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![handle is hein.slavery/ssactsengr0408 and id is 1 raw text is: THE WILLIAM
intention was to confer the appointment in the fullest extent to which he was
competent.
Then comes the second question, whether Captain Harvey had the power of making
the appointment, so as to convey an interest under the proclamation ? Some
circumstances have been thrown in as auxiliary to this demand, as that there is a
sort of courtesy in the navy, which countenances the practice ; but that will not be
sufficient to control the terms of the proclamation, and the construction which
properly belongs to them.
It is said also that the Lords of the Admiralty have allowed the pay, which
may signify their approbation of the services of this gentleman. But it appears
that this is a discretion which is exercised on occasions of this kind with various
result, sometimes allowing such payment, and sometimes withholding it. If there
is any instance in which it is refused, it shews that it is to be deemed an act merely
of liberal consideration, in the case where it is granted. It may be observed also,
that there are no adverse interests to be affected by an allowance of that nature.
It rests entirely between the individual and the public, where the Lord High Admiral,
repre-[315]-senting the public, may be authorised to exercise a more extended
liberality in rewarding particular services, at the same time that such approbation
would be very improperly made the test, or foundation, of a legal demand.
It is argued, that a person under this appointment would be subject to a court-
martial for neglecting the duties of the office. The necessities of the service may
render him liable to such orders, and amenable to the ordinary jurisdiction, in
case of disobedience. But that he becomes liable as a lieutenant, is not I think an
accurate description. It is begging the question to state it in that manner ; because
to be liable to be tried as a lieutenant, he should be liable to be punished as a lieutenant,
that is, to be broken as a lieutenant, which in fact he could not be, since he was not
a lieutenant, and is not a lieutenant at this moment. That plea therefore will not
avail. It is then said, that he messed as a lieutenant. But even that privilege,
were its importance much greater than it is, appears by one of the affidavits to have
been granted to him as a guest, and in the way of accommodation, rather than as a
person contributing his proportion as matter of right, and under the ordinary regula-
tions of the service. That he was borne on the books, and put on the prize lists,
are acts of Captain Harvey only, and though they are strongly indicative of the
opinion which that gentleman entertained of Mr. Whiteway's situation, and of his
disposition to serve him, they can have but little effect in ascertaining his legal
character.
Under a consideration of all the circumstances set forth in the act, I do not
conceive that I am warranted to pronounce that Mr. Whiteway was appointed a
sea lieutenant, so as to be entitled to share in that character under the proclamation.
[316] THE WILLIAM -(Hastie, Master). Dec. 17, 1806.-Damage against the
captor, owing to a defect of due diligence, in not having taken a pilot on board, &c.
-Restitution in value.
[Referred to, The Oscar II [1919] P. 173, affirmed [1920] A.C. 748 ; The Bernisse
[19201 P. 7, affirmed [1921] 1 A. C. 458; The Cairnsmore [1920] P. 211 ;
The Cairnsmore [1921] 1 A.C. 441. See also The Oscar II and other
ships, [1921] P. 173.
This was a case of a demand for restitution in value, for a ship and cargo lost
in going into Guernsey, owing to a want of due skill in the prize-master, who had
refused to take a pilot on board. As it was a question depending in great measure
on points of nautical skill and experience, the Court was attended by two gentlemen
from the Trinity House. On the opening of the case-
The Court observed-Gentlemen, I will, in this stage of the case, take the liberty
of stating to you the principles of law which govern cases of this description. When
a capture is not justifiable, the captor is answerable for every damage. But in
this case the original seizure has been justified by the condemnation of part of
the cargo. It is therefore to be considered as a justifiable seizure, in which all
that the law requires of the captor is, that he should be held responsible for due
diligence. But on questions of this kind there is one position sometimes advanced,
which does not meet with my entire assent, namely, that captors are answerable
only for such care, as they would take of their own property. This, I think, is
6 C. ROB. 315.](ViewImageLocal?handle=hein.slavery/ssactsengr0408&div=1&collection=&method=preview&ext=.png&size=3)