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![handle is hein.slavery/ssactsengr0464 and id is 1 raw text is: upon time and circumstances. In order to ascertain that point, it must be remem-
bered that Carter, the pilot, and all the witnesses on board the Fenix, say that
there was not time or space so to do ; and Major Priestley, who was on board the
Mobile, is of that opinion also. Now, of course, this question mainly depends on
[74] the distance the ships were from each other when the Fenix, it is said, ought
to have ported-whether the time, according to the pilot and Major Priestley, was
sufficient for a brig of 290 tons, close hauled on the starboard tack, to have gone
about. Then, again, whether the people on board the Fenix could have heard
the hailing-or whether they could have seen that the helm of the Mobile was
ported. It is one thing for the people on board the Mobile to have ported their
helm, and another thing for those on board the Fenix to have seen from the
alteration of the vessel's course that this had been done.
Dr. Addams: Will the Court suggest whether it was not the duty of those on
board the Fenix, in order to avoid this collision, to have taken some steps even
before they were hailed at all ?
The Court and the Elder Brethren having retired for consultation,-on their
return,
Dr. Lushington said: The Trinity Masters are of opinion-and I entirely concur
therein-First, that the second mate was to blame for not having in time adopted
measures to avoid all risk of collision with either the schooner or the Fenix.
Secondly, that when the pilot came on deck it was too late to take any safe measures.
Thirdly, that no blame attaches to the Fenix in any respect whatever; and
that it was not safe for her to have altered her course at any period of this transaction.
Decree accordingly.
Rothery, proctor for the Fenix.
F. Clarkson for the Mobile.
[75] THF BRAZIL -(J. M. Henriques, Master). December 4, 5, 1855.-Slaver
-Association-Joint capture.-In questions of joint capture, the onus probandi
is on the claimant, and in favour of the actual captor. The rule, that no claim
for joint capture can be' established on the sole evidence of the crew claiming,
is not so strict in slave cases as in prize of war. It appearing in the evidence
that the surrender of the slaver took place before she was seen by the vessel
claiming ; such claim of joint capture held not to be established.
This was a question of joint capture of a slaver on the African coast promoted
by the commander of H.M. steam sloop Niger, against H.M. steam-vessel
Jackal the actual captor, and H.M. steam frigate Gladiator, whose captain
was the senior officer of the division stationed in the Bights of Benin.
The allegation on behalf of the Niger stated, that the Jackal was attached
as a tender to the Gladiator and manned from that vessel, and was frequently
detached, cruising for and capturing vessels engaged in the slave trade. That, in
November, 1850, the Niger and Jackal were cruising in the Bights of Benin,
being there stationed, and associated for a common purpose, namely, the suppression
of the traffic in slaves ; the Niger 'having been directed to cruise from Lagos to
Jaboo, and the Jackal from Lagos to Benin, the Niger's station being entirely
included in that of the Jackal. That, at about 2.24 P.M. of 2nd November 1850,
a strange sail, which turned out to be the Brazil, was seen and reported from
the mast head of the Niger, bearing about N. I W. at which time the .Niger
had her head to the eastward, with a light breeze from the northward; whereupon
her foretopsail was hoisted and foresail set for the purpose of wearing the ship and
proceeding in chase; that shortly afterwards a steam-vessel, namely, the Jackal,
was seen, as if in chase of the said schooner, and in like manner reported: thereupon
the Niger's foretop-gallant sail and royal were set. That at this time it had been
made out from on board the Niger that the schooner was becalmed with her head
to the westward, and that the Jackal was bearing down on her starboard beam
from the northward, and shortly afterwards that the Jackal had closed the
schooner; that the Jackal was then perceived from the Niger going round
the schooner in different directions, which she did for about a quarter of an hour,
and then bearing up towards the Niger, as also did almost immediately after-
wards the Brazil. That in the meantime, the Niger had set up the rigging of
her maintopmast, [76] which had been struck for the purpose of examining the
THE 4 BRAZIL
SWAB. 74.
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