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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lawson v. Grangemouth Dockyard Co. [1888] ScotLR 25_580 (14 June 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/25SLR0580.html Cite as: [1888] ScotLR 25_580, [1888] SLR 25_580 |
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Page: 580↓
[
Expenses
In an action raised by the owner of a tug for payment of £500 as salvage in respect of services rendered to a steamship which had grounded on a bank in the channel of an inland river, it was proved that the service performed by the tug was one of risk, involving danger to herself, her crew, and her appliances; and that her owner had suffered loss in consequence of these services having been rendered. On the other hand, it was not proved that the steamer had been rescued from a position of danger.
Held that the owner of the tug was entitled to a higher rate of compensation than that paid for ordinary towage services, and £50 awarded.
By the 460th section of the Merchant Shipping Act, 1854, it is provided that in actions to compel the payment of salvage brought in the Court of Session, “if the claimants do not recover a greater sum than £200, they shall not, unless the Court certifies that the case is a fit one to be tried in a superior court, recover any … expenses incurred by them in prosecution of their claim.”
Observed that where the Lord Ordinary
Page: 581↓
has thought fit to grant such certificate the Court will be slow to interfere with his discretion.
Alexander Calder, builder, Edinburgh, was proprietor of ground in Melbourne Road and Quadrant Lane, North Berwick. Part of the ground was held burgage and the remainder had been acquired in feu by Mr Calder from the Commissioners of the burgh of North Berwick conform to articles and conditions of roup and sale thereof dated 31st May, minute of re-exposure dated 29th November, and minute of preference and enactment dated 29th November, all in the year 1897
By article Sexto of the said articles and conditions of roup and sale it was, inter alia, provided as follows:—“Before commencing any building the purchaser shall be bound to submit the elevation and whole detailed working plans, specifications, and measurements for approval to the exposers and their foresaids, and the building shall not proceed until such approval has been obtained in writing, and after such approval has been obtained, the purchaser shall not be entitled to deviate from the said plans or to alter the building therefrom in all time coming without the consent of the exposers or their foresaids.”
In terms of the said provisions Mr Calder submitted to the Commissioners plans for the erection of three tenements fronting Quadrant Lane, consisting each of three storeys, and the Commissioners approved of the same. Mr Calder having obtained warrant from the Dean of Guild Court on 22nd June 1898, proceeded with the erection of the tenements in accordance with the plans so approved. Thereafter he became desirous of deviating from the said warrant to the extent of erecting an additional storey upon each of the two southmost of the said three tenements. These two tenements were situated partly on the ground held burgage and partly on the ground acquired by Mr Calder in feu as above-mentioned, and had a frontage to Quadrant Lane, which opposite the tenements was not more than 29 feet 6 inches wide. The height of the tenements, according to the plans sanctioned by the Court, was 33 feet, and, if the additional storey were added, the height would be 44 feet.
In compliance with the provisions in the articles of roup Mr Calder submitted to the Commissioners the plan of the additional storey, but they refused to sanction it on the ground that an additional storey was unsuitable in a narrow street like Quadrant Lane, and in opposition to the spirit of the provisions of section 152 of the Burgh Police (Scotland) Act 1892, and would detrimentally affect the amenity of the neighbourhood, and also depreciate materially the value of the property in the district, inasmuch as the class of houses were inferior to those already approved by them.
Thereafter Mr Calder presented a petition to the Dean of Guild Court at North Berwick for warrant to erect the additional storey on the said two tenements.
He pleaded—“(1) As the operations in question are confined to the petitioner's own property, and can be executed without danger, the petitioner is entitled to warrant as craved. (2) The said Police Commissioners and Magistrates and Town Council having no title or interest to withhold their approval of the said plan, the petitioner is entitled to warrant as craved.”
The Commissioners opposed the application, and pleaded—“(3) In terms of the condition of sale the petitioner is bound ante omnia to obtain the sanction of the respondents for his proposed deviation, and not having obtained such sanction, the warrant ought to be refused.”
On 24th January the Dean of Guild pronounced the following interlocutor: — “Finds that the petitioner has not, in terms of the articles of roup, obtained the consent of the respondents, the said Commissioners of North Berwick, to the erection of a fourth storey on two tenements in Quadrant Lane, North Berwick: Therefore sustains the third plea-in-law stated for the compearing respondents; dismisses the petition,” &c.
Note.—“In this case the petitioner craves warrant to add a storey to each of the two tenements presently in course of erection by him in Quadrant Lane, plans for the erection of three tenements of three storeys each facing that lane having been already submitted to and passed by this Court after having received the sanction of the respondents. It is admitted by the petitioner that the plans of the proposed addition of a fourth storey to the southmost tenements have been submitted to and disapproved of by the respondents. It is maintained for the petitioner that the respondents have not on any ground any title to withhold their approval of the plan of the additional storey for which warrant is craved, nor have they any interest to do so; and at the hearing it was further maintained that in any event it was open to the Court to find that under article 6 of the articles of roup, under which the petitioner acquired the property, he was entitled to erect four-storey tenements fronting Quadrant Lane. As set forth in the preceding judgment, the Court is of opinion that it is not competent for them to grant the warrant craved until the petitioner obtains the respondents' consent; and further, that if it were necessary for the disposal of the question raised by this petition, it appears to them that the discretion exercised by the Commissioners in refusing to allow buildings of the height for which warrant is craved, fronting a lane only 29 feet 6 inches in width, is a reasonable one.”
The petitioner appealed, and argued—Although he had not yet obtained a feudal title from the Commissioners, he was willing to take the case as if the provision in the article of roup had been inserted in a feu-charter. In judging of the nature of stipulations inserted in a feu-charter the presumption was always for freedom. The power conferred on a superior by a condition restricting a vassal from building without the superior's consent must not be exercised without good cause, and the Court will set aside the superior's veto if they think it has been used unreasonably— Governors of Heriot's Hospital v. Ferguson, March 2, 1774, 3 Paton's Ap. 674; Cowan v. Magistrates of Edinburgh, March 19, 1887, 14 R. 682; Moir's Trustees v. M'Ewan, July 15, 1880, 7 R. 1141. The last of theses cases was specially in point, as in the feu-charter with which it dealt there was a condition that the plans should be submitted to the superior. Indeed, the deed in that case was more stringent than the present, since it provided that the buildings should be of a certain style. The clause as to the alteration of the plans was supplementary to that dealing with the approval of the original plans and the superior's position with regard to contemplated alterations was the same as that with regard to approval of the original plans. The superior was not entitled to veto a building if the plan showed that it was a reasonable building. [ Lord Young—What is a reasonable building? I daresay you can figure a case where the Court might interfere, as, for instance, where in a case of this kind the superior intimates to the feuar that he will not sanction any plan unless the buildings shown on it are each ten storeys high or have each a steeple and a clock with a weather-cock upon the top.] The superior's right was to judge as to whether the buildings were of such a class that his feu-duty would be secure and that his property would not be deteriorated. On the merits of the case these buildings if erected would effect a great improvement, and he was quite prepared to prove this.
Counsel for respondents was not called on.
At advising—
On the 20th of October 1887 the steamer “Tabasqueno,” as she was returning from her trial trip, went aground upon the breakwater at the mouth of the river Carron. A small tug, the “Tweed,” went to her assistance, but failed to get her off. Signals of distress were made to a large tug, the “Cruiser,” which was seen passing the mouth of the Carron with a vessel in tow. In response to these signals the “Cruiser” at once cast off the vessel which she had in tow, and came to the assistance of the “Tabasqueno.” On coming up she passed her hawser aboard of the steamer, and succeeded with considerable difficulty in hauling her off the breakwater. For the services thus rendered by his vessel, Joseph Lawson, the owner of the tug, sued the owners of the steamer, the Grangemouth Dockyard Company, for £500.
In the proof led it was established (1) that the services performed by the tug involved danger to herself, her appliances, and her crew; (2) that in loosing from the “Tabasqueno” the “Cruiser's” hawser, of the value of about £24, got entangled in one of the paddles and was destroyed; (3) that the pursuer lost the hire, £3, of the vessel which the “Cruiser” had in tow, and which it cast off in order to go to the assistance of the “Tabasqueno.” On the other hand, the pursuer failed to establish that the “Tabasqueno” was rescued from a position of danger.
The defenders tendered £20.
The Lord Ordinary (
The defenders reclaimed, and argued — The pursuer was only entitled to payment at towage rates for the services rendered. With regard to expenses the certificate of the Lord Ordinary should be recalled, as the case could well have been tried before the Sheriff under sec. 49 of the Merchant Shipping Act Amendment Act, 1862 (25 and 26 Vict. cap 63).
The pursuer argued that he was entitled to the sum awarded by the Lord Ordinary, and that the case was a fitting one to be tried in the superior court.
The Court were of opinion that £50 was not more than sufficient remuneration for the services rendered, which, if towage services, were towage services of an extraordinary kind, involving difficulty and danger to the vessel and crew which rendered them. On the question of expenses the Court declined to recal the certificate which the Lord Ordinary had granted in the exercise of his discretion.
The Court adhered.
Counsel for the Pursuer and Respondent— Dickson— Wilson. Agents— Beveridge, Sutherland, & Smith, S.S.C.
Counsel for the Defenders and Reclaimers— Balfour, Q.C.— Ure. Agents— Webster, Will, & Ritchie, S.S.C.
