c32:No. 2880

PARDEE, Circuit Judge
(dissenting). The services rendered by the steam wrecking tug Senator Bailey to the steamship Kennebec are conceded to have been salvage services, and they were not adequately compensated by an allowance of $250 per day for two days. Under the alleged parol contract, which the court construes as covering salvage services, the services of the Bailey were expressly limited to towage services, and said contract ought not to control, so as to deprive the appéllant from recovering for the salvage services undoubtedly rendered.
The Senator Bailey is a large, heavy wrecking tug, about 125 feet long, and draws from 15 to 16 feet of water, and her beam is 26 to 27 feet and equipped with large automatic tówing machinery, 800 actual horse power, and carrying a full line of wrecking equipment, worth $100,000. The contract was made over long-distance telephone between Paul, the managing agent for the owners of the Kennebec, and Stoneburner, agent for the Bailey. Paul’s version of the alleged contract is:
“I got Mr. Stoneburner on the telephone and told him that the Kennebec was ashore on a lump at the mouth of the Brazos jetties, and 1 told him it was not a salvage job, but a towing proposition, and I wanted a flat rate per day; he aslced me to wait a minute, and he went off, and came back, and said he would name us a flat raté of §250 per day, from the time the towboat left Galveston until she returned, and X asked him what constituted a day, and he said 24 hours. Q. What did you say? A. I said, ‘Let her come.’ ”
Stoneburner’s version is:
“About 10 o’clock on Saturday morning, May 1st, long-distance telephone rang and called for Mr. Stoneburner, and I answered the phone; and it was Mr. Paul, of Freeport, on the line, and he asked me about the Senator Bailey, where she was, and I told him, and he said the Kennebec had run onto a lump and needed a little pull to get her off, and I inquired whether the service was in the nature of salvage and wrecking or not, and he said the services were not in the nature of salvage or wrecking, that it was towing, and I said, ‘Wait a minute,’ and Mir. Steele was there, and I went into Mr. Steele’s office and talked to him, and 1 went back to the telephone and told Mr. Paul that if it was not a wrecking service, but a towing proposition, that I would furnish the service of the tug and equipment on a charge of §250 per day from the time she left Galveston until she returned, and he said, ‘Send the tug.’ ”
Paul and Stoneburner are equally credible, and if the court finds a contract proved it ought, considering that the burden of proof is on the claimant, to take Stoneburner’s version as the correct one. At the time, Paul was on the ground at the mouth of the Brazos river, and had been for 24 hours, during which time he had fully acquainted himself with the situation, having been twice, at least, on board the Kennebec, and had learned of the soundings that had been made, and well knew that the ship Kennebec, after going aground, had shifted her position further .inshore, and that he had attempted to get the Alex Brown, a towing tug of 450 horse power, to pull the Kennebec off, which, though authorized by the owners, was rejected by the master of the Brown, alleging the inability of his tug, under the circumstances, which he fully investigated, to do the necessary work, all of which he suppressed and concealed in his communications with Stoneburner, particularly asserting, in answer to Stoneburner’s inquiries, that the Kennebec had run on a lump and needed a little pull to get her off, and that it was a case of towage, and not of wreckage or salvage. Paul also knew of the extremely high water and swift current of the Brazos river, and that on account of said high water and the drifting logs therein services rendered in the pulling off from the shore and into the channel of the Kennebec would be very hazardous and extremely difficult.
At the time that the Bailey arrived on the ground Paul admits the ship had shifted her position further inshore at least 400 feet, and this alone is sufficient to render the contract for towage inapplicable. The master of the Bailey had only authority to carry out his owner’s instructions to pull the Kennebec off, and he had no authority to modify or repudiate his owner’s orders, nor to enter into any new contract. In The Flottbek, 118 Fed. 960, 55 C. C. A. 454, cited by my Brethren as supporting the maintenance of the contract for towage, the contract was:
"The party of the first part agrees to tow with reasonable and quick dispatch all the vessels owned and controlled by parties of the second part that, may be in tbe waters of Straits of Juan de Fuca, Puget Sound, British Columbia, or vicinity, whether insido or outside of Cape Flattery, and that may require any towage service during the continuance of this agreement, at the rates specified below.”
And the case shows that at the time the services were rendered the salved vessel was uninjured and afloat in 25 fathoms of water, and that all the services rendered were towage services, and the court disregarded the contract and held the services were salvage services by reason of the peril of the-salved vessel. I think it is well settled that a ship aground on the Texas shore, shifting her position further inshore and unable to get afloat by her own exertions, is in decided peril.
The services rendered the Kennebec were very hazardous and difficult, and but for the great power and salvage .appliances of the Bailey would have resulted in failure to rescue the Kennebec and in serious damage to the Bailey.

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