Editorial Committee of the Cambridge Law Journal

Salvage. Admiralty Jurisdiction. Inland WatersAuthor(s): D. E. C. YaleSource: The Cambridge Law Journal, Vol. 46, No. 1 (Mar., 1987), pp. 14-16Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506962 .

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The Cambridge Law Journal The Cambridge Law Journal

Appeal took the same view. Instead of the £1V2 million he sought, therefore, the luckless Solanke had to make do with lp.

This branch of the law should be very clear and simple. Instead, it is an unnecessary labyrinth of complicated reasoning. Plaintiffs are first tantalised by glimpses of victory and then deprived of their loot by words which change meaning and sections which legislate away improper procedures. If they do succeed, then, subject to the

possibility of an indemnity under section 54, it is at the expense of

generally honest and well-meaning magistrates. These recent cases

surely demonstrate that, in the words of Lord Templeman in Re McC., "the time is ripe for the legislature to reconsider the liability of a

magistrate and the rights of a defendant if an unlawful sentence results in imprisonment."

CONOR GEARTY.

SALVAGE-ADMIRALTY JURISDICTION-INLAND WATERS

IF I rescue your punt from peril on the Cam, can I claim a salvage reward for saving your property? Yes, said Sheen J. in The Goring [1986] 2 W.L.R. 219, holding in favour of claimants who had saved a small passenger vessel drifting down the Thames towards Reading Bridge and a downstream weir. The defendants in seeking to set aside the writ had contended that salvage was not payable for services rendered to a ship in distress in non-tidal waters.

A couple of hundred years ago the doctors and proctors in

Admiralty would doubtless have been astonished by such a claim, e.g. for rescuing a drifting or stranded canal-barge, but the old

jurisdictional limit of the high seas has since their time been much modified by statute. In 1840 the Admiralty Court Act, s.6, conferred

salvage jurisdiction over any ship or sea-going vessel "whether such

ship or vessel may have been within the body of a county, or upon the

high seas" when the salvage service was rendered, and this provision has been carried forward into modern jurisdictional legislation via section 565 of the consolidating Merchant Shipping Act of 1894, covering "all claims whatsoever relating to salvage whether the services in respect of which salvage is claimed were performed on the

high seas or within the body of any county, or partly on the high seas and partly within the body of any county. . ." The same Act, s.546, did indeed provide for the salvage of a vessel in distress "at any place on or near the coasts of the United Kingdom or any tidal water within the limits of the United Kingdom," but that restriction to tidal waters

appears to be applicable only to a summary procedure for salvage reward and not applicable to the general jurisdiction of the High Court

Appeal took the same view. Instead of the £1V2 million he sought, therefore, the luckless Solanke had to make do with lp.

This branch of the law should be very clear and simple. Instead, it is an unnecessary labyrinth of complicated reasoning. Plaintiffs are first tantalised by glimpses of victory and then deprived of their loot by words which change meaning and sections which legislate away improper procedures. If they do succeed, then, subject to the

possibility of an indemnity under section 54, it is at the expense of

generally honest and well-meaning magistrates. These recent cases

surely demonstrate that, in the words of Lord Templeman in Re McC., "the time is ripe for the legislature to reconsider the liability of a

magistrate and the rights of a defendant if an unlawful sentence results in imprisonment."

CONOR GEARTY.

SALVAGE-ADMIRALTY JURISDICTION-INLAND WATERS

IF I rescue your punt from peril on the Cam, can I claim a salvage reward for saving your property? Yes, said Sheen J. in The Goring [1986] 2 W.L.R. 219, holding in favour of claimants who had saved a small passenger vessel drifting down the Thames towards Reading Bridge and a downstream weir. The defendants in seeking to set aside the writ had contended that salvage was not payable for services rendered to a ship in distress in non-tidal waters.

A couple of hundred years ago the doctors and proctors in

Admiralty would doubtless have been astonished by such a claim, e.g. for rescuing a drifting or stranded canal-barge, but the old

jurisdictional limit of the high seas has since their time been much modified by statute. In 1840 the Admiralty Court Act, s.6, conferred

salvage jurisdiction over any ship or sea-going vessel "whether such

ship or vessel may have been within the body of a county, or upon the

high seas" when the salvage service was rendered, and this provision has been carried forward into modern jurisdictional legislation via section 565 of the consolidating Merchant Shipping Act of 1894, covering "all claims whatsoever relating to salvage whether the services in respect of which salvage is claimed were performed on the

high seas or within the body of any county, or partly on the high seas and partly within the body of any county. . ." The same Act, s.546, did indeed provide for the salvage of a vessel in distress "at any place on or near the coasts of the United Kingdom or any tidal water within the limits of the United Kingdom," but that restriction to tidal waters

appears to be applicable only to a summary procedure for salvage reward and not applicable to the general jurisdiction of the High Court

[1987] [1987] 14 14

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C.L.J. Case and Comment 15

over claims in the nature of salvage which had been expressly extended

to vessels "within the body of a county." The judge rejected the

defendants' argument for a salt-water limit as having been based on "a

confusion between the geographical limits of jurisdiction of the court

and the cause of action."

The difference between a cause of action and the territorial or

maritime boundaries of a court's competence to act is certainly tenable

in principle, though in practice not at all easy to apply when it comes to

questions of Admiralty jurisdiction. E.g., I cannot commit piracy by

robbery in the middle of Cambridge, and as to civil salvage the judge was not of course claiming a jurisdiction to award land salvage. In

effect the judge is affirming that a right to a salvage reward can arise for

services rendered in navigable waters whether salt or fresh. He does

not say whether those waters need to be a public highway, lake, river

or canal, but it seems improbable that he intended his statement to

extend to private waters. At least that question appears to remain

open. It is well known that other Admiralty jurisdictions have flourished

over fresh water, e.g. in America, starting with the Great Lakes, as

Lake Ontario: The Propeller Genesee Chief (1851) 12 How. (53 U.S.) 443, and then extending to the great rivers of the continent. Sheen J.

thought too that "if a ship or her cargo is in danger in non-tidal waters it

is highly desirable, as a matter of public policy, that other ships should

be encouraged to go to their assistance without hesitation. The fact

that waters are non-tidal may greatly effect the degree of danger from

which a ship is salved. But that goes to the amount of the salvage reward and not to the question whether the services attract any reward."

Salvage when successful attracts reward, and in Admiralty tradition with liberal measure. By way of contrast, the common law

provides but reimbursement within a limited range of unauthorised

services rendered by so-called agents of necessity and in some few

types of necessitous intervention by a stranger. Goff and Jones, The

Law of Restitution, 3rd ed., ch. 15, have argued cogently for a rational

extension of this area of liability in the face of an ingrained common

law prejudice against making people pay for what they have not asked

for, but even they decline advocating land salvage. "To reward the

land salvor would only be justifiable if the courts considered that the

land salvor should be given a similar incentive. In our view there is no

justification for doing so. It is essential to encourage individuals to

salvage property on the high seas. There is not the same urgency to do

so on land" (p. 341). But when Admiralty jurisdiction is exercised

many miles away from the open sea the contrast appears less

compelling, though the judge strove to cope with this aspect of the

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The Cambridge Law Journal The Cambridge Law Journal

matter by his remarks about the quantum of reward. The serious difficulty of having different legal regimes for land and water may be seen in The Winson [1982] A.C. 939, where salvors under contract completed salvage of a cargo of wheat from a ship stranded on a reef.

They then unloaded the cargo at Manila and, pending instructions, stored it there to prevent deterioration. They claimed those post- salvage storage expenses, and were given them by the trial judge, refused them by the Court of Appeal and finally allowed them in the House of Lords. Lord Diplock analysed the case as one of gratuitous bailment, placing a duty of care on the bailees who had therefore "a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so." But he had to admit that he knew of no express authority for this correlative right to reimbursement. And it is significant that the judges in this case refused to regard the salvor-bailees as agents of necessity.

So, having saved your Cam punt, it seems that I have a maritime lien and can claim a reward, and also reimbursement for expenses in looking after it after hauling it ashore. But if you have hauled out your punt for the winter and I later save it from a destructive fire, there is no salvage reward and a good deal of common law authority against any right to reimbursement or remuneration. In the instant case an appeal is pending as to the jurisdictional question as between salt and fresh water.

D. E. C. YALE.

PRODUCT LIABILITY-DIRECTIVE AND BILL

EVER since Grant v. Australian Knitting Mills [1936] A.C. 85, the rule of English law on liability for damage caused by defective products has come close to being a rule of strict liability: proof of the existence of a defect amounts normally to proof of "negligence." Nevertheless, the recommendations of the Law Commission and of the Pearson Commission for the formal introduction of strict liability fell on deaf ears and the Council of Europe's Convention has fared no better. In 1985, however, the Council of the EEC finally adopted a Directive originally proposed to it nine years before, and now Parliament has no choice. Part I of the Consumer Protection Bill, introduced in the House of Lords on 20 November 1986, sets out to implement the Directive.

The basic idea behind both Directive and Bill is simple. On the understanding that a product is "defective" if it is not as safe as could be expected in the circumstances, the producer of a defective product will be strictly liable in respect of death or personal injury and damage

matter by his remarks about the quantum of reward. The serious difficulty of having different legal regimes for land and water may be seen in The Winson [1982] A.C. 939, where salvors under contract completed salvage of a cargo of wheat from a ship stranded on a reef.

They then unloaded the cargo at Manila and, pending instructions, stored it there to prevent deterioration. They claimed those post- salvage storage expenses, and were given them by the trial judge, refused them by the Court of Appeal and finally allowed them in the House of Lords. Lord Diplock analysed the case as one of gratuitous bailment, placing a duty of care on the bailees who had therefore "a correlative right to charge the owner of the goods with the expenses reasonably incurred in doing so." But he had to admit that he knew of no express authority for this correlative right to reimbursement. And it is significant that the judges in this case refused to regard the salvor-bailees as agents of necessity.

So, having saved your Cam punt, it seems that I have a maritime lien and can claim a reward, and also reimbursement for expenses in looking after it after hauling it ashore. But if you have hauled out your punt for the winter and I later save it from a destructive fire, there is no salvage reward and a good deal of common law authority against any right to reimbursement or remuneration. In the instant case an appeal is pending as to the jurisdictional question as between salt and fresh water.

D. E. C. YALE.

PRODUCT LIABILITY-DIRECTIVE AND BILL

EVER since Grant v. Australian Knitting Mills [1936] A.C. 85, the rule of English law on liability for damage caused by defective products has come close to being a rule of strict liability: proof of the existence of a defect amounts normally to proof of "negligence." Nevertheless, the recommendations of the Law Commission and of the Pearson Commission for the formal introduction of strict liability fell on deaf ears and the Council of Europe's Convention has fared no better. In 1985, however, the Council of the EEC finally adopted a Directive originally proposed to it nine years before, and now Parliament has no choice. Part I of the Consumer Protection Bill, introduced in the House of Lords on 20 November 1986, sets out to implement the Directive.

The basic idea behind both Directive and Bill is simple. On the understanding that a product is "defective" if it is not as safe as could be expected in the circumstances, the producer of a defective product will be strictly liable in respect of death or personal injury and damage

16 16 [1987] [1987]

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