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![handle is hein.slavery/ssactsengr0467 and id is 1 raw text is: is the alleged concealment of the accident. I certainly am of opinion, that in all
cases of this description the proper course is to give information to the agent for
Lloyd's. It is the safest course for the master, the most prudent as relates to the owner,
and the most just to the underwriters. This omission is proved ; but it has not been
contended, and it never could be gravely maintained, that such a circumstance could
affect the question of wages. As to the charge of concealment from the owner, I
am of opinion that it fails equally in law and in fact. I am also of opinion that the
charge of intoxication is not proved.
I now approach the last head, and perhaps it is the most singular averment in
opposition to a claim for wages that ever found its way into the proceedings of this
Court-improper refusal to sign a bottomry bond. The master denies the charge,
and says that no bond was presented to him ; but let me see how the fact stands
upon the other evidence. What proof is there that any bottomry bond was ever
presented to him for signature? What evidence is there as to the terms and conditions
of the bond ? True it is that the master was authorised [316] by his owner to sign a
bottomry bond, but upon what terms and upon what conditions the Court is left in
total ignorance ; and, looking at the whole transaction of this case, it is utterly
impossible to come to a conclusion that the master can be convicted of culpability
for not having signed a bond. On the other hand, there appears to have been
practised towards him a species of coercion that the Court cannot but reprobate ; he
was arrested and thrown into prison for the debts of the ship ; there is no evidence
whatever of the original instructions to the master, none that any credit was open
to him for the necessary wants of the ship when he arrived at Launceston ; and I
must add, that there are strong grounds for believing that after the ship arrived in
this country the bottomry bondholder and the owner colluded together to defeat his
claim for wages. But whether this be so or not, it is not necessary to pronounce any
opinion upon the subject ; I am of opinion that the charge of improperly refusing
to sign a bottomry bond is not sustained by the evidence.
The conclusions I draw are the following : that all the charges are unfounded in
law and unsustained by proof. I am therefore of opinion that, up to the time when
the master was dispossessed from the vessel, he was clearly entitled to wages under the
original contract. The question then arises, whether he was lawfully dispossessed
of the command, and whether his claim to wages then ceased ? And what is the
admitted fact ? Be the charges what they might,-instead of resorting to the tribunals
of the country where the ship lay, and causing justice to be duly administered,-in
the dead of the night by force of arms, the master was ejected from the vessel. Against
such an outrage this Court is bound to express its protest, for there was not a shadow
of necessity to justify such proceedings. I hold, therefore, that the master was
illegally dispossessed of his command, and that all his rights under the contract
remain unaffected by proceedings so utterly unjustifiable. Then as to the remedy.
In strictness the master would be entitled to wages up to the termination of the con-
tract, but he has claimed them only up to that period when he obtained employment.
I pronounce for his claim, and with costs.
Brooks, proctor for the master.
Fox, Nicholl and Fox for the owner.
[317] IN THE PRIVY COUNCIL.
Present-The Judge of the High Court of Admiralty.
The Lord Justice Knight Bruce.
The Right Hon. T. Pemberton Leigh.
The Lord Justice Turner.
THE NEWPORT -(Hocquard, Master). February 3, 1858.-Slave trade-
Forfeiture and penalties-5 Geo. IV, c. 113, ss. 4, 7-Proceedings in Vice-
Admiralty Court and in Court of Appeal-Onus probandi-Costs and damages.-
In a cause of appeal from the sentence of a Vice-Admiralty Court, decreeing
forfeiture of a ship and penalties on the shippers under 5 Geo. IV, c. 113, the
captors, to support the condemnation of the ship, must prove that the owners
of the ship knowingly and wilfully employed the ship in contravention of the
Act ; and, to support the decree for penalties against the shippers, must prove
that they knowingly and wilfully shipped the goods on board the ship to be so
THE NEWPORT
1154
SWAB. 316.](ViewImageLocal?handle=hein.slavery/ssactsengr0467&div=1&collection=&method=preview&ext=.png&size=3)