Scottish Court of Session Decisions

These were conjoined actions for payment of a sum found due .under a decree-arbitral, and for reduction of the decree. The parties were George

Page: 79↓

Birrell, commission merchant, Glasgow, and William M'Culloch, fishcurer and merchant, Glasgow.

The circumstances were thus stated in the note to the Lord Ordinary's interlocutor:—

“On 15th May 1862, the pursuer, George Birrell, hired his vessel, the Jessie Brown, to the defenders, Messrs M'Culloch & Fyfe, for the period of one month, from 19th May, at the freight of £150. The charter-party bears ‘That the said steamer shall be delivered up by the charterers at the termination of this charter-party at Glasgow, Ardrossan, Bowling, or Ballycastle, in charterers' option; and should she not be delivered to owner at expiry of one month, from being on her voyage, then £5 per day to be paid by the charterers for the extra time, and afterwards at the rate of £8 per day till she is delivered, unless the parties to this charter agree to a new charter party.’ The meaning of this stipulation seems to the Lord Ordinary not obscure. The vessel was deliverable at the close of a month from 19th May. But she might possibly be then on a voyage; and it was agreed that, till she completed her voyage, £5 per day was to be paid for the extra time. Any after detention was to be at the rate of £8 per day. On 17th June, the defender, M'Culloch, telegraphed from Liverpool a request for a week's further use of the vessel at the same rate per day, and this was acceded to. The vessel was, however, not delivered back to the owner till some time after the expiry of this week. It is said that she had met with an accident, which made some repairs necessary. The parties differed as to the entire sum to be paid to the owner. By the terms of the charter-party it was provided, ‘That should any difference arise between the parties to this contract as to its terms, either in principle or detail, they hereby agree to refer the same for arbitration to Mr John Jamieson, fishcurer in Glasgow, whose decision will be final in all matters of dispute.’ Mr Jamieson was accordingly applied to, and he pronounced the decree-arbitral for a balance as due to the owner, on which Mr Birrell now sues, and which Mr M'Culloch has brought under reduction. The ground of reduction is, in substance, that by the agreement made by telegram for an additional week's use, a new contract was made, not containing the conditions of the original charter-party, and, inter alia, not containing the the agreement to refer; and that the arbiter had no power to enter on the matter decided by him.”

The Lord Ordinary (Kinloch) repelled the reasons of reduction, and in the other action decerned against the defender as concluded for. In his note he observed:—“It appears to the Lord Ordinary that this ground of reduction is wholly untenable. Nothing was done by the telegram except to give the charterers the benefit of a fixed extra time for re-delivery—viz., a week additional, at the primary rate of £5 per day. To this extent the charterers were freed from any question as to the rate per day to be paid. In other words, the fixed period of the contract was prolonged for a week further. But this did not imply that the contract was qualified to any other effect, far less that it was entirely set aside. At the utmost, there was a qualification of the contract—there was no innovation. It had a supplementary clause added to it, nothing more. The Lord Ordinary considers the contract to have remained generally in undoubted validity; and amongst its subsisting stipulations to be that providing for a reference to Mr Jamieson. It was said that by the reference clause, Mr Jamieson had only power to declare the terms of the contract, and could not issue a decree for a specific sum. The Lord Ordinary thinks this plea extravagant. A reference of pecuniary disputes implies a proper decree-arbitral for the sum found due. The pursuer, Mr Birrell, maintained that all challenge of the decree-arbitral was barred by the conduct of the defender in going on before the arbiter without objection. There were conflicting averments on this head. The Lord Ordinary has found no occasion to inquire into the matter of fact, being fully satisfied that, supposing the challenge to be open, it is destitute of good foundation on its merits.”

M'Culloch reclaimed.

Thoms ( Gifford with him) was heard for the reclaimer.

Spittal ( Clark with him) supported the Lord Ordinary's interlocutor.