| Fiji Islands - Mauitoga v Consort Shipping Line Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
ADMIRALTY JURISDICTION
ADMIRALTY ACTION NO. HBG0003 OF 1994
BETWEEN:
1. CAPTAIN BALE POASE MAUITOGA
2. AMANI SIGANI
3. BALE KILAI
Applicants
AND:
CONSORT SHIPPING LINE LIMITED
Respondent
Ms. V. Narayan for Applicants
Mr.ateef for Respondent
JUDGMENT
By Originating Notice of Motion the Applicants who are Captain (now a farmer), Chief Engineer and Chief Mate respectively of vessel
'Nivanga' (owned by the Respondent) are seeking an order that the salvage reward of $25000 received by Respondent from the owners of the "Catamaran", which was salvaged off Gau by the Captain and his crew members using the 'Nivanga', be apportioned as between the Captain, his Chief Engineer, Chief Mate (the applicants) and other crew members (18 of them) of the
'Nivanga' and the Respondent in such manner as to the Court may seem fit.
The facts are not in dispute and they are briefly as hereunder. On 23 January 1991 the Captain whilst on a voyage from Suva to Moala
Group and Gau saw a partially submerged "Catamaran" close to the Gau Islands. He stopped his vessel "Nivanga" and as stated by him in accordance with the law of the sea, towed the wreck to Qarani, Gau. There he refloated the "Catamaran" and carried out some repairs to it assisted by members of his crew. The Captain then took "Nivanga" back to Suva towing the "Catamaran" with it.
Upon arrival in Suva, Mr. Smith the Fleet Superintendent an employee of the Respondent was informed of the salvage and he was requested
to get the reward of $25,000 from the owners of the "Catamaran". Mr. Smith had agreed with the owner for a reward of $25,000 and which was received by the Respondent.
The Captain claimed the amount that he was entitled to but the Respondent had not paid him anything and hence this application. The
other two applicants have also filed affidavits asking for distribution of the said salvage amount.
In Reply to the Motion, Mr. Smith swore an affidavit stating, inter alia, that the applicants were "full time employees" of the Respondent and they have been paid for the work they did in regard to the salvage operations. He said that no indications
were given by him that they would be paid part of the salvage. He stated that the salvage was done in 1991 and the only reason the
claim is being made now is because the Respondent lawfully terminated the employment of the first two applicants.
The said Mr. Smith by his affidavit sworn 19 August 1994 further denies that there were discussions between him and the captain in
relation to the salvage nor did he negotiate any settlement with the owners of the vessel; it was done by their Managing Director
Mr. Leo Smith. Mr. Smith further says that the Captain owes the Respondent the sum of $2694 being the amount the Respondent paid
for legal fees to defend him when he was charged for assaulting a passenger on their vessel "Spirit of Free Enterprise". He wants this to be taken into account if any order for the salvage is awarded to the Captain. He said that apart from the applicants
there were 18 other crewmen on board the 'Nivanga' when she towed in the "Catamaran".
Both counsel made oral submissions before me.
The learned counsel for the applicants submits that there is no rule as to how the salvage amount should be apportioned. She says
that each case should be considered on its own circumstances. She is asking that the said sum of $25000 be apportioned thus: 50%
which comes to $12750 be paid to the Respondent; 25% to Captain amounting to $6375; and crew (20 in number) 25% i.e. 1/20th each
which amounts to $318.75 each.
Mr. Lateef submits that: 75% should go to the defendant; 25% to Captain and crew with 1/3 to captain and 2/3 to crew. He said that
there was nothing special about the 'salvage' operation apart from the usual towing.
The sole issue for the Court's determination is in what proportion the said sum of $25000 should be apportioned between the owners,
the captain and crew.
In apportioning the share of owner of a salving vessel the Court, whilst it recognises the guidance of certain general principles,
exercises at the same time a wide discretion according to the circumstances of each individual case. (KENNEDY - CIVIL SALVAGE 4th Ed. p. 233).
The owner's share increased as steam superseded sail. In the period between 1831 and 1883, "wherever the principal service consisted in the towage of the disabled ship, the owners were apportioned occasionally three
fourths, but usually about two-thirds". (KENNEDY, supra ibid p. 235). Similarly, on this aspect in THE GIPSY QUEEN (1895) p.176, 177 LORD ESHER M.R. remarked:
"That may be a very good working principle; but there is no such rule. The apportionment must in each case depend upon the particular
circumstances."
In HALSBURY 3rd Ed Vol 35 p.759 it is stated that:
"In cases where the salving vessel is the Chief instrument in effecting the salvage, the share of the owners in a salvage reward
is now generally approximate to three-quarters of the whole award, but there is no rule of practice on the point. The apportionment
depends upon the particular circumstances of each case; and there are many examples of variation in apportionment to owners."
As far as the Captain's share is concerned, as stated in KENNEDY supra ibid p.235-236:
"..... he not only takes share in the actual work, but also has a peculiar burden of responsibility in undertaking and in conducting
the salvage enterprise, and therefore, under ordinary circumstances he is entitled to receive out of the salvage record a special
separate recompense..... The share allotted to him is usually about one-third of what remains after deducting the amount apportioned
to the owners. There is, however, no rule, and the amount of the recompense will vary according to the particular facts of each case."
As for crews' share, the apportionment usually takes the form of a lump sum to be shared by them according to their rating. (KENNEDY supra ibid p.236).
I have set out hereabove the principles involved on the subject of apportionment. It is clear that a certain amount of discretion
is vested in the Court and also the circumstances of each case has to be taken into account.
This was a straightforward simple case of salvage which the captain with the assistance of his crew successfully carried out by refloating
the "Catamaran" and towing it to safety. The reward of $25000 was paid by the owners of "Catamaran" to the owners of salving vessel. Although the applicants and other crew members were paid their usual wages as employees of the Respondent,
according to maritime practice they are entitled to their respective share in the reward. They had all assisted in the salvage and
there is no doubt about that. The fact that they are entitled to a share in the salvage amount cannot be disputed. The learned counsel
for the Respondent had also not disputed their entitlement and the issue was only the proportion which should be paid out of the
said $25000.
Acting on the principles involved and considering the cases on the subject, I agree with Mr. Lateef's submission in regard to the
percentage of apportionment. On apportionment to owners before 1870 one-half was the most given; from 1870 to 1883 it was usually
two-thirds; and since 1883 it has been usually three-quarters.
The second and third applicants have agreed to accept equal amount with the other crew members, so whatever amount I finally apportion
will not depend on their rating.
Before I conclude, as for Smith's claim to be paid the sum of $2694, I have no proper evidence to decide on that issue. It is possible
that this sum is not owed to the Respondent, judging from the contents of Respondent's letter dated May 10, 1993 addressed to the
'Master' (Captain) being Annexure 'A' to SMITH'S affidavit sworn 16 June 1994. According to that letter the Captain was relieved of his duties on 14 May 1993 and the Respondent's
Accountant was asked to finalise all salary due. It was then that one would have expected the Respondent to deduct this sum of $2694
as well. If this sum was owed at that time then there is nothing to indicate what discussion, if any, took place between the parties
in that regard or is it a case of Respondent trying to take advantage of the present claim by the Captain when in fact initially
there was no intention of claiming back from him.
I therefore do not feel justified in deciding on this claim. The proper course would be for the Respondent to make a separate claim
(which liberty I allow) in a proper manner if it so wishes.
Therefore, in the outcome, on the principles of apportionment, I make an order that the said sum of $25000 be apportioned between
the Owners, Captain and Crew in the following proportion: 75% to the owners which amounts to $18750, 25% to the Captain and crew
but out of this 25%, one third to be paid to Captain which amounts to $2083 and the sum of $208.35 to each of the twenty crew members
(which includes the second and third applicants) but the share of the crew who have not made a claim be paid into Court to be held
in trust for them by the Chief Register until they make application for payment out to them.
I therefore order that the sum of $2083 being the Captain's share and the two sums of $208.35 each amounting to $416.70 being the
Chief Engineer's and Chief Mate's share making a total of $2499.70 be paid out by the Respondent to the Applicants' solicitors Messrs.
Q.B. Bale & Associates within 14 days from the date of this order for payment out to the Applicants AND the balance sum of $3750.30 being the share of the 18 crew members who have not yet claimed be paid into Court as ordered hereabove
within 14 days from the date of this Order.
The costs of this application are to be paid by the Respondent to be taxed unless agreed.
D. Pathik
Judge
Suva
18 January, 1995
Hbg0003j.94s
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