Scottish Court of Session Decisions

This was a petition presented by George Charles Stewart, merchant, Liverpool, the mortgagee of the ship “British India,” of Glasgow, conform to mortgage in his favour by Wilhelm T. N. Jost, shipping agent, Newport, Monmouthshire, the registered owner of the said ship, dated 12th and registered at Liverpool the 14th October 1882, for recal of arrestments laid on said ship jurisdictionis fundandce causa while lying at Yorkhill Wharf, Glasgow.

The petition set forth that on 28th November 1882 the petitioner entered into possession of the ship by placing a person on board to take charge on his behalf; that the ship had been chartered on 23d September for a voyage from Glasgow to Trinidad; and that at the date of presenting this petition the whole cargo was on board.

The petition further set forth that Messrs Macbeth & Gray, ship chandlers, Glasgow, by virtue of two warrants, dated 12th and 13th December respectively, obtained by them from the Sheriff of Lanarkshire on applications at their instance against Wilhelm T. N. Jost, as owner of the vessel, and Thomas Toft, shipping-clerk, Newport, had arrested the vessel on the above dates. The arrestment on the 12th December was to found jurisdiction; that on the 13th was on the dependence of an action for £73, 19s. 6d. The petitioner set forth that he, as mortgagee in possession, had acquiesced in the lading of the ship, and that unless she was allowed to sail immediately large claims for delay would arise under the charter-party, and that heavy dues were being incurred daily.

The petitioner offered to consign, in the joint names of his agents and Messrs Macbeth & Gray, the sum of £100 as a surrogatum for the ship, without prejudice to the rights of parties— Malcolm v. Cook, December 20, 1853, 16 D. 262.

The respondents Messrs Macbeth and Gray appeared by counsel at the bar, and refused to agree to any consignation which would reserve any preference to the petitioner.

The Court pronounced the following interlocutor:—

“Recal the arrestments of the ship ‘British India,’ formerly of Liverpool, now of Glasgow, and now lying at Yorkhill Wharf there, dated and used at the instance of the said Macbeth & Gray on 12th and 13th December 1882, to the effect of allowing the said ship to proceed on her voyage to Trinidad,

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upon the petitioner consigning in Court the sum of £100 as a surrogatum to the said Macbeth & Gray for the said ship, said consigned sum being subject to the same extent as the said ship to the existing preferable claims and rights of the petitioner as mortgagee of the ship, and in possession thereof, in competition with the said Macbeth & Gray, as these may be ascertained, and decern.”