Volkert Hendricks v. William Cunningham and others
Date: 30 January 1781 Case No. No 53.
A neutal ship, carrying the produce of an island at war with Britain, considered as the ship of the enemy. Reversed on appeal.
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The ship Catharina, of Holland, Volkert Hendricks master, having been loaded at St Domingo with the produce of that island, was, in her voyage to the Texel, seized by the Bellona, a private ship of war, belonging to William Cunningham and others, and carried into Clyde.
An action having been brought by the captors before the High Court of Admiralty in Scotland, for having the ship and cargo condemned as lawful prize, a judicial acknowledgement was emitted by Mr Hendricks, that the cargo was the produce of St Domingo; and on that account sentence of condemnation was passed. This action was removed into the Court of Session; which sustained the Admiral's judgment.
Lord Ordinary, Braxfield.For Hendricks, Maclaurin, Morthland.Alt. Lord Advocate.
Fol. Dic. v. 4. p. 145. Fac. Col. No. 85. p. 141.
*** It may be proper to notice here, that these judgments were brought, by appeal, under review of the House of Lords, by whom they were reversed; the principle on which they proceeded, although adhered to in the war which ended in 1763, having been departed from in that terminated in 1782. The learned Lord who moved for the reversal, at the same time expressed his opinion, that the High Court of Admiralty in Scotland had no jurisdiction in the condemnation of prizes. The interlocutor of the House of Lords is in the following terms:
20. May 1782.—After hearing Counsel, as well yesterday as this day, upon the amended petition and appeal of Volkert Hendricks, master of the ship Catharina, of Amsterdam, and the owners of the said ship and cargo, complaining of two interlocutors of the Judge of the Court of Admiralty of Scotland, and also of two interlocutors of the Lords of Session there, and praying that the same might be reversed, varied, or altered, or that the appellants might have such other relief in the premisses as to this House, in their Lordships great wisdom, should seem meet; as also, upon the answer of William Cunningham, and other owners of the Bellona private ship of war, and James Maclean, the commander, put in to the said appeal; and due consideration had of what was offered on either side in this cause; and the appellants having waved any objection to the regularity of the proceedings, or to the competence of the jurisdiction;
“Ordered and adjudged, That the said several interlocutors complained of in the said appeal, be, and the same are hereby reversed.”
