Andrew M'Douall, of Logan, Esq. - Lushingto - Keay v. Alexander M'Dowall - Jenne - Abercrombie [1825] UKHL 1_WS_22

UKHL
Andrew M'Douall, of Logan, Esq. - Lushingto - Keay v. Alexander M'Dowall - Jenne - Abercrombie
[1825] UKHL 1_WS_22
Circumstances under which (affirming the judgment of the Court of Session) a party dispossessing a salvor was found liable in damages and reparation to the owner of the vessel, and interest allowed on the expense of extracting the Judge-Admiral's decree.By a crown-charter erecting M'Douall of Logan's land into the barony of Logan, the privilege and liberty of ‘wrak, wair, et waith’ was granted.Notice having been given to Logan that a brig was seen in distress, (which was afterwards found to be the Lord Nelson), off the mill of Logan, or Balgowan point, a headland forming part of his estate, he dispatched his two principal servants to gather a crew to assist the ship, and as an authority issued this warrant:—
“Whereas I am informed there is a dismasted ship floating off the point of Balgowan, I therefore grant warrant to Alexander M'William and John Scott, both my servants, to go and take charge of the said ship, and carry her into the nearest place of safety, or to Chapelrossan Bay, for behoof of the owners or insurers, and to employ what men they may see necessary to assist them, and to discharge any that may disobey these orders, or act improperly, and report the same. This I do on the 18th of November 1810, as Admiral and Justice of the Peace.”
Logan's men took possession of the vessel, under the circumstances detailed in the interlocutor to be immediately quoted, run her ashore in Chapelrossan Bay, where they dug an inlet or dock for her to lie in, from which, however, she was driven by a gale of wind, and cast on a beach of stone and shingle, and materially damaged.It appeared, that previous to the approach of Logan's party, Alexander M'Dowall, residing in Drummore, having discovered the vessel, proceeded with a sloop called the Druid, and along with his crew boarded the vessel; that they carried her to a bay, and that M'Dowall left her there at anchor under the charge of four men, but who were afterwards ejected from possession by Logan's party. After much correspondence to effect an amicable arrangement, Alexander M'Dowall on his own behalf, and as agent of the owners, Captain Lewis and others, with concurrence of the Procurator-fiscal, raised an action in the Admiralty Court against Logan, concluding that he ought to be ordained to make payment to the pursuer, Alexander

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A proof was allowed and led, on advising which, and memorials, the Judge-Admiral, on the 19th March 1812, found it proved, “That on Saturday the 17th of November 1810, a brig was discovered by the pursuer, Alexander M'Dowall, in seemingly great distress in the Bay of Luce, who generously prevailed with the master of the sloop Druid, then lying in the harbour of Drummore, partly loaded with a cargo belonging to the pursuer, to go out at considerable risk, which the pursuer undertook to bear, both to the ship and cargo, to assist the vessel in distress: That the said vessel was discovered to be water-logged, and deserted by the crew; but that, owing to the sea running high, those in the Druid could not venture on board, and returned to Drummore on Saturday night: That the next morning, being Sunday the 18th, the said pursuer, with various assistants, went out to said distressed vessel, and got on board, when they discovered it was the brig Lord Nelson, having lost her main-mast and the fore-mast above the maintop, completely water-logged, and having none of the crew on board; and that they carried the ship to a part of the coast off the windmill of Logan, on the west side of the Bay of Luce, where they cast anchor; and the pursuer left the vessel with a guard of four men on board, to defend her against

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Both parties brought reductions in the Court of Session, and Logan also suspended. These three actions were conjoined; and the case having been discussed, the Lord Ordinary found “Logan, the defender in the first reduction, liable to indemnify the pursuer for the additional loss and expenses which the owners sustained on account of the ship and cargo, in consequence of the defender having taken possession of the vessel, and having carried her to the Bay of Chapelrossan, and having detained her there, beyond the loss and expenses which would have been incurred by the pursuer on account of the ship and cargo, and of demurrage, had the defender not interfered; and had the pursuer, Alexander M'Dowall, been permitted to take the ship in her disabled state to a place of safety in the bay or harbour of Drummore, which, it appears from the proof, might have been accomplished on the 19th of November 1810: finds, that the difference between the amount of the loss and expenses which the pursuer would have sustained had the defender not taken possession of the vessel, and the amount of the loss and expense occasioned to the pursuer after the defender's interference, must be ascertained by a careful examination of those parts of the proof which relate to this subject, and by such other steps as may-still appear to be necessary in order to determine this point, if farther steps for this purpose shall seem requisite; and, before farther answer,

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Logan reclaimed, but the Court adhered.The case then returned to the Lord Ordinary, when the result was a report by Mr Menzies, ship-builder in Leith; and the Lord Ordinary pronounced judgments finding Logan liable to the pursuers, 1 st , In the balance of L.456. 18s. 8d. with interest from the 18th February on L.265. 2s. 2d. being the balance of principal sum due at that date; 2 d , In the expenses incurred in the Admiralty Court prior to the 12th March 1812, viz. L.384. 11s. 4d. and the expenses of extracting the Admiralty Court decree, amounting to L.185. 19s.; but found him not liable in any other expenses incurred in the Admiralty Court, nor in interest on any part of the above-mentioned expenses: found him liable in the pursuer's expenses in the Court of Session, viz. L.355. 15s. 6d.; and in the suspension at the defender's instance found the letters orderly proceeded; and in the reduction at his instance repelled the reasons of reduction; and reduced and decerned in terms of the pursuer's reduction, in so far as supported by the interlocutor in the cause.The pursuers represented to the Lord Ordinary, that they were entitled to interest on the sum paid for extracting the Admiral's decree. The Lord Ordinary so far altered his interlocutor as to find the defender liable in interest on that sum; and the Court, on the 14th November 1821, adhered to that judgment. There were several other proceedings on the point of interim payments and expenses, which need not be detailed. *Logan appealed from four interlocutors of the Judge-Admiral, and twenty-three interlocutors of the Court of Session.Appellant .— The appellant claims no salvage or money expended by him; but he appears as defender to an action of damages against him, for carrying the vessel he had a right to take the custody of, into one port rather than another. This is the first instance in Scotland or England of an action against a bona fide salvor for injudicious conduct; for here there is no charge of wilful misconduct or of appropriation. The appellant took possession solely for behoof of the owners; and he did so under his right. His charters contain a clause of “wrack, wair, et waith;” and the vessel was within the jurisdiction over which his charter extends:—

Footnote

* See 1. Shaw and Ballantine, No. 235. and 278.

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Lord Gifford .— Not when the vessel was first discovered by the respondent.Keay .— We maintain that she was within the headland of Luce, which is within his jurisdiction. By the law of Scotland the appellant held a right to take possession of wreck, whether on shore or at sea. He and his predecessors had acted under this right, and had held Admiralty Courts in the exertion of their rights, minutes of proceedings in which are in process. The right was acknowledged in the Judge-Admiral Court by a judgment in 1791, bearing, that Logan had “established a right to the droits of Admiralty upon the shores of his land and barony of Logan.” It is not necessary that this grant should be in the dispositive clause of the charter. It is in the tenendas, and has been followed by possession; and that possession has been confirmed by a competent Court. Besides, the Crown does not dispute the appellant's right, and a third party cannot. To whom does a wreck at sea belong in this situation, if she does not fall within the droits of Admiralty? Surely not to the first occupant.Lord Gifford .— The respondent does not argue that he has any right of property, but merely that he was the first salvor, and was improperly disturbed by the appellant.Keay .— But he adds, that the appellant was desirous of appropriating to himself the property; and maintains, that he, the respondent, without any grant, could exclude the appellant, who holds a grant of ‘wrak, wair, et waith,’ and has over and over again exercised it. The vessel was a derelict; for dereliction ensues upon the desertion of the real owner: she continues a derelict even in the custody of the salvors; and in whosoever's hand she may be, the crown, and the crown's donor, can take her. Observe what is the extent of a salvor's right: If a merchantman is the salvor, the crown sends a person on board to take possession. Could the salvor say, “No; I shall keep possession, and carry the vessel 100 miles off?” Certainly not. Besides, the appellant was entitled to act as he did, in virtue of the statute of 12. Anne, c. 18. He being a Justice of Peace, he acted with perfect bona fides; and quomodo constat that, had the vessel been taken to Drummore Bay, the same or worse consequences might not have happened?Interest ought not to have been allowed upon the expense of extract.Respondent .—The appellant was not justified in dispossessing the respondent, who had taken possession, and held for the owners. The respondent claimed no right of property, but to

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The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed with L.150 costs.”My Lords,—In this appeal Andrew M'Douall, Esq. of Logan, is the appellant, and Alexander M'Dowall, for himself, and as agent and manager for the owners of the brig Lord Nelson and her cargo, is the respondent. This is an appeal against a great number of interlocutors of the Court of Session, finding the appellant liable for the injury which was sustained in the transaction, to which the case refers, by his acts.My Lords,—It appears that on Saturday the 17th of November 1810, a vessel, which afterwards proved to be the Lord Nelson, was discovered by the respondent, Mr Alexander M'Dowall, in great distress, about five or six miles from any shore, at a still greater distance, as it is stated, from the estate of the appellant, and near to a reef of rocks called the Big Leaves, which is situated near the mouth of the

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My Lords,—It appears that another attempt was made by the respondent himself in a row-boat, with five or six experienced sailors, to assist this vessel, but that also was ineffectual: however, on the following morning, the 18th of November, very early, the respondent, with some persons in his employ, went out, and they were at that time enabled to get on board this vessel, the Lord Nelson. They found her at that time without any crew on board. They endeavoured to bring her into the harbour of Drummore; but, from the state of the weather, were unable to accomplish this: they therefore felt it prudent to bring the vessel to an anchor, which they did at a distance of about two miles from the shore, off a place called the Windmill of Logan, or the Point of Balgowan, which is stated to be near the northern extremity of the appellant's property. The respondent having seen her safely at anchor, left her in the charge of certain persons, and came ashore.My Lords,—I will here remark, that no doubt can be entertained of the bona fides of the conduct of this party; for it appears, that very soon after he came ashore he gave notice to the nearest custom-house officer of the stranding of this vessel; and there being no crew on board, and there being no means of ascertaining who were the owners, he the next day communicated the particulars by a letter to Lloyd's coffee-house.My Lords,—It appears, that while the brig was riding at anchor off the point of Balgowan, late on the evening of Sunday the 18th, the appellant, Mr M'Douall, who is a gentleman resident at Logan, in that neighbourhood, hearing of the state of the vessel, issued what he is pleased to call a warrant, about the accuracy of the copy of which there has been some discussion in the Court below, in which he says,—“Whereas I am informed there is a dismasted ship floating off the Point of Balgowan, I therefore grant warrant to Alexander M'William and John Scott, both my servants, to go and take charge of the said ship, and carry her into the nearest place of safety, or to Chapelrossan Bay, for behoof of the owners or insurers, and to employ

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My Lords,—It appears, that under this authority the persons named in it, and others, went out and boarded this vessel, which was at the time in the possession of the persons left in charge of her by the respondent; and without detaining your Lordships by going through all the circumstances, the result, I think, may be fairly stated to be, that the appellant retained possession of the vessel, and the respondent was obliged to withdraw from her. The respondent had been desirous of getting her into the harbour of Drummore, which was the best place of security to which she could be carried; and, by the assistance of the Druid, he was in hopes of being able to effect that; but, on the appellant taking possession of her, he endeavoured to remove her into Chapelrossan Bay, or some bay in the neighbourhood, notwithstanding, in consequence of the Druid having gone out to her assistance, she might have been, as the respondent contends, safely brought into the harbour of Drummore. She appears at length to have drifted into the Bay of Chapelrossan, which is on the shore of the appellant's estate, which is stated to have been an open bay, and with a very bad bottom. She was dragged on shore; and shortly after there was another step taken, by which it is stated that she received a very considerable damage, a dock or canal being cut for her in the sand, and on which, on the approach of the high tide, she drifted and rolled.My Lords,—It appears that, shortly afterwards, the agent for the owners of this vessel dispatched a letter to the respondent, authorizing him to act in their behalf, and to do all in his power for the preservation of the vessel and her cargo. This, it appears, he immediately communicated to the appellant; but he refused to give up the vessel to him, and ultimately proceedings were instituted in the Admiralty Court for the restitution of the ship and cargo, and for the damages sustained in consequence of the interference of the appellant. In consequence of those proceedings, the ship and cargo were delivered, upon security being given for the salvage which might be found due to him, and the respondent proceeded merely in the question for damages.My Lords,—It is not necessary to detain your Lordships with a great variety of proceedings which subsequently took place, the result being, that ultimately it was found by the Court of Session that the appellant was liable in a considerable sum to the owner, for damages the vessel had sustained by what they alleged was a misconduct on the part of the appellant, in his improperly taking possession of the vessel, and conveying her into this place. His defences were several:—1st, He contended he had a right, in consequence of certain charters which he possessed, to take possession of this vessel as a derelict, which this vessel certainly was; that he was therefore fully justified in taking

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My Lords,—With reference to these different defences, his titles are stated shortly. He founds chiefly on a charter granted by John M'Douall of Logan in 1594. By that, certain lands were erected into the barony of Logan; and which charter contained a general clause, granting to him the privilege and liberty of the forest, vert and venison, and so on; and then follow these words,—‘wrack, wair, et waith.’ My Lords,—A considerable discussion took place below, and at your Lordships' Bar, on the construction these words ought to receive, and also upon the validity of this grant, supposing these acts were capable of a construction which the appellant contended for, in consequence of these words occurring in a clause of the charter called the tenendas clause, and not in the dispositive clause.My Lords,—He also founded on what he called the record of the proceedings in the Admiralty Court, which was a book, or rather, indeed, detached pieces of paper, in which there were proceedings in this supposed Admiralty Court of Logan, and from which the defender contended, it appeared, that he had enjoyed the right of taking wreck on the shores of the barony of Logan; and there was one entry particularly referred to, from which it appeared that rum and oil, which had been taken up on the shore of this barony, had been condemned for his use; and he shewed that he enjoyed this property, for that he sold the oil at Glasgow, and drank the rum at Logan. He also founded on a judgment in the year 1791 in the Admiralty Court in which it was found, that the defender, John M'Douall, Esq. had established a right to the droits of Admiralty upon the shores of his lands and barony of Logan. Under all these circumstances, he contended, that notwithstanding this vessel had been, as must be admitted on all hands, legally taken possession of by the respondent, not as claiming the property, for neither he nor the appellant could establish any right, or sustain any claim to the property, against the right owner; but that, having legally taken possession of it for the benefit of the owner, he was entitled to the salvage for the trouble he had taken in taking possession and keeping possession of this vessel for the benefit of the owners. The appellant contended, that although the respondent had legally taken possession of this vessel five or six miles from the shore, and was taking care of it for the owner, he had a right to divest him of the ownership, and to retain the possession for the benefit of the owners, or for his own benefit if no owner appeared. My Lords, The Court of Session were of opinion, that this supposed grant, and the subsequent proceedings upon it, gave him no such right; and, upon the best consideration I have been able to give, it appears to me they have formed a perfectly

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But, my Lords, independently of the question, whether this gentleman was entitled to interfere in his character of Admiral, which, in the present situation of this cause, I think he has not brought any thing like the sort of evidence which he must, in order to support and justify the conduct which he pursued on this occasion, he endeavoured to shelter himself under his character of a Justice of the Peace. The statute under which he contended he had this right of interference, was the statute of Anne. It is quite evident in this case, that no proceedings had taken place under that statute to call for his interference as a Magistrate, and therefore his justification as a Magistrate entirely failed.Then in his defence he urged at your Lordships' Bar, that though he had no right to interfere in his character of Admiral, or as a Magistrate, still he acted bona fide, and therefore it was extremely hard he should have to pay the damages which were given against him by the Court.On that subject I will not detain your Lordships by going through the evidence in this case. It appears that this vessel was in the possession of the respondent, and his men, who were using all their efforts to carry this vessel into the harbour of Drummore; and who were very desirous to carry her into the harbour of Drummore, where she might have been in safety, and which appears to have been the best place in that neighbourhood for the reception of this vessel. This gentleman, however, chose to take her out of the respondent's hands. There were difficulties, I admit, in carrying her into that harbour; but it appears it might have been effected, had not the respondent been obliged to give up the possession of the vessel. He chose to carry her to Chapelrossan, where, as they have stated to

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My Lords,—This case has been frequently under the consideration of the Court of Session; having been first under the consideration of the Judge-Admiral, who awarded against this gentleman damages and expenses. The Court of Session then pronounced seventeen or eighteen interlocutors against which this appeal has been brought. The result of the opinion I feel it to be my duty to express to your Lordships is, that those interlocutors were right, and that this gentleman had misconducted himself, so as to render himself liable in damages, and to the amount of damages awarded against him. Seeing no reason to find fault with the decision of the Court of Session, it does appear to me that, in affirming this judgment, your Lordships ought also to affirm it with costs. It appears to me, that all the grounds of his defence have entirely failed. The Court of Session have been of that opinion; and if your Lordships concur with me in the opinion that they were right in their conclusion, it does appear to me, that, under those circumsances, this gentleman ought to pay costs for bringing this case before your Lordships. I will therefore move your Lordships, that this interlocutor be affirmed with L.150 costs.Appellant's Authorities. —Ersk. Inst. 2. 1. 13.; M'Kenzie's Observ. on 1429, c. 124.; Laws of Oleron, §29,30.; Skene de Significatione, voce Wreck; Craig, 1. 16. 42.; Stair's Inst. 3. 3. 27.; Balfour, p. 623.; Bank. Inst. 1. 8. 209.; 4. 12, 18.; 12. Queen Anne, c. 18.; Com. of Customs, May 25. 1810, (F. C.); Robinson's Reports, Case of the Aquila. Respondent's Authorities. — Aboyne v. Farquharson , Nov. 16. 1814, (F. C.); (House of Lords, April 22. 1818); Stair's Inst. 3. 3. 27.; Bankton, Inst. 1. 8. 6.; Connery v. Lord Dundas , Feb. 1. 1805, (App. 1. Jurisdiction, No. 14.); 1429, c. 124. with M'Kenzie's Observations; 12. Anne, c. 18. 1.; 26. Geo. II. c. 19.Solicitors: Spottiswoode and Robertson— J. Richardson,—Solicitors.