1. This is a salvage suit instituted by the captain, officers and crew of the steam ship Henry Bolckow against the steam ship Chilka and her freight.
2. The Henry Bolckow is as crew steamer of 689 tons net register and 99 horse power. The Chilka is a vessel of 1,497 tons register and 200 horse power belonging to the British India Steam Navigation Company, of whom the defendants in this suit are the agents in Bombay. The Chilka was chartered last autumn by the Secretary of State for India to convey troops and stores to Egypt, and left Bombay on the 28th August, 1882, for Suez with 133 camp followers, 234 mules, and a crew of 101 all told.
3. On the 3rd September, at 8-15 P.M., her machinery broke down. The fact is thus recorded in her log-book: 'Shaft broken in stern-tube and unable to turn ahead or astern.' She was then ninety-six miles from Ras Fartak, the nearest point on the Arabian coast, in lat. 14-9 N., long. 52-49 E.
4. She fired guns, sent up rockets, displayed signals of distress and in short showed by her conduct that she thought herself in need of assistance. She set her fore and aft sails; but, in spite of her Soils, her log records that evening 'the ship is drifting bodily to leeward.'
5. The next day, the 4th, there was a moderate breeze and fine weather, with a heavy south-west swell. The sails still failed to be of effectual service. There was a current setting to the north, and the log records 'Ship drifting bodily to leeward from direction of drift, the vessel making for a most dangerous part of the coast, but every chance of a set to the eastward.'
6. The Henry Bolckow came in sight the midday of the 4th, heard the distress guns of the Chilka, and saw her distress signals. She bore down upon the disabled vessel, whose captain came on board and asked for assistance. There was some negotiation as to the terms on which service should be rendered, the captain of the Henry Bolckow asking Rs. 30,000; but it was finally agreed that the Henry Bolckow should tow the Chilka to Aden, and the amount of reward should be left open. The Chilka was then made fast to the Henry Bolckow, and the two ships started for Aden. But wind and sea were against them; the Henry Bolckow was of too slender horse power for such a task, and both ships were drifting towards shore. The two captains had another conversation, decided Aden was impracticable, and agreed to try for Karachi or Bombay. They turned round on the evening of the 4th, and made for Bombay.
7. This voyage to Bombay, though successfully performed, was not without casualties. They started with a moderate breeze and fine weather, but with what one log, the Chilka's calls a 'beam swell' and the other log calls 'heavy seas'. They encountered no storm or bad weather, but they had the 'beam swell' or 'heavy seas' nearly all the way. The rolling of the vessels caused difficulties of steering; on two days at least, according to her log, the Henry Bolckow's engine 'raced'; on three occasions the towing tackle parted; and on one of these occasions there was a slight collision, the Chilka running into the Henry Bolckow and causing damage.
8. On the last day but one, the 14th, the Malda, one of the 'British India' line, offered assistance, but the offer was not accepted. On the afternoon of the 15th the Henry Bolckow cast off the Chilka within the limits of Bombay harbour.
9. On the 11th October Rs. 37,500 were paid by the owners of the Chilka 'in full discharge' of all claims of the owners of the Henry Bolckow. On the 20th November it was acknowledged by the agents of the Chilka that this payment 'was not intended to be a settlement of the claims, if any, which the captain and crew might have against the owners of the Chilka.' The captain officers and crew of the Henry Bolckow brought the present suit, and claimed Rs. 37,000 for their salvage services.
10. The above facts undoubtedly constitute a case of salvage. 'If towage leads to the rescue of a vessel in danger it should be remunerated as salvage': The Isabella 3 Hagg., 428. 'Service performed by a steamer to a disabled vessel can never be considered as mere towage': The Charles Adolfe Swab., 153.
11. The amount to which the salvors claiming in this suit are entitled is the real question. In no cases of salvage are the circumstances so similar that one case can serve as a complete precedent for another, but the principles on which salvage compensation should be based have been laid down by Lord Stowell in The Clifton 3 Hagg.,120, and his rules have been the guide in all subsequent cases; see The Glenduror I.R., 3 P.C. 592.
12. Those rules are as follows:
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 labour and skill which the salvors incurred and displayed, and the time occupied. Lastly the value.
13. Now first as regards the risk and peril of the salvors in the present suit. The breakdown of the Chilka occurred towards the close of the south-west monsoon. On the 4th September, when the salvage service began, the sea was high, but the wind was moderate and the weather fine. The weather did not get worse during the eleven days of the towage. It was suggested that a risk was run by the captain of the Henry Bolckow going in a boat to the Chilka. I think it was a danger inappreciable to skilful sailors. The Chilka had already launched a boat ready to go to Aden, and she sent off another when the other ship came in sight. 'The second smallest boat of the Chilka went to and fro without difficulty' says one of the witnesses.
14. There was, however, danger in the towage of a large ship by a small ship with weak steam power in a heavy sea. An independent witness, a marine engineer of reputation, told us what this danger consisted in. If the machinery had broken down, collision might have ensued. The engines were more likely to race, which might lead to a breakdown. Collision was also possible from the parting of the hawsers.
15. I do not think, however, the peril incurred by the salvors was so great as to put their lives in serious danger; although it was such as to call for constant attention and considerable skill in navigation.
16. The danger of the salved vessel is the next question. When the Henry Bolckow came up, the Chilka was certainly in a serious position. The main shaft of her screw was broken, and she could not steam. Although her sails were set, she was drifting on to a lee shore. The Chilka's captain himself said to the Bombay pilot, 'The Chilka probably might have gone ashore if the Henry Bolckow had not come.' No other steamer was in sight or could apparently be procured. Only one other steamer was sighted that day, and she paid no attention to the signals. In the instructions which the captain of Chilka had prepared for the officer who was to go to Aden for assistance he states that he had drifted thirty-nine miles in sixteen hours. On the other hand the captain states in the same document that 'if the wind freshens up he shall get the ship round and run her to the eastward.' He also states that he hopes to find the current setting to the east a little further on.
17. The log-books show that, as a matter of fact, the wind got more into the west on the evening of the 4th and on the 5th, and such a change was likely in the south-west monsoon season. There was on the 5th a moderate breeze from the south-west (Chilka log) or from the south-south-west (Henry Bolckow log), and it may be presumed that with such a wind a schooner-rigged vessel with all her fore and aft sails set and her rudder in working order could have turned round in sixty miles of sea-room. Once she got her head to the east, the Chilka would be out of imminent danger. Both logs agree that when the Bombay course was taken the ships found both wind and current favouarble.
18. The local character of the current which placed the Chilka in such danger is also confirmed by the charts produced. The Bombay chart shows the currents off the Arabian coast to be all easterly. The Admiralty chart agrees with the Bombay chart. The Imray chart shows the Red Sea currents to be northerly and those of the Indian Ocean easterly. It may very well happen that where the two seas meet, no hard and fast rule can be made; but the captain of the Chilka said he hoped to find the normal currents further on, and events proved him right.
19. On the whole, therefore, I do not think the peril to the Chilka so imminent as at first sight appears. 'Once out in the monsoon', says the captain of the Chilka, 'we could have made our way to the Indian coast, but I could not undertake to get to any port in particular.' She had wind and sea in her favour, with food and water in abundance. But such a voyage would by no means have been free from danger, although not of an extraordinary or imminent character.
20. Of the third ingredient, the labour and skill of the salvors, I have already spoken. It was argued that the salvage service only lasted a short time, and that the rest was mere towage. The Privy Council has mot this argument in The Glenduror L.R., 3 P.C. 593: 'Their Lordships do not think it right to split up the services of salvors or to treat it as other than one continuous service rendered to life and property.' Moreover, in the present case, the disparity of size and power between the two ships, the difficult steering and the rough seas must have given the salvors constant work as regards the towing tackle, and much anxiety concerning the success of their undertaking.
21. The value of the salving and salved ships is the last ingredient. I have not perfect evidence on this point. The defendants, however, gave proof of value by Captain Clark, a marine surveyor in their employment, who is also surveyor to Lloyds Agency, and who surveyed the Chilka on her arrival for general average purposes.
22. He valued her actual value at Rs. 2,15,000. But he admitted that he had estimated her probable repairs at Rs. 50,000. The account produced shows they did not exceed Rs. 10,000. In the next place he not only allowed for a fall in value by deterioration at the rate of 6 per cent. per annum, but he also deducted Rs. 30,000 for general fall in prices. Now, although the price of iron fell from 117s. per ton in 1873 to 47s. in 1879, I find they are much the same to-day as they were in 1879 (see Economist Annual Commercial Summaries). I cannot, therefore, allow this Rs. 30,000 deduction. Be calculated the gross value at 18 a ton on builder's measurement. I think it should be calculated on the gross tonnage, and not on any measurement which is diminished by allowances.
23. The value of the Chilka on Mr. Clark's estimate, checked as above, may be fixed at about three lakhs and a quarter. The value of the Henry Bolckow was valued in the books of her owners at Rs. 1,80,000 in 1879. She may be taken to be about one and half lakhs now.
24. The precise value of the two ships, however, is no longer all important, as the rule of proportionate rewards has been practically abandoned (3 Hagg., 93 and 62). Even in the case of derelicts the Courts are only bound to give such amount as is fit and proper with reference to all the circumstances (including value): The Scindia L.R., I.P.C., 241; The True Blue Ibid. 250. An approximative estimate of value is sufficient. The fact is important that Rs. 37,500 has been paid by the defendants to the Henry Bolckow, of which upwards of Rs. 30,000 were for services rendered to the Chilka. What is paid to the owners of a salving ship must serve to some extent as a guide to what ought to be paid to the master and crew, even though the money was paid under the idea that no other legal claim existed. But since the introduction of steam ships the rules of apportionment have greatly changed. The services rendered are (save in exceptional cases) held to be more due to the steam power than to any personal efforts, and, consequently, the owners, as compared to the captain and crew, are rewarded on a much higher scale than they were in the days of sailing ships. Obviously a long towage comes more especially within this rule. At the same time the reward must not go too exclusively to the owners, or that encouragement to save life and property at sea would, be withdrawn which is so beneficial in the interests of commerce and humanity alike.
25. I will finally mention three of the many cases furnished by the diligence of counsel with a view to my decision.
26. The first is a case cited by Mr. Lang--a salvage suit tried in this Court before the late Chief Justice: Rathbone v. The Secretary of State for India Adm. Suit No. 2 of 1869 (not reported.). The facts were as follows:The Madras, a screw steamer of 1,185 tons register and 274 horse power chartered for Abyssinia war service in 1868, broke her screw shaft between Bombay and Aden. The Steamer Gunga, 891 tons and 150 horse power, bound for Liverpool, took her in tow to Aden, a service of five and half days. The value of the Madras was 60,000 and her cargo 100,000. The value of the Gunga was 30,000. She carried passengers, and her cargo was worth 60,000. There was no bad weather, the sea was favourable, and there was no danger, save the fact that the ship was disabled. Rs. 26,000 was awarded, which sum was distributed--Rs. 20,000 to the owners, Rs. 3,000 to the master, Rs. 3,000 to the crew. 'The service was really performed,' said Sir Michael Westropp, C.J., 'by the steamer and without danger, but the master took a great responsibility as regards his passengers and a valuable cargo.'
27. The next case is the Kenmure Castle L.R., 7 P.D. 47, a very recent decision of the, British Admiralty Court. The John David steam-ship (1,807 tons burthen with full cargo from Bombay) fell in with the Kenmure Castle in the Red Sea (value 75,000, 1,268 tons) with her shaft broken. The weather was fine, sea calm. The towage lasted ten days. 4,000 was awarded, it being apportioned--3,000 to the owners, 400 to the master, 600 to the crew.
28. The third case is that of the Cleopatra L.R., 3 P.D. 145, where the vessel containing the Egyptian obelisk was found in the Bay of Biscay as a derelict, rescued with much daring by the captain and crew of the Fitzmaurice, and towed through a heavy sea ninety miles to Ferrol. The value of the Cleopatra was fixed at 25,000. 2,000 salvage money was awarded, of which 1,200 was given to the owners, 250 to the captain, and the rest to the crew.
29. Now it will be observed in the first two cases the master and crew received about one-fourth of the amount awarded. Yet in both cases the master took upon himself a grave responsibility in delaying a valuable cargo, and in one of the cases he detained passengers also. The master of the Henry Bolckow assumed no such responsibility. He carried no passengers: his ship was in ballast, and he had no cargo on board. The value of his own vessel was comparatively small, and the value of the Chilka was hardly half that of the other vessels. But the Henry Bolckow saved her from actual danger, and Captain Raffin exposed his ship to a certain degree of risk. The service was not an easy one, and it was performed with skill, zeal, and perfect success.
30. The third case is useful as showing that even when the greatest perils are encountered by the crew of the salving vessel, and the salved vessel is rescued from total loss by their skill and courage, still the owners are rewarded on a higher scale, because the steam power is the efficient cause of the salvage.
31. In conclusion, I think the present salvors will be fairly remunerated under all the circumstances of the case if I award the sum of Rs. 10,000 for their services. I think the distribution of this sum should be, Rs. 4,000 to the captain, and Rs. 6,000 to be divided amongst the officers and crow according to their respective ratings. I am also asked to fix the salvage on freight in case any freight is paid. I cannot decide in this suit whether or not any freight is recoverable under the charter party; but supposing some to be recoverable, I do not think any exception is to be made in favour of the freight for the period between 4th August and the 4th September, in respect of liability to contribute for the services rendered. I think the total salvage on whatever freight, if any, is recovered should be calculated at one-eighth of such freight; and that one-fourth of such salvage, or, in other words, one thirty-second part of the freight, if any, recovered, should be paid to the present claimants as their share, to be divided amongst themselves in accordance with the above apportionment. The owners' claim I have nothing to do with in this suit, and, moreover, it has been already settled Costs to be paid by defendants.