THE THEODORE, R. DITCHBURN, Muster. Salvage-Dishonest Agreement. An agreement dishonestly made by the master of a ship to secure to so-called salvors an excessive reward is not valid against the owner of the ship. THIS HIS was an action of salvage brought by twenty Yarmouth beachmen for services rendered to the bark Theodore in the following circumstances :- On the 22nd January, 1858, the master of the Theodore hired the salvors and their yawl for 5l. to take him on board his vessel then lying in Yarmouth Roads. They did so accordingly, and found the barque had moved from her former place of anchorage, and was close upon the Hook Buoy of the Scroby Sand, the wind then blowing hard from the N.N.W. Whilst alongside they heard the mate inform the master that the barque had parted from her port anchor and sixty-five fathoms of chain about twenty minutes, that he had given her the other anchor, but that she was driving. They then went on board and entered into an agreement with the master to bring the vessel safe into Lowestoft Harbour for 2001.; and thereupon proceeded to lift the anchor with the assistance of the barque's crew, and to make sail in about three or four hours they brought the vessel into Lowestoft. In the meantime the agreement was reduced into writing and signed; it was in these words : "Yarmouth Roads, 22nd January, 1858. "This is to certify I agree to give the boatmen 2007. for assistance to the barque Theodore, while drifting on the Scroby Sand, having parted from her anchor and sixty-five fathoms of cable at 5:30 A.M., and assisted my ship up to Lowestoft. "RICHARD DITCHBURN, Master. The owners of the Theodore defended the action, repudiating the act of the master. They alleged that the barque was never in any danger of going on shore; that the master had most improperly and recklessly entered into the agreement, and that 1858. May 27. 1858. May 27. Judgment. he had been dismissed by them in consequence. They also pleaded a tender of 501. Deane, Q.C., for the salvors. The Admiralty Advocate and Twiss, Q.C., for the owners. DR. LUSHINGTON :-The first question is, whether I am to uphold the agreement entered into between the master and the salvors. If I determine this in the negative, I must then consider whether the tender of 50l. is an adequate remuneration for what was actually done. As to the facts of the case. It cannot be said that the service was one of danger to the salvors. It was not argued that the salvors in leaving the beach and in putting the master on board the barque incurred any peril, or incurred any peril subsequently; although, no doubt, that the weather had been previously very tempestuous, and the wind may, at the time, have been blowing strong. Then was the ship in any danger? It is said on behalf of the owners, that, taking it to be true-and, indeed, it must be admitted—that the barque had lost one anchor and sixty-five fathoms of chain, and was dragging her other anchor, she was, nevertheless, in no danger of going on the Scroby Sand; for by letting out more chain on the second anchor the barque might have been easily brought up, or weighing and making sail, she had a fair wind for Lowestoft Harbour which, in fact, she afterwards made for. This seems to meet the gist of the case; and, looking to the whole of the evidence, I am of opinion that the salvors have failed to show that there was anything to hinder the barque's crew from taking either of these measures with due effect. In these circumstances the demand of 2001. by the salvors is scarcely consistent with any just or fair dealing. Even if their assistance was in some degree serviceable, and-so to speak-requisite, the actual service was The agreement not difficult, and lasted only between three and four hours. The was dishonest, Court is very much indisposed to set aside an honest agreement, but it must be satisfied that the agreement is honest. Where there is any doubt its rule is to adhere to the agreement; and the Court would be just as ready, in favour of salvors, to set aside an agreement, if satisfied that it was wholly inequitable. But is not this demand exorbitant? I regret to say on the present occasion,-for the Court is generally anxious to protect the interests of salvors,-that it is an exorbitant demand, and such as no Court of justice would be justified in carrying into effect, and must be set aside. I pronounce against the agreement and for the tender. And I give costs from the time of the tender. Shephard and Skipwith, proctors for the salvors. Brickwood and Brooks for the owners. 1858. May 27. THE PERLA, ANDIOECHIA, Master. "Necessaries"-3 & 4 Vict. c. 65, s. 6-Copper Sheathing-Pre- A liberal meaning is to be attached to the term "necessaries," in 3 & 4 Vict. c. 65, s. 6. Where necessaries are supplied for the use and benefit of a foreign ship, the pre- HIS was an action of necessaries by Messrs. Muntz against Tthe Spanish ship Perla. the Spanish ship Perla. The goods supplied were yellow metal sheathings, rings, nails, &c. The defence for the owners was, that yellow metal sheathing was not a "necessary" within the meaning of the statute 3 & 4 Vict. c. 65; that the goods were supplied to the credit of a Mr. Bell, who had made an agreement with Messrs. Oleaga & Paris, the brokers of the ship, to repair the ship, and if his account should be considered too large, to purchase her for 1,500l.; and that if credit was entered on the books of the Plaintiffs to the owners, it was so entered by fraud and collusion between the Plaintiffs and Mr. Bell. In support of the claim a clerk of the Plaintiffs deposed that the master of the ship came to the office of Messrs. Muntz in Liverpool, accompanied by Mr. Bell, who introduced him, and (the master not speaking English) gave the order, according to the practice common in such cases; that credit was not given to Mr. Bell, but to the master as representing the owners, and was so entered in the order book, "May 17, 1857. Captain Andioechia, per Mr. Bell, for the Perla ;" that the alleged agreement between Mr. Bell and the shipbrokers was never shown or mentioned; and that, after the goods were supplied, the bill was sent in to the master under cover to the brokers, headed "Captain Andioechia and owners of the Perla." For the Defendants there was an affidavit by Mr. Paris setting out the agree July 23. 1858. July 23. Judgment. ment, stating that an action had been brought upon the agreement, and damages recovered for the breach thereof, and alleging that according to his (Mr. Paris's) information and belief credit had been given to Mr. Bell, or, if not, that credit had been entered on the books of Messrs. Muntz to the ship by fraud and collusion between them and Mr. Bell. The master also, on being examined, stated that, not understanding English, he did not know what passed between Mr. Bell and the clerks of the Plaintiffs, or that credit was given to the ship; that he went to the office at Mr. Bell's request. Deane, Q.C., and Robinson for the Plaintiffs. Addams, Q.C., for the Defendants. DR. LUSHINGTON:-The first question is, whether copper sheathing is or is not a "necessary" to a ship within the Copper sheath- meaning of the statute. I am of opinion that it is. It may ing is a "ne- not be always indispensable, but it is very customary for sea cessary." going vessels to be coppered, and the Court will not put a restricted meaning on the term necessaries in this very beneficial statute, so as to confine it to things absolutely and unconditionally necessary for a ship in order to put to sea. The other question is one of fact, namely, whether credit for the sheathing supplied was given to the ship or to Mr. Bell. Presumption of Where goods are furnished for the use and benefit of a ship, ship's liability the presumption is that the ship is liable; and, to rebut this supplied to the presumption, it must be distinctly proved that credit was given use of the ship. to the individual only, whoever he may be. The agreement stated for necessaries in this case to have been made between Mr. Bell and the brokers of the ship is really not admissible evidence, as there is no proof that at the time of the credit being given it had come to the knowledge of Messrs. Muntz or their servants acting for them, and the contrary is distinctly sworn. Be the agreement ever so binding between the parties to it, it is, as concerns the parties in this cause, res inter alios acta. The allegation, or insinuation rather, that credit was entered in the name of the master and owners by fraud and collusion between Messrs. Muntz and Mr. Bell, is utterly unproved, and of course, where fraud is alleged, the Court always requires cogent proof. I pronounce for the claim with costs. Tebbs, proctor for the Plaintiffs. Clarkson for the Defendants. 1858. July 26. THE JONATHAN GOODHUE, DIBBLE, Master. Bottomry-Cargo not on Board. A bottomry bond upon, ship freight and cargo for necessary repairs to the ship, executed after the repairs done and the contract of affreightment, but before actual shipment of the cargo, is invalid as against cargo. DOTTOMRY. The Admiralty Advocate and Robinson for the bondholders. The Gratitudine (a); Prince George (b); Osmanli (c); and Conard v. Atlantic Insurance Company (d) were cited in the argument. case. DR. LUSHINGTON :-This is a case of bottomry on ship, freight Judgment. and cargo. It appears that in November and December, 1856, Facts of the the American ship the Jonathan Goodhue, underwent extensive repairs at Calcutta, and that on the 31st of December the vessel was there chartered by Messrs. Livingston. The charter provided that the vessel, being then about to proceed to Rangoon, should, upon her arrival and discharge at that place, be put at the disposal of the freighters, lade a full cargo of rice, and proceed with the same to a port in the United Kingdom. On the 8th of January, and before the ship sailed, the master gave the bottomry bond now sued upon. The bond recites that the ship was then lying at Calcutta, and that the master was obliged to take up money on bottomry to pursue his intended voyage to Rangoon and thence to England; it then recites the charter with Messrs. Livingston, and purports to bind the ship, the cargo to be laden under the charter, and the freight to become due in respect thereof. The ship sailed to Rangoon, there discharged, and in pursuance of the contract of affreightment, took a full cargo of rice belonging to Messrs. Livingston and sailed to Liverpool, arriving there on the 10th of July, 1857. The bondholders then demanded payment of the bond, and brought their action in this Court. Messrs. Livingston gave an appearance under protest; the owners of the ship did not appear: and on the 18th of September the |