Scottish Court of Session Decisions

These are counter advocations of counter actions raised in the Sheriff Court of Glasgow. In the one action, Handyside & Others, as owners of the screw-steamer United Kingdom, a trader between Montreal and the port of Glasgow, sued Parker & Co., soap manufacturers in Glasgow, for payment of £105, 12s. 9d., being a balance of freight due to them in respect of goods, consisting of peas, flour, and wheat, consigned to the defenders, and carried on a voyage from Montreal to Glasgow which that vessel made, arriving in Glasgow on 13th December 1862, and “which goods were duly delivered to the defenders.” In the other, Parker & Co. sued the shipowners for payment of £76, 15s. 8d., the value of goods carried by said vessel on said voyage, consigned and deliverable to the pursuers in Glasgow, but which the defenders failed to deliver in terms of the bill of lading, and loss sustained by the pursuers through damage done in the course of the same voyage to other goods, which damage was occasioned through the fault or negligence of the defenders, or others for whom they are responsible, and in breach of their duty as common carriers. Parker & Co. pled the same grounds in defence to the action for freight.

The Sheriff-Substitute (Strathern) found it expressed in the bill of lading, that, inter alia, said peas were shipped in bags at Montreal, and were received there in good order and condition, and were to be delivered from the ship's deck at Glasgow in the like condition; that on the ship's arrival at Glasgow, delivery was given of the goods contained in the bill of lading, with the exception of one barrel flour and eighteen bags wheat (the value of which has been admitted), and of eight bags peas containing 3, 190–280 bolls; that twelve bolls farther of said peas were landed so completely damaged by dampness and coal culm that they were left on the quay as valueless; and 55 1 2 bolls were landed also damaged from the same cause, but not to the same extent. He found, with respect to the question of liability for the damaged goods, that as the peas were shipped in good order, the owners of the vessel, as public carriers, were bound to deliver them in the same state, or to prove that the damages were occasioned by peril of the sea, exempting them from liability, the onus probandi being on them; that they had failed, however, to prove that the peas were damaged through any such exempting cause, and they were therefore liable in the value; and that the admitted and proved short delivery and damages amount to £76, 15s. 8d., the sum sued for by Parker & Co., and to which extent they were entitled to compensate the claim for freight. He further found the shipowners liable to Parker & Co. in expenses in both actions. The Sheriff-Substitute referred in his note in regard to the question of onus to 1 Bell's Com., p. 466; Jones & Co. v. Ross and Others, 12th February 1830, 8 S. 495; and Rae v. Hay and Others, 7th February 1832, 10 S. 303.

The Sheriff (Alison) found it to be proved that the damage done to the peas in question arose partly from the improper stowage thereof, and partly from the excessive stress of weather during the voyage, and that neither of these causes taken singly would have produced the disaster; that in these circumstances it would be unjust to ascribe the proved damage done to the cargo, solely and exclusively either to the improper stowage or to the stress of weather, but that it falls to be ascribed to the effects of the two jointly; that there are no materials in process for determining which of the two causes produced the most damage; and that in these circumstances the presumption is for equality in the causes of the mischief, which leads to the shipowner being responsible only for one-half of the damage; that the total amount of the damage claimed by Parker & Co. in the action at their instance is £76, 15s., and that the defenders, Handyside and Others, admit the first two items in the account sued for, amounting to £12, 4s. 8d., which leaves the sum of £64, 10s. 4d. as the damage done to the peas in dispute between the parties. He therefore found the defenders, Handyside & Henderson, liable in £32, 5s. 2d., being the one-half of the damage done to the peas in question, which sum, added to the item of £12, 4s. 8d., made the gross amount found due to the parties, Parker & Co., under the action at their instance,

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£44, 9s. 10d. This sum being deducted from £105, 12s. 9d., the amount of the freight concluded for, left a balance due to the owners of £61, 2s. 11d., for which sum he decerned against Parker & Co., and quoad ultra assoilzied Parker & Co., and assoilzied also Handyside and others from the action at Parker & Co.'s instance beyond the sums found due by them, and deducted from the freight claimed by them. He found Handyside and others entitled to expenses in the action at their instance up to the date of the conjunction; and Parker & Co. to half costs in the conjoined actions subsequent to the conjunction.

Both parties advocated.