Scottish Court of Session Decisions

John S. Boyle, trawl owner, Aberdeen, owner of the steam trawler “Glenogil,” pursuer, brought an action in the Sheriff Court at Aberdeen against Fred. Olsen, Christiania, Norway, registered owner of the steamship “Balduin,” defender, for £5000 as salvage remuneration, loss, and damage, in respect of salvage services rendered by the “Glenogil” to the “Balduin” in the North Sea on or about 28th and subsequent days of November 1911. The case was remitted to the Court of Session ob contingentium on March 9, 1912.

The Lindsey Steam Fishing Company, Limited, Grimsby, owners of the trawler “Lacerta,” pursuers, brought an action in the Court of Session against Actieselskabet Bonheur, Christiania, owners of the “Balduin,” defenders, for payment of £500 as remuneration for salvage services rendered to the “Balduin,” and compensation for loss and damage suffered by the “Lacerta.”

In answer to signals of distress shown by the “Balduin,” the “Glenogil” came to her rescue, and, after certain manoeuvres on the part of both vessels, the “Glenogil's” hawsers were got on board the “Balduin” and made fast, and thereafter the “Glenogil” proceeded to tow her to Aberdeen. Further assistance in the towage was given by the steam trawler “Lacerta,” and Boyle, whose claim included a sum for the “Lacerta's” towage, averred that

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the “Lacerta” acted on an arrangement with the “Glenogil,” and that the services rendered by the “Lacerta” were not of the nature of salvage services but only of towage. The Lindsey Steam Fishing Company, Limited, on the other hand, averred that the “Lacerta's” services were salvage services.

On 21st May 1912 the Lord Ordinary ( Dewar) conjoined the actions. The defenders made joint tender to cover the claims in both actions.

The interlocutor in the action at the instance of the Lindsey Steam Fishing Company, Limited, was in these terms—“The Lord Ordinary closes the record on the summons and defences … and continues the cause: Conjoins herewith the action at the instance of John S. Boyle and others against Fred. Olsen in this day's roll: and grants leave to reclaim.”

The pursuer Boyle reclaimed, and argued—(1) Conjunction of actions was only allowed in Scots practice where there was identity of parties or subject-matter— Duke of Buccleuch v. Cowan, &c., February 23, 1866, 4 Macph. 475, per Inglis, L. J.-C., at p. 480, 1 S.L.R. 141; November 30, 1876, 4 R. (H.L.) 14, 14 S.L.R. 189. In this case there was not only no identity but conflict between the pursuers. By English procedure “consolidation” was allowed, and parties with conflicting interests were allowed to cross-examine each other's witnesses. But there was no such practice in Scotland. (2) English practice allowed joint tender, but it was followed by apportionment between competing claimants—Roscoe, Admiralty Practice, pp. 328, 329, 370. Joint tender should not be adopted from English law without also adopting the English practice of apportionment. It did not follow that where actions were consolidated joint tender was competent, and it might be competent where actions were not consolidated—“ Strathgarry,” [1895] P 264, per Bruce, L. J., at p. 268; “ Jacob Landstrom,” 1878, 4 PD 191; “ The Lee,” 1889, 6 Aspinall's Maritime Cases, 395. As to apportionment of the tender there was no analogy to be found in the process of multiplepoinding, for in this case the fund in medio was not fixed. The risks undergone by the two ships were entirely different—“ Clifton,” 1834, 3 Haggard's Admiralty Reports, 117; “Vulcan v. “Berlin,” July 6, 1882, 9 R. 1057, per Lord Deas, at p. 1062, 19 S.L.R. 790.

The above argument was adopted by the owners of the “Lacerta.”

The defenders argued—(1) The Court had always conjoined actions where it was convenient and made for economy, and that even where there was a conflict of interest between pursuers— Wilson v. Rapp, 1909, 2 S.L.T. 295. “Consolidation” of actions had been found convenient in the English Admiralty Courts. In “ The Gantock Rock “(June 19, 1900, 2 F. 1060, 37 S.L.R. 804), two salvage actions were conjoined by consent, and the pursuers cross-examined each other's witnesses. (2) The joint tender made should be allowed without apportionment; it was for the pursuers to determine how it should be divided. What was due for salvage could be determined and then it could be apportioned—Kennedy, Civil Salvage, p. 184.

At advising—