1988 PLP 2377 (CLC)

and that the Respondents do each bear and pay their own costs of this arbitration and shall pay in the aforesaid proportions the Contractors' costs of this arbitration and the fees and costs charged by the Committee of Lloyd's for their services in connection therewith and the cost of this my award and my services in this arbitration which amounts to I; 1,355 (one thousand three hundred and fifty‑five pounds). As witness my hand this 22nd day of January, 1985." The plaintiff has this simultaneously proceeded with the present proceeding as well the arbitration proceeding before the arbitrator to London. The plaintiff has filed Judicial Miscellaneous No. 38 of 1986 under section 6 of the Arbitration (Protocol and Convention) Act, 1937 for making award rule of the Court. Mr. Kazmi the learned Advocate for one of the claimants has contended that the plaintiff is not entitled to proceed with both the actions at the same time. According to Mr. Kazmi the proceeding for making the award rule of the Court is barred by the principle of res judicata. It may be noted that when this suit was filed the arbitrator had not made the award. I enquired from Mr. Sarwana, Advocate, which matter he wants to proceed and he stated that he would like to proceed with Suit No.316/1984 first as according to him this includes the plaintiff's claim in respect of the ship as well as the cargoes. I would, therefore, proceed to decide this suit first. ISSUES NOS. 1 and 2: The plaintiff .has examined the present Master of Tug 'Apollon' but he was not ehgaged in salvage operation. The plaintiff has also filed the documents which were produced before the arbitrator which include Salvage Agreement, Certificate of Delivery, general statement of the Captain of Salvage Tug Apollon, photo copy of Log Book and photo copy of extract of chart as marked by Captain Apollon. He has also filed the award and reasons given by the arbitrator together with the copy of the correspondence of the advocates to show that the award has become final and made rule of the Court in London. From the evidence on record it is clearly established that the defendant No.l had requested the plaintiff for salvage service and it was performed in terms of Lloyd's Standard form on no cure no pay basis. The entire salvage operation as described by the plaintiff is as follows: ‑ The defendant No. 1. sent Radio message which was picked up by the plaintiff on 25‑1‑1984 at 6‑50 hours. At that time the defendant No.l had reported that the vessel was facing machinery abnormalities and the plaintiff was requested to send this message to the owner of defendant No.l. This was done by the plaintiff and the Tug remained in the same position expecting that situation may arise when it may be required' to render service to the defendant No.l. On 27‑1‑1984 at 0145 hours the plaintiff received an urgent distress call from the defendant No.l that she has suffered machinery damage which has rendered her out of command and she was drifting dangerously towards rocky shores. The plaintiff communicated with the Radio Telephone with the defendant No.l and offered service on Lloyd's Open Standard Form no cure no pay basis and also advised that the plaintiff was at a close distance and can reach there. At 1215 hours the master of the defendant No.l accepted the service in terms of no cure no payment conditions and requested to make efforts to reach as quickly as possible as she was in a very precarious position close to the rocky shore drifting dangerously towards it. It was also stated that she was unable to anchor due to the excessive depth of the water. The plaintiff proceeded at the maximum speed at the risk of over heating the Tug. The plaintiff's master continued contacts with the master of the defendant No.l and advised him the manner in which the two line would be engaged to avoid delay. At 0335 hours the plaintiff spotted the defendant No.l and prepared the tow lines. At 0455 hours the plaintiff arrived close to the defendant No.l. The plaintiff's crew members made efforts to make fast the tow line. According to the plaintiff the prevailing bad weather and the proximity of the rocks and reverse waves were creating dangerous conditions to both the tug and the vessel with collision risk. At.0510 hours the plaintiff succeeded in passing a heaving line and commence connection of tow line. The waves broke through the deck of the plaintiff and it was risky for the crew members attending the tow line. At 0545 hours the defendant No.l was all fast and at 0550 hours towing commenced. The plaintiff in consultation of defendant No.l decided that the safest and only suitable port in the area for repairs was Djibouti. The plaintiff towed the defendant No.l and this operation continued. On 1‑2‑1984 when they were near Djibouti the plaintiff received information from its agent that the port authorities had refused to grant permission for towing the defendant No.l to the Port of Djibouti. Therefore it was decided that the defendant No.l should be anchored in the international waters. On 2‑2‑1984 at 11‑30 hours the defendant No.l anchored in a safe position and tow lines were released. The plaintiff anchored close to the defendant No.l. From this time onwards the plaintiff rendered services of providing necessaries bunkers, water, Engineers, Technicians for repair of the engines and such service continued upto 15‑2‑1984, when the defendant No.l was delivered in the safe custody of her Master. A certificate to this effect was issued by him. This was the entire service which was rendered by the plaintiff. This statement of facts is contained in the extracts of the log book of the plaintiff. It is clear that the salvage operation commenced on 27‑1‑1984. No doubt the defendant No.l was drifting towards the shore loaded with cargo and was likely to be damaged or destroyed. The plaintiff reached the defendant No.l and started salvage operation as stated in the log book. The defendant No. l was in deep water and unable to anchor there. The plaintiff passed heaving line and commencing connection of tow line. The only dangerous situation stated in the log book is that the waves broke over the plaintiff's tug and there was risk to crew members attending the tow line. But no one was injured as such information is not found in the log book. These are usual risks involved in such operation and are expected in the normal course on high seas. No extraordinary risk has been mentioned in commencing connection of tow line. The plaintiff started its operation at 0455 hours and succeeded in making fast the tow line by 0545 hours. At 0550 hours the towing started therefore it had taken hardly one hour to heave and connect the tow line. In the log book the entries pertaining to this time force of wind has not been mentioned and therefore it cannot be ascertained whether at that time the wind speed was high with high and rough swelling waves making the sea and operation risky and dangerous. Therefore from the fact stated in the log book it can safely be concluded that the fasting of tow line was not a risky or dangerous job nor did it take longer time than was necessary, in the normal course. Thereafter the towing started which continued till 1130 hours on 2‑2‑1984 when the defendant No.l anchored at a safe position in the international water. After 0550 hours on 27‑1‑1984 except towing no other service was rendered. No rough sea was experienced during towage. The sea swell and wind faced by the plaintiff was not abnormal, risky or hazardous. After the vessel had anchored the only service rendered by the Plaintiff was to supply provisions, necessaries, bunker and arrange or engineers and technicians who were brought on board by defendant No.l for repairing' the engine and generator. These services do‑ not render the salvage operation risky or dangerous. The exercise, after connecting the tow line from 27‑1‑1984 to 3‑2‑1984 was only a glorious towage operation. There is no evidence to show that the operation had caused danger, risk or damage to the plaintiff. In my view the entire operation was performed in normal conditions without experiencing any excessive danger or rough weather. The fact that the wind was blowing does not make the operation dangerous because normally wind and wave at sea are experienced. To establish that the operation was risky requiring special skill, the plaintiff has to prove by cogent evidence the abnormal force of wind, boisterous sea and rough weather which required more energy and skill to control and continue the operation at high seas. No such evidence has been produced by the plaintiff. Even its log book on which I have relied does not prove the operation to be risky, dangerous and skilful. Before proceeding further let us understand what is a salvage service. In this regard reference can be made to the classic observation in the Charlotte (1848)

3. W. Rob 68 (71) by Dr. Lushington which has been adopted by Lord Justice Kennedy in his book Civil Salvage 3rd Ed. at page

21. In that case the ship came to anchor by error of her Master in an exposed position off the coast in bad weather and started to drag her anchors. Accordingly, crew cut away her masts, which went overboard with all her sails and rigging, and her anchors then held. The salvers towed her the following day to a place of safety. Dr. Lushington observed:‑ "Looking to these facts????.I cannot but think that the service of bringing this vessel to anchor in Long Island Channel was prima facie a service of salvage. According to the principles which are recognized in this Court in questions of this description, all services rendered at sea to a vessel in danger or distress are salvage services. It is not necessary, I conceive, that the distress should be actual or immediate, or that the danger should be imminent and absolute; it will be sufficient if at the time the assistance is rendered, the vessel has encountered any damage or misfortune which might possibly expose her to destruction if the services were not rendered." In the Troilus 83 L.L. Rep. 195 Lord Justice Denning observed:‑ "The obligation on ship and cargo to pay for salvage services is imposed by law irrespective of any contract, express or implied, to that effect; whereas the obligation to pay for towage services arises, if at all, from a contract, express or implied, to pay for them. This difference points the way to the true distinction between the nature of the services. Salvage services arise when the ship is in such danger that the Master has no real choice in the matter, but must, as a reasonable man, accept them from somebody or lose his ship, or leave it in some remote place; whereas towage services rise when the ship has reached such a position of safety that the shipowner has a freedom of choice either to refuse the services or to have repairs done locally or to contract for towage to get his ship home. In order to encourage the rescue of ships which are in danger, the law,' without the necessity of any contract, provides for handsome remuneration for the salvers if they succeed, but nothing if they do not; and this remuneration is based, not only on the time, labour and risk involved, but also for the value of that which is saved ,and it is charged on it." A person who has rendered salvage service is entitled to a salvage award. Salvage service entitling an award should be performed at sea to a distressed vessel by one who is under no duty to do so. Carver in Carriage by Sea Vol. 2, 12th Ed. observed:‑ "One who saves or helps in saving a vessel to which he is a stranger, from danger at sea, is entitled to a reward for his services; and if he has obtained possession of the vessel, he may retain possession until he has been paid the due reward." Martin J. Norris in the ?The Law of Salvage defined salvage service as under:‑ "In its simplest form salvage can be described as a service voluntarily rendered in relieving property from an impending peril at sea or other navigable waters by those under no legal obligation to do so." The persons engaged in salvage service can claim reward for their service. This entitlement is distinguishable from common law right where usually such claim arises under a contract. However, in salvage claim even a voluntary service rendered by a salver entitles him to an award provided other conditions necessary for grant of award are present. Grant of award to such voluntary service is based on public policy to encourage all persons in a position to render help to come forward to save a distressed vessel, cargo and life. ‑It may be mentioned that now‑a‑days it is common that professional tugs are posted at various places in high seas to pick up distress signal and reach the derelict ship to offer salvage service. Normally such services are rendered under an agreement like in the present case which is binding provided they are voluntary and have not been obtained under duress. The salvage service may, therefore, be voluntary or under a contract but the nature and character of service as discussed above remains uncharged. Usually salvage services voluntarily performed are generously awarded as compared to the professional salvers. The plaintiff is a professional salver. According to Carver:‑ "Salvage is earned in very many different ways. It may be by personal services on board the salved ship; by towing her; by protecting or recapturing her from pirates or enemies; by supplying her with me, or stores for want of which she is in danger; by enabling her (by towage) to rejoin a convoy she has dropped behind; by locating her position by a search by a Royal Air Force aeroplane; or, again by protecting or securing the ship, or her cargo, after she has been wrecked; or by giving information of clear water to a ship in an ice‑field." Having thus determined the nature of salvage service it is necessary to examine the principles for granting salvage reward. The foremost amongst the guiding principles is to evaluate the degree of peril to which the derelict vessel was exposed and the imminent danger of loss, damage or destruction of ship, cargo and life. The value of salved property and the risk undertaken by the salvers in risking their property, the prompt action, energy and skill shown by the salvers and the time and labour spent by them in rendering the salvage service are taken into account for determining the fair amount of salvage reward. One has to take into consideration all these elements and cannot pick up only one factor for assessing the award. It may be noted that where the element of risk to derelict vessel was imminent and the danger involved and faced by the salver was high he will be entitled not only to a proper and fair but a generous award. Likewise only an attempt made unskilfully and without any result may not entitle any award. The question of granting a generous, moderate or low award mostly depends upon all the aforestated factors. The degree of peril from which the property has been successfully secured should not be the ordinary peril of the sea. It should be extraordinary peril and danger requiring extraordinary skill. The peril should be beyond the expected and normal action of wind and wave. If the derelict ship, cargo and life on board are in imminent danger of being damaged or destroyed and the salvers have made efforts by risking their life and property they will be entitled to a generous award. The weather condition at the time of rendering salvage service may be taken into consideration while granting an award as from this factor one can gather the) degree of danger or risk to the distressed property which may be imminent or normal at sea. A normal and fair weather during the period when the service was rendered may be an appreciable actor in decreasing the quantum of award. The instances and particulars which may be taken into consideration while determining the quantum of reward have been summarised in Law of Salvage by Martin J. Norris as follows:‑ (1) The degree of danger from which the lives and property are, rescued. (2) The value of the property saved, (3) The risk incurred by the salvers in scuring the property from the impending peril. (4) The promptitude, skill and energy displayed by the salvers in rendering the service and saving the property. (5) The value of the property employed by the salvers in rendering the service and the danger to which such property was exposed. (6) The time and labour expended by the salvers in rendering the salvage service." The value of the salved property is an important element in determining the salvage award but this is not the only criterion on which the award can be passed. All the aforestated elements involved in higher or lower degree must be considered before fixing the quantum of award or decree. It was held in The Devonian 150 F 831 (D.C. Mass 1907) that merely because the value of the property saved is high does not mean that the award must also be high. However high valuation do result in a liberal award but according 'to Martin J. Norris: ‑ "If the service is negligible or slight or where the various) elements which enhance the value of the service are lacking, the award should be low but adequate, although the salved values are high. Likewise, although the salved value is low the award can be appropriately high if the salvage service is highly meritorious one." In the light of the above principle and the evidence on record, the quantum of salvage reward has to be determined. The plaintiff has relied on the award made by the arbitrator and has restricted his claim to the amount of US $294,107, and interest as awarded by the arbitrator. According to Mr. Sarwana this amount was awarded in respect of the salvage of ship while cargo owners will be required to pay additional amount. While awarding this amount the arbitrator had taken into consideration the salved value of my RICE TRADER as follows:‑ "Value of Rice Trader including her bunker and stores US $ 347,652.32 Value of containers US $47,064.02 Value of cargo. US $1147,983.25 Total U S $ 1, 542 , 654 59 = 1,075,770.20". It was also stated that 'the cargo worth US Dollars 3,521,981,50 had already been the subject of the settlement," and perhaps for that reason this value has not been taken into, consideration. The plaintiff has not produced any evidence to show the nature and term of this settlement. In fact this evidence should have been disclosed. While fixing the quantum of salvage reward the salved value of the ship and cargo has to be determined as it is one of the important factors in such determination. According to the plaintiff as stated in the award the plaintiff had proceeded about 47 miles for reaching the defendant No.l and towed 640 miles to a position off Djibouti. The arbitrator has awarded salvage money almost more than 20% of the salved value of the ship and the cargo. In the Queen Elizabeth 82 LL rep. 803 the ship had grounded where she was laden with passengers, cargoes, baggages, mail bags and some pieces of silver bar. Her agreed value was 1;.6,208,

000. The ship was in continuing danger with chance of total loss. From commercial point of view it was a matter of prestige that such prestigious vessel of high value in regular service be refloated. The operation was completed within 24 hours, in which several tugs were engaged. The total award granted by the Court was b 43,

000. In the Troilus, the vessel lost her propeller in‑ Indian Ocean while on voyage from Australia to Liverpool. The Sentor towed her for 1050 miles upto outside Aden Harbour. Subsequently, Troilus was towed by Glenogle 4,300 miles to Jalmouth. Salved Value of Troilus was ? 1,93,000 cargo ?.8,88,000 and freight b 15,

000. The total salved value was ? 10,96,

000. The admiralty Court awarded ‑h 18,000 to Sentor and h 22,000 to Gelngob. The appeal filed against this judgment was dismissed. (see 83 LL Rep.195). In my view the service rendered by the plaintiff was not of such risky, meritorious and dangerous nature that it may call for any generous remuneration. The award filed by the plaintiff can be taken as a piece of evidence like any other evidence. The award has been filed like an ordinary piece of evidence and decree cannot be passed merely on that basis unless the Court on appreciation of evidence comes to the conclusion that the plaintiff's claim has been legally and factually established. The award has so far not been made rule of the Court here nor this suit has been filed on the basis' of the award. It shall be treated as a piece of evidence to‑ the effect that an award has been made in which remuneration mentioned therein has been granted to the plaintiff. In the light of the facts and principles stated above, I am unable to agree with the reasons stated by the learned arbitrator for granting such a heavy compensation. The salved value is L.10, 75,

770. Considering the nature and extent of service the salved value and the fact that the aforestated two cases were decided about three decades back since when inflationary conditions have increased, I will award Rs, 2, 000, 000 as salvage award for the vessel, cargo and containers. The learned counsel for the plaintiff has contended that it is entitled to recover the salvage reward from the cargo owners as the amount awarded by the arbitrator to the plaintiff is only in respect of the ship. As quoted above, the salvage award is based on the salvage value of the ship, cargo and the containers. In this suit I have accepted the salvage value of the ship, the containers and the cargo as stated by the arbitrator, therefore, the question of awarding salvage reward for the cargo and containers does not arise. The next question arises, in what proportion the salvage amount be apportioned amongst the cargo owners and the defendant No.l. Generally such division is based on proportionate value of cargo and the ship. Normally, it happens that the salvage award is paid or recovered from the ship which realises the share of cargo owners from them. In the present case no difficulty will be faced in this regard. From the record it is clear that with the consent of the plaintiff the cargo and containers were released on furnishing security or bank guarantee in favour of the Nazir. The Nazir shall encash those bank guarantees and securities. and deposit the amount with the sale proceeds of defendant No.l. The decretal amount shall be satisfied from the amount lying with the Nazir, subject to the priorities as determined in the Asian Queen P L D 1982 Kar.749 and A dm Suit No.311/1984. Mr. Sarwana, the learned counsel for the plaintiff pressed the claim for interest which it is entitled in terms of the salvage agreement. The interest on the basis of the award cannot be granted as the suit has not been filed to enforce the award. Now taking the facts into consideration that the proceeding has remained ex parte, the ship has been sold at the earliest opportunity within three months of filing of the suit and the sale proceeds are deposited in Court, the question of granting interest in terms of salvage agreement or from the date of filing of the suit till recovery does not arise. The plaintiff's claim for interest is rejected. The plaintiff has claimed that the rate of exchange prevalent on the date of the decree should be applied. As the sale proceed is deposited in Court in Pak Currency and I have quantified and granted the decree in terms of Pakistani Rupees, I do not feel it necessary to deal with this question. The suit is. therefore, decreed in the sum of Rs.20,00,000 against the defendant as stated above with cost of Court‑fee only. A . A . / A‑397 / K????????????????????????????????????????????????????????????????? Suit decreed.