Fisher v "Oceanic Grandeur"

[1972] HCA 51

HIGH COURT OF AUSTRALIA

Stephen J.

FISHER v. THE "OCEANIC GRANDEUR"

(1972) 127 CLR 312

20 October 1972

Shipping and Navigation—Practice

Shipping and Navigation—Salvage—Salvage reward—Danger to salved vessel—Immobilization of vessel—Loss of use to owners—Relevance to salvage services—Voluntary nature of services—Effect of agreement between owners of vessels upon right of master and crew to salvage reward—Consent of master of salved vessel to salvage service—Factors relevant to assessment of reward. Practice—Action—Costs—Admiralty jurisdiction—Payment into Court—Salvage—Apportionment between claimants—Rules of the High Court, 0. 23, r. 6 (2).

Decisions

July 25.
STEPHEN J. delivered the following written judgment : -
In these two actions, which were, by consent, tried together, the plaintiffs comprise the master, officers and crew of the tanker, Leslie J. Thompson, who claim from the owners of Oceanic Grandeur salvage reward for salvage services rendered by them to that vessel. No claim is made in these proceedings in respect of salvage services to the cargo and the plaintiffs are claiming to enforce rights independent of those of the owner of Leslie J. Thompson, that owner itself makes no salvage claim. (at p315)

2. Just after 0300 hours on the morning of 3rd March 1970 the tanker, Oceanic Grandeur, while steaming from Dumai in Sumatra to Brisbane, the weather being fair and the sea calm, struck and passed over an uncharted rock in the Torres Straits and immediately began to take water in her forward tanks. Speed was reduced and while the extent of the damage was being ascertained, she steamed on at reduced speed and came to anchor some thirty minutes later in shallow water some five nautical miles to the east. (at p316)

3. By the time the vessel had anchored, it was obvious that her hull forward was holed in several places ; sea water had entered a large number of her tanks and she had developed a marked list to port and was also down by the stem with the consequence that aft of the break in the fo'c'sle her deck on the port side was awash for some hundreds of feet, her port side rails being completely submerged for a considerable distance aft of the fo'c'sle. (at p316)

4. The Oceanic Grandeur is a very large tanker of Liberian registry with Chinese master and crew, being over 58,000 tons dead weight and whose hull is almost 750 feet long and almost 110 feet broad. She has a total of seventeen large tanks, occupying the whole of her hull space forward of the engine room and crew's quarters, which are situated in the stern of the vessel. Of these seventeen tanks, only thirteen are designed for the carriage of cargo. Two tanks in the bows, the fore peak tank in the extreme bows and the deep tank just aft of it, are used only as ballast tanks. The remaining fifteen tanks are placed, from fore to aft, in five sets of three, each set of three comprising two wing tanks, on the port and starboard, and a centre tank, each of the five sets being numbered from fore to aft. Of these fifteen tanks, all but no. 3 port and no. 3 starboard, which are ballast tanks, were filled with crude oil at the time. The three no. 2 tanks are interconnected so that liquid in any one of these tanks, when it reaches a certain minimum depth, will flow freely over baffles into the other two no. 2 tanks ; all other tanks are independent units. (at p316)

5. It was found that twelve of the seventeen tanks had taken water and later examination disclosed that the fore peak and deep tank, and no. 1 centre, no. 2 centre, no. 3 centre and no. 4 centre tanks were holed by the pinnacle of rock over which the vessel had passed. In addition, the bulkheads between each of these tanks were no longer watertight and additional bulkhead damage resulted in no. 3 port, no. 4 port and no. 5 port and centre tanks also having sea water entering them. Since all three no. 2 tanks are interconnected the damage to no. 2 centre resulted in no. 2 port and no. 2 starboard, otherwise intact, being also open to the entry of sea water. Since most of the damaged tanks were forward and on the port side this accounted for the vessel listing to port and being down at the stem. (at p316)

6. At the time of impact, the Oceanic Grandeur, which was then carrying over 55,000 tons of crude oil, lost a considerable quantity through these holes in her hull but once at anchor there was no further immediate loss and her list and trim remained constant. (at p317)

7. At about 0915 hours that morning, Leslie J. Thompson, a vessel of the Ampol Petroleum Ltd. fleet, with Australian officers and a Chinese crew, a smaller oil tanker of some 25,000 tons dead weight, was steaming through Torres Straits in the opposite direction to the Oceanic Grandeur, bound for Dumai, there to pick up a cargo of Dumai light crude oil for transport to Brisbane. Her bridge saw Oceanic Grandeur listed to port and down by the head and Leslie J. Thompson's master, Captain Fisher, recognized her as a vessel which was on charter to Ampol Petroleum Ltd. Captain Fisher immediately established the position of Oceanic Grandeur and had a conversation by radio-telephone with Captain Whish, a senior Torres Straits pilot who had been engaged in piloting Oceanic Grandeur through the Torres Straits and who was then on the bridge of Oceanic Grandeur. Oceanic Grandeur at no stage made any distress signals and when Captain Fisher sought to speak to the captain of Oceanic Grandeur, Captain Gar, he was told that Captain Gar refused to speak to him. Captain Fisher then had conveyed to Captain Gar a message asking whether the latter wished Captain Fisher to "Stand by you in your distress", to which came the reply that Captain Gar did not wish him to stand by until Captain Gar had consulted his owners. (at p317)

8. Leslie J. Thompson then circled Oceanic Grandeur, noting her aft draught at thirty-two feet and her forward draught at about fifty-five feet and shortly afterwards anchored nearby. (at p317)

9. There then ensued more than twenty-four hours during which matters were at a deadlock. The two ships remained at anchor quite close together ; Captain Gar continued to reject or ignore Captain Fisher's repeated offers of assistance ; however, both ships were, during this period, in communication with their owners. The weather remained fine and the seas calm and I find that Oceanic Grandeur made no further water in her tanks. Meanwhile public and official concern in Australia about the risk of extensive oil pollution in proximity to the Great Barrier Reef was increasing ; so great was the concern that on 5th March the Premier of Queensland, with a number of senior officials, visited the scene. Ampol Petroleum Ltd., as the owner of Leslie J. Thompson and the charterer of Oceanic Grandeur and whose refinery affiliate was the owner of the offending crude oil which comprised Oceanic Grandeur's cargo, was acutely conscious of the need to prevent further spillage. It offered assistance to Oceanic Grandeur's owners and this was accepted, the deadlock between the two captains being thus broken. Leslie J. Thompson then went alongside the Oceanic Grandeur and, as I find, at some peril to herself and after great exertions on the part of members of her crew, engaged in a complex transhipment operation which had the effect of removing a substantial part of Oceanic Grandeur's cargo, raising its bows and correcting its list. The quite ingenious and very arduous method adopted of syphoning oil out of damaged tanks allowed divers to carry out repairs to the hull because, by raising the level of sea water in those tanks, it provided them with a safe barrier of sea water between their operations on the hull and the otherwise dangerous oil. I find the operation to have been almost exclusively planned and executed by officers of Leslie J. Thompson. After taking its first cargo to Brisbane Leslie J. Thompson returned to Oceanic Grandeur and took on board a second cargo ; another tanker also took further cargo from Oceanic Grandeur and Oceanic Grandeur, after the temporary repairs had been effected to her hull while she remained at anchor, then sailed to Singapore where permanent repairs were carried out. (at p318)

10. This brief narration of events summarizes a very large body of evidence, to some of which I will have to return later in the course of this judgment. (at p318)

11. Salvage reward is claimed by the plaintiffs from the owners of Oceanic Grandeur. Such a reward is payable to those rendering salvage services, that is to say, to those whose voluntary services to another vessel either save or assist in saving that vessel when in danger or recover or assist in recovering it from actual loss. (at p318)

12. "The awarding of salvage is governed largely by considerations of public policy and by the desirability of encouraging seafaring folk to take risks for the purpose of saving property." - Willmer J. in The Sandefjord(1953) 2 Lloyd's Rep 557, at p 561 However, although the courts look favourably on claims to salvage reward - The "Sappho", (1871) LR 3 PC 690, at p 695 - there are certain essential features which must be present before an entitlement to any reward can arise. There must be danger to the vessel salved. There must be a voluntary rendering of services in the sense that the services must not have been rendered pursuant to a contractual or official duty owed to the salved vessel. Again, in the absence of special contract, the services must turn out to have been successful, or to have contributed to success, before any reward can be earned. (at p318)

13. In the present case various aspects of the first two of these three pre-requisites have been put in issue by the defendant which also relies upon two other matters ; that there must be consent by the master of the salved vessel to the rendering of services to her and that this was lacking here, and that the services performed by the plaintiffs were performed by them as part of their ordinary duties as the master and crew of the Leslie J. Thompson while it was undertaking a lightening operation involving a tanker-to-tanker transfer of cargo and were in no sense salvage services. (at p319)

14. It will be necessary to consider separately each of the points in issue and it is convenient to begin with the element of danger to the vessel. I will summarize what I regard as the most important features of the evidence on this aspect. (at p319)

15. Much of the evidence relating to Oceanic Grandeur's plight is beyond controversy and does not involve any conflict of testimony. She was open to the sea in twelve out of seventeen tanks, had a considerable list to port and was down by the head to such an extent that her pilot considered that she could not, in that condition, continue on her way to Brisbane. The jettison of her cargo of crude oil was not a practical possibility because of the resultant pollution. She was lying in a position where she was protected from oceanic swells by surrounding land masses and the northern extremity of the Great Barrier Reef, but there were large areas of open water adjacent to her and waves of up to six feet or so in height did occur in periods of high winds in the locality. The time of year, March, was one in which the weather was unpredictable and bad weather might occur at short notice ; however, it was very unlikely that cyclonic storms would occur in close proximity to the vessel's position although the effect of distant cyclones might be felt in terms of high winds. She was anchored in shallow water on a sandy bottom and I find, as indeed counsel for the defendant was inclined to concede, that her bows were aground at low water, although, due no doubt to calm seas and the size of the vessel, this was not apparent to those on board her. (at p319)

16. To these facts must be added others which were the subject of some conflict of evidence. First, apart from the captain and first officer, the other deck officers of this very large vessel were very inexperienced and the crew generally appears to have been, for some time at least after 3rd March, in a demoralized condition, displaying, as one witness for the defendant said, "a total lack of initiative, lack of co-operation, failure to supervise operations which were being conducted at the time". The officers of Leslie J. Thompson found them to be, with the exception of First Officer Li, markedly unhelpful and were obliged, with crew members from Leslie J. Thompson, to do many tasks aboard Oceanic Grandeur which they would have expected her own crew to have done. Some indication of the state of affairs aboard may be gained from the fact that the crew had apparently openly accused Captain Gar of being at fault and of endangering their lives by hitting the rock pinnacle. I conclude that the Oceanic Grandeur's crew, apart from her first officer, were in no fit state to act as a seamanlike, disciplined crew ready to cope with the emergency which had arisen. (at p320)

17. Secondly, I find that the Oceanic Grandeur was unable to use her main engines so long as she was down by the head to the extent she was before the Leslie J. Thompson began assisting her. The only member of the crew of Oceanic Grandeur called as a witness, First Officer Li, was asked no questions on this point ; the expert evidence was in conflict and was, in any event, unsatisfactory since the expert witnesses on each side lacked knowledge of the actual installation on board Oceanic Grandeur. An expert called on behalf of the defendant was familiar with the particular type of engine which from a reading of Lloyd's Register he had concluded was installed on board, and was emphatic that there should be no difficulty in running the engine despite her trim ; however, as I say, he lacked all personal knowledge of the actual situation on board Oceanic Grandeur at the time. No evidence was called from what might be thought to be the best source, the engineers of Oceanic Grandeur, but cross-examination of one of the defendant's witnesses elicited, without objection, that in a conversation with the chief engineer, he was told that Oceanic Grandeur could not use her engines because she was down at the head. I accept this evidence and find accordingly. (at p320)

18. There were two other matters concerning danger to the Oceanic Grandeur upon which much opinion evidence was given. The first was danger arising from the nature of the cargo carried and the consequences should there be further leakage of that cargo. Dr. Buchanan, an experienced and well qualified consulting chemical engineer with particular knowledge in the petro-chemical field, was called by the plaintiffs. He said that if Sumatran light crude oil were floating on the surface of the sea there would be a "very solid danger of fire" should any spark be present to ignite it, particularly when it first leaked from the vessel. He referred to it in that situation as being intensely dangerous and said that for some time after spillage this dangerous condition would continue. Mr. McDonald, a consulting engineer and naval architect, gave evidence along similar lines. (at p320)

19. A Mr. Perkins, a chemical engineer employed by the owners of the Leslie J. Thompson who was familiar with Sumatran light crude and who had studied Dr. Buchanan's evidence, was called by the defendants but no evidence was elicited from him as to the danger from oil spillage on the water. (at p321)

20. Spillage from the holed tanks apparently ceased at or soon after Oceanic Grandeur came to anchor ; what had spilled was taken away by the current, although it might return with tidal changes of current, and after the initial spills they did not recur until the operation of transferring cargo had begun. However, the evidence is that in any sort of seaway further spillage might easily have occurred and I find that this constituted a real danger should there occur any chance circumstance in which a spark or flame might ignite the gases given off by such spillage. This danger to Oceanic Grandeur persisted so long as she remained at anchor with a damaged hull open to the sea. (at p321)

21. Questions of stability, buoyance and stresses on the hull were also dealt with at considerable length by a variety of witnesses. It is sufficient if I state my conclusions. I find that Oceanic Grandeur was, at least at low tide, aground forward and was, because of the size of its beam and its draught, in no danger either of turning turtle or of falling over onto its side. Nor was there any appreciable risk of its becoming submerged in situ. It took no more water after coming to anchor and, although the sort of seas that might at worst have been encountered could have resulted in further oil spillage and the substitution of more water in its tanks in place of the spilled oil, this would not have resulted in any great additional submergence of the vessel despite the fact that the displaced oil would have a lower specific gravity, about 0.85, than would the sea water which would replace it. (at p321)

22. There remains the question of damage to the fabric of the vessel due to imposed stresses. Captain Hildebrand, the shipping inspector for the Queensland Department of Harbours and Marine, who visited the scene on 5th March with the Premier of that State and whose evidence I found impressive, was concerned about possible failure of the deck structure above the breached tanks. He was not aware that the vessel was, as I have found, aground at low water ; he stated that if it grounded there arose a risk of structural damage due to uneven strain on the whole structure of the ship. (at p321)

23. Mr. McDonald, an experienced consultant engineer and naval architect, said that if the vessel grounded forward there was a serious possibility she would open up further and if, when so grounded, waves caused pounding she might break in two. He too emphasized the stresses imposed on decks and viewed with concern the stress concentrations caused by the holes and indentations in the hull. (at p321)

24. Mr. Rannard was also a very experienced consultant naval engineer with high qualifications. He said that in her damaged condition no undue strain was imposed upon the decks ; however, in cross-examination he agreed that he had made no calculations relating to stresses on the decks and he said that the number of tanks which were open to the sea on Oceanic Grandeur meant that the vessel was fairly close to the safety limits so far as upward stress on her decks was concerned ; it was "pretty accurate", he thought, to regard her in her disabled condition as relying for support on about fifty-eight per cent of her decks, the safe design limit being not more than sixty per cent. (at p322)

25. I conclude from this body of evidence that there did exist a real risk of the fabric of the vessel being over-stressed so that it might fail under additional stresses such as even quite moderate seas might impose, especially if encountered at low water when she was aground forward. I conclude that the structural safety of Oceanic Grandeur could have been in some real jeopardy had she remained for any length of time in the condition in which Leslie J. Thompson found her. (at p322)

26. By way of answer to this view of the evidence, it was said on behalf of the defendant that had there arisen any need to seek a more sheltered anchorage, this could have been found a short distance to the south and that Oceanic Grandeur could have been moved to that position without difficulty. On the evidence I find that to tow her in her listed and bow down position would have presented both difficulty and perhaps also considerable risk of structural damage ; having also concluded on the evidence before me that she could not move under her own power until her trim was corrected, it follows that I regard her as immobilized in the position in which Leslie J. Thompson found her until her trim could be corrected. (at p322)

27. It was also said that there were means which could have been adopted to correct her trim without the aid of Leslie J. Thompson, involving the use of compressed air and a transfer of cargo from no. 1 port tank to no. 3 starboard tank. There was evidence that Oceanic Grandeur had available compressed air and that its engine room took steps, a day or so after anchoring, to install equipment so that compressed air could be pumped into some of the damaged tanks. Had this been done, it should have been possible to force out of the tanks the sea water which had entered. In addition, it would have been possible to transfer oil from the undamaged no. 1 port tank to the sound ballast tank, no. 3 starboard, thereby somewhat correcting the list and the trim of the ship. The carrying out of these steps would have required a degree of care and skill on the part of the officers and crew of Oceanic Grandeur and of any experts brought from the mainland to supplement her very meagre supply of experienced and competent deck officers. (at p323)

28. Neither of these courses was in fact attempted and their practicability is therefore not fully established ; as one is reminded by the judgment in an American salvage case, The Roanoke (1914) 214 Federal Reporter 63, at p 65, "Wisdom born after the event is the cheapest of all wisdom." It is noteworthy that there was no mention of these possibilities in the course of cross-examination of those of the plaintiffs' witnesses who were officers of Leslie J. Thompson and who took part in the actual operation involving Oceanic Grandeur, nor was the practicability of transfer of oil from no. 1 port to no. 3 starboard referred to in the evidence of the only witness from Oceanic Grandeur, First Officer Li, whose duty it would have been to initiate and carry out this operation had it been undertaken. Expert witnesses who spoke of the use of compressed air stressed the need for careful consideration of stresses on deck members before compressed air is used, involving the obtaining and examination of precise information as to the design strengths of the deck structure before attempting its use. There was, I think, in these possible alternative measures, nothing akin to the situation which, in The Helmsman, (1950) 84 L1LR 2079 , a case on which the defendant relied, led Pilcher J. to conclude that that vessel was in no danger in any relevant sense because it could have readily taken steps to avert danger had any threat of it become acute. Evidence suggests that even if compressed air had been used not simply as an interim measure to move to a safer anchorage but in order to sail to Singapore, it would have been most hazardous to attempt such a voyage relying upon compressed air in the tanks for trim and adequate buoyancy. Neither as a measure to enable the vessel to move to more sheltered waters for temporary repairs nor as a means of enabling her to steam directly to Singapore for complete repairs do these proposals alter my view as to the existence of the necessary element of danger to Oceanic Grandeur when Leslie J. Thompson went alongside her. (at p323)

29. In salvage law the pre-requisite of necessary danger is customarily described as physical danger to the vessel - Kennedy on Civil Salvage, 4th ed. (1958), p. 14 et seq. However, it is not confined to cases of threatened destruction of or physical injury to the vessel. It includes also cases of threatened loss of the use of that vessel by those lawfully entitled to its use, whether as a result of acts of piracy or of the actions of revolutionaries - Societe Maritime Caledonienne v. The Cythera(1965) NSWR 146; and The Lomonosoff (1921) P 97 In the former, Macfarlan J concluded (1965) NSWR at p 152, after an extensive review of the authorities, that the essential element in the case of piracy was not that pirates might destroy or damage the ship but rather that they would deprive the owner of his rights of possession and control. In The Lomonosoff, Hill J. said(1921) P, at p 105 that the danger to the vessel was that it would be taken out of the possession and use of the owners for an indefinite time and perhaps permanently lost to them. (at p324)

30. In the present case, the plaintiffs contended that but for services such as those rendered by them, Oceanic Grandeur would have been immobilized and useless to its owners and that threatened deprivation of use is a factor, additional to danger of physical damage, which must be taken into consideration in determining whether the services rendered are salvage services. (at p324)

31. The whole question of danger to a vessel viewed in terms not merely of physical injury or destruction but of loss of use to the owner arose for consideration in two modern cases, The Glaucus (1948) 81 L1LR 262; and The Troilus(1950) P 92 In both cases the vessels had been towed to Aden in a disabled condition without motive power ; they could not be repaired in Aden and were later towed by other vessels to ports where repairs could be effected. In The Glaucus (1948) 81 L1LR 262, Willmer J, having found that the vessel was in a position of danger while at Aden, went on to say (1948) 81 L1LR, at p 266 that :

". . . quite apart from the physical danger, there is this to be added, that until somebody got her to a place where the necessary repairs could be executed she was completely immobilized. It is no use saying that this valuable property, worth something approaching a million pounds, is safe, if it is safe in circumstances where nobody can use it. For practical purposes, it might just as well be at the bottom of the sea."

Lord Merriman P., in The Troilus(1949) 82 L1LR 681 , at first instance, followed the decision in The Glaucus (1948) 81 L1LR 262, but relied upon the state of possible physical danger to the vessel rather than upon any question of deprivation of use due to immobilization. (at p324)

On appeal in The Troilus(1950) P 92 , the Court of Appeal affirmed the decision below. Bucknill L.J. (1950) P, at p 102 adopted Dr Lushington's classic description of danger, taken from his judgment in The "Charlotte" (1848) 3 Wm Rob 68, at p 71 ; (166 ER 888, at p 890):

"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 ship has encountered any damage or misfortune which might possibly expose her to destruction if the services were not rendered."

He regarded mere immobility as not necessarily giving rise to necessary danger and inferentially, I think, disapproved of the concept of threatened deprivation of use as being sufficient to found a salvage claim. He was much influenced by what may be called the two towage argument, namely that towage to Aden was clearly a salvage service, and that had onward towage, after a pause at Aden, been undertaken by the original salvor it too would have been, on the authorities, a salvage service despite a call en route at a safe place of anchorage. Somervell L.J. was also largely affected by this two towage argument. However, he gave some recognition to what I have called the deprivation of use concept when he said (1) :

". . . a disabled vessel at a temporary resting place en route, where she cannot be repaired, is still valueless where she is although there may be a safe anchorage for her . . ."

Denning L.J. (1950) P, at p 110 also recognized the factor of deprivation of use when he expressed the distinction between towage and salvage as being dependent upon whether the ship-owner had freedom of choice as to proffered services. If :

". . . 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 ; . . . "

the service was one of salvage. His Lordship apparently adopted a dual test, risk of loss of the vessel or risk of deprivation of its use. (at p325)

33. On appeal to the House of Lords, Lord Porter delivered the leading judgment(1951) AC 820 affirming the courts below and in particular relying upon the two towage argument. His Lordship concluded, contrary to the courts below, that for all practical purposes Troilus was safe enough at anchorage in Aden. He did not adopt the view taken by Willmer J. in The Glaucus (1948) 81 L1LR 262, that the lack of motive power was in itself sufficient to constitute danger. He denied the existence of any general rule that simply because a ship is without motive power it is therefore necessarily a proper subject of salvage services, but found it unnecessary to express any concluded view upon the question whether salvage services are involved in a case in which the ship is in a place :

". . . where the ship can lie in physical safety even though she cannot be repaired there and may have to remain for an indefinite time until some problematical tug or tugs can be procured to tow her away at a fixed contract price for the towage service ; . . ." (1951) AC at pp 833-834 (at p326)

He went on to say(1951) AC, at p 834, that he did not accept the view that no salvage reward was permissible if the vessel could lie for an indefinite period in physical safety but without any means of egress while it deteriorated and its cargo ultimately perished. The effect of delay on ship and cargo had to be remembered so that :

"The answer, in my view, is not the simple one - 'Is the ship in a position of physical safety ?'" (at p326)

It can, I think, be concluded from The Troilus(1950) P 92that mere physical safety of the ship is not a fact negativing salvage services being capable of being rendered to her, and that threatened immobilization is a factor to which regard should be had, together with threatened physical danger, in determining whether services rendered are in the nature of salvage services. (at p326)

36. In the American decisions, the concept of deprivation of use has been recognized. In The "National Defender" (1970) 1 Lloyd's Rep 40, at p 44, the United States District Court for the Southern District of New York said :

"While every stranding may not give rise to a substantial peril in the factual sense, it is nonetheless undeniably true that a stranded ship which cannot refloat itself unaided is earning no money for its owner, is performing no function for which it was built, and is deteriorating generally in monetary worth, in usefulness, and in reputation. The cases are clear, and the Court so holds, that such a situation as matter of law is peril enough to support an award of salvage."

A number of United States decisions were cited in support of this proposition, including The St. Paul (1898) 86 Federal Reporter 340 , a decision of the United States Circuit Court of Appeals, Second Circuit, where it was said of the St. Paul, which had been swept ashore by a violent storm (1898) 86 Federal Reporter, at p 343:

"But even if, as appellant contends, she might have remained there in safety for an indefinite time, we cannot accede to the proposition that she was not thereby exposed to risk of loss. . . . While she lay on the Jersey beach she was making nothing for her owners, either in money or reputation, but quite the reverse, and her value as an ocean liner was certainly exposed to great risk of deterioration." (at p326)

37. Reverting to the question of physical danger, it is clear on the authorities that this need not be acute or imminent. To the test proposed by Dr. Lushington in that passage from his judgment in The "Charlotte" (1848) 3 Wm Rob 68 (166 ER 888), which has already been set out, need only be added a reference to The "Westminster" (1841) 1 Wm Rob 229, at p 232 (166 ER 558, at p 559), in which Dr. Lushington was concerned with a claim for salvage reward against a cargo owner and said, of a transhipment of cargo from a grounded vessel:

" . . . whatever may be the nature of the service which has been rendered in other respects, it is to be considered as a salvage service, and for this reason, that the vessel was grounded on the rocks, and the cargo itself was in danger. The degree of the danger is immaterial, in considering the nature of the service, for if the cargo at all required assistance to remove it into a place of safety, the service then assumes the character of a salvage service . . . " (at p327)

38. The combination of the risk of fire from spillage and the risk of structural damage was such that I find that there was present that degree of necessary danger as justifies services rendered to her being treated as salvage services. If, as I think is the case, it is proper also to have regard to the fact that without services such as those rendered by Leslie J. Thompson, or other services of different kinds which might be postulated, the vessel would have remained immobilized where she was anchored and there would have been loss of use of the vessel to her owners, this serves to reinforce the plaintiffs' claim to have their services treated as salvage services. (at p327)

39. I turn now to the question whether the services rendered were voluntary in the sense in which that term is used in salvage law. There is, of course, no question of the master and crew of Leslie J. Thompson being, by reason of official status, under any duty to aid Oceanic Grandeur. The fact that Oceanic Grandeur was under charter to, and its cargo was owned by an affiliate of, the owner of Leslie J. Thompson, Ampol Petroleum Ltd., has no bearing upon voluntariness - The "Sappho" (1871) LR 3 PC, at p 694. Nor was there any contractual duty imposed upon the crew of Leslie J. Thompson to render aid to Oceanic Grandeur unless it be that the agreement between Ampol Petroleum Ltd. and the owners of Oceanic Grandeur was one which bound the crew of Leslie J. Thompson and which obliged them to render the services they did to the Oceanic Grandeur. This is what was argued on behalf of the defendant and it is intimately bound up with the defendant's contention that there was here no question of salvage services but simply the performance by the crew of Leslie J. Thompson of their usual duties in carrying out an undertaking of lightening the Oceanic Grandeur, an undertaking of no particular hazard and which Ampol Petroleum Ltd. had agreed upon with the owners of Oceanic Grandeur. (at p328)

40. The evidence of the agreement between Ampol Petroleum Ltd. and the owners of Oceanic Grandeur was that in the afternoon and evening of 3rd March Ampol Petroleum Ltd. had three telephone conversations with Oceanic Grandeur's owners in Hong Kong, represented by a Mr. Tung. In the first, Ampol Petroleum Ltd. offered the use of Leslie J. Thompson to assist Oceanic Grandeur by taking cargo from her, Ampol Petroleum Ltd. stipulating that it would require to be "legally covered for its costs". Later there was another telephone conversation in which Mr. Tung put forward a proposed form of indemnity to meet this requirement and Ampol Petroleum Ltd. countered with its preferred version which Mr. Tung agreed to consider. In a further telephone conversation, he expressed agreement with all but one aspect of Ampol Petroleum Ltd.'s version of the indemnity and Ampol yielded on that aspect. The form of indemnity was then agreed upon subject only to Mr. Tung's solicitors in Hong Kong satisfying themselves as to its terms. Apparently all that was said throughout these conversations about the actual services to be performed by Leslie J. Thompson was that the carriage by her of transhipped crude should be at current market rate, an imprecise term which Ampol intended to have clarified later on. (at p328)

41. Upon Mr. Tung giving his word of honour that he would stand by the substance of the form of indemnity as discussed and would send to Ampol a telex copy of it the following day, so as to satisfy Ampol's insurers, Ampol thereupon informed Mr. Tung that Leslie J. Thompson would go alongside. (at p328)

42. A telex message setting out the agreed form of indemnity was duly received by Ampol but apart from that there is no evidence of any further agreement clarifying the earlier reference to "current market rate" or, indeed, of any discussions at all between the parties until an exchange of telex messages between Mr. Tung and Ampol between 10th March and 19th March, followed by other communications in April 1970, which finally resulted in agreement upon the details of a formal charter party, which was only executed some time after 15th July 1970. (at p328)

43. While it is, in those circumstances, not easy to determine when any concluded agreement was arrived at, the telex messages between 10th and 19th March suggest to me that there was in fact no agreement in concluded form during the period when Leslie J. Thompson was alongside Oceanic Grandeur early in March 1970, at least on anything other than the form of the indemnity. These telex messages reveal that there was actual disagreement upon a number of terms, including the applicable freight rate, the number of hours of lay time and the effect on total freight payable should Leslie J. Thompson not be able to be fully loaded, so that dead freight would be involved. The terms of the indemnity, by which Oceanic Grandeur's owners would fully indemnify Ampol in respect of its action in accepting transfers of crude oil from Oceanic Grandeur and in providing material for and aiding in prevention of pollution by oil spillage from the Oceanic Grandeur, were agreed upon as was the fact that Leslie J. Thompson would go alongside and take cargo off Oceanic Grandeur. The precise terms of remuneration for the subsequent carriage of the transferred crude oil from Oceanic Grandeur to Brisbane, were, it seems, left to be settled by subsequent agreement and nothing at all was agreed as to the actual operation of transferring cargo and otherwise correcting the list and trim of Oceanic Grandeur and so dealing with the level of oil in her holds as to permit divers to carry out temporary repairs. This all appears to have been left to those on the spot. (at p329)

44. The attitude of Ampol at and prior to these discussions appears to me to emerge clearly enough ; at first it was concerned to protect itself against any expenses or losses which it might incur in going alongside Oceanic Grandeur ; it accordingly instructed its master, Captain Fisher, at noon on 3rd March "on no account to hook up until instructed . . . " It later supplemented this instruction by a message, passed through Thursday Island facilities, informing Captain Fisher that before taking any cargo from Oceanic Grandeur, a Lloyd's open form of salvage agreement should first be obtained from the master of Oceanic Grandeur. It did this because of concern as to its legal position should Leslie J. Thompson go to the aid of Oceanic Grandeur. Then followed the telephone negotiations with Oceanic Grandeur's owners to which I have referred. When these had been concluded on the evening of 3rd March, Ampol's representative in a telephone conversation with Captain Fisher informed him that Ampol had come to an agreement with the owners of Oceanic Grandeur and had a form of indemnity from them and that there was accordingly no need for the master of the Oceanic Grandeur to sign any salvage agreement. A radiogram from Ampol to Captain Fisher somewhat earlier on the evening of 3rd March had foreshadowed that instruction by informing him that, following a request from Oceanic Grandeur's owners to lighten cargo, Ampol had agreed to do so and that he was now authorized to take portion of its cargo on board. The following morning Ampol sent a further telegram to Captain Fisher again telling him that there was now no need for a salvage agreement to be signed. From Ampol's viewpoint this was no doubt so ; it was satisfied with its indemnity and had done what it could to attend to two matters of great concern to it, the urgent provision of crude oil to its Brisbane refinery, which was running short of crude, and the minimizing of pollution, with which its name was being associated and which had created much publicity and both official and public concern in Australia. (at p330)

45. Ampol's position was a curious one. Apart both from its possible embarrassment from adverse publicity concerning oil spillage and pollution, and from its pressing need for supplies of crude oil at the Brisbane refinery, its refining affiliate was the owner of the very valuable cargo on board Oceanic Grandeur, part of which Ampol was arranging to have transported to its destination in Brisbane by its own vessel, Leslie J. Thompson. It would be unreal to suppose that Ampol, as a shipowner and charterer, was not conscious of the possible financial consequences were there to be salvage claims by the master and crew of Leslie J. Thompson not only against the owners of Oceanic Grandeur, but also against its affiliate, the cargo owner, or were salvage claims against the shipowner to result in an obligation to contribute to a general average expenditure in the shape of salvage reward to salvors. (at p330)

46. It was in these circumstances that the original concept of no transhipment of oil without the signature of a salvage agreement was, later on 3rd March, superseded by the obtaining of an indemnity in Ampol's favour and by its offering to take a transfer of part of Oceanic Grandeur's cargo aboard Leslie J. Thompson and its transport to Brisbane. (at p330)

47. To the extent that the defendant relies on the agreement, either as establishing that the services rendered were not salvage services but a mere lightening operation, or that the only amount agreed to be paid was that paid to Ampol by way of freight, that agreement binding the master and crew, it follows from my finding that there was no concluded agreement other than the indemnity already referred to, that I must reject these submissions. The indemnity did not purport to affect in any way the master and crew of Leslie J. Thompson but was solely concerned with the safeguarding of Ampol's position should Leslie J. Thompson go alongside Oceanic Grandeur. It constituted no binding undertaking by Ampol to render any services to Oceanic Grandeur but merely established the legal position as to losses and outgoings incurred by Ampol ; once this was established, Ampol could then proceed, without financial risk, to assist Oceanic Grandeur and to protect its own vital interests by supplying its Brisbane refinery with crude oil and at the same time mitigating any pollution problems. (at p331)

48. Accordingly, I find that the plaintiffs' claim for salvage reward cannot be met by reliance upon the terms of any agreement between Ampol and Oceanic Grandeur's owners, nor was there any lack of voluntariness on the part of the plaintiffs in relation to their services to Oceanic Grandeur. (at p331)

49. Acting upon the orders of a third party does not deprive salvors of the necessary element of voluntariness - The Sarpen (1916) P 306, at p 315; The "National Defender" (1970) 1 Lloyd's Rep 40, at p 45 - and the fact that the actions of Leslie J. Thompson and her crew were in conformity with the instructions of her owners affords no ground for denying that the services of the crew were voluntary. (at p331)

50. If, contrary to my view, the proper conclusion from the evidence is that there was a concluded agreement that Ampol would render lightening services by employing Leslie J. Thompson to take off cargo from Oceanic Grandeur, would that alter the position ? I think not. (at p331)

51. It is helpful in an examination of this question to preserve a clear distinction between salvage services and salvage reward, as was done by Isaacs J. in his dissenting judgment in The Cartela v. The Inverness-shire(1916) 21 CLR 387, at p 404 (at p331)

52. The defendant argues that the agreement was one simply for lightening services which Ampol agreed to supply by means of its vessel, the Leslie J. Thompson ; that such services are a recognized tanker operation in which a fully loaded tanker's cargo is transferred to an empty tanker, that the plaintiffs did no more than perform their duty as the master and crew of Leslie J. Thompson in carrying out that operation and that no question of salvage services arises. (at p331)

53. It is, I think, a misconception to regard services rendered to a vessel as capable of division into neat categories, such as towage, lightening or salvage services, as is revealed by the judgment of Dr. Lushington in The "Westminster" (1841) 1 Wm Rob 229, at p 232 (166 ER 558, at p 559) . It is not the physical character of the particular services that is important but rather the circumstances in which they are being carried out ; if they involve the necessary elements of salvage, they will be salvage services whether or not they take the form of lightening, towing or any other maritime operation. As was said by Lord Blackburn, at first instance, in Nicholson v. Leith Salvage and Towage Co. Ltd.(1923) Sc LT 229, at p 231, ". . . in many cases of pure salvage nothing more is required than towage services . . ." ; and see also per Isaacs J. in The Cartela v. The Inverness-shire (1916) 21 CLR 387, at p 404, and Bergher v General Petroleum Co (1917) 242 Federal Reporter 967, in which it was held that merely because the respective owners described the service rendered as towage, this was not of moment in determining whether or not the crew of the towing vessel in fact rendered salvage services. (at p332)

54. The question is, therefore, not whether the agreement can properly be described as one for lightening services, but rather whether in performing services under it and having regard to all the circumstances, salvage services were in fact rendered by the plaintiffs. (at p332)

55. For the defendant, it was contended that just as services under a towage contract do not give rise to claims for salvage unless circumstances arise which operate to terminate for the time being the towage services and substitute for them salvage services - The Leon Blum(1915) P 90, at pp 101-102 - so too in the present case, in the absence of any such terminating circumstances, of which there were none present here, services under a lightening contract cannot entitle the plaintiffs to salvage reward. (at p332)

56. However, the existence of a contract to tow excludes salvage services only when from the beginning it involves nothing in the way of salvage. In The "Princess Alice" (1849) 3 Wm Rob 138, at pp 139-140 (166 ER 914, at p 915), it was said by Dr. Lushington, and later approved of in the Privy Council in The "Strathnaver"(1875) 1 App Cas 58, at p 63, that

". . . 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."

But towage may frequently form the whole or a substantial part of salvage services and towage not for the purpose of accelerating the progress of the towed vessel but to avoid risk of danger to her will be a salvage service - The Kangaroo (1918) P 327 If, in the present case, towage cases are to be used by way of analogy, it may be apt to describe lightening services as those where one vessel is employed to remove cargo from another when nothing more is required than the transhipment of that cargo so that it may be transported to its destination. Here the transfer of cargo was not by any means undertaken for that purpose alone but rather to assist Oceanic Grandeur, the arrangement between the respective owners taking the form it ultimately did because of the circumstances to which I have already referred. It accordingly appears to me to be erroneous to regard the arrangement as at any time one simply for lightening. In forming this view, I have not relied upon the particular hazards involved in the work itself, but if these be relevant, I find them to have been substantial and far greater than would be encountered in a normal ship-to-ship cargo transfer operation ; moreover, apart from danger, the work involved was extraordinarily arduous for the deck officers of Leslie J. Thompson and imposed great responsibility upon her master. It is useful to recall what was said by the Judicial Committee in The "Sappho" (1871) LR 3 PC, at p 695:

"The true rule appears to their Lordships to be, to consider, whether the services are in themselves of the nature of salvage services ; and next, whether they are services which are within the contract which the Seaman originally enters into, so that he receives remuneration for them by his ordinary wages ?"

Their Lordships concluded that if the first question were answered "yes" and the second "no", there was no good reason why salvage remuneration should not be awarded. (at p333)

57. For these reasons, I do not accept the view that if, contrary to my findings, there existed a concluded agreement, it is of any relevance that the parties to it viewed it as a lightening agreement or that it was in form a simple lightening agreement. Neither of these facts can, of themselves, prevent services rendered under it from being salvage services if they otherwise answer to that description. (at p333)

58. In any event, this was not, as between the parties, regarded as a simple lightening agreement or, as counsel for the defendant submitted, simply a contract to shift cargo ; on the contary the special position of Oceanic Grandeur was clearly recognized and Ampol successfully insisted upon quite special terms, contained both in the indemnity and in the freight rate finally adopted, because of the situation of danger in which Oceanic Grandeur found herself. The indemnity marked a departure from a normal, every-day shipping transaction and was recognized as such by the parties ; the telex message confirming its terms refers to transfers of crude oil "from the damaged vessel Oceanic Grandeur", and to "damage sustained by that vessel on 3/3/70". Again, in the freight rate negotiations, there are references both to the special position of Oceanic Grandeur and to reliance by Ampol upon that fact in obtaining a higher freight rate than would otherwise apply. Thus, Ampol refers to the diversion of its own vessel "to assist Oceanic Grandeur" and in the reply there is reference to Ampol's "assistance during these difficult times" ; Ampol's response refers to the circumstances "caused by Oceanic Grandeur accident and diversion Leslie J. Thompson". It is also of interest to note that the form of charter-party proposed by Oceanic Grandeur's owners on 14th April 1970 included a clause to the effect that freight earned should be included in the general average adjustment in respect of Oceanic Grandeur's accident on 3rd March and be paid by its hull underwriters after completion of the adjustment. This clause was later deleted at Ampol's request. (at p334)

59. The defendant also contended that the agreement operated to bar a claim to a salvage reward by the plaintiffs even if their services were in the nature of salvage services. While it may be that Ampol would be barred from itself claiming salvage reward, a matter I am not called upon to determine, there are two reasons why the alleged agreement cannot, in my view, so operate as against the plaintiffs. First what is said to be the agreement contains nothing in express terms excluding a claim for salvage reward let alone purporting to bind the master and crew of the Leslie J. Thompson to such an exclusion. I see no ground upon which it would be proper to imply into the arrangement such a term as would exclude an otherwise justifiable claim for salvage reward by them. Secondly, even if Ampol had purported to contract not only on its own behalf but also on its master's and crew's behalf and thereby to deprive them of a right to salvage reward, I would not regard Ampol, in the circumstances, as having any power to do so. (at p334)

60. The authority of shipowners to bind the master and crew as to matters of salvage reward was examined by Dixon J. in Huddart Parker Ltd. v. The Mill Hill(1950) 81 CLR 502 He concluded(1950) 81 CLR, at p 511, that in the particular facts of that case a limited authority existed, to be implied from the relationship of the master and crew to the owners of the salving tug and from the exigency or the circumstances. Here the task to be undertaken by the master and crew was quite foreign to their normal duties and the agreement entered into by Ampol was one which operated to expose them to considerable risk and arduous labour at no additional remuneration and, on the present assumption, without any entitlement to salvage reward. In the case of The Mill Hill (1950) 81 CLR 502 the salving vessel was a tug and the agreement entered into was that form of agreement commonly used by its owners and which did provide for a salvage reward. Moreover the circumstances in which that agreement was entered into and the chronology of agreement and salvage operation were markedly different from the present case. (at p334)

61. For these reasons I conclude that, even if I be wrong in finding that at the material time there was no concluded agreement between the respective owners other than the indemnity, any agreement that did exist between Ampol and Oceanic Grandeur's owners provided no obstacle to a claim by the plaintiffs for reward for salvage services rendered by them. (at p335)

62. It was also said that the fact that Ampol had instructed Captain Fisher to leave to Captain Gar the responsibility of nominating the unloading programme and that he in fact did so negatived the view that salvage services were rendered. This instruction and its observance does not appear to me to have any real bearing on the matter ; the fact is that an important part of the services rendered was involved in the devising of appropriate procedures for unloading cargo from Oceanic Grandeur. It is true that Captain Gar or First Officer Li approved of these procedures ; had they not done so the procedures could not have been carried out. But this approval does not, in my view, affect the nature of the services rendered. (at p335)

63. The defendant further contends that salvage services entitling salvors to reward can only be undertaken, in the case of a vessel under the control of its master, with the consent of that master and that there was no such consent in the present case. I assume for present purposes that the first part of this proposition is correct - The Solway Prince(1896) P 120, at p 126 - notwithstanding what has been said elsewhere as to it sufficing that in all the circumstances a reasonably prudent master would have accepted proffered services which are in fact rendered - The Auguste Legembre (1902) P 123, at p 128 and The Kangaroo (1918) P 327, at p 331 The defendant then puts it that the only consent given by Captain Gar, master of Oceanic Grandeur, was a qualified one ; he consented only to the rendering of services upon the footing of the agreement made between the respective owners and that agreement, whatever else it was, was not one for salvage services involving salvage reward. Accordingly, when Captain Fisher acted upon that consent and came alongside Oceanic Grandeur, there existed no consent to the rendering of salvage services and nothing occurred therafter to change that position. It follows, therefore, said the defendant, that no entitlement to salvage reward arises. (at p335)

64. It is necessary to examine the evidence of what occurred when Captain Gar's alleged consent was given. The facts are curious and complex. By the close of 3rd March 1970, the owners of each vessel were in agreement that Leslie J. Thompson should go alongside Oceanic Grandeur and assist her in her then condition by transhipment of portion of her cargo. However, the respective masters were themselves far from being in any state of agreement. By the afternoon of 4th March, Captain Fisher had made a total of seven offers to Captain Gar to permit him to render salvage services to Oceanic Grandeur. On none of these occasions did Captain Gar speak to Captain Fisher personally ; on the contrary, he seems carefully to have avoided doing so. Sometimes he replied to the messages sent, either rejecting the offers outright or temporizing ; other messages he simply ignored. (at p336)

65. Then, for the first time, on the afternoon of 4th March, the two captains met on board Oceanic Grandeur after Ampol's representative had arrived from the mainland and it had been decided that the proper course was to go on board Oceanic Grandeur. I have no doubt that, at all times, the attitude of Captain Fisher, and no doubt of his crew, was one of keen desire to obtain the consent of Captain Gar to the rendering to his vessel of salvage services which would, they hoped, earn them substantial salvage reward. This I regard as in no way to their discredit despite the fact that it was not in accord with the wishes of Ampol ; the main object of the law of salvage is, by the incentive of monetary gain, to encourage seafarers to render assistance to vessels in danger and the fact that their response is, to a greater or lesser extent, the product of that incentive cannot adversely reflect upon them. It was urged that Captain Fisher exercised undue pressure upon Captain Gar by his repeated offers and by his conduct during his discussion on board ; if so, it certainly appears to have produced no result so far as Captain Gar was concerned. Indeed it was insisted on behalf of the defendant that Captain Gar throughout displayed the greatest firmness in refusing the much proffered offers of salvage. I find that there was no such misconduct on the part of Captain Fisher or any member of his crew as would operate to deprive any of them of a right to salvage reward or to diminish the amount otherwise proper to be awarded. (at p336)

66. Captain Fisher was, I find, in a somewhat confused and disturbed state of mind when he visited Captain Gar. As soon as he had appreciated Oceanic Grandeur's plight he had thought of possible salvage reward and this prospect was made the brighter by Ampol's initial instruction to secure Captain Gar's signature to a form of salvage agreement. I find as a fact that following that message Leslie J. Thompson received a further message on the evening of 3rd March purporting to originate from Ampol and which reported that Oceanic Grandeur's owners were instructing Captain Gar to sign a form of Lloyd's salvage agreement. This message does not seem to have been authorized by any responsible officer of Ampol ; its only relevance is in the effect it had on Captain Fisher's state of mind, followed, as it was, by a further refusal by Captain Gar of proffered salvage services. What must have appeared to Captain Fisher to be inexplicable conduct on Captain Gar's part was swiftly succeeded by Ampol's change of attitude from one involving salvage to the arrangement for an indemnity coupled with a lightening operation. I find, despite his denials early in his cross-examination, that Captain Fisher knew very well when he boarded Oceanic Grandeur that some arrangement of that nature had been made between the respective owners but that he was uncertain of its consequences and mistrusted its effect upon his own and his crew's hopes of salvage reward. In view of the lengthy and conflicting submissions which were made to me on its effect, it is not perhaps surprising that on the scant information available to Captain Fisher he was left in some confusion. (at p337)

67. For what took place between the two captains on board Oceanic Grandeur on the afternoon of 4th March I must rely on the evidence of Captain Fisher and of Mr. Lovell, Ampol's representative sent from the mainland. Captain Gar was not called and neither of the ship's first officers were present during the significant stages of these conversations. (at p337)

68. It is common ground between Captain Fisher and Mr. Lovell that Captain Gar requested Captain Fisher to bring Leslie J. Thompson alongside and take off cargo and that Captain Fisher agreed to do so ; also that Captain Gar said that his owners had not authorized him to sign a Lloyd's salvage agreement. If this were all that was said it would follow that there was consent by Captain Gar to what I have found to be the rendering of salvage services. However, that was clearly not all ; according to Captain Fisher's evidence, Captain Gar said that the respective owners had reached a private agreement under which he was agreeing to Leslie J. Thompson coming alongside, to which Captain Fisher replied that he did not know of that private agreement but that he would come alongside and would sort out the matter of private agreements later. On cross-examination Captain Fisher admitted that Captain Gar allowed him to come alongside on the footing of an agreement between the respective owners. (at p337)

69. Mr. Lovell's version is significantly different. He said in evidence in chief that Captain Fisher told Captain Gar that Ampol had said that there was no need for a Lloyd's salvage agreement and that he would bring Leslie J. Thompson alongside with no thought of reward or gain. (at p338)

70. I do not accept the accuracy of Mr. Lovell's recollection as to the latter portion of this alleged statement by Captain Fisher and this not merely because Captain Fisher denies its correctness. It appears to me to be quite at variance both with the tenor of the captains' conversation as described by Mr. Lovell, with the general context and with Captain Fisher's conduct before and after this part of the conversation took place. Mr. Lovell's evidence was elicited in examination-in-chief without being related to context and it was only in cross-examination that it emerged that Captain Fisher was said to have made this statement almost gratuitously at quite a late stage in the discussions on board Oceanic Grandeur and some time after the two first officers had gone off together to formulate plans for carrying out the lightening operations, after the two captains had together inspected plans of the Oceanic Grandeur's tanks and after Captain Gar had told Captain Fisher what he had seen of the damage to the hull and what he thought might be done about it. Captain Fisher's initial attitude to Captain Gar was clearly not friendly ; Mr. Lovell recalled, when cross-examined that quite early in their conversation Captain Fisher accused Captain Gar of procrastination and pressed him to admit, as he then did, that Oceanic Grandeur's owners had informed him of an agreement made with Ampol for transfer of cargo without the need for a Lloyd's salvage agreement. Matters having reached this stage, it seems inherently unlikely that Captain Fisher should, much later in the conversation, make the statement that he would take a transfer of cargo without thought of reward or gain. (at p338)

71. Moreover, for him to say so would have seemed to him to be an abandonment of all his prior hopes of salvage reward and those of his crew. It would also be quite inconsistent with the action of Captain Fisher in soon afterwards instituting these proceedings, yet Mr. Lovell, who thereafter remained on quite pleastant terms with Captain Fisher and saw a lot of him, said that he saw nothing inconsistent between these two aspects of Captain Fisher's conduct. This does not appear to me to be credible if Captain Fisher's alleged statement was made in the terms and in the context stated by Mr. Lovell. For these reasons, I accept Captain Fisher's denial that he made that statement. (at p338)

72. There are a number of other respects in which Captain Fisher's account of what occurred and that of Mr. Lovell are at variance but they are relatively unimportant serving only, perhaps, to suggest that Captain Fisher either mistakenly understood Captain Gar's reference to a private agreement between the owners as something different from the agreement of which he had been informed by Ampol the previous evening or else knowingly chose to so interpret it. (at p339)

73. The result of the evidence is then, I think, that the two captains agreed that Leslie J. Thompson should come alongside and that its officers and crew should assist Oceanic Grandeur to correct its list and trim, for that purpose taking off part of the cargo. The extent of the service to be rendered and the precise methods which would have to be adopted were, as yet, largely undetermined ; the captains believed that some sort of agreement had been made between their respective owners which contemplated Leslie J. Thompson taking a cargo from Oceanic Grandeur and, knowing that each of the owners was anxious that the operation should begin without delay, they were content to proceed with whatever steps proved, on investigation, to be called for, leaving in abeyance all question of salvage reward, Captain Gar being content to do so because he knew that his owners had made some appropriate arrangement with Ampol. Nothing was said by Captain Fisher as to the foregoing of a claim for salvage reward nor did Captain Gar stipulate for such a concession as a condition of permitting Leslie J. Thompson to come alongside. (at p339)

74. Was there, then, such an absence of consent to the rendering of salvage services, or such a waiver of a right to salvage reward, as to defeat the plaintiffs' claims ? I think not. Services were rendered over a period of days to Oceanic Grandeur with the full knowledge and approval of her master ; in the absence of any representation that these services were given gratis by the officers and crew of Leslie J. Thompson, so that some estoppel might be said to arise (a contention neither advanced in argument nor open on my findings as to the facts), that approval cannot be treated as limited to the acts performed so as not to extend to their characterization as salvage services. Consent will no doubt be lacking when acts are done in disobedience to a master's orders, but the relevant consent is consent to the acts performed and not to their legal characterization and consequences. It is for the Court to determine whether the acts constitute salvage services ; I have decided that they were of that character and so long as the doing of the acts was assented to by the master of the salved vessel the requirement of consent is satisfied. Accordingly, even if, as I have assumed for present purposes, consent is a prerequisite to salvage reward, I find that there existed the necessary element of consent in the present case. (at p339)

75. That the conversation between the two captains involved some waiver by Captain Fisher of his and his crew's rights to salvage reward appears to me not to be sustainable. Any such waiver would have to be clearly established on the evidence - The Pride of Canada(1863) Br &L 208 (167 ER 338); Nicholson v. Leith Salvage and Towage Co. Ltd.(1923) Sc LT 229; Squires v. The Ionian Leader(1951) 100 Fed Supp 829, at p 835. Here, on my findings as to that conversation, there is nothing amounting to such a waiver and I accordingly reject the submission based on this ground. (at p340)

76. I accordingly find that the plaintiffs are entitled to salvage reward, and I turn to the question of the quantum of that reward. (at p340)

77. The principles governing the amount of any salvage reward are well established, the factors to be taken into account being discussed quite elaborately in Kennedy on Civil Salvage, 4th ed. (1958) and in a number of the decided cases including three modern Australian decisions, The Tudor(1968) 1 Lloyd's Rep 500, a decision of Taylor J. in this Court, The Korowa v. The Kooraka (1949) SASR 45, a decision of Abbott J., and Societe Maritime Caledonienne v. The Cythera(1965) NSW 146, to which I have already referred. (at p340)

78. In the present case I must give effect to three special circumstances. First, no claim is made on behalf of the salving vessel but only on behalf of its master and crew, and it was suggested to me that the proper course would be to determine what I would have awarded had the shipowner also been a plaintiff and then to determine a proportion thereof, say one quarter, payable to the master and crew, which latter sum would be the subject of my award. On consideration, I have decided not to adopt such a course, although it might well be appropriate in other circumstances. In this case, Ampol, the owner of the salving vessel, is not only not a plaintiff but was the charterer of the salved vessel, was intimately associated with the owner of the salved cargo, and in fact ultimately came to an arrangement with the owners of the salved vessel which, had it joined as a plaintiff in this action, might at the very least have greatly reduced any award in its favour - Kennedy, 4th ed. (1958), p. 225. To attempt, in these circumstances, to arrive at a total award of salvage for ship and crew as a step in assessing the salvage reward to which the plaintiffs are entitled is only calculated to make my present task the harder. I think it better, instead, to assess an appropriate salvage reward payable to the plaintiffs, doing so by disregarding all those factors, such as risk to the very valuable salving vessel and use of its valuable time, which would go to increase very substantially the total reward were Ampol a plaintiff. This was the course adopted in somewhat similar circumstances in The "National Defender" (1970) 1 Lloyd's Rep 40, at p 47 . (at p341)

79. Secondly, no claim is made by the plaintiffs against the cargo owners for salvage reward and for that reason I am to give judgment only for such an amount as I find to be appropriate for salvage services to the vessel and freight, ignoring what salvage services, if any, were rendered to the cargo - Kennedy, 4th ed. (1958) p. 273 and cases there cited. (at p341)

80. Thirdly, the plaintiffs claim that the second visit made by Leslie J. Thompson to Oceanic Grandeur forms part of the salvage services and should be the subject of salvage reward. I have not so far in these reasons referred to that second operation because I do not regard it as, in any relevant way, a salvage operation. I have accordingly restricted myself to the first operation commencing on 4th March 1970. The evidence discloses no necessary element of danger existing in the case of the second operation, nor were the services then undertaken by the master and crew of Leslie J. Thompson to any real extent different from services they might have been called upon to perform in the ordinary course of their service with Ampol. This, while not going to the question of voluntariness, does strongly suggest that the second lightening operation was no more than a simple operation of transfer of a liquid cargo by conventional means from one ship, no longer in a state of danger, to another and, accordingly, not a salvage service. Accordingly, the reward to be assessed will be confined to the first operation. (at p341)

81. I should also refer to the fact that Ampol, in recognition of the plaintiffs' services, paid to them substantial ex gratia payments soon after their successful salving of the cargo of Oceanic Grandeur. These amounts, ranging from $1,500 paid to Captain Fisher to two weeks' wages paid to junior members of the crew, were not, of course, payments made by or on behalf of the defendant and I have had no regard to them in considering the salvage reward which is appropriate. (at p341)

82. During the course of Leslie J. Thompson's transhipment operation, the possibility of the services of her first and second officers being made available to Oceanic Grandeur on a temporary basis was mooted and these two officers stipulated as an appropriate salary for such work, the sum of $100 per day. Although this cannot throw much light upon what reward should be assessed, it does indicate the value placed by these two plaintiffs upon their services at a time after the initial salvage work had been undertaken. (at p341)

83. The facts affecting the salved vessel and relevant to quantum of salvage reward are the danger to it and its crew and its value. There was an element of danger to the crew of Oceanic Grandeur and to the vessel itself due to the possibility of fire should seas cause further oil spillage ; there was also a distinct risk of serious structural damage to the vessel which, had it eventuated, might, of course, also have endangered its crew. With these matters I have already dealt. The value of Oceanic Grandeur at any particular time, subject as it was to a charter of long duration with several years still to run, must largely depend upon the yield to its owners from the present charter and the expected yield from a new charter or charters for the balance of its commercial life once the existing period of charter expires. I did not regard as satisfactory the expert evidence of value tendered on behalf of the plaintiffs, which failed to take into account these factors. I prefer to accept the defendant's answers to interrogatories which reveal a salved value of about $3.7 million. I may say that when such high values are in question, the precise value appears to me to be of little significance and a value higher by even half a million would not, in the present case, have any very material effect upon salvage reward. I find that the value of Oceanic Grandeur, as salved, was about $3.7 million after taking into account the cost of repairs effected at Singapore after the conclusion of salvage operations ; the freight which Oceanic Grandeur would have earned for the entire voyage was about $115,000 and about seven-elevenths of the voyage had been completed when the vessel struck the rock in Torres Straits. (at p342)

84. The relevant facts affecting the salvors in the present case are restricted to the danger involved in the salvage operation, the skill it required of them, the arduous nature of their task and the responsibilities borne by them in performing the services. Because the shipowners are not plaintiffs, the numerous other factors commonly relevant must be disregarded in the present case. (at p342)

85. There was, as I find, a quite measureable degree of danger to the whole of the crew of Leslie J. Thompson in the transhipment operation ; this arose from the nature of Oceanic Grandeur's cargo of Sumatran light crude, when handled in the circumstances as they existed at the time. These circumstances included the need to syphon crude from the Oceanic Grandeur's tanks, instead of being able to use a closed system of transfer ; the necessity of coming alongside the vessel in a strong current and remaining alongside the vessel for a lengthy period, occasionally having to alter Leslie J. Thompson's position alongside, all this with inadequate and improvised fendering material and when friction between the hulls might cause a spark ; the particular difficulty involved in approaching and making fast to the vessel when anchored with a tide running and much listed to port ; the extent to which the crew of Oceanic Grandeur proved to be unco-operative and unreliable in the course of the transhipment operation ; the risk that the necessarily unconventional methods of moving crude might create static electrical charges which could cause a fatal spark. All these were matters investigated in considerable detail in evidence ; I do not propose to summarize this evidence, nor to do more than say that I am satisfied that to a greater or lesser degree each of these circumstances contributed to the danger of the operation caused by the potentially hazardous nature of the cargo. (at p343)

86. The work undertaken by those of the crew of Leslie J. Thompson actually concerned with the transhipment was required to be done in a careful and skilful way if these dangers were to be avoided ; as they, in fact, were. In particular, the skill of the first officer in devising much of the quite complex, imaginative and, to a degree, novel procedures which were employed and of the second officer in carrying out those procedures was considerable, just as was the arduous nature of the work they undertook for very long hours. (at p343)

87. Finally, Captain Fisher and, to a lesser degree, his first officer, carried a very considerable responsibility throughout the entire transhipment operation. (at p343)

88. This is not a case of any acts of particular heroism nor of the rescue of the salved vessel from an immediate danger of great magnitude but rather the performance of a quite difficult and complex task against a background of the possible risk of a sudden disastrous fire should any one of a number of possible mishaps occur, either through ill luck or through the carelessness or inexperience of any one of those engaged in the operation. (at p343)

89. Matters which I treat as indicating a relatively modest award are the extent and measure of the danger facing Oceanic Grandeur and its crew when salvage operations began and the fact that, had Leslie J. Thompson not undertaken the salvage operation, there would have been other possible means whereby Oceanic Grandeur's predicament could have been attended to, albeit not as promptly nor, perhaps, as successfully ; on the other hand, the dangers accepted in carrying out the operation and the skill involved in performing the salvage work in novel and unusual circumstances point to a substantial reward being appropriate. The value of the salved vessel not only ensures a sufficient fund out of which to reward the salvors but also constitutes an independent factor tending, in moderation, towards an enhanced award - The "Queen Elizabeth"(1949) 82 Ll LR 803, at p 821, per Willmer J. and The Tudor (1968) 1 Lloyd's Rep 500, at p 504, per Taylor J. (at p344)

90. Evaluating as best I can the various factors and bearing in mind those aspects of public policy which are established as appropriate to be given effect to in the making of salvage awards, I have concluded that a total sum of $20,000 would, in all the circumstances, be a proper salvage reward. (at p344)

91. These two actions were, by consent, tried together but separate orders should be made in each action. In neither action is there any request on the record for apportionment as between the various plaintiffs nor was any such request made in the course of the hearing. However, I am of the view that Captain Fisher and his first and second officers, the three plaintiffs in the first of the two actions, are individually entitled to very substantially more by way of salvage reward than the fifty-one plaintiffs in the second action ; accordingly, I propose to award to the former three plaintiffs $6,000 and to the latter $14,000 and there will be judgment accordingly in each action. Should there arise any difficulty over apportionment as between plaintiffs in either action an appropriate application may be made for orders apportioning the salvage reward. There will be an order in each action that the defendant pay the plaintiffs' taxed costs. (at p344)

92. On 1st September 1972 Stephen J. heard argument concerning the order for costs which should be made. (at p344)

93. N.A. Skoien, for the plaintiffs. (at p344)

94. B.H. McPherson for the defendant.

Cur. adv. vult. (at p344)

October 20.
STEPHEN J. delivered the following written judgment : -
In each of these two actions there has been judgment for the respective plaintiffs and an appropriate order for costs would normally follow the result. There has, however, been a payment into Court by the defendant in each case. In action no. 2 of 1970, in which I gave judgment for the plaintiffs for $6,000, the defendant had paid into Court $10,853.25 and in action no. 3 of 1970, in which I gave judgment for the plaintiffs for $14,000, the defendant had paid in $9,146.75. When these payments in were disclosed to me I reserved the question of costs and have subsequently heard argument as to the orders for costs which should be made. Payment in was made on 30th May 1972 and it is common ground that the only expenses incurred by the parties after that date were expenses associated with the hearing before me. (at p345)

2. In the case of action no. 3 of 1970, there is no room for doubt ; the plaintiffs have recovered substantially in excess of the amount paid in and should have their taxed costs of the action. (at p345)

3. In action no. 2 of 1970 the amount paid in is substantially greater than the amount of salvage reward received ; however there is ample authority for the view that in salvage actions this will not in all cases necessarily be decisive of the question of costs - The Lotus(1882) 7 PD 199, per Sir Robert Phillimore, citing in turn Dr. Lushington's judgment in The William (1847) 2 W Rob 520 SC 5 N of Cas 108 (166 ER 852); The Creteforest(1920) P 111, at p 115. It is a jurisdiction in which the discretionary nature of orders as to costs has been stressed. Not only has it always been regarded as proper in the public interest to encourage salvors in their voluntary role as preservers of the property of others and to pay some regard to this in orders as to costs but the peculiar difficulty of determining what is an adequate reward for salvage services has also long been recognized. It is true that this latter factor applies equally to salvor and to salved. Moreover I must, of course, as the High Court Rules O. 23 r. 6 (2) requires, have regard to the fact of payment in. However in the present case I think it is not wholly immaterial that, looking at these two actions together, the total amount paid in was no more than equal to the total salvage reward ; in that sense the amount paid in was barely sufficient and certainly not liberal, to use the language of Sir Robert Phillimore in The Lotus (1882) 7 PD, at p 201 (at p345)

4. The plaintiffs in action no. 2 of 1970 will in any event be entitled to their costs up until the date of payment in, but should they bear the defendant's costs thereafter? There are in the present case very real practical obstacles to the adoption of such a course. It presupposes the existence of ascertainable items of legal costs incurred by the defendant in relation to action no. 2 of 1970 after the date of payment in and which may, if necessary, form the subject of a taxation of costs. In fact the course which this litigation took makes it improbable that there do exist such items. The two actions were, by consent, heard together, the same counsel representing both sets of plaintiffs and the defendant also appearing by the same counsel in each action and there were, in my view, no witnesses called and no passages of evidence elicited at the trial which could not be said properly to relate to, and be relevant to the determination of issues in action no. 3 of 1970. It was conceded by counsel for the defendant that any attempted segregation of its costs as between the two actions would not be easy. I would prefer the view that anything other than some wholly arbitrary division would be impossible. (at p346)

5. The order in favour of the plaintiffs in action no. 3 of 1970 will properly extend to the entirety of the nine days occupied by the proceedings, no part of that time being occupied on any issue foreign to that action and there being no part of those nine days of which it can be said "This was time exclusively spent on the issues in action no. 2, to which an order for the costs in that action can operate." (at p346)

6. In all the circumstances it will, I think, do substantial justice if I order that the plaintiffs in action no. 2 of 1970 recover their taxed costs of that action, up until the date of payment in, from the defendant and that there be no order for costs thereafter. An order in this form will prevent the plaintiffs in that action from recovering any counsel's fees or other expenses after the date of payment and which may have been incurred separately from the other set of plaintiffs. It will not, of course, enable the defendant to recover any part of its costs from the plaintiffs in action no. 2 of 1970 ; however I do not regard this as involving injustice to the defendant since every item of such costs, with the possible exception of brief fees to counsel, of which there may have been some arbitrary, separate allocation to each action, appears to me to have been necessarily incurred by the defendant in its defence of action no. 3 of 1970, in which action its payment into Court proved inadequate. (at p346)

7. The plaintiffs in action no. 2 of 1970 thus escape the burden of the defendant's costs but do so only because there are, with the possible exception mentioned above, no costs which the defendant has incurred and which are not attributable to its unsuccessful defence of the other action brought against it. (at p346)

8. I refrain from expressing any limitation in the form of order for costs made in action no. 3 of 1970 lest it operate in much the way complained of by the appellants in The Bosworth (No. 2) (1960) 1 All ER 729 However the fact that it is only the costs of the plaintiffs in action no. 3 of 1970 which can be recovered from the defendant ensures that to the extent to which fees on briefs or the like were incurred separately by each of the two sets of plaintiffs only one set of plaintiffs, those in action no. 3 of 1970, will recover theirs on taxation. (at p346)

9. Agreement has been reached as between the parties concerning the moneys in Court and to give effect to that agreement and at the same time dispose of the matter of costs I order that in action no. 2 of 1970 by consent the moneys in Court with accretions, if any, be paid out to the solicitors for the defendant and that the plaintiffs recover against the defendant their taxed costs up to the date of payment in but not thereafter. In action no. 3 of 1970 I order that by consent the money in Court with accretions, if any, be paid out to the solicitors for the plaintiffs in part satisfaction of the plaintiffs' judgment in that action and I further order that the plaintiffs recover against the defendant their taxed costs of the action. (at p347)

Orders

There will be, in each action, the usual order as to exhibits.