Garscadden v Ardrossan Dry Dock Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 15 December 1909 |
| Docket Number | No. 33. |
| Date | 15 December 1909 |
| Court | Court of Session |
Lord Ardwall, Lord Dundas, Lord Justice-Clerk.
Retention—Ship—Lien over ship—Action for Delivery—Consignation of sum claimed—Security for Expenses.
In an action at the instance of the owner of a vessel, which was in the hands of shipbuilders for repair, against them, concluding for delivery of the vessel, the defenders pleaded a right of retention in security of (1) their unpaid account, and (2) the expenses to be incurred by them in the action for delivery.
Held that the pursuer was entitled to delivery of the vessel on consignation of the amount of the unpaid account, and was not bound to find security for any expenses to which the defenders might be found entitled.
On 30th October 1909, William James Garscadden, shipowner, Glasgow, raised this action in the Sheriff Court at Kilmarnock against the Ardrossan Dry Dock and Shipbuilding Company, Limited.
The claim of the pursuer was for ‘delivery of the steamship “Staffa” belonging to the pursuer, and presently in the defenders' yard at Ardrossan,’ and for damages in respect of illegal detention.
The initial writ stated,—‘The said vessel was entrusted to the defenders for the purpose of having certain repairs carried out. The said vessel has been ready for delivery for some time, and she should have been ready for delivery on or before 1st October 1909.’
The defenders refused delivery on the ground that they were entitled to retain the vessel until payment of their account and of any expenses to be incurred by them in the process.
On 10th November 1909 the pursuer made the following motion:—‘The pursuer respectfully moves the Court in respect that of the defenders' account against him of £250 he has paid to the defenders the sum of £200, and he has consigned the balance of £50 in Court, to ordain the defenders forthwith to deliver to the pursuer his vessel “Staffa.”’
On 11th November 1909 the Sheriff-substitute (Mackenzie) pronounced this interlocutor:—‘Having heard parties' procurators on the motion by the pursuer that delivery of the vessel in dispute should now be ordered in respect that the pursuer is willing to consign the amount of the account claimed by the defenders: Finds that the right of retention over the said vessel extends to the expenses to be incurred by them in this process: Therefore, in respect that no sum has been consigned to meet the defenders' claim for expenses, refuses the said motion in hoc statu.’
The pursuer, having obtained the leave of the Sheriff-substitute, appealed to the Court of Session.
The case was heard before the Second Division on 15th December 1909.
It was stated at the bar that the total amount of the defenders' account was not £250, but was £275.
Argued for the appellant;—It was an entirely novel proposition, and one unsupported by authority, that the respondent's right of retention covered not merely the amount alleged to be due to him for work done, but also expenses which had not yet been incurred, and to which he might never be found entitled. The respondent had no jus exigendi in respect of these expenses.1 So far from his claim for them being liquid, he could not even state what they would amount...
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