The Marquette.

steam pump, etc., adapted to the purposes of wrecking. He was also the patentee of a new invention for raising sunken vessels, which consisted mainly in sinking casks filled with water, and then, after being fastened to the vessel, inflating them with air by the use of a steam pump and connecting tubes or pipes, and thus expelling the water and giving the casks a lifting power. Osborne, who was in charge of the work for the Northwestern Wrecking Company, applied to and obtained of the libellant a diver and the necessary armor and apparatus, including a hand pump. After working a short time it was found that the hand pump was not sufficient for the divers to operate with safety in so great a depth of water, and Osborne returned the hand pump and obtained libellant's steam pump. After working a few days longer, and not making much progress, Osborne returned to libellant with the diver, apparatus and pump, and had a settlement with him up to that time, and paid libellant what was then found to be his due, at the rate of $50 per day with the hand pump, and $75 per day with the steam pump, less a small deduction made by libellant at the request of Osborne. Osborne desired the use of the diver, etc., longer, but complained that they could not afford it at the price charged by libellant. A new arrangement was then entered into, and Osborne returned to the Marquette, with two divers who were in the employ of the libellant, the necessary armor and apparatus, and the steam pump, and taking with him, also, some of libellant's casks, to be used on his patented plan, and had the same for use in raising the wreck, thirty-four consecutive days, and until the vessel was finally raised. The divers, etc., were actually used twentyeight, and were idle six out of the thirty-four days. It is for this use, under the new arrangement, that the libellant brought this suit against the vessel.

During this time the libellant came along where the company were at work, on his way to Cleveland, with the vessel he had been raising, and left a small vessel called the Barbour, and his chains, anchors, additional casks, etc., and the samo were used by the company to some extent, but no additional

The Marquette.

claim is made for such use. On the Marquette being raised, she was taken to Detroit by the Northwestern Wrecking Company, and placed in Clark's dry dock, in complete fulfillment of their contract with the underwriters, and its interest of sixtenths in the vessel, her boats, etc., thereupon accrued to them, and the company intervened, and put in its claim and answer for the protection of that interest.

Mr. W. A. Moore, for libellant.

Where a lien has been created it will not be released except upon the clearest proof of an intention to release it (The Steamboat Fashion, Newb. 49; The Kimball, 3 Wall. 37; Peyroux v. Howard, 7 Pet. 325, 345; The A. D. Patchin, 1 Blatch. 414; Dike v. The St. Joseph, 6 McLean, 573).

Failure to prosecute by one set of salvors does not inure to the benefit of the salvors who do prosecute, but to the owners (The Ship Charles, Newb. 329).

Mr. H. B. Brown, for claimant.

It is unnecessary to consider whether if libellant's contract had been made directly with the owners for a sum certain, he could sustain a lien. He certainly could have no claim for salvage as such, for that is a contingent claim, and some of the cases would indicate he could have no lein upon the vessel (The Mulgrave, 2 Hagg. 77; The Independence, 2 Curtis, 350; The Island City, 1 Cliff. 210; Bondies v. Sherwood, 22 How. 214; Adams v. The Susan, 1 Sprague, 499; The Versailles, 1 Curtis, 353.

Libellant was a subcontractor, and clearly had no lien (Purinton v. Hull of New Ship, Ware, 556, 561; Smith v. The Steamer Eastern Railroad, 1 Curtis, 253; Southwick v. The Clyde, 6 Blackf. 148; Hubbell v. Denison, 20 Wend. 181; Burst v. Jackson, 10 Barb. 219; The Whitaker, 1 Sprague, 229, 282; Harper v. Hull of New Brig, Gilpin, 536; Ames v. Swett, 33 Maine, 479; Squire v. One Hundred Tons of Iron, 2 Ben. 21).

The Marquette.

LONGYEAR, J. The libellant and Osborne, both of whom were sworn as witnesses and testified in the case, agree that the divers were in the employ of the libellant, and that he was to be paid for their services, as well as for the use of the armor, apparatus, pump, etc. They also agree that libellant's compensation was not dependent upon success, but that he was to be paid at all events, whether the vessel was raised or not. It is true they do not say this in so many words, but the version which each gives of what the contract was under the new arrangement, admits of no other construction. They are also agreed as to the time, viz., thirty-four days, and that twentyeight of those were working days, and six of them they were idle. The main facts upon which there is any disagreement are as to whether there was a fixed rate of compensation agreed upon, or whether it was left to a quantum meruit, and as to whether the libellant knew or was informed of the character or capacity in which the company was operating, that is, that they were operating as contractors, and not as owners.

The libellant claims that the rate of compensation agreed upon was $75 per day when working, and half price, or $37 50, per day when idle. On this basis he claims as follows:

for which, with interest from October 1st, 1870, libellant claims. a decree in his favor against the vessel. On the other hand, the company claims that no fixed rate of compensation was agreed upon, but, on the contrary, that when Osborne complained that they could not afford to pay $75 per day, libellant told him to take the divers, etc., and use them, and he would be reasonable with them, or words to that effect, and that that was the agreement as to compensation. But, without pursuing this disputed point further now, I will proceed to the

The Marquette.

other disputed fact. And here I must hold that libellant had notice of the character or capacity in which the company was operating. Libellant, in his testimony, says, "I understood the Northwestern Wrecking Company had taken the job to raise the vessel, and had failed. I did not know how much they had taken the job for." He understood, then, that the company was not operating as owner, but had undertaken the raising of the vessel as a "job,” and the only point as to which he professes not to have been informed was how much they were to receive for the service. This is sufficient alone to settle this point. But there is further testimony which I think places it beyond all doubt that libellant knew, not only that the company was operating as contractor, but also the terms of the contract. Osborne, after producing in evidence the contract (which was in writing) between the Northwestern Wrecking Company and the underwriters, testifies positively and explicitly as follows: "I made known to Captain Falcon that we had such a contract; that I deemed it a good one, and that I wished him to go in with me and share in the results, etc. That was at the time we were at Beaver Harbor. He replied that he wanted nothing to do with the wreck-that he wanted the money. He said they were slow things to realize from. I told him we were to have six-tenths, and that she ought to be raised in a very short time-we deemed it a good contract." In this Osborne is not contradicted. On the libellant being recalled to the witness stand, and asked if any such conversation took place, says, "none that I recollect;" and this is all the denial he makes, which in fact is no denial.

But it is contended, on behalf of libellant, that the Northwestern Wrecking Company were in fact part owners of the vessel to the extent of the six-tenths which they were to have under their contract with the underwriters, in case of success, and which finally accrued to it. I cannot agree to this. The company was operating precisely the same as any salvors under a contract, and the agreement as to the six-tenths was simply fixing the quantum of compensation, in lieu of leaving it for after consideration between the parties, or to be determined by

The Marquette.

the court. Besides that, it was wholly conditional upon success, and it accrued to it only from the time the contract was fully performed. By no known principle of law or in reason can it be held to relate back to any previous period so as to affect the interests of those who were owners of the vessel at the time the contract was entered into. The company must therefore be held to have sustained the relation of contractor merely at the time the agreement between libellant and Osborne was entered into.

The case, then, is that of a person having rendered a service to salvors for a compensation to be paid at all events, who were themselves operating under a contract with the owners, known to such person, claiming and seeking to enforce a lien upon the vessel saved, independently and irrespectively of such latter contract, and of the compensation as fixed by it.

The learned advocate for the libellant has referred the Court to no adjudicated case in which this was allowed to be done, and to no authority or even dictum to that effect; and after a careful investigation, the Court has been able to find none. On the contrary, the authorities are all the other way. The case of The Whitaker (Sprague's Decision, 229, and same case at page 282), and that of Squire v. One Hundred Tons of Iron (2 Benedict, 21), are quite analogous to the present case. Both cases were in fact more favorable to the libellant than the present. In the case of The Whitaker, Holbrook, the original contractor, after vain efforts to get the vessel off, gave the job over entirely to one Otis, who knew of the contract. Otis, at an expense largely beyond the contract price, succeeded in getting the vessel off, and then libeled her for his pay. Judge Sprague dismissed the libel, for the reason that Holbrook, the original contractor, was not made a party. Afterwards, upon a new libel, in which Holbrook was joined, the Court granted a decree to Holbrook and Otis, jointly, limiting them to the original contract price, although it was less than half what Otis had expended. In that case also Otis' compensation was dependent upon success, while in the present case, as we have seen, libellant was to be compensated at all events.