Colin Lamont, Skipper in Kirkcaldy, v. Henry Boswell, Merchant there
Date: 24 July 1680 Case No. No 43.
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A charge on a charter party for the fraught. Alleged their goods were damnified by two leaks, sprung in his ship. Answered, That was casus fortuitus not to be imputed to the skipper, his ship before sailing having been visited and found sufficient. The Lords, after allowing, before answer, a mutual probation of the damage, found the skipper liable, unless he could prove the leaks were struck up by a storm, or other stress at sea; for else merchants following the skipper's faith, that the ship is good and tight, might be ruined.
Fol. Dic. v. 2. p. 59. Fountainhall, MS.*** Stair reports this case:
By charter-party betwixt Boswell, Provost of Kirkcaldy, and Colin Lamont, skipper, the skipper was obliged to have his ship tight and in order, and to perfect a voyage from Kirkcaldy to Dantzick, and homeward, for which Boswell was to pay him 800 merks of freight; whereupon Boswell being charged, he suspended upon this reason, that he having embarked sixteen packs of lint in Dantzick, ten packs of it was spoiled by sea water in the Road of Dantzick, and thereupon was sent a-shore, and brought home by another ship. It was replied, That this was casu fortuito, by a leak which struck up in the ship, for she was tight both when she loosed at Kirkcaldy, and was repaired at Dantzick, before the lint was embarked. It was duplied, That the skipper having hired the ship to a merchant for import and export of ware, he was answerable for all damage the ware should sustain; and by the law, nautæ, caupones, stabularii ut recepta restituant, &c. which is in vigour by our custom, The masters and owners of ships are liable to the merchant for all damage by a leak in the ship, or otherwise, except it were occasioned by extraordinary stress of weather at sea, which could not be prevented; but if an ordinary leak should liberate the skipper, it would ruin trade, for the skipper should know the condition of his ship, which the merchant cannot, and therefore the craziness of the ship, or any thing arising therefrom, must be upon the skipper's peril.
The Lords having, before answer, ordained witnesses to be adduced by both parties upon the damage, and the cause of it; which being this day advised, it was proved that the ship was repaired at Dantzick, before embarking of the lint, and yet in that Road a leak struck up, and spoiled ten packs of the lint; and seeing no extraordinary accident was proved, either by stress of weather or otherwise, the Lords found the skipper liable for the damage.
