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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> J. Hay & Sons v. Ocean Steamship Co., Ltd, et e contra [1917] ScotLR 354 (07 March 1917)
URL: http://www.bailii.org/scot/cases/ScotCS/1917/54SLR0354.html
Cite as: [1917] SLR 354, [1917] ScotLR 354
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SCOTTISH_SLR_Court_of_Session
Page: 354↓
Court of Session Inner House Second Division.
[Sheriff Court at Glasgow.
v.
Facts:
In conjoined actions of damages arising out of the collision of two ships the appellants'vessel was found to have been in fault by the Sheriff-Substitute, and they were ordained to pay the nautical assessor's fee out of money consigned by them. On appeal the Court recalled the Sheriff-Substitute's interlocutor except in so far as it fixed and authorised payment of the nautical assessor's fee in the Sheriff Court, and found that the collision was equally contributed to by the fault of both vessels, and that no expenses were due to or by either party either in the appeal or in the Sheriff Court. The appellants thereafter presented a note craving the Court to ordain the respondents to pay one-half of the nautical assessor's fee in both Courts. Without pronouncing an interlocutor the Court directed that each party should pay one-half of the nautical assessor's fee in the Court of Session.
Observed that the question of liability for the nautical assessor's fees in both Courts ought to have been raised at the conclusion of the case when the question of expenses was discussed and determined.
On 9th November 1915 Messrs J. Hay & Sons, pursuers and respondents, sued the Ocean Steamship Company, Limited, defenders and appellants, in the Sheriff Court at Glasgow for £2200, being the damage sustained by the s.s. “The Marchioness” in a collision with the s.s. “Peleus,” of which the defenders were the owners. On 23rd November 1915 the defenders raised a counteraction against the pursuers claiming £5000 as damages, and the actions were conjoined. Each vessel alleged fault on the part of the other.
On the motion of the defenders the Sheriff-Substitute ( Craighe) on 6th April 1916 appointed Captain Wood to act as Nautical Assessor at the trial of the cause, and appointed them to consign in the hands of the Clerk of Court the sum of £20 to meet his fee and expenses.
After proof the Sheriff-Substitute found on 28th June 1916 that the defenders, were liable to the pursuers for the loss, injury, and damage suffered by them through the said collision, and granted leave to appeal. He fixed the fee and expenses of the Nautical Assessor at the sum of £16, 16s., and authorised the Clerk of Court to pay over said sum out of the amount consigned in his hands.
On 7th July 1916 the defenders appealed to the Second Division of the Court of Session, and thereafter lodged a note craving the Court to direct a nautical assessor to be summoned to attend the hearing on the appeal. The Court appointed Captain P. W. Tait, Leith, as Nautical Assessor.
On 9th, 10th, 11th, 12th, and 16th January 1917 the appeal was heard before the Second Division (the
Captain Tait's account amounted to £17.
On 7th March 1917 the appellants presented a note to the Court asking that the respondents should be ordained to pay one-half of the Nautical Assessor's fee and
Page: 355↓
Counsel were heard in the Single Bills.
Argued for the appellants—The appellants had to deposit the money from which the Nautical Assessor was paid. The respondents should be ordained to pay one-half of the Assessor's fees in both Courts. Both ships had been found to be in fault, and no expenses had been found due to or by either party.
Argued for the respondents—If the motion were granted it would really result in a modification of the respondents' expenses. The fee was exactly in the same position as an account for printing, and each party had to pay his own expenses and no part of the other party's expenses. In any event the motion was too late. The question of expenses had been decided, and the Court should not open up the matter again.
Without pronouncing an interlocutor the Court, in respect that there was no settled practice, directed each party to hand a cheque for £8, 10s. to the Clerk of Court in order to pay the Nautical Assessor's fee and expenses of £17 in the Court of Session. The Clerk was authorised to repay to the appellants the sum of £25 which they had consigned to meet said fee and expenses. The Court intimated that they refused to interfere in regard to the Nautical Assessor's fee in the Sheriff Court; and further stated that the question of the Nautical Assessor's fees in both Courts would in future have to be dealt with when the question of expenses was disposed of.
Counsel for J. Hay & Sons— Gentles. Agent— Campbell Faill, S.S.C.
Counsel for the Ocean Steamship Company, Limited— Brown. Agent— J. & J. Ross, W.S.