North Star Marine Salvage Ltd. (Plaintiff)
v.
Nick Muren and the B. C. Adventure (Defend-
ants)
Trial Division, Kerr J.—Vancouver, B.C., Octo-
ber 23 and 24, 1972; Ottawa, February 2, 1973.
Maritime law—Salvage—Contract with salvage company
to raise sunken ship at its usual rates for men and equip-
ment—Whether a contract for salvage.
Defendant ship sank in Georgia Strait. Her owner made
an agreement with plaintiff salvage company to raise her,
the salvage company to be paid for its services on the basis
of its usual rates for men and equipment together with the
cost of divers and tenders.
Held, the contract although not on a "no cure, no pay"
basis was nevertheless a contract for salvage services and
therefore within the jurisdiction of the Court.
ACTION for salvage.
COUNSEL:
P. G. Bernard for plaintiff.
T. P. Cameron for defendants.
SOLICITORS:
MacRae, Montgomery, Hill and Cunning-
ham, Vancouver, for plaintiff.
McMaster, Bray, Moir, Cameron and
Jasich, Vancouver, for defendants.
KERR J.—The defendant vessel B. C. Adven
ture is a 55-foot long all steel drum seiner that
sank on March 9, 1971, in the Georgia Strait a
short distance from shore near Nanoose
Bay, B. C., with a load of herring on board. The
plaintiff, a marine salvage company, raised the
vessel, pumped her free of water and the her
ring and towed her to a shipyard in Vancouver.
The plaintiff's claim is for payment for the
services rendered in so doing. The defendant
Nick Muren is the owner of the vessel. The
cause of her sinking was that she had a net out
at her stern and with a fairly heavy load of
herring on board and in the net her stern was
pulled under while her hatch was open, and she
flooded and sank.
The plaintiff owns and uses in its marine
business the vessels B. C. Salvor, Gulf Lifter,
Standto and Standon. The B. C. Salvor has a
60-ton hoist, salvage pumps, cutting torches and
other salvaging equipment. The Standon and
Standto are tugs. The Gulf Lifter is equipped
with a lifting crane. These four vessels were
used at various times in rendering the services.
The B. C. Salvor and the Standon were used in
the initial stages and subsequently and the other
two vessels were added in the course of the
services, which extended through the period
March 14 to March 22, 1971, inclusive. The
services are detailed in the plaintiff's bill of
account, Exhibit P-3, and the notes thereto. The
plaintiff found it necessary to engage the serv
ices of two divers from another company at a
cost of $2,059.42 which is included in the plain
tiff's bill.
A meeting took place on March 13, 1971,
between Mr. Benson, secretary of the plaintiff
company, Mr. Smith, its president, and Mr.
Muren, at which the recovery of the vessel was
discussed, following which the plaintiff compa
ny commenced to get the necessary equipment
and prepared to go to the scene of the sinking to
recover the vessel. On March 15 the B. C.
Salvor, towed by the tug Standon, left Vancou-
ver and went to Nanaimo where the divers were
taken on board. On March 16 these two vessels
left Nanaimo and went to where Muren thought
his vessel was. Considerable searching took
place before the vessel was found with the help
of a fishing vessel, Melvin E, and use of her
depth sounder. The sunken vessel was found at
the bottom in about 105 feet of water. The
divers then went down and examined the situa
tion and put out markers. Then the plaintiff's
two vessels went for that night to a sheltered
location, Nanoose Bay, about three miles away.
On the next morning, March 17, the two vessels
went back to the scene, attached slings to the
sunken vessel and moved her closer to the
shore, but they were not able to lift her to the
surface. It was then decided that it would be
necessary to have the Gulf Lifter to assist in the
work, and the Standon was sent to Vancouver
for her. The tug Standto was also sent for. On
March 18 the Standon returned with the Gulf
Lifter in tow and they stayed overnight at
Nanoose Bay. On March 19 the plaintiff's four
vessels went back to the scene and moved the
sunken vessel to shallower water. On March 20
they raised her and towed her to Nanoose Bay.
On March 21 the herring were pumped out and
on March 22 the vessel was towed to a shipyard
at Vancouver.
The recovery operations were hampered by
the vessel's net which had fish in it and was
tangled in the rigging and mast and around the
vessel, and by the lie of the vessel which made
it difficult to get slings in position around her.
The divers had to surface frequently to decom
press, and there were interruptions of their
diving because of weather and sea conditions.
In early efforts to lift the vessel a strap was
attached to each side, one strap being attached
to a cleat on the port side, but the cleat broke
and the strap pulled free. The other strap on the
starboard side also pulled free. When the Gulf
Lifter came into use slings were attached at the
fore and aft ends of the vessel, a heavy piece of
an anchor chain was cut and used, and the
vessel was raised. She was covered with oil and
herring and the loose net and gear. The herring
were decomposed and difficult to pump out.
Special pumps were needed. Pumping was start
ed when the vessel was brought to the surface
and was completed after she was towed to
Nanoose Bay. Exhibits P-4, P-5, P-6 and P-7 are
divers' daily reports of their work and the con
ditions they found on March 16, 17, 19 and 20.
They did not dive on March 18.
In its statement of claim the plaintiff refers to
the services rendered in raising the vessel,
removing the herring and towing her to the
shipyard at Vancouver, and further and in the
alternative says that the plaintiff entered into a
salvage agreement with the defendant Muren
whereby it was agreed that the plaintiff would
be paid for its services on the basis of its usual
rates for men and equipment utilized in per
forming the salvage, together with payment for
expenses incurred in hiring the divers and ten
ders, and the plaintiff claims for the said serv
ices the sum of $17,549.16, or alternatively,
such amount of salvage remuneration as the
Court may see fit to award for the salvage
services of the plaintiff, and condemnation of
the defendant Muren and the defendant vessel
in the said salvage and costs.
In the defendants' statement of defence as it
was at the commencement of the trial the
defendants denied the allegations of fact, except
admissions, in the statement of claim, and in
further answer said that the plaintiff did per
form certain salvage services whereby the
vessel was raised from a sunken position. At the
opening of the trial counsel for the defendants
moved for leave to amend the defence by delet
ing the word "salvage" in reference to the serv
ices performed. I allowed the amendment, feel
ing that the evidence would disclose the nature
of the contract and services, and paragraphs 4
and 5 of the statement of defence, as so amend
ed, now read as follows:
4. In further answer to the Statement of Claim the
Defendants say that the Plaintiff did perform certain serv
ices to the "B.C. ADVENTURE" whereby the "B.C. ADVEN
TURE" was raised from a sunken position without however
any danger whatsoever to the Plaintiff, its servants or
agents.
5. In further answer to the Statement of Claim the
Defendants have offered to the Plaintiff an amount more
than sufficient to compensate it for the services performed.
In his argument following the evidence at the
trial counsel for the defendants submitted that
the plaintiff's contract was not with the defend
ant Muren but with the insurers of the vessel,
that it was a contract for services not in the
nature of salvage, and that the plaintiff had no
salvage agreement and has no claim for salvage,
that this Court has no jurisdiction in respect of
the contract for services, and if it has jurisdic
tion the wrong defendant is before the Court.
Counsel for the plaintiff argued in that respect
that the plaintiff had a salvage agreement with
Muren and that the services rendered were sal
vage services, and this Court has jurisdiction.
There was no written agreement. In the cir
cumstances of urgency to rescue the vessel it is
understandable that the arrangements were
made verbally and not put into a written docu
ment. There was some conversation by phone
by Mr. Muren with Mr. Christenson of the
insurers of the vessel, Pacific Coast Fisher-
men's Mutual Marine Insurance Company, and
later there was a phone conversation between
Mr. Benson and Mr. Christenson. This was fol
lowed by a face to face meeting between
Muren, Benson and Smith. As I understand the
evidence of Muren in that respect it was to the
effect that Mr. Christenson told him to arrange
for the recovery of the vessel and told him that
when the job was done the insurance company
would see that it was paid for, and he told
Benson and Smith at their meeting that he had
authority to hire them and that the insurance
company would get the bills. On his examina
tion for discovery he referred to that meeting
and in answer to the following question:
Q. And you, at the conclusion of the meeting, said to Mr.
Smith "You have the equipment, therefore you go and
raise the vessel"?
he replied:
A. That's right.
In his testimony at the trial Muren said that
he told Smith and Benson to go ahead. He also
was present during a considerable part of the
efforts made to find and recover the vessel and
gave assistance and direction in those efforts.
Mr. Benson testified that Muren had told him
a couple of days after the sinking that the insur
ers had suggested that he discuss with Benson
whether the vessel could be raised, and Muren
also wanted Benson's company to repair the
vessel. That company had done work for him on
other occasions. He, Benson, then phoned
Christenson who said to go ahead and salvage
the vessel. Benson asked if he wanted a fixed
price or a "no cure, no pay" basis, and Christen-
son said no go ahead and salvage. Benson's
understanding was that the insurers would be
billed for the services rendered. The subsequent
meeting between Muren, Benson and Smith fol
lowed and there Muren said to go ahead and
salvage the vessel, and they discussed the prob
lems of raising her and getting rid of the herring.
The services were not to be on a "no cure, no
pay" basis, and payment was not dependent
upon success. Mr. Smith said that he left the
financial arrangements more or less to Benson.
His understanding was that the salvage services
would be paid for on the usual daily rate basis
and that the insurance company would provide
payment. The plaintiff's bill for the services was
made out to the owners and the insurers.
On the question whether the plaintiff's agree
ment in respect of the recovery of the vessel
was exclusively with the insurers, I do not think
it was, although the evidence is somewhat
indefinite. The owner, Muren, was concerned
that the insurers be informed of the sinking and
that action be taken without delay to salvage the
vessel with the consent and approval of the
insurers and promise that insurance money
would be available for that purpose. Benson had
a similar concern that there in fact would be
insurance money available and after being satis
fied in that respect by his phone conversation
with Christenson he proceeded to deal directly
with the owner of the vessel at the meeting
attended by himself, Muren and Smith, and at
that meeting Muren authorized him to go ahead
with the salvage efforts. The arrangements were
informal and they did not spell out exactly the
responsibility for payment for the services to be
rendered, but I think that the evidence warrants
a conclusion that the plaintiff undertook its
efforts to recover the vessel by direction of
Muren as owner of the vessel, with a right to
look to him as such owner for payment. Muren
was fully aware that he was dealing with profes
sional salvage people. Salvaging the vessel was
the objective being sought. It is difficult for me
to conclude that when Muren engaged the plain
tiff at the meeting with Benson and Smith he
considered himself and the vessel to be free
from any responsibility for payment for the
services he was contracting for and that he was
engaging the plaintiff solely as an agent of the
insurers. Neither do I think it likely, although it
is not inconceivable, that experienced salvage
people, Benson and Smith, would undertake the
salvage operations on a basis that the vessel and
its owner would in no way be liable for payment
and that the plaintiff's only recourse would be
against the insurers on the strength of a tele
phone conversation with Christenson. I think
that at the meeting of Muren, Benson and Smith
there was an agreement between them for the
services to be rendered at the request and on
the responsibility of the owner, they having
previously satisfied themselves that the insurers
were agreeable to the salvage undertaking and
that insurance money would be available for
payment of the services on a daily rate basis.
Mr. Christenson was not called as a witness and
the insurers were not a party to the action. It is
noteworthy that the statement of defence says
that the defendants have offered to the plaintiff
an amount more than sufficient to compensate it.
for the services performed. There is nothing to
indicate that the insurers considered that they,
rather than the owner of the vessel, have a legal
obligation to pay the plaintiff for its services.
As to the nature of the agreement and of the
services rendered, counsel for the defendants
argued that the plaintiff has no claim in salvage
and no salvage agreement, but only an agree
ment to render certain services, i.e., to raise the
vessel and tow her to port. As I indicated earlier
the statement of defence originally stated that
the plaintiff did perform certain salvage services
but I allowed an amendment to remove the
word "salvage" in respect of the services. It
was not until then that the rendering of salvage
services was disputed. The plaintiff's invoice
for the services, Exhibit P-3, indicates that they
were being treated as salvage services. I think
the intent of the parties at the time the services
were contracted for and rendered was that they
were salvage services.
Salvage services is defined in 35 Halsbury's
Laws of England, Third Edition, at page 731 as
being:
Salvage service in the present sense is that service which
saves or contributes to the ultimate safety of a vessel, her
apparel, cargo, or wreck, or to the lives of persons belonging
to a vessel when in danger at sea, or in tidal waters, or on
the shore of the sea or tidal waters, provided that the service
is rendered voluntarily and not in the performance of any
legal or official duty or merely in the interests of
self-preservation.
Kennedy, Civil Salvage, at page 5, describes a
salvage service in a similar way:
... as a service which saves or helps to save a recognized
subject of salvage when in danger, if the rendering of such
service is voluntary in the sense of being solely attributable
neither to pre-existing contractual or official duty owed to
the owner of the salved property nor to the interest of
self-preservation.
Carver's Carriage by Sea, 12th Edition, Vol.
2, says in paragraph 792:
One who saves, or helps in saving, a vessel to which he is
a stranger, from danger at sea, is entitled to a reward for his
services; and if he has obtained possession of the vessel, he
may retain possession until he has been paid the due reward.
Halsbury says at p. 732 that salvage services
may be rendered in many different ways,
including raising a sunken vessel. The Catherine
((1848), 6 Notes of Cases, Supp. xliii) was cited
as authority therefor, its headnote being as
follows:
A vessel, having been wrecked, was sold, as sunk, and the
purchaser, in order to raise her, employed a patented
apparatus, belonging to a Salvage Company, by a verbal
agreement with one G.N., and the first attempt failing, he
made an agreement in writing with another person, E.A., for
a further attempt with the same apparatus, which likewise
failed; and another agreement, in writing, was made between
the purchaser and G.N., for a third attempt, which succeed
ed; the Salvage Company, the owners of the apparatus, sued
for salvage, disavowing the agreements, as unauthorized by
them; the owners appeared under protest, alleging that the
services were not of the nature of salvage, but had been
rendered under a contract made on land, over which this
Court had no jurisdiction: —Held, overruling the protest,
that, the service being in its nature of a salvage character,
the jurisdiction of this Court over the subject-matter was
not ousted by a mere averment of a binding agreement on
land, that the Court must try the question whether there was
an agreement or not, and if there was, it has jurisdiction
over the money brought in under an agreement pleaded in
bar.
In his judgment in that case, Dr. Lushington
said (at p. xlviii):
... No one doubts that, if a vessel is sunk on any of the
coasts of this country, or in any of the rivers of this country,
and a service is performed to her, which rescues her from
destruction, it is a salvage service.
Counsel for the defendants cited The Solway
Prince [1896] P. 120, the headnote of which
reads:
The plaintiffs, with the knowledge and assent of her
owners, undertook to lift a sunken vessel, under a contract
with the insurers, who advanced to the plaintiffs before the
work commenced 40 per cent. of the amount for which the
vessel was insured. The vessel was successfully raised, but
the operation of lifting proved more costly than was
anticipated, and some of the underwriters in the meantime
became insolvent. In an action of salvage brought by the
plaintiffs against the defendants as owners of the vessel:—
Held, by Sir F. H. Jeune, President, that the contract with
the underwriters, which was not dependent on success,
precluded the plaintiffs from asserting a maritime lien on the
vessel, and claiming salvage remuneration from her owners.
and The Goulandris [1927] P. 182, in which
Bateson J. said at p. 191:
Mr. Balloch, for the defendants, took several points,
which he says entitle him to have this writ set aside. The
first point is that Lloyd's form of salvage contract ("No cure
no pay") prevents the plaintiffs from bringing an action for
salvage. It is contended that the case is governed by the
decision in The Solway Prince ([1896] P. 120), where the
contract by the salving vessel made with the insurers of the
salved vessel excluded the plaintiffs from any right to sue
the ship herself when the insurers became bankrupt and
failed to pay. I think the two cases are totally different. In
The Solway Prince there was a contract between the salvors
and the insurers to do a particular work at a fixed price. The
salvors therefore were not volunteers; it was not a "No cure
no pay" contract, and inasmuch as they were not volunteers
there could not be any salvage. In the present case the
contract was a contract to salve "No cure no pay", with all
the attending consequences, if salving services are per
formed, of there being a maritime lien on the property in
favour of the salvors; and that maritime lien on the property
has never been put an end to by any action of a competent
Court or by any bargain which has been fulfilled between
the parties.
In the present case the agreement was not on
a "no cure, no pay" basis. But it does not follow
therefrom that the services were not of a sal
vage nature. Carver's Carriage by Sea, 12th
Edition, deals with distinctions between salvage
services rendered with and without a contract
and I quote therefrom in part as follows:
799. Right limited by the amount of property saved. But it
is important to note that salvage, apart from contract,
depends entirely upon the safety of some of the property in
respect of which the services have been rendered. If no part
of that has been brought into safety, no salvage can be
obtained; and the amount so saved is the limit of possible
salvage.
800. The case is, however, different where the salvors
have been employed to do the work by the owner of the
property, or by someone having his authority. There is then
a contract by the owner to pay for the services, and he may
be personally liable to do so whether the property be saved
or not. Such an employment may be by express agreement
between owners and salvors, or it may be inferred from the
acts done on the one side and the other.
In The E.U. Dr. Lushington, putting the case of "a
vessel in distress and an order sent to put an anchor and
cable on board, and that that is done, but that afterwards
from the violence of the weather the vessel is carried
away and lost," added that the service "is such as must be
paid for whether the vessel is lost or not."
And where there has been an employment, and services
rendered in consequence, the right to a reward seems,
generally, to be independent of whether those services have
or have not contributed to the ship's safety.
If men are engaged by a ship in distress, whether
generally or particularly, they are to be paid according to
their efforts made, even though the labour or service may
not prove beneficial.
802. Distinctions between employed and unemployed sal-
vors. The distinction between volunteer salvors and
employed salvors is important in other ways. So far as the
amount of reward and the remedies against the property
saved are concerned, they stand practically on the same
footing, except that the agreement may fix the amount. If
the service has been rendered in saving from danger it is a
salvage service, whether it was employed or was done by a
volunteer; and the scale of reward, and the lien for it, will be
those of salvage.
But, as we have seen, employed salvors may have reme
dies against those who employed them, when volunteers
would have none.
and in paragraph 812 there is the following:
812. Otherwise if service employed. If however, the serv
ices have been employed, under such circumstances that a
promise to pay for them can be implied, the right to reward
becomes independent of whether they contributed to bring
about a successful result or not.
In Admiralty Commissioners v. Valverda
[1938] A.C. 173, the House of Lords dealt with
a contract that warships belonging to His Majes
ty should render salvage services to the vessel
Valverda, which was on fire at sea. One of the
contentions was that the services were not sal
vage services under the maritime law but were
rendered under the agreement - and that it was
not a salvage agreement but an agreement for
work and labour, and that an agreement in
which the "no cure, no pay" basis is departed
from is not a salvage agreement. In respect of
that contention Lord Wright said at page 187:
.But I have to note one objection particularly relied on by
the Admiralty. The objection is based on clause 5 of the
agreement. That clause provides for a remuneration in the
event of non-success. It is said to be inconsistent with the
nature of salvage, which is necessarily on a "no cure, no
pay" basis. Its presence, it is said, determines the character
of the whole agreement and prevents it from being regarded
as an agreement for salvage. This argument is, in my opin
ion, not only unsound in principle but contrary to well
established decisions of the Admiralty Court. It was boldly
contended that these decisions were wrong, in particular The
Kate B. Jones ([1892] P. 366) and The Edenmore ([1893] P.
79). In the former case Gorell Barnes J. was of opinion that
the salvor would be entitled to some remuneration even in
the event of failure, because he was in some respects an
agent of the owner of the salved vessel, and accordingly he
based his award on the principle that the risk of the entire
loss of the salvor's expenditure, if unsuccessful, was a risk
which the salvor there did not incur. But that did not lead
the judge to treat the services as other than salvage services,
though it did affect the amount of the salvage remuneration
which was awarded. Similarly in The Edenmore (supra) the
same learned judge was inclined to the view that the agree
ment would entitle the salvors to some remuneration even if
the services were not successful. But he held that the
services were salvage services and made a salvage award,
adding that it was very difficult to say what precise effect
such a stipulation ought to have in reduction of the sum
awarded when the services proved successful. I think the
principles accepted by that very learned and experienced
judge are sound. The stipulation for some payment in the
event off failure is severable. It could not affect the position
if the services were successful, save that it might properly
be taken into account so as to reduce the amount of the
award on the ground that the salvor was not taking the full
risk of "no cure, no pay." In my judgment the services
rendered to the Valverda by the Admiralty vessels were
salvage services and the agreement was a salvage agree
ment, so that s. 557 applied and excluded the appellants'
claim.
Lord Roche said at p. 202:
There remain two other contentions. The first was one
which found favour with Greer L.J. and was much pressed
in this House—namely, that the agreement was not an
agreement for salvage, and that inasmuch as there was an
agreement for payment, the payment stipulated for was not
salvage remuneration. It is true enough that the right to
salvage arises independently of and is not based upon con
tract; but it is untrue to say that where there is a contract as
to salvage it ceases to be salvage. Counsel for the respond
ents was probably not far from the mark in saying that in
these days of Lloyd's salvage agreements the larger number
of salvages are regulated by agreement. Nevertheless they
do not cease to be salvages, and they are dealt with and paid
for in accordance with the maritime law of salvage. The task
would be endless to cite the cases in which the Court of
Admiralty has administered the law upon this basis and by
so doing has negatived the contention now put forward.
In a recent case in this Court M.I.L. Tug &
Salvage Limited v. The Motor Vessel "Ghislain"
rendered on August 27, 1971, Associate Chief
Justice Noël dealt with a claim for salvage serv
ices pursuant to a contract between the plaintiff
and the owner of the vessel. The plaintiff had
refused to agree to a Lloyd's Open Form Con
tract and an agreement was entered into that the
plaintiff would send its tug Foundation Valiant
and attempt to take the Ghislain to Bermuda on
a daily hire rate of $2,800. The defendant took
the position at the trial that the services were
mere towage services, not salvage. The Associ
ate Chief Justice held that the services were
salvage services and the fact that there was an
agreement for payment on a daily rate basis
should not prevent the salvor from claiming for
the services as salvage, and he allowed the
plaintiff's claim and found that the plaintiff
holds a maritime lien on the defendant vessel
for the amount adjudged.
In the present case I find that the agreement
was for salvage services and that the services
rendered were salvage services.
The defendants contend that in any event the
amount claimed is excessive and that any award
should not exceed $8,500. They say that the
plaintiff initially took equipment to the scene
that it knew was insufficient to lift the vessel
with its herring on board, and that consequently
there was unwarranted delay and resulting
charges for the plaintiff's vessels, divers, labour
and supervision that would not have been
incurred if the plaintiff had initially taken suffi
cient equipment to lift the vessel. They contend
that the services could have been performed in
not more than 5 days, namely, March 14 to 18,
inclusive, rather than the 9 days, March 14 to
22, billed by the plaintiff. Counsel for the
defendants submitted also that the salved value
of the vessel on her recovery, dirty and
damaged by her stay on the bottom, was not
more than $22,000. There was evidence by
Muren that when the vessel was built in 1964
her cost with $2,000 of radar equipment was
$74,000 and that she had that value at the time
of her sinking; also that she was repaired and
improved and was provided with additional
equipment after her recovery at a cost of about
$59,757 and was sold in March 1972 for $125,-
000, which price included a power skiff worth
about $3,500, a salmon seine net worth
$12,000, and certain other equipment and
improvements made to the vessel.
The vessel was dirty with oil and herring
when she was raised and some damage had been
done to her rudder and interior and to her
equipment, and her value when she arrived at
Vancouver was less than her value immediately
prior to her sinking. Benson Bros. Shipbuilding
Co. repaired her and that company's account
dated June 30, 1971, which is included in the
documents in Exhibit D-2, for repairs and
materials supplied was $39,710.07 and there
were subsequent charges bringing the bill to
$41,218.27. While there is no conclusive evi
dence as to the vessel's value when she arrived
at Vancouver I would think that on such evi
dence as was given her value at that time was
probably in the range of $30,000 to $33,000.
The salvage charges of $17,549.16 have been
supported by detailed information in the bill
presented by the plaintiff and by the evidence at
the trial. As events proved, it became necessary
to have more equipment than was initially taken
to the scene, and it is probable that if all the
equipment eventually used had been there from
the beginning the recovery of the vessel would
have been accomplished in less time than it
actually took but that is looking at the situation
with the benefit of hindsight. Undoubtedly at
the time when the salvage operation was under
taken there were imponderables, including what
weight of herring remained in the vessel and
what the total weight to be lifted would be. The
plaintiff had previous experience in lifting ves
sels with herring in them. I am satisfied that
when the operation was undertaken there was
no want of care or skill on the part of the
plaintiff in deciding what equipment to take to
the scene, and that the judgment made at that
time as to the equipment needed was reasonable
in the circumstances. The salvage services actu
ally rendered were not more than were neces
sary. They succeeded in rescuing the vessel
from a position of actual and immediate danger
and placed her in a position of safety at Van-
couver. The operations involved risks to the
plaintiff's equipment and to the divers hired by
the plaintiff. The vessel was in exposed waters,
and the time of the year was March. The entan
gled net, the decomposed herring and the lie of
the vessel on the bottom presented difficulties.
The amount of salvage remuneration allowed
in any case is determined by the Court, having
regard to the extent, nature and effect of the
services rendered and the merit and sacrifice of
the persons rendering them. The degree of the
danger in which the vessel was lying, her value,
and the effect of the services in rescuing her
from that danger are to be considered, along
with the risks run by the salvor, his enterprise,
endurance and skill and the nature and duration
of his labour. Where there has been a fair agree
ment' the parties will be bound by it, although
the services agreed to be done for them became
more difficult, or less difficult, than was expect
ed. See to the above effect Carver's Carriage by
Sea, 12th Ed., Vol. 2, paragraphs 830, 834 and
836.
I think that in this case the agreement was
fair, as the extent and duration of the salvage
services were uncertain when the services com
menced, and the charges were to be on normal
daily rates for whatever services were rendered.
Applying the above considerations and treat
ing the plaintiff's claim either on the basis•of the
agreement or on the basis of salvage services
rendered with or without the agreement, I think
that the amount of the claim for the services
rendered is fair and reasonable and that the
plaintiff is entitled to recover payment from the
defendants. Therefore the plaintiff will have
judgment against the defendants for $17,549.16.
At the trial it was requested by counsel and
agreed that the parties would have an opportuni
ty to speak to the question of costs if the
plaintiff is successful in its action. It may be
that the parties will agree on the amount of
costs to be awarded as a fixed lump sum under
Rule 344(1) in lieu of taxed costs.
Pursuant to Rule 337(2)(b) counsel for the
plaintiff may prepare a draft of an appropriate
judgment to implement the Court's conclusion
and move for judgment accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.