BETWEEN:

THE OWNERS, MASTER AND CREW OF THE TUG "HAMTUN"

- and -

THE OWNERS OF THE SHIP "ST. JOHN"

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JUDGMENT

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On the morning of the 5th April, 1993, the vessel, the "ST. JOHN" was at a lay up berth in Southampton water. By coincidence, she was scheduled to depart from Southampton that afternoon, on a voyage to the Far East, where she was to be scrapped. In very broad terms, what then happened can be shortly summarised. In high winds, the stern mooring wire of the "ST. JOHN" parted. At about 07.00, the tug, the "HAMTUN", from the Red Funnel group, arrived and rendered services to the "ST. JOHN", essentially by making fast on her starboard quarter and thereafter pulling her stern towards (in very general terms) deeper water. At about 09.15, the "ST. JOHN", following assistance from the "HAMTUN" and others, had weighed her anchors and was in a position to commence her voyage from Southampton to the scrap yard, in the event some hours earlier than planned.

Against this background, the principal issues which arise are:

By a fax on the 5th April, 1993, the same day as what may neutrally be called the incident, the Plaintiffs confirmed to the Defendants' agents that assistance had been rendered to the "ST. JOHN". By fax dated 16th April, 1993, the Plaintiffs indicated to the Defendants' agents that a salvage claim would be advanced. The Writ in this Action was ultimately issued on the 4th April, 1995, the final day of the limitation period.

It may be noted that salvage is only claimed in respect of certain services rendered by the "HAMTUN" on the 5th April; salvage is not claimed in respect of an escort service provided by the "HAMTUN" later in the morning but still at the commencement of the "ST. JOHN's" voyage from Southampton. Further, salvage is not claimed at all in respect of services rendered to the "ST. JOHN" by two other Red Funnel tugs, the "VECTA" and the "GATCOMBE". Still further, two pilots who assisted in the course of the incident have not made any claim for salvage. The tug services not claimed as salvage have all been remunerated on tariff terms.

In due course, I shall have some observations to make as to the witnesses and the evidence. For the moment, it is convenient simply to identify and list the witnesses who gave oral evidence together with the principal items of documentary evidence. It will at once be apparent that although, on any view, the sums at stake are not vast, the factual ground has been very thoroughly traversed; in this Judgment, I cannot do otherwise but address the various matters which were canvassed at the trial.

The Plaintiffs called six witnesses, as follows:

By way of principal documentary material, the Plaintiffs adduced:

The Defendants called one witness, Captain Young-Jai Lee ("Captain Lee"). He may be described as a marine superintendent; he happened to be on board at the time of the incident because he was there to supervise getting the ship ready for sailing. His statement was taken on the 20th July, 1993 and was signed on the 20th February, 1996.

In addition, the Defendants had available:

The Defendants did not have available notes made by Captain Lee at the time (which had been thrown away) or any bell book or logs, all of which had, apparently, been left on the "ST. JOHN" when she was scrapped and have been lost.

Before proceeding further, it is right to record that I am grateful to both Mr. Kay QC, who appeared for the Plaintiffs and Mr. Brenton QC, who appeared for the Defendants, for their most helpful written and oral submissions.

I turn to introduce the facts. It is convenient to do so by reference to the familiar headings employed in Lloyd's Open Form ("LOF") salvage arbitrations, albeit with appropriate adaptation, recognising throughout that salvage is very much disputed. I can at the same time dispose of some of the questions on which there was dispute, thus clearing the ground for consideration thereafter of the principal issues.

As already noted, the incident took place in Southampton Water, on the 5th April, 1993. It is common ground that the "ST. JOHN" had been lying on an approximately South Easterly heading to two bow anchors. Her stern had been made fast to a mooring buoy; as to the manner of making fast astern and although there was some challenge to this, I accept the Defendants' evidence from both Captain An and Captain Lee that until the day before the incident, it had been by way of a mooring chain and some ropes. On the 4th April, to facilitate letting go, the mooring chain and ropes were replaced by a single slip wire.

With regard to the position of the vessel in Southampton Water prior to the stern wire parting, there is general agreement if, understandably, less than complete precision. The "ST. JOHN" may be described as lying between the Greenland and After Barn buoys, which are shown on British Admiralty Chart No. 1905. The Greenland buoy was forward and to starboard of the vessel; the After Barn buoy was astern and to port of her. The mooring buoy marked on chart 1905 between the Greenland and After Barn buoys is the mooring buoy to which the vessel was made fast astern. The position of the vessel thus described corresponds to those depicted on the Southampton Hydrographic Charts, H2274F and H2274G, for May/June 1992.

For ease of reference, I annexe to this Judgment: (i) a copy of the relevant part of Admiralty Chart 1905; (ii) a copy of Hydrographic Chart H2274F, including an "arc diagram" produced by Mr. Kay; (iii) a copy of Hydrographic Chart H2274G, including a drawing of the position of the "ST. JOHN" at about the time of the arrival of the "HAMTUN", produced by Captain Lee.

The "ST. JOHN", an OBO, registered in the port of Limassol, Cyprus, was built in 1972 in Japan and was of about 156,109 DWT; her length was 305.04 metres overall and she was 43.34 metres in beam. She had 9 holds or hatches, 8 tanks and was powered by a Sulzer engine of 32,000 bhp.

As already foreshadowed, the "ST. JOHN" was in ballast at the time. On the basis of some fairly limited evidence from the Defendants, I accept that the vessel's draft aft was in the order of 7.3 metres.

The value of the "ST. JOHN" is agreed as £3,341,176.50. It is further not in dispute that the currency of any salvage award is to be sterling.

The "HAMTUN" is a tug, 29 metres in length, 9 metres in beam, 250 GRT, 75 NRT, powered by 2 Stork Werkspoor engines developing 1222 bhp each 2,444 total), through 2 schottel propeller units. She is equipped with a towing winch as well as a towing hook. She has a static bollard pull of 34 tons.

As the defendants suggest, it is fair to describe the "HAMTUN" as a harbour tug.

The approximate value of the "HAMTUN" in April 1993 was £811,564.

Reference has already been made to the parting of the "ST. JOHN's" stern slip wire. After this parting, in circumstances which will require more detailed examination later, it may neutrally be said that the vessel's heading altered to starboard - to become more Southerly - and her stern swung or moved to port. This swing brought the vessel's stern (again neutrally) closer to the navigational beacons lying to the East. These beacons are shown on charts 1905 and H2274F and G; they can clearly be seen in the photographs taken of the incident by Mr. Findlay (albeit at the later time of shortly after 09.00). On the basis of the photographs and notwithstanding a contrary suggestion in the evidence from Mr. Rees, I accept that the beacons were of metal construction on wooden pilings. I should add that, as Chart 1905 makes plain, these beacons serve as leading lights for the approach into Southampton. Likewise, this swing necessarily placed the vessel closer to the five metre contour of the (broadly) Easterly bank and the shallow water to be found there, as again appears from the charts.

There can be no sensible doubt that the prevailing wind conditions constituted, at the least, an important feature of the incident. There was some debate as to how the evidence as to precise wind conditions should be interpreted but to my mind the overall picture is fairly clear and the ambit of any disagreement relatively insignificant. I find, in accordance with the statement of Captain An that about 03.30, there was a wind of gale force (force 8 on the Beaufort Scale) with gusts of up to 50-60 knots. Captain An says that it was a Westerly gale. By about 07.00, I find in accordance with the evidence of Mr. Ashley that the wind was gale force, South South Westerly force 8; by 08.00, again drawing on Mr. Ashley's evidence, it was SSW force 7, a near gale; thereafter, on all the evidence the wind began to moderate. It will be appreciated that the windage was very considerable, with the "ST. JOHN" in ballast and her accommodation aft.

Next, the tide must be considered. There is no dispute that High Water ("HW") Southampton was at 10.25 BST with a height of about 4.4 metres. Accordingly, the tide over the period 06.00-08.00 was flooding and there is again no dispute that the height of the tide at about 07.00 was 2.2 metres above chart datum. The next Low Water ("LW") was at 16.18, BST with a height of about 0.4 metres, the tidal range being therefore of the order of 4 metres. Given the double High Water found in these waters, it may be noted that the direction of the tide would be predicted to turn from flood to ebb at about 09.55 (i.e. before HW). I think there can be little doubt, given the position of the vessel, that the set of the tide was (broadly) North Westerly to North North Westerly when flooding and South Easterly when ebbing.

What remains is the strength of the tidal current, as to which there was some dispute. Mr. Kay QC argued for a rate of about 0.1 knots, at about 07.00; Mr. Brenton QC differed, and contended for a rate of about 0.5 knots. Taking the matter as shortly as I can, I broadly preferred Mr. Brenton's argument on this point. In my view and I do not think I can be more precise, the rate was a little less than 0.5 knot. My reasons are these:

It was, accordingly, in conditions of a SSW gale and with the tide flooding at a rate of a little less than 0.5 knot and setting NW - NNW that the "HAMTUN", having proceeded from the Empress Docks, Southampton, came up to the "ST. JOHN", at (as I shall explain later) about 07.00. As already described, the "HAMTUN" made fast on the starboard quarter of the "ST. JOHN" and pulled her stern in the direction of deeper water and away from the beacons and the bank. Shortly after 07.00, the two pilots (Mr. Rees and Mr. Fulton) boarded the "ST. JOHN". As it seems to me, the choice facing all concerned with the "ST. JOHN" at this stage was either to re-moor or to proceed to sea on her voyage, some hours earlier than planned. In these circumstances, the decision was taken to proceed to sea. For completeness and to put it out of the way, I do not think that the decision to proceed to sea assists one way or the other on the issues I have to resolve. At all events, in order to proceed to sea, more tug assistance was required and, of course, the "ST. JOHN's" anchors needed to be weighed.

At about 07.15, the "VECTA" arrived and began pushing on the port bow. At about 07.44, the pilot (probably Mr. Rees) informed the tugs that the vessel's main engine would be used and, in short, after (in Mr. Fulton's words) some "stuttering", from about 07.47 the engine was available even though its performance was "variable". At this time, with the "HAMTUN" pulling, the "VECTA" pushing and the vessel's main engine in use, efforts were commenced to weigh the anchors. This turned out not to be a straightforward exercise, not least it would appear, because of steam leaks on deck affecting the performance of the anchor windlass. By 09.05 when the anchors finally, were nearly hove in and with very little cable remaining out, the "ST. JOHN" was requested by the pilot to ease her towing power so that with the "VECTA" pushing on the port bow the last of the anchor chain could be recovered. At 09.10 however, it was observed that the "ST. JOHN" was falling back towards the beacons and the shallows. Once again, the "HAMTUN" pulled with full power so as to keep the stern of the "ST. JOHN" clear of the beacons and the bank.

At about 09.15, the tug, the "GATCOMBE" arrived. At about this time, the "HAMTUN", although it continued to be made fast, ceased towing and moved round aft of the "ST. JOHN". It is convenient to complete the narrative of events. Shortly after 09.30, the "VECTA" was dismissed. By about 09.55, the "GATCOMBE" had made fast forward and the "HAMTUN" let go aft. The "HAMTUN" continued to escort the flotilla as far as the West Brambles buoy which was reached at about 10.15. Very shortly thereafter the "HAMTUN" was dismissed and she returned to the Empress docks at about 11.00. The "GATCOMBE" herself continued to tow the "ST. JOHN" until the Prince Consort buoy was reached at about 10.30; she then let go and departed.

As already indicated, this topic lies at the heart of Issue (I). Here I shall do no more than introduce in outline form the arguments of the parties.

For the Plaintiffs, Mr. Kay QC submitted that, having parted her stern wire, the "ST. JOHN" could be expected to swing until she was lying head to wind. If she did so, there was a danger that she would damage or destroy the beacons or get held up by them. The "ST. JOHN" therefore was at risk of a liability to third party claims and of doing some damage to herself. Further or alternatively, she was at risk of grounding on the bank. She might end up lying across the bank (i.e. the 5 metre contour line). There was a risk of immobilisation and of becoming more difficult to salve. If she ended up lying across the bank on the next ebb tide, she would be heavily out of draft aft and unsupported in deeper water forward. In these circumstances, there was a risk of straining damage. A risk of serious damage could not be excluded. Further, while the bottom in the area was largely mud, there was the risk of some shingle or shale in the area and, accordingly, the risk of the vessel lying on a hard to moderately hard bottom and sustaining bottom damage. The arrival of the "HAMTUN" and the towing services rendered by her, had arrested the swing of the "ST. JOHN" and therefore saved her from these dangers.

For the Defendants, Mr. Brenton QC disputed this scenario route and branch. Concentrating on the timing of the stern wire parting, he argued that the swing (if swing it was) of the "ST. JOHN" had stopped by the time of the arrival of the "HAMTUN". The vessel had reached an equilibrium position in the prevailing wind and tide conditions; in essence, the effect of the tidal current was to prevent the vessel from continuing to swing until lying head to wind. In this position she was safe and at no risk of any further swinging until the turn of the tide. However, the tide would not turn (as we have seen) until about 09.55; by then, given the height of the tide there was no grounding risk. Further, if it appeared that the vessel was or might be too close to the beacons, she could by the use of her engine and by heaving in on her anchors employ self-help to increase the distance from the beacons. Still further, the bottom in the area was (in Mr. Brenton's words) mud, mud and more mud; given the nature of the bottom and the fact that the vessel was simply proceeding on a voyage to the scrap yard, grounding posed no realistic risk. The suggested risk of straining damage was purely speculative. In any event, assistance from pilots and tugs would be available on non-salvage terms. If wrong on everything else, then Mr. Brenton submitted that the dangers were of a very low order.

In reply, Mr. Kay QC submitted, maintaining his primary case, that the swing of the vessel may have been slowed by the tide but had not been stopped by it. If, contrary to his primary case, the swing of the vessel had stopped, that was in any event no more than a temporary respite. Danger would again loom at the turn of the tide and on the next ebb tide. Attempts at self-help ran the risk of placing the vessel in an even worse position. As to alternative assistance on non-salvage terms, even if available, it might affect the degree of danger but was irrelevant to the existence of danger in the salvage context.

I hope that this fairly, if briefly, summarises the principal contentions of the parties on Issue (I). Additionally, Mr. Kay raised an argument on engaged services and Mr. Brenton an argument on there being an agreement or estoppel precluding the Plaintiffs from claiming salvage. I shall deal with these arguments in due course but it is unnecessary to say more of them at this stage.

There was, initially at least, some suggestion by the Plaintiffs that the services for which salvage was claimed continued until 09.55, when (as described earlier) the "HAMTUN" let go aft. To my mind it emerged clearly from the Plaintiffs' own witnesses (Mr. Ashley and Mr. Auld) that the right time to treat as the conclusion of the salvage services, if salvage services they were, was 09.15 - when the "HAMTUN" ceased towing although remaining connected to the "ST. JOHN". Thereafter, the Plaintiffs themselves viewed the services as escort services for which they have already been remunerated (as mentioned earlier) on tariff terms. It follows that I am concerned with an overall time period of some two and a quarter hours, commencing for reasons which I shall explain in due course at about 07.00 and concluding at 09.15.

As already remarked, the dispute here turns on whether there was a "danger" to the "ST. JOHN", as that term is used in the salvage context. It is common ground that the relevant test is that set out in Kennedy's Law of Salvage, 5th ed. ("Kennedy"), at para. 303:

There was some debate about two related points, with which it is right to deal now. First, the question arose as to the relevance, if any, of the views of those on board the vessel as to the existence of danger and the need for salvage services. In my judgment, the test is essentially objective. The subjective views even of experienced personnel on board the vessel will not be decisive; neither their subjective apprehension that there is a salvage danger nor their subjective rejection of the existence of a salvage danger precludes the Court or tribunal from coming to a different view. Conversely, the views of experienced personnel on board the vessel will be relevant, insofar as they shed light on the objective question posed by the test as to the attitude which would be adopted by a "reasonably prudent and skilful person in charge of the venture". To my mind and without suggesting that it furnishes an exhaustive statement, the correct flavour is captured by Kennedy in the continuation of the passage (from para. 303) already cited:

For completeness, it seems to me that the observations in Brice, Maritime Law of Salvage, 2nd ed. ("Brice"), esp. at paras. 1-123 - 1-124, point to the same conclusion.

Secondly, there was debate as to the relevance of alternative assistance. Mr. Brenton was minded to urge (i) that, generally, the availability of alternative assistance was not irrelevant to a consideration of whether the Kennedy test for the existence of a salvage danger was satisfied and (ii) in any event, that this was so when the alternative assistance was available on commercial and not salvage terms. I can deal with these submissions more briefly than might otherwise have been the case, because, to my mind, they fail at the factual threshold. As will be apparent, there is no evidence of alternative assistance available within a very short time, effectively, by 07.00 on the 5th April, 1993. On that footing, even were Mr. Brenton's first submission well-founded in law, it could have no bearing on this case. Furthermore, so far as his rather narrower second submission goes, the involvement of the pilots and the tugs "VECTA" and "GATCOMBE" followed, albeit closely, the successful commencement of the "HAMTUN's" services; in those circumstances, the fact that neither the pilots nor these other tugs claimed salvage (even if relevant), does not persuade me to draw any inference that alternative assistance would have been available on commercial rather than salvage terms. So far as other sources of assistance are concerned, the most likely alternative was another tug company (see below) and there is no basis for inferring that assistance would have been forthcoming other than on salvage terms. It follows that, on factual grounds the possibility of alternative assistance in the present case has no bearing on the question of whether or not a salvage danger existed.

Against this background, I do no more than note that Mr. Brenton's submissions in this regard would have invited re-examination of the traditional assumption or understanding as to alternative assistance: namely, that it impacts on the degree rather than the existence of danger. Where alternative assistance is available to the casualty, there is a reduced likelihood of the risk materialising and hence a lower order of danger. By contrast, whether a salvage danger exists at all has usually been assessed without regard to the possibility of alternative assistance: see, Brice, at paras. 1-148 - 1-150, together with the authorities there cited, including in particular the observations of Willmer, J. (as he then was) in The Queen Elizabeth 82 Ll.L.Rep. 803, at 820, where he posed this question:

"What would have happened if the vessel had had no salvage assistance at all?"

That said, it is right to record that Willmer, J. himself (ibid) recognised the artificiality of this approach; further, that the formulations in both Kennedy, at para. 304 and The Troilus [1950] P 92 (CA), per Bucknill, LJ, at pp. 107-108, may leave more room for argument than might have been supposed, at least in an extreme case, that the availability of alternative assistance may be relevant in considering the existence of a salvage danger. In the event, it is unnecessary for me to explore this question further and likewise unnecessary for me to express any view as to whether the terms on which alternative assistance would be available should have any bearing on the existence of a salvage danger.

I turn now to apply the Kennedy test, as analysed, to the facts.

I have earlier indicated my acceptance of the Defendants' evidence that on the 5th April, 1993, the "ST. JOHN's" stern mooring was comprised of a single slip wire. As appears from the parties' principal arguments as to danger, already outlined, the timing of the parting of this stern wire assumed significance.

I have reached the conclusion that the wire parted between about 06.30 and 06.37. This conclusion accords with the VTS Report, prepared by Mr. Lewis, to which I have already referred. That report records the first contact with the "ST. JOHN" as being at 06.37. the wire must therefore have parted by then; in passing, I am unable to accept Mr. Kay's suggestion that it might have been a gradual process. In his evidence, Mr. Lewis fairly accepted that it might be appropriate to apply a five minute margin to some of the times given in his report.

In his oral evidence, Captain Lee described the sequence of events immediately following the parting of the stern mooring wire. I accept that evidence. The sequence was as follows: on hearing the crack of the line parting, he checked the situation and then called the VTS, within a matter of minutes, before doing anything else.

It would be wrong to seek artificial precision as to times in events such as these. Doing the best I can, making allowance for the margin contemplated by Mr. Lewis and factoring in the sequence of events thus described by Captain Lee, I conclude that it is probable and proceed on the basis that the stern wire parted not before approximately 06.30.

This finding, relatively straightforward and not adverse to the Defendants in itself, does have serious ramifications for the credibility of the Defendants' evidence. The written reports and the witness statements of Captain An and Captain Lee record the stern wire parting at 06.10. Leaving minor discrepancies to one side, they then speak of a first VHF call to the VTS, at about 06.15 hours. Captain An's statement and the written reports suggest that in that call, Captain Lee explained that in the circumstances of the wire parting the vessel now wished to sail; she required assistance for that purpose but not salvage assistance. Captain Lee's written statement likewise recounts this alleged conversation; it makes no reference in that regard to assistance not being on salvage terms but asserts that matters were left for the VTS to check with the pilots and Captain Lee needing to check with the Defendants or their agents that it was in order for the "ST. JOHN" to proceed to sea at once; he would revert to the VTS after discussing the position with his management.

I am afraid that I cannot accept any of this. To the extent that it concerned him, Mr. Lewis denied it. Moreover, Captain Lee's oral evidence simply did not support it. In his oral evidence, he recounted the sequence to which I have already referred; the line parted, he checked it and then called the VTS within minutes, seeking assistance. It was not a preliminary call, nor were matters left on a tentative basis while he contacted his management. Having given the matter the more careful consideration, I reject the Defendants' evidence of there being any first call at about 06.15, together with the Defendants' evidence of the line parting at about 06.10. It follows that I reject too, Mr. Brenton's suggestion that Mr. Lewis may have failed to note some earlier, preliminary, tentative call, a suggestion which in any event cannot be reconciled with Captain Lee's oral evidence. I do not think that Mr. Lewis failed to note an earlier call because I do not think there was any such call. In putting the matter this way, I am not overlooking that Captain Lee in his oral evidence adhered to an account of an 06.15 conversation with the VTS, during which he explained that he did not want salvage assistance. This account of an 06.15 conversation was not foreshadowed in his statement, which spoke of such a call at 06.55. I do not regard this account as saving or improving the version of events suggested in the Defendants' written evidence. I return later to consider the suggested 06.55 conversation.

Mr. Brenton urged that none of these conclusions ought to bear on the credibility of the Defendants' evidence. The written statements and reports could not properly be regarded as entirely self-serving, containing as they undoubtedly do material which does not advance the Defendants' case. The timing question could be explained by discrepancies between the "ST. JOHN's" time and the VTS time, perhaps of up to four minutes, together with the inevitable difficulty of putting precise times to events in a situation such as that prevailing, on any view, on the morning in question. Additionally, I should make allowance for English not being Captain Lee's first language and for likely language difficulties on that morning.

I readily accept that there is a degree of force in these submissions; the Defendants' written evidence is not entirely self-serving; there are difficulties with timings; I of course make every allowance for language difficulties. Having taken all these matters into account, when I have regard to the sequence of events suggested in the Defendants' written evidence, its contrast with Captain Lee's oral evidence and its irreconcilability with the VTS evidence, I regret that I cannot accept Mr. Brenton's suggested explanations. If then, the Defendants' written account of events prior to 06.30 - 06.37 cannot be right and cannot be explained in accordance with Mr. Brenton's submissions, I have to pose the question as to why this is so. Answering that question, I cannot avoid the conclusion that the Defendants in their written evidence have presented an inaccurate and untruthful picture of events prior to 06.30 - 06.37.

Necessarily, this is disquieting and damaging to the credibility of the Defendants' case but I think it is important to maintain perspective: (i) by distinguishing between the discredited evidence and other evidence; the former plainly cannot assist the Defendants at all; the latter is not without more to be disregarded but may require very close scrutiny if "infected" by the discredited evidence; (ii) by reminding myself that untruthful evidence from the Defendants does not necessarily and without more constitute evidence which makes good the salvage dangers for which the Plaintiffs contend; for instance, the untruth may be the misguided product of personal embarrassment. I keep these considerations in mind as I proceed through the remaining evidence.

It must follow from the above that I reject the suggestion, contained in Captain An's statement and the written reports, of an 06.15 call from the "ST. JOHN" to the VTS, explaining that salvage assistance was not required. That account formed an integral part of the discredited evidence. Again, Captain Lee's oral evidence stands in stark contrast to the picture presented by the Defendants' written evidence. He said and I accept that he was very concerned initially; so too was Captain An; they feared that the "ST. JOHN" might contact the beacons. It was this very concern which led to the call, as I have found, at about 06.37 to the VTS.

Pausing here, it is right to mention a further matter in the present context. I accept the evidence both from Mr. Ashley (the master of the "HAMTUN") and Mr. Lewis (of the VTS), that the request for assistance from the "ST. JOHN" carried a sense of urgency. Quite apart from Captain Lee's evidence, the proof of this pudding lies in the eating; the "HAMTUN" proceeded at once to the "ST. JOHN" instead of remaining available for a pre-existing job allocation to assist with another vessel. Similarly, the speed with which the two pilots were dispatched, including Mr. Fulton, who had just come off watch, speaks for itself. Having arrived at this conclusion, it is unnecessary to take time to explore the suggestion in the Plaintiff's evidence that the "ST. JOHN" was "screaming" for assistance. In fairness to the credibility of the Plaintiffs' witnesses who spoke to this (Messrs. Ashley, Rees and Lewis) and were strongly challenged and without intending or implying any criticism of him, having heard Captain Lee give evidence, I accept that his manner of speaking could readily have conveyed such an impression. Further than that I need not go. A conclusion either way as to "screaming" adds nothing of substance to my conclusion as to the sense of urgency pervading the request for assistance.

The subjective views of Captain Lee (whether or not augmented by any concern on the part of Captain An), including the urgency in the request for assistance, are not of course decisive. As suggested earlier, the test for the existence of danger is essentially objective. So far, however, as these views were reasonably held, they are relevant to the existence of danger, again for the reasons I have already suggested. A moment's reflection as to the conditions prevailing on the morning in question and a glance at the chart, suffice to persuade me that these initial concerns were reasonably held. I accordingly take them into account.

It is now time to pick up the evidence as to the "HAMTUN" proceeding to the "ST. JOHN" and the situation of the "ST. JOHN" at the time the "HAMTUN" arrived and thereafter made fast. The basic facts as to timings appear from the VTS Report; it is there recorded that the "HAMTUN" departed from her berth to the "ST. JOHN" at 06.39 and reported having made fast at 07.03. Insofar as any of the Plaintiffs' timings diverge from these facts, I do not accept them. The timings from the VTS Report allow the Plaintiffs a few minutes from the 06.37 conversation to get underway, a journey time of about 20 minutes, an arrival time at or off the "ST. JOHN" of about 07.00 and about 3 minutes to make fast. If this is a case of salvage, then 07.00 should be taken as the time at which services commenced.

Before proceeding further, it is appropriate to consider the skilful and sustained attack made by Mr. Brenton on the credibility of the Plaintiffs' witnesses. Given the absence of Mr. Findlay's manuscript notes, some curious timings in the Plaintiffs' contemporaneous incident report (particularly as to the voyage time from the "HAMTUN's" berth to the "ST. JOHN"), the fact that the Plaintiffs' witness statements were made (without exception) years after the event and the somewhat emotive tone which crept into the Plaintiffs' evidence, Mr. Brenton's stance was quite understandable. The force of this attack was, however, necessarily blunted by the lack of credibility attaching to much of the Defendants' own evidence (as I have already held). Moreover, in some respects (notably, the skirmish as to "screaming") I am not at all persuaded that Mr. Brenton's charges were made good. Still further, while Mr. Brenton may well have been right to criticise the disparagement contained in some of the Plaintiff's evidence as to the state of readiness of the "ST. JOHN" (a topic to which I shall return in due course), such criticism was of limited effect, given that my principal concern lay with the state of the "ST. JOHN" rather than with the absence of any blameworthiness giving rise to that state. Overall, Mr. Brenton has succeeded in persuading me that I need to approach descriptive material from the Plaintiffs' witnesses including the pilots, with care and circumspection; to put it no higher, difficulties of recollection require no less. However, as it seems to me, Mr. Brenton has not succeeded in shaking the essentials of the Plaintiffs' witnesses' evidence, namely that those in the Plaintiffs' "camp", again including the pilots, viewed the situation of the "ST. JOHN" with genuine concern and as one requiring urgent assistance. These concerns were acute up until and including the making fast of the "HAMTUN"; they remained live up until 09.15. Subjective views of would-be salvors obviously are not decisive as to the question of danger; to the extent, however, that these are bona fide views of those with relevant experience and local knowledge, I am entitled to take them into account and I do so.

I return to a review of the evidence of the position and suggested predicament of the "ST. JOHN" at about 07.00 and shortly thereafter. The focus of attention must be (i) the position of the "ST. JOHN" and (ii) whether she had stopped swinging, because she had reached a position of equilibrium in the prevailing forces of wind and tide.

As will become apparent, the review discloses a conflict of factual evidence. Mr. Brenton submitted that to resolve this conflict, I should have regard to (i) the apparent reliability of the factual evidence (ii) the inherent probabilities of the case and (iii) any credible opinion evidence. I think this suggested approach is helpful and I am content to adopt it. In the event, I am of the view that each of these avenues of inquiry points to the same conclusion.

I begin with the Plaintiffs' evidence. Pilots Rees and Fulton boarded the "ST. JOHN" after the "HAMTUN" was made fast and had already commenced pulling. Their evidence can therefore only be of assistance, if at all, in respect of the opinions they were prepared to express as to how the "ST. JOHN" would swing and what might stop her swing, in the absence of the "HAMTUN". For the moment therefore, I postpone consideration of their evidence. That leaves the evidence of Mr. Ashley and Mr. Findlay.

Mr. Ashley was firmly of the view that the "ST. JOHN" had not stopped swinging on his arrival. He produced two diagrams, "KA 1" and "KA 2" to illustrate his evidence. According to "KA 1", on the arrival of the "HAMTUN", the stern of the "ST. JOHN" was distant some 9 metres from the mooring buoy. By 07.03, when the "HAMTUN" made fast, according to "KA 2", the stern of the "ST. JOHN" had swung so as to be distant some three tug lengths - about 90 metres - from the mooring buoy. Thereafter, it took some 17 minutes of pulling, until about 07.20, to bring the stern back to starboard and (broadly) level with the mooring buoy.

I am afraid that I am unable to accept "KA 1" as an accurate picture of where the "ST. JOHN" was or could have been on the arrival of the "HAMTUN". The suggestion that the stern of the "ST. JOHN" was then only some 9 metres distant from the mooring buoy, cannot, in my view, be reconciled with (i) there being only a single stern wire (ii) that stern wire having parted by 06.37. Mr. Ashley must be mistaken in this regard.

The Defendants charged Mr. Ashley (and Mr. Findlay) with embellishing the truth. I accept, as I have already noted, that there are inaccuracies in Mr. Ashley's evidence: the suggested voyage time and "KA 1" being the most prominent examples. I confess to being considerably troubled in these respects but having seen and heard Mr. Ashley giving evidence, I am of the view that his evidence of the continued swinging of the "ST. JOHN" was genuinely based on his assessment of the situation; he has, indeed, consistently held to this view throughout as is borne out by the (nearly) contemporaneous incident report. Whether he is correct or not, is another matter. In that regard, certainly, "KA 1" is of no assistance. "KA 2" cannot be determinative without "KA 1". What is, however, striking about the description afforded by "KA 2" is the fact that Mr. Ashley and Captain Lee (in his drawing on Hydrographic Chart H2274G), although by different routes, ultimately put the "ST. JOHN" in a very similar position - once allowance is made for the difficulties of assessing distances without measurement and putting differences of heading to one side.

Mr. Findlay's evidence can be taken much more shortly. He was convinced that the "ST. JOHN" was still swinging at the time of the "HAMTUN's" arrival. The reason which he gave, however, leads me largely to discount his evidence. Mr. Findlay said that from a distance of over three quarters of a mile, by observing the vessel and the shore lights, he was able to tell that the vessel was swinging. I am bound to say that I could not regard this evidence as credible; I derive no help from it.

I turn to the Defendants' evidence and start with the witness statement from Captain An. As Mr. Brenton rightly urged, this must be read as a whole. Doing so, without retracing the earlier discussion as to events prior to 06.37, the following features emerge: (i) Captain An placed the beacons as some 60 metres distant, abeam to port, from the anchorage position of the "ST. JOHN". (ii) After the parting of the stern wire, the stern of the "ST. JOHN" began swinging to port, bringing the vessel closer to the beacons. (iii) The "ST. JOHN" came to a stop some 15 - 20 metres from the beacons, before the arrival of the "HAMTUN". (iv) At that point, the "ST. JOHN" was not aground. (v) In this position, Captain An remained concerned ".. that we might collide with the .. [beacons] ..". On any view, this account contains a number of matters calling for remark. First, if regard is had to Hydrographic Chart H2274G, which is accepted as broadly correct by both parties, the distance from the "ST. JOHN" to the beacons when in her original anchorage position, is of the order of 250 metres rather than 60 metres. Secondly, if the "ST. JOHN" had come as close as 15 - 20 metres to the beacons, it is likely that she would have been touching the bottom or very close to it, given the evidence as to depths, the 5 metre contour line and the height of the tide prior to 07.00. That said, neither Captain An nor for that matter any other relevant witness, suggested that the "ST. JOHN" was aground. In these circumstances, Mr. Brenton may well be right in submitting that I should interpret Captain An's evidence as to distances as meaning that the swing of the vessel after the parting of the stern mooring line, covered some two third to three quarters of the available distance between her and the beacons.

Thirdly, though with caution given the difficulties noted with regard to Captain An's evidence as a whole, I do not think it unfair to underline that even though on his account the "ST. JOHN" had stopped, he remained concerned that she might contact the beacons.

I come next to Captain Lee's evidence. In Captain Lee's oral evidence, he maintained the account given in his statement of a conversation with the VTS at 06.55, during which he stated that tug assistance was required for sailing not salvage. This account too was disputed by Mr. Lewis; the VTS Report records an 06.46 conversation, not an 06.55 conversation; however, even assuming that both Mr. Lewis and Captain Lee are referring tot he same conversation, albeit with different records or recollections as to its timing, according to Mr. Lewis, the word "salvage" was not used and indeed he had never heard it used throughout his time at VTS. Faced with this conflict of evidence between Captain Lee and Mr. Lewis who could not be accused of partisanship and was a most impressive witness, Mr. Brenton was disposed to accept that whatever Captain Lee had said, it was not received or understood by Mr. Lewis. Such a solution would preserve the credibility of Captain Lee in respect of this conversation by explaining the failure of communication in terms of communication difficulties.

I regret that my difficulty goes further; I am unable to accept Captain Lee's version of the conversation. I make this, serious, finding for the following cumulative reasons:

(i) The conflict of evidence with Mr. Lewis; by itself, as Mr. Brenton urges that may be explained on other grounds; I agree, but it does not stand alone. (ii) The fact that this account may be viewed as a continuation of the discredited pre-06.37 evidence and therefore requires close scrutiny; and (iii) Captain Lee's striking inability to answer a sequence of questions put to him in cross-examination in this connection.

Mr. Kay asked Captain Lee about a fax he received from the Defendants' agents timed at 17.07 on the 5th April. That document referred to the Plaintiffs "registering a claim for salvage". According to Captain Lee, the reference to the word "salvage" came as a "big surprise"; this was the first time he had thought about salvage on that day. To Mr. Kay's next question, "If that was the first time how could you have a conversation regarding no salvage?" (I interpose) some 10 hours earlier, Captain Lee had no answer. I do not think that communication problems begin to explain Captain Lee's difficulty here. If his answers in respect of the 17.07 document were untrue, they serve to undermine his account of events earlier in the day; but if the answers as to the 17.07 document were true, there simply is no coherent explanation for his having an earlier conversation about salvage. I am driven therefore to reject Captain Lee's account of the 06.55 conversation; I think that a conversation took place, in accordance with the VTS Report at about 06.46 but I do not think that it included a statement from Captain Lee that he did not require salvage assistance. It follows that Captain Lee's account of this conversation not only provides no support for his other evidence but is again, unfortunately, damaging with regard to the credibility of the Defendants.

With these considerations in mind, I come to other aspects of Captain Lee's oral evidence. After the parting of the stern wire, Captain Lee described the movement of the "ST. JOHN" as being more of a parallel, bodily movement sideways than a pronounced swing with consequential alteration in heading. He very helpfully illustrated the position and heading of the "ST. JOHN" at the time of the arrival of the "HAMTUN" on a version of Hydrographic Chart H2274G. From this drawing, the distance between the vessel and the beacons, about abeam to port, is of the order of 120 metres, while the distance from the port quarter of the vessel to the 5 metre contour line is very approximately some 50 metres. As I understood Captain Lee's oral evidence, he said in cross-examination that the "ST JOHN" was still swinging when the "HAMTUN" came up but had almost come to a stop; she was moving "little little". In re-examination, when asked what he meant by "little little" he said (according to my note) "more slow than the first time" but followed that answer by saying that he was then not worried because the ship had stopped. I postpone but only briefly, a consideration of these answers of Captain Lee.

I must now pull the threads together and state my conclusions on the factual evidence.

As to the position of the "ST. JOHN" at and shortly after 07.00, I do not think Captain An can have been right in placing her some 15 - 20 metres from the beacons, for the reasons canvassed when dealing with his witness statement. I accept instead that the "ST. JOHN" was broadly in the position as described by both Captain Lee (illustrated on Hydrographic Chart H2274G) and Mr. Ashley (diagram "KA 2"). The upshot is that the "ST. JOHN" remained afloat but considerably closer to the beacons and the 5 metre contour line than in her original anchorage position. I do not return to discuss the position of the "ST. JOHN"; the inherent probabilities and available opinion evidence do not add anything to the factual evidence in that connection.

I come on to the question of whether the "ST. JOHN" had stopped swinging and reached a position of equilibrium. For reasons which need not be repeated, the factual evidence from both parties contains troubling features and suffers from difficulties. When specific regard is had to the evidence going directly to the present question, I am left essentially with the Plaintiffs' (principally, Mr. Ashley's) convictions and impressions on one side (the "ST. JOHN" continued to swing) and Captain Lee's evidence on the other. I am therefore required to analyse quite closely what Captain Lee meant in the passage in his evidence, flagged earlier and containing the reference to the "ST. JOHN" moving "little little". To my mind, the true sense of his evidence was that the vessel was continuing to move but more slowly than before. If that is right, then ultimately there is very little between the parties' factual evidence on this important question. For that to be right, I must discount (i) Captain Lee's further answer in re-examination that he was not worried because the ship had stopped moving (though he remained concerned). I am afraid that I do think the true sense of Captain Lee's evidence to be as I have described it, namely, continuing but slower movement. I decline to accept his further answer as to lack of worry, forming as it does a part of an overall presentation of the Defendants' case which is flawed by reason of the credibility problems to which I have already made reference. As to Captain An, I do not think that it could be right to give weight to his answer on lack of movement in isolation; if, however, I was to take his evidence in the round or as a whole, then to my mind the very different picture which is presented does not advance the Defendants' case at all. On balance, therefore, notwithstanding the Plaintiffs' own shortcomings, the factual evidence standing alone supports the "ST JOHN" continuing to swing and not having reached a position of equilibrium.

The inherent probabilities appear to me strongly to favour the Plaintiffs' case. The Plaintiffs contend that the vessel would swing until she came up, head to wind; by contrast, the Defendants' case involves the "ST. JOHN" effectively swinging head to tide. Given the vessel's windage and the forces of wind and tide, I have a distinct, intuitive, preference for the Plaintiffs' submissions here.

The Defendants of course challenge this view of the inherent probabilities. They say with force that the question of how the "ST. JOHN" would have reacted raises complex issues, particularly when regard is had to the role of her anchors. Further and relying on the timing of the stern wire parting (by 06.37 as I have found), the time of the arrival of the "HAMTUN" (07.00) and the fact that all witnesses thought that the "ST. JOHN" remained afloat, the Defendants argue that any swing would have been completed well before the tug's arrival. It follows, so the argument goes, that as the "ST. JOHN" had not by then swung head to wind, the tide had stopped her swing. A position of equilibrium had been reached which would not be altered until the turn of the tide.

I see the force of this argument but I am not persuaded by it. I accept from the Defendants that the matter is complex. I further accept that the tide would have had an impact. It does not however follow from the logic of these submissions that the tide would have stopped the swing of the "ST. JOHN". I regard it as inherently more likely that the tide would have slowed rather than stopped the vessel's swing. This conclusion allows for the force of the tide, any retarding effect of the anchors on the swing and for the predominant impact of the wind. It is likewise consistent with Captain Lee's factual evidence as to the vessel moving "little little" as I have analysed it. It is plainly consistent with the Plaintiffs' factual evidence. I am satisfied that this conclusion properly reflects the inherent probabilities.

I come, lastly, to any credible opinion evidence. Neither party called any expert evidence (understandably in my view) but both parties put questions to, in particular, Mr. Ashley and Pilots Rees and Fulton, calling for opinion answers. For the Defendants, Mr. Brenton placed much store on the answers that the witnesses would have expected the "ST. JOHN" to swing rapidly once the stern wire parted but for the swing to be completed in about 10 minutes or so and therefore well before the "HAMTUN's" arrival. For the Plaintiffs, Mr. Kay relied on the expressions of opinion as to the wind being the overriding influence and urged that the witnesses were not attempting precision when addressing the length of time to be expected for the swing to be complete; the answers in that regard were in any event to be considered in the context where the witnesses were uniformly of the view that the overriding force was the wind rather than the tide and that the "ST. JOHN" was lucky not to have gone aground. I prefer Mr. Kay's argument. I think that Mr. Brenton is seeking to put more weight on the answers as to the likely time to complete the swing than that sole item of evidence will truly bear. The evidence must be considered in the round. I must give proper weight both as to the evidence of the likely time to complete the swing and the evidence as to the wind rather than the tide providing the overriding or predominant force. To my mind, the correct and fair evaluation of that evidence points to the same conclusion as that arrived at earlier: the tide retarded but did not stop the swing of the "ST. JOHN"; she had not reached a position of equilibrium before the arrival of the "HAMTUN".

On the basis of my findings so far, I reach the conclusion that the Plaintiffs have made good their case as to the existence of salvage dangers. If I am right that the "ST. JOHN" had not stopped moving and had not reached a position of equilibrium, prior to the arrival and making fast of the "HAMTUN", then the "ST. JOHN" was plainly exposed to the risks of contacting the beacons and of grounding. Putting it briefly, the risk is graphically illustrated by Mr. Kay's arc diagram, drawn onto Hydrographic Chart H2274F, and regardless of whether a bow arc or an anchor arc is chosen. Looked at another way, on the basis of my conclusions as to the situation of the "ST. JOHN" at 07.00 - 07.03, nothing had occurred to fundamentally alter or alleviate the concerns reasonably held by Captain Lee himself immediately after the stern mooring had parted. I am satisfied that the dangers of contacting the beacons and of grounding are not fanciful at all; they certainly cross the salvage threshold. Having arrived at this conclusion, to avoid duplication, it is convenient to defer elaboration on these dangers until I come to address the salvage reward (Issue (II)). The reasons which I set out there, should however be understood as applying at this stage of the argument as well. I refer to this conclusion as "provisional" because, as it seems to me, I must have regard to the possibility of self-help in order to see whether the matters which arise under that heading should defect me from it.

Although there was some considerable debate about the state of readiness of the "ST. JOHN" and her engines, to my mind, once the context is kept in mind, the matter can be taken fairly shortly.

The "ST. JOHN" had not been anticipating going to sea on the morning of the 5th April. It will be recalled that the intended departure time was later that day, in the afternoon. To the extent therefore that there were critical overtones in the Plaintiffs' evidence, in particular from the pilots, as to the state of readiness of the "ST. JOHN" on the morning of the 5th April, I think they miss their mark.

That said, the facts as to the state of readiness of the "ST. JOHN", are relevant at least thus far: could self-help eliminate what would otherwise be salvage dangers? On the basis of my conclusion that the "ST. JOHN" had not stopped swinging, the argument would have to be that by use of her engines and heaving in on her anchors, the "ST. JOHN" could have avoided the beacons and the bank. Perhaps with more emphasis, essentially the same argument was advanced on the basis of the Defendants' case being correct, that the "ST. JOHN" had reached an equilibrium position, which would not be altered until the turn of the tide; on this hypothesis, it was urged that if at that stage the "ST. JOHN" had come too close to the beacons, then by the use of the "ST. JOHN's" engines and by heaving in on her anchors, she could employ self-help to increase the distance from the beacons. In order to assess these submissions, it is necessary to have regard to the state of readiness of the "ST. JOHN". Two matters require consideration: (i) the state of the engines (ii) the performance of the anchor windlass.

As to the engines, Captain Lee's statement evidence was that they had been "left on 30 minutes notice for stand by". If that means that the engines were available for use on 30 minutes notice, then Captain Lee's evidence (i) accords with the probabilities as to the preparation of the "ST. JOHN" for her intended departure and (ii) ties in with the first attempt made by the pilots to use the engines at about 07.44 and about 30 minutes or a little more after they had boarded the vessel.

I conclude that that is the correct meaning to be given to Captain Lee's statement evidence and that this fairly reflects the state of readiness of the "ST. JOHN's" engines. Insofar as Captain Lee sought in his oral evidence to say or suggest that by his statement he meant that the engines could be used "at any time", I cannot accept that evidence. Likewise, I reject the evidence in the Defendants' Reports of 5th April, 1993 and Captain An's statement evidence that the engines were put on standby at 06.20; such evidence falls within the chapter of the Defendants' evidence going to events prior to 06.37 which I am unable to credit.

Turning to the performance of the engines, I accept Mr. Fulton's evidence, to which I have already referred, namely that after some initial stuttering over the period 07.44 to 07.47, thereafter the engines were available thought their performance was variable.

As already recounted, weighing the anchors proved not to be a straightforward exercise. I cannot escape the conclusion that the difficulty here was in no small measure attributable to problems with steam on the anchor windlass; to the extent that it matters, the likely problem was steam leaks rather than there being no steam on deck. Certainly, Captain Lee in cross-examination did not or could not suggest any other explanation for the problems encountered in weighing the anchors.

Against this background, I have no hesitation in concluding that the possibility of the "ST. JOHN" employing self-help to increase the distance between her and the beacons in case of need in no way suffices to eliminate what would otherwise be a situation of danger. If I am right that the "ST. JOHN" had not stopped swinging prior to the arrival of the "HAMTUN", then the point seems clearcut; the engines may not even have been available before the critical time. In any event, I cannot eliminate the risk of a few important minutes being lost while the engines proved unresponsive or performed variably. Perhaps still more importantly, it seems plain on the evidence that problems with the anchor windlass persisted. In these circumstances, the "ST. JOHN" was exposed to the risk, if she engaged in self-help, of finding herself with too little cable out to hold her position but too little power to extricate herself from her predicament. Self-help might even have made matters worse. Though Mr. Brenton was right to caution against drawing any unwarranted inferences for the purposes of assessing the situation at 07.00 from the events at 09.10 (when with very little cable remaining and the "HAMTUN" having eased her towing power the position of the "ST. JOHN" worsened considerably), I think that these later (09.10) events do illustrate just the sort of risks to which the "ST. JOHN" would have been exposed had she depended on self-help.

I therefore am confirmed in my provisional conclusion as to the existence of salvage dangers on the basis that the "ST. JOHN" had not stopped swinging prior to the arrival of the "HAMTUN". It remains to consider whether salvage dangers are established if I was wrong as to the "ST. JOHN" not having stopped moving.

On this footing, I would in any event have reached the same conclusion as to the existence of a salvage danger. I would have regarded the "ST. JOHN" as having achieved no more than a temporary respite from the danger in which she found herself once the stern wire parted. Taking the matter shortly, it has already been noted that Captain An (on this factual premise) remained concerned that the "ST. JOHN" was at risk of colliding with the beacons. For his part, Captain Lee accepted in cross-examination that at the turn of the tide, when the tidal direction changed to broadly South-Easterly, the "ST. JOHN" would have tended to swing over the bank. If she did so, it seems to me that she would be exposing herself to the same risks of contacting the beacons or grounding. If it is said that she would not have grounded at that time given the available depth of water at high tide, then that submission (i) is not without difficulty given at least some of the soundings on Admiralty Chart 1905 in the vicinity of the beacons (ii) does not eliminate the risk of contacting the beacons and (iii) leaves unanswered the difficulty faced by the "ST. JOHN" of extricating herself before she would ground on the ebb tide. To the extent that such extrication turns on self-help, for the reasons I have given, I do not think that self-help eliminates the risk; it is possible that self-help would have been successful but I cannot begin to say that it probably would have been or, still less, that my confidence in it is such so that I should dismiss the danger as fanciful. Finally, to the extent that it was contended in this context that if the situation was viewed at high water only, it would not have been assessed as one of a salvage danger, I do not in any event think that would be the right test. The question as to salvage danger must be asked and answered at 07.00. As of that time, even had the true view been that the "ST. JOHN" had stopped swinging, in my judgment, the Kennedy test was satisfied.

It may be convenient to summarise my principal conclusions on Issue (I); they are as follows:

9. Alternative cases

Engaged Services: For the Plaintiffs, Mr. Kay submitted that even if I was not satisfied that there was an appreciable danger to the "ST. JOHN", the services were nonetheless "engaged services" or "services at the request" of the "ST. JOHN" and therefore entitled the Plaintiffs to a salvage reward. The obvious difficulty encountered by this submission is that the doctrine of "engaged services" or "services at request" furnishes an exception to the general requirement of contribution to success as a pre-condition for a salvage reward: see, for instance, Brice at para. 1-321. It has not been understood as obviating the need for the existence of danger as the foundation of a salvage claim.

Mr. Kay could therefore only save this argument if he could submit that (i) there was a danger in existence at 06.37 when assistance was requested or at about 06.39 when the "HAMTUN" left her berth, even if no longer by 07.00 and (ii) that 06.37 or 06.39 was the right time to test this argument even if 07.00 was the right time to apply the "Kennedy" test to the claim for salvage generally. I was not attracted to this argument and I am in any event persuaded by Mr. Brenton that (at least generally) for there to be "services at request" both offer and acceptance were required; the time of acceptance was the arrival at the vessel and the commencement of the "HAMTUN's" services; that time was 07.00, not 06.37 or 06.39 and, by 07.00, on this hypothesis, there was no longer a danger.

Accordingly, the argument as to engaged services takes Mr. Kay no further; if he succeeds, as I have held that he should, in his submission that there was a salvage danger at the relevant time, then he does not need it; had his primary case failed, this argument would not have assisted the Plaintiffs.

Agreement or estoppel precluding a claim for salvage: For the Defendants, Mr. Brenton raised an issue as to an agreement or estoppel precluding the Plaintiffs from claiming salvage. This argument turned on the conversation or conversations in which the Defendants alleged that their personnel had explained that they did not wish for salvage assistance. For its success, the argument required (i) that the Defendants' personnel had said this, (ii) that they had been heard to say this by the Plaintiffs and (iii) that the Plaintiffs in proceeding to render assistance had agreed by conduct or represented that they were providing services on ordinary commercial terms.

In the event, given the state of the evidence that neither the Plaintiffs nor the VTS had heard the Defendants' personnel explain that salvage assistance was not required, Mr. Brenton rightly did not press this argument. It was in any event doomed by my conclusions as to what the Defendants' personnel had said. In the circumstances, I need say no more about it beyond remarking that I am not sure that this argument could have taken Mr. Brenton further at all. If he had been right on the (non-) existence of a salvage danger he did not need it. If he was otherwise wrong on that point, then it does not seem to me that it would readily have helped him; I very much doubt that it would lightly be inferred (even if limbs (i) and (ii) of this argument had been made good) that by proceeding to render services in the light of disagreement or protest as to the applicable terms, a claimant was thereby agreeing not to claim salvage or would otherwise be precluded from advancing such a claim.

Lastly under this heading, I do not overlook Mr. Kay's argument, based on s.16 of the Merchant Shipping Act 1970 but I need not express any view on it.

Having taken some time on the question, salvage or not and having concluded that it was salvage, I can now proceed more briskly in considering the appropriate level of salvage remuneration payable to the Plaintiffs. The matter falls conveniently to be dealt with under the familiar headings: (1) Dangers; (2) Services; (3) Status; (4) Quantum.

I begin with the beacons. It seems to me clear, from the Plaintiffs' arc diagram, that there was a very real risk of the "ST. JOHN" contacting the beacons. The beacons were, as already held, of metal construction on wooden pilings. There must again be a very real risk of the "ST. JOHN" either demolishing or doing serious damage to those beacons. If so, she or the Defendants would have been exposed to a third party claim, with attendant costs and possibly even some delay to the vessel. Further, I think that there was some if a small risk of the "ST. JOHN" herself sustaining damage from a collision with the beacons, albeit that she would have had to be distinctly unlucky to sustain serious damage. In these circumstances, I am satisfied that by preventing the risk of a contact between the "ST. JOHN" and the beacons, the Plaintiffs conferred a benefit on the Defendants which even by itself is sufficient to found a salvage claim and is entitled to appropriate recognition; indeed, safeguarding the Defendants from a third party claim is here an enhancing feature of the services, though such enhancement must necessarily be kept within very limited confines: Brice, at paras. 4-10 to 4-14; the difficulties canvassed in Brice (paras. 4-15 and following) in cases where third party claims constitute the sole danger, do not arise here.

I take next the risk of grounding. To my mind there was again a very real risk of the "ST. JOHN" grounding or touching bottom in the vicinity of the beacons. This is plainly so at about 07.00, when with a tidal height of 2.2 metres the vessel would have been well out of draft once over the 5 metre contour line. It is of course true that the tide was flood, but even at high water there are soundings in the vicinity of the beacons which would have exposed the vessel to a risk of grounding or touching bottom; Admiralty Chart 1905 shows soundings of 2.8 and 2.9 metres in the vicinity of the beacons and the tidal height at high water was 4.4 metres. On those figures, the "ST. JOHN" (with a draft aft of 7.3 metres) would certainly have been at risk of touching bottom at high water.

The consequences of a grounding give rise to more complexity. I think Mr. Kay is right to say that there is a risk, which I should not discount, of the vessel having ended up lying across the bank, head (broadly) to wind, so that had she remained there she would have been aground on the next ebb tide. In those circumstances, there was a risk that she would be out of draft aft and unsupported in deeper water forward, with an attendant risk of straining damage. That said, I think it is bordering on the purely speculative to contemplate straining damage actually materialising, still less serious damage.

In this regard, I think that realism dictates proper acknowledgement of the various factors urged by Mr. Brenton:

Summarising the grounding risk as a whole, I do not regard it as in any way fanciful. The consequences are more uncertain. There was a risk of some immobilisation and perhaps of being more difficult to salve, carrying with it, in the circumstances, some if limited risk of financial loss and a very low order risk of some physical damage to the vessel. There was a risk of the "ST. JOHN" finding itself in a nasty predicament, aground across the bank and that risk cannot be excluded. Nonetheless, I think that any risk of serious damage materialising is bordering on the purely speculative.

It follows from this discussion of the various risks involved, that there was a real risk of contact with the beacons and of grounding or touching the bottom; those risks are themselves of a fairly low to moderate order of seriousness, other perhaps than the risk of a third party claim in respect of the beacons. To prevent those risks from materialising, prompt assistance was required by the "ST. JOHN", was furnished by the Plaintiffs and was unlikely to be forthcoming in the time frame in question from any other source. In contrast, in my judgment, risks of a higher degree of magnitude are both progressively more speculative and less likely to materialise, not least given the possibilities as to alternative assistance.

A variety of valid points were made by each party in connection with the services furnished by the Plaintiffs to the "ST. JOHN". I record them here and will take them into account when determining the amount of the award.

Mr. Kay's submissions were succinct. Thought of short duration, the services were promptly rendered, necessary and played an integral part in allowing the "ST. JOHN" to proceed on her voyage without delay.

Mr. Brenton's submissions likewise carried force. These were short, doorstep services, without any or undue risk to the Plaintiffs, their personnel or equipment. They were relatively straightforward and were provided by a harbour tug. The Plaintiffs have claimed no out of pocket expenses and lost nothing commercially through performing the service; the job originally allocated to the "HAMTUN" was undertaken by another of the Plaintiffs' tugs. Success was not achieved by the "HAMTUN" alone; others played a considerable role. Those on the "ST. JOHN" assisted at the outset in making fast the towage connection and later with the use of the vessel's engines; the part played by the pilots, and those on the "VECTA" and the "GATCOMBE" should not be overlooked.

As I have said, all these submissions are of assistance in placing the services in a proper perspective.

In opening, Mr. Kay summarised the status of the Plaintiffs in the following terms, according to my note:

I did not understand Mr. Brenton to dispute this description in substance and in any event I accept it as broadly accurate.

Mr. Brenton underlines that the Plaintiffs do not contend that they are professional salvors and that the evidence does not suggest any investment in salvage as distinct from the Plaintiffs' more general commercial operations. On this footing, he submits that there is no basis for enhancing the award so as to provide encouragement to invest in salvage.

I think those submissions of Mr. Brenton are right as far as they go but I think that there is force too in Mr. Kay's contention; namely, that the fund is sufficiently large to permit an award which will encourage commercial tug operators and their personnel to disrupt routine operations and provide salvage assistance promptly as and when necessary.

I come, finally, to questions going directly to the amount of the salvage reward.

I of course take into account here all my conclusions under the previous headings. Additionally, a number of further points arise which can be dealt with at the outset:

I turn to a separate matter. The parties were understandably concerned that the Court should not inadvertently decide on a level of salvage remuneration out of line with the correct bracket for analogous LOF Awards - always bearing in mind the point already underlined that a LOF award, in respect of a contractual salvage, may require a discount when applied to a claim for common law salvage. To address this concern, the parties helpfully arranged for me to be shown a selection of LOF Awards, to assist in determining quantum in this case.

In this connection, my attention was very properly directed to the decision of the Court of Appeal in Ali Shipping v. Shipyard Trogir [1998] 1 Lloyd's Rep. 643. Having carefully considered the matter, I do not think that the use proposed to be made of the LOF Awards here, contravenes either the letter or the spirit of that decision. The decision in Ali was that there is an obligation of confidentiality in arbitration agreements governed by English Law; that term is to be implied as a matter of law, as an essential corollary of the privacy of arbitration proceedings. Accordingly, any LOF arbitration agreement contains such a term. Prima facie therefore, a LOF award should not be made available to non-parties without the consent of the parties and other than in accordance with the limited exceptions to the principle of confidentiality set out in Ali. On the face of it, the use of LOF Awards here does not come within any of those exceptions. However, I accept Mr. Brenton's analysis, from which Mr. Kay did not dissent, that the implied term of confidentiality in LOF arbitration agreements is qualified by the custom and practice of awards being made available to LOF arbitrators and counsel in other LOF cases, with a view to promoting uniformity and consistency within the LOF system of arbitration. That qualification to the implied term of confidentiality in LOF arbitration agreements is capable of being extended and, in my judgment, should be extended for the same reasons, to cover LOF Awards being made available to a Judge sitting in the Admiralty Court.

When such use is made in Court of LOF Awards it seems to me desirable that it should be on terms of a confidentiality order. Accordingly, the use of the LOF Awards here was covered by an Order which I made, dated 21st January, 1999, in the following terms:

In the event, therefore, I have read and considered the LOF Awards to which I was directed and have found them most helpful.

I have additionally had regard to and derived assistance from some observations of general guidance made by the LOF Appeal Arbitrator, Mr. J.F. Willmer QC, on the approach to be adopted in "small" cases; essentially, Mr. Willmer drew a distinction between, on the one hand, situations where the casualty was in no immediate physical danger so that time allowed the shipowners to look for the best bargain and, on the other, situations where the degree and imminence of danger, including risks run by the salvor, were greater. Intriguingly, the present case comes somewhere between the two, given the imminence of, realistically, relatively low to moderate order dangers.

Pulling the threads together, this was a short case but, to use one of Mr. Willmer QC's phrases, "brevity is not everything". The "ST. JOHN" was saved by the Plaintiffs from finding herself in an awkward situation. To prevent that situation arising, very prompt assistance was required. That assistance could only be provided by the Plaintiffs. Conversely the dangers were of a low to moderate order in particular when a realistic approach is taken to the very remote chance of the more serious risks actually materialising. The Plaintiffs are not professional salvors. I must balance (i) the encouragement to the Plaintiffs and others like them to undertake similar salvage assistance in the future with (ii) the need to ensure that shipowning interests are not deterred from agreeing to take assistance promptly because of legitimate fear as to the cost, should the services turn out to be salvage services. To achieve this balance I must apply the well-known dictum, that the award must not be out of all proportion to the services rendered. With all these considerations in mind and doing the best I can, I arrive at the figure of £25,000 as a global award to all the Plaintiff interests.