Br & Lush 113, 8 LT 402, 1 MLC 341
LORD KINGSDOWN, LORD CHELMSFORD, and KNIGHT BRUCE LJ
JULY 30, 1863
In a salvage case where the appeal is substantially confined to the quantum of compensation for salvage services awarded by the Court below, the rule which governs the appellate Court is similar to that of the Common Law Courts in dealing with a verdict as to the amount of damages, where the jury have paid attention to the case and have been properly directed by the Judge – 254.
There is no distinction between river salvage and sea salvage; the danger and meritorious nature of the services in either case being the ground on which the quantum of compensation is awarded – 258.
See: The Chetah (1868) LR 2 PC 210; Arnold v Cowie (1871) LR 3 PC 592; The Livia (1872) 25 LT 887; The Amerique (1874) LR 6 PC 471; Oakley v Speedy (1879) 40 LT 881; The Thomas Allen (1886) 12 App Cas 121.
For salvage proceedings arising out of the same collision, see Trask v Maddox, The Carrier Dove (1863) 2 Moo PCNS 243, 15 ER 893.
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
BENJAMIN JOHN HARRIOT TRASK AND OTHERS – APPELLANTS; PETER MADDOX AND OTHER, – RESPONDENTS
Salvage suit, promoted by the Respondents, The Independent Steam‑tug Company of Liver-  pool, the owners of the three steam tugs, Enterprise, Universe, and Constitution, and the Masters and crews of those tugs, against the Carrier Dove, an American vessel, of 1545 tons, cargo and freight, and against the Appellant, Trask, her owner and the owners of the cargo, for salvage services rendered to her in the Mersey, from the evening of the 19th to the morning of the 20th of October, 1862.
It appeared from the evidence, that at about 8 o’clock p.m. of the 19th of October, 1862, the Enterprise was steaming up the river Mersey, in the neighbourhood of the Huskisson Dock, when, perceiving blue lights and rockets, she came within hail of the Carrier Dove. That vessel at this time was in collision with a vessel called the Wisconsin. The vessels were lying alongside each other. It was nearly high water, and there was a strong gale from the southward, with a very heavy sea.
The Enterprise, at considerable risk, went alongside the starboard side of the Carrier Dove, and having agreed to pull her clear, remain by her all night, and dock her on the next morning’s tide for £120, she took a hawser from the starboard quarter of the vessel, and towed her in a S.S.W. direction, and pulled her clear of the Wisconsin. The Enterprise held the Carrier Dove for about half an hour, and then the port anchor and chain of the ship were slipped. Shortly afterwards the wind changed to W.N.W., and the ebb tide caused the Carrier Dove to swing, with her‑head S.S.W. The Enterprise was then ordered to cast off, for the purpose of coming ahead of the Carrier Dove, and did so, and proceeded to obey the rest of such order; but  before she could effect this, the starboard bow of the Carrier Dove came into collision with the port bow of a vessel called the Themis, which was lying at anchor with her head to the southward. The Enterprise then went ahead of the Carrier Dove, and succeeded in towing her clear; but after holding her for some time the force of the wind caused her again to foul the Themis, the starboard side of the Carrier Dove being alongside the port side of the Themis. The Enterprise again towed the Carrier Dove clear, and held on to her until 2 o’clock a.m. of the 20th, when she dropped alongside on the port side and made fast. At 6 a.m the Enterprise towed with a hawser from the port bow, so as to enable the Carrier Dove to heave in chain, and continued so doing until about high water, when the starboard anchor was sighted, and it was found to have hooked a chain and anchor, which subsequently proved to belong to the Wisconsin. The time which had been lost about getting the anchors up rendered it impossible to dock the vessel that tide as intended, and the Captain of the Enterprise stated to those in charge of the Carrier Dove that his agreement was at an end, and that the lowest charge for holding on to the ship during the next tide would be £35. No reply was made to this statement. At 2.30 p.m. the Carrier Dove’s anchors were cleared, and at 1 p.m. the strange chain was slipped and the strange anchor catted, and she was then towed in a southerly direction off the south end of the Seacombe Wall, where she anchored with her starboard anchor. The Captain of the Enterprise then wished to make fast alongside, being apprehensive that the Carrier Dove might not  hold her ground, there being a flood tide and a strong N.W. wind; but, in obedience to orders, he went to the Prince’s landing stage, and at about 5.45 brought off the Captain of the Carrier Dove, and having taken a hawser from the port bow of the vessel, proceeded to tow her up to her anchor while chain was being hove in. At about 7.30 o’clock, and whilst so towing ahead, the Captain of the Enterprise hailed the Carrier Dove, either to burn blue lights for another steamer, or to set her fore and aft sails, as, owing to the strength of the flood tide, together with heavy squalls from W.N.W., the tug was unable to prevent the ship driving astern. Neither of these requirements was attended to, and shortly afterwards a heavy squall from N.W. struck the ship, and she drove up the river until, when abreast of the south end of the Birkenhead landing stage, her port quarter striking the starboard bow of a ship called the City of Ottawa, which was lying at anchor, heading N. by W.; the head of the Carrier Dove canted to W.; and her starboard chain parted. The head of the Enterprise canted to N.E., and she was obliged, both for her own safety and that of the Carrier Dove, to ship her hawser. The Carrier Dove thereupon fell across the bows of the City of Ottawa, and then cleared her on the port side. The Enterprise followed the Carrier Dove up the river as quickly as possible, and when abreast of the Brunswick Dock threw a heaving line on board on her starboard bow. A hawser was then attached to the line, and while it was being secured the Universe came up, and having engaged to assist in docking the Carrier Dove that tide for £25, made fast on her port side with the tug’s hawsers,  and the Enterprise was shortly afterwards secured on her starboard side in the same way. The. two tugs then towed the ship, but whilst so doing the hawsers of both tugs were repeatedly carried away, owing to the bad and wild steering of the Carrier Dove, and the heavy sea that was running. At 9 o’clock p.m., it being impossible to dock the ship that tide, the Captain of the Universe told the Captain of the Carrier Dove that his agreement was at an end, but that he would leave the payment for any further assistance to be settled by the Captain of the Carrier Dove and the Respondent, Maddox, the manager of the Tug Company, and it was shortly afterwards agreed to refer the amount to Messrs Harker and Taylor. The Carrier Dove was at this time between the Toxteth and Brunswick Docks, heading N. by E., and about 200 yards from the wall; and in consequence of her bad steering it was found to be impossible to bring her oft head foremost, and the tugs thereupon brought her off stern foremost, and she was eventually anchored off Monk’s Ferry with the strange anchor.
Shortly afterwards an agreement in the following terms was signed by the Captains of the Carrier Dove, Enterprise, and Universe:
“I, the undersigned, agree to leave the amount to be paid for our services to be arbitrated by three parties, the Masters of the steam tugs selecting Harker, the Master of the ship Carrier Dove, Mr. Taylor, and the arbitrators thus mentioned to determine the third. It is also understood that the services here referred to are those rendered after the hour of 9 A.m. 20th October, 1862.”
Both of the arbitrators named re‑  fused to act. At about 8 o’clock a.m. of the 21st, the tide being flood with a strong wind from N.W., the anchor of the Carrier Dove was weighed, and it was then first ascertained by the Captains of the Tugs that her rudder had been carried away. It was proved in the case that this had happened at the time of the collision with the City of Ottawa, and that the rudder had been then completely broken off from the rudder‑head. The Tugs, however, got the ship up to the south end of the Seacombe Wall, when it was found necessary to employ another Tug, and the Constitution came up and towed from the starboard bow of the vessel, and the three Tugs took her across the river and docked her in the Waterloo Dock. In towing the ship past the Woodside landing stage, the Enterprise was in great danger of being crushed between the ship and the stage.
The Defendants denied that the Enterprise incurred any risk in coming alongside the Carrier Dove when she was in collision with the Wisconsin. They also alleged that on the morning of the 20th the Captain of the Enterprise stated that he should charge £25 a tide for further services, and not £35 for the single tide, as alleged by the Plaintiffs. They also alleged that, immediately on the Carrier Dove’s coming in collision with the City of Ottawa the Enterprise let go, being in no danger whatever, and that she might have cleared the ships by towing ahead, and that, in consequence of her letting go, the starboard anchor chain of the Carrier Dove parted; the anchor was thereby lost, and she drove further up the river. They also stated that the hawsers of the Tugs, which parted when towing the vessel off the Brunswick  Dock Wall, were rotten. They also stated that in towing the ship on the morning of the 21st, although the ship had lost her rudder, there was no difficulty in steering her with a tug on each side and that neither of the tugs incurred any risk or suffered any damage in the service.
The Defendants paid into Court £120 on behalf of the claim of the Enterprise, and £25 in respect of that of the Universe, and left that of the Constitution to be determined by the Court. The value of the ship and cargo was about £30,000, and the freight, £4167.
After witnesses had been examined, the learned Judge of the Admiralty Court (The Right Hon Dr Lushington) by his judgment, dated the 16th of March, 1863, held that the agreement between the Carrier Dove and the Enterprise was binding in respect of the services rendered, until the morning of the 20th, but that it then terminated, and that no further agreement was entered into in respect of subsequent services; that the Universe was bound by the agreement for £25 for one tide, but not afterwards; and the learned judge and the Trinity Masters were of opinion, that the Carrier Dove was in danger from the time that she lost her starboard anchor and that she was in great danger when off the wall of the Brunswick Dock, and that the Enterprise was justified in letting go her hawser when the Carrier Dove came into collision with the City of Ottawa, and that the tugs efficiently performed valuable services, and rescued the ship from great danger; and the Court awarded £600 to the Enterprise, £450 to the Universe, and £25 to the Constitution; in all £1075.
From this judgment the present appeal was interposed by the owners of the Carrier Dove and of her freight.
Mr Aspinall, and Mr V. Lushington, for the Appellants. Although salvage remuneration is a reward for rescuing maritime property from danger, and should be, it is admitted, estimated on principles of a liberal public policy, to encourage assistance to vessels in distress, yet we submit, first, that some important circumstances of the case, involving questions of principle in respect to salvage, did not receive due consideration in the Court below; and, secondly, that the amount of salvage awarded was excessive.
First, it is important to take into consideration the fact that the salvage services were rendered in the river Mersey, where the presence of numerous vessels, and the difficulties of docking, give rise to frequent casualties to the shipping, requiring steam assistance. A great number of steam tugs, expressly fitted for towing vessels, are constantly at hand, and can be immediately summoned, either by night or day; and there is necessarily considerable competition amongst them. to obtain, not only the ordinary towage, but also salvage employment. Salvage services, in fact, form ail important part of their regular occupation. The steam‑tugs are of strong construction, and very handy in management, and accordingly rarely incur serious or indeed any danger in the performance of their work, so that their salvage services are for the most part only superior towage services, distinguished from ordinary towage simply by the services being rendered to vessels in danger, more or less  imminent. It is submitted that these circumstances widely distinguish river salvage by such Tugs from the services of salvors elsewhere, who voluntarily, at great risk of property and life, go forth from safety, or leave their ordinary occupation and business, to succour vessels in distress, and that these conditions impart a character to the occupation of such owners and crews of such steam tugs more nearly resembling the character of maritime occupations of seamen or Pilots, who, even though hazarding their lives, are only moderately remunerated, and without reference to the value of the property whose interests they serve. As the amount of salvage reward depends on the circumstances of each particular case, it presents great difficulties to an amicable settlement between the parties, and is practically undetermined save by judicial decision, upon evidence, generally very conflicting, which, to use the language of Lord Stowell, in The Neptune (1824) 1 Hagg Adm 227 at 237, 166 ER 81, “too often leads to conclusions founded rather in the conjectures of honest hope, than in the confidence of a satisfactory judgment.” Such litigation, which, in default of a salvage agreement fixing beforehand the price of the services to be rendered, becomes inevitable, is always at the expense of the owner of the ship, except in the case of a successful tender, which happens comparatively seldom. It is, therefore, a matter of public policy to encourage salvage agreements, and this, Dot only by maintaining such agreements when made, which the Court of Admiralty does, unless they are plainly inequitable, but also by making the amount of reward in any cape correspond, as nearly as possible, to the  amount which the parties may upon consideration of the evidence be deemed likely to have fixed upon, if they had entered into a binding agreement. Any actual agreement, though not covering the whole services rendered, and any evidence of a negotiation made between the parties at the time, though not completed, is deserving of the utmost consideration in determining the amount of the salvage reward. Such agreements and negotiations are evidence of the market value of the services, appraised by the acts of the parties at the time. These principles were recognized by this Tribunal in the cases of The Minnehaha (1861) 15 Moo PC 133, 15 ER 444, and The Annapolis (1861) Lush 355, 167 ER 150.
Secondly, applying these principles to this case, it is submitted, that the services of the Tugs were performed without any danger, and without any unusual difficulty. The Enterprise did not save the Carrier Dove from the danger of collision, and the important service of rescuing the ship when driving towards the Brunswick Dock wall was performed by the Universe, under an agreement for a stipulated sum, and by the Enterprise, also under an agreement of the like kind. Even if the agreement with the Enterprise cannot be considered as complete, the services were rendered under circumstances from which ought to be implied a quantum meruit reward much less than the amount awarded by the Court below.
Mr Brett QC and Mr Potter for the Respondents, were not called on.
Their Lordships’ judgment was delivered by
KNIGHT BRUCE LJ. This appeal arises on a suit instituted by the owners of three steam tugs, of the port of Liverpool, for salvage services rendered to an American vessel, the Carrier Dove. The services were rendered in the river Mersey, in tidal water, and not salt ‑water, though we do not state that circumstance as material. The learned Judge of the Court of Admiralty, heard the evidence, and assisted by two Trinity Masters, who concurred with him, allowed these sums to the three Tugs‑to one, £600, to another, £450, and to the third, £25, the total amount being £1075. As to each of these sums, the owners of the vessel assisted have appealed, and substantially on the ground of quantum alone: on the ground that the amounts awarded for the services rendered were excessive.
Other matters have been incidentally referred to in the argument, but their Lordships are of opinion that the whole case resolves itself into a question of quantum; because, Lordships are of opinion that the whole case resolves itself into a question of quantum; because, though it is said that an agreement, more than one agreement, was made with respect to amount, it is agreed on the part of the Appellants that that extended only to a portion of the time devoted to the services, and did not cover the whole. It was admitted at the Bar that some services were rendered, and the concluding passages of the answer in the case are these:
“With respect to the services rendered by the Enterprise up to 9 a.m. of the 20th of October, the Defendants have paid into the registry of this Honourable Court, the sum of  £120, and say that no further sum is due to the Plaintiffs in respect thereof. With respect to the services rendered by the Universe up to the hour of 9 p.m. of the 20th of October, the Defendants have paid into the registry of this Honourable Court the sum of £25, and say, that no further sum is due to the Plaintiffs in respect thereof. With respect to the other services of the Enterprise and Universe, and the services of the Constitution, Defendants pray the Right Honourable the Judge to award such compensation as shall to him seem meet.”
At the hearing of the cause evidence was entered into on both sides. To that evidence careful attention seems to have been paid by the learned Judge and the Trinity Masters, and they came to the conclusion that has been mentioned; and there has, in fact, been no miscarriage of any kind that their Lordships can see or think probable, either on the part of the learned Judge or of the Trinity Masters, unless there has been a mere miscarriage in their estimation of the evidence, as to the question of the quantum of reward. Now, upon such a question, in the absence of any other miscarriage, it has never been the rule or practice of this Committee to enter into the question of quantum, where there has been nothing, to use a familiar expression, to shock the conscience nothing gross, nothing extravagant. The rule of this Committee has been to deal with such questions very much in the manner in which the Courts of Common law deal with verdicts as to the amount of damages, where a jury have paid attention to the case, and have been properly directed, and there has been no miscarriage of any kind in any other sense.
The rule by which this Committee is guided in this respect has been often recognized, and there are three cases now on their Lordships’ table which show and illustrate that – one in a case which occurred in 1856, The Clarisse (1856) Swab 129 at 134, 166 ER 1056, upon which there sat Sir John Patteson, Sir John Dodson, and the two Lords Justices. Each branch of the law was, therefore, represented in that Committee, and the judgment of their Lordships, delivered on that occasion, was this.
“Considering the distress and danger in which the vessel was placed, and the meritorious nature, so far as the salvors were concerned, of the services rendered, their Lordships would, in all probability, had the case come originally before them, have been disposed to allow a greater amount of total remuneration. It is, however, a settled rule, and one of great utility, particularly with reference to cases of this description, that the difference ought to be very considerable to induce the Court of appeal to interfere upon a question of mere discretion. On general grounds, therefore, their Lordships are not disposed to increase the amount given in the Court below.”
Again, in the year 1860, there came before the learned Judge of the Admiralty the case of The Cuba (1860) Lush 14, 167 ER 8. There the learned Judge says, The Clarisse and another case having been cited:–
“On appeal the burden always lies on the Appellant, and especially in cases of this kind, where the decision appealed from is a decision of discretion. The amount of salvage reward due is not to be determined by any rules; it is a matter of discretion, and probably in this, or in any other case, no two tribunals would agree. It would be, therefore, very  improper to encourage salvage appeals on the mere question of amount.”
[This was a case that had been before the Justices of the Peace.]
“It is no answer that Magistrates are not the most competent Judges – that theirs is a rusticum judicium; for the Legislature has appointed them to be the Judges in these matters. The question, therefore, for me to decide is, whether the sum awarded by the Justices is so exorbitant, so manifestly excessive, that it would not be just in me to confirm it. The sum is, perhaps, a large one for the service rendered, but I cannot call it excessive”,
and the appeal was dismissed with costs. Then, subsequently, in the year 1861, there came before this Committee an important case – that of The Julia (1861) 14 Moo PC 210 at 235, 15 ER 284, on which there sat two Lords now present and Sir Edward Ryan, and in the judgment then delivered, though not relating to a case of salvage, important observations are made which bear very much upon the question already noticed. It was a case of collision:
“They who require this Board, under such circumstances, to reverse a decision of the Court below upon a point of this description, undertake a task of great and almost insuperable difficulty. In all cases, as we have frequently observed, we must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong. And when a controversy arises upon facts of the nature of that now in question, there are some peculiarities in the jurisdiction w hich we are now exercising deserving of attention. In a Court of Law, if the Judges are dissatisfied with a verdict as against the weight of evi‑  dence, they can send the case before another jury. In the Court of Chancery, when the Court of appeal reverses the judgment of the inferior Court on the result of evidence, the Judges of the appellate Court are as capable as the Judge below (and, indeed, are presumed to be more capable) of forming an opinion for themselves, as to the proof of facts and as to the inferences to be drawn from them. But in these cases of appeal from the Admiralty Court, when the question is one of seamanship, when it is necessary to determine not only what was done or omitted, but what would be the effect of what was done or omitted, and how far, under the circumstances, the course pursued was proper or improper, their Lordships can have but slender means of forming an opinion for themselves, and certainly cannot have better means of forming an opinion than the Judge of the Admiralty Court. They do not speak with reference to the distinguished person who now fills, and has so long filled, that office, though it would be impossible to imagine a stronger example of the truth of the remark; but any Judge who sits from day to day on such cases must necessarily acquire a knowledge and experience to which ordinary members of this Board cannot pretend. They must, in such cases, act entirely upon the advice of the Nautical Assessors, who form no part of the Court, whose opinion they can regard only as they might regard the advice of any nautical men out of Court. If they reverse in such cases they must, upon the authority of their Assessors, overrule the judgment of the Trinity Masters, who form a part of the Court below, and they must do this without any certain means of knowing the comparative weight which is due to the two authorities, and without hear‑  ing what reasons might be assigned by the Trinity Masters, if they were present to justify the conclusion at which they have arrived. We have thought it right to make these observations in order that the vexation and expense of hopeless appeals may, as far as possible, be avoided, by parties being made aware of the difficulties which the Appellants must have to encounter when the merits depend upon the differing opinions of nautical men.”
Now, as has already been said, these remarks do not bear directly and immediately upon the question of salvage, and of the amount awarded, but relate to it in a very important manner, and in a manner which it is as well that all persons interested in subjects of this kind should attentively bear in mind. It has been said, that this appears to their Lordships to be a mere question of quantum, and, in fact, the able observations of the learned Counsel for the Appellants upon the subject, though seemingly going beyond the matter or subject of quantum, do in reality limit themselves to that. The main points raised by the Appellants were, first, that this was a question of river salvage as distinct from ocean salvage. That is nothing except as affecting the danger incurred, the meritoriousness of the services, or their difficulty – a question, therefore, merely of quantum. The next point was, that there was other help near, that there were a great number of Tugs plying, if the expression may he used, in the Mersey and about Liverpool, and, therefore, that the services were not costly, were easily obtained, and ought not to be highly assessed and highly estimated. That, again, was a mere question of quantum, and was determined by the learned Judge and the Trinity Master who sat with  him. In the third place, it was said that there had been negotiations when the services were rendered, or at intervals between the periods of the services, resulting, it was said, in part, at least, in an agreement, or agreements. That again, goes only to affect the question of quantum. In the end, the question remains at the starting point, namely, has too great a sum been awarded?
Now, their Lordships, who have the satisfaction of not differing in this respect from the opinion formed by the Naval Masters whose assistance they have, considering that the sums awarded have, in the whole, been liberal; and it is even possible that if their Lordships had been sitting upon this case originally, they might have thought a sum somewhat less sufficient; but they make these observations without having heard the arguments of the Counsel for the Respondents, who might have removed that impression, and their Lordships being satisfied that honest, well informed, intelligent jurymen, having carefully attended to the subject, and to all the evidence, might reasonably arrive at the conclusion at which the learned Judge and Trinity Masters arrived; it is impossible for their Lordships, consistent with the rule by which this jurisdiction is regulated, to disturb that which has been done. Accordingly, their Lordships are of opinion, that Her Majesty should be humbly advised by them to dismiss this appeal, with costs.