the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2012-03339

Between

Owner/Operator, Captain and Crew Members of KP Rambler

Claimants

v

The Owners and Other Parties interested in the Vessel “M/V Edmell II”

IMO Number 7509304

Defendants

Before the Honourable Mr. Justice A. des Vignes

Appearances:

Mr. Farid Scoon for the Claimants

Ms. Nyree D. Alfonso and Ms. Parag for the Defendants

JUDGMENT

INTRODUCTION

1. The Claimants are the Owners, Captain and Crew of a utility tug registered of the Port of Port

of Spain, bearing the International Maritime Organisation Number 869288 and known as the

KP Rambler (hereinafter referred to as “the Rambler”). The Defendants are the Owners and

other interested parties of a vessel registered in the St. John’s Port of Antigua and Barbuda,

bearing the International Maritime Organisation Number 7509304 and known as the M/V

Edmell II (hereinafter referred to as “the Edmell”). The Claimants have alleged that the

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owners of the Edmell are International Shipping Carriers Limited which is a limited liability

company registered in Antigua and Barbuda.

2. The Claimants allege that the Rambler provided salvage services to the Edmell on or about

17th

January, 2012 by reason whereof they claim to be entitled to payment for salvage (and

not towage) of the Edmell and its preserved cargo and freight, together with interest and

costs.

THE CLAIM

3. By Claim Form and Statement of Case filed on 15th

August, 2012, the Claimants alleged as

follows:

a. On 16th

January, 2012, Mr. Oliver Lashley, the Defendants’ local Agent

(hereinafter referred to as "the Agent") contacted the operator of the Rambler, Mr.

John Jordan, to procure the towage services of the Rambler for the Edmell. The

Agent informed Mr. Jordan that the Edmell was approximately twenty-five (25)

nautical miles south east of Galera Point in the waters of Trinidad and Tobago

with disabled engines and drifting toward a gas platform and in danger of

colliding with same. He also informed Mr. Jordan that prior to experiencing

difficulties, the Edmell was in the course of a voyage from Barbados to Suriname

with a five member crew and was carrying a cargo of 650 tons of cement;

b. The Agent provided Mr. Jordan with full particulars of the size, tonnage,

registration details and location of the Edmell, and informed him that her engines

were disabled and she was drifting with no lights and power. However, the Agent

did not inform Mr. Jordan of the exceptional circumstances facing the Edmell,

namely, that she was listing to port side, unmanned and taking in water;

c. It was agreed between the Agent and Mr. Jordan that the cost of providing towage

services would be US$25,000.00;

d. The status of the Edmell was reported to the Coast Guard of Trinidad and Tobago

who in turn informed the Director of Maritime Services;

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e. On 17th

January, 2012, at or about 2:15 pm, the Rambler and its crew proceeded

to the location of the Edmell to commence towage services. At that time the

Edmell was located 18.5 nautical miles south east of Galera Point at 11 degrees

48 minutes north latitude and 061 degrees 38 minutes west longitude. Upon

arrival the Edmell was drifting in rough sea and/or deteriorating weather

conditions and in danger of colliding with nearby gas installations which could

have resulted in the destruction of both the vessel and platform. Further, the

Edmell was unmanned, she had no power and lights, she was listing heavily to

port and she was taking in water which was destabilizing her. As such, the Edmell

was in danger of marine peril and the Rambler voluntarily undertook to perform

salvage services thereby rescuing the Edmell, its cargo and freight;

f. The salvage services performed by the Rambler were maneuvering alongside the

Edmell to establish a point of contact, boarding to inspect her condition, attaching

a tow hawser to the Edmell in the absence of her crew, conducting pumping

operations to stabilize her and transporting her to the Maritime Preservation Yard

in Port of Spain;

g. These salvage services were not in the reasonable contemplation of the parties

when the towage agreement was made between Mr. Jordan and the Agent and

were outside of the scope of the towage agreement and could also have resulted in

loss of life or limb;

h. The salvage value of the Edmell and its cargo was US$250,000.00 and

US$69,554.00 respectively;

i. The Rambler suffered the following loss and damage by reason of performing the

said salvage services to the Edmell:

i. Damage to the towage hawser amounting to US$3,000.00;

ii. Loss of fuel amounting to US$1,000.00; and

iii. Loss of profits due to post-salvage operations at a rate of US$2,500.00 per

day for 30 days.

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4. By reason of the matters aforesaid, the Claimants claimed the following reliefs against the

Defendants:

i. Salvage of the Edmell and its preserved cargo and freight;

ii. Interest pursuant to Section 24A of the Supreme Court of Judicature Act;

and

iii. Costs.

5. On 15th

August, 2012, the Claimants applied, during the Court long vacation, for permission

to serve the Defendants out of the jurisdiction and on that date, Justice Gobin granted leave

to the Claimants to serve the Claim Form and Statement of Case on the Defendants by

delivering same to the Captain or any crew member on the Edmell at the fertilizer wharf of

the Port of Georgetown, Guyana or wheresoever within the jurisdiction of Guyana the vessel

is so found.

6. On 29th

August, 2012 an appearance was entered on behalf of the Defendants by its

Attorneys-at-Law. The appearance stated thereon that the Claim Form and Statement of Case

were received on the 20th

August 2012, that the Defendants intended to defend the claim and

that its address was World Trade Shipping, No. 1 Abercromby Street, Port of Spain.

THE DEFENCE AND COUNTERCLAIM

7. By Defence and Counterclaim filed on 15th

October, 2012, the Defendants alleged as follows:

a. On 11th

January, 2012 the Edmell set sail from Barbados to Suriname with a cargo

comprising 650 tons of cement;

b. On 14th

January, 2012, the Edmell encountered bad weather which caused the

cargo to shift resulting in the Edmell listing to the portside and taking in water.

The Edmell lost engine and electrical power and long range communication. Her

crew was forced to abandon the vessel and they were rescued by the vessel M/V

Bermuth Calypso;

c. The Edmell was never in any danger of colliding with a gas platform and at all

material times the Trinidad and Tobago Coast Guard was in close vicinity for the

purpose of preventing such a collision;

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d. On 17th

January, 2012, the Agent informed Mr. Jordan of the status of the Edmell

including the fact that she had lost all engine and electrical power, was listing to

port, there was a likelihood that she had taken in water and that she was

unmanned. Further, the Agent requested Mr. Jordan to provide a vessel with crew

to intercept, secure and tow the Edmell to the port of Port of Spain;

e. The Agent and Mr. Jordan entered into an oral salvage contract to provide the

aforementioned services at the cost of US$25,000.00 and this was confirmed via

electronic mail sent by the Agent to Mr. Jordan;

f. The Agent and Mr. Jordan were aware or ought to have been aware of the

particulars regarding the necessity of salvage when the oral contract was made

and that the Edmell was in danger;

g. The usual towage rate charged by providers of tug services in this jurisdiction for

vessels such as the Edmell in the circumstances described was approximately

US$10,000.00 per day;

h. The Trinidad and Tobago Coast Guard was informed of the status of the Edmell

and they were aware that she was listing heavily on 14th

January, 2012 and she

appeared unmanned on 16th

January, 2012;

i. The Rambler and its crew arrived to commence towage at approximately 7:45 pm

on 17th

January, 2012 and at that time the Edmell was in danger since she was

drifting in rough sea weather without engine or electrical power or crew and was

listing to portside. However, the Defendants did not know the location of the

Edmell at that time and the Claimant was required to prove this fact;

j. The services performed by the Rambler were not exceptional but were within the

scope of services agreed upon under the oral salvage contract made between the

Agent and Mr. Jordan. The Defendants admitted that the Edmell was transported

to the Maritime Preservation Yard in Port of Spain by the Rambler but did not

admit the particulars of salvage;

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k. The cargo was destroyed as a consequence of its contact with sea water while

onboard the Edmell. Accordingly, the cargo was not salved or rescued by the

Rambler;

l. The Defendants were not liable for the alleged loss and damage and the Claimants

were put to strict proof thereof;

m. The Claimants are not entitled to claim salvage of the Edmell and its cargo as,

pursuant to the oral salvage contract, the Agent tendered the sum of

US$25,000.00 to Mr. Jordan who refused to accept same;

n. The alleged salved value of the Edmell of US $250,000.00 was not admitted and

the Claimants were put to strict proof thereof. Further, the cargo was not owned

by the Defendants and was damaged after coming into contact with sea water. As

such, the salved value of the cargo was less than the amount quoted by the

Claimants; and

o. When the Edmell’s crew abandoned the vessel on or around 14th

January, 2012,

several items were left onboard and thereafter removed by Mr. Jordan and/or his

servants or agents during the course of their employment and, despite requests for

their return, the Claimants failed and/or refused to return these items. The items

are, a GPS Unit valued at US$500.00, a 3” water pump valued at US$1,000.00, an

electrical pump valued at US$800.00, a battery charger valued at US$1,500.00

and tools valued at US$3,000.00.

8. By reason of the matters aforesaid, the Defendants counterclaimed against the Claimants for:

a. Damages for the conversion of and/or the detention of and/or trespass to the said

items;

b. Interest in respect of such damages pursuant to Section 25 of the Supreme Court

of Judicature Act at the rate of 10% per annum commencing on 17th

January,

2012 until judgment; and

c. Costs.

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DEFENCE TO COUNTERCLAIM

9. By Defence to Counterclaim filed on 14th

November, 2012, the Claimants alleged as

follows:

a. The servants and/or agents and/or operator of the Claimants never removed any

items, including those listed by the Defendants in its Counterclaim, from the

Edmell;

b. Mr. Jordan never boarded the Edmell and the only time the Claimants’ servants

and/or agents boarded the Edmell was during the salvage operation; and

c. The Edmell was brought to Port of Spain and anchored off the Maritime

Preservation Dockyard, at which time the Agent took control of the vessel and the

Claimants’ agents did not board the vessel thereafter.

REPLY

10. By Reply filed 14th

December, 2012, the Claimants alleged as follows:

a. The Trinidad and Tobago Coast Guard vessel was not in the vicinity of the

Edmell for the purpose of, inter alia, preventing a collision with nearby gas

platforms as they were not equipped to so do and their role was to ensure that

other vessels did not collide with the Edmell. Further, the Trinidad and Tobago

Coast Guard was not equipped to prevent the Edmell from taking in water; and

b. Mr. Jordan was not told by the Agent that the Edmell had lost all engine and

electrical power.

THE EVIDENCE

11. In support of their claim, the Claimants relied on the evidence of John Jordan, Ian Boodoo

and Worrell Adams, who all filed Witness Statements on 21st May, 2013.

12. The Defendants filed Witness Statements in the names of Steve Edoo, Mohammed Karim

Yusuf, Desmond Simon, Oliver Lashley and Anthony Bovell on 21st May, 2013. They also

filed a Witness Summary in the name of Lt. Commander Ronald Alfred on 8th

July, 2013.

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However, at the trial, the Defendants failed to lead any evidence in support of their Defence

and Counterclaim.

THE TRIAL

13. On 16th

January, 2015, the Attorney-at-Law for the Defendants filed an Application to cease

to act on behalf of the Defendants. On the morning of the trial, 20th

January, 2015, instructing

Attorney-at-Law for the Defendants indicated that she had not received instructions from the

Defendants to appear at and participate in the trial. However, the Court declined to grant this

belated application since the matter had been listed for trial since 18th

June, 2014 and it

would be unfair to the Defendants to permit the Attorneys to withdraw at that late stage and

leave the Defendants without legal representation at the trial. Further, the Court noted that the

Civil Proceedings Rules 1998 (as amended) [CPR] contemplated that a withdrawal does not

take effect until the Order is served on the other party's Attorney-at-law and on the lay

client.1

14. As a consequence, the trial proceeded with the Claimants' witnesses giving evidence but the

Attorney-at-law for the Defendants declined to cross-examine these witnesses or to call any

witnesses on behalf of the Defendants.

ISSUES

15. In my opinion, the issues for determination in this matter are as follows:

a. Whether the agreement entered into between Mr. Jordan and the Agent was in

respect of towage or salvage?

b. Were the Claimants informed that the Edmell was listing to port, unmanned and

taking in water?

c. If the agreement made between Mr. Jordan and the Agent was a towage contract,

was it converted to a salvage operation by virtue of the services provided by the

Claimants?

1 Rules 65.7 and 65.8 of the CPR.

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d. Are the Claimants entitled to be compensated for salvage of the Edmell and/or its

cargo and freight on the basis that the Rambler engaged in a salvage operation,

and, if so, in what amount?

e. Whether the Claimants converted to their own use and/or detained and/or

committed a trespass to the items referred to in the Defendants’ Counterclaim

and, if so, what is the replacement value of those items?

16. Based on the submissions filed on behalf of the parties pursuant to the Court's directions at

the conclusion of the trial, the following issues also arise for determination:

a. Does the Court have jurisdiction to hear this claim and grant the reliefs sought by

the Claimants?

b. If this Court finds that a salvage contract existed, in the absence of evidence from

the Claimants' witnesses as to the value of the Edmell and its cargo, should the

Court refer this matter to an assessor to assess the award to be made to the

Claimants or proceed to assessment on the evidence adduced?

17. In relation to the issues raised at the close of the trial, I am of the view that issue 16 (b) is

subsumed under the substantive issue for determination at clause 15(d) and will be addressed

hereunder. As to the jurisdictional issue raised in 16(a), this will be addressed as a

preliminary issue since the determination of this issue may make it unnecessary to consider

the other substantive issues raised on the pleadings.

Does the Court have jurisdiction to hear this claim and grant the reliefs sought by the

Claimants?

18. It is not in dispute that by virtue of the conjoint effect of Section 9 of the Supreme Court of

Judicature Act and Section 22 of the Supreme Court of Judicature (Consolidation) Act,

1925 of England, the High Court is vested with jurisdiction to hear and determine admiralty

claims. Section 9 provides as follows:

“9. (1) There shall be vested in the High Court all such original jurisdiction as is vested

in or exercisable by the High Court of Justice in England under the provisions of the

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Supreme Court of Judicature (Consolidation) Act, 1925 of the United Kingdom, (*other

than sections 176 to 198) including the jurisdiction—

(a) in relation to matrimonial causes and matters; and

(b) with respect to declarations of legitimacy and of validity of marriage.

(2) There shall also be vested in the High Court—

(a) all original jurisdiction which was vested in the former Supreme Court by the

Judicature Ordinance and such jurisdiction shall include—

(i) the jurisdiction which was vested in or capable of being exercised by

all or any one or more of the Judges of any such former Court sitting in

Court or Chambers or elsewhere when acting as Judges or a Judge

pursuant to any instrument or written law;

(ii) all the powers given to any such former Court or to any such Judge or

Judges by any instrument or written law; and

(iii) all ministerial powers, duties and authorities incidental to any and

every part of the jurisdiction so transferred.”

19. Section 22 of the Supreme Court of Judicature (Consolidation) Act, 1925 states as

follows:

“22. The High Court shall, in relation to admiralty matters, have the following

jurisdiction (in this Act referred to as “admiralty jurisdiction”) that is to say -

(a) Jurisdiction to hear and determine any of the following questions or claims:

...

(v) ... any claim in the nature of salvage for services rendered to a ship

(including, subject to the provisions of the said Act, services rendered in saving

life from a ship), whether rendered on the high seas or within the body of a

country, or partly on the high seas and partly within the body of a country, and

whether the wreck in respect of which the salvage is claimed is found on the sea

or on the land or partly on the sea or partly on the land;"

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20. Further, in relation to salvage disputes and actions in rem, The Shipping Act,2 expressly

provides as follows:

“345…. (2) Subject to subsection (1), any dispute as to salvage shall be determined by

the High Court…

(4)The court or arbitrators to whom a dispute as to salvage is referred for

determination may for the purpose of determining any such dispute call to their

assistance as an assessor, any person knowledgeable in maritime affairs and

there shall be paid as part of the costs of the proceedings to every such assessor

in respect of his services such sum as may be prescribed…

384. In any case in which an action may be brought in rem against any ship (other than

actions arising from claims to the possession or ownership of a ship or to the ownership

of any share therein, or any claim in respect of a mortgage or charge on a ship or any

share therein), where the person who would be liable on the claim in an action in

personam was, when the cause of action arose, the owner or charterer of, or in

possession or in control of the ship, the admiralty jurisdiction of the High Court may

(whether the claim gives rise to a maritime lien on the ship or not)be invoked by an

action in rem against—

(a) that ship, if at the time when the action is brought it is beneficially owned as

respects all the shares therein by that person; or

(b) any other ship which, at the time when the action is brought, is beneficially

owned as aforesaid,

but in determining whether a person would be liable on a claim in an action in personam

it shall be assumed that he has his habitual residence or a place of business within

Trinidad and Tobago.”

21. In the case of Trinidad Salt Company Ltd. v. The Owners and/or Parties interested in

Motor Vessel “Senator”, Justice Stollmeyer summarised the law as follows:3

2 Chapter 50:10

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“It is clear law that the Courts of this country have jurisdiction in a wide range of

admiralty claims. That is the conjoint effect of Section 9 of the Supreme Court of

Judicature Act Chap. 4:01, which "saves" into our law the provisions of Section 22 of the

Supreme Court of Judicature (Consolidation) Act, 1925 of England, and Section 384 of

the Shipping Act 1987. In particular, the High Court has the jurisdiction to hear and

determine any claim arising out of an agreement relating to the use or hire of a ship, or a

claim relating to the carriage of goods in a ship. The latter proceedings can be in rem.

It matters not where the contract for the use of the ship may have been made; nor does it

matter where the event giving rise to the claim took place; it matters not in which foreign

port the vessel may be registered: the High Court of Trinidad and Tobago usually has

jurisdiction to hear and determine the claim. In any event, the entry of an unconditional

appearance puts an end to the right to object to the jurisdiction of the Court (British

Shipping Laws: Vol 1, para. 110). (emphasis mine)

That in my view disposes of the issue of jurisdiction raised by the Defendant.”

22. Part 74 of the CPR sets out the relevant rules to be followed in respect of admiralty

proceedings:

“74.2. The following claims, questions and proceedings, namely--

(j) any claim-

(i) under the International Convention on Salvage 1989;

(ii) under any contract for or in relation to salvage services; or

(iii) in the nature of salvage not falling within (i) or (ii) above....

are to be dealt with as admiralty claims.

74.3 (2) In any case in which there is a maritime lien or other charge on any ship,

aircraft or other property for the amount claimed, a claim in rem may be brought

against that ship, aircraft or property...

3 HCA No. 6 of 2004 at p. 8.

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(3) In the case of any such claim as is mentioned in rule 74.2 (e), (f) and (h) to (r)

where-

(a) the claim arises in connection with a ship; and

(b) the person who would be liable in a claim in personam ("the relevant

person") was, when the cause of action arose, the owner or charterer, or

in possession or in control, of the ship,

a claim in rem may (whether or not the claim gives rise to maritime lien on that

ship) be brought against-

(i) that ship, if at the time when the claim is made the relevant person is

the beneficial owner of that ship as respects all the shares in it; or ......

74.7 (1) A claim form under rule 74.2(g) or (u) other than a claim in rem may be served

out of the jurisdiction with the permission of the court if—

(a) the defendant has his habitual residence or a place of business within

Trinidad and Tobago;

(b) the facts out of which the claim arises took place within waters of Trinidad

and Tobago or within the limits of a port of Trinidad and Tobago; or

(c) a claim arising out of the same incident or series of incidents is proceeding in

the court or has been heard and determined in the court.

(2) An application to serve a claim form out of the jurisdiction must be made in accordance

with rule 7.5…”

23. In Halsbury’s Law of England, it is stated as follows:4

“92. A claim in rem is a claim against the ship itself, but the view that, if the owners of

the vessel do not acknowledge service of the claim form in order to defend their property,

then no personal liability can be established against them has been questioned. It has

been stated that, if the defendant acknowledges service, a claim in rem becomes (or

continues also as) a claim in personam; but the Admiralty jurisdiction of the High Court

4 Volume 93 (2008) at paras. 92 and 95.

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may now in all cases be invoked by a claim in personam, although this is subject to

certain restrictions in the case of collision and similar cases, except where the defendant

submits or agrees to submit to the jurisdiction of the court.” [emphasis mine].

24. In The Dictator5 the Claimant sued in rem for salvage services provided to the Defendants.

The writ was directed “to the owners and parties interested” in the res and indorsed with a

claim for 5,000l. The Defendants appeared and gave an undertaking to put in bail and as a

result the Claimants did not arrest the vessel or interfere with the discharge of the cargo. The

Court subsequently made a salvage award. However, the Defendants denied liability in

respect of the amount awarded beyond that of the undertaking put in bail. As a result, the

Claimants sought leave to proceed personally against the Defendants for the full amount of

the award. Jeune J. held that the remedy was not limited by the amount of the undertaking

put in bail and the Claimants were entitled in the present action to sue out writs of fieri facias

in order to enforce payment in the full amount personally from the Defendants.

25. This case was approved and applied by the Court of Appeal in The Gemma6 where an action

had been commenced in rem. The Court held that, by appearing, the owners rendered

themselves personally liable. A. L. Smith L.J. in his judgment, put it this way:

"I would point out that, if the defendants had not appeared, and the proceedings had

throughout been solely in rem, the judgment or decree, according to the practice of the

Admiralty Court, would have been not, as in the present case, condemning the

"defendants in damages and costs," but would have condemned the ship alone.

Now, apart from authority, it appears to me that when persons, whose ship has been

arrested by the marshal of the Admiralty Court, think fit to appear and fight out their

liability before the Court, the form of the proceedings in the Admiralty Court shew - and

it is not disputed that the forms I have referred to are those which have been in use,

according to the practice of the Court, from olden times- that the persons so appearing,

as the defendants have done in the present case, become parties to the action, and

thereby become personally liable to pay whatever in the result may be decreed against

5 (1892) P. 304

6 (1899) P. 285

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them; and the action, though originally commenced in rem, becomes a personal action

against the defendants upon appearance. For what purpose does a party appear to an

action in rem? There are, it seems to me, three reasons for the appearance: first, to

release the ship, so that it may go on trading for the owner; secondly, to contest the

plaintiff's allegations that the ship had been in default; and, thirdly, in order to prevent

its being sold."

26. The Gemma (supra) was later applied by the Privy Council in The August 8.7 Therein, an

admiralty action was brought in rem against the ship and her owners who subsequently

entered an unconditional appearance in the action. Subsequently, the Claimant obtained

summary judgment, pursuant to an order from the Registrar, against the owners who then

applied to the Court to set aside the judgment on the ground that the registrar lacked

jurisdiction to hear an application for summary judgment in an admiralty claim in rem. Lord

Brandon of Oakbrook, delivering the opinion of the Board, stated as follows:

“In their Lordships' opinion there is another ground additional to the other grounds

already dealt with by them in this judgment, and not adverted to at any time in the

previous course of the proceedings, on which the shipowners' appeal is bound to fail. By

the law of England, once a defendant in an Admiralty action in rem has entered an

appearance in such action, he has submitted himself personally to the jurisdiction of the

English Admiralty Court, and the result of that is that, from then on, the action continues

against him not only as an action in rem but also as an action in personam: The Gemma

[1899] P. 285, 292 per A. L. Smith L.J. There is no reason to suppose that the Admiralty

law of Singapore differs from the Admiralty law of England so far as this important

principle is concerned. On the contrary there is every reason to suppose that it is the

same. If then that principle is applied in the present case, the situation is that, from the

time when the shipowners entered an appearance in the master's action, as they did on

February 2, 1978, the action continued not only in rem against the property proceeded

against, namely, the ship, but also in personam against the shipowners themselves. It

follows that even if, contrary to the views which their Lordships have earlier expressed,

7 (1983) 2 A.C. 450

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an Admiralty action in rem were excluded from the scope of Order 14, it would in any

case be impossible to regard an Admiralty action in personam as similarly excluded. In

so far therefore as, from the time of the shipowners' appearance, the master's action

continued against them as an action in personam as well as an action in rem, it was

clearly a kind of action to which Order 14 applied.” [emphasis mine].

27. Further, the ruling of the House of Lords in The Indian Grace (No. 2)8 is instructive.

Therein, Lord Steyn concluded as follows in relation to the issue of the action in rem:

“The role of fictions in the development of the law has been likened to the use of

scaffolding in the construction of a building. The scaffolding is necessary but after the

building has been erected scaffolding serves only to obscure the building. Fortunately,

the scaffolding can usually be removed with ease: Fuller, Legal Fictions (1967) p. 70.

The idea that a ship can be a defendant in legal proceedings was always a fiction. But

before the Judicature Acts this fiction helped to defend and enlarge Admiralty

jurisdiction in the form of an action in rem. With the passing of the Judicature Acts that

purpose was effectively spent. That made possible the procedural changes which I have

described. The fiction was discarded.

It is now possible to say that for the purposes of section 34 an action in rem is an action

against the owners from the moment that the Admiralty Court is seised with jurisdiction.

The jurisdiction of the Admiralty Court is invoked by the service of a writ, or, where a

writ is deemed to be served, as a result of the acknowledgement of the issue of the writ by

the defendant before service: The Banco [1971] P. 137. From that moment the owners

are parties to the proceedings in rem.”

28. In the recent Court of Appeal decision of Stolt Kestrel BV v Sener Petrol Denizcilik

Ticaret AS; CDE S.A. v Sure Wind Marine Ltd,9 Tomlinson L.J. examined, inter alia,

admiralty jurisdiction and procedure in relation to proceedings in rem and in personam. He

stated as follows:

8 (1998) AC 878 at p. 913.

9 (2015) EWCA Civ 1035 at paras.

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“[12] It is convenient at this point to set out some of the provisions which govern the

bringing of proceedings in the Admiralty Court. The action in rem is distinctive in that it

enables a ship to be arrested to compel the provision of security and, if security is not

forthcoming, to enable the Admiralty Court to sell the vessel free of all encumbrances to

satisfy the claims against the ship. Furthermore, it is a vehicle which provides the Court

with jurisdiction to deal with the res upon arrest or, following an acknowledgment of

service, a vehicle which enables the court to exercise jurisdiction in personam over the

person who has acknowledged service...

[60.] ... The identity of the personal defendant to an in rem claim, whether natural or

corporate, if there is to be one, is not known until there is an acknowledgement of service

- see the discussion at paras 12 and 15 above. If there is no acknowledgment of service

an in rem action may proceed against the res alone.”

29. It should be noted at the outset that the Defendants, through their Attorneys-at-Law, entered

an unconditional appearance to this claim on 29th

August, 2012. On 15th

October, 2012, the

Defendants filed a Defence and Counterclaim and did not contend therein that the Court

lacked jurisdiction. Thereafter, the Defendants' Attorneys appeared at several case

management conferences and complied with the Court's directions, inter alia, for the filing of

witness statements, a witness summary and propositions of law. Accordingly, the Defendants

have actively participated in these proceedings.

30. The trial was originally scheduled for 17th

, 18th

and 19th

June, 2014 but was rescheduled to

20th

, 21st and 22

nd January 2015, at the request of the Defendants' Attorneys, due to the illness

of Counsel for the Defendants. However, on 16th

January, 2015, the Defendants' instructing

Attorneys applied to cease to act on their behalf. It is significant that on this application and

in the affidavit of Ms. Alfonso in support thereof, it is clearly stated that, up to June 2014,

Counsel and the instructing Attorneys received instructions to defend the proceedings from

Mr. Karan Singh and Mr. Mohammed Yusuf, representatives of International Shipping

Carriers Limited, a limited liability company registered in Antigua and Barbuda, the owners

of the Edmell.

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31. Having considered the submissions of the parties in relation to issue of jurisdiction, I have

come to the conclusion that the Defendants' objections to the jurisdiction of the Court are

without merit for the following reasons:

a. The Court's jurisdiction in respect of admiralty claims in rem and in personam is

conferred by the conjoint effect of Section 9 of the Supreme Court of

Judicature Act, Section 22 of the Supreme Court of Judicature

(Consolidation) Act, 1925 of England, and Section 384 of the Shipping Act

1987;

b. The Defendants, by entering an unconditional appearance to this claim as well

and by their subsequent active participation in these proceedings, submitted to the

jurisdiction of the Court. Further, the authorities are clear that by so doing, the

owners of the Edmell have submitted themselves personally to the jurisdiction of

the Court and, from then on, the action continued against them not only as an

action in rem but also as an action in personam;

c. Accordingly, I am not persuaded by the arguments of the instructing Attorney-at-

Law for the Defendants that the Court lacks jurisdiction because the Court ought

not to have granted permission to serve a claim in rem out of the jurisdiction and

that the Edmell was not within the jurisdiction at the time of the commencement

of this action.

32. In the circumstances, I will now proceed to deal with the substantive issues arising for

determination in this matter.

THE LAW & ANALYSIS

Issue A: Whether the agreement entered into between Mr. Jordan and the Agent was in

respect of towage or salvage?

Issue B: Were the Claimants informed that the Edmell was listing to port, unmanned and

taking in water?

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33. According to Dr. Lushington in the case of The Princess Alice:10

“... a towage service may be described as the employment of one vessel to expedite the

voyage of another, when nothing more is required than the accelerating her progress.”

34. In The Law of Tug and Tow (and allied contracts),11

Simon Rainey stated that:

“The contract of towage is merely a species of contract. With the exception of certain

special incidents attaching to the formation and content of the mutual relations under

that contract, the ordinary principles of the law of contract will apply...

Under a contract of towage, the tug owners agree to provide services for the tow with

tug, which they themselves officer, crew and supply, for an agreed or defined service or

to attain an agreed defined result for an agreed or defined period of time in exchange for

periodic or lump sum payments...

Since the mutual relations of tug and tow are founded upon the existence of a contract of

towage between them, the definition of their respective rights and obligations will be

defined by the terms of the contract which they have agreed... it is clear that in the

absence of express stipulation, the law implies certain specific terms in a contract of

towage which limit the rights and define the obligations of tug and tow.”[emphasis mine].

35. Halsbury’s Laws of England12

goes on to state as follows in relation to towage:

“587. In an ordinary contract of towage, the owner of the tug contracts that the tug is to

be efficient for the purpose for which she is employed, and that her crew, tackle and

equipment are to be equal to the work to be accomplished, in the weather and in the

circumstances reasonably to be expected...”

36. As to salvage, Halsbury’s Laws of England13

outlines that salvage services may be

rendered in several different ways, including the following:

“... towing, piloting, navigating or standing by a vessel in danger; landing or

transhipping cargo or persons belonging to that vessel; floating a stranded vessel;

10 (1849) 166 ER 914.

11 The Law of Tug and Tow, 2

nd Edition (2002) at pp. 2 and 4.

12 Volume 93 (2008) at para. 587.

13 Volume 94 (2008) at para 924.

http://www.lexisnexis.com/uk/legal/#ref39345F5368697070696E675F3038283837362D393832295F3637_3





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raising a sunken vessel or cargo; saving a derelict or wreck; setting in motion, fetching

or bringing assistance to a vessel in danger; giving advice or information in order to

save a vessel from a local danger; supplying officers or crew or tackle to a vessel in need

of them; rescuing persons who have had to take to the boats; removing a vessel from a

danger such as a vessel or wreck which has fouled her, an ice floe or an impending

collision; putting out a fire on board; saving property or life from a vessel on fire;

removing a vessel or cargo from a position in which it is in imminent danger of catching

fire; protecting or rescuing a vessel, her cargo or persons on board from pirates or

plunderers; recovering and restoring a captured ship or the recovery of a vessel from

capture by revolutionaries; and dispatching an aircraft to search for and transmit the

position of a derelict vessel.”

37. According to Geoffrey Brice in Maritime Law of Salvage:14

“1-01 In English law a right to salvage arises when a person, acting as a volunteer (that

is, without any pre-existing contractual or other legal duty so to act) preserves or

contributes to preserving at sea any vessel, cargo, freight or other recognised subject of

salvage from danger...

1-127 Most salvage services are in practice rendered pursuant to an informal or formal

salvage agreement or contract; but the existence of an agreement or contract is not, and

never has been a prerequisite to the right to recover salvage if salvage services have in

fact been performed without an agreement or contract.”

38. Lord Bruce in The Hestia15

stated as follows:

“But salvage claims do not rest upon contract. Where property has been salved from sea

perils, and the claimants have effected the salvage, or have contributed to the salvage,

the law confers upon them the right to be paid salvage reward out of the proceeds of the

property which they have saved or helped to save.

No doubt the parties may by contract determine the amount to be paid; but the right to

salvage is in no way dependent upon contract, and may exist, and frequently does exist,

14 Maritime Law of Salvage, 3

rd Edition, (1999) at paras 1-01, 1-127.

15 (1895) P. 193 at p. 199.










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in the absence of any express contract, or of any circumstances to raise an implied

contract. The way in which an agreement affects the question of salvage is laid down by

Kennedy J. thus(1): "A salvage agreement is an agreement which fixes, indeed, the

amount to be paid for salvage, but leaves untouched all the other conditions necessary to

support a salvage award, one of which is the preservation of some part at least of the res,

that is, ship, cargo, or freight." ...” [emphasis mine].

39. In relation to salvage agreements and the contracted reward, Halsbury’s Laws of England16

states as follows:

“943. An agreement may be made fixing the amount to be paid to the salvor for his

services, but leaving untouched all the other conditions necessary to support a salvage

reward... The agreement need not be in writing, but it must be clearly proved. It must

state the services to be performed and the reward for them... When duly proved, the

agreement is prima facie binding, and the burden of proof lies on the party trying to set it

aside...” [emphasis mine].

40. At paragraphs 5 to 7 of his Witness Statement, Mr. John Jordan stated as follows in relation

to these issues:

a. He contacted the Agent via telephone at about 2:00 pm. on 16th

January, 2012,

who informed him that he wished to have the Edmell towed to Port of Spain;

b. The Agent told him that the Edmell was 25 miles east of Galera Point in Trinidad

and that it had no lights onboard and was drifting toward Trinidad (but he [the

Agent] was getting conflicting reports from the Edmell);

c. They discussed that the Edmell could become grounded if it got too close to

Galera Point and he told the Agent that if the Edmell was drifting there was the

likelihood that he would not arrive in time based on his present location and

distance;

d. He advised the Agent to inform the crew on board the Edmell to stand by the

anchor;

16 Volume 94 (2008) at para. 943.

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e. They agreed that the price for performing the service of towing the Edmell to Port

of Spain would be US$25,000.00 and the Agent promised to call him later to

confirm same as well as the location of the Edmell;

f. The Agent contacted him via telephone at 10:00 am. on the following day and

told him to proceed with the job. He demanded written confirmation of this

authority to proceed and the Agent promised to email same to him;

g. Based on the aforementioned conversation with the Agent, he dispatched the

Rambler to undertake the towage of the Edmell; and

h. He subsequently sent an email to the Agent requesting confirmation of the towage

service (hereinafter referred to as Email 1) and he received an email in reply

confirming same (hereinafter referred to as Email 2).

41. Annexed to Mr. Jordan’s Witness Statement was a copy of the emails between himself and

the Agent in relation to the confirmation of towage services. Email 1 stated as follows:17

“From: john jordan.....

Sent: Tuesday, January 17, 2012 10:35 AM

To: [email protected]

Subject: m/v EDNELL II

Dear Mr Oliver,

Reference is hereby made to our recent phone conversation regarding the towing of the

stricken vessel m/v EDNELL II. ...

At present this vessel is approximately 5nm north of Galera Pt, Trinidad and drifting.

The cost of towage for the m/v EDNELL II into Port of Spain anchorage in Trinidad

would be USD $25,000.00.

Confirmation of this agreement on the cost can be sent to me via email and upon such the

towing vessel will be dispatched.

I look forward to your earliest reply,

Best regards

John Jordan

....”

17 Witness Statement of John Jordan filed on 21

st May, 2013, Annex A.

mailto:[email protected]

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42. Email 2 stated as follows:18

“From: World Trade Shipping ...

Sent: Tuesday, January 17, 2012 2:26 PM

To: ‘john jordan’

Subject: RE: m/v EDNELL II

17th

January, 2012

Dear Mr. John

Reference herby our conversation regarding the MV EDMELL II, which is presently

5NM of galleria point Trinidad and drying. We the above agents agree to pay the sum of

USD 25,000.00, confirmation of payment will be paid upon completion of the tog

Thanking you in advance for your kind co-operation.

Best regards

O.Lashley”

43. In his Witness Statement, Mr. Ian Boodoo stated as follows:

a. Based on certain instructions he received from Mr. Jordan at about 8:00 pm. on

16th

January, 2012, he made an entry into the Log of the Rambler that stated

“Received Info on Possible Tow Job”;

b. Further to these instructions, the Rambler’s crew, inter alia, ensured that the

towing equipment was in good supply and order and on the following day picked

up a tow line at 2:10 pm;

c. The crew subsequently departed the Maritime Preservation Yard, Port of Spain at

2:45 pm; and

d. When the Rambler located the Edmell, she was observed to be listing badly to

port so that intermittent swells were breaking onto the deck, she appeared to be

drifting and was unlit and appeared to have no power and no communication.

44. In my opinion, these two issues are issues of fact. The evidence of Mr. Jordan and Mr.

Boodoo were unchallenged by cross-examination and the Defendants failed to adduce any

evidence in support of its contention that the parties entered into a salvage contract or that

18 Ibid

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Mr. Jordan was informed by the Agent that the Edmell was listing to port, unmanned and

taking in water.

45. From the language of the emails adduced into evidence by the Claimants, I am of the view

that the parties contemplated that towage services were to be provided by the Rambler. In

Email 1 Mr. Jordan refers to "towing of the stricken vessel m/v EDNELL II" and to "the cost

of towage for the m/v EDNELL II into Port of Spain anchorage in Trinidad would be USD

$25,000.00." Further, in Email 2 the Agent responded that "we the above agents agree to pay

the sum of USD 25,000.00, confirmation of payment will be paid upon completion of the tog."

46. This evidence supports the Claimants' contention that the agreement was a towage contract

and not a salvage contract and, in the absence of any evidence from the Defendants to

contradict this contention, I find that an ordinary contract of towage existed, whereby the

Rambler was employed to tow the Edmell, which was drifting without lights, in weather and

circumstances to be reasonably expected with a job of that nature, at a cost of US$25,000.00.

47. In its Defence, the Defendants alleged that on 17th

January, 2012, the Agent informed Mr.

Jordan of the status of the Edmell including the fact that it had lost all engine and electrical

power, it was listing to port, there was a likelihood that it had taken in water and that it was

unmanned. However, the Defendants failed to call the Agent to give evidence in support of

this allegation.

48. In the circumstances, I accept Mr. Jordan's unchallenged evidence that he was informed of

the Edmell's location and that she had no lights and was drifting. In the absence of any

evidence from the Agent about his conversation with Mr. Jordan, I find that Mr. Jordan was

not informed that the Edmell was listing to port, unmanned and taking in water.

Issue C: If the agreement made between Mr. Jordan and the Agent was a towage contract,

was it converted to a salvage operation by virtue of the services provided by the Claimants?

49. For a claim for salvage to succeed a salvor must establish four essential elements: 19

a. Firstly, there must be a subject of salvage;

19 The Law of Tug and Tow (supra) at pp. 190-194.

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b. Secondly, the subject of salvage must be in a position of danger from which it must

be salved in order to preserve it from loss or damage and bring it to a position of

safety;

c. Thirdly, the salvage service must be voluntary, that is to say, a service rendered by a

person who is not under a pre-existing contract or duty to perform that service; and

d. Fourthly, the salvage services must be successful in, or at least meritoriously

contribute to, the preservation of the subject of the salvage from danger or peril.


deals with these elements in the following way:

“926. No property other than maritime property can be the subject of a salvage service.

'Maritime property' consists of a vessel, her equipment, cargo or wreck…

928. … The requisite degree of danger is a real and appreciable danger. It must not be

merely fanciful, but it need not be immediate or absolute. It is sufficient if at the time of

the service the situation of the subject of the service is such as to cause reasonable

apprehension on the part of the person in charge of it. The danger may arise from the

condition of the salved vessel, or of her crew, from her position, or from the master's

want of skill or his ignorance of the locality or of local conditions..

932. Subject to certain exceptions, the salvor's service must be voluntary as between the

salvors and the owners of the salved vessel, but it may be the subject of special

agreement. If it is rendered under a general contractual obligation, … it is not a salvage

service. Thus, no claim as salvors may ordinarily be made by the owner, master, crew

and pilot of …a tug towing the salved vessel under a contract of towage, … acting within

the scope of their duties, … for services rendered by them…

941. … the salvor must, as a general rule, show that his service has been successful.

Services, however meritorious, which do not contribute to the ultimate success give no

right to reward. Salvage reward is given for benefits actually conferred, not for a service

attempted to be rendered.

20 Volume 94 (2008) at paras. 926, 928, 932 and 941.





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The claimant need not, however, prove that his service alone would have produced the

ultimate safety of the subject of the service; it is sufficient for him to show that he

materially contributed to its ultimate safety, and, where there is a doubt whether a

service has contributed to the ultimate safety, the court inclines to the view that the

service has so contributed.

No salvage reward is recoverable, however meritorious and hazardous the service may

have been, and even though the property or lives in danger may have been ultimately

preserved, if, at the termination of the service, the subject of the service has been left in a

position not less dangerous than that in which it was at the commencement of the service,

or the value at the conclusion of the service was no greater than at the commencement.

The mere fact that the claimant brought the ship to a spot where the ultimate salvor found

her is not of itself a contribution to the ultimate success.” [emphasis mine].

51. In The Beulah21

Dr. Lushington stated that:

“Where a vessel is in a distressed state, a steamer, not knowing or not being informed of

her state, undertaking to tow that vessel at a certain rate of remuneration, would not be

bound by that rate but be entitled to be rewarded for services in the manner of salvage.”

52. In respect of the relationship between towage and salvage, The Law of Tug and Tow

(supra),22

states:

“Since the service as a service, whether of pure towing work or of any allied operation,

being performed by a tug can be performed by that tug contractually or as a salvage

service, the dividing line between contractual towage and towage rendered as salvage

will depend on the presence of a towage contract and on the extent of the contractual

services to be rendered under and as defined in that contract...

Accordingly, where a tug is engaged by a vessel under a towage contract to perform

some towage operation, that operation and the work which the tug has to effect to

achieve it will not constitute salvage. It is only where the tug has to perform some service

outside the contract, and in circumstances of danger to the vessel, that salvage will arise.

21 (1842) 7 Jur. 207.

22 Atpp. 2- 3.

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The touchstone is the scope and nature of the service contemplated by and provided for

in the contract.” [emphasis mine]

53. The author went on to state the following in relation to the circumstance of conversion of

towage services to salvage service:23

“... the very nature of towage is such that very often the tug and tow will encounter

conditions rather different from what was contemplated at the time the contract was

made; these may require the tug to perform services of a different kind from those

envisaged as being in the contract work. In such circumstances, the tug will wish to seek

additional remuneration. From the perspective of the tow, the contract must necessarily

be taken to cover all eventualities and to have some latitude in the services which the tug

may have to perform.”

54. In the Privy Council decision of Ward & Ors v. Mc Corkhill and Ors (The Minnehaha)24

the relationship between these two concepts were examined and the circumstances, as it

were, whereby a tug under an existing towage contract would be able to claim salvage were

set out. In this case claims for salvage were made by the owners of two steam-tugs - United

Kingdom and StormKing - against the owners of the Minnehaha and its cargo. Notably,

United Kingdom’s case differed from that of the StormKing, in that, the former was initially

contracted by the Defendants to perform towage services. The United Kingdom claimed that

during the performance of the said towage services, the Minnehaha was placed in danger

from which she was rescued by its exertions and, as a consequence, the towage contract was

superseded and converted to salvage. The Defendants contended that the Minnehaha was

never in any danger and if such was in fact occasioned, it was as a result of the United

Kingdom’s actions during towage. Ultimately, it was held that, as to the United Kingdom, the

Minnehaha was in danger and was rescued by it rendering its towage contract suspended so

as to entitle it to a larger remuneration under the head of salvage. In delivering his judgment

Lord Kingsdown stated the law as follows:

23 The Law of Tug and Tow (supra) at pp. 194-198.

24 (1861) UKPC 26 at pp. 3-5.

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“When a steam-boat engages to tow a vessel for a certain remuneration from one point

to another, she does not warrant that she will be able to do so and will do so under all

circumstances and at all hazards; but she does engage that she will use her best

endeavours for that purpose, and will bring to the task competent skill, and such a crew

tackle and equipments as are reasonably to be expected in a vessel of her class.

She may be prevented from fulfilling her contract by vis major, by accidents which were

not contemplated and which may render the fulfillment of her contract impossible, and in

such case, by the general rule of law, she is relieved from her obligations.

But she does not become relieved from her obligations because unforeseen difficulties

occur in the completion of her task; because the performance of the task is interrupted, or

cannot be completed in the mode in which it was originally intended, as by the breaking

of the ship’s hawser. But if in the discharge of this task, by sudden violence of wind or

waves, or other accidents, the ship in tow is placed in danger, and the towing-vessel

incurs risks and performs duties which were not within the scope of her original

engagement, she is entitled to additional remuneration for additional services of the ship

be saved, and may claim as a salvor, instead of being restricted to the sum stipulated to

be paid for mere towage… In the cases on this subject, the towage-contract is generally

spoken of as superseded by the right to salvage.”[emphasis mine].

55. It is important to note that Lord Kingsdown was very careful to note that:25

“... such cases require to be watched with the closest attention, and not without some

degree of jealousy...

The claimants must prove their own case; they must show that the ship being in danger

from no fault of theirs, they performed services which were not covered by their towage

contract, and did all they could to prevent the danger.”

56. The test for conversion of towage to salvage was succinctly set out by Hill J. in The

Homewood.26

Therein Hill J. was of the view that while the towage contract to tow a ship

25 Ibid at pp. 5 and 7.

26 (1928) 31 Ll. L. Rep. 336, 340.

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without means of propulsion, contemplated that there may be bad weather, that the hawser

may part and the tow may have to anchor on the way, it would not have been contemplated

that the vessel would be unmanned and that a crew would have to board and hence be

exposed to danger. He said:27

“To constitute salvage service by a tug under contract to tow, two elements are

necessary:

(1) that the tow is in danger by reason of circumstances which could not

reasonably have been contemplated by the parties; and

(2) that risks are incurred or duties performed by the tug which could not

reasonably be held to be within the scope of the contract.”[emphasis mine].


put it this way:

“...circumstances existing at the beginning of the towage service or supervening

afterwards may convert a towage into a salvage service.

If, when the towage contract was entered into, material facts affecting the danger of the

tow or the danger or the difficulty of the towage service such as make it unjust to expect

the towage service to be undertaken at a towage rate were not disclosed to the owner of

the tug or his representative making the contract, the towage contract is disregarded and

the service is treated as a salvage service.

If also, during the towage, the tow becomes in danger, through no fault of the tug, and

the tug then renders services in the nature of salvage services such as could not

reasonably be held to be within the intention of the parties, by means of which the ship is

brought into a place of safety, the towage contract is superseded by the right to salvage

reward; but a slight departure from the way in which the towage contract was to be

performed does not convert towage services into salvage services, and the strictest proof

of the circumstances which lead to such a claim is required. [emphasis mine].

27 Ibid at p.339.

28 Volume 94 (2008) at para. 938.


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58. Justice Langton applied this test in The Glenbeg29

where he found that the services

performed amounted to salvage although it was admitted by the tugmaster that the services

performed did not differ from that which the crew would have to do in the normal way. He

stated:

“With these facts in mind I return to the application of the law. One aspect which one

may take is this: Is a ship in that condition, when tugs take her in tow, in a position which

requires from the tugs services of a different class and therefore bearing a higher rate of

payment than for ordinary towage? In other words, assuming that a contract had to be

made to deal with the vessel in that condition, would the tug owner be ready to render

services at the ordinary towage rate?...

Were they called upon to exert skill of a character which would not be necessary at all,

and is not, therefore, contemplated in the ordinary service of a tug to a ship going up

river?”

59. In relation to the status of the towage contract when conversion to salvage has occurred, the

decision in The Leon Blum30

is instructive as it represents the leading authority in the area

and was upheld by the Court of Appeal. At first instance, Sir Samuel Evans P. reviewed the

leading authorities in the area and stated as follows:

“The right conclusion to draw from the authorities, I think, is that where salvage services

(which must be voluntary) supervene upon towage services (which are under contract)

the two kinds of services cannot co-exist during the same space of time. There must be a

moment when the towage service ceases and the salvage service begins; and, if the tug

remains at her post of duty, there may come a moment when the special and unexpected

danger is over, and then the salvage service would end, and the towage service would be

resumed. These moments of time may be difficult to fix, but have to be, and are, fixed in

practice. During the intervening time the towage contract, in so far as the actual work of

towing is concerned, is suspended. I prefer the word "suspended" to some of the other

words which have been used, such as "superseded," "vacated," "abandoned," &c. If this

29 (1940) 67 Ll. L. Rep. 437 at 441.

30 (1915) P. 90 at pp. 101-102.

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conclusion be correct, then it follows, from the concession made in this case, that salvage

services were rendered, that the work of which those services consisted was not done

under the towage contract.”

60. Accordingly, The Law of Tug and Tow (supra) states:31

“...the prevailing view is well-settled, and is that the conversion to a salvage service may,

though not necessarily, justify the abandonment of the towage contract but will often only

give rise to its temporary “suspension”, “vacation” or “supersession”. Yet despite the

plethora of different terms used, it seems clear that where supervening circumstances

occur which do not permanently alter the contemplated and foreseen operating

conditions, the towage contract is effectively suspended while the supervening

circumstances operate, but that it is not actually superseded or terminated. Accordingly,

upon the termination of the special circumstances, the towage contract will recommence

and the tug is obliged to recommence its contractual towage obligations in so far as that

is possible in the post-salvage circumstances. [emphasis mine].

61. The case of The Glenmorven32

is relevant with regard to the effect of intervening

circumstances in engrafting a claim in the nature of salvage upon, or superseding, a towage

contract. Therein, Sir Samuel Evans held that an existing towage contract to tow a partially

disabled vessel, came to an end when the master and crew of the salved vessel abandoned her

without sufficient justification. He stated that “from that time the services rendered by the

tug were not performed under contract but were in the nature of salvage...” In his judgment

he stated as follows:

“In my view this contract must be read in reference to the circumstances in which it was

made, in order to arrive at what agreement the parties intended to make, taking care to

do no violence to the language of the contract, and taking care not to introduce into it

anything which it did not contain, or to create any variation of the written terms to which

the parties agreed. This contract is in my opinion a contract to tow a partially disabled

vessel, with her master and crew on board and with the assistance of another tug, from

31 At p. 209.

32 (1913) P. 141 at pp 145-146.

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Vigo, where she had been lying disabled, to the Tyne, her port of destination. If that is the

real meaning of the contract, then, having regard to the facts as they stood on January

22, I think it is clear that contract came to an end; and I think it is also clear on the

evidence that it came to an end through the fault of those for whom the defendants are

responsible. A contract to tow a partially disabled vessel in these circumstances is one

thing. A contract to tow a vessel which has been entirely abandoned in the Bay of Biscay

is a wholly different contract...

In my judgment the contract which was made on January 2 came to an end when the

vessel was abandoned. It follows that from that time what services were rendered were

not rendered under the contract, but were services in the nature of salvage, and the

George V. is entitled to be remunerated on a salvage basis for the work done in taking

this ship safely into port from the place where she was left by the master and crew.”

62. In the Witness Statement of Mr. Boodoo, he recounted the condition of the Edmell upon the

arrival of the Rambler and its crew to perform the towage service as follows:33

a. When the crew of the Rambler arrived at the designated position it was 19:45

hours and the weather conditions were poor, it was dark and lacked visibility

without the aid of a searchlight, the sea was rough with 2.5-3.0m swells and the

winds were gusty and intermittently converting to squalls with a more than one

minute duration;

b. He observed that the Edmell was listing badly to port and that intermittent swells

were breaking onto her deck and she was drifting;

c. The Edmell was unlit and appeared to have no power and as such no

communication;

d. He observed that the Edmell seemed to be unmanned;

e. The railing on the starboard side of the Edmell appeared to be damaged or broken;

f. The Edmell appeared to have taken in an excessive amount of water as she was

submerged below the insurance line; and

33 Witness Statement of Ian Boodoo filed on 21 May, 2013 at paras. 9 and 11.

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g. He noted that the portholes were open and taking in water.

63. Further, Mr. Boodoo stated that a toolbox meeting was convened at which it was decided that

it was too dangerous to attempt to tow the Edmell in the midst of the prevailing conditions.

At paragraph 12 of his Witness Statement he stated:

“12. ... I apprehended that the vessel was in imminent danger of sinking, and that the

confluence of gusts and squalls and swells could very well conspire to sink her. There

was no one onboard the vessel and therefore no one to accept a heavy line or to attach

the tow line... It was impossible to get alongside her for the port was too submerged and

the starboard was too high. I ... feared that serious collision could occur if any other

means of hipping up was attempted. ”

64. Mr. Boodoo went on to identify the particulars of the work performed by the Rambler’s crew

as follows:34

“13. … Engineer Brian Chase volunteered to board the MV Edmell…

14. …Captain Richardson then with the aid of the Rambler’s and Coast Guard’s

searchlights circled the MV Edmell several times, each time attempting a bow to stern

landing maneuver. On or about the 5th

occasion, Mr. Chase, who had made his way each

time to the bow of the Rambler, jumped up to the stern of the MV Edmell. He held on to

the railing and managed to make his way starboard to the bow of the MV Edmell, with

the aid of the Rambler’s searchlight.

15. From the bow of the vessel, Mr. Chase then had to perform the dangerous maneuver

of receiving the heaving line. He harnessed himself to the bow of the MV Edmell, and as

had been previously agreed he then signalled us with a flashlight that he was ready to

receive. Captain Richardson then maneuvered stern to bow and on the second attempt

received the heaving line from able bodied seaman, Worrell Adams. Mr. Chase then

struggled to pull the wet and heavy towline to the bow of the MV Edmell and attached the

same to a bollard bow of MV Edmell.

34 Witness Statement of Ian Boodoo filed on 21 May, 2013 at paras. 13 - 18.

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16. Mr. Chase then had with similar difficulty and under similar precarious

circumstances, to make his way starboard bow to stern of the MV Edmell. I then

instructed the seamen to extend the tow rope long enough to allow Captain Richardson to

maneuver bow of KP Rambler to stern of MV Edmell. Mr. Chase who was then

positioned on the starboard side of the stern re-boarded the KP Rambler by jumping onto

the bow of the KP Rambler. The entire operation of boarding the MV Edmell and

reboarding the KP Rambler took about 1 hour…

17. We proceeded to tow the salvage MV Edmell to the Maritime Preservation Yard in

Port of Spain. After clearing the Bocas… I instructed the seamen to take in tow the line,

and to hip up the MV Edmell starboard to port of KP Rambler, because of course she

could not be towed to her berth…I then directed the two sailors and the Engineer to

reboard the MV Edmell and to manually release its anchor. I did this in an attempt to

stabilize the MV Edmell which of course had continued listing to port throughout the

entire journey from its point to pickup. It was impossible and perilously unsafe to even

attempt to hip her earlier on account of the rough seas that we continued to encounter in

the open water.

18. After we dropped the MV Edmell anchor we transferred a gas pump and hose from

the KP Rambler to the MV Edmell where I directed the sailors to pump water from 3

consecutive places on the MV Edmell … With the pumping of the water the listing was

considerably reduced, sufficient to allow Captain Richardson to take it to berth at

Maritime Preservation Yard.”

65. In the Witness Statement of Mr. Worrell Adams, he corroborated Mr. Boodoo’s evidence in

relation to low visibility and arriving in the dark at 19:45 hours. He indicated that his

understanding was that the Edmell was to be towed to Port of Spain and that during towage

operations he was usually responsible for attaching the tow line from the Rambler to the tow

and securing and monitoring same throughout the journey. In relation to the events

subsequent to the Rambler’s arrival at the location of the Edmell, he stated as follows:35

35 Witness Statement of Worrell Adams filed on 21 may, 2013 at paras. 5 – 9.

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“5. When I assessed the situation of the MV Edmell II, I decided that it was too

dangerous to tow the vessel because I had no one to throw the heaving line to and there

was no one to attach same to the bollard, and besides from my years of experience it

appeared to be pretty dangerous given the weather conditions and the precarious

position of the MV Edmell II, to try to get someone to board her.

6. Captain Richardson had called a toolbox meeting where as I remember the crew made

their views known to him. A few minutes after the Captain communicated a request to us,

and I decided to use my best endeavours to assist with the rescue of what for all intents

and purposes was a sinking ship.

7. I am now 63 years old and certainly could not even contemplate boarding the MV

Edmell II in these conditions, even though I consider myself to be strong, if not very

strong and certainly very adapted to various conditions at sea, even dangerous

conditions. The captain of the KP Rambler circled the MV Edmell II several times and

eventually Engineer Chase boarded the stern of the MV Edmell II. I held the spotlight to

assist Mr. Chase to see his way to the stern of the Edmell. When he alighted I then threw

a flashlight for him, which he used to maneuver from stern to bow.

8. The Captain then moved the Rambler to the bow of the Edmell and I had the

responsibility to and did throw the heaving line to Mr. Chase, after Seaman Knight had

made a previous unsuccessful attempt to throw the heaving line. Seaman Knight and I

then slacked the tow rope until Engineer Chase attached the same to the bollard bow of

the MV Edmell II. That was a perilous enough operation, but the most perilous of all of

the operations for me was in extracting Mr. Chase from the MV Edmell II. The tow line

was already secured, but I was required to give so much slack and no more so as to

enable the captain to maneuver bow of the KP Rambler to stern of the MV Edmell II and

to make sure at the same time that the tow rope did not become entangled in our

propeller or get caught in the currents.

9. In my experience and based on my observations, if the MV Edmell II was not rescued

in the manner it was, it would certainly have continued to drift and eventually sink, and I

think that in a matter of a few hours it would have been no more.”

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66. This evidence was unchallenged as both Mr. Adams and Mr. Boodoo were not cross-

examined.

67. In his Closing Submissions, 36

Counsel for the Claimants submitted that by reason of the

Defendants’ failure to challenge any evidence at the trial, the Court should find in their

favour, that is to say, that the towage was converted to salvage by virtue of the services

provided by the Claimants.

68. In the Closing Submissions in Reply,37

instructing Attorney for the Defendants relied on

excerpts from The Law of Tug and Tow (supra) as well as the authorities of The

Minnehaha (supra) and The Leon Blum (supra). She submitted that to give rise to a claim

for salvage, the Claimants had to go beyond claiming unforeseen circumstances and that

regard must be had to the scope of services contemplated under the towage contract which

will extend to cover all the risks concomitant with the circumstances of the vessel. However,

she did not dispute that unforeseen circumstances which put the tow in danger could give rise

to the finding that towage was converted to salvage. She emphasized that the burden of

proving conversion lay upon the Claimants and any such conversion claim was to be viewed

jealously by the Court.

69. I accept the evidence of the Claimants in relation to the condition of the Edmell when it was

located by the Rambler as well as the nature and particulars of the services performed by the

Rambler and its crew in towing the Edmell to the port of Port of Spain.

70. Applying the law to the evidence adduced by the Claimants, I am of the opinion that:

a. The Edmell properly constituted the subject of a salvage;

b. The Edmell was in a position of real and appreciable danger since there was a

strong possibility of her sinking due to her condition, namely, being unmanned,

listing to port and taking in water. Added to this were the prevailing weather

conditions (gusts, squalls and swells) which would have exacerbated the situation

and increased the probability of her sinking. Further, the undisputed fact is that

the Edmell was drifting and had no lights. These factors placed the Edmell in a

36 Claimants Closing Submissions filed on 27

th February, 2015 at para. 7.

37 Defendants Closing Submissions in Reply filed on 20

th March, 2015 at paras. 37 – 45.

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position of danger from which she need to be salved in order to bring her to safety

as well as prevent her from loss and damage;

c. The circumstances of the Edmell when she was located by the Rambler were such

that the services required to be performed by the crew of the Rambler were more

extensive than the services required for towage, having regard to the condition of

the vessel, the absence of any crew thereon, the danger of boarding her and

towing her in that condition. Accordingly, having regard to the exceptional

circumstances in which the Edmell was found by the Rambler, towage under the

pre-existing contract came to an end and was superseded by the performance of

salvage operations. Further, the evidence establishes that the salvage service was

voluntary, the Rambler not being under any duty to salve the Edmell at that time;

and

d. The salvage services were successful in that the Edmell was towed back to the

Maritime Preservation Yard at the port of Port of Spain by the Rambler, where

she was handed over to the Agent.

71. Having already determined that the agreement entered into by the parties amounted to a

towage contract, I find that the services provided by the Claimants in the prevailing

circumstances, were outside of the scope and nature of the said towage contract and could not

have been reasonably contemplated and provided for by the parties at the time of contracting.

72. Relying on the dicta of Lord Kingsdown in the leading case of The Minnehaha (supra), I

am of the opinion that the Claimants' witnesses have established to my satisfaction that the

Edmell was in danger (through no fault of the Rambler, as she was found in that condition),

that the crew of the Rambler performed services which were above and beyond the towage

contract and they did all that they could to prevent the danger.

73. Having accepted the unchallenged evidence of the Claimants and applying the law to those

facts, I find that by virtue of the services provided by the Claimants, the towage contract was

converted to salvage.

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74. However, the Claimants' witnesses failed to give any evidence to support its pleading with

regard to the salvage of the cargo and freight. Therefore, the salvage services provided by the

Rambler are with reference to the Edmell only and not its cargo or freight.

Issue D: Are the Claimants entitled to be compensated for salvage of the Edmell and/or its

cargo and freight on the basis that the Rambler engaged in a salvage operation, and, if so,

in what amount?

75. The Shipping Act, Chapter 50:10 provides as follows:

“343. Where a vessel is wrecked, stranded or in distress within Trinidad and Tobago and

services are rendered –

(a) by a person in assisting the vessel or saving the cargo or apparel of the vessel

or any part thereof; or

(b) by a person, other than a receiver, in saving any wreck,

there shall be payable to such person by the owner of the vessel, cargo, apparel or wreck

a reasonable amount of salvage, to be determined in case of dispute in the manner set out

in this Part.

344. Nothing in section 342 or 343 shall entitle a person to remuneration –

...

(b) in respect of services rendered by a tug to or for the vessel which it is towing

or the cargo thereof, except where such services are so exceptional as to fall

outside the scope of the contract of towage;”

76. Maritime Law of Salvage (supra), states:38

“In the absence of a binding agreement fixing the amount of remuneration, the salvor,

upon the property being salved and brought to a place of safety is entitled to recover

38 (1999) at para 1-01.

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salvage remuneration not exceeding the value of the property salved assessed as at the

date and place of the termination of the salvage services.” [emphasis mine].

77. In the Court of Appeal decision of City of Chester,39

Brett MR. in relation to a dispute on

the quantum of the award made by the court below for salvage services stated as follows:

“There is no jurisdiction known which is so much at large as the jurisdiction given to

award salvage. ... It follows that there is no jurisdiction known, the administration of

which is more within the discretion of the judge who has to administer it.”

78. As to the general principles and Court’s assessment of the salvage award, Halsbury’s Laws

of England 40

states as follows:

“946. The amount of the salvage reward is limited to the value of the property or the

interest in property salved. Subject to that limitation, the amount of the reward, unless it

is fixed by agreement, is in the discretion of the court, and, except in cases of absolute

necessity, the court which tries the case should also assess the remuneration.

As a general rule, where the owner of the salved property appears, the court will not

award the salvor more than one-half of the value of the salved property, whether the

property is derelict or not. A variation in the exchange rate of a currency is not a

relevant factor to take into account in fixing the award for salvage services. The court

has power to award interest on a salvage award whether the salvage services were or

were not performed under a special contract.

947. In assessing the reward, the court endeavours to combine liberality to the salvor

with justice to the owner of the salved property. It regards not merely the work done in

the performance of the salvage service, but the general interests of navigation and

commerce. Thus, it looks with favour on salvage services rendered by ships built and

maintained for salvage services. Because one of the main reasons why salvage

remuneration is high is that, unless the vessel in danger is saved, no remuneration is

payable at all, salvors who have acted under an agreement which entitled them to

39 (1884) 9 PD, 189.

40 Volume 94 (2008) at paras. 946 – 947.

https://www.lexisnexis.com/uk/legal/#ref39345F5368697070696E675F3038283837362D393832295F3937_3

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remuneration independently of success are not rewarded on the liberal scale applicable

to other salvors.” [emphasis mine].

79. Although Trinidad and Tobago is not a signatory to the International Convention on Salvage

1989, which provides a list of factors to be considered when assessing the salvage award,

these factors are consistent, for the most part, with those traditionally considered under the

common law. In Kennedy & Rose Law of Salvage41

the material circumstances which

ought to be taken into account in assessing salvage rewards were listed as follows:

“A. As regards the salved property:

(1) The degree of danger, if any, to human life.

(2) The degree of danger to the property.

(3) The value of the property as salved.

B. As regards the salvors:

(1) The degree of danger, if any, to human life.

(2) The salvors' (a) classification, (b) skill, and (c) conduct.

(3) The degree of danger, if any, to the property employed in the salvage service

and its value.

(4) The (a) time occupied and (b) work done in the performance of the salvage

service.

(5) Responsibilities incurred in the performance of the salvage services, such e.g.,

as risk to insurance, and liability to passengers or freighters through deviation or

delay.

(6) Loss or expense incurred in the performance of the salvage service, such e.g.

as detention, loss of profitable trade, repair of damage caused to ship, boats or

gear, fuel consumed etc.”

41 Kennedy & Rose Law of Salvage, 6

th Edition (2002) at paras. 1393.

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80. As to the general approach of the Courts and its guiding policies and principles on salvage

assessments, Kennedy (supra)42

also stated:

“1398. ...The exercise of the tribunal’s discretion has traditionally involved the

interrelated application of three principles: that the salve should pay for the benefit

received; that the salvor should be rewarded for the service provided; and that the

reward should reflect public policy...”

81. This list was approved in The Ben Gairn43

where Lord Allanbridge was called upon to

determine, inter alia, the proper amount of salvage to be awarded and he applied the

principles summarized in Kennedy on Civil Salvage, 4th

Edition at para. 174, for the

determination of same. In arriving at his award, he considered that a Court should give a

liberal remuneration, looking not merely to exact quantum of service performed but, to the

general interest of the navigation and commerce of the country which is greatly protected by

such awards.

82. The Canadian case of British Columbia Packers Ltd v The Motor Vessel “Pubnico

Virgo”, Her cargo etc and Seafisheries Ltd44

is also instructive on the issue of salvage and

quantum of the award. Therein Justice Kerr, having found that the Claimants were entitled to

a salvage award, held that the amount of the award was to be determined having regard to:

the extent and nature of the services rendered; the danger to which the salved vessel was

exposed and the effect of the salvage services in rescuing her from danger; the value of the

salved vessel; the risk run by the crew of the salvor’s vessel; the value of the salvor’s vessel

and any risk to it; and the length of time taken to render the service and any consequential

loss of earnings by the salvor.

83. Kennedy (supra) 45

also stated that the value of salved property is one of the most important

factors in the assessment of salvage. Sir John Nicholl put it this way in The Ewell Grove:46

42 Ibid at para. 1398.

43 (1979) SC 98.

44 (1975) Vol 1 Ll. L. Rep. at p. 448.

45At paras. 1319 and 1334.

46 3 Hagg. 210 at 221.

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“the value of the property saved is certainly not an immaterial circumstance, for in

proportion to that value is the benefit to the owners, and that is one of the primary

principles in settling the amount of remuneration.”

84. It is clear that the individual circumstances of each case needs to be taken into account when

assessing salvage values:47

“1402. In practice, weighing those factors which are present is less important than the

number of factors in a given case and the degree to which they are present. Where any or

all of the relevant factors are found to exist, or some of them are found to exist to a high

degree, a large reward is given; where few of them are found, or they are present only in

a low degree, the award is comparatively small.

1403. ...prior to the Convention the normal procedure would be for the tribunal to take

account of those factors which were shewn to be present in the case at hand, whereas the

Convention prescribes, ... that the tribunal “shall be fixed with a view to... taking into

account the following...”However there is no evidence that the Convention was intended

to reverse the previous position and to penalise salvors for omitting to do what they

might do but are not obliged to do. Indeed, it would be counterproductive to discourage

an otherwise meritorious service from which one or more of the listed factors was

absent.”[emphasis mine].

85. In his evidence, Mr. Boodoo stated that he was a certified Ship’s Mate (STCW95) since

2011, prior to which he was an Able Bodied Seaman for five years. At the material time the

Rambler was manned by a crew of five, comprising the Captain, an Engineer, two Sailors

and himself. Mr. Boodoo’s evidence in relation to the prevailing and exceptional

circumstances at the time the Edmell was found and the damage to her as well as in relation

to the nature and particulars of the services provided by the Rambler’s crew has already been

noted at paragraphs 62-64 above.

86. In his evidence, Mr. Adams indicated that he was a Seaman since 1969 and considered

himself to be very experienced, having continuously been on and/or around the sea for all of

47 Kennedy (supra) at paras 1402-1403.

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his working life. At the material time he was one of the two Sailors on board the Rambler.

Mr. Adams’ evidence in relation to the prevailing and exceptional circumstances at the time

the Edmell was found and the damage to her as well as in relation to the nature and

particulars of the services provided by the Rambler’s crew has also already been noted at

paragraph 65 above.

87. In his Closing Submissions,48

Counsel for the Claimants submitted that since it was

undisputed that the parties agreed on a price of US $25,000.00 for towage, the Claimants

should at minimum be awarded this amount. Counsel further submitted that this amount

should be increased to take account of the salvage services provided. Counsel relied on the

Kennedy & Rose – Law of Salvage which outlined the factors to be considered in the

Court’s assessment exercise and identified evidence adduced from the Witness Statements of

Mr. Jordan, Mr. Boodoo and Mr. Adams in support of same. Counsel acknowledged that the

Claimant had failed to adduce evidence in relation to the value of the Edmell but submitted

that the Court still had ample evidence upon which a reward could be made. To this end,

Counsel concluded that an award of at least US$120,000.00 should be granted to the

Claimants.

88. In the Closing Submissions of the Defendants,49

instructing Attorney submitted that the

Claimants had failed to quantify the individual rates of pay for each crew member engaged in

undertaking the services. Counsel further stated that the Claimants provided no admissible

evidence in relation to the salved value of the Edmell, its cargo or freight or information

and/or evidence which would allow the Court to determine a salvage award in accordance

with the factors listed in Kennedy (supra). She relied on MV Vatan (1990)1 Lloyd’s

Report 336 in support of the apportionment of salvage award between the cargo owner and

the ship owner. She also relied on Pubnico Virgo (supra) and submitted that the type and

quality of the evidence led therein was not led in the case at bar. She submitted that the Court

should reject the Claimants' submissions in favour of an award of US$120,000.00 as it was

not open to the Claimants at this juncture to throw figures at the foot of the Court and hope

that it was awarded.

48 Claimants Closing Submissions filed on 27

th February, 2015 at paras. 26 – 33, 41-44.

49 Defendants Closing Submissions in Reply filed on 20

th March, 2015 at paras. 18 -19, 24-25 .

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89. In the Claimants' Reply, Counsel submitted that the lack of detailed analysis of the value of

the salved vessel was as a result of the Defendants' unscrupulous actions and requested that

the Court refrain from allowing any consequent prejudice to the Claimants. In relation to the

case of MV Vatan (supra), Counsel submitted that it was easily distinguishable from the

case at bar as it related to the apportionment of liability and based on the facts her cargo was

more valuable than the vessel itself. In respect of the case of Pubnico Virgo (supra), the

Claimants submitted that the Defendants were inaccurate to state that the quality and type of

evidence was different in the case at bar, save and except in relation to the value of the salved

vessel. The Claimant also relied on the City of Chester (supra).

90. Having already found that the nature of services provided by the Claimants to the Defendants

amounted to salvage in respect of the Edmell, I find that in keeping with the authorities cited

above, they are entitled to be compensated for salvage of same.

91. I accept the unchallenged evidence of the Claimants in relation to the issues falling for

determination. I also accept the submission of the Claimants in relation to there being ample

evidence upon which an award could be made. The Claimants failed to adduce any evidence

in relation to the salved value of the Edmell and the fact that there was a valuation report

included in the Claimants’ bundle of documents does not mean that the Court is entitled to

have regard to this document. The burden lay upon the Claimants to adduce admissible

evidence as to the value of the Edmell and they failed to discharge that burden. However, the

value of the vessel is but one factor that the Court will consider in its assessment of the

amount of the salvage award.

92. Accordingly, on the issue of whether the Court should determine the quantum of the salvage

claim or refer this matter to assessors to do so, I am of the opinion that this Court should

proceed to make a determination of the amount of the salvage award to be paid to the

Claimants for the salvage of the Edmell, based on the evidence before me and that I should

not refer the assessment thereof to assessors. In the exercise of the Court's case management

powers under Rule 26.1 of the CPR, this Court did not at any time direct that the trial

should proceed on the issue of liability only and that the assessment should be dealt with

separately. Further, Rule 74.27(2) of the CPR states that in admiralty claims the court must

determine at the case management conference whether the trial is to be without assessors or

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with one or more assessors and the qualifications for such assessors. At the stage of case

management, however, when the court gave directions for the filing of witness statements,

the Claimants did not apply for the appointment of assessors and the Court did not make any

such order. Therefore, the Witness Statements filed on behalf of the Claimants ought to have

addressed the issues of liability and the quantum of loss claimed by the Claimants. The fact

that the Claimants omitted to include in the Witness Statements evidence of the value of

Edmell, or the value of the cargo or freight does not justify giving the Claimants a further

opportunity to rectify their omission by referring the matter to assessment. The Claimants

bore the evidential burden of proving their loss and if they failed to adduce the evidence

necessary to discharge that burden, they must bear the consequences just as any other

claimant who fails to adduce evidence to prove a loss that was included in its pleading.

93. As earlier stated, the Claimants failed to adduce any evidence as to the value of the cargo and

freight of the Edmell. Therefore, the Claimants are not entitled to be compensated for the

alleged loss of cargo and freight.

94. Applying the principles enunciated by Kennedy (supra) and approved in The Ben Gairn

(supra), I find as follows:

a. As regards the degree of danger to the salved property, there was a high degree of

danger to the Edmell as she was in danger of sinking based on the exceptional and

prevailing circumstances in which she found herself;

b. As regards the degree of danger to human life aboard the Rambler, there was a

moderate to high degree of danger to the crew of the Rambler, based on the

weather conditions at the material time within which they performed the salvage

services. Further, Mr. Chase risked his life and limb to board the Edmell (it being

unmanned) so as to attach the hawser to the bow of the Edmell;

c. As regards the classification, skill, and conduct of the salvors, the Rambler’s crew

exercised considerable skill and seamanship in performing the salvage operation

(as particularized above) so as to achieve success in and under the prevailing

circumstances. On the facts, the crew of the Rambler did what was required to

save the stricken vessel. In addition, Mr. Adams was an experienced seaman and

Mr. Boodoo was a certified Ship’s Mate; and

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d. As regards the time occupied and work done in the performance of the salvage

service, the time occupied in the salvage operation was approximately 11 hours

and 45 minutes, which is from the time of arrival at the location of the Edmell

(19.45hrs on 17th

January, 2012),50

to the time of berth at the Maritime

Preservation Yard in the port of Port of Spain (07.30hrs on 18th

January, 2012).51

The work done by the Rambler’s crew was extensive as detailed above.

95. Taking into account the evidence adduced by the Claimants as well as the guiding policies

and principles on salvage assessments as set out above and the way in which other Courts

have arrived at awards, I am of the opinion that the Claimants are entitled to remuneration

higher than towage. To my mind, in the absence of a salved value from which some

percentage could be applied, the award for salvage of the Edmell should be upwards of

US$25,000.00 on the basis that this amount was agreed between the parties for towage. Since

I have already determined that the towage was converted to a salvage operation which was

performed successfully, I find that a reasonable award for salvage would be US$45,000.00.

Issue E: Whether the Claimants converted to their own use and/or detained and/or

committed a trespass to the items referred to in the Defendants’ Counterclaim and, if so,

what is the replacement value of those items?

96. The Defendants have led no evidence in support of their Counterclaim for damages for the

conversion of and/or detention of and/or trespass to the items stated therein. Accordingly, I

find that the Defendants have failed to prove their case and are not entitled to the relief

sought in this regard.

50 Witness Statement of Ian Boodoo filed on 21

st May, 2013 at paras. 9 and Witness Statement of Worrell Adams

filed on 21st May, 2013 at para. 3.

51 Witness Statement of John Jordan filed on 21

st May, 2013 at para. 13.

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SUMMARY AND CONCLUSION

97. I have found that:

a. The agreement entered into between the parties constituted a towage contract and

that the Claimants were not informed of the exceptional circumstances of the

Edmell, namely, that it was unmanned, listing to port side and taking in water;

b. By virtue of the services provided by the Claimants, the towage contract was

converted to salvage;

c. Based on the nature of the services provided by the Claimants to the Defendants,

namely, salvage services, the Claimants were entitled to be compensated for

salvage of the Edmell but not her cargo or freight;

d. Based on the Claimants' evidence adduced in support of salvage of the Edmell

they can be so compensated;

e. The Claimants are entitled to be compensated by the owners of the Edmell for

salvage of the Edmell in the amount of US $45,000.00 since, by the entry of an

unconditional appearance, the owners of the Edmell have submitted themselves

personally to the jurisdiction of the Court and, from then on, the action continued

against them not only as an action in rem but also as an action in personam; and

f. The Defendants have failed to prove that the Claimants have converted to their

own use and/or detained and/or trespassed against the identified items on their

Counterclaim, and, as such, are not entitled to damages for same and the

Counterclaim is dismissed .

98. Based on these findings, I am of the opinion that the Claimants are entitled to an award of

US$45,000.00 for salvage of the Edmell while the Defendants are not entitled to the relief

sought and their Counterclaim must be dismissed.

INTEREST

99. The Claimants have claimed interest pursuant to Section 24A of the Supreme Court of

Judicature Act. This Section states:

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“24A. Notwithstanding any written law to the contrary, all moneys paid into the High

Court in any cause or matter, and all moneys paid under the control of, or subject to the

order of the Court or a Judge or Master of the Court, may be invested—

(a) in securities that are authorised by the Rules of the Supreme Court or by any

written law for the investment of moneys under the control of the Court;

(b) by depositing such moneys in an interest bearing account in a financial

institution as defined in the Financial Institutions Act, to the credit of an account

in the name of the Registrar of the Supreme Court or in such name as a Judge or

Master of the Court shall order, with the addition of the words “in trust” to the

title of every such account.”

100. This section is not relevant to the claim for interest but Section 25 of the Supreme

Court of Judicature Act states as follows:

“25. In any proceedings tried in any Court of record for recovery of any debt or

damages, the Court may, if it thinks fit, order that there shall be included in the sum for

which judgment is given interest at such rate as it thinks fit on the whole or any part of

the debt or damages for the whole or any part of the period between the date when the

cause of action arose and the date of the judgment, but nothing in this section—

(a) shall authorise the giving of interest upon interest;

(b) shall apply in relation to any debt upon which interest is payable as of right

whether by virtue of any agreement or otherwise; or

(c) shall affect the damages recoverable for the dishonour of a bill of exchange.”

101. On this basis, it is my opinion that the Claimants are entitled to interest on the award of

US$45,000.00 for salvage of the Edmell at a rate of 3% per annum from the date of the

completion of the salvage operation, 18th

January, 2012, to the date of judgment.

COSTS

102. In my opinion, the Claimants are entitled to an award of costs to be determined in

accordance with Rule 67.5 of the CPR . This Rule provides that the costs payable should be

based on the value of the claim which in the case of a Claimant is the amount agreed or

of 49

ordered to be paid. Therefore, I hereby order the Defendants to pay to the Claimants costs to

be determined in accordance with Appendix B and based on the amounts awarded.

ORDER

103. In the circumstances, I hereby order that:

a. The Defendants do pay to the Claimants the sum of US$45,000.00 for salvage of the

Edmell;

b. The Defendants do pay to the Claimants interest on the amount of US$45,000.00 for

salvage of the Edmell at a rate of 3% per annum from the date of the completion of

the salvage operation, 18th

January, 2012, to the date of judgment; and

c. The Defendants do pay to the Claimants costs based on the amount ordered to be paid

pursuant to Rule 67.5 of the Civil Proceedings Rules 1998 (as amended).

Dated this 4th

day of February, 2016

…………………..………………

André des Vignes

Judge

the republic of trinidad and tobago in the high court...

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