The Courts.

Otago Witness, Issue 1271, 8 April 1876, Page 4

The Courts.

VICE-ADMIRALTY COURT IN NEW ZEALAND.

Wednesday, 29th March.

(Before His Honour Deputy Judge Williams.)

THE TAIAROA CASE.

Action brought to recover L9OOO salvage, on behalf of the owners, master, and crew of the steamer Express (promoters), against James Galbraith and Co., owners of tho screw steamer Taiaroa (respondents).

Mr James Smith, with him Messrs V 7. D. Stewart and Sinclair, for the promoters ; Mr B. O. Haggitt, with him Mr Stout, for the respondents.

His Honour now delivered judgment as follows :—: —

The steamship Taiaroa, bound from Glasgow to Dunedin, about 7.30 a.m. on the 10th December, 1575, struck on the Old Man Rock, near Dog Island in ifoveaux Strait — a rock nut marked on the chart. At the time she str.ick, the sea was perfectly calm, and there was no wind. The master, believing from the report of the engineer that she was in a sinking slate, beached her on the island, at a place where there svas a considerable quantity of kelp —an indication of a rocky, or partially rocky, bottom. She was beached very gently, or.c of the witnesses, Mason, says that after she was lying on the ground, ho felt some heavy bump*, but it is <it least doubtful whether she received «iy additional injury from having been beached. After she had been beached, the flood tide gradually floated her oft, and the master let go her two anchors. After she was beached, and while at anchor, the water in her did not increase, but was kept down by the pumps worked by the donkey engine. About 10 a.m. she was boarded by Captain Thomson, the HarbourMaster and Chief Pilot at fe Bluff, the anchors were got up, and, with the aid of her screw and topsail, she proceeded about three-quarters of a mile to a mile from the island, in the direction of the Bluff. She was there met by tho steamer Express and towed to Bluff harbour. The questions to be decided by the Court are— Whether the services rendered by the Express to the Taiaroa are salvage services ; and, if so, what amount of remuneration should be awarded for them. It will be desirable, in the firßt instance, to dispose of the question as to whether the Express went to the Taiaroa under an agreement with her to render salvage assistance, or whether she went at her own risk for the chance of earning reward. In the former ovent, according to the principle laid down in the lease of the Undaunted, 2, L.J., N.S., 520, if the Express did all she could to render assistanca, but the Taiaroa got out of danger by her own unaided exertions, yet the Express would be entitled to salvage. It is quite clear that Captain Fraser was induced in the first instance to get up steam in the Express and proceed to Dog Island from the information he received from Captain Thomson— that the Taiaroa was ashore there. On his way across, near the mouth of tho harbour, he met the boat of the Taiaroa with the mate Stevenson— and four men in her. A conversation took place between the mato and Captain Fraser respecting which the evidence is somewhat conflicting ; and on what took place as this conversation depends the question as to wnethei the Express was employed to render salvage assistance to the Taiaroa. Fraser, the captain of the Express, states that Stevenson said he had been sent for a steamer. Paterson, the mate of the Express, and Captain Jess, a passenger, state that Stevenson said he had been lent for assistance, but do not mention that he said anything about a steamer. Stevenson himsslf states that when Captain Fraser told him that Captain Thomson had gone off, he said it was no use his going any further, and asked Captain Fraser to give him a tow out of the harbour, and that he did net know then whether Captain Fraser was goinj to tho Taiaroa or to Dunedin. He denies that he said anything about a steamer, or that he had any orders from the master of the Taiaroa to engage a steamer, but that his orders were to get Captain Thomson, Harbour Master, with whom he appears to have been previously acquainted,

or some other responsible person. Captain Spiegelthai, the master of the Taiaroa, confirms the statement 0/ the mate as to the ordeis that were given him, and the signal hoisted by the Taiaroa, " Send a responsible pen-on on shore," is seme further evidence of what the master of the Taiaroa wanted. On the other hand, Captain Spiegelthal, before the boat left the Taiaroa, was aware the Express was at the Bluff, and had talked to the lighthc use-keepurs on the subject of procuring assistance. According- to one of them lie had askeil them to signal to the Pilot station for assistance, and according to the other had asked them to signalise for a steamer, and had intimated that he would have to send for the Express, or that the Express would have to come for them, or something to that effect. Ir, appears to me certain tfrat at the time Cnp-ain Spiegolihal sent away the boat ho thought ho would require the ftsiistur.ee of the Exprtst., but f do not think that this ftvt necessarily impeaches the truthfullness of his statement of tne ordeis given to the mate. His intention seems to have been, a* shown by his signal, to <>et a person on whom he cou'd place the responsibility of getting his ship out of he dangerous position. Though he might himself contemplate the neoL\ssity of employing a steamer for the purpose, he mix lit well wait for the arrival of the person he s,ent for, and leave to his t'isc etion the means to be employed. Putting nsirle wilful untruthfulness, the mate of the Taiaroa, having received a specific order from the master, and acting' m pursuance of it, is more likely to give a correct account of what he said to Captain Fraser than any other person preseut. And even admitting the aacount of Jo a and Patercon to be sub.stantialiy true, I doubt if the conversation would amount to an agreement with the Express to render salvage assistarce. Looking 1 at the conHiat of evidence, and at the rule clearly laid down in the case of the Nyraphe, 6, L.J., N,S , 3fis. and the Princess Alice, 3, W. Kob., 148, that the on us probandi lies on the salvors, I do not think that the fact that an engagement was entered into has been established. A further preliminary question arises as to the effect of the signals hoistod by the Taiaroa. It appears that the Taiaroa, after s-he struck, hoisted the signal DNQ of the Commercial Code, which means, '■ Semi a responsible person on shore." The signal halyards appoar to have been leading aft from the main-topmabt head, and it is disputed whether or not the flags were pulled right up to the mast-head. Captain Fraser asserts that he took them to be halfmast, high, and intended as a signal of distress Ido not think it is suffi< ieutly proved that they were not pulled up ti the mast-he id, but in any case J am satisfied that the mero fact of their not having been pulled up would not indicate that the vessel was in distress or required assistance. It was contended by the salvors, on the authority of the Little Joe, 1, Lush, 88; the Otto Herman, S3, LJ., Ad. 380; and the Racer, 80, LJ., N.S. 904, that any signal hoisted by a ship in distress or difficulty i 9 a signal for assistance, and a request for help to all the world ; and that all services rendered In. acts srdance wirh such requests would be remunerated as salvage services. I doubt if the caies go Mint length. It appear* from the Little Joe that there had been many disputes, especially with foreign vessels, as to what was a signal for a pilot, and what a signal of distress and the Court held that when it was shown that the vessel wanted more than pilotHge, any signal should mean a request for salvage assistance ; and, on the other hand, if the condition of the ship showed that a pilot only was wanted, that the signal shou dbe interpreted to be for a pilot only. I think, when it is said that any signal should mean a request for salvage assistance, it is impossible that it can be meant that a definite unambiguous signal, not for a pilot, but for some other purpose, can be held to be a request for assistance. Fishermen and others, seeing a vessel apparently in distress, and hois'ing an ambiguous signal, were induced to hazard their lives in the hope of salvage, and whan they got off to the vessel, were told that only a pilot was wanted, Hence apparently the rule that whether the signal was ambiguous, or whether it was a signal for a pilot, the condition of the vessel should be the criterion of whether it implied a request for salvage assistance. The Bacer, the latest case, was decided on ths ground that the signal hoisted was an ambiguous one. The Merchant Shipping Act, 1873, now prescribes a particular 1 signal for a pilot, and prohibits, under penalty, the use of any other, it also prescribes a signal of distress. These provisions of the Act have been adopted by the New Zealand Legislature. It cannot be said in the present case that, Captain Fraser's action was in any way influenced by the signals. When he saw them he must have been well on his way to the, Taiaroa. He states that he saw flairs flying— he could not say how many — and that he did not read them. He therefore was not misled by any ambiguity. There was, in fact, no ambiguity in the sense in which the word is usdd in the case of the Racer. The position of the flags in the rigging, and the fact that the wind didn't blow them out, would not constitute an ambiguity, and although the precise meaning of the words of the signal may not be quite clear, yet they .ira clear enough to sho\y that the • signal was not iv distress signal ; indeed, the fact that I it consisted of three flags, while matter of danger or urgency are notified by two only, would negative any presumption that it was a general request for assistance. If, however, it could possibly be held that the Taiaroa's signals were ambiguous, the above cases decide only that if assistance is rendered in response to an ambiguous signal, the condition of the vessel at the time the as->istance is rendered would be the criterion to whether the services rendered were salvage services. I am not aware that it has ever been decided that if a vessel when in danger hoists an ambiguous signal, and gets out of danger before assistance is rendered, persons acting in response to that signal are entitled to salvage remuneration, Having disposed of these preliminary questions, the next point to be decided is as to whether the service actually rendered by the Express to the Taiaroa was a salvage service. The case has been reduced to that of a volunteer salvor hearing of a ship in distress, aud putting off to its assistance, and it will be necessary to consider wich some minuteness the position of the Taiaroa previously to the arrival of the Kxpress, and at the time of her arrival, and how far the services rendered by the Express conduced to the safety of the Taiaroa. Shortly after the Taiaroa struck she was beached, she then floated with the tide, and the captain let down two anchors. She remained in this position from about 8 a.m. till about 10 a.m., when Captain Thomson, the Harbour Master and Chief Pilot at the Bluff, with Captain Logan, a representative of the owners of the Taiaroa, came on board. The Taiaroa was divided into three compartments ; the sluices between the fore : compartment and tho engine compartment were closed, those between the engine compartment and the after compartment were open. She had received injuries in her fore compartment and in the engine compartment. It does not appear precisely what was the depth of water in the fore hold at tho time she took the ground, but, according to the statement of Cook, the engineer, it was about 6ft., and she had then 4ft. of water in the engine compartment and the after held. The water was over the plataa in the engine-room, and had practically ex- , tinguished the fire in the lowest of the three furnaces. During the time she was on the beach and at anchor, the donkey pump alone was working, and although it did not reduce the water, yet it prevented the water from at all increasing. No efforts were made to reduce the water in the forehold, but the captain states that the midship compartment would keep the vessel afloat. The engineer had examined tho screw of the vessel, and found that one of the blades was partly broken off ; another gone altogether. He did not examine the blades under water, but it appears that of the four blades, two at right angles to each other were entirely gone, and the other two partly, the parts remaining being 3ft. Oin. and 2ft. Cm. in length respectively. The exact condition of the screw was not, however, known until after she arrived at the Bluff. I have no doubt at all that the captain thought that the screw was practically useless, and Captain Thomson admits that after he came on board he was under the impression, from the information given to him by the captain, that the screw was entirely disabled. The place where the Taiaroa lay was not a safe one. If a south-west gale had come on she would have become a total wreck ; and as a fact, it blew hard from the south-west on the evening of the 10th December. At the time, therefore, of the arrival of Captains Thomson and Logan, and when Captain Thomson took charge, the Taiaroa was lying in a highly unsafe position, and her propelling power was believed, by those in charge of her, to be completely disabled. Under these circumstances, Captain Thomson, knowing that the Express was on hor way, prepared to place the Taiaroa in a position where the Express could reach her, and for that purpose ordered a keclge to be goii \*p out of the fore hold to warp her off, thus showing clearly his impression that the propeller was useless. As they were getting up the kedge from the hold, a slight breeze sprung up off the island, which swung her stern in the direction of the fair way out, and at the same time it was reported to him that the propeller was not entirely gone. He accordingly triod the engines and found they moved the vessel, and with the assistance of the engines and the foresail, the Taiaroa proceeded a distance of about three-quarters of a mile from the island. She there met the Express, and was lowed to the Bluff. During the passage across the engines of the Taiaroa were working, and the additional pumping power of the bilge injection reduced the water in ihe engine compartment 12in. to 15in., so that they were able to relight the lowest furnace some little time before (hey

reached their destination. No pumps were used In the forehold, and the water there increased, and was about 7ft. deep when she was finally beached in the Bluff Harbour. To determine what were the services actually rendered to the Taiaroa by the Express, let vi consider what the position of the Taiaroa would have been if there had been no steamer to render assistance. Captain Thomson, the harbour-master and pilot, and having full local knowledge, comes on board. Ho finds the state of things I have already described, and is told the propellor is gone. He knows that the ' present position of the Taiaroa is a most unsafe one, and that only five milea of perfectly smooth water lies between her and a place of absolute safety. He knows also that part of her passage would be assisted by the tide, and shortly after he comes on beard a slight fair wind spring* up, which subsequently freshens. For two hours previously the water in the vessel has r-ccn kept from increasing by the donkey-pump only, and if the engines aro sot to work tho bilge Injection must inevitably gain on the leak. Surely under these circumstances Captain Thorn would have taken care to verify the information hs received about the propellor, and see if it was really tho fact that her motive power was entirely {rone. When he had done this, and had found it of some little use. he would havo balanced the risk of benching the vessel where she whs, and of attempting to ck*s over to the Bluff. There would have been no risk of life, and if the vessel could keep afloat on her courses for a little over two miles, till she got into the NorthEast Channel, she could have been beached again on the North Shore in cns,e the leak gained on her. leannot doubt that Captain Thomson, or any other person iv his position, knowing at the time what was known, would have endeavoured to make the Bluff. That tho Taiaroa could have armed at the Bluff without the assistance of the Exnreas, provided only she kept afloat, is admitted by Pilot Smith, one of the salvors' witnesses, and that she could have kept afloat is rendered probable by the water having been reduced 12 to 15 inches during the time she was being towed by the Express. Tho evidence as to the rate of speed at which tho Taiara,v was going whon she met the Express is somewhat conflicting, but I think it is more than doubtful, supposing she had proceeded en her voyage by her own unaided exortions, whether she would have reached the Bluff Harbour before the e^b coming out ef the harbour would have prevented her further progress. Tha tide it the Bluff on that dny was at the flood at 16 56 a m , but it appears that the current sets into the harbour in the centre of the stream an Hour after the turn of the tide, and that when the Express, with the TUiaroa in tow, reached the Bluff, this current would yet be running In for 20 minutes or half-an-hour. It Is, I think, tolerably certain that the Taiaroa without the Express could not have reached the mouth of the harbour till some time after the ebb commenced to run out, even if sho had left Dog Island at tho time she did. If, however, the Express had not been iv attendance ie is reasonable to suppose that the start from Dog Island would not have been so soon made. The prompt action of Capt. Thomson in getting up the anchors, and employing means to place the Taiaroa in a bettor position, was taken, not with a view of going to the Bluff unaided, but because the Express was close at hand, and for the purp jse of placing the Taiaroa where she could at once avail herself of the services of the Express. That the Taiaroa made the start she did was the accidental result of these operations. I have no doubt that the start would have been ultimately made if the Express had not been there ; but I feel convinced, considering the condition in which the Taiaroa was at first believed to be, that some little time would have been taken to consider the best plan to adopt, a sufficient time at any rate to mike it a certainty that she could not make tho Bluff before the ebb would have prevented her entering the harbour. The Taiaroa would thus have arrived at the mouth of the Bluff Harbour after the ebb, and would have had to stay there till she could have got in on the flood shortly after four in the afternoon, either steaming up to her anchors, or steaming against the tide in the meantime. Had the leak gained on her, it would have been possible to beach her in a_ safer position than she was in on Do<r Island, but still outside the harbour. As it was, with the aid of the Express she arrived at the Bluff, and was beached in a safe position inside the harbour about half-past 11 am. I find, therefore, that the service performed by the Express for the Taiaroa was not that she rescued the Taiaroa from a position at Dog Island, where, if the Taiaroa had remained, she must have been totally lost, but that the Express enabled the Taiaroa to reach a place of absolute safety about four and a half hours sooner than she otherwise would. Is this, then, taking all the circumstances into consideration, a salvage as distinguished from a mere towage service ? The remarks of Dr Lushington in the case of the Princess Alice (3, Rob., 133) illustrate the distinction between towage and salvage. That learned Judge says :—": — " Without attempting any definition which may be universally applied, a towage service may be described as the employment of one vessel to expedite the voyage of another where nothing more is required than the accelerating her progress. Many circumstances, it is obvieus, may arise in the course of such employment which may convert the service into the character of a salvage .service— as, for example, where the ship in tow is disabled in her hull or rigging, or where she is aground, or where the service itself is necessarily attended with dinger or extraordinary labour to the towing vessel. The distinguishing circumstances in each particular case require careful and minute consideration, and it it duo to the commercial interest in general that they should at all times receive that consideration from the Court, on the one hand to protect the shipowners from unjußt and unnecessary payments ; on the other hand, to afiord due encouragement to the owners of towing vessels to afford that assistance which is so highly beneficial to the general interests of commerce." In considering the condition of the Taiaroa at the time this service was rendered, X will now refer to the injuries she was aftej^vda discovered to have received in her hull. In tl^PPPehcld there were two fractures, one 20 inches lof>gby a quarter of an inch wide ; another 27 inches long 1 by ono inch. In the engine compartment there was a hole three inches by half an inch, and another of 12 inches by an inch and three-quarters. Besides this there were a few loose rivets and three feet of the plates slightly sprung. While she was anchored at Dog Island, those holes became plugged with kelp, and it whs this fact that enabled the leaks to be kept down. The engineer of the Taiaroa, after sho had been pumped out at the Bluff, described the kelp as jammed tight into the holes, and hanging down inside the vessel. Mr M'Gregor, who examined the outside of the Taiaroa when she was in dock at Port Chalmers, Baw kelp in the openings— a long, stringy fibre like spun-yarn or whipcord, and observed the kelp was easily removed. At the time, therefore, the assistance was being rendered there were from 6ft. to 7ft. of water in the forp-hold of the Taiaioa, and the water was increasing there. In the engine-room and the sltor-hold there was nearly 4ft. This latter, it is 1 true, was being decreased, but there were holes in the ship's bottom— plugged, certainly, with kelp, but sufficiently large, if the kelp had by any accident come out. td have let in water enough to have drowned the fires In a few minutes. Is not a vessel in that condition, and with two blades of her screw gone, and the two others damaged, in a very critical state, even iv the calmest weather ? and is not the placing her in safety four and a-hnlf hours sooner than she could have otherwise been in safet3' more than a towage service ? I think these questions must be answered in the affirmative. Certainly, to use the words of Dr Lushinjrton, in the easo of the Ella Constance (33, L. J., ad. 189), there was a possible contingency that serious consequences might have endued. In the present case, I think it might fairly be said that so long as the Taiaroa continued at sea there was a very perceptible risk of serious consequences. I come to the conclusion, therefore, that the Express rendered a salvage service to the Taiaroa. As to the amount of salvage: the Taiaroa is valued at £20,000, the Express at £7000. The Express is a regular trader between Dunedin and the Bluff, but tows vessels when a good chance offers. The service she rendered was of the simplest kind. It did not involve the Hlightest danger or dilh'culty, and took her, from beginning to end, under three hours. It docs not appear that her ordinary work was at all delayed or inconvenienced ; she did not rescue the Taiaroa from certain loss, but merely from a position of some risk. Under all these circumstances, I think £120 would be a liberal remuneration. The decree will be for £120 and costs.