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Nolan v. Rederiaktieselskab

decided: June 11, 1959.


Author: Biggs

Before BIGGS, Chief Judge, and GOODRICH and STALEY, Circuit Judges.

BIGGS, Chief Judge.

The plaintiffs-appellants, fourteen members*fn1 of the crew of an Army tug, "LT-1953", sought an award for salvage by reason of their efforts in saving a cargo of cryolite ore laden aboard the Danish vessel the "Else Basse". The appellants were granted specific authority by the United States Army to bring the suit at bar. The libel was filed against A. H. Basse Rederiaktieselskab, the shipowner, but since that corporation was not amenable to process, the case was proceeded with against Pennsylvania Salt Manufacturing Co., Inc. (Pennsalt), the owner of the cargo. After the appellants filed the suit at bar in 1954 forty-six members of the United States Navy LST-287 who assisted in the salvage operation filed their libel. Answers were made by Pennsalt and the cases were tried together. The court below entered a final decree awarding salvage as hereinafter appears to the appellants and to the crew of the Navy LST as well. The crew of the Navy LST have not appealed from the amounts awarded them but the crew of the Army LT have appealed on the ground that the awards made to them by the court below are insufficient.*fn2

The Else Basse was a small cargo vessel, about 270 feet in length and registered at approximately 1,400 gross tons. She was chartered by Pennsalt to transport raw cryolite ore, a non-combustible mineral used in the manufacture of aluminum, from Greenland. The Else Basse, en route to Philadelphia, was approximately fifty miles off the coast of Newfoundland when fire was discovered in her engine room. The date was August 18, 1953; the time, 9:30 P.M. The crew of the Else Basse fought the fire without success and approximately two hours later Captain Jakobsen ordered all hands to leave the ship, excepting the Chief Engineer and the Chief Mate. Near midnight, these two officers and the Captain, fearing an explosion in the ship's settling tanks from the heat of the fire, the outside plates having become "red hot", also left the ship. A distress call had been dispatched earlier to which the S. S. Cornerbrook responded. The Cornerbrook picked up the crew and passenger of the Else Basse. According to Captain Jakobsen the sea was calm but a heavy rain was falling. In response to questions as to whether he expected to return to the Else Basse, he said, "Stay around the ship and let the ship burn out. * * *" But he stated also that he left the scene on the Cornerbrook because of his concern for the safety of his crew. At this time the fire was still raging aboard the Else Basse.

At about one o'clock in the morning of August 19, the Army Tug LT-1953, in port at Harmon Air Force Base, Newfoundland, put out to aid the Else Basse. The LT was especially equipped for fire-fighting, having aboard three fire monitors. Before the LT arrived the United States Navy vessel, the LST-287, had already appeared and at 3:40 A.M. was standing by the burning Else Basse. About two hours later, at 5:30 A.M., the LT arrived and, at a distance of about 200 feet, proceeded to play streams of water upon the Else Basse. Neither of the government vessels ventured closer since at that time the nature of the Else Basse's cargo was unknown. The LT, maneuvering and constantly hurling water on the blazing vessel, by 7 o'clock had put out all visible flames. The LST's fire-fighting apparatus was far less powerful, and that ship did not, either before or after the arrival of the LT, attempt then to fight the fire. By this time the nature of the cargo of the Else Basse had been ascertained by radio and the second phase of the rescue operation began.

Captain Nolan of the LT decided to take the Else Basse in tow and brought his vessel under her port bow. In answer to Captain Nolan's request, crew members Wingert and Keith volunteered to board the Else Basse to secure the towing gear. The sea was moderate. With the two ships alternately rising and falling on three to four foot swells, and as the LT was going up and the Else Basse down, the two seamen jumped from one ship to the other. After securing the gear Wingert and Keith, by sliding down ropes, returned to the LT.

The LT then maneuvered away from the Else Basse and began the towing. Shortly thereafter an outburst of fire appeared aboard the Else Basse. Apparently then for the first time, the LST sprayed water on the ship. According to Captain Barrett of the LST, his ship stood five to twenty-five feet off the Else Basse. About 9 or 9:30 A.M., the LST requested the LT to head the Else Basse into the wind to reduce her yawing so that the two ships, the LST and the Else Basse, could be tied together. This was done, and lines at the bow and the stern of the Else Basse were secured to corresponding positions on the LST. Four crew members of the LST had boarded the Else Basse to engage the lines. Eleven crewmen of the LST then boarded the Else Basse, fire hoses were passed to them, and they proceeded to extinguish what fires there were in the interior parts of the ship. At 11:15 A.M. these men were recalled and Captain Barrett posted a fire watch aboard the Else Basse.

By marrying the Else Basse to the LST the speed of the tow was considerably increased, and the three ships reached harbor at Harmon Air Force Base at three o'clock in the afternoon. The LT dropped its tow and the LST continued with the Else Basse several miles to the place of anchorage.

The third and last phase of the salvage activities for which the crew members of the LT claim compensation is the maintenance of a fire-watch on the Else Basse during the following two or three weeks. There was posted shortly after the Else Basse arrived a security guard from the Air Force Base, but nevertheless Captain Nolan, believing that further safeguards were required, returned the evening of the 19th with the LT. Upon arrival, he and Chief Engineer Keagy boarded the Else Basse to inspect the ship. For the following fortnight or so, to use Captain Nolan's own term, the LT returned "intermittently" to the Else Basse. Apparently most of the time spent in standing by the Else Basse was during the night hours.

A gross salvage award of $10,100 was made by the court below, and was divided among the 60 co-salvors as shown in the following schedule. The court made no division by ships.

To the Masters of the two Gov-

ernment vessels, $400 each $800

To the two men from the tug

and the four men from the

LST who first went aboard the

Else Basse in order to secure

lines to her, $400 each $2400

To the eleven men ...

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