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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Steel & Craig v. State Line Steamship Co. [1878] ScotLR 15_341 (5 February 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0341.html
Cite as: [1878] SLR 15_341, [1878] ScotLR 15_341
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SCOTTISH_SLR_Court_of_Session
Page: 341↓
Court of Session Inner House First Division.
[
v.
Facts:
In a maritime case an issue was adjusted and a special verdict taken at the trial and applied by the Court without any question as to the unseaworthiness of the vessel having been raised, the whole argument being directed to the effect of the clauses of the bill of lading applicable to the cargo, the injury to which upon the voyage had led to the raising of the action against the shipowners. The House of Lords, on an appeal against the judgment of the Court of Session ordering the verdict to be entered for the defenders, remitted the case for a new trial on the question of seaworthiness. At that second trial the jury found for the pursuers, and the verdict was entered for them. Held that the pursuers, being alone to blame for the omission which had taken place, were liable in the expense of the first trial and of the discussion following thereon.
This was the sequel of the case reported ante, March 16, 1877, vol. xiv. 432, 4 R. 657, and in the House of Lords, July 20, 1877, vol. xiv. 734, As directed by the House of Lords, the case was sent for a new trial to determine the question of seaworthiness, and on that question the jury found for the pursuers.
The averment in the 5th article of the condescendence, referred to in the Lord President's opinion ( infra) and said to raise the question of seaworthiness,
Page: 342↓
was this:—“When the said vessel left New York she was not in a seaworthy condition, in respect one of her side ports was open, or at least not sufficiently secured or fastened to prevent the influx of water into the hold; and the said port was allowed to remain open or insecurely fastened through the gross carelessness of those in charge of the vessel.” The pursuers now asked the Court to enter the verdict for them, and to find them entitled to expenses. The defenders resisted the claim for the expenses of the first trial and of the discussion following thereon, on the ground that the pursuers ought to have taken care that the question of unseaworthiness was raised by the issue, and ought not to have agreed to the adjustment of any special verdict without a finding on that point. It was no part of the defenders' duty to have raised that question.
At advising—
Now, in cases of maritime contract the fact of unseaworthiness is as a rule expressly put in issue. In this case, if the pursuers had relied on unseaworthiness, we should probably have made them put that in their issue; but my impression at the time of adjusting the issue certainly was that the averments as to unseaworthiness were not insisted in, and for this reason among others, that they were irrelevant; and I remain of that opinion still. If any one analyses the statement in the 5th article of the condescendence he will find, I think, that the conclusion is irresistible that the port-hole was accessible, and could have been closed at any time during the voyage, but that through the negligence of the crew it was not closed. That does not constitute unseaworthiness. We were at that time given to understand that unseaworthiness was not in the case; and, quite consistently with that, at the trial the counsel for the pursuers consented to adjust a special verdict on the footing that there was no such element in it. I cannot conceive that any one is to blame for the omission but the pursuers. They were founding on unseaworthiness, as they tell us now, and it was certainly no part of the defenders' case to see that that was put in the special verdict. Afterwards parties came here for the application of the verdict. The pursuers might even then have applied to have the verdict set aside as having been adjusted on a misapprehension. But at the discussion that then took place it was not alleged on either side that there was unseaworthiness in the case. The question then comes to be, whether the party who was in fault throughout is to pay the expenses? I think in that view that it is only reasonable and just that the defenders should pay these.
The Court pronounced this interlocutor:—
“Apply the verdict found by the jury on 11th January 1878, and in terms thereof decern against the defenders for payment to the pursuers of £2793, 4s. 6d., with interest thereon at 5 per cent. per annum from 14th September 1875 till payment: Find the defenders entitled to the expenses of the first trial and of the discussion on the application of the special verdict: Find the pursuers entitled to the other expenses of the cause, including the expenses of the second trial: Allow accounts of the said expenses now found due to be lodged, and remit to the Auditor to tax the said accounts respectively, and to report; and find no expenses due since the date of the second verdict.”
Counsel for Pursuers—Lord Advocate (Watson)— Balfour— Mackintosh. Agent— John Henry, S.S.C.
Counsel for Defenders— Asher— Jameson. Agents— Webster, Will, & Ritchie, S.S.C.