Scottish Court of Session Decisions

The Sea Fisheries Act 1883 (46 and 47 Vict. cap. 22), sec. 20 (2) enacts—“Any fine or compensation adjudged under this Act may be recovered in the ordinary way, or, if the Court think fit so to order, by distress, or poinding and sale of the sea fishing-boat to which the offender belongs, and her tackle, apparel, and furniture, and any property on board thereof or belonging thereto, or any part thereof.” …

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The Sea Fisheries (Scotland) Amendment Act 1885 (48 and 49 Vict. cap. 70), enacts:—Section 1—“This Act… shall be read and construed along with the Sea Fisheries Act 1883.”

Section 8—“Where any offence is committed … it shall be competent for the person whose property has been injured to give notice in writing to the person committing such offence, and to the sheriff clerk, that at the trial of said offence the sheriff will be called upon to consider and dispose of the question of damages, and in such case the evidence led at said trial shall be evidence for the consideration of the Sheriff on the question of damages, and the sheriff at the conclusion of the said trial shall proceed to consider and dispose of the question of compensation to the injured party, … and shall, after hearing parties, give decree as in an ordinary action before the Sheriff Court.”

The Ocean Steam Trawling Company, Limited, having its registered office in Aberdeen, owners of the steam trawler “Oceana,” of Aberdeen, brought this suspension and interdict against the Geestemunde Herring and Hochsee fischerei Company, owners of the fishing-boat “Harald,” of Geestemunde, Germany, and Charles Wilson, W.S., Procurator-Fiscal of the Sheriff Court of Aberdeen, for any interest he might have.

The complainers craved suspension of an interlocutor or decree dated 29th May 1903, pronounced by the Sheriff of Aberdeen, Kincardine, and Banff, in a complaint at the instance of the respondent Charles Wilson against Arthur Munzer, a trawl fisherman on board the complainers' steam trawler “Oceana.”

Prior to the trial of the complaint against Munzer in the Sheriff Court, a notice that at the trial the Sheriff would be called upon to dispose of the question of the damage done to the nets and gear of the fishing-boat “Harald,” and the compensation to be awarded therefor, was served by the Geestemunde Herring and Hochseefischerei upon the sheriff-clerk and Munzer, in terms of section 8 of the Sea Fisheries (Scotland) Amendment Act 1885.

The interlocutor or decree of the Sheriff, which was sought to be suspended, was inter alia, in the following terms:—“Finds (1) that on 22nd January 1903 Arthur Munzer was convicted of a contravention of the Sea Fisheries Act 1883, section 4 ( a) and article 19 of the schedule therein referred to: (2) That in terms of section 8 of the Sea Fisheries (Amendment) Scotland Act 1885, proceedings were duly taken for ascertainment of the damage caused by the said contravention: (3) That the evidence for that purpose was led separately from the evidence at the trial on 22nd January and 26th February: Finds the petitioners the Geestemunde Herring and High Seas Fishery Company entitled to compensation for the damage done to their nets, gear, and other property; assesses the same at £435, 4s.: Finds the respondent Arthur Munzer liable to the petitioners therefor, and decerns against him for payment: Grants warrant for recovery of the said sum of £435, 4s. by distress or poinding and sale of the said sea fishing-boat ‘Oceana’ and her tackle, apparel, and furniture, and any property on board thereof or belonging thereto, or any part thereof, in terms of section 20 (2) of the Sea Fisheries Act 1883.”

The complainers stated, inter alia—(Stat. 6) “The said Sheriff by the said decree acted illegally and unwarrantably in granting warrant for recovery of the said sum of £435, 4s. by distress or poinding and sale of the said trawler ‘Oceana,’ and in any event the said interlocutor is inept and invalid in so far as the said warrant is concerned. There is no provision made by the Sea Fisheries (Scotland) Amendment Act 1885 for recovering any damages that may be assessed under section 8 of that Act, by distress or poinding of the boat to which the said Arthur Munzer belonged. No notice was given to the complainers as the owners thereof that any application would be made to have the ‘Oceana’ distrained, and the complainers were not parties to the proceedings. Section 20 (2) of the Sea Fisheries Act 1883, referred to in the said interlocutor or decree, has no application to an award of damage under section 8 of the Act of 1885.”

The respondents in answer averred that the whole proceedings were regular and proper and in conformity with the Acts of Parliament, and that the complainers were represented at the diets before the Sheriff when the amount of compensation to be paid was determined.

The complainers pleaded in law, inter alia—“(1) The warrant contained in the said last-mentioned interlocutor or decree pronounced by the said Sheriff for recovery of the said sum of £435, 4s. by distress or poinding and sale of the ‘Oceana’ and her tackle, apparel, and furniture being illegal and not authorised by the said statutes, the said interlocutor or decree should be suspended and the complainers found entitled to expenses.”

On 25th November 1903 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor refusing the note of suspension and interdict.

Opinion.—“This is a short question and may be shortly disposed of.

A decree pronounced by the Sheriff of Aberdeenshire on 29th May 1903 under the Sea Fisheries Act 1883 and the Sea Fisheries Amendment (Scotland) Act 1885 is here sought to be suspended on the ground that the warrant which it contains for recovery of a sum of £435, 4s. by distress or poinding and sale of the steam trawler ‘Oceana’ belonging to the complainers, and her tackle, apparel, and furniture, is illegal and not authorised by the statutes, in respect that section 20 (2) of the Act of 1883, which allowed that mode of recovery, is impliedly repealed by the Act of 1885.

It is true that section 15(1) of the Act of 1883 by which a sum of compensation for injury to person or property might be awarded by the Court trying an offence under this statute in addition to the fine

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imposed for the offence was repealed by section 8 of the Act of 1885. In place of the sub-section thus repealed a new and more elaborate provision was substituted, requiring notice in writing of the intention to claim damages, regulating the mode of proof, and concluding with the words that decree should be given ‘as in an ordinary action before the Sheriff Court.’ The question is whether this new provision is inconsistent with, and therefore must be held to repeal section 20 (2) of the Act of 1883, by which it is enacted that ‘any fine or compensation adjudged under this Act may be recovered in the ordinary way, or if the Court thinks fit so to order, by distress or poinding and sale of the sea fishing-boat to which the offender belongs, and her tackle, apparel, and furniture,’ and so on. There being no express repeal of this last sub-section, it is only on the ground of some absolute inconsistency between it and section 8 of the Act of 1885 that repeal could be implied, for the Act of 1885 (section 1) declares that it shall be read and construed along with the Act of 1883, the result of which is that every part of each of the Acts must be construed as if it had been contained in one Act, ‘unless there is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified something found in the earlier Act.’ These are the words of Lord Selborne in a case before the Privy Council in 1883, reported 8 App. Ca. at p. 727.

I do not find any such manifest discrepancy, nor any discrepancy at all. If the procedure of 1883 had provided for notice to the owners, and that had been omitted in the procedure of 1885, I could have understood the argument for implied repeal, but the only provision for notice to anybody is contained in the later Act. The provision that decree shall be given as in an ordinary action before the Sheriff Court adds something to the provision in the earlier Act that the compensation adjudged ‘may be recovered in the ordinary way,’ but it is in no sense inconsistent with the discretion given to the Sheriff to allow recovery by distress or poinding and sale. It seems to me, therefore, that the proceedings in the Sheriff Court were quite regular, and that the note of suspension must be refused.”

The complainers reclaimed, and argued—The warrant for recovery by distress or poinding and sale of the “Oceana” and her tackle was incompetent. Section 15 (1) of the Act of 1883 was repealed by section 8 of the Act of 1885, and the whole provisions now in force as to the recovery of compensation were those of section 8 of the Act of 1885, which contemplated only that decree should be given “as in an ordinary action before the Sheriff Court.” The provisions in section 8 of the Act of 1885 were inconsistent with section 20 (2) of the 1883 Act, and, accordingly, though section 20 (2) was not expressly repealed, it must be taken as repealed by reason of the “manifest discrepancy”— per Lord Selborne in Canada Southern Railway Company v. International Bridge Company, 1883, 8 App Cas 723 at p. 727; Lord Advocate v. Sprot's Trustees, February 1, 1901, 3 F. 440, per Lord M'Laren, 38 S.L.R. 318. It was noteworthy in construing the effect of the later Act on the earlier Act, that the 1885 Act had reference only to Scottish Sea Fisheries, whereas the 1883 Act dealt generally with British sea fisheries.

The respondents argued—It was expressly provided by section 1 of the 1885 Act that its provisions should be read and construed along with the 1883 Act. Reading section 8 of the 1885 Act with section 20 (2) of the 1883 Act, there was no “manifest discrepancy.” That being so, and there being no repeal of the provisions of section 20 (2) of the 1883 Act, the Sheriff continued to have a discretion to allow recovery by distress or poinding and sale— Jamieson v. Wilson, June 8, 1901, 3 Adam 395, 3 F. (J.C.) 90, 38 S.L.R. 808.

At advising—