Scottish Court of Session Decisions

This was an application presented to the Sheriff Court at Aberdeen under the Merchant Shipping Act 1894, secs. 547–548, for the determination of a salvage dispute. The petition was brought at the instance of Jens. Ph. Jorgensen, shipowner, Thuro, Denmark, owner of the Danish schooner “Hans Emil,” the vessel in respect of which the salvage claims were made, and he called as defenders the Neptune Steam Fishing Company, Limited, Hull, owners of the steam trawler “Tugela,” and George Walton, trawl shipowner, Hull, owner of the steam trawler “Royalist,” who had claimed payment respectively of £150 in name of life salvage, and of £630 for salving the vessel and cargo.

The pursuer, the owner of the “Hans Emil,” craved the Court to determine the amount or amounts payable by him to the defenders. He maintained that the claim of the Neptune Steam Fishing Company was not well founded in respect, inter alia, that the services were not rendered to any extent within British waters. He admitted that the defender George Walton was entitled to salvage, but maintained that his claim was grossly excessive.

The defenders consented to the dispute being determined in the Sheriff Court.

Proof was allowed and led.

The facts were as follows—The “Hans Emil” was a schooner-rigged sailing vessel of about 93 tons register. In the month of July 1901, while on a voyage from Norway to Iceland with a cargo of timber, she encountered storms and suffered damage, and was partly disabled. The mate was washed overboard, and a seaman was so seriously injured as to be unable to work. This left only the master and two boys to navigate the ship. On Friday evening, 19th July, when the “Hans Emil” was about 200 miles S.E. by S. from Iceland, which was the nearest land, she was sighted by the “Tugela,” which bore down upon the “Hans Emil,” and at the request of the master took off the master and the crew, three in number, including the injured man. The “Hans Emil” was then abandoned and left derelict, and the master and crew were taken to Hull in the “Tugela,” and safely landed there.

On Monday, 22nd July, the steam trawler “Royalist,” when about 80 or 90 miles from Iceland, and about 490 or 500 miles from Aberdeen, sighted the “Hans Emil,” and finding her to be a derelict put a crew on board her, consisting of the mate and two seamen, took her in tow, and brought her successfully into Aberdeen on Friday 26th July. The “Hans Emil” was quite watertight. The “Royalist” had no difficulty in taking the “Hans Emil” in tow, and it did not appear that the “Royalist” while towing the derelict was in any special danger except from fog. The fog began on Wednesday 24th, and continued till they reached Aberdeen. On the 22nd and part of the 23rd the weather was fine. On the 23rd the wind rose and there was a heavy swell, which continued on Wednesday 24th. On Wednesday there was apparently some danger of the tow rope parting, and the engines of the trawler suffered some strain owing to the towage in the swell.

The “Royalist” took four days to get to Aberdeen with the “Hans Emil” in tow and four more days to get back to her fishing ground. She thus lost eight days' fishing. Allowing for the expense of running the boat during a week and other outlay, the owner of the “Royalist” in

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conducting the salvage was put to expense, which, as estimated by the Sheriff-Substitute, amounted to fully £150.

The value of the “Royalist” as shown by the sum for which she had been sold subsequent to the date of the salvage, was £5000.

The seamen at first put on board the “Hans Emil” from the “Royalist” were the boatswain (Jebb) and a man named Forward, but Jebb having been taken ill was replaced by a man named Brewington.

It was admitted that the value of the cargo on the “Hans Emil” was £300, but the parties were at issue as to the value of the vessel herself. It was ultimately held by the Court to be established that her value was £800.

On 29th November 1901 the Sheriff-Substitute ( Henderson Begg) pronounced this interlocutor—“Determines the following amounts to be paid by the pursuer to the defenders for the salvage services rendered by them respectively, viz., £150 to The Neptune Steam Fishing Company, Limited, and £400 to George Walton, and decerns against the pursuer for payment thereof; Further directs the said Neptune Steam Shipping Company, Limited, to apportion and pay the said sum of £150 as follows, viz. (then followed the apportionment); and directs the said George Walton to apportion and pay the said sum of £400 as follows, viz., £300 to himself as owner of the ‘Royalist’; £30 to the captain (Samuel Murlin); £25 to the mate (Robert Lawie); £6 to the chief engineer; £4 to the second engineer; £10 to the boatswain (Jebb); £9 to the third hand (Forward); £7 to the spare hand (Brewington); £3 to the other spare hand (Goodman), and £2 to each of the three remaining members of the crew: Finds the said two defenders entitled to the expenses of process,” &c.

Note.—“It is admitted that the value of the cargo of the ‘Hans Emil’ was £300, and I think it sufficiently proved that the value of the vessel was £800. The salvage operations did not result in the earning of freight to any extent, for the vessel was brought by the salvors to Aberdeen, which is practically as far as Mandal from the port of destination. I therefore do not take into consideration the freight which the vessel earned after she had been repaired in Aberdeen.

It thus appears that the sums I am awarding in name of salvage amount to one-half of the value of the property salved. This is an exceptionally large proportion, but the circumstances are exceptional. Not only were the salvage services extremely meritorious, while the value of the salved property was small, but there were three specialties which appear to me to necessitate a high award. In the first place, there were two sets of salvors, one of life and the other of property, each set being entitled to a fair award irrespective of the claim of the other. In the second place, the property salved was derelict. In the third place, the salvors of the property appear to have been put to the expense of fully £150 in conducting the salvage operation. It is certainly desirable that trawling steamers, which are generally eminently qualified to render salvage services, should be encouraged to do so, and I do not think that they would have sufficient encouragement if I awarded anything less than I am doing in the present case.

The pursuer appealed, and argued—(1) The amount of salvage awarded to the owner of the “Royalist” (£300) was excessive. £150 would have been ample. There was no case on record where the joint award had amounted to half the value of the property salved unless the services rendered had been most “meritorious” or unless personal risk of life on the part of the salvors had been involved. There was nothing of that kind here. The salvors might have taken the vessel to Iceland or Faroe, but instead of doing so they had taken her to Aberdeen in the hope of getting a bigger award. It had not been proved that the value of the “Hans Emil” was £800. The following authorities were cited on the question of the amount of salvage:— The “True Blue” (1866), L.R., 1 P.C. App. 250; The “City of Cheater” (1884), 9 P.D. 182; The “Hebe” (1879), 4 PD 217; The “Acacia,” February 15, 1901, 3 F. 491, 38 S.L.R. 339; The “Frances Mary” ( 1827) 2 Hagg. Ad. Rep. 89. (2) As to the claim for life salvage. No claim arose unless the salvage had taken place in British waters—Merchant Shipping Act 1894 (57 and 58 vict. cap. 60), sec. 544. The owners of the vessel were not bound to pay life salvage unless some of the property had also been saved, so that if the derelict vessel had not afterwards been salved by the “Royalist” no claim for life salvage would have been exigible. The decision in the case of The “Pacific” (cited infra), relied on by the defenders, was not binding on this Court. The following cases were cited in regard to life salvage:— The “Willem III.” (1871), L.R., 3 A. & E. 487; The “Woosung,” (1875), 44 L J. Ad. 45.

Argued for the defenders the Neptune Steam Fishing Company, Limited—Prior to the Merchant Shipping Act of 1854 (17 and 18 Vict. cap. 104), no claim was exigible in respect of the salvage of life alone, apart from property. The Act of 1854, however, sanctioned it, and the Act of 1894 gave it a preference. The present case was on all fours with the case of The “Pacific,” [1898], P. 170. They also referred to The “Johannes” (1860), Lush. 182. The case of The “Woosung,” cited by the pursuers, was inapplicable, as the salving there was not done on the high seas, the crew being rescued from a dangerous position on an island in the Red Sea. The Court will not interfere with an award of salvage made by the Judge of first instance unless that award is unreasonable— The “Gantock Rock,” June 19, 1900, 2 F. 1060, 37 S.L.R. 804.

Argued for the defender George Walton—The value of the cargo and ship have been found to amount to £1100, and the award made in name of salvage to this defender (£400) was reasonable. In the

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cases of The “Pacific” and The “Hebe” (cited above) proportionate amounts were given. The ship and the cargo were making common cause here, and so both could be taken into account in fixing the salvage award. The expense of the salvage operations to this defender (£150) must also be considered in fixing the amount to which he was entitled.

At advising—