The Masters and Raynor.

passing and repassing, and owing to a curve or bend in the river just above, and the strength of the current, the whole channel is needed for safe navigation, unobstructed by vessels lying at anchor. Many witnesses were sworn on both sides as to the safety and propriety of a vessel lying at anchor at the point in question, but I think their testimony may all be summed up in this: that there are safer places for vessels to lie at anchor, and where they would be a less obstruction to navigation, both above and below the place in question, and which the bark might have reached if she had chosen to do so. No law or custom was shown, however, prohibiting vessels from anchoring there, but, on the contrary, it appeared that others had anchored there, and the legal right to do so was conceded. also appeared from the proofs that there was room on both sides the bark for vessels and tows to pass in safety, by the exercise of due care and diligence. I must hold therefore that the bark had a legal right to lie at anchor where she did.

It

While so holding, however, I must also hold that, having selected a comparatively insecure and inconvenient place to lie at anchor, no matter whether from necessity or from choice, she was bound to exercise the greatest degree of care and diligence in keeping watch and ward for her own safety and the safety of passing vessels. A vigilant anchor watch was essential under the circumstances, and the want of it would constitute a fault which could not be overlooked. Had the bark

such a watch?

The only man on deck was Druillard, the pilot, and he was not there in the capacity of or on duty as a watch at all. In fact, the purpose for which he was there, as stated by himself, shows that there was not only no watch as such, but that there was no pretense of any. He says, in substance, that he was there for the purpose of keeping himself warm by walking. It is true, when he accidentally, or otherwise, noticed the close proximity of the tow, he called the mate to put the wheel to port, but even this was not done in time to effect anything. If there had been a vigilant watch on board the bark, such as the circumstances in which she had voluntarily placed herself

The Masters and Raynor.

imperatively demanded, the danger would have been seen and the helm put to port, and thus by the force of the current the stern of the vessel would have been worked over against the wind, and the jibboom turned off to starboard in time, in all probability, to have cleared the schooner entirely, or, at all events, so nearly as to have much lessened the damages. If, in addition to this, the cable had been allowed to run out and the vessel to drop down the stream with the current, the collision would have been avoided with almost absolute certainty.

Because the bark had not such a watch, and did not take any effective measures to avoid the collision, she must be held in fault (see 1 Pars. Ship. & Adm. 576, 577, and cases cited in note upon p. 577).

But this does not exonerate the tug from inquiry into her conduct, or from responsibility, if she was also in fault. It is contended, on behalf of libellant, that the tug ought to have taken the Canadian side of the river, where there was more room, and where the wind and current would have carried the tow away from the bark, instead of bringing it directly down upon her. The excuse made on behalf of the tug for not taking the Canadian side is that there were other vessels within that space at the time, making it dangerous to take that side. I do not think that it appears by the proofs that the position of those other vessels was such as to make it any more dangerous to pass on that side than on the other. But, as we have seen, there was room to pass on either side, and the tug, no doubt, had the right to pass on either side which in the best judgment of her master was the most feasible under the circumstances as they appeared to him at the time. Having made his choice, however, and that choice involving, as it did, the neces sity of crossing the wind and current, the inevitable effect of which was as apparent then as it was afterwards, it became the duty of the master of the tug to make due allowance for that effect. This, of course, he did not do, or the collision would not have occurred (see The New Philadelphia, 1 Black, 76). The tug is therefore held also in fault.

Both vessels being in fault, it follows that each must bear

.

1

The Arctic.

moiety of the damages. A decree must be entered in favor of libellant against the tug for a moiety of his damages and costs, referring it to a commissioner to ascertain and report the damages, and dismissing the libel as against the schooner.

THE ARCTIC.

NOVEMBER, 1871.

PRACTICE.-SECURITY FOR COSTS IN WAGES CASES.

A seaman suing for his wages cannot be compelled to give security for costs for the sole cause that the amount claimed is small, and the indebtedness is denied in the answer.

MOTION for security for costs.

The libel in this case was for seaman's wages. The answer denied there was anything due to libellants. The claims, as set up in the libel, were for small amounts, being for $5, and $11 46, respectively. The motion was founded upon the facts that the claims set up are small in amount, and the denial of any indebtedness contained in the answer.

Mr. W. A. Moore, for the motion.

Mr. E. E. Kane, contra.

LONGYEAR, J. It is conceded that under Rules 9 and 10 of this Court, this motion is addressed exclusively to the discretion of the Court. Unless the Court is prepared to say that in all such cases where the amount claimed is small and the indebtedness is denied, without any showing of improvidence or bad faith in the bringing of the suit, security for costs shall be given, the motion in this case cannot be granted. The exemption of seamen from giving security for costs in

The Arctic.

suits for wages, under the proviso to Rule 9, is general. No distinction is made as to the amount claimed, and I can find no authority for the Court to make any such distinction without an amendment or abrogation of the proviso. And to say that security shall be required in all cases where the indebtedness is denied by the answer, without any showing of bad faith, would be a practical abrogation of the proviso in a great majority of cases; because, that is usually the very question involved, and to try which the suit is brought.

Common seamen are often transient persons, having no fixed place of residence, and generally of no pecuniary responsibility, and therefore unable to give security. It is upon this presumed inability that the exception is founded. To require them to give security in all cases would be a virtual denial of justice, and would place them at the mercy of their employers. They must not, however, abuse the privilege; and in all cases where the presumption of their inability to give security is overthrown, or it is satisfactorily shown that bad faith has been practiced in bringing the suit, or that the suit was unnecessarily brought, the Court would not hesitate to exercise the discretion reserved by Rule 10, and require security to be given (See Wheatley v. Hotchkiss, 1 Sprague, 227).

Motion denied.

1

The Silver Spray's Boilers.

THE SILVER SPRAY'S BOILERS.

FEBRUARY, 1872.

SALVAGE UNDER CONTRACT.-LIMITATION TO AMOUNT AGREED on.—

SUBSALVORS.

Services rendered in pulling boilers out of a navigable river, into which they had fallen from a steamboat, are salvage services.

An agreement for a specific sum dependent upon success does not alter the nature of the service as a salvage service, but only furnishes a rule of compensation.

Such an agreement will not be set aside and a commensurate salvage awarded because it proves to be a hard one for the salvor.

A person hired by the salvor to assist him, with knowledge that his employer is operating under a contract, is also limited in the amount of his recovery by the contract price, and the fact that he is misinformed as to the terms of the contract, creates no additional liability on the part of the property or its

owners.

On the libel of David Beard and Robert McArthur, for salvage.

The libel alleged the loss of the boilers from the wreck of the Silver Spray, in Lake Huron, while the wreck was being raised (the vessel having been sunk by a collision), the abandonment of the boilers by the owners and insurers, and the raising and saving of the same by the libellants; that the value of the boilers was $2,000; and that the value of the libellants' labor, time, skill, expenses and use of machinery and teams were, in all, $1,825, for which they claim a lien on the boilers.

The answer of John H. Moore admitted the boilers dropped into the water from the wreck while being raised, substantially as alleged in the libel, except that it happened in St. Clair river instead of Lake Huron, but denied that the same were lost or abandoned, as alleged; admitted that libellant McArthur raised the boilers and put them on shore, and at some trouble and expense, but not to the value and amount alleged, and