The "Fusilier."
| Jurisdiction | England & Wales |
| Judgment Date | 08 March 1865 |
| Date | 08 March 1865 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 391
HIGH COURT OF ADMIRALTY
S. C. 3 Moore, P. C. (N. S.) 51, 16 E R 19, 5 New Rep 453, 12 L T 186, 11 Jur. (N. S.) 289, 13 W. R. 592, 2 Mar L. C. 177 Discussed, the "Chetah," 1868, L R. 2 P C 205, The "Glenduror," 1871, 24 L T 499 Referred to, The "Amerique," 1874, L R 6 P C468; The "Schiller," 1876, 1 P D. 473; 1877, 2 P. D. 145; The "Sarpedon," 1877, 3 P. D. 28, The "Reupor," 1883, 8 P. D. 115; Blackpool and Fleetwood Tramroad Co v Thornton U D. C., [1907] 1 K. B. 568.
in the privy council. Present-Lord Chelnisford. Lord Justice Knight Bruce. Lord Justice Turner. the " fusilier " March 8, 1865.-Life salvage-Liability of cargo-17 & 18 Viet. c. 104, ss. 458, 459-" Persons belonging to suc.h ship "-Passengers- Measure of salvage-Apportionment of salvage -The owners of the cargo of a vessel to which salvage services have been rendered are liable under the 458th section of " The Merchant Shipping Act, 1854," to contribute to that portion of the claim of the salvors which arises from the saving of the lives of persona belonging to the ship The words " persons belonging to such ship " in the 458th section include passengers. The value of the salvors' property endangered in the service does not limit their salvage remuneration to that sum. [S. C 3 Moore, P. C. (N S.) 51 , 16 E R 19, 5 New Rep 453 , 12 L T 186 , 11 Jur. (N. S.) 289 , 13 W. R 592 ; 2 Mar L. C 177 Discussed, The " Chetah," 1868, L R. 2 P C 205 , The " Glendwor" 1871, 24 L T 499 Referred to, The "Amerique," 1874, L R 6 P C 468 ; The " Schiller," 1876, 1 P D. 473 ; 1877, 2 P. D 145 ; The " Sarpedon," 1877, 3 P. D 28 , The " Reupor," 1883, 8 P. D. 115 ; Blackpool and Fleetwood Tramroad Co v Thornton U D. C , [1907] 1 K. B. 568.] On the 29th of November 1863 the " Fusilier," a British ship of 1088 tons, left London with a cargo of general merchandise and ninety-five passengers, bound to Port Philip in the colony of Victoria On the 3rd of December, about 5 30 P M , in a violent tempest the ship drove on the Girdler Sand off Margate, struck heavily fore and aft and fell over on her bilge in the sand. She was undoubtedly in great danger, and continual signals of distress were made all night The signals were observed from the light-ships in the Princes' Channel, and were by them repeated to Margate, whence information was taken to the harbour-master at Ramsgate. Under the harbour-master's directions the lifeboat " Northumberland " was towed out by the steam-tug " Aid " to render assist-[342]-ance The lifeboat was manned by a volunteer crew of twelve hands, and the steam-tug was manned by seven hands. They proceeded round the North Foreland into the Princes' Channel, and after some time found the " Fusilier " aground The lifeboat was then despatched to her assistance, and in three trips succeeded in taking all the passengers, including many women and children, from the ship to the tug This was effected by about 7AM With these passengers on board the tug then proceeded towards Ramsgate, taking also an order from the master of the " Fusilier " for an anchor and chain. The lifeboat returned to the " Fusilier," but was shortly summoned by signals from the tug to assist in rescuing the crew of another vessel called the " Demerara " The lifeboat then left the " Fusilier " and did not return again The steam-tug " Aid " with the lifeboat in tow arrived in Ramsgate about noon on the 4th December. The anchor and chain which had been ordered were got on board two luggers, the " Champion " and " Lotus," of about 500 and 200 value respectively , they carried between them fifteen hands, among whom were the crew who had previously manned the lifeboat. They left Ramsgate about 6 p.m on the 4th December, in tow of the " Aid," and about midnight anchored ofi the " Fusilier " On the following morning the 392 THE " FUSILIER " BR. & L. 343. " Aid," with two other tugs employed by the ship, endeavoured unsuccessfully to tow the " Fusilier " off the sand. The " Aid," after offering her services in taking out the eargo, which were refused, returned finally to Ramsgate. On the same day (the 5th of December) the luggers were ordered by the pdot of the " Fusilier " to proceed to the Nore and to wait there until the weather was finer. They arrived at the Nore on the evening of the 6th of December and remained .there till the 10th On that day they returned to the " Fusilier," but were ordered back again to the Nore. The " Fusilier " was got off the sand on the llth and was towed up to Blackwall, where the luggers followed her After discharging the anchor and chain at Blackwall, the luggers returned to Ramsgate, arriving there on the 14th of December. The value of the ship was 2500, of the freight 2581, and of the cargo 52,000, the value of the ship being taken when she came off the sands, and the freight being the gross freight to be earned on the intended voyage. On the 20th of January 1864 a cause of salvage was instituted in the High Court of Admiralty on behalf of the masters and crews of the steam-tug " Aid " and the lifeboat " Northumberland," and also on behalf of the owners, masters and crews of the luggers " Champion " and " Lotus " against the vessel '' Fusilier," her [343] cargo and freight. James Baines & Co , of Liverpool, the owners of the " Fusilier," and Bligh and others the owners of the cargo, instituted separate appearances On the 22nd January a cause of salvage was instituted on behalf of the owners of the steam-tug " Aid " and of the lifeboat " Northumberland " against the vessel " Fusilier," her cargo and freight James Baines & Co , of Liverpool, the owners of the " Fusilier," and Bligh and others the owners of the cargo, instituted separate appearances. On the 2nd February the two causes were consolidated The cause was heard before Dr. Lushmijton on the 8th of June There was no dispute as to the facts of the case, but it was argued on behalf of both sets of defendants, that neither the ship, freight or cargo, nor the owners thereof, were liable in law to pay compensation for the saving the lives of the passengers Considerations xespectmg the amount of salvage due to the plaintiffs for their services (whatsoever) were also submitted by the counsel for the defendants The 458th and 459th sections of the Merchant Shipping Act, 1854 (17 & 18 Viet. c. 104), are as follows .- Section 458. " In the following cases (that is to say) Whenever any ship or boat is stranded or otherwise in distress on the shore of any sea or tidal water situate within the limits of the United Kingdom, and services are rendered by any person, (1) In assisting such ship or boat, (2) In saving the lives of the persons belonging to such ship or boat; (3) In saving the cargo or apparel of such ship or boat or any portion thereof ; And whenever any wreck is saved by any person other than a receiver within the United Kingdom ; There shall be payable by the owners of such ship or boat, cargo, apparel or wreck, to the person by whom such services or any of them are rendered, or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses properly incurred by him in the performance of such services or the saving of such wreck, the amount of such salvage and expenses (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner hereinafter mentioned." Section 459. " Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship or [344] boat as aforesaid shall be payable by the owners of the ship or boat in priority to all other claims for salvage , and in cases where such ship or boat is destroyed, or where the value thereof is...
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