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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Lindsey Steam Pishing Co., Ltd v. Actieselskabet Bonheur [1912] ScotLR 894 (10 July 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0894.html Cite as: [1912] ScotLR 894, [1912] SLR 894 |
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Proof — Conjoined Actions — Pursuers with Hostile Claims — Cross-examination — English Practice.
Process — Tender — Conjoined Actions — Pursuers with Hostile Claims — Apportionment between Pursuers — English Practice.
Where separate actions were raised by two pursuers against a common defender claiming recompense in respect of salvage services averred to have been rendered, held, notwithstanding that there was a conflict of interest between the pursuers, that the actions should be conjoined.
Where actions were conjoined in which the pursuers had hostile claims, held that, following English practice, the pursuers should have the right to cross-examine each other's witnesses.
Where a joint tender was made by a defender in conjoined actions in which the pursuers had hostile claims, held, following English practice, that defender must apportion the tender between the rival pursuers.
John S. Boyle, trawl owner, Aberdeen, owner of the steam trawler “Glenogil,” pursuer, brought an action in the Sheriff Court at Aberdeen against Fred. Olsen, Christiania, Norway, registered owner of the steamship “Balduin,” defender, for £5000 as salvage remuneration, loss, and damage, in respect of salvage services rendered by the “Glenogil” to the “Balduin” in the North Sea on or about 28th and subsequent days of November 1911. The case was remitted to the Court of Session ob contingentium on March 9, 1912.
The Lindsey Steam Fishing Company, Limited, Grimsby, owners of the trawler “Lacerta,” pursuers, brought an action in the Court of Session against Actieselskabet Bonheur, Christiania, owners of the “Balduin,” defenders, for payment of £500 as remuneration for salvage services rendered to the “Balduin,” and compensation for loss and damage suffered by the “Lacerta.”
In answer to signals of distress shown by the “Balduin,” the “Glenogil” came to her rescue, and, after certain manoeuvres on the part of both vessels, the “Glenogil's” hawsers were got on board the “Balduin” and made fast, and thereafter the “Glenogil” proceeded to tow her to Aberdeen. Further assistance in the towage was given by the steam trawler “Lacerta,” and Boyle, whose claim included a sum for the “Lacerta's” towage, averred that
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the “Lacerta” acted on an arrangement with the “Glenogil,” and that the services rendered by the “Lacerta” were not of the nature of salvage services but only of towage. The Lindsey Steam Fishing Company, Limited, on the other hand, averred that the “Lacerta's” services were salvage services. On 21st May 1912 the Lord Ordinary ( Dewar) conjoined the actions. The defenders made joint tender to cover the claims in both actions.
The interlocutor in the action at the instance of the Lindsey Steam Fishing Company, Limited, was in these terms—“The Lord Ordinary closes the record on the summons and defences … and continues the cause: Conjoins herewith the action at the instance of John S. Boyle and others against Fred. Olsen in this day's roll: and grants leave to reclaim.”
The pursuer Boyle reclaimed, and argued—(1) Conjunction of actions was only allowed in Scots practice where there was identity of parties or subject-matter— Duke of Buccleuch v. Cowan, &c., February 23, 1866, 4 Macph. 475, per Inglis, L. J.-C., at p. 480, 1 S.L.R. 141; November 30, 1876, 4 R. (H.L.) 14, 14 S.L.R. 189. In this case there was not only no identity but conflict between the pursuers. By English procedure “consolidation” was allowed, and parties with conflicting interests were allowed to cross-examine each other's witnesses. But there was no such practice in Scotland. (2) English practice allowed joint tender, but it was followed by apportionment between competing claimants—Roscoe, Admiralty Practice, pp. 328, 329, 370. Joint tender should not be adopted from English law without also adopting the English practice of apportionment. It did not follow that where actions were consolidated joint tender was competent, and it might be competent where actions were not consolidated—“ Strathgarry,” [1895] P 264, per Bruce, L. J., at p. 268; “ Jacob Landstrom,” 1878, 4 PD 191; “ The Lee,” 1889, 6 Aspinall's Maritime Cases, 395. As to apportionment of the tender there was no analogy to be found in the process of multiplepoinding, for in this case the fund in medio was not fixed. The risks undergone by the two ships were entirely different—“ Clifton,” 1834, 3 Haggard's Admiralty Reports, 117; “Vulcan v. “Berlin,” July 6, 1882, 9 R. 1057, per Lord Deas, at p. 1062, 19 S.L.R. 790.
The above argument was adopted by the owners of the “Lacerta.”
The defenders argued—(1) The Court had always conjoined actions where it was convenient and made for economy, and that even where there was a conflict of interest between pursuers— Wilson v. Rapp, 1909, 2 S.L.T. 295. “Consolidation” of actions had been found convenient in the English Admiralty Courts. In “ The Gantock Rock “(June 19, 1900, 2 F. 1060, 37 S.L.R. 804), two salvage actions were conjoined by consent, and the pursuers cross-examined each other's witnesses. (2) The joint tender made should be allowed without apportionment; it was for the pursuers to determine how it should be divided. What was due for salvage could be determined and then it could be apportioned—Kennedy, Civil Salvage, p. 184.
At advising—
Now I think it is my experience here that if an interlocutor simply conjoins two actions and says nothing more, there is no such right given to counsel for one pursuer to cross-examine the witnesses of the other. I think that this cross-examination should be allowed. I do not see anything in our practice against it, but I think the matter should be dealt with in the interlocutor. Accordingly, I think the Lord Ordinary's interlocutor ought to be affirmed, but with the addition that the counsel for the one pursuer has the right to cross-examine the witnesses of the other.
That is all that is absolutely necessary to decide with regard to this reclaiming note, but as the matter of tender is obviously very much at the root of the question now at issue, and as we have heard argument upon this point, it is as well that I should give the result of my inquiries on this subject also.
I was informed by the learned Judge that whenever he thought the justice of the case required it—and I gathered from him that it was what may be called the ordinary rule rather than the extraordinary—if a defender in such circumstances put in a tender he was then obliged by the judge to apportion the tender amongst the other parties. That really is equivalent to putting in two separate tenders. I mention this because I think it is the course that ought to be followed in this case.
The Court adhered to the interlocutor of the Lord Ordinary in the action at the instance of the Lindsey Steam Fishing Company, Limited, against Actieselskabet Bonheur, but varied it by the addition after the word “Roll” of the words “under the declaration that the counsel for the one pursuer shall have the right to cross-examine the witnesses of the other.”
Counsel for Pursuer and Reclaimer (Boyle)— Constable, K.C.— Burn Murdoch. Agents— Mackenzie & Kermack, W.S.
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Counsel for Pursuers and Reclaimers (The Lindsey Steam Fishing Company, Limited)— A. R. Brown. Agents— Alexander Morison & Co., W.S.
Counsel for Defenders and Respondents— Horne, K.C.— Lippe. Agents— Boyd, Jameson, & Young, W.S.
