Scottish Court of Session Decisions

The Ellerman Lines, Limited, London, owners of the s.s. “City of Naples,” who had been successful in an action of damages against the Trustees of the Harbour of Dundee arising out of a collision between s.s. “City of Naples” and a sunken wreck, lodged a note of objections to the report of the Auditor on their account of expenses in respect of his having disallowed to the extent of £319, 1s. 6d. their charges for detaining certain officers of the ship to enable them to give evidence at the proof.

The note stated—“The pursuers object to the Auditor's report on the pursuer's account of expenses in so far as the Auditor has taxed the undernoted witnesses' fees. The pursuers submit that in view of the circumstances of the case neither the allowance per day nor the length of time allowed for the necessary detention of the witnesses are sufficient, and that the period of fourteen days allowed in the case of Clan Line Steamers v. Campania Navigation Sota y' Aznar ( 1918 S.C. 87) does not apply to the present case. The items referred to are as follows:—

Schedule of Witnesses' Fees

No.	Name and Designation of Witness.	Where from.	No. of days.	Rate per day.	Expenses.	Total.	Taxed off.	Sum allowed.
1.	William Hill, master of the “City of Naples”	Liverpool	96	£1 1 0	£10 10 0 1. Note.—This witness was withdrawn from the “City of Naples” from 22nd January 1920 until 26th April 1920 in order that he might attend the proof on 2nd March. The cost of filling his place for that period is at the rate of £620 per annum, and for 96 days amounts to £162 12 6 96 days at £1, Is. per day 100 16 0 Travelling expenses 10 10 0	£273 18 6	£248 14 6	£25 4 0
2.	B.H. Constable, chief officer do.	Alexandria	55	£1 1 0	£48 12 8	106 7 8	50 8 0	55 19 8
3.	A.G. Blackstock, 2nd officer do.	Liverpool	29	£1 1 0	£10 10 0	40 19 0	15 15 0	25 4 0
4.	John Hopkins, quartermaster of do.	Liverpool	18	£1 1 0	£10 10 0	29 8 0	4 4 0	25 4 0
						£450 13 2	£319 1 6	£131 11 8”

The Auditor has appended the following note to the account—“The parties are at issue as to the allowances to be made to the seafaring witnesess whom the pursuers detained in this country in order that they might be present at the proof. The pursuers claim such allowances for the following witnesses, viz.—William Hill, master of the ‘City of Naples,’ detained 96 days; A. G. Blackstock, second officer of the ‘City of Naples,’ detained 29 days; John Hopkins, quartermaster of the ‘City of Naples,’ detained 18 days; F. J. Hiles, North Sea pilot, Yarmouth, detained 50 days. The Auditor begs to report that since the case of Clan Line Steamers v. Campania Navigation Sota y’ Anzar ( 1918 S.C. 87) the period for which such allowance is granted against the losing party has been restricted to 14 days, and standing that judgment he does not feel justified in extending that period. That case was initiated and the proof taken in the Sheriff Court, but the learned Judge (Lord Salvesen), whose opinion was concurred in, appears to have held that a fortnight was the limit of time to be allowed for detention of witnesses as against the unsuccessful party, being approximately the equivalent of the expense of a special diet or a commission to take the evidence of the witness or witnesses detained.

In the present case the pursuers appear to have had ample time to make application for a special diet, but abstained from doing so. The reasons for this are obvious, but these do not form a ground for penalising the defenders in a larger amount of expenses than might otherwise have been necessary.

With regard to the particular seafaring witnesses who were necessarily detained, the Auditor's view is that these should be restricted to witnesses whom it was desirable that the Judge trying the case should see in the witness-box. If the above period is adhered to, the need for drawing a strict line may not be very material, but so far as the Auditor can judge, the first three of the above—mentioned witnesses and another witness, who will be afterwards referred to, are in this category.

The North Sea pilot (Hiles) residing in Yarmouth appears to the Auditor to be in the same position as any ordinary witness resident in the United Kingdom whose attendance at the proof the pursuers could arrange for or compel in usual form. He has accordingly cut down the charges for

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this witness to those payable on the footing of his being brought from Yarmouth to give evidence.

The basis upon which the expenses of detention are to be assessed has also been raised. The pursuers claimed in respect of the master William Hill, not only the witness's allowance of £1, 1s. per day, but the wages of a substitute, while in respect of the second officer and the quartermaster the allowance claimed is at the rate of £1, 1s. per day. In party and party taxation maintenance and not wages is the appropriate allowance for witnesses. The Auditor accordingly does not consider he is justified, without a ruling by the Court, in departing from the scales of maintenance and travelling expenses allowed to witnesses under the table of fees, and he has taxed these allowances accordingly.

The chief officer of the vessel, B. H. Constable, was brought by the pursuers to attend the proof from Alexandria, where he was stationed at the time. The Auditor is of opinion that he also was a witness whom it was necessary the Judge should see, and he has allowed the expenses of bringing him from Alexandria (which would include his maintenance on the way), together with the usual witness's allowance for seven days in this country, during which, either at the proof or at a special diet, his evidence could have been taken.”

Counsel for the pursuers was heard in the Single Bills. Counsel for the defenders was not called upon.