Scottish Court of Session Decisions

The Ellerman's Wilson Line, Limited, owners of the s.s. “Finland,” petitioners, presented a petition for warrant to arrest the s.s. “Pole Star,” belonging to the Commissioners of Northern Lighthouses, incorporated under the Merchant Shipping Act 1894, respondents. An action had originally been brought by the petitioners against the respondents for damages due to a collision between the two vessels in which the respondents pleaded the Public Authorities Protection Act as excluding the action. That action was then withdrawn, and in order to enforce their maritime lien, the petitioners brought an action in rem against the “Pole Star,” which required as a preliminary the arrest of that vessel. Warrant to arrest ad interim was granted in the Bill Chamber on 3rd April 1919. In the subsequent action in rem the Lord Ordinary ( Blackburn) held that the accident was not due to the fault of either ship, and found the defenders, the owners of the “Pole Star,” entitled to their expenses. Thereafter in the Bill Chamber the arrestments were recalled, the petition dismissed, and the respondents found entitled to expenses. The Auditor having allowed, as part of the expenses, the expense incurred by the respondents in replacing the ship with a bail bond for £25,000, objections to his report were lodged. On 3rd August 1920 the Lord Ordinary reported the cause to the Second Division.

Note.—[ After narrating the facts]—“Objections are now taken to the Auditor's report in respect that he has allowed against the petitioners a sum of £125 as the expense incurred by the respondents in replacing the ship with a bail bond for £25,000. It was stated at the bar that whereas at one time such expenses were not allowed where arrestments had been used ad fundandam jurisdictionem, there had latterly been a change of practice, and on inquiry from the Auditor I have ascertained that this is the case. The change seems to have followed

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on a judgment of Lord Salvesen in Barron v. Black, 1908, 16 S.L.T. p. 180. I cannot say that I think the judgment contains anything which justifies the change in practice, and it does not appear to me that the expense of substituting a bail bond for an arrested ship is necessarily an expense of process which an arrestee should be entitled to recover. It appears, however, that in England such expenses are allowed in an Admiralty action in rem (See Rules of the Supreme Court, Order 12, No. 21a, quoted in the Annual Practice, 1920, p. 124), and in view of this and of the now established practice in cases of arrestment ad fundandam jurisdictionem I should hesitate to sustain the objections to the report. As, however, the case is, so far as I know, the first of its kind in Scotland, I think it advisable to report it before pronouncing an opinion which might not be reclaimed against and which might come to be regarded as establishing a rule of practice.”

Argued for the petitioners—The Auditor should not have allowed these charges. In an action in rem arrestment of the ship was necessary to enforce the maritime lien, arrestment on the dependence not being suitable— Clan Line Steamers, Limited v. Earl of Douglas Steamship Company, Limited, 1913, S.C. 967, 50 S.L.R. 771. In the case of arrestment on the dependence, however, no claim of damages would arise to the arrestee unless the arrestments were malicious—Graham Stewart on Diligence, p. 773, and cases ibid. The same principle applied to the arrestment of a ship. No claim of damages would arise for the arrestment unless the arrestment was malicious, and the substitution of a bail bond for the vessel was a mere convenience for the arrestee, the expense of which could not be charged against the opposite party. It was not a necessary step of process or, indeed, a step of process at all. The case of Barron v. Black, 1908, 16 S.L.T. 180, was not an authority in favour of allowing such expenses. In England at common law such expenses could not formerly be included— The “Collingrove,” The “Numida,” 1885, 10 P.D. 158. This practice had been subsequently altered by rule of the Supreme Court in England in 1900—Roscoe's Admiralty Practice (4th ed.), p. 313. The common law of Scotland was the same as that of England originally was— Currie v. M'Knight, 1898, 24 R. (H.L.) 1, 34 S.L.R. 93, but no similar change had been introduced here, and such change could not be introduced without the authority of an Act of Sederunt. In the unreported case of Ole Thuestad v. Scheepvaart en Steenkolm Maatschappij (20th July 1904) Lord Low disallowed such expenses. Arrestments ad fundandam jurisdictionem were different, because they were regarded as a proper step of process.

Argued for the respondents—The Auditor had rightly allowed these expenses. The expense of substituting the bail bond was more analogous to the expense of arrestment ad fundandam jurisdictionem, which had been regarded as a necessary step of process, than to the expense of arrestment on the dependence, which was not a necessary step of process, and where the expenses would not be allowed. The Admiralty action in rem had first been recognised in Scotland in Currie v. M'Knight, 1896, 24 R. (H.L.) 1, 34 S.L.R. 93, on the ground that the maritime practice of the two countries should be the same. The present case was the first instance in practice of such an action. Such an action was always preceded by arrestment— M'Connachie, 1914, S.C. 853, 51 S.L.R. 716; Marsden's Collisions at Sea (7th ed.), pp. 88, 95, 296. In England the expense of a commission for bail was allowed—Williams and Bruce's Admiralty Practice (3rd ed.), p. 472. The Auditor had exercised his discretion in this case in a reasonable manner, and this Court should not interfere with it, more especially in view of the change of practice stated by him in the case of arrestment ad fundandam jurisdictionem.