Hypothec upon a Ship for Furnishings and Repairs. - Hypothec for Seamen's Wages. - Upon the Cargo for Freight.
Muire v. The Lord Lyon
1683.
December. Case No. No 64.
There is a hypothec upon the cargo of a ship for freight and other duties, similar to invecta et illata in urban tenements.
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M'Leod of Ashint having freighted William Muire's ship from Lochinvar to Hamburgh, with a loading of beef, tallow, &c. and to return with a loading of other goods, which Ashint should put on board in Hamburgh; and Ashint was obliged to pay L. 3 Sterling for each last of outward loading, and did give bond for L. 1004, payable at the city of Hamburgh, and another bond for relieving him of the excise of 200 bolls of French salt, and the ship, by distress of weather, being driven into the harbour of Burntisland, and the deceast Lord Lyon having seized upon the goods for payment of a debt due to him by the Laird of Ashint, and the skipper having pursued a declarator against the Lord Lyon, as representing his father, that the loading intromitted with by his father might be declared liable to the pursuer for his freight, and for the bond of L. 1004 that was granted for the price of the lasts, and the other bond for the excise of the salt, which was employed for curing and salting the beef, as being tacitly hypothecated for the same; alleged for the defender, That he could not be liable for the freight, nor for the other bonds, upon the account of any tacit hypothecation, because his father had lawfully poinded the goods for a debt due by Ashint, to whom they belonged; and it does not appear that the bond for L. 1004 was granted for the price of the lasts, or that the salt was employed for curing of the beef. Replied, That the pursuer had a tacit hypothecation of all the goods put on board the ship, for his freight, custom, excise, and all other duties, charges, and expenses, that he gives out upon the account of the loading, in the same manner that the plenishing of a house, and the corns and other goods of a tenement are hypothecated to the master for a year's rent. The Lords found, That the pursuer had an hypothec for the freight, custom, and excise, and likewise for the lucrum and damage sustained by him, and found the defender liable for the same; but appointed the Lord Lyon to be heard upon that point, how far abatement ought to be granted of the freight, because the full voyage was not plyed.
Fol. Dic. v. 1. p. 419. Sir P. Home, MS. v. 1. No 507.
