Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0292.html
Cite as: [1867] ScotLR 3_292, [1867] SLR 3_292

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SCOTTISH_SLR_Court_of_Session

Page: 292↓

Court of Session Inner House First Division.

Saturday, March 9. 1867.

Lord President

3 SLR 292

Roy

v.

Hamiltons and Co.

Subject_1Ship
Subject_2Merchant Shipping Act, sec. 65
Subject_3Petition to Interdict Transfer
Subject_4Competency.
Facts:

An application by a personal creditor of a firm of ship-owners to have them interdicted from transferring their ships, presented under section 65 of the Merchant Shipping Act, refused as incompetent.

Headnote:

The petitioner, who is an African agent, resident in Glasgow, says he has a claim against Messrs Hamiltons & Company, merchants in Glasgow, to the amount of £6260, 15s. 2d. This claim Messrs Hamiltons & Co. dispute to the extent to which it is stated, and a proof has been allowed to the parties.

Meanwhile, the petitioner asked the Court to interdict, prohibit, and discharge the respondents from selling, transferring, or mortgaging four ships, of which they are the registered owners, or any of them, or any share or shares thereof, and from otherwise dealing with the said ships or any of them, until they shall have found caution for the sums sued for.

The application was founded on the Merchant Shipping; Act of 1854, sec. 65, which gives the Court of Session power, “upon the summary application of any interested person, made either by petition or otherwise, and either ex parte or upon service of notice upon my other person, as the Court may direct, to issue an order prohibiting for a time to be named in such order, any dealing with such ship or share.”

The petitioner averred that the respondents were vergentes ad inopiam, that they had recently sustained heavy losses, and that they were in course of transferring their assets and business; and that it was their intention to transfer and dispose of the said ships before they arrive in this country or become subject to the diligence of arrestment at the petitioner’s instance, whereby his security would be lost.

The respondents lodged answers denying the averments in the petition, and pleading that the application was incompetent, the section of the statute founded on being inapplicable to the circumstances.

Young, Clark, and H. Smith for the petitioner.

A. Moncrieff and Gloag for the respondents,

At advising,

Judgment:

The Lord President—I cannot say I have any doubt of the incompetency of this application. The clause founded on gives a Power to the Court on the summary application of any interested person to issue an order prohibiting for a time to be named any dealing with certain ships or shares of ships. It is on this clause the petition is founded. It is material to consider who the petitioner is, and under what circumstances he asks this remedy. He is a personal creditor of the respondents and nothing more. The petition applies to four ships which, he states, are at present beyond the jurisdiction of the Court, but he cannot State precisely where they are. He further states that it is the respondents' intention to transfer these ships before their arrival in this country, whereby his security for payment of his debt will be lost, by which security he means any power which he may have to attach the ships by arrestment. That is his whole case, and, of course, on the same statement he would, according to his construction of the Act, be entitled to attach any number of ships belonging to any persons or companies who he may choose to allege are his debtors. It appears to me that this is an attempt to make use of this section of the Act for a purpose which was never contemplated, in the interest of a party not within the scope of its provisions, and in a manner and form totally unauthorised. Section 65 forms part of a subdivision of Part II. of the Merchant Shipping Act regarding the “registry of British ships,” and the sub-division is styled, “transfers and transmissions.” The sections 55 to 61 regulate the mode of transmitting and transferring British ships and shares either as betwixt buyers and sellers or in case of bankruptcy, succession, or marriage. But section 62 deals with a particular subject not dealt with in previous sections—the case, namely, of a ship or a share coming to belong by the death of any owner, or the marriage of any female owner, to any person who is not qualified in terms of section 18 to be the owner of a British ship. Without some such provision as section 62 contains, the person so succeeding would not be entitled to take up the legal estate in the ship or share. The remedy provided is bringing the ship to sale, and it is very necessary to attend to sections 62, 63, and 64, in order that we may quite understand the meaning of all the terms used in section 65. Section 62 provides that in such cases as I have mentioned it shall be lawful to the Court to order a sale to be made of the property so transmitted, and to direct the proceeds to be paid to the person entitled under such transmission, or otherwise as the Court may direct, and generally to act in the premises as the justice of the case requires. Now this is a very large and wide discretion, and it is important to observe that in so far as regards the transmission of ships, this is the first section giving

Page: 293↓

any power to the Court to effect transfers or complete titles to ships. Farther, it seems to be contemplated that the order should be granted at once, and for the purpose of carrying out the order of sale, section 63 enacts that every order of sale shall contain a declaration vesting the right to transfer the ship or share so to be sold in a nominee of the Court, who shall thereupon be entitled to transfer as if he were registered owner. Section 64 limits the time within which an application for sale may be made. All that is quite clear, but the proceeding is very summary and rapid, and it may naturally occur that, in the course of this summary procedure, there are persons who have an interest and a title to interfere. The case is an anomalous one altogether, and accordingly it appears to me that section 65 is intended entirely for the purpose of providing for that case. When you read the section, every term in it corresponds with that idea. The very term “interested person,” suggests there may be any kind of interest entitling one to interfere betwixt the nominee and the unqualified person. It would be most unsafe to define what kind of interest is necessary. Indeed, I abstain from illustrating the matter. I think it means any person who can establish a prima facie interest of any kind. But, farther, what kind of prohibition is to be issued under section 65? Not what we are asked to grant in this petition, but it is to be for a time to be named—that is, until proper inquiry can be made. Besides, what is the subject, the dealing with which is to be prohibited? It is “such ship or share,” to which words it is impossible, on any principle of construction, to find an antecedent except in the preceding sections. On these grounds I am clear that this petition is incompetent.

The other Judges concurred, and the petition was therefore refused as incompetent, with expenses.

Counsel:

Agent for Petitioner— John Henry, S.S.C.

Agents for Respondents — Wilson, Burn, & Gloag,W.S.
1867