Colin Campbell, Commander of a Revenue Sloop, v. John Montgomery, &c
Date: 8 February 1765 Case No. No 89.
An unlawful seizure made at sea by an officer of the revenue, is nor the subject of a privative jurisdiction to the Admiral, but may be tried before the Court of Session.
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In the month of August 1761, Martin Campbell, mate to Colin Campbell, seized two vessels belonging to Newry in Ireland, loaded with Irish meal; the one lying at anchor in the harbour of Tobormory; and the other in the sound of Mull, near to the coast of Morvern. Having brought these vessels to Fort William, he presented a petition to the Sheriff of the county, praying that the meal and vessels might be condemned, in terms do the statutes 3d Cha. II. anno; 1672, Cap. 3, and of Queen Ann, chap. 9. 1703.
A proof being granted, to both parties by the Sheriff, relating to the nature of the seizure, he was pleased to assoilzie the defenders, and to ordain the ship and cargo to be restored.
Before the proof was concluded, or a sentence of absolvitor obtained from the Sheriff, the season became too far advanced for the proprietors of the cargo to prosecute their intended voyage for North Faro in Norway, whither they were bound. The damage sustained by this delay made them bring a process before the Court of Session, containing certain indemnatory conclusions for the reparation of the loss they had suffered by this illegal seizure.
The cause being called, parties were ordered to produce the whole procedure before the Sheriff. Which interlocutor having been obtempered, and Captain Campbell failing to compear, decreet in absence was pronounced against him.
Being charged upon this decreet, Campbell pleaded a declinator to the jurisdiction of the Court, founded upon the act of Parliament 1681, chap. 16. by which it is provided, that the High Admiral should have the sole jurisdiction in all maritime and sea-faring causes, of whatever kind: That in this case, as in most others, the place of committing the crime fixes the jurisdiction; and here, the unlawful act being done at sea limits the cognizance of it to the High Admiral alone.
On the part of the chargers it was pleaded, That neither the locus delicti nor the locus contractus determined the jurisdiction; but that: the nature of the cause alone could, properly speaking, render it strictly maritime; that the exclusive jurisdiction of the Admiral, agreeable to the opinion of all our lawyers, was confined to questions concerning charter-parties, freights, salvages, bottomry, and policies of insurance; that what rendered a cause properly seafaring, was its relation to foreign trade; such as the importation or exportation of foreign commodities; and that murder, rape, incest, or any other crime, did not come within the jurisdiction of the Admiral, though committed at sea.
“The Lords repelled the objections to the jurisdiction of the Court.”
Act. Burnet.Alt. Advocatus.
Fol. Dic. v. 3. p. 344. Fac. Col. No 4. p. 7.
