SALVAGE CLAIMS AGAINST VESSELS OF THE CROWN. (Hansard, 29 April 1904)

LORD MUSKERRY

My Lords, I rise to call attention to the decision in August last of the Judicial Committee of the Privy Council regarding the action by the owners of the British steamer "Furnessia" for salvage for services reudered to the steamer "Scotia," belonging to the Canadian Government, and to ask whether the Canadian Government have now made adequate compensation ex gratia to both owners and crew of the "Furnessia," and, if not, whether, in view of the important public principle involved, His Majesty's Government will make representations to the Government of Canada and urge the desirability of their granting such compensation.

This important matter is one of much simplicity. To put it shortly, it is a case where no question is raised as to the great value of the services rendered by one vessel to another in serious danger. The vessel saved from her perilous situation, the "Scotia," proves, however, to be the property of the Canadian Government. As belonging, therefore, to the Crown, the Judicial Committee of the Privy Council have upheld the decision of the Supreme Court of Newfoundland, that no action for salvage lies with the owners of the steamer "Furnessia." Consequently, if the matter rests where it did, neither owners nor crew of this steamer will receive any recompense for the labour or the grave responsibilities which were undertaken, and which were of such value to the Canadian Government. So far as I am able to judge as a layman, the decision of the Judicial Committee of the Privy Council is a perfectly proper one; but though it is based in strict accordance with the law I am exceedingly glad to find their very decided views that the owners and crew of the "Furnessia" have an unanswerable moral claim for the services they rendered. I will take the liberty of quoting from the decision of the Supreme Court of Newfoundland on this case. They said— We have no doubt that the services rendered by the plaintiff vessel "Furnessia" to the defendant "Scotia," belonging to the Government of Canada, were of a meritorious character and worthy of recompense upon as liberal a scale as could be awarded by this 6 Court in the event of its being subsequently held that the plaintiff is entitled to recover against the defendant ship in this action. The "Scotia" was undoubtedly in an extremely dangerous position at the time the "Furnessia" came up with her. She would have become unmanageable when her fuel for steering purpose was exhausted. She was short of provisions and was on the northern edge of the northern lane of ocean traffic, and must have soon drifted, with the then prevailing winds, further to the North, when her chances of assistance would become therefore less and less daily. The services rendered were timely, and, though not performed with extra hazardous risk to life or property, there was considerable risk and danger—first in getting the towing hawser on board by the officer and crew of the 'Furnessia,' and subsequently in the performance of the work of towing. The Judicial Committee of the Privy Council in giving judgment on the appeal from the decision of the Supreme Court of Newfoundland, said— We cannot forbear from expressing our hearty concurrence with the view of the Supreme Court as to the meritorious nature of the services rendered. If, therefore, the refusal to make compensation is insisted on— properly enough insisted on, in the first instance, as a matter of right against the Crown—and if it comes to be thought that the Government will not feel called upon to pay compensation in any circumstances, not even in such circumstances as the present (in which their Lordships are sure that a foreign Government would feel called upon to pay compensation), what will be the result? The result would be to warn everybody not to assist a ship belonging to His Majesty in however great distress she might be, and thereby incur any risk, because any claim for services would be mot by the technical objection that no one is entitled, as a matter of right, to recover salvage from the Crown. Their Lordships state that they would deeply lament to learn that the Canadian Government, when the circumstances are brought to their attention, refuse to give effect to the hearty recommendation of the Court below, which their Lordships desire emphatically to endorse and to repeat. I feel that your Lordships will heartily concur with the Judicial Committee of the Privy Council that if assistance on the high seas to one of His Majesty's ships does not meet with the reward it deserves, it is calculated to lead to very serious consequences. In view of the strong utterances of the Judicial Committee, I hope to hear that the Canadian Government have now made due compensation, and, if not, I trust that your Lordships will agree with me as to the desirability of His Majesty's Government officially interceding on behalf of the owners and crew of the "Furnessia." In conclusion, I may say that I am drawing 7 the attention of your Lordships to this matter because of the important principle involved in it. Services rendered to ships of the Crown in peril should be properly recognised otherwise they are not likely to be so readily given in future.

§ THE UNDER-SECRETARY OF STATE FOR THE COLONIES (The Duke of MARLBOROUGH)

My Lords, the noble Lord has given a fairly accurate history of the incidents in connection with the steamer "Furnessia" and the steamer "Scotia" and has reminded us that the "Furnessia" did signal service in saving the "Scotia "from wreck. In fact, to quote the words of the Judges of the Supreme Court, the "Scotia" was rescued by the "Furnessia" from a plight than which nothing could be more pitiable. The matter for salvage, as the noble Lord has pointed out, was referred to the Judges of the Supreme Court in Newfoundland, and in giving their decision they pointed out that if it had been a case between one owner of a ship and another owner there would have been no doubt considerable reason for giving salvage. But the Canadian Government intervened and pointed out that the ship belonged to the Crown— in other words, to the Canadian Government—and that it was impossible to proceed against the Crown for the purpose of recovering salvage. As the noble Lord has reminded the House, this question eventually came before the Judicial Committee of the Privy Council, over which the noble and learned Earl on the Woolsack presides. The Judicial Committee, so far as I understand it, had two points to decide. In the first place, they had to decide whether the ship in question belonged to the Crown—that is, to the Canadian Government; and, secondly, whether salvage could be legally enforced against the Crown. The Judicial Committee had no difficulty in deciding that the "Scotia" did undoubtedly belong to the Crown, in spite of certain technical objections which were raised—it was claimed that the ship had not then been handed over to the Canadian Government—and they regarded the Crown's immunity at law as a proposition which admitted of no doubt and was beyond the range of argument.

8 The Judicial Committee of the Privy Council, having established the legality of the Canadian Government's position, drew the attention of that Government to the result which might follow if they refused to pay salvage. The noble Lord dwelt upon that point, and expressed himself as thoroughly agreeing with the views held by the Judicial Committee of the Privy Council. The decision of that Committee was given in July last, and the contents were duly sent to the Canadian Government. I am sorry to inform the noble Lord who has brought forward this question that the Colonial Office has received no communication from the Canadian Government as to their attitude with regard to this question. The Secretary of State has received no communication from the Governor-General, nor do we know the attitude that the Canadian Government, have adopted with regard to the subject. As to the question put by the noble Lord, whether, in view of the important public principle involved, His Majesty's Government will make representations to the Canadian Government and urge the desirability of their granting such compensation, the Secretary of State has authorised me to say that he will cause a communication to be addressed to the Governor-General of Canada, but I fear that that communication will not be couched in exactly the terms which the noble Lord has suggested. The Secretary of State will inquire from the Governor-General whether the Canadian Government have come to any decision upon this matter—it may have been already decided, for all we know—and whether, if they have not decided it, they will give it their serious consideration, and whether they feel disposed to grant any compensation to the owners and crew of the ship in question. Until we receive further information from the Canadian Government I think the noble Lord will agree that it would be premature for us to form any opinion as to the course of action by which the Canadian Government are likely to be guided in the consideration of this matter.