Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Vincent Tanqui and Hary Henderson's Executors v. Abraham Baggot and Gilbert Stewart
Date: 4 February 1709
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Vincent Tanqui and the Executors of Mr Hary Henderson against Abraham Baggat, merchant in Amsterdam, and Gilbert Stewart his factor. Baggot freights a ship of Marseilles, called the Happy Amadié, with goods to Amsterdam; but the ship, being driven into Inverness by storm, is there disabled from accomplishing her voyage; and, by the admiral's order, the goods are rouped, and the ship disposed of. Baggot and his factor raised reduction of the admiral's decreet, and insist on thir reasons, That he committed iniquity in repelling this defence, That Tanqui, the owner of the ship, did not obtemper the charter-party in sailing en droiture, in a straight course to Amsterdam, but touched first at Cadiz, and then at Brest; by which diverting of the voyage the ship came, by unseasonable weather, to be driven and broke on the north of Scotland.
Answered,—When you, Baggot, freighted my ship, you saw 102 tuns of Provence wine stowed in it for the use of the French king's cellars, to be unloaded at Brest; so my going there was neither a surprise to you nor a diverting of the voyage.
The Lords repelled this reason of reduction; and found their unloading at Cadiz and Brest no diverting of the voyage, nor contravening the charter-party.
The second reason of reduction was, That the Admiral had found the merchants, owners of the cargo, liable for the damage that happened to the ship at Inverness; which was unjust, seeing it was occasioned by the fault of Tanqui and Andry, for whom they were noway liable.
Answered,—You gave a commission to Jean Swart to oversee the ship, and to bring your goods safe to land at Amsterdam, either in that ship when it should be refitted, or in another; and by his negligence the ship came to be lost, and so you must be liable for his deeds.
Replied,—All the power he had from the merchants was to preserve the cargo, they having no right to give him directions about the ship, which belonged to Tanqui and Algiari, the proprietors; and therefore they can never be reached for the damage that happened to the ship.
The Lords, by a scrimp plurality, found the merchants not liable for the prejudice the ship sustained; but reduced the admiral's decreet as to that point, and turned it into a libel.
Swart did likewise allege, That the damage was not by his fault; because it appeared, by the depositions of the witnesses taken at Inverness, the seamen refused to obey him: and this was said, by the maritime laws, to be a sufficient ground to assoilyie the skipper from the seamen's process, craving their wages from him.
