KIMES ET AL.

v.

UNITED STATES ET AL.; THE WILLIAM M. MEREDITH

While the district judge recognized this fact in holding libelants entitled to an award of $10,000, his ultimate conclusion, as we have seen, was that they had already been more than amply compensated and were entitled to no more. The compensation referred to consisted of the crew’s base wages for an 8-hour day and 48-hour week, overtime of 85^ per hour for work beyond the regular hours, and supplementary overtime of $1.05 per hour for time spent handling cargo, plus the bonuses described in the court’s Finding of Fact No. 17: “Throughout the period from May 2, 1944 until June 23, 1944 when the cargo carried by the Meredith was unloaded at Port Said, Egypt, the captain and crew of the Meredith received a war bonus of 100% of base wages, a war bonus of 66%% of base wages, and an area bonus of $6 per day.3 All work performed by libelants during this period was in connection with the salvage operation and for this work the libelants have already been paid approximately $30,000.” 106 F.Supp. at page 685. It is not quite clear from the court’s findings how this figure was arrived at and whether it includes all elements of compensation— base pay, overtime, and bonuses. From our study of the record the total compensation paid the entire crew for this 53-day period appears to be slightly over $40,000, of which about $10,000 consisted of base pay.

Whatever the exact amount of their compensation, libelants earnestly contend that they were entitled to receive at least the $10,000 award in addition thereto on the theory that wages are never part of an award and are no bar to an award. It is undoubtedly true that salvage awards have been consistently granted even where the crew had received its regular pay. Jacobson v. Panama R. Co., supra, 2 Cir., 266 F. 344; The Olockson, supra, 5 Cir., 281 F. 690; Waterman S.

S. Corp. v. Dean, 4 Cir., 171 F. 2d 408, certiorari denied 337 U.S. 924, 69 S.Ct. 1168, 93 L.Ed. 1732; The Centurion, D. C.D.Me., 5 Fed.Cas. page 369, No. 2,554, 1 Ware 477, 490; Bergher v. General Petroleum Co., D.C.N.D.Cal., 242 F.

967. And in the Jacobson case one of the appellants had even received extra compensation of 60<í an hour for work done in connection with the salvage operation. These cases indicate that receipt of wages is not an absolute bar to subsequent recovery of salvage, but clearly do not require the award to duplicate compensation for salvage work done and risk incurred which has already been received. Had the total sum thus far paid the crew of the Meredith covered these elements fully and in an amount sufficiently large also to serve the function of salvage awards as future inducements for rescue activities, we should have no hesitation in affirming dismissal of the libel. But the district judge himself negated such a conclusion when he found: “The salvage work performed by the libelants herein was slightly more dangerous than the work they would ordinarily be required to perform under their shipping articles. It is true that under the shipping articles libelants could be required to enter war zones and they were paid war bonuses depending on the danger involved.

However, under the articles they would not ordinarily be required to take their vessel alongside a sister ship in distress and assist in taking aboard from the distressed vessel her cargo. This operation exposed libelants to danger beyond and above the requirements of the articles. It must be remembered that this salvage operation extended over a period of several weeks and took place in an isolated and unprotected spot off the northern coast of Africa one hundred miles from the enemy-held island of Malta.” Finding of Fact No. 15, 106 F.Supp. at page 685.

Hence libelants are entitled to an award to cover the slight additional risk found by the district court unless they had, as respondents suggest, entered into a contract to perform the salvage work for the extra compensation they would thereby earn under their shipping articles. Appealing as this theory may be in view of the very substantial sum already paid the crew for their salvage undertaking, we cannot find such an agreement in the present case. The Supreme Court has adopted a rather strict approach toward this issue, holding that “nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage.” The Camanche, 8 Wall. 448, 75 U.S. 448, 477, 19 L.Ed. 397; The Excelsior, 123 U.S. 40, 49, 8 S.Ct. 33, 31 L.Ed.

75. A contract for salvage may provide for a daily or hourly wage, payable irrespective of success. The El-frida, 172 U.S. 186, 192, 19 S.Ct. 146, 43 L.Ed.

413. But the burden of establishing the existence of such a contract is upon the respondent. The Olockson, supra, 5 Cir., 281 F. 690, 693.

The record here shows no express agreement covering this salvage enterprise, and — particularly in the light of the Supreme Court’s restraint of enthusiasm for such contracts — we do not think respondents have sustained their burden of showing that such an agreement should be inferred from the facts presented.

We come then to the final question, the amount of the award to which libelants are entitled. As might be expected, the parties make sharply conflicting claims as to the value of the cargo salved. There is also a dispute about the extent of the respondents’ beneficial interest in this cargo, since it was about to be delivered to the Soviet Union where a substantial part would be consumed in the war. Without going in detail into the niceties of the law of sales and of the passage of title to goods sold as applied to the American wartime lend-lease program, it is clear that the United States did at the time of this operation have an interest in these goods — which had not yet been delivered to or accepted by the Russians and part of which were to be returned after cessation of hostilities — sufficient to make it liable for their salvage.

The district court found the interest of the United States in the salved cargo to be $1,000,000. It then concluded that the total salvage award should be 10 per cent of this amount, or $100,000, in which the participation of the Meredith was fixed at 30 per cent, two-thirds of this being allocated to the ship and her owner, and one-third to the crew.

Thus the court arrived at its $10,000 award for libelants. We need not subject either the court’s original $1,000,000 valuation or the percentages selected to close scrutiny, since the court was not required to use a percentage basis for arriving at its ultimate award. Post v. Jones, 19 How. 150, 60 U.S. 150, 161, 15 L.Ed. 618; The Kia Ora, 4 Cir., 252 F. 507, 509; Burke v. United States, supra, D.C.S.D.N.Y., 96 F.Supp. 335, 338. And that award will be upset only if based on erroneous principles of law or palpable misapprehensions of fact. United States v. Aslaksen, supra, 6 Cir., 281 F. 444, 448; see also The Camanche, supra, 8 Wall. 448, 75 U.S. 448, 479-480, 19 L.Ed. 397; Waterman S.

S. Corp. v. Dean, supra, 4 Cir., 171 F. 2d 408, 411. But where there has been such error there is no doubt of the appellate court’s power and duty to modify the award. Petition of Atlantic Gulf & West Indies S.

S. Lines, supra, 2 Cir., 49 F. 2d 263; The Kia Ora, supra, 4 Cir., 252 F. 507.

Here accepting these findings of value, it nevertheless appears that the court’s setoff of compensation against the salvage award did lead it to apply erroneous principles in arriving at the amount of that award. For the very fact of setoff presupposes that the award overlapped the prior compensation in coverage. But the court should have taken payments already made into consideration when arriving at its award so that libelants would receive total recompense sufficient to compensate for all their efforts and risks, but without undue duplication. In its Finding of Fact No. 15 quoted above, the district judge found that an award was justified by risks of mid-sea stevedoring not required by libelants’ shipping articles. This same risk really provides the sole basis for an award, since libelants have already been paid handsomely in overtime and bonuses for handling cargo and being in a dangerous area. In such a case as this the court is undoubtedly entitled to fix an award with an eye to the amount already paid to libelants which they would not have received in the absence of the salvage undertaking. That amount here is already in excess of $40,000, and an award of $10,000 for the slight additional uncompensated risk found by the district court appears excessive. We think a more appropriate award under these circumstances would be $4,500, an average of slightly over $100 for each member of the crew, bringing the total average compensation per crew member for the entire venture to $1,000.

The judgment is accordingly reversed for entry of a decree awarding libelants $4,500.

On Motion for Allowance of Interest and for Apportionment of Award

PER CURIAM.

Libelants have moved for the allowance of interest on the salvage award of $4,500 decreed in their favor by this court on July 14, 1953. Respondents oppose such an award. Libelants also ask for apportionment of the award among them.

The award of interest is discretionary with the court. 3 Benedict on Admiralty 191 (6th Ed.1940); cf. Societa Commerciale Italiana di Navigazione v. Maru Nav. Co., 4 Cir., 280 F. 334, 337, cert. den. Maru Nav. Co. v. Societa Commerciale Italiana di Navigazione, 259 U.S. 584, 42 S.Ct. 586, 66 L.Ed.

1075. Nearly six years and a half elapsed between the filing of the libel and the decree. If libelants were wholly or partially responsible for a substantial part of the delay, they should not receive interest; if they were not, they may receive interest not to exceed 4 per cent. See 46 U.S.C. § 743. Respondents assert that libelants contributed to the delay by adjourning trial on three occasions. We are not in a position to resolve these issues appropriately and think they should be settled by the district court.

Apportionment among officers and crew seems “wholly factual in character,” and thus for the discretion of the court. Robinson on Admiralty 748 (1939). In view of the small amount available when divided among 44 claimants, there may well be no better provision than absolute equality, with possibly some slight addition for Captain Greene’s widow and Mate Kimes. But this, too, is better to be settled by the district court after hearing than by us. There may also be further questions involving the method of payment and discharge by respondents if not all the claimants can be located, and for disposition of amounts not claimed.

On remand, the district court is therefore directed to hear and determine the issues raised by libelants’ motion.

. After the death of Captain Greene, in whose name the action was originally brought, his widow was substituted only to the extent of the captain’s personal claim and William L. Kimes, the Chief Second Mate and second in command, was substituted on behalf of himself and the other crew members. Greene v. United States, D.C.S.D.N.Y., 104 F.Supp. 667.

. No claim was made for salvage of the vessel, which, after salvage of her cargo, was towed to Port Said by one of the British tugs and was found to be a “total constructive loss” with no residual value.

. The evidence shows that the amount of the area bonus was $5 rather than $6 per day.