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The Asia Grande. Edw.

ble cargo belonging to Portuguese merchants for the port of Lisbon, when she was detained, with many others of the same description, and brought to England, to prevent her falling into the hands of the French, who were, at that time, in possession of Portugal. Upon the expulsion of the enemy from that country, these vessels and cargoes were restored to the Portuguese proprietors upon payment of the captor's expenses, which then became the subject of reference to the registrar and merchants, and gave rise to the present question.

JUDGMENT.

SIR WILLIAM SCOTT. This is a question respecting the amount of the remuneration to which the prize agents are entitled for the trouble they have had in attending to these particular ships and cargoes after they were brought into port. The claim is made on behalf of two houses of agency here in London, and their substitutes at the out-ports; and the parties, on the other side, are the Portuguese proprietors of several ships and cargoes of great value, which were brought in under the embargo, and have since been restored, subject to a variety of expenses and charges, according to the particular circumstances of each case. The agent's charge amounted to from thirty to fifty guineas in the different cases, with twenty guineas additional for agency at the out-ports, but the registrar and [* 46] merchants have cut down the several sums to twenty guineas for the whole. In general, the registrar and merchants have nothing to do with the question of agency, it is a matter which passes in private between the captor and his agent, and only comes before them incidentally in those cases of restitution, where the court decrees that the captor's expenses shall be paid by the claimant. All agency is pro opera et labora, and the Prize Act fixes it at five per cent. as a fair average, but it gives nothing where the property is restored; in such cases, it is usual for the agent to charge a gross sum, which I understand is commonly fifteen guineas for agency, and something extra for out-port expenses. I perceive it is stated, by the claimants in the act, that inasmuch as there has been no actual disbursement by the captor in this case, and he is not liable for agency where the property is restored, it is a demand which he can have no right to bring forward. This goes to a general denial of the fact upon which the demand is made, but I understand, that where expenses are decreed, the practice of late has been to allow this charge. When that practice commenced I cannot say, but I conceive it was settled on an understanding, that some person must be employed to take care of the property, and that the party who has finally the benefit is equitably bound to pay. But this general objection has not been mooted

now.

The Asia Grande. Edw.

in argument, and, therefore, it is unnecessary for me to dwell upon it I consider the practice to be sufficiently established, and that the registrar and merchants have proceeded on the general propriety and establishment of the rule. The care and attention of the officer who acted as prize-master in bringing home the ship, is represented

in the act as highly meritorious, but that is a matter not [ * 47 ] connected with the present question; and, besides, it appears that an allowance of five shillings per diem has been made to him, and accepted as sufficient on his part. If, however, the question had been still open, though I approve of what the registrar and merchants have done as acting upon a general rule; yet where ships of great value were brought into port during a very boisterous season of the year, with turbulent crews on board, which made it necessary to employ persons of a higher station than usual, the court would have been disposed to allow a more liberal subsistence. The act states the substance of the demands, with the grounds upon which they have been resisted; and I am now to consider whether the court shall not exercise a further discretion, and increase the allowance which had been made, without meaning in any degree to censure the award made by the registrar and merchants; for certainly many considerations may come under the judgment of the court which it might not be proper for them to attend to. In the first place, I give no weight to the assertion, that nothing is due; because, if agency has been allowed by practice equitably founded, it is as a general assertion not true. But to raise a ground for a greater allowance than has been customary, greater merit must be shown, and, therefore, it is necessary to inquire, whether there are any circumstances in this class of cases by which they are distinguished. In ordinary cases of justifiable seizure, the captor has performed a lawful act; he had a right to bring the vessel in, but it cannot be said that a service has been rendered to the claimant. It is true, that it is a damnum absque injuria, but there can be no claim upon the gratitude of the parties, and, therefore, when the necessary expenses are decreed to the cap

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tors, the court is bound to see that it is done with the great[48] est strictness and economy. But the present class of cases are not of that nature; here the capture was made, not for the benefit of the captors, but of the captured. The common enemy had overrun Portugal, and an order for the detention of Portuguese vessels was issued by this government to prevent the property from falling into the hands of the enemy. There is something, therefore, in the nature of these cases which admits of a more liberal remuneration; the agents of the captors have been the agents of the claimants, and where there is this fundamental distinction, it may

The Asia Grande. Edw.

be right to attend to other subsidiary considerations, some of which have weight. The property was held throughout under a sort of divided possession, between the prize-master and the Portuguese master of the ship; there was not an absolute possession, as in the common cases of prize, and this circumstance was the source of some disagreements which have been the subject of frequent reference to the court, in consequence of disputes that naturally arose out of such a situation of things. This would necessarily occasion much additional trouble to the agents, to whom there must have been a perpetual recurrence for advice and assistance; the length of time, also, during which this property continued under the direction of the agents, is another ingredient in the consideration. These are the distinguishing circumstances, though there are others, upon which, if I do not entirely exclude them, I shall not lay any great stress, as they are not peculiar to these cases; at the same time, the great value of the property, and the tempestuous state of the weather, must be admitted to enhance the trouble, and in a case fundamentally distinguished from others, may sustain a further demand, though they would not themselves lay the foundation for it. In ordinary cases, it is said, that one case balances another, but these are not cases of ordinary capture; the property has not been pro- [* 49 ] ceeded against as prize, it was brought in alio intuitu, and might all have been put into the hands of government agents at first. In the cases of the corn ships detained last war, which have been referred to as cases of public capture, government allowed fifteen guineas for agency, and five guineas for out-port charges, but there was the material distinction, that those captures were not made for the benefit of the claimants, but to prevent that species of supply from passing into the hands of the enemy. The case where government is dealing with its own agents, on ordinary terms, is not the same as where a benefit had been actually conferred upon the parties to whom the property belongs, and who are to bear the burden of paying those by whose services they have been so benefited. There was no ground for any claim upon the liberality of the captured; and besides the number in those cases amounted nearly to five hundred. Here are only fifteen, and, consequently, the number will not make up for the deficiency of particular cases. Upon the whole, taking these various circumstances into view, although I very much approve what has been done by the registrar and merchants, yet, considering that it is competent for the court to increase the allowance, at the same time that it is its duty to keep matters of this kind within the limits of rigid economy, I think I shall not deviate much from the rule of justice, if I allow one third more. And in apportioning the

The Nemesis. Edw.

sum, in consideration of the additional trouble which has been thrown upon the agents at the out-ports by the frequent references made to them, it appears to me to be proper to bring them more nearly to an equality with their principals than I should generally think right, and I shall, therefore, allow sixteen guineas to the agents in town, and fourteen guineas to their substitutes at the out-ports.

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Costs and damages on loss of a ship captured on unjustifiable grounds. Navigation Act not considered to extend to Gibraltar.

THIS ship was captured at the entrance of the Tagus, by The Primrose sloop of war, and sent to Falmouth, where she was afterwards lost. The ship and cargo was clearly English property, and it was urged, on the part of the claimants, that there being nothing to justify the detention, it was a case for costs and damages.

JUDGMENT.

SIR WILLIAM SCOTT. This is an unfortunate case of a ship and cargo, which was brought into Falmouth Roads, and there lost. The ship was captured on a voyage from Gibraltar to Oporto, with orders to touch at Lisbon, for the purpose of delivering two pipes of wine, which were consigned to Sir Charles Cotton, the British admiral upon that station; and, in case he found the English in possession of the place, the master was directed to obtain permission to dispose of his cargo there, consisting chiefly of articles of British manufacture, and such as were peculiarly adapted to the Lisbon market. There is no defect in the proof of property, as it clearly appears that both the ship and cargo belong to Mr. Tyrwhitt, an English subject residing at Gibraltar, where he holds the office of marshal of the ViceAdmiralty Court. Some observations have been made on the impropriety of a person in that situation being connected with shipping transactions, and it may be liable to objection; but that such an officer should be a trader of some species, cannot, I presume, well be avoided, as such offices abroad do not frequently themselves afford a

sufficient maintenance. It appears that the ship had been [* 51 ] proceeded against at Gibraltar, and, on being *restored,

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The Nemesis. Edw.

was sold by her owner to a Mr. Winter, who again sold her to the present claimant. No objection has been made to the validity of the transfer, though there seems to have been some inaccuracy in the date of the bill of sale, but not of a nature to be made the subject of serious observation.

It is said, that the vessel had no register on board, and that the captor was induced by this deficiency to make the seizure. I cannot bring myself to believe that he considered that as any justifiable ground for detaining the vessel, as he could hardly be ignorant that, being foreign built, she was not entitled to a British register. It has also been objected that she had not her proper proportion of English mariners on board, according to the provisions of the Navigation Act; that, however, is an objection which could not be noticed in this court; if there was any irregularity in that respect, it would require to be referred to another branch of its jurisdiction. I am informed by those who are likely to be best acquainted with the subject, that it has always been understood that Gibraltar is not within the Navigation Act, and that ships belonging there are not subject to any restrictions which do not specially apply to that place; it is a mere military garrison, not a colony, plantation, or settlement. Indeed, in many of these possessions of the crown, such as Malta, Gibraltar, &c., it is absolutely impossible to comply with the regulations of the Navigation Act; for the requisite number of British seamen can by no possibility be obtained at such places. The orders in council, prohibitory of intercourse, as applicable to Portugal, were at an end at this time, for the French had evacuated the country, and the voyage, therefore, was not only innocent, but useful, contributing to the supply of the British fleet, and of our allies, and possessing every title to favor and protection. What then is [ 52 ] the treatment which this vessel, owned by a British subject, and coming with so meritorious a purpose, receives from a British officer whose ship was, in fact, a component part of the fleet, and who was bound to do all in his power to encourage the bringing of those supplies which could not be procured from Lisbon, as that place had been long in a state of blockade? On first seizing the vessel he determined to carry her alongside the flag-ship, which was lying at some distance in the Tagus, and as there was a consignment on board for the admiral, the measure would at all events have been proper, but he changes his mind, and the next day orders her for England. In those peculiar situations, in which gentlemen of the navy are often placed, having to decide and act in an instant on questions which are replete with difficulties that embarrass the court itself, under all the advantages of a deliberate judicial investigation,

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