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Colonial Cases

The Hebe, 1869

[shipping, salvage]

The Hebe

Supreme Consular Court, Constantinople
Francis J., 8 March 1869
Source: The Levant Times, 9 March 1869 (Perkins Collection 01-1-012)



[Before Sir P. FRANCIS, Judge.]


   In this case, the trial of which was reported in our last weekly issue, the Court to-day delivered the following lengthened judgment.  The suit had been brought to recover £1,300, the balance of a salvage claim, and the parties were represented by Mr. M'Coan, for the plaintiff, and Mr. Knight (instructed by Mr. Allan), for the defendant.

   On Sunday, Nov ember 22, the barque Hebe, 331 tons, built in 1860, and lately reclassed for 5 years, got ashore in the Azoff during a fog.  The chief, if not only element of danger to the ship and cargo, was the late season of the year.  If the ice should come down in force on the ship before she could be hauled off the mud, her position would have been perilous.  She was laden with linseed, and the cargo was worth in all £5,000.  On this emergency the captain began to throw over some of the cargo, and it is calculated that about £500 worth of linseed was thus thrown over.  What was required was to lighten the ship, for there was deep water close astern, into which, if she could be warped, she would be safe.  The captain (King) said he thought he should have to get out of his ship half the cargo, but one third was, as it turned out, sufficient for the purpose.  The captain entered into negociations  first of all with a boat's crew for help from the shore.  On the 26th, the master made an agreement with them for 50 roubles; but before it was available, it would seem consular intervention took place - an intervention, which from first to last, from the time she grounded till, she reached Constantinople, seems to me to have been never attended with advantage to the owner or ship or cargo.

   Whilst the shore men were launching their boat on the 26th (vide the log), a person representing the English Consul from Mariaople came down and hailed the chief.  The master proceeded on shore immediately to ask him to hurry the men off, when  curiously enough the shore men began to make difficulties, and refused to go excerpt upon a new condition of prepayment.  The Consul then went on board, and promised to bring assistance next day from Marianople.  Thus the day was lost.  On the 29th, the Consul of Briansk came down, had an interview with the ship's captain, took the ship's articles, and said he would get assistance.  On December 2nd, assistance was procured.  Twenty men came off, a kedge was got off, cargo was thrown over, and the ship at last on the right road for getting off. When in the afternoon the work was stopped, because the master had gone ashore and made an agreement with some one - namely, the plaintiff, to get the ship afloat.  At 1 P.M. of this day, the ship was hauled into deep water. 

   The negociations which had taken place between the plaintiff and Captain King had terminated in a contract being made between them for the plaintiff's doing what it was the duty of Captain King to have done, if it had been in his power.  The plaintiff hired three boats and a large number of men, and a part of the cargo was discharged, and the ship was floated.  The plaintiff remained on shore directing, as he says, the operations, which were evidently simple, and not of a hazardous nature.  And I may here observe that he makes a kind of loose estimate of what he has expended and may have to pay for his boats and labour - namely, something like £500 or £600. But of this he brings no evidence, and it appears upon all reasonable calculations a grossly exaggerated sum.  The discharged cargo the plaintiff took on shore, and has kept it towards his remuneration.  Even if we supposed the statement of his outlay to be true, his clear profits from the £600 he has actually received, together with the value of the linseed, amount to about £1,000, and he seeks to obtain £1,300 more.

   The plaintiff lays his claim to further remuneration on one or two grounds: either (1) on his contract with captain King, or (2), if this contract cannot be sustained, as a salvor of a valuable ship and cargo, under circumstances of great danger to the stranded ship.  It is further contended that if the latter alternative be adopted, the terms of the contract would be regarded as indicating the measure of his reward.  Such contracts as the one made with plaintiff and the late captain  of the Hebe have been the object of frequent discussion in the Court of Admiralty.  Several cases have been cited to show where they are upheld, and where they are set aside.  The general result of these  cases shows that such a contract will be ordinarily maintained, when the terms exacted from the master are not exorbitant, nor would lead to the suspicion of inequitable con duct on either side.  The language of the marginal notes read during the argument t are liable to mislead; but the result of these  cases, as stated by a learned writer, is that a contract of this kind is to be held bin ding upon the owner where it appears that no advantage was taken, and that the rate of compensation was reasonable.

   Fraud, or inequitable dealing amounting to fraud, vitiates any contract, and we must watch narrowly this class of cases almost more than any other, on account of the peculiar relation which the captain holds towards the owner of cargo, freight, and insurers, and the facilities which exist  for compromising principals at a  distance.  As Dr. Lushington says, in the recent case of the Phantom, 1 Law Reports, 61, one must consider in every agreement of this kind whether it be

"just and equitable; because if it be not, however much it has been agreed upon by both parties, the Court is in the habit of overruling such an agreement, if it is un just and inequitable."

In any case, therefore, I should be disposed to scrutinize jealously a contract made by the captain, whereby so large a part of the cargo and so substantial a sum for the ship were sacrificed.  And I may observe in passing, that the particular division of liability between cargo and ship, as contained in the contract, is of itself a questionable point.  If the party offering to con tract as salvor were about to encounter a great danger, to run a heavy risk in person or property, to employ great resources to save a ship from peril so obviously imminent that its master had, as a reasonable man, no alternative but to  submit to accept hard terms and severe loss, then it might be considered that the latter exercised a fair discretion in giving up a large percentage, such as £3,000, in respect of a cargo and ship of the value of the Hebe.

   Though no evidence of the value of the ship was given at the trial, it may be taken that a ship of her size, and class and age would be worth £2,000, and her contents.  In answer to my question whether, in the case of the Hebe, it was not merely a fight against time, the present master said such was the case.  The ship had to be lightened.  The former captain said he must discharge a part of his cargo.  There was assistance to be had on shore.  The plaintiff was able to get men and boats, and the question arises had he a monopoly of such assistance.  Now the Consul, Mr. Zohrab, is represented as having  said that the plaintiff was a monied man, and could get or keep away any labour.  The Court certainly ought to know if this be the truth, especially as Mr. Wagstaffe is the plaintiff's partner.  If it be true that the plaintiff held in hand such influence, then it was an unfair stress to be put upon the captain, if he were menaced with such a fact, or was the victim of such influence.  If, on the other hand, it was not true, then the caption, with the help of the consul whose duty it was to assist him, could easily have secured - and that immediately - the necessary labour to have eased his ship. The only tackler specially produced by the plaintiff consisted of bags to contain the seed he has kept, and the filling of these bags, instead of throwing over the seed in bulk, would not have accelerated the operation.  In fact, the crew also had themselves managed to throw overboard 350 chwts before and in a short time.

   Another point to be noted is, that this case is one very different from that of an ordinary and meritorious salvage.  Are the 100 labourers (who alone incurred any possible personal risk) to share in the payment for salvage?  Are the owners of the boats?  It seems certain that Mr. Carbouri - unless his partner, the clerk of the Consulate, should claim his share of the enterprise - alone ids the contractor, and also reaps the profit of the speculation.  The contract in question was, I believe, made between the late master of the Hebe, in the presence of Mr. Consul Zohrabi.  It might have been argued tbhat the prfesence of the Consul should be looked upon as the protection for the ship, and should prove its fair character, but, as a matter of fact, this does not seem to have been so; the plaintiff, Mr.  Carbouri, seems to have had all the advantage on his side.  The contract, in fact, does not come under the head of merely a "hard bargain."  There is a taint about it which gives its exorbitant terms a peculiar significance.  I think no one could examine the evidence carefully without coming to the conclusion that either the captain was misled as to his position and his powers to get assistance, or that there were really means employed to prevent him from getting assistance, or that he allowed himself to be a party to an imprudent and unjust bargain, which, as acting for his principal, he had no right to contract.

   I hold, therefore, that the plain tiff cannot recover on this contract.  It follows, that thinking thus ill of the terms  of the contract, I could not in any case be supposed to adoptee them as containing the measure of remuneration the plaintiff should recover.  But the story does not end here.  Captain King dies suddenly soon after the events above referred to, and the mate is appointed to command in his stead, and two documents are put in which, taken in connection with the present evidence, are of a very significant character.  The Consul at Kertch also interests himself in this matter, to the extent of making the appointment of the mate conditional on his ratifying and accepting Captain King's agreement.  The present master (Moore) swears he signed this agreement "because the Consul told him to do so," and that he did not read n or approve of it, though he w rote that he had done so.

[The judgment then sets lout the contents of the documents referred to, but as they are not of great importance, we omit them for sake of space.]

   The other document I refer to is a copy of the last one, with the exception that it is not executed, but it is called a "true copy,"

"Peter Barron, Her Majesty's Consul for the crime," who adds this note - "The first-named party agreed to the above on Saturday, and refused to sign it on Monday."  Why was the putrescent captain to undertake to ratify without "observation" or questioning the contract of the former captain?  Why was the Consul's "obligatory document not to be subject to any tribunal?"  Why is there such a tender regard for the interests of the plaintiff, and why is the very promotion of the mate made to depend on his ratifying without any observation, a questionable contract? 

   However, the case having come before the Court, I have carefully considered the evidence, and come to the conclusion that the plaintiff's claim for additional remuneration fails, and that his petition must be dismissed with costs.  In fact, the chief doubt I have had is, whether my order should not be for refunding part of his receipts.  But looking at the terms of the answer, and that the claim for refunding the money has not been formally insisted on by the counsel for the defence, and that the cargo landed has already been with Captain King's sanction reduced into possession by the plaintiff, I shall not pursue this course; but in dismissing the plaintiff's petition, the Court does not thereby intend to pronounce as salvage an award in his favour for the amount he has already received in money and goods he has already possessed himself of, - but thinking he has already obtained too much, I merely rule that he shall get no more from the owners.

   At the conclusion of this judgment - which was a written one - the plaintiff's counsel gave notice of appeal to the Privy Council.

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