Scottish Court of Session Decisions

Subject_1 PRIZE.

Earl of Kincardine
v.
The Master of the Ship called the St Andrew

Date: 11 February 1673
Case No. No 19.

Although the goods were confiscated, as belonging to enemies, the ship was freed, being neutral, and having received the goods bona fide, before the war was known of.

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The St Andrew being brought up as a prize by a frigate of the King's, she was gifted by the King to the Earl of Kincardine; and being tried by the Admiral, was absolved. Kincardine raised reduction of the absolvitor; which being this day disputed, and the whole documents taken aboard the ship and the whole testimonies of the company being considered by the Lords, and the parties heard thereupon, the sum whereof amounted to this, that the ship, belonging to Lubec, had a pass to Lisbon in anno 1670; that, from thence she made a voyage to America, and returned to Lisbon; and she loosed from Lisbon the 12th day of April, N. S. 1672; and, both by letters aboard and the oaths of the company, it did appear, that the rumour of the war did come to Lisbon before they loosed, which was broke up by Captain Holm's engagement of the Smirna fleet, in the beginning of March, and the declaration, showing the causes some few days after: The letters also bore, that the Hollanders behoved to manage their trade, and go about by the north passage; and that this ship went that passage, to shun privateers, appears by the testimonies; the ship was loaded with salt, sugar, and tobacco, for which there were thirty-six bills of loading, ten of them belonging to Hieronimus Acosta, and his brethren, whom the company, by their depositions, declared to be a new merchant of Amsterdam, and that he did the King of Portugal's business at Amsterdam; and for the rest of the bills, some of them were blank; and the skipper deponed, that he knew none of the owners: There were also produced some certificates from Hamburgh, which Sir William Swan, his Majesty's Resident there, obtained since the capture; and first decreet, bearing some persons to have deponed that some part of the loading did belong to them; the scrivaner and three or four more were Dutchmen; and this scrivaner had the charge of the cargo, before the skipper was input; and it was proved, by three of the company, that they heard the scrivaner say, to the rest of the Dutch aboard, being alone with him in the ship after she was taken, that the ship would be free, as belonging to Lubec, but that the loading would be prize; yet the scrivaner, by his testimony, deponed, that he said only that in relation to some Jews' goods;

Upon all which, the Lords found, That a great part of the loading being positively proved to belong to Acosta, who was a citizen and merchant in Amsterdam, and who did not reside there but only as a public Minister of the King of Portugal's; and that there was nothing to instruct that the property belonged to free persons; and that the skipper (whose oath can be the only means of clearing thereof) deponed, that he knew none of them, nor where they dwelt; therefore, the whole loading was found prize. But the ship belonging to Lubecers, having loosed before that it did appear that the war was known to be actually broken out, and so was not in the fault to take in Holland goods; therefore, the ship was free: without determining that general point, whether, in other cases, enemies goods were only confiscated themselves, and did not confiscate a free bottom or not.

Stair, v. 2. p. 171.