J. C. 1866 KIRBY v. OF THE "SCINDIA." THE hearing of the cause, as the vessel was wrecked after the decree. The possibility of it might, perhaps, be inferred from the circumstance that it appeared from the pleadings that the Alicia Annie had, in performing the salvage service, deviated from THE OWNERS her course. That was probably the very reason that induced the Judge of the Vice-Admiralty Court to refuse to distribute the amount paid into Court until the parties had the opportunity of "SCINDIA" communicating with England. The question of the effect of deviation in such circumstances is one of doubt, and requires the decision of the highest Court of appeal: Lawrence v. Sydebotham (1); The Jane (2); Park on Marine Assurance, p. 647. We ask, therefore, for the admission of evidence to raise the question for argument on the hearing of the appeal. But the strong reason we urge for this motion is, that the character of Captain Kirby has been assailed, and a judgment given against him upon evidence produced after the hearing of the cause in his absence, and without his knowledge, and which, as far as it affects to charge him with pilfering the Scindia, is false and unfounded, and he desires, in vindication of his character, to be allowed to contradict such a scandalous imputation. The Queen's Advocate (Sir R. Phillimore), and Mr. E. C. Clarkson, against the motion:— This application is, in effect, made for the purpose of varying the amount of salvage, that is the sole object of the appeal, and the same point must be discussed on this motion, which is an indirect mode of obtaining the opinion of the Appellate Court upon that point. The risk of loss of insurance on the Alicia Annie was a matter put forward by the Appellants, and taken into consideration by the Court below in estimating the degree of merit attributable to each of the salvors, and an actual loss of insurance is not a material fact, or one which ought in any way to be taken into consideration; the insurance is not void by deviation to assist a vessel in distress: The Orbona (3). The decree made by the Court below was simply a decree pronouncing for the sufficiency of the tender of £2,000, and it does not appear that that decree was, as it at present stands, in any way arrived at, or affected by, the charge against (1) 6 East, 45. (2) 2 Hag. Ad. Rep., 338. (3) 1 Ec. & Ad. Rep. 161. J. C. 1866 KIRBY v. THE OWNERS THE "SCINDIA." Kirby. There is no ground for supposing that the nature of the charge against Kirby was unknown to him previous to his departure from the Colony, and his Counsel having elected to take the judgment of the Court, without waiting to communicate with his client in England, is conclusive against such an application as this being entertained. THE LORD JUSTICE TURNER : Their Lordships have considered this application, and they are of opinion that no order ought to be made upon this motion. The application is for the admission of fresh evidence, before the hearing of the appeal, now pending before this Court, of matters which have occurred since the hearing of the cause in the Court below. Now, where parties have gone to a trial of the question at issue upon the evidence which they have at the time, and which they were able then to adduce, and have made no application to the Court below to suspend the trial until further evidence can be brought forward, it evidently requires a very strong case to induce any Court of appeal to admit further evidence, in order to adjudicate upon that question which has been determined in the Court below. The evidence now proposed to be adduced is upon two points. First, it is said that since the trial of this case in the Court below, the insurers of the Alicia Annie, by reason of her having deviated from her course with a view to save the Scindia, which is the subject of the suit, have refused to pay the insurance, and that a loss of £2,000 has in consequence been sustained by one of the salvors which salved the Scindia, and the evidence which is proposed to be offered is to shew the loss of that sum of £2,000. The question whether there was a danger of the loss of the insurance was distinctly put in issue in the Court below. It was a question which the Judge had to consider in determining the amount which he would award for this salvor's services, and certainly we cannot say that because the Judge has not in terms stated that he has taken that into consideration, it did in fact form an element in the judgment which he delivered, and in the amount which he awarded to the salvors. It is obvious that the conse J. C. 1866 KIRBY quence of admitting fresh evidence of the amount of the salvage, to be adduced upon the hearing of the appeal, would be this, that no question upon the amount to be awarded for salvage services could be entertained until it had been determined whether the insurance THE OWNERS had or had not been forfeited in consequence of a deviation of the course of the vessel for the purpose of effecting the salvage. v. OF THE "SCINDIA." THE Now, that is a consequence which this Court cannot look at "SCINDIA." without considerable alarm; and certainly, upon that ground, if these parties had thought that the deviation might vitiate the insurance as they did think, for they brought it before the Judge-if it was desirable that this matter, whether the insurance had or had not been forfeited, should be determined before the trial of the cause, their course was very plain: to apply to the Judge to suspend the trial until that point had been determined; and as they have not thought fit to take that course, their Lordships do not see their way to relieving them from the consequences of their own omission. The other point upon which evidence is proposed to be adduced, as affecting the amount of salvage, is, that a charge has been brought forward against Kirby, the Captain of one of these vessels which effected the salvage, of having pilfered goods from the vessel that was salved. Whatever view their Lordships might have taken of this case, if it had not been in any manner dealt with by the Court below, this is clear, that the charge was distinctly brought forward by an affidavit of Fraser, made in the cause after the hearing of the cause. The Judge noticed that affidavit, and received it evidently without any objection on the part of the parties who are now moving for the admission of additional evidence to meet the charge it went to establish; and the parties, with the knowledge of that affidavit, and with the opportunity offered them by the Court below of meeting the charge which was so made, elected to take the judgment of the learned Judge upon the case as it then stood. We think, in this state of circumstances, to relieve the Appellants would be in effect to do that which this Court is certainly not in the habit of doing-relieving parties against their own election, and against a miscarriage on their part in the course of the conduct of the cause. On neither of these grounds, therefore, J. C. 1866 KIRBY V. THE OWNERSTM THE "SCINDIA." 1866 do we think that it is necessary, or that it would be right, that any order should be made upon this motion. It may be possible that when the question of the amount of the salvage, which is the real subject of this application, is determined by this Court, an application may be made to this Court-we cannot tell whether such application will be made or not-to distribute the amount awarded between the two salvors; if any such question should arise, if any application like the present should be made, we shall then see whether, upon the evidence before us, there is sufficient to enable us to dispose of that question; and it will be quite in our power, if we think there is not sufficient evidence to enable us so to dispose of the question, to remit the case to the Court below for further inquiry upon that point. We think, therefore, that that furnishes another reason against granting the present application, as it evidently shews that it is premature, inasmuch as it is quite unknown whether any such question can or will arise upon the hearing of the appeal. On these grounds their Lordships think this motion must be refused, and with costs. The appeal now came on for hearing on the facts and circumJune 25, 26.* stances above stated. Mr. Manisty, Q.C., Mr. Butt, and Mr. V. Lushington, for the Appellants: This case lies in a very narrow compass. The Scindia was a derelict, and, with her cargo, of the value of above £30,000, was preserved from total loss by the Appellants under circumstances which entitle them to a liberal compensation for their services. The sum of £2,000 was wholly inadequate as remuneration for the salvage service rendered by the Appellants. It is clear that the loss of £3,150 sustained by Kirby, in consequence of the policies of insurance on the ship Alicia Annie and her cargo being avoided by deviation in her course, ought to be taken into account in considering the sum awarded for salvage. As also in respect to the owners of the cargo for breach of contract, Wilson v. The Newport Dock Co. (1). * Present: -DR. LUSHINGTON, SIR JOHN COLERIDGE, and SIR EDWARD VAUGHAN WILLIAMS. (1) 1 L. R. Ex. 177. The Queen's Advocate (Sir R. Phillimore), and Mr. E. C. Clarkson, for the Respondents : J. C. 1866 KIRBY v. THE OWNERS OF THE THE "SCINDIA." This Court, like the former Courts of Delegates in Admiralty cases is averse to interfere with the discretion of inferior Courts in varying the amount of salvage service. This is not a case of appeal "SCINDIA, on the question of distribution, that question has yet to be settled by the Court below; but it is an appeal for the purpose of increasing the sum decided by the Court below to be amply sufficient remuneration for the services performed. We submit that the tender of £2,000, and the subsequent award of that sum by the Judge of the Vice-Admiralty Court, was an abundant recompense for the salvage services performed by these two vessels. Their Lordships, at the conclusion of the argument, desired to hear the following case, The True Blue, which involved the same principle, namely, the increase of the sum awarded by the Court below for salvage services; before giving judgment. Proctors for the Appellants, the owners, &c., of The Aminta: Solicitors for Appellants, the owners, &c., of The Alicia Annie: Solicitors for the Respondents: Walton & Bubb. |