Scottish Court of Session Decisions

The North British Steam Fishing Company, Limited, the registered owners of the screw steam trawler “Ben Alder,” Aberdeen, for themselves, and as representing the master and crew of the vessel, brought an action against (1) the North Eastern Shipping Company, Limited, the registered owners of the screw steamship “Acacia,” of Aberdeen, and also (2) against Macdonald & Morrison, coal merchants, Inverness, the owners of the cargo on board the “Acacia” on I7th February 1900, in which they concluded for decree ordaining the first-named defenders to make payment of £1500, and for decree ordaining the second-named defenders to make payment of £150, to the pursuers as compensation for salvage services rendered by the “Ben Alder” to the “Acacia” on 16th and 17th February 1900.

The defenders admitted that salvage services had been rendered, but pleaded that the sum sued for was excessive. Parties were agreed that at the time of the salvage the value of the “Acacia” and her freight and cargo was about £4000, and the value of the “Ben Alder,” with her fishing gear and catch of fish, a little over £5000.

Proof was led, which disclosed the following facts:—The “Acacia” left Sunderland for Inverness at 2·45 p.m. on Thursday 15th February 1900, with a cargo of coal and a crew of 11. The wind increased and blew a gale about 3·30 p.m. In the course of the evening the vessel's boats were stove in or carried away, and damage was done to the deck. The gale reached its height about midnight. Thereafter the wind commenced to fall, but the sea continued rough. The pumps began to get choked, and the “Acacia” made for Aberdeen in older to

get them cleared. She reached Aberdeen Bay about 11 a.m. on Friday the 16th, but the sea was too heavy for her to get over the bar. About a dozen vessels were moving about the bay waiting for the sea to go down, and the “Acacia” joined them. About 2 p.m. the engineer of the “Acacia” reported that the fires were being drowned out, and that he could not keep the vessel going much longer. The master asked two of the vessels which were waiting in the bay to tow the “Acacia” to Fraserburgh, but they declined. The wind was then S.S.E. to S.E., and the vessel was lying a mile or so off Girdleness. The master of the “Acacia” then ran up a flag as a signal of distress, and the “Ben Alder” bore down to his assistance. He asked the “Ben Alder” to tow him to Fraserburgh, which the master of the “Ben Alder” agreed to do. The tow lines broke twice before they were made fast. In passing the lines on board the “Acacia” the “Ben Alder” had to come within 3 or 4 feet of the “Acacia,” and she ran a risk of fouling her propeller. After the hawsers had been made fast, the “Ben Alder” at first attempted to tow the “Acacia” northwards towards Fraserburgh, but desisted on account of the heavy seas, and took her back to Aberdeen Bay, and kept attached to her all night. At 2 a.m. the “Acacia” heeled over, and all her boats being useless she sent up rockets for a boat. The trawler “North Coast” sent a boat alongside with two men, who got on board the “Acacia.” This boat was kept, astern in case the “Acacia” should sink, and was towed behind till it was swamped at the entrance of Aberdeen Harbour. The sea gradually went

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down, and with the next tide the “Ben Alder” took the “Acacia” safely into Aberdeen Harbour. No actual damage was done to the “Ben Alder,” except that her hawsers were strained and new hawsers had to be got a few months sooner than would otherwise have been the case. The time occupied in rendering the services was twenty-four hours, but the “Ben Alder” lost no time, as during that period she could not have entered the port of Aberdeen, to which she was bound, on account of the state of the sea.

William Crombie, harbour—master at Aberdeen, examined for the pursuers, deponed as follows:—“I recollect seeing the steamship ‘Acacia’ flying signals of distress early in the afternoon of the Friday. I was then at the flaghouse at the north pier. The ‘Acacia’ was to the southward from where I was standing. She was in a very dangerous position. She was off a very rough part of the coast. There was no good anchorage there. At that time there was a heavy sea coming in from the south-east, and the current was then flowing southward. It was full tide that afternoon at half-past two. (Q) And does the current flow south after high-water off Girdleness?—(A) Forfully two hours, and it sets off there as well. (Q) So that the effect of the wind and sea from the S.E. and the current flowing south would be to take the ‘Acacia’ in on the rocks?—(A) It is my opinion that she would have cleared the Girdleness, and would have gone to the Cove, three or four miles south of Girdleness. That would have been owing to the strength and the offset of the tide.… (Q) I saw the ‘Ben Alder’ going to pick up the ‘Acacia,’ and then I saw her get the ‘Acacia’ in tow.… At first the ‘Ben Alder’ towed the ‘Acacia’ out to sea and then northwards. There was still a very heavy sea running. (Q) In your judgment, was it a difficult and dangerous operation?—(A) It is always a difficult operation to take a vessel with a screw in tow, and with a sea running like that. (Q) It was on account of the heavy sea, and the fact that they were screws and not paddle steamers?—(A) Yes. There was a danger of fouling the propeller. It was not till about half-past eleven on the Saturday forenoon that I first put up signals intimating that it was safe to come into the harbour. There was still a good bit of sea on, but nothing to what it was on the Friday. I saw the ‘Ben Alder’ bringing the ‘Acacia’ in. (Q) Was it a difficult operation?—(A) It was difficult the way he came in with her. (Q) And dangerous?—(A) Yes, dangerous for the ‘Acacia.’ (Q) Was that because of the sea that was running, and the fact that the ‘Ben Alder’ was a smaller vessel than the ‘Acacia,’ and a screw?—(A) No. It was because they did not allow for the flood tide running across the harbour; and with the great length of rope they had out they had enough to do to keep clear of the breakwater. One of the ‘Ben Alder's’ ropes parted when the vessels were in between the pier and the breakwater. After getting inside the pier end she came up pretty well. There was danger of the ‘Acacia’ not clearing the south breakwater. She was scarcely clear of it at one time. (Q) It was necessary to have a long stretch of rope out in order to make quite sure that the rope would not break?—(A) They are bound to have a long stretch out when it is wild weather. (Q) Did the ‘Ben Alder,’ in your judgment, run a serious risk in carrying out the salvage?—(A) Her greatest risk would have been at the time of taking the ‘Acacia’ in tow. The ‘Acacia’ seemed to us to be helpless.… Cross.… If no boat had taken the ‘Acacia’ in tow at all, the remains of the flood tide would have swept her to the southward and off the land, but the sea would have taken her in as well. (Q) If no assistance had come to her, do you think she had a fair chance of reaching good anchorage to the south of the harbour?—(A) Yes, I think she would have cleared Greig's Ness, and could have let go her anchors at the Cove. The set of the tide would have taken her round there, and she would have found holding-ground at that place. (Q) So far as there was danger to the ‘Ben Alder,’ you say that that was confined to the danger of fouling her propeller when she was passing a line to the other vessel?—(A) Yes. (Q) Do you see any other possible danger that she incurred except that?—(A) No, I cannot say I do. (Q) So far as the difficulty of bringing the ‘Acacia’ in was concerned, you say that that was caused by the way in which the ‘Ben Alder’ brought her in?—(A) Yes. (Q) She did not allow for the flood tide and her long hawser, and the consequence was that the ‘Acacia’ was swept down near the pierhead?—(A) Yes. (Q) And that was danger to the ‘Acacia’ and not danger to the ‘Ben Alder’?—(A) I did not see any danger to the ‘Ben Alder.’”

On 5th December 1900 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Decerns against the defenders the North-Eastern Shipping Company, Limited, for payment to the pursuers of the sum of £279, 5s. 6d. sterling, with interest thereon at the rate concluded for, from this date till payment: Decerns against the defenders Macdonald & Morrison for payment to the pursuers of the sum of £20, 14s. 6d. sterling, with interest thereon at the said rate, from this date till payment,”&c.

Note.—“The services rendered by the ‘Ben Alder’ to the ‘Acacia’ on 16th and 17th February 1900 are admitted to have been salvage services, and therefore the question which I have to decide is simply one of amount. The ‘Acacia’ when picked up shortly after 2 p.m. on the 16th was undoubtedly in a position of danger, not, I think, of extreme or imminent, but certainly of grave danger. She had been knocked about so badly in the heavy gale of the night before that her fires were drowned out and her motive power gone. She was lying a mile or so off Girdleness, near Aberdeen, and had hoisted signals of distress. The wind had by that time gone down, but a heavy sea was running in, and

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though the tide might possibly have carried her southward and clear of the rocky coast which stretches from Aberdeen to Stonehaven, it is also quite possible that she might have drifted on the rocks. It was high time, therefore, that some vessel should come to her assistance, as the ‘Ben Alder’ did. There were a good many others about waiting to get over the bar at Aberdeen, but one of them refused to take her in tow on the ground that she had no lights. Probably that was a sufficient reason, but there certainly seems to have been no competition for the work of salvage.

Next, I think it is impossible to say that there was no risk to the ‘Ben Alder.’ The work of picking up a disabled vessel in a heavy sea must always involve a certain amount of risk. The tow-line broke twice, and this required the ‘Ben Alder’ to come within a few feet of the ‘Acacia.’ There was no fouling of the propeller when the ropes broke, but there might have been; and the two vessels might have collided.

The services occupied about twenty-four hours. At first there was an attempt to tow the ‘Acacia’ towards Fraserburgh, in accordance with her master's desire, but the force of the sea was found to be too strong, and ultimately she was taken into Aberdeen. During the night the crew of the ‘Acacia’ became afraid that she might go down, and their own boats having been rendered useless, they sent up rockets, in answer to which a boat came from the trawler ‘North Coast,’ and was towed in their wake, ready for any emergency till they reached Aberdeen. An attempt was made by the pursuers to show that the ‘Ben Alder’ ran some risk in taking the ‘Acacia’ into port. But the risk, I think, was to the ‘Acacia’ and not to the ‘Ben Alder.’ No actual damage was sustained by the ‘Ben Alder’ except that her hawsers were strained, and new hawsers had to be got a few months sooner than would otherwise have been the case.

As regards the ‘Acacia,’ the parties are agreed in stating the value of the ship, freight, and cargo at £4000, and the value of the ‘Ben Alder’ at a little over £5000. Taking all the circumstances into account, I come to the conclusion that £300 is a reasonable award.”

The pursuers reclaimed, and argued—The Lord Ordinary's award was much too small, and should be at least doubled. When the “Acacia” was salved there was no doubt she was in a position of very great danger, and the “Ben Alder” in getting attached to her in such a heavy sea incurred great risk. All the cases in which the risks involved, the time taken up in salving, and the value of the vessel and cargo salved were similar to the present, showed that a much larger sum should have been awarded. In “ The Albion,” 1837, 3 Haggart's Reports, 254, the value of the ship salved was £4000, and the award £1000. In “ The Lord Grey, 1837, 3 Haggart's Reports, 363, the value of the ship salved was £4000, and the award £900. In “ The Paris,” 1854, 1 Spink 289, the value of the ship salved was £4000, and the award £800. In “ The M'Morran Castle,” December 16, 1898, reported in the Shipping Gazette, the value of the ship, which, as in the present case, was salved by a trawler off Aberdeen, was £4500, and the award was £1500. In “ The Sea Eagle,” August 8, 1900, High Court of Justice, Admiralty Division (not reported), the value of the ship salved was £4500 and the award £1500. The case of “ The Pathfinder,” infra, was not applicable, as the salvage services in that case were of the lowest order, and the risk incurred was not great.

Argued for the defenders—There was no ground for interfering with the judgment of the Lord Ordinary. The Lord Ordinary had put the pursuer's case in the most favourable manner when he said that the danger was grave but not imminent. The evidence showed that although salvage services had been rendered they were not of a higher class than those rendered in “ The Pathfinder” ( Liverpool Steam Tug Company, Limited v. Cornfoot), June 19, 1900, 2 F. 1060, and in the present case in proportion to the value of the salved vessel a large award had been given. The “ Ben Alder” lost no time while performing the salvage services; she took the “Acacia” into the port to which she herself was going. As Lord Trayner had said in the case of “ The Pathfinder,” the Court would not interfere with the Lord Ordinary's award unless it was unreasonably inadequate or unreasonably extravagant. In the present case the award was neither the one nor the other. Besides, if the “Ben Alder” had declined to undertake the salvage services there were other vessels about at the time whose assistance could have been got. That fact tended to lessen the salvage award—“ The Werra,” 1886, 12 P.D. 52. The following unreported decisions in the Outer House showed that the award in the present case was ample. In The Cargill Steam Trawling Company, Limited v. The Fraserburgh and North of Scotland Trawling Company, Limited, May 26, 1900 (Lord Stormonth Darling), a steam trawler which had salved a disabled trawler of the value of over £6000 was awarded £250, although the former had lost two days' fishing in carrying out the rescue. In The Peterhead Steam Fishery Company, Limited v. George M'Gown, November 17, 1900 (Lord Low), a lifeboat and a steam trawler, which, three miles to the north of Peterhead, had rescued a ship of the value of between £14,000 and £15,000, which was being towed to Sunderland to be fitted up with boilers, and had become unmanageable in a heavy storm, were awarded £600. And in Scott v. Wighton, February 4, 1898 (Lord M'Laren), one steamship which had rescued another of the value of £1800, whose engines had broken down, and which was in imminent peril of drifting on the coast of Fife, was awarded £180.