Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Thomas Lawrie
v.
Angus

Date: 14 November 1676

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Thomas Lawrie, having shipped some silk-ware at Rouan, he obtained his bill of loading to be delivered at Leith when the ship landed there. He, finding the goods to be embezzled, pursued the skipper for damage, and obtained decreet for 400 merks, for spoiling of the goods, and for 100 pounds for detention thereof. Angus, the skipper, gives in a bill of suspension: and the cause being appointed to be heard upon the bill, he insisted on this reason, That he was unjustly decerned, having proponed this relevant defence, that the spoiling of the ware was neither by his fault nor negligence; because he offered him to prove, that his ship and pump were sound, and in good condition, at his loosing; and that he had stowed the pursuer's ware in a safe and convenient place of the ship; but that he himself had changed them from that place of the ship, and had put them low in the hull of the ship, near the pump, that they might be less accessible to capers, lest they had come to search the ship: so that he had done all that was his part as a diligent and provident master, who would only have put such ware as would not have spoiled with water near the pump. And as for the detention, he had good reason to detain the ware till the freight was paid.

It was answered, That the master of the ship, by his office and contract of conduction, is obliged to preserve the merchant's ware safe; and nothing can exoner him but such force or casus fortuitus as he could not foresee or prevent: so that no leakage in his pump can liberate him, unless it had been incident by stress of weather, which could not have been repaired at sea; which is not alleged. Neither is it relevant, though it were true, that the merchant stowed his goods near the pump, seeing the pump should have been sufficient against leakage; neither did the skipper show the master any hazard in that place more than the other.

The Lords found the reason of detention of the ware, till the freight was paid, relevant; and found the other reason also relevant, that, when the ship loosed, the pump was sufficient against any leakage, which leakage fell in by the way, and could not be prevented or helped; without necessity to allege stress of weather: and that he had stowed the ware in a convenient safe place; and the merchant had changed the same, and put them by the pump. But it was not alleged that the skipper was present; or whether he showed any hazard in that place.——[See page 212.]

Vol. II, Page 463.