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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Lauchlan. v. Rapp [1909] ScotLR 257 (22 October 1909) URL: http://www.bailii.org/scot/cases/ScotCS/1909/47SLR0257.html Cite as: [1909] SLR 257, [1909] ScotLR 257 |
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Page: 257↓
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Process — Procedure — Ship — Conjoined Actions — Tender and Acceptance — Tender by Common Defender — Acceptance by Each of the Pursuers — Cumulo Amount of Both Acceptances in Excess of Tender — Motion by Defender to be Dropped from Cause.
Expenses — Ship — Conjoined Actions — Salvage of Vessel Claimed by Two Different Pursuers — Tender by Common Defender Accepted but in Different Proportions by Pursuers — Proof between Pursuers.
Two persons raised separate actions against a shipowner for salvage of a certain vessel which had gone ashore, each making similar averments as to the dangerous position of the ship, the value of the property salved, and the meritoriousness of the services rendered, but claiming the award for himself. On a motion for conjunction of the actions on the part of the defender, which was opposed by one of the pursuers, the Court ( per Lord Salvesen, Ordinary) ordered the actions to be conjoined, and appointed one of the pursuers to conduct the case so far as it was common to both pursuers.
In conjoined actions by two pursuers claiming an award of salvage for services rendered on the same occasion, the common defender tendered a sum of £550. One pursuer lodged a minute
Page: 258↓
accepting the tender to the extent of £500, and the other to the full amount of the tender, viz. £550. The defender moved to be dropped from the cause in respect of his tender and the acceptance thereof. The Court ( per Lord Salvesen) refused the motion on the ground that the acceptances being for a cumulo sum of £1050 did not meet the tender of £550. A and B, pursuers in conjoined actions for salvage, agreed that a sum of £550, tendered by the common defender, was sufficient remuneration for their services, but accepted the tender in different proportions, viz., A for £500 and B for £550. In a proof A was found entitled to £500, and B to £50. Held ( per Lord Salvesen) that B was liable in the expenses of the proof to A.
On 26th March 1909 John Simpson Wilson, steam tug owner, Bo'ness, raised an action against Fritz Rapp, master of the steamship “Konigsau” of Flensburg, and as representing the ownership thereof in this country, concluding for payment of £1500 in name of salvage services. On 24th May 1909 John M'Lauchlan, hotelkeeper, Star Hotel, Aberdour, also raised an action against the same defender claiming £1500 as sole salvor of the “Konigsau” on the occasion in question. The circumstances sufficiently appear from the Lord Ordinary's opinion infra.
At the adjustment of record in both actions on 23rd June 1909, counsel for the defender moved to have the actions conjoined. This was assented to on behalf of M'Lauchlan, but opposed on behalf of Wilson.
At advising on 1st July 1909—
“The pursuer M'Lauchlan also claims salvage on the ground that having been the first to locate the vessel he was asked by the master to take her off the rocks, and that he engaged for that purpose the tugs belonging to the other pursuer. He claims also to have directed the whole salvage operations.
It is apparent from the above summary of the averments of the pursuer in each action that they are at variance as to whether the salvage is wholly payable to one or other or partly to both. They could not therefore have joined in raising one action. On the other hand they make similar statements as to the perilous position of the stranded ship, the value of the property salved, and the meritorious nature of the services rendered; and of course both are equally interested in obtaining as large an award as possible. The defenders now ask me to conjoin the two actions, so that they may not be subjected to unnecessary expense, and so that they may have an opportunity of making a single tender. The motion for conjunction is supported by the pursuer John M'Lauchlan, who is willing that the other pursuer should have the conduct of the case so far as it does not conflict with his separate position; while the pursuer Wilson objects strenuously to any conjunction.
It was laid down by Bruce, J., in the case of the ‘ Strathgarry,’ 1895, P.D. 264, at p. 266, that ‘the matters which ordinarily lead the Court to order consolidation in salvage actions are considerations of convenience and ecomomy.’ I apprehend that the same considerations regulate our practice.
If the actions are to proceed as separate actions, it would be necessary, apart from the consent of parties, to have the same facts inquired into twice, even if they were put down for trial on the same day. This would obviously cause a great deal of unnecessary expense. Further, if one of the pursuers was dissatisfied with the amount of the award in his case and reclaimed to the Inner House, it might be necessary for the defenders to submit the other case to review also, although both parties were satisfied with the amount awarded, in case the Inner House should take a different view as to the relative services of the two salvors. All this is obviously most inexpedient. On the other hand, if the actions are conjoined and the conduct of the case given to one of the pursuers, the other will only require to lead evidence as to the matters relating to his share in the services rendered, and the evidence for the defender will be led after that for both pursuers has been taken. I cannot see how any possible injustice can be done to either of the pursuers by this procedure. The pursuers will of course be entitled to the services of separate agents and counsel at the proof to compete against each other as to the division of the salvage award. As to this the defenders have really no interest, and it would appear to be unjust to throw upon them the onus of deciding for themselves which of the competing claims is entitled to most consideration. On grounds of convenience and economy, therefore, it would appear to be plainly desirable that the actions should be conjoined.
The pursuer Wilson maintained conjunction in such circumstances to be incompetent, and while I agree that there is no precedent for it in Scotland, it seems now to be settled in England, after some conflict of opinion, that where there are several suits at the instance of salvors who are all claiming to be rewarded by the owners of one vessel, such suits should be consolidated unless there is a risk of injustice being done to the rival claimants. This practice was fixed by the decision in the case of the ‘ Strathgarry’ overruling a previous practice, under which the
Page: 259↓
The real reason why the pursuer Wilson objects to conjunction is that he is apprehensive that the defenders will thereupon make a tender of one sum, as was done in the case of the “ Jacob Landstrom,” (1878) 4 P.D. 191, and leave the two pursuers the responsibility of deciding—if they are otherwise satisfied with the gross amount tendered—as to how it should be divided between them. I do not propose to decide at present a point that may not arise for decision, namely, whether such a tender in the conjoined actions would be sufficient, or whether according to our practice the defenders must tender a specific sum to each pursuer. I am quite satisfied, however, that apart from conjunction it would not be competent to pronounce such an order as Sir Robert Phillimore made in the case just cited, ordering a single tender for the whole services rendered to the ship, leaving to the defenders to elect in which action it was to be paid in. Whether the responsibility of dividing the fund is to be thrown upon the pursuers or defenders does not in my opinion affect the question of conjunction, which depends upon other grounds. I shall accordingly pronounce an order conjoining the actions, and appointing the pursuer Wilson in the conjoined actions to conduct the case so far as it is common to both claimants.”
His Lordship pronounced this interlocutor ( Wilson's Case)—“The Lord Ordinary closes the record on the summons and defences, … and having considered the motion of the defender to conjoin herewith the action at the instance of John M'Lauchlan against the present defender, conjoins herewith the said actions; and in the conjoined actions allows to the parties a proof of their respective averments, and to the respective pursuers a conjunct probation; grants diligence against witnesses and havers; and appoints the proof to proceed before the Lord Ordinary on the 20th October 1909 at 10 o'clock forenoon; further, appoints the pursuer John Simpson Wilson, in the conjoined actions, to conduct the case so far as it is common to both claimants; reserves meantime all questions of expenses.”
On 1st July 1909 the following minute of tender was lodged on behalf of the defender—“Armit, for the defender, stated to the Court that he tendered, and hereby tenders, to the pursuers in the conjoined actions, in full of the conclusions in the actions (1) at the instance of John Simpson Wilson, steam-tug owner, Bo'ness, registered owner of the steam-tugs ‘Pero Gomez,’ ‘Flying Fish,’ and ‘Royal Norman’ of Bo'ness, and (2) at the instance of John M'Lauchlan, hotelkeeper, Star Hotel, Aber—dour, the sum of £550 sterling, with expenses to date as same may be taxed.”
On 5th July the following minute was lodged on behalf of the pursuer (Wilson)—“W. T. Watson, for the minuter, stated to the Lord Ordinary that so far as the minuter's interest as pursuer of the action at his instance is concerned, he is willing to accept, and hereby accepts, the defender's minute of tender to the extent of the sum of £500, with expenses of process to the date of the lodging of the said minute of tender, in full of the conclusions of the summons at his instance.”
On 8th July the following minute was lodged on behalf of the pursuer (M'Lauchlan)—“Deas, for the minuter, stated to the Lord Ordinary that so far as the minuter's interest as pursuer of the action at his instance is concerned, he is willing to accept, and hereby accepts, the defender's minute of tender, with expenses of process to the date of the lodging of the said minute of tender, in full of the conclusions of the summons at his instance.”
Thereupon counsel for the defender moved the Court to find that so far as the defender was concerned the action was at an end. The Lord Ordinary, however, refused the motion, on the ground that the minutes of acceptance being together for a cumulo sum of £1050 did not meet the tender of £550.
On 27th July a joint-minute was lodged for the pursuers in the following terms—“Watson, for the pursuer Wilson, and Deas for the pursuer M'Lauchlan, concurred in stating to the Court that, without prejudice to and under reservation of their rights and pleas and their objection to the competency of the minute of tender, they were agreed, and hereby agree, that the sum of £550 contained in the said minute of tender is reasonable remuneration for the whole services rendered by the said pursuers and by the tugs ‘Pero Gomez,’ ‘Flying Fish,’ and ‘Royal Norman,’ and the masters and crews of these vessels, to the s.s. ‘Konigsau’ and her cargo and freight.”
Before the proof began, on 20th October, it was stated on behalf of the defender, that in view of the above-mentioned joint-minute of 27th July, he had no interest to appear at the proof, but reserved his right to be heard on the question of expenses.
Evidence was then led by the two pursuers to determine by which of them the vessel had been salved. M'Lauchlan claimed the whole salvage, or alternatively, in any case, a larger proportion of the salvage than
Page: 260↓
On 22nd October the Court awarded Wilson £500 and M'Lauchlan £50. The Lord Ordinary held it established that Wilson had really salved the vessel, and that £50 was ample remuneration to M'Lauchlan for such personal services as he had rendered in the matter.
On the question of expenses it was contended for M'Lauchlan that each pursuer should pay his own expenses, and the following authority was referred to—‘ The Lee,’ May 15, 1889, 6 Asp. Mar. Cas. 395.
The Lord Ordinary pronounced an interlocutor by which he found the defender liable in expenses to both pursuers down to the date of the tender; found M'Lauchlan liable in expenses to Wilson from 5th July, and further found M'Lauchlan liable to defender in expenses from the date of the tender to 27th July, and quoad ultra found no expenses due to or by any of the parties.
Counsel for the Pursuer Wilson— Murray, K.C.— W. T. Watson. Agents— Beveridge, Sutherland, & Smith, S.S.C.
Counsel for the Pursuer M'Lauchlan— T. B. Morison, K.C.— Armit. Agents— Bruce & Black, W.S.
Counsel for the Defender— Horne. Agents— Boyd, Jameson, & Young, W.S.
