Scottish Court of Session Decisions

Subject_1 PRIZE.

Captain Masterton
v.
Strangers of Ostend

Date: 24 February 1668
Case No. No 9.

To what extent privateer liable, if the decree adjudging prize be reduced?

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Captain Masterton having taken a ship of Ostend prize, obtained her adjudged before Ludquharn, Admiral-depute of Peterhead. The Strangers pursued reduction before the High Admiral at Leith, and obtained sentence, because the decreet at Peterhead, and warrants thereof, were not produced; by which sentence there were decerned 16,000 dollars for the ship and loading, which was fish, taken in Iceland. Masterton raises reduction of the High Admiral's decreet, on this ground, that it was merely in absence, and proceeded without valuing the ship or goods, and offered to restore the ship, or value, and what he got for the fish, which was but a dollar the barrel, in regard they spoiled the time of the dependence of the plea; and craved allowance of what he paid to the King, being the fifteenth part, and the tenth part to the Admiral; and alleged, he could be liable for no more nor quantum lucratus est, seeing he did bona fide bring up this ship, finding aboard a pass from the magistrates of Ostend, which was defective, not conform to the articles of treaty with the King of Spain, in so far as it bore no mention of the sailors, that they were the King of Spain's subjects, and the sailors did depone that they did belong to Zuyder-zee, under the states of Holland; and albeit now, ex post facto, he is informed that they did reside sometime in Ostend, yet he being in bona fide, can be liable in no more than what he got. It was answered for the Strangers, That it being acknowledged, that the goods or persons were free, it cannot be denied in justice to restore them to their ship, and true value of their goods, that they might have made thereof in Ostend, and not the price thereof that the Captain made; for seeing he acknowledges that they were corrupted for want of salt, it was his own fault, for he should have raised the fish in the barrels, and salted them again; and as for the King, and Admiral's part, there is no reason to allow the same, and put the Strangers to a process against the King and Admiral; but if it be just he have restitution of his goods, he must have it of his whole goods, at the same avails as he could have sold them, with his damage and interest; and any pretence of bona fides, can-operate no more but to free him from a spuilzie, and the pursuer's oath in litem, for the value and profits, and to restrict the process to wrongous intromission, to the true prices, and true damages. It was answered for the Captain, That seeing he was in bona fide to seize upon the ship, and seeing he did obtain decreet from the Judge Ordinary, he was also in bona fide to sell and roup the goods, as they gave at Peterhead; and it does not appear that there way salt there for salting them again, nor men that had skill, nor could they meddle with them till decreet was pronounced, which was a long time; they were also in bona fide to pay the King and Admiral, neither are the King's officer nor Admiral cited, but only the Admiral-depute.

The Lords found, That seeing the pass did not bear the sailors to be the King of Spain's subjects, conform to the articles, that the Captain was in bona fide to bring her up, and found him free of any damages, and found him liable for the price of the ship, and fish, as they might have been sold at Peterhead by rouping, as use is, if they had been preserved; and found him obliged to have preserved them; and repelled the allegeance as to the tenth and fifteenth, but prejudice to the Captain and owners to seek repetition thereof; and found no necessity to cite the Admiral, his depute being cited.

Stair, v. 1. p. 532.