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The Anna of Christiana v Captain Mortoun. [1680] Mor 14672 (10 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor3314672-049.html Cite as:
[1680] Mor 14672
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XI.
Owners of a Ship, how liable?
The Anna of Christiana v. Captain Mortoun
Date: 10 June 1680 Case No. No. 49.
Found in conformity with the above.
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This ship, called the Anna of Christiana, having been found free, and the adjudication reduced, last session, the strangers would not take out the decreet, unless the owners of the privateer were decerned for the whole price in solidum; which not being expressed in the sentence, the clerk refused to add the same; whereupon the Lords called the parties; and it was alleged for the owners, That they could not be liable in solidum, but pro rata, because they were neither liable ex contractæ, nor ex delicto; not ex contractu, for they had made no contract with the strangers, and were not answerable for the deeds of the captain, who had his commission from the Admiral, and had found caution; for though owners be liable for the deeds of a master of a ship, actione exercitoria, yet that extends only to merchandizing; and not ex delicto, because the Lords found there were probable grounds to bring up the ship, and the owners did not meddle with her, until she was adjudged prize, and rouped; and though the adjudication was reduced thereafter, yet the owners can only be liable in quantum lucrati, each for his share received. It was answered for the strangers, That the owners were liable, as those who furnished and set out the privateer, and so were authors, or accessory to the unwarrantable seizure of a free ship; and though the captain found caution ad majorem cautelam, it hinders not but that both the captain, his cautioner, and owners, were liable in solidum, to restore the ship and loading, which is factum indivisible, and the persons obliged cannot liberate themselves, by offering a part of the ship, or a part of the loading; no more can they by offering a part of the price liberate themselves, seeing it comes in place of the ship; otherwise friends and neuters might be destroyed, by the owners taking in insolvent partners; and the captains are ordinarily insolvent, and the cautioners are taken, in course, by the Admiral's clerk, oft-times insufficient; and therefore the Lords have all along found the owners liable in solidum.
