Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0007.html
Cite as: [1866] SLR 2_7, [1866] ScotLR 2_7

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SCOTTISH_SLR_Court_of_Session

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Court of Session Outer House.

(Before Lord Barcaple.)

2 SLR 7

Fairbairn

v.

Dundee and Newcastle Shipping Company (Limited)

Subject_1Merchant Shipping Act
Subject_2Notice of Action to Board of Trade.

Facts:

Held (per Lord Barcaple, and case not carried further) that the provision of the Merchant Shipping Act requiring notice of all actions of damages arising through the fault of the crew of another vessel to be given to the Board of Trade before the action is instituted was sufficiently complied with, by the matter having been brought by another than the pursuer of the action, under the notice of the board, who instituted no inquiry.

Headnote:

In this action the pursuer claimed damages from the defenders for loss sustained by her in consequence of the death of her husband, who was a fisherman, by the running down of a fishingboat, of which he and three other fishermen formed the crew, by the steamer Dalhousie, in the month of October 1864. The defenders stated a preliminary plea to the effect that the action was irrelevant in respect the pursuer had not complied with the provisions of section 512 of the Merchant Shipping Act 1854, which enacts “that in cases where loss of life or personal injury has occurred by any accident, in respect of which the owner of any such ship as aforesaid is or is alleged to be, liable in damages, no person shall be entitled to bring any action or institute any suit or other legal proceeding in the United Kingdom until the completion of the inquiry (if any) instituted by the Board of Trade, or until the Board of Trade has refused to institute the same; and the Board of Trade shall, for the purpose of entitling any person to bring an action or institute any legal proceeding, be deemed to have refused to institute such inquiry, whenever notice has been served on it by any person of his desire to bring such action or institute such suit, or other legal proceeding, and no inquiry is instituted by the Board of Trade, in respect of such intended action, suit, or proceeding, for the space of one month from the service of such notice.”

Judgment:

The Lord Ordinary repelled this plea. A reclaiming note was presented against his interlocutor, but before it was heard the case was compromised.

In his note his Lordship observed:—“The 512th section of the statute provides that where the Board of Trade has not already instituted an inquiry, no person shall bring an action until the Board has refused to institute the same. In this case, an application was made to the Board of Trade on 13th October 1864 by Mr Wilson, officer of the Board of Fisheries at Eyemouth,

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at the request of the fishermen of that place and relatives of the men lost, asking the Board to institute an inquiry. The Board took steps to get further information as to the matter; and thereafter, on 28th October 1864, they forwarded to Mr Wilson a copy of the explanation of the master of the steamer as to the cause of the accident. The present action was not brought until September 1865, the Board having taken no steps in the interval. In these circumstances the Lord Ordinary thinks it must be held that the Board refused to institute the inquiry. It appears from the recent correspondence produced in process that this is the view taken by the Board itself; and the Lord Ordinary thinks it is the true construction to be put on the facts of the case. The defenders found upon the special provision in the clause that ‘the Board of Trade shall, for the purpose of entitling any person to bring an action or institute a suit or other legal proceeding, be deemed to have refused to institute such inquiry, whenever notice has been served on it by any person of his desire to bring such action or institute such suit or other legal proceeding, and no inquiry is instituted by the Board of Trade in respect of the subject-matter of such intended action, suit, or proceeding for the space of one month after the service of such notice.’ The defenders maintain that it was only by compliance with this provision that the pursuers could be entitled to bring the action, and that it was requisite that there should be notice of the intention to bring the action, and that it should be served upon the Board by the pursuers themselves or their agent. The Lord Ordinary cannot adopt this construction of the provision. He thinks it was intended to protect the rights of parties alleging injury, by enabling them to require the Board either to proceed with an inquiry, or to leave the field open for an action by the private party. He does not think it was intended to derrogate from the effect of the general provision as to the Board refusing to institute an inquiry. Wherever it can be established in a satisfactory manner that the Board has already refused to institute an inquiry, no matter from whom the application to do so may have proceeded, it does not appear to the Lord Ordinary to be necessary for the party wishing to bring an action to serve notice upon the Board of his intention to do so.”

Counsel:

Counsel for Pursuer— Mr Gifford and Mr Thomson. Agent— Mr James Renton jun., S. S. C.

Counsel for Defenders— Mr Millar. Agents— Messrs J. & R. Macandrew, W. S
1866