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Scottish Court of Session Decisions >>
Loch v Home. [1769] Mor 2025 (16 February 1769)
URL: http://www.bailii.org/scot/cases/ScotCS/1769/Mor0502025-003.html Cite as:
[1769] Mor 2025
A boy, who received no wages, was given as ransom of a captured ship. He made his escape; by which his master saved the ransom. He was found entitled to a sum as solatium for his trouble and confinement.
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Alexander Home, a boy of 13 years of age, was put aboard a ship belonging to David Loch, destined for Carolina, and to touch at Madeira and Havannah. As this was his first voyage, he had no wages; on the contrary, he was to pay board for his maintenance.
The ship being taken by a French privateer; was ransomed at L. 700, and Alexander Home given as a ransomer. But though, in the ransom-contract, the ship had liberty to touch at Charlestown and Havannah, she was again taken, in that course, by a Spanish guarda-costa, and carried into a Spanish port.
Alexander Home having made his escape on the coast of America, and returned to Scotland, brought an action against David Loch, on the ground, that the ransom-contract was voided by his escape, Which therefore was in rem versum of Mr Loch; and concluding for L. 50, as his Wages, from the date of the capture, till the day of his return to Scotland, with L. 200 as a solatium for the trouble and confinement he had suffered.
The Judge-Admiral decerned for L. 40 in full of all his claims; and David Loch brought a reduction of the decree.
Pleaded for the pursuer of the reduction: Though, in ordinary cases, wages are due to a ransomer, because be would have earned them, had he remained in the ship, Alexander Home can have no claim on that head, since no wages were allowed him when aboard.
Neither has he any claim of recompense, as if the pursuer were locupletior factus by his escape. It is doubted, how far the escape of a ransomer could operate a release of the ransom-money; and in this case, the claim was extinguished in a different way, by the second capture made by the Spaniards, the allies of France, whereby the ransom-contract was annulled.
Answered: In the case of captures, the ransomer is not restricted to the wages of a sailor; the practice is, that he makes a bargain with his Captain; and it is but reasonable, that he should have an allowance for the confinement which he suffers, besides his maintenance during the detention, and the expences of his journey home.
Whatever claim the pursuer may have had against the Spaniards, he must have paid the ransom to the French privateer in the first place, had the defender remained in their hands. He was bound to obtain the ransomer's liberation, which could not be effected without payment, and could not be sacrificed on pretence of any such claim. Indeed that claim could scarce have been made effectual, unless the defender had escaped; so that the, pursuer was lucratus in every view of the case.
‘The Lords repelled the reasons of reduction, and found, the pursuer liable in the expences of process.’
Act. Blair.Alt. Sinclair.
Fol. Dic. v. 3. p. 111. Fac. Col. No 88. p. 339.
