Scottish Court of Session Decisions

This was an action by the builders of a vessel to recover from the purchasers a sum alleged to be still due for the cost of the vessel. The total price was to be £12,550. The defenders made counter claims of damage, and it was proved to have been agreed by the parties in the course of their correspondence that the vessel should be retained by the defenders, subject to all claims of damage for breach of contract. It was also agreed that these claims should be pleadable, if well founded, by way of compensation. The carrying capacity of the vessel, according to the contract, was to be 470 tons (including 70 tons in bunkers), and the defenders maintained that there was a deficiency in carrying capacity It was proved that there was such deficiency, and that it amounted to 25 tons. There was a dispute as to the manner in which damages thereby arising should be estimated, it being maintained (1) that the proper mode of assessing it was by estimating that the ship would earn less than if she had been of the proper capacity by the number of tons she was short, and then multiplying that deficiency by the number of years which the vessel might be expected to last; or (2) by the method adopted by the Lord Ordinary in the following passage of his note:—“Various modes of calculating the damage are suggested by the defenders' witnesses, but that which most commends itself to my mind is to deduct from the total price a sum proportional to the difference between the actual and stipulated weight-carrying capacity of the vessel [470: 25:: £12,550: the damage to be ascertained] which gives as the result the sum of £667, 15s., which I propose to allow under this head.”

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* Decided 19th July 1878.

His Lordship accordingly gave effect in the interlocutor to the view thus stated.