Scottish Court of Session Decisions

This action was raised in the Court of Session by Peter Miln Duncan, merchant and shipowner

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in Dundee, owner of the ship “Harvest Queen, ” and others, the master and crew of the said vessel, against the Dundee, Perth, and London Shipping Company, owners of the ship “Anglia, ” which traded between Dundee and London, and had for its object the enforcing of a claim of salvage against the said company, the “Harvest Queen” having rescued the “Anglia” while in a sinking state off the Fern Islands, and towed her into Dundee. The facts of the case will be found in the note of the Lord Ordinary and in the opinion of the Lord President. The Lord Ordinary ( Rutherfurd Clark) found that the owners of the “Anglia” were liable for salvage both on the ship herself and on her cargo. He added this note:—

“ Note.—On the 19th November 1876 the ‘Anglia’ left Dundee on a voyage to London, with a general cargo and about twenty passengers. It has been proved to the satisfaction of the Lord Ordinary that in the course of that voyage she struck on the Tours or Parkdyke Rock. The consequence was that she carried away her rudder and stern-post, and that a hole or holes were made in her stern; but the bulkhead, immediately in front, so far prevented the flow of water into the hold that it could be readily kept down by the pumps.

After she struck, the ‘Anglia’ continued under steam for a short time, until the injury which she had sustained was discovered. She then hoisted a signal of distress, and the ‘Harvest Queen, ’ which happened to be in her near neighbourhood, went to her assistance and took her in tow. Thereafter the ‘Matin’ of Dundee came up, and at the request of the master of the ‘Anglia’ a hawser was run out from the ‘Anglia’ to the ‘Matin.’ Both vessels then towed the ‘Anglia’ to St Abb's Head, when, the ‘Matin's’ tow rope having broken for the third time, the ‘Matin, ’ at the request of the ‘Anglia, ’ proceeded to Dundee to bring out a tug to help the ‘Anglia’ over the bar of the Tay. The ‘Harvest Queen’ towed the ‘Anglia’ to the harbour of Dundee until she was placed in safety, but in crossing the bar the ‘Anglia’ had the assistance of the ‘Fairweather’ tug, which had been sent out by the ‘Matin’ for that purpose.

The point at which the ‘Anglia’ was taken in tow by the ‘Harvest Queen’ cannot be precisely ascertained. According to the evidence given by the master and crew of the ‘Harvest Queen, ’ the ‘Anglia’ was then less than half-a-mile from the Goldstone Reef, while the master and crew of the ‘Anglia’ place her a considerable distance to the north of that point. The Lord Ordinary is disposed to rely most on the testimony of the master of the ‘Matin, ’ who took the bearings of the ‘Anglia’ immediately after he had arrived on the scene, and when her position could not then have been materially changed. According to this evidence the ‘Anglia’ was nearly two miles to the north of the Goldstone Rock.

But whatever was the exact position of the ‘Anglia, ’ she was undoubtedly in peril. Having lost her rudder and stern-post, she was for the time absolutely helpless, and she was in the vicinity of very dangerous reefs. A light wind was blowing from the shore, but the direction of the swell, which was a five or six foot sea, was from the north-east. The anchorage was bad, and a strong current, if it had not already set in, was on the eve of setting in to the southward. It may be that the makeshifts to which seamen resort, and in which they are so very ingenious, might have enabled the crew of the ‘Anglia’ to extricate her from the danger in which she was undoubtedly placed. But there could be no certainty, and common prudence imperatively demanded that in order to her safety the assistance of the ‘Harvest Queen’ should be required. In these circumstances, it was not disputed that the ‘Harvest Queen’ was entitled to salvage.

A question was raised, though not much pressed by the defenders, viz., whether the ‘Harvest Queen’ was to be considered the sole salvor? That she rescued the ‘Anglia’ from her immediate danger, and that she was able to tow her to Dundee is beyond doubt. The only ground on which the ‘Matin’ can be regarded as a co-salvor is, that her assistance was required to procure a tug to help the ‘Anglia’ to cross the bar of the Tay. But the necessity for this service, if there was any necessity at all, arose from the master of the ‘Anglia’ electing to return to Dundee. The ‘Harvest Queen’ was able, without any assistance, to have brought the ‘Anglia’ to a place of safety—as, for instance, to Leith Roads—and besides, it would rather appear that the requisite assistance for crossing the bar could have been readily obtained without despatching the ‘Matin’ to procure it. On the whole, the Lord Ordinary is disposed to consider the ‘Harvest Queen’ as the sole salvor. At anyrate, the assistance rendered by the ‘Matin’ was not material.

The pursuer urged that the salvage was performed at considerable risk to the ‘Harvest Queen’ and her crew. It cannot be said that there was none, but in the opinion of the Lord Ordinary it was small.

A legal question of considerable importance has been raised, viz., Whether the defenders are liable for the salvage due by the cargo, of which they were not the owners? The pursuer alleges that the defenders undertook the responsibility of the owners of the cargo. But in the opinion of the Lord Ordinary they have failed to prove any agreement or undertaking to that effect. The case must therefore be disposed of apart from that allegation.

The defenders contend that salvage can be recovered from the owner only, while the pursuer maintains that as the defenders were in fault, and would have been liable for the value of the goods if lost, the services rendered by the pursuer were for the sole benefit of the defenders, and that, in consequence, the defenders are liable for the salvage on cargo.

That the accident was due to the fault of the defenders, and not to a peril of the sea, seems to the Lord Ordinary to be beyond doubt. The rock on which the ‘Anglia’ struck was well known, and laid down on the chart. The day was clear, and there was no stress of weather, or other circumstances which could excuse her being out of her course. Indeed, the master hardly even attempted to justify himself, and all counsel could say in his favour was that the deviation was not great.

It follows that if the goods had been lost, the defenders, as carriers, would have been responsible for their value. But the theory on which salvage is due is, that the services rendered have

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prevented the loss. Hence the benefit of the services rendered by the pursuer has enured solely to the defenders. The rule laid down by Professor Bell ( 1 Com. p. 642) is this:—‘The reward must be given by those who receive benefit, and who would have suffered the loss from which the exertions of the salvors have saved them.’ In Cox v. May, 4 M. and S. 152, Lord Ellenborough said—’ Salvage is a compensation to the salvors, not merely for the restitution of the property which has been made by them to the prior owners (for that is properly an act of mere justice on their part), but for the risk and hazard incurred by them, and for the beneficial service they have rendered the former owners in rescuing that property from the danger in which it was involved, and the persons to contribute to that salvage are the persons who would have borne the loss had there been no such rescue, and who, of course, reap the benefit of that rescue. To form a judgment who would have borne the loss had there been no rescue, and to whom the rescue was beneficial, we must look to the interest which each party had.’ On this principle the Court decided that the salvage, though calculated on the ship, freight, and cargo, was payable by the ship and freight exclusively. The reason was that the freight payable by the cargo was more than the value of the cargo, and hence that the owners of the cargo had no benefit by the salvage. It is not going further to hold that the persons who would have been responsible if the cargo had been lost are the only persons benefited by the services rendered by the pursuer, and are therefore liable for the whole salvage. If the salvage were recovered from the owners of the cargo, the defenders would, it is thought, be bound to relieve them.

It remains to fix the amount of salvage. This seems to be left to the discretion of the Court in each particular instance. The present is certainly not one of the highest class, and in the whole circumstances the Lord Ordinary thinks he will do justice by fixing it at £1500.”

The defenders reclaimed, and argued—That the form of the action was unprecedented, if not incompetent, as salvage questions should be tried by an action in rem, and not by a personal action of this kind; and further, that they (the owners) were not responsible for the salvage due by the cargo, of which they were not the owners, but were only responsible for the salvage due on the ship; and further, that the sum given by the Lord Ordinary was excessive.

Authorities—“ Schiller, ” 1 L.R. (Prob. Div.), 473, April 24, 1877, 2 L.R. (Prob. Div.), 145; “ Pyreneese, ” Nov. 20, 1863, Browning and Lushington (Admiralty), 189; “ Peace, ” March 14, 1856, Swabey (Admiralty Rep.), 85; Cox v. May, 4 M. and S. 151. On the question of the amount of salvage due—Cheetah, 2 L.R. (Privy Council), 205; Boyd's Merchant Shipping Laws, 413, and cases cited in note; Kennedy v. Raikes, Practice under Judicature Act, 349.

The respondent argued—That any other form of action than that adopted would have been extremely inconvenient and harsh, as the vessel, being a coasting trader, there were hundreds of owners of small quantities of goods, and that had an embargo been laid on the cargo till the salvage was paid it would have been a great hardship on the owners. That if the cargo had been lost the owners of the vessel, as common carriers, would have been liable for the value of the cargo, and that therefore the aid given by the “Harvest Queen” was in reality given to the company both as owners of the ship and as liable for the cargo; and further, that the accident was due to the fault of the defenders' servants.

Authorities—“ Glenduru, ” 3 L.R. (Priv. Coun. App.), 589; “ Scindia, ” 1 L.R. (Priv. Coun. App.), 241; Lord Ellenborough's judgment in Cox v. May, supra.

At advising—