Scottish Court of Session Decisions

This was an advocation from the Sheriff Court of Aberdeenshire. The pursuers are Alexander Pirie and Sons, paper-manufacturers, Aberdeen, and the defender called is Captain John Warden, designed as “owner, or representing the owner or owners, and as master of the ship or vessel called the Emily and Jessie, of Liverpool, presently in the harbour of Liverpool.”

The following are the conclusions of the action:—“The defender (as owner, or representing the owner or owners, and as master of the said ship or vessel) ought to be decerned to make delivery in Aberdeen to the pursuers of one hundred and forty tons six hundredweight of esparto or Spanish grass, shipped at Aquillas in Spain, to be delivered at Aberdeen, conform to bill of lading dated 25th January 1865, signed by the said defender, and endorsed to and held by the pursuers, and which bill of lading was in signed in terms of a charter-party dated at Alexandria the 22d day of November 1864, between W. J. Wynands, shipbroker, Newcastle-upon-Tyne, and the defender; or otherwise, and in the event of the defender failing to make delivery to the pursuers of the foresaid esparto or Spanish grass within such space as may be appointed by me, the defender ought to be decerned, as owner, or as representing the owner or owners, and as master foresaid. to pay to the pursuers the sum of ¤1000 sterling, being the value of said esparto or Spanish grass, and the damages sustained by the pursuers, or which they may yet sustain and incur, in consequence of the defender's failure to deliver said grass; and generally, in consequence of his non-implement of said charter-party and bill of lading geld by the pursuers, with interest on the foresaid sum, at the rate of ¤5 per centum per annum, from the date of citation to follow hereon till payment, with expenses.” By a minute put into process the pursuers admitted that the defender was a foreigner not domiciled in this country; and arrestments to found jurisdiction had not been used.

The summons was served personally on the owner of the vessel, and afterwards the charterer of the vessel claiming to be owner of the cargo was sisted as a defender in the action. Besides pleas on the merits, the defender pleaded that the defender Warden, the defender called in the summons, being a foreigner not domiciled in Scotland, the Court had no jurisdiction to entertain the action. The pursuers answered that the defender having been resident and having been cited personally within the territory where the contract libelled on was to receive effect, he was liable to the jurisdiction of the Court; further, that the Sheriff Court as in place of the High Court of Admiralty had jurisdiction in the case in virtue

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inter alia of the provisions of the Act 1 Will. IV., c. 69, and 1 and 2 Vic., c. 119.

The Sheriff-Substitute (Comrie Thomson) dismissed the action on the ground that the Court had no jurisdiction.

His Lordship added the following note:—

“This action has been brought for the purpose of compelling delivery of a quantity of esparto brought to Aberdeen by the ship Emily and Jessie. The summons contains an alternative conclusion for damages in consequence of the defender's alleged failure to deliver. The summons was served upon the defender personally at Aberdeen. It has been admitted by the pursuers (minute No. 11 of process) that the defender is a foreigner not domiciled in this country. It is also admitted that arrestment ad fundandam jurisdictionem has not been used. It was maintained on behalf of the pursuers that the Sheriff Court was competent to entertain the action on various grounds—(1.) The 521st section of the Merchant Shipping Act of 1854 (17 and 18 Vict., c. 104) was founded on. But that section merely provides for the extension of the jurisdiction which any court may have over a district situate on the sea-coast—to ship and their crews lying off such coast ‘in the same manner as if such ship, boat, or persons were within the limits of the original jurdisdiction of such court.’ That statute does not bring under the jurisdiction any party who would not otherwise have been amenable to it, if found within its original limits. (2.) The 522d section of the same statute provides that personal service shall be ‘good service;‘ but that applies only ‘to legal proceedings under this Act,’ which the present is not. (3.) It was maintained that this is an action which would have been competent in the High Court of Admiralty, and that under the 22d section of 1 Will. IV., c. 69, the Sheriff Court now holds the same jurisdiction as that formerly possessed by the Court of Admiralty. Without inquiring whether this is properly an Admiralty cause or not, it seems to the Sheriff-Substitute that a sufficient answer to the argument based on the statute of Will. IV. is to be found in the provision of the Act 1 and 2 Vict., c. 119, sec. 21, which declares that ‘the said recited Act’ (1 Will. IV., c. 69) ‘shall be construed and held to mean that the powers and jurisdictions formerly competent to the High Court of Admiralty of Scotland all maritime causes and proceedings, civil and criminal, shall be competent to the said Sheriffs and their Substitutes, provided the defender shall, upon any legal ground of jurisdiction, be amenable to the jurisdiction of the Sheriff before whom such cause or proceeding may be raised.’ It appears to the sheriff-Substitute that there is nothing in these enactments to support the pursuers' contention, unless there be in the present case some ‘legal ground of jurisdiction’ apart from the statutes. It was maintained on behalf of the pursuers that there was jurisdiction here ratione contractus, on the ground that this country was the locus solutionis of the contract entered into between the parties, and performance of which is now sought; But it seems difficult to understand how jurisdiction can have the least operation when neither the person nor the estate of defender is within the judge's power.”

The Sheriff (Jameson) adhered.

The pursuers advocated.

Keir (with him Clark), for them, argued that the defender was subject to the Sheriff's jurisdiction, because Aberdeen was the locus solutionis under the bill of lading, and the defender was personally cited there. The intention of the parties to be subject to the courts of this country and not of Spain, where the contract was entered into, was clear, because, even if the defender should return to Spain the action to compel implement at Aberdeen naturally falls to be disposed of there. That jurisdiction is well founded by personal citation within the locus contractus was settled in the case of Sinclair, July 17, 1860, 22 D. 1475, the decision of that case being independent of the element of forum originis.

The locus contractus founds jurisdiction, because, where no different place is specified, it is presumed that the contract will be implemented where it was executed. It follows that, when the locus solutionis is different, personal citation there founds jurisdiction. Kames' Law Tracts, voce Courts, p. 234; Erskine p. 38; Ivory's Note; Pothier ad Pandectas, v. I., 35, 36, 43, fol. ed. p, 182; Vinnius Com. Inst., IV., 6., sec. 10, p. 858; Voet. Pand., v I., 73.

The defender, while objecting to the jurisdiction as a foreigner, does not state where his domicile is, or that he has a domicile. The fact is peculiarly within his knowledge; and, in objecting to jurisdiction in this case, he should have stated it. His profession, in these circumstances, rendered him subject to the jurisdiction of any place where he was personally cited. Ersk. 1, 2, 16; M'Niven v. M'Kinnon, Feb. 14, 1834, 12 S. 453.

The case being maritime, the Sheriff has jurisdiction as in place of the High Court of Admiralty. Bernard v. Connor, June 11, 1811, F.C., 11 Geo. IV., and 1 will. IV., c. 69, sec. 21, 22, which applies to persons furth of Scotland. In cases below ¤25 this jurisdiction is privative. Morrison, July 11, 1837, 15 S. 1293; Bruhn, 2 Macp., 335. The Act 1 and 2 Vict., c. 119, sec. 21, did not repeal this jurisdiction as to foreigners, but explained it so as to be applicable only when the defender upon any legal ground was amenable to the jurisdiction. The personal citation in the locus solutionis is such a legal ground of jurisdiction as is contemplated by the Act.

Young and Gifford in answer.

At advising,