Star.
London, England, 1801-07-16 00:00:00

Lire ilvertLLtultia

1 COW & OP KING'S BENCI4,IULY
SARIN° V..4IIIIIIIIIKELL.
(later!, that this was an aitiOn to re-
. .eover an average loft on a policy on the .fhip San
Pietro, laden with ;68 cants of currants, and
bound to the port of London. By the operation of
the common memorandum upon every policy ofl
infurance there could be no average lots, unlefs a
(hip Branded; but if there v, as a 'trending, the
condition of the engagement, on the part of the
affurers, to pay an average lots,' was concluded.
The .prefent cafe came before the court on admit-
, lions, and outhe evidence of the Captairiof the (rip,
as contained in his anfwers to interrogatories. It
appeared from fueh admifflons and evidence, that
the veffel arrived off Dover on the 2d of Novem-
ber laft, and came to her moorings on the r rth ;
that on the 18th and sgth the unloaded part
of her cargo, and on the zoth hawled out, and
proceeded to unload the remainder of her cargo
in the port of London; that corning up the Poot,
which was full of veffels, a brig ran foul of her
bow, and another of her Item, en confequence of
which the was driven aground, and continued in
that fituation an hour, during which period feve-
rat veffels ran foul of her. The only queltion was,
whether this was a (trending.? he did not mean to
contend that every touching the ground wa s a ftrand-
ing ; but if a (hip's taking the ground, from what-
ever caufe it might proceed, and remaining there
Tome time, was not to be fo confidered, he knew
not what a 'trending was. Was it neceffary a (hip
fhould be striven aground by the operation of the
wind ? The creel was precifely the fame, whether
the was grounded by the violence of the wind, or
by coming in contaa with another. Did the prin.
'ciple upon-which 'a (hip was to be deemed to have
Branded depend spoil the'naturt of the ground on
which flie•refted, the means by which the was raft
there, or the length of time the remained in that
fituation ? He maintained, that a veffel (hiking the
ground, and (Licking there, was to all intents and
purpofes a (trending.
• The fees of the cafe were taken for granted.
Mr. EessittE obferved, that underwriters had
wifely adopted the memorandum upon all policies
of infurance for their fecurity, and were by its
operation freed from the liability 'to indemnify
the allured, except in the cafe of a general average
lots, or a !hip having (trended: The fituation of
.underwriters would be precarious indeed, if tuck
an accident as had happened to the fbip in queftion
could lie confidered as a banding. He doubted
not but that many of the Jury had been on an
aquatic excurfion down the river, and had flopped
at fome of the houfes on its banks to regale them-
felves with white bait: if they had, they mug have'
feen in pal Eng through the pool, numbers of fuchi
(trended veffels. How often did it happen, that,
(hips in the river, by going too near the one fide or
the otherovhen the tide was ebbing, were grounded,
and remained in that condition till the tide raifed
them up again? He called that to be a Branding,
when, in confequence of a tempeft, and to avoid
the danger of the teas, a veffel ran aground.—
No underwriter could be fate if the bare touching
the ground fubjeeed him to be called upon for an
average lots.
Lord Kenyon raid, he was not much acquaint-
ed with nautical terms ; but if he was afked whe-
ther this was a Branding? be fhould fay it was not.
The Jury found a verdia for the defendant.
ROWCRCIET AND ANOTHER V. PLACE.
Mr. ERSKINE Paid, this was an anion on a po-
licy by the owners of the (hip Emily, infured from
London to the South Seas, on a filling voyage,
with liberty to touch at any ports and places, as
well on this as on the other fide of Cape Horn, and
to take on board fuch goods as (he fhould make
prize of. The only queltion for the confederation
of the Jury was, Whether the was fee worthy at
the inception of the voyage, and in proof of the af-
firmative, it was not immaterial to Rate, that out
of 3o underwriters, only the Defendant and ano-
ther had refuted to pay the turns they had infured.
The veffel was French built, and had been pur-
chafed by the Plaintiffs, in the year 179 t, for near'
scoot. and, previous to the voyage inbred, under-
went a complete repair in Mr. Barnard's dock-
yard, under the immediate direaion of Mr. Tuck,
er, the fuperintendant of the !hipping of .the Eaft
India Company ; and the rum expended in fuch
repair amounted to taciol. ; fhe afterwards fet out
on one of the molt perilous and difaftrous voyages
poffible to be undertaken; (he failed in September,
1797, and there was no colour for her being deem-
ed otherwife than feaworthy till February, 1798,
when the made Statem Land, an Wand near Terra
del Fuego, having fprung steak in a tremendous gale
of wind ; (he afterwards proceeded to the main land
of Patagonia, where the had to contend with fear
and tempeils, in comparifon with which, the molt
violent of our Northern hemirphere were perfect
calms and gentle zephyrs; for twenty days Ile
beat up agamft a lee itiore, and, inftead of running
into port, which the wis unable to do without the
rifk of certain deftrußion, the was obliged to do
that which was Atfficient to pull the ftrongeft (hip
to pieces ; the Was compelled to make the open tea
with all the fail fbe could crowd to avoid the dan-
gers of a lee (Lore; the violence of the wind was
fuch, that (be had two mainfails fplit ; the confe-
ciente of fuch a profs of canvas was, that the (hip
was very much (trained ; the afterwards went to
the Gallapagos Mends, fituated near the Equator,
where, having previoufly enraged a Spanifh (hip'
for three hours, (be found ft impotible to proceed
on her voyage without being hove down, in order
to difcover and repair the damage the had fullain-
ed ; the was drawn on land, and immediately bilg-
ed, and became totally unferviceable ; !lie was
broke up, and it appeared that all her timbers
were found, though forne of thesron bolts had been'
corroded by the copper fheathing. It was now to
be contended, that t.le iron bolts ought to have
been replaced by new ones when the [hip was re-
paired, and that, in confequence of fuch °mann,
(be was unfeawo;thy at the commencement of the
voyage?
It was proved that the 114 had undergone a
thorough repair ;3nLs ce ssEtfland, and that the iron bolts
bad not been re by new ones, Waists they

had been deemed tufficient for the voyagi by the
Chip-builder.
The mate of the (hip flated from his journal the
eourfe and events of the voyage ; he attributed the
lots of the (hip to the ftrains the received by the
tempefluoufnefs of the weather with which the had
had to contend.
The Al-roam Caesium, for the Defendant,
intifted, that it was incumbent on the Plaintiff to
have had the iron bolts replaced by new ones, or
by copper bolts; and that for want of fuck pre-
caution, though the was perfealy repaired in other
refpees, the was not feaworthy for fo long and dan-
geroes a voyage.
He produced one of the Captains who had fur-
veyed the (hip at the Gallapagos, who was of opi-
nion, from the appearance of iron bolts after
the was broke up, that they could not have been
in a good condition when the (hip failed from
England.—Mr. ERSKINE replied.
Lord KENYON laid, the Plaintiff's right to reco-
ver was made out, unlefs his claim was repelled
by the (hip's not being feaworthy when the left
England. If (he was unworthy, he did not know
how a perfon infuring his (hip could ever be fafe ?
It would be impoffible for any man, whatever furn
of money he might expend in repairing his vette',
to obviate fuchlatein objeaioas as underwriters
might flan, in order avoid the .payment of the
infurance.—The Jury found a verdia for the Plain-
tiff, damages 3951.

ERRECHANT V. ■IRHEY.

Mr. Easaiwe Rated that this anion was brought
by a poor failor, to recover a fatisfadion in da-
mages for the brutal conduit of the Defendant,
who was his Captain. He was extremely forry to
be called upon to Rate filch a cafe of any being that
belonged to our common nature. Without any
provocation, he took an iron rod, nine feet long,
and knocked down the Plaintiff. After he was
down and infenfible, he Bruck him feveral blo*s.
and jumped upon him in the violence of his paffion.
In a cafe of this fort that was tried lately, when
his friend Mr. MIMGAY was for a Plaintiff, as he
was then for the Defendant, he made an obfcr-
vation which Mr. ERSKINE laid he felt exceeding.
ly when (landing in the &nation in which Mr.
MiNoar then flood for this Captain. He abed
as his friend had done in that cafe, what was it
that had railed the glory of our country fo high?
By procuring Brititla Sailors, fo different and fo
much fuperior to thofe of other nations. It was
becaufe they went out the protefted fubjets of a
free country; and that they were not to be irre
gularly beat and knocked about for the preferva•
tion of difripline, as this Plaintiff had been. His
Lordihip had never eefufed authority in any one
inftance to punifh perfons who had been guilty of
any tnifcondue, when they were brought fairly to
trial before their fuperiors. But without the (mall-
, ell provocation to beat and kick a free man in the
brutal manner that this Defendant beat and kicked
the Plaintiff, was not to be endured in any coun-
try that boated of its liberty,and where the rights
of its inhabitants were in the fmalleft degree at-
tended to. He was certain, if he made out this
cafe to the fatisfastion of the Jury by evidence, they
would give the Plaintiff exemplary damages, in
order to read a leffon to this Defendant, and others
in his &nation, that they were not to treat thofe
that were under them, and to whom they owed
protetion, in a manner in which no man of feeling
or humanity would treat the loweß of the brute
creation. _ _

24r.ktunav leading Connfel for the Defen-
dant, Isere Rated, that his defence to this A.Etion
was a rekafe that had.been figned by the Pliintiff.
His candour and honourable feelings induced him
to admit that it was a hard cafe on the part of this
poor Plaintiff; but his duty to his Client induced
him to infra on the releafe, unlefs his Friends on
the other fide could impeach it.
Mr. Easel*: attempted, by the evidence of a
Jew, of the- name of Moles, to fhew that this m-
ien& had been fraudulently obtained from the
Plaintiff, but without fuccefs ; in oorifequence of
which he was nonfuited.