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1903 DIGILAW 95 (MAD)

The Clan Line Steamers Limited v. The Balces

1903-09-08

MOORE

body1903
JUDGMENT Moore, J. 1. On the night of 5th July 1902 the barque Balces which was anchored in the Port of Porto Novo broke loose from anchorage and drifted out to sea. The boat was, it appears, under repair at the time and there were sleeping in her on the night on which she drifted out seven men, five of whom admittedly were caulkers who were employed in repairing the boat, while the other two are stated to have been watchmen, who also, it is alleged on behalf of the Defendant, were lascars or sailors. The steamer Clan Lamont belonging to the Plaintiffs steamed out of the Port of Cuddalore at 9 oclock on the morning of the 6th of July. From the log, it appears that this steamer sighted the barque Balces at 10 A.M. "without any sails set, drifting and with distress flags flying." The steamer bore down to her, sent out a boat and found that she had parted her cable at Porto Novo and had been drifting all night. At 11-30, the steamship Clan Lamont took the Balces in tow and proceeded at half speed towards Cuddalore. Her steering gear was out of order and useless and there were no sails on board the ship. The boat was therefore, it is stated in the log, "practically derelict" and was drifting towards the south-west monsoon in the Bay of Bengal and must have foundered. At 2 P.M. the tow rope parted owing to the Balces "not steering and the rope being across her bow." The steamship Clan Lamont stopped and at 2-50 another rope was got fast to the Balces and the Clan Lamont then proceeded towards Cuddalore where she arrived at about 4-30. The steamer Clan Lamont handed over the barque Balces to the Port Officer, left Cuddalore harbour at about 7-30 and steamed towards Vizagapatam. The Plaintiffs allege that the Balces was, to the best of their information and belief, worth about Rs. 15,000 at the time that these occurrences took place, and claim a sum of Rs. 5,000 as salvage on account of the services rendered by them to the Balces. The Defendant traverses the allegations made in the plaint in various particulars and submits that Rs. 15,000 at the time that these occurrences took place, and claim a sum of Rs. 5,000 as salvage on account of the services rendered by them to the Balces. The Defendant traverses the allegations made in the plaint in various particulars and submits that Rs. 500 is a fair and reasonable sum for him to pay on account of any services that were rendered by the Clan Lamont to the Balces, He has not been examined himself here and no witnesses have been called on his behalf. The Captain, Chief Engineer and others on board the Clan Lamont were examined by commission in Glasgow on the 18th and 19th June last, but no one appeared on that occasion on behalf of the Defendant and they were consequently not cross-examined. The only question that really has to be considered in this case is as to the amount that should be paid to the Plaintiffs as salvage on account of the services which they undoubtedly rendered to the Balees on the 6th of July 1902, There has been some discussion at the hearing of this case as to whether it can be held that the Balees, was what is called a derelict, that is to say, as defined in Whartons Law Lexicon, a vessel forsaken at sea. It is urged on behalf of the Defendant that, as there were seven men on board, two of whom were sailors, it cannot be held that the boat was a derelict. The point does not appear to be one of much importance, for as pointed out in the judgment in The Janet Court L.R., [1897], P.D., 59 by Sir Francis Jenne, the fact that the subject of a salvage is a derelict does not now, and it is doubtful if it ever really did, carry with it a right to remuneration consisting of a half, a third, or any specific proportion of the value of the property salved. "There is no magic in the word derelict, but the term imports a certain state of things containing elements which tend, on the general principles of salvage, to raise the amount of the salvage award and, in fact, the amount of award depends not on the question as to whether the barque can have been held to be a derelict or not but on the value of the services which were performed by the salvor to the property salved." The principles in which salvage compensation should be leased have thus been laid down by Lord Stowell in The Clifton 3 Hagg., 120 and these rules, which are as follows, have been followed in all subsequent cases: "Now salvage is not always a mere compensation for work and labour. The interests of commerce, the benefit and security of navigation, the lives of the seamen, render it proper to estimate a salvage reward upon a more enlarged and liberal scale. The ingredients of a salvage service are, first, enterprise in the salvors risking their own lives to save their fellow-creatures and to rescue the property of their fellow-creatures; secondly, the degree of danger and distress from which the property is rescued-whether it were in imminent peril or almost certainly lost; thirdly, the degree of labour and skill which the salvors incurred and displayed and the time occupied. Lastly, the value." I now proceed to apply these principles to the present case. I do not think that it can be said that the salvors risked their lives in saving the barque Balees. Secondly, as regards the degree of danger and distress from which the barque was rescued, it is not easy to pronounce with absolute certainty. It is shown that when the Clan Lamont came up to the Balces she had drifted to a point at a distance of 14 miles from Cuddalore. The southwest monsoon had burst at the time, but so far as the evidence goes there was no storm prevailing on the 6th July, nor was there anything that can be called a heavy monsoon prevalent at the time. The absence of any mention of a storm in the Log book is sufficient proof that no storm prevailed, and the other entries in the Log book satisfy me that although the monsoon had burst, yet that there was no heavy monsoon weather during that day. The absence of any mention of a storm in the Log book is sufficient proof that no storm prevailed, and the other entries in the Log book satisfy me that although the monsoon had burst, yet that there was no heavy monsoon weather during that day. The Balces had no proper steering gear on board. The rudder was on board, but the wheel, it is admitted, without which the rudder could not be worked, was on shore for repair when the boat drifted from anchor. There was one sail in the barque, but it was not set and, according to the evidence that is given, the only two men on the boat who could be said to be sailors could not have been able without assistance to set the sail. It must, therefore, be assumed that if the Clan Lamont had not rescued the Balees the barque would have drifted to the north-east and in all probability would have foundered and been lost. It is however shown that a boat and some catamarans were sent out by the owner of the barque from Cuddalore on the morning of the 6th, and if there had been no heavy monsoon weather or strong wind, it is possible that they might have been able to get out to the Balees and rescue the crew, and also, although that, it must be admitted is most doubtful, bring the barque to shore. The case is, therefore, not very dissimilar from that of the Chilka dealt with in Raffin v. The Chilka I.L.R. 7 Bom. 196, where, owing to her machinery having broken down, the Chilka, when she was 96 miles off the Arabian coast, was drifting towards a dangerous part of the coast and in all probability would have been wrecked and all lives lost if she had not been rescued by the steamship Henry Bolekow. In that case it was held that the services rendered by the rescuing ship were not merely towing services but salvage and that the salvors were entitled to compensation on the principles which I have already quoted from the judgment in the Clifton case. I therefore hold that the danger from which the Balces was rescued was very great and that it was in imminent peril and would almost certainly have been lost, if it had not been for the opportune arrival of the Clan Lamont. I therefore hold that the danger from which the Balces was rescued was very great and that it was in imminent peril and would almost certainly have been lost, if it had not been for the opportune arrival of the Clan Lamont. The third point is the labour and skill which the salvors displayed and the time occupied. The time occupied was, as has already been shown, from 10 A.M. till 6 P.M. The skill displayed must have been considerable. From the evidence of the captain of the Clan Lamont it is clear that, owing to the fact that the Balces had no steering gear which could be worked, it was found very difficult to tow the boat into harbour, and in doing so the captain and the men on the Clan Lamont had to expend considerable labour and show considerable skill. 2. The last point for consideration is the value of the boat saved and as to this there cannot be much dispute in the present case. The Plaintiff values it at Rs. 15,000. The Defendant says in his written statement that it (the boat) was not worth more than Rs. 10,000, and it is shown that, when the boat was sold under the orders of this Court by Messrs. Simson and Co. of Cocanada in June 1903, it realised a sum of Rs. 6,500. In these circumstances, I think, and I cannot be very far wrong if I find that the value of the Balces at the time of these occurrences was about Rs. 10,000. It appears that the Clan Lamont was, in consequence of the delay at Cuddalore, about a day late in arriving at Vizagapatam, and we must, therefore, take it that the loss of time was a day. The captain states that the value of the coal consumed in salving the barque was about 50 and estimates the value of the hawsers and ropes used in towing and the "damage done to boat and gear" at another 50; and the general expenses of the ship and crew, apart from coal, at about 60 or thereabouts. The captain also states that this does not take into account the damage done to the steamship Clan Lamont and her engines. I think that it must be admitted that this is a very exaggerated estimate. The captain also states that this does not take into account the damage done to the steamship Clan Lamont and her engines. I think that it must be admitted that this is a very exaggerated estimate. I cannot credit the statement that the coal consumed in consequence of the delay at Cuddalore was worth anything like 50, nor that the cost of the ropes, etc., and the damage caused in towing the boat could have amounted to another 50, or that the general expenses of the crew, apart from coal, were 60, or more, and further I cannot hold that there is evidence which satisfies me that damage was caused either to the steamship Clan Lamont or to her engines by the undue strain put upon her in towing the boat. Considering the relative dimensions of the boats, it is scarcely possible that there could have been any such strain. I think it must be admitted that these valuations are excessive. As already stated the Defendant offered Rs. 500. At the close of the argument Mr. Napier on his behalf stated that the Defendant was willing to give Rs. 1,000. I find the first and second issues in the affirmative and on a careful consideration of all the evidence that has been given and the arguments of Counsel on both sides, I decide on the third issue that an award of Rs. 2,000 will be reasonable compensation for the salvage services rendered. 3. I accordingly pass a decree for that amount with costs including the costs of the commission. The balance in Court to the credit of the suit to be paid to the owner of the Defendant barque Balces, Muhamad Saib Maracoir.