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![handle is hein.slavery/ssactsengr0503 and id is 1 raw text is: THE NEW PH(ENIX
troubling the governor. How is this consistent with the supposition that the son
had shipped them, or used them in that character in the former part of the voyage,
even in the apprehension of the claimant herself ? I think this pretence is completely
refuted by the act of the parties.
Then as to documents. It is not pretended that any certificate of registration
had been obtained ; but it is said there was no Custom House, and [419] a subsequent
Act has provided for such cases.* But it has required certain substitutes, and they
also are wanting ; and it is said also there were no means of obtaining these certifi-
cates. If that were so, I am not prepared to say that the parties were thereby
remitted to their natural liberty, and freed from the obligation of observing the
general prohibition of the statute. I think, on the contrary, that the parties are
bound to observe the general provisions of the Act, if particular circumstances
prevent them from availing themselves of all the exceptions that might be applicable
to their case. In the present case I think there is no excuse for that plea ; for I
am persuaded the party never thought of using these slaves as attendants on his
person. That was a mere nominal pretence, and not resorted to till after the offence
had been committed. I feel myself, therefore, to be under the necessity of rejecting
the claim, and of condemning these slaves. As the case is under peculiar circum-
stances, and there is some reason to impute the contraventions of the Act to ignorance
rather than to design ; and as it was brought here to try the law, I shall not throw
the costs on the claimant.
Slaves condemned.
[420] NEW PHcENix -(Barton). November 13, 1832.-Loss, arising from the
gross negligence of a mariner, may be set off against a claim for wages.
This was a claim for wages, amounting to £8, 19s. 9d., at the suit of Joseph
Witted, the second mate of a vessel employed in the West India trade. The sum-
mary petition, after the usual averments, referred to the ground on which payment
had been refused, and described the ground of refusal as occasioned by an accident
abroad, arising from the breaking of a rope, while in the act of lowering down a
hogshead of sugar, in Jacks Bay, Annatto Bay, from the wharf, owing to which it
fell overboard, and was damaged : it was further asserted, that the accident happened
in the presence and under the superintendence of the wharfinger. For the owners
an allegation was offered, denying that the wharfinger was present, and pleading
that it was the custom of the trade that the wharfinger should be answerable for
losses happening to the sugars in shipping under his care. The allegation charged
the loss as arising from the gross negligence of the mate, in proceeding to take the
sugar on board in the absence of the wharfinger, and without due attention to the
working of the crane,t by which the damage [421] was said to have occurred. It
further pleaded, that from the loss so accruing to the owners of the cargo, a deduction
of freight had ensued, which the shipowners were entitled to set off against the
wages. The allegation also contained a charge of misconduct, in lading the sugars
at an improper time in the evening, although the boat could not safely have ventured
to get out of the bay till the next morning. This latter averment was opposed as
irrelevant, and the Court eventually directed it to be expunged.
The King's Advocate, for the mate, did not deny that compensation might be
claimed for loss occasioned by gross misconduct or negligence ; but he argued, that
the loss, in this case, was owing to a mere accident, which happened in the presence
of the wharfinger.
Addams, for the owners, denied the truth of the mate's statement, and contended
that he was liable for the loss to the amount of his wages, on the known principles
* 9 G. IV, c. 82, s. 2. See infra, The Slave, Duncan, pp. 435, 436.
t The plea was to this effect: That Witted and others, by his desire, lifted the
hogshead by heaving on the crane; that Witted having cried ' High enough,' and
shoved the hogshead clear of the wharf, called out ' Lower,' when a man took hold
of a rope, used as a stopper for the said crane in lowering goods, and let go the wheel,
when the stopper rope, not having been made fast at the other end, gave way, and
the wheel running round with great velocity, precipitated the hogshead upon the
deck of the boat, and thence into the sea.
E. & A. vI.-10*
2 HAGG. 419.](ViewImageLocal?handle=hein.slavery/ssactsengr0503&div=1&collection=&method=preview&ext=.png&size=3)