Reavis v Clan Line Steamers Ltd (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 17 June 1925 |
| Docket Number | No. 85. |
| Date | 17 June 1925 |
| Court | Court of Session |
Ld. Constable, Lord President (Clyde), Lord Cullen, Lord Sands.
ProcessReclaiming noteCompetencyTimeousnessInterlocutor disposing in part of the merits of the causeInterlocutor importing an appointment or refusal of proofInterlocutor holding part of pursuer's condescendence irrelevant and quoad ultra allowing proofCourt of Session Act, 1825 (6 Geo. IV. cap. 120), sec. 18Court of Session Act, 1850 (13 and 14 Vict. cap. 36), sec. 11Court of Session Act, 1868 (31 and 32 Vict. cap. 100), secs. 28 and 54Codifying Act of Sederunt, 1913, C. ii. 5.
In an action of damages the Lord Ordinary pronounced an interlocutor sustaining the defenders' plea to relevancy quoad the damages claimed in one of the articles of the pursuer's condescendence, and quoad ultra allowing parties a proof of their averments.
Held that the pursuer had the alternative either (1) of reclaiming within six days without leave, under sec. 28 of the Court of Session Act, 1868, and the C. A. S., 1913, C. ii. 5, in respect that the interlocutor fell under the category of an interlocutor which imported an appointment of proof or a refusal or postponement of the same; or (2) of reclaiming with leave within twenty-one days of the date of the interlocutor and within ten days of obtaining leave, under sec. 18 of the Court of Session Act, 1825 as amended by sec. 11 of the Court of Session Act, 1850, and sec. 54 of the 1868 Act, in respect that the interlocutor fell under the category of an interlocutor disposing in part of the merits of the cause, although it did not actually dispose of any conclusion of the summons.
ReparationRelation of fault to injuryDamagesRemotenessMaster and ServantClaim by master in respect of injury to servantInjuries to members of orchestraLoss of profits owing to break up of orchestra.
In an action of damages against steamship owners, arising out of the sinking of one of their vessels, the pursuer averred that she was the proprietrix of an orchestra the members of which were passengers on the vessel which sank, and that several members of the orchestra were drowned and others sustained injuries which incapacitated them from playing, with the result that the orchestra had to be disbanded, and she was thereby deprived of a valuable profit-yielding asset. She averred that the services of the players were secured to her by contract for various periods, and she maintained that, as she had suffered damage owing to the loss of these services, she was entitled to reparation from the defenders.
Held that, by the law of Scotland, no action lies at the instance of a master for the loss caused to him by the death or injury of his servant through the fault of a third party, and, accordingly, that the pursuer's claim was irrelevant.
On 1st December 1924 Mrs Hattie King Reavis, 55 West 139th Street, New York, brought an action against the Clan Line Steamers, Limited, and the Laird Line, Limited, concluding against the defenders jointly and severally for damages amounting to 30,000, or alternatively concluding for a joint and several decree against the defenders for part of this sum, and for several decrees against the defenders respectively for sums making up the balance of 30,000.
The pursuer's claim arose out of the sinking of the s.s. Rowan, on which she and the Southern Syncopated Orchestra, of which she averred she was proprietrix, were travelling as passengers.
The pursuer averred:(Cond. 2) In October 1921, the s.s. Rowan was proceeding from Glasgow to Dublin. In the early morning of the 9th day of October 1921, a collision occurred between the Rowan, belonging to the Laird Line, Limited, and the s.s. West Camak of San Francisco, belonging to the United States Shipping Board, whereby the s.s. Rowan sustained injury, and shortly after this collision the s.s. Clan Malcolm belonging to the Clan Line Steamers, Limited, and the s.s. Rowan came into collision. In consequence of the last-mentioned collision the s.s. Rowan sank and many of the passengers on board the s.s. Rowan, including eight members of the said orchestra, were drowned; many other members thereof, including the pursuer, sustained personal injuries and were for varying periods incapacitated. When the collision occurred a member of the orchestra succeeded under circumstances of great difficulty in putting the pursuer aboard the Clan Malcolm, but the fear and excitement engendered in her by the crisis gave her a severe nervous shock. Further, she sustained bruises on her body. For a considerable period she required and she still requires medical attention. Owing to her nervous condition she has recently consulted a specialist in Vienna. Apart from this the bill incurred by her for medical attention amounted to 60. In addition to cash amounting to 465 the pursuer lost on board the Rowan stage and professional property belonging to her of the value of about 2000, as shown in statement produced, the most valuable part thereof being a considerable musical library of original manuscript and other music. She also lost her own personal and stage clothing of the value of 1188, 6s. 11d., as detailed in list produced. For a period of nearly two years immediately after the collision the pursuer's physical condition, due to the accident, made it impossible for her to follow her professional occupation as a performer. It debarred her from giving her services in her own orchestra when it performed, and also debarred her from obtaining other engagements. The pursuer's loss in respect of this alone is, on a fair estimate, not less than 2000. In addition, for her sufferings in and after the disaster and the continued effects on her health and professional fitness, compensation to the extent of at least 1000 is due to her. The loss which ensued to the pursuer from said accident and arising out of the injury to, and ultimate total destruction of, the profit-yielding asset which she owned in the shape of the said orchestra is detailed in the next two condescendences. The said loss was directly due to the combined effect of the physical condition of the pursuer and other members of the orchestra after the disaster and to some extent to the loss of professional property above referred to, for all of which the defenders are responsible. The averments in answer in so far as not coinciding herewith are denied. (Cond. 3) The loss to the pursuer immediately above referred to occurred as follows:The said orchestra was formed in 1918 in the United States of America with the object of providing a novel and unique type of musical and vocal entertainment through the medium of coloured artistes. These latter were recruited, after many months of difficult and discriminating search, from among the coloured people of the United States and the West Indies. The individuals chosen were so chosen because of their talent in rendering negro melodies, and their ability to engage in the efficient team work so essential to the success of such an organisation. When formed the organisation became immediately an asset of great value, as it scored an instantaneous success in its initial performances in America. Its said value and success persisted and continued without interruption until the date of the said disaster. The pursuer at the date of the disaster was sole proprietrix of the said asset. Early in 1919 the orchestra was booked to appear for an extended period in London, and following on this engagement further and continuous engagements were entered into for performances in all parts of the United Kingdom. Large weekly profits were earned by the pursuer, and contracts were at the date of the disaster booked ahead for several years, as detailed in the list herewith produced, and a further and very substantial revenue and profit accruing to the pursuer so long as said orchestra was in existence consisted of the copyright and similar payments paid to her on sales of music belonging to and popularised by the orchestra on its tours. Of this revenue and profit the pursuer has been deprived in consequence of the said manuscript losses and of the disbandment of the orchestra as aftermentioned. A statement of sales of such music and earnings therefrom will be produced in the course of these proceedings. A world tour was in course of being arranged when the said accident happened. The personnel of the orchestra remained generally as at its inception, any occasional and incidental vacancies being filled up from the same or similar sources to those of the original recruitment. The orchestra was an organisation of a peculiar and exceptional character in respect (1) of the unique type of performance which it gave; (2) of the limited and in general distant sources from which its members came, and from which any vacancies could be filled; and (3) of the phenomenal success which it achieved and world-wide reputation which it gained. So much did it depend upon team value and the reputation of its leading performers, including the pursuer, that in most of the said contracts which had been booked ahead, conditions were inserted insisting upon a minimum number of performers, and upon the presence of certain named artistes. Copies of such contracts will be produced in the course of the process. The said organisation was accordingly a profit-yielding asset to the pursuer of a unique kind, and was of such a nature that it could not be timeously restored once it was broken up. At the date of the disaster the members thereof were under contracts to perform in the pursuer's service for varying periods, at the termination of each of which the pursuer had the option of re-engagement for varying long periods. (Cond. 4) Prior to sailing on 8th October 1921 the personnel of the orchestra numbered thirty-one. As a result of the disaster eight were drowned and five were immediately incapacitated. The number of performers was accordingly reduced to eighteen, and of these many were not...
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