Scottish Court of Session Decisions

The Merchant Shipping Act 1854 (17 and 18 Vict. c. 104) provides by section 460 that disputes with regard to salvage shall be referred, if the sum claimed does not exceed £200, to the arbitration of two Justices of the Peace. The Merchant Shipping Acts, &c., Amendment Act 1862 (25 and 26 Vict. c. 63) by section 49 amends the above provision to the effect of giving the Sheriff or Sheriff-Substitute of any county the same jurisdiction in salvage cases as was given to two Justices.

Part VIII. of the Merchant Shipping Act of 1854 is headed, Wrecks, Casualties, and Salvage, and provides by section 464—“If any person is aggrieved by the award made by such Justices or such umpire as aforesaid, he may in England appeal to the High Court of Admiralty of England, iu Ireland to the High Court of Admiralty of Ireland, and in Scotland to the Court of Session; but no such appeal shall be allowed unless the sum in dispute exceeds fifty pounds, nor unless within ten days after the date of the award the appellant gives notice to the Justices to whom the matter was referred of his intention to appeal, nor unless the appellant proceeds to take out a monition, or to take such other proceeding as according to the practice of the Court of Appeal is necessary for the institution of an appeal within twenty days from the date of the award.”

Part X. of the Act is headed Legal Procedure, and in that portion which is applicable to Scotland it is provided by section 536—“The whole procedure in cases brought in a summary form before the Sheriff or Justices of the Peace in Scotland shall be conducted viva voce, without written pleadings, and without taking down the evidence in writing, and no record shall be kept of the proceedings, other than the complaint, and the sentence or decree pronounced thereon.”

By section 542 of the Act, which is also contained in Part X., it is provided—“No order, decree, or sentence pronounced by any Sheriff or Justice of the Peace in Scotland under the authority of this Act shall be granted or vacated for any misnomer, informality, or defect of form; and all orders, decrees, and sentences so pronounced shall be final and conclusive, and not subject to suspension, advocation, reduction, or to any form of review or stay of execution, except on the ground of corruption or malice on the part of the Sheriff or Justices.” …

This was an application presented by William Sinclair and others, fishermen, residing in the Island of Stroma, Caithness, to the Sheriff-Substitute of Caithness, Orkney and Shetland, at Wick, under sec. 460 of the Merchant Shipping Act 1854, as amended by sec. 19 of the Merchant Shipping, &c., Amendment Act 1862, to arbitrate between them and John Spence, Lloyds' Agent, Dunnet, and agent for the owners of the s.s. “Gladiolus,” as to the amount of salvage to be paid to them for services rendered by them to the cargo of this ship jettisoned in February 1883 while she was stranded in the Pentland Firth.

After a proof the Sheriff-Substitute ( Spittal) pronounced this interlocutor—“Decerns against the defender in favour of the pursuers for the sum of £94 sterling of salvage, in respect of salvage services rendered by the pursuers, and for the sum of £10 sterling of expenses.”

The defender appealed to the Court of Session under section 464 of the Merchant Shipping Act 1854.

A note of appeal was lodged along with certain productions, but without any record of the evidence taken in the Sheriff Court.

The appellant argued—A right of appeal being given by section 464 of the Act of 1854, that implies a right to the inquiry necessary to make the appeal effectual. Therefore, if necessary, the evidence must be re-heard. The evidence could not have been recorded in the Sheriff Court because of the prohibition in section 536.

Argued for the respondents—The existence of a right of appeal in any summary proceeding implies a right to have the evidence recorded if a motion were made at the proof. As no such motion was made, the appeal on the merits was lost— Gardner v. Dymock, January 9, 1865, 5 Irv. 13; Halliday v. Bathgate, June 1, 1867, 5 Irv. 382. Part X. either did not apply to salvage cases under Part VIII., which contained the section giving the right of appeal, or it applies only partially, and not to the effect of preventing notes of evidence from being recorded; or if it applied in toto, then under section 542 there was no appeal except on grounds of corruption or malice.

At advising—