Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 LEX MERCATORIA.

The Assignees of James Hogg
v.
The Trustees of James Inglis

Date: 26 November 1776

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In a process, the Assignees of James Hogg against the Trustees of the Children of James Inglis, merchant in Edinburgh ; the Judge-Admiral, 24th June 1774, “found it proven that the ship Batchelor libelled, was, at the commencement of the voyage libelled, so disabled, by stress of weather, as not to be fit to proceed in the destined voyage to North Carolina; and that, in all such cases, where a ship is so disabled as not to be fit to perform the voyage, no freight is due to the master or owner.”

In a suspension of this decree, the Lords, 26th November 1776, found, That, in respect the vessel was not totally disabled, and that James Inglis declined to perform his contract after his return from Zetland to Leith, the representatives of James Inglis are bound to repeat the freight.

Upon considering these interlocutors, it is evident that, although both of them terminated in one conclusion finding Mr Inglis's representatives liable in repetition of the freight; yet the reasons assigned for this conclusion are different. Recourse was had therefore to the opinion of merchants, and the query was put: “ If a vessel is stranded, or any misfortune happens during the voyage, whether the shippers of the goods and passengers are entitled to the repetition of freight from the owners or master of the vessel ?” The answer was, “ If the vessel is stranded and not repairable, or condemned as unfit to proceed on the voyage, the proprietors of the goods and passengers must convey them to the place of their destination at their own expense, and they are not entitled to receive back from the owner or master the freight which they paid. Had they insured, they might have recovered the loss from their insurers ; but in case of the ship being disabled, and requiring only some repairs to enable her to perform the remainder of the voyage, the owner or master is obliged either to repair, and proceed with her cargo, or to find another ship to convey it to its place of destination.” And if he do not, he is entitled pro rata of the voyage performed.—Molloy, lib. 2, c. 4, § 4 ; Voet. ad. tit. Loc. Cond., § 27.