cover the $9,000 which the bank paid to cross-writ. On the original writ of error COPPER RIVER PACKING CO. v. ALAS cient vessels to handle shipper's seasonal quirements with reasonable promptness H not discriminatory, nor to give unreasona preference (46 USCA § 812). Contract in which steamship [1] In our opinion the District Judge was clearly right in refusing to allow the bank to 1. Shipping 103-Contract to furnish s be held liable for the $9,000 paid to Evans upon delivery of the deeds. According to the undisputed evidence, the owners of the land were not named, Evans held an option to purchase, and plaintiff knew that a clear title could not be delivered without his consent. So far as the bank is concerned, however it may be as between Biddle and Evans, the method of payment of the purchase price was not in violation of instructions. If the bank had paid it to the owners, and they in turn had settled with Evans, the result would have been the same, as the amount Evans received was paid to him with their consent. agreed to transport property of salmon pa The mere fact that steamship compa might violate the law by giving undue pref ences, within Act Sept. 7, 1916, § 14, as amer steamship company will not violate law 3. Shipping 132(3)-Presumption is th carrying out contract of affreightment. Presumption is that steamship company, carrying out contract of affreightment, will co form to the requirements of the law. 4. Shipping 132 (6)-Whether steamsh company furnished vessel with reasonab promptness, as specially contracted, held fa question for jury. In salmon packing company's action f damages for breach of special contract of freightment, question whether defendant fu nished vessel with reasonable promptness, required by contract, held one of fact for ju 5. Shipping 132 (3)-Burden of excusing fusal to transport shipment for salmon pac ing company, in violation of special contra held on steamship company. Where steamship company contracted furnish sufficient vessels to handle salmon pac Defendant in error takes nothing by his ing company's shipments with reasonab the ded ith ΚΑ 0 d COPPER RIVER PACKING CO. v. ALASKA S. S. CO. promptness, and packing company proved ca- 6. Shipping 132(5)—Exclusion of evidence In action for breach of special contract In Error to the District Court of the Action by the Copper River Packing Kerr, McCord & Ivey, of Seattle, Wash., for plaintiff in error. 13 All company agreed to furnish sufficient vessels to handle the north-bound shipments in the spring and the south-bound shipments in the fall "with reasonable promptness and dispatch, and at other times during the season to furnish such additional vessels, either direct or by detours from a regular route, as may be reasonably required by the necessities of the second party's business." The packing company was to ship exclusively by the steamers of the defendant company. property to be transported was to be received, held, carried, and delivered by the steamship company subject to the conditions of its regular and then current shipping receipt, and, except as otherwise specifically provided, to the rules, rates, and conditions of the then current freight tariff. Provisions covered specific rates upon fish in cans and upon empty cans. In consideration of the obligations on the part of the steamship company to furnish such service as might be required, "to reasonably take care of second party's necessities," it was agreed that, in case any freight covered by the agreement should be transported to or from the wharf by any other vessel than one belonging to the steamship company, such violation of the agreement would give the shipping company an option to terminate the agreement upon notice to the packing company. The amended complaint averred that the Alameda was one of the boats operated by defendant; that plaintiff tendered to defendant for transportation on the Alameda 2,500 cases of cans on her voyage leaving Seattle about August 9, 1922, for delivery to Nellie Juan, and that five days before the Alameda sailed defendant refused to carry the cans, in Lawrence Bogle, Cassius E. Gates, and HUNT, Círcuit Judge. Plaintiff, a salmon packing company, has a cannery at Nellie Juan, Alaska, with a capacity of from 1,200 to 2,000 cases of salmon per day. The season begins about July 4th and ends about the 18th of August of each year. The steamship company and plaintiff entered into a contract in March, 1922, by the terms of which the steamship company would deliver or receive at ship's tackle all the property owned or controlled by the packing company covered by the agreement, which would require transportation to or from the wharf, it being understood that the bulk of the packing company's north-bound shipments moved in relatively large shipments in the spring and south-bound shipments in relatively large shipments in the fall. The steamship the Alameda could have delivered the cans if they had been shipped to plaintiff not later than August 15th; that the cans measured 60 tons and about 13 tons dead weight; that plaintiff was obliged to pack its red salmon in a way which caused it to lose large profits, to its damage in the sum of $7,375. Defendant pleaded its general obligations as a common carrier, lack of space, and lack of reasonable notice. In presenting its evidence plaintiff offered the contract, but upon objection the court ruled that it was not admissible unless the shipping receipt was included; also because, under the allegations of the complaint, it was not averred that there was available space on the Alameda. Thereupon, in view of what the court said, the plaintiff amended its complaint by alleging that there was available space for carrying the cans, and 14 22 FEDERAL REPORTER, 2d SERIES the contract and receipt and tariff were put the order to ship was received and refused on in evidence. The testimony was that plaintiff shipped all of its goods over defendant's line; that the Alameda had a capacity of about 1,400 tons; that about August 1, 1922, it was discovered that plaintiff would need 2,500 cases of half-pound flat cans in Alaska, and telegraphed on August 4th to the American Can Company at Seattle to "ship on the Alameda leaving Seattle August 8, 2,500 cases," etc; that the can company replied under date of August 5th, stating they could not get space on the Alameda, but could possibly make "Watson 15th or Northwester 19th. Every thing loaded. Advise at one if want cans then." The telegraphic reply, offered, but excluded, was to the effect that, if the can company could not ship the cans via the Alameda, not to ship at all. It was proved that Nellie Juan is about 12 miles off the regular route of the defendant's ships; that the 2,500 cases of cans would occupy a space 10x10x25 feet long; that if the cans had been shipped on the Alameda they would have arrived at Nellie Juan on the 14th of August. Thereupon plaintiff sought to prove that it had red salmon sufficient to fill the cans referred to in the telegram. Defendant objected, and the court held that plaintiff must first prove that there was no space available on the Alameda before it could go into the question of damages at all. Plaintiff then offered to prove that in the latter part of March, 1922, its representative told the manager of the steamship company that it would require a quantity of cans the latter part of July or first of August on some vessel sailing about that time, and that the agent of the shipping company said he knew what the requirements were, and that defendant could be depended upon to supply the cans on one of its boats leaving about that date; that, if the cans had been delivered on the Alameda, plaintiff could have packed them, and that the market value, less the cost of packing, would have been $10,575, which would have been the measure of profit that plaintiff would have realized, had defendant not violated its contract of shipment; that in order to minimize the damage plaintiff packed the red salmon in tall cans, which reduced the damages to $7,375; that plaintiff notified the steamship company on August 2, 1922, that it needed cans, and that the loss would be almost irreparable if the defendant company failed to deliver them; that the steamship company never began loading the Alameda until the day before the vessel sailed on August 9th, and that when August 5th the ship had not commenced to load; that the traffic manager of the steamship company stated in October, 1922, that the shipping company could have shipped the cans, and could and would have delayed shipment of certain mining machinery consigned to a copper company in Alaska in which the defendant company was financially interested. All the offers were rejected; exceptions were saved. Motion for nonsuit was granted, and judgment was entered in favor of defendant. [1, 2] In our opinion the contract—a special one of affreightment-makes no unfair or unjustly discriminatory arrangement against any shipper in respect to cargo space, due regard being had for the proper loading of the ship and the available tonnage; nor does it give any undue or unreasonable preference or advantage to defendant or its traffic. Act of Sept. 7, 1916, § 14 as amended by Act June 5, 1920, 41 Stat. 996, § 20 (46 USCA § 812 [U. S. Comp. St. Ann. Supp. 1923, p. 2341]). It was not a booking of the cans; the contract was not a specific agreement with defendant for the reservation of space for transportation of the cans on a particular ship in advance of its sailing date. Ocean S. S. Co. v. Savannah Locomotive Wks., 131 Ga. 831, 63 S. E. 577, 20 L. R. A. (N. S.) 867, 127 Am. St. Rep. 265, 15 Ann. Cas. 1044; Merchants' & Miners' Trans. Co. v. Granger & Lewis, 132 Ga. 167, 63 S. E. 700. The mere fact that the steamship company might violate the law by giving undue preferences, such as loading plaintiff's cans on a fixed day and expediting freight of a particular shipper, to the disadvantage of prior shippers who offered freight of a similar character for shipment to the same point, does not invalidate the agreement to furnish such service as might be required to take care, reasonably, of the necessities of the packing company. Reasonably to take care of such necessities is explained by the expressed mutual understanding of the parties that the bulk of the packing company's shipments of cans to Alaska would require movement in the spring and summer, which in turn would demand that the steamship company furnish in number and capacity sufficient vessels to handle such freight with reasonable promptness as might be required. [3] The presumption is that the defendant company, in carrying out the contract, would conform to the requirements of the law. In American Railway Express Co. v. Lindenburg, 260 U. S. 584, 43 S. Ct. 206, 67 L. Ed. COPPER RIVER PACKING CO. v. ALASKA S. S. CO. 414, the Supreme Court, referring to an in- Davis v. Cornwell, 264 U. S. 560, 44 S. [4] Obviously, that any particular vessel 15 ant leaving Seattle about August 9th. The court, therefore, should have submitted the issues to the jury. [5] We think the court erred in requiring plaintiff to prove that there was space available aboard the Alameda at the time of the tender of the freight. It would be practically impossible, ordinarily, for shippers to know whether a carrier had space for a limited quantity of merchandise offered, and in the present case, inasmuch as the contract fixed the obligation to carry with reasonable promptness, when plaintiff proved the capacity of the defendant's ship and that demand was made for space for the cans, and that tender of the freight was made and refused several days before the ship was loaded, its case was made out, and the burden of showing any valid legal excuse that may have existed for default in performance was cast upon defendant. Clark v. Barnwell, 12 How. 272, 13 L. Ed. 985; Columbus R. Co. v. Columbus, 249 U. S. 399, 39 S. Ct. 349, 63 L. Ed. 699, 6 A. L. R. 1648; Inter-Coast Steamship Co. v. Seaboard Transportation Co. (C. C. A.) 291 F. 13. [6] The complaint having alleged special damages, including loss of profits, the court should have permitted plaintiff to prove that before the contract was executed plantiff's and defendant's agents had a conversation wherein plaintiff's agent told defendant's agent that it would require a quantity of cans about the 1st of August, and that after the contract was executed the defendant's agent stated that he knew what plaintiff's requirements were, and defendant could be relied upon to transport the required cans on one of its ships, and that on August 2d plaintiff notified defendant that it needed the cans, that the fish were ready to pack, and that unless the cans were delivered the loss would be very heavy. 10 C. J. 316; Morrow v. M. P. R. Co., 140 Mo. App. 200, 123 S. W. 1034. Those were matters which arose from the circumstances and character of the particular case, and of which defendant must have had knowledge at the time of the making of the contract. 8 R. C. L. 459, § 27; 1 C. J. § 199. The judgment is reversed, and the cause is remanded, to be proceeded with in accordance with the views herein expressed. 16 22 FEDERAL REPORTER, 2d SERIES SOUTH AMERICAN S. S. CO. et al. v. AT- pany and others. Decree for libelant (19 LANTIC TOWING CO. Circuit Court of Appeals, Fifth Circuit. October 24, 1927. No. 5099. 1. Salvage 48-Evidence held to show that warning from tug to change course prevented stranding and probable total loss of steamship. Evidence held to show that steamship which had listed about 20 degrees because of shifting of its cargo was in imminent danger of going aground in attempting to enter river channel and being a total loss, when warning to change her course was given by tug, and that such warning, being heeded, prevented stranding and probable total loss. 2. Salvage 7-Standing by in danger and rendering necessary assistance constitutes "salvage service." Standing by in a situation of danger and rendering whatever assistance is needed constitutes "salvage service." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Salvage Service.] 3. Salvage 18-Pilot rendering salvage services beyond his ordinary duty is entitled to salvage. Even a pilot who goes beyond his ordinary duty and renders services of a salvage character is entitled to salvage. 4. Salvage ~7-Warning to change course preventing stranding held a "salvage service." Warning to change her course, given by a tug to a steamship which, heavily listed by shifting of cargo, was attempting to enter river, which warning saved the ship from stranding and probable total loss, held a "salvage service." 5. Salvage 26-In fixing salvage award, value of steamship, cargo, and fact that lives of crew were in peril should be considered. In determining the amount of an award for salvage service to steamship, it is proper to take into consideration not only the value of the steamship and cargo, but also the fact that the lives of its officers and crew were in peril. 6. Salvage 27-$5,000 award to tug for salvage services preventing stranding and probable total loss of steamship valued at $65,824 and cargo valued at $83,000, held excessive and will be reduced to $3,000. Where value of heavily listed steamship was $65,824, and her cargo $83,000, award of $5,000 to tug valued at $60,000 for salvage services by warning of danger, standing by, convoying, docking, preventing stranding, and probable total loss of steamship, held excessive, and will be reduced to $3,000; danger to which tug was exposed being small. Appeal from the District Court of the United States for the Southern District of Georgia; William H. Barrett, Judge. Suit by the Atlantic Towing Company against the South American Steamship Com F.[2d] 394), and respondents appeal. Modified and affirmed. George T. Cann, of Savannah, Ga., and James W. Ryan and Leonard J. Matteson, both of New York City (Anderson, Cann & Cann, of Savannah, Ga., and Bigham, Englar & Jones, of New York City, on the brief), for appellants. T. M. Cunningham, Jr., of Savannah, Ga. (Lawton & Cunningham, of Savannah, Ga., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is an appeal from a decree for $5,000, awarded as salvage for services rendered by appellee's tug Henry W. Grady to appellants' steamship South American. Appellants contend that the services rendered did not rise to the dignity of salvage services, and that in any event the amount awarded by the decree is excessive. [1] While the South American was on a voyage up the Atlantic Coast from Cuba to New Jersey, her cargo shifted and caused a list to port of about 20 degrees. A northeast wind was blowing, the sea was rough, and it was found to be impossible to correct the list. Thereupon the master sought the port of Savannah, giving notice by radio to the ship's owners in New York, who notified their agent in Savannah, and he in turn stated to appellee that the ship was expected to arrive at the entrance to that port at about 4 o'clock in the afternoon of September 26, 1923. The agent testified that appellee agreed to go out and meet the ship and render any assistance, but not to make any charge if the master did not accept his services. Appellee's evidence was to the effect that the agent gave information as to his ship's condition, and stated that it was on its way to Savannah, and that appellee agreed to send out a tug, but denied that there was any agreement about compensation. The South American arrived off the coast some four miles to the north of the regular entrance to the Savannah river, and at about 5 o'clock in the after. noon was sighted by appellee's tug Grady to the northeast near Gaskin's Bank, which was marked by a buoy. The tug intercepted thesteamship about dark between Gaskin's Bank and the shore. The master of the tug stated he had come to give assistance at the request of the ship's agent, and offered a hawser. The master of the South American declined to take the hawser, but did not dismiss the |