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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Det Forenede Dampskibs Selskab (Owners of S.S. "Olga") v. Somerville & Gibson (Owners of S.S. "Anglia") and Van Eijck & Zoon and Others (Owners of Cargo on Board S.S. "Anglia") [1907] ScotLR 776 (15 June 1907)
URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0776.html
Cite as: [1907] SLR 776, [1907] ScotLR 776

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SCOTTISH_SLR_Court_of_Session

Page: 776

Court of Session Inner House Second Division.

(Single Bills.)

Saturday, June 15. 1907.

44 SLR 776

Det Forenede Dampskibs Selskab (Owners of S.S. “Olga”)

v.

Somerville & Gibson (Owners of S.S. “Anglia”) and Van Eijck & Zoon and Others (Owners of Cargo on Board S.S. “Anglia”).

( Ante March 16, 1905, 42 S.L.R. 439, 7 F. 739, and July 20, 1906, 43 S.L.R. 841, 8 F. (H.L.) 22.)


Subject_1Expenses
Subject_2Ship
Subject_3Collision
Subject_4Limitation of Liability — Collision Occasioned by Fault of Both Vessels — Petitioners for Limitation of Liability Found Liable in Expenses of Claims — Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), secs. 503 and 504.
Facts:

The owners of a ship brought a petition under the 503rd and 504th sections of the Merchant Shipping Act 1894, for limitation of their liability for loss caused by a collision in which both ships were found to be in fault. Held that the owners of the other ship, and the owners of the cargo on the other ship, were entitled to the expenses of their respective claims, and relative procedure in the limitation proceedings, against the petitioners, and that the fact that both ships were to blame did not affect the matter.

Headnote:

This case is reported ante ut supra.

On 18th February 1903 a collision occurred between the s.s. “Olga” and the s.s. “Anglia.” Cross actions of damages were brought, and the Court held both ships to blame, and the loss of the owners of the “Anglia” was found to be £14,687, and that of the owners of the “Olga” £387, 10s. 11d., the total loss thus being £15,074, 10s. 11d. Each ship was debited with half that sum, and after crediting the “Olga” with the amount of her loss, the Court decerned against her for the balance, viz., £7149, 14s. 7d. Thereafter the owners of the “Olga” petitioned under sections 503 and 504 of the Merchant Shipping Act 1894 for limitation of their liability. The owners of the cargo on board the “Anglia” lodged a claim for one-half of the value of the cargo which had been lost, and disputed with the owners of the “Anglia,” who claimed to rank for the full amount of their decree, the correctness of the value of the “Anglia” as found by the Court in the previous proceedings, and claimed, and eventually were held to be entitled to, reopen the question of her value.

[Up to this point the case is reported ante ut supra.]

Thereafter both claimants moved for the expenses of lodging their respective claims and relative procedure in the limitation proceedings. They argued that the limitation proceedings were an advantage to the petitioners as preventing the expense of defending separate actions, and that it was settled that the petitioning ship was liable for the expenses of lodging claims. The cargo owners, alternatively, argued that in any case the fault of the “Anglia” did not affect them. Reference was made to Burrell v. Simpson & Company, July 19, 1877, 4 R. 1133, 14 S.L.R. 667; Carron Company v. Cayzer, Irvine & Company, November 3, 1885, 13 R. 114, 23 S.L.R. 81; and Marsden on Collisions, p. 161.

The petitioners opposed the motion, and argued that the rule that the petitioning ship paid the expenses of lodging claims did not apply where both ships were in fault, and that in the cases cited only one ship had been in fault. They referred to Miller and Others v. Powell and Others, July 20, 1875, 2 R. 976, at 979.

Lord Justice-Clerk—Whatever might have been our opinion if this question were now before us for the first time, I think the matter is practically settled by authority in the case of the Carron Company ( 1885, 13 R. 114). The Lord President observes that a party who has presented a petition for limitation of liability is bound to pay the expenses of the procedure, for the reason that the procedure is rendered necessary by the fact of the collision occasioned through his fault. In the present instance the collision was occasioned by the fault of the petitioners' vessel and the fact that the “Anglia” was also to blame does not seem to me to matter at all in the question before us. The owners of the “Olga” appeal by petition under Act of Parliament in order to limit their liability, and to save themselves from actions which would be

Page: 777

raised against them, and to which they would otherwise have had no defence. In such circumstances I think it is perfectly right that they should pay the expense of claims lodged in the petition.

Judgment:

Lord Ardwall—I concur. I think this matter is settled by invariable practice not only in Scotland but also in England, where there are many more cases of this nature than in our Courts. Further, I think that the rule as laid down in these cases is founded on good sense and equity. The petition is presented by the ship or one of the ships which is to blame for a collision in order to get rid of full liability for damage. It is presented purely in the interest of the shipowner, who thereby escapes paying full damages, and the expenses of many actions which might have been brought against him. I think that the fund to which liability has been limited should not be encroached upon by the expenses of the limitation petition, and that the petitioner should pay the expenses of the claimants in these proceedings, excluding of course all expenses caused by the competition between the various claimants in which he has no interest and for which he has no responsibility.

Lord Stormonth Darling and Lord Low concurred.

The Court pronounced this interlocutor—

“… Find the claimants RobertSomerville and another, and C. A. Van Eijck & Zoon, entitled to the expenses of their respective claims and relative procedure in the limitation proceedings against the petitioners the owners of the s.s. ‘Olga.’ …”

Counsel:

Counsel for the Petitioners— Hon. W. Watson. Agents— Alexander Morison & Company, W.S.

Counsel for the Claimants (the Owners of the s.s. “Anglia”)— W. T. Watson. Agents — Beveridge, Sutherland, & Smith, S.S.C.

Counsel for the Claimants (the Owners of the Cargo)— Spens. Agents— Boyd, Jameson, & Young, W.S.

1907


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URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0776.html