Scottish Court of Session Decisions

A petition having been presented under the 514th section of the Merchant Shipping Act of 1854, with a view to bringing forward all parties claiming or entitled to participate in the maximum sum of damages allowed by that Act in the case of collision at sea, and to secure the defenders against any further claims being made upon them, held that, in the circumstances, the petition was needless, and that its presentation should not stop the currency of interest against the defenders.

In this case, the Flensburg Steam Shipping Co. having failed to get the verdict set aside and a new trial granted, on the ground that the jury had not apportioned the damage, or given any indication in their verdict that the sum assessed was divisible between the owner of the ship and the owners of the cargo, they presented a petition to their Lordships, setting forth the facts of the case, and that £4360, the amount assessed by the jury, was the maximum sum for which they were liable in respect of the collision to the owners of the ‘Flora,’ and all parties interested either in the goods, merchandise, or other things on board thereof at the time she was sunk.

They then stated “that by the 514th section of the ‘Merchant Shipping Act, 1854,’ 17 and 18 Vict, c. 104, it is provided that in cases where ‘any liability has been, or is alleged to have been, incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats, or goods, and several claims are made or apprehended in respect of such liability … it shall be lawful in England or Ireland for the High Court of Chancery, and in Scotland for the Court of Session, and in any British possession for any competent court, to entertain proceedings at the suit of any owner, for the purpose of determining the amount of such liability, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject matter; and any proceeding entertained by such Court of Chancery or Court of Session, or other competent court, may be conducted in such manner, and subject to such regulations as to making any persons interested parties to the same, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of costs, as the Court thinks just.’ That the petitioners are ready to consign in Court the said sum of £4360, in order that the same may be distributed amongst the various persons entitled thereto, in accordance with the provisions of the foresaid statute. That the owners of the cargo on board of the said ship ‘Flora’ at the time of the collision—which cargo was, it is believed, of the value of £13,000 or thereby—threaten and intend, as the petitioners apprehend, to claim and take proceedings against them in respect of the loss of the said cargo in consequence of the said collision, and it is necessary that the petitioners should make the present application.”

The prayer of the petition was as follows:—“May

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it therefore please your Lordships to appoint this petition to be intimated on the walls and in the minute-book in common form, and to be served on the said Hermann Leo Seligmann, and on Messrs Gillespie, Cathcart & Fraser, merchants, Glasgow, the owners or consignees of the cargo on board the said steam ship ‘Flora’ at the time of collision; and further to order such intimation, by advertisement or otherwise, to be made to all parties interested, as to your Lordships may seem proper, and to ordain them to lodge answers thereto, if they any have, within a short time after service and intimation, to allow the petitioners to consign the said sum of £4360, and to find that the petitioners are only liable in once and single payment thereof, and to appoint parties to produce their claims to participate therein within a time to be fixed by your Lordships, with certification that parties who may not claim within such time to be fixed as aforesaid shall be excluded from participating in the foresaid sum, and thereupon to distribute the said sum amongst the respective parties according to their several rights and interests, and to decern therefor out of the said consigned sum; and in the meantime to restrain, prohibit, and interdict the said Hermann Leo Seligmann, and all other persons, from further prosecuting the said action at their instance now in dependence before your Lordships, or prosecuting any further or other action, or other legal proceedings against the petitioners, or either of them, in respect of said collision, or any loss or damage occasioned thereby, and in any event to find the petitioners entitled to the expenses of this application and procedure; and to do otherwise or further in the premises as to your Lordships shall seem proper.”

Upon 1st June 1871 the Court pronounced the following order:—“The Lords appoint this petition to be intimated on the walls and in the minute-book for fourteen days; and grant warrant for serving the same on the parties named in the prayer thereof; and ordain them to lodge answers thereto, if so advised, within fourteen days after such service: further, appoint advertisement of the said petition and this deliverance to be made in each of the North British Advertiser, the Glasgow Herald, and the Shipping and Mercantile Gazette newspapers respectively, once weekly, for two weeks.”

Answers were given in for Seligmann, in which he stated that “the respondent objects to the present petition in so far as it prays—(1) That the petitioners should be allowed to consign the said sum of £4360. If the owners of the cargo do not appear, this consignation is unnecessary. (2) That the respondent should be restrained, prohibited, and interdicted from further prosecuting the action at his instance now in dependence before your Lordships. And (3), That the petitioner should be found entitled to the expenses of this application and procedure.”

On 1st July 1871, their Lordships pronounced the following order:—“The Lords having resumed consideration of the petition, with answers thereto for Hermann Leo Seligmann, and heard counsel; on the motion of the petitioners, appoint all parties interested to lodge their claims to participate in the fund mentioned in the petition within ten days from this date, and appoint copies of the petition, and the deliverance of 1st June last, and this deliverance, to be served on Percy J. Reid, insurance broker at Llyods, London, broker for the underwriters on the cargo of the ‘Flora; ’ and appoint this deliverance to be advertised once in each of the North British Advertiser, the Glasgow Herald, and the Shipping and Mercantile Gazette newspapers.”

A claim was accordingly put in for Mr Seligmann in the following terms:—Under reference to the said petition, and answers thereto, and to the two closed records and issues therein mentioned, the said Hermann Leo Seligmann claims—(1) That in the event of no other party lodging a claim to participate in the fund mentioned in the petition, the said petition be refused, with expenses; or otherwise, to be ranked for the said whole sum of £4360, with interest thereon at the rate of 5 per cent from and after 25th March 1871 till paid. (2) In the event of a claim being lodged by any other party or parties entitled to participate in the said fund, the said Herman Leo Seligmann claims to be ranked and preferred to a proportion of the said fund effeiring to the sum of £15,000, as the gross amount of the damage suffered by the present claimant through the collision between the ‘Prima ’ and the ‘Flora.’

The claimant pleaded—“(1) In the event of no other claim being made to participation in the said fund, it is unnecessary to proceed further with the said petition, and it ought therefore to be refused. (2) Failing this, the respondent, in respect of his action and of the verdict, should be preferred to the sum in the verdict, with interest as claimed. (3) In the event of any other party or parties being found entitled to participate in the said fund, the present claimant is entitled to be ranked, as in competition with them, for a proportion thereof, effeiring to the amount of his total loss as condescended on.”

No other claimants came forward, and their Lordships accordingly resumed consideration of the petition, and answers and claim for Mr Seligmann, and also of Mr Seligmann's motion to have the verdict in his favour applied, with interest upon the sum assessed by the jury at the rate of 5 per cent. from the date of the verdict.

Shand and Maclean, for the Flensburg Steam Shipping Company, contended that the course they had taken was quite justifiable, and was one contemplated by the Act, and necessary for their own safety, and that they ought not therefore to be subjected in interest, more especially as Mr Seligmann had opposed consignation. They referred to the case of Taylor v. Macfarlane, 18th March 1868, 40 Jur. 332.

Watson and Asher, for Mr Seligman.

At advising—