United Kingdom House of Lords Decisions

May 9, 1809.

It was alleged by the appellants, that when she arrived at Greenock from Alexandria, in America, with a cargo, her cargo was damaged by water, and so sensible was the master of the insufficiency of his vessel to carry out a cargo without a thorough repair, that he repeatedly expressed his resolution to have her docked in Greenock for that purpose; but which was never done, owing, it was alleged, to the want of funds, and the vessel being arrested in the meantime.

It was also stated, that when she sailed on the voyage insured, which was on the 9th May 1809, she was exceedingly leaky, so much so, that in ordinary weather, it was necessary to pump once every hour, and when it came to blow the leak increased to such a degree, that she made ten or twelve inches of water in half an hour, and it afterwards appeared, that part of the sheathing had come off her bottom. The crew were at last obliged to abandon her, and betake themselves to the long boats, in order to escape to land.

The Admiralty Court before which the action was brought, allowed a proof; and upon consideration of it, the Judge Admiral was of opinion, that the vessel was not tight, staunch, and strong, or seaworthy.

June 2, 1812.

June 24, 1812.

In a reduction brought of this decree by the respondents, Lord Balgray, as Ordinary, pronounced this special interlocutor, to which reference is made for the facts of the case, and the circumstances established in evidence:—

“The Lord Ordinary having considered the memorial of James Hamilton and Company, merchants in Glasgow, pursuers, and the additional memorial for Alexander Campbell, James Campbell, William Alston, and David M'Cullock, all merchants or underwriters in Glasgow, defenders, proof adduced and whole process: Finds it instructed by the deposition of James Hague, formerly two-thirds owner and master of the ‘Sarah,’ and to whose evidence there can be no objection from interest or otherwise, That in Spring 1807, previous to the ‘Sarah’ making her voyage from Alexandria, in America, to Greenock, the said ship was in a complete state to perform the voyage to Britain and back again: Finds, that the facts and circumstances which are proved to have

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occurred during the said voyage, are not sufficient to infer that the ship was not seaworthy: Finds, that after delivering the cargo at Greenock, the ship was detained there for a period of three months; and that, during the said time, the crew consisted of seventeen men at least, and were kept constantly employed in repairing the vessel; and that it is proved, that the carpenter belonging to her, was an attentive and very careful man: Finds, that in consequence of some inaccuracy in the ship's papers, she was detained by order from the commissioners of the customs, which led to an examination and valuation of the said vessel, which was accordingly done by Messrs Scott, Steel, and Ramsay of Greenock, persons every way qualified to judge of her sufficiency, who concur in the opinion, that there was no appearance of the ship being strained in her former voyage, and that they were satisfied of her being staunch: Finds, that the said opinion is fully corroborated by the deposition of Mr James Denniston, junior, of Greenock, the ship-agent, and of James Anderson, the second mate: Finds it instructed that the Captain, Mathew Dunnet, with the whole crew, except two, returned to America in the said vessel: Finds it proved, and admitted on all hands, that the vessel had a most tedious passage outwards; and in the words of Adam Butler, a witness referred to by the defenders, as deserving of credit, that the weather was very bad during the greater part of the passage, in the course of which, the vessel encountered many hard gales and heavy seas; that the prevailing winds were from the westward, and the passage, upon the whole, a very rough one, so rough, that, in the deponent's opinion, he might go the same voyage fifty times more without once meeting the same weather: Finds, that after the crew deserted the ship, and arrived at New York, a claim was made by the owners, upon the underwriters, for the value of the said ship, which had been insured by them for £2250, and that the same was paid accordingly; and as the said underwriters had then on the spot, every opportunity of investigating the whole facts, it is to be presumed that they were satisfied with the justice of the said demand: Finds, that the evidence of Nicholas Netterville and Adam Butler, two of the common seamen, is not sufficient to counter-balance the other evidence adduced; and that the evidence of other respectable persons referred to by the defenders, is either too vague or general, or founded upon transient observations at the time: Finds,

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that the defence of the ship ‘Sarah’ not being seaworthy when she sailed from Greenock on her voyage to America, in September 1807, is not established in a satisfactory manner; on the contrary, that the pursuers have shown, that the ship was in a condition to encounter the ordinary perils of the intended voyage, and that the loss of the said ship is reasonably to be attributed to the extraordinary unforeseen perils of the sea: Therefore, reduces the decree of the Judge Admiral, and decerns, and declares accordingly: And further, decerns against the defenders for payment of the sums underwritten by them, severally and respectively with interest, all in terms of the conclusions of the libel: Finds expenses due, including those incurred in the High Court of Admiralty; allows an account thereof to be given in, and remits to the auditor to tax the same, and to report. Lastly, in respect that the case is of considerable importance in itself, is attended with difficulty from the contrariety of evidence, from which diversity of opinion may arise, and is fully discussed in the memorials for the parties, recommends to them, if dissatisfied with the interlocutor to apply to the whole Court.”

On representation, his Lordship adhered.

Nov. 28, 1812.

Feb. 17, 1813.

May 18, 1813.

June 29, 1813.

The Court, after four reclaiming petitions having been lodged against the above interlocutor in which the case of Watt v. Morris was relied on ( ante vol. v., p. 697), adhered.

Against these interlocutors the appellants (defenders), brought the present appeal to the House of Lords.

After hearing counsel,