Scottish Court of Session Decisions

The Laird Line, Limited, owners of the steamship “Rowan,” pursuers, brought an action against the United States Shipping Board, owners of the steamship “West Camak,” defenders, for £100,000, restricted in the course of the proceedings to £11,000, as damages sustained by the “Rowan” in collision with the “West Camak.” the defenders also brought a counter-action against the pursuers.

After a proof the Lord Ordinary ( Anderson) assoilzied the defenders and found the defenders entitled to expenses. The pursuers reclaimed, and on 13th January 1923 the First Division recalled the Lord Ordinary's interlocutor finding that the collision was due to the joint fault of those in charge of the vessels, and found no expenses due to or by either party.

The defenders appealed to the House of Lords, who on 18th December 1923 ordered the interlocutor of the Lord Ordinary to be restored and the pursuers to pay to the defenders their costs in the House of Lords and in the Inner House of the Court of Session.

The defenders' account of expenses included allowances in respect of six witnesses who had been brought from San Francisco to this country to attend the proof and had been sent back. The Auditor taxed these allowances as follows:—

Schedule of Witnesses' Fees.

Name and Address.	In Account.			Taxed off.			Allowed by Auditor.
Clifton Curtis, master of the “West Camak”	£538	17	2	£340	17	2	£198	0	0
C.J. Jones, 2nd engineer, do.	434	2	3	236	2	3	198	0	0
Charles Kuhn, 3rd do. do.	420	4	5	269	4	5	151	0	0
L. J. Perry, 2nd officer do.	380	6	8	229	6	8	151	0	0
V. J. Brennen, A.B., do.	321	9	11	170	9	11	151	0	0
John Roonlak, A.B., do.	298	1	3	147	1	3	151	0	0
	£2393	1	8	£1393	1	8	£1090	0	0

And in a note to the account stated—“The only question of difficulty arising on the taxation of this account is whether it was necessary in the proper conduct of the case to bring the captain and crew of the American vessel ‘West Camak’ from San Francisco to this country in order to give evidence at the proof instead of taking what certainly would have been the less expensive course of having these witnesses examined on commission. It is clear that exceptional reasons are required to justify charging the unsuccessful party with such expense. After carefully considering the issues involved, the evidence given, and the opinion of the Lord Ordinary in deciding the case, the Auditor has come to the conclusion that it was essential that these wit nesses should be produced at the proof and

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give their evidence in presence of the Lord Ordinary and his nautical assessor. The Auditor does not favour the further contention that the evidence of at least certain members of the crew should have been taken on commission. Distinctions between the relative importance of the evidence given by the witnesses can be drawn more easily after the event than before, and if the Auditor is right in principle he does not think it reasonable to make the defenders differentiate between the witnesses in advance.

As to the expenses to be allowed to the witnesses for attending the proof, these in the Auditor's view fall to be regulated by the allowance and travelling expenses provided under the judicial table of fees. The agents have been good enough (without prejudice) to ascertain the travelling expenses by railway and steamer to and from San Francisco and Edinburgh. There is a slight difference (easily explained, no doubt) between the amounts given to him, and the Auditor has, after consideration, adopted the figures obtained by the defenders' agents. These include, he understands, subsistence on the steamer and sleeping accommodation on the train in the United States. The charge in the witnesses' accounts for subsistence on board the steamer therefore disappears. The charge for wages is also one which falls to be disallowed in a question with the unsuccessful party. There remains the allowance to be given for subsistence while travelling by railway between San Francisco and New York and while on shore in Britain attending the proof. The defenders claim an allowance for a period of seventy days. In the Auditor's view the unsuccesful party is liable only for the time which would be reasonably occupied by these witnesses in travelling to this country, attending the proof, and returning. The defenders had ample notice of the date of the proof, if indeed the date was not fixed to suit them. After allowing for all reasonable contingencies and detentions in the United States and in Great Britain the Auditor considers that an allowance of twenty-eight days is liberal. He has accordingly given the maintenance allowance appropriate to the different classes of witnesses for that period.”

The pursuers lodged objections to the Auditor's report, maintaining that the six witnesses brought from San Francisco should have been examined on commission there instead of being brought to this country, in respect that it was not essential that they should be produced at the proof; or, alternatively, that the witnesses Jones, Kuhn, Perry, and Roonlak should have been examined on commission, no reference having been made to them by the Lord Ordinary in his opinion. And they contended that the sum of £1018, 18s., which the Auditor had allowed for witnesses (including one not referred to above), should therefore be reduced to £250, representing the expense of obtaining and executing a commission to examine the six witnesses in San Francisco, or, alternatively, by the difference (£451) between the sum (£651) which the Auditor had allowed as the cost of bringing the witnesses, other than Captain Curtis and Brennen, from San Francisco, and the expenses (which should not have exceeded £200) of obtaining and executing a commission in San Francisco quoad them.

The defenders also lodged objections to the Auditor's report in respect of the disallowance of the full expenses of the witnesses.

Counsel were heard in the Single Bills on 12th July 1924.