The doctrine of salvage is peculiar to admiralty law, the common law raising an irrebuttable presumption, based either upon considerations of policy or upon knowledge of normal human conduct, that services rendered in an emergency in the preservation of property, like emergency services in the preservation of life (ante, Sec. 201), are gratuitous:
Bartholomew v. Jackson, 1822, 20 Johns. (N. Y.) 28; 11 Am. Dec. 237: Action for work and labor in removing defendant's stack of wheat from the plaintiff's stubble field. The defendant had promised to remove the stack in due season for preparing the ground for a fall crop. The time having arrived, the plaintiff sent a message to the defendant, which is his absence was delivered to his family, requesting the immediate removal of the stack, as he wished, on the next day, to burn the stubble. The defendant's sons answered that they would remove the stack by ten o'clock the next morning. At that hour the plaintiff set fire to the stubble in a remote part of the field, which spread rapidly and threatened to destroy the stack of wheat. Thereupon, the plaintiff, seeing that the defendant neglected to remove the stack, removed it himself. Platt, J. (p. 28): "The plaintiff performed the service without the privity or request of the defendant; and there was, in fact, no promise, express or implied. If a man humanely bestows his labor, and even risks his life, in voluntarily aiding to preserve his neighbor's house from destruction by fire, the law considers the service rendered as gratuitous, and it, therefore, forms no ground of action." 2 personam and actions in rem depended only on whether the person or property of the defendant was arrested in the first instance." The Cargo ex Port Victor, 1901, 17 Times L. R. 378, 380. And see The Hope, 1801, 3 C. Rob. 215 and note.
1 Hudson v. Whitmire, 1896, 77 Fed. 846, (U. S. D. C. Fla.). And see Five Steel Barges, 1890, 15 P. D. 142. But see The Chieftain, 1846, 4 Not. of Cas. 459.
2 Accord: Watson v. Ledoux, 1853,8 La. Ann. 68; New Orleans, etc., R. Co. v. Turcan, 1894, 46 La. Ann. 155; 15 So. 187. And see Falcke v. Scottish Imperial Ins. Co., 1886, 34 Ch. D. 234, 248, in which Lord
This presumption that the service is gratuitously rendered may properly be invoked, it would seem, only in cases of sudden emergency (see ante, Sec. 202), as where property is about to be destroyed by fire. Accordingly, there are a number of cases of non-emergency services in which a recovery has been allowed:
Chase v. Corcoran, 1871, 106 Mass. 286: Action for money paid in moving and repairing the defendant's boat and for compensation for care and trouble in keeping and repairing the same. The plaintiff found the boat adrift and in danger of destruction, towed it ashore, and after making efforts to find the owner, took it to his barn, stowed it there for two winters and during the intervening summer made certain repairs which were necessary for its preservation. The defendant subsequently claimed the boat, the plaintiff refused to deliver it unless expenses of caring for it were paid, and the defendant then took the boat by a writ of replevin. Gray, J. (p. 288): " The claim of the plaintiff is therefore to be regulated by the common law. It is not a claim for salvage for saving the boat when adrift and in danger on tidewater; and does not present the question whether the plaintiff had any lien upon the boat, or could recover for salvage services in an action at common law. His claim is for the reasonable expenses of keeping and repairing the boat after he had brought it to shore; and the single question is, whether a promise is to be implied by law from the owner of a boat, upon taking it from a person who has found it adrift on tidewater and brought it ashore, to pay him for the necessary expenses of preserving the boat while in his possession. We are of the opinion that such a promise is to be implied. The plaintiff, as the finder of the boat, had the lawful possession of it, and the right to do what was necessary for its preservation. Whatever might have been the liability of the owner if he had chosen to let the finder retain the boat, by taking it from him he made himself liable to pay the reasonable expenses incurred in keeping and repairing it." 1
Justice BOwen said: "The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not, according to English law, create any hen upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will. . . . The maritime law, for the purposes of public policy and for the advantage of trade, imposes in these cases a liability upon the thing saved, a liability which is a special consequence arising out of the character of mercantile enterprises, the nature of sea perils, and the fact that the thing saved was saved under great stress and exceptional circumstances. No similar doctrine applies to things lost upon land, nor to anything except ships or goods in peril at sea."
1 Accord: Reeder v. Anderson's Admrs., 1836, 4 Dana (34 Ky.) 193, (Robertson, C.J.: "The only question to be considered in this case, is whether the law will imply a promise by the owner of a runaway slave, to pay a reasonable compensation to a stranger for a voluntary apprehension and restitution of the fugitive. And, though such friendly offices are frequently those only of good neighborship, which should not be influenced by mercenary motives or expectations - nevertheless, it seems to us that there is an implied request from the owner, to all other persons to endeavor to secure to him lost property which he is anxious to retrieve; and that, therefore, there should be an implied undertaking to (at least) indemnify any person who shall, by the expenditure of time or money, contribute to a reclamation of the lost property.") And see Nicholson v. Chapman, 1793, 2 H. Bl. 254, 258, (A quantity of timber belonging to the plaintiff was placed in a dock on the bank of a navigable river. The timber was accidentally loosened, carried by the tide to a considerable distance, and left at low water upon a towing path. The defendant found it in that situation and voluntarily conveyed it to a place of safety beyond the reach of the tide at high water. Nicholson made a demand upon Chapman for its delivery, but this the latter refused to do unless compensated for his services in saving and keeping the timber. Nicholson then brought action in trover, and while it was held that Chapman had no lien on the timber and consequently no right to withhold it from the owner, Lord Chief Justice Eyre intimated that reasonable compensation for Chapman's services might be recovered by him in a suitable action. "A court of justice," he declared, "would go as far as it could go, towards enforcing payment."); Amory v. Flyn, 1813, 10 Johns. (N. Y.) 102; 6 Am. Dec. 316, (in which it is said that a finder is entitled to recover only necessary expenses in preserving the property). But see, contra, Watts p. Ward, 1854, 1 Or. 86; 62 Am. Dec. 299.