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![handle is hein.slavery/ssactsengr0481 and id is 1 raw text is: THE AVISO
Yarmouth, was run down by the Betsey Caines. In the protest by the foreign
master (attested by two of his seamen), it was stated, that he saw a large brig
(the Betsey Caines ) running before the wind towards. them ; that he hoisted a
lantern and repeatedly hailed her ; but that she continued her course, ran foul of
the smack ' Minerva,' and sank her. The owners of the Minerva brought a
suit for the collision, and annexed a copy of this protest to the third article of their
libel. The fourth pleaded, that the smack was of 48 tons burden, of the value of
£500, and that at the time of the collision she had a cargo of fish worth £100, and
other effects on board worth £75 ; that the owners sustained a further loss of £50, as
she could not complete the salvage ; and that it had been agreed between the two
smacks that £50 should be given to the 'Minerva,' as being the first employed;
but that as the ' Flora ' singly [29] completed the service, this was a set-off, and the
two smacks having shared equally, the ' Minerva' was, by being run down, deprived
of the benefit of the agreement.
Jenner and Pickard objected to these articles of the libel. The protest is quite
inadmissible ; it is res inter alios acta : and there is no instance in which this Court
has enquired into consequential damage.
Lushington and Dodson contra.-Unless the protest is allowed, we shall be en-
tirely deprived of any evidence from the master and seamen of the foreign ship : we
could not detain them for examination. The Minerva, at the time she was run down,
had performed one day's service, and was in the act of earning the sum alleged, which
has been called consequential damage, but which may be regarded as quasi freight.
Judgment-Lord Stowell: This has been a very unfortunate adventure. The
smack was performing a very useful service to a foreign vessel, and in the performance
of that service was run down and destroyed. If the effect of that collision had been
to destroy the persons on board the smack, it would be a reason for admitting evi-
dence not strictly and technically legal ; but none of the crew were lost ; all survived,
all are capable of being witnesses. A case of necessity then does not exist, such as
might induce the Court to open a door for the admission of any evidence ; and since
it does not, I should be unwilling to allow a protest to be introduced that has been
properly described as res inter alios [30] acta : I therefore reject the protest, and the
article that pleads it.
There is less weight in the second objection. No authority has been mentioned
by which the Court might be induced to consider itself excluded from entertaining
a question of consequential damages ; and I cannot persuade myself that the juris-
diction is so limited in this respect as the argument would suggest. Besides, this is
not a mere claim for consequential and probable advantage only, for the smack
was actually in the pursuit of earning that which it had been stipulated she should
receive. I reject the third, but admit the fourth article of the libel.*
On 3d of July 1827, the Court, .assisted by Trinity Masters, pronounced, that
the owners of the Betsey Caines were entitled to be dismissed from the action.
[31] Aviso -(Da Silva). June 27, 1826.-The principles of joint capture in
prize cases apply to vessels associated in the capture of ships engaged in the
slave trade : therefore, where the actual capture was made by one of two vessels
associated for such purpose, the other, which had joined in the chase and ren-
dered subsequent assistance, held entitled to share in the bounty for the slaves,
and in the proceeds of the ship, stores, and cargo.
[Adopted, The Sociedade Feliz, 1842, 1 W. Rob. 306.]
This ship, under Brazilian colours, and laden with four hundred slaves, was
captured on the 26th of September 1824, by H.M.S. Maidstone, Capt. Bullen, in
company with H.M.S. Bann, Capt. Courtenay, and was condemned at Sierra
* In The Yorkshireman, Forman, May 15th, 1827, a case of collision, in which
it was alleged that a fishing smack was run foul of by the steamboat while the smack
was on a voyage from London to Norway to receive a cargo of lobsters, and that
from her damage it became necessary to hire another smack for that purpose ; the
Court (having condemned the owners of the Yorkshireman in the amount of
repairs, and in costs), after argument, directed a reference to the registrar and mer-
chants to report the amount of freight paid to the vessel substituted for the fishing
smack, in order that the same might be allowed as consequential damage.
2 HAGG. 29.](ViewImageLocal?handle=hein.slavery/ssactsengr0481&div=1&collection=&method=preview&ext=.png&size=3)