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North Star Marine Salvage Ltd. (Plaintiff) v.
Nick Muren and the B. C. Adventure (Defend- ants)
Trial Division, Kerr J.—Vancouver, B.C., Octo- ber 23 and 24, 1972; Ottawa, February 2, 1973.
Maritime law—Salvage—Contract with salvage company to raise sunken ship at its usual rates for men and equip- ment—Whether a contract for salvage.
Defendant ship sank in Georgia Strait. Her owner made an agreement with plaintiff salvage company to raise her, the salvage company to be paid for its services on the basis of its usual rates for men and equipment together with the cost of divers and tenders.
Held, the contract although not on a "no cure, no pay" basis was nevertheless a contract for salvage services and therefore within the jurisdiction of the Court.
ACTION for salvage.
COUNSEL:
P. G. Bernard for plaintiff.
T. P. Cameron for defendants.
SOLICITORS:
MacRae, Montgomery, Hill and Cunning- ham, Vancouver, for plaintiff.
McMaster, Bray, Moir, Cameron and Jasich, Vancouver, for defendants.
KERR J.—The defendant vessel B. C. Adven ture is a 55-foot long all steel drum seiner that sank on March 9, 1971, in the Georgia Strait a short distance from shore near Nanoose Bay, B. C., with a load of herring on board. The plaintiff, a marine salvage company, raised the vessel, pumped her free of water and the her ring and towed her to a shipyard in Vancouver. The plaintiff's claim is for payment for the services rendered in so doing. The defendant Nick Muren is the owner of the vessel. The cause of her sinking was that she had a net out at her stern and with a fairly heavy load of herring on board and in the net her stern was
pulled under while her hatch was open, and she flooded and sank.
The plaintiff owns and uses in its marine business the vessels B. C. Salvor, Gulf Lifter, Standto and Standon. The B. C. Salvor has a 60-ton hoist, salvage pumps, cutting torches and other salvaging equipment. The Standon and Standto are tugs. The Gulf Lifter is equipped with a lifting crane. These four vessels were used at various times in rendering the services. The B. C. Salvor and the Standon were used in the initial stages and subsequently and the other two vessels were added in the course of the services, which extended through the period March 14 to March 22, 1971, inclusive. The services are detailed in the plaintiff's bill of account, Exhibit P-3, and the notes thereto. The plaintiff found it necessary to engage the serv ices of two divers from another company at a cost of $2,059.42 which is included in the plain tiff's bill.
A meeting took place on March 13, 1971, between Mr. Benson, secretary of the plaintiff company, Mr. Smith, its president, and Mr. Muren, at which the recovery of the vessel was discussed, following which the plaintiff compa ny commenced to get the necessary equipment and prepared to go to the scene of the sinking to recover the vessel. On March 15 the B. C. Salvor, towed by the tug Standon, left Vancou- ver and went to Nanaimo where the divers were taken on board. On March 16 these two vessels left Nanaimo and went to where Muren thought his vessel was. Considerable searching took place before the vessel was found with the help of a fishing vessel, Melvin E, and use of her depth sounder. The sunken vessel was found at the bottom in about 105 feet of water. The divers then went down and examined the situa tion and put out markers. Then the plaintiff's two vessels went for that night to a sheltered location, Nanoose Bay, about three miles away. On the next morning, March 17, the two vessels went back to the scene, attached slings to the sunken vessel and moved her closer to the shore, but they were not able to lift her to the
surface. It was then decided that it would be necessary to have the Gulf Lifter to assist in the work, and the Standon was sent to Vancouver for her. The tug Standto was also sent for. On March 18 the Standon returned with the Gulf Lifter in tow and they stayed overnight at Nanoose Bay. On March 19 the plaintiff's four vessels went back to the scene and moved the sunken vessel to shallower water. On March 20 they raised her and towed her to Nanoose Bay. On March 21 the herring were pumped out and on March 22 the vessel was towed to a shipyard at Vancouver.
The recovery operations were hampered by the vessel's net which had fish in it and was tangled in the rigging and mast and around the vessel, and by the lie of the vessel which made it difficult to get slings in position around her. The divers had to surface frequently to decom press, and there were interruptions of their diving because of weather and sea conditions. In early efforts to lift the vessel a strap was attached to each side, one strap being attached to a cleat on the port side, but the cleat broke and the strap pulled free. The other strap on the starboard side also pulled free. When the Gulf Lifter came into use slings were attached at the fore and aft ends of the vessel, a heavy piece of an anchor chain was cut and used, and the vessel was raised. She was covered with oil and herring and the loose net and gear. The herring were decomposed and difficult to pump out. Special pumps were needed. Pumping was start ed when the vessel was brought to the surface and was completed after she was towed to Nanoose Bay. Exhibits P-4, P-5, P-6 and P-7 are divers' daily reports of their work and the con ditions they found on March 16, 17, 19 and 20. They did not dive on March 18.
In its statement of claim the plaintiff refers to the services rendered in raising the vessel, removing the herring and towing her to the shipyard at Vancouver, and further and in the
alternative says that the plaintiff entered into a salvage agreement with the defendant Muren whereby it was agreed that the plaintiff would be paid for its services on the basis of its usual rates for men and equipment utilized in per forming the salvage, together with payment for expenses incurred in hiring the divers and ten ders, and the plaintiff claims for the said serv ices the sum of $17,549.16, or alternatively, such amount of salvage remuneration as the Court may see fit to award for the salvage services of the plaintiff, and condemnation of the defendant Muren and the defendant vessel in the said salvage and costs.
In the defendants' statement of defence as it was at the commencement of the trial the defendants denied the allegations of fact, except admissions, in the statement of claim, and in further answer said that the plaintiff did per form certain salvage services whereby the vessel was raised from a sunken position. At the opening of the trial counsel for the defendants moved for leave to amend the defence by delet ing the word "salvage" in reference to the serv ices performed. I allowed the amendment, feel ing that the evidence would disclose the nature of the contract and services, and paragraphs 4 and 5 of the statement of defence, as so amend ed, now read as follows:
4. In further answer to the Statement of Claim the Defendants say that the Plaintiff did perform certain serv ices to the "B.C. ADVENTURE" whereby the "B.C. ADVEN TURE" was raised from a sunken position without however any danger whatsoever to the Plaintiff, its servants or agents.
5. In further answer to the Statement of Claim the Defendants have offered to the Plaintiff an amount more than sufficient to compensate it for the services performed.
In his argument following the evidence at the trial counsel for the defendants submitted that the plaintiff's contract was not with the defend ant Muren but with the insurers of the vessel, that it was a contract for services not in the nature of salvage, and that the plaintiff had no salvage agreement and has no claim for salvage, that this Court has no jurisdiction in respect of the contract for services, and if it has jurisdic tion the wrong defendant is before the Court.
Counsel for the plaintiff argued in that respect that the plaintiff had a salvage agreement with Muren and that the services rendered were sal vage services, and this Court has jurisdiction.
There was no written agreement. In the cir cumstances of urgency to rescue the vessel it is understandable that the arrangements were made verbally and not put into a written docu ment. There was some conversation by phone by Mr. Muren with Mr. Christenson of the insurers of the vessel, Pacific Coast Fisher- men's Mutual Marine Insurance Company, and later there was a phone conversation between Mr. Benson and Mr. Christenson. This was fol lowed by a face to face meeting between Muren, Benson and Smith. As I understand the evidence of Muren in that respect it was to the effect that Mr. Christenson told him to arrange for the recovery of the vessel and told him that when the job was done the insurance company would see that it was paid for, and he told Benson and Smith at their meeting that he had authority to hire them and that the insurance company would get the bills. On his examina tion for discovery he referred to that meeting and in answer to the following question:
Q. And you, at the conclusion of the meeting, said to Mr. Smith "You have the equipment, therefore you go and raise the vessel"?
he replied:
A. That's right.
In his testimony at the trial Muren said that he told Smith and Benson to go ahead. He also was present during a considerable part of the efforts made to find and recover the vessel and gave assistance and direction in those efforts.
Mr. Benson testified that Muren had told him a couple of days after the sinking that the insur ers had suggested that he discuss with Benson whether the vessel could be raised, and Muren also wanted Benson's company to repair the vessel. That company had done work for him on other occasions. He, Benson, then phoned Christenson who said to go ahead and salvage
the vessel. Benson asked if he wanted a fixed price or a "no cure, no pay" basis, and Christen- son said no go ahead and salvage. Benson's understanding was that the insurers would be billed for the services rendered. The subsequent meeting between Muren, Benson and Smith fol lowed and there Muren said to go ahead and salvage the vessel, and they discussed the prob lems of raising her and getting rid of the herring. The services were not to be on a "no cure, no pay" basis, and payment was not dependent upon success. Mr. Smith said that he left the financial arrangements more or less to Benson. His understanding was that the salvage services would be paid for on the usual daily rate basis and that the insurance company would provide payment. The plaintiff's bill for the services was made out to the owners and the insurers.
On the question whether the plaintiff's agree ment in respect of the recovery of the vessel was exclusively with the insurers, I do not think it was, although the evidence is somewhat indefinite. The owner, Muren, was concerned that the insurers be informed of the sinking and that action be taken without delay to salvage the vessel with the consent and approval of the insurers and promise that insurance money would be available for that purpose. Benson had a similar concern that there in fact would be insurance money available and after being satis fied in that respect by his phone conversation with Christenson he proceeded to deal directly with the owner of the vessel at the meeting attended by himself, Muren and Smith, and at that meeting Muren authorized him to go ahead with the salvage efforts. The arrangements were informal and they did not spell out exactly the responsibility for payment for the services to be rendered, but I think that the evidence warrants a conclusion that the plaintiff undertook its efforts to recover the vessel by direction of Muren as owner of the vessel, with a right to look to him as such owner for payment. Muren was fully aware that he was dealing with profes sional salvage people. Salvaging the vessel was
the objective being sought. It is difficult for me to conclude that when Muren engaged the plain tiff at the meeting with Benson and Smith he considered himself and the vessel to be free from any responsibility for payment for the services he was contracting for and that he was engaging the plaintiff solely as an agent of the insurers. Neither do I think it likely, although it is not inconceivable, that experienced salvage people, Benson and Smith, would undertake the salvage operations on a basis that the vessel and its owner would in no way be liable for payment and that the plaintiff's only recourse would be against the insurers on the strength of a tele phone conversation with Christenson. I think that at the meeting of Muren, Benson and Smith there was an agreement between them for the services to be rendered at the request and on the responsibility of the owner, they having previously satisfied themselves that the insurers were agreeable to the salvage undertaking and that insurance money would be available for payment of the services on a daily rate basis. Mr. Christenson was not called as a witness and the insurers were not a party to the action. It is noteworthy that the statement of defence says that the defendants have offered to the plaintiff an amount more than sufficient to compensate it. for the services performed. There is nothing to indicate that the insurers considered that they, rather than the owner of the vessel, have a legal obligation to pay the plaintiff for its services.
As to the nature of the agreement and of the services rendered, counsel for the defendants argued that the plaintiff has no claim in salvage and no salvage agreement, but only an agree ment to render certain services, i.e., to raise the vessel and tow her to port. As I indicated earlier the statement of defence originally stated that the plaintiff did perform certain salvage services but I allowed an amendment to remove the word "salvage" in respect of the services. It was not until then that the rendering of salvage services was disputed. The plaintiff's invoice
for the services, Exhibit P-3, indicates that they were being treated as salvage services. I think the intent of the parties at the time the services were contracted for and rendered was that they were salvage services.
Salvage services is defined in 35 Halsbury's Laws of England, Third Edition, at page 731 as being:
Salvage service in the present sense is that service which saves or contributes to the ultimate safety of a vessel, her apparel, cargo, or wreck, or to the lives of persons belonging to a vessel when in danger at sea, or in tidal waters, or on the shore of the sea or tidal waters, provided that the service is rendered voluntarily and not in the performance of any legal or official duty or merely in the interests of self-preservation.
Kennedy, Civil Salvage, at page 5, describes a salvage service in a similar way:
... as a service which saves or helps to save a recognized subject of salvage when in danger, if the rendering of such service is voluntary in the sense of being solely attributable neither to pre-existing contractual or official duty owed to the owner of the salved property nor to the interest of self-preservation.
Carver's Carriage by Sea, 12th Edition, Vol. 2, says in paragraph 792:
One who saves, or helps in saving, a vessel to which he is a stranger, from danger at sea, is entitled to a reward for his services; and if he has obtained possession of the vessel, he may retain possession until he has been paid the due reward.
Halsbury says at p. 732 that salvage services may be rendered in many different ways, including raising a sunken vessel. The Catherine ((1848), 6 Notes of Cases, Supp. xliii) was cited as authority therefor, its headnote being as follows:
A vessel, having been wrecked, was sold, as sunk, and the purchaser, in order to raise her, employed a patented apparatus, belonging to a Salvage Company, by a verbal agreement with one G.N., and the first attempt failing, he made an agreement in writing with another person, E.A., for a further attempt with the same apparatus, which likewise
failed; and another agreement, in writing, was made between the purchaser and G.N., for a third attempt, which succeed ed; the Salvage Company, the owners of the apparatus, sued for salvage, disavowing the agreements, as unauthorized by them; the owners appeared under protest, alleging that the services were not of the nature of salvage, but had been rendered under a contract made on land, over which this Court had no jurisdiction: —Held, overruling the protest, that, the service being in its nature of a salvage character, the jurisdiction of this Court over the subject-matter was not ousted by a mere averment of a binding agreement on land, that the Court must try the question whether there was an agreement or not, and if there was, it has jurisdiction over the money brought in under an agreement pleaded in bar.
In his judgment in that case, Dr. Lushington said (at p. xlviii):
... No one doubts that, if a vessel is sunk on any of the coasts of this country, or in any of the rivers of this country, and a service is performed to her, which rescues her from destruction, it is a salvage service.
Counsel for the defendants cited The Solway Prince [1896] P. 120, the headnote of which reads:
The plaintiffs, with the knowledge and assent of her owners, undertook to lift a sunken vessel, under a contract with the insurers, who advanced to the plaintiffs before the work commenced 40 per cent. of the amount for which the vessel was insured. The vessel was successfully raised, but the operation of lifting proved more costly than was anticipated, and some of the underwriters in the meantime became insolvent. In an action of salvage brought by the plaintiffs against the defendants as owners of the vessel:—
Held, by Sir F. H. Jeune, President, that the contract with the underwriters, which was not dependent on success, precluded the plaintiffs from asserting a maritime lien on the vessel, and claiming salvage remuneration from her owners.
and The Goulandris [1927] P. 182, in which Bateson J. said at p. 191:
Mr. Balloch, for the defendants, took several points, which he says entitle him to have this writ set aside. The first point is that Lloyd's form of salvage contract ("No cure no pay") prevents the plaintiffs from bringing an action for salvage. It is contended that the case is governed by the decision in The Solway Prince ([1896] P. 120), where the contract by the salving vessel made with the insurers of the salved vessel excluded the plaintiffs from any right to sue the ship herself when the insurers became bankrupt and failed to pay. I think the two cases are totally different. In The Solway Prince there was a contract between the salvors and the insurers to do a particular work at a fixed price. The salvors therefore were not volunteers; it was not a "No cure no pay" contract, and inasmuch as they were not volunteers
there could not be any salvage. In the present case the contract was a contract to salve "No cure no pay", with all the attending consequences, if salving services are per formed, of there being a maritime lien on the property in favour of the salvors; and that maritime lien on the property has never been put an end to by any action of a competent Court or by any bargain which has been fulfilled between the parties.
In the present case the agreement was not on a "no cure, no pay" basis. But it does not follow therefrom that the services were not of a sal vage nature. Carver's Carriage by Sea, 12th Edition, deals with distinctions between salvage services rendered with and without a contract and I quote therefrom in part as follows:
799. Right limited by the amount of property saved. But it is important to note that salvage, apart from contract, depends entirely upon the safety of some of the property in respect of which the services have been rendered. If no part of that has been brought into safety, no salvage can be obtained; and the amount so saved is the limit of possible salvage.
800. The case is, however, different where the salvors have been employed to do the work by the owner of the property, or by someone having his authority. There is then a contract by the owner to pay for the services, and he may be personally liable to do so whether the property be saved or not. Such an employment may be by express agreement between owners and salvors, or it may be inferred from the acts done on the one side and the other.
In The E.U. Dr. Lushington, putting the case of "a vessel in distress and an order sent to put an anchor and cable on board, and that that is done, but that afterwards from the violence of the weather the vessel is carried away and lost," added that the service "is such as must be paid for whether the vessel is lost or not."
And where there has been an employment, and services rendered in consequence, the right to a reward seems, generally, to be independent of whether those services have or have not contributed to the ship's safety.
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 or service may not prove beneficial.
802. Distinctions between employed and unemployed sal- vors. The distinction between volunteer salvors and employed salvors is important in other ways. So far as the amount of reward and the remedies against the property
saved are concerned, they stand practically on the same footing, except that the agreement may fix the amount. If the service has been rendered in saving from danger it is a salvage service, whether it was employed or was done by a volunteer; and the scale of reward, and the lien for it, will be those of salvage.
But, as we have seen, employed salvors may have reme dies against those who employed them, when volunteers would have none.
and in paragraph 812 there is the following:
812. Otherwise if service employed. If however, the serv ices have been employed, under such circumstances that a promise to pay for them can be implied, the right to reward becomes independent of whether they contributed to bring about a successful result or not.
In Admiralty Commissioners v. Valverda [1938] A.C. 173, the House of Lords dealt with a contract that warships belonging to His Majes ty should render salvage services to the vessel Valverda, which was on fire at sea. One of the contentions was that the services were not sal vage services under the maritime law but were rendered under the agreement - and that it was not a salvage agreement but an agreement for work and labour, and that an agreement in which the "no cure, no pay" basis is departed from is not a salvage agreement. In respect of that contention Lord Wright said at page 187:
.But I have to note one objection particularly relied on by the Admiralty. The objection is based on clause 5 of the agreement. That clause provides for a remuneration in the event of non-success. It is said to be inconsistent with the nature of salvage, which is necessarily on a "no cure, no pay" basis. Its presence, it is said, determines the character of the whole agreement and prevents it from being regarded as an agreement for salvage. This argument is, in my opin ion, not only unsound in principle but contrary to well established decisions of the Admiralty Court. It was boldly contended that these decisions were wrong, in particular The Kate B. Jones ([1892] P. 366) and The Edenmore ([1893] P. 79). In the former case Gorell Barnes J. was of opinion that the salvor would be entitled to some remuneration even in the event of failure, because he was in some respects an agent of the owner of the salved vessel, and accordingly he based his award on the principle that the risk of the entire loss of the salvor's expenditure, if unsuccessful, was a risk which the salvor there did not incur. But that did not lead the judge to treat the services as other than salvage services, though it did affect the amount of the salvage remuneration which was awarded. Similarly in The Edenmore (supra) the same learned judge was inclined to the view that the agree ment would entitle the salvors to some remuneration even if the services were not successful. But he held that the
services were salvage services and made a salvage award, adding that it was very difficult to say what precise effect such a stipulation ought to have in reduction of the sum awarded when the services proved successful. I think the principles accepted by that very learned and experienced judge are sound. The stipulation for some payment in the event off failure is severable. It could not affect the position if the services were successful, save that it might properly be taken into account so as to reduce the amount of the award on the ground that the salvor was not taking the full risk of "no cure, no pay." In my judgment the services rendered to the Valverda by the Admiralty vessels were salvage services and the agreement was a salvage agree ment, so that s. 557 applied and excluded the appellants' claim.
Lord Roche said at p. 202:
There remain two other contentions. The first was one which found favour with Greer L.J. and was much pressed in this House—namely, that the agreement was not an agreement for salvage, and that inasmuch as there was an agreement for payment, the payment stipulated for was not salvage remuneration. It is true enough that the right to salvage arises independently of and is not based upon con tract; but it is untrue to say that where there is a contract as to salvage it ceases to be salvage. Counsel for the respond ents was probably not far from the mark in saying that in these days of Lloyd's salvage agreements the larger number of salvages are regulated by agreement. Nevertheless they do not cease to be salvages, and they are dealt with and paid for in accordance with the maritime law of salvage. The task would be endless to cite the cases in which the Court of Admiralty has administered the law upon this basis and by so doing has negatived the contention now put forward.
In a recent case in this Court M.I.L. Tug & Salvage Limited v. The Motor Vessel "Ghislain" rendered on August 27, 1971, Associate Chief Justice Noël dealt with a claim for salvage serv ices pursuant to a contract between the plaintiff and the owner of the vessel. The plaintiff had refused to agree to a Lloyd's Open Form Con tract and an agreement was entered into that the plaintiff would send its tug Foundation Valiant and attempt to take the Ghislain to Bermuda on a daily hire rate of $2,800. The defendant took the position at the trial that the services were mere towage services, not salvage. The Associ ate Chief Justice held that the services were salvage services and the fact that there was an agreement for payment on a daily rate basis
should not prevent the salvor from claiming for the services as salvage, and he allowed the plaintiff's claim and found that the plaintiff holds a maritime lien on the defendant vessel for the amount adjudged.
In the present case I find that the agreement was for salvage services and that the services rendered were salvage services.
The defendants contend that in any event the amount claimed is excessive and that any award should not exceed $8,500. They say that the plaintiff initially took equipment to the scene that it knew was insufficient to lift the vessel with its herring on board, and that consequently there was unwarranted delay and resulting charges for the plaintiff's vessels, divers, labour and supervision that would not have been incurred if the plaintiff had initially taken suffi cient equipment to lift the vessel. They contend that the services could have been performed in not more than 5 days, namely, March 14 to 18, inclusive, rather than the 9 days, March 14 to 22, billed by the plaintiff. Counsel for the defendants submitted also that the salved value of the vessel on her recovery, dirty and damaged by her stay on the bottom, was not more than $22,000. There was evidence by Muren that when the vessel was built in 1964 her cost with $2,000 of radar equipment was $74,000 and that she had that value at the time of her sinking; also that she was repaired and improved and was provided with additional equipment after her recovery at a cost of about $59,757 and was sold in March 1972 for $125,- 000, which price included a power skiff worth about $3,500, a salmon seine net worth $12,000, and certain other equipment and improvements made to the vessel.
The vessel was dirty with oil and herring when she was raised and some damage had been done to her rudder and interior and to her equipment, and her value when she arrived at Vancouver was less than her value immediately
prior to her sinking. Benson Bros. Shipbuilding Co. repaired her and that company's account dated June 30, 1971, which is included in the documents in Exhibit D-2, for repairs and materials supplied was $39,710.07 and there were subsequent charges bringing the bill to $41,218.27. While there is no conclusive evi dence as to the vessel's value when she arrived at Vancouver I would think that on such evi dence as was given her value at that time was probably in the range of $30,000 to $33,000.
The salvage charges of $17,549.16 have been supported by detailed information in the bill presented by the plaintiff and by the evidence at the trial. As events proved, it became necessary to have more equipment than was initially taken to the scene, and it is probable that if all the equipment eventually used had been there from the beginning the recovery of the vessel would have been accomplished in less time than it actually took but that is looking at the situation with the benefit of hindsight. Undoubtedly at the time when the salvage operation was under taken there were imponderables, including what weight of herring remained in the vessel and what the total weight to be lifted would be. The plaintiff had previous experience in lifting ves sels with herring in them. I am satisfied that when the operation was undertaken there was no want of care or skill on the part of the plaintiff in deciding what equipment to take to the scene, and that the judgment made at that time as to the equipment needed was reasonable in the circumstances. The salvage services actu ally rendered were not more than were neces sary. They succeeded in rescuing the vessel from a position of actual and immediate danger and placed her in a position of safety at Van- couver. The operations involved risks to the plaintiff's equipment and to the divers hired by the plaintiff. The vessel was in exposed waters, and the time of the year was March. The entan gled net, the decomposed herring and the lie of the vessel on the bottom presented difficulties.
The amount of salvage remuneration allowed in any case is determined by the Court, having
regard to the extent, nature and effect of the services rendered and the merit and sacrifice of the persons rendering them. The degree of the danger in which the vessel was lying, her value, and the effect of the services in rescuing her from that danger are to be considered, along with the risks run by the salvor, his enterprise, endurance and skill and the nature and duration of his labour. Where there has been a fair agree ment' the parties will be bound by it, although the services agreed to be done for them became more difficult, or less difficult, than was expect ed. See to the above effect Carver's Carriage by Sea, 12th Ed., Vol. 2, paragraphs 830, 834 and 836.
I think that in this case the agreement was fair, as the extent and duration of the salvage services were uncertain when the services com menced, and the charges were to be on normal daily rates for whatever services were rendered.
Applying the above considerations and treat ing the plaintiff's claim either on the basis•of the agreement or on the basis of salvage services rendered with or without the agreement, I think that the amount of the claim for the services rendered is fair and reasonable and that the plaintiff is entitled to recover payment from the defendants. Therefore the plaintiff will have judgment against the defendants for $17,549.16.
At the trial it was requested by counsel and agreed that the parties would have an opportuni ty to speak to the question of costs if the plaintiff is successful in its action. It may be that the parties will agree on the amount of costs to be awarded as a fixed lump sum under Rule 344(1) in lieu of taxed costs.
Pursuant to Rule 337(2)(b) counsel for the plaintiff may prepare a draft of an appropriate judgment to implement the Court's conclusion and move for judgment accordingly.
 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.