Ex. C.R. EXCHEQUER COURT OF CANADA 177. ON APPEAL FROM THE NEW BRUNSWICK ADMIRALTY DISTRICT 1923 THE SHIP SENECA April 9. (DEFENDANT) APPELLANT; AND W. N. MACDONALD, OWNER OF THE} SHIP CURLEW (P LAINTIFF) J RESPONDENT Shipping and seamen—Salvage services—Quantum—Discretion of Court —Appellate Court. Held (affirming the decision of the Local Judge of the New Brunswick Admiralty District, reported p. 13, ante) that the services rendered by the respondent were in the nature of salvage services and entitled him to compensation assessed on that basis. 2. That the amount of salvage reward is in the discretion of the Court, and, unless the same is excessive, an appellate tribunal ought not to interfere. APPEAL from the decision of the Local Judge of the New Brunswick Admiralty District (1) allowing salvage award for $4,081.35 against the appellant herein. March 9, 1923. Appeal now heard before the Honourable Mr. Justice Audette at Ottawa. M. G. Teed, K.C. for appellant. F. R. Taylor, K.C. for respondent. The facts are stated in the reasons for judgment. AUDETTE, J. now (9th April, 1923) delivered judgment. This is an appeal from the judgment of the Local Judge of the New Brunswick Admiralty District (1) pronounced in a salvage action, on the 10th day of November, 1922, and allowing a reward of $4,081.35. The facts of the case and the circumstances under which the present claim arises are clearly set out in the reasons for judgment of the learned trial judge and I am therefore relieved from the necessity of repeating them here on appeal. (2). The case, in the result, resolves itself into a comparatively narrow compass. The appellant sets out, inter alia, as an outstanding ground of appeal, that the amount awarded by the judgment a quo is excessive and assessed upon a wrong principle and that there is error in assessing on the basis of an engaged and not of a volunteer salving ship. However, in his reasons for judgment, the learned (1) [1923] Ex. C.R. 13. (2) [1923] Ex. C.R., p. 13.
178 EXCHEQUER COURT OF CANADA [1923] 1m3 trial judge clearly states " that the services rendered were THE SHIP salvage services and that the Curlew is entitled to the Seneca v. ordinary salvage award on the usual, salvage considera- Macdonald. tion." Audette J. The Seneca was a crippled vessel caught in the ice, with two blades of her propeller broken and unabled to extricate herself. The Government steamer, the Montcalm, endeavoured to free her from her critical position and did not at first succeed. The Seneca had no wireless equipment, but the Montcalm had. The Seneca directed her to send for the Curlew and the radio of the 4th May, 1922, recited in full in the trial judge's reasons, is sent. Then follows the second radio; the ice becoming too heavy, the Curlew is dissuaded or discouraged from venturing out. The evidence of the delivery of the second radio is unsatisfactory and so found by the trial judge; and no solid or satisfactory conclusion can be built upon it. However, be that as it may, in the result, we have all the elements of salvage and a distinct case made there-, under. The very word " salvage " connotes salvor's services and salvor's reward. The Seneca, a vessel in distress is calling for help, is asking the Curlew to come to her rescue with a cable. Whether or not the second radio dissuading or discouraging the Curlew to come on account of heavy ice was duly delivered, matters not; because when the Curlew ultimately arrived alongside the Seneca she was not told that her services were not required; nor were they repudiated. Quite to the contrary, she was sent to the Montcalm to work in unison with r~ er. Her gable is accepted, used and broken. She stands by, ready to perform any services or assistance that circumstances would suggest. Her cable used by the Mont-calm proved of great service since the Montcalm was thereby able to start the Seneca, enabling her ultimately to be saved. 26 Hals. 562,564; Roscoe 4th ed. p. 158. There was no contract of any kind entered into as between the Seneca and the Curlew. The services rendered by the latter were essentially independent of contract and performed with absolute voluntarism and were in their very essence in the nature of salvage and cannot be attributed to any legal obligation. Such services and assist-
Ex. C.R. EXCHEQUER COURT OF CANADA 179 ance were at no time refused or declined by the Seneca -19 23 .J when in the ice. Had the second radio meant a refusal THE SHIP Seneca of the Curlew's services the Seneca could and would have followed it up, had she seen fit, by refusing and declining Macdonald. any assistance so actually proffered and rendered by the Audette J. Curlew. Moreover, if the Seneca said nothing on the arrival of the Curlew and allowed her to render assistance, it is not now in the mouth of her owners to refuse to pay a proper remuneration. The Curlew went out of harbour in a fog, when large and thick sheets of ice were to be encountered at a dangerous season, and at great risk to herself and crew. Having at great risk, time and expense, rendered continuous salvage services, the Curlew, under the very spirit of Admiralty Law, is entitled to compensation assessed on the usual basis in such cases. The reward involves a mixed question of private rights and public policy. Kennedy, 2nd ed. 7. And upon public consideration the interest of commerce, the benefit and security of navigation, the lives of seamen operate in favour of allowing a reward upon a more enlarged and liberal scale. Idem 17. Even in doubtful cases as to the effectiveness of the services rendered, the courts, upon the policy of encouraging salvage services, lean to the view that the services were of some benefit. But here, the services were so beneficial that they contributed to the successful result which might not have been attained without such services, and no doubt arises in this respect. Maclaghlan, on Merchant Shipping, 5th ed. 704; The Melpomene (1). Furthermore, when a vessel like the Curlew is especially equipped and maintained for the purposes of rendering prompt and efficient services, the broad principles recognized by the court as a guidance in assessing salvage remuneration—the general interests of navigation and commerce of the country—will lead to a consequent increase in the award. Roscoe, 4th ed. 177. Moreover, the amount of salvage reward is entirely in the discretion of the court and unless the remuneration is excessive, an appellate tribunal ought not to interfere. The remuneration should not leave the salvor any poorer than he was before and he should be compensated for his ser- (1) [1873] L.R. 4 A & E. 129.
180 EXCHEQUER COURT OF CANADA [1923] 1923 vices and assistance. SS. Baku Standard, (Master and THE SHIP owners of) and SS. Angèle, (Masters and owners of) (1) . Seneca U. In the result I am of opinion that the learned trial judge Macdonald. was justified upon all the facts and the law in fixing the Audette J. amount of the salvage award at the sum of $4,081.35, and that the judgment appealed from should stand. The appeal is dismissed with costs. Appeal dismissed. (1) [1901] A.C. 549.
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.