The "Fusilier."
| Jurisdiction | UK Non-devolved |
| Judgment Date | 09 February 1865 |
| Date | 09 February 1865 |
| Court | Privy Council |
English Reports Citation: 16 E.R. 19
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
Mews' Dig. tit. Shipping; A. XVIII. Salvage; 6. Life Salvage; 13. Award; d. Appeal-Reviewing Award. S.C. 34 L.J. Ad. 25, 11 Jur. (N.S.) 289, 12 L.T. 186, 13 W.R. 592. See The Scindia, 1866, 4 Moo. P.C. (N.S.) 84; The Chetah, 1868, L.R. 2, P.C. 210; 5 Moo. P.C. (N.S.) 278; The Amerique, 1874, L.R. 6, P.C. 471; Cargo ex Schiller, 1876-77, 1 P.D. 480, 2 P.D. 149; Cargo ex Sarpedon, 1877, 3 P.D. 33; The Renpor, 1883, 8 P.D. 117; The Glengyle (1898), A.C. 519. As to admiralty jurisdiction of Judicial Committee, see note to The Beta, 1865, 3 Moo. P.C. (N.S.) 31.
[51] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. BLIGH, HARBOTTLE & CO., the Owners of the Cargo on board the Fusilier,- Appellants; RICHARD SIMPSON and Others, Owners of the Aid, Northumberland, Champion, and Lotus,-Respondents; * and also The Owners of the Fusilier intervening [Feb. 8, 9, 1865]. the " fusilier." The words " persons belonging to such ship " in the 458th section of the Mer- * Present: Lord Chelmsford, the Lord Justice Knight Bruce, and the Lord Justice Turner. 19 Ill MOORE N.S., 62 BLIGH V. SIMPSON-FUSILIER (THE) [1865] chant Shipping Act, 1854, include passengers on board the ship, as well as the Master and crew; and who, in respect to remuneration for life salvage, stand on the same footing as the Master and crew [3 Moo. P.O. (N.S.), 72, 73]. The owners of the cargo are liable to contribute to that portion of the claim of salvors which arises from saving the lives of passengers, although the salvors may have rendered no direct benefit to the cargo, as the benefit to property is not a criterion of remuneration for life salvage [3 Moo. P.C. (N.S.), 74]. The accident of the amount of salvage awarded exceeding the value of the salvage vessels is wholly immaterial, as the value of such vessels is not an element to detract from the value of the salvage service [3 Moo. P.C. (N.S.), 69]. The appellate Court will not disturb an award of salvage by the Court below, on the ground of that Court having awarded too large a sum, unless they are satisfied, beyond all doubt, that the Judge has made an exorbitant estimate of the salvage services [3 Moo. P.C. (N.S.), 69]. This was originally a cause of salvage instituted by the Respondents, the owners, masters, and crews of [52] the Steam-tug Aid, the lifeboat Northumberland, and the luggers Champion and Lotus, against the ship Fusilier, cargo and freight, and the Appellants the owners of the ship, and the owners of the cargo. The appeal was brought from a decree of the Judge of the Admiralty Court (The Right Hon. Dr. Lushington), whereby the owners of the cargo were held liable to contribute to the remuneration awarded to the Respondents for salvage service in saving the lives of passengers on board the Fusilier, and the question raised by the appeal was confined to that point. The facts of the case were these: - On the evening and night of the 3rd of December, 1863, a heavy gale was blowing in the Downs, from the north-west, and. at about 6 p.m. signals were observed from the Girdler Tongue, and Prince's Channel light-ships, indicating that vessels were in distress in the vicinity. The Steam-tug Aid proceeded out of Ramsgate Harbour, at about 8.30 p.m. of that day, with the lifeboat Northumberland in tow, in the direction, in the first instance, of the Tongue light-ship, in search of the vessel or vessels in distress. After searching ineffectually, for several hours, in the direction indicated by those on board the Tongue light-ship, the Steam-tug, with the lifeboat in tow, proceeded to the Prince's Channel light-ship, and guided by the information then obtained, they discovered the Fusilier aground on the Girdler Sand, and by about 3 a.m. of the 4th of December they got alongside, and two men from the lifeboat boarded her. The Fusilier was an emigrant ship, and had on board at that time ninety-five passengers, including [53] women and children, and a cargo of general merchandize. When the Steam-tug and lifeboat reached the Fusilier, the Master and Pilot of that vessel requested them to take off the passengers, as fears were entertained for their safety, it being then about half flood, and very probable that the ship would break up on the next high water. 'Accordingly, the whole of the passengers were taken by the lifeboat from the ship and placed on board the Steam-tug, an operation which was safely performed by the lifeboat in four trips, occupying in the whole about four hours, and the lifeboat then returned and lay by the Fusilier, for the purpose of saving the crew, if necessary. The Steam-tug left the vessel, with the intention of proceeding to Ramsgate, and the Captain of the Fusilier sent by her an order for an anchor and chain, to replace one which had been lost in the gale. The Steam-tug, shortly after leaving the Fusilier, fell in with another vessel, the Demerara, which was wrecked on the Girdler Sand, and the crew of which were in great peril; and she thereupon returned to the lifeboat, with the Fusilier's passengers still on board, and took her in tow to the rescue of the crew of the Dem.erara. The whole of the crew of the Demerara, nineteen in number, were saved by the lifeboat, and put on board the Steam-tug, and after performing this further service, the Steam-tug and the lifeboat proceeded to Ramsgate without returning to the Fusilier. No further service was performed by the lifeboat, but her crew, or some portion of them, formed the crews or parts of the crews of the luggers Champion and Lotus. At about 6 p.m. of the 4th of [54] December, the Champion and TMtus, with the anchor and chain on board, which had been ordered by the 20 BLIGH V. SIMPSON-FUSILIER (the) [1865] , III MOORE N.S., 55 Master of the Fusilier, left Kamsgate Harbour in tow of the Aid, and reached the Fusilier about midnight; these vessels lay by her all that night. The next morning at daybreak the Aid went near the Fusilier, and her Master reported that the anchor and chain were on board the lugger. Before this several Tugs had been sent to the assistance of the Fusilier by persona acting on behalf of the owners of the ship and cargo, and at the time when the Aid returned to the luggers, these Tugs were endeavouring to tow the Fusilier off the ground; and the Aid, at the request of the Captain of the Fusilier, sent her hawser on board and assisted in towing for a short time, when, finding the Fusilier could not be moved, the Aid was, by her own desire, cast off. The Master of the Aid then went on board the Fusilier and offered his services to take off some of the cargo, but was told that his assistance was not required, and the Aid then returned to Ramsgate. The luggers stayed by the ship until 4 p.m. of the 5th of December, when they were ordered to proceed to the Nore to wait till the weather should be finer, and the anchor and chain should be wanted; it having been determined to lighten the ship, it was not wished to encumber her with the additional weight of the anchor and chain. The luggers remained anchored at the Nore till the 10th of December, when the Fusilier was got off and brought up to London in tow of two steam-tugs. The luggers were towed up to Blackwall [55] on the llth of December, at the expense of the Fusilier, and they then discharged the anchor and chain, and returned to Ramsgate. The value of the Fusilier and of her freight was £5081, and that of the cargo, £52,000. On this state of facts the owners of the cargo in the Court below contended, that no services were rendered to the cargo by the Respondents. And as to the services rendered in saving the lives of the passengers on board the Fusilier, they insisted that the cargo was not liable to any claim for services in the nature of life salvage to passengers. The cause was heard on the 14th of June, 1864, when the learned Judge delivered the following judgment:-"Several questions of law have arisen respecting what is called life salvage, and to these questions I will address my attention before considering the particular facts of the case. First, then, as to the old law respecting salvage of life when not connected with the salvage of property-the law before any Statute was passed on the subject. There is, I apprehend, no doubt that the law was that where no ship or cargo had been salved, no property rescued from destruction, but lives had been saved from the ship, no suit for salvage reward could be maintained. One reason for this state of the law was, that no property could be arrested applicable to the purpose. There could be no proceeding in rem, the ancient foundation of a salvage suit. It is true that an anomalous case did sometimes arise, where one set of salvors exclusively salved life, and another wholly distinct salved the ship and cargo; but even in these circumstances the salvors of life alone could not [56] render the property amenable to their claims. Then as to the case where life and property had both been salved by one set of salvors, it was the practice of the Court to increase the amount of salvage which would have been given if property only had been saved, and such doctrine does, I think, rest on too high authority to be doubted. The practice, too, was, that all the property salved should pay in such increased rate of salvage-the ship, the freight, and the cargo-each in proportion to its value. Such being the...
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