Scottish Court of Session Decisions

Subject_1 PRIZE.

The Owners of the Ship called the K David,
v.
Donaldson

Date: 27 February 1673
Case No. No 26.

Found that a ship taken in return, after carrying contraband, was not prize.

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Captain Donaldson having taken and adjudged the ship called the K. David, the master raises reduction; the grounds of adjudication insisted on were that this ship having loosed from Trallsound in May, after the war was known, had not aboard a sufficient pass, not only defective of the formula required by the Swedish treaty, but in the necessary requisites of a pass during war, viz. The oath of the skipper or owners, which is most necessary in the time of war; but here there was only a certificate from the town of Trallsound, without the oath, relating mainly to give the ship freedom at the Sound as a Swedish ship. 2do, The ship was loaden with malt and other victual for Amsterdam, which she did disload there, and was taken as she came out. And, by the Swedish treaty, in anno 1661, and 1664, albeit pitch and tar being excepted from contraband, being the chief product of that country, yet victual is expressly enumerated amongst contraband in these treaties; and the Lords found, in the last war, that contraband makes prize, not only when it is actually found aboard, but when the ship is seized in the return of the same voyage, wherein she carried contraband to the enemy; and which is upon surer ground than when she is seized before she go to the enemy's port, when she can but have a design to partake with the enemy, which is far less then having actually assisted them with victual for the war. And albeit the law of nations, for the common good, hath not continued that fault of participation with the enemy longer than the return of that voyage; yet there is pregnant reason, that that delinquency against amity should make the ship and goods prize, when so recently found in the return. It was answered for the strangers, That the want of a pass, conform to the treaty, was no cause of confiscation, but only of search. And to the second, it was answered, 1mo, That contraband is no cause of prize, but where it is actually found aboard. 2do, That after the Swedish treaty in 1664, the Swedes are comprehended in the treaty of Breda, in anno 1667, by which it is declared, That victual shall be no contraband, except when it is carried to cities besieged, and that it only confiscates itself when taken. It was replied, That the treaty of Breda was only betwixt the King, the French, Dutch, and Danes, who have three distinct treaties at that time; in all which, the Swedes, as mediators of the peace, are comprehended, to have the benefit of the treaty, and so are all other allies who should claim the benefit within six months after the treaty; so that the treaty being broken, and become void as to the King and Dutch, the principal parties, it cannot stand as to the Swedes, or other accessories. Upon which account, the Lords have, by their letter to the Lord Secretary, desired to know the King's mind, whether he looks upon that treaty as effectual to the Hans towns, who took the benefit of it.

The Lords found, That the ship not having a pass upon oath, it was a just cause of seizure, but would not thereupon declare her prize, if the strangers could prove the property of ship and goods did belong to Swedes by documents and witnesses above exception; but superceded to give answer whether the Swedes had the benefit of the treaty at Breda, till the conclusion of the cause, that a return might be had from the King.

July 24.

The ship called the King David, determined the 27th of February last, wherein commission was granted for clearing of the property of the ship and goods, which the strangers having proved to belong to freemen, and the Lords having superceded to give answer, whether victual carried to Holland by the Swedes was contraband, and if the ship taken in the return of that voyage having carried in contraband was thereby prize; the captain did represent by bill, that by instructions lately come from the King, it was now cleared, that victual carried to Holland by the Swedes is contraband; and it hath been already decided by the Lords, in the case of Parkman against Allan, No 7. p. 11865, determined in the former war, that a ship taken in her return after she carried in contraband to the enemies was thereby prize.

The Lords having considered the 11th article of the Swedish treaty, anna 1661, found, That contraband became only prize itself, si deprehendatur, and therefore being taken in the return after contraband, could not be a cause of confiscation by that treaty, but had no occasion to determine whether corn carried to Holland by Swedes was contraband or not.

Stair, v. 2. p. 180. & 220.