T-2025-76
Owners, Master and Crew of the vessel Walther
Herwig, being Bundesminister fuer Ernaehrung,
Landwirtschaft and Forsten, Bonn, as a Minister
of the Government of the Federal Republic of
Germany (Owners), and Captain Theodor Fre-
richs, of Hamburg, Federal Republic of Germany,
(Master), for and on behalf of themselves and of
the members of the crew of the vessel Walther
Herwig (Plaintiffs)
v.
Fishery Products Limited and the vessel Zambezi
(Defendants)
Trial Division, Marceau J.—Ottawa, May 16 and
25, 1977.
Maritime law — Salvage — Salvage vessel owned by for
eign government — Whether that owner can claim salvage
award — Whether interest payable on award — Canada
Shipping Act, R.S.C. 1970, c. S-9, s. 531(1).
The owner, master and crew of the Walther Herwig, a
research vessel owned by the West German Government, claim
a salvage reward for salving the vessel Zambezi in 1973. The
defendants, while admitting the entitlement of the master and
crew to their share of the award, deny the entitlement of the
owner to its share. The question of the owner's entitlement, and
a question as to whether interest can be allowed on the awarded
amount, the rate permitted and the period for which interest
should be payable are submitted to the Court for adjudication
in lieu of trial.
Held, the West German Government is entitled to its share,
and interest is allowable from the date of the filing of the
statement of claim, at the lowest prime rate since the time of
salvage. The general rule is that the owner of a ship called upon
to render salvage services is entitled to and has a right to claim
a salvage reward. The defendants rely on the restriction with
respect to salvage services rendered by Canadian ships, and the
doctrine of sovereign immunity. The doctrine of immunity has
nothing to do with the question raised here. There is no reason
why State-owned ships should be excepted from the general
rule and prescribed from claiming a well-deserved and fair
reward in respect of salvage services. Salvors, in principle, are
not allowed any interest since services are rendered voluntarily,
without pre-existing contractual obligations or official duty to
the owner of the salvaged vessel. But if, through no fault of the
salvors, a long delay has occurred between the time of salvage
and the date of the award, that delay may be taken into
account. Since the services occurred three years ago, and in the
absence of evidence about the cause of the delay, interest is
allowed from the date of the filing of the statement of claim.
ADJUDICATION.
COUNSEL:
R. G. Chauvin, Q. C., for plaintiffs.
P. J. Lewis, Q. C., for defendants.
SOLICITORS:
Chauvin, Marler & Baudry, Montreal, for
plaintiffs.
Lewis & Sinnott, St. John's, for defendants.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The plaintiff Bundesminister fuer
Ernaehrung, Landwirtschaft and Forsten, Bonn, as
a Minister of the Government of the Federal
Republic of Germany ("Plaintiff the Bundesminis-
ter") and the defendants in this action have con
curred in stipulating and admitting the facts relat
ing to their dispute herein and in stating the
questions arising in the form of a special case for
adjudication in lieu of trial.
The subject matter of the action is a claim for
salvage reward.
In October 1973, while crossing the Atlantic
Ocean from Norway to Newfoundland, the vessel
Zambezi, property of the defendant company,
became without motive power and in great danger
of being lost. She was then assisted and salved by
the Master and crew of the vessel Walther Herwig,
a fishery research vessel owned by the plaintiff as
Minister of the Government of the Federal Repub
lic of Germany. From October 20 to October 25,
the Walther Herwig towed the Zambezi from
international into Canadian waters and to her
originally intended destination. A salvage reward
was thereafter claimed by the owner of the Walth-
er Herwig, as well as by her Master and crew.
Lengthy negotiations followed but they failed to
bring any positive result. The action was finally
instituted by the Bundesminister and the Master
and crew.
Since the action was launched, the dispute be
tween the parties became simplified. The value of
the salvage services was assessed at $58,050 and it
was agreed that the amount arrived at needed to
be apportioned one third for the Master and crew
and two thirds for the owner. While denying the
right of the Bundesminister to claim any part of
the amount, the defendants admitted that the
Master and crew were entitled to remuneration for
their services. They tendered and brought into
Court the sum of $19,350 as final settlement for
that part of the claim. The Master and crew
accepted the tender without admission that they
were not entitled to interest thereon and without
prejudice to any right or recourse of the owner.
The first question for adjudication is therefore
formulated for the parties in their stated case as
follows:
Whether Plaintiff the Bundesminister, as owner of the vessel
"WALTHER HERWIG", is entitled to a reward, and to judgment
therefor, in respect of the salvage services rendered as hereina-
bove stated, such reward, if he is entitled thereto, needing to be
$38,700.00.
The defendants deny the right of the Bundes-
minister (as owner) to any amount for salvage
services rendered on the ground that the Walther
Herwig being owned by a government and not
being engaged in general trading but rather as a
fishing research vessel, her owner is not entitled to
such an award. By the Comity of Nations, they
say, State-owned ships cannot claim award for
salvage services rendered.
What would be the basis for such an important
exception to the general rule that the owner of a
ship called upon to render salvage services is en
titled to and has a right to claim a salvage reward
(sections 515 et seq. of the Canada Shipping Act,
R.S.C. 1970, c. S-9)? Counsel for the defendants,
as I understood his argument, relies on the overall
picture, so to speak, drawn from the restriction
which existed in England and still exists here
(section 531(1) of the Canada Shipping Act') with
respect to salvage services rendered by ships
belonging to Her Majesty, as well as from the well
known doctrine of sovereign immunity recognized
internationally and specially by our courts. But, I
fail to see how the restriction referred to—which
was abolished in England more than thirty years
ago by the Crown Proceedings Act, 1947, c. 44, s.
8(2)—would be proof of the existence of any
binding rule of international law, and, in my view,
the doctrine of immunity, which concerns the pos
sibility of impleading a foreign sovereign in the
courts of a country, has nothing to do with the
question raised here. I am unable to understand
why State-owned ships should be excepted from
the general rule and precluded from claiming a
well deserved and fair award in respect of salvage
services they have been called upon to render.
My answer to the first question is in the
affirmative.
The second question is:
Whether Plaintiff the Bundesminister is entitled, if he is en
titled to the salvage reward mentioned in the preceding ques
tion, to interest on the said amount of $38,700.00, and if so,
from what date and at what rate.
The right of a salvor to be rewarded for his
salvage services, although formally recognized by
the Canada Shipping Act, is a very peculiar one
governed by traditional admiralty rules. It must be
borne in mind that the services for which the
award is claimed were rendered voluntarily and
531. (1) Where salvage services are rendered by a ship
belonging to Her Majesty, other than a ship specially equipped
with a salvage plant or a tug, or by the commander or crew
thereof, no claim shall be allowed for any loss, damage, or risk
caused to the ship or its stores, tackle, or furniture, or for the
use of any stores or other articles belonging to Her Majesty,
supplied in order to effect those services, or for any other
expense or loss sustained by Her Majesty by reason of that
service, and no claim for salvage services by the commander or
crew, or part of the crew of a ship belonging to Her Majesty
shall be finally adjudicated upon, unless the consent of the
Governor in Council to the prosecution of that claim is proved;
and such consent may be given at any time before final
adjudication.
were not attributable to any pre-existing contrac
tual or official duty owed to the owner of the
salved property. That, in principle, salvors are not
entitled to any allowance for interest is easily
understandable (The "De Bay" (1883) 8 App.
Cas. 559). It is recognized, however, that if,
"through no fault of the salvors there has been a
long interval between the date when the services
terminated and the date when the award is to be
made, such delay would be a matter to be taken
into account" (Kennedy, Civil Salvage, 4th ed., p.
224). On that basis, in view of the fact that the
services were rendered more than three years ago
but in the absence of any evidence as to the cause
of the delay prior to the action, I am prepared to
grant interest from the date of the filing of the
statement of claim, May 27, 1976, at the rate of
8.25% which is, according to the parties them
selves, the minimum "prime rate" charged for
loans by financial institutions to their clients be
tween 1973 and 1977.
As to the third question submitted for adjudica
tion, my answer is that I see no reason why the
plaintiff should not be entitled to his costs in the
present action.
Judgment will go accordingly.
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