Ex Rhodia de jactu. - Damage sustained by a ship in defence against a privateer.
John Robertson v. Robert Brown
Date: 27 July 1785 Case No. No 38.
Damage sustained by a ship in a defence against a privateer, not made up by a general contribution.
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A vessel employed in the carrying trade between London and Sealock, was attacked by a privateer; from which, after a smart action, she had the good fortune to escape. She, however, suffered considerable damage both in her hull and rigging.
The question therefore occurred, Whether the loss was a partial one, that is, to be borne by the owners of the ship alone; or if it was general, and fell equally on the owners of the ship and of the cargo? Certificates were produced from eminent merchants in Glasgow, expressing their opinion that it was of the latter sort; but in others obtained at London, it was agreed, that although such a doctrine had been formerly received, a contrary practice had prevailed during the late war.
For John Robertson, who had made insuranoe on the ship, it was
Pleaded; According to the principles of the Rhodian law, every loss sustained by a ship, for the general safety, and to which, in effect, the preservation of the whole has been owing, is to be divided equally among those having interest. Nor can the application of this rule to the present case be attended with any doubt. It would indeed be singular, if the loss of a sail, or of a mast cut away in a storm for lightening the vessel, should be defrayed in common by the owners of the ship and of the cargo, while that occurring in a brave and successful defence against an enemy, devolved on the former only.
In the practice, accordingly, of every foreign nation of which we have any account, a damage of this sort, equally with any other, is made up by a general contribution; Ordinances of Rotterdam, No 291. 235. 307.; Magens, vol. 1. p. 64.; Wesket, voce Average, p. 25. § 3. The same principle appears to be entertained by the most eminent Scottish merchants, compared to which, in interpreting the commercial dealings of Scotsmen, the opinions of persons in London, when unauthorised, especially, by judicial decisions, and avowedly opposite to the practice of that city in former times, ought not to have any weight.
Answered for Robert Brown, the owner of the cargo; The mercantile practice of London, in a question of this sort, is deservedly of the highest authority. It is indeed to be viewed as the great Law Merchant of the British empire, a deviation from which, by any local custom or usage, as it would infallibly produce embarrassment in trade, ought to be anxiously avoided.
The reasonableness of its determination in the present case cannot well be disputed. It was only those losses which arose from the voluntary act of the shipmaster, as the cutting away of a mast, or the throwing of goods overboard, for which, by the Rhodian law, a contribution could be demanded. For goods, therefore, which had been lost by some extraneous accident, or for the rigging of the ship carried off by the violence of a storm, though from thence a benefit might eventually arise, such a claim was not admitted. The damage occasioned to a ship by the attack of an enemy evidently belongs to this last class, and is to be viewed in the same light.
As the articles of which a lading is composed are for the most part much more valuable than the ship, and at the same time apt to be more materially injured in an engagement, the owners of the latter alone are gainers by this decision. Nor to this can it be objected, that the loss suffered by the cargo does not contribute to the safety of the ship, and therefore does not fall within the general rule; for it is not the ship itself, any more than the cargo, but the bravery of the mariners, and the arms, in their hands, which are the means of preserving the whole.
It was likewise mentioned for the owner of the cargo, that the ship had been advertised as carrying arms for defence; but as no additional freight was stipulated on that account, this circumstance did not seem to have any weight.
The Lord Ordinary found, agreeably to the opinion of the London merchants, that no contribution was due; which judgment was adhered to by the Court, after advising a reclaiming petition and answers. A second reclaiming petition was presented, and refused without answers.
Lord Ordinary, Braxfield.For John Robertson, Lord Advocate, H. Erskine.For Robert Brown, Maclaurin.Clerk, Menzies.
Fol. Dic. v. 4. p. 218. Fac. Col. No 225. p. 351.
