VOL. XIV.] EXCHEQUER COURT REPORTS. 23 NOVA SCOTIA ADMIRALTY DISTRICT. ,- DIE DEUTSCHE AMERIKANI-1911 SCHE PETROLEUM GESSEL- P Dec. 9. SCHAFT, OWNERS OF THE LAINTIFFS; -- STEAMSHIP ENERGIE, ET AL .. ~ AND 'THE STEAMSHIP BERWIND- • MOOR HER CARGO AND FREIGHT. ~. THE COMMERCIAL CABLE COMPANY, ET AL PLAINTIFFS. j AND • 'THE STEAMSHIP BERWIND- j MOOR HER CARGO AND FREIGHT .... J Salvage—Meritorious Seryices—Remuneration—Towage—Salvage—Character, of ship rendering service. ti "The SS. Berwindmoor was picked up some 70 miles S. S. E. of.SableIsland in a disabled condition, in consequence of having lost her rudder, by the SS. Energie on the morning of the 27th November and brought into the port of Halifax. The position in which the ship was found was a dangerous one at that time of year. During the operations heavy weather prevailed for the greater part of the time, in consequence of - which the salving ship lost a number of lines, one of her anchor chains and anchor, had her windlass broken, and sustained other damage which necessitated detention and repairs at Halifax. The time consumed in the salving work and in the consequent repairs amounted to eleven and a half days. Reid, that the services rendered by the Energie were of a meritorious character and that the sum of $12,500 would be a reasonable allowance therefor, to be apportioned $10,500 to the owners of the ship and $2,000 to the .officers and crew.
24 , EXCHEQUER COURT. REPORTS. [VOL. XIV. 1911 2. When the Energie withjthe Berwindmoor was with in thirteen miles of the Tax mouth of, Halifax Harbour, the ;weather at the time beingl ine and there STEAMSHIP being nothing to prevent the Energie completing her work without assist-ENERI}IE ance, the SS. Mackay-Bennett was taken down by the agent of the owners V. THE of the Berwindmoor, and, by the directions of the agent, a line was put STEA9ïElHIP on board the disabled ship from the Mackay-Bennett and that ship assisted BERWIND- MOOR. in the further work of getting the Berwindmoor into port. FI eld, that, under the circumstances, the services rendered by the Mackay-Statement of Faets. Bennett could only be regarded as in the nature of towage—salvage, but that, having regard to the size, power and equipment of the ship, the ordinary rule in relation to remuneration for towage services should not apply. T 1 H ESE two actions claiming compensation for sal- vage services rendered in bringing the Steamship Berwindmoor into the port of Halifax were, by order of the Deputy - Local Judge, consolidated and tried together at Halifax on the 6th day of December, 1911. The facts are fully stated in the opinion of the learned Judge. Ritchie, K.C., and Robertson, K.G., for the owners of the Energie. • Mellish, K.C., for the Commercial Cable Co., owners of the Mackay-Bennett. Harris, K.C., and Henry, K.C., for the owners of the Berwindmoor. DRYSDALE, D.L.J. now (December 9th, 1911) delivered judgment. The Energie is a German steamer of 2,762 tons gross and 1,726 net, and whilst on a voyage from New York to Konigsberg, Germany, laden with a cargo of oil she fell in with SS. Berwindmoor about 70 miles SSE.. of Sable Island on the morning of Monday the 27th. November last. The latter steamer was on a voyage to Philadelphia laden with iron ore, and when sighted by the Energie was in a disabled condition, calling for
VOL. XIV.] EXC EQUER)COURT REPORTS. 25 assistance owing to a broken rudder. After exchang- 1 911 ing signals the Energie offered her assistance and agreed s TH to tow the Berwindmoor to Halifax, N.S. ENERGIE For the purposes of this trial the values of the re STEAMSHIP spective steamers, their cargo and freight was by BERW7ND- MoOR. agreement of parties fixed as follows: Reasons for Judgment. The SS. Energie $ 102,000 Her cargo ... 50,000 Freight when earned by delivery of cargo at Konigsberg.. V 21,000 Total.. $' 173,000 The Berwindmoor V 262,500 • Her cargo V V 35,296 Freight when earned by delivery of cargo at Philadelphia 12,583 Total $ 310,379 On the morning , 6f Monday, the 27th November, the Energie at the request of the Berwindmoor, first made lines fast to the bow of the latter ship and attempted to tow her, but owing to the absence of a rudder this method of procedure had to be abandoned, and thereupon the lines from the Energie were made fast to the stern of the Berwindmoor, the latter using her own steam and being towed by the Energie. Two lines were made fast for this operation and the . ships started for Halifax about 11 a.m. on the 27th. Progress was made until Tuesday, about 7.20 p.m., when one of the lines parted and thereafter until Wednesday, the 29th, one line only was used. Before this, . however, to wit, early in the operation of making fast and starting, the Energie had her windlass broken and her bulkhead injured by the strain pulling out an anchor chain to which one line was fast. On Wednesday
26 , EXCHEQUER COURT REPORTS. [VOL. XIV. 1911 ter' night the remaining line parted, and the boats drifted STE T A H M E SH IP until Thursday morning when the Energie again made ENERGIE fast. Once more they parted the line and again ST HEHIP shackled up about 11 a.m. on Thursday the 30th. At BERWIND- this time they were near the entrance to Halifax Har- MOOR. hour (about 13 miles from Chebucto Head) and ready . Reasons for Judgment. to proceed when the agent of the Berwindmoor's owners with the SS. Mackay-Bennett, a cable ship, arrived and put a line over the bow of the Berwindmoor from the Mackay-Bennett and proceeded into Halifax Harbour, the Mackay-Bennett towing and the Energie steering as before. The services of the Energie were salvage services and meritorious. The obvious danger of being adrift 70 miles off Sable Island at the time of the year needs no comment. The weather, though not particularly rough when the towing commenced, became worse. On the night of the 28th a line was parted, and it was deemed prudent to simply hold the vessel that night by one line without making progress.' Rough weather again on the 29th parted the remaining line and lost the Energie's anchor chain. By drifting all that night they were about as far from the mouth of Halifax Harbour on Thursday the 30th as they were on Wed-nesday afternoon, but in a different direction. And with the then prevailing weather conditions I have no doubt, on Thursday, without the aid of a tug or the Mackay-Bennett, the Energie could have brought the Berwindmoor to safe anchorage in Halifax. The only question here is one of amount. The Energie was four days either steering or towing the Berwindmoor. That is to say, she made fast on Monday morning and started at 11 a.m. They anchored in Halifax Harbour on Thursday about 6.30 p.m. During all this time the Energie was rendering effective service—most of
VOL.° XIV.] EXCHEQUER COURT' REPORTS. '27 the time steering,. sometimes breaking away and again 19 11 picking her up; or lying by and shackling up as soon Sm T rv H e E M S. , as conditions permitted lines to be run. The Energie EN vUGIE also suffered considerable damage during the opera- s A M9HIP tions. She lost one anchor chain, a wire hawser, and BERWIND- MOOR. several manilla hawsers. The Port Warden has put a Reasons for value on the chain and hawsers proven to be lost and Judgment. fixes such loss at about $1,650. I accept this as , approximately correct. Besides, the injury to her windlass and bulkhead necessitated repairs in this port to the extent of $1,251.74 The machinists' bills in this connection I am satisfied with as disbursements • rendered necessary solely by injuries received in the act of assisting, and not by any fault or default of the Energie's officers. . Then the Energie was compelled to lay in this port for repairs six and a half days. I do not think she , could have been despatched sooner, as I noticed, to expedite matters, the machinists worked on Sunday; and I find she had reasonable despatch. It would take her one .day at least to regain her position to resume her voyage to Germany. Thus it will be seen the Energie. was detained ,at and by reason of her ser- vices eleven and a half days. She had by reason of this deviation to take in extra coal at Halifax that cost $541, besides paying port charges, pilots,, tugs, &c., in this port and the services of an agent here amounting to about $800. It will be seen that . the owners of the Energie have on account. of the aid rendered been obliged to disburse $4,242, or thereabouts, besides eleven and a half days delay of their ship and conse- quent loss' with the daily outgo necessary to man and victual such a vessel. Considering all the circumstances, the nature of the services, the value of the salved property, the danger
28 , EXCHEQUER COURT REPORTS. [VOL. XIV. 1911 that undoubtedly existed at the time that the Energié STET: Sum fell in with the Berwindmoor, the hazardous under- . EERGTh v. taking and all the attendant circumstances I: am of TH S opinion that the sum of $12,500 is a reasonable allow-BM~~- ance to the salvors—$10,500 to the ship and $2,000 to Reasons for the officers and crew. I will apportion the $2,000 Judgment, before decree on production of the list of officers and crew. RE COMMERCIAL CABLE COMPANY'S CLAIM. The action referred to in the above reasons for judgment and this one were by order consolidated and tried together. I am of opinion no claim can be made for salvage services on account of the Wednesday trip to the Berwindmoor off the mouth of Halifax Harbour. On Wednesday, the day previous to the day upon which the services claimed for were performed, the Mackay-Bennett upon receipt of a wireless message to the effect that the Berwindmoor was off the harbour in a disabled condition, went out to her assistance, but finding her in charge of the Energie and her services having been declined, returned to port. When she went out on Thursday it was an assured arrangement that her line would be taken on board the Berwindmoor and that she should tow, or assist in towing, the vessel into the harbour. I do not think that at the time the Mackay-Bennett was taken out on Thursday by the agent of the owner of the Berwind-moor that the latter vessel could be reasonably said to be in danger. She was some thirteen miles off the mouth of the harbour, or that distance from Chebucto Head, in charge of the Energie. The weather was fine, and, no doubt owing' to the delays on the way caused by the difficulties encountered by the Energie and
VOL. XIV.) EXCHEQUER COURT REPORTS. 29 Berwiiidmoor, the owner was anxious to expedite the ,1.9 11 arrival. The Mackay-Bennett was taken under the circumstances just as a prudent or anxious owner ENE, v „ . "' would reasonably take a powerful tug to hasten the sT én. , arrival. He assured the captain of the Mackay- B ERU Bennett.that his line would be taken and he could tow Réasons for to Halifax, r and went out with that understanding. Judgment. No agreement was made for the services. It is true the Mackay-Bennett assisted a disabled vessel. If it were not for this the services would be mere towage. As it is I think it may be said to be services in the way . of towage, salvage. But the remuneration for what was, to my mind little more than a certain towing engagement in fine 'weather is not the subject for any large allowances Of course I must bear in mind ,that the Mackay-Bennett was a very powerful vessel, equipped as a cable ship with a crew of 83 men, and is not in any sense a tug-boat, and if an owner engages her services, even for towing, owing to her great • strength and equipment, no , ordinary tug 'fee scale would or should apply. I regard the sum of $600 as reasonable compensation for the services rendered, $500 to the owners and $100 to the captain. Judgment in both cases accordingly. o
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.