This case involved a Towhire agreement dated 22 June 1998 between the plaintiffs and the defendants, whereby the plaintiffs agreed that their tug Barbara would tow the defendants’ motor tanker Joey and its cargo, which were immobilised in the Arabian Sea, at an agreed rate of USD 5,000 per day to safety in Mombasa, Kenya. The Barbara commenced towing the Joey on 29 June 1998, but there were challenges owing to strong winds and tides. The first defendant terminated the towage agreement on 2 July 1998. Another vessel, Sea Dana, was engaged on 1 July 1998 to continue the towage, but returned to Mumbai due to extreme weather. The parties then carried out negotiations to enable them to reconnect the Barbara to continue the towage. The plaintiffs engaged a second tug, the Steve B, under the towage agreement. When conditions worsened, the plaintiffs sought to involve the second tug, but in vain. There was a flurry of activities and emails on the fateful day. At some point there was active resistance to have the situation declared as a salvage operation. Given the state of the sea and the motor tanker and crew, the plaintiff tugowners decided to convert the towage agreement into a salvage operation.

The lengths of time of alleged salvage differ for the two tugs. The Barbara rendered both salvage and towage. Towage was under agreement. The towage agreement was terminated while the vessels were in peril. The Steve B provided standby and salvage services. It was common ground that the Joey was brought safely to the shores of Kenya. It was subsequently released on security of USD 3,000,000.

The first defendant opposed the claims and raised the following defences:

1. The contractual conditions precedent to the conversion of the towage agreement into salvage operations were never satisfied;
2. There was no justification for the plaintiffs to have converted the towage services into salvage operations;
3. The plaintiffs are not entitled to the salvage services at all.

The second defendant opposed the claim on the following grounds:

1. The numerous breakages in the towlines showed that the alleged towage and salvage was unsuitable;
2. The second defendant was not obligated to pay for any tug that rendered no services;
3. The bad weather did not extend to Mombasa;
4. The plaintiffs provided no crew lists, copies and certificates of competence of the crew of the Joey;
5. The bad weather was foreseeable.

The plaintiffs submitted that the master of the Joey accepted the services of the Steve B on 11 July 1998, and the first defendant impliedly acquiesced and accepted salvage services under cl 15(b) of the towage agreement. The second defendant, though not a party to the agreement, was liable for all salvage services rendered on behalf of both defendants to salvage both the vessel and its cargo. The plaintiffs relied on art 1.a of the Salvage Convention 1989 to define salvage operations as '[a]ny act or activity undertaken to assist a vessel or any other property in danger in navigable waters or any other waters whatsoever'. The plaintiffs further relied on art 12.1 of the Convention which provides that '[s]alvage operations which have had a useful result give right to a reward'. They also relied on cl 73(2) of the towage agreement: 'Payment of a reward fixed according to paragraph 1 shall be made by all of the vessel and other property interests in proportion to their respective salved values.'

Held: The admiralty claims in rem by the plaintiffs against the defendants succeed. The services rendered by the Barbara and the Steve B were salvage services. The appropriate rate of salvage, taking into consideration the towing rates, and the nature of cargo, is USD 7,500 per day.

This suit involved a plethora of preliminary objections. They derailed the suit for decades.

This Court must have jurisdiction to determine a claim. The admiralty jurisdiction is provided under s 4 of the Judicature Act, which provides as follows:

(1) The High Court shall be a court of admiralty, and shall exercise admiralty jurisdiction in all matters arising on the high seas, or in territorial waters, or upon any lake or other navigable inland waters in Kenya.

(2) The admiralty jurisdiction of the High Court shall be exercisable -

(a) over and in respect of the same persons, things and matters; and

(b) in the same manner and to the same extent; and

(c) in accordance with the same procedure, as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations.

(3) In the exercise of its admiralty jurisdiction, the High Court may exercise all the powers which it possesses for the purpose of its other civil jurisdiction.

(4) An appeal shall lie from any judgment, order or decision of the High Court in the exercise of its admiralty jurisdiction within the same time and in the same manner as an appeal from a decree of the High Court under Part VII of the Civil Procedure Act (Cap. 21).

There are three issues to decide here: a) Whether there was salvage and/or towage; b) What rate of towage/salvage is applicable?; c) The extent of liability in respect of the Barbara and the Steve B.

Clause 26 of the towage agreement provided as follows:

In the event that the 'Joey' drifts into Somali Territorial Waters (12 miles) or should the actual physical conditions of the 'Joey' in the opinion of the Tug-Owner change or alter from that of being immobilized but otherwise safely adrift or safely anchored, to that of one of real peril or danger, then the Tug Owner shall have the option, and if necessary after the inspection of the 'Joey' to, (a) Continue their services as provided under this Agreement; or (b) Render all services including services already provided under the terms and conditions of Lloyds Standard Form of Salvage Agreement 'No Cure No Pay' 1995. Should the Tug-Owner decide to exercise this option, then such option and services provided shall not be refused, denied or frustrated by the Owners of the 'Joey', her master or crew, and any services provided thereafter by the Tug/s shall be deemed to have been provided under Lloyd’s Open Form 1995.

Turning to the merits of the claim, jurisdiction for admiralty disputes is set out in s 20 of the Senior Courts Act 1981 (UK), which provides for various heads which fall under admiralty. In the current circumstances, the claims are anchored on ss 20(2)(j) and (k) of the Senior Courts Act. To that extent, this Court is satisfied that these are proper admiralty claims and it has jurisdiction ratione materiae over the Joey.

Article 2 of the Salvage Convention states that '[t]his Convention shall apply whenever judicial or arbitral proceedings relating to matters dealt with in this Convention are brought in a State Party'. The Convention provides an incentive to undertake salvage operations in respect of vessels and other property in danger. The salvage contract can be nullified if the payment is excessively large or too small for the services rendered. A salvage operation which have a useful result gives rise to a right to a reward. That reward is fixed under art 13 of the Convention. The reward must be proportional to the vessel and property interests. Under art 17, '[n]o payment is due under the provisions of this Convention unless the services rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose.' Article 23 of the Convention provides that salvage claims are time-barred if the action is not commenced within two years.

There is no question that salvage operations were carried out here. The Salvage Convention applies to this case. By dint of s 4 of the Judicature Act, the Court is entitled to consider the claims for towage and salvage by the Barbara and for salvage including standby for the Steve B.

The second defendant maintained that it was not privy to the towage agreement. It stated that the salvage claims were time-barred. However, the claims were filed within a year of the incident. The fresh claims were basically amendments. This has already been decided by the Court of Appeal: see Owners and Master of the Motor Vessel 'Joey' v Owners and Masters of the Motor Tugs 'Barbara' and 'Steve B' [2007] eKLR. As to weather, the plaintiffs had a solemn duty to prove their case. They adduced evidence on the perils that were facing the Joey in the sea drifting towards the Arabian sea. The evidence met the threshold of proof on a balance of probability. The ship and cargo belonged to the defendants. They are in possession of the ship and its data. They cannot pace the burden to produce that data on any other person.