Scottish Court of Session Decisions

Thomas Black, sailmaker and ship-store merchant, Greenock, made furnishings to the owners of the ship “Huron” in the year 1886 to the value of £130, 2s. 10d. On 8th September 1886 he used arrestments to found jurisdiction by arresting the “Huron” in Lamlash Bay, where she was then lying. On the same day he raised an action against Thomas Bryson, the master of the ship, for payment of the account, and the owners, Jehangeer Framjee & Company, East India merchants, Loudon, having sisted themselves as defenders, defended the action. Arrestments were used by the pursuer on the dependence.

As the vessel was lying in Lamlash Bay, and was ready for sea, the pursuer applied to the Lord Ordinary on the Bills for warrant to remove her to a safe harbour and dismantle her, and the Lord Ordinary on 9th September granted warrant to remove her to Greenock and dismantle her. This warrant was carried into execution at a considerable expense.

On 8th October 1886 the owners applied for loosing of the arrestments on the dependence.

The Lord Ordinary on the Bills loosed the arrestmeuts on condition of the defenders consigning £400 to meet the pursuer's claims. This £400 was not consigned. Instead of making the consignation the owners, Jehangeer Framjee & Company, endeavoured to get the vessel released by means of an extrajudicial tender. They applied to the pursuer Black for his account of expenses, and the parties agreed to have this account taxed by the Auditor of the Court, which was done on the 12th of October 1886. The amount of the account was £199, 11s. 9d., but the Auditor taxed it at the sum of £21, 7s. 7½d. The sum which was disallowed, and for which the Auditor expressly reserved the claim of the pursuer, was composed of items of expense attending the arrestments, removal of the vessel to a safe port, and there dismantling her. The Auditor in the taxation of the account held that these were not expenses of process, and therefore must be recovered in some other way.

On the 15th October 1886 the defenders tendered payment of the sum concluded for, viz., £190, 2s. 10d. with interest thereon, and the taxed expenses, £21, 7s. 8d. This tender was declined. Thereafter they again applied to the Lord Ordinary on the Bills to discharge the arrestments on the dependence on consignation of the said sums of £190 and £21, but the Lord Ordinary on the Bills refused to make any further order.

The case was argued in the Court of Session

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before the Lord Ordinary ( Fraser), and on 14th January 1887 he decerned against the defenders in terms of the conclusions of the summons, and found the pursuer entitled to expenses.

The defenders reclaimed, and argued that the action should be dismissed as tender had been made of the sum sued for and expenses before the action came into Court. The pursuer was not entitled to the expenses of arrestment and dismantling. The diligence was used by him for his own security, and the expenses of it could form no part of the expenses of the present process— Symington v. Symington, June 11, 1874, 1 R. 1006; Taylor v. Taylor, January 25, 1820, F.C.; M'Dowall v. Stewart, December 1, 1871, 10 Macph. 193. No doubt in Admiralty actions there was a distinction between actions in rem and in personam— Harmer v. Bell, 7 Mor. P. C. R. 267; Smith on Maritime Practice, 31, 24. Here the action was in personam. It was a claim for stores furnished, not for seamen's wages, or on a bond of bottomry, or for anything connected with the ship itself—Smith, ib. 47; 2 Bell's Comm. 98. It was said that the warrant was part of every Admiralty summons. That only went to show that the Admiralty Court was in advance of the other Courts— Clark v. Loos, June 17, 1863, 15 D. 750; for until 1 and 2 Vict. cap. 114, sec. 16, a separate warrant was necessary in ordinary summonses.

Argued for the pursuer—That the expenses of arrestment and dismantling formed part of the expenses of the process. In Symington and Taylor, supra, the actions were ordinary actions. But the arresting of a ship forms part of the Admiralty practice. Now this action was truly an action in rem. The warrant of arrestment formed an integral part of the old Admiralty summons. It was then all one process, and the expenses attached rei— i.e., to the ship. In England the marshall's fees—the marshal being the English counterpart of the Scottish messenger-at-arms—were included in the regular bill of costs—Williams and Bruce on Admiralty Practice, 236, 248, 832. Moreover, the expenses incurred were necessary; for the precept bore that the ship is to be brought to a safe anchorage. Had he not done so the master would have been liable in an action of damages— Kennedy v. M'Kinnon and M'Leod, December 13, 1821, 1 S. 198 (N.E.); Paterson v. M'Lean and Hope and Hertz, January 14, 1868, 6 Macph. 218.

At advising—