CHAP. II.]

Salvage.

implying a new contract pro rata itineris peracti (f) is not due until the cargo is at the port of destination, the Court of Admiralty proceeds upon equitable principles, considering rather what service in respect of the contract for freight has been rendered than what freight has been earned. And, therefore, where a Queen's ship fell in with a barque utterly disabled by a hurricane, on her voyage from Honduras to Falmouth, and towed her into Bermuda, where she was refitted at an expense equal to her whole freight, and afterwards completed her voyage and delivered her cargo; the court, considering that a large portion of the voyage had been performed, and that the entire benefit of so much, though subject to the expenses, had been preserved from immediate and absolutely total loss, awarded half of the gross freight (g).

Where part owner of the salvage vessel has an interest in the vessel salved, the co-owners and the master and crew of the salving vessel may sue for salvage, but the amount of the share of salvage to which their part owner would have been entitled had he not been interested in the vessel salved, must be deducted from the amount of salvage, which would otherwise have been recoverable by the salvors (h).

4. Of Salvage by Chartered Ships; Salvage Agreements; Salvage between Ships belonging to the same Owner, or engaged as Consorts in the same Adventure; Salvage by Persons employed to render other than Salvage Service; Salvage of Ships damaged by Collision with the Ships of those claiming from them Salvage Remuneration; Salvage by Licensed Pilots.

The charterer of a ship, except under special contract with the owners, is not entitled to salvage for services rendered by her crew to another vessel, though he may have a claim against the owner for delay and loss incurred (i).

The owners of a ship are liable to pay salvage to the crew of another vessel, which has been chartered by them, but where the crews of two ships belonging to the same owner assisted another ship which was not only chartered to him, but of which he appointed the master and crew, and which carried a cargo belonging to him, the court refused salvage against the owners of the chartered vessel (k).

Where two vessels sailed as consorts, under an agreement, usual in the Greenland fishing service and in other voyages, to render mutual assistance, the court refused to entertain a claim of salvage for services rendered by one to the other (1). But where an alleged cus

(f) See ante, p. 385.

(g) The Norma, 1 Lush. 124.
(h) The Caroline, 1 Lush. 334.
The Alfen, Swab. 189.

(k) The Waterloo, 2 Dods. 433. Maria Jane, 14 Jur. 857.

The

(1) The Zephyr, 2 Hagg. 43. The Margaret, Kay, 2 Hagg. 48. The Waterloo, 2 Dods. 433. The Trelawney, 4 Rob. 223.

tom, for vessels engaged in the fisheries to render assistance to each other gratuitously, was set up as an answer to a claim for salvage service, the vessels not having been engaged in a joint adventure, the court, declining to decide on the legality of such a custom, pronounced for the claim (r).

Where the crew of a vessel were much reduced by deaths or sickness, another vessel, which had supplied the deficiency on the high seas from among its own crew, and assisted to work her home, was held entitled to salvage (s). So also, where a vessel having lost her master by death, the mate of another vessel took his place (t).

Where the master of a vessel in distress had contracted with the master of another vessel for assistance, for a sum certain, a claim for salvage by the latter was rejected (u). Such an agreement, if not exorbitant and dishonestly entered into by the master, or obtained from him by fraud (w) and compulsion, will be held binding by the Court of Admiralty, except, perhaps, in cases of inevitable accident, or occurrences of a nature so improbable that neither party can be supposed to have foreseen or contemplated them at the time of entering into the agreement (x). But if the salvage service becomes necessary in the course of the performance of an agreement for towage, or the towage service has ceased to be possible by reason of tempestuous weather, or unforeseen or extraordinary peril, and salvage service be rendered by the towing vessel (y), the agreement will be no ground for refusing (z) to the towers, a salvage reward-mere towage service being confined to vessels which have received no damage (a). So, although a claim for salvage by a person originally engaged as a pilot will not be favored, or a contract for more than mere pilotage service lightly extended; services of a salvage character rendered to ships found by pilots going on board of them to be unseaworthy, will not be held compensated by mere pilotage remuneration (b).

(r) The Swan, 1 Wm. Rob. p. 68. In the case of The Harriet, 1 Wm. Rob. p. 439, the Court directed an issue to the Court of Common Pleas to try the question of the existence of such a custom, and, the verdict being in the affirmative, pronounced for the

custom.

(s) The Roe, Swab. 84.

The

(t) The Janet, Mitchell, ib. 111. (u) The Mulgrave, 2 Hagg. 77. Betsey, 2 W. Rob. 167. The True Blue, ib. 176. The Repulse, ib. 396. The Graces, 2 Wm. Rob. 294. The Henry, 15 Jur. 183. The Samuel, ib. 407. The Minnehaha, 1 Lush. 335, S. C. Ward v. McCorkill, 15, Moo. P. C. C., 133. The master of the vessel rendering assistance has power in these cases to bind his own interest and that of his employers, but his agreement will not bind the crew unless they concur in it. Such a bargain would be contrary to principle, as tending to deprive salvors of their usual motive to enterprise. The Britain, 1 W.

Rob. 40. The Sarah Jane, 2 W. Rob. 110. The Louisa, 2 W. Rob. 22; and see the 17 & 18 Vict. c. 104. s. 182, which provides that every stipulation by which a seaman consents to abandon any right which he may have or obtain in the nature of salvage shall be inoperative.

(w) The Theodore, ib. 351.

(x) The Helen and George, ib. 368. (y) The Betsry, 2 W. Rob. 172. True Blue, 2 Wm. Rob. 179.

(z) The William, cited in the Betsey, 2 Win. Rob. 172. The Isabella, 2 Hagg. 428. The Princess Alice, 3 Wm. Rob. 138. The London Merchant, 3 Hagg. 324. The Reward, 1 W. Rob. 174. The Galatea, Swab. 349. The Saratoga, 1 Lush. 318. The Albion, ibid 282. The Minnehaha, ibid. 335.

(a) The Reward, 1 Wm. Rob. 174.

(b) The Jonge Andries, Swab. 226; S. C. in P. C. Halsey v. Albertuszen, 11 Moo. P. C. C. 813.

It is a settled doctrine of the Court of Admiralty that no pilot is bound to go on board a vessel in distress to render pilot service, for mere pilotage reward. If a pilot, being told he would receive pilotage only, refused to take charge of a vessel in that condition, he would be subjected to no censure; and if he did take charge of her, he would be entitled to a salvage remuneration (d).

A tug under contract to tow, is generally bound to obey the orders of the pilot in charge of the ship towed (e), and if in so doing or by reason of extraordinary and unforeseen peril, the tug incurs risk, and performs service not within the scope of its original engagement, or sustains damage-its owners are entitled to salvage reward and to compensation for such damage (f). But a tug will not be entitled to salvage or compensation for damage if her difficulties and those of the vessel in tow, are brought about by negligence or want of reasonable skill on the part of the tug.

If it should appear that an agreement has been made for the salvage of the ship irrespective of the cargo on board at the time, all salvage remuneration will be refused (g). But loose conversations at the commencement of the service, and before its extent could be known, will not be considered conclusive of the merits of the case, or the amount of the award (h).

If a hired transport, under the care of a master appointed by the owner, be brought into difficulty in the execution of a service in which men-of-war and transports are associated, a man-of-war is bound, if it be in his power, to extricate the transport, and can have

(d) The Frederick, 1 W. Rob. Rep. 16. The Elizabeth, 8 Jur. 365. The Joseph Harvey, 1 Rob. 308. The City of Edinburgh, 2 Hagg. 333. The Industry, 3 Hagg. 203. The Hebe, 2 W. Rob. 246.

(e) The Saratoga, 1 Lush. 318. The Minnehaha, ibid, 335; S. C. Ward v. M'Corkill, 15 Moo. P. C.C. 133.

(f) The Saratoga, 1 Lush. 318. The Minnehaha, ibid, 335; S. C. Ward v. M'Corkill, 15 Moo. P. C. C. 133. "When," said Lord Kingsdown, delivering the judgment of the Judicial Committee of the Privy Council, a steam-boat engages to tow a vessel for a certain remuneration from one point to another, she does not warrant that she will be able to do so, and will do so under all circumstances and at all hazards, but she does engage that she will use her best endeavours for that purpose, and will bring to the task, competent skill and such a crew, tackle, and equipments as are reasonably to be expected in a vessel of her class. She may be prevented from fulfilling her contract by a vis major, by accidents which were not contemplated, and which may render the fulfilment of her contract impossible, and in such case, by the general rule of law, she is relieved from her obligations. But she does not become relieved

from her obligations because unforeseen difficulties occur in the completion of her task, because the performance of her task is interrupted or cannot be completed in the mode which was originally intended, as by the breaking of the ship's hawser. But if in the discharge of this task, by sudden violence of wind or waves, or other accidents, the ship in tow is placed in danger, and the towing vessel incurs risks and performs duties which were not within the scope of her original engagement, she is entitled to additional remuneration for additional services, if the ship be saved, and may claim as a salvor instead of being restricted to the sum stipulated to be paid for mere towage. Whether this larger remuneration is to be considered an addition to or in substitution for the price of towage is of little consequence practically. The measure of the sum to be allowed as salvage would of course be increased or diminished according as the price of the towage was or was not included in it. In the cases on this subject, the towage contract is generally spoken of as superseded by the right to salvage."

229.

PP

(g) The Westminster, 1 Wm. Rob. p. (h) The Salacia, 2 Hagg. 232.

no claim in the nature of salvage for the performance of his duty (b). So also, if part of the crew mutiny, and obtain a temporary possession of the ship, and another part afterwards attack and overpower the mutineers, and recover the ship, the latter cannot maintain a suit for salvage, because their conduct, though meritorious, is only the performance of a duty incumbent on them (c).

The Court of Admiralty was at all times reluctant to permit a claim for salvage to be engrafted on a claim for damage (d). And the provision of the Merchant Shipping Act Amendment Act, 1861 (e), which renders it the duty of colliding vessels to assist each other, and deprives them of all remedy for damage sustained, should they fail to do so, may now probably, except under very special circumstances, be held, a peremptory bar to such claims.

5. Of Salvage by the Crews of the Royal Navy, and by Licensed Pilots.

But although by the law of England there is an obligation upon King's ships to assist the merchant vessels of this country, still a King's ship may be entitled to an adequate reward for services formed by her (ƒ).

per

In the case of the Lustre (g), value 1,1007., to the assistance of which, on the application of her owners, his Majesty's steamer Dee had been despatched, by order of the admiral at Portsmouth, 66 upon the express stipulation and condition that the owners and underwriters would be answerable for the payment of the stores expended or damaged,"-it was alleged, that this stipulation barred the officers and men from all claim to salvage. Sir John Nicholl said, "It is a mistake to suppose that the public force of the country is to be employed gratuitously in the service of private individuals, merely to save them from expense. These government steam-vessels are kept for the public service, and the officers in command cannot employ them in the service of individuals, and thus risk the public property, without authority, or an indemnity for all expense and damage. Here there was a stipulation given, upon the admiral at Portsmouth allowing the Dee to be so employed; but it has nothing to do with a reward for personal service; it was never so intended, and cannot, on principle, be so maintained. There might in the service have been a great exposure of life, and there was much of risk and labour. Why are officers and crews to hazard their lives or undergo labour to save the owners of merchant ships from the expense of hiring private steamers, or resorting to other means? I am clearly of opinion, that officers and men so employed, and who perform

(b) The Belle, 1 Edw. 66. See also the Francis and Eliza, 2 Dods. 115. (c) Governor Raffles, King, 2 Dods. 14. (d) The Sappho, Swab. 242.

(e) 25 & 26 Vict. c. 63, s. 33.

(f) Mary Ann, 1 Hagg. 158. The Clifton, 3 Hagg. 117.

(g) 3 Hagg. 15

essential service, are entitled to reward as much as in the case of recapture. In that description of cases they receive less than the law gives to privateers; so here, the condition to reimburse all expenses in case of damage, is a reason for a less reward than when a steamer goes out on private risk and enterprise. The only question is, the quantum: 1007. is as little as I can give, and the expenses."

In a subsequent case (h) of salvage, by a government steamer and two hundred men, it appeared that the Ewell Grove was in extreme danger on a shoal off Jamaica, where she had been for three days, when signals of distress brought the steamer to her assistance. In about eight hours afterwards, the Ewell Grove was moored in safety, and on the next morning towed into Carlisle Bay. The court on a value of 6,000l., gave 1,2001. and costs.

And in another case (i), Dr. Lushington decreed that for personal risk and labour encountered in a salvage service, the officers and crews of King's ships were entitled to remuneration upon the same footing as other salvors.

But upon this subject it is now provided, by the "Merchant Shipping Act, 1854," that in case of salvage services rendered by any ship belonging to her Majesty, no claim shall be allowed for any loss, damage, or risk thereby caused to such ship, or to the stores, tackle, or furniture thereof, or for the use of any stores or other articles belonging to her Majesty, supplied in order to effect the salvage service, or for any other expense or loss sustained by her Majesty by reason of such services (k); and that no claims for such services shall be adjudicated upon without the consent of the Admiralty (l).

The Act contains various provisions respecting the ascertaining, before consular officers or Vice-Admiralty Courts abroad, the amount of security to be given to salvors, when salvage services have been rendered by the commander or crew of her Majesty's ships, and for the payment of the salvage to be allowed by the High Court of Admiralty of England, or Vice-Admiralty Courts, or agreed upon by the master and the salvors (m).

The bond to be given for this purpose is binding on the owners of the ship, freight, and cargo, for the salvage adjudged to be payable in respect of them (n).

On execution of the bond by the master, and delivery thereof by him to the salvor, the right of the salvor to detain or retain possession of the ship, cargo, or property ceases (o).

Salvors who elect not to proceed under the Act shall have no power to detain the ship, &c., but may proceed for the enforcement of their salvage claims as if the Act had not passed (p).

(h) The Ewell Grove, 3 Hagg. 209. (i) The Wilson, 1 W. Rob. Rep. 172. See also Earl of Eglinton, Swab. 7. (k) 17 & 18 Vict. c. 104, s. 484. (2) 17 & 18 Vict. c. 104, s. 484.

(m) Sects. 486-490.
(n) Sect. 491.

(0) 17 & 18 Vict. c. 104, s. 488.
(p) Sect. 110.