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![handle is hein.slavery/ssactsengr0431 and id is 1 raw text is: THE ELIZABETH
yet to learn that an American ship, laden with supplies of provisions for Cadiz,
might not have found her way there without any British licence. Cadiz, a besieged
city, was in Spanish possession, and under Spanish administration, though assisted
in the defence by English auxiliaries. America had no quarrel with Spain, and
would find there, in that state of privation, an excellent market for her own products
of that species ; and I cannot suppose that those English auxiliaries would be at
all forward to molest the vessels which brought them there for Spanish and British.
consumption. I am the more inclined to think so, because I see the protest, made
immediately upon the return to America, avows without reserve the sailing from
Cadiz. If the necessity of a British licence to enable an American ship to go to
Cadiz was so evident in itself, how comes it to be avowed upon this protest, without
any fear of drawing the notice of the American authorities, and all the penal venge-
ance of their law, which is said to have been provided for such disloyal transactions ?
Upon the argument of probabilities applying to conduct, I had already occasion
to observe upon [401] the gross improbability of the captors having any disposition,
upon any ground whatever, to destroy a licensed vessel, known by them to be such.
For the conduct of the other parties, folly and obstinacy furnish a sufficient solution ;
but if it were necessary to go at all further, one solution occurs, which, if not real, is
at least not unnatural. Here was a ship in a state of most menacing distress ; her
people had unanimously felt the absolute necessity of making for the nearest port.
Baffled in that attempt by a head-wind, they are obliged, in a most crippled state, to
resume their course for the distant port of Charleston. They fortunately meet the
Endymion, and though the carpenter of Endymion patches up a leak as well
as he could in a short space of time, in boisterous weather, and in a loaded ship, yet
that they should feel anything rather than an inclination to conimit their lives in
this crazy vessel to the perils of such a voyage, after all they had already suffered
and apprehended, the weather growing more boisterous and threatening, is not at
all improbable. It must appear a most fortunate escape from a situation, dolorous
and dangerous in the extreme, to a state of safety and comfort on board such a ship
as the Endymion. They could have no apprehension of being detained as
prisoners of war, because they could not but know that the moment they produced
their licence they would receive all the kind treatment they afterwards actually
experienced. The return they make for this kind treatment is this ; after being
sent safely home, being taken to task by their owners for the desertion of their ship
and cargo, they trump up [402] this history of spoliation. The master is either
too honest or too modest to support it. The supercargo, a man of firmer nerves,
marches up to it, but unfortunately gives his account in a way that totally destroys
its credibility.
Proposing this solution conjecturally, I say no more of it, than that it furnishes
an explanation of many circumstances, that appear otherwise unintelligible. But
I am not compelled to resort to any solution of the facts, provided I am satisfied of
their reality. The important question of fact is, did these persons hold out this
ship as an unprotected ship, and thereby authorise Captain Hope to deal with her
as an enemy, till after the act of destruction was beyond prevention or remedy ?
I am of opinion that it is clearly proved that they did so, and I therefore assoil the
captor of all responsibility, and condemn the claimant in the costs of this proceeding.
[403] ELIZABETH -(Gull). Dec. 10, 1819.-By the general rule, a master is not
at liberty to discharge his crew in a foreign port, without their own consent, but
circumstances may vest in him an authority to do so, upon proper conditions.
[Referred to, The Olympic, [1913] P. 99; Horlock v. Beal, [1921] 1 A. C. 502.]
This was a suit brought by Henry Brokershaw, a seaman, for wages earned on
board this brig, which sailed from the port of London to St. Petersburg, and took
in a cargo of deals and hemp there, and was proceeding on her voyage home, when,
on the 26th of September 1818, she went on shore, on a reef of rocks, near the island
of Gothland : assistance was immediately rendered to the brig by the Swedish
Diving Company, belonging to that island, who employed other persons as well as
the crew in unloading the cargo and getting the brig off the rocks, which they effected
and carried her to Ostergam, where she was laid on shore for the purpose of being
examined. In consequence of the damage she had sustained, the brig again filled
with water and suffered further material injury, so as to make her incapable of
1527
2 DODS. 401.](ViewImageLocal?handle=hein.slavery/ssactsengr0431&div=1&collection=&method=preview&ext=.png&size=3)