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![handle is hein.slavery/ssactsengr0486 and id is 1 raw text is: THE SYLVAN
the cause of the accident is justly chargeable with the loss of this vessel, according
to the rules of navigation which ought to have guided them. It is with great satis-
faction that the Court can refer to gentlemen of your experience upon these
points.
The Trinity Masters expressed their opinion-that the loss was occasioned by
accident, imputable chiefly to the improper movement of the Dart; and in no
degree owing to the misconduct of the Catherine.
Court.-I adopt this opinion with perfect satisfaction ; and as costs must have
accompanied an award of damages, it is equitable that the defendant, in being
dismissed from this suit, should be protected from the expenses he has incurred.
[155] SYLVAN -(Bell). April 22, 1828.-In a cause of collision, the Court
will, preparatory to a decree of sale, sign a primum decretum on an affidavit of
a perishable condition.
This was a case of damage by collision, in which the Sylvan has been arrested
in an action entered at £10,000 ; and no appearance having been given on the part
of her owners, the Court was now moved, preparatory to a decree of sale, to sign the
primurn decretum on an affidavit that the ship was in a perishable condition.
Court.-There is, I believe, no instance of such a decree in a case of collision
but it does not aplear to me objectionable in principle : the process of the Court
naturally leads to such a result, when it becomes necessary, in this class of cases
as well as in others. The affidavit has been sworn in Scotland before a Commis-
sioner for taking bail in prize causes : this is irregular ; since it has been usual to
require such affidavits to be made here, or to be taken upon commission. Upon
this informality being removed, by a fresh affidavit, I shall direct this motion
to pass.
Motion granted.
[156] SIR FRANCIS BURTON -(Hare). April 22, 1828.-In a cause of mixed
military and civil salvage against the owners, the Court is unwilling, though
no bail has been given, to disturb a valuation, not clearly excessive, made under
a reference on the spot to three arbitrators chosen by the salvors and consignees
of the vessel.
This English vessel in the port of Sagua, in the island of Cuba, was attacked by
pirates: a conflict ensued, in which they were driven off; but the master was
severely wounded, and the next day he was carried up to Sagua. The ship was
attacked again and plundered by the pirates. In that state, deserted by her crew,
she was found by the boats of H.M.S. Espiegle (Yates, commander), which, with
26 men, came to her assistance. They brought back the crew, recovered the sails,
refitted the vessel, and at the request of the master (still apprehensive of the pirates),
convoyed the ship eighty miles to a place of safety. The crew were employed in
these services about fifteen days.
On a claim for salvage at the Havannah, the consignees of the vessel had consented
to submit the claim to the arbitration of three persons, one of whom was the agent
of Lloyd's at that port. The ship was valued at £780, and the arbitrators gave
one-third. It appeared afterwards that the ship had incurred such heavy expenses
that there were no means of paying the salvage ; and the consignees gave up the
papers to the salvors and referred them to the owners of the brig in London.
They were accordingly cited to shew cause why the salvage awarded should not
be pronounced due to the commander and the rest of the officers and crew of the
Espiegle, and they appeared to the monition.
[157] Phillimore for the owners.-The appraisement is beyond the real value,
and the allotment of salvage is excessive. The vessel was not worth more at the
Havannah than £400 ; £700 had been laid out upon her there, and she is now to be
sold for £600. To a king's ship one-third is an extravagant rate of salvage, when,
for war salvage, one-eighth only would have been allotted.
Lushington, contra.
In The Betsey, Winpenny, 5 C. Rob. 295, this Court refused to reduce
the estimate on which the ship had been taken out of the possession of the
salvor on bail. The owners are not now competent to dispute the appraisement;
E. & A. vI.-7*
2 KAGG. 155.](ViewImageLocal?handle=hein.slavery/ssactsengr0486&div=1&collection=&method=preview&ext=.png&size=3)