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Scottish Court of Session Decisions >>
Sandilands v Clark and Walker. [1670] 2 Brn 490 (9 July 1670)
URL: http://www.bailii.org/scot/cases/ScotCS/1670/Brn020490-0819.html Cite as:
[1670] 2 Brn 490
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Sandilands v. Clark and Walker
Date: 9 July 1670
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This was a reduction of a decreet of the admiral, whereby the admiral had decerned this pursuer (as he who had bought the ship,) to pay 500 dollars as the fraught convened upon betwixt the skipper and Sandilands his author, of the ship to the skipper, upon this reason of iniquity, That albeit by the laws and customs of all Admiralty Courts in the world, omnia invecta in navem are tacite hypothecated to the skipper for his fraught, so that he has jus retentionis ratione tacitæ istius hypothecæ of the whole goods fraughted in the ship, that either he may detain them in the ship, or hinder them from being transported off the shore, till such time as he be paid of his fraught; but it is againt all law or reason for any man to think or say that he should have any real right of hypothecation in the ship itself, so that it shall not be leasum to the several owners of the ship to sell their parts of it till the skipper be first satisfied of the fraught, or if they do, that the ship is transmitted with the clog and burden of a hypothec for the fraught.
Answered,—That where the fraughter is a stranger, that has no interest in the ship, in that case indeed the skipper has only an hypothec in the goods that are in the ship, and not at all in the ship itself; but where he is not an extraneous party, but has an interest in the ship, (which is our case,) then, in all sense and reason, the ship, at least his part thereof, must stand engaged to the skipper for his fraught, and must be interpreted to be debitum reale; and so whoever comes in his right thereof, etsi transierit per mille manus, must be liable for it.
This was very hotly debated betwixt Sir George Lockhart and Sir John Cunyghame, who was for the reducer.
