[1776] Hailes 700
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 JURISDICTION.
Subject_3 The freighter of a ship having put prohibited goods on board of her, in consequence of which she was seized and condemned; Found, That an action of damages on this account, at the instance of the owners, was a maritime cause.
Date: Patrick Shank
v.
William and Thomas Forsyth
8 March 1776 Click here to view a pdf copy of this documet : PDF Copy
The defenders freighted a vessel belonging to the pursuer, for a voyage to Gottenburgh. The avowed object of the voyage was to bring home a cargo of iron and wood; but it appeared that a quantity of tea and spirits were taken on board and smuggled into Scotland. In consequence of this, the vessel, soon after her return, was seized and condemned in Exchequer. The pursuer, alleging that the defenders, by engaging in the smuggling adventure, had occasioned this loss to him, brought an action of damages against them in the Admiralty Court, concluding for £256: 10s., the value of the ship, which he alleged had been forfeited in consequence of their tortious act, and for a further sum of damages sustained by the loss of her employment. In this process, the Admiral “found that the defenders are not chargeable with any part of the said loss and damages.” Of this judgment the pursuer complained, by bill of advocation.
Pleaded by the defender,—The advocation is incompetent, the cause being maritime. The action is founded on a supposed adventure, in carrying prohibited goods over sea, in a ship freighted from the pursuer. The cause, therefore, is chiefly maritime. Stevens against The Officers of the Customs, 10th February 1761.
Answered,—It is only to causes strictly maritime that the Act 1681 applies; but the present is not a case of that kind. It is an action of damages, founded upon a wrong done by the defenders. The obligation to pay damages is an ordinary civil debt; and it makes no difference upon its nature, that the wrong out of which it arises has been done upon the high seas. Rowen against Darling, 21 st February 1694,—Crosbie against Corbet, 25th February 1741. According to the defenders' doctrine, an action of damages for beating a man at sea, or defaming him by words uttered on shipboard, would be maritime.
The following opinions were delivered:—
Covington. It is difficult to ascertain the precise limits of the Admiral's jurisdiction. A contract of marriage executed at sea would not give the Admiral a privative jurisdiction as to it. It may be said that here there is not action for performing a maritime contract, but rather an action on account of a tortious act. The purchasing of the unlawful goods was on land; and the completing of the tortious act, by bringing them to shore, was also on land. At the same time, this is a mixed case; for this was a breach of the contract, which was to land lawful goods. But I think that, upon the whole, the matter is maritime, and must be tried in the first instance by the Admiral.
Kaimes. This case is both mercantile and maritime. We cannot separate what is mercantile from what is maritime.
Gardenston. I think that this is a maritime cause, or contract of freightment to take in goods of a certain species. In place of that, the freighter takes in goods of another species, which is prohibited; and by that means the ship is forfeited. This is a breach of the contract.
Monboddo. A contract of freight is a maritime cause; and, consequently, the breach of that contract is maritime.
Hailes. The only doubt is here, that the breach of the contract did not happen till the goods were landed; so that the offence for which the ship was condemned, did not take place at sea. It was for landing goods, not for hovering, that the ship was condemned.
On the 8th March 1776, “The Lords found the case maritime, and refused the bill of advocation.”
Act. G. Wallace. Alt. Ilay Campbell. Reporter, Covington.
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