Scottish Court of Session Decisions

This was an action raised against Mr Galway, corn merchant, Leith, by one of his creditors, for the amount due in respect of certain goods furnished in the ordinary course of trade. Mr Galway had left this country for Germany shortly before the date of application, without making any provision for his debts, and a yacht which belonged to him was lying in Leith Roads. The creditor having obtained a warrant in the Bill Chamber in the ordinary terms, authorising the arrestment of maritime subjects and the dismantling of vessels, on the dependence of his action arrested the yacht without dismantling her; but the captain, in the face of the arrestment, threatened, in obedience to instructions given to him by Mr Galway, to take the yacht to Germany. Thereupon an application was made to the Bill Chamber for a warrant to bring the vessel into port, and thereafter to dismantle her. In making this application the pursuer founded

Page: 893↓

on the opinion expressed by Lord Shand in the case of Carlberg v. Borjesson, decided by the First Division of the Court of Session in the year 1877. There the Court held that the usual warrant to arrest and dismantle did not authorise the messenger to bring the vessel back to port after she had sailed. But Lord Shand indicated an opinion that a warrant to bring a vessel into port while she was still within the jurisdiction of the Court, might, on a special statement, be granted by the Judge Ordinary. In the present case, a special statement having been made that the captain was about to obey the instructions of his employer and to sail with the yacht to Germany, in disregard of the arrestment, Lord Shand gave effect to his opinion formerly expressed, and granted a warrant to bring the yacht into port in order that she might there be dismantled. His Lordship held that under the Admiralty Act, 1 William IV. chap. 69, sec. 21, the Lord Ordinary on the Bills has this power in vacation. The section of the Admiralty Act referred to provides that “the High Court of Admiralty be abolished, and that hereafter the Court of Session shall hold and exercise original jurisdiction in all maritime civil causes and proceedings of the same nature and extent in all respects as that held and exercised in regard to such causes by the High Court of Admiralty before the passing of this Act; and all applications of a summary nature connected with such causes may be made to the Lord Ordinary on the Bills.”

His Lordship in granting the application stated his opinion that the Sheriff as Judge Ordinary was entitled in similar circumstances to grant such warrants where the defender is on any ground subject to the jurisdiction of the Sheriff.