Huddart Parker Ltd v Ship Mill Hill [1950] HCA 43

High Court of Australia Dixon J. Huddart Parker Ltd v Ship Mill Hill [1950] HCA 43

ORDER Order accordingly.

Cur. adv. vult.

Dixon J. delivered the following written judgment:—

Nov. 8 Dixon J

These are two suits in the Admiralty jurisdiction of the Court. The endorsement upon the writ of summons in each case claims compensation for salvage services rendered by the plaintiffs to the defendant ship Mill Hill and her cargo. The services are said to have been rendered by the steam tug Foremost and the plaintiffs in the first suit are her owners and in the second suit her master and crew. It appears from affidavits that Mill Hill had loaded a cargo of pig iron at Whyalla and was westward bound across the Great Australian Bight when, on 19th August 1950, she got into difficulties. She encountered bad weather and her cargo shifted. She was at the eastern end of the Bight south or south-west of Cape Radstock. About 5 p.m. on 19th August, a Saturday, she wirelessed for urgent assistance. Eventually she anchored approximately four miles off Cape Radstock. There a west-bound tramp steamer Culross went to assist her. She stood by from about 2 a.m. until dawn on Sunday, 20th August, and then took off the master and crew from Mill Hill. In the meantime the agents in Adelaide of Mill Hill had been informed of her wireless message or messages asking for assistance. In the course of Saturday evening they arranged with the agents of the plaintiffs, Huddart Parker Ltd., that their tug Foremost should be sent early next morning to the assistance of Mill Hill. It was orally agreed that the form of agreement commonly used by the plaintiffs, Huddart Parker Ltd., should be signed. Subsequently such a form of agreement was signed and dated as of 19th August 1950. The applications of which I have now to dispose depend upon provisions of this agreement, but, before dealing with its terms, it is better to complete the statement of the events. The tug Foremost left Port Adelaide about 4 a.m. on Sunday, 20th August, and sighted Culross about one o'clock on the morning of 21st August or a little before that hour. After an exchange of signals about the possibility of transferring the master and crew of Mill Hill from Culross to the tug, Culross proceeded to Adelaide with the master and crew, and the tug, under instructions obtained by wireless, continued her course to the abandoned ship Mill Hill, which she reached about 5.15 p.m. on Monday, 21st August 1950. A heavy S.W. swell is said to have been running which, with a moderate S.E. wind, made the boarding of the heavily listed ship a matter of difficulty or hazard. It was found necessary to cut Mill Hill's anchor chain adrift and to do this took some hours. Not long before midnight, however, she was freed and a towing wire was passed aboard and made fast. The tug then began a tow towards Sceale's Bay, which is northerly from Cape Radstock. Another tug arrived about 8.30 a.m. on Tuesday, 22nd August, and, after some difficulties which it is unnecessary to recount, Mill Hill was brought into Port Lincoln in Spencer Gulf on the morning of 25th August, where she was safely moored. On 7th September 1950 Huddart Parker Ltd. issued a writ in rem out of the Principal Registry against Mill Hill and her cargo and obtained a warrant for her arrest, which was duly executed. An appearance was entered in the Principal Registry for the ship and her cargo on 25th September 1950 and four days later, without taking any further step in the suit, the defendants applied by summons for an order that all proceedings in the suit be stayed pursuant to s. 5 of the Arbitration Act 1928 Vict.. On 12th September 1950 the plaintiffs the master and crew of the tug Foremost issued a writ in rem out of the Principal Registry against the ship Mill Hill and her cargo, but a warrant for her arrest was not sought in that suit. The defendants appeared in the same Registry and made a similar application by summons for a stay. Bail was given in the first suit and the ship and her cargo were released. The basis of these applications consists in a provision in the form of agreement signed by the agents of the tug-owners and the agents of the ship Mill Hill. The defendants say that the provision amounts to a submission to arbitration which covers the subject matter of the suits. The agreement itself is designed to give the tug a salvage reward if the ship is brought to port, or her safety is otherwise secured, by or with the assistance of the tug, but in the contrary event to give the tug a remuneration by way of hire calculated at so much an hour. The agreement provides when the period of service, in that event, shall commence and end, what addition there shall be to the hire rate, if the crew are necessarily paid increased rates, what charge shall be made for the use of the tug's hawser, and what shall be the minimum charge for the services of the tug. The agreement is expressed to be between the plaintiffs, Huddart Parker Ltd., who are described as "the company," and the agents "on behalf of the owners of the ship Mill Hill and as agents for the said ship and her cargo and freight." The leading provision is to the effect that the company's tug Foremost was thereby engaged to proceed from Port Adelaide and to endeavour to salve or assist the ship Mill Hill described as being then in a position approximately four miles off Cape Radstock, South Australia. Then follows a provision that if the ship should be brought to port or her safety otherwise secured by or with the assistance of the tug, the services of the tug should be remunerated on a salvage basis and in ascertaining the amount of such remuneration no regard should be paid to certain clauses which ensue dealing with the remuneration of the tug in the contrary event. After incorporating the terms of the company's usual towage contract so as to give the company the benefit of the exemptions from liability the towage contract contains, the agreement ends with the three clauses upon which these applications depend. They are as follows:—"7. If the parties cannot agree upon the amount of salvage remuneration, it shall be submitted to the Admiralty Court in London for decision under the Short Cause Rules or to an Arbitrator in London to be agreed by the parties. 8. For the purposes of the Arbitration the Masters of the ship and the tug shall sign an Agreed Statement of Facts and in so far as they cannot agree, their log book entries and reports shall be submitted to the Arbitrator. The London representatives of the Company and of the ship and/or their respective Legal Advisers may express their views in writing direct to the Arbitrator including their views as to the value of the ship, her cargo and freight. 9. Until satisfactory security has been given, the Company's right of lien over the ship, her cargo and freight for the services rendered, and its right to commence legal proceedings to enforce such lien shall not be affected by this agreement".