Scottish Court of Session Decisions

Hawthorns & Company, Limited, engineers, Leith, pursuers, brought an action against Whimster & Company and others, the individual partners thereof, defenders, concluding for decree for payment of £522, 2s. 6d., being remuneration alleged to be due to the pursuers for repairing a ship of the defenders.

The defenders pleaded—“1. The pursuers being in breach of their contract with the defenders are not entitled to sue upon it. 2. Separatim, the pursuers' averments that they were unable to perform their contract through the occurrence of an alleged strike being irrelevant should not be remitted to probation. 3. The pursuers being bound to perform the work which they contracted to do for the defenders within a reasonable time, and having failed to do so, are liable in damages to the defenders. 4. The defenders having against the pursuers, owing to the pursuers' breach of contract, a counterclaim exceeding in amount the sum for which the summons concludes, the defenders are entitled to absolvitor.”

On 24th November 1916 the Lord Ordinary ( Cullen) decerned against the defenders in terms of the conclusions of the summons. To his interlocutor was appended the following opinion, from which the facts of the case appear:—

Opimon.—“The pursuers are engineers in Leith, and the defenders represent the owners of the s.s. ‘Serapis.’

In May 1914 the defenders employed the pursuers to make certain repairs on the ship. The original order was subsequently supplemented. There was no formal contract. The arrangements were made by correspondence. No time was fixed for the carrying out of the work, and on this fact the present controversy hinges.

The pursuers began work on 1st July, and went on until the afternoon of Friday, 10th July. The work was then nearly done. On that afternoon the fitters in the pursuers' employment who were engaged on the work left the ship and refused to return. The cause of their action was as follows:—For some time previously there had been a dispute between the union societies representing marine engineers—the Marine Engineers Association, the Amalgamated Society of Engineers, the Steam Engine Makers Society—and the Shipping Federation (to which the defenders belong) regarding a claim by the former for a rise in the wages of sea-going engineers. As the claim was not conceded by the Federation the joint committee of the said three societies issued instructions for the withdrawal of their men from tramp steamers such as the ‘Serapis,’ and thereafter the withdrawal was carried out by their local branches, although in a number of instances individual shipowners succeeded in avoiding the consequences of the strike by conceding the rise which the Shipping Federation as a body had refused to concede. It would appear that membership of the Federation does not exclude such liberty of action. In order to support the strike of the sea-going engineers the said three union societies ordered a ‘sympathetic’ strike of shore engineers, including the class of fitters employed by the pursuers on the ‘Serapis,’ and it was in obedience to their orders and as part of the said sympathetic strike that pursuers' fitters left their work on 10th July and refused to return.

The pursuers at once communicated the position of matters to the defenders, and on the following morning the defenders' representative Mr Blechynden came to Leith and had a meeting with the pursuers' engineer-manager Mr Sutherland. Mr Murray, one of pursuers' directors and their general manager, was present at the latter part of the interview. There is a conflict of evidence as to what took place at this meeting. I prefer the evidence of Mr Sutherland and Mr Murray, who gave it in a credible manner and are clear in their recollection, while both Mr Blechynden and his principal Mr Whimster are confessedly hazy in their recollection of what took place between them and the pursuers at and about the period when the pursuers' fitters struck work. At the meeting on the 11th the basis of the conversation, as I take the matter, was that it was not possible for the pursuers to get skilled men to complete the job. I think the defenders accepted this as the situation. There was a discussion as to whether it would be feasible to turn on apprentices from the pursuers' yard to the work, but the idea was abandoned. Ultimately Mr Blechynden said that he would try to arrange to get some firm in Glasgow to undertake the completion of the work, and to send men to Leith for the purpose, and the pursuers thereupon agreed to lend the use of their gear on the ship.

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On the Monday following, 13th July, Mr Blechynden came again to Leith, went on board the ship, packed the stern gland temporarily, and removed the ship from the dry dock to the Imperial Dock. This he did on the defenders' instructions, and without consulting or referring to the pursuers. The proceeding is, I think, significant of the fact that the defenders accepted the situation as being that the strike had put it out with the pursuers' power to finish the job, whatever the consequences to the pursuers of that might be, as to which nothing was said. The evidence of Mr Blechynden and Mr Whimster is, I think, somewhat tinged, no doubt unconsciously, by the fact that the counter-claim they are supporting by it is, mainly at least, an afterthought inspired by the Shipping Federation. Thus they seek to represent themselves as having been in the constant expectation or hope that the pursuers would be turning on men to finish the job notwithstanding that the strike continued, while I think their position at the time was that of accepting the situation to be that the pursuers could not do so.

The strike continued until the war broke out, and the pursuers' position remained the same. The defenders on their part did nothing until about 27th July, when they approached the witness Gardiner, an engineer in Glasgow, with whom on 29th July they placed an order for completion of the repairs. Gardiner's men came to Leith on 3rd August and began work on the 4th, the ship having been again put in the dry dock. There was a hitch owing to four of the men having been induced to desert by the union pickets, but the work was finished on the 7th. Gardiner's account amounted to £48, 15s. as against £18 allowed by the pursuers for the unfinished work. By Admiralty orders the ship was removed on 8th August from Leith docks to the roads, where, for some reason which the defenders in evidence say they cannot explain, she lay until 15th August, when she sailed.

Why the defenders did nothing at all between 10th and 27th July is not satisfactorily explained. It may be that, as indicated in their letter of 13th July to Messrs Bain, Gardner, & Company, they were hopeful of a speedy termination of the strike. As I have already said, I cannot accept the view that they waited for so long in expectation of the pursuers finishing the job while the strike continued. In this connection it is noticeable that while Mr Whimster says he does not think he heard from Blechynden about the intended arrangement for getting the work done from Glasgow until about ten days after 10th July—which would be on or about 20th July—a week would be unaccounted for before the defenders took any steps, as they did by approaching Gardiner on the 27th. The defenders, denying the account given by Mr Sutherland and Mr Murray of the meeting on 11th July, seek now to put the matter as if they waited on until the 27th July solely in order to give the pursuers a chance, and only then in despair took things into their own hands. If this were true it would have been the ordinary course of business for the defenders before employing Gardiner to definitely intimate to the pursuers that they had so waited, that they could wait no longer, and that they were now taking the step of superseding the defenders on the unfinished portion of the contract by placing it elsewhere. No such intimation, however, was made.

On 16th November 1914 the defenders wrote to the pursuers asking them to send in their account and to have it stated with a price against each item, as they desired to have the cost of each separate job. They received the account at that time. After a few letters which do not require notice, the defenders wrote on 4th January 1915 saying that they could not see their way to accept a deduction of £8 for painting not done by the pursuers, as they had paid £18, 19s. 2d. for having it done by Gardiner, and considered that the excess was caused by the pursuers' breach of contract. Some further letters passed without the account being settled, and on 3rd March 1915 the defenders wrote that they found they must submit some points to the Shipping Federation. On 30th March they wrote saying that they had just received a letter from the Federation dealing with the account, and stating that in the opinion of the Federation the pursuers were liable for the loss resulting from the detention of the steamer, and for all the extra expenses incurred as the result of their breach of contract in failing to complete the work undertaken. They went on to give a quotation from the Federation's letter as showing the ratio of the Federation's opinion, which was that the implied contractual measure of time for the work was a reasonable time, and that the calculation of a reasonable time was to be based on ordinary conditions of work, and was not affected by the occurrence of the strike.

The pursuers' account as sued on amounts to £522, 2s. 2d. The counter-claim opposed by the defenders amounts to £899, 3s. 6d. but it now stands at £516, 10s. 8d. owing to the defenders lowering their claims for detention per ton per day from 5d. to 4d., and to their reducing the period of detention claimed for by two days. The claim for detention forms the bulk of the counterclaim. Otherwise the counter-claim is made up of the excess of Gardiner's account for the portion of the repairs not finished by the pursuers, and for charges connected with moving the ship after 10th July, including the charges for moving her from the docks to the roads on 8th August after Gardiner had finished, in response to the Admiralty order.

As I have already pointed out, the contract for the repairs contained no express time limit. Admittedly therefore the implied time for executing the repairs the pursuers undertook to do was a reasonable time. The question for decision is how this measure of a reasonable time falls to be regarded in view of the conditions which supervened on 10th July when the strike took off the pursuers' fitters.

What is a reasonable time for fulfilling a contract containing no express time limit

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is a question of fact. This familiar general rule, however, does not carry one very far in solving the difficulties of a particular case. In the present case the defenders' main proposition is that the measure of a reasonable time is such a time as would be required for the work under what they call ‘ordinary or average conditions,’ so as to exclude the exceptional condition of a strike affecting the contractor's workmen. It is, however, always a question of special conditions when a particular case arises, and if there are special conditions admissible in the problem average conditions do not rule. The particular question as to how a strike including a contractor's workmen is to be regarded as affecting the operation of a limit of reasonable time under a contract has been matter of decision in various cases relating mainly to the matter of discharging cargo from a ship. I need not refer to all the cases more or less bearing on the present which were cited to me, but I may refer to the cases of Hick v. Raymond, 1893, A.C. 22, and Sims v. Midland Railway Company, L.R. 1913, 1 K.B. 103. And as showing that the ratio of these decisions is not limited to the case of carriage of goods I may quote from Lord Watson in the first-mentioned one. ‘When the language of a contract does not expressly, or by necessary implication, fix any time for the performance of a contractual obligation, the law implies that it shall be performed within a reasonable time. The rule is of general application, and is not confined to contracts for the carriage of goods by sea. In the case of other contracts the condition of reasonable time has been frequently interpreted, and has invariably been held to mean that the party on whom it is incumbent duly fulfils his obligation notwithstanding protracted delay, so long as such delay is attributable to causes beyond his control and he has neither acted negligently nor unreasonably.’

In Hick v. Raymond ( cit.) the consignees of a cargo were bound to discharge it within a reasonable time. The work was being done by the Dock Company as agents of the consignees. It was begun on 16th August, but was interrupted from about 20th August until 16th September by a general strike of dock labourers. Thereafter it was completed on 18th September. It was held that the consignees were not liable for the delay. The decision involved (1) that the delay was not caused or contributed to by the consignees, and (2) that in point of fact they could not procure labour to replace that of the dock labourers who had struck.

It will be observed that in Hick v. Raymond the strikers were not the direct servants of the contracting parties, the consignees, but of their agents, the Dock Company. This distinction formed the main topic of discussion in the other case above cited, Sims v. Midland Railway Company. There the railway company accepted for conveyance and delivery a consignment of butter on 17th August 1911. The butter got so far on its journey—viz. to Sharpness—on the following day, but owing to a strike of the company's servants, which was part of a general railway strike, it could not be sent on further to its destination. It began to deteriorate, and was sold at considerably below its original value by the railway company. An action for damages having been brought, it was held that the railway company was not liable. The question mainly debated was whether the rule of Hick v. Raymond was displaced by the fact that the strikers were the servants of the railway company, the plaintiffs contending that as the railway company had undertaken that the goods would through their servants be delivered within a reasonable time, it was entirely their affair whether their servants went on strike or not, and not the affair of the other party. It was held that the ratio of Hick v. Raymond applied, and that in the case of a strike disabling performance there was no valid distinction to be drawn between a strike of the servants of the contracting party's agents, as in Hick v. Raymond, and a strike of the contracting party's own servants. As in Hick v. Raymond, it was involved in the decision that the disablement of the strike was not caused or contributed to by the obligants, the railway company, and also that the effect of it was to prevent their procuring the necessary labour to enable them to fulfil their obligation.

Now in the present case there is no room for any suggestion that the strike which took off the pursuers' workmen on 10th July was caused or contributed to by the pursuers. It was rather the other way, seeing that the strike was brought about by a dispute between the marine engineers and shipowners, like the defenders, represented by the Shipping Federation, and that while a number of other shipowners shook themselves free of the strike by conceding the rise of wages claimed, the defenders, through loyalty to the Federation as they put it, preferred to resist the rise, with the attendant consequence of having their unrepaired ship held up. I cannot, however, on the evidence express any opinion on the merits of the question involved in the strike, and whether the defenders were or were not unreasonable in the stand they took. What is clear is that the pursuers were innocent of having in any way caused or contributed to the strike.

On this footing the defenders say that the pursuers have not satisfied the other condition postulated in the cases of Hick and Sims, to wit, proved inability to perform notwithstanding the prima facie disabling effect of the strike. The pursuers they contend have failed to demonstrate clearly and exhaustively by a process of exclusion that there was no source of any kind from which they might not have derived skilled labour adequate to finish the job which they had undertaken. In the case of Sims there are remarks by Scrutton, J., which seem to put it as if, in the presence of a strike of the contractor's workmen which prima facie disables the contractor, the onus is on the other side to prove that the contractor might notwithstanding the strike have obtained the necessary labour. I am not quite sure as to this

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possibly suggested view of the onus. In the present case I am content to judge the matter in the light of the parties' actings at the time. The position taken up by the pursuers was clearly, as I think, that they were powerless to perform owing to the strike. And my construction of the attitude and actings of the defenders then is that they accepted and acted on this as the true view of the situation. On 11th July they proposed as a solution the sending of workmen from Glasgow. They would not have done so had they thought that the conditions left it open to the pursuers to get the necessary labour in Leith. Two days afterwards Blechynden removed the ship from the dry dock on the defenders' instructions without consulting or referring to the pursuers. The defenders must have been then satisfied that the pursuers could do nothing. And when ultimately on 27th July the defenders placed their order with Gardiner there was no intimation by them to the pursuers that they were doing so because they had out waited an expectation of the pursuers being able to obtain outside labour. My construction of the evidence, as I have indicated, is that when the strike drew off the pursuers' men on 10th July the defenders, like the pursuers, accepted the situation as being one whereby the pursuers were, owing to the strike, which they had not in any way caused or contributed to, disabled from performing the unfinished portion of their contract.

On this footing it seems to me that the ratio of the cases of Hick and Sims applies to the present one to the effect of absolving the pursuers from the charge of breach of contract on which the defenders' counterclaim is based, and I do not think that the matter of Gardiner's account is in a special position.

I may add that if it were to be assumed, contrary to the view which I have expressed, that the pursuers were guilty of a breach of contract through not having finished the repairs on the ship by, say, 11th or 13th July 1914, I should have felt the greatest difficulty in sustaining the defeners' counter-claim in respect of the long period of detention of the ship involved in it. The defenders would have been bound to act promptly in order to minimise the damage. As it was they did not act until 27th July. Further, I should doubt very much whether the charges in the counterclaim for the expense of removing the ship on 8th August—when Gardiner had finished—to the roads under an Admiralty order could have been regarded as a natural consequence of the pursuers' assumed breach of contract.

Following the views which I have above expressed, I shall repel the defences, and grant decree in terms of the conclusions of the summons.”

The defenders reclaimed, and argued—The pursuers were in breach of their contract; the contract provided no time limit for completion of the repairs; the pursuers were therefore bound to complete them in a reasonable time; that they had failed to do. The pursuers could not plead reasonable time, for when the fitters had left the ship they had done nothing, instead of doing everything in their power to get the repairs completed. There was no impossibility of performance, for the defenders had actually got the work completed by other engineers; the same course could have been taken by the pursuers. The risk of a strike of the pursuers' workmen which would be occasioned by taking such a step was no excuse— Milligan & Company v. Ayr Harbour Trustees, 1915 S.C. 937, 52 S.L.R. 748. If the pursuers had exercised reasonable diligence they could have had the contract completed; having failed to do so they were liable in damages— Ford v. Cotesworth, 1868, 4 Q.B. 127, per Blackburn, J., at p. 133 and 134. Hick v. Raymond & Reid, 1893, A.C. 22, and Sims & Company v. Midland Railway Company, [1913] 1 KB 103, were distinguished, for impossibility of performance was admitted. Further, the alleged agreement of 11th July superseding the original contract was not proved; further, the original contract being in writing any subsequent modification of it must also be in writing— Burrell & Son v. Russell & Company, 1900, 2 F. (H.L.) 80, 37 S.L.R. 641. The defenders had done what was fair and reasonable in getting the contract completed by other engineers and they were entitled to the additional costs thereby occasioned—Mayne on Damages (8th ed.), at p. 21.

Counsel for the pursuers were not called upon.