Laming v Seater
| Jurisdiction | Scotland |
| Judgment Date | 21 June 1889 |
| Date | 21 June 1889 |
| Docket Number | No. 153. |
| Court | Court of Session |
Lord M'Laren. M., The Lord Justice-Clerk, Lord Rutherfurd, Lord Lee., Lord Young.
Ship Right of Mortgagees Charter-party.
Process Amendment of Summons Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 29.
The owner of a ship, over which he has granted a mortgage, is not entitled to deal with the ship as owner, in such way as may materially prejudice the mortgagee's security.
The owner of a ship, who had granted a mortgage and had agreed to insure the vessel, subsequently chartered her. In a question between the mortgagee and the charterer, held that the mortgagee was entitled to prevent her from sailing uninsured.
An action was raised to have a steamship forthwith delivered to the pursuers, or alternatively, in the event of the defender failing so to deliver to the pursuers the said steamship, to have the whole defenders found liable in damages. After evidence had been led, which dealt with damage sustained before the raising of the action as well as after, and judgment had been pronounced in the Outer-House, the pursuers and reclaimers moved to be allowed to substitute for the words quoted above, the words and in any event.Held (1) (diss. Lord Lee) that the summons as laid did not conclude for damage from non-delivery prior to the date of the action, and (2) that as the effect of the amendment would be to include such damage, the amendment was incompetent.
By charterparty dated 9th October 1886, William Hunter & Company, shipowners, 12 Waterloo Street, Glasgow, chartered the steamship Mula, of which William Hunter was the registered owner, to Alfred Laming & Company, steam-shipping agents, 8 Leadenhall Street, London, for a voyage from the United Kingdom to the Mediterranean and back, the voyage to commence on 25th October 1886. The ship was not delivered to the charterers in terms of the charter-party, but by agreement dated 15th April 1887, endorsed on the charter-party, the parties thereto agreed that it should remain in force for a further period.
Hunter & Company had in September 1886 mortgaged the ship to Thomas Barr, John Forrester, and David Inglis Urquhart, merchants in Glasgow, in security of a loan for 1350. In the following month (October 1886) she was put by her owners into the hands of Ramage & Ferguson, shipbuilders, Leith, for repair. Hunter & Company being unable to pay the shipbuilders' account, an agreement was in February 1887 entered into between Barr, Forrester, and Urquhart, of the first, second, and third parts respectively, Ramage & Ferguson of the fourth part, and Hunter of the fifth part, by which it was arranged that the first, second, and third parties should increase their total advances to 2650, and receive a first mortgage over the ship for that amount; that the fourth parties should receive 1300 in cash, and promissory-notes and a second mortgage for the balance of their account; and that the fifth party should keep the ship insured at Lloyd's for the sum of 4000 at least in name of the first, second, third, and fourth parties. The fourth parties further renounced and discharged any claim for a lien present or future over the said vessel in connection with or arising out of said repairs, and undertake and bind and oblige themselves fully to execute and complete all repairs on said vessel which may be required to make her fit and ready for sea in every respect, and they further undertake and bind and oblige themselves that the said vessel shall, when said repairs are executed, pass the Board of Trade's Surveyor at Leith, and that all within the space of one month from the last date hereof (9th February).
Upon 22d April 1887 Barr, Forrester, and Urquhart entered into possession of the ship as mortgagees. Upon 28th April they obtained an interim interdict forbidding her removal, and on the following day they raised an action of payment, declarator, and sale in the Court of Session against Hunter.
Laming & Company were not called as parties to this action, but the first advertisement of the sale contained the following: The articles and conditions of sale, the inventory of the steamer and her stores, and a copy of the charter-party or contract betwixt the late managing owners and Alfred Laming & Co., can be seen.
The subsequent advertisements contained no reference to Laming & Company's charter-party.
The interdict was declared perpetual upon 9th May.
Upon 14th June an agreement was entered into between Barr, Forrester, and Urquhart of the first part, and Ramage & Ferguson of the second part, to have the ship bought in if no one bid more than the upset price of 4500. By said agreement Messrs Ramage & Ferguson also undertook (first) that they shall bear the whole maintenance, risk, and expense as aforesaid of the vessel in implementing the said charters entered into by the owner until after the completion of the first voyage under the charter-party with Laming & Company as aforesaid; and (second) that they shall bear and pay the whole claims against the ship, including as aforesaid up to the date of raising the said action (29th April 1887), and the expense of disputing such claims if they elect to do so, all charges and expenses subsequent to said 29th April being borne by the parties hereto, according to their respective interests as aforesaid, until the vessel sails on her first voyage from Leith: It being the meaning and intention of the parties that until the ship is freed from all obligations entered into by, or incurred on behalf of, the owner, in so far as enforceable against the vessel, as preferable to the mortgagees, under Laming & Company's charter up to the end of the first voyage and she is in a position to earn clear freight for the whole parties, any charges or expenses enforceable against the vessel preferably to the mortgagees shall be borne solely by the second party.
On 20th June the ship was sold under decree of the Court to John White Seater, shipbroker, Leith, who proved to be the nominee or agent of Ramage & Ferguson.
Laming & Company, after repeatedly pressing Hunter & Company for delivery of the Mula, and after writing to them and to the mortgagees that they would hold them liable for any loss they might sustain through the ship not having been delivered in terms of the charter-party, on 27th June intimated that they would bring proceedings in Court, and then raised an action against J. W. Seater, Barr, Forrester, and Urquhart, and Ramage & Ferguson, and also against Hunter & Company and their sole partner William Hunter.
The summons, which was signeted upon 4th July 1887, concluded for declarator that the defender John White Seater is bound forthwith to deliver to the pursuers the iron screw-steamship or vessel called the Mula, of which he is now the registered owner, in the state, for the purposes, and under the terms and conditions expressed in a charter-party entered into between the defenders William Hunter & Company and the pursuers, dated the 9th day of October 1886, and agreement endorsed thereon between the defenders William Hunter & Company and the pursuers, dated the 15th day of April 1887, together with the bunker coals, belonging to the pursuers, on board of the said steamship or vessel, amounting to 215 tons or thereby: And it being so found and declared, the defender John White Seater ought and should be decerned and ordained, by decree foresaid, forthwith to deliver to the pursuers the said steamship or vessel in the state, for the purposes, and under the terms and conditions expressed in the said charter-party and agreement endorsed thereon, together with the said bunker coals belonging to the pursuers as aforesaid: Or alternatively, in the event of the defender John White Seater failing so to deliver to the pursuers the said steamship or vessel, and coals therein, the whole defenders ought and should be decerned and ordained, by decree foresaid, conjunctly and severally, to make payment to the pursuers (1) of the sum of 1000 in name of damages; and (2) of the sum of 100 as the value of the said bunker coals, with interest on these two sums at the rate of five per centum per annum from the date of citation hereon until payment: Together with the sum of 100, or such other sum as our said Lords shall modify, as the expenses of the process to follow hereon.
Delivery of the Mula was given to the pursuers in August 1887, and they, on 15th November 1887, by minute, restricted the conclusions of the summons to a conclusion against the whole defenders, conjunctly and severally, for the sum of 500, in name of damages sustained by the pursuers prior to the delivery of the said vessel, with interest thereon and expenses as concluded for.
The pursuers pleaded;(1) The pursuers having suffered loss and damage to the extent sued for in consequence of the defenders' failure to deliver to them the said steamship Mula, in terms of the charter-party and relative agreement founded on, decree should in the circumstances be pronounced against the whole defenders, in terms of the conclusions of the summons as amended, with expenses. (2) The defenders Barr, Forrester, and Urquhart having wrongfully taken possession of the vessel, and having unwarrantably refused to deliver her to the pursuers, and the pursuers having suffered thereby loss and damage to the extent concluded for, the said defenders are liable in damages therefor. (3) The defenders Seater and Ramage & Ferguson having purchased the said vessel subject to the pursuers' rights, and having refused to deliver her to the pursuers for fulfilment of the said charter-party, are liable in damages for the loss which the pursuers have thereby sustained.
The defenders (other than Messrs William Hunter & Company and William Hunter, who did not appear in the action) pleaded(1) The pursuers' statements are irrelevant. (5) The pursuers having got delivery of the vessel from the defenders whenever she was ready for sea, the defenders...
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