# Falk v. United States Shipping Board Emergency Fleet Corp.

> Court of Appeals for the Fifth Circuit · June 20, 1922 · 281 F. 690

URL: https://www.frixlaw.com/law-library/cases/8826091

## Case

- **Full name:** THE OLOCKSON. FALK v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** June 20, 1922
- **Citations:** 281 F. 690; 1922 U.S. App. LEXIS 2147
- **Precedential status:** Published
- **Opinion:** Dissent by Walker
- **Judges:** Bryan, King, Walker
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8826091

## Opinion text

WALKER, Circuit Judge
(dissenting). Upon the local agent for the Isthmus of the owner of the Olockson learning that that vessel was on fire at sea, he made a contract with the marine superintendent of the Panama Canal, the authorized representative of the owner and operator of the tug Gorgona, which was not then in port, for that tug to go to the aid of the burning ship; the understanding being that $25 an hour ivas to be paid for the services of the tug and its crew, whether the service rendered was successful or not. The owner of the tug sent in its bill for the service rendered, charging $25 an hour from the time the tug left Balboa until it returned to that place with the burning ship in tow. That bill was paid by or for the owner of the ship. There was no evidence of any change or modification of the above-mentioned contract. Several hours after the contract was made the tug returned to Balboa, and during the evening of that day put to sea to go to the aid of the Olockson, after the marine superintendent gave orders to the captain of the tug, which indicated that the marine superintendent did not then contemplate the towing of the Olockson back to Balboa.
The terms of the contract, considered in the light of the circumstances attending the making of it, plainly show that a rescue or saving of the whole or a part of the Olockson or its cargo was a service covered by that contract. Obviously it was contemplated that a salvage service would be rendered, if it was found to be reasonably practicable to render it.' It does not seem to the writer that the fact that, when performance of the service was actually entered upon under the previously made contract, the representative of the tug owner did not expect the ship to be saved, and gave orders accordingly, can properly be given the effect of making the salvage service rendered one not covered by the contract. The fact that the tug owner, after the contract was made and without the knowledge or consent of the other party thereto, adopted a plan of action which, if carried out, would not have resulted in saving the ship or its cargo, in whole or in part, does not keep the salvage service actually rendered by the tug and its crew from being one governed by the contract, so far as payment for it is concerned.
Though a service is one which helps to save a vessel endangered at sea, a valid contract by one party to pay at all events, and by the other to receive, either a fixed or a reasonable compensation for such service, is as conclusive as any other contract. The Parisian (C. C. A.) 264 Fed. 511 ; The Elfrida, 172 U. S. 186 , 19 Sup. Ct. 146, 43 L. Ed. 413 . If such a service, so contracted for, is that of a tug and its crew, the party contracting for that service is deprived of the benefit of his contract if he is held to liability, not only to the other party to the contract for the compensation agreed to be paid to the latter for the service, but also to the latter’s employees for a salvage award for the same service so far as they participated in rendering it; such award and the amount of it to be based on the false assumption that there was a *696 voluntary rescue, not covered by any contract, which would have gone unrewarded, but for the success of the effort.
The service rendered being one covered by the contract; and the agreed compensation therefor having been paid, in the opinion of the writer the award in favor of the crew of the tug cannot be sustained, because the contract price, which has been paid, covered the services-rendered by the crew.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8826091. Public record. Not legal advice.