1856. November 5. Different sets of salvors may be justified in bringing sepa. rate actions. Value of property salved. Have the boats forfeited their claims to salvage? They performed a meritorious service, and to forfeit the reward thereof the mis conduct of the salvors must be distinctly established; as to there being two actions, though the Court is displeased with it where it can be avoided, the Court cannot say that two sets of salvors may not have reason for bringing separate actions. The interest of the smack's-men was to show that they had rendered the greatest service; the interest of the Maas was to show that the rescue of the brig was owing to her great exertions and power. I cannot say that this is an instance of any abuse of the power given to salvors to sue separately in this Court. Then I come to the value of the property salved. I must take it to be 2,4807., which is the amount stated on behalf of the owners, and not contradicted by any of the averments of the salvors. I must take it at that sum for this obvious reason-if there was any dispute as to the value, means should have been taken by the salvors, in the first instance, to ascertain it, which might easily have been done. Therefore I have no hesitation in taking it at the sum I have stated. The next question is, what service was performed by the five boats, so to call them, and have they forfeited their claim by any misconduct? With regard to the danger, the evidence of Lieutenant Maxey is conclusive to my mind that there was considerable risk and peril in rendering assistance. That the vessel herself was in peril is proved by the statement of the owners, proved also by the damage stated to have occurred; and though she was not abandoned sine spe recuperandi, there was a temporary abandonment to all intents and purposes. I am of opinion, looking at all that occurred during the night of the 6th, and till the steamer came up on the afternoon of the 7th, that the exertions of these persons were exceedingly meritorious, and that the risk they incurred under the circumstances stated in these proceedings entitles them to very great praise. Have they forfeited that? It is quite clear, whatever may be the nature of the services originally rendered, they are capable of being entirely forfeited by misconduct on the part of the salvors. We never can dispute that principle, for it is supported by the superior Court, as well as in many instances before this tribunal. But there are many things requisite before you can come to that conclusion. First, if you make such a charge, the evidence must be conclusive before the parties are found guilty; and secondly, if the charge be made, and it is proved that the property, from the misconduct of the salvors, has experienced great deterioration, then perfect forfeiture is the result. But there may be a medium. In one case, that of the Duke of Manchester (a), by neglect of the salvors the ship and cargo were (a) 2 W. Rob. 470; 6 Moore, P. C. 90. exposed to great loss; and this Court held, and was supported therein by the Privy Council, that the salvors, although they had previously performed a service of considerable value, were not entitled to one sixpence, in consequence of their neglect having been the cause of the loss which subsequently occurred. It is sworn positively in this case, by the master of the French vessel, that he attempted to take possession of her; and, on the other hand, it is sworn with equal positiveness by all the persons on board the Charles Adolphe, that they did not know the master was there, and that they did not hear his name mentioned; and so the case stands. It is impossible to substantiate a criminal charge on evidence like this. I am well aware that those on board the Fawn swear they heard language from those on board. the Charles Adolphe which would import-supposing it to have been accurately reported-that those on board the latter heard the master claim to come on board as master. But I am a little doubtful of evidence which goes to such minutiæ-a little doubt 1856. November 5. ful of hearing at such a distance; and I am not satisfied that not proved in there was a wilful determination to exclude the master from this case. coming on board, and if I did I should not entirely reject their claim for salvage, although it would be a wrong thing in itself. I am of opinion, therefore, that the claim of these salvors is not forfeited. With regard to the claim of the steam ship, she performs a service to a vessel disabled and in distress, and taking her in tow cannot by possibility be compared to an ordinary. towage service. Looking to the whole of this case, I am of opinion that I should give to the steamer 1201. There are five boats, three of which came up in the first instance-namely, the Railway, the Brothers, and the Life-boat; the two othersnamely, the Cornish Clipper and the Pilot-boat-stand in a different position, for they did not come up till a later period. To the three first I shall give the sum of 3007., and to the two last 150/-to be divided according to the number of men on board. Pownall, proctor for the steamer. Wadeson for the boats. Tebbs for the Charles Adolphe. 1856. November 21. THE DESDEMONA, FARNHAM, Master. Ship-Suits for necessaries—Insufficient proceeds — Pro ratá division. A foreign ship was arrested in a suit for necessaries; no appearance being given for the owners, the Court put the Plaintiff in possession of her by a first decree after the usual defaults. She was subsequently arrested by three other parties in similar suits, and the proceeds were not sufficient to meet the total claims. The Court, on motion, by interlocutory judgment, decreed a pro ratá division between all the parties. THE : THE present motion arose out of several actions for necessaries supplied, which had been brought against the foreign vessel Desdemona, but to which no appearance had been given on behalf of the owners, and the ordinary proceedings had gone on in default. On the 5th, 10th and 14th June respectively, Fielder entered actions, and warrants were issued against the ship in three separate suits on behalf of Messrs. Knapp, Jenkins and Latch, in the sum of 4007. (a subsequent action was entered on their behalf to cover subsequent advances); on behalf of William Clode in the sum of 1007.; and on behalf of Thomas Murray in the sum of 801. On the 8th August these actions were consolidated; on the 19th September the fourth default was granted, and the accounts of Fielder's three parties were referred to the registrar and merchants, who reported the total amount due to them to be 555l. 3s. 1d., with interest at the rate of 4 per cent. per annum from certain dates till paid. The vessel had also been arrested before the commencement of the above actions, at the instance of Messrs. John and James Sydney Batchelor, of Cardiff, shipbuilders and repairers, for necessaries, in the sum of 2,500l., their claim, as reported by the registrar, being 2,1517. 4s. 6d., with interest, &c.; in which suit the judge, on the 26th of June last, at petition of the proctor of Messrs. Batchelor, signed, after the regular defaults, the usual primum decretum, and decreed a perishable monition and a commission of sale; the ship had since been sold under such commission, and the net proceeds, amounting to 2,670l. 17s. 10d., were on the 2nd October last paid into Court. The total amount of the several claims, 2,706l. 7s. 7d,, would consequently absorb more than the net proceeds, exclusive of interest and costs; and a question arose, whether the net proceeds should be divided pro ratâ among all the claimants, or whether Messrs. Batchelor and Co., in consequence of their priority of action and possession, would be entitled to have their claim and costs paid in the first instance. Deane, under these circumstances, moved the Court to pronounce, by interlocutory decree, the amounts set forth in the Registrar's report, to be due to Fielder's said parties respectively, together with their expenses; and to decree the said amounts to be paid out of the proceeds of the sale of the vessel now in the registry, pro ratâ, with the amount reported to be due under the first action to Messrs. Batchelor, bail to answer latent demands being first given. 1856. November 21. DR. LUSHINGTON:-Two points arise for the consideration Judgment. of the Court on this motion. The first, one of practice; whether the order to be made by the Court should take the form of a first decree, or of an interlocutory judgment. Where no appearance has been given by the owners, and the proceedings have been in pain, it would be productive of unnecessary expense if all of several parties were obliged to obtain a first decree. I shall adopt the form of an interlocutory judgment. The second point is, whether the party, who first commenced the suit, has a preference in case the proceeds are insufficient. This question was discussed in the Saracen (a), the result of which was, that the Court would give priority to any party first obtaining a judgment; but I am not inclined to go a step beyond that, and shall on the present motion decree as prayed. Fielder, proctor. [NOTE. The question of priority of payment arose also in the Clara, suprà, p. 1. To obviate any confusion from the terms used in that case and the present, it may be well to observe, that a primum decretum, first decree, by which the Court puts a plaintiff in possession of a vessel where the proceedings are in pain, no appearance being given for the owner, must be distinguished from an interlocutory or final decree, which are judgments, strictly speaking, of the Court, though often spoken of, as in the Clara, simply as "a decree," "a prior decree," a decree pronounced in the first action."] 66 (a) 4 Notes of Cases, 498, and 2 W. Rob. 451. 1856. November 28. THE EMPRESS, RICHARD NEWMAN, Jun., formerly Master. Sale of Ship-Owner and Master-Indorsement on Certificate of Registry. R. N., sole owner and at first master of the Empress, after some intermediate appointments, made his son R. N. master; who, in Australia, without authority, sold the vessel, asserting himself to be the sole owner and master, the certificate of registry and indorsement bearing out, on the face of it, such assertion. R. N. the son, received the purchase-money, but never transmitted it to the father. Held, that the sale was effected by the fraud and forgery of the son; that the misleading description of him on the certificate of registry, which enabled him to practise such deceit, was not proved to arise from any culpable neglect in the instructions given by the father to the custom-house; and that the sale was null and void. THIS HIS was a case of possession, arising out of very peculiar circumstances, brought by Richard Newman, of St. Mary's, Scilly, shipowner, against the said brig, her tackle, apparel, and furniture, and against Robert Charles Venn, of Port Adelaide, in Australia, intervening and asserting an interest therein in a cause of possession civil and maritime. It appeared that Richard Newman purchased the brig in 1847, at Sunderland, in county of Durham. She was then quite a new vessel. R. Newman obtained a British register to be granted for her by the name of the Empress, at the custom-house, Sunderland, wherein he was registered as sole owner. At first, Richard Newman navigated the said brig by himself, and afterwards employed her under the command of two different masters till July, 1850, when, the brig being in London, he appointed his son Richard Newman as her master, and the name of the said Richard Newman was indorsed on the ship's register, as well as in the custom-house books, as master; so that in the original certificate of British registry in 1847, in pursuance of 8 & 9 Vict. c. 89, "Richard Newman, of St. Mary's, one of the Scilly Islands, shipowner," appeared as sole owner, and "Richard Newman, aforesaid," as master. In January and October, 1848, indorsements were made at Liverpool and Galway of the two intermediate changes of master, and the son's appointment was indorsed in the following words: : "Custom-house, London, 20th July, 1850; Richard Newman has now become master." |