Scottish Court of Session Decisions

The Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60) enacts, section 503—“The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity; (that is to say) …( d) Where any loss or damage is caused to any other vessel or to any goods, merchandise, or other things whatsoever on board any other vessel by reason of the improper navigation of the ship; … be liable to damages beyond the following amounts; (that is to say) … (ii) In respect of loss of or damage to vessels, goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, an aggregate amount not exceeding eight pounds for each ton of their ship's tonnage.’ Section 504—‘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 or damage to vessels or goods, and several claims are made or apprehended in respect of that liability, then the owner may apply in England and Ireland to the High Court, or 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 several claimants, and may stay any proceedings pending in any other Court in relation to the same matter, and may proceed in such manner, and subject to such regulations, as to making the persons interested parties to the proceedings, and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner, and as to payment of any costs, as the Court thinks just.”

John Hay and others, the registered owners of s.s. “The Countess,” petitioners, presented a petition for stay of actions and limitation and distribution of liiibility. Answers were lodged for Andrew M. Jackson & Company, respondents, as representing the owners of the cargo on board the “Phoenicia.”

The petitioners averred — “That the petitioners are the registered owners of the steamship ‘The Countess.’ of Glasgow, which steamer is of the net register tonnage of 234 74 tons, and her engine space is 323–79 tons, making a total tonnage for the purposes of this petition of 558·53 tons.… That on or about 4th March 1911, while ‘The Countess’ was proceeding on a voyage from Granville to Lydney, in the Bristol Channel, she came into collision with the steamship ‘Phoenicia,’ of Whitby, with the result that both steamers were damaged. No loss of life or personal injury were caused by the said collision.… That the said collision occurred, and the resulting damage was occasioned, without the actual fault or privity of the petitioners, and their liability, which is admitted, for damage caused by the said collision is limited to £8 per ton on said 558·53 tons or £4468, 4s. 10d., in respect of damage to vessels, goods, merchandise, or other things, other than damage for loss of life or personal injury.

“That claims have been intimated on behalf of the International Line S.S. Company, Limited, c/o C. Marwood, shipowner, Whitby, the owners of the s.s. ‘Phoenicia,’ for whom Messrs Thomas Cooper & Company, solicitors, London, act, and by the owners of the cargo on board the ‘Phoenicia,’ whose names have not yet been disclosed, but for whom Messrs Andrew M. Jackson & Company, solicitors, Hull, are acting, for payment of sums which together amount to considerably in excess of £8 per ton as above mentined. Other

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claims may arise which are at present unknown to the petitioners in respect of said collision for damages otherwise than in respect of loss of life or personal injury.”

On 7th April 1911 the Lord Ordinary officiating on the Bills ( Skerrington) pronounced the following interlocutor (after ordering intimation and service) — “And appoints all parties having or pretending to have any right or claim on the fund referred to in the petition to lodge answers thereto, if so advised, within fourteen days after such intimations and service; and further, the petitioners having consigned in bank the sum of £4500 sterling, grants an interim order staying all suits or actions pending or which may hereafter be instituted in this or any other Court in relation to the petitioners' liability as owners of the steamship ‘The Countess,’ in respect of the collision mentioned in the petition.”

The respondents averred, inter alia — “The respondents are solicitors in Hull, and were instructed to act for the owners of cargo on board the ‘Phoenicia,’ and on 5th April 1911 they issued a writ in the High Court of Justice, Admiralty Division in London, against ‘The Countess’ for the damage sustained by the cargo on board the ‘Phoenicia,’ in consequence of the collision mentioned in the petition. The owners of the ‘Phoenicia,’ through their solicitors Messrs Thomas Cooper & Company, of 21 Leadenhall Street, London, issued a writ against ‘The Countess’ on 6th March 1911. By the law of England the issue of a writ submits to the cognisance and jurisdiction of the English Courts the subject-matter of the writ. Accordingly the liability of the petitioners in respect of the collision, which is admitted in the petition, and all questions arising out of same so far as affecting the owners of the ‘Phoenicia’ and the owners of the cargo on board the ‘Phoenicia,’ were submitted to the English Courts prior to the date of presenting this petition.… The collision occurred within the territorial waters of England. The collision gave rise to a right, on the part of persons sustaining damage by the collision, of an action, inrem, against ‘The Countess.’ In these circumstances the respondents oppose the petition on the ground that the petitioners' application is improperly brought before the Court of Session, and separation that the Court of Session is not a convenient forum for the trial of the claims arising out of the collision in question, and for the limitation of the petitioners' liability.… With regard to the question of the convenience of the Court of Session as a forum for dealing with these claims, the respondents desire to point out that in the event of any competition in regard to the distribution of the limitation fund, the expense of the proof of their claims would fall upon the claimants, and the owners of cargo might be forced to bring witnesses from Bristol and London to Edinburgh in order to prove their claims.”

Argued for the petitioners—(1) There was no incompetency in presenting the petition in the Court of Session, even though writs had been issued in England. Even if decree were obtained in the English processes, the value of the claims would still have to be determined in the proceedings under the petition — van Eijck & Zoon v. Somerville, July 20, 1906, 8 F. (H.L.) 22, 43 S.L.R. 841. The natural meaning of section 504 of the Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60) was that the owner of a vessel registered in Scotland might apply to the Court of Session. (2) There was nothing in the circumstances to found the plea of forum non conveniens. The procedure was analogous to that in a inultiplepoinding per L.P. Inglis in Rankine &c. v. Rasehen, &c., May 19, 1877, 4 R. 725, at p. 728, 14 S.L.R. 476, at p. 477, and the plea of forum non conveniens put forward in such a process by a claimant who resided in England would never be sustained.

Argued for the respondents — (1) The natural construction of section 504 was that the application should be made in the Court of the country where the collision occurred, and where the claimants resided. The practice, however, was no doubt against that view. (2) In view of the fact that the only probable claimants were resident in England, and that all the witnesses would have to be brought from England, the Court of Session was not a convenient forum.