Scottish Court of Session Decisions

Subject_1 EXERCITOR.

James Scrimgeour and Son
v.
Messrs William Alexander and Sons

Date: 2 March 1769
Case No. No 4.

The freighters of a ship, at whose desire the master had undertaken a voyage to a different country from that at first agreed on, were found liable to the owners in damages.

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William Alexander and Sons having freighted a vessel from James Scrimgeour and Son merchants in Borrowstounness, for Grenada in the West Indies, it happened, that, by the time of her arrival there, the whole sugars in the island had already been put on board other ships, and that none was to be had for her loading. In this emergency, by the advice of Messrs Alexanders’ correspondent, the master sailed for Cape Fear, in North Carolina, in order take in a cargo of tar; but was for some time detained by the disturbances which had happened upon occasion of the stamp-act.

In a reduction of a decree of the Judge of the High Court of Admiralty, finding the freighters not liable in demurrage, on account of that detention, it was pleaded for the owners, That, whatever powers of administration the master might have in the course of a voyage, authorised by them, he was not entitled to alter the destination of the ship, more than he would be to navigate her all over the globe, without their knowledge or consent. That, by presuming to change the voyage fixed by charter-party, he brought upon himself the risk of every damage, how accidental soever, the ship might sustain in the course of that deviation; but that he had taken care to avoid this obligation, and thrown it upon the defenders, by taking their correspondent bound “to come between him and all damages whatever, in consequence of going to Carolina.”

Answered for the defenders; The powers of masters of ships are ascertained, not by statute, but by the common law of merchants. They are entitled to freight the ship in foreign parts without orders; to borrow money for her use; nay, even to impignorate her for payment of it.: Laws of Oleron, art. 1. Laws of Wisby, art. 35. By the civil law, the master was considered as coming in place of the owners, who were bound by his contract. And, by the practice of modern nations, the powers of the master are still more extensive; Voet, de exercit act. num. 3.

As, therefore, the deviation in the present case exceeded not the master's power, so it was a well judged measure; and unforeseen accidents cannot alter the established rule, that the ship must bear her own loss, and the proprietor of the cargo his: See Ordonn. de Louis XIV. tit. Charter-parties, art. 8.

Neither is the obligation granted by the defenders' correspondent in the Grenades sufficient to put this case out of the common rule. “Arrests, restraints, and detainments of all kings, princes, and people,” are part of the dangers expressly provided against by a policy of insurance; but this obligation, being destitute of the necessary solemnities, cannot be equivalent to a policy. The only meaning of it was, to make the master easy by promising to indemnify him, in case the run to Cape Fear should be found to have been an irrational or improper step.

The Lords found, ‘That the master had no power to alter the destination of the ship, or undertake a new voyage; and, therefore, found the defenders liable for the delay which happened in consequence of the run to Carolina.’

Act. Lockhart, Solicitor Dundas. Alt. Maclaurin, W. Craig. Fol. Dic. v. 3. p. 194. Fac. Col. No 93. p. 172.