Melanie (Owners of S.S.) v San Onofre (Owners of S.S.)
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Finlay,Lord Phillimore,Lord Blanesburgh,. |
| Judgment Date | 19 December 1924 |
| Judgment citation (vLex) | [1924] UKHL J1219-2 |
| Date | 19 December 1924 |
| Court | House of Lords |
[1924] UKHL J1219-2
House of Lords
Lord Chancellor.
Viscount Finlay.
Lord Shaw.
Lord Phillimore.
Lord Blanesburgh.
After hearing Counsel, as well on Monday the 10th, as on Tuesday the 11th and Thursday the 13th days of November last, upon the Petition and Appeal of the Owners of the Steamship "Melanie," praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of His Majesty's Court of Appeal, of the 3d of December 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of the Owners of the Steamship "San Onofre," lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 3d day of December 1923, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Decree of the Honourable Mr. Justice Bailhache, of the 29th day of June 1923, thereby reversed be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Admiralty Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The question which your Lordships have to determine on this Appeal is whether, having regard to the action taken by the S.S. "San Onofre" after her collision with the S.S. "Melanie" on the 27th December 1916, the former vessel is entitled, as the Court of Appeal have held, to a salvage award or, as Bailhache, J. had held, to none. No question as to the measure or amount of the award (if any) arises on this Appeal.
The legal principles to be applied in a case of this character are not in dispute. In order to earn a reward for salvage a vessel must not only have endeavoured to rescue another from loss at sea but must have done so to some purpose; that is to say, the latter vessel must have been actually salved and the former must have contributed to that result. An attempt at rescue, however meritorious and however costly to the would-be rescuer, if not attended by success, gives no right to any salvage reward. Sir John Coleridge, in delivering the judgment of the Privy Council in " The Atlas" ( 1862, 1 Lush. 518, on p. 527), said that if the ship or cargo were not saved there could be no salvage; but he added that "where a salvage is finally effected, those who meritoriously contribute to that result are entitled to a share of the reward, although the part they took standing by itself would not in fact have produced it." It was on this principle that salvage was awarded in the " Killeena" ( 1881, L.R. 6 P.D. 193) and the " Camellia" ( 1883, L.R. 9 P.D. 27) and refused in the " Cheerful" ( 1885, L.R. 11 P.D. 3) and the " Tarbert" ( 1921, 15 Asp. N.S. 423). Cases like the " Benlarig" ( 1888, 14 P.D. 3) and the " Lepanto" ( L.R. 1892. P. 122), where the claim was not for salvage but for payment for work done on request, stand of course on a different footing.
In the present case, the "Melanie" undoubtedly reached port, though in a damaged condition; and the question is whether the efforts of the "San Onofre" contributed materially to that result. The main facts of the case may be very shortly stated. After the collision, which has been held to have been due to bad seamanship on the part of the "Melanie," the two vessels separated; but the "San Onofre" afterwards came up to the "Melanie" and put on board her some of her officers and crew who at the time of the collision had taken refuge on the "San Onofre." It was then ascertained that the "Melanie," although one of her holds (Hold No. 2) was flooded, was not sinking; and thereupon she was made fast to the "San Onofre" on the starboard side and to the "Urania" (who was escorting the "San Onofre") on the port side, and these two vessels attempted to tow her into Barry Roads. Unfortunately, owing to the set of the tide or to some other cause, and (as it has been held) without negligence on the part of the "San Onofre," the three vessels grounded on a ledge of rocks near the Stout Point. Some few hours afterwards, the tide having risen, the "San Onofre" floated and left the "Melanie" on the rocks; and next morning the "Melanie" also floated and was safely towed by two tugs to Barry. The bottom of the "Melanie," as well as that of the "San Onofre," was badly damaged by the rocks. The tugs obtained a salvage award of 1,650 l., and the question is whether the "San Onofre" is also entitled to an award.
Bailhache, J., who heard the action, held that the "San Onofre" had not contributed to the rescue of the "Melanie" so as to be entitled to salvage; but the Court of Appeal took the opposite view. The question is one of fact; and I can only say that, having carefully listened to the evidence and the arguments of Counsel, I do not think that there was sufficient ground for disturbing the judgment given at the trial. The action of the "San Onofre" in standing by and putting some of the "Melanie's" crew on board her was not, I think, a salvage service. The "Melanie" was not an abandoned ship; and the weather being what it was, the "San Onofre" could hardly have sailed away with the "Melanie's" crew without endeavouring to ascertain the condition of the "Melanie" and giving her crew a chance of returning to her. The towage was no doubt a meritorious attempt, but unfortunately it failed in its effect owing to the accident of grounding; and the only result was that the "Melanie," instead of being brought into harbour, was piled up on the rocks with a damaged hull and little (if at all) nearer to port than when the towage began. It is true that the "Melanie," being (as Mr. Dumas put it) "safely on the rocks," could not and did not sink; and it is also true that, owing to her being on the rocks, her master was able, when the tide fell and the water ran out of her No. 2 hold, to close the watertight doors and so prevent the water from again entering the hold when the tide rose; but it is not proved that these facts saved the "Melanie" from loss. The weather, though foggy, was fine, and there was no wind and no sea; and it is a probable conjecture that, if the "Melanie" had been left to lower her anchors and use her bell, she would have remained afloat until the fog lifted and could then have been towed safely into port. If the weather had changed, she might no doubt have been in danger; but in that event her position upon the rocks would have been not less serious. The trial Judge was advised by the Trinity Masters that, having regard to the weather as it was and to all the circumstances of the case, and to what might have been done to the "Melanie" had she been left in the position in which she was, she was in no better position when she was grounded on the rocks at Stout Point than she would have been if the "San Onofre" had not taken her in tow; and with this opinion the learned Judge entirely agreed. The assessors who advised the Court of Appeal were of a different opinion; but the appeal was not from assessor to assessor but from court to court. It appears to me that there was ample material upon which the trial Judge could come to the conclusion which he reached, and that there was no sufficient reason for setting it aside.
For the above reasons, I am of opinion that this Appeal should be allowed and that the order of the Court of Appeal should be set aside and the judgment of Bailhache, J. restored, with costs here and below.
My Lords,
This is an action by the owners of the "San Onofre" steamship to recover for salvage services to the "Melanie" steamship. Balihache, J., before whom with the Trinity Masters the case was tried, dismissed the claim, but the Court of Appeal (Bankes, L.J., Scrutton, L.J., and Atkin, L.J.), sitting with assessors, reversed this finding. They did not, however, themselves settle the amount of the salvage remuneration, but sent the case to the Admiralty Division for that purpose, and the President, after a hearing, awarded to the owners of the "San Onofre" 21,500 l., and to her captain and crew 1,500 l., of which 500 l. was to go to the captain.
The "Melanie" and the "San Onofre" came into collision about 9.45 a.m. on the 27th December 1916 in the Bristol Channel, a few miles to the south and east of Nash Point, in a dense fog. The "Melanie" was struck on her starboard side by the stem of the "San Onofre," with the result that a large V-shaped hole was made in the "Melanie." The captain and most of the crew clambered up into the "San Onofre," and the remainder went in a lifeboat to an armed steam trawler, the "Urania," which was in attendance upon the "San Onofre." The "Melanie" did not sink, as had been feared, and she was taken in hand by the master of the "San Onofre," with the intention of taking her to Barry, the "San Onofre" being made fast on the starboard side of the "Melanie" and the "Urania" on her port side. The towage began at 10.30 a.m. and at 11.45 a.m., the fog still continuing, all three vessels ran on the rocks at Stout Corner, a few miles to the east of the spot of the collision....
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