BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Poor James Darg v John Gordon and Company. [1784] Mor 2026 (25 February 1784)
URL: http://www.bailii.org/scot/cases/ScotCS/1784/Mor0502026-004.html Cite as:
[1784] Mor 2026
However invalid or exceptionable a ransom-contract may be, the owners of the ship are still obliged to procure the immediate ransom of the hostage, and to indemnify him for the loss he has sustained by his detention.
Click here to view a pdf copy of this documet : PDF Copy
John Gordon and Company employed John Barclay to navigate a vessel belonging to them from Peterhead to Sunderland, with instructions in the event of a capture, ‘ to make the best bargain he could to ransom, from L. 50 to L. 80 ‘Sterling, but not above.’
John Barclay being taken by a French privateer, agreed to ransom the vessel at 150 guineas; and James Darg, a boy then on board, making what is called a trial-voyage, and entitled to no wages, consented to go as hostage.
Upon the vessel's being brought back to Peterhead, she was appretiated upon oath, and sold by the owners, by public auction, for L. 71 Sterling. They then insisted that the master had exceeded his powers, by agreeing to ransom beyond the value of the ship; and at length, prevailed on the proprietors of the privateer to dismiss the hostage, upon receipt of 100 guineas.
In this manner the hostage, instead of five weeks, which was the time fixed for his redemption by the ransom-contract, was confined at Dunkirk for one year and four months. Upon his return to Scotland, he brought an action against the owners, for wages during the period of his confinement, and for a certain sum of money in name of solatium.
The Lord Ordinary ‘found the pursuer entitled to a reasonable consideration for his loss of time during the first five weeks of his confinement, within which time he ought to have been redeemed; but that in respect his confinement for that period was by his own consent, he was entitled to no damages for that period; that his after detention in prison being chargeable upon the owners, they were liable to him in damages on that account, and likewise in a solatium, on account of his being so long confined in prison by their fault, during which time he might have earned wages, and, what was. more valuable to him, the knowledge of his trade: Also, that the sums modified on the above grounds, were not to be compensated on account of the maintenance, cloaths, and medicines, furnished to him while in prison, nor on account of the money expended in supporting him in his journey from Dunkirk to Peterhead.’
In reclaiming against this judgment, the defenders argument was intended to show, that the owners were not obliged to redeem in terms of a ransom bill, where the redemption money exceeded the value of the ship; in support of which proposition, they quoted Magens, v. 2. p. 231.; Postlethwaite, p. 136.
The Lords had no regard to the principles urged for the defenders, which. however available in a question between the owners and captors, could not impair the claim of indemnification competent to the ransomer. It was likewise observed, that the owners had precluded themselves from every plea of that sort, by neglecting to make a formal abandon of the vessel the moment they were acquainted with the capture.
‘The Lords adhered.’
Lord Ordinary, Justice-Clerk.Act. Cay, and Lawyers for the Poor.Alt. Abercromby.Clerk, Home.
Fol. Dic. v. 3. p. 112. Fac. Col. No 149. p. 233.
