Scottish Court of Session Decisions

Subject_1 WRECK

Monteir and Others, Merchants in Glasgow,
v.
Sir James Agnew of Lochnaw and Others

Date: 17 February 1725
Case No. No. 4.

Click here to view a pdf copy of this documet : PDF Copy

The pursuers had obtained a decreet in absence before the High Court of Admiralty against Sir James for a considerable sum, as the value of goods belonging to them, which were wrecked and cast upon the shore of Whitehorn in Galloway, and intromitted with by him as Admiral of these bounds: He raised reduction of the decreet, and being reponed, he pleaded, 1mo, That the goods were confiscated and belonged to the Admiral, because no living creature was found aboard, which was agreeable to the old statute, 25th of Alexander II. observed by Lord Stair, Lib. 3. Tit 4. § 27. of his Institutions, upon which the decision December 12, 1622, Hamilton against Cochran, No. 1. p. 16791. proceeded; and which was likewise agreeable to the English law, anno tertio Edwardi I. Cap. 4. and Henry III. anno 1226, observed by Skeen, De Verb, signifi. verbo Wreck: And as to our statute, James I. Cap. 124. He contended that it only concerned the ease of strangers, but did not alter oar old law as to natives; 2do, He pleaded, That there was no claim for wrecked goods, unless it was made by the owner within year and day; as was observed by the foresaid authors upon the old statute, and by Sir George Mackenzie upon the statute of James I. and which obtained by the present custom of the Admiralty founded on the foresaid ancient statute, the reaton of which was, Ne rerum dominia in incerto essent; and was likewise agreeable to the custom of Holland, France, England,. &c. as Vinnius observes in his notes upon Peckius, ad legem Rhodiam; and Skeen takes notice, that the same limitation holds as to the claim of waif goods, that it is lost if the proprietor does not enter it within year and day.

It was answered to the 1st defence, That the old, inhumane, and barbarous law of Alexander's was long ago in desuetude with us, as appeared from the practice of the Admiralty; and that no such confiscation obtained in other places, as England, France, &c. which Vinnius takes notice of in the notes cited for the defender. To the 2d it was answered, That so short a prescription would be absurd, since in many cases it might happen that a year would elapse before the proprietors could get notice where these goods were wrecked; and therefore, observes, Mackenzie observes, upon the 124th act of James I. it was contrary to the custom of this country: And Lord Stair, Tit. Confiscation, lays it down in general, “That except it be upon the law of Reprisals, every true owner instructing his sight ought to have it.” And by the British act of the 12th of Queen Anne, for preserving of ships and goods that are forced on shore, it is provided, “That the goods may be sold, and the price transmitted to the Exchequer, there to remain for the benefit of the lawful owner, when ever he shall claim them” from which it was contended that the intromitter was accountable at any time. As to the case of waif goods, it was answered, That waif, for the most part; consists of such goods as are strayed or lost, which generally happens to be at no great distance from the owner; whereas, in the case of wreck, goods may be cast away in remote corners, with which the owner may have little correspondence, and cannot have access to know of the disaster.

The Lords repelled the defence of prescription, and that no living creature was aboard when the boat was east on shore; and found the libel and property of the goods Relevant to be proved prout de jure, and the defenders' intromission relevant to be proved by their oaths.

Act. Ja. Graham, jun. Alt. And. Macdowal. Clerk, Dalrymple. Edgar, p. 172.