Scottish Court of Session Decisions

In this case the London Steam Collier and Coal Company (Limited), incorporated under the Companies Act 1862, and William Miller, S.S.C., their mandatory, were pursuers, and Thomas Wingate & Co., shipbuilders near Glasgow, were defenders. The action arose in this way. Upon the 3d January 1866, the defenders offered to build two steam colliers for the pursuers for £20,000. The pursuers said that the builders guaranteed that each vessel should be capable of carrying 700 tons of cargo, in addition to all requisite stores, including 25 tons of bunker coal, on a draught of water not exceeding 13 feet, and, when so loaded, the vessel to make under steam eight and a half knots per hour. On the delivery of the vessels, according to the allegation of the pursuers, it was found that one of the vessels—the Ludworth—was deficient to the extent of 36 tons, and the other, the Thornley, to the extent of 21 tons, giving 45 cubic feet per ton. The pursuers also maintained that the two vessels were not able to carry their holds full of coal at 45 feet per ton without trimming so much by the head as not to be seaworthy; that in this respect there was a deficiency of 65 tons; and that the business operations of the pursuers had been seriously disturbed by the deficiency in the carrying capacity of the vessels. The defenders maintained that, by the specifications adjusted with the pursuers, and in terms of which the contract was completed by the offer and acceptance libelled on, the exact length, breadth, and depth of the vessels, and also their tonnage measurement, were definitely fixed and determined; that an exact model of the vessels, drawn to a precise scale, was also prepared and approved of. According to the specification forming the basis of the contract libelled on by the pursuers, the two vessels in question were specified to be 170 feet length on keel, 26 feet beam, and 15 feet depth moulded, and to be of the tonnage of 555 1/9 7/4 th tons, old builders’ measurement; and it was alleged by the defenders that the vessels were constructed of the measurements, tonnage, and capacity required by the contract; that they were in all other respects conform to the provisions of said contract; and that both vessels had been delivered to and retained by the pursuers for the purposes of their trade.

The following issue was sent to the jury:—

“Whether, in or about the month of January 1866, the defenders contracted with the pursuers to furnish them with two steam-vessels in accordance with the stipulations and terms set forth in the specification No. 16 of process. Whether the defenders afterwards delivered to the pursuers two steam-vessels, for which the pursuers paid the stipulated price. And whether the said steam-vessels were not, or either of them was not, in accordance with the stipulations and terms set forth in the said specification, inasmuch as the same were or was deficient in carrying capacity, to the loss, injury, and damage of the pursuers.”

Damages laid at £10.000.