ALEXANDER, NELSON, AND ENTERPRISE v. THE WHITE STAR.

West Coast Times, Issue 278, 14 August 1866, Page 2

ALEXANDER, NELSON, AND ENTERPRISE v. THE WHITE STAR.

(l?ROir " inTCHEI.L'fc MARITIME BEGISIT.R " MIT 19.) This wiis a claim for salvage compensation brought by the steam-lugs Alexandra. Nelsohi, and Enterprise, against tko ship White Star, 2239 tons, from Port. Phillip, with passengers and cargo for London, for services alleged 10 have boon performed nnder tho following cireunulanocs: — On the 18th of March, 1865, the White Star, when in the English Channel oil Newhaveiij engaged the Alexandra, an iron tug, of 120 tons, with disconnecting engines ofGO-horse power, capable of yorking up to 120-horse power, unU of the value of L4OOO, to tow 'her up to Gravesend, tlu 1 terms being to take her for L 75 yithout assistance, mut L(>7 10s if another (ug was required, audit being understood that towage from Q-rnveseucl to the docks would be paid By the Dock Company. The Alexandra having towed tlie ship for about three hours, the tug JSVUon, buiit of wood, 99 tons, with engines of 40-horse power, capable of -working up to 90-horse power, and valued at L3OOO, was employed to help the Alexandra for L 35. Tlie tugs towed the vessel to oil' Hastings, where they were cast off, and on tho 19th tho ship wore and stood in for the land, picked up a pilot oil' Dungcuess, and in the evening anchored oil' Folkestone with both bower anchors. On tlu 20th the &hip. in a heavy gale, dragged and slipped from her anchors, and ran down past Dungeuess. It wns then alleged by tho owners of the ship that upon getting her vindtt" 1 weigh, the sheet nuohor and chain were got up, fthich was one of TrotinniY'u patent, of forty three cwt, more poweiful <jJiiin tlie aneliors . lost , and which, on former voyuges had frequently aloi;o heM Hie ihip, aud-thut the chain, of 100 fathoms, 0} inch, was suflicient to ensure her safety. On the 20th and 21st the easterly gale continued, and the ship stood on and off the land ; aud about midnight, ns the weather moderated, she commenced beating up channel. The shipowners then represented, that early on tho morning of the 22nd the assistance of a steam-lug, the Napoleon, was ♦endcred, but refused ; that shortly afterwards the tugs Alexandra and Nelson 'rejoined the ship, ami begnn towing 3aer, she bchig then some ten miles from Dungenes?. About one p.m. of the 22nd tlie sloam-tisy Enterprise, 120 tons, with engines of 70-lmsj power, working up fo 150, and she being worth LSOOO, came up j her waiter was brother to the master of the Alexandra, and it was arranged, according to ihe defendants, that the master of. the White Star should be put abhore at Dover by the Alexandra, the Enterprise remaining in her place, in order that the master might obtain an anchor and chain, which he found himself unable to do of the size required ; he -returned to the >hip, and as the pilot considered that a third }ug was necessary to assist the vessel up to London, the enterprise was thereupon engaged, and tlie vessel was towed by tho three lugs up to the entrance of the Victoria' Docks, which she reached on the 23rd of March. Tho plaintiffs asserted that the White Star, her cargo and freight, the value of which together amounted to L 218.000, were in considerable -danger of being lost, jwhicb -the defendants denied, and contended that, the service was towage, and not salvage. Witnesses on both sides wore examined viva race. ' „ The Court, addressing tho Elder Brethren, snid^:— Gentlemen, — In order to arrive at a just conclusion in this case ifwill be necessary to bear in mind all tho surrounding circumstances, to take a combined vii»w of the whole of them, 'and then to see what conclusions justice and equity will require. We must bear in mind that this was a vessel of peculiarly largo dimensions ; that she hud. a very valuable cargo, a number of passengei'3, the season of tlie year, and all the matters which subsequently occurred. An objection has been raised to the power of tlie tugs Alexandra and Nelson, and it has been sworn and argued that they were inefficient for tlie purposes for which they were intended and the service they undertook to perform. I think that objection does not lie in the mouth of the owncts, for at the time these two vessels were engaged the first was hired for L 75, to take, or n-.-ist in taking, the vessel up channel, and it must have been vitlii:i the view of the master of the vessel whit was the size and probable power of'tlu* tin, and I think ifc wii'iw v to common sen-. 1 to suppose iie would cn f ja»v her singly to take, him up if she was so unfit to undertake the engagement ; nnd I think the same remark applies to the Nelson. The question is, whether the agreement was rendered invalid by any T of the facts that afterwards happened. No doubt the principles laid down by the Judicial Committee in the >Mimiehaha arc the trite ones, aud those wind) I have endeavored- to act. ,upon for nearly thirty years. When I first came to the bench, I found considerable difficulty where a ,'cssel engaged to tow another was bound, notwithstanding change of weather, to adhere to her, and perform services — not Hie service she originally engaged for, but a service which happened by accident to be superad led ; and the doc-trine I then held was, she was bound toalherc to the vessel, and do all in her power to rescue her from danger, and she was to receive something additional, and not merely Oie remuneration 0.-iginally agreed upon. The real question is, what are the contracting parties reasonably supposed to have intended by the engagement? and what degree of alteration had they a rightto expect ? because that the performance of the service would always be of the same character would be absurd to suppose. I apprehend that, when a master of a vessel contracts with the master of a tug, it is upon the supposition that the wind aud weather, the time of year, and the ordinary time for performing the service, would be so-and-so, and that that is the contract which is intended by both parties, and that the sum contracted for is that which is supposed to be a sufficient remuneration for the ordinary performance of the voyage. It may be a short voyage if all the circumstances are favorable, and it may be a long one if they are unfavorable. I shall submit to you that wlien an engagement is made — a contract — for a specific time, that that contract must be adhered to, and is not to bo broken hastily, unless it be shown by the party that circumstances have occurred whicli could not have been within the contemplation of !he parties, and that such is the state of circumstances thafc to continue that contract and ho\l tlmt binding would be contrary to all ]i- i'viples of justice and equity. It would bj v. I. t!; 'impossible to define the circumstances; but 1 think we should never have any donbt in saying what they were which would give a right to the infraction of tho contract. The Court and Elder Brethren retired for consultation ; and upon their return, Dr. Lushington said— We are all of opinion that a very small addition to that which has been tendered will be a suuicicnt reward for those who performed tlie services in question. Including the sums tendered, I shall give to the Ali-Mtndnv Ll2O ; to theWelson, LIOO ; to tho Enterprise, L7o; and wo all thii.-k that LlO to ih.) Aloxamira for going into Woyei 1 is ftmply iiidlciuhti Cosju,'