Navigating the Lower Saint Lawrence in the 19th Century.
Quebec Gazette #2890 25/03/1819 Page 2, Col. 1T. | ||
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| CASE OF THE SHIP DAEDALUS. | ||
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This was a case promoted and prosecuted in His Majesty's High
Court of Admiralty in England, by Messrs. McGhie, Bentson & Co.,
acting for Messrs. White & Languedoc of Quebec, merchants, for
the recovery of a sum of £824 sterling, alleged to be due to them
on a bond of bottomry of the ship, executed and passed before
Archibald Campbell, Notary Public, at Quebec aforesaid, in
November 1817, and payment whereof had been objected to, on the
ground that under the Act 6. Geo. I. C.18, &c. "It is not
competent to or for any partnership to lend money on bottomry,"
and that the validity of the said bond became in consequence
questionable. The following decision being replete with information on this point, which may not be altogether unacceptable to the Canadian merchant, I have thought fit to transcribe the same verbatim from the London Courier. Quebec, 22nd March 1819. |
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| COURT OF ADMIRALTY, Friday Dec. 11th, 1818. | ||
| Sir William Scott proceeded to give sentence on this case, which was argued last term. He regretted that through some misapprehension of his own, judgement had been so long deferred. This case arose out of a bottomry bond, given and dated at Quebec in Canada, in November, 1817. The Daedalus being then in that port, destined for London, with a cargo of lumber, and the master not having sufficient means for the purchase of provisions, stores and necessaries, borrowed of Messrs. White and Languedoc, merchants, of Quebec, the sum of £639 4s British, for which he gave the bond in question on the adventure together with maritime interest for the same. By way of security for repayment of the sum so advanced, which with such interest amounted to £824; but in case of loss no repayment was to take place. The Daedalus reached her port and the bond becoming due, there remained, after receipt of freight, the sum of £406 6s. 5d. due to the parties promoting the suit, and for which present suit had been instituted. The interest £25 per cent, might appear very high; but it was usual in these cases to grant such apparently exorbitant interest; and it was to be remembered that it had been made matter of fair contract and agreement between the parties; and also that, in case of the vessel's being lost, the whole sum advanced was agreed to be sacrificed. That contract had been made upon principles of enmity, which it was incumbent on the Court to support with as strong a hand as possible. Now payment had been contested under certain Acts, particularly 6th Geo. 1. which is a statute for restraining certain unwarrantable extravagances, projects and schemes, or as they were called in the language of those times, "bubbles", and for protecting owners of ships from exorbitant and fraudulent insurances. &c., and by which it is enacted, that after the establishment of the two corporations, which were then about to be erected, only they, and no other persons whatever, should be allowed to underwrite, insure, or lend money upon bottomry, after 20th June 1720. This statute certainly went to grant peculiar privileges to those corporations; and no doubt, in England, had full and entire operation. It had been held, that where two persons not united in any exterior partnership, united together to lend money in bottomry bond, yet in that particular purpose they were partners; so also in the case of two partners acting separately in the instance of advancing money on bottomry. It had been held nevertheless, that here also they were partners in the view of that law. Under the law, then, this payment had been resisted; the money having been so advanced by private merchants, partners, in a British American colony. But it was perfectly clear that such an act could not apply to America. There were no existing circumstances at that time to make it necessary to erect two such corporations in that part of the world, as were meant to be encouraged by this statute. To prove that it was intended to be originally confined to this country, a later Act had been since passed, in the reign of George II, to extend its operation to His Majesty's British Colonies. But this latter Act, as was evident from the preamble, regarded only those extravagant bubbles and speculations before alluded to. It was not alleged in either of them that those two corporations so created, had any agents in America, and what business could they have there? They were neither wounded nor damnified by the operation of the law in any way. If then its policy did not extend to America, so neither did its prohibitions. The learned judge then proceeded to observe upon the little necessity that could by any possibility exist for the creation of two such bodies as those, to which, in England, the privilege of lending upon bottomry had been secured. Moreover, it was very obvious that no evil could result in this country from this exclusion of individuals; but what remedy, were the same policy observed in Quebec, could a master of a vessel find, thus distressed for means? Capital was surely infinitely more scarce in our colonies than in Great Britain. On the whole, therefore, the Court was of opinion, that the Act did not extend to America, and that the parties, having advanced monies on account of the ship, with bona fide intentions, and on a fair understanding, were entitled to recover, and he therefore pronounced for the claim as stated. | ||
| Quebec Mercury #14, Page 111. Tuesday, April 6, 1819. | ||
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| The case of the ship Daedalus, is a case of much interest to our mercantile men, because it sets at rest a doubtful question of some importance, by deciding what the law pointedly favours the lender in this country on bottomry, provided the transaction is a fair one. That it should have been contested at all is to us, we confess, matter of great surprise, because had it been decided against the lender, it would have become extremely difficult for a ship-master to procure money in this country on the security of the vessel, let the occasion be every so urgent. We hear that some legal characters of eminence in this country were of opinion that the decision would have been against the lender. Such is the glorious uncertainty of the law. | ||
| G.R. Bossé©1998-03. | Posted: May 5th, 1999. |
Updated: July 15, 2003. |
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