John Stephen & Mark Tocher v. Simon Mokster Shipping AS [2008] CSOH 99

Reparation - In these two actions the pursuers, both fishermen, sought damages from the defenders for injuries they say they sustained following a collision between their vessel, "The Harvester" and a vessel belonging to the defenders "The Strilmoy". Both pursuers raised their claims under Chapter 43 of the Rules of Court. The pursuers in Article 3 of the condescendence state:- "The present action arises out of a collision at sea on 4 November 2005 as condescended upon below. An action arising out of the same incident is proceeding in this Court. This Court accordingly has jurisdiction." In Article 4 of condescendence the collision is said to have taken place some 130 miles north east of Peterhead. In their defences the defenders plead:- "The action, being an action having a conclusion appropriate for the enforcement of a claim to which Section 47(2) of the Administration of Justice Act 1956 applies, and therefore being an admiralty action to which the provisions of rule 46.6 of the Rules of the Court of Session 1994 also apply, is incompetent in its present form." Here the defenders enrolled motions in both actions to have the actions dismissed as being incompetent. Prior to the introduction of Chapter 43 procedure actions similar to the present proceedings would have had to have been raised as admiralty actions under Chapter 46 of the Rules of Court. The question for the courrt here was whether that remains the position or whether, with regard to Chapter 43, claims like the present must be brought under Chapter 43 procedure.