest bidder, for himself and the other defendants, the property thereby became vested in them, and any arrangement which Stevens may have made with Cole subsequent to its being so knocked off, by the payment of a sum of money for the purpose of pacifying Cole, could not invalidate the sale, or deprive the defendants of the benefit of their purchase. 10. That if they shall find, that the sale of the cargo to the defendants was invalid by reason of the master’s not consulting the owner, and taking his direction before the sale, and that the absolute title of the defendants thereby fails; and shall also find that the cargo was relieved from its peril and brought into a place of security, and saved by the enterprise, labor, expense and risk of the defendants; they were entitled to a liberal reward out of the property saved; and had the right of possession of the property until their claim to salvage should be adjusted, settled and paid •according to the principles of the maritime law. The presiding Judge gave the second request, substituting for the words “ the earliest use of the ordinary means to convey intelligence,” “ any available means in the power of the master.” The third request was refused, with the remark that it was for the jury to say whether the master exercised á sound judgment and discretion in the matter. The seventh was given with the qualification, that if a higher bid was in fact made, which was known to, or recognized by, the auctioneer, and the sale was reopened or proposed to be reopened, if desired, the property would not vest in defendants. The eighth was given, with the remark, that it was not the duty of the auctioneer on a mere suggestion that there had been a higher bid; but if it was affirmed that there was a higher bid, and he was satisfied of its truth, it was then his duty to reopen the sale. The ninth request was complied with, excepting the qualification, that if the transaction between Stevens and Cole was before the sale was closed, then it was for them to say whether it was not preventing fair competition at the sale. The tenth, for the purpose of the trial, was refused. A verdict was returned for plaintiff, and damages were assessed at $1,00. The jury also expressed an opinion that defendants were entitled to- salvage, but this part of the verdict was stricken out. If the Court should be of opinion, that the defendants had a legal claim for salvage, and had the right of possession of the property until their claim of salvage should be adjusted, settled and paid according to the principles of the maritime law, then the plaintiff was to become nonsuit, and a return of the property ordered; but if they had not the right of possession, then judgment was to be entered on the verdict, unless the presiding Judge erred in refusing or modifying some or any of the requested instructions by the defendants, in which event there was to be a new trial. 1. The second request should have been given, without the change made in it by the Judge. Brig Sarah Ann, 13 Pet. 387; 2 Sum. 206; 3 Rob. Admr. Cases, 243; Am. Law Reg. Nov. 1852, p. 48. 2. The instructions in the third request should have been 'given; and the remarks of the Judge in refusing to give it, were erroneous. Brig Sarah Ann, before cited. 3. The seventh request was sound law and should have been given without the qualification. U. S. Dig. vol. 9, p. 59 ; 1 Louisa. Rep. 11; Long on Sales, Rand’s ed. c. 5, p. 228, and pp. 240 and 245; 2 Kent’s Com.. 2d ed., 531. So also should the eighth request have been complied with. 4. The ninth request was proper, as it was proved, that the management between Stevens and Cole, was subsequent to the cargo’s being knocked off to Stevens, as the highest bidder. 5. The Judge, in order to settle the facts of the case, withheld the 10th requested instruction, in doing which he erred. Sch. Emulous and Cargo, 1 Sum. C. C. R. 207; The Centurion, Ware’s Rep. 477; Brig Sarah Ann, before cited; 2 Bouvier’s Law Dict. 377, title, Salvors; 2 Saund. Plead, and Ev. 760; Ingraham v. Morton, 15 Maine, 373; The Emblem, Davies, 61; China v. Russell, 2 Blackf. 172; Walpole v. Smith, 4 Blackf. 304. 6. The jury have negatived all fraud at the sale, by saying that the defendants should have salvage. Gardiner v. Morse, 25 Maine, 140; Phippen v. Stickney, 3 Met. 384. 1. The master had no authority to sell the cargo under the circumstances. 2 Am. Leading Cases, 442; Center v. Am. Ins. Co. 4 Wend. 45; Hall v. Franklin Ins. Co. 9 Pick. 466; Bryant v. Com. Ins. Co. 13 Pick. 543, and 18 Pick. 83. 2. It is the master’s duty to use any available means in his power to communicate with the owners. Various phrases have been used by the Judges, but they all express one thing, as appears by the cases already cited. Vid. also Wilson v. Miller, 2 Starkie’s R. 1; Freeman v. East India Co. 5 Barn. & Ald. 617; Petapsco Ins. Co. v. Southgate, 5 Peters, 601. 3. When the sale is not justified by the circumstances, it is simply void, and cannot affect the owner’s right to recover. Eaton v. Amer. Ins. Co. 7 Cowen, 582. The facts show that the master could have communicated readily with the owners, either by telegraph or a messenger, and not have delayed the sale one hour. And when there is an opportunity for the owner to act, the authority of the master ceases. 4. The sale itself was fraudulent. Auction sales are within the statute of frauds. Until the auctioneer makes his memorandum in writing, the bidder at such sale is not bound. Martin v. Dana, 13 Met. 385; Burke v. Haley, 2 Gilman, 614; Cleaves v. Foss, 4 Maine, 1; Alna v. Plummer, 4 Maine, 258; 2 Starkie Ev. 68. 5. No claim to salvage can be set up. In setting-up ownership, the defendants waived salvage. Even a mortgagee or pledgee, when they attach the mortgaged or pledged property, waive their previous claims. Libby v. Cushman, 2 Maine, 429; Brock v. Ingersoll, 11 Met. 232; Paul v. Hayford, 22 Maine, 236; 2 Hill on Mortgages, 20. 6. But this is not the proper court to try such questions. Admiralty jurisdiction of salvage cases is exclusive. Brown v. Fair American, 1 Pet. Admr. Rep. 91. 7. Besides they have forfeited all claims to salvage by conversón of the property. Salvage is forfeited by embezzlement on the part of the salvors. Sch. Boston and Cargo, 1 Sumner, 328; Hope, 3 Robinson, 215; Brown v. Fair American, 1 Pet. Admr. Rep. 87. 8. But even if salvors, they were not entitled to possession of the property. It is not necessary to secure such claim. Dr. Lushington v. Glasgow Packet, 2 W. Robinson’s Admr. Rep. 312. This property was not derelict, and any peculiar rights that attach to salvors of derelict property cannot attach to this.