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the head-note of the case were as follows:-A steamship was requested by another steamship in distress to stand by her. An agreement was accordingly made between the two masters for a fixed sum that the sound vessel would remain by the damaged one till she was in a safe position to get to port. The sound vessel remained by the damaged one until the latter was about to sink, when she took her crew on board, and the damaged steamer immediately afterwards sank.
Lord Esher M.R. found that 'an action in the nature of a common law suit' could not be supported on the agreement, for it was a proper salvage agreement which fixes the amount of salvage to be paid both for service to life and property, but leaves untouched all the other conditions necessary to support a salvage award. As therefore both on principle and on the construction of the contract itself there must be something besides life saved to make it effectual, I am of opinion, that neither owner nor master are liable in this action because no res has been saved.'
For salvage is a charge, by operation of law attaching to the property itself, while general average expenditure is a debt incurred on behalf of its ownership’. And yet, this fundamental difference--wide stream of separation never to be bridged overfrankly, aggressively even, confessed, it is submitted that resemblance to general average remains, sufficient to justify the classification of salvage as an obligation of the same nature, and so, in the perils clause, to bring it within the purpose of the words— • Jettisons ... and of all other perils 2.'
Here, then, it is, that salvage is expressed to be a peril insured against, and the payment of it a loss, the direct and immediate consequence of that peril 3.
Is this conclusion in accord with authority ?
Park, writing in 1817, says :- The question is how far the insurers are affected by the allowance of salvage. By their own contract they expressly agree to indemnify the insured against such charges 4.' In proof of this he sets out at length the sue and labour clause which is to be found in every policy of Marine insurance. But on the next page (226) he adds : In order to
? In Cornu v. Blackburne (1781) 2 Dougl. 640 at p. 648, Lord Mansfield said :“They seem to have mistaken the nature of salvage. They seem to consider it a debt which may be exacted. But no man can be compelled to pay salvage, unless he chooses to have the property back.'
2 This does not pretend to be an exhaustive comparison. Main characteristics only are touched on. Minor differences exist, but not, it is thought, inconsistencies.
See Trinder, Anderson & Co. v. The Thames & Mersey Ins. Co. (1898) 2 Q. B. 114, C. A. considered L. Q. R. xxi. at p. 158.
* Supra, p. 225.
entitle the insured to recover the expenses of salvage, it is not necessary to state them in the declaration as a special breach of the policy; because an insurance is against all accidents, and salvage is an immediate and necessary consequence of some of those stated in a policy?' For this he cites Cary v. King (1736) Cases temp. Hardwicke, 2nd ed. p. 304.
In 1802 Marshall writes As the insured does not, in express words, undertake to pay salvage, perhaps the insured could not declare for a loss by the payment of salvage. ... Indeed it would be useless to declare so, for he may declare as for that species of loss which occasioned the payment of salvage, and recover the salvage actually paid a'
And again at page 729 of the same volume :- The plaintiff may give in evidence any loss or damage which is an immediate consequence of the accident or injury, alleged in the declaration, ... as where the question was, whether the plaintiff might give in evidence the expense of salvage, though not particularly stated in the declaration. For each of these statements he refers, as did Park, to Cary v. King (supra), where Lord Hardwicke said —'I think they may give it in evidence; for the insurance is against all accidents.'
In his ist edition, 1848, vol. ii, p. 846, Arnould says: - The liability of the underwriter for salvage depends not upon his having engaged to indemnify against it by any express words in the policy, but upon its being made by the law of the land or the general law maritime a direct and immediate consequence of the perils against which he does insure 3.'
And lastly, Lord Blackburn in Aitchison v. Lohre4 (1879), convinced and relentless :
* The policy contains the usual clauso as to suing or labouring. The Queen's Bench Division was of opinion that the salvage or general average expenses described in the case did not come within that clause. The Court of Appeal was of a different opinion 6. . . . And such seems to be the opinion of the editor of the last edition of Arnould on Insurance, who says 6 that salvage" is recoverable from him in virtue of an express clause in the policy inserted for such a case and known as the sue and labour clause " ; but for that position he cites no authority, and though the Court of Appeal
1 Italics wherever they occur are the writer's. 2 Ins., 3rd ed., 1823, edited in the author's lifetime by his son, Charles Marshall, of the Inner Temple, vol. 2, at page 557.
8 In reproducing this statement the editors of the 7th ed. (1901) add a note (2) at p. 974 vol. 2, that if the words in the text are not substantially correct, it is difficult to see exactly on what principle Salvage is recoverable under a Lloyd's Policy, the House of Lords having refused to allow it to be recovered under the suing and labouring clause." 4 App. Cas. at p. 764.
3 Q. B. D. 558 (1878). 6 2 Arn., 5th ed., at p. 778 (David Maclachlan, 1877).
in this case agreed with him, I am unable to do so. With great deference to the Judges of the Court of Appeal, I think that general average and salvage do not come within either the words or the object of the suing and labouring clause, and that there is no authority for saying that they do.... The object [of the clause) was to encourage exertion on the part of the assured; not to provide an additional remedy for ... a loss which was by the maritime law a consequence of the peril. ... Salvage occasioned by a peril has always been recovered without dispute, under an averment that there was a loss by that peril : see Cary v. King (supra), and I have not been able to find any case in which it was recovered under a count for suing and labouring.'
Thus, authority is unanimous in establishing the doctrine that salvage is the direct and immediate consequence of a peril insured against. And against this authority there is no appeal 1.
Differing then possibly, though not certainly, in respect of the reasons on which it is based, the conclusion submitted possesses the qualification-without which it could not with utility be propounded-of according with the judgment of the House of Lords, as it does also with the dicta of Park-his interpretation of the sue and labour clause not included-of Marshall and of Arnould, text-writers of authority as yet unsurpassed. And though none may lightly differ from Park”, a solution, conflicting with the determining decision of the highest tribunal in the land, by reason of its futility, must surely be discredited.
H. BIRCH SHARPE.
" It is true that Lord Blackburn is reported to have used the word consequence' without qualification. None the less it is suggested that Sir Walter Phillimore, arguendo in Nourse v. Liverpool &c. Indemnity Assn. (1896] 2 Q. B. 16, correctly interpreted his Lordship’s words as deciding that Salvage is treated as a loss directly occasioned to the subject matter of insurance by a peril insured against.'
· The Court of Appeal in Lohre v. Aitchison shared his opinion (see supra).
LEGAL CONCEPTIONS FROM A PRACTICAL POINT
LEGAL conception may be in the form of a proposition
or a term in a proposition-either a general statement or a general name. If in the form of a proposition or statement it will usually come under some head of what are known as legal fictions ; if in the form of a term or name, it will not be an ordinary general name, but will denote merely an abstraction—what may be called a metaphysical entity.
Legal conceptions bear a considerable resemblance to those scientific conceptions which are known as hypothetical assumptions. There are, however, two points in which the legal conception differs from the scientific conception. In the first place, the legal conception may at one time have been a correct representation of actual fact. In the next place, the legal conception is not regarded as a merely convenient general statement, name, or explanation of
it is an entity whose existence is not allowed to be gainsaid, but on the contrary is assumed to be immutable, until changed by competent authority, for the purpose of determining those rights with which jurisprudence has to do.
This immutability is the most striking feature of legal conceptions, and the unwillingness of the competent authority to change existing legal conceptions is one of the principal causes both of the aloofness of jurisprudence from the practical business world, and of the difficulty which is experienced by lawyers themselves in reconciling its theoretical and practical sides.
One definite result of this immutability of legal conceptions is that the legal view of rights which, in case of difference of opinion, have to be determined in courts of justice, is not identical with the popular view held by the persons who own or claim the rights. Another somewhat singular result is that the popular view influences even the law-making authorities—the Legislature and (so far as judge-made law' is a correct expression) the Judicature, who might be supposed to be capable of adhering strictly to the technically correct view. This technically correct view is constantly, so far as actual language is concerned, abandoned both in statutes and judgments of the Courts, and the language used only reconcilablegrammatically and logically-with the position that the popular
or incorrect view has become embodied in an immutable legal conception.
This may be illustrated by taking instances of legal conceptions from different fields of law: (1) constitutional law ; (2) property law; (3) law relating to persons ; (4) law relating to procedure.
(1) Constitutional law. The conception of the Sovereign as owning public property, and entering into contracts concerned with public business, is a conception which, as a legal conception at variance with the popular view, is illustrated in a striking manner by the position of the Crown in the self-governing territories of the empire outside the United Kingdom. The popular conception is that each Colonial Government is a sort of independent body, directly recognized in law as an ordinary partnership would be recognized. It seems possible that under the new Australian federal constitution the Crown may yet come to be recognized, in representing different political bodies, as several juristic persons': see Municipal Council of Sydney v. The Commonwealth (1904) 1 C. L. R. at p. 231. But the Privy Council-though the federal constitution was not hero concerned—has quite recently upheld the strict technical view of the identity of the Crown as a person in representing different political bodies: Williams v. Howarth  A. C. 551. In many instances, both in the United Kingdom and in the dominions beyond sea, the anomaly caused by this legal conception has been got rid of by vesting public property and the right of contracting in special bodies of Commissioners; in other instances, special legislation enables the Crown to hold particular kinds of property, and enables litigation to be carried on between the Crown and subjects. But both in English and Colonial statutes the State'is sometimes mentioned as if it were a complete legal entity: see Land Transfer Act, 1897, s. 23 (3), where the State’ is mentioned; the (Australian) Land for Public Purposes Acquisition Act, 1901, where State' and "Commonwealth' are mentioned, and see especially s. 50, where it is enacted that for the purposes of this Act the Commonwealth shall be deemed to be a corporation sole (!) by the name of " The Commonwealth of Australia".'
(2) Property law. The legal conception of an'estate’ in land held of the Crown lies at the root of English land law; the popular conception rather accords with the theory of Roman law, which regarded land as property capable of being owned in as absolute a manner as chattels are, and only differing from chattels in being immovable. Notwithstanding the existence of the estate' as an immutable legal conception in English law, the expression owner' or 'proprietor' of land is commonly used both in judgments of the Courts and in statutes : see Sulton's Hospital case, 10 Co. Rep. I;