Scottish Court of Session Decisions

The Commissioners of the Admiralty raised an action against the Aberdeen Steam Trawling and Fishing Company, Limited, concluding for the sum of £1356, 11s. 10d., being the total cost of repairs, including charges for the use of dry dock, executed upon H.M.S. “Topaze” as the result of a collision between that vessel and the defenders' steam trawler “Stratherrick.” It was held that the collision was due solely to the fault of the “Stratherrick.”

The collision occurred on 25th March 1908 in the North Sea, off the mouth of the Moray Firth. The “Topaze” although damaged was able to steam to Chatham Dockyard, where she was laid up for repairs. The actual cost of repairs was £348, 2s. 10d. In addition, however, the pursuers claimed, inter alia, (1) the sum of £188, 14s. 10d. for transporting, docking, and undocking the ship at Chatham; (2) the sum of £180, 18s. 9d. for coating the bottom of the “Topaze”; and (3) the sum of £620 as a charge for the use of the dock at the rate of £20 per day. The defenders objected to these three charges, but subsequently abandoned their objection to the second item, and they led evidence to show that if the repairs had been carried out in a private or public yard the charges under the first and third heads would have been considerably lower.

On 28th January 1909 the Lord Ordinary ( Johnston) pronounced this interlocutor—“Decerns against the defenders for payment to the pursuers of the sum of £1117, 15s. 5d. sterling, with interest thereon as concluded for in the summons; Finds the pursuers entitled to expenses,” &c.

Opinion.—[ ]—“It remains to ascertain what that damage amounts to. The total sum which the Admiralty claim is £1348, 1s. 5d., per the statement No. 18 of process, being a few pounds less than the sum sued for. The ‘Topaze’ though damaged was able to steam from the place of collision to Chatham dockyard, and was there laid up for repairs. The actual cost of the repairs as done by the Admiralty dockyard workmen only amounted to the two sums of £56, 3s. 8d. and £291, 19s. 2d., or £348, 2s. 10d. in all, and to this the defenders do not object per se.

“What they do object to is—

1st. The charge for transporting, docking, and undocking the ship, £188, 14s. 10d. This charge had nothing to do with the cost of steaming from the Moray Firth to the Medway, but was entirely occasioned by the time and labour involved in taking the ‘Topaze’ from the Medway into the graving dock, laying her up there, and taking her out again. From local circumstances this is an unusually difficult and lengthy operation. The disposal of this objection may be postponed till I deal with the third.

2nd. The charge for coating the bottom of the ‘Topaze,’ £180, 18s. 9d. The defenders say that they are not bound to pay more than the cost of recoating the parts damaged, and, moreover, that the vessel was due to be entirely recoated within a twelvemonth for her periodical survey, and that the recoating now done will obviate that necessity and last for a couple of years beyond such survey. I may dispose of this contention at once. It is proved without contradiction that the exposure to the air involved in laying up in the graving dock so deteriorates the coating composition used that recoating the whole bottom is necessary before a ship is again launched. And the claim for rebate in respect of the advantage from recoating now instead of at next survey is disposed of by the judgment in the case of the ‘ Bernina,’ 1886, 6 Mar. Law Cases, new series, 65. I adopt the judgment of Sir James Hannen, who states very clearly the reason why no such rebate can be given.

3rd. The charge for use of the dock, 31 days at £20 a day=£620. The defenders object to the length of time occupied. They say that by any but Government employees much less time would have been taken, and that the work done may have been very good and thorough, but that it was unduly leisurely. This contention is I think disposed of by consideration of the very exceptional lines of the prow of the ‘Topaze,’ as shown on No. 45 of process, and of the nature of the damage done to her stem. But the defenders maintain further that the ‘Topaze’ might have been docked in various public and private graving docks much nearer the scene of the collision, and could then have been repaired by private firms, for dock charges very materially less than those made by the Admiralty, and evidence was given both as to Leith, Hull, and Liverpool. It is conceded I think on the one side that £20 a-day is no sufficient return on the capital sunk by the Admiralty in such a dock as the one which the ‘Topaze’ occupied, and on the other hand that much lower charges are made for suitable accommodation at all the places which I have mentioned and probably at others. But then these docks, whether public or private, avowedly charge sums which make no adequate return on the docks themselves, to attract repairing work with all that is consequential to their port or to their particular yard. It is in evidence that the balance is readjusted by the shipowner having no hold over the cost of repairs, which cannot be contracted for and are done by piece work. And the Admiralty maintain that their gross charge for docking and work would be found to be no greater than the corresponding cumulo charges at any of the ports named, their charge for repair being as much less as the charge for docking is greater than the corresponding charge elsewhere.

This matter I must treat as a jury question. It is not capable of being reduced to accurate figures. I am prepared to sustain the explanation of the Admiralty in principle, though not to the full extent of their figures.

On the best consideration which I can give to the subject I assess the damages at £1117, 15s. 5d., for which sum I shall decern in favour of the Lord Commissioners of the Admiralty with expenses.”

The defenders reclaimed, and argued—The claim under the first head was excessive. The ship should have been docked near the scene of the collision. Repairs could have been carried out in several private yards at a much lower cost than the amount charged. The evidence went to show that about one third of the amount would have been a reasonable charge. The charge for the use of the dock was bad in toto. The pursuers had not proved loss of accommodation through other vessels being prevented from using the dock, nor any loss of profit directly attributable to the defenders' fault. In any case the rate was excessive.

Argued for the pursuers — The charge under the first head was reasonable. Nothing was included for the expense of getting the ship from the scene of the collision to the dockyard. The charges for the use of the dock were what would have been made to non-naval vessels. It was true that no other dock had to be hired, but the ordinary work of the yard was hindered. It might be that this particular charge would have been lower in a private yard, but taking dockyards generally, it had not been proved exorbitant. Taken as a whole, the claim was reasonable, and in the aggregate it would probably have been the same had the work been completed elsewhere though perhaps differently compiled.

At advising—