Ex. C.R.] EXCHEQUER COURT OF CANADA 181 ON APPEAL FROM THE NOVA SCOTIA ADMIRALTY DISTRICT 1938 BETWEEN: June 7 & 8. THE MOTOR YACHT DR. BRINK-1 1939 LEY II (D I APPELLANT; March 2l. EFENDANT) AND THE OWNER, MASTER AND MEM- 1 BERS OF THE MOTOR VESSEL. RESPONDENTS. SHANALIAN (P LAINTIFFS) ,Shipping—Appeal from District Judge in Admiralty—Limitation of right of master to bind owner of vessel—Services rendered pursuant to contract—Services not in nature of salvage—Time for appealing from judgment rendered in Admiralty Court—Admiralty Rule 172—Appeal allowed. Appellant yacht, United States Registry, while on a cruise from Galveston, Texas, to Nova Scotia, stranded on the coast of Nova Scotia. The owner of appellant yacht refused an offer made by the master of the respondent vessel to haul the yacht off the shore. He also instructed the master of the Dr. Brinkley II that he was not to employ any tow boat that day. Later, on the same day, the managing owner of respondent vessel offered to tow the yacht off, and look to the hull underwriters for his compensation, and not to the yacht itself, or her owner. The master of the Dr. Brinkley II accepted this offer. Unknown to either the owner or the master of the Dr. Brinkley II the policy of insurance did not cover her while in Canadian Atlantic waters. 'The yacht was floated easily at high tide and was towed to Yarmouth, N.S., by respondent vessel. No demand for payment was made on the owner or the master of the Dr. Brinkley II while at Yarmouth, nor prior to her departure from Yarmouth two days later. The trial judge found that the Dr. Brinkley II was in distress and danger, that the services rendered by the respondent vessel were voluntary and in the nature of salvage, and he awarded compensation to respondents. On appeal the Court found that appellant yacht was not, at the time the services were rendered, in any imminent danger or distress. Held: That the owner of appellant yacht was justified in preferring his own means of releasing the yacht and any services rendered by respondent vessel were not in the nature of salvage. 2. That the master of a ship cannot bind her owner in any transaction concerning the ship, when the owner is on the ship or easily accessible. 3. That the agreement entered into between the master of appellant and the master of respondent vessel was for the assistance of respondent vessel in releasing the appellant on certain definite terms, and cannot be interpreted as conceding the right of salvage against appellant or her owner, with the insurance company acting as arbitrator in fixing the amount of salvage. 4. That the time for appealing in any matter being an action, from a judgment or order in Admiralty, runs from the date the judgment or order is perfected and not from the time when it is decided or pronounced.
182 EXCHEQUER COURT OF CANADA [1939 1939 APPEAL from the decision of the District Judge in Mona Admiralty for the Nova Scotia Admiralty District, allow_ Dr.Brinkley ing respondents' action for compensation for salvage ser- II v. vices. MoTox The appeal was heard before the Honourable Mr. Jus- VES6EL Shanahan. ti ce Maclean, President of the Court, at Halifax, N.S. Maclean J. W. H. Jost for appellant. D. J. Fraser for respondents. The facts and questions .of law raised are stated in the reasons for judgment. THE PRESIDENT, now (March 21, 1939) delivered the following judgment: This is an appeal from the judgment of Mr. Justice Carroll, District Judge in Admiralty for the Nova Scotia Admiralty District, in an action for salvage, brought by the owner and master and crew of the motor vessel Shanahan against the American registered motor yacht Dr. Brinkley II, a vessel of 211 tons, and about 120 feet in length, and hereafter to be referred to as the Brinkley. The Brinkley was owned entirely by one Dr. John R. Brinkley, an American citizen, who was on. board his yacht, on a cruise starting from Galveston, Texas, to Nova Scotia. Her last American port of departure was Ports-mouth, New Hampshire, bound for Halifax, N.S. On Sunday, the last day of June, 1935, at 9.15 in the morning, on approaching the coast of Nova Scotia during a dense fog the Brinkley ran ashore, at Chebougue Point, some five or six miles from the Town of Yarmouth, N.S.; she was released therefrom about twelve hours thereafter in the circumstances soon to be related. The evidence on behalf of the appellant was heard by the late Mr. Justice Mellish, then the District Judge in Admiralty for the District of Nova Scotia. The evidence on behalf of the respondents was heard some three or four months later by Carroll D.J.A., and this appeal is from his judgment rendered in the action. The Brinkley went ashore in a hospitable spot, on an otherwise rocky shore line, a spot that was the scene of the stranding of a steamer, some twenty years earlier, whose release required the blasting and removal of rocks which thus made the locus favourable for the stranding
Ex. C.R.] EXCHEQUER COURT OF CANADA 183 o f the Brinkley. The Brinkley went ashore very lightly 1939 on a receding tide, and just at the moment of stranding MoToa S he was going full speed astern on both her engines. YACHT Ur. Brinkley After grounding, the Brinkley put out. two bow anchors, • u one on each side, and had them carried pretty well to M T oa the stern, and fastened behind the largest rocks that could v S iess EL hana laan. be found there, the anchor chains being attached to a windlass on board; this would tend to lighten the yacht MaeleanJ. forward, prevent her going further up on the shore at high tide, and it was expected that the disposition of the anchors would assist in floating her under an astern propellor movement, when the time came to do so. On the full recession of the tide—the fall and rise of tide being usually great in those parts—the Brinkley was soon high and dry, with a pronounced starboard list. It was not till about 9.15 p.m. on the evening of the same day that the Brinkley was floated, on a rising tide, with the assistance of the motor vessel Shanalian, such assistance occupying but a few minutes, probably less than five minutes. The Shanalian was not in any danger in rendering the assistance, and it is agreed that the release of the Brinkley was readily and easily accomplished. It was even suggested by the appellant that the Shanalian did not exert any pull at all in floating the Brinkley off the strand, and that she came off under her own power. While there may be some doubt as to the degree of assistance rendered by the Shanalian yet she had a tow line on the Brinkley and, I think, it will have to be assumed that she did render some assistance. A Mr. Purney, a Lloyd's Agent, resident at Yarmouth, appeared on the scene around noon, a few hours after the stranding; and also Brannan, the master of the Shan-alian, the latter having been sent there by his managing owner, for the purpose of putting his boat at the disposal of the stranded yacht, if required. Purney soon engaged in conversation with Dr. Brinkley, and this resulted in Purney asking Brannan what he would charge to "jerk" the yacht off at high tide, and Brannan replied that he would charge $1,000. This was communicated to Dr. Brinkley_ and he there and then declined to pay such an amount, for such a service. Some unidentified person at this time informed Dr. Brinkley that the high tide in the evening would be greater by three feet than it was when
184 EXCHEQUER COURT OF CANADA [1930 1939 the Brinkley grounded, and this may have influenced Dr. MOTOR Brinkley in concluding that his yacht would readily float YACHT Dr. Brinkley off at the evening high tide, under her own power. In II the afternoon Dr. Brinkley, who in the meanwhile had Moa motored to Yarmouth and back, informed the master of VESSEL Shanahan. his yacht that he was not to employ any tow boat that day, and, if the yacht failed to float off with the next Maclean J. high tide, he hoped to get the services of some Canadian Government boat, through a Mr. Kinney at Yarmouth, whom he had in the meanwhile met; in fact some such boat did tow his yacht out of her dock at Yarmouth on her departure for Halifax, on the following Tuesday. Later in the afternoon Dr. Brinkley motored to Yar-mouth where he remained, as I understand the evidence, until the next morning. He apparently was strongly of the opinion that there would be no difficulty in floating his yacht, by her own exertions, at the high tide on Sunday evening, and if this did not prove successful he would then have to consider the matter of procuring or hiring the services of some tug, for the next high tide. He seems to have definitely concluded that he would not consider a payment of $1,000, and there is no doubt, I think, but that his instructions to his master were clear and explicit upon this point, and the master himself appears to have been indignant that in the circumstances of the case any such sum as $1,000 should be demanded for what he deemed to be a very slight service. Nothing of importance thereafter transpired until shortly after or around 8 p.m. on Sunday evening, just before dark, when the Shanahan appeared on the scene, just as the tide was beginning to rise, but not at the request of the master or owner of the Brinkley. The master of the Brinkley observing this vessel, and thinking she might be a United States coastguard boat whose aid the yacht had requested by wireless just at the time of the stranding, or a Canadian Government owned boat, sent a launch with two of his crew to this then unknown vessel, which turned out to be the Shanahan. The managing owner of the Shanahan, a Mr. Sweeney, came ashore in the launch to the side of the stranded yacht, but the master, Brannan, I think, remained on his boat. Then some conversation ensued between the master of the Brinkley and Sweeney regarding the towing off of the Brinkley. Sweeney stated
Ex. C.R.] EXCHEQUER COURT OF CANADA 185 that he would tow the Brinkley off for $1,000, which pr&-L939 posai the master of the Brinkley refused to entertain. Admit Then Sweeney stated that he would tow the yacht off YA Dr C . B H rin T k ley and would look to the hull underwriters for his compensa-ii tion, and not to the yacht itself, or her owner. To make Moroi sure about his understanding of this proposal the master vEsSEL Shanalxta n. of the Brinkley then called around him most everybody on board the yacht, and requested Sweeney to repeat his Maclean J. proposal; that is, to tow the yacht off the shore, and to look only to the insurers for payment of his services, and this was done. There is no conflict of evidence upon this point, and it is beyond controversy, in my opinion, that the managing owner of the Shanalian agreed to perform the services without any liability for compensation on the part of the yacht, or her owner. Both Sweeney and Brannan stated in their evidence that this was the arrangement, and with this the learned trial judge agreed, as I do. The proffered service being put on this basis the master of the Brinkley decided to accept the same, though contrary to the instructions of Dr. Brinkley. The master of the Brinkley does not appear to have given any reasons for this decision, and we need not speculate as to it. The master of the Brinkley, when all was in readiness for the start of the tow, told his crew to start heaving on the anchors, and he started his port engine at full speed astern, and in three or four minutes, in less than half her length, the Brinkley was afloat. It was the opinion of the pilot, McKinnon, who was retained on Sunday to accompany the Brinkley on the balance of her Nova Scotia cruise, that she would float off about a half hour before high tide. The evidence of McKinnon impresses me, and he was a person with a knowledge of the local situation and one who had an extensive experience in salvage matters. I think it is probable that the Brinkley would have floated when McKinnon said she would, and this may well have been entertained as a probability by the managing owner of the Shanalian, and it may have been the reason which induced him in the end to venture into the gamble of looking to the insurers, if the services of his boat were accepted. There seems to have been no difficulty in floating the yacht; and the Shanalian towed her to Yarmouth, reaching there at 11.30 p.m. Why she was towed to Yarmouth was not clearly explained. No bill was ever rendered the owner or the master of the
186 EXCHEQUER COURT OF CANADA 1939 Brinkley while at Yarmouth, nor was any demand of any MOTOR kind made by the managing owner of the YACHT Dr. Brinkley to th e departure of the ll day, at about 11.50 a.m. Dr. Brinkley was in Yarmouth MaroR when his yacht floated, on all of Monday, and on Tues-VEssEr, day until the hour of his departure therefrom. Shanalian. I should explain that while the Maclean J. i n quite a large amount yet it transpired that the did not cover her while in Canadian Atlantic waters, but neither the owner nor master of the of this, and the master I have no doubt was in good faith if he led the managing owner of the Shanalian ing that the policy of insurance covered his ship while in Canadian waters. That likely would be assumed and probably no words passed between them upon the point. The case is an unusual one and not free from difficulties, and in some respects it is one of no little interest. Carroll D.J.A., found the danger, that the services rendered were voluntary and in the nature of salvage, and he awarded compensation in the sum of $600. If the I should not feel justified in disturbing the award of the learned trial judge, and the amount of the award was not, so far as I recall, stressed as a ground of appeal. The appellant contended before me that the not a ship in danger or distress, in the practical sense at the material time, and that any services rendered were not in the nature of salvage. The important ground of appeal raised before me was that the master of the Brinkley could not bind the salvage services, or anything else, on the ground that a master cannot bind his ship or her owner when the latter is on board, or readily available to anyone desirous of any dealings relating to the ship. A principle of importance is therefore raised. It was also urged, in the alternative, that if any contract were made between the master of the Brinkley and the managing owner of the and such contract were binding upon the owner, it was an express term of the contract that the Shanalian would not hold the for any services rendered, but would take the risk of recovering compensation from the insurers of the ley, and this being the essence of the contract it was [1939 Shanalia n p r Brinkle ior y from Yar m outh on T T u es- Brinkley was insured policy Brinkley was aware into believBrinkley was in distress and Shanalian is entitled to salvage Brinkley was Brinkley or her owner for Shanalian, Brinkley or her Brinkley or her owner liable Brink-
Ex C.R.] EXCHEQUER COURT OF CANADA 187 immaterial whether in fact the Brinkley were covered, 1939 w hile in Canadian waters, by her insurance policy. MOTOR The question. as to whether or not the Brinkley was YACHT Dr. Brinkley in danger or distress, at the time the services were ren- d ere,d by the Shanahan, is one to which I have given MôToR anxious consideration. The conclusion, which I have Sh V a E ss 'L na ha n. reached, is that the Brinkley, at the time the services in question were rendered, was not in any imminent Maclean J. danger or distress, and, I think, all the circumstances of the case support this conclusion. I have in mind, of course, a time limitation, and the locality, the season of the year, and the actual and probable weather condi- tions. I, do not think the Brinkley, in the practical sense, was in danger, or that her situation was so critical as to make it unreasonable for her owner, or master, to decide upon an attempt to float the ship by her own means at high tide, before seeking or accepting the assistance of a tug. It does not necessarily follow that because a ship is stranded that she is in danger, particularly a ship with, out a cargo. Doubtless, a stranded ship would be safer afloat, but that does not determine that the towing of her off the strand would be in the nature of a salvage opera- tion. It was quite within the right of the owner, I think, at the time in question here, to prefer his own means of releasing the Brinkley, and in rejecting the services of the Shanalian, if her aid in his judgment were not urgent, and if in all the circumstances he did not regard his ship in immediate danger. I cannot reach the conclusion that in all the facts of the case the Brinkley was in danger when the services in question were rendered, or even the next day, and beyond that there is no evidence. There was no sea or wind at the time material that was alarming, and there is no evidence that any storm of any kind was imminent or predicted. In fact, whatever evi- dence there is goes to show that on Monday the weather conditions were not unfavourable. To say that a dis- turbance in sea or wind might occur at any time is not relevant. I think the owner of the Brinkley was justified in taking the risk he did, if risk it were, and that any services rendered by the Shanahan were not in the nature of salvage. The facts in the case of The Pretoria (1), offer a somewhat comparable situation. (1) (1920) 5 Lloyds List L.R. 112.
188 EXCHEQUER COURT OF CANADA [1939 1939 I was referred to the case of The Auguste Legembre MOTOR (1). The question for decision there was under what YACHT Dr. Brinkley circumstances a tug employed by a salving tug, again s t H the will of the master of the salved vessel, can claim a Mar oR salvage reward. That was the principal point hi issue, VESSEL but, I think, it has no application here. In that case eanalian. there were grounds for holding that the third tug was Maclean J. necessary because she was called into service by a second tug already engaged in a salving operation, and the case was decided upon practical considerations. I do not think that the case of The Auguste Legembre establishes any such principle that because a ship is stranded the master must accept any salvage services offered her, and that he has no right to refuse the same. Gorrell Barnes J., i n that case, said that the case he was dealing with involved the nautical question, whether having regard to the circumstances of the case, and what might have been anticipated at that time of year, and in that locality, it was reasonably prudent and necessary to have a third tug, and the Elder Brethern thought it was, and Gorrell Barnes J. thought it was a reasonable thing to do, and accordingly asalvage award was allowed the third tug. I come now to the question of law raised by the appellant. Clear of authority altogether, the principle that a master of a ship cannot bind her owner in any transaction concerning the ship, when the owner is on the ship or readily accessible, would seem to be a sound and safe one, and one founded on reason. The contrary principle would appear to be an unreasonable and dangerous one, and in practice, it is the managing owner who makes all decisions affecting a ship when in her home port, and not the master, though I can conceive of possible exceptions, in very urgent circumstances, when agency might even then be implied. Generally, there is no room for the application of the doctrine of agency when a ship is in her home port, or when the owner accompanies his ship, and is readily available. Dr. Brinkley may be treated as always being on board his yacht. He was at least, at the time material here, available to anybody. Here we have the sole owner of a stranded yacht making the decision that an attempt should be made to float her by her own (1) (1902) P. 123.
Ex. C.R.] EXCHEQUER COURT OF CANADA 189 means, at the evening high tide of Sunday, June 30th, 1939 and that the hiring of any tug should in the meanwhile mama be postponed, and he so instructed his master. The decision Dr B t , of the owner to attempt to float his ship by her own exer-11 tions was within his right. The managing owner of the MôToo Shanalian was no doubt aware that Dr. Brinkley had re- Shan y c a t B lx Z an . fused on Sunday forenoon to accept the services of his — tug, upon the terms already stated, and the same offer Maclean J. was refused on Sunday evening by th'e master of the Brinkley. The managing owner and master of the Shan-aliaa were aware that Dr. Brinkley was accessible to them at the scene of the stranding, or at his hotel in the Town of Yarmouth. In fact, both had called to see him at his hotel in Yarmouth sometime before proceeding to the stranding on Sunday evening. He happened not to be in at the time, and they made no further effort to locate him. I cannot conceive of it being a difficult thing to locate him if they had seriously attempted to do so. Dr. Brinkley was dealing with his own property and in all the circumstances of the case, I do not think the plaintiffs can be heard to say what was his duty in respect of his own property. Turning now to the authorities. The general rule is that the master of a ship by law has the power to bind the owner in conducting the navigation of the ship to a favourable termination, and he has, as incident to that employment, a right to bind his owner for all that is necessary, but, as was said by Parke B. in Beldon v. Camp-bell (1), " these instances do not apply where the owner of the vessel is living so near the spot as to be conveniently communicated with. In that case before the master has any right to make the owner a debtor to a third person, he must consult him, and see whether he is willing to be made a debtor or whether he will refuse to pay the money." The case of Gunn v. Roberts (2) affirmed the same principle. This rule seems to have been favoured by Dr. Lushington in the case of The Elise (3), wherein he said that a master might make a binding agreement on land as at sea as agent for the crew to bind them by agreement in respect of salvage compensation, but not, he (1) (1851) 6 Ex. R. 886 at 890. (2) (1874) 9 L.R.C.P. 331. (3) (1859) 166 Eng. R. at 1206.
190 EXCHEQUER COURT OF CANADA [1939 1939 thought, where the owner was at hand and had given him MOTOR no authority. The point is discussed in Halsbury (1) in Dr . ri nkley the following language: " The owner of the salved ship is II generally bound by a salvage agreement entered into by mv o;c. the master, the latter having an implied authority to bind VESSEL his owner for all that is reasonably necessary for the Shanahan. successful navigation of the ship. But the shipowner is Maclean J. not bound by it where he was easily accessible and gav e no authority to the master to enter into it, or where in the circumstances the agreement was not reasonably necessary, or where the terms of the agreement show that it is not for the benefit of the shipowner . . . ." I come now to the alternative ground upon which the appeal was put to me. If an agreement were made between the master of the Brinkley and the managing owner of the Shanalian it was an express term of that agreement that neither the Brinkley nor her owner was to be liable for any services proposed to be rendered, the managing owner of the Shanalian having elected to take the risk of recovering any compensation from the insurers of the Brinkley. It was upon that express term that the Shanalian was permitted to put a line on board the Brinkley. That fact is, I think clearly established. It was not, I think, the agreement that a right to salvage compensation was conceded as against the Brinkley or her owner, and that the insurance company was to act as an arbitrator in fixing the amount of salvage, as was suggested. The master of the Brinkley carefully and deliberately made sure that the suggestion of the managing owner of the Shanalian was that neither the Brinkley nor her owner was to be liable for compensation, and his reason for this exactness probably was that he had been instructed by the owner not to engage the services of a tug at all, at least on the day in question. I do not think there is any room for doubt but that was the agreement or arrangement reached, and it was the suggestion of the managing owner of the Shan-alian. I do not think it avails the respondents in a salvage action that it transpired that the insurance on the hull of the Brinkley did not cover her while in Canadian waters. If I should be in error in the opinions already expressed in the case, I think this point is of itself fatal to the case of the respondents. (1) 1st Ed. Vol. 26, p. 572.
Ex. C.R.] EXCHEQUER COURT OF CANADA 191 The towage from the scene of the stranding to Yar-1939 mouth, after the release of the Brinkley, seems to have Moron been treated at the trial as part of the salvage services, YncaT Dr. Br inkley and the action was disposed of on that footing. I think II it is now too late to dispose of that portion of the services M OTOR as one of towage—concerning which there is no evidence,— VESS and the balance as salvage services, which I understood Sh,ana n . — to be suggested to me on the appeal .by counsel for the Maclean J. respondents; however I may be in error as to this. The towage to Yarmouth apparently was included within the service to be rendered by the Shanalian, on the terms which I have already stated. In any event the action was one for salvage and I do not see how I can now convert any portion of the services rendered into one for towage, even if the agreement did not stand in the way. There remains for discussion one further point. There was raised on behalf of the respondents the preliminary objection that notice of this appeal was not served in time. The decision of the learned trial judge in this action was filed with the District Registrar, on February 18th, 1938, but no entry of the same was made at the time in any book of record. On March 22nd, following, a decree was taken out before the learned trial judge and this was thereupon filed in the Office of the District Registrar, and entered in the appropriate record book. The respondents contend that the time for filing notice of appeal runs from the date of the decision, while the appellant contends that the time for filing notice runs from the date of the decree. The notice of appeal filed herein was within the required time, if calculated from the date of the decree, but not within the period of calculation from the date of the filing of the decision. Admiralty Rule 172 is the one applicable here. It is as follows: No appeal to the Exchequer Court from any interlocutory order, or from any order, whether final or interlocutory, in any matter not being an action, shall, except by special leave of the Exchequer Court, be brought after the expiration of - thirty days, and no other appeal shall, except by such leave, be brought after the expiration of sixty days. The said respective periods shall be calculated, in the case of an appeal from an order in Chambers, from the time when such order was pronounced, or when the appellant first had notice thereof, and in all other cases, from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application from the date of such refusal.
192 EXCHEQUER COTJRT OF CANADA [1939 1939 The Rule might be more clearly expressed, but I think its MOTOR meaning is fairly clear. The case under discussion, "being YACT Dr. Bri an action," would seem to fall within that portion of the nkley II Rule which prescribes a period of sixty days within which Moron an appeal may bebrought, and the Rule provides that such VESSEL time shall be calculated " from the time at which the Shanalian. judgment or order is signed, entered or otherwise per_ MacleanJ. fected." I am, therefore, of the opinion that the time for appealing runs from the date when the judgment or order is perfected and not from the time when it is decided or pronounced, but that would not apply in the case of an Order in Chambers, " in any matter not being an action." For the foregoing reasons, my conclusion therefore is, with great respect, that the appeal must be allowed, and with costs. Appeal allowed.
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.