Kolbin & Sons v Kinnear & Company S.S. "Altai." Kolbin & Sons v United Shippling Company S.S. "Eduard Woermann."
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1930 |
| Docket Number | No. 97. |
| Date | 20 March 1930 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Fleming.
ShipAffreightmentBill of ladingDelivery of cargo to third party without presentation of bill of ladingRights of cargo owner not safeguarded when goods deliveredCargo sold by third party to consignee named in bill of ladingPrice retained by third partySubsequent bankruptcy of third partyObligation of shipowner to owner of cargoNegligenceDamagesWar.
InterestRate of interestDate from which interest should runNegligenceDamagesCargo delivered by shipowner to third party without production of bill of ladingRights of cargo owner not safeguardedSubsequent bankruptcy of third party.
A cargo of flax and tow was shipped during the war from Archangel to Dundee. The consignee named in the bill of lading was the War Office. On the arrival of the ship at Dundee no bill of lading was presented to the ship's agents, who, accordingly, warehoused the goods to await the arrival of the bill. Thereafter, as the result of negotiations between the agents and a third party, the agents, after obtaining from him a letter of guarantee and indemnity which was in favour of themselves only, delivered the cargo to him without insisting on the production of the bill of lading. The third party thereafter sold the goods to the War Office and retained the price, and afterwards became bankrupt. In an action at the instance of the owners against the agents for delivery of the cargo or, alternatively, for payment of the price of the goods,
Held (rev. judgment of Lord Fleming, diss.Lord Anderson) (1) that the agents were in breach of their obligation under the bill of lading in giving delivery without production of the bill; (2) that, in disposing of the cargo to the third party without insisting on an indemnity in favour of the owners, they had failed in their duty, as carriers and custodiers of the goods, to exercise reasonable diligence for the protection of the owners' interests; (3) that the loss resulting to the owners was due to the agents' negligence; and, accordingly, that they were liable to the owners in damages, with interest at bank rate from 18th September 1918, the date when the price of the goods was paid to the third party.
Agent and PrincipalAgent's liabilitiesLiability to principalPerformance of mandateDegree of diligenceNegotiorum gestorGoods shipped by gestor from foreign port to England where delivered to third party and afterwards sold by himThird party becoming bankrupt while still in possession of proceeds of saleFailure of agent to safeguard rights of principalWar.
Goods belonging to certain Russian merchants, which were lying at the port of Archangel in the custody of a shipping company during the war, were shipped by the shipping company to England in order to preserve them from confiscation when the town was about to be evacuated. They were there handed over to a third party, in exchange for letters of guarantee and indemnity which protected the company but not the owners. This third party had previously acted for the owners in connexion with similar cargoes, but he had no title or authority from them to take delivery of the goods in question. The goods were thereafter sold by the third party, who retained the price and subsequently became bankrupt. In an action by the owners against the company for recovery of the loss which had resulted to them,
Held (aff. judgment of Lord Fleming, diss.Lord Anderson), that in their dealings with the third party the defenders, as negotiorum gestores, had been guilty of negligence, in respect that they were bound, but had failed, to exercise the care and diligence which a prudent man would have taken in relation to his own property; and pursuers found entitled to damages.
International LawAscertainment of foreign lawProof by expert evidenceConflicting views of experts.
International LawApplication of foreign lawDecree of foreign government passed before its recognitionConfiscating ActRussian Union of Soviet Republics.
Observations upon the powers and duties of the Court to examine and construe for itself foreign written law(1) where the expert evidence adduced to prove the law was conflicting, and (2) where the law under consideration was a decree abolishing inheritance, which had been passed by the Soviet Government of Russia before its recognition by the British Government.
S.S. "Altai."
On 5th December 1927 A. S. Kolbin & Sons, merchants and traders, Kotelnitsch, Russia, and the surviving partner of the firm, with the consent and concurrence of Hearfield & Lambert, solicitors, Hull, for any interest they might have, brought an action against William Kinnear & Company, shipbrokers, Dundee, and the testamentary trustees of William Kinnear, the sole partner of the firm at the date of his death. The conclusions of the action were (1) for an order on the defenders for delivery of certain bales of flax and tow which, on or about 11th January 1918, had been shipped by the pursuers on the s.s. "Altai" at Archangel for carriage to Dundee; and (2), failing delivery, for decree against the defenders for payment of the sum of 41,859, 8s. 9d., with interest thereon at the rate of 5 per centum per annum from the date of the decree until payment.
The following narrative of the circumstances in which the action was brought is taken from the opinion of the Lord Justice-Clerk:"The cargo in the Altai, which was the property of the pursuers' firm, was shipped from Archangel to Dundee on 11th January 1918. The bill of lading was issued by the master of the vessel and was delivered to the pursuers. Under the bill of lading the War Office were the consignees of the cargo. The Altai arrived at Dundee on 21st March, and was duly discharged there. The defenders were the ship's agents at Dundee. No bill of lading for the cargo was presented to them, and they accordingly warehoused it to await the arrival of the bill. In the meantime certain negotiations took place regarding the cargo between the representative of the Flax Department of the War Office in Dundeea Mr Mackenzieand Mr H. W. Renny, a merchant in Dundee, with whom he appears to have been on friendly terms. Renny had had previous dealings with the pursuers' firm, and he was either asked by Mackenzie, or volunteered, to endeavour to get into touch with the pursuers with reference to the cargo. He wired and he wrote to them. His letter was returned undelivered, but his wires reached the pursuers, and they wired back asking him to insure the cargo and inquiring as to the prices obtainable for it. On 10th August 1918 the Flax Office intimated to Renny that they proposed to requisition the cargo, and asked him for a delivery order. Renny thereupon approached the defenders and requested them to deliver the cargo to him as against a letter of guarantee and indemnity signed by him and by the Commercial Bank of Scotland. This the defenders agreed to do, and on 14th August 1918 they issued a delivery order instructing the warehousemen to deliver the cargo to Renny. This they did in exchange for the guarantee referred to, but without production of a bill of lading. Renny had no authority, written or verbal, general or particular, from the pursuers to obtain the cargo or to receive its price, and it is not suggested by the defenders that he had. Renny delivered the cargo to the Flax Office, and they paid him the price of it. That price, amounting to 27,944, 17s. 3d. less certain charges, he retained. Thereafter Renny signed a trust-deed, and only a dividend from his estate will be available for his creditors, among whom the pursuers claim to be numbered. Renny, who was examined on commission in the present proceedings, is now dead. These, it appears to me, are the salient and undisputed facts which give rise to the problem submitted to us for solution."
The pursuers pleaded, inter alia:"(2) Failing delivery by the defenders to the pursuers of the said goods, the defenders are bound to pay to the pursuers the value of the said goods with interest thereon from the 4th day of August 1918, being the loss and damage sustained by the pursuers through the defenders' wrongously parting with the goods, and decree should be pronounced in terms of the alternative conclusion of the summons. (3) The defenders having obtained possession of the goods condescended on belonging to the first-named pursuers for the purpose of being placed in warehouse on behalf of these pursuers until the instructions of these pursuers regarding their disposal were given, and having without authority or instructions of these pursuers delivered the goods to Henry William Renny, who had no right or title thereto, are liable to these pursuers for the loss and damage sustained by them through the said wrongous delivery." "(5) The defenders having delivered the cargo in question in breach of their obligations arising out of the bill of lading, the pursuers are entitled to damages."
The defenders pleaded, inter alia:"(1) No title to sue." "(4) The goods having been consigned to H. M. Government, and having been delivered to them through the medium of a person who was the agent for the pursuers, et separatim who was held out by them as such, the defenders should be assoilzied. (5) The defenders, having delivered the goods in accordance with requisition by the British War Office, should be assoilzied." "(8) The pursuers having ratified and adopted the actings taken by the said H. W. Renny as their agent, the defenders should be assoilzied. (9) The pursuers having in the circumstances impliedly discharged any claim competent to them against the defenders, decree of absolvitor should be pronounced. (10) The pursuers being barred by their actings and bymora, acquiescence, and taciturnity from insisting in the present action, the defenders should be assoilzied."
In support of their preliminary plea of "no title to sue," the defenders founded on two...
To continue reading
Request your trial
-
Reclaiming Motion Ted Jacob Engineering Group Inc Against (first) Alexander Peter Morrison And (second) Declan Thompson
...and decide for itself, if necessary with the assistance of experts, what the law has been proved to be (Kolbin & Sons v Kinnear & Co, 1930 SC 724, LJC (Alness) at 737-8, Lord Ormidale at 748-9; Lord Anderson and 753). As it was put in Paraksho v Singh, [1968] P 233 (Cairns J at 250, cited i......
-
Kolbin & Sons v Kinnear & Company S.S. "Altai." Kolbin & Sons v United Shippling Company S.S. "Eduard Woermann."
...man would have taken in relation to his own property; and pursuers found entitled to damages. (In the Court of Session 20th March 1930—1930 S. C. 724.) S.S. "Altai." On 5th December 1927 A. S. Kolbin & Sons, merchants and traders, Kotelnitsch, Russia, and the surviving partner of the firm, ......
-
Government of the Republic of Spain v National Bank of Scotland
...B. 176, Clauson, L.J., at p. 195; Dicey, Conflict of Laws, (5th ed.) pp. 20 and 200. 3 [1939] P. 37. 4 Kolbin & Sons v. Kinnear & Co.SC, 1930 S. C. 724, Lord Ormidale at p. 748, Princess Paley Olga v. WeiszELR, [1929] 1 K. B. 718, and Aksionairnoye Obschestvo A. M. Luther v. James Sagor & C......
-
Hugh Hall Campbell Kc Against James Finlay (kenya) Limited
...the experts, the court must look at the relevant sources of law, and construe any legislation, for itself (Kolbin & Sons v Kinnear & Co 1930 SC 724 (LJC (Alness) at 737-738 cited in Ted Jacob Engineering Group v Morrison 2019 SC 487, Lord Drummond Young, delivering the Opinion of the Court,......