Scottish Court of Session Decisions

In this case the London and Caledonian Marine Insurance Company (Limited) are pursuers, and the London and Edinburgh Shipping Company and the Dundee, Perth and London Shipping Company are defenders. The case arose out of the following circumstance:—Messrs Kinmond, Luke, & Co., Messrs Halley & Barne, Messrs Gilroy Brothers, and Mr William Young Hodge, all merchants in Dundee, had in February 1865 certain quantities of jute in London which they wished conveyed to Dundee. For this purpose they transmitted warrants to obtain the jute to the agent of the Dundee, Perth and London Shipping Company, and send it on to Dundee by one of their steamers. The jute was collected from the docks or ships in the river, but none of the steamers of the Dundee Company were in London, and arrangements were entered into with the London and Edinburgh Shipping Company to charter their steamship “Temora,” then lying in the Thames. The “Temora” was chartered, the jute shipped on board, and the vessel sailed from London on Sunday the 19th February. All went well till the vessel reached Fifeness, when, in a fog, it ran on the Carr Rock, near Fifeness. The vessel and cargo, with the exception of a small quantity of jute, were lost. The merchants in Dundee, on being advised that the jute was shipped on board the “Temora,” insured it to the total amount of £5639, 11s. with the London and Caledonian Marine Insurance Company, and this amount, after deducting £447, 15s. 8d. net savings from the wreck, was paid by the insurance company to the merchants, the latter giving the company an assignation of any claim they might have against the Dundee, Perth and London Shipping Company for breach of contract by their failure to deliver the jute to the consignees in Dundee. The London and Caledonian Marine Insurance Company therefore bring the present action against the shipping companies for restitution of the money they paid in insurances, alleging that the vessel and the cargo were lost, not through “the act of God, lightning, or the perils of the sea,” but through the fault of those in charge of the vessel. The action is brought against the Dundee, Perth and London Shipping Company for breach of contract as public carriers, and against the London and Edinburgh Shipping Company for breach of an implied contract consequent on the company chartering their steamer to the Dundee, Perth and London Company. The Dundee Company held that they were not responsible for the wreck and consequent loss of the cargo, as it was not their vessel; while the Edinburgh Company maintained that the “Temora” was hired by them to the Dundee Company, but that there was no contract specified or implied between them and the owners of the goods, and that they therefore could not be liable.

The issue sent to the jury was as follows:—

“Whether, in or about February 1865, the defenders, the London and Edinburgh Shipping Company, received on board the screw steamship “Temora” the various quantities of jute mentioned in the schedule hereunto annexed, and undertook to carry the same from London to Dundee, and to deliver the same at Dundee to the parties entitled thereto? And whether, in breach of said undertaking, the said defenders failed to deliver the said jute, or part thereof, at Dundee, to the loss, injury, and damage of the owners and of the pursuers, as their assignees?”

There was a second issue applicable to the Dundee, Perth and London Shipping Company.

Amount claimed per schedule, £5191, 15s. 4d., with interest at five per cent. from 22d February 1865.

Evidence having been led and counsel heard, the Lord Justice-Clerk summed up. The jury then retired, and, after a short absence, returned the following verdict:—“The jury unanimously find for the pursuers on the second issue, and for the defenders, the London and Edinburgh Shipping Company, on the first issue; and find the Dundee, Perth and London Shipping Company liable in £5191, 15s. 4d. of damages, as sued for, with expenses.”