378 EXCHEQUER COURT OF CANADA [1948 1948 BRITISH COLUMBIA ADMIRALTY DISTRICT May 11&12 May 19 BETWEEN: FALCONER FISHING FLEET LIMITED ET AL PLAINTIFFS f AND THE SHIP ISLAND PRINCE DEFENDANT. Admiralty—Salvage—Award should be liberal—Cost of bail paid by plaintiff when excessive amount demanded. Held: That upon the facts disclosed plaintiffs' vessel performed a salvage service, at no little risk to the salvaging vessel, which resulted in extricating the defendant salvaged vessel from a position of danger to one of complete safety; the service contained in some degree all the many and diverse ingredients of a salvage service and the reward to plaintiff on the ground of public policy should be liberal though not extravagant. 2. That when a plaintiff has demanded and obtained bail for an excessive amount it must pay the cost of the whole bail.
Ex.C.R.) EXCHEQUER COURT OF CANADA 379 ACTION for salvage. 1948 The action was tried before the Honourable Mr. Justice FALCONER FISHING Sidney Smith, District Judge in Admiralty for the British FLEET LTD. ET AL Columbia Admiralty District, at Vancouver. V. THE SHIP J. Howard Harman for plaintiffs. ISLAND PRINCE A. Bull, K.C. and Vernon, Hill for defendant. The facts and questions of law raised are stated in the reasons for judgment. SIDNEY SMITH D.J.A. now (May 19, 1948) delivered the following judgment: This is a claim for salvage services rendered to the defendant ship Island Prince. It is brought by the owner, master and crew of the fishing vessel Glendale V. The Island Prince is a steam screw cargo vessel 123.5 feet long, 28.8 ft. beam, of 415.99 gross and 266.35 register tonnage, and having a speed of 8 knots. There was conflicting evidence as to her value, but I think $50,000 would not be far from the mark. In fixing this amount I do not wish to reflect in the slightest on the integrity of the witnesses to value, for on this there is room for wide variance of opinion. She was partially laden with a mixed cargo, part of which consisted of lumber stowed on deck; and was in the course of a voyage from Vancouver via various ports to Port Alice. The Glendale V is a motor screw vessel of 27.57 register tonnage, fitted with a diesel engine, and engaged in purse seine fishing. She had a complement of three—master, mate and engineer. Her value is approximately $20,000. On 21 April, 1947, at about 4 p.m., while proceeding to the fishing grounds at Goose Island, the Master of the Glendale V intercepted a radio-telephone message to all ships in the vicinity to the effect that the Island Prince was in difficulties and required assistance. The Glendale V was then in the neighbourhood of Hardy Bay, at the North end of Vancouver Island, and had in mind seeking shelter for the night. The position of the Island Prince was some 10 miles west (mag.) of Pine Island at the entrance to Queen Charlotte Sound, and therefore about 24 miles distant from the Glendale V. This signal, repeated some fifteen times during the afternoon and originating in a
380 EXCHEQUER COURT OF CANADA [1948 1948 radio-telephone report from the Master to his Owner, was FALCONER also intercepted by other vessels in the neighbourhood, FISHING FLEET LTD. notablythe Dinamac and the Tug La Po inte ( with two ET AL v. barges in tow), but these vessels had their own difficulties, THE SHIP and were thus unable to respond; although they kept in ISLAND PRINCE touch with developments by radio-telephone. The Glen-dale V proceeded through head seas to the assistance of the Sidney Smith D .J.A. I sland Prince a nd about 8.15p.m. made u pto her. This latter vessel had lost her rudder and in the course of rigging a jury rudder, had got her propeller fouled by a wire, thus losing both steering and motive power. The situation of the Island Prince is well described in the following entry from her log-book: 12 40—Lost the rudder. All hands spent the afternoon rigging a jury rudder. After it was rigged the wire on the starboard side fouled the propeller and we were unable to use it. A sling load of 2" x 4"s was streamed from the bow to act as a sea-anchor. At 20.15 the fish boat Glendale V arrived and took us in tow. Sling load of 2" x 4"s had to be cut loose. Heavy seas were running causing the vessel to roll heavily. The excessive rolling did considerable damage to various parts of the vessel and cargo. Contacted the tug Petrel who is going to pick us up somewhere below Noble Id. This is borne out by the oral evidence except as to the damage to the vessel, which was not elsewhere mentioned. I find the wind was from the North West, blowing with a force of approximately 25 to 30 miles per hour, with heavier gusts; and that the vessel was then in exposed waters, and in a position of appreciable though not actual or imminent danger. The log reference to the Tug Petrel concerned an arrangement made by the respective owners that this tug should tow the Island Prince either from Shushartie Bay or Hardy Bay to Vancouver. The tug was in such a position that had she proceeded north of these places to the exposed waters in which the Island Prince found herself, she could not have reached that vessel until 2 a.m. The Glendale V succeeded in taking the Island Prince in tow, using for this purpose two of her own wires, and in due course reached Hardy Bay at 1.45 a.m., where she handed over her charge to the waiting Petrel. The voyage was not without adventure. The following wind and sea was of assistance; but some water came over the stern and there was risk of the tow overrunning the towing vessel.
Ex.C.R.] EXCHEQUER COURT OF CANADA 381 One wire parted at the entrance to Christie Passage, and the 1948 Glendale V. had a hard tussle to make the entrance: but FALCONER in the end all was successfully accomplished. FISHING T. There is little to be gained by canvassing the evidence ET AL in detail. It will suffice to state my conclusions. But I T$E Sarr think it right to say that I was impressed by those on pR cE board the Glendale V. I thought their evidence was Sidney refreshingly given to under-statement, rather than over- Smith statement. I think this was undoubtedly a salvage service —a volunteered service, gallantly undertaken and skilfully executed; performed at no little risk to the salvaging vessel; and resulting in extricating the salved vessel from a position of danger to one of complete safety; and so containing in some degree all the many and diverse ingredients of a salvage service. What should be the reward? On the ground of public policy it should be "liberal", though not "extravagant". Bearing in mind these factors, together with the values of the two ships, and the fact that money has not now the value it had a quarter of a century or so ago, I think an appropriate amount would be $2,500; and it is so ordered. One other point calls for mention. The plaintiffs admittedly demanded security for an excessive amount. In the circumstances I think a bail bond of $4,000 or even $5,000 was all that could have been reasonably exacted. They demanded and obtained bail for $50,000, later reduced to $10,000. Following the practice of the Court in such cases, they must therefore pay the cost of the whole bail. I have always thought this rather a harsh rule. It seems to me that justice would be done by requiring the plaintiffs in such a case to pay the cost of the excess over what in the event would have been reasonable bail. But the practice has been too long established to be disturbed by me now; The Race Rock (1). All I can do is once more to point out that the Court will mark its disfavour of demanding excessive bail by dealing with the cost thereof in the manner indicated. There will be judgment accordingly with costs, less the cost of bail. Judgment accordingly. (1) (1932) 45 B C.R. 522 at 531.
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