Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Perth, in an action at the instance of James Mackenzie, potato merchant in Cupar Fife, against David Pitblado, sole registered owner and master of the ship “Agnes Campbell,” of Perth. By charter party entered into at Dundee, on the 16th December 1868, between Pitblado on the one hand, and Mackenzie on the other, the defender engaged to sail with all convenient speed for Balmerino, there to take on board a cargo of potatoes belonging to the pursuer, and proceed therewith to London, and deliver the same to the consignee on being paid freight at a certain specified rate. The action was for the “sum of £400, or such other sum as may be modified in the course of the process to follow hereon, as damages sustained by the pursuer in consequence of the undue and unwarrantable delay of the ship or vessel called the ‘Agnes Campbell,’ of Perth, or in consequence of the undue and unwarrantable delay of the defender, the master of the said vessel, in proceeding in terms of the charter party on her journey from Balmerino to London, which ship or vessel, though completely loaded by the pursuer on the 31st of December last, and ready to proceed on her said voyage immediately thereafter, did not, in consequence of the said undue and unwarrantable delay, reach London till the 8th day of February last, whereby the pursuer has suffered serious damage through loss of market, and by and through the injury done to the cargo by its being so long kept at sea, or on board the said vessel.”

The following facts and circumstances were brought out in evidence:—

That the vessel having been chartered in Dundee on the 16th December 1868, crossed, after the lapse of a few days, to Balmerino Bay. At Balmerino she took on board a cargo of potatoes amounting to about 107 tons. She took about eight days to load, and the last few tons were pressed forward from the various farms on the last day of December, so as to complete the loading that afternoon, and enable the vessel to sail by the early morning tide of the 1st January 1869. Her loading was accordingly finished by the afternoon of 31st December. The potatoes were all put on board at the sight of the pursuer's superintendent. They were proved to have been in good condition and unfrosted. It appeared, however, that there was severe frost upon the night of December 31st, and that the last few loads had not been sufficiently covered and protected after being put on board. The vessel being ready to sail by the morning tide of 1st January, did not do so, the captain alleging that the pilot refused to take him off in consequence of the calm. The pilot, however, was not adduced as a witness. On the night of the 61st December the captain and some of the crew were on shore drinking, and on their return to the vessel the captain and his son, the mate, quarrelled and came to blows, in consequence of which the mate deserted the vessel. By the afternoon tide of January 1st the vessel got under weigh, but only proceeded as far as Wormet Bay, about one and a-half miles down the river, where she came to anchor, it being discovered that a warp had been left behind. On the 2d she again weighed anchor, but ran aground before leaving Wormet Bay. The captain then went over to Dundee to obtain a seaman to replace his son, who had deserted at Balmerino. On the 4th the captain took the vessel down to Dundee Hoads, when he again went ashore to get his compasses, oars, and a supply of bread, all which he had neglected to take on board before leaving Dundee for Balmerino. From the 4th to the 7th he lay in Dundee Roads. On the 7th he proceeded ns far as the Ferry Bonds, but there alleged that he was brought up by bad weather, and was detained by contrary winds from the 7th to the 20th January. This was proved to be more or less the case. On the 20th he was able to get out of the Tay, and reached Harwich on the 3d February, where he was obliged to put in along with a great many other vessels. It was not till the 9th February that he reached London. On arriving there it was found that much of the cargo was damaged. On this subject, however, a joint minute of parties was put in process, to obviate proof, to the effect that, in the event of the defender being found liable in damages, such damages should be assessed at £250, being £70 for loss of market, and £180 for deterioration of cargo, reserving all the defender's rights and pleas.

It was farther proved, that during the time which elapsed between the 1st and the 20th of January, there had been a good deal of drinking among the captain and crew, though not sufficient to render them incapable of their duty. That on the 8th January the pursuer entered a protest against the captain of the ‘Agnes Campbell’ for not sailing, and communicated the same to him; and finally, that at any rate, between the 1st and 7th of January several vessels left Dundee for ports in the north of England, and arrived with perfect safety, and after remarkably good passages.

Page: 52↓

The Sheriff-Substitute ( Barclay), after a careful and exhaustive analysis of the evidence, found that the facts proved did not fix upon the captain of the “Agnus Campbell” liability for damage in consequence of the length of the voyage, and consequent loss of market, and deterioration of cargo.

The Sheriff ( Tait) adhered.

The pursuer appealed to the First Division of the Court of Session.

Watson and Asher for the appellant.

Gordon, D.-F., and Balfour, for the respondent.

At advising—