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Introduction
In this special issue of the British Journal of American Legal Studies, Professor Robert M. Jarvis has cast a light on a judge who made important contributions to the law of salvage during a critical time in U.S. history. As Jarvis observes,
See Robert M. Jarvis, The Schooner ENTERPRISE: A Forgotten Key West Murder Case, 12 Brit. J. Am. Legal Stud. 195, 197 (2023).
William Marvin was a respected expert on maritime law. Other judges also recognized Marvin's abilities,
See, e.g., The Kimberley, 40 F. 289, 298 (E.D. Va. 1888) (saying Marvin was “a learned author, and one of the soundest admiralty jurists which our country has produced.”). The editor of Hunt's Merchant Magazine printed Marvin's opinion in Walter v. The Montgomery, later published at 29 F. Cas. 113 (Super. Ct. S.D. Fla. Terr. 1840) (No. 17,120). In his introduction, the editor wrote, “Judge Marvin, though comparatively a young man, is, we understand, an excellent judge; and the opinion which we publish, shows him to have bestowed much attention to the law of salvage.” The Law of Salvage, 3 Hunt’s Merch. Mag. 153, 153 (1840). A later report said that Marvin had given “general satisfaction to all parties interested.” Wrecking at Key West, 22 Hunt’s Merch. Mag. 340, 341 (1850). But see Wrecks, Wrecking, Wreckers, and Wreckees, on Florida's Reef, 6 Hunt’s Merch. Mag. 349, 353 (1842) (arguing that admiralty judges in Key West should not be selected from those who “received large fees” from representing wreckers as “[t]he connection is too close between them, and the underwriters do not stand quite so good a chance.”).
and courts continue to cite his opinions
See, e.g., St. Clair Marine Salvage, Inc. v. Bulgarelli, 796 F.3d 569, 575 (6th Cir. 2015), quoting Church v. Seventeen Hundred and Twelve Dollars, 5 F. Cas. 669 (S.D. Fla. 1853) (No. 2,713).
and treatise.
See, e.g., Columbus-Am. Discovery Grp. v. Atlantic Mut. Ins. Co., 974 F.2d 450, 468 (4th Cir. 1992); Cobb Coin Co. v. Unidentified Wrecked & Abandoned Sailing Vessel, 525 F. Supp. 186, 205 (S.D. Fla. 1981); Medina v. One Nylon Purse Seine, 259 F. Supp. 769, 771 (S.D. Cal. 1966).
Almost all of Marvin's published opinions involved salvage,
Several, however, involved prize. See, e.g., The Pearl, 19 F. Cas. 54 (S.D. Fla. 1863) (No. 10,874). One of Marvin's published opinions involves a libel (i.e., complaint) by passengers to recover passage money when their unseaworthy vessel interrupted its voyage in Key West. See Stone v. The Relampago, 23 F. Cas. 158 (S.D. Fla. 1849) (No. 3,486). In a case seemingly of first impression, Marvin held that the court had admiralty jurisdiction and that the passengers had a lien on the vessel.
None of Marvin's opinions were officially reported. Most appeared only in the records of the Southern District of Florida. Some appeared in commercial newspapers or in pamphlets. The ones in Federal Cases, an unofficial reporter produced by the West Publishing Company between 1894 and 1897, contain several errors. For example, the name of the vessel in The Tellumah, 23 F. Cas. 835 (Super. Ct. S.D. Fla. Terr. 1846) (No. 13,823), is misspelled. In the court records, the vessel is spelled “Telumah.” See 3 Adm. Rec. 291, available athttps://www.fold3.com/image/27954900. Other errors include omitting sections of opinions and incorrect identification of cited authority. See Steven F. Friedell, Compensation and Reward for Saving Life at Sea, 77 Mich. L. Rev. 1218, 1224 n.18, 1234 n.61, 1236 n.71 (1979) [hereinafter Compensation and Reward].
and he published the first American treatise on salvage law in 1858.
See William Marvin, A Treatise on the Law of Wreck and Salvage (1858) [hereinafter Wreck and Salvage]. The second American treatise devoted solely to salvage was published 100 years later. See Martin J. Norris, The Law of Salvage (1958), now continued as volume 3A of Benedict on Admiralty. Other treatises covered the topic by including long chapters on salvage. See, e.g., Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty (1st ed. 1957); Gustavus H. Robinson, Handbook of Admiralty Law in the United States (1939); Melvin M. Cohen, Admiralty—Jurisdiction, Law, and Practice With an Appendix, Containing Rules, Statutes, and Forms (1883). American lawyers in the 19th century also had access to English treatises on salvage. See, e.g., William R. Kennedy, A Treatise on the Law of Civil Salvage (1st ed. 1891); Edwyn Jones, Law of Salvage as Administered in the High Court of Admiralty and the County Courts with the Principal Authorities, English and American (1870).
It generally is known that Marvin was a superior court judge in Key West, Florida Territory, from 1839 until March 3, 1845, when Florida became a state,
See An Act for the Admission of the States of Iowa and Florida into the Union, 5 Stat. 742 (Mar. 3, 1845).
and was a district court judge from 1847 to 1863.
See Marvin, William, in Federal Judicial Center, Biographical Directory of Article III Federal Judges, 1789-present, athttps://www.fjc.gov/history/judges/marvin-william [hereinafter Marvin FJC Biography]; The Supreme Court of Florida and its Predecessor Courts, 1821–1917, at 82 (Walter W. Manley II et al. eds., 1997); Kevin E. Kearney (ed.), Autobiography of William Marvin, 36 Fla. Hist. Q. 179, 206 (1958). President Martin Van Buren granted Marvin a recess appointment on March 11, 1839. See 25 Territorial Papers of the United States (1834–1839), at 596–97 (Clarence Edwin Carter ed., 1960). The U.S. Senate confirmed his appointment the following year. See Appointments by the President, Morn. Herald (NY), Apr. 27, 1840, at 1. President John Tyler nominated Marvin to continue as judge after April 21, 1844, when his previous commission expired. See 6 J. Exec. Proc. S. U.S. 251 (1841–1845). The court was “subject to all the laws which regulate or govern” other superior courts. See An Act to Establish a Southern Judicial District in the Territory of Florida, Act of May 23, 1828, § 1, 4 Stat. 291. Judges of other territorial superior courts likewise were appointed for four-year terms. See, e.g., An Act Erecting Louisiana into Two Territories, and Providing for the Temporary Government Thereof, § 5, 2 Stat. 283 (Mar. 26, 1804).
What is not generally known is that Marvin decided 15 salvage cases from March 1845 through April 1, 1846. More on that later.
Salvage was a big business in Key West. In most years the aggregate value of vessels and cargoes wrecked on the reefs exceeded $1,000,000.
See Wreck and Salvage, supranote 6, at 2 (showing table of wrecks from 1848 through 1857). Today, $1 million is the equivalent of $32 million. See S. Morgan Friedman, The Inflation Calculator, athttps://westegg.com/inflation/.
By one estimate, the court in Key West was hearing most of the salvage cases in the United States and awarding most of the rewards.
See Memorial of the Marine Insurance Companies of the City of New York (Dec. 15, 1846), National Archives, Senate Judiciary Committee (SEN29A-G8) (copy on file with the author). The memorial was signed by representatives from eight insurance companies asking Congress to establish a permanent Admiralty Court in Key West to hear salvage cases.
This essay will show Marvin's unique perspective on salvage as a judge who not only heard scores of salvage cases each year and wrote a treatise on the subject, but also was the only American judge authorized to license professional salvors.
This essay will first describe the contributions of Marvin's treatise. It then will discuss Marvin's unique approach to determining the amount of salvage awards; his views of general average as it applies in salvage cases; and his role as a regulator of professional salvors. Finally, this essay explains why Marvin kept hearing salvage cases after Florida ceased to be a territory but before his appointment to the district court.
Marvin's Treatise
Marvin's treatise guides lawyers and others in the practice of a salvage case,
Marvin provided a good definition and explanation of salvage:
Salvage is a compensation for maritime services, rendered in saving property or rescuing it from impending peril, on the sea, or wrecked on the coast of the sea, or on a public navigable river or lake, where inter-state or foreign commerce is carried on. The amount, according to the maritime law of England and the United States, rests in the sound discretion of the court, upon a full consideration of all the facts of the case. It generally far exceeds a mere remuneration pro opera et labore [for work and labor]—the excess being intended, upon principles of sound public policy, not only as a reward to the particular salvor, but, also, as an inducement to others to render like services.
Wreck and Salvage, supranote 6, at 105. One can infer the prerequisites for salvage from Marvin's treatment of the need for peril, id. at 107–08; the requirement of success in whole or in part, id. at 105, 117 n.2; and the requirement that the salvor must be a volunteer, one who has “no particular relation to a ship in distress.” Id. at 150.
paying special attention to the procedures in Marvin's court. The treatise begins by explaining the importance of the topic. It notes that the value of ships and cargoes wrecked or in distress and brought into Key West during the previous 10 years amounted to $16,266,427; that the salvage awarded was $1,158,919; and that the total expenses, which included salvage, wharfage, storage, duties, repairs, refitting, and all other charges, amounted to $2,125,384.
Id. at 2, n.1.
Marvin informs us that there were 47 licensed wreckers operating in his district in 1858.
Id. at 5.
The salvage industry benefitted many people working in Key West and was important to international shipping.
The treatise next addresses the duties of the master of a wrecked vessel.
Id. at 6–27.
Marvin understood that the judge's job was not merely to supervise the salvor's conduct, but also that of others, including the master of the ship that got into distress. In one early case, Marvin refused to restore to the master the proceeds of the cargo and materials because he suspected him of stealing a box of gold coins.
See The North Am., 18 F. Cas. 333 (Super. Ct. S.D. Fla. Terr. 1843) (No. 10,313).
Marvin's decision was reversed by the Florida Territorial Court of Appeals due to a lack of proof.
Id. at 336 (opinion by District Judge Bronson). The owners of the gold coins subsequently recovered a judgment against the owners of the vessel. See King v. Shepherd, 14 F. Cas. 545 (D. Mass. 1844) (No. 7,804), where Justice Story described the master's misconduct in detail and said, “[A] more aggravated case of gross negligence, under circumstances of so little urgency and peril, never came before this court.” Id. at 551.
In a later case, Marvin refused to restore the cargo to a master who had intentionally run his vessel aground, it having left New Orleans in an unseaworthy state.
See The Montserat, 17 F. Cas. 649 (S.D. Fla. 1858) (No. 9,740).
Marvin's treatise then describes the admiralty jurisdiction of the federal district court, the filing of a libel, the seizure or service of process, the response of claimants and intervenors, and the power of the court to sell perishable goods by interlocutory order.
In another chapter, Marvin observes that if he suspects collusion, he will sua sponte send for witnesses and investigate the transaction.
Id. at 85.
Salvage cases moved quickly in Key West. Marvin wrote:
Frequently a ship is got off the reef by the wreckers and brought into port in a condition which will allow her to proceed on her voyage, without the delay of making repairs. In such cases, it often occurs that the libel is filed one day, the master files a claim and answer the next, the court hears and decides the case the third, and the ship proceeds on her voyage the fourth.
Id. at 28.
The treatise continues with the various charges that might be made against salved property.
Id. at 89–98.
It finishes with various miscellaneous items, including a set of forms.
Id. at 309–37. These are followed by a list of the storage and wharfage rates charged in Key West. Id. at 341–43.
Determining the Amount of the Salvage Award
Marvin stressed the need to encourage salvage efforts by paying salvors well. But he also warned against awarding too much.
Id. at 106. See generally Kermit L. Hall & Eric W. Rise, From Local Courts to National Tribunals: The Federal District Courts of Florida, 1821–1990, at 27–28 (1991).
In one case Marvin wrote: “[T]he claims of simple justice to the salvor do not ordinarily extend beyond . . . fair compensation. . . . All beyond this is a gratuity given or withheld by the courts upon grounds of public policy.”
The Isaac Allerton, 13 F. Cas. 131, 133 (S.D. Fla. 1856) (No. 7,088).
In another decision, Marvin reasoned that owners of cargo and vessels and their insurers wanted salvage rates to be sufficiently high to ensure an adequate supply of competent wreckers who could minimize the amount of loss.
See The York, 30 F. Cas. 818, 820 (Super. Ct. S.D. Fla. Terr. 1846) (No. 18,140).
However, Marvin was concerned that giving wreckers too high a reward was not in anyone's long-term interest. Such rewards would encourage too many to become wreckers and thereby would reduce each wrecker's expected earnings.
See Pent v. The Ocean Belle, 19 F. Cas. 200, 202 (S.D. Fla. 1861) (No. 10,961). See also The Crown, 6 F. Cas. 917 (S.D. Fla. 1857) (No. 3,450); Wreck and Salvage, supranote 6, at 212.
He had seen the number of licensed wreckers increase from “about 20” in 1846,
See Memorial of Merchants and Other Citizens of Key West, in Florida, 29 Cong., 1st Sess., S. 286, at 1 (dated Apr. 8, 1846) [hereinafter Merchants Memorial] (copy on file with author).
and he wondered whether salvage rates needed to be reduced.
See The Ocean Belle, 19 F. Cas. at 202; Wreck and Salvage, supranote 6, at 5. A different source reports that there were 47 licensed wreckers in 1850. See Wrecking at Key West, 22 Hunt’s Merch. Mag. 340, 340 (1850). This same source says there were “about 15 regular licensed vessels” in 1845. Key West and Wrecking for Salvage, 14 Hunt’s Merch. Mag. 378, 379 (1846).
Marvin also was concerned that masters sometimes wrecked their own vessels to collect insurance.
In his treatise, Marvin wrote that salvors would forfeit their claim to salvage if they assisted the master in covering up such a plot.
Id. at 112.
Another concern was that the master of a wrecked vessel might collude with the salvor for a share of the salvor's reward. Marvin expected salvors to inform the court in their libel if they were aware of this.
Id.
In a case involving such a plot, Marvin wrote:
The immorality and illegality of this transaction is too plain for argument or comment. [The salvor's] duty was, not to listen to the captain's proposal, but to reject it at once. Let the property be lost, if a captain will not permit it to be saved without the salvor's consenting to bribe and corrupt him, and that, too, with money belonging to neither of them. The making of such agreement is immoral and unlawful, but when made, it may be lawfully performed, if salvage be allowed, by taking the sum agreed to be given the captain into consideration in fixing the amount of salvage, and making the salvage so much less. In this manner, the agreement may be performed to the owner of the property, who, if anybody, is entitled to the benefit of it, and not the captain.
Church, 5 F. Cas. at 673.
In his treatise Marvin lists the factors to be used in determining the amount of the reward, which may be summarized as: the enterprise of the salvors; the gravity of the danger threatening the rescued property; the degree of labor and skill; the time occupied; and the value of the rescued property.
Id. at 107, quoting The Clifton, (1834) 166 Eng. Rep 349, 351 (Adm.).
In 1869, a few years after Marvin retired from the bench, the U.S. Supreme Court in The Blackwall gave a similar list of six factors that courts usually use in determining the amount of a salvage award.
See 77 U.S. (10 Wall.) 1, 13–14 (1869). The Court listed the factors as follows:
(1.) The labor expended by the salvors in rendering the salvage service. (2.) The promptitude, skill, and energy displayed in rendering the service and saving the property. (3.) The value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed. (4.) The risk incurred by the salvors in securing the property from the impending peril. (5.) The value of the property saved. (6.) The degree of danger from which the property was rescued.
Id.
Later writers have tried to analyze how courts calculate the amounts of salvage. Gilmore and Black famously wrote, “Eventually the trial judge will pull an arbitrary figure out of the air.”
Gilmore & Black, supranote 6, at 563. Norris said, “There is no set rule or fixed formula” and that “the determination of the amount of a just and proper award is quite often a very troublesome matter.” Norris, supranote 6, at 375.
Law-and-economics scholars have tried to make sense of The Blackwall factors,
See, e.g., William M. Landes & Richard A. Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 J. Legal Stud. 83 (1978).
asserting that courts try to determine the amount that the parties would have worked out for themselves had they been able to negotiate freely before the salvage effort began.
Id. at 102.
The Fifth Circuit adopted this analysis in making the largest salvage award in history ($4.125 million).
See Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 986 (5th Cir. 1998).
It accepted the district court's reordering of The Blackwall factors according to what it thought was the order of their importance.
Id. at 984–85.
This prompted another scholar to use statistical analysis to suggest a different order.
See Joshua C. Teitelbaum, Inside the Blackwall Box: Explaining U.S. Marine Salvage Awards, 22 Sup. Ct. Econ. R. 55 (2015) (analyzing 881 reported cases from 1799 to 2007).
Marvin thought that each wrecker's compensation should be about what he might earn had he engaged in another pursuit.
See The York, 30 F. Cas. at 820.
He observed that the vessel's share usually did not exceed $1,400,
See The John & Albert, 13 F. Cas. 653 (S.D. Fla. 1851) (No. 7,333).
and that in most cases each man's reward usually came to between $60 and $70.
See The Crown, 6 F. Cas. at 919 (about $60); Bennett v. The Tevere, 3 F. Cas. 234, 235 (S.D. Fla. 1855) (No. 1,325) (between $60 and $70); The John & Albert, 13 F. Cas. at 654 (few cases where the men's shares exceeded $70 each).
In The Philah,
19 F. Cas. 494 (S.D. Fla. 1857) (No. 11,091A).
Marvin gave a fuller explanation when he wrote:
[T]he principle of an adequate remuneration, rather than a proportion being established, it is proper to take into consideration all the circumstances of the case, the value of the property and its peril, risk, labor, and enterprize [sic] of the salvors, their character and number, their occupations in life, the size and value of their vessels, the policy of the law in giving salvages, that policy as applicable to this coast, how far and to what extent the necessities of commerce require that persons should be encouraged to engage in the business, as a business, of saving wrecked property, the adequacy of the shares of the several salvors, as a remuneration, in any sum proposed to be given as the total salvage, and other pertinent considerations.
Id. at 496–97.
Marvin thought that professional salvors needed to be more generously compensated than the occasional salvor,
Marvin awarded $50 salvage to the master of a steamer who signaled to a wrecker to stop and relayed information about another vessel that had run aground. The wreckers’ reward was $23,000. See The Crown, 6 F. Cas. at 920.
a view reflected in the 1989 Convention on Salvage.
See International Convention on Salvage, Apr. 28, 1989, S. Treaty Doc. No. 102–12, 1953 U.N.T.S. 193, Art. 13, reprinted in 6 Benedict on Admiralty, Doc.4-2A (2021). The treaty lists “the availability and use of vessels or other equipment intended for salvage operations” and “the state of readiness and efficiency of the salvor's equipment and the value thereof” among the 10 criteria to be considered in determining the amount of the award.
In an early opinion, Marvin asserted that the wrecker's “exclusive business is to give assistance to vessels in distress” and that “[h]e incurs heavy expenses, too, in procuring, fitting, manning, and sailing his vessel.”
Walter, 29 F. Cas. at 116. Years later, Marvin recognized that many wreckers also engaged in fishing for the Havana market. See Wreck and Salvage, supranote 6, at 5.
A large portion of the treatise concerns the amounts of salvage awarded in American and English cases.
Id. at 181–225.
Marvin declares, “[N]o increased compensation ought to be given on account of the fact that more salvors were engaged in rendering the service than were necessary.”
Id. at 125. Marvin made the same point in Sanderson v. The Ann Johnson 21 F. Cas. 327, 327–28 (Super. Ct. S.D. Fla. Terr. 1843) (No. 12,297A).
He thought that a greater proportion ought to be awarded when a vessel and cargo are saved than when only vessel or cargo are saved.
Id. at 118–19. He made this point frequently in his opinions. See, e.g., The Philah, 19 F. Cas. at 495; The Isaac Allerton, 13 F. Cas. at 133; The Euphrasia, 8 F. Cas. 813 (S.D. Fla. 1848) (No. 4,545).
Marvin refused to reduce a salvage award where the wreckers were able to save a ship and its cargo in “an unusually short period of time.”
The Euphrasia, 8 F. Cas. at 814.
To do otherwise might induce wreckers to wait until the vessels be lost “by their own positive inertness, misconduct or bad faith.”
Id.
Marvin valued highly the saving of human life, saying that a larger award ought to be made for saving steam vessels because they “usually carry many passengers.”
See Wreck and Salvage, supranote 6, at 125–26. The treatise relied on two English precedents that involved salvage of steamships: The London Merchant, (1837) 166 Eng. Rep. 451 (Adm.); The Raikes, (1824) 166 Eng. Rep. 88 (Adm.). The one American case cited involved salvage by a steamship. See The William Penn, 4 F. Cas. 312 (D.S.C. 1853). Elsewhere, there were several calls for reform. See, e.g., Duncan McLean, Saving Life at Sea, Bos. Sun. Globe, Aug. 22, 1886, at 12; Saving Life at Sea, The Times (London), June 14, 1860, at 9 (reprinting an article from the Commercial Bulletin of Boston); Charles Dickens, Chips: Lives and Cargoes, 3 Household Words, Mar. 29, 1851, at 18–19.
In The Mulhouse,
17 F. Cas. 962 (S.D. Fla. 1859) (No. 9,910).
Marvin awarded salvage to those who saved life when others saved cargo in the ensuring weeks.
The full report of the case indicates that the cargo salvage efforts continued for about a month after the lives were saved. See Rigby v. The Cargo and Materials from the Wrecked Ship Mulhouse (1859) (available in 1 Pamphlets Collected by Elbridge T. Gerry 681, part of the Gerry Collection of the U.S. Supreme Court Library).
According to Marvin, those who saved life, whether or not they also saved cargo, had a general average charge against all of the cargo saved.
See The Mulhouse, 17 F. Cas. at 968.
Later American cases have been far less favorable to life salvors.
See, e.g., Markakis v. S/S Volendam, 486 F. Supp. 1103, 1110 n.28 (S.D.N.Y. 1980) (rejecting claim of life salvage involving rescue of 368 passengers from a disabled vessel off the coast of Cuba); In re St. Joseph-Chicago S.S. Co. (The Eastland), 262 F. 535 (N.D. Ill. 1919), aff’d without op. sub nom. Mattocks v. Great Lakes Towing Co., (7th Cir.) (No. 2,804), cert. denied, 258 U.S. 644 (1920) (holding that life salvors are not entitled to a reward when property is saved later). See further Compensation and Reward, supranote 5.
Marvin devotes a chapter of his treatise to the forfeiture of salvage.
He says, “Embezzlement, however small in amount, whether at sea, in port, or after the goods are in the custody of the law, works a forfeiture of all salvage.”
Id. at 229.
In The Diadem,
7 F. Cas. 632 (S.D. Fla. 1856) (No. 3,874).
Marvin ordered two seamen to forfeit their shares of salvage for embezzlement. In another case, Marvin decreed that the wreckers forfeit their salvage because the wreckers had held the wrecked vessel on the reef “until they had time to lighten her more than was necessary, and in this manner fraudulently magnify their services.”
The Byron, 4 F. Cas. 956, 960 (S.D. Fla. 1854) (No. 2,275).
Marvin's treatise noted that a salvor “who holds back and quietly looks on at approaching ruin, until his own services become indispensable . . . will find that he is disappointed . . . and . . . renders him an object of contumely and reproach.”
Wreck and Salvage, supranote 6, at 120–21 (note 2 carried over from page 117).
This language is taken from a case where Marvin was the salvor's proctor (i.e., attorney).
See The Howard, 12 F. Cas. 630, 633 (Super. Ct. S.D. Fla. Terr. 1838) (No. 6,752A) (Webb, J.).
In The York,
30 F. Cas. at 818.
the crew of a wrecked ship agreed to help save the cargo and the vessel only if they were paid a share of the salvage reward. Marvin wrote that the salvors would have forfeited their salvage if they had encouraged the crew to act that way.
Id. at 819.
Marvin held salvors to a high standard of honesty in presenting their claims to the court.
See, e.g., The Mount Washington, 17 F. Cas. 925, 927 (S.D. Fla. 1851) (No. 9,987) (“The law just as much exacts fairness and honesty in the salvors in presenting a claim of salvage to the court as it does fidelity and honesty in preserving the property from embezzlement. Salvors are not to impose on the master of the ship or vessel, nor on the court, but to conduct themselves fairly and honestly in regard to both.”).
Marvin wrote that a salvor's award might be diminished due to the salvor's demerits.
In one case, Marvin reduced the shares of some salvors who did not return to the stricken vessel to get an anchor.
See The Elizabeth Bruce, 8 F. Cas. 477 (S.D. Fla. 1854) (No. 4,358).
In The Diadem,
7 F. Cas. at 632.
he cut the reward in half because the salvors’ negligence delayed getting the vessel off the reef by a day. In yet another case, Marvin reduced the award from $23,000 to $18,000 because the salvors could have saved the stricken vessel more quickly had they taken proper soundings.
See The Sultan, 23 F. Cas. 378 (S.D. Fla. 1858) (No 13,601).
He wrote, “There is not the least reason for imputing to [the salvor] or his associates either fraud or that kind of gross neglect which is tantamount to fraud and which works a forfeiture of all salvage. His error was wholly of the head, not the heart. . . .”
Id. at 378. See also The Ashburton, 2 F. Cas 14 (S.D. Fla. 1856) (No. 575).
Marvin reduced another wrecker's reward from $400 to $100 because he refused to provide pilotage to a vessel that later ran on a reef and needed the wrecker to provide relief.
See The Angeline, 1 F. Cas. 911, 912 (S.D. Fla. 1854) (No. 385), quoting The Howard, 12 F. Cas. at 633.
Salvage and General Average
Marvin's treatise discusses some points of general average that arise in salvage cases.
The main concern was how to apportion the cost of salvage among the vessel and cargo interests. Marvin's focus on general average increased two years later when he represented the Chamber of Commerce at the first international conference on general average in Glasgow, Scotland, in September 1860.
See Kearney, supranote 8, at 210; Richard Lowndes & George Rupert Rudolf, The Law of General Average and the York-Antwerp Rules ¶ 00.73 (15th ed. 2019).
The conference produced 11 resolutions intended to guide parliamentary draftsmen.
See N. Geoffrey Hudson, The York-Antwerp Rules: The Principles and Practice of General Average Adjustment 8 (4th ed. 2018). The Glasgow Resolutions can be found in Lowndes & Rudolf, supranote 78, at Appendix 2A. The Glasgow Resolutions form the backbone of the York-Antwerp Rules, which are incorporated into nearly all bills of lading.
Following his return to Key West, Marvin issued an opinion in Roberts v. The Ocean Star
20 F. Cas. 902 (S.D. Fla. 1860) (No. 11,908).
in which he made an unusual admission of error and detailed seven rules of general average that would guide him in the future:
Some few errors, trifling in their pecuniary results, but still errors, have heretofore been committed by the court in making similar distributions, owing to a want of time to consider fully the questions involved, without detaining the vessel employed to carry on the cargo. To correct these errors, and to prevent their being followed in future, as precedents, is the principal object of this opinion.
Id. at 902.
Marvin did not restate the Glasgow Resolutions but he appears to have been influenced by discussions at the conference. He referred to the practice of French tribunals and the French Code
Id. at 903, 905.
and to the practice at Lloyds in London.
Id. at 905.
To some extent, he enlarged upon points made in his treatise, such as the right of the crew of a vessel that has become a total wreck to be compensated for their labor out of the cargo saved, and in extraordinary circumstances to receive salvage.
Id. at 903, citing among other authorities Wreck and Salvage, supranote 6, at § 149.
Among other matters not previously discussed in his treatise, Marvin set forth rules for sharing expenses of unloading a vessel that reaches a port in distress
The Ocean Star, 20 F. Cas. at 904–05.
and the expenses of delay and transshipment.
Id. at 904.
In 1864, Marvin represented the Chamber of Commerce and the Board of Underwriters of New York at another conference on general average in York, England. Marvin's scholarly report of the proceedings was published two years later.
See William Marvin, A System of General Average (1866).
The Judge as Regulatory Agency
Although some of the rules set forth in The Ocean Star were pertinent to the issues raised by that case,
Marvin reports that the wreckers heaved the vessel off a reef and “in a condition badly damaged, and leaking.” The Ocean Star, 20 F. Cas. at 902. Following a decree of salvage, the vessel was condemned, and the cargo was to be transshipped. Id.
the opinion reads like a set of regulations governing general average. Indeed, the court in Key West gradually had taken on the character of a regulatory agency, issuing and renewing licenses for salvage, having the power to revoke those licenses, and promulgating rules that constrained the wreckers’ activities. In 1846, a group of Key West residents had petitioned the President and Congress to create a federal district court in Key West to “control” the wreckers operating there.
See Merchants Memorial, supranote 28 and accompanying text.
Although Congress expressly granted the judge of the Southern District of Florida the power to grant licenses to wreckers only in 1847,
See An Act to Establish a Court at Key West, in the State of Florida, and for Other Purposes, Act of Feb. 23, 1847, § 3, 9 Stat. 131.
the judges of the territorial court had licensed wreckers earlier. The 1828 statute establishing the territorial court provided, “[N]o vessel shall be employed as a wrecker, unless under the authority of the judge of said court. . . .”
See Act of May 23, 1828, supranote 8, § 6, 4 Stat. 292.
One author, in an account of life in Key West, reported that in 1829, “Whilst lying at Indian Key we were joined by five wrecking vessels, whose licenses having expired, it became necessary for them to go down to Key West to renew them.”
E.A. Hammond (ed.), Wreckers and Wrecking on the Florida Reef, 1829–1832, 41 Fla. Hist. Q. 239, 243 (1962). See also From Key West, Charleston Courier (SC), Sept. 24, 1832, at 2 (reporting an outrage committed upon the ship Eliza Plummer but remarking, “none of the regular licensed wreckers were concerned in the transaction”); Charles Nordhoff, Wrecking on the Florida Keys, 18 Harper’s New Monthly Mag. 577, 584 (1859) (recalling that Judge Webb had said that the wreckers were controlled because “If they commit any offense against honor or justice, instantly I [Webb] take from them their licenses.”). In one of his first opinions on the territorial court, Marvin referred to the libellants as “licensed wreckers.” See Walter, 29 F. Cas. at 113. In their petition requesting a federal court in Key West following statehood, the residents said, “There are about twenty regular wrecking vessels licensed by this court.” Merchants Memorial, supranote 28, at 1.
This means that licenses had been issued as early as 1828
See also Wreck and Salvage, supranote 6, at 5 (asserting that the 1828 statute authorized judges to license wrecking vessels). But see The Alamo, 75 F. 602, 605 (5th Cir. 1896) (quoting the opinion of Judge Locke of the Southern District of Florida, who wrote that “for nearly sixty years” there had been a system of licensing wreckers who are “amenable to rules of wrecking established by the court.”).
and had to be renewed annually, as later would be the case.
See Wreck and Salvage, supranote 6, at 337 (“for the term of one year”).
In 2008, Congress repealed the statute authorizing Florida's judges to license salvors.
See P.L. 110–375, § 1, 122 Stat. 4055 (Oct. 8, 2008). Earlier that year, a court had found the licensing statute to be unconstitutional. See Towboat One, Inc. v. M/V Waterdog, No. 08-80162-CIV, 2008 WL 2609505 (S.D. Fla. June 24, 2008). The U.S. Department of Justice had come to the same conclusion. See Response of United States of America to July 5, 2007 Order Notifying United States Attorney General of Challenge to Constitutionality of 46 U.S.C. § 80102, available at 2007 WL 4837219. See also In re Beck, 526 F. Supp. 2d 1291 (S.D. Fla. 2007) (declining to issue a wrecking license due to the statute's apparent unconstitutionality but declining to rule on that matter for lack of a case or controversy). The Beck court also reported that mariners had largely ignored the statute and that there were only occasional applications for licenses. See id. at 1294–95. But see Southernmost Marine Servs. v. M/V Potential, 250 F. Supp. 2d 1367, 1369 (S.D. Fla. 2003) (describing the plaintiffs as “professional and licensed salvors”).
Beyond licensing, not later than 1853, Marvin regulated wreckers by promulgating a set of Rules of Wrecking,
See Wreck and Salvage, supranote 6, at 338. See also Rules of Wrecking at Key-West, Fla., Charleston Daily Courier (SC), June 27, 1853, at 2 (reprinting the rules).
and wreckers were required to show the master of a wrecked vessel their license and a copy of rules.
See Wreck and Salvage, supranote 6, at 340 (Rule IX). The rules were annexed to the license. Id. at 232.
The first of these 13 rules consisted of a quotation of that part of the 1847 act authorizing the federal district judge in Key West to license wreckers. The other 12 rules sought to eliminate collusion or fraud by wreckers and masters and crew members of wrecked ships. For example, the fourth rule dealt with the situation where multiple salvors were needed to save a vessel and its cargo, a frequent occurrence on the Florida coast. The rule provided:
Licensed wrecking vessels, including the smaller as well as the larger, shall be admitted to assist at a wreck in the order in which the vessels themselves arrive, if further assistance be needed; unless some good cause shall exist for the contrary; and the master of any vessel deeming his vessel and crew excluded without sufficient cause, may apply, by petition to the court, for a distributive share of the salvage.
Id. at 338–39 (Rule IV).
Marvin explained the purpose of this rule in The Ocean Belle:
19 F. Cas. at 200.
This rule is obviously just in itself, and sound in policy. It prevents disorders and quarrels at wrecks, and takes away from the first boarder or master wrecker the power, by colluding with the master of the ship, to extort hard terms from those that arrive after him. Before the adoption of this rule and its enforcement by several decisions, it was not uncommon for the first boarder or master wrecker to agree with the master of the ship to give him a portion of the salvage, on condition that the former should be allowed to select the vessels to be employed. . . . [W]hen the wreckers come before the court to recover their salvage, [the master of the wrecked vessel] can properly have no interest beyond the amount to be decreed for the whole service. With the distribution of that amount among the salvors he has no concern. If no improper influences are brought to bear upon him, he will ordinarily employ the wrecking vessels, if adapted to the service required, in the order in which they arrive, for this is obviously just; and if he employs them in any other order, unless his reasons for doing so are satisfactory to the court, it may fairly be inferred that improper influences have been exerted upon him by some of the salvors to the disadvantage of others. Such improper influences are not to be tolerated.
Id. at 204–05.
In applying this rule in The Ocean Belle, Marvin ordered that part of the salvage award be given to five smacks that had been excluded from saving part of the cargo.
Id. at 205.
He stressed that this was not an equal share of salvage but “such a share as, under all the circumstances, the court may think they are equitably entitled to, and such as will, under ordinary circumstances, make it the interest of the wreckers, so far as they are concerned, to conform to the rule.”
Id.
Marvin also exercised control over wrecking through the court's rules of procedure.
See Wreck and Salvage, supranote 6, at 300–08. The rules took effect on the first Monday in May 1858. See id. at 308. An earlier set of rules did not contain these provisions. See Rules of the Superior Court for the Southern Judicial District of Florida—In Admiralty (1840). My thanks to the Duke University library for providing me with a copy of this document.
These rules set rates for lawyer's fees,
See Wreck and Salvage, supranote 6, at 303 (Rule 8). The proctor's fee was not reduced if the wrecker's reward was forfeited or reduced due to misconduct. Id. This might be a reason why Marvin specified the amounts of reduction. See supra text accompanying notes 72–76.
and required “salvors having a common interest arising from associated service, or from consortship” to file one libel and be represented by one proctor.
Id. (Rule 9). As Marvin's treatise explains, a consortship was a type of partnership among wreckers. See id. at 250.
In one case, Marvin penalized a consortship for filing a second libel, ordering the second libellants to pay the extra costs that were incurred.
See The Maryland, 16 F. Cas. 993 (S.D. Fla. 1849) (No. 9,218).
He wrote, “One libel was sufficient in the case. There was no conflict of interest, and one libel could be made to present the claims and secure the interests of all the principal salvors.”
Id. at 994.
Another rule set rates of compensation for the master's agent or consignee for moneys disbursed in payment of wharfage, storage, and other necessary expenses.
See Wreck and Salvage, supranote 6, at 302–03 (Rule 7).
Marvin also exercised supervisory authority over the marshal, and he stressed the importance of the marshal keeping accurate records of the marks upon salved boxed and packages.
See The Isaac Allerton, 13 F. Cas. at 133.
It appears that Marvin's efforts at regulation were effective. In their petition in April 1846 to Congress and the President to create a district court in Key West, 44 residents, including two insurance company underwriters, wrote:
The necessity of controlling such a body of men, and of watching narrowly their conduct, must be at once apparent. . . . The district judge, appointed by the general government, independent in his action, and far removed from local influences, is the only power that can apply the proper corrective. . . .
It is a remarkable fact that not one instance of theft, of even the smallest article, from the stranded vessel, has occurred for many years in this district. A short time since, the entire cargo of the wrecked ship Rienzi, including hundreds of barrels, boxes, and cases of liquors, was intrusted [sic] to ten or twelve of our wrecking vessels. Their crews, composed of men from every part of the habitable globe, and not less reckless than seamen generally, had entire control of it for several days on the decks of their vessels, and yet not one package was broken, not one article used by them.
Merchants Memorial, supranote 28, at 1–2. The Rienzi was heard by Marvin in May 1845. See infranote 112.
Marvin decided 15 cases after Florida became a state but before he was nominated for a federal judgeship.
The 15 cases, all contained in volume 3 of the Admiralty Records, are as follows:
CASE NAME
PAGE
DATE OF FIRST RECORD
AVAILABLE AT
Solomon Howes v. The Brig Hayne and Cargo
227
Mar. 22, 1845
https://www.fold3.com/image/27954815
Brig Onico and Cargo
227
Apr. 7, 1845
https://www.fold3.com/image/27954815
Raymond & Packer v. The Ship Yorkshire and Cargo
235
May 10, 1845
https://www.fold3.com/image/27954825
Richard Roberts v. The Cargo and Materials of the Ship Rienzi
240
May 21, 1845
https://www.fold3.com/image/27954832
John Washington v. The Barque Globe
254
May 28, 1845
https://www.fold3.com/image/27954849
William Bethel v. The Cargo and Materials of the Ship Newark
262
June 13, 1845
https://www.fold3.com/image/27954860
Augustus Williams v. The Cargo and Materials of the Bark Feronia
267
Sept. 15, 1845
https://www.fold3.com/image/27954867
William Bethel v. The Schr. Atalanta and Cargo
276
Sept. 15, 1845
https://www.fold3.com/image/27954882
John Lowe v. The Brig Georgiania and Cargo
285
Nov. 28, 1845
https://www.fold3.com/image/27954893
Joseph Stickney et al v. The Cargo and Materials of the American Ship Telumah
291
Dec. 3, 1845
https://www.fold3.com/image/27954900
William Kemp v. The Barque Mersey
299
Dec. 11, 1845
https://www.fold3.com/image/27954911
James Packer v. The Ship Southport and Cargo
310
Mar. 12, 1846
https://www.fold3.com/image/27954924
Packer, Gould et al. v. The Brig Mary and Cargo
311
Mar. 12, 1846
https://www.fold3.com/image/27954925
William Pent et al. v. The British Ship York and Cargo
321
Mar. 23, 1846
https://www.fold3.com/image/27954938
William Bethel v. The Schooner Francis and Cargo
328
Mar. 30, 1846
https://www.fold3.com/image/27954947
Although volume 3 of the Admiralty Records do not go beyond April 1, 1846, the day a decision was rendered in Bethel v. The Francis, a court in Key West apparently continued to award salvage that year. See Key West, May 24, 1846, Evening Post (NY), June 6, 1846, at 3 [hereinafter May 24 Evening Post Story] (reporting on recently decided cases). On May 22, 1846, Marvin gave judgment for the libellant in a non-salvage case that was later reversed by the U.S. Supreme Court for lack of jurisdiction. See Benner v. Porter, 50 U.S. (9 How.) 235 (1850).
These cases are included in the Admiralty Records that were maintained first by the Superior Court and later by the District Court in Key West.
The records, indexed by the name of the case (with some misspellings), can be accessed at https://www.fold3.com/browse/hnlVbj8D0iB_HqBN-. “The Telumah” is misidentified as “The Selennah.”
Two of these cases were later published in West's Federal Cases.
See The Tellumah, 23 F. Cas. at 835; The York, 30 F. Cas. at 818.
In his autobiography, Marvin skips over this part of his service, writing:
In July 1845, Florida having ceased to be a Territory and became a State in the Union, the General Assembly elected me Judge of the Circuit Court of the Southern Circuit. I declined to accept this office, and returned to the practice of law. In March, 1847, President Polk appointed me United States District Judge. I accepted this office and performed its duties until I resigned it in 1863.
Kearney, supranote 8, at 207. See also Betram H. Groene, Justice Samuel Douglas as Governor William Marvin Remembered Him, 49 Fla. Hist. Q. 268, 273 (1970) (reprinting letter from Marvin saying that when Florida became a state, “the Court of Appeals and the Superior Courts . . . were superceded [sic] by the State Courts, and Judge Douglas and others were left out of office.”).
Moreover, Marvin licensed wreckers during this time,
See The York, 30 F. Cas. at 819 (saying, in a decision dated Mar. 23, 1846, that the wreckers “are regularly and solely employed, under license of this court, in the business of cruising along the reef, and rendering assistance to vessels. . . .”); May 24 Evening Post Story, supranote 112 (mentioning claims for salvage filed by “licensed wreckers.”). Because the licenses previously issued were valid for one year, see supra text accompanying note 94, this shows that Marvin must have licensed these vessels after Florida became a state.
even though one might have thought his authority to do so lapsed when Florida ceased to be a territory. As will be seen, the U.S. Supreme Court ruled in 1850 that the superior courts were abrogated by Florida's statehood.
See Benner, 50 U.S. at 248. See also infra text accompanying note 135.
It is unclear why Marvin thought he legally could exercise judicial power during this period. Congress created the superior courts “in the territory of Florida,”
Act of May 23, 1828, supranote 8, § 1, 4 Stat. 291.
and one would think that these courts went out of existence when Florida became a state on March 3, 1845.
Part of the answer may be that the territory's dissolution took time.
One writer has concluded that the territorial period may be said to have ended in October 1845 with the appointment or election of all “officers under the state government who succeeded to functions of officers under the territorial government.” Charles D. Farris, The Courts of Territorial Florida, 19 Fla. Hist. Q. 346, 346 (1941).
For example, John Branch, the territorial governor, continued to serve in his post until June 25, 1845, when William D. Moseley became the first state governor.
See entries for John Branch and William Dunn Mosley at https://dos.myflorida.com/florida-facts/florida-history/florida-governors/.
On July 25, 1845, the new Florida state legislature provided for the transfer of all cases in the superior courts that are “cognizable by the Federal Courts, which may be organized in this state . . . to such court. . . .”
An Act to Organize the Circuit Courts of the State of Florida, Acts and Resolutions of the First General Assembly of the State of Florida ch. 4, § 8 (1845).
This provision is problematic. It is unlikely that the state legislature had any authority to regulate admiralty cases that were pending or might be brought in the superior courts. And even if it had such authority, it is not clear when a federal court in Florida was “organized.” Although Congress had created a district court for Florida after it became a state,
See An Act Supplemental to the Act for the Admission of the States of Iowa and Florida into the Union, and for Other Purposes, June 3, 1845, § 3, 5 Stat. 788.
it was not until May 5, 1846, that President James K. Polk nominated Isaac H. Bronson to fill that seat.
See Bronson, Isaac Hopkins, in Federal Judicial Center, Biographical Directory of Article III Federal Judges, 1789-present, athttps://www.fjc.gov/history/judges/bronson-isaac-hopkins [hereinafter Bronson FJC Biography].
Bronson was confirmed, and received his commission, on August 8, 1846.
Id. But see Benner, 50 U.S. at 244 (reciting that a judge was appointed to fill the seat on July 8, 1846).
Even if the Florida statute authorized Marvin to decide salvage cases until Bronson assumed office, it could not retroactively authorize Marvin to decide cases during the period between the beginning of statehood on March 3, 1845, and the adoption of the statute on July 25, 1845. It is more likely that Marvin thought that his commission to serve on the superior court from 1844 until 1848
gave him sufficient grounds to continue until a federal district judge was appointed for Florida.
Marvin may have shared the view expressed by Bronson when Bronson was still the superior court judge for the Eastern District of Florida. In a letter seeking guidance from the Secretary of the Treasury, Bronson declared:
Congress certainly could not have intended that there should be a kind of interregnum of three or four months, and it is manifest that the public interest would be best promoted by the present Courts and authorities continuing to act until regularly Superseded and the business can properly be transferred to other Courts—And though I am reluctant on the one hand to exercise any power or authority which may be doubtful or questionable—Yet on the other hand I should be equally unwilling to avoid or shun any proper responsibility which may rest upon me in consequence of this conjunction of circumstances or lack of clear legal provision—nor should I regard the question whether my salary was or was not paid, as of controuling [sic] influence, but only as tending to give me your construction of the late acts of Congress and thus aiding me in determining what course I ought to pursue, or how I should construe them.
26 Territorial Papers of the United States (1839–1841), at 1032, 1034 (Clarence Edwin Carter ed., 1962) (reprinting letter dated Mar. 28, 1845). The Secretary of the Treasury replied that he could not give an opinion on the court's jurisdiction. Id. at 1034 n.9. However, the Solicitor for the Treasury later (Apr. 30, 1845) gave an opinion that the superior courts would continue to have jurisdiction until the state government was in full operation. Id. at 1051, 1063.
Marvin also may have taken comfort in the Attorney General's advice that the district attorneys continue to represent the United States in the territorial courts.
Id. at 1047 (reprinting letter to the President, dated Apr. 18, 1845).
The Attorney General had advised the President that although the continued legitimacy of the superior courts was a matter for the courts, “it cannot be presumed to have been the intention of Congress to have produced an abeyance of all Government in Florida.”
Id. at 1048.
By continuing to serve, Marvin filled a critical need. During this time, federal courts discouraged masters of wrecked vessels from settling a salvage claim or agreeing to arbitration.
See Church, 5 F. Cas. at 672 (saying that neither a settlement nor an arbitration award is prima facie valid but that those who claim under it must prove it to be valid). The Federal Arbitration Act, which was adopted in 1925, makes it extremely difficult to overturn an arbitration award. See generally 9 Steven F. Friedell, Benedict on Admiralty § 111 (2021).
In a letter to President Polk in September 1845, Marvin wrote that because salvage cases could only be brought in an admiralty court, he “did not feel at liberty” to accept appointment to the state court to which he recently had been elected because it “would necessarily leave, for several months, large and important interests at the mercy of the bravest and the strongest.”
Letter from Judge William Marvin to President James K. Polk, dated Sept. 15, 1845, available at National Archives (College Park, MD), “Polk, Taylor, Filmore Administrations, 1845–1853,” Microfilm 873, 58(1), slides 553–54 (copy on file with the author).
Congress addressed the matter on February 22, 1847, when it transferred all the cases “of federal character” pending in the superior courts of the “late Territory of Florida” to the District Court of Florida.
See An Act to Regulate the Exercise of the Appellate Jurisdiction of the Supreme Court of the United States, in Certain Cases, and for Other Purposes, Feb. 22, 1847, §§ 1, 8, 9 Stat. 128, 130.
The next day, when Congress created the Southern District of Florida, it directed that those cases pending in the Superior Court in Key West be transferred to the new court.
See Act of Feb. 23, 1847, supranote 90, § 7, 9 Stat. at 131–32.
Pointedly, Congress neither “affirmed or disaffirmed the jurisdiction, power or authority of the territorial courts” to try cases after March 3, 1845, leaving that issue for the U.S. Supreme Court.
See Act of Feb. 22, 1847, supranote 132, § 8, 9 Stat. at 130–31.
The Supreme Court later ruled that the superior court's jurisdiction was abrogated when Florida became a state.
See Benner, 50 U.S. at 248. Benner involved a libel against the proceeds of a wrecking vessel for payment of supplies and stores provided to the master. The superior court had given a judgment of $1,223.02 in favor of the libellant on May 22, 1846. Id. at 235.
The Court made one concession to Judge Marvin, saying, “It is to be regretted that proper provision has not always been made by Congress, upon a change of government, in respect to the pending business in the Territorial tribunals, so as to remove all embarrassment and perplexity on the subject.”
Id. at 247.
When Bronson, as the judge for the District of Florida, made his first judicial visit to Key West in early February 1847, there had not been a salvage case decided there for several months.
See Correspondence of the Courier, Charleston Courier (SC), Mar. 1, 1847, at 2 (dispatch dated Feb. 14, 1847). Marvin appeared in court that day as a proctor. Id.
During the previous year, insurance companies and Key West residents had petitioned Congress for a locally-based federal judge.
On February 23, 1847, Congress created the Southern District of Florida.
See Act of Feb. 23, 1847, supranote 90. Bronson thereupon became the judge for the Northern District of Florida. See Bronson FJC Biography, supranote 124.
The statute required the judge to reside in Key West and authorized him to license wreckers.
President Polk nominated Marvin to fill the new post on March 2, 1847, and on the following day the U.S. Senate confirmed him and he received his commission.
The first libel in the new court was filed on April 26, 1847.
See Bethel v. The Rosalie (S.D. Fla. 1847), 4 Adm. Rec. 1, available athttps://www.fold3.com/image/27369516.
Conclusion
It is risky to create a history of a time or person from artifacts we locate. We never have the full picture, and we may misinterpret what we find.
For a further examination of these points, see the 1993 Tom Stoppard play Arcadia. See also Philip B. Kurland, Judicial Biography: History, Myth, Literature, Fiction, Potpourri, 70 N.Y.U. L. Rev. 489, 499 (1995).
Nevertheless, it seems that Marvin did more than decide hundreds of salvage cases over the course of more than 20 years. Those cases, and the rules he promulgated, helped to regulate an industry. His treatise was more than a systematic presentation of the rules of salvage. It provided salvors and their lawyers with guidance in how to try a case.
Marvin's court was efficient. Many cases were resolved within three or four days from the filing of the libel. Marvin also was a scholar who could admit and learn from his mistakes.
Most notably, throughout his judicial career Marvin succeeded in carefully balancing what remains the fundamental challenge in salvage disputes: to encourage others to save as many lives and as much property as possible without discouraging vessels in distress from seeking aid.
Compare Wreck and Salvage, supranote 6, at 213 (“Adequate rewards encourage the tendering and acceptance of salvage services; exorbitant demands discourage their acceptance, and tend to augment the risk and loss of vessels in distress.”), quoting The Nimrod, (1850) 7 Notes of Cases in the Eccl. & Mar. Cts. 570, 579 (Adm.) (Eng.) (Lushington, J.), with Margate Shipping Co., 143 F.3d at 986 (“In order properly to induce the salvor (and salvee) to act, however, the law must provide for a proper and reasonable salvage award, one that gives neither the salvor too little incentive to do the salvage properly, nor the salvee too little reason to care if his property is saved.”).
