Scottish Court of Session Decisions

The Merchant Shipping Act 1854, Statute 17 and 18 Vict. c. 104, is divided into eleven parts, of which Part VIII. is declared to be applicable “to wrecks, casualties, and salvage,” while Part IX. is declared to be applicable to “liability of shipowners.”

Part VIII., inter alia, enacts, by section 432 and subsequent sections, that when any ship is abandoned or materially damaged on or near the coasts of the United Kingdom, or when any ship causes loss or material damage to another ship on or near such coasts, or whenever by reason of any casualty to or on board any ship on or near such coasts loss of life ensues, it shall be lawful for the inspecting-officer of coastguard, or the principal officer of Customs residing at or near the place where such loss, abandonment, damage, or casualty occurred, to make inquiry regarding such loss, abandonment, damage, or casualty. Further, where a formal inquiry seems to him to be needed, he may apply to any two Justices or a Stipendiary Magistrate to hear the case, and these Justices or Magistrate shall have the assistance, on application to the Board of Trade, of a nautical assessor. In Scotland any such investigation may be remitted by the Board of Trade to the Lord Advocate, to be prosecuted as he shall direct, and (if he so requires) with the assistance of a nautical assessor. This court of inquiry may, by section 438, require delivery by any master or mate whose conduct is called or is likely to be called in question during the inquiry, of any certificate of competency, to be retained till the close of the inquiry, and then to be returned or to be forwarded to the Board of Trade along with the report of the inquiry, to be dealt with according to the powers of the Board of Trade which are conferred by Part III. of the Act. Part VIII. of the Act then makes provision for the appointment of Receivers of Wreck, defines their duties, and provides for the payment of salvage, and for the ascertainment of the amount of salvage in any case in which such amount is disputed.

Part IX., which is concerned with the liability of shipowners, provides by section 507 that in cases of alleged liability in respect of loss of life or personal injury, the Board of Trade may, in its discretion, after due notice to the person who is to be made defender, require the Sheriff having jurisdiction over the place where the inquiry is to be held, to summon a jury of 24 persons qualified as jurymen in the superior courts, for the purpose of determining “the number, names, and description of all persons killed or injured by reason of any wrongful act, neglect, or default.” Either party may, under section 508, have the question tried by a special jury.

By sections 509 and 510 regulations are made for the conduct of such inquiries as are contemplated by the two preceding sections. In particular, it is provided that the empanelling of the jury and the attendance of witnesses shall (in Scotland) be enforced in the manner provided by the Lands Clauses Consolidation (Scotland) Act 1845, and that the Board of Trade may make any compromise it may think fit as to the damages payable in respect of personal injury or of death; (sec. 510) that damages payable in each case of death or injury shall be assessed at £30, and shall be the first charge on the aggregate amount for which the owner is liable. By section 511 it is provided that if any person injured, or the executor of any person deceased, is dissatisfied with the statutory amount of damages, or with the amount accepted as a compromise by the Board of Trade in any case of injury or death, he shall be at liberty to bring an action himself as if no power of instituting an inquiry had been given by the Board of Trade, subject to certain provisions which need not be here set forth.

Section 512 is to the following effect—“In cases where loss of life or personal injury has occurred by any accident in respect of which the owner of such ship as aforesaid is or is alleged to be liable in damages, no person shall he entitled to bring any action or institute any suit or other legal proceeding in the United Kingdom until the completion of the inquiry (if any) instituted by the Board of Trade, or until the Board of Trade has refused to institute the same; and the Board of Trade shall, for the purpose of entitling any person to bring an action or institute a suit or other legal proceeding, be deemed to have refused to institute such inquiry whenever notice has been served on it by any person of his desire to bring such action or institute such suit or other legal proceeding, and no inquiry is instituted by the Board of Trade in respect of the subject-matter of such intended action, suit, or proceeding for the space of one month after the service of such notice.”

On the morning of 5th February 1880 the Norwegian brig “Fram,” then on a voyage from South Carolina to Glasgow, was run down off Lamlash by a steamship believed to be the “Hestia” of Greenock, of which the owners were Robert and Charles Russell, of County Down, Ireland. All the crew were drowned. This was an action raised on 29th December 1881 by Louise M. Haglund, widow of the second mate of the “Fram” concluding for £800 as damages for the loss of her husband by the collision. She alleged that the collision was caused by the “Hestia,” and that it was due to the careless management of that vessel by her officers. She used arrestments against the defenders ad fundandam jurisdictionem.

The defenders admitted only that on the morning in question the “Hestia” was in collision with a vessel unknown. The collision, they averred,

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was due to unavoidable accident. They referred to the sections of the Merchant Shipping Act of 1854 above referred to, and averred that no inquiry had been instituted or refused by the Board of Trade, and no notice had been served upon the Board of Trade by the pursuer of her desire to bring the action. They pleaded that in consequence the arrestments used by the pursuer were bad, and that the Court had no jurisdiction to entertain the action; and they further pleaded—“(3) The action is incompetent, and should be dismissed, in respect of the terms of section 512 of the Merchant Shipping Act 1854.”

It appeared from the documents produced that on 26th February 1880, three weeks after the collision, Mr Leitke, Vice-Consul for Norway and Sweden in Glasgow, instructed Messrs Wright, Johnston, & Mackenzie, writers, Glasgow, to communicate with the Board of Trade regarding the collision. Accordingly they wrote to the Board of Trade quoting an account of the collision from the Shipping Gazette, and giving particulars relating to the finding of the wreck of the “Fram.” This letter concluded thus—“In these circumstances Mr Leitke submits to you whether an inquiry should not be held to ascertain the facts of the collision, and whether those in charge of the ‘Hestia’ did all they could to avoid loss of life.” This answer was returned by the Board of Trade:—“ Casualties.—Gentlemen,—In reply to your letter of the 26th ultimo, I am directed by the Board of Trade to inform you that they do not, as at present advised, intend to institute a formal inquiry into the supposed sinking of the Norwegian brig ‘Fram’ by collision with the steamship ‘Hestia’ of Greenock. I am, however, to state that depositions have been made by the master, mate, engineer, and one A.-B. of the ‘Hestia’ before the Receiver of Wreck at Dublin, from whom copies can be obtained on payment of the usual copying charges.”

On 18th January the Board of Trade, in answer to an application from the defenders' solicitors for information as to whether notice had been given them of the desire of the pursuer to bring any legal proceeding, wrote thus:—“ Casualties.—Gentlemen,—In reply to your letter of the 12th inst. relating to the collision between the ‘Hestia’ and the ‘Fram,’ asking whether any notice of a legal proceeding in the case, such as is required by section 512 of the Merchant Shipping Act 1854, has ever been given to the Board of Trade, and if so, when, I am directed by the Board of Trade to inform you that they have received no such notice.”

On 8th February 1882, more than a month after the raising of the action, Messrs Boyd, Macdonald, & Jameson, W.S., wrote to the Board of Trade giving formal notice that it was desired to sue the owners of the “Hestia,” and desiring to know, in terms of the 512th section of the Merchant Shipping Act, whether the Board of Trade intended to institute any inquiry into the subject-matter of the action. This notice bore to be without prejudice to all or any prior notices or notice given to the Board on the subject. The Board replied that they did not “intend to institute any inquiry under the IX. part of the Merchant Shipping Act 1854, in respect of the loss of life resulting from a collision which occurred between the ‘Hestia’ and the ‘Fram’ in the month of February 1880.”

The Lord Ordinary (Fraser) repelled the defenders' pleas of want of jurisdiction and of the incompetency of the action above referred to, and ordered the cause to be put to the roll for further procedure.

He pronounced this opinion:—“The two pleas which are now repelled are based upon the 512th section of the Merchant Shipping Act 1854 (17 and 18 Vict. cap. 104). This section provides that no person shall be entitled to bring an action or other legal proceeding until the completion of an inquiry by the Board of Trade (which that Board is authorised to institute) as to the number, names, and descriptions of all persons killed or injured by reason of any wrongful act, neglect, or default, or until the Board of Trade has refused to institute that inquiry. The 507th section states the mode by which the Board may carry out such inquiry. If the Board of Trade refuse to institute any inquiry, then the person injured, or those in his right, may bring the action or other legal proceeding.

“About three weeks after the collision which is complained of, and which resulted in the loss of life for which damages are claimed, the agents for the Vice-Consul for Norway and Sweden (of one of which countries the pursuer's husband was a native) wrote to the Board of Trade a letter requesting them to make an inquiry into the circumstances attending the collision, and they received from that Board a letter refusing to make any inquiry whatever. The writer of that letter says—‘I am directed by the Board of Trade to inform you that they do not, as at present advised, intend to institute a formal inquiry into the supposed sinking of the Norwegian brig “Fram” by collision with the steamship “Hestia” of Greenock.

“This refusal of the Board took off the prohibition against an action being raised. Anyone injured, or those in his right, was thereupon entitled to proceed at once with an action for damages. When the Board refused to inquire into the matter of the sinking of the vessel, they refused in like manner to require the Sheriff under section 507 to summon a jury to determine the number, names, and descriptions of all persons killed or injured, and it is of no consequence that their letter intimating this resolution was not addressed to the pursuer, but to the agents for the Vice-Consul of the pursuer's nation at Glasgow.

“But further, even supposing that this intimation of the Board of Trade's resolution were not sufficient, the letter received from the Board after this action was in Court, to the effect that the Board did not intend to institute any inquiry, would be enough to satisfy the statute. There are precedents for holding that although no action may be taken or thing done without the consent of some third party, subsequent consent will be sufficient; and the refusal intimated by the Board of Trade after the action was in Court removed the technical objection stated to the competency of the action. For illustrations of this reference can be made to many cases.—See Hepburn v. Blair, M. 6047; Borthwick v. Urquhart or Grant, February 17, 1829, 7 S. 420; Lyle v. Mackay, January 23, 1849, 11 D. 404; Wellwood v. Boswell, June 21, 1851, 13 D. 1211.”

The defenders reclaimed, and argued—The action was clearly incompetent at the date when

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it was brought. The Vice-Consul's letter was not a notice under Part IX., but a request for an inquiry under Part VIII. There was thus a want of what was a condition-precedent to the action. The cases cited by the Lord Ordinary were cases where a defect in the instance had been remedied by the concurrence of the person having the requisite title, or where there was an irritancy which might be purged— Mackay v. Allan, decided by Lord Mure in Outer House, February 19, 1868, 40 S. J. 221. Similar cases were familiar under the Poor Law Act, sec. 86—See Ferguson v. M'Ewen, February 7, 1852, 14 D. 457.

Argued for pursuer—(1) The letter of the Vice-Consul was good as a notice. It requested information as to the intention of the Board of Trade on the subject of the collision. It was sent by a person bound ex officio to attend to the interests, pecuniary and otherwise, of the crew of the “Fram” and their relatives. (2) In any event, the notice given after the action was raised would, as the Lord Ordinary held, avail to the pursuer. It cured any defect there might be, and would obviate the hardship of denying the pursuer a remedy in consequence of a plea founded on provisions in the Act of 1854 which were never carried into practice.

The Lords made avizandum.

At advising—