Scottish Court of Session Decisions

These were counter actions of damages, the first at the instance of Morison and Milne, registered owners of the schooner “Scotia” of Aberdeen against Francesco Massa master of the barque “Ghilino” of Genoa, 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; the other at the instance of Guiseppe Ghilino di Bartolomeo, shipowner, residing in Genoa, owner of the barque, or vessel “Ghilino”, and Francesco Massa, master of said barque or vessel, as master, and representing the owner of said vessel, against Morison and Milne. With the original action against Massa was conjoined a supplementary action at the instance of Morison and Milne against Bartolomeo as owner of the “Ghilino”.

The ground on which the claim of damages was founded in all the actions was injury sustained by the respective vessels in a collision which took place off Holy Island on 17th January 1866. The summons in the first actions was signeted on 26th January 1866, and was served personally on the defender Massa, against whom jurisdiction was alleged to have been founded by arrestment of the “Ghilino,” on the following day. The summons at the instance of Bartolomeo and Massa was signeted on the 27th January 1866, and served on the 28th. The summons in the supplementary action was signed on the 1st February 1866. The cross action of the 26th and 27th January were both called in Court on 15th February, and defences ordered to be lodged in both on the 28th February. On that day Morison and Milne gave in defences. Massa, however, did not do so till 14th March of which date he gave in defences, in which he declined the jurisdiction of the Court, on the ground that being neither owner nor part owner of the “Ghilino,” nor representing the said ship in these capacities, or either of them, jurisdiction could not competently be founded against him by an arrestment of the vessel. The Lord Ordinary (Kinloch) on the 14th July 1866, repelled the objection, and sustained the jurisdiction.

In his note his Lordship observed:—

“The present is an action of damages raised by Messrs George Morison and John Milne, both of Aberdeen, and joint owners of the schooner “Scotia” of that port, in respect of injury alleged to have been sustained by collision with the brig “Ghilino” of Genoa. The injury is alleged to have occurred ‘about nine miles off Holy Island, and about twelve miles south-east of Burnmouth,’ and to have been entirely produced through the fault of the master of the “Ghilino,” thereby inferring a claim for reparation against the owners of the “Ghilino,” who are responsible in this matter for the master.

The action is laid against the defender Francesco Massa, ‘master of the “Ghilino” of Genoa, presently lying in the harbour of Leith, as master and also as owner or part owner of said ship, or in those capacities, or one or other of them, or otherwise representing the said ship, and answerable for the loss and damage due to the pursuers in the premises.’

In order to found jurisdiction, the ship was arrested in Leith Harbour by an arrestment jurisdictionis fundandæ causa, framed as understood in terms quadrating with those of the summons. The question is now raised, whether this proceeding legally founded jurisdiction.

The defender does not dispute, that in so far as the action concludes against him as owner or part owner of the ship, jurisdiction is well raised by the arrestment of the vessel, but he denies that he is either owner or part owner, and says that he is only master. The pursuers rejoin, that the action is in that view itself sufficiently supported by the arrestment, and on this point the controversy took place before the Lord Ordinary.

If the action was merely personal to the master, as for debt or damage constituting a claim against him individually, and not affecting the ship or the owners, it would be very clear that there is no jurisdiction; for the ship is in no sense the individual property of the master, and could not be affected in respect of such a debt, either for jurisdiction or execution. Again, if the master stood in the mere position of an ordinary mandatory, binding his employers and not binding himself, then, although the ship would be affectable, it would not be so under proceedings directed against the master, the mandatory—but only under proceedings directed against the owners, the employers.

But the master of a ship stands by law in a position altogether different from an ordinary mandatory. When he contracts for the ship, he binds both himself personally, and also his owners and the ship. In the course of ordinary contract debts engaged in legitimately by the master on behalf of the ship, the Lord Ordinary conceives this doctrine fully settled, and it is exemplified in many cases. The consequence, as the Lord Ordinary conceives, is that the master is liable to be sued for such debts in his capacity of master, and to the effect of making the ship responsible in execution if a decree is obtained against him. He is as much so liable as is a trustee to the effect of making the trust-property affectable by legal diligence. If this be so, it seems to follow by necessary consequence that the ship is arrestable in order to found jurisdiction for an action laid on such a contract. If the action is such that a decree obtained in it would warrant the ship being taken in execution on the decree, it cannot, as the Lord Ordinary thinks, be disputed that the ship may be preliminarily arrested in order to found jurisdiction for the action. The arrestment jurisdictionis fundandæ causa rests on the principle that the thing arrested is liable to answer the decree. If these Aberdeen shipowners had made a contract with the defender as master of the “Ghilino” for ship furnishings, the Lord Ordinary cannot doubt that an action would competently have been raised against the master as such for the amount of the debt, and that arrestment of the ship would have been competent, both for jurisdiction and in execution. The present is not a case of debt but of damages; but the Lord Ordinary, on full consideration, cannot draw a distinction between the cases, the damages being sought from the defender in his capacity of master, and for an act on his part by which, if it truly occurred, he bound both the owners and the ship in pecuniary reparation. In legal character this is just a debt by ship and owners. It is not a debt ex contractu, but ex delicto. But delict is, in the eye of the law, a quasi contract. There is in every wrong an implied contract of reparation. Turn it in whatever way, there is here just a debt, contracted by the act of the master, due by owners and ship. The Lord Ordinary is of opinion that the same principle must apply as in the case of ordinary

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contract debts incurred by the master for tire ship.

The defender made reference to the 527th section of the Merchant Shipping Act, 17 and 18 Vict., cap. 104, as if the present proceeding was thereby excluded. That statute gave the remedy of a summary attachment of the ship by certain proceedings, ‘whenever any injury has in any part of the world been caused to any property belonging to her Majesty, or to any of her Majesty's subjects, by any foreign ship, if at any time thereafter such ship is found in any port or river of the United Kingdom, or within three miles of the coast thereof.’ It appears to the Lord Ordinary that this special remedy does not interfere with the ordinary legal proceedings taken in common farm, and without respect to the nationality of the vessel.”

“W. P.”

The cross action was conjoined on the 20th July 1886, and of same date the Lord Ordinary conjoined with them the supplementary action against Bartolomeo.

Massa reclaimed against the interlocutor of the 14th July, and Bartolomeo against that of the 20th July, conjoining the cross actions with the supplementary process against him. When the case came on for discussion before the Inner House, the pursuers pleaded reconvention as an answer to the objection of want of jurisdiction. They further stated that they now admitted that Massa was neither owner nor part owner of the “Ghilino,” and that they insisted in the action against him as representing the ship qua master.

Asher (with him Gifford) for the defender, Maasa, argued—1. Arrestment of the “Ghilino” could not found jurisdiction against Massa, he being, as is now admitted by the pursuers, neither owner nor part owner of the vessel, nor in either of these capacities representing the ship. His sole connection with the vessel was as master. On a decree against him as master, execution could not pass against the ship: e contra arrestment of the ship cannot found jurisdiction against him as master. The personal obligation of the master of a vessel was exceptional, and was specially for the protection of the owner. But if decree could attach the ship for the debt of the master, the property of the owner would be attached without his being present to protect himself. Bell, Com. i. 500; Ersk. 3. 3. 43. It is admitted that if the debt had been one by the master personally, arrestment could not be founded against him by an attachment of the ship. But this is really the character of action when it is pleaded that the collision took place through the culpa of Massa, or of those for whom he is responsible. 2. Neither was jurisdiction founded against the master by reconvention. Because the actio conventionis must precede the actio reconventionis. Here the procedure was the reverse. Thomson v. Whitehead, 24 D., 331. 3. The manner adopted of convening the defender was incompetent, in respect that the proper remedy for such a case was provided by sect. 527 of the Merchant Shipping Act.

Millar (with him Young), for Morison and Milne, argued—Jurisdiction was competently founded against Massa in this case—viz., (1) by reconvention; and (2) by the arrestment of the “Ghilino” juriedictionia fundandæ causa before the date of the action. 1. Reconvention was clearly established. There was an absolute identity as to the parties to the two actions, and as to the subject-matter of both suits. The objection here taken to the plea was that the foreigner's action was not the first, as it was not signeted till the day after that raised by the owners of the “Scotia.” But consent was the basis of reconvention, and Massa must be held to have consented to the jurisdiction by raising the action against the defenders on the following day. If the want of this consent at the time when the first action was raised was to make that action absolutely null, no after consent could remedy it. Harvey v. Forrest, 28th June 1839, 1 D. 1137. But in an action against a foreigner where jurisdiction has not been founded against him, jurisdiction may be prorogated by his subsequent consent and conduct. White v. Spottiswoode, 30th June 1846, 8 D. 952.