Manchester Liners Limited and John Scott
Watson, Master, on his own behalf and on behalf
of the officers and crew of SS Manchester
Exporter (Plaintiffs)
v.
MV Scotia Trader ex Irving Hemlock
(Defendants)
Trial Division, Walsh J.—Halifax, April 21, 22;
Ottawa, June 7, 1971.
Shipping—Salvage—Parties—Ship aiding distressed vessel
on request—Contract for towage made while salving vessel
standing by—Contract terminated—Claim for salvage by
ship, master, officers and crew—Whether master can sue on
behalf of crew without naming them—Crew's right to sepa
rate award from shipowner.
On February 4, 1969, the M, in answer to a general
distress call, went to the aid of the H whose engine had
broken down off the Nova Scotia coast in heavy seas. The
M arrived at 1705 hours and at the H's request stood by
while repairs were attempted, without success. While stand
ing by, the M's master informed the H's agents in Halifax
by radio that he would take the H in tow on terms of
Lloyd's Open Form of salvage agreement. The M's agents
in Halifax meanwhile contracted with the H's agents for the
M to tow the H to Halifax, or until discharged, at $400 an
hour commencing at 2100 hours, and advised the M's
master accordingly. The M then made several attempts to
put a line aboard the H by firing rockets and floating a line,
but without success, and eventually the H's master obtained
the services of another ship and advised the M that she was
no longer needed. The M resumed her voyage to Halifax
and later billed the H $5,205 for the M's services calculated
at $400 an hour, which sum was paid. The M's owners and
her master, suing on behalf of himself and the officers and
crew of the M, brought action against the H, alleging a
breach of the towage contract by the employment of anoth
er ship and claimed salvage remuneration for each of them.
Held: (1) The master was entitled to bring the action on
behalf of the officers and crew without naming them
individually. [Admiralty Rules 28(2), 30, referred to.]
(2) The contract for the M's services at $400 an hour
replaced any claim to salvage which the M's owners might
otherwise have had. There was on the evidence no breach
of that contract.
(3) The master, officers and crew of the M were entitled
to a salvage award of $250 against the H for the salvage
services rendered by them for the 4 hours during which the
M stood by before the contract for towage became opera
tive. Salvage commences from the moment a vessel stands
by.
ACTION.
D. McInnes, Q.C., and J. Gerald for plaintiffs.
D. Kerr, Q.C., and D. Oliver for defendants.
WALSH J.—Plaintiffs in these proceedings
claim remuneration for salvage services ren
dered to the MV Scotia Trader under her
former name of Irving Hemlock, under which
name I will hereafter refer to her, her cargo and
freight on or about the 4th and 5th days of
February 1969 in the vicinity of Beaver Island
off the east coast of Nova Scotia. The Man-
chester Exporter is a steel single screw steam
turbine vessel of 5,499 gross tons, being over
444 feet in length and carrying a crew of 41
hands all told at the material time, the ship
being valued at £200,000 and the cargo, inclu
sive of freight, at £700,000. The Irving Hemlock
is a steel single screw motor tanker of 599 gross
tons being approximately 171 feet in length and
at the material time carried a crew of 9 hands
all told, the value of the ship being given as not
in excess of $100,000 and freight at risk
amounting to $500 a day. She was carrying no
cargo and proceeding in ballast at the time of
getting into difficulty. According to the state
ment of claim, on February 4, 1969 the Man-
chester Exporter was proceeding from Man-
chester to Halifax laden with a part cargo of
general merchandise when at 1623 hours local
time, while approaching the coast of Nova
Scotia, she intercepted an urgency signal broad
cast by Halifax Marine Radio requesting all
ships in the vicinity of six miles south of Beaver
Island to proceed and render all possible assist
ance to the distressed vessel Irving Hemlock in
danger of going ashore. She was then in a
position twelve miles south of Beaver Island
and proceeded to the location indicated, report
ing that she was so doing, and subsequently
making direct radio contact with the Irving
Hemlock which asked her to stand by while her
engineers attempted to repair her engines.
When the Irving Hemlock was sighted she was
drifting to the eastward with the wind on her
starboard beam as she was pointing south and
rolling heavily and shipping water over her
decks. The weather was overcast with rain
showers or snow flurries and the wind was west
south west force 8, being gale force, with a
heavy sea and swell.
After the Manchester Exporter stood by, the
Irving Hemlock transmitted a wireless signal to
cancel the urgency signal and in due course the
master of the Manchester Exporter received a
call on the radio telephone from a representa
tive of the Atlantic Towing Company of Saint
John, New Brunswick, requesting him to agree
to a towage contract, to which he replied that if
he were to take the Irving Hemlock in tow it
would have to be on the terms of Lloyd's Open
Form of salvage agreement in accordance with
his owners' instructions. He referred the Atlan-
tic Towing Company to the Furness Withy &
Co. Ltd. of Halifax, the agents for the owners
in Canada, and subsequently, at 2130 hours he
received a radio telephone call from Furness
Withy & Co. Ltd. to the effect that they had
made an agreement with the Atlantic Towing
Company whereby he was to attempt to tow the
Irving Hemlock to the approaches to Halifax at
an agreed rate of remuneration per hour. On
receipt of this message he had his crew pre
pared to take the Irving Hemlock in tow which
involved unrolling 120 fathoms in length of 5
inch insurance wire (this is the circumference,
the diameter being about one and one-half
inches) from the reel on which it was stowed aft
and flaking it along the deck ready to be paid
out over the stern as part of the towage connec
tion, with the wire secured to four sets of bitts
on the port side aft of his vessel. He also had
two new polypropylene mooring ropes flaked
out along the deck with one end connected to
the free end of the insurance wire and the other
end connected to messenger lines to be passed
to the Irving Hemlock. These preparations
required the officers and deckhands to work on
deck in difficult conditions of cold and wet with
the vessel pitching, rolling and shipping water
from time to time, and occupied nearly four
hours. Meanwhile, the Irving Hemlock had been
asked to disconnect an anchor cable to be used
for towing, but claimed to be unable to do this
because her crew could not handle the heavy
weight of the anchor under the existing condi
tions. The Irving Hemlock was also asked to
have line throwing rockets ready for use but
replied that she had no such rockets available.
The two red lights on the Irving Hemlock
indicated that she was not under command and
the Manchester Exporter manoeuvred to pass
close under her stern from port to starboard
before turning to head parallel to her on her
starboard side at a distance of a little more than
a ship's length, and fired the first of her line
carrying rockets which the Irving Hemlock
reported to her to have fallen short. She then
circled around the bows of the Irving Hemlock
and returned to port to proceed around her
stern again and resume her former position and
fired a second rocket from a distance of about
300 feet, which rocket the Irving Hemlock
reported to have fallen ahead. She again repeat
ed her former manoeuvre circling the disabled
vessel and fired a third rocket which appeared
to fall across the foredeck of the Irving Hem
lock but according to the statement of claim no
one appeared on deck or made any effort to
attempt to secure the rocket line nor did they
report where the line had fallen and after about
four minutes it was assumed that it must have
been carried away. Subsequently, a fourth and
final rocket was fired which again appeared to
fall short.
The master of the Manchester Exporter then
advised the Irving Hemlock that an attempt
wouad be made to float a line down to her and a
heaving line was fastened to a lifebelt and when
the Manchester Exporter had manoeuvred to
windward of the Irving Hemlock the lifebelt was
thrown overboard at a distance of about 200
feet and was illuminated by the ship's search
lights but the Irving Hemlock reported that they
could see nothing of the lifebelt so it was subse
quently brought back on board and another
lifebelt was fastened to the line with an empty
40 gallon drum attached to it. When the Man-
chester Exporter came abreast of the starboard
side of the Irving Hemlock once again the life-
belt and drum were thrown overboard at a
distance of about 100 feet and the Manchester
Exporter then crossed ahead of the Irving Hem
lock from starboard to port before manoeuvring
to bring up in a position close to her port
quarter with the consequence that the messen
ger line led around the stem of the Irving Hem
lock and along her port and starboard sides but
notwithstanding this the Irving Hemlock did not
appear to make any attempt to get the line on
board. It was about 0730 hours on February 5
before the end of the messenger line was finally
brought back on board and at about 0810 hours
the Irving Hemlock indicated that she no longer
required the assistance of the Manchester
Exporter.
The statement of claim further alleges that
throughout this period she was rendering at
request a salvage service on a stand-by basis
followed by an attempt to take the Irving Hem
lock in tow after having made all necessary
preparations to do so and being willing and
capable of towing her to Halifax given the
necessary cooperation of those on board the
Irving Hemlock which was not forthcoming and
that these services extended from 1634 hours
February 4 to 0810 hours February 5, 1969 and
resulted in the Manchester Exporter arriving
late at Halifax and losing a full day's cargo
work. The master and crew were involved in a
long and arduous period of continuous duty,
responsibility and work with little respite in
adverse weather conditions during which they
displayed excellent qualities of seamanship,
perseverance and judgment without regard to
the risk to the ship and those on board as the
vessel ran the risk of becoming disabled if the
ropes were to part and foul her propeller, and
there was further risk of collision in the course
of the manoeuvres which she was required to
carry out in close proximity to the Irving Hem
lock. The indication at 0810 hours on February
5 that the services of the Manchester Exporter
were no longer required resulted from the fact
that the Irving Hemlock had made other
arrangements for a tow, which tow was subse
quently carried out by the trawler Scotia Point,
giving rise to a breach of the contract arranged
for a tow by the Manchester Exporter as a
result of which plaintiffs and each of them
claim sums by way of salvage remuneration to
be fixed by the Court after giving credit for the
sum of $5,205.95 received by the owners of the
Manchester Exporter from the owners of the
Irving Hemlock for standing by that vessel at
the rate of $400 per hour.
The defendants deny the allegations in the
statement of claim but admit that on February
4, 1969, at about 1500 hours the Irving Hem
lock sustained an engine breakdown at sea and
sent a general distress call, and that thereafter a
series of messages passed between her and the
Manchester Exporter which vessel they request
ed to stand by while the Irving Hemlock engi
neers attempted to repair her engines. After
discussing the question of a tow to Halifax by
radio telephone, the Manchester Exporter
instructed those on board the Irving Hemlock to
communicate with her agents in Halifax, which
advice the Irving Hemlock then passed to the
Atlantic Towing Company Limited, her agents
in Saint John, New Brunswick. As a result of
negotiations between them and Furness Withy
& Co. Ltd., the agents for the Manchester
Exporter, the Atlantic Towing Company Limit
ed, on behalf of defendants, sent a telegram to
Furness Withy & Co. Ltd. at about 2200 hours
reading as follows:
CONFIRMING CONVERSATION RE TOW OF
IRVING HEMLOCK BY MANCHESTER EXPLORER
(sic), AGREED RATE FOUR HUNDRED DOLLARS
PER HOUR FROM 2100 HOURS TONIGHT UNTIL
TOWED TO HALIFAX OR UNTIL DISCHARGED,
SUCCESSFUL OR NOT, PLUS COST OF ROPE
BREAKAGE PLUS COST BID TIME ONE UNLOAD
ING GANG. MANCHESTER NOT RESPONSIBLE
FOR CREW INJURY OR DAMAGE TO TOW
ATLANTIC TOWING LIMITED
GERALD B LAWSON
Defendants plead that the master of the Man-
chester Exporter had represented to defendants
that Furness Withy & Co. Ltd. were authorized
to negotiate and complete the arrangements for
payment to plaintiffs and that they relied on
these representations so that plaintiffs are now
estopped from denying that they were so
authorized and that the terms negotiated were
intended to cover the payment of remuneration
payable to all those interested in the Manches-
ter Exporter including the officers and crew
members. Defendants further deny that at any
time any line passed by the Manchester Export
er came within reach of those on board the
Irving Hemlock stating that the members of her
crew remained at their posts throughout the
entire night and were ready and willing at all
times to take a towline had the Manchester
Exporter been able to get one aboard. While
admitting that the weather conditions were bad
and that due to her engine breakdown the Irving
Hemlock was rolling and pitching heavily which
added to the difficulties of those attempting to
work on deck, the defence states that at no time
was the vessel in any imminent danger of loss
or damage. Early on February 5, when it
became apparent that due to the large size and
lack of manoeuvreability of the Manchester
Exporter she would be unable to get close
enough to pass the towline, Atlantic Towing
Limited entered into negotiations with Superior
Sea Products Limited of Yarmouth, Nova
Scotia, for the services of MV Scotia Point, and
it was agreed at about 0700 hours on February
5 that the Scotia Point, which was then close to
the area, would proceed to the Irving Hemlock
and take the latter in tow, the consideration
being a lump sum payment of $2,500 plus the
cost of any rope damage to a maximum of
$375, the towage charges •being stated to be
conditional upon a successful tow to either Lis-
comb or Halifax. When, at 0810 hours on Feb-
ruary 5 it had been confirmed that the Scotia
Point was on her way, the master of the Irving
Hemlock advised the master of the Manchester
Exporter that the latter vessel's services were
no longer required and she then proceeded on
her voyage to Halifax and shortly thereafter the
Scotia Point arrived, passed a towline and
towed the disabled vessel to Liscomb where she
arrived at 1720 hours the same day. The
defence further alleges that Furness Withy &
Co. Ltd. on behalf of plaintiffs sent an invoice
to Atlantic Towing Limited as agents for the
Irving Hemlock in the amount of $5,205.95
which was paid as settlement in full for the
services of plaintiffs, this including the stand-by
time of the Manchester Exporter at the agreed
rate of $400 per hour, stevedores' charges
attributable to the delay in the arrival of the
Manchester Exporter at Halifax, and all car
tridges, lines, etc. used during the attempt to
take the Irving Hemlock in tow, and that any
work done or services performed by the Man-
chester Exporter or her owners, or officers and
crew, or the plaintiffs have been paid for in full
pursuant to the terms of the aforesaid contract
and on the basis of the said invoice. The
defence alleges further that with respect to the
alleged claim for salvage, the efforts of the
Manchester Exporter and those on board her,
while rendered promptly and willingly, failed to
contribute anything to the safety of the Irving
Hemlock or to any successful salvage efforts.
In answer to this, plaintiffs say that no agree
ment of any description was or could be made
binding on the members of the crew of the
Manchester Exporter pursuant to the provisions
of section 201(1) of the Canada Shipping Act
R.S.C. 1952, c. 29, or at all. They further deny
that the weather was not extreme or that the
Irving Hemlock was not in any imminent danger
of loss or damage.
Before proceeding to deal with the action on
the merits, a question of procedure should be
disposed of. In paragraph 5 of their notice to
admit facts, plaintiffs had required defendants
to admit:
5. That John Scott Watson, Master of the SS Manchester
Exporter on Voyage No. 23, is duly and properly authorized
by each and every member of the Crew of the said vessel
on the said voyage to bring this action on their behalf, and
each such member of the crew consents to the commence
ment and prosecution of this action.
In its answer, defendants refused to make this
admission and, in fact, sought leave of the
Court, pursuant to Rule 68, to produce a
rejoinder to the reply to the defence in which it
states, inter alia, that:
... the officers and crew of the Manchester Exporter, aside
from the Plaintiff John Scott Watson, are not parties to this
action.
As a result of this, plaintiffs' attorney gave
notice of motion, presented at the commence
ment of the trial, asking the Court for an order
that the names of the officers and crew of the
Manchester Exporter be dispensed with and not
joined as named plaintiffs in the proceedings
and that the action proceed in its present form
and style. During the argument on this motion,
plaintiffs' counsel contended that he was pre
pared to amend the proceedings so as to include
the names of the other officers and members of
the crew as co-plaintiffs and that, in fact, he
had authorization in writing from all but four of
them to do so, and defendants' counsel for his
part indicated that unless they were so named
his client would suffer prejudice in that in the
event of the dismissal of the proceedings with
costs, the collection of same might present
some difficulty if only the master were named
as acting on his own behalf and on behalf of the
officers and crew without naming them
individually. While I decided to grant permis
sion to defendants' counsel pursuant to Rule 68
to file the rejoinder to the answer to the
defence, since, in addition to the allegations
respecting the non-joinder as parties to the
action of the other officers and crew, it con
tained other relevant, necessary allegations
including a denial that s.201(1) of the Canada
Shipping Act, which was first referred to in the
reply to the defence, is applicable in the present
case, I do not believe that it is at all desirable
that in actions of this sort every officer and
member of the crew should be named individu
ally rather than allowing the master to sue on
his own behalf and on behalf of the officers and
crew generally unless the law so requires, as
this would appear to be an unnecessarily cum
bersome procedure and could, in some
instances, cause undue delay and complications.
In dealing with this question, Mayers: Admi
ralty Law and Practice in Canada, has this to
say at page 215 in reference to the old practice
of the High Court of Admiralty in England:
By that practice any number of parties might join as plain
tiffs in an action, provided they had a common interest in
the litigation, and it was sufficient to describe them as the
owners of a ship or cargo or as the crew of a ship.
He quotes the case of The Maréchal Suchet
[1896] P. 233 at page 236 as follows:
There is no doubt that the practice of this Court has been
that all the persons interested in a salvage service might be
joined together in one suit for the purpose of obtaining the
reward for those services . . .The practice is based on
convenience.
In the Tower Bridge case [1936] P. 30 at page
39 the award for salvage is broken down by the
Court into amounts for the owners, for the
master, and for the officers and crew, who do
not seem to have been individually named,
according to their ratings. The same practice
seems to have been followed in the United
States in an action in the United States District
Court for the Southern District of New York
entitled Sobonis v. The National Defender
[1970] 1 Lloyd's Rep. 40 which concluded at
page 48:
A list of the names and addresses of the crew members of
the Mesologi in June 1963, shall be filed with the decree.
Kennedy, Civil Salvage, 4th ed., has this to say
at page 236:
As to the officers and seamen, the apportionment usually
takes the form of a lump sum to be shared by them
according to their rating.
Rule 29(2) of our Admiralty Rules states:
29. (2) Where the plaintiff in any action claims any relief
to which any other person is entitled jointly with him, all
persons so entitled must, subject to the provisions of any
Act and unless the Court gives leave to the contrary, be
parties to the action . . .
Rule 30A(1) reads as follows:
30A. (1) No cause or matter shall be defeated by reason
of the misjoinder or non-joinder of any party; and the Court
may in any cause or matter determine the issues or ques
tions in dispute so far as they affect the rights and interests
of the persons who are parties to the cause or matter.
Subsection (2) permits the Court in such terms
as it thinks just to order any person who ought
to have been joined as a party or whose pres
ence before the Court is necessary to ensure
that all matters in dispute in the cause or matter
may be effectively and completely determined
and adjudicated upon to be added as a party,
but provides that no person shall be added as a
plaintiff without his consent in writing or in
such other manner as may be authorized. I do
not consider that the presence of the other
officers or seamen before the Court is neces
sary in order to adjudicate upon the matter so it
is not necessary to apply this section, and while
it might perhaps be argued that Rule 29(2)
implies that they should be joined individually
as parties to the action, it contains the proviso
"unless the Court gives leave to the contrary".
In line with the foregoing I believe that it is
proper that only one action should be brought
on behalf of the master, officers and crew and
that the officers and crew need not be named
individually, so that the action can be brought
on their behalf by the master as has been done
in the present case and the amount awarded, if
any, be divided subsequently following judg
ment rendered. See The Spree, [1893] P. 147.
Having found, as I do, that the form and style in
which the plaintiffs have been designated in the
proceedings is in order, there is no need for any
amendment by plaintiffs to add the names of
the officers and crew as co-plaintiffs, and with
respect to the motion for an order that the
names of the officers and crew of the SS Man-
chester Exporter be dispensed with and not
joined as named plaintiffs in the proceedings
and that the action proceed in its present form
and style, while there appears to be some doubt
as to the necessity of this motion, plaintiffs'
counsel may have had in mind the provisions of
Rule 29(2) in making same and I am therefore
prepared to grant the order prayed for.
[The learned judge reviewed the evidence and
then continued:]
I do not find on the basis of the evidence
presented before me that there was bad faith on
the part of the owners of the Irving Hemlock in
arranging for the alternate tow by the Scotia
Point and eventually discharging the Manches-
ter Exporter at 0810 hours on February 5 as a
result of this. If there had been any indication
on their part of a refusal to pay the owners of
the Manchester Exporter for her services in
accordance with the terms of the contract
entered into, the situation would be entirely
different. Perhaps it would have been more
courteous on their part to have advised the
owners or master of the Manchester Exporter of
this arrangement as soon as it had been com
pleted with the owners of the Scotia Point, and
possibly Captain Kristjansson [master of the
Irving Hemlock—Ed.] might also have advised
Captain Watson [master of the Manchester
Exporter—Ed.] when he became aware of this,
although he no doubt considered that the
arrangements made by his owners were none of
his business and he himself made no arrange
ments with anyone but left it all to them. It
appears, however, that even though the owners
of the Irving Hemlock had made arrangements
for the Scotia Point to proceed and take her in
tow, they still believed it was advisable for the
Manchester Exporter to put a line aboard to
hold the Irving Hemlock off land until the
Scotia Point arrived in the morning, and Cap
tain Kristjansson agreed to this according to the
message intercepted by Halifax Marine Radio at
0104 hours. In doing this, the owners of the
Irving Hemlock were playing safe and not
taking any chances that, as a result of a change
in wind, the vessel might be driven on the shore
before the Scotia Point could take her in tow,
and they were perfectly prepared to continue to
pay the very substantial hourly charges of the
Manchester Exporter for this service.
There is nothing in this message, however,
which would indicate that Captain Kristjansson
was under instructions not to accept a line from
the Manchester Exporter, or which would indi
cate any motive which might induce him to
deliberately fail to cooperate in getting a line
aboard thereafter. In this message some doubt
is expressed, as to whether the Manchester
Exporter could tow the Irving Hemlock to Hali-
fax under existing wind conditions and if the
owners of the Irving Hemlock wished to add a
second string to their bow by sending out the
much smaller Scotia Point, owned by the com
pany which was at the time chartering the Irving
Hemlock, to tow her to the closer port of Lis-
comb this does not, I believe, indicate bad faith
on their part. They had engaged the Scotia
Point on a "no cure—no pay" basis, and while it
is true that the $2,500 which they paid her to
tow the vessel to Liscomb was less than what
they would have had to pay the Manchester
Exporter for a tow to Halifax, which Captain
Watson estimated would take seven and one-
half hours at $400 an hour, this slight financial
advantage would have been more than wiped
out had the Manchester Exporter been able to
get a line aboard during the night, when she was
attempting to do so, as in this event the tow to
Halifax might have been completed before noon
on February 5 resulting in a payment to her
owners for only three or four hours additional
time over and above the payment made to 0810
hours that morning, and no payment whatso
ever would have had to be made to the Scotia
Point. Furthermore, although it appears likely
that the Manchester Exporter could probably
have eventually got a line aboard in daylight,
especially as the weather, had apparently mod
erated somewhat, the Scotia Point, a much small
er vessel being a trawler, was able to approach
closely enough to the Irving Hemlock to throw a
handline across and take her in tow within a
very brief time after arriving on the scene,
which would appear to vindicate the judgment
of the owners of the Irving Hemlock in engaging
her to make the tow, although, at the same time,
paying the Manchester Exporter to stand by
until it was clear that the Scotia Point was
approaching and there was no further danger.
Certainly no blame can be attributed to Cap
tain Watson or his crew for failing to get a line
aboard in the extremely difficult weather condi
tions and in darkness, and Captain Kristjansson
himself admits that they exhibited excellent sea
manship and in no way criticized their services
in his evidence. On the other hand, I cannot
conclude, from the contradictory evidence, that
Captain Kristjansson was unwilling to cooper
ate in getting a line aboard. Knowing that the
Manchester Exporter was standing by, and since
the drift of the ship at the time did not indicate
any urgent and immediate danger, he may not
have been unduly concerned, and it is also
possible that his seamanship and that of his
crew may have been inferior to that of the
Captain and crew of the Manchester Exporter,
but I cannot find any clear indication of a
refusal or unwillingness to accept the salvage
services of that vessel. It may well have been
that the line which Captain Watson insists was
shot across the foredeck of the Irving Hemlock
broke or was caught in the rigging or was dif
ficult to see and locate in the darkness and
storm, and I accept Captain Kristjansson's evi
dence that it might have been difficult for his
crew to remain constantly on deck, so that they
may have been in shelter at the exact moment
that that rocket was fired. With respect to the
line floated around the vessel, it appears to me
that it would have been difficult in the darkness
and storm with the ships rolling as they were
for anyone to be absolutely certain that the line
came into actual contact with the Irving Hem
lock even though the drum to which it was
attached was illuminated. Finally, it is perfectly
clear from the contract entered into and con
firmed by the telegram sent by the owners of
the Irving Hemlock that the services would be
rendered "until discharged", and it was perfect
ly in order, therefore, to release the Manchester
Exporter from further services at 0810 hours on
payment in full in accordance with the contract
for services rendered up to that time. This is in
no sense comparable to the cases of dispos
sessed salvors cited by plaintiffs' attorney, and
the Manchester Exporter proceeded on her way
without protest and in full acceptance of the
fact that she was released from further services.
While the Irving Hemlock did not send out an
S.O.S. or call directly for vessels to proceed to
her aid, but instead this was done by Halifax
Marine Radio on its own initiative, and quite
properly under the circumstances when it
became aware that the vessel was in danger, as
a result of the call made through it from the
master to the owners, the Manchester Exporter
certainly went to her aid in response to this call
and by 1705 hours had her in radio and visual
contact, and at 1729 hours the master of the
Irving Hemlock reported that she was now
standing by and that that would be sufficient as
a result of which the "all ships" broadcast was
cancelled. It can be said, therefore, that from
about 1705 hours a request salvage operation
had commenced. Under the basic rules of sal
vage, however, the operation has to be success
ful in order for salvage to be claimed and in fact
this is the condition of Lloyd's Open Form
which was the only condition on which the
master of the Manchester Exporter was author
ized on his own initiative to undertake any
salvage operations. Although the Irving Hem
lock was eventually salvaged, this was not due
to the efforts of the Manchester Exporter
although I have found that no blame can be
attached to her crew for their failure to succeed
in these salvage operations, and there is no
doubt that they made diligent and strenuous
efforts to attempt to perform the salvage (see
The Melanie (Owners) v. The San Onofre
(Owners) [1925] A.C. 246 and The Renpor
(1883) 8 P. 115). This rule is subject to an
exception, however, when the services are ren
dered at the request of the vessel in tow in
which case they become engaged services and
some award is made even if the services have
not contributed to the ultimate preservation of
the vessel. Kennedy, Civil Salvage 4th ed., has
this to say at page 112:
If the master of a ship in distress requests the perform
ance of a service of a salvage nature—requests, for exam
ple, a steamer to stand by her in a storm, or to fetch an
anchor from the shore—and that service is rendered, but the
ship for which the service is requested is eventually saved
through some other cause, such as a fortunate change of
weather; or secondly, if after the service has begun and
whilst they are willing and able to complete it, those who
have undertaken it are discharged by the master of the
vessel in danger, who prefers, perchance, some other help
which offers itself: the court will not suffer the act of
assistance, although unproductive of benefit, to go unre-
warded, if it has involved an expenditure of time, labour or
risk; and further, in the second case, may include in its
award some compensation for the loss which the claimants
of salvage have sustained in being prevented from complet
ing the service which they had agreed to render.
This was approved by Gorell Barnes J. in The
Helvetia (1894) 8 Asp. M.L.C. 264n and also in
The Loch Tulla (1950) 84L1. L. Rep 62. In The
Undaunted (1860) Lush. 90 at 92 Dr. Lushing-
ton had this to say:
I cannot have any doubt as to the duty of the Court in this
case. There is a broad distinction between salvors who
volunteer to go out and salvors who are employed by a ship
in distress. Salvors who volunteer, go out at their own risk
for the chance of earning reward, and if they labour unsuc
cessfully, they are entitled to nothing: the effectual per
formance of salvage service is that which gives them a title
to salvage remuneration. But if men are engaged by a ship
in distress, whether generally or particularly, they are to be
paid according to their efforts made, even though the labour
and service may not prove beneficial to the vessel. Take the
case of a vessel at anchor in a gale of wind, hailing a
steamer to lie by and be ready to take her in tow, if
required; the steamer does so, the ship rides out the gale
safely without the assistance of the steamer: I should
undoubtedly hold in such a case that the steamer was
entitled to salvage reward, the how much to be determined
by the risk encountered by both vessels, the value of the
property at hazard, and the other circumstances of the case.
The engagement to render assistance to a vessel in distress,
and the performance of that engagement, so far as neces
sary or so far as possible, establish a title to salvage reward.
In The Maude (1876) 3 Asp. M.L.C. 338 the
steam tug Walter Stanhope, seeing the signals
of distress of The Maude who had lost her
propeller in bad weather, came up to her and
after some discussion between the masters,
undertook to tow her. The hawser was made
fast but subsequently parted and because of the
stress of the weather the disabled ship was
obliged to anchor. The Walter Stanhope, how
ever, was requested to stay by her during the
night and she did so but on the following morn
ing the master of the Maude, instead of availing
himself of the services of the Walter Stanhope
whose master was ready and willing to com
plete the service, engaged for a fixed sum,
which the master of the Walter Stanhope had
refused to accept, another steamer which had
come up during the night. The owners, master
and crew of the Walter Stanhope sued for sal
vage and in rendering judgment Sir Robert Phil-
limore stated:
It is true that it has been held in this court as a general
proposition that a service however well intended, but not
rendered, should not be rewarded. But that is a proposition
which, in the circumstances of the case, induces the court to
consider the reason why the service is not rendered.
The fair result of the evidence is that the Walter Stanhope
was ready to do her best to the vessel in distress, and would
have done so if the other engagement had not been made.
The Walter Stanhope is not entitled to be rewarded on the
scale which would have been her due had she towed the
Maude to Yarmouth or Hull. She was there the whole night,
and she ought not to have been discarded, and is entitled to
be rewarded for the services rendered and to some compen
sation for the loss she has sustained by not being able to
complete the service agreed upon.
In The Melpomene (1873) L.R. 4 A. & E. 129
Sir Robert Phillimore said:
... on the other hand, I think there are no cases which
would stand in the way of my adopting as a principle this
proposition, which appears to me of considerable impor
tance to the interests of commerce and navigation, especial
ly at the present time, namely, that where a vessel makes a
signal of distress and another goes out with the bona fide
intention of assisting that distress, and, as far as she can,
does so, and some accident occurs which prevents her
services being as effectual as she intended them to be, and
no blame attaches to her, she ought not to go wholly
unrewarded. I think it is for the interests of commerce and
of navigation, and also for the encouragement of salvage
services generally, that some remuneration should be given.
I think that a slight remuneration will suffice on the present
occasion, and I shall award the Resolute £50.
There is no doubt that the Manchester Exporter
was asked to stand by the Irving Hemlock even
before the contract was made between the
owners of the two vessels and that the owners
of the Irving Hemlock desired her to stand by
through the night even after they had
despatched the Scotia Point to take the Irving
Hemlock in tow, so that even though the ser
vices rendered were not successful and did not
contribute to the eventual salvage of the Irving
Hemlock I would have made a salvage award in
favour of the owners, master and crew of the
Manchester Exporter if no agreement for sal
vage had been made between the owners of the
two vessels and no payment made as a result of
it. This award would have taken into considera
tion, however, the fact that the salvage services
were not successful and would not have been
for an amount greater than the payment which
was made by virtue of the agreement between
the owners of the two vessels, which payment
represents over 5% of the value of the Irving
Hemlock. Furthermore, I would have divided
this award between the owners on the one hand,
and the master and crew on the other, and
probably would have divided this on the basis
of three-fourths to the owners and one-fourth to
the captain and crew (see Kennedy (supra)) at
page 235 where he states:
Since 1883, owners have received three-fourths so fre
quently that this may fairly be called the ordinary
apportionment.
referring to the Livietta case (1883) 8 P.D. 24.
The fact that a towage agreement was entered
into, however, between the owners of the two
vessels to take effect at 2100 hours changes all
this (strictly speaking, the agreement was made
with Furness Withy & Co. Ltd. as agents for
the owners of the Manchester Exporter, but it is
clear from their conduct during the negotiations
that they had, or in any event held themselves
out as having, the right to enter into the agree
ment which they did on behalf of the owners
and I therefore consider this agreement binding
on the owners). While this agreement fixed an
hourly rate substantially higher than I would
have been inclined to allow in view of the
evidence of Mr. Lawson that his company,
which owns vessels specially equipped for
towage and salvage operations, has never been
able to charge contract rates even approaching
this, I do not see any reason for interfering with
the contractual arrangements made on the
grounds of their being exorbitant, especially
since defendants paid the account rendered
without question and without protest. See The
Medina (1877) 2 P.D. 5; The Mark Lane (1890)
15 P.D. 135; The Port Caledonia and The Anna
[1903] P. 184.
An agreement to render towing services and
exact payment for same, whether or not the
efforts are successful, is not, properly speaking,
a salvage agreement. As Kennedy (supra) states
at page 100:
A salvage agreement is an agreement which may fix,
indeed, the amount to be paid for salvage, but leaves
untouched all the other conditions necessary to support a
salvage award, one of which is the preservation of some
part at least of the res, that is, ship, cargo, or freight.
Mr. Lawson testified and his testimony was
uncontradicted, and in fact was indirectly sup
ported by the manner in which the account was
eventually rendered by Furness Withy & Co.
Ltd., that during the negotiations for the agree
ment, and in view of the high rate being paid,
the starting time was fixed at 2100 hours rather
than at the earlier time of 1705 hours when the
Manchester Exporter first stood by, and it was
on this basis that the contract was entered into
and payment in full made in accordance with
the terms of the agreement. Plaintiff, Manches-
ter Liners Limited, cannot have the best of two
worlds and claim payment both for salvage,
even though the salvage was not successful, in
an amount to be fixed by the Court, after giving
credit for the sum received under the agree
ment, when payment was made under the agree
ment, in full, at the rate of $400 an hour,
commencing at 2100 hours, which amount was
payable whether the services were successful or
not, and I am surprised that it should attempt to
do so. Clearly the agreement replaced any claim
to salvage which it might otherwise have had,
and, as I have already indicated, in actual fact
represented payment to it of more than the sum
I would have awarded on the basis of its sal
vage claim had no such agreement existed.
With respect to the claim of the master on
behalf of himself and the officers and crew,
however, the situation presents more difficul
ties. The jurisprudence indicates the claim of
the master and crew, while usually dealt with in
the same action as that of the owners, is a
separate claim, and that except for special cir
cumstances the owners cannot enter into an
agreement waiving their rights to salvage any
more than the master could (except perhaps in a
situation where an agreement is entered into ex
necessitate because of urgency and inability to
communicate with the owners) bind the owners.
In The Margery [1902] P. 157 Sir Francis Jeune
had this to say at page 165:
I am not at all prepared to say that under certain circum
stances an agreement made by the owners on behalf of the
crew might not bind them, just as an agreement made under
certain circumstances by the master may bind the owners. It
is clear that if, before the salvage service is rendered, the
masters of the two ships meet together, they may make an
arrangement by which, subject to the jurisdiction of this
Court to see whether it is equitable or not, the masters can
undoubtedly bind the owners. I should not be prepared to
deny that an agreement made under similar circumstances
by the owners on behalf of the master and crew might bind
the master and crew; but the reason for that is the necessity
of the case. The service has to be rendered on the spur of
the moment, and if the agreement cannot be made by the
only persons who are there to make it, it cannot be made at
all. Therefore ex necessitate an agreement so made binds;
but that is a very different thing from saying that, when
there is no stress at all, an arrangement made by the owners
binds the master and crew, without any notice tothe master
and crew. That proposition I am not prepared to adopt, nor
is that seriously contended.
In The Friesland [1904] P. 345 shipowners,
having been informed by telegraph that their
vessel was lying disabled off the south coast of
Ireland, agreed with the owners of a tug, known
to be in the vicinity of the disabled vessel, that
their vessel should be towed to Liverpool by
the tug on the usual towage terms. Before,
however, the agreement was made and before
the owners of the tug could instruct their tug-
master, the tug had proceeded to the disabled
vessel, and had begun towing her to Liverpool.
In an action of salvage brought by the owners,
master and crew of the tug, Sir Francis Jeune,
after holding that the owners were bound by the
agreement, dealt with the question whether the
master and crew were also bound by it. He
found that there was a continuous service and a
substantial part of it had been rendered before
the agreement was made, that the master and
crew had thereby acquired independent rights
when the agreement was entered into, and "the
owners cannot bargain away the vested rights
of the master and crew by a bargain in which
the master and crew do not acquiesce". In The
Leon Blum [1915] P. 90, 290 the owners of a
vessel entered into a towage agreement on
terms of "no cure, no pay, no salvage charges".
It was held there was no authority on the part
of the owners to bind the master and crew that
they should not in any circumstances receive
salvage remuneration. This case also referred to
section 156 of the Merchant Shipping Act 1894,
57-58 Vict., c. 60, which is substantially repro
duced in s. 201 of the Canada Shipping Act by
virtue of which a seaman cannot by any agree
ment abandon any right that he may have or
obtain in the nature of salvage, and that every
stipulation in an agreement to the contrary is
void. While I have considerable doubt as to
whether s. 201 of the Canada Shipping Act
applies in the present case, since we are not
dealing with an agreement to which the seamen
were parties but rather with an agreement made
by the owners which nevertheless adversely
affects them, it does appear that the salvage
services of the master, officers and crew had
commenced some four hours before the agree
ment when, by request, they stood by the Irving
Hemlock which was in distress, even though at
that time they made no attempt to get a rope
aboard or commence any salvage operations.
Salvage commences from the moment a vessel
stands by (see The Undaunted, The Tower
Bridge and The National Defender cases
(supra)). The master of the Manchester Export
er very properly went to the aid of the Irving
Hemlock as, in fact, he was obliged to do under
the provisions of the British Merchant Shipping
(Safety Convention) Act, 1949 12-13 Geo. 6, c.
43, section 22 of which reads in part as follows:
22. (1) The master of a British ship registered in the
United Kingdom, on receiving at sea a signal of distress or
information from any source that a vessel or aircraft is in
distress, shall proceed with all speed to the assistance of the
persons in distress (informing them if possible that he is
doing so) . . .
(8) Nothing in this section shall affect the provisions of
section six of the Maritime Conventions Act, 1911; and
compliance by the master of a ship with the provisions of
this section shall not affect his right, or the right of any
other person, to salvage.
Captain Watson testified that he was standing
by to save life as he was obliged to do by s. 6 of
the British Maritime Conventions Act, 1911 1-2
Geo. 5, c. 57, subsec. (2) of which reads as
follows:
6. (2) Compliance by the master or person in charge of a
vessel with the provisions of this section shall not affect his
right or the right of any other person to salvage. (Similar
provisions are found in secs. 457 and 526 of the Canada
Shipping Act.)
I find that the master, officers and crew in
the present case are entitled to a salvage award
which, had they succeeded in completing the
salvage, I would have fixed at one-quarter of
the negotiated hourly figure arranged between
the owners of the two vessels, or $100 an hour,
but in their case to commence at 1705 hours on
February 4 and continue until completion of the
salvage. As it turned out their services, through
no fault of their own, were unsuccessful and
were terminated at 0810 hours February 5 after
a period of approximately 15 hours which
would result in an award of $1,500, which in
line with the jurisprudence I would reduce to
$1,000, as the vessel was not actually saved as
a result of their services. The difficulty is to
determine how this award can be made without
causing an unreasonable prejudice to defendant
which has already paid in full a very substantial
amount for the same services. It is my view that
the amount which was paid to plaintiff, Man-
chester Liners Limited, by virtue of the agree
ment should have been shared by it with the
master, officers and crew, in accordance with
the usual practice in salvage awards, but evi
dently Manchester Liners Limited has not done
so. The crew was paid overtime in accordance
with the terms of their contract of employment,
but it was stated in evidence that this would not
involve a very substantial sum'. The master and
officers are apparently paid a monthly wage and
received nothing further for their very excep
tional and unusual efforts during the night of
February 4-5, 1969. While it was undoubtedly
their duty in accordance with the provisions of
the British Merchant Shipping (Safety Conven
tion) Act, 1949 (supra) and maritime law gener
ally to undertake these exceptional hardships
and personal efforts, it is not something which
would frequently occur in the course of their
normal employment and they are entitled to be
properly compensated for same. If there is
something in the terms of the engagement of the
master, officers and crew by their employers,
Manchester Liners Limited, which justifies the
latter in refusing to share amounts received by
them pursuant to the towage contract with these
employees, this is not a matter which can be
decided in the present case, noncan the ques
tion of whether such a condition would be con
trary to s. 201 of the Canada Shipping Act
(supra) since, although Manchester Liners Lim
ited on the one hand, and the master acting on
his own behalf and on behalf of the officers and
crew on the other, appear to have conflicting
interests, they are co-plaintiffs and no issue
between them is before me.
However, I believe that defendants were jus
tified in believing that the payment they made
to Furness Withy & Co. Ltd. as agents for the
owners constituted full payment for all services
rendered, and that the agreement which they
had negotiated for the substantial figure of $400
an hour would also cover any possible claim of
the master, officers or crew, and that they
would not be in jeopardy of a subsequent claim
from them, to say nothing of a subsequent claim
from Manchester Liners Limited, which latter
claim, as I have previously indicated, I find to
be entirely unjustified and unwarranted. Surely,
from a practical point of view, the master or
owners of a ship accepting salvage services
should not have to enter into two separate
agreements, one with the owner of the vessel
which is to perform the salvage and the other
with the master of same acting on behalf of the
officers and crew, especially when it must be
borne in mind that such agreements have to be
made under the conditions of stress and in some
haste. It would seem more reasonable to
assume that the owners of the salving vessel
would make their own arrangements for sharing
the special remuneration paid with their
employees the master, officers and crew, espe
cially when the captain of the salving vessel, as
in the present case, indicated that he had no
authority to enter into any agreement except
under the terms of Lloyd's Open Form, and that
if any variation on this was to be made the
owners of the vessel in distress should contact
his owners or agents. Nevertheless, the law
seems clear that the master, officers and crew
cannot be so bound by the owners especially
when they have an acquired right, having
already commenced an act of salvage by stand
ing by on request, before the agreement to
which they were not parties was made. Break
ing down the $1,000 salvage award for the
master, officers and crew into the period from
1705 hours to 2100 hours when the contract
with the owners commenced, and the period
from 2100 hours to 0810 hours when it ter
minated, I would award $250 for the first
period and $750 for the later period, and hold
defendants liable for payment to the master,
officers and crew of the sum of $250 for the
first period. With respect to the second period
for which I have found the master, officers and
crew are entitled to $750 as a salvage award for
their continuing services during this period, I
consider that this portion of their claim has
been paid by defendants to plaintiff, Manches-
ter Liners Limited, and should be claimed from
them by the master, officers and crew. I cannot
render such a judgment in the present case so
this matter would have to be dealt with in other
proceedings.
Judgment will therefore be rendered as
follows:
The claim of Manchester Liners Limited is
dismissed. Judgment is rendered in favour of
John Scott Watson, master, on his own behalf
and on behalf of the officers and crew of the
Manchester Exporter on voyage No. 23 Janu-
ary-February 1969 against defendants for $250.
In view of the unusual circumstances sur
rounding the present litigation which would
likely never have been brought had plaintiff,
Manchester Liners Limited, shared the payment
made with the master, officers and crew, and in
view of Rule 344 which gives the Court full
discretion to make such order as to costs as it
shall see fit, I direct that, although judgment is
rendered against defendants on behalf of plain
tiff John Scott Watson and the officers and
crew as hereinabove indicated in the amount of
$250, the defendants shall have their costs pay
able by plaintiff Manchester Liners Limited.
'See The National Defender [1970] 1 Lloyd's Rep. 40 at
p. 46 where, in dealing with a claim by the crew of the
salving vessel and an offer of payment made, it is stated:
"The offer of payment clearly had nothing to do with
plaintiffs' regular salary or overtime since that was the
obligation of Hellenic Shipping, the Mesologi's owner, on
which payment was received when the plaintiffs were dis
charged at Pylos, Greece, at the end of the voyage."
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.