Scottish Court of Session Decisions

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

Lamont
v.
Boswel

Date: 27 February 1678

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By charter-party Colvil Lamont was obliged, upon freight, to carry his ship from Kirkaldy to Queensbridge, and back again; for which Henry Boswel was obliged to pay him therefor 800 merks: who being charged therefor, he suspended on this reason,—That the skipper, in his voyage to Queensbridge, being near Milstrand, and staying some days there, the suspender went ashore, sold a part of his goods at good rates, and did require the skipper to disload; which he refused; and therefore he must deduce the damage.

The skipper answered, That, by his charter-party, he was only obliged to go to Queensbridge; and, that breaking bulk at Milstrand without an entry, he might forefault the ship.

The suspender replied, That this bargain, by location and conduction, being contractus bonæ fidei, the skipper could not refuse to set into any safe harbour in the way to Queensbridge, or to disload any parcel at sea,—which the suspender offered to receive by boat several leagues from land; and there is no hazard to sell a parcel of goods in one dominion, and the rest in another; albeit, where the cargo is direct to any dominion, bulk may not be broken there.

The Lords found, The skipper ought to have disloaded the foresaid parcel at sea; and therefore ought to deduce the damage.

Vol. II, Page 620.