Scottish Court of Session Decisions

This case is reported ante ut supra.

On 18th February 1903 a collision occurred between the s.s. “Olga” and the s.s. “Anglia.” Cross actions of damages were brought, and the Court held both ships to blame, and the loss of the owners of the “Anglia” was found to be £14,687, and that of the owners of the “Olga” £387, 10s. 11d., the total loss thus being £15,074, 10s. 11d. Each ship was debited with half that sum, and after crediting the “Olga” with the amount of her loss, the Court decerned against her for the balance, viz., £7149, 14s. 7d. Thereafter the owners of the “Olga” petitioned under sections 503 and 504 of the Merchant Shipping Act 1894 for limitation of their liability. The owners of the cargo on board the “Anglia” lodged a claim for one-half of the value of the cargo which had been lost, and disputed with the owners of the “Anglia,” who claimed to rank for the full amount of their decree, the correctness of the value of the “Anglia” as found by the Court in the previous proceedings, and claimed, and eventually were held to be entitled to, reopen the question of her value.

[Up to this point the case is reported ante ut supra.]

Thereafter both claimants moved for the expenses of lodging their respective claims and relative procedure in the limitation proceedings. They argued that the limitation proceedings were an advantage to the petitioners as preventing the expense of defending separate actions, and that it was settled that the petitioning ship was liable for the expenses of lodging claims. The cargo owners, alternatively, argued that in any case the fault of the “Anglia” did not affect them. Reference was made to Burrell v. Simpson & Company, July 19, 1877, 4 R. 1133, 14 S.L.R. 667; Carron Company v. Cayzer, Irvine & Company, November 3, 1885, 13 R. 114, 23 S.L.R. 81; and Marsden on Collisions, p. 161.

The petitioners opposed the motion, and argued that the rule that the petitioning ship paid the expenses of lodging claims did not apply where both ships were in fault, and that in the cases cited only one ship had been in fault. They referred to Miller and Others v. Powell and Others, July 20, 1875, 2 R. 976, at 979.

Lord Justice-Clerk—Whatever might have been our opinion if this question were now before us for the first time, I think the matter is practically settled by authority in the case of the Carron Company ( 1885, 13 R. 114). The Lord President observes that a party who has presented a petition for limitation of liability is bound to pay the expenses of the procedure, for the reason that the procedure is rendered necessary by the fact of the collision occasioned through his fault. In the present instance the collision was occasioned by the fault of the petitioners' vessel and the fact that the “Anglia” was also to blame does not seem to me to matter at all in the question before us. The owners of the “Olga” appeal by petition under Act of Parliament in order to limit their liability, and to save themselves from actions which would be

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raised against them, and to which they would otherwise have had no defence. In such circumstances I think it is perfectly right that they should pay the expense of claims lodged in the petition.