Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0182.html
Cite as: [1867] SLR 3_182, [1867] ScotLR 3_182

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SCOTTISH_SLR_Court_of_Session

Page: 182↓

Court of Session Inner House First Division.

Saturday, Jan. 26. 1867.

Lord President

3 SLR 182

Inglis and Bow

v.

Smith and Aikman.

Subject_1Arrestment
Subject_2Breach
Subject_3Contempt of Court
Subject_4Complaint — Competency.
Facts:

1. Circumstances in which held that a breach of arrestment was not punishable as a contempt of Court. 2. A prayer for decree for expenses caused by a breach of arrestment cannot be competently included in a petition and complaint to the Court for contempt.

Headnote:

This was a petition and complaint at the instance of Inglis & Bow, ship agents and commission merchants in Glasgow, with concurrence of the Lord Advocate, against Norval Smith, master of the ship Julia Langley, and Thomson Aikman, shipbroker in Glasgow, agent for the charterers of said vessel. The petitioners complained that the respondents had committed a breach of arrestment and a contempt of Court. The Julia Langley was partly owned by William Miller Maclean, ship and commission agent, St John's, New Brunswick, who, as the petitioners alleged, was their debtor to the extent of £694, 13s. 3d.; and on 6th December 1866 the ship was arrested in the harbour of Glasgow on the dependence of an action which the petitioners had raised against Maclean for recovery of their debt. Notwithstanding this arrestment, the ship was removed on 8th December to the Tail of the Bank, near Greenock, whither she was followed by the petitioners' messenger, and dismantled. The petitioners had in this way incurred an expense
Page: 183↓
of £19, 10s. 11d.; and they prayed the Court to find that the respondents had been guilty of contempt of Court and breach of arrestment, and in respect thereof, “to fine and amerciate the said Norval Smith and Thomson Aikman, both and each or one or other of them, in the sum of £100, or such other sum as your Lordships may determine; or to inflict such other censure or punishment as in the discretion of your Lordships shall seem just; as also, to find the said Norval Smith and Thomson Aikman, jointly, or one or other of them, liable to pay to the petitioners the amount of expenses to which the petitioners have been put by and through the act complained of, in order to deter the said Norval Smith and Thomson Aikman, and others, from committing the like offence in time coming; and further to find the said Norval Smith and Thomson Aikman liable in the expenses of this petition and complaint, and of all the proceedings to follow hereon.”

The respondents lodged answers to the petition, in which, after narrating certain negotiations and correspondence which they had had with the petitioners' agents with the view of loosing the arrestments, they stated that no breach of the arrestment had been committed; that the ship had been taken to Greenock solely for convenient loading; and that there was no attempt or intention to take her out of the jurisdiction of the Court until the arrestments were loosed. They also stated that they believed they had the petitioners' consent to take the vessel down the river as they did.

Young and M'Lennan were heard for the petitioners.

Solicitor-General and Gifford for the respondents.

In the course of the discussion a question arose as to whether it was competent in such an application as the present to pray for decree for the expenses to which the petitioners had been put in consequence of the breach of arrestment alleged.

The respondents argued that this was a civil debt which could not be recovered by means of a petition and complaint; and, besides, the proceeding may turn out to have been unjustifiable, in which case the petitioners, instead of recovering this sum, will be liable in damages. The case of Bell v. Jamieson, 24th June 1848, 10 D. 1413, was referred to.

The Court took time to consider their judgment, which was to-day delivered by

Judgment:

The Lord President—This application is not of a usual kind. I don't recollect an application praying the Court to inflict punishment for breach of arrestment on the ground of its being a contempt of Court. Such applications founded on breach of interdict are common enough. I don't mean to say that a person is entitled to violate an arrestment—far from it. There is a statute about breach of arrestment, but it does not make it a contempt of Court. Breach of arrestment is not quite parallel with breach of interdict. A party obtains a warrant to arrest on his own application and as a matter of course. However, I am very far from saying that breach of an arrestment should not be punished, and I am very far from giving any countenance to the argument of the respondents that they were entitled to remove the ship from Glasgow notwithstanding the arrestment, provided they did not remove it beyond the jurisdiction of the Court, or more than three miles from the coast. The warrant and arrestments were regular and in the usual form; and to say that a person is entitled to remove an arrested ship as he pleases, notwithstanding an arrestment, is altogether out of the question. That contention is quite new to me, and I think it was new to the respondents themselves; for I don't think it was on that ground that they proceeded. If they had proceeded on that ground, they would have been in a much worse position than I think they are. But an arrestment is farther distinguishable from an interdict in this respect, that it is a matter which is every day made the subject of arrangement as to how far it is to be insisted in or relaxed; and when we come to deal with an application for punishment for breach of it, it is material to inquire whether anything has been done by the parties with this view. I think in this case it is clear that there had been a communing betwixt the parties, and if it does appear that there was even a misunderstanding on this subject, it would be very difficult to discover any criminality. I think the import of the communings was that there was reason for the respondents believing that they had right to do what they did. Security had been offered for the debt said to be due, and there was correspondence with a view to getting the arrestment loosed. I don't think, therefore, that there was here any criminality which calls for punishment, or that we can treat these parties as criminals. On the other hand, I think there is a demand made here which is incompetent. It may be the case that the vessel having been taken to Greenock may have caused expense to the petitioners, but that is a part of the expense which, if they gain their cause, they will get. If they don't gain it, it is an expense which they are not entitled to recover. The opinion of the Court on the whole is, that we should dismiss this complaint, and find neither party entitled to expenses.

Solicitors: Agents for Petitioners— Morton, Whitehead, & Greig, W.S.

Agent for Respondents— John Ross, S.S.C.

1867