Date: 19980220
Docket: T-466-95
ACTION IN REM AND ACTION IN PERSONAM AGAINST
THE VESSEL "TRADE UP" AND ALL THOSE PERSONS
INTERESTED IN HER
BETWEEN:
ROBERT COX carrying on business as
CANADIAN SALVAGE
Plaintiff
- and -
PAUL LENNEARD and THE VESSEL "TRADE UP" and
HER OWNERS AND CHARTERERS
Defendants
REPORT
GILES, A.S.P.:
[1] The hearing before me was a reference to determine the proper amount of a salvage award to compensate "Canadian Salvage" its owners and crew for salvaging the "Trade Up" from a strand on Beckwith Island in Georgian Bay. "Canadian Salvage" became involved at about 8:30 a.m. on a Sunday morning when its owners spoke with the owner of "Trade Up" by mobile telephone while "Canadian Salvage" was at Western Islands. "Canadian Salvage" arrived at the location of the strand at or about 10:00 a.m. (the "Trade Up" was so far aground that it could be regarded as stranded). Only inches of water at the bow and less than two feet at the stern of the "Trade Up" which draws an excess of three feet when afloat.
[2] "Canadian Salvage" spent one hour and a half attempting to pull "Trade Up" into deep water, and was unable to move "Trade Up" at all. Contact was then made with "Bacchus Diver" a much larger vessel, which arrived on the scene between 12:00 and 13:00 o'clock. Attempts were made to tow "Trade Up" off the rocks. Even though enough power was applied to break first the towrope belonging to "Canadian Salvage" and then the rope belonging to "Bacchus Diver" "Trade Up" was not moved. Some time between 3:30 and 5:00 in the afternoon, the "Bacchus Diver" left the scene to disembark divers who where still on board. The divers had been on a diving trip when the "Bacchus Diver" was called to the scene. The "Bacchus Diver" returned to the scene about 10:30 at night and stood by until the following day at 12:00 noon when "Bacchus Diver" effected the refloating of "Trade Up". During that time "Bacchus Diver" provided a hot evening meal to those working on jacking up the "Trade Up" and also provided breakfasts.
[3] A third vessel, "Gray Wolf", was employed as a water taxi to carry labour and material from the mainland to the strand. The owner of this vessel also help in jacking up "Trade Up" and making a skid way.
[4] "Gray Wolf" was generously but within reason paid for its time.
[5] "Bacchus Diver" invoiced $250. an hour from the time it was telephoned on Sunday until it cast off "Trade Up" abeam the Penetang Dock the following day. $7,500. in my view, is an over generous amount as most of the time was, at best, standing by.
[6] Mr. Cox marked up amounts payable or paid for these two vessels when stating his expenses. He also claimed as an expense two water pumps, which were standing by in case "Trade Up" should take on water (which it did not), an amount equal to the cost of purchasing the pumps in the first place. The pumps were part of the equipment carried by "Canadian Salvage".
[7] I mention the foregoing "expenses" to indicate what I felt was a misunderstanding of the purposes of salvage awards. Salvage awards are intended to reward a person who comes to the aid of a vessel in distress, and to reward that person handsomely so as to encourage persons to render aid in the future. Salvage awards are not intended to provide a living for the maritime community of the area in which salvage takes place.
[8] It looks to me as if no attempt was made to negotiate a reasonable rate for the "Bacchus Diver" because the salvagor thought to profit from making up the high rate charged. I note that he expected an salvage award over and above his marked up expenses.
[9] I have attempted to discover his actual and prospective out of pocket expenses and have concluded, they would not exceed $10,000. including payments more in the nature of salvage awards then wages to three of his assistants. I note that the whole operation was conducted in comparatively calm water, and, once the jacking up operation was commenced, conducted without undue difficulty. I note, this fact is probably in no small part due the skills of Mr. Cox and the persons consulted by him. With the expenses as a guideline, I feel that in the circumstances an award of $15,000. would be proper (I note that this is in the neighbourhood of 5% of the value of the vessel, although that is not the reason for coming to the amount. That award should bear interest at the rate allowed by the Ontario Court on the security posted in that Court until the release of that security and interest thereafter at the Federal Court rate.
[10] Costs are allowed on a Column III basis, saved for the costs of an interlocutory motion which have already been fixed, all of which is respectfully recommended.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
February 20, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-466-95
| STYLE OF CAUSE: ROBERT COX carrying business as |
| CANADIAN SALVAGE |
- and -
| PAUL LENNEARD and THE VESSEL "TRADE UP" and HER OWNERS AND CHARTERERS |
| DATE OF HEARING: MARCH 27, 1996 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REPORT BY: GILES, A.S.P. |
| DATED: FEBRUARY 20, 1998 |
APPEARANCES:
| Mr. Gordon Hearn |
For the Plaintiff
Mr. Colin W. Osterberg
For the Defendants
SOLICITORS OF RECORD:
Fernandes Hearn Theall
Barristers and Solicitors
335 Bay Street, Suite 601
Toronto, Ontario
M5H 2R3
For the Plaintiff
Harrison, Elwood
Barristers and Solicitors
450 Talbot Street
London, Ontario
N6A 4K4
For the Defendants
| FEDERAL COURT OF CANADA |
| Date: 19980220 |
| Docket: T-466-95 |
| BETWEEN: |
| ROBERT COX carrying business as |
| CANADIAN SALVAGE |
| Plaintiff |
| - and - |
| PAUL LENNEARD and THE VESSEL "TRADE UP" and HER OWNERS AND CHARTERERS |
| Defendants |
| REPORT |