K.B. Div.]

words: "Including all risks of craft and (or) raft, and (or) of any special lighterage (each craft, raft, or lighter to be deemed a separate insurance).' It is said by the defendants that the amount which the plaintiffs had at risk on this particular barge did not amount to 500l.; that is to say, their proportion which they would have to pay having regard to the other policies which were in existence on the whole of the cargo did not amount to 500l. in this barge; and therefore, say the defendants, inasmuch as each craft, raft, or lighter is to be deemed a separate insurance, we are not liable; there is no excess beyond 5001. Now, of course, that depends upon whether these words which I have just read, being the first words upon this so-called F.P.A. clause, applied at all to the circumstances of this case. It is well known that in insurance policies like charterparties and other documents used in shipping business there are to be found all sorts of provisions which may or may not be applicable to the particular contract which is being made, and it is to be remembered that this was a contract of reinsurance. a contract primarily meant to indemnify the man who is already at risk against that risk. That is the primary object of this contract. And one must look to see whether these words which are relied upon by the defendants to excuse them from paying under their policy really do relieve them from their liability. Now, I have always had a view about the meaning of these words gathered from a very long experience-a view which I find is confirmed by the plaintiffs' evidence and by the evidence given to me by Mr. Capel Cure. These words, in my opinion, are put in with reference to, and solely with reference to, a particular average claim, and they have this, and only this, meaning, that if a craft is lost containing part of the whole insured interest that craft shall, although it only contains part of the whole, be treated as if it were a separate insurance, so that, although it is only part, yet it shall be paid for as if it were the whole. That is the object of this clause. There is very often another object; that is to say, to apply the clause in cases where there may be a loss in a barge or craft which is not anything like 3 per cent. of the whole, but which is considerably in excess of 3 per cent. of what is in the barge. The clause applies in those cases, and gives to the assured a right to ask the underwriter, notwithstanding the clause as to paying nothing under 3 per cent., to pay, and, in my opinion, this clause is inserted with reference to those considerations, and to those considerations alone, and ought not to be read, and would not be read, in ordinary business by underwriters or by merchants as in any way affecting this contract of reinsurance this promise by the defendants to stand in with the plaintiffs and to indemnify them in respect of the risks which the plaintiffs have undertaken. I am satisfied that the defendants are liable. There must be judgment for the plaintiffs for the amount claimed.

Solicitors for the plaintiffs, Waltons, Johnson, Bubb, and Whatton.

Solicitors for the defendants, Thomas Cooper and Co.

[ADM.

PROBATE, DIVORCE, AND ADMIRALTY

DIVISION.

ADMIRALTY BUSINESS.

Jan. 17 and 18, 1906.

(Before BARGRAVE DEANE, J., assisted by two of the Elder Brethren.)

THE BREMEN. (a)

-Costs.

Salvage Award-Apportionment - Navigation and engineer officers' ratings-Separate representation of some members of crewThe tank steamship L. fell in with the disabled twin-screw steamship B. in the North Atlantic and towed her into Halifax, a distance of about 280 miles. The B.'s boat was employed in passing the hawsers and making the vessels fast. No member of the crew of the L. performed any special service.

On the 1st Dec. 1905 the solicitors acting for the owners of the L., without any direct authority from the crew, who numbered thirtysix, issued a writ on behalf of the owners, master, and crew of the L., claiming salvage for services rendered to the B., her cargo and freight, and on the 12th Dec. 1905 delivered a statement of claim on behalf of the owners, master, and crew of the L., to which on the 27th Dec. the owners of the B. delivered a defence. On the 18th Dec. twelve of the crew of the L.four able seamen and eight firemen―gave notice to the defendants' solicitors of a change of solicitors, and on the 5th Jan. 1906 a further statement of claim was delivered on behalf of the twelve, and on the 10th Jan. the owners of the B. delivered a defence to that claim.

On the hearing of the salvage suits the court awarded salvage, and the owners, master, and twenty-four of the crew were represented by two counsel, and the remaining twelve of the crew were also separately represented by two counsel. Counsel for the owners, master, and twenty-four of the crew, when asking for an apportionment, stated that if the usual practice was followed of apportioning the salvage among the crew according to their rating, the effect would be that the engineer officers would receive more than the navigating officers, who probably had harder work in consequence of the salvage than the engineer officers.

Held, that, as the navigating officers had not taken any extraordinary part in the salvage service, they were not entitled to an increased share in the award, which would be apportioned amongst the crew according to their rating.(b) Counsel for the twelve seamen asked for costs. The twelve seamen had recovered salvage, and were entitled to be represented; they had not authorised the owners' solicitors to appear for them. The owners of the B. opposed the appli cation on the ground that, as the interests of the twelve seamen were exactly similar to that of the rest of the crew, who were represented by counsel for the owners, there was no necessity for separate representation. The owners of the B. asked that the twelve seamen should be

(a) Reported by L. F. C. DARBY, Esq. Barrister-at-Law.

(b) Since this decision the court has in several cases apportioned salvage to the executive officers upon the basis of their pay being assumed to be equivalent to the pay of the engineer officers.-[ED.]

The plaintiffs were the owners, master, and crew of the steamship Lucigen, and the defendants were the owners of the steamship Bremen, her cargo and freight.

The Lucigen was a steel screw tank steamship of 2939 tons net and 4526 tons gross register, fittted with engines of 410 horse-power nominal, working up to 2300 indicated, was manned by a crew of thirty-six hands all told, and at the time she rendered the services was on a voyage from the Tyne to Philadelphia in water ballast.

The Bremen was a twin-screw steamship, owned by the Norddeutscher Lloyd line, of 7202 tons net and 11,750 tons gross register, fitted with engines of 1015 horse-power nominal, was manned by a crew of 263 hands all told, and when the services were rendered to her was on a voyage from New York to Bremen with a general cargo, and had on board about 160 passengers.

The value of the Lucigen was 68,000l.; the value of the Bremen was 147,2041., of her cargo 88,8001, of her freight 3500l., making in all 239,5047.

The following facts as to the incidents and character of the services rendered were also proved or admitted :

About 4.23 p.m. on the 15th Sept. 1905, when the Bremen was in about latitude 41 degrees 11 minutes N. and longitude 64 degrees 51 minutes W., steering a course of N. 77 degrees E true, her port tail end shaft broke between the brace hanger and stern tube, and the port propeller, with the portion of the broken shaft, slipped aft, fouling the blades of the starboard propeller, so that it was impossible to work it. During the night those on board the Bremen attempted to draw out the port propeller, but they were unsuccessful, so her towing hawsers were got ready.

About 8 a.m. on the 16th Sept., when the Bremen was in about latitude 41 degrees 14 minutes N. and longitude 65 degrees 17 minutes W., the Lucigen came up to her, and the Bremen sent an officer off in a boat to her to ask to be towed to New York. The master of the Lucigen suggested towing to Halifax, as it was a shorter distance and there was a dry dock there sufficiently large to take the Bremen; and the officer in the boat undertook to report that fact to the master of the Bremen when he returned to his vessel. The towage began about 12.20 p.m., and by 1 p.m. the Lucigen had got on a course for New York, with her engines working full speed, when those on the Bremen signalled that they wished to proceed to Halifax. The Lucigen then altered her course for Halifax, and was proceeding for that place when at 1.25 p.m. the 15in. manilla hawser connecting the vessels parted. The manilla hawser was again made fast, and the towage began again about 5.45 p.m., and continued without incident till the early morning of the 18th Sept. About 2.30 a.m. on the 18th Sept. a fog came on, which continued all through the day, and at 5.30 p.m. an officer from the Bremen came on board the Lucigen to inquire

[ADM.

what was to be done if the fog continued. Those on the Lucigen told him they were going to hold on for eight or nine miles, and then keep off till the weather cleared. About 7.30 p.m. the fog signal on Sambro Island was heard, and shortly afterwards the whistling buoy was heard, and the course was at once altered, soundings being frequently taken. About 2.50 a.m. on the 19th Sept. the fog lifted a little, and the master of the Lucigen then made for Halifax; at 11 a.m. a Halifax pilot was taken on board, and at 3 p.m. the Bremen was safely anchored in Halifax harbour. The services delayed the Lucigen for six days, and when she arrived at Philadelphia she found her cargo had been taken by another steamship, and instead of loading in two or three days, as she usually did, she had to wait seven days before she got a full cargo. Her owners incurred expenses for repairs amounting to 150l.

The writ in the salvage action was issued on the 1st Dec. 1905 by the solicitors acting for the owners, and, although the solicitors bad not received any instructions from the master and crew to act on their behalf, it was, in accordance with the usual practice, issued on behalf of all three interests-the owners, master, and crew of the steamship Lucigen-the defendants being the owners of the Bremen, and the owners of her cargo and freight. A statement of claim was delivered to the defendants' solicitors on behalf of all three plaintiffs on the 12th Dec., which, after stating the facts, alleged that the Bremen had been saved from a position of great danger by means of the services rendered by the Lucigen, and alleged that they cast on the master and crew of the Lucigen much extra labour and fatigue, and asked for an apportionment of the salvage award between the owners, master, and

crew.

On the 18th Dec. 1905 four able seamen and eight firemen served the defendants' solicitors with a notice of a change of solicitors.

On the 27th Dec. 1905 the defendants delivered a defence to the claim which had been delivered on the 12th Dec. on behalf of the owners, master. and crew of the Lucigen, in which they admitted that salvage services had been rendered, and that the account of them in the statement of claim was substantially correct.

On the 5th Jan. 1906 solicitors acting on behalf of the four able seamen and eight firemen delivered a further statement of claim, but it alleged no fact and described no incident which had not been referred to in the original claim.

On the 10th Jan. 1906 the defendants delivered a defence to the statement of claim delivered on the 5th Jan., in which the following paragraphs dealt with the point as to the separate represen tation of the twelve men :

1. Subject to proof that the plaintiffs formed part of the crew of the Lucigen, the defendants admit that they rendered salvage services. 4. The defendants say that there were no special or distinctive services rendered by these plaintiffs, most of whom it is believed were firemen, and there are no reasonable grounds justifying their severing their claim from that of the other members of the crew.

Evidence was called on behalf of the owners, master, and twenty-four of the crew of the Lucigen, and on behalf of the owners of the Bremen.

Pickford, K.C. and Dawson Miller for the plaintiffs, the owners, master, and twenty-four of the crew of the Lucigen.-It is submitted the service was a valuable one, and merits a high award. As to the apportionment, if the crew's share of the salvage is distributed according to their rating, the engineers will get a larger share than the navigating officers, who had more work than the engineers. It is suggested that it might be well to allow the navigating officers to share as though rated at a higher rate.

Morgan Morgan (S. Evans, K.C. with him), who did not cross-examine the witnesses called on behalf of the other interests, did not address the court on behalf of the other plaintiffs, the twelve seamen of the Lucigen.

Laing, K.C. and D. Stephens for the defendants, the owners of the Bremen.-The value of the property salved must not be allowed to raise the quantum of salvage to an amount out of proportion to the services rendered:

The Amerique, 31 L. T. Rep. 854; 2 Asp. Mar.
Law Cas. 460 (1874); 6 L. Rep. P. 468;

The Toscana, 93 L. T. Rep. 392; 10 Asp. Mar. Law
Cas. 108; (1905) P. 148.

With regard to the claim on behalf of the twelve seamen, it should be dismissed. The defence to that claim admits they performed salvage services subject to proof that they formed part of the crew. There is no proof of that fact; no one has been called in support of the claim.

Morgan Morgan, for the twelve seamen, asked and obtained leave to recall the master of the Lucigen to prove that fact. The master of the Lucigen admitted that the twelve plaintiffs were on board the Lucigen, and, when cross-examined on behalf of the owners of the Bremen, stated that the claims of the twelve men had been mortgaged and assigned to moneylenders.

Jan. 18.-BARGRAVE DEANE, J.-This action is one for salvage services rendered off the coast of America by the steamship Luciyen to the steamship Bremen. The Lucigen is a single screw steamship of 4526 tons gross and 2929 tons net register, with engines of 410 horse-power nominal working up to about 2300, and she was on a voyage to the Delaware River, Philadelphia. The Bremen is a North German Lloyd passenger steamer of 11,570 tons gross, 7202 net, with engines of 1015 horse-power nominal, which, I take it, means somewhere between 5000 and 6000 indicated, and with a crew of 263 hands and 160 passengers on board. The values are large-the Lucigen 68,000l., and in the Bremen's case the total value of ship, cargo, and freight 239,500l., so there was a very large amount of property at risk. The services commenced about 8.30 a.m. on the 16th Sept. last year. The Bremen, which had come from New York, broke down completelythat is to say, her engines were absolutely useless to her on the afternoon of the 14th, when she was on her way from New York to Bremen. It was fine weather fortunately; there was a swell, but the condition of things was such that it was impossible for her to do anything to restore her engine power so as to enable her to move at all. The position she was in is practically agreed. She was not exactly in the track of steamers, but the Elder Brethren tell me, taking the place which is agreed, that she was not very far out of the track of steamers; the more im

[ADM.

portant point is this-it is said on behalf of the salvors that this vessel was drifting towards St. George's Shoal, a dangerous shoal some ninety miles or so to the north-west of her; but the Elder Brethren have pointed out that before she got there she would cross the northern track of vessels, and there is no doubt in their minds that she would have been picked up, and that she would not have gone on to that shoal. The towage having commenced on the 16th, it was completed by the vessel being towed into Halifax, where there was a dry dock capable of taking the Bremen, at three o'clock on the afternoon of the 19th, and, except from the fact that the two vessels ran into a serious fog before they got into Halifax, and had to work out to sea to keep off the land, and that there was serious danger at that time, owing to this smaller vessel towing this very large ship behind her in the fog, there would have been nothing particular in the to wage. But in my opinion, and the Elder Brethren agree with me, the fact that the Lucigen was towing this big steamer in the fog, in the track of other vessels, was a very serious and a very anxious matter for those on board the Lucigen to have to consider. In addition to the towage service, which was 280 miles 230 to Halifax, and 50 miles dodging for the fog-the Lucigen, by her salvage services, lost between six and seven days, and the result was that she arrived at Philadelphia at a time when she had owing to delay lost a chartered cargo. She had to wait a longer time than she would otherwise have done to get another cargo, and there is a certain amount of demurrage which has to be considered. The actual expenses for damage done has been agreed at 1301., not a very large amount, but in addition we have to remember the straining which affected the engines of the Lucigen. The damage was repaired by her own people, therefore there is no express charge for that, but additional labour fell on that part of the crew because the engine-room worked double watches during the services, which imposed upon them additional labour, additional anxiety, and additional care.

The result we have arrived at is that this is a salvage service which deserves recognition. I had fairly well made up my mind as to the amount to be awarded before the case of The Toscana (ubi sup.) was quoted to me. I confess the case of The Toscana (ubi sup.) has affected my mind, but not in the direction in which I expect counsel for the defendants meant it to be affected. The award I had in my mind was smaller than I arrived at after hearing the judgment in The Toscana (ubi sup.). The Elder Brethren, like myself, have had some difficulty in assisting me to arrive at what would be a fitting award, but I do not think any of us differ in opinion. The total amount I award is the sum of 5000l. Of that, I award 3500l. to the owners, which will include all extras in the shape of expenses, demurrage, and so on. I think that Captain Dyer deserves a considerable award for the responsibility and anxiety which these services imposed upon him, and I award him 500l., and the remaining 1000l. to the crew, according to their ratings. I have spoken to the President upon the questions suggested to me as to whether the executive officers, whose pay is lower than that of the engineer staff, should not be treated in exactly the same way as the practice of the court treats

them, but that there should be some special recognition. The President thinks that it would be a mistake to alter the practice of the court, and that an exception should only be made to that practice when any particular member of the crew has rendered special service in the course of the salvage operations. I cannot say that in this case the chief or second or third mates rendered any specific special services. On the other hand, the engineer staff did render special services, for they kept double watches, and had of course the anxiety of watching the engines during the towage service. The result is that, although the pay of the engineer staff will entitle them to a bigger sum out of this 1000l. pro rata than the executive, the first, second, and third officers, I do not think in this case there is any reason to depart from the usual practice of the court.

Laing, K.C.-The twelve seamen who are separately represented should not receive any costs; their separate representation was unnecessary. They should be ordered to bear any extra costs which the defendants have been put to in consequence of their separate representation.

S. Evans, K.C.-These twelve plaintiffs have been successful and have recovered salvage, and they are entitled to be represented, and should be given their costs. They never authorised the owners' solicitors to act for them.

Pickford, K.C.-I submit that the owners, master, and the twenty-four of the crew of the Lucigen are entitled to their costs, and that they ought not to be ordered to share them with the other twelve plaintiffs.

BARGRAVE DEANE, J.-The interests of these twelve men are exactly the same as those of the rest of the crew. There is no distinction to be drawn between the services rendered by these men and the services of the remainder of the crew. I shall not give them any costs, and I shall make no order against them that they are to pay any.

Solicitors for the plaintiffs the owners, master, and twenty-four of the crew of the Lucigen, W. W. Wynne and Sons, for Forshaw and Hawkins, Liverpool.

Solicitors for the plaintiffs the twelve seamen, Andrews and Andrews.

Solicitors for the defendants, Clarkson, Greenwell, and Co.

[CT. OF APP.

On the hearing of the reference, the owners of the dredger claimed demurrage at the rate of 1021. 98. 5d. a day. That figure was arrived at by assuming that the loss to the plaintiffs was equivalent to the expenditure on the dredger for maintenance, working expenses, and sums to cover insurance, depreciation, and owners' profits.

The district registrar allowed the owners of the dredger 3151. in respect of demurrage, being 351. a day.

That sum was arrived at on the principles laid down in The Greta Holme (77 L. T. Rep. 231; 8 Asp. Mar. Law Cas. 317; (1897) A. C. 596). The owners of the dredger appealed, and the judge affirmed the registrar's report.

On appeal:

Held (affirming the decision of the court below), that, in the absence of direct proof of pecuniary loss, the board were entitled to such a sum as would be sufficient to compensate them for actual out-of-pocket expenses properly chargeable against the dredger whilst being repaired, together with depreciation and loss of interest on capital during the repairs, such depreciation and interest being calculated on the capital value of the dredger at the time of the accident. Judgment of Sir Gorell Barnes, P. (94 L. T. Rep. 168; 10 Asp. Mar. Law Cas. 197; (1906) P. 10) affirmed.

APPEAL by the owners of the suction dredger G. B. Crow, the Mersey Docks and Harbour Board, against a decision of Sir Gorell Barnes, P. affirming a report of the district registrar at Liverpool in favour of the defendants, the owners of the Marpessa.

The claim arose out of a collision which occurred between the G. B. Crow and the Marpessa on the 6th Oct. 1904, when the G. B. Crow was sheltering from the weather in the river Mersey.

The facts are fully set out in the court below: (The Marpessa, ubi sup.). The following is a summary of them :

The G. B. Crow, a suction dredger built in 1895 at a cost of 56,7001., was designed for and employed in dredging operations at the bar and in the sea channels at the mouth of the Mersey, Liverpool Bay.

The damage caused by the collision with the Marpessa involved her being laid up for nine days.

Her value, allowing for depreciation at 7 per cent., was at the time of the collision 33,7361., and she was expected to do work for another five or six years.

The respondents, the owners of the Marpessa, admitted liability subject to a reference, and the appellants filed a claim in the district registry.

The respondents agreed to all the items of the claim with the exception of an item for demurrage which the appellants fixed at 102l. 9s. 5d. per day.

The appellants arrived at the figure of 1021. 9s. 5d. per day by assuming that the vessel was worth per day to the dock board the amount they expended on her in keeping her up, and they arrived at that by calculating what the annual average cost of the dredger was under the headings of insurance, repairs, wages, supplies, expenses of engineer's department, together with depreciation at 7 per cent. on the original outlay, and to that

they added a sum of 25 per cent. on the original outlay as owners' profits.

The registrar in his report, which is set out in the report in the court below (ubi sup.), reduced the amount claimed, and allowed the sum of 351. a day.

The appellants moved in objection to the report, and on the 9th Nov. 1905 Sir Gorell Barnes, P. affirmed the report.

Carver, K.C., Aspinall, K.C., and Leslie Scott for the appellants, the Mersey Docks and Harbour Board.

The arguments were the same as in the court below, but the following additional cases were referred to:

The Kate, 80 L. T. Rep. 423; 8 Asp. Mar. Law
Cas. 539; (1899) P. 165;

The Mediana, 82 L. T. Rep. 95; 9 Asp. Mar. Law
Cas. 41; (1900) A. C. 113;

Clydebank Engineering and Shipbuilding Company
v. Yzquierdo y Castaneda, 91 L. T. Rep. 666;
(1905) A. C. 6.

Pickford, K.C. and Greer, for the respon. dents, the owners of the Marpessa, were not called on.

COLLINS, M.R.-This is an appeal from a decision of the President, and the question is as to the proper measure of damages in a case where a steam dredger, the property of the Mersey Docks and Harbour Board, was disabled for a certain number of days-I think for nine days. The defendants being admittedly responsible for the damages consequent upon the collision, the question is what is the proper measure of those damages. We must remember that damages are not a matter of nice mathematical adjustment. Damages, until a recent period, were exclusively in the province of juries, who were not supposed to measure them upon strictly mathematical lines, but had to say what men of ordinary sense and business knowledge would fix upon as the money compensation for the damage sustained. In this case the result of what I must assume was the defendants' negligence was that this steam dredger was put out of action for some nine days, and the learned President, with whose decision we are dealing, came to this conclusion. He said it is summarised in the headnote to the report of the case in the Law Reports-" In the absence of proof of direct pecuniary loss in respect of that part of their claim which is in the nature of demurrage," the court will award "such a sum as will be sufficient to compensate the board for the actual out-of-pocket expenses properly chargeable against the dredger during the period of her detention for repairs, together with depreciation and loss of interest on capital during the delay, such depreciation and interest being calculated on the capital value of the dredger at the time of the accident." At the end of his judgment he says: "I conceive that, applying the principles in the case of The Greta Holme (ubi sup.), a business and reasonable view to take is that when the plaintiffs content themselves with such evidence as they gave in the present case, this tribunal, in assessing their damages, may say, as a jury would do, we must act with some reasonable certainty, and you, the plaintiffs, are reasonably compensated by being awarded a sum which we are fairly satisfied you may have lost, but we cannot follow you into mere speculation." In t is case the VOL. X. N. S.

[CT. OF APP.

standard which the appellants desire us to assume is applicable, as far as I understand it, is this. They say: "We can show you the first cost of this dredger to us. We will assume that the life of that dredger is fifteen years, and we can also calculate for you the total expense we should be put to over that period of fifteen years in keeping this vessel in a condition to carry out its work; and we also claim something in the shape of interest upon the total sum expended by us, and also a sum for owners' profits; and having arrived at the aggregate sum represented by all those items put together, which would be the amount at the end of the fifteen years, we now ask you to assess the damages in respect of nine days' detention at the expiration of ten years out of her life -we ask you to assess the damages payable to us in respect of the loss of the use of this vessel for nine days, on the theory that every day throughout the whole period of this vessel's existence is to be assumed to be of equal value to us; that is to say, that the cost which we should incur in respect of every day throughout the whole of the fifteen years would be the same; and as we cannot show any actual money loss arising from inability to use the dredger, we ask you to say that the damages to us must be at least equivalent to that sum of money which we, as reasonable persons, have been willing to devote to keeping this dredger in existence, and that that sum is to be arrived at by treating the share of each particular day simply as representing the aliquot part of that particular day, by dividing the number of days into the number of pounds.' It seems to me that that suggested mode of assessing the damages involves at least two assumptions which are not proved. First of all it involves this-namely, that the cost to the Mersey Docks Board for every day during the fifteen years, in respect of this dredger, is to be taken to be the same. That does not appear to me to be a self-evident proposition, and there is no evidence upon it. We are dealing here with a perishing subject-matter, and damages are sought upon a calculation which is based upon a fundamental fact-the actual original cost of the vessel with all these other sums added to it. It seems to me that in each suc.. ceeding day in the whole period of fifteen years that is a fluctuating factor-that there is depreciation continually going on, and if you are going to introduce, as a factor, into the calculation, a sum representing the value of the vessel at a given date, you are bound to take into account the necessary depreciation in value which takes place between the date of first purchase and a date which is two-thirds of the way through the career of the vessel. That is the first point, and the chief point upon which the appellants impugn the decision of the court below. They say the President's decision involves taking into account from day to day, month to month, and year to year, the depreciation of this vessel, whereas their contention is that inasmuch as the benefit which the vessel was able to confer upon them through each week of the whole fifteen years was the same, there must be attributed to each week, in arriving at a figure to represent the loss of the use of the dredger in any particular week, the same sum for cost.

This last proposition brings me to the second fallacy, as I regard it, in this contention. They

2 H