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salvage remuneration did not enter the case, and the answer otherwise qualified what was ao exaggerated account of the services detailed by the plaintiffs. The defendants paid into court $10.000, but this amount was rejected, and the case came before Mr. Justice Ackroyd on 29th Octo- ber, 23rd and 21th November, and judgment was delivered on 15th December. The Acting Attorney-General then proceeded to read and comment upon the judgment of the Court below. In regard to the statement that the Rio was belpless at the time he submitted that she was not helpless. She had her motive power, she was fully equipped, and she had the use of her anchor and cable.
"
THE HONGKONG WEEKLY PRESS AND
[
His Lordship-The notice of appeal is a notice to dispute the amount awarded. You do not say in the notice on what ground the amount is
excessive.
Mr. Francis considered that it was not open His Lordship-Is it a question of fact or law to the Court to consider these findings.
He
whether it is to be held towage or salvage? was there to argue only the question of amount. Mr. Francis-It is a question of law, the His Lordship-At the beginning of his judg-uotice of appeal is only against the amount of the ment Mr. Justice Ackroyd says, "I find the award. following facts to be admited by the pleadings or proved to me," I was going to ask you how you are going to get behind those facts?
The Acting Attorney-General-It is not a question of fact that I am going to argue, but the question of the inference to be drawn. He could not have found, as a fact, that the ship would have gone on the rocks. I am endeavour. ing to point out several circumstances which he apparently, in considering the facts, overlooked or did not give sufficient weight to. I say that the Judge has given undne weight to certain facts or not given weight to certain facts, and that the amount awarded is excessive.
Mr. Francis said that if the boat had continued to drift in the direction she was going she would certainly have gone ashore at a certain point. That was a question which was consider- ably discussed by witnesses on both sides.
His Lordship replied that it was quite open to Mr. Leach to argue that the ship would not have continued to drift.
Mr. Fraucis-How can he say that the cur- rent would have changed its course?
The Acting Attorney-General-I do not say
that.
His Lordship-The inference is perfectly plain, unless there are any new facts to rebut the decision of the Court below.
The Acting Attorney-General remarked that if the boat had continued drifting the captain, would, of course, havejused the lead, and she would or might have anchered. He quite ad- mitted that, assuming nothing was done to save the boat, she would have become a total wreck. As far as the authorities went they ap- peared to be against him on the point raised, and in the event of the case going to a higher Court he should like to save that questioui.
His Lordship-The Court above may say that the Court below was wrong, and that it was extra ordinary that the Court below should have come to a judgment without hearing the parties upon the point. I do not propose giving judgment in any case without bearing the arguments upon it. I do not quite see how, unless you can call further evidence, you can
The Acting Attorney-General-It is not a question of facts, my lord.
His Lordship replied that there was no doubt that the Court below held there was a towage agreement, but that the circumstances of the case were such as to demand costs of salvage. "I am afraid, Mr. Leach," observed his Lord- ship," you would have been very sorry to be on board that steamer, in the height of a typhoon. You would have considered yourself in great danger."
The Acting Attorney-General-Yes, no doubt, but that is not the question; the question is whether there was a binding agreement to tow. His Lordship-You will agree that there are tow, and in which towing turned out to be in the nature of salvage?
The Acting Attorney-General-It is not re- quired to specify in each case the ground of appeal.
Mr. Francis - We come here, my Lord, not knowing what are the grounds of appeal. The appeal is that the amount is excessive, and not that it was given on a wrong principle.
d
[April 11, 1895. His Lordship-Do you contend that the Judge | said :-I find the following facts to be admitte was wrong in finding for salvage services and by the pleadings or proved to me. The Rio, not for towage services P
German steamer, left Saigon on the 6th Septem The Acting Attorney-General-Certainly, ber last with a cargo of rice and 760 Chinese my Lord.
parsengers. On the morning of the 8th Sep- His Lordship.-At present I am against you tomber at about daylight the main shaft on the facts. I have read them, but my mind is broke at the tail end and the stern tube was open to conviction and I would rather hear damaged. A little after sunrise sails were your argument.
hoisted. The vessel was heading N. by W. and Mr. Francis asked his Lordship to settle the N.N.W. There was a little swell on, and a point at once-whether the notice of appeal, light southerly wind. During the whole of the which was simply against the amount of the 8th and 9th they kept up sails, and notwith- award, left it open to the appellant to dispute the standing the signals they made by firing rockets facts found by the Judge that salvage services and gans from time to time they did not see any were rendered.
steamer or vessel until the Phra Chom Kiao hove in sight at 6.30 on the morning of the 10th September. At that time the Rio had certain flags hoisted as signa's; on the fore mast she had two flags, and on the maiomast three black balls. When the Phra Chom Klao was within about two miles the Rio hoisted the signal Will you take me in tow," to which the captaip re- plied "Yes." The captain of the Rio came on board the Phra Chom Klao and the following agreement was written out in the log book of the steamer and signed by Capt: Davidson :— I hereby agree to accept offer of towage from the above steamer, from here to Hongkong via Hoihow Straits, leaving terms of payment to be settled in Hongkong-C. H. Davidson, Master steamer Rio. After this the captain of the Rio went back to his ship and a steel hawser was passed by the officers and orew of the Rio, and they got under weigh at 9.30, intending to go through the Straits of Hainan, because as the Phra Chom Klao had only seven days' coal ou board the captain wanted to get into a bay to take some more from the Rio. On the 11th he changed The Acting Attorney-General then contended his course on account of a heavy N.N.W.swell that when a master of a ship deliberately entered coming out of the gulf, and the captain surmised into a contract—a written agreement, not a mere there was a typhoon in the Galf of Tonkin, verbal agreement-for towing, he was bound by There was a N.E. swoll when the ship was taken the ordinary meaning of the word. If he were in tow; it began to increase about 10 p.m. of not so bound the right of contract would be that day. gradually grew heavier and reared practically done away with. One party should round. It was coming out of the Galf; it was hold the other party to the literal meaning of heavy at times but never very bad. At 4 a.m. the word he chose to use. Of course, if there on the 12th it began to moderate, and after that were intervening circumstances, undoubtedly fine weather till they arrived in Hongkong on towage might be converted into salvage, but the 14th September at 11. p.m. The hawser in the absence of unforeseen circumstances or broke on the first day, not ou acconat of supervening circumstances of more than ordiu- the weather. Captain Fowler says it was ary character, the parties must be held to have partly the fault of his steamer that the baw- in contemplation the ordinary perils of the sea, ser broke; he apologised to Captain Davidson, the ordinary risks which they undergo in towing, who said he was as much to blame. Some ques- and all the changes of weather at the particular tion has been raised as to the meaning of the time of the season in which services are rendered.siguals which the Rio was flying when the Phra The learned counsel then quoted at considerable length various cases in support of his contention.
Mr. Francis replied on behalf of the respon dents, and submitted that the appellants had no ground on which they could succeed.
Judgment was reserved.
His Lordship-I do not think it is worth while to raise the point now, because my brother Wise and I are of opinion that upon the facts before us we should come to the same con- clusion as the Court below-that it was salvage | and not towage. But at the same time I do not want to stop your argument.
6th April
Judgment in this case was delivered on Satur- day.
Chom Klao sighted her. I am advised that they were urgent signals, but I do not think that this is of any importance seeing that the Rid asked for and accepted the assistance of the other stea- mer. It is necessary to fix as near as possible the positions of the Rio when the accident bappened and when she was sighted by the Phra Chom Klao. After carefully considering the evidence of the captains of both steamers I am of opinion and I am so advised that where the captain of the Rio The Acting Chief Justice (His Honour Mr. W. has marked on the chart at B bis position at 4 a.m. M. Goodman) said :—A salvage suit was instituted on the 8th September according to dead feckou- ing is correct. He says that during the previous by the Scottish Oriental S.S Co., Ld., as owners 24 hours they had experienced a southerly enrrent of the 8.8. Phra Chom Klao, against the German of about 2 miles an hour and he puts down his 8.8. Rio. her cargo and freight, in which the position B as being lat. 14.15 N. and long. 110.2 tion for services rendered to the Rio from the 9th; this was south by W. W. of B.; these plaintiffs claimed $20,000 for sulvage remunera- E. C represents his position at 4 p.m. on the 10th Sept., 1894. to the 14th (inclusive). The positions are placed as near as can be ascertained; was heard before Mr Ackroyd (Acting he marks at D his position when he was picked Chief Justice) and Commander Hastings as up. Now D is 12 miles from C and W. by N. of Nautical Assessor, and His Honour gave his de. cision on 15th December, 1894, awarding the full amount claimed, viz, $20,000. The owners of the Rio being dissatisfied with that decision gava notice of appeal to the Full Court,
case
it. Looking at the direction in which he had drifted from B to C and the time he took I am of opinion and am so advised that it was imposible, taking into consideration the weather, the current, and
the swell that
cases in which there is only an agreement to under section 5 of the Colonial Courts of Ad-\existed, for him to have gone from C to D.
miralty Act 1890, that Act giving a local ap- peal, as in ordinary civil cases. The appellants The Acting Attorney-General-That is my by their notice of motion sought to vary the difficulty. But in cases where there is a fixed judgment of the 15th December, 1891, by redug agreement for towage a larger sum cannot being the amount of salvage remuneration awarded on the ground that the amount so awarded was excessive. The appeal came on for hearing on April 2. Mr. Leach, Q.C. argued for the ap- pellants (the Rio) while Mr. Francis, QC, argued the case for the respondents. The facts of the case are fully set out in the judgment ap- pealed from. It mav therefore be cou- venient to extract the following passage from that judgment, especially as, for the pur- poses of this appeal, the findings of fact are not sought to be set aside. The learned Judge
$6
asked for because the towage turns out to be far more difficult than was at first anticipated. My argument is that where persous, being in a posi- tion to write an agreement, choose to select the word towage," and call it "towage services,” they cannot afterwards_turn round and say, “I did not mean towage; I meant a reward gene rally" If the Judge went on the assumption of salvage instead of on the assumption of tow age it was perfectly manifest that the amount
was excessive.
Captain Fowler bas stated in his evidence that at noon on the 10th September his position was lat. 13.57 N., long, 109.55. 11 calculates after allowing for the set against them that they had made 10 knots from the time they took the Rio in tow to noon. I am of opinion and I am so advised that there is no reason to doubt the
correctness of this evidence, and my nautical ng- sessor has accordingly at my request marked on the chart at F the position of the Para Chom Klao at noon on the 10th and at G the position as nearly as it can be, ascertained of the Rio when
taken in tow. The captain (of the Rid stated in his evidence that he was herding N. by W. and N.N.W. with a light sontherly wind, that dur ing the whole of the 8th and 9th they had sails
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