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Colonial Cases

The Thetis, 1834

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The Thetis

Judicial Committee of the Privy Council
20 June 1834
Source: The Times, 23 June 1834


PRIVY COUNCIL, JUDICIAL COMMITTEE, JUNE 20.
THE THETIS, TREASURE - SALVAGE.
  This was an appeal from a judgment of the late Sir Christopher Robinson, in the Admiralty Court, in respect to a question of salvage of a large amount of treasure shipped on board His Majesty' s frigate Thetis, which was lost at Cape Frio in 1830, the greater part of which treasure was recovered by Captain Dickinson, of His Majesty's sloop Lightning, and the Hon. Captain De Roos, of His Majesty's ship Algerine, both under the orders of Rear-Admiral Sir Thos. Baker, K.C.B., Commander in Chief of the South American station.
  The facts of the case are as follows: in 1830, the Thetis took on board at Lima and other ports in South America, treasure or freight of the value of about 810,000 dollars. She sailed from Rio de Janeiro for England on the 4th of December, and owing to some accident or miscalculation, struck upon a rock near Cape Frio, off the Brazil coast, floated into a small cove of the island, and sunk. Intelligence of the event was received by Admiral Baker, who immediately proceeded to the spot, and found part of the wreck above water, the cove open to the S.W., whence the strongest gales blew, and surrounded by lofty precipitous rocks. The Admiral left His Majesty's ship Algerine to guard the wreck, returned to Rio de Janeiro on the 24th of December, and held a consultation with his officers as to the means of recovering the stores and treasure.
  In order to prevent the treasure from being washed into deeper water, he caused an immense net to be prepared of cables and hawser, which was stretched under water across the inlet (480 feet), and held in a perpendicular position by lanyards attached to buoys, having a chain cable for its base, adapting itself to the various irregularities of the bottom. The obvious scheme of employing a diving bell was suggested, whether in the first instance by Captain Dickinson, or by Admiral Baker, seems immaterial; but such a machine could not be procured at Rio de Janeiro, and it is admitted that Captain Dickinson suggested the construction of a diving bell out of the iron water-tank used in the navy, with the hoses of Truscott's pumps, which suggestion was carried into effect, and the bell so constructed was conveyed to Cape Frio. The Admiral engaged the services of Mr. Moore, an engineer, and with these implements and aids, Captain Dickinson, on the 24th of January, 1831, in command of the Lightning, (which was under orders to be employed in the collection of treasure or freight), with detachments from the Warspite, the flag ship, was despatched by the Admiral to Cape Frio, with directions to endeavour to save the stores and treasure.
  Previous to his departure, he was directed by Admiral Baker to make use of suspension cables across the cove, from whence to lower the diving bell. On inspecting the locality, however, Captain Dickinson determined to employ a derrick, or crane, 159 feet long, which, in the absence of better material, artificers constructed of masts, spars, and other pieces of the wreck, locked and fastened together in a very curious manner. It was very pliable, and was stepped into the rocks about 12 feet above the surface of the sea, its head being elevated to 40 or 5 feet, and it was secured in its position by ropes and chains to different parts of the rock, the length of the stay from the peak of the derrick to the summit of the rock being 155 feet.
 Whilst the derrick was making, a small diving-bell, made of tanks and ship iron, was suspended from the launch of the Warspite, the Admiral's ship, and about 120,000 dollars were thus obtained. After three months about the derrick was completed, and on the 12th pf May. 1831, the great diving-bell was suspended from it; but on the 18th a gale and swell carried away a great part pf the derrick, and the great bell was left at the bottom of the cove. Captain Dickinson at first contemplated the reconstruction of the derrick, but Admiral Baker being averse to this till the suspension cables were tried, Captain Dickinson accepted this scheme, but with some modifications; he, with great labour and exertion, levelled the summit of the S.E. cliff, and carried the Lightning's hempen cable across the main cliff, from which the bells, which were continually damaged, lost, and replaced, were let down. This plan was not, however, put into practice till October 19 (Captain Dickinson being absent on service about a month at Rio); the bells were, in the meantime, lowered from launches, and considerable quantity of rock removed from the wreck. In November Captain Dickinson was attacked by a dangerous illness, brought on by exposure to the weather, incessant exertion of body, and anxiety of mind, but he recovered and resumed the operations, which had been suspended during his illness.
  The weather now became stormy, so that the service could only go on at intervals. In February, 1832, Admiral Baker visited the cove, where he remained 10 days. The service continued till the beginning of March, (up to which time about 580,000 dollars were recovered,) when Captain Dickinson was recalled, in pursuance of orders from the Admiralty, directing the Lightning to proceed to Rio. On behalf of Admiral Baker, it is alleged that Captain Dickinson had reported "that he did not think it at all likely that any considerable quantity more of the treasure could be obtained, and suggesting it was not worth while to pursue the enterprise any further." The Algerine, Captain De Roos, was ordered to replace the Lightning at Cape Frio, and continue the service, which Captain De Roos accordingly continued from the 6th of March till the 24th of July, and recovered 161,000 dollars with the working parties having completely cleared down to the granite bottom of the cove, and removed the rocks amongst which the treasure had lodged (the packages, having broken, and the bullion become embedded in soft matter). The salvage service was completed, after 19 months' labour, by the recovery of the treasure, amounting in the whole to the value of 739,000 dollars, besides stores.
  These were the naked facts, but the minute circumstances of the service very much enhance its merits, and upon these circumstances most of the points at issue respecting the comparative claims of the parties in the suit depend. These parties are Admiral Baker and Captain Dickinson, who, although both interested in maintaining the claim for salvage against the owners, were at issue as to their respective potential claims in distribution; Captain De Roos and the Algerine's officers and crew; the owners of the treasure or the underwriters, and, lastly, the Admiralty, claiming a compensation for wear and tear of the public stores.
  Admiral Baker's statement sets forth, that on receiving intelligence of the disaster, he directed his immediate attention to the recovery of the treasure and stores; that he devised the net, and provided Captain Dickinson with stores and materials at his own expense;, and directed Captain Dickinson to use suspension cables, which would have been a more effectual expedient than the derrick; that Capt. Dickinson acted under his (the Admiral's) orders and directions; that he (the Admiral) was in communication with the Committee at Lloyd's on the subject of the service; that the whole responsibility and expense of the undertaking devolved upon him, and the whole loss, in case of failure, would have been his.
  Captain Dickinson's statement sets forth the particulars of the services performed, under his immediate orders, from January, 1831, till July, 1832, the excessive labour and exertion of all concerned, their privations and sufferings from exposure to the climate, bad provisions, bad lodging, clouds of sand infecting their food and injuring their lungs, disease, casualties, the chigres (insects which set sores in the body), and the peculiar difficulties and anxieties of the service. He states that he conceived and originated the idea of recovering the treasure, which was universally considered a loss, and that his project was spoken of as valid and visionary; that without the apparatus and machinery conceived by him the treasure must have been irrecoverably lost; that the execution of the salvage service was entirely dependent on his skill and resources, and he consequently claimed to be considered as a principal salvor.
 The case set up by the owners was, that, though the service was a meritorious one, there was no very extraordinary degree of merit, and that the salvors were officers in the public service, and therefore not entitled to remuneration as private salvors were.
  The claims of Capt. De Roos and his party were not disputed.
  The Judge of the Court of Admiralty, on the 20th of March, 1833, after declaring that the service had been carried on with a spirit of perseverance and energy, during a period unprecedented in point of time, a service not easily surpassed in merit and unequalled in respect to the amount of property saved, decreed the sum of 17,000 l. for salvage, together with the expenses of the salvors, and the demand of the Admiralty; and directed that, after paying 1,000 l., in various proportions, to certain persons, in addition to their share, that the residue of the 17,000 l. should be distributed as follows:
  To Admiral Baker, the share he would be entitled to as a flag officer, under the Order in Council of 1827, and the remainder amongst the commanding officers and men of the Lightning and Algerine rateably according to the value of the treasure saved, and according to the periods of their service, and the officers and men of the Adelaide, up to the 31st of May, 1831.
  From this judgment, Captain Dickinson appealed on the ground that the treasure salved was derelict (flotson, jetson, or logen), and there is no instance of so small a proportion of derelict property being awarded to salvors in such cases; that Admiral Baker was not entitled to the share allotted to him, and that the claim of the Admiralty for indemnification was unprecedented, and ought not to be allowed.
  Admiral Baker joined in the appeal of Captain Dickinson against the smallness of the sum allotted for salvage, and prayed that he might be adjudged one eighth of such further sum as might be allotted. No appeal was made by Captain De Roos and the officers and crew of the Algerine.
  The hearing of the appeal commenced on Thursday, before the Right Hon. The Vice-Chancellor, the Right Hon. Sir John Nicholl, the right Hon. Sir J. B. Bosanquet, and the Right Hon. T. Erskine.
  Their Lordships heard Dr. Addams and Mr. Alexander for Captain Dickinson, his officers and crew; Sir Edward Sugden and Dr. Lushington for Sir Thomas Baker; and the King's Advocate and Mr. Follett for the owners.  After 12 hours' hearing,
  The Vice-Chancellor, on delivering the judgment of their Lordships.  Without going through the facts of the case, it was sufficient to say, that their Lordships were unanimously of opinion that a sufficient reward had not been awarded to Admiral Baker and Captain Dickinson, his officers and crew, the only persons who had appealed against the decree; and that, considering the length of the service, and the labour and exertion of the sailors, it was not too much to allot to Admiral Baker and Captain Dickinson, his officers and crew, 12,000 l. in addition to the sum allotted in the decree as it stood. Their Lordships were, therefore, of opinion that the decree, in point of form, must be reversed; but they directed that the expenses of all the proceedings should be deducted from the property, as the Court below had directed; that the further sum of 12,000 l. be added to the salvage already allotted to Admiral Baker and Captain Dickinson, his officers and crew, to be divided according to the Order in Council of 1837, the effect of which was to give Admiral  Baker one eighth of the sum, Captain Dickinson two eighths, and the remaining five eighths  to be divided in the manner directed in the said Order.
  Their Lordships were of opinion that not only did the length and arduousness of the service justify this increase of the sum which had been allotted, but that the giving the increased sum was very much in the spirit of previous decisions, which had allotted one third and one half in such cases.  The amount recovered to the underwriters for the owners was 157,000 l. The Admiralty expenses were 13.800 l.; the expenses of agency 12,000 l.; and 17,000 l., the amount of salvage already allotted. These sums, together, made 42,800 l.; adding thereto the sum now given, the whole would be 54,000 l., and a fraction, which sum would be somewhat more than one third of the gross treasure recovered.

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