Ltd. v. Ropner Shipping Co. Ltd.

December 6, 1923.

Cullen, and Sands).

The defenders appealed to the House of Lords, and argued, inter alia, that they were not liable for loss of profits in respect of the detention of the S.S. "Vitruvia" during repairs on the ground that at that time the vessel was not seaworthy by reason of a defect in her propeller. It was pointed out to counsel by their Lordships that there were no averments or pleas on record which raised this question.

Counsel for the defenders then asked leave to amend his defences by adding an averment to the following effect :

"The 'Vitruvia,' at the time she arrived in the port of Glasgow on 12th August 1920, was in an unseaworthy condition. In any event, her owners had decided that the vessel should not be sent to sea in her then condition. At that date a fault had developed in her propeller which required to be repaired before the vessel could put to sea. In order to allow of the fault being repaired or the nature of the defect being discovered, it was necessary that the Vitruvia' should be put into dry dock. A dry dock was ordered by or on behalf of the pursuers

in order to ascertain the nature of the defect and carry out the required repair, but no dry dock was available or could be obtained until 2nd September 1920. By that date all the repairs rendered necessary by the collision had been carried out. For the purpose of these repairs a dry dock was not required."

The proposed amendment included also a new plea in law as follows :

"5. The detention of the 'Vitruvia' between 12th

August and 2nd September 1920, on which latter date she obtained a dry dock, having been due to her unseaworthiness, et separatim having been due to the determination of the pursuers to detain the vessel until the propeller had been repaired, the defenders are not liable to the pursuers in reparation during that period owing to the vessel not being a freight-earning subject."

Counsel for the pursuers and respondents then asked leave to answer the said amendment by adding the following averments to the 4th

article of their condescendence :

"The statements made in defenders' amendment are denied, subject to the following explanations. Explained that the nut of the 'Vitruvia's' propeller required to be tightened one half turn. This defect did not render the vessel unseaworthy. In any event the defect could have been repaired before the expiry of the twenty-two days occupied by the collision repairs. Had the defect been discovered before the

vessel had been brought to Glasgow for the purpose of effecting the collision repairs the propeller could have been examined and repaired at Rouen or a

•

Channel port. Further, had it not been necessary for the vessel to have remained in Glasgow for the collision repairs the pursuers could have had the propeller examined and repaired immediately it was discovered this was required by tipping the vessel while still atloat, and without entering dry dock or by obtaining a dry dock in Glasgow or elsewhere."

On 6th December 1923 their Lordships remitted the case to the Court of Session to allow the amendments proposed and to allow a proof thereof.

Lord Dunedin. - The case which is before your Lordships on appeal is in what I venture to call a most unfortunate condition owing to the disregard of those most salutary rules which for a long time have obtained in Scottish pleadings. It was only the other day (26th November 1923), in the case of Black v. John Williams & Co. (1924, S.L.T. 58), that I called attention to the fact and Lord Shaw called attention to the same matter - that the case which was being argued before us, and which was argued in the Inner House, was case in which there was neither record nor plea. In support of such procedure, the case of Davidson v. Logan (1908 S.C. 350) was quoted. I intimated at that time my dissent from what had been done in Davidson v. Logan. I fear I intimated it in much too mild terms, because this case presents really an object-lesson of the trouble that may follow from the disregard of those rules of pleading.

a

The present case is this. A collision occurred for which the defenders were admittedly responsible, and they necessarily have to pay for the repairs which were rendered necessary to the vessel injured by the collision; as to that there is no question. But when the action was raised for that sum, it was found also that the proprietors of the injured vessel claimed damages for what, using a Latin phrase, may be called lucrum cessans in damages because their vessel had been put out of action by the necessity of having these repairs made, and, consequently, had not during that time obtained remunerative employment. The parties went to proof upon various issues, and in the course of the proof it appeared that, as a matter of fact, during the twenty-two days in which the vessel had been laid up in Glasgow in order to get the repairs, there had been extant a serious defect of the screw which it could be alleged made the vessel unseaworthy. There neither averment nor plea to that effect; none the less when this fact emerged at the trial counsel were allowed without protest to argue upon the whole matter before the Lord Ordinary, and the Lord Ordinary gave judgment upon the facts as presented to him, including

was

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Now, I unhesitatingly say that the conduct of this case has been quite wrong. It may be that when the defence was lodged the defenders did not know the facts which raised the plea-I do not know whether they did or not, but I will assume for the moment that they did not and that consequently the record did not contain the proper averment and plea. But what happened? As soon as it became evident by the argument of counsel before the Lord Ordinary that the defence was really being put upon a matter which was raised by neither averment nor plea, I think it would have been not only right but the duty of counsel on the other side to say to the Lord Ordinary: "This cannot be raised without an amendment on the record." That an amendment of the record would have been not only possible but necessary is made perfectly clear by section 29 of the Court of Session Act, 1868 (31 & 32 Vict. cap. 100), with which everyone is familiar. Of course, on what terms that amendment would have been made is another matter that would have been in the hands of the Lord Ordinary; but supposing it had been made, then the counsel on the other side might have been in this position; he might have said, and quite rightly said: "Now the whole aspect of the case is altered; I want an opportunity to reconsider my position and see whether I will not make an averment which meets this averment, and, if necessary, ask for proof of that averment before judgment is given." None of those things was done, and the case comes up to your Lordships' House and we find that the point as now insisted on is a very formidable point. I say nothing at this present moment, because it would not be proper that I should, as to whether we should agree with the judgment the Inner House has given upon the pleadings as they stand-we might or we might not; but when the matter is further made clear by the discussion which has followed, then the counsel for the pursuers says: "Oh, well, but I will shew that really the facts are not as they are disclosed in this proof that is not a full and complete account of all that happened or that might have happened, and I want to shew that, so far from the vessel being necessarily unseaworthy during the twenty-two days, it was not so because there was a very slight repair which could have been made without

December 6, 1923.

not say it necessarily leads to his winning the Ropner Shipping case-but it puts a perfectly different complexion Co. Ltd. upon the case from the case that is before us. Accordingly, with your Lordships' assent, I put to the defenders' counsel in this case that he could not raise the plea as he has now raised it without an appropriate amendment of the record and plea. He has tabled that amendment to the record and plea, and I move your Lordships that it be accepted. I say nothing, of course, about on what terms, because the terms on which the amendment is accepted will have to be settled when the case is finally disposed of, but that the amendment and plea should be accepted I think is obviously clear.

Then counsel for the pursuers tables his further averment, and that further averment of his, if made good, I will not say wins the case, but alters the whole complexion of it; and therefore I think he ought to be allowed proof upon it. I again say nothing about terms, but I move your Lordships, first of all, that the amendment by the defenders be allowed and, secondly, that the additional averment by the pursuers be received and that the cause be remitted to the Court of Session in order that they may add the defenders' amendment to the record and may allow proof of this additional averment by the pursuers and send the case back to us with the evidence and a finding upon the matter raised by that amendment.

Lord Atkinson. - I concur.

Lord Shaw of Dunfermline. In the case of Black v. Williams the other day (26th November 1923), I ventured to express the opinion that doubts might arise as to the propriety or accuracy of the decision in Davidson v. Logan (1908 S.C. 350). In that case I spoke with considerable reserve, but I did express doubt whether it could stand alongside of the judgment then pronounced in this House.

I find myself forced to take a more definite attitude and now to say that I entirely agree with your Lordship that the decision in Davidson v. Logan on the point of procedure can no longer be considered correctly to represent the law of Scotland. I agree.

Lord Phillimore. - Your Lordships are under the guidance of two noble and learned Lords who are such authorities on Scottish procedure that I must, of course, concur with anything

9

HOUSE that they suggest. I confess that my withers OF LORDS. would have been unwrung by the comments in "Vitruvia" this case. I have been brought up in a school S.S. Co. in which a man who claims damages is expected Ltd. v. to come into Court with every form of proof Ropner and ready to meet every form of objection. Co. Ltd. In cases in the King's Bench Division very little, except in rare cases and on broad lines, 1923. is said about damages by the defendant in his pleadings. He merely denies that there is that damage which is claimed. In cases in the

Shipping

December 6,

Admiralty Division, and I rather think also when damages come to be assessed in Chancery (although I speak with a little hesitation about that), there is a detailed claim prepared by the claimant and he is expected then to meet any point that may arise upon that claim and be prepared further to deal with it, without notice, unless in its discretion the tribunal which assesses the damage thinks it is a matter that should be adjourned for further consideration. But if the Scottish procedure is more minute in this matter it should be followed, and therefore I concur with the noble Lord who has moved this

Justiciary cases-Statutory offence - Finance Act, 1920 (10 & 11 Geo. V. cap. 18), section 13-Roads Act, 1920 (10 & 11 Geo. V. cap. 72), section 1 (1)-Right of a Procurator-Fiscal to prosecute for (1) a failure to exhibit on a motor car the excise licence referable to it and (2) an alteration of the identification mark on a motor car-Held that where a contravention

of the Roads Act, 1920, was alleged a complaint at the instance of the Procurator-Fiscal was competent.

Justiciary cases Statutory offence - Competency - No specification of locus delicti given in the complaintHeld that the entire absence of any specification of locus, such at least as to determine the jurisdiction of the Sheriff, amounted to a case of incompetency

within the meaning of the Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), section 75, and that the conviction which followed on such a complaint fell to be quashed.

Bills of Suspension.

M'Millan v. Grant. -First case.

On 31st May 1923 James Stewart M'Millan,

managing director of M'Kirdy & M'Millan Ltd., carriage-hirers, 1 East Princes Street, Rothesay, was found guilty, by the Sheriff-Substitute of Bute (Martin), at Rothesay, of an offence against the Finance Act, 1920, section 13, the Roads Act, 1920, section 12, and the Road Vehicles (Registration and Licensing) Regulations, dated 9th March 1921, Article 4, under a complaint

at the instance of William Grant, ProcuratorFiscal, Rothesay, which set forth as follows:

You are charged at the instance of the complainer that, being the person in charge of the business of the said M'Kirdy & M'Millan Ltd., having taken out a licence, under the Finance Act, 1920, and the Roads Act, 1920, for a motor stage carriage, registered mark and number S.J. 30, you did, on Monday, 2nd April 1923, on Albert Place, in the burgh of Rothesay, use the said vehicle, and did fail to exhibit the licence issued to you by the Local Taxation Authority of the County of Bute, County Office, High Street, Rothesay, in a conspicuous position on the near side of the said vehicle, and so as to be clearly visible at all time by daylight to a person standing at the near side of the said vehicle, contrary to the Finance Act, 1920, section 13, the Roads Act, 1920, section 12, and the Road Vehicles (Registration and Licensing) Regulations, dated 9th March 1921, Article 4; whereby you are liable to a penalty not exceeding £20, and in default of payment to imprisonment in terms of the Summary Jurisdiction (Scotland) Act, 1908, section 48.

The complainer presented a bill of suspension in which he stated, inter alia :

3. A copy of the record of said trial is produced herewith, from which it will be observed that at a preliminary diet objections were taken to the complaint, videlicet, that the Procurator-Fiscal had no title to sue or prosecute, that the charge was irrelevant through want of specification of modus, and that the prosecutor had not produced his instructions to prosecute. The prosecutor having produced his alleged instructions to prosecute, the above objections were repelled on 31st May 1923, when evidence was led. The Roads Act, 1920 (10 & 11 Geo. V. cap. 72), provides that, section 1 (1), the duties on licences for mechanically propelled vehicles shall be levied by County Councils; section 1 (2), "“. . every county council and their officers shall, as from 1st January 1921, have within their county for the purpose of levying the duties aforesaid the same powers, duties, and liabilities as the Com

....

missioners of Customs and Excise and their officers have with respect to duties of excise, and to the issue and cancellation of licences on which duties of excise are imposed, and other matters under the Acts relating to duties of excise and excise licences, and all enactments relating to those duties and to punishments and penalties in connection therewith shall apply accordingly." Prosecutions at the instance of the Commissioners of Customs and Excise proceeded and still proceed at the instance of an official of Customs and Excise with the addition of the words "who prosecutes for His Majesty in this behalf (which complaint is commenced and prosecuted by order of the Commissioners of Inland Revenue)." The Roads Act, 1920, made the County Council and their officers a mere substitute in room and place of His Majesty's Commissioners and their officers. The complaint should accordingly have been at the instance of an officer of the County Council thereto authorised by the County Council. If the County Council before raising the proceedings complained of did enquire as to manner or method of prosecution by the said Commissioners and their officers, they have in fact departed from such manner or method of prosecution. The Commissioners of Customs and Excise could not delegate its right to prosecute to the Procurator-Fiscal, and the County Council are in no better position. The County Council is a creature of statute, and as such is bound to act strictly within the powers conferred upon it by statute. The Registration and Licensing Order (7th February 1921), issued by virtue of said Roads Act, provides, paragraph 2 (a), that County Councils may delegate to such of their officers as they may select any of the powers and duties now exercised or performed by officers of Customs and Excise." The Order also provides, paragraph 1 (2), the expression "local taxation officer" means the selected officer of the Council to whom powers or duties exercisable or performed by officers of Customs and Excise have been delegated by the Council. At the date of the alleged delegation to the Procurator-Fiscal, the latter was not one "of their officers." Qua Procurator-Fiscal the respondent had accordingly no title to sue or prosecute.

4. The prosecutor here pretends to exercise rights of prosecution alleged to be conferred upon him by virtue of the Roads Act, 1920, although the County Council, from whom he alleges he holds authority to prosecute, has not complied with the conditions prescribed by said statute, under which conditions alone can any such prosecution be legal. The complaint and subsequent proceedings are accordingly null. The said statutory provisions require that such of the officers of the County Council as they may select can exercise the duties previously exercised or performed by officers of Customs and Excise, which included prosecutions to recover fines. The Procurator-Fiscal, as such, was not an officer of the County Council at the date of the alleged delegation to him to prosecute. Under section 273 of the Customs Laws Consolidation Act (39 & 40 Vict. cap. 36), any officer of Customs, under the order and directions of the Commissioners of Customs, may prosecute, defend, or conduct any proceeding before any justice in any matter relating to the Customs to be heard or determined by him." In the present prosecution there was no officer of the County Council under its order and directions prosecuting the complaint, as such was not appointed by them. The Procurator-Fiscal is appointed by the Lord Advocate and paid by His Majesty's Treasury. The

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County Council are further empowered, by sub- HIGH section (3) of section 1 of the said Roads Act, 1920, to COURT restore any forfeiture, and to remit in whole or in part of JUSTIany penalty.

CIARY.

5. In regard to relevancy, the complaint fails M'Millan to set forth any acts on the part of the accused from v. Grant. which an offence against the statutes libelled can be Rippie v. inferred. The purpose of the alleged use is not set Grant. forth in the complaint, and no dispute as to the purpose of the use could possibly arise when no specifica- November 28, tion of the purpose was given. The fact that the car might have been used for an entirely innocent purpose, such as testing in the course of repair, is not excluded, and if all innocent purposes are not excluded, no inference of the commission of an offence must necessarily be drawn from the complaint as framed. Unless such an inference is the only inference to be drawn from the complaint, it is submitted that it is irrelevant. On relevancy, reference is also made to the preceding paragraphs in regard to no title to prosecute, as, if there was no prosecutor, there was no complaint.

In answers lodged by the Procurator-Fiscal, the respondent stated, inter alia :

3. Admitted that the said preliminary objections were stated and repelled. Explained that the respondent's appointment by the County Council of Buteshire as Prosecutor under the Roads Act, 1920, was in the hands of the clerk of Court in connection with another offence, but that the contention of the respondent in answer to the plea of want of title was that the said offence being a police offence was rightly prosecuted by him. Explained further that under the Roads Act, 1920, section 1, a County Council and its officers are given powers of prosecution in regard to duties of excise and excise licences; that the offence complained of is a police offence and not an excise offence, and falls to be prosecuted by the respondent in his capacity as Procurator-Fiscal. Quoad ultra the statements of the complainer are irrelevant.

4. Admitted that the Procurator-Fiscal is appointed by the Lord Advocate and paid by His Majesty's Treasury. Reference is made to the preceding answer in respect of the right and duty of the respondent to prosecute the offence complained of. Quoad ultra the statements of the complainer are irrelevant.

5. The complaint as laid fulfils all the requirements of the Summary Jurisdiction (Scotland) Act, 1908, section 19, and sets forth the facts relevantly and sufficiently to constitute the offence charged, and to inform the accused of the case he had to meet. Qucad ultra denied.

The complainer pleaded, inter alia :

"The convictions in question ought to be

suspended in respect that

"1. The prosecutor had no title to prosecute. "2. The complaint not being in conformity with the statutes authorising the prosecution, the proceedings are null.

"3. The complaint was not sufficiently specific to be relevant.

"4. The prosecutor in bringing the present