Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 CHARTER - PARTY.
Subject_3 Freight had been paid, before-hand, by some emigrants to America. The vessel not having proceeded on the voyage, not totally disabled, but only put back to be repaired, the freight was ordered to be returned.

James Hog and Others
v.
The Representatives of James Inglis

Date: 23 November 1776

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

[Faculty Collection, VII. 386; Dict., App. No. I, Mutual Contract, No.1.]

Covington. The Court must hold the practice in London to be the rule, for both parties agree in referring to the report of London merchants on that head. It is inherent in the nature of the contract locati condueti, that, if the locator of the ship does not perform his contract, he is not entitled to his hire; but the freight here was actually paid per advance, according to bargain. In order to secure against after disappointments on the voyage, this freight had been insured. Query, On whom did it lie to insure the freight? The owner could not insure it, for he had already received; but the freighter who had hired the vessel, had an interest to insure: if he did not, lie must be held as standing the insurance himself. If the freight had been insured, and a total loss of the ship had happened, the insurers would have been bound to pay the freight, not if a stop only had occurred in the voyage without a total loss; here there was only a stop, and no total loss: and consequently the freighter, who stands in the place of the insurer, is not bound to make up the loss: the non-performance of the voyage proceeded from the fault and obstinacy of the master.

President. Approved of Lord Covington's opinion. Had Inglis made a timeous intimation to the emigrants that he was willing to proceed on the voyage, the case would have been different.

Kaimes. This case is not different from the case decided at common law, and indeed by common sense, that if one is bound to carry persons or goods to a particular place, and does not, he cannot have a freight. Inglis is not even entitled to a freight pro rata itineris, for he repented of his bargain, and would not carry the emigrants on. It makes no difference whether the freight was advanced or not. As to maintenance, the nature of the contract was to carry the emigrants to America, and maintain them on the voyage. He was bound to maintain them wherever they were on the passage; whether at sea, in a road, or in a harbour.

Monboddo. The merchants at London make a report of maritime law to which I am a stranger. Inglis was a locator operis, and he was bound to perform the work. If any accident happened, he was bound to make it up.

On the 23d November 1776, “The Lords found the Representatives of Inglis bound to repeat the whole freight, and not to have any claim for the provisions expended in the former parts of the voyage, in respect that the vessel was not totally disabled, and that Inglis refused to implement his contract, by completing the voyage; and remitted to the Ordinary to proceed accordingly.”

Act. G. Ogilvie. Alt. A. Crosbie. Reporter, Hailes.