VICE-ADMIRALTY COURT.

New Zealand Times, Volume XXIX, Issue 4277, 4 December 1874, Page 2

VICE-ADMIRALTY COURT.

Thursday, December 3. (Before His Honor Mr. Deputy Judge Johnston.) THE STEATHNAVER SALVAGE CASE—JUDGMENT. Mr. Gordon Allan and Mr. Izard appeared for the salvors, the owners, captain, and crew of the s.s. Stormbird; Mr. Travers for the owners, and consignees of the ship Strathnaver. His Honor delivered the following judgment : It now becomes my duty to give judgment in this case, which is one not only of importance to the parties, but also of no little interest to the community at large. At this period in the history of the colony, when a great stimulus has been given to commercial and industrial enterprise, which is sending to our shores many ships, much merchandise, and a great number of immigrants, it seems to be desirable that the principles and maxims of the law of salvage, as administered throughout Her Majesty’s dominions, should he thoroughly understood and appreciated, and should he applied to the circumstances of particular cases in a liberal spirit, but with firmness and discretion. The beneficial results of encouraging and stimulating the owners, masters, and crews of ships, by liberal rewards, to undertake services of a laborious or dangerous character, in order to save other vessels with their cargoes and crews and passengers from imminent peril, are sufficiently obvious, and are amply evidenced by the periodical maritime records. But while it is, uuquestionably, expedient to acknowledge and remunerate such services, amply and generously, where there has b«en some real risk and peril to the vessel assisted, it would be dangerous to encourage extravagant claims for services, which, though of some value in themselves, and even not unaccompanied by difficulty and danger to those reudering assistance, yet, turn out to have been unnecessary—simply on the ground that tha assisted vessel was not in any actual danger, or in a disabled condition. The award°of salvage in the latter class of cases would tend to deter vessels from accepting the services of towing ships when they would be beneficial, if remunerated only as for towage ; while on the other hand the refusal of salvage reward to towing vessels when they have' rescued ships from some real danger, or where they are in a seriously damaged or disabled condition, might, as Dr. Lushington observed in the case of The Martin Luther—(Swahey 290) —induce owners to instruct the masters of such vessels not to engage in salvage services, except for the pur. pose of saving jlife—a course vhich would be most detrimental to the interests of commerce. But as it seems to me in this case uunecessary, so I think it would be undesirable, that I should attempt even to indicate the various considerations- ,which are to be kept in view in coming to practical conclusions on questions of salvage, either as to the nature of the service, the rate of remuneration, or the mode of apportionment. Upon the evidence as given by the' large body of witnesses produced, which I have analysed and weighed to the best of my ability, I have come to the conclusion of fact that, although the services of the s.s. Stormbinl were useful, they amounted only to towage services properly so called, and that they did not save the ship Strathnaver from any actual danger For I am of opinion, on the whole of the evidence, that the promoters of the suit have failed to make out that the ship was in such danger as to entitle them to remuneration as salvors; although I am of opinion that the captain of the steamer may honestly have believed that she was, and that his services were necessary for her rescue. And here I would advert for a moment to the mode of procedure prevailing in the Courts of Vice-Admiralty as to the trial of questions of fact, which, though perhaps not so unsatisfactory in some respects as the more ancient course of practice in the High Court of Admiralty, still seems to confer a power and impose a responsibility upon a single individual, which might 'more satisfactorily be wielded and borne by another sort of tribunal. The intervention of a special jury (either of twelve or a smaller number), or at all events the addition of independent nautical assessors, when practicable, to assist the Judge, would seem desirable in cases of conflicting testimony, especially in a colony like this, where the Judges of the Court, having various jurisdictions of a widely different character to exercise, cannot be expected to have much of that technical experience which may be looked for in those who have been specially selected to preside in such a tribunal. Ido not, however, wish it to be understood that I entertain any grave doubt as to the conclusions of fact at which I have arrived. In this case, although there is, unquestionably, a considerable conflict of evidence, yet I am happy to say that, according to the general view which I take of it, I think that not only is .it unnecessary to impute per jury to any of the principal witnesses, but also that it is quite probable that they are equally deserving of credit in respect of intention and desire to tell the truth, according to their impressions, memory, and belief.

With regard to the prejudice which may have been created in their minds, and the color which may thence have been imparted to their evidence, from the influence of personal interest, there can be no doubt that the master, officers, and crew of the steamer would be naturally anxious to make the case out tobe one of salvage; while the captain and officers of the Strathnaver would be equally anxious to protect their owners against such a charge. But, with regard to the pilot—a public officer appointed by the local government—against whom no accusation has been brought of remissuess in the performance of his duty in respect of the pilotage of the vessel, and, with [regard to his boat’s-orew,T - do not see what ground there can he for suspecting them of entertaining so strong a prejudice in favor of the English ship, and against the colonial steamer, as to induce them either to commit perjury, or to give a highly-colored and strained account of the transaction in favor of the former, and to the prejudice of the latter. It is true that allowance is to be made for a tendency to exaggeration by witnesses in favor of the side which they have adopted, and of which they have become supporters after litigation has commenced or become probable ; but this allowance I have made, in coming to conclusions on matters of fact. The suggestion made by counsel for the salvors that the circumstance that the pilot’s crew agreed so minutely as to a period of time —described as half-an-hour—discredited their testimony, although worthy of consideration, does not force me tfl the conclusion that they are undeserving of credit as to the general effect of their evidence. The real question in the cause is whether the ship Strathnaver ever was in danger ou the night in question ; for, unless she was, there can be no claim for salvage : and if that question can be answered in the affirmative, then comes the question whether she was saved from that danger by the orders or advice of the captain of the steamer to port her helm, when she first came up to the vessel, or afterwards by the steamer towing her into the main channel. Now, with regard to the existence of danger, it is not denied, but vvas admitted by Mr. Travers for the ship, that when the pilot came up to the vessel on the port side—(which must have been, according to the weight of evidence, but a very brief space of time before the steamer first arrived on the starboard side) —the ship’s head was in such a direction that if she had continued in her course for some time without any alteration-(that is, if there was sufficient wind or swell to make her do so), she would have gone ou Barrett’s Reef. There is, no doubt, a substantial difference between the evidence of Captain Eloile, and that of Captain Devey and the pilot, as to the ship’s position at that time. According to Captain Doilo’s statement her position was such that the danger then Avas of her drifting on to th Western Ledge; and although there is some other evidence which tends, to corroborate that A’iew of the case, I feel bound to conclude that the evidence of the ship’s officers* (two of whom took the bearings at that time) (' and of the pilot and his crew, who rowed ove' \

the adjacent water, outweighs that which is adduced on the other side, and satisfies me that their statements are more near to the actual truth. It may be that the ship had approached rather too near the reefs, before the arrival of the pilot, for her to continue in safety, if the tide had been setting in, or if the wind had freshened to the southward. But it was stated by various witnesses on both sides that the wind had become almost imperceptible, and by others, whose testimony I think, on the whole, outweighs the evidence to the contrary, that the tide was ebbing sufficiently fast to more than counteract the inward-bearing force of the southern swell. Under these circustauces, with a good lookout ahead and proper reference to the chart, it may bo that the captain' of the Strathnaver might, if ho could, have proceeded even farther inwards than he represents, without being in actual danger. At all events, the pilot and his crew and the officers of the ship deliberately affirm that they saw nothing to induce them to believe that the ship was in any danger. And on this point, I may observe that unless they and various other witnesses have most grossly misrepresented the circumstances of the case, no person on board the ship, either in authority or otherwise (with the exception perhaps of the timid immigrant, mentioned in the evidence of one of the crew examined at chambers, who sailed hence in the Euterpe), acted or spoke as if any danger existed. With regard to the suggestion made in the libel that the vessel bumped on Barrett's reef, and that she threw the wheel out of the hands of tire steersman, the evidence fails to satisfy me of"' the probability of either occurrence. I believe that the only shock which could have been felt was a jerk which took place at the time of the parting of the tow rope, of which but a few persons aboard, as far as we know, seem to have been conscious. I do not deem it necessary to go into the minutiro of the conflicting evidence upon.the question of danger. It is sufficient for me to state my conviction that whatever might have happened had the pilot not come on board at the time he did, or soon after, or had a change of circumstances suddenly occurred, the ship was in no actual danger when the pilot came alongside and gave his first order, or at any- time afterwards. Before leaving this question, I think it right to allude to a supposed admission made by the pilot, and to observe that even if Mr. Bead be quite correct in the account he gave of the pilot’s remark next day, in the street, as to the proximity of the ship to the’rock—which that gentleman with zealous fidelity to the interests of his employers so promptly recorded, but which the pilot says he has no recollection of having made—l do not attach great weight to it, in the absence of any suggestion that the pilot used any other expression admitting that the vessel had been in danger, especially when I look to the deliberate and cumulative testimony of the pilot and his crew and the officei-s of the ship. Having come to this conclusion with respect to the question of the existence of danger, it is scarcely necessary for me to discuss the other question, whether the alteration of the course of the vessel was attributable to the orders or advice of Captain Doile, or to the orders of the pilot. But 1 think it desirable for Captain Doile’s sake to allude to it. I feel satisfied that the pilot did arrive alongside the vessel, and did give the order to “port the helm,” before Captain Doile first came up to the ship and hailed her, and that the order had been acted upon ; but I think that the interval between the two occurrences was but very brief ; that Captain Doile was not aware that the pilot was aboard or alongside, and that he might well have thought that the alteration of course which had taken place before he returned to the ship’s starboard side had been the result of Ms hailing. The argument of Mr. Izard for the salvors, founded upon the distance which the steamer and the pilot boat probably made from the time when the pilot boat first saw the steamer behind, is well worthy of consideration ; but, at the best, it Would leave the question of priority of arrival in some doubt. I am of opinion that it does not seriously affect what I believe to be the preponderance of the evidence in favor of the arrival of the pilot boat, and the order by the pilot from the boat to port helm before the first arrival of the steamer and hailing of Captain Doile. The evidence, on the whole, leaves me under the impression that Captain Doile acted hand fide throughout, that he began by assuming that the signals were signals of distress, and that from his first point of view the vessel might well seem to him to be in dangerous proximity to the Western Ledge ; and as he admits that when he came up to her, there being high land behind, he could not give a very certain account of the condition of her sails, that seems a reason for believing that he could not know so well what interval there was between her and the Western Ledge, as persons might know who were keeping a look-out on board of her.

Under these circumstances, and believing that the pilot was not aboard, he gave a prompt hail to “port the helm and I think very probably added something about her going on a reef, although several witnesses on board the ship, who heard the former part of his hailing, did not hear the sequel. • By hia own account he went about a mile off—[it was probably not so far] —and then returned to the ship, when he discovered that the pilot was on board. He says he believed the vessel still to be in danger, and called on her to drop her anchor, which she did not do. Evidence was given for the salvors to prove that the anchors could not have been dropped ■with sufficient promptitude, but the evidence of the ship's officers tended to prove the contrary. With regard to the colloquies which took place concerning the towing, the statement of the captain of the steamer, amply corroborated by persons aboard the ship, that he refused to make terms as to the price of towage, deferring that matter till arrival in port, is of course consistent with his bo n A fide belief that his services were necessary to the safety of the vessel. But if the captain of the ship and the pilot are to be believed on their oaths as to the conversation which took place between them concerning the propriety of asking or accepting the services of the steamer at all, and of trusting to the respectability of her owners that an overcharge would not be made for towage, there seems to be no doubt that they could have been under no belief or apprehension at that time of the existence of danger so imminent as Captain Doile believed or has represented. The evidence of the pilot’s crew and passenger who had rowed down by Barrett’s Reef to the ship, and who twiee took the line to the steamer from the port side on the ship, and were towed up the channel to the port aide seems to me to be strongly corroborative of the case made by the master and officers of the ship and the pilot himself. In concluding my observations on the evidence, I desire to express my sincere hope that the result of this case, in which the claim of salvage has been based on what may originally have been but a mere mistake—(though unfortunately a mistake entailing most serious consequences)—will not discourage the owners and masters of steam vessels engaged in the ordinary trade of the colony from being ever ready to lend assistance to vessels really or apparently in danger, but will only induce them to restrain their claims for remuneration, beyond the value of towage service, to cases where they can establish tho existence of actual danger to the vessels assisted, and in which, therefore, they have a right to expect a liberal salvage remuneration.

In the absence of any precedent showing that the Court may make a decree for ordinary towage, in what is substantially a suit for salvage, and m which no tender has been made, and considering that as far as authorities have been brought before mo, the cases in which decrees have been made for suras in addition to sums tendered on the footing of ordinary towage, have proceeded on the ground that the services were of salvage character, and not mere towage services, X do not see my way to make a decree for the amount of towage earned by the steamer, and therefore feel it my duty to dismiss the suit ; and as there is no foundation laid for making the case an exception to the general rule, the costs must follow the judgment. Decree : salvors to pay coats.

Mr. Travers asked his Honor whether the costs of the demurrage would be included in the decree.

Mr. Allan objected on the ground that the ship could have obtained bail and proceeded on her voyage. Mr. Travere said he could bring evidence to show that, in point of fact, the captain of the Strathnaver was not in a position to obtain bail for the large amount required, £7OOO, and that the vessel would necessarily have been detained even if bail had been given, from the impossibility of obtaining fresh officers to navigate her. He was in a position to show that the captain had endeavored to obtain a conditional charter for the vessel, and that the merchants had refused to enter into any contract with the ship, because even if bail were given, they could not secure the services of fresh officers for the ship. His Honor : What do you suggest, then, as the proper mode of proceeding ? Mr. Travers said he would suggest that the Court should take evidence upon the question of demurrage, and reserve the terms of the decree for further directions. In the meantime the vessel can be released. His Honor said that as the practice was new to him and important to the parties to the suit, it should not be decided in a hurried manner. He would therefore reserve the question for further directions.

The Court then adjourned till Friday, December 11, when the decision of the Court upon the demurrage question will be given.