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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchan and Others v. Summers and Others [1891] ScotLR 28_684 (6 June 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0684.html Cite as: [1891] SLR 28_684, [1891] ScotLR 28_684 |
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The Merchant Shipping Act 1854, by sec. 460, provides that “Whenever any dispute arises … between the owners of any ship … and the salvors as to the amount of salvage, and the parties to the dispute cannot agree … such dispute shall be referred to the arbitration of any two justices of the peace [or in Scotland, by sec. 501, to the sheriff, including the sheriff-substitute] resident … at or near the place
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where such ship or boat is lying or at or near the first port or place … into which such ship … is brought after the occurrence of the accident.” … On 2nd October 1890 the fishing boat “Christina” of Peterhead, while off the Yorkshire coast, rendered certain salvage services to the fishing boat “Restless Wave,” also of Peterhead, and assisted it into Scarborough Harbour. A dispute thereupon arose as to the amount due for such services, but no legal proceedings were taken until 14th November 1890, when the salved boat had returned to and was lying at Peterhead. The salvors then presented a petition in the Sheriff Court there against the owners of the said boat and against the insurers thereof, under the above and relative sections of the Merchant Shipping Act 1854, to have a diet fixed for ascertaining the amount due for their services.
Held that the summary procedure contemplated by the Act was competent only at the first place to which the boat salved had been brought after the accident—in this case Scarborough—and that consequently the Sheriff had no jurisdiction under the statute to entertain the salvors' petition.
Upon 2nd October 1890 the fishing boat “Christina” of Peterhead performed certain salvage services to the fishing boat the “Restless Wave,” also of Peterhead, while off the Yorkshire coast, and assisted it into Scarborough Harbour. The owners of the “Restless Wave” refused to pay the sum thereupon demanded as salvage, and upon 14th November 1890, after both boats had returned to Peterhead, Alexander Summers, fisherman, Peterhead, and others, the salvors, presented a petition in the Sheriff Court there against Peter Buchan junior, fisherman, Peterhead, and others, the owners of the “Restless Wave,” and against the North British Fishing Boat Insurance Company, Limited, the insurers thereof, to have a diet fixed for the trial of the cause to determine the amount to be paid for said services, and to have the defenders ordained, jointly and severally, to pay to them the sum of £30 or such other sum as the Court might think reasonable in terms of the Merchant Shipping Act 1854 (17 and 18 Vict. cap. 104), which provides by sec. 460, that “Whenever any dispute arises … as to the amount of salvage, and the parties to the dispute cannot agree as to the settlement thereof by arbitration or otherwise, then, if the sum claimed does not exceed £200, such dispute shall be referred to the arbitration of any two justices of the peace resident as follows—(that is to say) In case of services rendered to any ship or boat … resident at or near the place where such ship or boat is lying, or at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident, by reason whereof the claim to salvage arises.” By section 461 power is conferred upon the justices “To call to their assistance any person conversant with maritime affairs as assessor, or they may … appoint some person conversant with maritime affairs as umpire to decide the point in dispute, and such justices … shall make an award as to the amount of salvage payable … within forty-eight hours after such dispute has been referred to them and the said umpire within forty-eight hours after his appointment.” … By sec. 464 “No appeal shall be allowed unless the sum in dispute exceeds £50.” By section 501 of the Act it is provided that “All matters and things that may in pursuance of the eighth part (in which section 460 occurs) of this Act be done by or to any justice or any two justices, may in Scotland be done also by or to the sheriff of the county, including the sheriff-substitute.”
The defenders were cited to appear upon 5th December 1890, but upon the case being called in Court on that day, their agent objected to the case being proceeded with, as the Sheriff-Substitute had no jurisdiction to act as arbiter in said dispute under the sections libelled in said petition.
The Sheriff-Substitute ( Hamilton-Grierson) repelled the objections and adjourned the trial to 9th January 1891.
Thereupon the defenders brought a note of suspension and interdict against the pursuers and against the said Sheriff-Substitute to have the latter interdicted from acting as arbiter or judge in said proceedings, and the other respondents interdicted from proceeding with said petition or leading evidence in support of the claim made by them therein.
Upon 6th January 1891 the Lord Ordinary ( Low), upon caution, passed the note and granted interim interdict, but after a record had been made up on the note of suspension and interdict and closed, and parties had been heard in the procedure roll, his Lordship on 19th March repelled the reasons of suspension, recalled the interim interdict, and refused the prayer of the note.
“ Opinion.—From the answers for the complainers to the respondents' statement of facts it seems to be clear that the dispute in respect to salvage, in regard to which the proceedings in the Sheriff Court were instituted, arose after the boat to which the services were rendered had left Scarborough and proceeded to Peterhead. The main question at issue turns entirely upon the construction of the 460th section of the Merchant Shipping Act of 1854. That section provides that—[ reads as above].
The respondents brought their claim in the Sheriff Court of Aberdeenshire, because when the dispute arose the boat to which the services had been rendered was lying at a place within that county.
The complainers' contention was this—Under the 460th section the claim may be brought before two justices resident either, first, at or near the place where the boat is lying, or, second, at or near the first port or place where the boat is brought after the occurrence of the accident. The complainers maintain that the concluding words ‘after the occurrence,’ &c., apply to both
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alternatives, and that the first alternative, the place where the boat is lying, contemplates the boat saved being beached and not brought into any port. I cannot accept this construction of the statute. If the first alternative was inserted to meet the case of the boat being beached, it was unnecessary, because the words of the second alternative, the first place where the boat is brought after the occurrence of the accident, are clearly applicable to such a state of matters; but further, the claim is to be referred, ‘whenever any dispute arises, … and the parties cannot agree as to the settlement thereof,’ and it is then to be referred to two justices resident ‘at or near the place where the ship or boat is lying.’ The time is when the dispute arises, and the place is where the boat is then lying. The dispute in the present case arose when the boat was lying at Peterhead, and therefore the claim fell to be referred to two justices resident at or near Peterhead or to the sheriff of the county.
The complainers further contended that the Legislature could not intend that the salvors should be entitled to bring their claim at any place where the boat saved might happen to be, no matter how far that place might be from the scene of the salvage and the residence of the witnesses whose evidence might be necessary to the determination of the claim. I do not think that considerations of supposed convenience, even if they were stronger than they are in the present case, could prevail against what, in my judgment, is the plain meaning of the words of the Act; but it is not unimportant to observe that in England it is expressly provided by statute that the claim may be brought at the place where the vessel is when proceedings are instituted. By the Act 25 and 26 Vict. cap. 63, sec. 49, it is made competent for a County Court Judge to exercise the same jurisdiction in salvage cases as is given to two justices. This provision is analogous to that of the 501st sec. of the Merchant Shipping Act in regard to sheriffs in Scotland. Then by Act 31 and 32 Vict., cap. 71, certain provisions are made for the exercise by the County Court of Admiralty jurisdiction, and by the 21st section it is enacted that proceedings shall be commenced ‘(1) in the County Court having Admiralty jurisdiction within the district of which the vessel or property to which the cause relates is at the commencement of the proceedings.’
The complainers further contended that the note should be sustained, at all events to the extent of holding the proceedings in the Sheriff Court to be incompetent in so far as directed against the North British Fishing Boat Insurance Company, on the ground that it is only the owners of the boat against whom the claim of salvage lies. The boat was insured with the company for the period during which it was engaged in fishing at Scarborough, and it is not disputed that in the event of salvage being found due the company will have to pay at least three-fourths of the amount. Further, complainers' statements show that the secretary of the company, who is also the other complainers' agent, negotiated with the respondents on the footing that the company was truly the party interested in the matter. In these circumstances I do not think that it was unreasonable for the respondents to convene before the arbiter the party having the chief interest in securing that the question was properly laid before him. It is true that the application by which the proceedings before the Sheriff were instituted asks him to ordain the complainers, jointly and severally, to pay the salvage to the respondents. I think that probably the respondents are not entitled to decree directly against the company, but that is a matter with which, I think, that the Sheriff may properly be left to deal. I may add that no separate pleadings have been lodged, nor has any separate appearance been made for the company either here or in the Sheriff Court.”
The complainers reclaimed.
At advising—
I agree with the Lord Ordinary in thinking that the question presented for decision depends upon the construction of the 460th section of the Merchant Shipping Act, but
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By the section in question it is provided that—[ reads]. The jurisdiction thus conferred is special and extraordinary. It is extraordinary in the sense that what the statute authorises the justices or the sheriff to do could not be done by them in the exercise of their ordinary jurisdiction; and special in regard to the manner and time within which the jurisdiction is to be exercised—special also in this respect, that the judgment of the justices or sheriff on the salvors' claim is to be final in all cases where the sum awarded does not exceed £50. In short, what the statute provides for is a court of arbitration, to which the parties must submit if its authority is invoked either by the salvor or the owner of the property salved, and by which the disputed claim shall be determined (finally, as I have said, in certain cases) practically at once, and without either the procedure or the necessary delay arising from the procedure of ordinary courts of law. The respondents might have taken the benefit of that statutory provision undoubtedly, had they chosen to do so, at Scarborough immediately after their salvage service had been rendered. But the questions are, Can they now at Peterhead adopt this statutory mode of having their claim determined, and has the Sheriff-Substitute there any jurisdiction under the statute to entertain the respondents' demand? Both of these questions must, in my opinion, be answered in the negative. The jurisdiction conferred by the statute—extraordinary and special, as I have pointed it out to be—can only be exercised by the persons and in the circumstances specified in the statute. According to my reading of the statute, the persons to exercise the jurisdiction are the justices or sheriff resident at or near the place where the salvage ship is lying, or at or near the first port or place to which she has been brought after the salving—that is to say, the justices or sheriff resident at or near the first port or place of safety which the salved ship has reached after or by reason of the salving, whether that place be a harbour in which she floats, or a beach where she is stranded, or a dock or slip on which she has been placed for repair. The Lord Ordinary thinks that this statutory jurisdiction is conferred on the justices or sheriff resident at or near the place where the salved ship is lying when the dispute arises as to the amount of the salvors' claim, and holds that these two conditions are satisfied in the present case, because the dispute as to the salvors' claim arose at Peterhead, and the “Restless Wave” was then lying there. But I find nothing in the statute to warrant the view that the time when the dispute arises enters into the matter of conferring the jurisdiction at all. The words upon which the Lord Ordinary bases his view—and it was the view urged upon us in argument by the respondents—are these, “Whenever any dispute arises,” &c. These words, however, do not indicate a point of time; they point to a certain event. They are not equivalent to “at the time when any dispute arises,” but “in the event of any dispute arising.” If the Lord Ordinary's view was the right one, then the time of the dispute must be combined with the place where the salved ship is lying; you must have the dispute arising at the place where the salved ship is lying at that particular time. This might rarely occur, except in the case which I think the statute above contemplated and guarded for, namely, the salvors' claim advanced and disputed at the first place of safety to which the salved ship had been brought by the salvors. In short, I think the statute provides a special remedy for settling salvage claims where such claims are made matter of dispute, as the place of safety to which the salved ship has first been brought after the occurrence which gave rise to the claim. If this special remedy is not then and there resorted to, the salvors' claim can only be enforced by an appeal to the ordinary courts of law. It appears to me that this view of the statute is supported by the consideration that the justices or sheriff are required to issue their award within forty-eight hours of the time when the dispute has been referred to them. They are entitled, no doubt, to extend that time by a writing under their hand, but the contemplation of the statute is that the award will be issued within the time there specified. Now, such summary disposal of the dispute is quite intelligible if the dispute is to be taken up at the first place of safety which the salved ship shall reach. The salvors are there; the crew of the salved ship are also there; the salved ship itself is there, open to the inspection of the justice or any “person conversant with maritime affairs,” whose assistance they are entitled to take. In these circumstances the justices may quite well issue their award speedily. It is not contemplated, I think, that they shall have pleadings and proof, and pronounce judgment thereon as a court of law. They are to determine as arbiters a question which it is in the interest of all concerned should be determined at once. But it is difficult to conceive how this summary mode of settling the dispute can be applied if the dispute arises months after the salvage services have been rendered, and many miles away from the place to which the salved ship was first brought.
The Lord Ordinary's judgment proceeds upon the view that the dispute as to the salvage arises at Peterhead. But is it quite clear that that is so? It appears to me, taking the statements on record, that the dispute as to the salvage arose at Scarborough. The respondents aver that immediately after the two boats got safely into Scarborough the demand for salvage was made. The complainers admit this, and say that their answer to the demand was, that it was extravagant; and if that statement is accepted, then the dispute arose in Scarborough, and not in Peterhead. But whether the complainers' statement is accepted as made or not, it is clear,
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There is just one other point to be noticed. The respondents directed their petition not only against the owner of the salved ship, but against the company with which the salvage ship was insured. I think it quite certain that the statutory jurisdiction does not cover such a claim. The justices and Sheriff can only pronounce an award against the owners of the salved property, as it is only in disputes between the salvors and such owners that they are authorised to pronounce any award at all. In any view, therefore, as regards the insurers, the Sheriff had no jurisdiction. But it is unnecessary to make any special finding with regard to them, for on the whole matter I am of opinion that the reasons of suspension should be sustained and the interdict formerly granted declared perpetual.
The
The Court recalled the Lord Ordinary's interlocutor, sustained the reasons of suspension, and declared the interdict formerly granted perpetual.
Counsel for the Complainers and Reclaimers— Graham Murray— Salvesen. Agent— Wm. Croft Gray, Solicitor.
Counsel for the Respondents— Jameson— Shaw. Agent— R. C. Gray, S.S.C.
