The plaintiffs were the master and crew of the North Eastern Railway Co's tug William Gray. The defendants were the owners of the steamship Llandovery Castle, a vessel valued at GBP 550,000. The plaintiffs claimed salvage remuneration for services alleged to have been rendered to the Llandovery Castle while on fire off Dover, UK, on 7 December 1916. No claim was made by the owners of the tug, which was a steam tug fitted with salvage plant. It was in Government service, stationed at Dover, where it was employed in whatever work the Admiralty required of it. In December 1916, the master and crew were the servants of the owners of the tug and not of the Crown.

The Llandovery Castle, belonging to the Union-Castle Mail Steamship Co (or the Union-Castle Line), was also in Government service. On the evening of 6 December 1916, while the Llandovery Castle was lying at Folkestone, UK, fire was discovered in a cargo hold which subsequently spread. The Llandovery Castle made for Dover, sending wireless messages asking for a salvage tug and pilot. The Llandovery Castle was met by the Lady Brassey, one of the powerful tugs in Government service. The Llandovery Castle followed the Lady Brassey towards Dover, intending to enter Dover Harbour. Meantime, by orders of the Admiralty, the William Gray proceeded out shortly after midnight. The William Gray took on board Captain Iron, who was both King's harbour master and Admiralty salvage officer at Dover. There were several warships in the harbour. Captain Iron refused to allow the Llandovery Castle to enter the harbour during darkness.

When the William Gray met the Llandovery Castle and the Lady Brassey about two miles outside the entrance, Captain Iron directed the ship to follow him, and the William Gray, with Captain Iron on board, led the Llandovery Castle to an anchorage to the westward of the Admiralty pier. Captain Iron then boarded the Llandovery Castle and directed the operations, while the Lady Brassey passed its hoses onboard. Between 9h00 and 10h00, the Llandovery Castle, with the assistance of the Lady Brassey, was brought into the harbour, and by the afternoon the fire was out. The William Gray remained near the Llandovery Castle, while the Llandovery Castle was at anchor near the pier, and accompanied the Llandovery Castle into harbour, and after the Llandovery Castle was moored, the William Gray was told that it was no longer required, and it got back to its berth soon after 9h00. Early in the morning it had carried a letter from Captain Iron to the Admiral and returned. It had had its hoses ready in case they were needed.

Except in carrying the harbour master, the William Gray did nothing which could be regarded as actually contributing to the safety of the Llandovery Castle. The William Gray took out Captain Iron and went out by orders of the Admiralty in response to the wireless message from the Llandovery Castle, and stood by in case it was needed. The Lady Brassey was amply sufficient to put out the fire.

Thereafter, the Llandovery Castle was sunk by the enemy in July 1918. The first intimation of a claim was on 23 November 1918. Following correspondence between the solicitors, the claim was rejected on 18 January 1919. The writ in rem was issued on 2 April 1919. The defendants' solicitors accepted service of that writ. Appearance was entered on 14 April 1919. There was no res. No bail was asked for or given.

The defendants in their pleadings denied that any salvage services were rendered and pleaded the two-year time bar under s 8 of the Maritime Conventions Act 1911 (the MCA). The plaintiffs contended that by appearing the defendants waived the right given by MCA s 8.

Held: Judgment for the defendants.

The plaintiffs' salvage claim is barred. There is no reason for exercising a discretion to extend time in the plaintiffs' favour. The action must be dismissed.

It is unnecessary to decide the question of whether the plaintiffs rendered a salvage service. Even if a salvage service was performed, the reward would be a very small sum, and the share of the master and crew would be very small. It is difficult to say that this was a salvage service. This was a tug in the employment of the Admiralty, engaged to do whatever is required of itself. The tug was required to proceed to a ship in case the tug is wanted, and did not actually contribute to the safety of the ship.

The plaintiffs' argument on waiver was rejected. The usual way to rely on a defence based on a statute of limitations is to plead the statute: O 19 r 15. Section 8 of the MCA is a statute of limitations: Gregory v Torquay Corp [1912] 1 KB 442 (CA). The proviso to s 8 enables, and in one set of circumstances directs, the Court to extend the period. The practice of the Court enables the plaintiff or intending plaintiff to apply to the Court, before commencing proceedings, to determine whether the period shall be extended.

There was also some argument about the writ being a writ in rem. Whether it was in rem or in personam was immaterial. In either case, the defendants had the right which s 8 gives them.

There remained the question of whether the plaintiff was entitled to an extension, or, if not, whether the Court, in its discretion, ought to grant an extension. The proviso to s 8 contains two branches. The first is discretionary, and the second compulsory. The second branch of the proviso is inapplicable to the present case. The power under that second branch can only be exercised to give reasonable opportunity of arresting the ship, and, as a matter of fact, in this case there is no possibility of arresting the ship because the ship has been lost. On the first branch of the proviso, the section fixes a period of two years, and the discretion can only be used in favour of a plaintiff if there are special circumstances which create a real reason why the statutory limitation should not take effect.

There were no special circumstances here. The plaintiffs could have instructed solicitors at any time to serve the writ. If they were waiting for the owners of the tug to take proceedings, they could have ascertained the owners' intentions in less than two years. If they expected a reward from the Admiralty, that is no reason why the defendants should be deprived of the time bar. Liability was repudiated on 18 January 1919. No explanation was given for the further delay of over two months before the writ was issued. Moreover, the fact that the claim is, at best, a trifling one, is one of the considerations which should be considered.