Scottish Court of Session Decisions

The Campania Navigation Sota y'Aznar, who had been the losing party in counteractions with the Clan Line Steamers, Limited, arising out of a collision at sea, lodged a note of objections to the report of the Auditor, who had allowed to the extent of £177, 14s. 8d. their opponents' charge of £267, 14s. 8d. for detaining on shore for two months and ten days four members of the crew of the ship which had been in collision in order to enable them to give evidence at the ensuing proof.

The facts of the Case were set forth in the opinion of Lord Salvesen as follows—“The question raised by this note of objection is one of general importance in connection with the examination of witnesses in maritime causes. There were counter-actions of damages arising out of a collision between vessels belonging to the pursuers and defenders respectively. The leading action was at the instance of the Clan Line (whom I call pursuers) for a sum of £9000, and the counter action concluded for £3500. The cause was therefore one of considerable pecuniary importance to the parties. The collision, it appears, happened in May 1915, the action was raised on 6th December, and the proof took place in the Sheriff Court at Glasgow in the second week of April 1916. The Clan Line Company, who were the successful parties, in their account of expenses charged £267, 14s. 8d. as the expenses incurred through the detention of four members of the crew of the vessel on shore while waiting for the trial, these expenses being applicable to a period of two months and ten days prior to the trial. Part of the expenses consisted of the cost of victualling, and this has wholly been disallowed by the Auditor on the ground that the wages paid should have enabled the men to pay for their own board and lodging while on shore. The Auditor has also made a rough and ready deduction of approximately £50, although it is not plain upon what principle he has proceeded. He has allowed the balance on the ground that as two of the witnesses were the captain and the chief officer, who were the most important witnesses for the pursuers, it was desirable that they should be examined before the judge who ultimately decided the case, and that therefore it was not incumbent on the pursuers to apply for a commission to examine these witnesses, and so to have avoided the expense of detention. In so doing he had in view, as we were informed, the magnitude of the pecuniary interests at stake.”

Argued for the objectors—It was under any circumstances, but particularly in view of the present pressing needs of the country, unreasonable to keep in port the captain and the first and second officers and the second engineer from 2nd February until 10th April 1916. This had been done without any intimation. The expense as regards this item was unreasonable, and should be disallowed— Parker v. North British Railway Company, (1900) 8 S.L.T. 18.

Argued for the Clan Line Steamers, Limited—The Auditor, after full consideration of all the circumstances laid before him, had only allowed a part of the item objected to. Where, as in the present case, the sums of damages claimed were large, the Court as a rule was slow to interfere with the Auditor's ruling. Accordingly the item should be allowed.

At advising—