Owners of the ‘Olga’ v Owners of the ‘Anglia.’
| Jurisdiction | Scotland |
| Judgment Date | 15 June 1907 |
| Date | 15 June 1907 |
| Docket Number | No. 133.,No. 154. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Stormonth-Darling, Lord Low, Lord Ardwall.
ExpensesShipCollisionLimitation of LiabilityMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), secs. 503 and 504.
The owners of the Olgapresented a petition under secs. 503 and 504 of the Merchant Shipping Act, 1894, for limitation of their liability for loss caused by a collision (with the Anglia), in which both vessels were found to be in fault. Claims were lodged for the owners of the Anglia and for the owners of the cargo on board the Anglia.
Held that the claimants were entitled to the expenses of their respective claims and relative procedure against the petitionersthe owners of the Olga.
See 7 F. 739 and 8 F. (H. L.) 22.
On 18th February 1903 the s.s. Olga of Copenhagen came into collision with the s.s. Anglia of Leith, with the result that the Anglia was sunk and the Olga sustained damage. In cross actions of damages it was found that both vessels were to blame, and the owners of the Anglia obtained decree against the owners of the Olga for 7149, 14s. 7d., being one half of the value of the Anglia (which was taken to be 14,687) under deduction of one half of the loss (387, 10s. 10d.) sustained by the owners of the Olga.
Thereafter the owners of the Olga petitioned under sections 503 and 504 of the Merchant Shipping Act, 1894, for limitation of their liability, and their liability was ultimately limited to 6215, 4s.
In this petition claims were lodged by (1) Robert Somerville and another, the owners of the Anglia, who maintained that they were entitled to be ranked for the full sum in the decree obtained by them against the owners of the Olga; and (2) by C. A. Van Eijck & Zoon, the owners of the cargo on board the Anglia, who maintained that the decree was not binding as in a question with them. In this contention the cargo owners were ultimately found to be rightSee 8 F. (H. L.) 22.
Both claimants now moved against the owners of the Olga for the expenses of lodging their respective claims and relative procedure in the limitation proceedings. They founded on the undernoted authorities.1
The owners of the Olga opposed the motion, and argued;The rule that the petitioning ship paid the expense of lodging claims did not apply where both ships were in fault.2
Lord Justice-Clerk.Whatever might have been our opinion if this question were now before us for the first time, I think the matter is practically settled by authority. In the case of Carron CompanySC,3 the Lord President observes that a party who has presented a petition for limitation of liability is bound to pay the expenses of the procedure, for the reason that the procedure is rendered necessary by the fact of the collision occasioned through his fault. In the present instance the collision was occasioned by the fault of the petitioner's vessel, and the fact that the Anglia was also to blame does not seem to me to matter at all in the question before us. The owners of the Olga appeal by petition under Act of Parliament in order to limit their liability, and to save themselves from actions which would be raised against them, and to which they would otherwise have had no defence. In such circumstances I think it is perfectly right that they should pay the expense of claims lodged in the petition.
Lord Stormonth-Darling and Lord Low concurred.
Lord Ardwall.I concur. I think this matter is settled by invariable practice, not only in Scotland, but also in England, where there are many more cases of this nature than in our Courts. Further, I think that the rule as laid down in these cases is founded on good sense and equity. The petition is presented by the ship, or one of the ships, which is to blame for a collision in order to get rid of full liability for damage. It is presented purely in the interest of the shipowner, who thereby escapes paying full damages and the expenses of many actions which might have been brought against him. I think that the fund to which liability has been limited should not be encroached upon by the expenses of the limitation petition, and that the petitioner should pay the expenses of the claimants in these proceedings, excluding, of course, all expenses caused by the competition between the various claimants, in which he has no interest and for which he has no responsibility.
The Court pronounced the following interlocutor:Find the claimants Robert Somerville and another and C. A. Van Eijck & Zoon entitled to the expenses of their respective claims and relative procedure in the limitation proceedings against the petitioners, the owners of the s.s.Olga.
1 Burrell v. Simpson & Co., July 19, 1877, 4 R. 1133; Carron Co. v. Cayzer, Irvine, & Co., Nov. 3, 1885, 13 R. 114.
2 They cited Miller v. Powell, July 20, 1875, 2 R. 976.
3 13 R., at p. 116
Lord Kyllachy, Lord Justice-Clerk, Lord Young, Lord M'Laren.
ShipCollisionCross actions of damages between the two ShipownersDecree in favour of one of the ShipownersPetition for limitation of liability at the instance of the other ShipownerCompetency of reopening the question of damages at the instance of cargo ownersMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), secs. 503 and 504.
A collision between the s.s. Anglia and the s.s. Olga resulted in the sinking of the Anglia and in the Olga being slightly damaged. In cross actions of damages between the owners of the Anglia and the owners of the Olga, both vessels were found to be in fault, and the owners of the Anglia obtained decree against the owners of the Olga for 7149, 14s. 7d., being one-half of the value of the Anglia under deduction of one-half of the damage to the Olga.
The owners of the Olga then presented a petition under sections 503 and 504 of the Merchant Shipping Act, 1894, for limitation of their liability to 6215, 4s., being 8 per ton on a tonnage of 77690, the tonnage of the Olga.
The owners of the Anglia lodged a claim in the petition claiming to be ranked on the sum of 6215, 4s. for 7149, 4s. 7d., the sum in the decree obtained by them in the cross actions of damages.
The owners of the cargo of the Anglia also lodged a claim in which besides claiming to be ranked in respect of the value of the cargo, they maintained that the decree for 7149, 4s. 7d. was not binding on them; that the value of the Anglia, on the basis of which that decree was
reached, was a gross over-estimate of her true value; that the owners of the Olga had no interest to contest, and had not in fact contested, the question of the value of the Anglia, in respect that, once it was decided that both vessels were to blame, the question of exact values became immaterial to the Owners of the Olga, whose limit of 8 per ton was reached by the finding that both vessels were to blame. The cargo owners of the Anglia did not aver that the decree for 7149, 4s. 7d. had been obtained collusively or of consent or by way of compromise.
Held that the claim of the owners of the Anglia having been duly constituted against the debtor by a decree in foro, must be taken at the amount fixed in the decree.
ShipCollisionLimitation of LiabilityInterestMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), sec. 503.
The Merchant Shipping Act, 1894, limits the liability for damage caused by one ship to another to 8 per ton of the ship liable in damages.
Held that in addition to 8 per ton of her tonnage the owners of the ship liable in damages were liable in payment of interest at 4 per cent from the date of the collision until payment or consignation of the damages.
ShipCollisionLimitation of LiabilityAscertainment of TonnageDeduction for Crew SpaceCertificate of Board of Trade SurveyorForeign VesselMerchant Shipping Act, 1894 (57 and 58 Vict. cap. 60), secs. 84, 503, and Schedule VI. (3)Order in Council, 21st November 1895.
Section 503 of the Merchant Shipping Act, 1894, enacts, inter alia, that for the purposes of the section the tonnage of a steamship shall he her gross tonnage, not including any space occupied by seamen or apprentices which is certified under the regulations scheduled to this Act with regard thereto.
Schedule VI. provides that every such space shall be inspected by one of the surveyors of ships under the Act, who is empowered to grant a certificate, and if the certificate is obtained, but not otherwise, the space shall be deducted from the register tonnage.
An Order in Council of 21st November 1895, issued under section 84 of the Act, decrees that the merchant ships of the kingdom of Denmark, the measurement whereof shall have been ascertained and denoted in the certificates of registry or other national papers of such ships, shall be deemed to be of the tonnage denoted in their certificates of registry or other national papers, in the same manner, to the same extent, and for the same purposes as the tonnage denoted in the certificate of registry of a British ship is deemed to be the tonnage of that ship.
Held (followingThe Franconia,ELR 1878, L. R., 3 P. D. 164, Lord M'Laren concurring solely in deference to that decision) that the owners of a Danish vessel with a Danish certificate setting forth her measurements, including the tonnage taken up by crew space, were not entitled, in ascertaining the tonnage of the vessel for the purposes of section 503 of the Act, to deduct the tonnage set forth in the certificate as taken up by crew space, in respect that the space so set forth had not been certified by one of the surveyors under the Act as required by Schedule VI.
On 18th February 1903 the s.s. Olga of Copenhagen, came into collision with the s.s. Anglia of Leith, with the result that the Anglia was sunk and the Olga sustained damage to her bows. No loss of life or personal injury was caused by the collision.
The owners of the Olga and the owners of the Anglia raised cross actions of damages on account of...
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