Scottish Court of Session Decisions

The sailing ship “Gantock Rock” of Glasgow, 1556 tons register, left Glasgow for Sydney on Friday 14th October 1898, with a general cargo, and a crew of twenty-five on board. During the night she found herself close to the Irish coast near Rathlin Island, and as an increasing gale was blowing inshore she anchored in Ballycastle Bay, off the coast of Antrim. The gale increased, and on the morning of the 15th her chain parted and her anchor was lost. The port bow anchor was then let go, and the vessel was brought up within eighty feet from a rocky shore. The stream anchor and spare bower anchor were also dropped. She remained in that position until the morning of Monday the 17th during an increasing gale, and in such a depth of water that at certain states of the tide she struck the bottom, when the steam tugs “Pathfinder” and “Samson,” which had been sent in search of her the previous day, came to her assistance. The “Samson” arrived before daylight, some hours before the “Pathfinder,” and had already made fast a line when the “Pathfinder” came up. The two tugs towed the vessel to a position of safety in Church Bay, Rathlin Island, where they stood by her till Wednesday the 19th, when they towed her to Greenock. The “Pathfinder” was a tug specially adapted for towage and salvage, her registered tonnage being 221, and her nominal horsepower 213, working up to 1200. She was also fitted with disconnecting engines. The “Samson's” registered tonnage was 33, and her horsepower 50, working up to 450.

The Liverpool Steam Tug Company, Limited, owners of the “Pathfinder,” raised an action against James Cornfoot and others, owners of the “Gantock Rock,” concluding for £10,000 for salvage services rendered by their vessel to the “Gantock Rock.” John Steel and others, owners of the “Samson,” raised a similar action, also concluding for £10,000. The defenders pleaded in both actions that the sum claimed was excessive. In the action at the instance of the owners of the “Samson,” the master and crew were sisted as pursuers. The actions were thereafter conjoined, and proof was led before the Lord Ordinary sitting with a nautical assessor.

The import of the evidence sufficiently appears from the following summary of the replies given by the nautical assessor to certain questions put to him by the Lord Ordinary. These answers were to the effect that the “Gantock Rock” was in serious danger on the morning of Monday the 15th October, and that the danger was immediate; that she was not likely to have ridden out the Monday if left where she was, but in all probability would have gone ashore and become a total wreck; that the “Pathfinder” and “Samson” incurred risk beyond the risk of ordinary towage in rescuing the vessel, although neither incurred any great risk; that the extra risk to the “Samson” consisted in her proceeding in the darkness to assist a vessel anchored close to a dangerous rock—bound coast during a rising gale and a heavy sea; that the risk incurred by the “Pathfinder” was less than that incurred by the “Samson,” in respect that she refrained from going to the vessel's assistance till daylight, and that though a larger boat she could manœuvre in less space than the “Samson” owing to her having disconnecting engines; that the “Samson” performed useful services, contributing

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to the safety of the vessel, before the arrival of the “Pathfinder,” and in particular enabled her to get in one of her anchors; that it was possible but scarcely probable that the “Samson” would have succeeded without assistance in towing the vessel into a position of safety, while in all probability the “Pathfinder” would have been able to do so unaided; and that the co-operation of the “Samson” was useful and important, but was not essential in effecting the rescue.

The defenders admitted that the value of the “Gantock Rock” was £6000, and that the value of the cargo and freight at risk was £33,050.

On 31st January 1900 the Lord Ordinary pronounced an interlocutor in which he assessed the value of the services rendered by the “Pathfinder” at £650, and of those rendered by the “Samson” at £350, apportioning the latter sum in the proportion of £200 to the owners, £50 to the master, and £100 to the crew equally among them, and decerned accordingly.

Opinion.—“In this case I do not propose to resume the facts, which so far as in my view material, are not in controversy. I have fully considered the evidence, and in fixing the salvage, and in apportioning it among the competing vessels, I have endeavoured to keep in view the various elements which in the decided cases have been recognised as material. The result is that I propose to award £650 to the ‘Pathfinder’ and £350 to the ‘Samson.’

I have no doubt that the services of the two tugs, the ‘Pathfinder’ and the ‘Samson,’ were proper salvage services. The salved vessel, the ‘Gantock Rock,’ was, I think it clear, on the Monday morning in question in a position of danger. Her safety depended practically on the holding of a single anchor. If that anchor had ceased to hold she must have gone on the rocks and been dashed to pieces. Nor can it be doubted that her danger was not only serious but also in a reasonable sense immediate. Her anchor, it is true, still held, and had done so during the two preceding days, and it was therefore not impossible that it might have continued to hold, But the probabilities were, I think, the other way. A gale was blowing, and blowing inshore, and though varying in intensity it was according to the weight of the evidence increasing. It was certainly not diminishing; and it has also to be noted that the vessel, occasionally at least, touched the ground and so increased the strain. Altogether, the chances were, I think, against the vessel riding out the gale. In other words, the chances were that, unless rescued on the Monday in question, she would have become a wreck.

On the other hand, I do not think it appears that the salving vessels incurred in the operation of salvage any serious risk—that is to say, any risk materially greater than that incident to ordinary towage. They were both tug-steamers, whose business was towage. They were both— especially the ‘Pathfinder’ — well adapted for such services, and while undoubtedly the situation was somewhat exceptional and may have involved even such steamers in some risk, the degree of risk (I mean as compared with the risk of ordinary towage) was in my opinion slight.

As to the value of the salved vessel and her cargo, there is no dispute that it was considerable, and that it affords an ample margin for any award of salvage which could be made. It was in round numbers about £40,000, and that, of course, is an element which cannot be left out of sight. Neither can it be left out of sight that the rescue of the vessel was well and efficiently performed, and involved certainly some amount of merit and enterprise on the part of the salving steamers. There was not, of course, any question of deviation. But, on the other hand, the time occupied was considerable. Both the ‘Pathfinder’ and the ‘Samson’ may be held to have been engaged for about four days in all. They went in search of the vessel on the Sunday. They towed her into Church Bay on the Monday morning. They stood by her all Monday and Tuesday, and on the Wednesday they towed her across to Greenock.

All these things considered, I do not, I think, greatly err in awarding, as between the two vessels, the sum of £1000.

As to the apportionment between them, we start with this—that both de facto co-operated in taking the ‘Gantock Rock’ in tow, and bringing her first into a position of practical safety in Church Bay, and thereafter taking her across to Greenock, where her lost anchors could be replaced and her voyage recommenced with due equipment. It is also perhaps common ground, at least it is clear, that neither vessel proposed to dispense with the cooperation of the other, or indeed would in the circumstances have acted sensibly in doing so. The question which has been raised rather is, whether as between the two vessels the salvage was not substantially the work of the ‘Pathfinder,’ the ‘Samson’ helping, no doubt, but helping rather in the towage than the actual salvage.

On this matter I am quite satisfied that the ‘Pathfinder’ was quite capable (being a specially powerful tug, fitted with disconnecting engines and all other appliances) to have got into position to have got her hawser attached, and (barring accidents) to have herself towed the ‘Gantock Rock’ into a position of safety. On the other hand, I think it at least doubtful—perhaps more than doubtful—whether the same could be said of the ‘Samson.’ But while that is so, it is, I think, equally clear (1) that the ‘Samson’ was first on the scene, and had been so for some hours before the ‘Pathfinder’ appeared, and (2) that during that period she rendered useful service, not only in getting up the starboard anchor, but also in towing the vessel up to her port anchor, and thus to some extent relieving the strain which was the real source of danger. I cannot in these circumstances see my way to treating the two tugs as having an equal share in the salvage, and to rejecting the claim of the ‘Pathfinder’ to the larger share of the two. But, on the whole, I

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think I do not go far wrong in making the apportionment which I named at the outset, viz., £650 to the ‘Pathfinder’ and £350 to the ‘Samson.’…

In reaching the above results, so far as depending on matters of expert opinion, I am glad to find myself in concurrence with my assessor Captain Wood, to whose answers to certain questions put to him in terms of the statute I beg to refer.”

The pursuers in both actions reclaimed.

Argued for the owners of the “Pathfinder”—The sum awarded by the Lord Ordinary for the services rendered by the “Pathfinder” was inadequate. The principle adopted by the Court was one of liberal remuneration in such cases—Kennedy on Salvage, p. 116. The value salved was £40,000, and the vessel, in the opinion of the Nautical Assessor, was “in immediate danger.” In no similar case had the Court awarded such a small percentage as 2 1 2 per cent. of the value salved. See ”The Persia,” Merchant Shipping Gazette, where the danger was not imminent, and 7 1 2 per cent. was awarded; Com. Franchetti, ibid., Nov. 25, 1899, where 5 3 4 per cent. was awarded;” The Metropolis, “ ibid., May 17, 1899, where 46 per cent. was awarded;” The Accomac” (1891), P. 349 (8 per cent. awarded); Duncan v. Dundee, Perth, and London Shipping Company, March 8, 1878, 5 R. 742, where the salvor's risk was slight, and nearly 5 per cent. was awarded. Looking to the imminence of the danger in the present case, the services of the “Pathfinder” might be fairly valued at 10 per cent. on the £40,000 salved, i.e., at £4000. In any view, the Lord Ordinary had wrongly apportioned the sum awarded. Although the “Samson” reached the vessel before the “Pathfinder,” it was, in the Assessor's opinion “scarcely probable” that she could have salved her alone. The “Pathfinder” should be found entitled to three-fourths, and the “Samson” to one-fourth.

Argued for the owners of the “Samson”— The Lord Ordinary's award for the “Samson's” services was inadequate. The Court would readily interfere with the award of the Court of first instance— Bird, v. Gibb (1883), 8 App Cas 559; “ The True Blue” (1866), L.R., 1 P.C. 250; ”The, Scindia,” ibid., 241;” The Chetah” (1868), L.R., 2 P.C. 205; Arnold v. Cowie (1871), L.R., 3 P.C. 589; ”The City of Berlin” (1877), 2 P.D. 187. 2. In any view, the proportion allotted to the “Samson” was too small. She was first on the spot, and but for her efforts there might have been no vessel to salve. In the Assessor's opinion she incurred the greater risk in approaching the vessel before daylight, and she could less easily manœuvre in small space. Three-fourths of the sum awarded should he allotted to her.

Argued for the defenders—The Court would not readily interfere with the discretion of the judge of first instance in salvage awards unless he had erred grossly, e.g., where the sum was too great or too little by a half—“ Thomas Allen,” 6 Aspinall's Maritime Cases, 99, per Sir J. Hannen. In the present case the Lord Ordinary's award was ample remuneration for the services rendered. These were substantially towage services, and involved no risk to either of the salving vessels. The defenders further maintained that the Assessor's opinion was not supported by the evidence.

At advising—