Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.

Lutwidge and His Factor,
v.
Archibald Gray, and OtherMerchants in Glasgow

Date: 18 January 1735
Case No. No. 3.

Contract of affreightment.

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The Judge-Admiral found freight due for such part of the cargo as was saved, though damnified, in respect of the freighters intromitting there with and acknowledging the property; and found them liable for the full freight of the goods saved, though not brought by the pursuer to the port of delivery, in respect he had another ship ready for transporting them thither from the place where the shipwreck happened; and found no necessity for new bills of lading while the former bills subsisted. But in a suspension we found that the contract of affreightment was dissolved by the total loss of the ship, albeit some of the cargo was saved; and found that the freighters indorsing the bills of lading (even as to part of the cargo saved) to the insurers, did not subject them to the freight of any goods recovered by the insurers: But found freight due pro rata itineris of such goods as were brought by the freighters to Glasgow, notwithstanding that some of the tobacco was found damnified and burnt there, 12th February and 5th July 1732.—But Lutwidge appealed, and both these interlocutors were reversed in Parliament; and it was declared that the freighters were liable for the full freight of such of the goods as were given up to the insurers and pro rata itineris of such as were brought to Glasgow, notwithstanding some of the tobacco was found damnified and burnt there, 23d February 1734.— Then the freighters claimed a proportion of L.150 sterling paid by them of salvage, which the Lords first found not competent or consistent with the decree of Parliament, 23d July 1734; but afterwards they found the point of salvage entire, and found in jure that the freight is not liable in contribution for the salvage of the cargo, 18th January 1735.