Page images
PDF
EPUB

have been avoided by furnishing the Court with the means of forming an earlier Judgment.

The Court is of opinion that the delay is to be attributed, primarily, to the tardy and imperfect manner in which the Master placed his Case before the Court.

Although disposed to make all due allowances for a Stranger, ignorant of the language of the Country, and of the course of its legal proceedings, and for his inability through pecuniary difficulties to provide himself in proper time with legal assistance, being moreover at times disabled by sickness; still the Court cannot take from these circumstances any reason to induce a determination to charge the opposite Party with the consequences of his deficiencies or of his misfortunes; the causes of the protracted investigation of the claim, and the burthen of the consequent charges, must rest on himself.

But as it has been clearly proved that, without taking the immediate and necessary effects of the Capture into account, certain wrongs have been committed, as the abstraction of trade-goods of the Owner's Cargo and of the Master's private adventure; and certain acts have been done by the Captors which, however warrantable under the circumstances, were yet attended with effects which must be considered in the nature of wrongs, at least so far as to give a fair title to compensation, for all consequent as well as all actual damages connected with them; and in this view are to be regarded the employment of this Vessel as a Transport for the conveyance of the Slaves of the Constantia, and the use of the provisions of this Vessel for those Slaves; the Court is of opinion that, except in so far as the deficiencies on his own part have debarred him, the Claimant should be held entitled, not only to a just indemnification on these heads, but further, to all costs, damages, and expenses incidental to the delay of the decision, and to the adjustment of the satisfaction due to him on these heads.

If he had, immediately after the restitution of the Vessel, brought forward those claims, in a clear, intelligible and satisfactory form, and, as soon as conveniently might be afterwards, established his allegations by proofs, so far as his means of proof would have enabled him, the Court would have held him entitled to the demurrage, according to the scale stipulated by the Eighth Article of the Regulations for the Mixed Commissions, from the day of the restitution to the day of final decision. Inasmuch as deficiency is attributable to him on this head, the Court considers that this demurrage should be withheld; but as the charges of the delays and difficulties to which the Court has been subjected in respect to the means of forming its decision, should not fall upon him further than those delays and difficulties were caused by him, it is necessary to inquire and determine, at what time the charge should be removed, and where it should then with greater propriety be placed.

It has already been observed, that much difficulty and inconvenience were suffered by the Court, in consequence of the desertion of the Cause by the Agent for the Captors, and by the want of the information due to the Court on their part; the Commissioners being left without any means of checking the statements and demands of the Claimant by Counter statements, or by opposing Evidence, unless so far as the Commissioners have themselves been enabled to collect such evidence from the Prize Master upon some particular points. The Court is of opinion, that, for a certain portion of the time occupied in the investigation of the Case, the expenses usually chargeable under the general head of demurrage, are justly to be placed against the Captors, as occasioned by the desertion of their Agent, and the deficiency of the information due to the Court on their behalf. In fixing the time when this charge upon the Captors is to commence, the Court referred to the Cases of the Correo Maritimo, 1st vol. Robinson's Reports, p. 287, and of the Zeestar, 4th vol. Robinson's Reports, p. 71, in which Cases demurrage was granted by Sir William Scott to Claimants, for "want of due and necessary diligence on the part of the Captors."

The Court decrees, upon the full consideration of the circumstances, guiding itself by the principles and observations of that high Authority, so far as they are applicable to the present Case, that demurrage, according to the scale established in the 8th Article of the Regulations for the Mixed Commission, shall be charged to the account of the Captors, from the 18th August, being the Court day upon which they were cited by monition to appear and show cause against the Claim, such demurrage to be calculated from that day exclusive, to the 5th of October, the day of this Decision, inclusive.

The burthen of the Vessel being 143 tons, the daily rate of demurrage to be allowed is £6 for each day, which being computed for 48 days, gives an amount of £288.

The Court is more particularly induced to form the last-mentioned determination, by the consideration that, in the deficiency of proofs on both sides, touching the most material branches of the compensation claimed, while some compensation appeared to be justly due, and the Court was not put in possession of the means to ascertain how much, an amicable and equitable arrangement between the Parties, to which the Court would have given all due facility, must be considered as the most appropriate mode of doing justice in the Case.

It is now matter of necessity to decide upon the 1st head of claim: the compensation due for abstraction and deterioration of goods of the Owner's Cargo, and of the Master's private adventure.

On one of the branches into which this head of claim divides itself, that of deterioration, the Court, adverting to the Report of the Commissioners of inspection, conceives that the decay must have taken place before the capture, or if it took place since, considers the Master

S

himself culpable, in not employing proper caution to guard against the effects of the weather penetrating to the goods. The evidence of Mr. Hannah confirms the opinion of the Court in this view; all demands for deterioration are therefore disallowed.

The other branch of this head of claim is the part of this Case upon which the Court has, from the commencement, felt itself under peculiar difficulties, through the want of information to assist the inquiry into the amount of compensation justly due. It has been proved on the part of the Claimant, that the goods, as charged in the accounts annexed to the claim, were embarked and were actually on board at the time of the capture; that the prices are those of the original invoices, which invoices have come under the view of the Court; that the deficiencies have taken place since the Capture, and as the Claimant says, are to be attributed to the Captors. In support of this last allegation, the Claimant mentions special instances of detecting the people of the Prize Crew in acts of depredation, and his having made complaint to the Prize Master. The Prize Master contradicts the allegation of complaints, in a general sense, but admits one instance of complaint, and one instance of detection.

The Clerk of the Gaviao proves that the goods were all on board at the Capture, that the deficiencies took place since the Capture; that he heard the Master of the Gaviao complain, once, to the Prize-master that a piece of his goods was taken from the hold into a launch, but he does not know himself how to account for the deficiency.

The surveys made by order of the Court, showed that an actual deficiency of a considerable amount existed, but it was difficult in the extreme to ascertain the precise description of the piece-goods which constituted the principal part of the Cargo and of the claim.

A disposition was expressed to make some reduction in the total amount of the articles, as has been done on all the other heads of compensation; but, on referring to the decisions on those heads, it was found that there was particular evidence to direct and guide the adjudication in the deductions made, and the amounts severally decreed. No general principle of curtailment or allowance had been recognized, nor any settled proportion given or deducted. A specific sum of £500 was then proposed for the Master and Owner conjointly, but this was found subject to the same objections. It might have been thought sufficient to satisfy the Claimants, and might have been so accepted, if offered by the Captors; but the Court could not chaffer and make bargains with the Claimants, as the Captors, or an authorised Agent on their part, could have done. After much further deliberation and discussion, it seems at last most consistent with reason to allow the Claimant the whole demand for actual loss, as a commensurate actual deficiency has been proved by the surveys executed under the direction of the Court, and as no legal ground, no certain reason, appears for making a reduction.

The Owner is therefore allowed, for abstraction of his Cargo, according to the Account before the Court, £493 7s. 10d.

And the Master is allowed, for abstraction of goods belonging to his private adventure, according to the Account before the Court on that behalf, £223 Os. 3 d.

A charge of £37. 10s. for 40 dozen of sausages, said to be included in the private adventure, is disallowed. The Court considers that the utmost extent of the known partiality of Portuguese Mariners for this article of luxury, could not well have exceeded the quantity already comprehended in the compensation for cabin stores.

A charge of £22 10s. for sword belts is also disallowed; these articles being found in the list of the goods sold at St. Thomas's.

The Court, or rather the British Commissioners, having caused the large and ordinary water casks, beyond the number necessary for the use of the crew, to be landed, and also the boilers, false decks, and other articles of outfit for the Slave-trade, in order to guard against a shipment of Slaves in the voyage down the Coast; the British Commissioners have undertaken to obtain compensation for those articles at the appraised value, at the charge of the British Government.

The value appraised is £65. Sierra Leone, 13th October, 1821.

EDWARD FITZGERALD.

P. S. The disallowance for sword belts was subsequently reversed, on the Claimant showing that he had already made the deduction for the belts sold at St. Thomas's. The charge allowed for these articles is £16 13s. 4d.

The Court further awarded to the Claimant, on account of his costs of suit, the sum of £44. 13s.

Sierra Leone, 27th October, 1821.

EDWARD FITZGERALD.

(Inclosure C.)-The Prize Master of the Gaviao to Thomas Collier, Esq. SIR, Elgin, 15th April, 1822.

In answer to your Letters of the 9th and 10th, I have to state, that as near as I can recollect, the Cargo of the Gaviao consisted as follows: 6 or 8 bales of coarse striped baft, 2 bales red flannel caps, 1 box of coarse hats, and 5 or 6 pipes of aquadente, which latter were taken on board the Tartar at Fernando Po: she had also on board about 15 casks of powder, a large quantity of Cassada flour, jerk beef and cocoa nuts, a number of iron shackles, a large copper boiler, and about 20 tons of water casks.

When the Gaviao was taken possession of, a Pilot was sent on board by the King of Calabar to take her down that River, and when he had done so, he received 50 pieces of baft and 3 gallons of spirits from the Cargo of the Gaviao: this is the only part of the Cargo that was made use of to my knowledge, none having been touched while I

had charge, from the 16th April till the 25th June, when she was taken possession of by the Marshal of the Court at Sierra Leone.

There was no private venture on board, belonging to the Master, that I know of; if there had been any, I think it must have been disposed of before he came to Calabar, as he had a quantity of gold in his possession, which he said belonged to himself; and he said 2 or 3 of the domestic Slaves on board were his also.

When the Gaviao was captured, she had on board some hogs, not exceeding 12, and 3 or 4 dozen of fowls; and as the Tartar's People in the Boats were only victualled for 3 days, it became necessary, as we were a week up the River, to use, I think, 3 of the hogs, some fowls, and a little rice, also some spirits, for the purpose of victualling the Men; and, on the passage to Sierra Leone, there was a quantity of the Cassada and jerk beef used, for feeding the Negroes, between the 10th of May and 17th June, the day of our arrival at Sierra Leone; a list of which (provisions used) I delivered to the Registrar of the Court, and also gave the Portuguese Master a Certificate at Sea, showing the necessity of using them, both agreeable to Sir George Collier's orders.

I

As the People belonging to the Tartar, who were with me in the Gaviao, were victualled for 8 weeks, it was not necessary to use any of her provisions for them; and whatever was used of the cabin stores, or live stock killed, it was by the direction of the Portuguese Captain. do not recollect admitting in my evidence that any of the stock was used by myself, or the Men under my charge, excepting 1 pig, which I sent on board the Constantia, to Mr. Elliot, the day we sailed from Fernando Po, and which I stated to the Court; nor was I ever called upon to say what I thought the Cargo worth, or indeed asked any question about the Vessel, until 2 months after she had been delivered up to the Portuguese: it was then the Portuguese Captain presented his claim for damages, with an inventory of the goods he said were missing, the most part of which I considered to be false, and gave my evidence accordingly; many of the articles mentioned were not on board the Vessel at the time of Capture, I am positive.

It was during the trial of the Gaviao that 1 expressed a wish to be called upon to give my evidence, I think, to Mr. Woods, the Registrar, who told me that he thought it would be of little service, as all the Portuguese had sworn so positively; and as to the People (Portuguese) who came in the Thistle, and those in the Gaviao, they were permitted to mix together as they pleased; and, as an idea of the evidence the Portuguese Captain gave, Mr. Altavilla, the Commissioner, told me he believed he was a great rascal, and that he would represent him to his Government as such.

There was an anchor and about 30 fathoms of grass cable lost during a tornado at Sierra Leone; the anchor was much worn, might

1

« ՆախորդըՇարունակել »