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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kennedy and Another (Owners of "Welshman") v. Clyde Shipping Co., Ltd (Owners of "Portland") and Others [1908] ScotLR 736 (05 June 1908)
URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0736.html
Cite as: [1908] SLR 736, [1908] ScotLR 736
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SCOTTISH_SLR_Court_of_Session
Page: 736↓
Court of Session Inner House First Division.
v.
Process — Interlocutor — Alteration of Form of Interlocutor.
Facts:
Observed per Lord President—“Where no question is raised as to the right of petitioners,” under the Merchant Shipping Act 1894, “to have their liability limited, and where the ship, as it were, tables its stake, then such expenses as are given against the petitioners over and above the limited fund must be strictly restricted to the expenses of lodging the claims and taking decree, and not extended to any expenses incurred in the competition between the claimants.”
“When an interlocutor is signed and given out to the parties, … if anything is to be said about altering the form of it, it must be said at once.”
The Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), sec. 504, provides—“Where any liability is alleged to have been incurred by the owner of a British or foreign ship in respect of loss of life, personal injury, or loss of or damage to vessels or goods, and several claims are made or apprehended in respect of that liability, then, the owner may apply … in Scotland to the Court of Session, … and that Court may determine the amount of the owner's liability, and may distribute that amount rateably among the claimants, … and may proceed in such manner and subject to such regulations … as to payment of any costs as the Court thinks just.”
David M'Allister Kennedy and John Kennedy, owners of the s.s. “Welshman,” presented a petition under the Merchant Shipping Act 1894, section 504, for limitation of liability arising out of a collision in which the s.s. “Welshman” was in fault.
Claims were lodged by the Clyde Shipping Company, Limited, and others (the owners, officers, and crew of the s.s. “Portland,” the injured vessel), N. Adshead & Son and others (cargo owners), Fletcher Son, & Fearnall, Limited, and others (cargo owners), James Sterling (cargo owner), and Arrols Bridge and Roof Company, Limited, and others (cargo owners).
The First Division on 12th April 1907 appointed consignation of £2596, 16s., with interest at 4 per cent. per annum from the date of the collision, being the whole sum for which on the tonnage of their ship the petitioners were liable. As the claims lodged exceeded the sum consigned, the Court remitted to Mr Richard Clancey to adjust and settle the claims and report thereon. After certain objections to Mr Clancey's report had been successfully maintained by certain of the claimants, the Court on 18th March 1908 pronounced an interlocutor, which after granting warrant to the Accountant of Court to deliver up the consignation receipt, and to the Commercial Bank of Scotland, Limited, to pay to the claimants or their agents the sums to which they had been respectively found entitled, proceeded as follows—“Find the petitioners liable in expenses to the respective claimants, including the expense of the remit to Mr Clancey and the procedure thereunder, and the objections to his report, and remit the accounts thereof to the Auditor to tax and to report.”
The Auditor having lodged his reports, the petitioners objected to various items on the ground that only one set of cargo owners should get full expenses, and argued—Section 504 of The Merchant Shipping Act 1894 left the Court absolute discretion as to expenses, but the rule in Burrell v. Simpson & Company, July 19, 1877, 4 R. 1133, 14 S.L.R. 667, should be followed, and only one set of cargo owners should get full expenses, and the other cargo owners should only get the expenses of lodging their claims and of the appearance to take decree.
The Court continued the case in order to consult the Auditor.
At advising—
Page: 737↓
If this matter had been raised when the decree was given I do not think that the interlocutor would have been pronounced in its present form. Where no question is raised as to the right of petitioners to have their liability limited, and where the ship, as it were, tables its stake, then such expenses as are given against the petitioners over and above the limited fund must be strictly restricted to the expenses of lodging the claims and taking decree, and not extended to any expenses incurred in the competition between the claimants. Here the various accounts were given in, and I find from an examination of them that the way they were treated was this—most of them were passed, but some of them were docked, and one I notice was increased. Now, that seems to me to be clearly competition. But I want to say this, and I hope it will be noted and remembered by the profession—where a discussion has taken place and the Court pronounces an interlocutor following on the discussion, the Court is responsible for that interlocutor. But where there has been no discussion, although the Court is of course technically responsible for the interlocutor, in practice it signs whatever interlocutor is handed up to it. Now, of course, the time is long passed when insuperable difficulties would be raised to the alteration of an interlocutor that had once been signed. But when an interlocutor is signed and given out to the parties it must be noted by the profession that if anything is to be said about altering the form of it, it must be said at once. If this question as to the liability for expenses had been brought up at once, I do not think the Court would have allowed this interlocutor to remain in its present form. But it is far too late to raise the question now when the interlocutor has been allowed to stand and the whole matter has been before the Auditor. I am afraid, therefore, that we can do nothing to give the petitioners the relief they ask for.
The Court pronounced this interlocutor—
“The Lords having heard counsel for the parties on the petitioners' objections to the Auditor's reports on the claimants' accounts of expenses, repel the same, approve of said reports, of consent decern against the petitioners for payment to the various claimants for the taxed amounts of their respective accounts.”
Counsel for the Petitioners— Dickson, K.C.— Spens. Agents— J. & J. Ross, W.S.
Counsel for the Claimants (The Clyde Shipping Company, and for N. Adshead & Son and Others, cargo owners)— Horne. Agents— Webster, Will, & Company, S.S.C.
Counsel for the Claimant (James Stirling)— Dykes. Agent— Dunbar Pollock, Solicitor.
Counsel for the Claimants ( Fletcher, Son, & Fearnall, Limited, and Others)— Murray— F. C. Thomson. Agents— Boyd, Jameson, & Young, W.S.