Goring, The (Admiralty)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE BINGHAM |
| Judgment Date | 25 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0225-10 |
| Docket Number | 87/0198 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 1987 |
[1987] EWCA Civ J0225-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMIRALTY COURT)
(MR. JUSTICE SHEEN)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Ralph Gibson
and
Lord Justice Bingham
87/0198
1985 Folio 512
MISS B. BUCKNALL (instructed by Messrs. Ingledew Brown Bennison & Garrett) appeared on behalf of the (Plaintiffs) Respondents.
MR. G. BRICE, Q.C. and MRS. E. BLACKBURN (instructed by Messrs. Shaw & Croft) appeared on behalf of the (Defendants) Appellants.
The decision in this appeal concerns, and will no doubt be cited as, "The Goring", but it could well be sub-titled "A tale of three men in a boat". It was shortly before midnight on the 14th September, 1984 that they began their voyage into legal history and they did so in the unlikely venue of the Thames above Reading bridge. At that time they were in a small boat used to ferry club members from the river bank to De Montfort Island, which was the site of the Island Bohemian Club. They had sighted "The Goring", which, by the standards of the Thames, could be described as a large passenger vessel, unmanned and drifting gently with the stream towards Reading bridge and the weir beyond. The three men got a line aboard "The Goring" and managed to pass it to two other men on the island, who made it fast. Subsequently all five hauled "The Goring" to a vacant mooring where she slept peacefully—and safely—until morning when her owners resumed possession.
The five men and the club, as owners of the small ferry boat, claimed salvage remuneration for their efforts and, when it was refused, began this action in the Admiralty Court by a writ in rem. If the same drama had been played out further down the river between Teddington Lock and Richmond Bridge, the owners of "The Goring", or their underwriters, would no doubt have settled the claim, if not for the price of a round of drinks at the Bohemian Club, at least for a relatively modest sum, for the service, although valuable, hardly ranked as an epic of the sea. And in that last word lies the key to this litigation, for the owners of "The Goring", or more probably their underwriters, have raised an issue of principle, namely whether there is in law any right to salvage remuneration where the service is rendered on non-tidal inland waters.
Mr. Justice Sheen, the senior Admiralty judge, applied himself to this problem on an application to set aside the writ and held that it disclosed a good cause of action, although he indicated that the amount of any award might not be large and expressly discouraged any proliferation of very small claims for salvage remuneration. He gave leave to appeal to this court on terms that the defendants would not seek an order for costs against the plaintiffs.
The appeal has been extremely well argued both by Mr. Geoffrey Brice Q.C., for the defendants, and by Miss Belinda Bucknall, for the plaintiffs, and I am sure that I speak for all members of the court when I express my deep appreciation of the clarity and expedition with which they presented their submissions and of the exhaustive, and exhausting, nature of the research which preceded the hearing of the appeal. At the end of the hearing my state of mind was such that I recalled the, possibly apocryphal, story of the judge who, at a similar stage in the proceedings, had the temerity to tell counsel that he felt none the wiser, only to be met with the retort, "Possibly not, My Lord, but far better informed." (i) I was very much better informed, but needed time to become wiser and accordingly we reserved judgment.
It is common ground that (1) the plaintiffs were
volunteers; (2) "The Goring", which was preserved by their efforts, was of a class of property which is recognised as a "subject of salvage", unlike, for example, a maritime gas float ( "The Gas Float Whitton" No. 2 [1896] P. 42, 58) or a heifer which chose to inspect a railway line as a train was approaching ( Sorrell v. Paget [1950] 1 K.B. 252, 260); (3) at the time when the services were rendered, the vessel was in danger, although the degree of danger was open to argument, and that danger had arisen when the vessel was in its natural element, namely the water, as contrasted with being laid up ashore; (4) the operation was successful and upon its conclusion the vessel had a value out of which an award of salvage remuneration could be made; and (5) if these four ingredients were all that was required in order to support a valid claim for salvage remuneration, the writ should not be struck out. However, the appellants submit and the respondents deny that there is a further essential element in the cause of action, namely that the danger which was averted must have existed, or at least originated, at a time when the vessel was in or on the edge of "tidal waters", including in that expression the High Seas.
The essence of the appellants' case is that the salvage is essentially a remedy designed to procure a proper reward for those who, as volunteers, saved property in danger at sea and it is common ground that this is normally the case. In consequence there is no difficulty in finding many authorities which refer in terms to salvage as if it were so limited. The classic example is provided by the judgment of Lord Justice Bowen in Falcke v. Scottish Imperial Insurance Company [1886] 34 Ch.D. 234, 248, cited by Lord Esher M.R. in " The Gas Float Whitton No. 2(supra) at page 58:
"The general principle is, beyond all question, that work and labour done or money expended, by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will. There is an exception to this proposition in the maritime law…With regard to salvage,…the maritime law differs from the common law. That has been so from the time of the Roman law downwards. The maritime law for the purposes of public policy, and for the advantage of trade, imposes in these cases a liability upon the thing saved, a liability which is a special consequence arising out of the character of mercantile enterprises, the nature of sea perils, and the fact that the thing saved was saved under great stress and exceptional circumstances. No similar doctrine applies to things lost upon land, nor to anything except ships and goods in peril at sea."
The emphasis was supplied by Lord Esher in support of his conclusion that "The Gas Float" was not a class of object which could be the subject matter of a claim for salvage remuneration. He was not concerned with whether or not it was "in peril at sea", because this was admitted, "The Gas Float" being at the material time afloat in the tidal waters of the Upper Humber. Similarly in Falcke's case the issue did not turn upon the locality of the "salved" property (an insurance policy), but upon whether it was of a class whose rescue could give rise to a claim for salvage remuneration.
This is not to say that the appellants' argument is ill-founded, but merely to sound a note of caution as to the significance of the language used in the reported decisions of the courts when reference is made to the sea or to maritime salvage. Similarly it is necessary to be cautious in interpreting decisions as to the jurisdiction of the Admiralty or any other court to award salvage remuneration. Lack of jurisdiction may arise either because there is no right recognised by the law, i.e. no cause of action, or because, whilst there may well be a right, the jurisdiction of the court to declare that right and to provide a remedy has been excluded.
Before Mr. Justice Sheen it was submitted that if the Admiralty Court historically had no jurisdiction to make an award of salvage in respect of services rendered on non-tidal waters, then no such cause of action was known in England and the court could not now create a fresh cause of action. The learned judge replied, rightly in my judgment, that "it seems to me that in that submission there is a confusion between the geographical limits of the jurisdiction of the court and the cause of action". Clearly such a confusion could exist and the question is whether it does.
Jurisdiction
The jurisdiction of the Lord High Admiral is of great antiquity. Originally, which may even have been in Saxon times, it extended only to criminal offences committed on the high seas, but by the late 14th century it had come to embrace disputes in all civil matters connected with the sea (Halsbury's Laws of England (4th edition) vol. 1, para. 301). Gradually he came to assert jurisdiction not only in respect of matters occurring on the high seas, but also on the seas "within the body of the counties". The distinction between the main or high seas and seas lying within the body of the counties was that the latter were arms or branches of the sea "which lies within the fauces terrae, where a man may reasonably discern between shore and shore" (Hales Commentaries, 1787, Chapter IV).
This development gave rise to demarcation disputes between the common law courts and that of the Lord High Admiral. The common law courts...
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