Scottish Court of Session Decisions

Thomas Hatton, Royal Naval Reserve, commanding officer of the Admiralty tug “Stoic,” and Lieutenant J. Dutton, Royal Naval Reserve, commanding officer of the armed trawler “Carisfort,” petitioners, presented a petition in the Bill Chamber for warrant to arrest the barque “Carmel” and her cargo. The owners of the barque “Carmel,” Aktieselskabet Durban Hansen, of Christiania, were called as respondents.

The petitioners averred—“That the said tug ‘Stoic’ and trawler ‘Carisfort’ left Longhope at midnight on 10th June 1917 with instructions to search for a derelict barque, the ‘Carmel,’ of Christiania.… That the petitioners, after a prolonged search, found and boarded the said barque ‘Carmel’ on the 12th June 1917. She was then in a seriously damaged condition, and in particular her hull was badly damaged, and nearly all her sails were shot away, having apparently been attacked by enemy craft and subjected to heavy gun-fire. She was derelict and water-logged, with one dead man aboard, whose head had been

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shot off. That under the direction of the petitioners and by their efforts and the efforts of those whom they represent the ‘Carmel’ was towed to Peterhead, a distance of over 90 miles, and she was brought into Peterhead harbour of refuge on 13th June 1917, at 5.30 p.m., and she now lies anchored in a safe position at the south end of the harbour of refuge, Peterhead, in custody of the Receiver of Wreck, Peterhead. That the said barque ‘Carmel’ is believed to be of about 900 tons register, and was built in 1882, and her value in her present condition is believed to be not less than £1000. The value of her cargo of pit-props, which has also been saved, is unknown, but is believed to be considerable. But for the prompt and meritorious assistance rendered by the petitioners to the said barque the ‘Carmel’ and her cargo would have been entirely lost to the respective owners. It is believed that the said barque ‘Carmel’ is owned by the Aktieselskabet Durban Hansen, of Christiania, and the petitioners have a claim against the owners of the said barque and cargo for salvage, and in the special circumstances they estimate this at one-half of the value of the ship and cargo and stores on board. The petitioners desire to enforce their maritime lien over said barque ‘Carmel’ and cargo for the salvage due. No security has been found, and the petitioners believe the owners may come forward and claim said barque and cargo, and unless arrested the said barque may then proceed to sea with her cargo, and thereby deprive the said petitioners of their lien over same. In the circumstances above set forth it is necessary that a warrant be granted to petitioners to arrest the said vessel and cargo.”

On 20th June 1917 the Lord Ordinary ( Anderson) granted warrant to arrest the “Carmel” and her cargo ad interim. The vessel and her cargo were subsequently arrested at Peterhead. She became a wreck, and her wreck and cargo were sold. The petitioners subsequently brought an action before Lord Anderson against the owners of the “Carmel” for payment of £2500 for salvage in respect of the services rendered by them, and in that action they obtained an award.

On 2nd November 1918 the Lord Ordinary ( Sands) officiating on the Bills reported the cause to the First Division.

Note.—“This is an application by salvors, who arrested a ship and subsequently successfully prosecuted a claim for salvage, for the expenses of the proceedings in the arrestment. It appears that a year ago I awarded expenses in a similar case. According to my recollection the matter then came before me as an incidental though opposed motion in the motion roll, and I proceeded upon the ground that the arrestment was not merely a diligence for security, but was the initiation of proceedings in rem for the enforcement of liability against the ship in case no other debtor was found. I am now asked to reconsider the matter. It appears to me that the question deserves reconsideration, but that I am not in a favourable position to reconsider it. If I came to a different conclusion there would be two conflicting judgments by the same Judge upon a rule of practice. Further, a difference would be recognised in regard to practice in a matter of maritime law which is one of substance and not of technicality between the law of Scotland and the law of England. If this is to be so it is desirable that it should have the authority of the Inner House.

It is a well-recognised principle of our law that a creditor is entitled to payment not merely of his debt but of all the judicial expenses of its recovery. On the other hand the law will not presume that a debtor against whom decree may be pronounced is unable or unwilling to meet his obligations. These two principles explain why the expenses of diligence in execution are allowed and those of diligence in security disallowed. The arrestment of the ship may provide security, but it is represented that it also initiates proceedings in rem which may eventually turn out to be the only remedy available to the creditor. It may not be necessary to follow out these proceedings, but that is because the arrestments bring the debtor into the field.

In the present case an argument was submitted to the effect that arrestments were unnecessary for the initiation of proceedings in rem, because the ship was in the hands of the receiver of wrecks, who must hold it subject to the salvors' claims. I cannot say that this point was very satisfactorily argued. But in any view it seems to me inconvenient to consider whether this case forms an exception to a hypothetical general rule. The satisfactory course as regards practice is first to ascertain what is the general rule.”

In support of the application counsel for the petitioner referred to the following cases— Taylor v. Taylors, 25th January 1820, F.C.: Symington v. Symington, 1874, 1 R. 1006, 11 S.L.R. 579; Black v. Jehangeer, Framjee, & Company, 1887, 14 R. 678, 24 S.L.R. 476; Clan Line Steamers, Limited v. Earl of Douglas Steamship Company, Limited, 1913 S.C. 967, 50 S.L.R. 771; M'Connachie, 1914 S.C. 853, 51 S.L.R. 716; Boyle v. Olsen, 1912 S.C. 1235, 49 S.L.R. 894; The Dictator, [1892] P 304, per Jeune, J., at p. 313; Marsden's Collisions at Sea (6th ed.), p. 73; Williams & Bruce's Admiralty Practice, pp. 249 and 469; Abbott's Merchant Ships and Seamen, pp. 994 et seq.; Maclachlan's Merchant Shipping, p. 726; the Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), sec. 518; Bell's Prins., secs. 443, 1397, 1427.

Counsel for the respondents did not contest the point upon which the case was reported by the Lord Ordinary.