Scottish Court of Session Decisions

In October 1910 Mackie, Koth, & Company, coal exporters and shipping agents, Leith, raised an action in the Court of Session against Alfred Christensen, shipowner, Copenhagen, as managing owner of the s.s. “Sirius” of Copenhagen, and as an individual. To found jurisdiction against him, and on the dependence of the action, they arrested in the hands of Macpherson & M'Laren, Limited, Grangemouth, two sums of money amounting in all to £600, “due and addebted by them” to the defender.

Dampskibselskabet “Nordsoen” brought a petition for recall of the arrestments, averring, inter alia, “that the said Alfred Christensen is now managing director of the petitioning company. That the petitioners were not owners of the s.s. ‘Sirius’ at the time when the debt alleged to be due by the said Alfred Christensen, as managing owner thereof or as an individual, was contracted, and never have owned that vessel. The petitioners understand that the ‘Sirius’ belonged to the Dampskibselskabet ‘Urania.’.… .That the petitioners are the registered owners of the s.s. ‘Kronprins Frederick,’ and that that vessel arrived at Grangemouth on 22nd October 1910, and there discharged her cargo, the consignees entitled thereto taking delivery thereof. The whole freight due in respect of said cargo belongs to the petitioners, and the said Alfred Christensen has no right or title thereto. That on 25th October 1910 the said Mackie, Koth, & Company, to found jurisdiction, and on the dependence of the said action against the said Alfred Christensen, used arrestments in the hands of Macpherson & M'Laren,

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Limited, Forth Saw Mills, Grangemouth, receivers of the cargo of the s.s. ‘Kronprins Frederick,’ arresting thereby freight to the extent of £600 due to the petitioners by the said receivers. These arrestees refuse to pay to the petitioners the freight so attached.”

Mackie, Koth, & Company lodged answers, in which they denied that the petitioners had any interest in the arrestments.

Argued for petitioners—The arrestments should be recalled. It had been decided that where a ship was arrested which did not belong to the debtor, the shipowner was entitled to have the arrestment recalled— Duffus & Lawson v. Mackay and Others, February 13, 1857, 19 D. 430; Grant v. Grant, December 14, 1867, 6 Macph. 155, 5 S.L.R. 119; Schulz v. Robinson & Niven, December 5, 1861, 24 D. 120. Freight followed the ownership of the vessel; the petitioners therefore were entitled to recall. There was a presumption that the hire of a ship went to the owner. The case of Brand v. Kent, November 12, 1892, 20 R. 29, 30 S.L.R. 70, relied on by the respondents, was inapplicable. At all events the petitioners were entitled to a proof of their averments.

Argued for respondents—A third party was not entitled to obtain the recall of arrestments on the dependence on the ground that the subjects alleged to have been arrested belonged to him— Brand v. Kent ( sup. cit.); Vincent v. Chalmers & Company's Trustee, November 2, 1877, 5 R. 43, 15 S.L.R. 27. The case of Duffus & Lawson v. Mackay ( sup. cit.) was inapplicable, for in the case of ships the register was conclusive as to ownership. A multiplepoinding was the appropriate process for determining to whom the sums in question belonged. A decision binding upon all parties would thus be obtained. Esto that the ship and freight belonged to the petitioners, that did not entitle them to the recall of a general arrestment of sums of money; there was no arrestment of freight as such.