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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Raeburn and Others v. Mulholland [1881] ScotLR 18_626 (29 June 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0626.html Cite as: [1881] SLR 18_626, [1881] ScotLR 18_626 |
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Page: 626↓
[Sheriff of Lanarkshire.
By charter-party, dated 17th November 1879, between William Raeburn and others, the owners of the steamship “Escurial,” and Messrs James Dunn & Sons of Glasgow, that vessel was chartered to take a cargo at Glasgow to Pernambuco, and or certain other South American ports, the ship being paid a lump sum of £2450 sterling as freight, the charter bearing that the owners of the vessel were to be responsible for improper stowage. The loading of the cargo was conducted by James Mulholland, who was appointed by the charterers, Messrs Dunn & Sons, as stevedore. On the arrival of the vessel at Rio some of the cargo was found to be so much damaged that the captain was compelled, in order to stop a threatened arrestment of the vessel, to pay the consignees, Messrs Finnie & Co. of Rio, the sum of £96, 7s. 1d. sterling. In these circumstances the owners raised this action against Mulholland for the sum which they said had had to be paid in consequence of the culpable and careless or negligent stowage of the vessel by the defender. The defender pleaded that not having been employed by the pursuers to stow the said cargo, nor paid by them, he was not responsible to them for any alleged defect in the stowage. The Sheriff-Substitute ( Spens) sustained this plea and dismissed the petition. On appeal the Lords of the Second Division were of opinion that this plea could not be sustained, as although the charterers, Dunn & Co., had given the defender his appointment as stevedore, the work for which he was appointed was work done in the pursuers' interest, and, besides, it was clear on the evidence that the defender was aware of this when he took the appointment.
In these circumstances they sustained the appeal, recalled the judgment, repelled the defender's plea-in-law, and remitted to the Sheriff to proceed with the case.
Counsel for Pursuers (Appellants)—Solicitor-General ( Balfour, Q.C.)— Jameson. Agents— Webster, Will, & Ritchie, S.S.C.
Counsel for Defender (Respondent)— Dickson. Agent— Thomas Carmichael, S.S.C.
