Scottish Court of Session Decisions

The parties to this case were the Lord Advocate

Page: 233↓

on behalf of the Board of Trade, and John Grant, ship broker, Leith, owner of the barque Craigellachie of Bo'ness, which was totally wrecked near Cape Horn in June 1872. When the wreck occurred, five British seamen, shipped at Liverpool, viz., James Johnston, chief mate, Robert Alexander, carpenter, John Macfarlane, Peter Fraser, and James Cubbins, were more or less injured. The master and crew were taken off the wreck by the first passing ship on the following day, and landed at Port Stanley, Falkland Islands, where, in presence of George Trois, shipping master at Stanley, the men were discharged by the master in regular form, and their wages paid in full. From 26th June 1872 the five men above mentioned were maintained by the said George Trois, until 1st July 1872, when the said Peter Fraser and James Cubbins were despatched cured to Monte Video. The said James Johnston, Robert Alexander, and John Macfarlane, in consequence of the severe nature of the injuries they had received in manner foresaid, were detained at Port Stanley until 15th August 1872, when they also were despatched cured to Monte Video by the said George Trois. The remainder of the crew were sent in the Government mail ship to Monte Video, where they got employment. No claim was made on the second party, either for their maintenance or passage, they not having been injured in the service of the ship. The said shipping master's account of expenses incurred in providing medical attendance, and subsistence for the said James Johnson, Robert Alexander, and John Macfarlane, from 26th June to 15th August 1872; his account for the subsistence of the said Peter Fraser and James Cubbins, from 26th to 30th June inclusive; the expense of the master's and the said five seamen's passage home to this country, and the sums expended for their subsistence at Monte Video, were paid by the Board of Trade. The whole amounted to the sum of £72, 11s. 2d. The Board of Trade called upon the owner to repay the same, in respect of its being a charge to be defrayed by the owner of the ship, in terms of the Merchant Shipping Act, 1854, 17 and 18 Victoria, cap. 104, part iii. sections 228 and 229. He offered to repay to the Board of Trade the sum of £5, 5s., being 12s. incurred for the master's subsistence at Monte Video, and £4, 13s, being the price of his passage home per steamer “Boyne” as a shipwrecked and destitute master of a British vessel. Repayment of these items by the owner was guaranteed to the Board of Trade by the said master previous to their being expended, conform to guarantee by him dated 17th July 1872. A guarantee not being necessary, he was not requested to, and did not guarantee, repayment to any other disbursements than those above named. The owner further offered repayment to the Board of Trade of the sum of £11, 12s., being the amount which he calculated to have been expended for medical attendance, in order to compromise the claim, but expressly denying liability. The offer of repayment of these items, amounting to £16, 17s., as in full of the account, was not accepted, and was withdrawn; and the owner denied all liability except for the sum of £5, 5s. before mentioned.

The question of law submitted to the Court was:—

“Whether the said sum of £72, 11s. 2d., less the aforesaid sum of £5, 5s., is, or is not, a charge which, under the Merchant Shipping Act, 1854, part III, can be recovered from the party of the second part, as owner of the ‘Craigellachie’ at the date of her loss?”

At advising—