Scottish Court of Session Decisions

On 30th April 1913 the Clan Line Steamers, Limited, pursuers, brought an action against the “Earl of Douglas” Steamship Company, Limited, defenders, for recal of arrestments.

On 24th April 1913 the Earl of Douglas Steamship Company, Limited, brought an action against the Clan Line Steamers, Limited, for £1400 damages in respect of their s.s. “Earl of Douglas” being, as they alleged, run into by the defenders' s.s. “Clan Ogilvy” while she, the “Earl of Douglas,” was at anchor in the harbour of Newcastle N.S.W., and separatim for “declarator that the pursuers have a lien over

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the said s.s. ‘Clan Ogilvy’ for the damage so sustained, and for warrant to sell the said s.s. ‘Clan Ogilvy’ on said lien being declared, and to apply the proceeds in satisfaction of said lien towards the payment of said sum of £1400, being the loss and damage sustained by the pursuers.” The crave of the initial writ was as follows:—“Therefore the pursuers crave the Court to decern against the defenders for payment to the pursuers of the sum of £1400, with interest thereon at 5 per cent. per annum from the date of citation till payment, and meantime to grant warrant to arrest on the dependence, and separatim to find and declare that the pursuers have a lien over the said s.s. ‘Clan Ogilvy’ for said damage; to find the defenders liable in the expenses of this process, and on said lien being declared, to grant warrant for the sale of said ship at the sight of such person as the Court may appoint, and to appoint the free proceeds of sale after deducting the expenses of the said ship from the date of her arrestment, the harbour dues and other necessary charges, the expenses of sale, and the expenses of this process, to be paid to the pursuers to be applied towards payment of said sum of £1400, any balance thereafter remaining to be paid to the defenders, or dealt with in such other way as the Court may find just; and meantime to grant warrant to arrest on the dependence.” [The words in italics were added by way of amendment at the hearing on 2nd May 1913.] The warrant to arrest on the dependence was executed on 29th April 1913, the execution bearing that she, the “Clan Ogilvy,” was “to remain in the said harbour of Glasgow under sure fence and arrestment at the instance of the said pursuers, aye and until sufficient caution and surety be found, acted in the Books of Court of the said Sheriffdom at Glasgow, that the same shall be made forthcoming to the pursuers as accords of law.”

On 5th May 1913 the Sheriff-Substitute (A. S. D. Thomson) recalled the arrestments on caution being found for £1500.

Note.— “The principal petition, as it originally stood, and as it was served on the defenders, therein contained two prayers, the first for payment of £1400, and the second for declarator that pursuers were entitled to a maritime lien over defenders' ship.

“Warrant to arrest on the dependence was granted. It was plainly competent to grant it in respect of the first conclusion. It would not, I think, have been competent to grant it had there only been the second conclusion as it stood before amendment.

An arrestment was used, and the present pursuers now petition to have it recalled, so that the ship may proceed upon her voyage. I have found that the arrestment may be recalled, provided security be found for £1500, to meet a possible decree for £1400 and expenses, being the sums specifically concluded for.

This is satisfactory to the pursuers but not to the defenders, who, with the view of strengthening their case, proposed at the Bar to amend the principal petition, which amendment I allowed in terms of their minute then and there produced.

Four contentions, I understand, were proponed for the defenders. (1) That the second conclusion as it originally stood was of itself sufficient to justify the arrestment. This contention I have no difficulty in repelling. (2) That seeing the first conclusion justified the warrant for and the use of the arrestment, the arrestment became available for the purposes of the second conclusion. They contended that the vessel having been arrested, it was thereby rendered subject to the orders of the Court, so that the Court might not only provide for the specific pecuniary claim which was the subject of the first conclusion, but pronounce any further order or condition to safeguard the rights of the defenders in the event of the Court granting declarator of a maritime lien in terms of the second conclusion. This contention, I think, is unsound. As yet no maritime lien has been established and none attaches, although when established it may be retroactive. An ordinary lien depends upon possession of the subject, but in a case like the present the vessel is in the possession of its owners. It is by the arrestment certainly detained or arrested, but only in respect of a specific money claim, and when in the opinion of the Court adequate security or provision for that claim is made, it seems right that the vessel should be released. I fail to see any authority for the principle that an arrestment upon the dependence for one claim serves as an arrestment for all other claims which the defenders may have against the pursuers. (3) It is contended further that, apart from the arrestment altogether, the Court may detain the ship, the defenders stating that in England application may be made to the courts for the attachment of a vessel in respect of an alleged claim for a maritime lien consequent upon a collision. This may or may not be the law of England, but I am not aware of any authority at all justifying such a course in Scotland, and I am not prepared to sustain this contention. (4) The fourth contention arises out of the amendment of the petition in the original action. This amendment was, as I have already stated, proposed at the Bar, and I allowed it to be made. It seemed competent to allow it under rule 79 of the Sheriff Court Act of 1907. What its effect may be as regards the pursuers has now to be considered. What its effect may be as regards third parties is a matter to be decided when it is raised by some third party.

It seems to me that the amendment leaves the matter as it stood before the amendment was made. The amendment consists in a craving for the various successive steps of procedure which will be required in order to give pecuniary effect to the maritime lien if declared. The final step of such procedure is payment of the free proceeds of the sale of the vessel to the defenders in satisfaction of their said

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claim for damages and expenses. I am disposed to think that this conclusion may, on the authorities, be held to justify a warrant for and the use of an arrestment upon the dependence, but it would only be for and in respect of the specific pecuniary claim, and this claim is just the claim made in the first conclusion, and the matter stands therefore where it did. While I reach this result, which is favourable to the pursuers, I am against them on one of the arguments which I understood them to make, founded on the effect of the amendment, in view of rule 80 of the Sheriff Courts Act of 1907, viz., that there is no question here of ‘validating diligence used prior thereto on the dependence of the action.’ The arrestment, they contend, was valid from the first so far as it went, and does not require to be validated at all. If anything it requires to be enlarged, and they say that without a new arrestment the amendment can have no effect even in a question with the defenders. I doubt the soundness of this contention. The execution of arrestment bears that ‘all is to remain in the said harbour of Glasgow under sure fence and arrestment aye and until sufficient caution and security be found … that the same shall be made furthcoming to the pursuers as accords of law.’ This, I rather think, means until security be found that the vessel be made furthcoming to the pursuers as accords of law, or that the specific pecuniary claims made in the action, whether originally or by amendment, and in respect of which arrestment on the dependence might be and was competently used, be adequately provided for in lieu of the production of the vessel itself; and accordingly I am against the pursuers as regards this argument.

But upon the whole case I am in their favour as regards the recal of the arrestment, and I allow it to be recalled on the terms stated in the interlocutor.”

The defenders appealed, and argued — The arrestments had been wrongly recalled, for the effect of the recal was to deprive the appellants of their lien over the ship. Esto that the personal obligation would remain, that was not enough, for the appellants had a real remedy against the ship, which they were entitled to work out against the ship whether she was in the hands of her owners or under charter at the time she did the damage. In England the appellants would clearly have had a maritime lien over the vessel. That lien was part of the maritime law of Great Britain, and therefore applied in Scotland— Currie v. M'Knight, November 16, 1896, 24 R. (H.L.) 1, 34 S.L.R. 93, [1897] AC 97; “The Bold Buccleugh,” (1851) 7 Moore P.C. 267. The lien attached to the ship and went with her wherever she went. As to how it was worked out in England, reference was made to the Annual Practice 1913 (Mathews, White, and Stringer), at p. 1309.

Argued for respondents— Esto that a maritime lien was part of the law of Scotland, it did not attach here, for this was an arrestment on the dependence, and such an arrestment could clearly be recalled on caution. The prayer of the initial writ in the principal action as originally framed contained merely a bare declarator that such a lien existed. Such a declarator was not equivalent to an action in rem against the ship. As to the procedure in such an action reference was made to Marsden's Collisions at Sea (6th ed.), p. 73. Such an action required the citation of all interested in the ship, and that had not been done here. An arrestment on the dependence was not the appropriate form for the working out of a lien against the ship irrespective of whose hands she might be in. A petition to the Inner House would probably be necessary. Moreover, an arrestment on the dependence could not be changed into a real diligence by subsequently amending the summons—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51), Sched. I, rule 80.