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Scottish Court of Session Decisions >>
Captain William Garrioch v Robert Auchterlony. [1710] 4 Brn 780 (14 January 1710)
URL: http://www.bailii.org/scot/cases/ScotCS/1710/Brn040780-0285.html Cite as:
[1710] 4 Brn 780
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Captain William Garrioch v. Robert Auchterlony
Date: 14 January 1710
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Captain William Garrioch, as factor for Cornelius Vanderpot and Company, merchants in Rotterdam, freights Robert Auchterlony, skipper in Leith, his ship, to transport forty or fifty tons of lead ore, bought from the Earl of Hopetoun, to the foresaid merchants at Rotterdam; and he desired twenty tons of it to be put on board, as convenient ballast to his ship in the harbour, aye till a convoy should offer, and then he would take in the rest. In the meantime offer of a greater freight is made to him, to bring home a parcel of wines; whereupon he pretends that the weight of the lead ore had damnified the ship, so that he durst take in no more, and therefore requires Garrioch to take out the ore, and pass from the bargain; and on his refusal disloads it himself: And being pursued before the High-admiral for damages, having lost the season and opportunity of transporting the said lead for that year; and he alleging, 1mo, That it had so bruised his ship that it was not able to sail till fitted and repaired; 2do, That no convoy was offered him; and this being admitted to his probabation, he succumbed; and it appeared that, being in summer, the ship might have performed the voyage; and, for a convoy, the freighters had not undertaken any such condition, but insured the ship:—therefore the Admiral decerned him in £290 Scots of damages. Of this decreet the skipper presented a bill of suspension, alleging it was without probation; and he was the greatest loser, his ship, by its incapacity, being unfit for any voyage; and he waited for a convoy, which was never offered; and the sum modified was exorbitant.
The Lords repelled the reasons, refused the bill, and sustained the Admiral's decreet of modification; for it was not proven that the ship was damnified by the weight of the lead ore, seeing it might arise from stress of weather, the striking on the anchor of other ships, or from inward latent defects.
