A TP James Scrimgeour and Son, merchants in
April 24, 1769.
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James Scrimgeour and Son, merchants in Borrow ftoun nels, T
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The P E T I T I O N of MefP William Alexander and Sons, merchants in Edinburgh. \ H E petition now to be anfwered brings under review your Lordfhips interlocutor of the 2d March lad, afcertaimng the fum acclaimable by the rel'pondents in con_ 1 r fe,(IU1enCe of the CQntra& of affreightment of their Uiip the Duke of Athol. * 1 And as the only article allowed to the refpondents, of which the petitioners pretend to complain, is the Stipulated fum in name of demurrage, for the time that this veflel was detained, partly in the Grenades, partly at Cape Fear in North Carolina, beyond'the feventy he-days allowed by the contra# of affreightment the prayer or the petition is, 1 hat your Lordfhips fhould find the repondents to have no claim for demurrage, or any other fpecics of indemnification, for the time the lhip lay at Caiolina, as her f i a y tnere arole fiom no mult of the petitioners. , EUp J nt,llC body of the petition, not fatisfied with an attempt
W J e” £c ves ” on\ being irl an7 Ibape the f ,he veffels detention in Carolina, they have maintain, that any damage arifing from the nip is chargeable upon the refpondents ; 1/, l n
caufe or occafion not fcrupled to detention o f the regarf of their
nlredhtn°ff ? ° C having the fo tmaeoufh pre pared to fet fail from the frith of Forth, upon the outward \ojage as (he ougnt to have been ; the time limited for her de parture being the 20th April, whereas in fa# fire did not fet fail
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from Borrowflounnefs till the 4th May, and by means thereof was fo late of arriving at the Grenades, her port of deftinarion, that a cargo of fugars, with which lhe was meant to be reloaded home wards, was not then to be purchafed, the petitioners correfpondents in the Grenades having in the mean time fent off the peti tioners fugars, wherewith this velTel was meant to be loaded, in fundry chance-velfels. And in p 5. of the petition, they exhibit a lilt of the hogfheads of fugar that were fent home to them that feafon, and of the veflels on board of which they were fent. 2dly, The repondents are charged with a fuppofed neglect of the perfon who had the command of this veffel, in loitering his time away improperly at the Grenades, before he fet out from thence on the voyage to Carolina, being no lefs than fifty-feven days. 3dly, They go even fo much further, as to make the refpondents anfwerable for the flay or detention of this velTel fo many months at Carolina, as fuppofing it to have been a duty incumbent upon the matter of this veflel, notwithftanding the commotions and difturbances in thofe parts, on account o f the ttamp-duty, to fet fail at all hazards, how foon the homeward cargo was prepared for reloading the veffel there. How far any of the above articles of dittay are founded in law, juftice, or faft, fhall in the fequel be confidered. And as an apology for giving your Lordfliips the trouble of re viewing the aforelaid interlocutor, the petitioners allure your Lord fhips, that it is not merely on account of their pecuniary intereft, but that in their apprehenlion, fliould this judgement be affirmed, it would unfettle every principle of mercantile law and ufage in the affreightment of lhips, and open a fource of contention, of dangerous confequences to the trade of this country : A fevere at tack, it muff needs be confeffed, upon the juftice of your Lord fhips interlocutor. However inconfiderable an objecfl the fum in difpute may be to the petitioners, it is not fo to the refpondents ; and when they fhall have obtained all that is allowed for the detention of this Ihip for fo many months, they will be very confiderable lofers, as it is well known to every perfon the leaft converfanc in foreign trade and merchandife, and to none better than the petitioners, that the ftipulated fum in ufe to be allowed for the detention of a fliip beyond the number of lie-days fpecially condefcended upon,
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is never underflood as an adequate fatisfadlion for the lofs of pro fits which filch veflel might have earned, had (he not heen fo un duly detained, but merely as an indemnification for the interim provifions of the fhipmafter and Tailors wages during the period of her detention over and above the lie-days. It is therefore altoge ther abfurd, to talk of demurrage-money as an equivalent for the freight of a (hip detained for the fpace of no lefs than feven months, and, as in this cafe, fent out by the freighters upon ano ther voyage, other than that which was agreed upon by the con tract of affreightment. Demurrage-money makes no allowance for the hazard at fea from the tempeftuoufnefs of ftormy weather, and other accidents, or for the infurance of the Veflel, or tear and wear thereof. But as from various accidents it may happen, that the ilipulated lie days for loading and reloading at the outward port may prove inefficient for thefe purpoles, whereby a greater num ber of lie days become requifite, during all which time the Thip is fuppofed to be lying fafe in port; the ium fiipulated on account of the demurrage, at fo much per day, and which, by the univerfal practice, cannot be drawn out to any confiderable length of time, has nothing in view but a reafonable recompence for the in terim provifion of the fhip, and maintenance and wages of the Tailors ; whereas, according to the petitioners dodfrine, it would be in the power of the freighter to fend the veffel upon the moft dangerous voyages over the whole globe, without being liable any further than to the fum fiipulated in name of demurrage. And therefore, though the refpondents were, for peace fake, wil ling to have acquiefced in the lum modified by your Lordfhips in name of demurrage on account of the detention of this fhip, partly at the Grenades, partly at Carolina, over and above the feventy lie-days allowed by the contract of affreightment, exclufive of the time confumed in the voyage from the Grenades to Caroli na, without any allowance for the damages fufiained from the difafier which befel the fhip in the courle of that voyage, it would indeed be a hard cafe, were tfle petitioners now to prevail in with holding even that fcanty allowance for the time the fhip and crew were detained, firfi at the Grenades, thereafter at Carolina, beyond the feventy days allowed by the contract of affreightment. And as this is the moll moderate computation of the real dama ges thereby fuftained, the queftion now fubmitted to your Lord fhips reconfideration is, Upon which of the parties that damage ought
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ought to lie ? And upon that (late of the cafe, as the petitioners have called thofe principles of the law in queftion upon which your Lordfhips judgement is founded, the refpondents will be for given, as an introduction to thefe their anfwers, fhortly to ftate what they apprehend, and are advifed, are the clear and manifeft principles ot law in every fuch cafe. Affreightments of {hips are a fpecies of the contract locati condufli; and as every queftion thereupon arifing falls to be judged upon the eftablifhed principles of that contract, the general prin ciple agreed to by all lawyers is, That any lots arifing, ex culpa, ei ther of the locator or the conductor, mult fall upon that party by whofe fault the damage has been occafioned. 1 his principle is eftablifhed by /. 24. Pand. De condit. et demon/. in thefe words : “ Jure Civili receptum eft, quoties per eum cujus “ intereft conditionem impleri, fit quo minus impleatur; utperinde “ habeatur ac fi impleta conditio fuiffet.” Voet, in his Commentary, lib. 19. tit. 2. illuffrates the general doCtrine of the above-quoted law, and ftates fundry cafes fimilar to the cafe in hand ; particularly in § 27. where his words are, “ Ql]a ratione nauta mercedem integram potell exigere, fi navigare ‘‘ non potuerit obid, quod mercium dominus veCtigal non folverat (( 1^a 1tierces ex caufa commiiTi fifco vindicatse fuerant; l. pen. § utt' Pand. huj. tit. Vel navigatio abfoluta quidem fit, fed irrito more abfurd than this. He was bound to lie feventy days waiting for the cargo : being difappointed thereof, he ought' to have taken his protelt after the feventy da>s, and if there was then no ap pearance of his getting a cargo, he was bound to have proceeded cv J in the voyage to London, either without a cargo, or with luch C&&4- partial cargoes as the petitioners fhould think proper to put on board. There is not here the colour ot a pretence that this devia tion was for the benefit of the refpondents, or intended for their YWrjj .yyjvt^ advantage. The petitioners benefit and advantage was the only objeft in view. The hond of indemnification proves this beyond pofiibility of cavil; and therefore allowing the mailer to have been ;n feme meafuie excufable in confenting thereto, in refpect of the aforefaid
fbrefaid indemnification, can any thing be more unjufi, than that any lofs or damage thereby occafioned fihould lie upon them ? The petitioners are indeed pleafed to put a very limited c o n d u c tion upon this letter of indemnification, as if no more had been intended but to remove the Ihipmafter’s fcruples, by the afturances thereby given, that his confenting to the deviation under the aforefaid circumftances, was doing no more than what, in the cha racter of fhipmafter, he was intitled to do. But as the letter will fpeak for itfelf more forcibly than any thing the refpondents can propofe to add by way of illuftration, they fubmit it to your Lordihips, to be as plain as words can make it, that as it was at the requeft of the petitioners agent, and for their foie benefit and ad vantage, that the fhipmafter was prevailed upon to confent to this alteration of the voyage, it was the purpofe and intendment of the letter of indemnification, that every damage which fhould from thence arife, and for which the fhipmafter was anfwerable to the relpondents, fhould he upon the petitioners rilk and hazard that, unlefs the petitioners could maintain, that this damage not arife from the veflel’s being fent out upon this voyage to ^ rolina, inftead of returning diredly to London, it is Tmpoflible they can throw this lofs upon the refpondents. But as the petitioners have not fcrupled to charge the refpon dents as in fome meafure anfweraole for the damages from thence arifing, in refpeCt of their failzies or negleCt in the feveral particu lars above mentioned, \ft, in not failing timeoufly from the port of Borrowftounnefs; idly, in the vefTcl’s loitering away the time unneceflarily at Grenada ; 3 dly, in not fetting fail from Carolina fo foon as fine ought to have done; the refpondents wilfbe pardon ed to bring again under your Lordlhips review, the feveral fads and proofs refpeCting each of the above particulars. And to begin with the alledged delay, in not having the vefiel ready to fail from Borrowftounnefs by the 20th April, the refpondents make a double anfvver, the one in fad, the ether in law. In point of fact they aver, and fay, That the fhip was fully prepared to have failed by the 20th April ; and that the modica viora in her not adfually fetting Tail fooner than the 4th May, was occafioned by the petitioners themfelves, in fending up the outward cargo to Borrowftounnels to be loaded there, and in the difputes which thereupon arofe with the officers of the port at Borrowftounnefs, refpeCting the duties of thofe goods. D
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And in point of law, they fubmit it to your Lordfhips, That if there hid been any fuch delay on the part of the refpondents, as no exception was taken thereto at the time, not fo much as a protelt, nor any complaint of that nature in the letters of correfpondence which paffed upon that fubjedt; and as, on the contrary, the petitioners acquiefced in the veflel’s letting fail upon that voyage on the|^.th May, which indicates their opinion, that, barring extraor dinary accidents, Ihe would be there timeoufly to anfwer the purpoles for which ihe was freighted: any objection which might otherwife have been competent on account of the fuppofed delay from the 20th April to the 4th May, was thereby waved and pall ed from. And it is the more furprifing, that this objection fhould have been rcforted to in the after proceedings in this court, when, by the decree of the judge-admiral, abundantly favourable for the petitioners in other refpedfs, this objection was exprefsly over-ruled, and acquiefced in by the petitioners. But allowing the objection to be ftill competent, it proceeds en tirely upon a miftake in fadt, as the fhip was fully prepared, fo far as depended upon the refpondents, to let fail upon the 20th April, but was detained at Borrowftounnefs, waiting goods that were to be fent there by the petitioners, confifting partly of herrings, partly of green linens ; for both which a bounty being due upon exportation, it was neceffary that the officers of the culfoms fhould examine all the barrels of herring, and bales of linen, which, with the difputes that thereupon arofe, occafioned a delay o ffo m ed a y s: and your Lordfhips will particularly obierve, that the petitioners were continuing to fend up goods to Borrowltounnefs to be put aboard this veflel, till the very end of April. Apr. 54.1765 Thus it was that the petitioners, by their letter of this date, wrote the refpondents in-thefe words: “ Inclofed is the receipt of “ John Abercromby, for 52 calks bottled and 6 hogfheads folid “ beer, alfo 7 bales linen, to go by your ihip the Duke of Athol. “ Thefe are all the goods we fend, except 150 barrels herrings, “ and 40 calks in ftaves, with a medicine cheft.” This letter is four days poiterior to the 20th April, when it was originally propofed the lhip fhould fail; no complaint is therein made of any de lay on the refpondents part; on the contrary, your Lordfhips will perceive, that the petitioners were then but fending up part of the outward cargo. They 4
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They again wrote the refpondents of this date: “ We duly re- Apr. 27.176; (6 ceived your favours of the 25th ; and for anfvver fend you inC( clofed manifeft of the goods, and bales, and trunks ; whereof a (( copy was fent you by fea ; but we fend another, left the other a fliould not duly reach.’' And in the after part of faid letter, they mention a box which had been fent by miftake, and which behoved to be returned at Leith. By another letter, thev, of this date, write, “ Inclofed is an or-Apr. 29.1755* u der from Mr James Watfon for 47 barrels herring, to complete ti 1j*o barrels that go for our account.” And though in this letter they urge the refpondents to hurry down the fhip as faft as poflible, they are fo far from complaining of any delay quoad pr&terita, that they inclofe an order for 47 barrels of herrings, which another peri’on was to furnifh, to make up their cargo of herrings. The refpondents, by their letter of the 29th April, had advifed the petitioners of fome difficulties which the officers of that port were making with regard to fome parcel of the linen. In anfwer to which, the petitioners, by their letter of this date, fignified their Apr.30.1765-. defire, “ That if any the lead demurrer was made about that par14 cel of linen, it fliould be left out, and withdrawn from the en“ try.’” But as the officers at Borrowftounnefs continued to make diffi- May 2. 1765culties, both with refpedl to the linen and herring, and as, till thejfe were fettled, it was impoflible the fhip could be cleared out to fail; of which the refpondents gave notice by letter 30th April, and 1 ft May, the petitioners, of this date, made a return to the refpon dents, expreffing their furprife at the delays occafioned by the mifcondubl of the officers, with directions how thefe miftakes fhoul i be put to rights; and therefore preffing the fhip immediately to let fail; and which file accordingly did. And fo flan-ding the fa 61, as vouched by the petitioners own let ters, it is truly furpfifing, that they fliould flill infill in charging the refpondents as in mora in this veflel’s not failing from the port of Borrowftounnefs fo loon as file ought to have done; whereby flie was fo much later in arriving at Grenades than otherwise might have been the cafe. Under ih?fecond article, the refpondents are charged with the matter’s fuppofed negkcl, or delay, at the Grenades, in not failing from thence for Carolina fo foon as fhe might have done; and which of conference behoved to retard her departure from Caro lina.: r
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Tina: and this is fuppofed to have been occaficned by the refnon dents fending out a parcel of their own goods, which did not find ready fale at the Grenades. Had there been any truth in this, it mud appear lingular and extraordinary, that no notice fliould have been taken of it, either m the defences before the admiral-court, nor in the after proceed ings in this court; which therefore is real evidence, that the peti tioners themfelves had no confidence in it. And as it does not ap pear from any part of the correfpondence with their agent abroad who prevailed with the fhipmafter to undertake the Carolina voy age, that any fuch complaint was made of the fhipmafter’s loiter ing away his time unneceffarily at the Grenades, it is unexcufable in the petitioners now, in the lad dage of this caufe, to throw out fuch a vague allegation, which they mud know to be void of all foundation. The goods which the refpondents had aboard (hid veOil were ee ry mconfiderable, and foon difpofed o t ; and as the petitioners do not compla.n of the refpondents fending out thefe grods and which the refpondents do fay it was their right and priv.lege to fend out in their own (hip, when fo fcantily loaded by the retit,oners; ,o it ™ be apparent that there are no, Krmim babik, for the fuppofed delay ot the (hipmaller's not proceeding fo timeoudy as he might have done upon the voyage from Grenades to LiaroJina.
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For your Lordfhips will obferve, that the whole time this veffel lay at the Grenades was but fifty-feven davs k i contraeff of affreightment feventy lie-days were allowed f o H o a d i^ the homeward cargo : io that till that time was elapfed, it was mpoflible there could be any mora in the cafe. The petitioners ha^e not pretended to fay, that the lhipmafter was in duty bound or neceffanly obliged to confcnt to this alteration of the voyage ’ the furtheft length they have pretended to carry their argument is that he was in fafety fo to do, provided he judged .t for he in tereft of his conftituents : How then is it poffible that he could be m mora tor doing what he was not obliged to do but on rh contrary was bound to abide at Grenada the whole’ fevemv 1 e but nett er is tins all: for your Lordlhips w i f i '^
fluence, by means of the aforefaid letter o f indemnification t o Z . n />vi/v*w ctn^tf ^^?v\x_ Y\A>v/ common paper, it is the fame a* 1 theft veffiels had failed without dearances ; and of courfe thev are liable to be fazed, and I think condemned, by the cou o / miralty, with their cargoes. J r au To Uic 2J l.ealou does not require the performance of impoffibibties ■ and courts of admiralty often decree favourably on the part of the owner*
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owners of the veffels and cargoes, when it does not appear that *. ny franc! was intended to the crown, efpeciaHy when all has been none Tat it was in the power of the captains and owners of veff ° d°- Bni the caPtains of thefe veffels feern to me to have heen ^guilty of great: negleft. They fhould have tendered the King s duties to the officers of the cudoms, and demanded proper cea ranees, &c. and on being refilled, they ifiould have made die like tender by a notary-public, and offered a proteft. Had thefe matters been complied with, fo as to hfe duly proved on a trial I 'U ( th,nk the judge would decree, that the veffels and cargoes were not forfeited. „ -A nd the °Pinion concludes with thefe words : “ Upon the whole « on the information T n,° n’ thuC u 13 the diny ° f the colledor to profecute he has received.” 1 Agreeable to this opinion, John Cowan, of this date, paffedjan with a notary-public and witneffes, to the perfonal prefence oPf the * c o lle d o rc f laid port and demanded from him proper and legd clearances for fa,d veffel, for which he tendered payment; but S ceived for anfwer That he had no damped paper; nor were there any to be got in that province at prefent; and therefore that it was not m his power to give him regular clearances ; but that if he would accept of fuch clearances as was in his power to mve him, he might have them on payment of the ufual fees : a u d it is notourly known, that for a confiderable time after this that whole country was in fuch an uproar, that no bufmefs could be And as the fhipmafter had thus complied with the advice of the attorney-genera!, your Lordflaips mud be fktisfied, that it would .a\e been the height of madnefs in the fhipmader, in the date in which matters then dood, to have attempted to fail without legal .clearances, when he was certain, that both the fhip and cargo haUt en6 • e'hT ’ ani* to tria!. under that equitable confederations might prevail upon proof given, that all that was poffible n regular clearances. And when the cafe it is Submitted to your Lordfhips, whether,
the uncertain chance to obtain an acquittal had been done to obis viewed in this li-hr in this lad dage the
and whether, even upon that fuppofition, there is a n / ju d foundalon for making the refpondents anfwerable therefor? ? J F
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For as to the letter ijch September 17 66, from William Purviance at Carolina to John Alexander at the Grenades, which by the N. B. fubjoined to the petition, is faid to have fallen by hands, but of which a copy ftands ingrofled in p. 7. & 8. of the petition, it would be fufficient for the refpondcnts to fay, That as the letter itfelf is not produced, no regard can be had 'to it; or, idly, That fuppofing the letter to be extant, nothing therein con tained would be probative againft the refpondents; efpecially when the tendency of it is to throw the blame for any fuppofed delay in loading the veiTel from off his own fhoulders, and to charge the fame upon the fhipmafter. That the difafter which had befallen the fhip in her voyage from Grenada to Carolina would require fome time to get her completely repaired, which could not be done du ring her fhort flay at St Chriftopher’s, is undeniable; and fo far there could be no fault in the fhipmafter. But this letter does fo far juftice to the fhipmafter, as it certifies, that Mr Purviance had applied to the cuffomhoufe for a clearance, both for that and another vefTel; but which could not be obtained, as is too plain to be known through all America, that the timidity of our col lector, and the tyranny of our governor, has done much hurt to this place. And as for what is faid in the conclufion of the letter that faid port was fo far opened as to clear out without (lamps’ it .s proved to be falfe, both by the above-mentioned inftrument o f proteft, and by the attorney-general’s opinion; and it is a no torious fact, that that whole country was then in fuch a flame that all authority was trampled under foot, and the crown-officers deterred from doing their duty, waiting for inltrudtions from Bri tain how to conduct themfelves.. And therefore, to conclude thefe anfwers, which have already drawn out to too great a length, it is fubmitted to a our I ordfhips that if either party had caufe to complain of the aforefkid interlo cutor, it was tie refpondents, not the petitioners, who ought to have Drought the fame under review; and therefore that your Lordihin; will have no difficulty ,n rejecting this petition, and adhering to vour former interlocutor. ° c In ref pell whereof & c. L E X. L O C K H A R T .
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James Scrimgeour and Son, merchants in Borrow ftoun nels, T
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The P E T I T I O N of MefP William Alexander and Sons, merchants in Edinburgh. \ H E petition now to be anfwered brings under review your Lordfhips interlocutor of the 2d March lad, afcertaimng the fum acclaimable by the rel'pondents in con_ 1 r fe,(IU1enCe of the CQntra& of affreightment of their Uiip the Duke of Athol. * 1 And as the only article allowed to the refpondents, of which the petitioners pretend to complain, is the Stipulated fum in name of demurrage, for the time that this veflel was detained, partly in the Grenades, partly at Cape Fear in North Carolina, beyond'the feventy he-days allowed by the contra# of affreightment the prayer or the petition is, 1 hat your Lordfhips fhould find the repondents to have no claim for demurrage, or any other fpecics of indemnification, for the time the lhip lay at Caiolina, as her f i a y tnere arole fiom no mult of the petitioners. , EUp J nt,llC body of the petition, not fatisfied with an attempt
W J e” £c ves ” on\ being irl an7 Ibape the f ,he veffels detention in Carolina, they have maintain, that any damage arifing from the nip is chargeable upon the refpondents ; 1/, l n
caufe or occafion not fcrupled to detention o f the regarf of their
nlredhtn°ff ? ° C having the fo tmaeoufh pre pared to fet fail from the frith of Forth, upon the outward \ojage as (he ougnt to have been ; the time limited for her de parture being the 20th April, whereas in fa# fire did not fet fail
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from Borrowflounnefs till the 4th May, and by means thereof was fo late of arriving at the Grenades, her port of deftinarion, that a cargo of fugars, with which lhe was meant to be reloaded home wards, was not then to be purchafed, the petitioners correfpondents in the Grenades having in the mean time fent off the peti tioners fugars, wherewith this velTel was meant to be loaded, in fundry chance-velfels. And in p 5. of the petition, they exhibit a lilt of the hogfheads of fugar that were fent home to them that feafon, and of the veflels on board of which they were fent. 2dly, The repondents are charged with a fuppofed neglect of the perfon who had the command of this veffel, in loitering his time away improperly at the Grenades, before he fet out from thence on the voyage to Carolina, being no lefs than fifty-feven days. 3dly, They go even fo much further, as to make the refpondents anfwerable for the flay or detention of this velTel fo many months at Carolina, as fuppofing it to have been a duty incumbent upon the matter of this veflel, notwithftanding the commotions and difturbances in thofe parts, on account o f the ttamp-duty, to fet fail at all hazards, how foon the homeward cargo was prepared for reloading the veffel there. How far any of the above articles of dittay are founded in law, juftice, or faft, fhall in the fequel be confidered. And as an apology for giving your Lordfliips the trouble of re viewing the aforelaid interlocutor, the petitioners allure your Lord fhips, that it is not merely on account of their pecuniary intereft, but that in their apprehenlion, fliould this judgement be affirmed, it would unfettle every principle of mercantile law and ufage in the affreightment of lhips, and open a fource of contention, of dangerous confequences to the trade of this country : A fevere at tack, it muff needs be confeffed, upon the juftice of your Lord fhips interlocutor. However inconfiderable an objecfl the fum in difpute may be to the petitioners, it is not fo to the refpondents ; and when they fhall have obtained all that is allowed for the detention of this Ihip for fo many months, they will be very confiderable lofers, as it is well known to every perfon the leaft converfanc in foreign trade and merchandife, and to none better than the petitioners, that the ftipulated fum in ufe to be allowed for the detention of a fliip beyond the number of lie-days fpecially condefcended upon,
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is never underflood as an adequate fatisfadlion for the lofs of pro fits which filch veflel might have earned, had (he not heen fo un duly detained, but merely as an indemnification for the interim provifions of the fhipmafter and Tailors wages during the period of her detention over and above the lie-days. It is therefore altoge ther abfurd, to talk of demurrage-money as an equivalent for the freight of a (hip detained for the fpace of no lefs than feven months, and, as in this cafe, fent out by the freighters upon ano ther voyage, other than that which was agreed upon by the con tract of affreightment. Demurrage-money makes no allowance for the hazard at fea from the tempeftuoufnefs of ftormy weather, and other accidents, or for the infurance of the Veflel, or tear and wear thereof. But as from various accidents it may happen, that the ilipulated lie days for loading and reloading at the outward port may prove inefficient for thefe purpoles, whereby a greater num ber of lie days become requifite, during all which time the Thip is fuppofed to be lying fafe in port; the ium fiipulated on account of the demurrage, at fo much per day, and which, by the univerfal practice, cannot be drawn out to any confiderable length of time, has nothing in view but a reafonable recompence for the in terim provifion of the fhip, and maintenance and wages of the Tailors ; whereas, according to the petitioners dodfrine, it would be in the power of the freighter to fend the veffel upon the moft dangerous voyages over the whole globe, without being liable any further than to the fum fiipulated in name of demurrage. And therefore, though the refpondents were, for peace fake, wil ling to have acquiefced in the lum modified by your Lordfhips in name of demurrage on account of the detention of this fhip, partly at the Grenades, partly at Carolina, over and above the feventy lie-days allowed by the contract of affreightment, exclufive of the time confumed in the voyage from the Grenades to Caroli na, without any allowance for the damages fufiained from the difafier which befel the fhip in the courle of that voyage, it would indeed be a hard cafe, were tfle petitioners now to prevail in with holding even that fcanty allowance for the time the fhip and crew were detained, firfi at the Grenades, thereafter at Carolina, beyond the feventy days allowed by the contract of affreightment. And as this is the moll moderate computation of the real dama ges thereby fuftained, the queftion now fubmitted to your Lord fhips reconfideration is, Upon which of the parties that damage ought
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ought to lie ? And upon that (late of the cafe, as the petitioners have called thofe principles of the law in queftion upon which your Lordfhips judgement is founded, the refpondents will be for given, as an introduction to thefe their anfwers, fhortly to ftate what they apprehend, and are advifed, are the clear and manifeft principles ot law in every fuch cafe. Affreightments of {hips are a fpecies of the contract locati condufli; and as every queftion thereupon arifing falls to be judged upon the eftablifhed principles of that contract, the general prin ciple agreed to by all lawyers is, That any lots arifing, ex culpa, ei ther of the locator or the conductor, mult fall upon that party by whofe fault the damage has been occafioned. 1 his principle is eftablifhed by /. 24. Pand. De condit. et demon/. in thefe words : “ Jure Civili receptum eft, quoties per eum cujus “ intereft conditionem impleri, fit quo minus impleatur; utperinde “ habeatur ac fi impleta conditio fuiffet.” Voet, in his Commentary, lib. 19. tit. 2. illuffrates the general doCtrine of the above-quoted law, and ftates fundry cafes fimilar to the cafe in hand ; particularly in § 27. where his words are, “ Ql]a ratione nauta mercedem integram potell exigere, fi navigare ‘‘ non potuerit obid, quod mercium dominus veCtigal non folverat (( 1^a 1tierces ex caufa commiiTi fifco vindicatse fuerant; l. pen. § utt' Pand. huj. tit. Vel navigatio abfoluta quidem fit, fed irrito more abfurd than this. He was bound to lie feventy days waiting for the cargo : being difappointed thereof, he ought' to have taken his protelt after the feventy da>s, and if there was then no ap pearance of his getting a cargo, he was bound to have proceeded cv J in the voyage to London, either without a cargo, or with luch C&&4- partial cargoes as the petitioners fhould think proper to put on board. There is not here the colour ot a pretence that this devia tion was for the benefit of the refpondents, or intended for their YWrjj .yyjvt^ advantage. The petitioners benefit and advantage was the only objeft in view. The hond of indemnification proves this beyond pofiibility of cavil; and therefore allowing the mailer to have been ;n feme meafuie excufable in confenting thereto, in refpect of the aforefaid
fbrefaid indemnification, can any thing be more unjufi, than that any lofs or damage thereby occafioned fihould lie upon them ? The petitioners are indeed pleafed to put a very limited c o n d u c tion upon this letter of indemnification, as if no more had been intended but to remove the Ihipmafter’s fcruples, by the afturances thereby given, that his confenting to the deviation under the aforefaid circumftances, was doing no more than what, in the cha racter of fhipmafter, he was intitled to do. But as the letter will fpeak for itfelf more forcibly than any thing the refpondents can propofe to add by way of illuftration, they fubmit it to your Lordihips, to be as plain as words can make it, that as it was at the requeft of the petitioners agent, and for their foie benefit and ad vantage, that the fhipmafter was prevailed upon to confent to this alteration of the voyage, it was the purpofe and intendment of the letter of indemnification, that every damage which fhould from thence arife, and for which the fhipmafter was anfwerable to the relpondents, fhould he upon the petitioners rilk and hazard that, unlefs the petitioners could maintain, that this damage not arife from the veflel’s being fent out upon this voyage to ^ rolina, inftead of returning diredly to London, it is Tmpoflible they can throw this lofs upon the refpondents. But as the petitioners have not fcrupled to charge the refpon dents as in fome meafure anfweraole for the damages from thence arifing, in refpeCt of their failzies or negleCt in the feveral particu lars above mentioned, \ft, in not failing timeoufly from the port of Borrowftounnefs; idly, in the vefTcl’s loitering away the time unneceflarily at Grenada ; 3 dly, in not fetting fail from Carolina fo foon as fine ought to have done; the refpondents wilfbe pardon ed to bring again under your Lordlhips review, the feveral fads and proofs refpeCting each of the above particulars. And to begin with the alledged delay, in not having the vefiel ready to fail from Borrowftounnefs by the 20th April, the refpondents make a double anfvver, the one in fad, the ether in law. In point of fact they aver, and fay, That the fhip was fully prepared to have failed by the 20th April ; and that the modica viora in her not adfually fetting Tail fooner than the 4th May, was occafioned by the petitioners themfelves, in fending up the outward cargo to Borrowftounnels to be loaded there, and in the difputes which thereupon arofe with the officers of the port at Borrowftounnefs, refpeCting the duties of thofe goods. D
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And in point of law, they fubmit it to your Lordfhips, That if there hid been any fuch delay on the part of the refpondents, as no exception was taken thereto at the time, not fo much as a protelt, nor any complaint of that nature in the letters of correfpondence which paffed upon that fubjedt; and as, on the contrary, the petitioners acquiefced in the veflel’s letting fail upon that voyage on the|^.th May, which indicates their opinion, that, barring extraor dinary accidents, Ihe would be there timeoufly to anfwer the purpoles for which ihe was freighted: any objection which might otherwife have been competent on account of the fuppofed delay from the 20th April to the 4th May, was thereby waved and pall ed from. And it is the more furprifing, that this objection fhould have been rcforted to in the after proceedings in this court, when, by the decree of the judge-admiral, abundantly favourable for the petitioners in other refpedfs, this objection was exprefsly over-ruled, and acquiefced in by the petitioners. But allowing the objection to be ftill competent, it proceeds en tirely upon a miftake in fadt, as the fhip was fully prepared, fo far as depended upon the refpondents, to let fail upon the 20th April, but was detained at Borrowftounnefs, waiting goods that were to be fent there by the petitioners, confifting partly of herrings, partly of green linens ; for both which a bounty being due upon exportation, it was neceffary that the officers of the culfoms fhould examine all the barrels of herring, and bales of linen, which, with the difputes that thereupon arofe, occafioned a delay o ffo m ed a y s: and your Lordfhips will particularly obierve, that the petitioners were continuing to fend up goods to Borrowltounnefs to be put aboard this veflel, till the very end of April. Apr. 54.1765 Thus it was that the petitioners, by their letter of this date, wrote the refpondents in-thefe words: “ Inclofed is the receipt of “ John Abercromby, for 52 calks bottled and 6 hogfheads folid “ beer, alfo 7 bales linen, to go by your ihip the Duke of Athol. “ Thefe are all the goods we fend, except 150 barrels herrings, “ and 40 calks in ftaves, with a medicine cheft.” This letter is four days poiterior to the 20th April, when it was originally propofed the lhip fhould fail; no complaint is therein made of any de lay on the refpondents part; on the contrary, your Lordfhips will perceive, that the petitioners were then but fending up part of the outward cargo. They 4
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They again wrote the refpondents of this date: “ We duly re- Apr. 27.176; (6 ceived your favours of the 25th ; and for anfvver fend you inC( clofed manifeft of the goods, and bales, and trunks ; whereof a (( copy was fent you by fea ; but we fend another, left the other a fliould not duly reach.’' And in the after part of faid letter, they mention a box which had been fent by miftake, and which behoved to be returned at Leith. By another letter, thev, of this date, write, “ Inclofed is an or-Apr. 29.1755* u der from Mr James Watfon for 47 barrels herring, to complete ti 1j*o barrels that go for our account.” And though in this letter they urge the refpondents to hurry down the fhip as faft as poflible, they are fo far from complaining of any delay quoad pr&terita, that they inclofe an order for 47 barrels of herrings, which another peri’on was to furnifh, to make up their cargo of herrings. The refpondents, by their letter of the 29th April, had advifed the petitioners of fome difficulties which the officers of that port were making with regard to fome parcel of the linen. In anfwer to which, the petitioners, by their letter of this date, fignified their Apr.30.1765-. defire, “ That if any the lead demurrer was made about that par14 cel of linen, it fliould be left out, and withdrawn from the en“ try.’” But as the officers at Borrowftounnefs continued to make diffi- May 2. 1765culties, both with refpedl to the linen and herring, and as, till thejfe were fettled, it was impoflible the fhip could be cleared out to fail; of which the refpondents gave notice by letter 30th April, and 1 ft May, the petitioners, of this date, made a return to the refpon dents, expreffing their furprife at the delays occafioned by the mifcondubl of the officers, with directions how thefe miftakes fhoul i be put to rights; and therefore preffing the fhip immediately to let fail; and which file accordingly did. And fo flan-ding the fa 61, as vouched by the petitioners own let ters, it is truly furpfifing, that they fliould flill infill in charging the refpondents as in mora in this veflel’s not failing from the port of Borrowftounnefs fo loon as file ought to have done; whereby flie was fo much later in arriving at Grenades than otherwise might have been the cafe. Under ih?fecond article, the refpondents are charged with the matter’s fuppofed negkcl, or delay, at the Grenades, in not failing from thence for Carolina fo foon as fhe might have done; and which of conference behoved to retard her departure from Caro lina.: r
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Tina: and this is fuppofed to have been occaficned by the refnon dents fending out a parcel of their own goods, which did not find ready fale at the Grenades. Had there been any truth in this, it mud appear lingular and extraordinary, that no notice fliould have been taken of it, either m the defences before the admiral-court, nor in the after proceed ings in this court; which therefore is real evidence, that the peti tioners themfelves had no confidence in it. And as it does not ap pear from any part of the correfpondence with their agent abroad who prevailed with the fhipmafter to undertake the Carolina voy age, that any fuch complaint was made of the fhipmafter’s loiter ing away his time unneceffarily at the Grenades, it is unexcufable in the petitioners now, in the lad dage of this caufe, to throw out fuch a vague allegation, which they mud know to be void of all foundation. The goods which the refpondents had aboard (hid veOil were ee ry mconfiderable, and foon difpofed o t ; and as the petitioners do not compla.n of the refpondents fending out thefe grods and which the refpondents do fay it was their right and priv.lege to fend out in their own (hip, when fo fcantily loaded by the retit,oners; ,o it ™ be apparent that there are no, Krmim babik, for the fuppofed delay ot the (hipmaller's not proceeding fo timeoudy as he might have done upon the voyage from Grenades to LiaroJina.
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For your Lordfhips will obferve, that the whole time this veffel lay at the Grenades was but fifty-feven davs k i contraeff of affreightment feventy lie-days were allowed f o H o a d i^ the homeward cargo : io that till that time was elapfed, it was mpoflible there could be any mora in the cafe. The petitioners ha^e not pretended to fay, that the lhipmafter was in duty bound or neceffanly obliged to confcnt to this alteration of the voyage ’ the furtheft length they have pretended to carry their argument is that he was in fafety fo to do, provided he judged .t for he in tereft of his conftituents : How then is it poffible that he could be m mora tor doing what he was not obliged to do but on rh contrary was bound to abide at Grenada the whole’ fevemv 1 e but nett er is tins all: for your Lordlhips w i f i '^
fluence, by means of the aforefaid letter o f indemnification t o Z . n />vi/v*w ctn^tf ^^?v\x_ Y\A>v/ common paper, it is the fame a* 1 theft veffiels had failed without dearances ; and of courfe thev are liable to be fazed, and I think condemned, by the cou o / miralty, with their cargoes. J r au To Uic 2J l.ealou does not require the performance of impoffibibties ■ and courts of admiralty often decree favourably on the part of the owner*
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owners of the veffels and cargoes, when it does not appear that *. ny franc! was intended to the crown, efpeciaHy when all has been none Tat it was in the power of the captains and owners of veff ° d°- Bni the caPtains of thefe veffels feern to me to have heen ^guilty of great: negleft. They fhould have tendered the King s duties to the officers of the cudoms, and demanded proper cea ranees, &c. and on being refilled, they ifiould have made die like tender by a notary-public, and offered a proteft. Had thefe matters been complied with, fo as to hfe duly proved on a trial I 'U ( th,nk the judge would decree, that the veffels and cargoes were not forfeited. „ -A nd the °Pinion concludes with thefe words : “ Upon the whole « on the information T n,° n’ thuC u 13 the diny ° f the colledor to profecute he has received.” 1 Agreeable to this opinion, John Cowan, of this date, paffedjan with a notary-public and witneffes, to the perfonal prefence oPf the * c o lle d o rc f laid port and demanded from him proper and legd clearances for fa,d veffel, for which he tendered payment; but S ceived for anfwer That he had no damped paper; nor were there any to be got in that province at prefent; and therefore that it was not m his power to give him regular clearances ; but that if he would accept of fuch clearances as was in his power to mve him, he might have them on payment of the ufual fees : a u d it is notourly known, that for a confiderable time after this that whole country was in fuch an uproar, that no bufmefs could be And as the fhipmafter had thus complied with the advice of the attorney-genera!, your Lordflaips mud be fktisfied, that it would .a\e been the height of madnefs in the fhipmader, in the date in which matters then dood, to have attempted to fail without legal .clearances, when he was certain, that both the fhip and cargo haUt en6 • e'hT ’ ani* to tria!. under that equitable confederations might prevail upon proof given, that all that was poffible n regular clearances. And when the cafe it is Submitted to your Lordfhips, whether,
the uncertain chance to obtain an acquittal had been done to obis viewed in this li-hr in this lad dage the
and whether, even upon that fuppofition, there is a n / ju d foundalon for making the refpondents anfwerable therefor? ? J F
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For as to the letter ijch September 17 66, from William Purviance at Carolina to John Alexander at the Grenades, which by the N. B. fubjoined to the petition, is faid to have fallen by hands, but of which a copy ftands ingrofled in p. 7. & 8. of the petition, it would be fufficient for the refpondcnts to fay, That as the letter itfelf is not produced, no regard can be had 'to it; or, idly, That fuppofing the letter to be extant, nothing therein con tained would be probative againft the refpondents; efpecially when the tendency of it is to throw the blame for any fuppofed delay in loading the veiTel from off his own fhoulders, and to charge the fame upon the fhipmafter. That the difafter which had befallen the fhip in her voyage from Grenada to Carolina would require fome time to get her completely repaired, which could not be done du ring her fhort flay at St Chriftopher’s, is undeniable; and fo far there could be no fault in the fhipmafter. But this letter does fo far juftice to the fhipmafter, as it certifies, that Mr Purviance had applied to the cuffomhoufe for a clearance, both for that and another vefTel; but which could not be obtained, as is too plain to be known through all America, that the timidity of our col lector, and the tyranny of our governor, has done much hurt to this place. And as for what is faid in the conclufion of the letter that faid port was fo far opened as to clear out without (lamps’ it .s proved to be falfe, both by the above-mentioned inftrument o f proteft, and by the attorney-general’s opinion; and it is a no torious fact, that that whole country was then in fuch a flame that all authority was trampled under foot, and the crown-officers deterred from doing their duty, waiting for inltrudtions from Bri tain how to conduct themfelves.. And therefore, to conclude thefe anfwers, which have already drawn out to too great a length, it is fubmitted to a our I ordfhips that if either party had caufe to complain of the aforefkid interlo cutor, it was tie refpondents, not the petitioners, who ought to have Drought the fame under review; and therefore that your Lordihin; will have no difficulty ,n rejecting this petition, and adhering to vour former interlocutor. ° c In ref pell whereof & c. L E X. L O C K H A R T .
