Scottish Court of Session Decisions

The Craig Line Steamship Company, Limited, registered owners of the steamship “Craigforth” of Leith, pursuers, brought an action against the North British Storage and Transit Company, Leith, and the individual partners thereof, defenders, for payment of £247, 13s. 11d., being freight for which the pursuers maintained the defenders were liable as indorsees of bills of lading and receivers of a consignment of barley shipped on the “Craigforth” from Galatz to Leith, where it arrived on 10th December 1911. The North British Storage and Transit Company and the individual partners thereof, for themselves and as representing Faust Michaelis, merchant, Dresden, for any interest he might have, pursuers, brought a counter action against the Craig Line Steamship Company, Limited, defenders, for payment to them of (1) the sum of £338, 5s., (2) the sum of £289, 11s. 9d., and (3) the sum of £336, 14s. 9d., for shortage, and loss and damage to the barley, which they averred they had sustained through the fault of the defenders, but under deduction of the freight sued for in the first action. On 19th March 1912 the Lord Ordinary ( Hunter) conjoined the two actions, and on 4th June 1912 sisted Faust Michaelis as a pursuer, and Felix Roesler, merchant, Portobello, as his mandatory, in the action at the instance of the North British Storage and Transit Company and others. On 8th April 1913 the Lord Ordinary, after a proof in the action at the instance of the Craig Line Steamship Company, Limited, decerned against the defenders in terms of the conclusions of the summons, and in the counter action assoilzied the defenders from the conclusions of the summons.

The North British Storage and Transit Company and others reclaimed.

The reclaiming note was called in the Second Division on 17th November 1914, when counsel for the respondents in respect that a state of war had since 4th August 1914 existed between the United Kingdom and Germany, and that the reclaimer Faust Michaelis had in consequence become an alien enemy, moved the Court to sustain the Lord Ordinary's interlocutor so far as it dealt with the claim against the North British Storage and Transit Company, and quoad ultra to sist procedure. Counsel for the reclaimers did not object to a sist of both actions, but objected to decree, the defence in that action being the same as his case in the other.

Counsel cited the following authorities—Trading with the Enemy Proclamation No. 2, 9th September 1914, No. 1376; “ The Hoop,” 1799, 1 Chas. Rob. 196; Arnauld & Gordon v. Boick, 1704, M. 10,159; Burgess v. Guild, Jan. 12, 1813, F.C.; Robinson & Company v. Continental Insurance Company of Mannheim, 1914, 31 T.L.R. 20; Orenstein & Koppel v. The Egyptian Phosphates Company, Limited, 52 S.L.R. 54.