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An nation for contribution, ex lege Rhodia. Vinnius, ad. l. 2. D. ad legem Rohodiam, p. 208. & Loccenius de jure maritimo, libro, 2. cap. 8. p. 213. tell us, contribution is due where a ship runs ashore, pressed with a storm, but not where it is robbed. The Lords found no contribution due, because the ship might have gotten off, as appeared by the probation, and decerned for the salvage money nam gravatus in uno est levandus in alio ob infortunium, The act of sederunt, 9th November 1679, allows the reviewing and reconsidering of bills given in debito tempore before the decrects be extracted. See Sect. 6.
Fol. Dic. v. 2. p. 319. Fountainhall, MS.*** Stair reports this case:
Miller, skipper, and Leslie, owner, pursue Logan, Weir, and Others, merchants in Aberdeen, upon this ground, That their ship being freighted by them from France, in a voyage homeward, near the Mey, he was pursued by a Dutch privateer, in the time of the Dutch war, and two of the merchants being aboard, he did, by their advice, and the advice of the company, finding they could not escape, run in to the nearest shore, and made a hole in the bottom of the ship, that the privateer might not be able to early her off; and this being at eleven o'clock in the morning, yet the privateer boarded the ship, and made an agreement to save the goods for L. 120 Stering, for which he carried away one of the two merchants aboard, and that no use was made of the hole in the bottom of the ship nor any water oniered therin, so that the ship might have come off, but that same night, about twelve o'clock, a storm arose, which continued four or five days, and, at five days end, the ship was wrecked; and the skipper and seamen did disload the goods, and kept them safe several days, till they were carried away to Leith; and therefore concludes that the priod of the ship should be made up by contribution between the skipper and owners, according to the worth of the ship, and the merchants according to the proportion of their goods aboard, with L. 300 for his and his Company's expenses in disloading of the goods, and keeping them on the shore. This was the sum of the probation; at advising whereof, it was alleged, That the merchants could not be liable for any part or the loss of the ship, because if was the skip per's duty to carry their goods to Leith, and what he did for shunning the privateer was his duty as to the merchants; but, as to his ship, it was his won interest to preserve his ship from capture, which is clear by the hole that he struck up, which if made use of, might have saved the ship, but ner did nor could save the goods, which were French ware, and might have been carried away by the privateer, and therefore the merchants were forced to transact with him, and have paid the sum transacted for, wherein the skip per bore no part; 2do, It is clear by the probation, that the ship perished, not by running aground, or by any leak, by the hole made of consent, but that she might have gone off safe, and that she was not broken till five days after, which was casus fortuitus, having no necessary connection with the running ashore; and though there had been an express contract with the merchants to run her ashore, in case there could be no escape from privateers, and that the merchants, in that case, should contribute for the damage of the ship, yet this would never have been extended ad casus fortuitus, which are never under taken but when expressed, but only ad casum provisum, viz. If the ship had been broken, or run ashore in a place which was not a known harbour. The pursuer answered, That Leg. Rod. de Jactu, All damage for common safety should have a common contribution, which is the reason or motive of that law, which is now become the law of nations, and is not only extended for casting out of ware, for lightning of a ship, but to the cutting of masts, and the like, yea, to any ransom paid for both ship and goods; and likewise what the skipper did was negotium utilitur gestum for the merchants. It was replied, That by the rule of common justice, when any party does any deed necessary for preservation of his own interest, though thereby greater advantage arise to others, it founds no action for bearing a part of the expenses; as if any man improve a writ, wherein not only his lands, but many others are disponed, he hath no action against them for any charges or expenses, because he acted on his own account, and their advantage is but consequential. Neither was that ever interpreted to be negotium gestum, and therefore L. R. de Jactu, was not a declaratory, but statutory law; and though it do now become a law of nations, it cannot be extended ad pares casus; for the motives or narratives of statutes do only infer a conveniency, and not a duty or right, except where the law is declaratory; so that, without that law, any person throwing goods overboard, would have no action for contribution of the rest, because what he did was upon his own account, and for his own safety, which if it might have saved him and the ship, as he thought, he would not have forborn, though all concerned would have contradicted it. But to encourage persons so to do for common safety, the Rodian law was introduced, which will not be extended to other cases, and so cannot infer whatever is expended, having a common advantage, should be repaired by all that get advantage; yea, the most common rule in equity, quod nemo debet locupletari ex alterius damno, doth only take place where that damnum is expended or done not upon account of the expender; but there is nothing of the Leg. R. de Jactu extending to his case, which, if sustained, would infer that whenever a ship is broken, and the goods safe, the merchants should pay for the damage, it being easy to make pretences to run ashore, as well to shun a storm as capture by privateers; in which case, the whole probation must necessarily be by the seamen, as it, is in this case, where they prove a storm to be five days without intromission, to connect the storm with the running a ground. It is true, that if a seaman cut his mast with consent of the merchants, he may ask reparation, but when it is overturned by storm, piracy, or accident it infers no contribution.
The Lords found no contribution in this case, and assoilzied from the libel, except only as to the skipper's and company's disloading, and keeping the good, on the shore, for which they modified L. 300 to be paid proportionally by the merchants, according to their proportions of the goods in the ship, and if they prove not their proportions, that they shall all pay equally.
