Scottish Court of Session Decisions

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Cite as: [1877] SLR 14_667_2, [1877] ScotLR 14_667_2

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SCOTTISH_SLR_Court_of_Session

Page: 667↓

Court of Session Inner House First Division.

Thursday, July 19.

14 SLR 667_2

( Ante, p. 120.)

Burrell

v.

Simpson & Company and Others.

Subject_1Expenses
Subject_2Shipping Law-Petition for Limitation of Liability in a Collision Case
Subject_3Principles of Taxing Claimants' Accounts.
Facts:

In a petition for limitation of liability by the owner of the offending ship in a collision held—“(1) That where several claimants have the same interest and ground of claim they ought all to concur in lodging one claim and appear by the same counsel and agents, and cannot be allowed any expenses for separate claims or appearances; (2) that claimants whose claims are unopposed are to be allowed only the expense of preparing and lodging their claims, and of one appearance by counsel to take decree,”; and (3) that where the master of a vessel and the crew present claims they should do so together.

Headnote:

This case, in which an appeal had been taken by some of the parties to the House of Lords, now came before the Court with reference to the accounts of the different claimants upon the fund, and the reports of the Auditor thereon after taxation.

It was stated that £2, 2s. only were allowed as expenses in unopposed claims in the Admiralty Courts in England.

At advising—

Judgment:

Lord President—The object of the reports of the Auditor in this case is to obtain a general direction as to the principles on which accounts by claimants in a petition of the kind are to be

Page: 668↓

taxed. I sympathise with the observation which was made by Mr Balfour upon the terms of the 514th section of the Merchant Shipping Act 1854. It was obviously intended that where a variety of claimants appear against the owner of a delinquent ship, they are to claim together as far as possible, as is done in an action of multiplepoinding in this Court. For that purpose the owner brings a petition to have the fund for which he is liable ascertained and consigned for division. Certainly, one matter which ought to be an object in such a case, is to save expense. If we were to sanction the contention of some of the parties here, to the effect that they were warranted in appearing separately, and were entitled to their expenses accordingly, it would lead to a defeat of the statute. It is necessary to lay down rules for the guidance of the Auditor so as to diminish the expense so far as expedient.

There is one suggestion of the Auditor in which I entirely concur. Where there are a variety of claimants of one class, e.g., owners of cargo, their claims ought to be stated in one paper, and appearance should be made by only one counsel and agent. So, too, in regard to other classes, where they are owners or underwriters, or occupy any other capacity. Where they all have the same interest they are required to claim together, and no expenses will be allowed to individual members.

Then, there is another ground on which the Auditor has not reported, and has not made any suggestion. What expenses are to be allowed to claimants whose claims are unopposed? That question will perhaps fall to be regulated hereafter more precisely than I propose to deal with it at present. But I think, so far as I see now, they should not be entitled to more than the cost of lodging their claim, and of one appearance by agent and counsel. All the expenses should be limited to these two items.

There is still another matter in regard to one particular class of claimants. There seems no reason why the master of the ship should not have joined with the mariners and have lodged one claim with them. It can hardly be said to be inconsistent with his dignity, and I see no other reason why he should decline to do so.

Lord Deas, Lord Mure, and Lord Shand concurred.

The Court pronounced the following interlocutor:—

“Of new remit the accounts of expenses to the Auditor, with the following instructions:—(1) That where several claimants have the same interest and ground of claim, they ought all to concur in lodging one claim and appear by the same counsel and agents, and cannot be allowed any expenses for separate claims or appearances; (2) that claimants whose claims are unopposed are to be allowed only the expense of preparing and lodging their claims and of one appearance by counsel to take decree.”

Counsel:

Counsel for Petitioner— Balfour—R. V. Campbell. Agents— Webster, Will, & Ritchie, S.S.C.

Counsel for Owners of Cargo, &c.— Lang—Guthrie—Alison, &c. Agents— Frasers, Stodart, & Mackenzie, W.S., and others.
1877