BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petersen and Mandatory v. M'Lean & Hope and Hertz [1867] ScotLR 5_172 (14 January 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0172.html Cite as: [1867] SLR 5_172, [1867] ScotLR 5_172 |
||
[New search] [Printable PDF version] [Help]
Page: 172↓
Issues adjusted to try questions of wrongful invasion and removal of vessel, malicious arrestment of vessel, and unskilful management, causing damage to vessel.
The pursuer of this action, Niels Christian Petersen, is master and part-owner of the vessel “Nayaden.” The defenders, M'Lean & Hope, are merchants in Leith, and the other defender is a merchant in Glasgow.
The “Nayaden” had been employed in bringing over a cargo of bones from Barcelona to Leith, deliverable to Hertz or his order. By 9th May 1867 the cargo was delivered at Leith to M'Lean & Hope, holders of the bill of lading. On 15th May, the vessel was taken to the roadstead of St Davids, in the Firth of Forth, to load a cargo of coals for Flensburgh. The pursuer alleged that the vessel, on account of her tonnage, build, and other circumstances, could not safely be taken into or allowed to remain in a tidal harbour, where she was liable to be left aground for a length of time on the receding of each tide. “Accordingly, the pursuer intended to load in the said roadstead, and had made arrangements for going into the harbour and taking part of the cargo on board when the tide was in, and thereafter going out again to the roadstead, bringing the cargo from St Davids in lighters or small vessels, and putting it on board in the roadstead. About nine o'clock at night on 16th May 1867, while the said vessel was lying safely at anchor in said roadstead, a number of men, acting on the orders of the defenders, or for whom the defenders are responsible, came on board and illegally took possession of her, hove up the anchor, loosened the top-sails, and carried her into the harbour of Inverkeithing, to the danger of the lives of all on board, the vessel having no ballast. No arrestment was used or executed, or at least no arrestment was regularly and validly used or executed at this time. If any arrestment was used, it was illegal, oppressive, malicious, and without probable cause. The harbour of Inverkeithing is not a place to which such a vessel should have been taken, or in which she could remain in safety, and this was, or ought to have been, well known to the defenders, and to said parties. Further, the pursuer specially remonstrated against the said vessel being taken into the harbour of Inverkeithing, and pointed out to the said parties who came on board as aforesaid that injury and damage would necessarily arise to the vessel from her being taken into said harbour, or into a tidal harbour; but, notwithstanding of said remonstrances, they persisted in their said illegal proceedings. In entering the said harbour, the said parties who had taken possession of the vessel, by unskilful and reckless management, ran her up against the quay, and against a coal spout on said quay, to her injury and damage. The collision caused the vessel to lurch to starboard, and she afterwards again struck against the quay, thereby suffering additional damage. When said vessel was brought into the harbour, a pretended arrestment was executed by one of said parties, who stated that he was John Thomson, messenger-at—arms, and was acting under the defenders' instructions. The said arrestment was used on a summons at the instance of the defenders M'Lean & Hope, with consent and concurrence of the other defender, Theodor Hertz, against the pursuer as master and part owner, and for himself and as representing the other owners of the vessel, for payment of £297, 6s. 4d., for alleged short delivery of the foresaid cargo of bones. The said claim against the pursuer was entirely without foundation, the pursuer having delivered the whole cargo of bones put into his vessel at Barcelona. In said action the defenders altogether disregarded the qualification contained in the said bills of lading, and also calculated the tonelada as equivalent to the English ton. Before using said arrestment, the defenders made no inquiry whatever as to the quantity contained in the Spanish tonelada. The said arrestment was illegal and oppressive, and was used maliciously and without probable cause, or at least recklessly and without due caution or inquiry. The said John Thomson, under colour of the said pretended warrant of arrestment, caused the said vessel to be laid alongside the quay-wall of said harbour, where, at every fall of the tide, she received additional damage by falling over and lying on the wall or quay, which slopes outwards. In consequence of this and other improper and reckless usage by said parties, as also from being moored in said harbour and allowed to take the ground, the vessel received great damage and injury in her hull and timbers, and the copper was torn off her in several places. She was also considerably strained, and at each tide made a deal of water. In consequence of said injuries caused by the proceedings of the defenders, the said vessel was so damaged that she was not in a condition to take in cargo or proceed to sea, and required to be placed in a dry dock and repaired.”
The pursuer sought damages, and proposed four issues, which, as finally adjusted, stood as follows:—
“(1) Whether, on or about 16th May 1867, and in or near the roadstead of St Davids, in the Firth of Forth, the defenders, or others acting by their orders, wrongfully, and without legal warrant, invaded and took possession of the said vessel, and brought her to the harbour of Inverkeithing, to the loss, injury, and damage of the pursuer?
(2) Whether, on or about the said 16th day of May 1867, the said defenders maliciously, and without probable cause, arrested the said vessel on the dependence of said action, and caused her to be detained, first in the harbour of Inverkeithing, and thereafter in the harbour of Leith, from said date till 22d June 1867, to the loss, injury, and damage of the pursuer?
(3) Whether, on or about said 16th May 1867, the
Page: 173↓
defenders, or others acting under their orders, did, by gross negligence or gross unskilfulness, cause the said vessel to strike against the quay at the said harbour of Inverkeithing, and against a coal-spout on said quay, whereby she sustained damage in her hull, rigging, and other parts, to the loss, injury, and damage of the pursuer? (4) Whether the said harbour of Inverkeithing was an unsafe harbour in which to place the said vessel; and whether the defenders, or others acting by their orders, did, by gross negligence or gross unskilfulness, cause the said vessel to be placed in said harbour on or about said 16th May 1867, and detained therein from said date till on or about the 8th June 1867, whereby she suffered damage in her hull, rigging, and other parts, to the loss, injury, and damage of the pursuer?”
Schedule of damages laid at £2000 sterling.
The Lord Ordinary ( Barcaple) reported on issues, with this note:—
“The parties differ widely as to these issues. In the first place, the defenders maintain that the matters embraced in the first, third, and fourth issues should be the subject of one issue; the injuries done to the vessel, which are the subjects of the third and fourth issues, being merely part of the alleged damage resulting from the illegal seizure, which is the subject of the first issue. They also maintain that the second issue is not in any respect alternative to the first, there being no allegation on the record that any arrestment was used until after the vessel had been taken into the harbour of Inverkeithing.
The Lord Ordinary is disposed to think that the injuries referred to in the third and fourth issues may properly be the subject of separate issues, as, if they were caused by improper or unskillful conduct, they may found a claim for damages, whether the vessel was wrongly taken possession of or not.
From the peculiar phraseology of the sixteenth article of the condescendence, it is difficult to say that it contains any averment that the vessel was arrested before it was taken into the harbour. The Lord Ordinary is inclined, though not without hesitation, to think that it may be read as containing such an averment, as alternative to the leading averment that it was illegally taken possession of. He therefore thinks that the pursuer is entitled so to frame the second issue as to embrace the case of the arrestment having taken place in the roadstead, if that shall turn out to be the case.
The defenders maintain, in reference to the averment in article sixteenth of the condescendence, that the only connection alleged to exist between them and the persons who took possession of the vessel, is, that they acted on the orders of the defenders, and that this ought to be inserted in the first issue, as the sole ground of responsibility alleged against them. This does not seem to be a matter of practical importance; but the Lord Ordinary thinks it would be more correct that the issue should bear that the vessel was taken possession of by persons acting on the orders of the defenders, and for whom they are responsible.
The defenders further object to the second issue that there are not relevant averments to warrant an issue of the use of arrestments maliciously and without probable cause. The pursuer refers to the case of Baillie v. Hume, 16 D. 161, in which it seems to have been decided that it is sufficient to make the averment in general terms, provided the pursuer's other statements are not such as to exclude the existence of malice and want of probable cause.
Assuming that the pursuer is entitled to these issues generally as framed, the Lord Ordinary thinks they may be amended in point of expression.”
Gifford and Scott for pursuer.
Young and W. M. Thomson for defenders.
After discussion, the issues, as amended, stood as above.
Lord President—The question is, whether these issues are to be allowed as fairly raised by the record. Now, the case is in some respects peculiar, and it is necessary to keep in view the situation of this vessel, and the master and crew, at the time when the proceedings complained of took place. The vessel was a foreign vessel, with a foreign master and Crew and had been taken to the roadstead of St Davids as being the most suitable place for loading her cargo. The reason assigned for this is the peculiar build of the vessel. The harbour of Inverkeithing, to which the vessel would naturally have proceeded otherwise, is alleged to be a harbour of an unsuitable and unsafe kind for such a vessel, and therefore she was lying in the roadstead of St Davids. In these circumstances, it is alleged that on 16th May, about nine o'clock at night, when the vessel was safely lying at anchor, some persons, acting under the authority of the defenders, illegally invaded her, took possession of her, and carried her into the harbour of Inverkeithing. Now, that action of itself—the illegal invasion of a vessel and carrying her off from her anchorage—is a legal wrong for which the parties committing it are unquestionably liable in damages, and that forms the subject of the first issue. 1 think the first issue fairly represents that part of the record, and is correctly enough expressed. But the pursuer further alleges that the harbour of Inverkeithing is not a place to which such a vessel should have been taken, or in which she could remain safely; that this was well known to the defenders; and that the pursuer remonstrated, and pointed that out to the defenders. Then, it is alleged that in entering the harbour the parties who had taken possession of the vessel, by their recklessness and unskilfulness, ran her up against the quay, and that, when the vessel was brought into the harbour, arrestments were executed on the dependence of a summons at the instance of the defenders against the pursuer. Then, it is said farther that this claim was unfounded, and that the action raised against the pursuer for the purpose of enforcing that claim was withdrawn, and that therefore the pursuers are in the same position as if they had been assoilzied. Farther, they say that the messenger-at-arms, under the warrant of arrestment, caused the vessel to be laid alongside the quay wall, where in various ways she was damaged. Out of these allegations the pursuers propose to take the second, third, and fourth issues, and the question is, whether, within the allegations, there is sufficient matter to justify them. I have not much doubt that the record warrants the second issue. It is said, however, by the defenders that in this issue the place where the arrestments were used should be defined, whether it was after the vessel came into the harbour, or when she was still in St Davids roadstead, or in transition between the two places. I am of opinion that, in the special circumstances of this case, it would be unjust to require
Page: 174↓
The other judges concurred.
Solicitors: Agent for Pursuer— A. Duncan, S.S.C.
Agent for Defenders— John Ross, S.S.O.
