Lloyd's Maritime and Commercial Law Quarterly
DR LUSHINGTON’S CONTRIBUTION TO THE LAW OF MARITIME SALVAGE (1838–67)
S. M. Waddams*
Salvage, said Dr Lushington in 1861, is “a mixed question of private right and public policy”.1 This is an interesting statement for a judge to make about any area of the law in an era when private rights were clearly identified and strictly enforced, and when public policy was an unruly horse and dangerous to ride. A few years earlier, a common law judge had said that it was not the province of the judge “to speculate upon what is best, in his opinion, for the advantage of the community”.2 Dr Lushington’s salvage decisions are almost all plainly influenced by his opinion of what is for the advantage of the maritime community. Yet, though peculiar in its own time, Dr Lushington’s mixture of private right and public policy has a modern ring in the light of the current interest in analysis of private law from the point of view of its political, social, and economic purposes. Posner, for example, in our own time, has found the law of salvage to be economically efficient.3
Dr Lushington, as the judge of the Admiralty Court from 1838 to 1867, had a more complete control over the law of salvage than almost any other judge at any time over any area of law. Dr Lushington decided every important English salvage case in this 29-year period; there was no comparable area of common law on which the decisions of other courts could be persuasive; admiralty cases had not been regularly reported until the 19th century, and precedents were comparatively few—binding precedents were very rare; there was only one level of appeal from Dr Lushington’s decisions, and that to a highly elevated tribunal, namely, the Judicial Committee of the Privy Council, so that appeals were expensive, and rare; after 1852, there was no civilian member of the Privy Council (except Dr Lushington himself, who did not sit on appeals from his own decisions), so that his monopoly of legal expertise was hardly challenged, even on appeal. Even when an appeal was made, the Privy Council was avowedly reluctant to reverse the judge of first instance on questions of quantum,4 or on nautical questions.5
A treatise on the Law of Salvage appeared in 1870,6 three years after Dr Lush-
* Professor of Law, University of Toronto.
1. The Albion (1861) Lush. 282, 284 (attributing the saying to Story, J.).
2. Egertonv. Brownlow (1853) 4 H.L.C. 1, 123, per Parke, B.
3. Landes and Posner, “Salvors, Finders, Good Samaritans and other Rescuers: An Economic Study of Law and Altruism” (1978) 7 J.L.S. 83, 100–108. See also Posner, Economic Analysis of Law (Little, Brown, 2nd edn., 1972), 133–134.
4. The Clarisse (1856) 12 Moo. P.C.340; The Neptune (1858) 12 Moo. P.C. 346, 351; The Carrier Dove (1863) Br. & Lush. 113; The Fusilier (1865) Br. & Lush. 341; The Scindia (1866) L.R. 1 P.C. 241; The True Blue (1866) L.R. 1 P.C. 250. But contrary is The Medora (1847) 5 N.o.C. 156, where an award of Dr Lushington’s was doubled by the Privy Council.
5. The Julia (1861) Lush. 224; The Minnehaha (1861) Lush. 335.
6. Edwyn Jones, Law of Salvage (Stevens and Haynes, 1870).
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