Penney v. Clyde Shipbuilding and Engineering Co., Ltd [1919] ScotLR 258 (20 February 1919)

Penney v. Clyde Shipbuilding and Engineering Co., Ltd [1919] ScotLR 258 (20 February 1919)

The contract expressly provided that property in the ship as constructed passed to the purchasers. At the outbreak of war, the partially completed ship was the property of the alien enemy, and the sum paid by the Admiralty for the requisitioned ship was a surrogatum for that property. The Custodian is entitled to recover the sum as enemy property under the Trading with the Enemy Acts. The defenders' counterclaim for loss of use of their yard is irrelevant to the pursuer's claim.

Citation
[1919] ScotLR 258
Parties
Pursuer: Joseph Campbell Penney (Custodian for Scotland under the Trading with the Enemy Amendment Act 1914); Defender: Clyde Shipbuilding and Engineering Company, Limited
Jurisdiction
Scotland
Judgment Date
20 February 1919
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Decree
Outcome
Appeal dismissed; decree for pursuer affirmed.
Legal Topics
Passing of Property in Uncompleted Goods, Executory Contracts and Frustration by War, Trading With the Enemy, Vesting of Enemy Property, Counterclaims in Contract Dissolution
Contract Law Property Law War and National Security Law Passing of Property in Uncompleted Goods Executory Contracts and Frustration by War Trading With the Enemy Vesting of Enemy Property Counterclaims in Contract Dissolution

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Parties

Joseph Campbell Penney (Custodian for Scotland under the Trading with the Enemy Amendment Act 1914)

Pursuer

Clyde Shipbuilding and Engineering Company, Limited

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Decree

Legal Issues

  1. 1 Did property in the partially completed ship pass to the alien enemy purchaser prior to the outbreak of war?
  2. 2 Is the sum paid by the Admiralty for the requisitioned ship held by the builders as a surrogatum for the enemy's property?
  3. 3 Is the Custodian entitled to recover the sum as enemy property under the Trading with the Enemy Acts?

Ratio Decidendi

The contract expressly provided that property in the ship as constructed passed to the purchasers. At the outbreak of war, the partially completed ship was the property of the alien enemy, and the sum paid by the Admiralty for the requisitioned ship was a surrogatum for that property. The Custodian is entitled to recover the sum as enemy property under the Trading with the Enemy Acts. The defenders' counterclaim for loss of use of their yard is irrelevant to the pursuer's claim.

Court Disposition

Appeal dismissed; decree for pursuer affirmed.

Orders

  • Defenders to pay to the pursuer the sum of £79,732 16s. 4d.
  • Interest at 5% per annum from 20 February 1919 on said sum.