Scottish Court of Session Decisions

This was a petition presented by the Carron Company, owners of the ss. “Margaret,” for limitation of their liability for damage caused by a collision with the ss. “Clan Sinclair,” under the 54th section of the Merchant Shipping Amendment Act 1862 and the 514th section of the Merchant Shipping Amendment Act 1854.

The Court on 13th December 1884 appointed the petitioners to consign in bank, to await the orders of Court, the sum of £3087, being £8 per ton on 385·87 tons, the gross tonnage of the vessel.

Claims having been lodged for Messrs Cayzer, Irvine & Company, the owners of the “Clan Sinclair,” for the master and seamen of the “Margaret,” and for various cargo — owners, which claims amounted in the aggregate to more than the amount consigned, the Court on 19th March 1885, of consent, remitted to Mr Richards, average adjuster, to consider the claims, “and to assess the amounts due to the respective claimants thereunder.”

Mr Richards having lodged his report, the Court on 18th July 1885 pronounced this interlocutor—“Recal all arrestments used in respect of said collision: Rank and prefer the whole claimants pari passu on the consigned funds for the respective amounts of their claims as the same have been assessed by the reporter: Appoint the claimants Cayzer, Irvine, & Company to lodge in process a scheme of division of said fund, showing the amount due to each claimant in respect of the foregoing finding, ranking, and preference: Find the petitioners Carron Company liable in expenses to the whole claimants; remit the accounts of said expenses to the Auditor to tax and to report.”

The Auditor in taxing the claimants' accounts of expenses, reserved for the determination of the Court “the question of the liability of the petitioners for the expenses incurred under the remit to Mr William Richards, London, ‘to consider the claims lodged for’ the claimants named, ‘and to assess the amounts due to the respective claimants.’”

“ Note.—By the interlocutor of 18th July last the Court ‘Find the petitioners Carron Company liable in expenses to the whole claimants: Remit the accounts of said expenses to the Auditor to tax and to report.’ Two accounts of expenses have been given in, viz., account for Cayzer, Irvine, & Company (that now reported on), and the other for the remaining claimants who have appeared. Both sets of claimants maintain that under this interlocutor they are entitled to the whole expenses incurred by them under the petition. I am humbly of opinion that this contention is not well founded, and that while the whole claimants are entitled to the expense of stating their claims, attending before the Court, obtaining the remit to Mr Richards, and giving effect to his award or report, they are not entitled as in a question with the petitioners to the expenses incurred by them before Mr Richards in adjusting the various claims and assessing the amounts due to the claimants respectively. The proceedings before Mr Richards were not proceedings between the claimants and petitioners, but were truly competitive. The result has been that while the whole claimants other than Cayzer, Irvine, & Company have been successful in supporting their claims with comparatively trifling abatement (£57, 14s. 11d. on the whole amount), the claim of Cayzer, Irvine, & Company has been disallowed to the extent of £627, 0s. 10d. The petitioners stated no objections to the claims before Mr Richards, and have not in any way contributed to or increased the expense of adjustment.”

When the petitioners moved for approval of the Auditor's report, the claimants objected that the finding for expenses in the interlocutor of 18th July 1885 meant the whole expenses properly incurred in the cause. [Lord President—The consigners here stand in much the same position as the raisers of a multiplepoinding, with this exception, that as it is their delinquency which is the cause of the consignation they are liable for the expenses necessarily involved, which include the expense of the claims, but nothing further.] The petitioners ought then to have protected themselves by getting the interlocutor so limited, as was done in the case of Burrell v. Simpson & Company, November 24, 1876, 4 R. 177.

Page: 82↓