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.
John Forfar and Robert Moyes v. Alexander Stark
Date: 13 February 1712
Click here to view a pdf copy of this documet : PDF Copy
John Forfar and Robert Moyes, sailors in Aberdour, having a small bark belonging to them, which they had loaded with coals to Dumbar; Alexander Stark, skipper in Borrowstounness, being in company with sundry ships that were sailing for Holland, in November 1710, did chance to run down the said bark, and with great difficulty the two men were saved from drowning. Whereon they pursue the said Stark before the High Court of Admiralty, for their damage; and obtain a decreet for £337 Scots, as the price of the cargo and bark: Which he suspends on thir reasons, 1mo, That the only relevancy in the pursuer's libel was, that their bark was run down through his fault; and yet no fault proven, but a mere accidental rencounter through the violence of the wind, which they could not prevent; et nemo tenetur de casu fortuito. And thir parties were the only occasion of the loss, and had none to blame but themselves, having too few hands to navigate and manage the boat, being only two in number, and one of them an old infirm body, who could not go out of the way though cried to. 2do, Stark appeared in court at the first calling, and offered either to depone himself on his innocence, or to adduce his crew; which was refused, though he was freighted and under charter to sail, and could not lose the opportunity of a convoy and voyage, to attend the event of that process; which might have been more prejudicial to him than all their claim amounted to. So he sailed for Holland, and they proceeded to take the affidavits of one Duck his ship's crew; who, to free themselves, (being as near the bark as he,) laid the blame on Stark. 3tio, The common rule, where one ship damnifies another at sea, [is,] the owners of both the vessels bear equal share of the loss: and it is made up by contribution, as our learned countryman, Wallwood, in his Abridgment of the Sea Laws, tells us; and Molloy, de Jure Maritimo et Navali, tit. Of Average and Contributions, says,—If two ships cross each other, and the crew swear their innocence, a mutual contribution must be made by a just equality: but if one of the ships be lost, then no contribution; for this would tempt one who had an old leaky ship to set it against a strong one, of purpose to be run down, so to hedge himself into a contribution, and get an upset and recompense for his crazy ship.
Answered,—They opponed the probation taken before the Admiral, who depone, that the storm was not so great but Stark might easily have steered by the poor men, but most inhumanly and carelessly run them down. And, as to the necessity of his going abroad, they were not bound to sist their process, and wait his uncertain return: and his crew, who had occasioned the damage, and lost them both their boat and cargo, would have been most suspect and incompetent witnesses. And it is proven to have been ex culpa lalissima, and far from an accidental rencounter.
The Lords, on Royston's report, sustained the Admiral's decreet, repelled the reasons of suspension, and found the letters orderly proceeded.
