Scottish Court of Session Decisions

An action was raised by Mrs Guthrie or Craig against Messrs Brunsgaard, Kjosterud & Company, owners, and Klaus Olsen, master of the s.s. “Nordlyset,” concluding for damages in respect of the death of her husband Alexander Craig, who was killed while engaged in unloading the vessel. The defenders reside in Norway, and accordingly on 5th June 1895 the pursuer used letters of arrestment jurisdictionis fundandœ causa attaching the vessel “Nordlyset,” which was at that time lying at Glasgow.

No further steps were taken by the pursuer while the ship lay there. She left before the end of June. On 30th August 1895 the summons in the present action was signeted.

The defenders maintained that owing to the delay in raising the action the arrestments used by the pursuer had become inoperative, and pleaded, inter alia, “No jurisdiction.”

The Lord Ordinary ( Kincairney) on 26th December repelled this plea.

Opinion.—“The defenders in this case plead ‘no jurisdiction’ and it was conceded that this plea depends on the validity of the arrestments of the steamship “Nordlyset” used to found jurisdiction. The arrestment was used on 5th June 1895, when the ship was in Scottish waters, and near Glasgow, and the action was not signeted until 30th August, that is, after an interval of eighty-six days. It is argued that by that time the arrestment had become inoperative. Between these dates and some time in June the ship had left and had gone out of the country. The question seems not without difficulty, but I am of opinion that the plea ought to be repelled, and that the jurisdiction of the Court should be sustained.

It is settled that when objection is taken to the jurisdiction of the Court in a question of the kind raised in this action, the question is, whether there was jurisdiction at the date of citation— Stewart v. North, July 14, 1890, 17 R. (H.L.) 63. It is not well settled whether an arrestment jurisdictionis fundandœ causa creates a nexus on the object arrested—see Malone v. Caledonian Railway Company, May 28, 1894, 11 R. 853, and cases and dicta there referred to. But if it does not, then the validity of the arrestment to create jurisdiction cannot depend on the continuance of the thing arrested within the country; and if it does create a nexus, then I think that the effect of the arrestment on the liability of the defenders to answer in the courts of Scotland cannot be destroyed by the defenders' voluntary disregard of the arrestment. Accordingly it was not argued that the efficacy of the arrestment in founding jurisdiction was destroyed by the ship leaving the country before citation on the summons. The argument was to the effect that the arrestment was lost by delay. It was urged that it was unreasonable to hold a foreigner liable to answer in the Scotch courts when no step was taken to follow up the arrestment. The defenders supported their argument by two analogies—the first, the analogy of jurisdiction in virtue of the defenders' personal presence in the territory; and the second, the analogy of arrestment in security on the dependence of an action. It is our law that residence of a party in the territory for forty days will give the Scotch courts jurisdiction to try ordinary actions against him not involving questions of status. That is customary law. It is also the law that if a man be absent from his usual place of residence for forty days he falls to be cited edictally—Act of Sederunt, December 14, 1805; Joel v. Gill, June 10, 1859, 21 D. 929. It was argued that in like manner the force of an arrestment to found jurisdiction should fall in forty days. But I see no ground for reasoning from a rule settled by custom, or a rule settled by Act of Sederunt, to a case wherein neither custom nor municipal regulation can be appealed to. It was further pleaded that, if that argument could not be supported, the rule applicable to arrestments on the dependence should be adopted, viz., that the arrestment should fall unless the warrant of citation on the summons was executed within twenty days after the date of the execution of the arrestment—1 and 2 Vict. cap. 114, sec. 17. But it was not maintained that the provisions of the Personal Diligence Act applied to arrestments used to found jurisdiction; and it is impossible to extend statutory enactments to analogous cases.

It was argued that unless some limitation in point of time were admitted, it would follow that an arrestment to found jurisdiction would subsist for forty years, or possibly beyond that. But that does not appear to me to be a necessary consequence. For it may, perhaps, be that jurisdiction would not be sustained on the ground of an arrestment if there was clearly unreasonable delay in following it out, such as might warrant the inference

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that it had been abandoned. On this point I was referred to a judgment by Lord Stormonth Darling in Jacobo v. Scott, February 2, 1895, shortly noticed in 2 Scots Law Times 458, where jurisdiction in an action raised on 13th September 1894 was sustained in respect of arrestments used on 12th July 1894, it being held that there had been no undue delay; and in this case there are no averments inferring undue delay.

Farther, it might be maintained that the Statute 1669, cap. 9, and the 22nd sec. of the Personal Diligence Act, applies to arrestments used to found jurisdiction, and if so, they would prescribe in three years. It may be worthy of notice that the hardship to a defender is not so great as is represented, because an arrestment jurisdiction is fundandœ causa can, I apprehend, be loosed on caution judicio sisti—see Juridical Style Book, 2nd ed., vol. iii. 564, and 3rd ed., vol. iii. 325; Carlberg v. Borgesson, November 26, 1877, 5 R. 188, per Lord President Inglis, at p. 192. Now, by the ordinary form of a bond of caution judicio sisti the obligation of the cautioner is limited to the period of six months— Herries v. Lidderdale, March 7, 1755, M. 2044; Bell's Pr., sec. 275. It appears, therefore, to be within the power of a foreigner subjected to arrestment to found jurisdiction to force on the action within six months. On the whole, I think that the defenders' objection to the arrestments on the ground of undue delay fails, and that as that is the whole ground of objection to the jurisdiction the plea of no jurisdiction must be repelled.

It is averred that the defenders Brunsgaard, Kjosterud, & Company are not owners of the steamship ‘Nordlyset,’ but yet it was conceded that the action was competently laid against the master of the ship, and through him, against the true owners, if there was jurisdiction. The action is further said to be irrelevant, but the averments appear sufficient to entitle the pursuer to lay her case before a jury.

I am therefore of opinion that the plea of ‘no jurisdiction’ must be repelled, and that the pursuer must be allowed to proceed with the action.”

The defenders reclaimed, and argued—There had been undue delay in following up the arrestment by raising an action. This kind of arrestment did not lay a nexus upon the subject arrested. Its effect was merely to create a personal bar against a defender pleading “no jurisdiction”— Cameron v. Chapman, March 9, 1838, 16 S. 907. Accordingly, while there was no authority as to the duration of the jurisdiction conferred by this arrestment, it ought not to put a foreigner in a worse position than a domiciled Scotsman, by holding him liable to answer a summons at any time thereafter. There should be some reasonable limit within which a person using arrestment was bound to follow up his arrestment by serving a summons—a reasonable limit would be the period of 40 days, during which a domiciled Scotsman retained his domicile after leaving the country, or the period of the duration of arrestment on dependence, viz., 21 days. The Lord Ordinary was wrong in saying that the rule to be applied here was not analogous to the customary rule by which the former period of 40 days was fixed, for this was essentially a case where the period should be determined by custom. His reasoning with regard to its being possible to loose this arrestment by finding caution, and that accordingly there was no hardship, was based upon the false assumption that it created a nexus.

Argued for respondent—The arrestment was admittedly a valid one, and it lay upon the defenders to show that it had ceased to be so. There had been no undue delay here in raising the action. In the case of Jacobo v. Scott, January 30, 1895, 2 S.L.T. 456, the Lord Ordinary had upheld the arrestment when there was an interval of two months between the arrestment and the raising of the action, while in White v. Spottiswoode, June 30, 1846, 8 D. 952, it appeared from the session-papers that there ad been an interval of two years.— Longworth v. Hope, July 1, 1865, 3 Macph. 1049, at 1055. The analogies drawn by the defenders failed. The rule in arrestments on dependence was a statutory enactment, which could not be extended to a different class of arrestments, differing essentially in respect that they created no nexus. The rule that 40 days' non-residence terminated the jurisdiction was based on custom which could not be applied to a totally different procedure.

At advising—