Scottish Court of Session Decisions

Steel & Bennie, Limited, shipowners, Glasgow, pursuers, brought an action against Tito Jose Evangelista, master of, and, as such, representing the owners of the steamship “Taquary,” of Rio de Janeiro, then lying in the harbour of Glasgow, defender, for £2500 for salvage services.

The facts of the case are given in the opinion (infra) of the Lord Ordinary ( Hunter) who, on 20th February 1913, after a proof led, decerned against the defender for payment to the pursuers of the sum of £700.

Opinion.—“The pursuers are the registered owners of the tug ‘Cruiser’ of Glasgow. They sue for themselves, and also as representing the master and crew of the said tug, to recover from the defender, who is the master and as such represents the owners of the Brazilian steamship ‘Taquary,’ a sum in name of salvage services, rendered by the said tug to the said steamship. It is not disputed that the services rendered were in the nature of salvage services. The only question that I have to determine is the amount of the award.

On 25th February 1912, being a Sunday, about 1 a.m., the ‘Taquary,’ which is a new twin-screw steamer of 1942 tons gross and 1175 nett register, went aground on the west side of Ailsa Craig. There is considerable conflict in the testimony of the different witnesses as to the exact position where she lay. The point does not appear to me to be of great materiality. I think that she was less to the north than was represented by the witnesses for the pursuers, and not so much to the south as represented by the witnesses for the defenders. Her position may be taken as somewhat to the north of the point called the Boating Stone on the chart of the Craig. I do not think that at any time she was broadside on to the beach, but undoubtedly the position in which she lay exposed her to great risk of destruction in the event of a strong wind or sea from the south-west. At the time when she grounded there was practically no sea, and the wind, which was only a slight breeze, was blowing from the north. She was not therefore in imminent danger of breaking up. In the course of the early morning, two steamers, the ‘St Catherine’ and the ‘Woodcock,’ communicated with her. The defender did not request either vessel to give him assistance in the way of attempting to get the ‘Taquary’ off. He was content to entrust them with the sending of telegrams to the managing owners and to the Insurance Company. This course may to some extent have been dictated by a dread lest the vessel on being pulled off the rocks might sink. At the same time,

I do not think he would have refused assistance had the state of the wind or sea given him cause for immediate anxiety.

“The ‘Cruiser,’ which is a tug engaged in towing vessels up the Clyde to Glasgow, was on the morning of the 25th engaged in ‘seeking’ or looking for work, when she sighted the ‘Taquary.’ She is said at the time to be in attendance upon the ‘Hyltonia’ and expected to be engaged in towing that vessel. On sighting the ‘Taquary’ she went and offered her assistance, which was accepted. This was about 7·30 a.m., and from that time she remained in attendance until 3 or 3·30 p.m., when, with the assistance of the ‘Setter,’ a vessel which came up about 1·20, she succeeded in floating the ‘Taquary.’ The ‘Cruiser’ and the ‘Setter’ towed the ‘Taquary’ from Ailsa Craig to the Tail of the Bank, a distance of about 47 miles. The towing operations lasted about 12 hours. From the Tail of the Bank the ‘Cruiser,’ with the assistance of another of the pursuers' tugs, towed the ‘Taquary’ to Glasgow, but payment for this latter service has been made and therefore does not enter into the present calculation.

In rendering her services to the ‘Taquary’ the ‘Cruiser’ was exposed to no risk, and the lives of none of her crew were ever in danger. The work done was not difficult, and did not call for the exercise of any special skill in seamanship. The services were, however, certainly useful. In the first place, the ‘Cruiser’ had

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slewed the ‘Taquary’ round to some extent, so as to put her in a more favourable position to the shore. This seems to have been done in the early morning, before low water. Thereafter she maintained her in position, acting for some time in conjunction with the ‘Setter.’ At high water the ‘Cruiser’ and ‘Setter’ succeeded, by towing, in pulling the ‘Taquary’ off the shore. When they started towing from the Craig to the Tail of the Bank, the ‘Setter’ was in front of and the ‘Cruiser’ behind the ‘Taquary.’ The towing vessels, however, soon changed position, and the ‘Cruiser’ went ahead. For some miles the ‘Taquary’ was towed with her bow first; but she was so much down by the head, that she had to be towed stern first. The two vessels experienced no difficulty in so towing her, but as Captain Abram explained in his evidence it would have been dangerous for passing vessels for the ‘Cruiser’ alone to have towed the ‘Taquary’ stern first. I think the services rendered by the ‘Cruiser’ were more valuable than those rendered by the ‘Setter.’ The latter vessel was not constructed for tug work, and was not so handy or able to keep her position so well as the former vessel.

If the ‘Cruiser’ had not rendered the services which she did, I think that the ‘Taquary ’ might have got other assistance. I have already referred to the ‘Woodcock’ and the ‘St Catherine.’ About 11 o'clock, the ‘Tweed’ also offered assistance; but the master of the ‘Cruiser’ refused the offer, as he thought he would manage to get the ‘Taquary’ off himself. Another vessel, called the ‘Copeland,’ had gone ashore on the north or north-east side of the Craig about the same time that the ‘Taquary’ did. Two tugs, the ‘Flying Serpent’ and the ‘Flying Scotsman,’ were sent to her assistance. The ‘Taquary’ passed these tugs as she was being towed to the Tail of the Bank. Looking to the state of wind and weather at the time, I think that these vessels would have been in a position to salve the ‘Taquary,’ had she not been floated with the assistance of the ‘Cruiser’ and ‘Setter.’

It is admitted that the value of the ‘Cruiser’ was £5500, and that the value of the ‘Taquary,’ as salved, was £27,837.

For the services rendered in the salvage operations the ‘Setter’ received the sum of £450. As I have already indicated, I think that the ‘Cruiser's’ services were more valuable than the ‘Setter's’ services. On the other hand, the ‘Setter’ sacrificed more in going to the assistance of the ‘Taquary.’ I did not, however, allow evidence as to the value of the ‘Setter,’ as it does not appear to me that the record raises a case for my estimating the amount to be awarded for the joint salvage services and allocating to the pursuers their proper proportion.

A number of cases illustrative of the different awards given in different cases were cited to me. Each case must depend on its own circumstances, and I do not think it would serve any good purpose to refer in detail to these decisions. Keeping in view the different elements that appear to have weighed with the Court in arriving at the awards given, so far as they are present in this case—and I have endeavoured briefly to indicate them—I reach the conclusion that the sum of £700 is a fair award to make the pursuers for the services rendered by them. As that amount was tendered before the action was raised, and was refused, I think that the defenders are entitled to expenses.”

The defenders reclaimed, and argued—The Court was entitled to review the Lord Ordinary's award when, as here, it was unreasonably small— The “Port Hunter”, [1910] P 343, per Vaughan Williams (L.J.) at 351; The “Star of Persia,” 1887, 6 Asp. 220. Steam tugs were entitled to especially liberal awards—Kennedy, Salvage (2nd ed.), p. 131; The “Glengyle,” [1898] P 97, per Gorell Barnes (J.) at 102; The “Envoy,” Shipp. Gaz. Weekly Summary, February 28, 1888 (referred to in Kennedy, Civil Salvage, 2nd ed., p. 131). Although the weather was fine, the chance of its becoming boisterous was an element in assessing the award— The “Kenmure Castle,” (1882) 7 PD 47, per Phillimore (J.) at 48. The services of the “Cruiser” as the first salving vessel were entitled to especially favourable consideration by the Court— The “Anna,” Shipp. Gaz., May 30, 1905 (referred to in Kennedy, Civil Salvage 2nd ed., p. 188); The “Maasdam,” 1893, 7 Asp. 400, per Jeune (P.) at 401; The “Santipore,” 1854, 1 Spink 231, per Lushington (J.) at 233. Three elements were to be taken into consideration in assessing the award, viz.—(1) the value of the salved property, (2) the risk to it, and (3) the risk to the salving vessel. In view of the large value of the salved property, and the risk both to it (which the Lord Ordinary failed fully to appreciate) and to the salving vessel, the Lord Ordinary's award was far too small— The “Adriatico,” Shipp. Gaz., July 20, 1912; The “Dungeness,” Shipp. Gaz., November 27, 1912; The “Camphill,” Shipp. Gaz., November 16, 1912; The “Kilmorack,” Shipp. Gaz., March 6, 1912; The “Fairport,” [1912] P 168; The “Buteshire”, [1909] P 170; Walker Steam Trawl Fishing Company, Limited, v. Mitre Shipping Company, Limited, 1913, 1 S.L.T. 67; Pust v. White Star Steam Fishing Company of Aberdeen, 1909, 1 S.L.T. 275; The “Ben Alder” v. The “Acacia,” February 15, 1901, 3 F. 491, 38 S.L.R. 339; Liverpool Steam Tug Company v. Cornfoot, June 19, 1900, 2 F. 1060, 37 S.L.R. 804; Duncan v. Dundee, Perth, and London Shipping Company, March 8, 1878, 5 R. 742, 15 S.L.R. 429.

Argued for the respondent—The Court was not entitled to interfere with the award of the Lord Ordinary unless it was unreasonably excessive— “Baku Standard” v. “Engèle,” [1901] AC 549, per Sir Ford North at 553; Liverpool Steam Tug Company v. Cornfoot ( cit.), per Lord Trayner at 2 F 1065; The “Accomac,” [1891] P 349. In assessing the award it was competent to take into consideration the ordinary earnings

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of the salving vessel— The “ City of Chester,” (1884) 9 PD 182, per Baggallay (L.J.) at 196 and 199, and Lindley (L.J.) at 206; The “ Sunniside,” (1883) 8 P.D. 137, per Hannen (P.) at 142—and the ordinary earnings of the “Cruiser” were small. Other elements to be taken into consideration were the fact that the value of the “Cruiser” was small and the fact that the salvage award was a windfall to her owners—“ Vulcan” v. “Berlin,” July 6, 1882, 9 R. 1057, per Lord President (Inglis) at 1061, 19 S.L.R. 790, at 791. The “Taquary” was not in imminent danger. To award a percentage on the value of the salved property was not a proper principle of calculation— Greenock Towing Company v. Anchor Line (Henderson Brothers), November 2, 1901, 9 S.L.T. 221. The following cases were also referred to—The “Camphill” ( cit.); The “Adriatico” (cit.); The “Kilmorack” ( cit.); The “Buteshire” ( cit.); The “Port Hunter” ( cit.); Liverpool Steam Tug Company v. Cornfoot ( cit.); The “Werra,” (1886) 12 P.D. 52.

At advising—