372 EXCHEQUER COURT OF CANADA [1959] 1959 BETWEEN: Jan. 8 & 9 OWNER, MASTER AND CREW May 6 OF M/V KETA AND IRON ORE COMPANY OF CANADA APPELLANTS; LIMITED (Plaintiffs) AND THE SHIP IRENE M AND HER CARGO AND FREIGHT RESPONDENTS. (Defendants) Shipping—Salvage—Principles on which salvage is awarded—Value of property saved—Perils of salving ship. In an action for the salvage of the SS. Irene M by the M/V Keta from an icefield in the lower St. Lawrence River, the value of the salved steamer and her cargo was $576,228 and that of the salving motor vessel $150,000. The trial court awarded $6,000 for the salving services rendered which included a reasonable allowance for expenses incurred and such damages, if any, the salving ship may have sustained due to the extraordinary strain on her engines. On an appeal from this decision:
Ex. C.R. EXCHEQUER COURT OF CANADA 373 Held: That in addition to the factors upon which the trial court based 1959 its award, a consideration of the evidence as a whole led to the M/ KETA conclusion that the Keta's master by the use of his ship as an v. improvised ice-breaker had imperilled both his ship and a highly SS. IRENE M profitable charterparty; that the fact that it was found necessary within two weeks thereafter to replace two of her clutches must be attributed, at least in part, to the heavy and continuous strain placed upon the Keta's engines during her manoeuvres to free the Irene M from the ice. The appeal was therefore allowed and the award raised to $12,000. APPEAL in a salvage action by the owners, master and crew and the charterers of the salving ship from the decision of the Honourable Mr. Justice A. I. Smith, District Judge in Admiralty for the Quebec Admiralty District. The appeal was heard by the Honourable Mr. Justice Dumoulin at Quebec. Léopold Langlois for appellant. J. P. A. Gravel, Q.C. for respondent. DUMOULIN J. now (May 6, 1959) delivered the following judgment : This is an appeal from a judgment, rendered June 5, 1958, by the Quebec District Judge in Admiralty, the Honourable Mr. Justice Arthur I. Smith. The owners, master and crew of Motor Vessel Keta, and nominally at least, her charterers, the Iron Ore Company of Canada Ltd., instituted an action for salvage in an amount of $31,150 against the ship Irene M, her cargo and freight. The learned trial judge allowed this claim, on a salvage basis, to the extent of $6,000. From this decision, plaintiffs asserted an appeal for the whole reward prayed for. I conceive of the case and its ensuing problems as raising mainly factual questions which, if accurately solved, would leave but little room for any serious dissent as to the applicable law. I must therefore relate those facts at some length. Salvor ship Keta is a steel screw motor vessel of 456 gross registered tonnage and 368.22 net registered tonnage; measuring 153 feet in length and 27.6 in breadth, equipped with a Diesel engine of 530 h.p. and having a cruising speed of 9 knots per hour. She usually carried a crew of eight. 71114-3-3a
374 EXCHEQUER COURT OF CANADA [1959] 1959 S.S. Irene M, the allegedly salvaged vessel, is a steamer M/V KETA v. of 804 net tons register and at all material times, i.e. SS. IRENE M December 25, 26 and 27, 1956, was freighted with approxi- Dumoulin J. mately 466 tons of heavy mining machinery, partially stowed on deck, and general cargo. On December 13, she weighed anchor in Montreal Harbour bound for Tilt Cove, Newfoundland. On December 17, the Irene M reached Lauzon, a few miles below Quebec, where a persistent run of unfortunate incidents began. Her master and several of the ship's hands deserted; engine trouble broke out, bunkers were allowed to remain depleted due to a shortage of funds, so that she resumed her course down-river at 0630 hours, December 23, in precarious conditions, poorly manned by a makeshift, insufficient crew. A reference to exhibits P-6 (Survey Report of the London Salvage Association) and particularly P-6A, a Survey Report emanating from Messrs. Hayes, Stuart & Co. Ltd., Montreal Marine Surveyors, dated December 31, 1956, bears out these deficiencies. The above experts, at page 4, para. 5, write: 5. Vessel grossly undermanned—crew on board :-4 in engine room, 3 on deck, Master and two Mates, Stewart and Mess boy, a total of 12 men instead of a minimum of at least 17 and a maximum of 21 crew members. Doubly hampered by a lack of hands and of motor fuel, the Irene M was in a sorry condition indeed to weather the severe buffetings of oncoming winter. With the assistance of an ice-breaker, the Irene M reached the neighbourhood of Cape Salmon, east of Rimouski, dropped her pilot, and proceeded on her own poker. This attempt, however, was short-lived; by December 24, at 1420 hours, she encountered ice packs of considerable size, that brought her to a standstill. A temporary let-up facilitated additional headway until the vessel again meeting with ice, early on Christmas morning at 0220 hours, became jammed and developed a bad list of 25 to 30 degrees.
Ex. C.R. EXCHEQUER COURT OF CANADA 375 In the afternoon of December 24, her master radioed 1959 the first of five messages: M/V KETA v. TO SEALAKES SHIPPING CORPORATION, MONTREAL. SS. IRE NE M JAM IN ICE. UNABLE TO PROCEED FURTHER WITHOUT — ASSISTANCE. LONG. 68-29 W; LAT. 48-40 N. MASTER—IRENE M. Dumoulin J. In the forenoon of the 25th, four other calls for help issued, of which the last amounted to an urgent distress request worded thus: SITUATION MORE SERIOUS. SHIP LEAKING AND LISTING. NOW IMPOSSBLE TO PROCEED THROUGH ICE WITHOUT AID OF ICE-BREAKER. KETA STANDING BY ALONGSIDE TO TAKE OFF CREW IF NECESSARY. MASTER—IRENE M. At midday, December 25, the Keta was moored alongside Rimouski wharf, while her owner, Captain Borromée Verreault, was spending the Christmas holiday at his home in Méchins, some 60 miles further down, where these rescue signals were relayed to him. Verreault communicated directly with the Irene M, boarded his ship at 1615 hours, December 25, setting out immediately for the disabled vessel which was reached at 1720 hours. The entry in the Keta's log book (ex. P-9), as she stood by reads: Stand-by. Leaving Rimouski to assist Irene M in distress outside of Ste-Luce. 4 miles. Though not built for ice breaking purposes, the Keta managed to ply through .a sheet of ice, 42 inches thick, opened up a furrow of clear water, gradually relieving the Irene M from the possibility of drifting against the Ste-Luce shoals. On this point, I would again quote from exhibit P-9, the Keta's log book, December 26, at 0115 hours: Commençons à transporter et installer une pompe à gasoline sur le Irene M. avec l'équipage du Keta. Commençons à travailler encore et avancer vers le nord; le vent est 15 m. nord et nous drivons à terre très vite. Nous ne sommes qu'à un mille trois quarts de terre mais progres-sons lentement pour élargir. Irene M. est toujours à court de steam et prend plus de liste. Two hours later, at 0305: Travaillons toujours pour s'éloigner de terre, mais le Irene M. manque souvent de steam et prend plus de bande. Devons retourner souvent pour déprendre le Irene M. The Montreal Marine Surveyors' Report, previously mentioned, at page 4, states that the Irene M ". . . had listed due to approximately 150 tons of slack water in 71 1 1 4-3-3ia
376 EXCHEQUER COURT OF CANADA [1959] 1959 double bottom tanks and ... had encountered difficulty M/V KETA in ice due to failing boiler pressure and resulting in vessel's v. SS. IRENE M speed being as low as 22 knots per hour; the steam pres- Dumaul . J. sure could not be maintained due to vessel being grossly i undermanned." I am satisfied the weight of evidence shows that the Keta's repeated efforts resulted initially in safeguarding the Irene M against a likely contingency of being driven ashore. At 2032, on December 26, when the Government icebreaker N. B. MacLean arrived, in response to emergency calls, both other vessels lay seven miles off-shore well beyond that danger zone. Such is also the finding of the learned trial judge who, at page 3 of his written opinion says: ". . the Keta remained with the Irene M from the time she arrived alongside at 1720 hours on December 25th until 1245 hours on December the 26th, when she left for Father Point due to the illness of her captain, and I am satisfied that, at least during a substantial portion of this time, the Keta did her utmost to free the Irene M from the ice. In fact, the proof is that during this period the Irene M was able, due to the eff j o `o rt r s t s o f the Keta, to progress some four miles in a North-Easterly direction." During the Keta's emergency stop at Father Point wharf, December 26, the Irene M flashed this urgent request: IRENE M IN DANGER. TAKING HEAVY LIST, CALLING FOR KETA RIGHT AWAY. SAYS MAKING WATER IN ENGINE ROOM IN EVERYWHERE. KETA AT THIS WHARF NOW TAKING FUEL. The salvor ship complied and by 2030 hours, again cruised alongside the disabled Irene M, both vessels resuming their route towards Rimouski with the added assistance of the N. B. MacLean. Quoting anew from the decision below: "At 2150 hours, the (three) vessels were abeam of Rimouski, but the draft of the N. B. MacLean prevented her from entering the harbour, so that the Irene M remained outside the harbour's entrance, with the MacLean standing by, until the following morning. The Keta, however, proceeded to Father Point where she spent the night, . returning to Rimouski at about 0700 hours on December the 27th to
Ex. C.R. EXCHEQUER COURT OF CANADA 377 break the ice in the harbour and assist the Irene M to 1959 enter and tie up at the wharf which was eventually M/v KETA accomplished at 1048." v. SS. IRENE M Opening an access to the shelter of Rimouski, an all Dumoulin J. important task which required more than four hours, extended another needed assistance to respondents' ship, and strongly enhances the effectiveness of the Keta's endeavours two days previous. Captain B. Verreault testified the ice surrounding Rimouski Harbour, December 27, was "... very hard, maybe 18 inches thick." Since his ship succeeded in making headway through it she surely achieved some helpful result on the 25th and 26th while contending against floes no thicker than four or five inches. As for the time devoted to these combined salvage operations, it amounted to exactly thirty-nine and one half hours (392). Such are the facts, which led the trial judge to find that: (a) . . . the Irene M was in a position of some danger at the time of, prior to and subsequent to the arrival alongside of the Keta. (b) There was some evidence as to the alleged danger that the Irene M might be carried ashore in her helpless condition by the wind and shifting ice. While this development in the circumstances would appear to have been unlikely unless there had been a considerable change in the force and direction of the wind, it was nevertheless a remote possibility. (c) . . . moreover . . . the Keta rendered services of a beneficial nature. Arriving alongside the crippled vessel at 1720 hours, on December 25th, the Keta remained with the Irene M continuously until she left to go to Father Point on the following day at 1245 hours. During that time the Keta, by breaking the ice around and ahead of the Irene M made it possible for the latter to progress under her own power for a distance of approximately four miles in a North-Easterly direction and away from ashore. (d) That . . . the Keta transferred a pump to the Irene M and assisted her in getting it into operation and when she was not actually attempting to break ice around the crippled vessel, she stood by ready to render all possible assistance and take off the crew should it become necessary to do so, as indeed it might have done. And, lastly: (e) However the following day, December the 27th, the Keta returned to the Irene M and spent about four hours breaking the ice in Rimouski harbour, so that the Irene M was able to dock . . .
378 EXCHEQUER COURT OF CANADA [1959] 1959 With this, I fully agree; the essential elements of M/V KETA salvaging: danger, voluntariness, success, all concur in this v. SS. IxENs M instant case. Dumoulin J. A theoretical definition of salvage is one thing, but another and more complex inquisition alone can afford a practical appreciation of its worth. Kennedy in his classical treatise on Civil Salvage, 4 Ed. 1958, at pages 173 and 174, classifies as follows these material circumstances "... which Dr. Lushington, in his judgment in The Charlotte, calls 'the many and diverse ingredients of a salvage service' .. . A. As regards the salved property: (1) The degree of danger, if any, to human life. (2) The degree of danger to the property. (3) The value of the property as salved. B. As regards the salvors: * * * (3) The degree of danger, if any, to property employed in the salvage service and its value. (4) The time occupied and work done in the performance of the salvage service. (5) Responsibilities incurred in the performance of the salvage service, such, e.g., as ... liability to ... freighters through deviation or delay...." * * * The conclusion, at page 174, reads: Where all or many of these elements are found to exist, or some of them are found to exist in a high degree, a large reward is given; where few of them are found, or they are present only in a low degree, the salvage remuneration awarded is comparatively small. Adverting once more to the decision below, we note a dual statement of facts which, apparently, suggested the measure of salvage reward granted, i.e. $6,000. These highly significant paragraphs are quoted in an inverted sequence with especial emphasis on the second. (a) There is evidence that some weeks after the services were rendered it was found necessary to replace one of the Keta's clutches and it was suggested that this was the result of the heavy strain placed upon the vessel's engines during her manoeuvres to free the Irene M from the ice. The Master
Ex. C.R. EXCHEQUER COURT OF CANADA 379 of the Keta admitted however that between the time at which 1959 the services were rendered to the Irene M and the replacement M/V ~ K J E TA of the damaged clutch, the Keta had navigated in ice and I find v. that the proof is insufficient to justify the conclusion that the SS. IRENE M Keta sustained damage in the course of her efforts on behalf of the Irene M. Dumouli n J. (b) The Master of the Keta admitted in the course of his testimony that the assistance rendered to the Irene M did not involve risk or danger to his vessel or crew. Actually, this appeal wholly depends upon the accurateness of the latter assertion. With utmost deference and after lengthy consideration, I am unable to reconcile my interpretation of Borromée Verreault's evidence on this matter with that of the learned trial judge. The salvor boat may have incurred merely a secondary risk of destruction, but, on the other hand, Verreault's testimony stresses another and likely kind of jeopardy to his vessel, a contingency which we shall see, apart from its ever present potential threat, probably materialized to some extent. Leading up to this point is exhibit P-8, dated October 18, 1956, at Montreal, the M/V Keta's charterparty with Iron Ore Company of Canada, for a three-month period ". . . commencing first half December, 1956, which, as testified to, was continued until April 21, 1957, at a hire price of $525 ... per day commencing on and from the day of her delivery, as aforesaid, and at and after the same rate for any part of a day; hire to continue until the hour of the day of her redelivery ... to the Owners (unless lost) at Seven Islands, P.Q." The -1956-57 season was the second one during which the Keta successfully met the rigorous requirements of wintry navigation between Rimouski and the north shore port of Seven Islands. A duration of 127 days, from December 15, 1956, to April 21, 1957, at a daily rate of $525 would, and did, assure her owner gross returns of $66,675, with, it is reasonable to infer, quite an appreciable margin of net profits. It should be said this vessel, albeit earning her stipulated hire, was not under sailing orders but momentarily idle, when she set out to assist the Irene M.
380 EXCHEQUER COURT OF CANADA [1959] 1959 And now, a close scrutiny of Captain Verreault's exa- M/v TA mination before the Court of first instance must be resorted v. SS. IRENE M to. -- Dumoulin J. Q. Now, Captain, when you first saw the Irene M, do you consider that she was in a position of danger? A. Yes, according to the wind. The ship was stuck in the ice and she can't move at all. She can't go astern or go ahead; she can't do nothing and on account of the winds we had that night [Dec. 25 to 261, I suppose she were in a very bad position. On page 68, second line from top: Q. Now, Captain, what dangers did your vessel encounter during the salvage operation? Do you understand my question? Was your vessel in danger at the time? A. Oh, well, with the Keta alone in that ice, she was not in very big danger unless we had stronger winds. The Keta, however, was not alone in that shifting ice pack, but unceasingly exerting the utmost power to release the Irene M and therefore in constant proximity to her, as explained by this witness. Q. What risk did you take when you went out to get the Irene M out of the ice—what risk? A. I took the risk in breaking my ship that I could be stuck and lose my charter for the winter. If I break my ship in the ice or come into collision with the Irene M., I could break the Keta and lose my charter because at that time of the year it is pretty near impossible to reach a place where we could get repaired because Quebec was closed. Verreault adds that due to heavy ice in the Gulf, he would also have been precluded from bringing his ship into Halifax harboûr. He then goes on to say: A.... we were ahead of the ice and we stopped and that is where there was very great danger for the Irene M to break our stern. We had to be very careful. We had to take the radio telephone and take care of it. Q. You said that there was danger of the Irene M breaking your stern? A. Well, we go ahead and we are stuck and the other ship is coming slowly behind and if we don't capsize and if she doesn't stop very quickly, she could break our stern; and that is where a very great danger for that. A peril of this kind cannot be dismissed as unreal, and on the evidence it is impossible to construe it as an admission that, at no time, was the Keta imperilled.
Ex. C.R. EXCHEQUER COURT OF CANADA 381 We next read, on page 80: 1959 Q. Apart from that risk incurred, was there any other risk that you M/V KETA encountered? Was your ship a light ship or was she loaded? v. SS. IRENE M A. With that ship when she is light, there is always danger to work in the ice on account of the rudder and the propeller because Dumoulin J. the rudder is about level with the water. Now every time we — go astern, we are taking a risk to break it. This possibility of a crushed rudder or a fouled propeller or both in the course of protracted assaults against hardening floes should not be overlooked. It did not escape Verreault's expert consideration, still he nonetheless shouldered the responsibility of jeopardizing a charterparty whose lapse might well have spelled ruination. A few lines above I alluded to an eventuating damage sustained by the Keta in consequence of her unwonted labours as an improvised ice-breaker. The transcript of evidence, at pages 27 and 28, ascribes these explanatory precisions to the salvor's chief engineer, Valère Verreault. Q. Lorsque vous êtes sorti de Rimouski, est-ce que le capitaine du KETA ou son propriétaire vous a donné des ordres spéciaux quant à la manoeuvre? R. Quand on a sorti de Rimouski, j'ai eu les ordres de faire virer le moteur à pleine révolution, tout ce qu'il y avait moyen de le faire tourner. Q. Est-ce que c'est plus que normal, ça? R. Oui, certainement que c'est plus que normal. Q. Est-ce que vos moteurs ont viré très longtemps? R. Ah oui, tout le temps qu'on a été là. Q. A quelle force à peu près ont-ils viré durant ce temps-là, normale ou moins que normale? R. Ils ont viré plus que normal ... parce que la première fois, on tournait 1,600,—on a tourné à 1,800. Q. 1,800 tours? R. Oui. Q. Vous souvenez-vous, à peu près combien de temps par 24 heures vos moteurs ont tourné durant les 25, 26 et 27 décembre . . . quand vous étiez en mer? R. Quand on était en mer ils ont tourné continuellement. Q. Ca veut dire ça, 60 minutes dans l'heure? R. Oui. Q. A peu près quel était l'état de vos moteurs le 27 décembre lorsque vous êtes revenu au quai avec le Irene M, après que le Irene M a été attaché là? R. Le moteur, il a fallu qu'il soit "re-settlé" par rapport qu'il avait trop viré; le "reduction gear" [embrayage de réduction, to which Borromée Verreault will later on refer] avait chauffé par rapport au surplus d'ouvrage qui n'était pas normal.
382 EXCHEQUER COURT OF CANADA [1959] 1959 And lower down that same page 28: M/V KETA Q. . . . Alors vos moteurs ont fourni des efforts considérables? v R. Oui. SS. IRENE M Q. Est-ce qu'ils ont été ébranlés vos moteurs? Dumoulin J. R. Oui. To this should be joined the chief engineer's assertion on pages 29 and 30, that a pathway was opened up for the Irene M. A sequence to overtaxing the Keta's engines and clutching apparatus is described in Borromée Verreault's own words at page 81 of his testimony. A.... the engines had damage into the clutch on account of working all the time back and forth. Those engines are not able to stand for a very long period like that because of the oil that is coming too hot. Q. Now was there extensive damage? A. We had to change the clutches [note the plural number] on the ship two (2) weeks afterwards at Baie Comeau. Q. Do you think it could have been due to this working of the engines when you were off Father Point? A. Part of it was due to that, but we had to work after, for ourselves, after that; but part of it is due to that heavy work we did without any stops at times. Q. And how much is a clutch worth? A. One complete clutch costs two thousand three hundred dollars ($2,300.00) . It would seem the Court of first instance readily enough foresaw the wasting effects of a comparable experience a fortnight later. How then an initial and probably more severe trial could avoid wearing out, partially, the selfsame machinery, two weeks before, is not apparent to my mind. No specified damages are sought on this account, yet I believe a reasonable point has been made which strengthens my determination to increase the salvage reward. The evidence clearly points to manifold and beneficial succour extended the Irene M, as she lay under some impending danger; it now remains to apply norms and criterions of civil salvage germane to this instant set of facts. In the Traveller cases, Sir John Nicholl expressed the following view: "The primary object is the danger of the property saved and its value, and the assistance actually 1(1837) 3 Hagg 370, 371.
Ex. C.R. EXCHEQUER COURT OF CANADA 383 received; the secondary, the risk to the salvors and their 1959 property; the skill, the time employed, and other collateral M/V KETA V. circumstances." SS.IxENE M In the Werra' the President, Sir James Hannen, said: Dumoulin J. "The first thing to be considered is the value of the property saved; by that I do not mean that it is to be taken as absolutely the most important element, but that it is the subject-matter in respect of which the action arises. It is the fund which has to be dealt with ..." Lindley L.J. in his speech in The City of Chester' said: "The first matter for consideration is the nature of the service rendered, the danger from which the one ship has been saved and the danger to which the other ship has been exposed." At page 203, Mr. Justice Lindley continues thus: "Another circumstance to be considered is the importance of so remunerating salvors as to make it worth their while to succour ships in distress ... The salving vessel is often herself exposed to imminent peril; the risk of loss or damage to her is often very great; ..." The Privy Council, in The "De Bay "3, held that an, allowance given by the Court below for the loss of a profitable charterparty was right in point of principle, but that the salvors had failed to prove such a loss. True, the Keta's highly "profitable" charterparty was not lost, but it undeniably ran into a very real hazard of becoming void through injury to the salving vessel's manoeuvring parts, rudder or propeller. The precedents above are at one in appraising risks to the salvors. Such chances may remain pecuniarily unspecified but they nevertheless serve as basic ingredients of the aggregate award. To a more actual peril corresponds a greater recompense. Kennedy, supra, at page 205, writes that: "Just as danger to the property used in effecting a salvage service is considered, according to its degree, in the assessment of the reward, whether damage to the property has, or has not, in fact resulted, so, also, is the hazard or responsibility which the salvor incurs in regard either to pecuniary interests affecting his own property, or to his obligations of 1 (1886) 12 P.D. 52, 53. 2 (1884) 9 P.D. 182 at 202, 203. 3 (1883) 8 App. Cas. 559.
384 EXCHEQUER COURT OF CANADA [1959] 1959 contract or duty to other persons, although fortunately MSV KETA the hazard, or the responsibility, has not eventuated in an v. ss.IRENE M actual loss to him." Dumoulin J. Two unmarked affidavits of value regarding the Irene M's cargo and her own mercantile worth appear in the record. The first was sworn to by Gordon Lennox Moore of Toronto, in his capacity as Treasurer of Maritimes Mining Corporation Limited, shipper "... of certain cargo laden on board the Steamship Irene M, at the time of the alleged salvage service". Paragraph 4 is as follows: 4. That in my opinion the outside value of the said cargo was $476,228.84 of which sum $402,610.00 represented the value of general cargo purchased by Maritimes Mining Corporation Limited and $73,618.84 represented the value of general cargo purchased by its Agent, Foundation Maritime Limited, and no more, and that if the same were compulsorily sold at that time or at the present time, I believe that it would not realize more than the said sum of $476,228.84. In the second affidavit dealing with the ship's value, one W. A. Shaw, Ship-Owner and Operator, Halifax County, is the deponent. He states that: 5. In my opinion the value of the said ship at the time she was arrested in this action was about $100,000.00, and if she were compulsorily sold at that time or at the present time, I believe she would not realize more than the said sum of $100,000.00. 9 It can be properly assumed that the Irene M, and her freight represented an aggregate amount of $576,228.84, when she sent the distress calls with which the salvor vessel complied. The Keta, when purchased for $8,000 (cf. Transcript, p. 91) at a sheriff's sale, lay in Halifax harbour. But, from then on, her owner's uncontradicted statement shows that she underwent extensive repairs, was equipped and provided with up-to-date navigating machines and appliances costing more than $100,000, a breakdown of which will be found in the transcript at pages 88, 89, 90, 91, 92, 93 and 115, this latter concerning a $10,000 reinforcement job at Vickers' Montreal Marine yards in 1955. Whatever the Keta's plight may have been, when bought in Halifax by Captain Verreault, it can't be gainsaid that, from 1954 on, she attained seaworthiness commensurate with the rigours, extremely severe at times, of winter navigation in the Lower St. Lawrence, and this affords a sure test.
Ex. C.R. EXCHEQUER COURT OF CANADA 385 In December, 1955, the Keta carried insurance coverage 1959 in a sum of $150,000. I would be inclined to hold that her M/v KETA mercantile worth at least, when this issue arose, was some- ss. IRE% M thing like $150,000, rather than $100,000 as considered by DumoulinJ. the learned trial judge. The over-all values at stake would — therefore average $726,000. Among several precedents, four Canadian decisions were cited, of which two have some points in common with the case at bar. In re: Humphreys et al and The M/V Florence N° 21, the Honourable Mr. Justice Sidney Smith, District Judge in Admiralty for the British Columbia Admiralty District, held that: 3.... the factors which go to the making of a salvage award are the degree of the danger to the property salved, its value, the effect of the services rendered and whether other services were available; the risks run by the salvors, the length and severity of their efforts, the enterprise and skill displayed, the value and the efficiency of the vessel they used and the risks to which they have been exposed. Such are the governing tenets which the present decision strove to apply throughout. Lastly, and in the guise of a rebuttal to respondents' contention that the Government ice-breaker, N. B. Mac-Lean, performed most of the necessary work, a view unsubstantiated by the evidence, I would quote the Supreme Court's finding in the matter of : Gulf and Lake Navigation Co. Ltd. and M/V Woodford2, more frequently called The Birchton case. The proposition set forth in The Dart3 was applied: If a salvor is employed to complete a salvage and does not, but, without any misconduct on his part, fails after he has performed a beneficial service, he is entitled also to salvage award. The Supreme Court of Canada concluded: If the trial judge had not considered himself bound by what he wrongly conceived to be the applicable principle he would have allowed more than the $12,000 fixed by him. The Birchton appeal was allowed and the amount increased to $20,000. It will be remembered, of course, that not only did the Keta "complete the salvage" permitting of an entry and safe mooring in Rimouski Harbour, but that she initiated 1 [1948] Ex. C.R. 426, 434. 2 [1955] S.C.R. 829. 3 (1899) 8 Asp. M.L.C. 481 at 483.
386 EXCHEQUER COURT OF CANADA [1959] 1959 salvage operations on December 25, stood alongside the M/V KETA disabled Irene M to extend further assistance as circum- sS.IRENE M stances might require, beneficially contributing to extricate the badly crippled vessel out of her predicament. And Dumoulin J. during the entire span of 392 hours, the salvor laboured under a constant risk of damage which, had it accrued, would have entailed for her owners dire consequences indeed. For the above reasons the salvage award should be raised from $6,000 to $12,000. Therefore, this appeal will be allowed with costs, and in lieu of the decree below, judgment should go for the appellants in the sum of $12,000, and costs. Judgment accordingly. Smith, D.J.A.: On December 24, however, the This is an action for salvage by Irene M encountered considerable the owners, master and crew of ice which became so heavy at about the M/V Keta against the ship 1420 hours as to make it impossible Irene M, her cargo and freight. for the vessel to proceed. Condi- The alleged salvage services were tions appear to have later improved rendered in the month of Decem- so that at 0008 hours on December ber 1956, in the St. Lawrence River, 25, the Irene M was steaming near St. Luce and Rimouski. full ahead. Later however (around The proof is that the Irene M, 0220 hours) the vessel became a steamship of 804 net tons register jammed in heav y ice and devel- with about 466 tons of general cargo, including heavy mining oped a bad list at about 0772 machinery, some of which was hours, she then being four miles stowed on deck, left Montreal on off shore from St. Luce. A radio December 13, bound for Tilt Cove, message was sent advising that the Newfoundland. ship was leaking and required the The Irene M proceeded to services of an ice-breaker. The Lauzon where she arrived on proof shows that thereafter during December 17 and where certain the forenoon of the 25th the engine repairs or adjustments were Irene M radioed various appeals for effected. She left Lauzon at 0630 assistance amongst which were the hours on December 23, and with following addressed to the Depart-the assistance of an ice-breaker ment of Transport, at Quebec; at proceeded down-river almost as far 1317 hours "Ship leaking badly and as Cape Salmon, where her pilot and the ice-breaker left her, it being taking heavy list, need assistance considered that the channel was immediately" and at 1420 hours sufficiently free of ice to permit "We are stuck in ice and unable to the vessel to proceed without do anything without assistance". At further assistance. 1601 hours the following message
Ex. C.R. EXCHEQUER COURT OF CANADA was sent to Sealakes Shipping Cor- the Irene M poration, Montreal, as follows:— the proof is that during this period "Ship leaking badly and taking the heavy list, need assistance immedi- efforts of the ately". It appears that the Irene's requests for assistance were relayed to those in charge of the Keta, which at that time was tied up at Father Point) the Rimouski, and that the Keta, after following message to Sealakes Ship-conferring direct with the Irene M, ping Corporation:—"Situation more left Rimouski at 1615 hours on serious, ship leaking and listing December 25 and proceeded to the more, impossible to proceed through Irene M arriving alongside at 1720 ice without aid of an ice-breaker. hours. The Keta is a steel screw motor- take off crew, if necessary". vessel of 456 GRT tons and 368 NRT; 153 feet in length and 27.6 of the feet in breadth. She is proved by on board the Diesel engine of about 530 horse- alarmed at her position as a result power and carried a crew of eight; her value appears to have been crew accordingly were put to work approximately $100,000.00. The evidence is that when the were also made to launch the life-Keta came alongside the Irene M, the latter had a list of from 22° to do so due to the fact that every-to 25° and was completely sur-thing was frozen and the following rounded by ice and unable to message was sent to the move. The two masters conferred Father Point: after which the Keta proceeded to taking heavy list, calling for Keta break the ice around the Irene M. There is some conflict in the testi mony as to whether the Keta con- at this wharf now taking fuel". tinned her efforts to break ice throughout the ensuing night or ice-breaker whether she merely stood by, The proof shows that at one ceeded to break the ice around and stage a line was put aboard the ahead of the crippled vessel, with Irene M and that the Keta trans- the result that she was able to ferred a gasoline pump to the follow the ice-breaker at slow speed Irene M and assisted her in instal- with the ling it and getting it into operation. hours, the vessels were abeam of The weight of the evidence Rimouski, but the draft of the indicates moreover that the Keta N. B. MacLean prevented her from remained with the Irene M from entering the harbour, so that the the time she arrived alongside at 1720 hours on December 25 until 1245 hours on December 26, when ing morning. The she left for Father Point due to proceeded to Father Point where the illness of her Captain, and I she spent the night, returning to am satisfied that, at least during Rimouski at about 0700 hours on a substantial portion of this time, December 27 to break the ice in the Keta did her utmost to free the harbour and assist the Irene M 387 from the ice. In fact, 1959 M/V KETA Irene M was able, due to the V. Keta, to progress of SS. IRENE M some four miles in a north-easterly Smith direction. D.JA. At 1240 hours on December 26 (the Keta at that time being at Irene M sent the The Keta standing by alongside to It appears that during the absence Keta at Father Point those Irene M became of an increase in her list and her shifting her deck cargo. Efforts boats, but it was found impossible Keta, at "Irene M in danger, right away. Says making water in engine-room in everywhere. Keta At 2032 on December 26, the N. B. MacLean arrived alongside the Irene M and pro- Keta trailing. At 2150 Irene M remained outside the harbour's entrance, with the Mac-Lean standing by, until the follow-Keta however
388 EXCHEQUER COURT OF CANADA [1959] 1959 to enter and tie up at the wharf by breaking the ice around and K TA which was eventually accomplished ahead of the Irene M made it pos- M/V E y at 1048. sible for the latter to progress SS. IRENE M It appears that, contrary to what under her own power for a distance those in charge of the Irene M of approximately four miles in a Smith D.J.A. apprehended, she was not leaking, north-easterly direction and away her list being due rather to the from shore. Moreover, the Keta fact that she had 150 tons of slack transferred a pump to the Irene M water in her bilges and on her and assisted her in getting it into tank tops. operation and when she was not I am convinced nevertheless that actually attempting to break ice the Irene M was in a position of around the crippled vessel she some danger at the time of, prior stood by ready to render all possible to and subsequent to the arrival assistance and take off the crew alongside of the Keta. Not only should it become necessary to do was she incapable of freeing herself so, as indeed it might have done. from the ice that surrounded her, It is true that on December 26, but her heavy list, particularly when heavier ice was encountered, having regard to the nature and the Keta was unable to make much, quantity of her deck cargo, consist- if any, progress and that from ing in part of heavy machinery, 1245 hours when she left to go to justified the fears of her Master Father Point until the following that she might capsize. Moreover, morning, she rendered no assistance, the Irene M was considerably the N. B. MacLean having taken u co n u d l e d r m no a t n m n a e i d n t a a n in d s f u o f r f i s c o ie m n e t s r t e e a a s m o n over. However the following day, to enable her to make more than December 27, the Keta returned a fraction of her normal speed. to the Irene` M and spent about There was some evidence as to the four hours breaking the ice in alleged danger that the Irene M Rimouski Harbour, so that the might be carried ashore in her Irene M was able to dock at Ri-helpless condition by the wind and mouski wharf at 1048. shifting ice while this development I am of the opinion that the in the circumstances would appear services rendered by the Keta, at to have been unlikely unless there the request of those in charge of had been a considerable change in the Irene M, were in the nature of the force and direction of the wind, it was nevertheless a remote possi- salvage services and that the Keta bility. The conclusion therefore is is entitled to be rewarded on that that having regard to all of the basis. circumstances the Irene M was in It is always a matter of some a position of some danger prior to difficulty to determine the amount and subsequent to the arrival along- which, in the particular circum- side of the Keta. stances of each case of this nature, I am satisfied, moreover, that should be awarded. It is unneces-the Keta rendered services of a sary to set out here the various beneficial nature. Arriving along- elements, which the courts have side the crippled vessel at 1720 long recognized, should be con-hours on December 25, the Keta sidered in determining the amount remained with the Irene M continu- to be granted in such cases. ously until she left to go to Father (Kennedy—The Law of Civil Sal-Point on the following day at 1245 vage, 2nd Edit. pages 129, 130 and hours. During that time the Keta 133).
Ex. C.R. EXCHEQUER COURT OF CANADA The Master of the Keta admitted value, plus expenses. In the case in the course of his testimony that of the the assistance rendered to the $20,000.00, the court awarded the Irene M did not involve risk or sum of $2,000.00, plus expenses for Ss.IRE danger to his vessel or crew. There is evidence that some standing-by in circumstances some- Smith weeks after the services were rendered it was found necessary to case, but extending over a period replace one of the Keta's clutches of more than 10 days. Moreover, and it was suggested that this was the salving vessel in that case was the result of the heavy strain placed specially equipped to render salvage upon the vessel's engines during services and it is well recognized her manoeuvres to free the Irene M from the ice. The Master of the is granted at a higher rate than Keta admitted however that be- would be the case of a vessel not tween the time at which the services so equipped. were rendered to the Irene M and the replacement of the damaged although the value of the salvaged clutch, the Keta had navigated in property is an element to be con-ice and I find that the proof is in- sidered in determining the amount sufficient to justify the conclusion of salvage to be awarded, this value that the Keta sustained damage in should not be accorded such im-the course of her efforts on behalf portance as to result in the award of the Irene M. Of the numerous decisions which services actually rendered. were cited I propose to mention only two which, in particular, were relied upon by counsel for the plain- tiffs in support of his argument that extent to be affected by the value the award should be generous 'hav- of the property salved, it must not ing regard to the comparatively be raised to an amount altogether high value of the Irene M and her out of proportion to the services cargo. The first of these is the case of the Woodford', in which the the out-of-pocket expenses incurred salvors were awarded the sum of $20,000.00 plus damage to the b salving vessel and expenses amount- of the cases and careful considera- ing to $2,199.82. It is necessary to point out however that the Wood- ford, which had been dangerously the sum of $6,000.00 constitutes a holed as the result of a collision fair and just reward for the salvage and was taking water badly, was services rendered, including a held to have been in a position of reasonable allowance for expenses considerable danger and that the incurred and such damages, if any, salvage services rendered involved as the risk to the salving vessel and due to extraordinary strain upon her danger to her cargo. Moreover, the engines. combined value of the Woodford and her cargo amounted to more terest and costs. than $2,000,000.00, so that the award represented one percent of salved 1[1955] S.C.R. 829. 71114-3-4a 389 1959 Seneca, whose value was M/ V KETA v. NE M services, comprising towing and — what similar to those of the present D.JA. that in such circumstances salvage It is well established that, of salvage disproportionate to the Amerique2 Although the quantum of re- muneration to salvors is to some actually rendered. No proof was made in regard to Keta in rendering the said s y er t v h ic e e s. However, after a review tion of all of the circumstances, I have reached the conclusion that Keta may have sustained Judgment for $6,000.00 plus in- Judgment accordingly. 21 L.R. 6 P.C. 465.
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.