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Scottish Court of Session Decisions >>
Philip Van Porten v Andrew Dick and Others. [1681] 3 Brn 329 (00 January 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Brn030329-0429.html Cite as:
[1681] 3 Brn 329
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Philip Van Porten v. Andrew Dick and Others
1680 and
1681.
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1680. January 31. —In the case betwixt Philip Van Porten, and Andrew Dick and Others, anent the ship taken by Captain Martine from the merchants of Hamburgh, the intromitters with the goods being pursued, the Lords found, 1 mo, That it ought to be proven the goods were piratically taken; and found the Admiral's decreet not sufficient to prove it, but required the oaths of the seamen and other habile witnesses who were robbed. Now, they dwelt in Hamburgh, and might be dead. 2do, That the cautioners for the privateer who took the said ship behoved to be discussed before the intromitters with the goods, 3tio, Ordained the stranger to prove and adduce the laws and customs of the other nations in Europe, that the Lords may see what is the jus gentium in making intromitters bona fide with goods robbed at sea liable for restitution, and if it be vitium reale. For, in goods stolen by land, it is certainly an inherent vice, and they are recoverable, rei vindicatione, wheresoever they are found. 4to, They reserved to themselves to consider if it should assoilyie the intromitters, that the owners had once Captain Martine, the pirate, prisoner in Edinburgh, where he escaped in woman's apparel; and again prisoner at London, where they consented to his liberation. This was thought an odd and wimpled interlocutor. Vide Zeigler. ad Grotium de Jure Belli, p. 548.
The late author of Jus Maritimum, c. 4, Of Piracy, shows that the buyers of caped goods in England are not liable in restitution; but our countryman, Wellwod, in his Sea-Laws, c. 25, Of things taken on the Sea, shows a decision to the contrary; but it is in 1487, near 200 years old.
Nota.—Upon the 19th day of January 1681, the Lords having advised the probation taken at Hamburgh, with a complimenting letter from the magistrates to the Lords, thanking them for their justice; the Lords found the robbery to have been clearly done in alto mari by Captain Martine, and therefore decerned Captain Dick the intromitter with the robbed goods to restore in quantum lucratus. His oath being taken, he deponed he had paid so much to Martine, the robber. Several of the Lords voted that this ought not to be discounted nor allowed to him, because he was in pessima fide to buy such goods before they were declared lawful prize, being presumable they were caped. Yet the plurality of the Lords allowed this article to him, seeing he could not be said to be lucratus, except the price paid out by him were first deduced. The witnesses in this cause were the shipmen who were aboard the time of the robbery.
