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Colonial Cases

Brown v. Duncan, 1936

[shipping]

Brown v. Duncan

Singapore Recorder's court
1936
Source: The Singapore Chronicle & Commercial Register, 28 January 1836

 

   The following Judgment delivered on Monday last by the learned Recorder on a case well known to our readers here, will not only be interesting to them, but to all others whom interest or any other motive may lead to its perusal:

BROWN & OTHERS v. DUNCAN.

   This is a suit instituted by the owners of an American vessel, called the New Jersey, which, in the course of her voyage from Gibraltar to Canton, with a valuable cargo on board, consisting principally of Quicksilver and Lead, was wrecked upon the Louisa Shoal in the China Seas in the month of November, 1833.  She there remained as a derelict, and the Captain, who appears to have found his way to Singapore after the loss occurred, took no actual measures for recovering any part of the cargo.

   In the early part of the year 1834, three vessels were chartered and fitted our by different parties, Merchants at Singapore, and were furnished with skilled persons and divers, for the purpose of attempting to recover the property lost in the New Jersey.  Two of these vessels, the Madeline and the Reliance, appear to have taken their departure at the end of January or beginning of February 1834, during the height of the N.E. monsoon. 

   The Louisa Shoal is about 800 miles from Singapore; and the service upon which these ships were employed was considered by competent judges not only a dangerous but a desperate one.  The Reliance was lost upon the shoal; the Madeline returned, after a successful adventure, with Quicksilver and Lead, estimated at about 24,000 or 25,000 Spanish dollars.    The third vessel, the Lucile, sailed from Singapore early in April 1834 and recovered property from the wreck to the value of about 7,200 Spanish dollars.

   There can be no doubt as to the meritorious nature of the services rendered by all parties engaged in these adventures, and a large share of the credit acquired by the successful result of the expeditions is due to those enterprising persons who furnished the means of prosecuting them to such an issue, and without whose spontaneous assistance, as far as appears from these proceedings, no part of the property would have been recovered.

   The Defendant was interested in the Madeline and the Lucile, to the extent of 1/10th of the adventure by the former vessel, and 9/20ths of that by the latter.  He received, in kind, his due share of the property recovered, and bore his proper proportion of the expenses and outgoings.  Part of the disbursements were for the remuneration of the Master and curfew of each of the ships engaged in the business, and for that of the superintendents and divers who were more immediately concerned in raising and recovering the cargo.  The services of all these persons have been recompensed according to as scale agreed upon when the expeditions were sent out, and no further claim for salvage is exhibited by them or on their behalf.

   A claim for salvage is however made by the Defendant, and his fright to call for remuneration is not contested by the Plaintiffs: the only question, as I understand, between the parties being as to the amount which he is entitled to receive.  Not being able to adjust this matter between themselves, they are now before the court in juts equitable capacity, the Plaintiffs having filed a Bill of Discovery and for an Account; the Defendant having put in his Answer with an Account tacked to it, and evidence having been adduced on the one side and on the other.

   In his first Answer, the Defendant appears to admit the possibility of some billable being paid over to the Plaintiffs after a just and equitable compensation for himself.  In his further Answer, put in after exceptions to the former one, he claims for himself all the remaining balance of the property saved.  This balance, according to his amended Account, is 2,771 Spanish dollars and 45 cents.

   The claim of the Defendant to compensation in the nature of salvage resting upon the ground of his interest in the adventure, it is necessary to fix and ascertain, first, the principle upon which compensation should be given to a party sustaining this character; and secondly, what, under the circumstances here disclosed, would be its just and proper amount.

   I hardly think that it would satisfy the Defendant's expectations, if his case were treated as the case of mere owner, who by the employment of his vessel in a salvage service has suffered damage and inconvenience - for a party in that situation would scarce obtain more from any English Court of justice than the mere amount of such loss and damage and this upon the ground that the principal ingredient in salvage remuneration - namely, the consideration of the personal exertions, the personal skill, the personal danger of the party [crease in page] wholly wanting in a  case of this description.

"It is a first principle," says Mr. Holt in his Treatise on Shipping, p. 539, "that in the case of a vessel saved, the master and crew are strictly the only salvors.  The owners claim only under the equitable consideration of the Court for the risk of their vessel &c. the Court being not disposed to allow their claim to any great amount.

And he refers to the case of the Wight, 5 Robinson Adm. Rep. 215:-

The general rule," said Lord Stowell in the case of the Vine, 2 Haggard's Admiralty Rep. 2, "is that a party not actually occupied in effecting salvage, is not entitled to share in salvage remuneration.  The exception to this rule, that not unfrequently occurs, is in favour of owners of vessels which in  rendering assistance have either been diverted from their proper employment, or have experienced a special mischief, occasioning to the owners some inconvenience and loss, for which an equitable compensation may reasonably be claimed."

   Such compensation was awarded in the case of the Salacia, 2 Hagg. Ad. Rep. 262 though, I think , it appears that the sum there given to the owners was only that which was estimated as the amount of actual damage sustained by them in consequence of the loss of the fishing season. And in the case of the Jane, 2 Hagg. Adm. Rep. 338 the claim of the owners to a share of the compensation was admitted by the Court, on the ground of the detention of their vessel, and the consequential risk and expenses, though the Court said that the claim of owners generally was very slight, unless, from the circumstances of the case, their property became exposed to danger, of they incurred some real loss inconvenience.

   The principal therefore upon which the absent owners are compensated for the salvage services which their vessels may have performed, would not prove a very productive source of profit to the defendant and those who engaged with him in the adventure.  But I am disposed to think that the case now before the Court has circumstances belonging to it, and possesses peculiar merits, which neither are nor found in ordinary cases of salvage.  It usually happens that the service is rendered by a vessel that is employed for other purposes, and with other objects - and not by one that is sent to sea expressly and solely with a view to the recovery and preservation of the property that is wither lost or in a state of jeopardy.  The ordinary case is that of a vessel which in course of her voyage, either upon the public services, or with a cargo on board, or when in quest of one, falls in with a vessel in distress, and expends the labour of the crew and the time which may be considered as the property of the owners, in rescuing her from the peril in which she is found. The chief actors and prime movers, under these circumstances, are the master and crew, whose duty it is (and that duty is fortunately stimulated by motives of interest) to afford assistance in all cases of maritime distress. There is no merit in the owners - n o meritorious services on their parts - no spontaneous exertions by them for the relief of the suffering party.  The law therefore metes out compensation to them with a sparing, and I may almost say a niggardly hand.

   But those who fit out an expedition for the sole purpose of seeking and saving that which was list: those who embark their  capital in the undertaking and employ suitable and skilful persons for carrying it into execution; those who charter and equip vessels with no other object in view; with no cargo on board, and without any ulterior destination, stand in a very  different situation from the ordinary owners whose case #I have alluded to; and to apply the same rule of compensation to them would, I think, be illiberal, impolitic and unjust.

   I have certainly found no case in the books which resembles in juts circumstances that of the Defendant and those who acted with him, and I know of no express authority to which I can look as a guide for my seclusion.  In a case so new in its kind, general principles must be resorted to; and I think the very first principles of the Law of salvage furbishes a test by which the question of compensation may be determined. The very groundwork, on which salvage compensation in general rests, is the stimulus which it affords to the exertions which are necessary for saving property and lives that are jeoparded by the perils of the seas.  As this remuneration, in order to be a sufficient inducement to act with effect, must, in cases where bodily exertions are required, be something more than a mere compensation for the labour bestowed, so, it seems to be reasonable that, in cases where capital is the primary instrument employed, it should be something beyond a bare return of capital with a mere ordinary profit upon the use of it.

   I think therefore that I shall not be departing  from the true principles upon which all questions of salvage compensation have been decided by saying that the remuneration, in the present case, ought to be large and liberal; that is to say, that the profit upon the capital employed should considerably exceed the profit upon an ordinary commercial speculation, bearing perhaps something of the same proportion to the usual every-day profits which the interest on a Respondential Bond bears to that on a common obligatory instrument.

   Such are, I think, the general principles which are applicable to cases like the present.  The satiation of the parties who this advance their money without engaging personally in the adventure, is so different from that of persons who are actively employed upon the spot, that it would be wrongful, in point of principle, to remunerate them both in one and the same manner.  The actual salvors may with great propriety be rewarded in some proportion to the amount of property recovered, because that mode of remuneration stimulates them to greater exertions and induces them to recover as much as possible.

   The natural stimulus to the employment of capital is the return which it affords, and I am therefore of opinion not only that it is necessary to have recourse to any other mode of compensation but that a per centage upon the outlay is the best and wisest and mist appropriate method than can be devised for the purpose.  The amount of per centage must depend on a variety of considerations - the principal of which are the nature and extend of the risk incurred, and the successful issue of the adventure. 

   A different mode of adjusting the claim of the defendant has indeed been suggested by the Plaintiffs themselves, and has, I understand, been adopted in the arrangement of other claims - that of allowing to the parties a certain proportion of the net proceeds remaining in their hands.  And I find that on the 4th March 1835, before these proceedings were instituted, an offer was made on the part of the plaintiffs, that 65 per cent should be allowed to the defendant out of the net proceeds of his portion of the property saved,  such sums only being charged for expenses as had been actually paid.   Considering the amount of salvage already, in substance and effect, paid to real salvors, I think this offer was a very liberal one of the part of the Plaintiffs, and the sum which it would have secured to the Defendant would, according to my judgment, and the calculation which I have made, afford a most ample return for the capital laid out - for mire indeed than I think he is entitled to expect.  I have already however given my reasons for proceeding upon a different principle.

   The defendant appears to have agreed with the Plaintiffs in regarding the net proceeds as the fund from which his remuneration should be drawn, but he differs widely from them as to the amount and measure of his reward.  His own standard of remuneration - taking the lion's share - is one certainly of a novel and extraordinary kind, and it appears to me to involve a contradiction in terms that he claims this as compensation by way of salvage; for salvage being the consideration paid by owners of property lost or endangered for the benefit accruing to them from its recovery or rescue, it seems to me that neither the name not the thing itself can exist when nothing is recovered or restored.

   The Defendant proposes that the proportion which he has in his possession should accrue, not to the benefit of the owners, but wholly and exclusively to his own.  He must intend to mete out the same equity to others as to himself - and therefore his proposition must necessarily imply that all the other salvors should retain each his own division of the spoil, and that no part of the recovered property should be restored to the real owners.  This, I think, can scarcely be deemed the proper rate or standard of remuneration.

   Upon the whole, I am of opinion that in this case, a just, proper and sufficient compensation will be made to the defendant for his share in the enterprise of I give him 50 per cent upon his real outlay, or advance of capital.  This I think will amply repay him for all the troubles as well as all the risks which can be fairly said to have flowed from his undertaking; and it must not be forgotten that he had derived some further advantage from having held the proceeds of this property for a considerable period in his hands.

   The amount of capital embarked in these adventures by the Defendant, blending the two transactions, by the Madeline and the Lucile into one account, will be made up of all sums paid for the affreightment and outfit of the vessels employed in the service, and also of such further sums as would have been lost to the defendant, supposing no property to have been recovered from the wreck.  In order, therefore, to ascertain the amount of capital laid out, I deduct from the Defendant's Account of Expenses incurred, the following sums;

   First, Spanish dollars 501.865 the portion of the proceeds which were paid to Mr. Melany and the Captain and crew of the Madeline;

   Secondly, Spanish dollars 307.83 the amount of per centage paid to Mr. Melany, Mr. Timms, the Captain, and crew of the Lucile;

   And thirdly, Spanish dollars 90, which evidently forms part of the per centage (5 per cent) paid to the ten divers. According to the evidence of Mr. Crane this per centage should be taken on Spanish dollars 7231.86 and the Defendant's share would be about Spanish dollars 162.

   Deducting however, such sums only as clearly appear in the account to have been paid out of the proceeds of the property saved, and which make tiger her Sp. Drs. 899.69 the remainder, Sp. Drs. 2,249.85 will be the amount of the Defendant's outlay; and fifty per cent on that sum will be Spanish dollars 1,124.92.  This is the sum which I award to the Defendant, and which is therefore to be taken from the balance of the Defendant's account.

   The  question of Costs is one upon which I can entertain no doubt whatever, it being clear to me that all the expanses of this suit, on both sides, would have been avoided if the Defendant had accepted the offer of the Plaintiffs made in March 1835.  That offer was, in my opinion, a most handsome and liberal one, and I can see no good reason for its having been refused.  It is indeed alleged that it was clogged with a condition that the accounts should be sworn before a Magistrate, and that this between merchant, and merchant, who ought to be satisfied with the production if the ordinary mercantile documents, was an unusual and unbecoming demand.  But I think it should be borne in mind that this was not a negotiation conducted by the Plaintiffs themselves, who reside in America, but by an Agent whose duty it was not to sacrifice the interest of his principals to any refined notions of mercantile etiquette.  And it must be confessed that if no other documentary evidence was intended to be submitted to his inspection than that which has been produced for the information of the Court, he would have been provided with but slender materials for furnishing a report to his   employers.

   The decree of the Court will be, that the Defendant be allowed to retain of the balance in his hands the sum which I have mentioned, as a compensation to him in the nature of salvage, and that the remainder be paid over to the Plaintiffs with their costs of suit.  

 

Source: The Singapore Chronicle & Commercial Register, 5 March 1836

CORRESPONDENCE.

TO THE EDITOR OF THE SINGAPORE CHRONICLE

   Sir,

          As it is more than whispered that some of the good people interested in the welfare of the papers here, as well as at Pinang, profess to know something of the Law, perhaps you would prevail upon some one of them to enlighten an ignorant Way-faring-Man, and this public who are so deeply interested in the pure administration of the Law here, and who are in a very great measure at the mercy of a single individual, may go farther and say even implied, the learned Recorder exercises Admiralty Jurisdiction at the united settlement of Prince of Wales, Singapore and Malacca; as he has not only entertained several Admiralty Cases, "causes maritime" as the law calls them, of late, but has in the last instance even had the caution to write out and read his sentence in Court, in order as he said that he might not be mistaken or misquoted.  A deliberate mode of acting which must induce a belief, it it does not clearly shew, that he has taken pains to inform himself of the validity of his power as a VICE COMMISSARY  of the Court of Admiralty.

   The Courts in India at the Presidencies of Fort William, Fort St. George and Bombay, all exercise Admiralty Jurisdiction, but they so exercise such under the express order and sanction of the law.

   By the 26th section of the Charter of the Supreme Court in Bengal, that Court is invested with Admiralty Jurisdiction to hear and determine

"all CAUSES CIVIL AND MARITIME and all pleas &c., within, about, and throughout Bengal, Bahar and Orissa AND ALL the territories or ISLANDS adjacent thereunto or DEPENDANT thereupon the cognizance whereof doth belong to the Jurisdiction of the Admiralty as the same is used and exercised in England &c."

By the 27th section the [blot] Court is invested with Admiralty Jurisdiction in cases of "Crimes Maritime to punish offenders, to arrest ships, wares, &c., according to the Civil Law and the Ancient Customs of the High Court of Admiralty of England" with all the usual and necessary authority to enforce and carry such special Jurisdiction into effect in the most ample manner.  And as Pinang, Singapore and Malacca are beyond all question TERRITORIES or ISLANDS dependant upon the Government of Bengal, &c., I think we may say that it is perfectly evident (unexplained at least) that the Jurisdiction, in THE CAUSES MARITIME" which the Recorder has assumed and exercised, whether he may call them suits in equity or any thing else he may please, belong exclusively to the Vice Admiralty Court at Calcutta.

   For by the 39th section of the Madras Charter which seems word for word with that of Bombay, the Supreme Court at the former Presidency is invested with Civil, and by the 40th sec. with Criminal Admiralty Jurisdiction.  But such Jurisdiction is limited to the Town of Madras and the factories subordinate thereto and territories dependant upon the Government of Fort St. George with this ESPECIAL PROVISO, nevertheless,

"that the several Powers and Authorities given to the said Court to proceed in CAUSES MARITIME &c. shall extend and be construed to extend only to such persons as would be amenable to the said Supreme Court at Madras in its ordinary Jurisdiction."

Evidently shewing that it was the intention of the Legislature to make its power less extensive than those of the Bengal Court, which I take to be the Paramount Court in the territories under the Government of the East India Company. Under the clauses of the Charter just quoted, the Judges of the respective Courts have distinct and  separate authority to sit and act  AS COMMISSARIES in the Court of Vice Admiralty at each Presidency; besides which, they hold their Courts separate, having distinct Registrars and Officers besides stipendiary Marshals to execute and enforce processes.

   The pleadings are all by way of libel and allegation &c., addressed to His Majesty's Commissary or other competent Judge in that behalf, a form of practice by the way as old as the days of Wesemberg, who tells us, that every citation and libel ought to contain the name of the Judge AND his Commission, and the answers, proofs, and all interlocutory proceedings down to definitive sentence are in full accordance and conformity with the strict forms of the High Court of Admiralty at home.  Considering then the extraordinary degree of care and accuracy with which the Courts in India and elsewhere in the British Dominions, keep the Admiralty separate from their ordinary Jurisdiction, it cannot but be a matter of surprise, even to a clodpole like myself, by what whip-syllabub sort of process the Ordinary and only Jurisdiction of this court should be amalgamated with an Admiralty Jurisdiction, which altho' it extends to these parts, belongs to another and a distinct legitimate tribunal, and to see even the very forms of the Law superseded by a sort of Hybrid Humble Petition kind of proceeding unknown in the instance of Admiralty Courts; or the course of such courts anywhere, - for even in the United

America, where every thing is simplified, our own Admiralty forms are rigidly observed and our books of practice reprinted, as I saw myself once at Baltimore.

   In the cases which the Learned Recorder has recently had before him - (I cannot admit determined) he has not even had the simplest grounds to sustain him of the parties litigant being inhabitants of Singapore or any of these settlements, or of the cause of suit having arisen within the Straits of Malacca as it appears that the parties Promovent were Americans domiciled in America, and taking the Louisa shoal, to be 800 Miles off, the cause of action arose 790 miles beyond his Jurisdiction; besides which the property itself was American owned.  It may be said, however, and I anticipate the statement as a sort of defence, that the property when it had been recovered from the New Jersey came to Singapore, but that had not anything earthly to do with the matter, as it has been determined and is the Law, that such a circumstance does not oust the Court of Admiralty of its Jurisdiction, or confer such upon Courts of Common Law or Equity.  Indeed it has even been determined per Tor. Cur. In Scadding's case, reported in Yelverton, that if a Pirate be taken and confined in Gaol and that any other person aid him to escape from such custody, that altho' all the fact committed by such other or third person be upon the land and within the body of the county, that the Temporal Judges shall have nothing to do with the matter, but that the party shall be triable before the Court of Admiralty as an accessary to the Piracy after the fact.

   I confess it strikes me that the learned Recorder might just as well, and with equal legality, have sat upon the trial of a case in Ejectment for the recovery of lands and premises at the Loll Diggy "to wit at Singapore aforesaid" -within the very heart of the city of Calcutta, as upon the trial of any one of these salvage cases.  These scilicits in law to be sure are extensive weapons sometimes and reach a long way, as we find that Captain Brisac of H.M.S. Iris (4th East) when he was indicted for a conspiracy upon the High Seas to defraud the King in London, was so indicted for having committed the fraud at Brassa Sound, to wit at Westminster aforesaid.  When this same salvage case came on the Recorder should have well weighed future possibilities, and should have followed the example of the Lord Keeper in the case of Brown against Bradshaw which is reported in Precedents in Chancery and dismissed the case for want of Jurisdiction.

   In coming to the conclusion at which I have arrived, I do not stop to inquire whether the Defendants in the cases were right or wrong, but I must assume them to have been in the right, merely upon the score of their resistance; but howsoever this may be, they are deeply wronged and aggrieved by the interference of this Court at all; for they have been sued before, and ordered to pay a sum of money by, an incompetent Tribunal, and are as much liable to be sued for the s elf same cause at Calcutta, Ceylon, the Cape of Good Hope, Australia, London, or any part of America, as ever they were without having it in their power to plead the sentence of this Court in bar, which Court THEY the Defendants would be bound to aver and prove was a Court of COMPETENT JURISDICTION to hold plea of the matters in suit and pronounce definitive sentence thereupon; upon which very point the Charter of the Court would turn them round in a single instant, so that the Defendants in both cases may have to pay the same money twice over. The Captain of H. M. Ship Raleigh, may on the same way be sued over again at Bombay, by the owners of the schooner Bombay, there respecting which a trial for salvage has been also had here. - And as in this very point of view the whole of the mercantile world here are more or less concerned, they ought or the defendants ought respectfully but resolutely to set the matter right.

   The course for such purpose would be to file a short bill in the nature of a bill of review and reversal for error apparent upon what is called the Decree in the case, the error to be assigned Want of Jurisdiction.  It would be a mere act of folly to appeal the case home or to allow it to be so appealed, as the Court of appeal would do no more than decide the Court here had not any Jurisdiction and send the case back as it was before the suit was commenced.  It is in vain to imagine that the Privy Council would defer to any Practice which had existed here; such absurdity is quite out of the question if it could be urged on behalf of a Court and a Jurisdiction created, as it were, but yesterday.

   In a case of perjury it must always be averred and proved before a conviction can take place, that the party administering the oath upon which the perjury was assigned had full and lawful power and authority to administer such oath, and even the exercise of such authority for upwards of twenty years does not cure a defect in the original appointment of the party.  A point which has been decoded in that very curious case Rex. vs. Verelst in 3rd Campbell. In order that the parties here may not be discouraged from having the great error which has been committed easily rectified, I shall mention a case or two more in order to shew that learned judges in India do not any longer exercise the doubt functions incident to legislation and Judicature.  By a printed Rule of the Madras Court, or Registrar retiring and succeeded by another was by virtue of his appointment also succeeded to in every administration to intestate estates and others in the same manner as of he the new registrar had originally taken such.  In this way Mr. Cleghorn succeeded Mr. Ricketts, and proceeded in a suit on behalf of the creditors against a Dr. White for the recovery of a large sum about 75,000 Rupees and interest, in which he Cleghorn eventually succeeded obtaining a decree in the whole sum with interest and costs.  An appeal was threatened, and an individual now here advised that Mr. Cleghorn should take out Letters of Administration in the ordinary course, as he urged that the Court Rule was not legal, and that upon the principle of the case of Humphreys vs. Humphreys reported in Peere Williams, the Administration would have reference back to the commencement of the suit.  But as the suit was under the controul of the Court the idea was  scouted, upon the plea, that the expense was unnecessary and a most confident assurance that the Rules of the Court would be upheld and respected; but behold the Privy Council dismissed the Decree and the whole proceedings upon the illegality of this same wise Rule, declaring that Cleghorn was not the legal representative of the party, and that they never would uphold any rule or ordo curiae which was not strictly legal in itself.  The same ground was gone over between the same parties in Court at Madras de novo and the cause reheard before a new set of Judges and the bill dismissed - ! ! !

      As the Chinamen say, it is upon Record; so much for the wisdom and consistency of Judges and the glorious uncertainty of the Law - ! ! ! - And such will continue to be the case in India until a new order of things takes place, and until the patronage of the Indian Bench is exercised solely for the public benefit.  I have spun this out to a very much greater length than I intended; but the subject is a most important one, namely, whether a sort of sic volo sic jubeo Law, such as occasion may seem to require, is to be superadded to that which it has pleased the legislature to extend to these settlements, the evils of which if not promptly counteracted cannot now be foreseen.   One of the greatest Judges that ever graced the English Bench, Lard Hardwick - is reported in a case in Atkins to have said, that he knew he was as liable to  error as any other man, and that he should always be happy in being afforded an opportunity of correcting himself when he was wrong.  A very noble example for all learned Judges to follow.

   I have not myself any thing to gain or to lose in the matter, and even any thing which may be said, either for or against the subject upon which I have written, are of equal unimportance to me. I think that I have discharged the duty of a citizen in pointing out the evil to the public, and done nothing more, so performing that duty by those, who in ignorance of their rights mist need such assistance as I can give, following the advice of that great Orator who said, In collocando beneficio hoc maxime officii est, ut quisque maxime nostra indigeat ita ei potissimum opitalari. - A WAY-FARING-MAN.

Note

See also The Singapore Chronicle & Commercial Register, 30 January 1836 and especially Letter to the Editor by TYRO, 18th February, & 20th February.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School