Scottish Court of Session Decisions

On 17th January 1866 a collision took place between the schooner “Scotia,” of Aberdeen, and the barque “Ghilino,” of Genoa, by which both vessels were injured. On 26th January an action of damages for the sum of £1000 was raised by George Morrison and John Milne, merchants in Aberdeen, the owners of the “Scotia,” against Francesco Massa, master of the “Ghilino,” then lying in the harbour of Leith, as “master, and also as owner or part owner of said ship, and in these capacities, or one or other of them, or otherwise representing the said ship.” Jurisdiction was alleged to have been founded against Massa by arresting the “Ghilino.” To this action the defender pleaded no jurisdiction. Thereafter, on 27th January, Guiseppe Ghilino di Bartolomeo, shipowner, Genoa, the owner of the “Ghilino,” and Francesco Massa, “as master, and representing the owner of said vessel,” raised a cross action against Morrison & Milne, the owners, and Alexander Nicholson, the master of the “Scotia,” concluding for £200 as damages for injury occasioned to the “Ghilino” by the collision. On 1st February 1866 the owners of the “Scotia,” in order to preclude the possibility of the original action against Massa being cast on the plea of no jurisdiction, raised a supplementary action against Bartolomeo as owner of the “Ghilino.” The summons concluded for conjunction of this supplementary action with the summons in the original action against Massa; and the conclusion thus proceeded:—“And the said cases being so conjoined, the defenders and the said Guiseppe Ghilino di Bartolomeo ought and should be decerned and ordained, in terms of the foresaid summons at the instance of the pursuers against the said Francesco Massa, by decree of the Lords of our Council and Session, to make payment to the pursuers of the sum of £1000 sterling, or such other sum as, in the process to follow in the said conjoined actions, shall be ascertained to be the loss and damage due to the pursuers in the premises, with interest at the rate of 5 per cent. per annum from the date of citation in the action against the said Francesco Massa until paid.” When the case was called in Court the pursuers (Morrison & Milne) lodged a minute craving leave to amend their supplementary summons as follows:—“In the first place, immediately after the words, ‘the said cases being so conjoined,’ to introduce the following words, viz.—‘or whether they shall be conjoined or not.’ In the second place, to delete the words, ‘in the process to follow in the said conjoined actions.’”

On 23d May 1866 the Lord Ordinary (Kinloch) pronounced the following interlocutor:—“The Lord Ordinary having heard parties' procurators, sustains the minute of amendment of the libel, No. 14 of process, on payment by the pursuers to the defender of £2, 2s. of expenses: closes the record upon the revised condescendence and revised defences, Nos. 9 and 11, and minute of amendment of the libel, No. 14 of process: conjoins with this process a relative process between the same parties, also in this day's roll: Further, appoints the parties to lodge in the conjoined actions issues within eight days.”

The process with which this was conjoined was that raised by Bartolomeo and Massa against the owner and master of the “Scotia” on 27th January 1866; and in that action the Lord Ordinary, of same date (23d May 1866), pronounced an interlocutor closing the record on the revised condescendence and revised defences, and conjoining it with the action raised on 1st February 1866.

Bartolomeo reclaimed against the first interlocutor, and he and Massa against the second.