Ct. of Aff.] Tu b Accomac. [Ct. of App.
T u e s d a y , J u l y 14,1891.
(Before L o rd Esher, M.R., Bowes and Kay, L .JJ., and Nautical Assessors.)
Tiie Accomac. («)
S a l v a g e — A p p e a l — A l t e r a t i o n o f a w a r d . I n s a lv a g e c a se s, th e C o u r t o f A p p e a l ^ v a r y t h e
a m o u n t o f th e a w a r d, i f , a j t e i c a r f j * s i d e r i n g th e e v id e n c e a n d g im n g e v e r y l 3“ «
w e i g h t to th e v ie w o f th e j u d g e Y T ’ t t Z to t h a t th e a m o u n t is so l a r g e a s to be u^ us^ ° th e o w n e r s o f th e s a lv e d p r o p e r t y , o r so s m a ll a s to be u n j u s t to th e s a lv o r s .
This was an appeal by the p la in tiffs in a salvage action from an award of the President of the Probate, Divorce, and A d m ira lty ,
The p la in tiffs were the owners, masters and crews of the steamship In v e r n e s s , and ste^ ‘ tugs F l y i n g S c u d , H e a t h e r B e l l , and S p u r n . T lie defendants were the owners of the steamship
A c o o m a c , her cargo and fre ig h t.
The services were shortly as fo llo w s . A t about m idday on the 2nd Nov. 1890 the In v e r n e s s ,
a screw-stcamship of 2251 tons gross manned by a crew of tw enty-three hands a ll told, was in the N o rth Sea on a voyage from A ntw erp to the ly n e in ballast. The In v e r n e s s was between the ± \ o r t t i H a s b o r o ’ lig h tsh ip and the Outer Dowsing, steering a N . by W . i W . course, when the A c c o m a c was sighted about ten miles off to the northw ard fly in g signals of distress, and carrying three black balls. The I n v e r n e s s at once proceeded towards the A c c o m a c . On coming up to her, i t was seen th a t she was at anchor, and was ro llin g heavily. Thoseon the I n v e r n e s s were then inform ed th a t the A c c o m a c ’ s rudder was gone, and i t was then arranged th a t the In v e r n e s s should tow her to G rim sby or H u ll. W ith d iffic u lty and danger, owing to the w ind and sea, the In v e r n e s s made fast ahead, and at about 2 p m. commenced tow ing, and brought her about three miles from the S p u r n , when, owing to the sheering of the
A c c o m a c , both tow-ropes parted. The Accowac
anchored. As the weather continued too bad to r the In v e r n e s s to resume tow ing, she on the ora Nov. proceeded to Grim sby Beads to send out tugs to the assistance of the A c c o m a c . A t about 2AO r) m the F l y i n g S c u d , a paddle-wheel tu g of 100 tons register, w ith engines of 80-horse power n o m in a l spoke the A c c o m a c and la y by her to render assistance. A t about 5 p.m the H e a t h e r B e l l , a tu g of 81 tons register and ™ r s e power nominal, came up, and s lo r y f OWiirfls tw o tugs commenced tow ing the A c c o m a c towards the Hum ber. A little la te r on, the S p u r n , a tu g of 80 tons register and 31-horse power nominal also assisted "to to w , a n d ^ t e r the had been towed six miles, the F l y i n g s t o ^ - r o p e
broke and the A c c o m a c again came to anchor.
S h o rtly a fte r three tugs, the Cfeawpiw, the
T o r f r e d a and the S u s s e x , which had been sent out 1 came up, but, as i t was then about m id n ig h t and bad weather, n othing -
next m orning. E a rly next day, the 4th Nov., the tugs made fast, and, a fte r to w in g fo u r hours, t e
A c c o m a c was safely brought in to ent
Tiie owners of the In v e r n e s s paid the tugs sent
° UThe A c c o m a c was a screw-steamship of 2509 tons Esqra-’
Vol. V I I . , N . S.
gross, and at the time of the said services was manned by a crew of tw enty-eight hands all told, laden w ith a cargo of p itch pine tim ber. The value of the A c c o m a c , cargo and freight, was m a ll 22,1381.
S ir James Hannen awarded the salvors 10001., and from th is decision they now appealed.
B a r n e s , Q.C. and J . P. A s p i n a l l , fo r the plain
tiffs in support of the appeal.— l ’he award is so inadequate as to ju s tify this court in increasing it. The President has not sufficiently appreciated the danger of the services.
S ir C h a r le s H a l l , Q.C. and F . W . B a ile e s ,
c o n t r d — The court w ill not interfere unless
the award is absolutely unreasonable. I t is not enough th a t the court should th in k th a t had they trie d the case they would have given
more : ^
The Lancaster, 49 L. T. Rep. N. S. 705 ; 9 P. Div.
14 ; 5 Asp. Mar. Law Cas. 174.
L o rd Esher, M.R.— We are advised that, con
sidering the tim e of the year, the place where the A c c o m a c was, and her _ e n tire ly disabled condition by reason of her having ost herrudde , she was in great danger of being lost. I do not say she w ould have been certainly lost, for, as the weather turned out, there was not even in the absence of the salving tugs, danger of immediate to ta l loss; b u t nevertheless there was danger, had she been le ft to her own resources, of being to ta lly lost We are advised th a t, considering hei cyonffition and size, and the lightness of the In v e r n e s s , the d iffic u lty of savmg the
A c c o m a c was very great. I t was so d iffic u lt th a t there was danger to the In v e r n e s s , lest she being a lig h t ship m ig h t th ro u g h the steering of the other ship he driven on to the sa-nds herse . The salvage operations were therefore of very great d ifficu lty. When we look at the judgm ent we come to the conclusion th a t the I n d e n t cannot have appreciated to the same extent th a t we do the great danger m w hich the Accomac was, and the d iffic u lty of the operation w hich had to he performed to save her. V e have therefore come to the conclusion th a t the amount given bv the President to the I n v e r n e s s and the salving tuo-s is u n ju s tly too small. I t has been urged th a t we are to act in these salvage appeals upon the same ru le th a t we act upon w ith regard to setting aside the ve rd ict of a ju ry on a question of fa c t; viz., th a t we are not to interfere w ith i t unless i t is an amount so large or so small th a t no reasonable person could fa irly arrive at th a t sum T hat is not the rule. I f , a fte r carefully considering the facts, and after g iv in g every possible weight to the view of the judge we th in k i t greatly in excess, and so greatly as to be u n ju st to the owners of the ship w hich had been m distress, we are bound to a lte r the amount by lessening it. In the same way, after g iv in g th a t consideration to i t which I have mentioned, and a fte r g iv in g a ll the weight w hich we th in k we can to the opinion of the judge who trie d the case, we th in k th a t the amount aw;arded to the salvors is so small as really to be u n ju st to them, we are bound to a lte r the amount. W e th in k th a t the award of 10001. should be increased to 18001. The appeal is therefore allowed w ith costs.
Bowen and Kay, L .J J . concurred.
X
Ct. of A p r .] Be l l and Oo. v.An tw er p, London, an d Br a z il Lin e. [Ct. o fApp. Solicitors fo r p la in tiffs, H e a r f i e l d s and L a m b e r t ,
Hun.
Solicitors fo r the defendants, W . A . C r u m p and
S o n .
M o n d a y , N o v . 17, 1890.
(Before L o rd Esher, M.R., Lopes and Kay, L.JJ.) Be l l and Co. v. An tw er p, London, and Br a z il
Lin e (a).
APPEAL FROM TH E QUEEN’ S BEN CH D IV IS IO N . P r a c t i c e — S e r v ic e o f w r i t o u t o f th e j u r i s d i c t i o n—
C o n t r a c t to be p e r f o r m e d w i t h i n th e j u r i s d i c t i o n
— P la c e o f p a y m e n t o f l ig h t e r a g e a n d d e m u r r a g e e x p e n s e s — O r d e r X I . , r . 1 (e).
I n o r d e r to b r in g a case w i t h i n O r d e r X I . , r . 1 (e),
th e c o u r t m u s t see, e it h e r i n th e w r i t t e n w o r d s th e m s e lv e s o r i n th o s e r v o r d s c o u p le d w i t h th e s u r r o u n d i n g c ir c u m s t a n c e s , t h a t th e c o n t r a c t i n q u e s t io n is o n e w h i c h , a c c o r d in g to th e te r m s th e r e o f , o u g h t to be p e r f o r m e d w i t h i n th e j u r i s d i c t io n . W h e r e m o n e y i s p a y a b l e u n d e r a c o n t r a c t , a n d n o p la c e o f p a y m e n t i s n a m e d i n i t , th e case is n o t b r o u g h t w i t h i n th e r u l e b y th e f a c t t h a t th e p e r s o n to w h o m th e m o n e y i s p a y a b l e i s r e s id e n t i v i t h i n th e j u r i s d i c t i o n .
Th iswas an appeal fro m an order of a divisional court (Cave and Hay, JJ.) setting aside the order of a judge at chambers g iv in g leave to serve notice of a w r it of summons out of the ju ris d ic tion.
The w r it was issued by shipowners in England, against a foreign company c a rryin g on business in A ntw erp, to recover lighterage expenses paid by the shipowners a t the p o rt of discharge, and also fo r demurrage incurred at such port.
I t appeared from the affidavits, th a t the defen
dants had chartered the M a r a n a , one of the p la in tiffs ’ ships, to load a cargo in the p o rt of London and proceed th e re w ith to B io de Janeiro.
B y the charter-party, a ll lighterage was to be at charterers’ expense, the charterers indem nifying the owners against lighterage expenses paid by them at the p o rt of discharge. A p ortion of the fre ig h t was made payable at the p o rt of discharge, and the balance in London. There was a clause p ro v id in g fo r the payment of demurrage i f the cargo should not be loaded and discharged in th irty -fiv e days.
R o b s o n ( A s p i n a l l w ith him ) fo r the plaintiffs.
— I t was the d u ty of the charterers to forw ard the lighterage expenses and the demurrage to the shipowners here. The debtor must seek his creditor. The p la in tiffs , who are the creditors, were entitled to be paid at th e ir place of business, w hich is w ith in the ju ris d ic tio n . [L o rd Esher, M.R.—The creditors in this case m ig h t have the rig h t to insist upon payment i:i A ntw erp.] I f the p la in tiffs are entitled to be paid in England, even i f they are also entitled to be paid elsewhere, th a t is sufficient to b rin g them w ith in the rule.
In R e y n o ld s v. C o le m a n (57 L . T. Rep. N . S. 588 ; 36 Ch. D iv . 453) Cotton, L .J. said : “ The d iffi
c u lty arises fro m the words ‘ according to the terms th e re o f; ’ but, in m y opinion, those words mean, th a t you must look at the contract, and at the facts which existed at the tim e when the contract was made, and then determine whether, having regard to the terms, the contract was one
w hich ought to be performed w ith in the ju ris diction, and do not mean th a t there m ust be an express provision th a t the contract is to be per
formed w ith in the ju ris d ic tio n .” I n the present case, where the o rdinary course of business does not apply, as w ith regard to payment of the balance of fre ig h t in London, there is an express stipulation fo r payment th e re ; where the owners are in the o rdinary position of creditors, and the charterers in the o rdinary position of debtors, as is the case as to these expenses, no express stipulation fo r payment in London is necessary ; i t is the o rdinary course of business.
J a m e s F o x fo r the defendants.— W here pay
ment is to he made in London, th a t is expressly provided for, w hich shows th a t in other cases payment m ig h t be elsewhere. I f payment of these expenses m ig h t be made anywhere the case is not w ith in the rule. The follow ing cases were also c ite d :
Robey v. SnaefeU M ining Company, 20 Q. B. Div.
152 ;
Wancke v. Wingren, 58 L. J. 519, Q. B . ; Watson v. Dreyfus, 4 Times L. Rep. 148.
L o rd Esher, M.R.— I n th is case the. pla in tiffs, who are shipowners in London, have b rought an action against the A ntw erp, London, and B razil Line, which is a foreign company c a rryin g on business in A ntw erp, and not c a rryin g on busi
ness in London at all. The action is b rought on certain stipulations in a charter-party. There is a stipulation as to lighterage and as to an in dem nity to the shipowners against expense in respect thereof at the ports of discharge. _ The p la in tiffs would have a rig h t to take th a t stipula
tio n by its e lf out of a ll the stipulations contained in the charter-party, and sue on th a t p a rticu la r contract. Then there is a stipulation as to demurrage, and the p la in tiffs would be e n titled to sue separately on th a t also. I w ill take firs t the stip u la tion as to payment of and indem nity against expenses in respect of lighterage incurred at Rio. I t was at firs t contended th a t the p la in tiffs ’ claim was in respect of fre ig h t; h u t i t really is in respect of lighterage or fo r an indem
n ity. I f the p la in tiffs are suing in respect of lighterage, th a t is to be paid to the people who did the w ork at Rio, and who would be entitled to be paid there. I f the p la in tiffs are suing fo r an indem nity, i t m ust be by reason of the agreement of the charterers to indem nify the shipowners i f they pay the lighterage. Then the lia b ility to pay the in d e m n ity/ is at the same place as the lia b ility to pay the lighterage. There is no place named fo r payment either of the lighterage or of the indem nity. The lighterage is due the moment the w ork is done; the indem nity is due the moment the lighterage is paid. W here no place fo r payment is named, a debt is payable wherever demanded. Indeed, the creditor may b rin g his action w ith o u t any demand. I f he does demand his debt, he is not hound to go to the debtor’s place of business fo r th a t purpose; he may demand i t anywhere. This is an action brought against foreigners resident abroad; and the court is asked to give leave to serve a notice of the w r it upon the defendants out of the ju ris d ic tio n under Order X I., r. 1 (e). The E nglish courts have no power to give leave to serve th e ir w rits in any other country, as they do not ru n there.
B u t the courts, w ith o u t entering in to the
ques-(a) Reported by Apam H. Bittlknton, Esq., BarriBter-nt-Law.
m a r i t i m e l a w c a s e s
.
155Ct. or Afp.] The Marpessa [ Adm.
tio n o f ju ris d ic tio n , m ay ord er no tice fu p ^ D r e s s to be g iv e n in a fo re ig n c o u n try u n Rules a u th o rity o f an A c t o f P a rlia m e n t. The Rules o f C o u rt, w h ic h have the force o f “ A c t ot P a rlia m e n t, p ro vid e th a t, m cer unon notice o f a w r it o f summons m ay be » those a fo re ig n e r o u t of the ju ris d ic tio n One o f those cases is “ when the actio n is founde 1 y &
o r alleged breach w ith in the ju r is t t ;he c o n tra c t w h erever made, w hich, ac . 5 ^ tbe te rm s thereof, ou g h t to be p e rfo r ought, ju r is d ic tio n .” I t is n o t when the co n tra c t ought, according to the course of b u s m e s , ^ r.
to th e s u rro u n d in g eircum stan , , the form ed w ith in th e ju r is d ic tio n ; f 18
c o n tra c t, “ acco rding to the term s ’ rpbe to be pe rfo rm ed w ith in th e ] u r ¿[e_ a c o u rt cannot go beyond th e w o r ^ beyond case was cited to us w h ic h w a s . S ^ aot those words, and to la y down ^ th e contrac ough t, acco rding to the course o f b ^ m e s ^ t o ^ p e rfo rm e d w ith in th e ju r is d ic ti , t ( j0i em an sufficie nt. T h a t is the case o f R e yn o ld * v A ' (ubi sup.) ; but I do not th in k ha ^ j u d g i n ^ lays dow n w h at i t is a rg ue d ‘ Cotton, ju d g m e n t o f th e c o u rt was delivered ^ y ^ L.J., and he says . fh e 1 ■ „ t < w hich consider is th is , w h a t isi the m S tQ be pe r.
a c c o rd in g to th e term s thereo ? g gaid , fo rm e d w ith in th e .lu n 8 ?1Ctfc\?nm ust be an express th e ap p e lla n t to mean th a t i t ' be pe rfo rm ed te rm o f th e c o n tra c t th a t R sho uld be pe w ith in th e U n ite d K in . ; S on ^ T h e ^ i f f ic u lt y th a t is n o t th e tru e c.onstru ih e term s arises fro m the w ords acco g ords mean th e re o f ; ’ b u t in m y J ^ f ^ r c t and a t the th a t y ou m u s t lo ° k a*, *ht i e w hen the co n tra ct facts which existed at the t i wv,Pther, having was made, and th e n d e te rm i one w hich regard to the terms, the co®* ^ ¿ ju ris d ic tio n , and ought to be performed w ithinThe juris isiQn donot.m ean th a t th e re m m * d wl it h i n t he ju ris -t.hat the contract is to be p e rt ^ ust j 00k at d ic tio n .” T h a t is to say, the c o u rt m u ^ ^ .t the c o n tra c t, and f t h e ju ris d ic tio n , lo o k in g is to be pe rfo rm ed w ith in ^ 0se of c o n s tru in g at the existing facts for t p P ordinary rules the words used, according to th e o r e m £ o f c o n s tru c tio n w ith rega t . had de-in g th a t to this charterers at Antwerp, manded payment b7 * T ; ; c0Uid the charterers i.e., out of the jurisdiction, com ^ they cQuld have refused to pay at t P . t wRhin the not have refused, then this case is of the rule. W here p a y m e n t* . ^ o j e e, ^ ^ ,g jurisdiction or in the j n o ta contract which, within th e ru le , becau * of q t? be per-accordmg to the terms rnb;s not a fo rm e d w ith in th e p i n form ed w ith in the contract which ought t b ^ P wWch raay be per.
ju r is d ic tio n ; i t is a c_ the game reasoning form ed anywhere. E r L ards the dem urrage, applies to th e question S tb e p o rt 0f I t would be payable a t A n tw e rp o r 0 ^ ^ n o tj discharge, if demandc sub.geot. (e) of Order therefore, broughit w,it the deoision of the D iv is io n a l C o u r t s r ig h t, and th is appeal m ust beTd™ f 1 _ T h e M aster of the Rolls has gone
Lopes, L.J. , , t oniy Say a few so fu lly into this c a s e th a t l w * rd 'to sub
words w ith regard to it. vv s
sect, (e) of Order X I., r. 1, i t is necessary for the plaintiffs to show, in order to bring the case w ithin that sub-section, that the contract sued on is one which ought to be performed within the jurisdiction. There is nothing in this case to show that the sums sued for were payable w ithin the jurisdiction. I should think that they were payable at Rio. B ut they were certainly not payable exclusively w ithin the jurisdiction.
Kay, L.J.—I w ill only add a few words as to the meaning of sub-sect, (e) of Order X I., r. 1.
That sub-section applies wherever “ the action is founded on any breach or alleged breach w ithin the jurisdiction of any contract wherever made, which, according to the terms thereof, ought to be performed w ithin the jurisdiction.” Primd facie, that would mean according to the w ritten terms thereof. In the case that has been referred to, Cotton, L.J. pointed out, and I entirely agree w ith him, that you may find in the circum
stances under which the contract was made an indication as to the place where i t was to be per
formed which is of assistance in construing those terms. But, in order to bring the case w ithin the rule, the court must see, either in the w ritten words themselves or in those words coupled w ith the surrounding circumstances, that i t is a con
tract which, according to the terms thereof, ought to be performed w ithin the jurisdiction.
Appeal dismissed.
Solicitors for the plaintiffs, Maples, Teesdale, and Go., for Leitch, Dodd, Bramwell and Bell, Newcastle.
Solicitors for the defendants, Parker, Garrett, and Parker.
H IG H C O U R T OF JU STIC E.
PROBATE, DIVO RCE, AN D A D M IR A L T Y D IV IS IO N .
A D M I R A L T Y B U S IN E S S . Tuesday, Aug. 11,1891.
(B efore Je u n e, J.) The Marpessa. (a)
Collision — Consequential damage — Jettison of cargo—General average.
Where in consequence of a collision cargo is je tti
soned, the amount payable as general average contribution by the ship in respect of such jettison is not recoverablefrom the wrong-doing ship which caused the collision.
Th is -was an ob je ctio n to th e re g is tra r’ s re p o rt b y th e defendants in a co llis io n actio n in personam.
The collision occurred on the 25th June 1890 be
tween the plaintiffs’ steamship the Prinz Frederik and the defendants’ steamship the Marpessa. The Prinz Frederik was sunk. Subsequently to the collision the Marpessa, in order to enable her to reach a port of safety, was obliged to jettison part of her gear and cargo. This loss of cargo and the damage to the Marpessa formed the subject of general average. Accordingly a provisional adjustment was made by which 722i. 19s. 4d.
was found due from the ship to the cargo, and
was found due from the ship to the cargo, and