Quebec Gazette #3464 09/09/1824.
	Loss of brig Young Proteous. Captain Holmes, from Demerara for this port. The vessel sailed from Demerara on the 1st August last. On the 27th of the month at 8 P.M. she struck against part of the Leopard of 50 guns, one of the Her Majesty's ships wrecked in 1814 on the north side of Anticosti, from which she received considerable damage, and leaked so rapidly that all exertions to keep her afloat were unsuccessful, and she sank in less than three hours after striking, about one mile and a half off shore on the north side of the island of Anticosti. The Captain, his wife and crew succeeded in reaching the shore, from which the former and his wife were afterwards taken by the John & William, and brought up to Quebec.
Quebec Mercury #71, Page 448, Saturday, September 11, 1824.
	Captain Holmes, late of the Young Proteous, sailed in a schooner on Thursday morning with assistance to bring up what can be saved from the wreck of that vessel.     The Rebecca, Squires, of New Brunswick, was upset in a squall at Bay des Chaleurs, 10th ultimo. She was taken in tow, but the wind freshening, was abandoned for some time.

Quebec Mercury #76, Page 480. Tuesday, September 28, 1824.
	The Columbus was seen on the banks of Newfoundland on Saturday the 18th last, sailing with a fair breeze at a very good rate.     Captain Holmes arrived on Saturday evening last from the wreck of the Young Proteous. He has succeeded in saving part of the cargo and some of the materials, which he has brought up in a schooner to Quebec.     Will be sold by the subscribers, on Thursday next, the 30th instant, on Messrs. James McCallum & Co.'s wharf, for the benefit of the underwriters and other concerned:     The hull of the brig Young Proteous, Thomas Holmes, late master, 113 tons burthen per register, stranded on the Island of Anticosti on her passage from Demerara.
	AFTER WHICH,
	The following materials and part of the cargo saved and brought up in the schooner Louise, Thomas Mathers:

2  1  1

anchors, cable, topsail,

1  1  2

mainsail, foresail, studding sails,

1  38  3  5  10  6

top gallant sail, sundry ropes and rigging, &c. puncheons Demerara rum, hogsheads Demerara rum, pipes spirits, hogsheads spirits, boxes raisins.

Sale to commence at one o'clock, by,

			Chinic & Quirouet,
			Auctioneers & Brokers.
	Quebec, 27th September, 1824

Quebec Mercury #84, Page 531. Tuesday, October 26, 1824.
	Pursuant to a commission of appraisement that issued out of His Majesty's Court of Vice-Admiralty for the Province of Lower Canada, in a certain business moved and prosecuted in the said Court by the master and crew of the brigantine Young Proteous, against articles saved from the wreck of the Young Proteous, Thomas Holmes, master:

5  1  1  2  1  1  1  1  2

sails, lot copper, lot blocks, stoves, lot oil jars, lot hoops, lot rigging, anchor stock, anchors, A part of a cable.

Public notice is hereby given, that the said articles will be exposed to public sale, on Wednesday next, the 27th instant, at twelve o'clock in the day, at Messrs. Chinic & Quirouet's auction room, Sault-au-Matelot Street, Lower Town of Quebec, and that the said several articles will then and there be sold without reserve, to the best bidder,     Signed,

			Joseph Fenwick,
			Marshal, Vice-Admiralty.
	Quebec, 25th October, 1824.

Quebec Gazette #3503 24/01/1825 Page 1, Col. 1T
	LAW INTELLIGENCE.

	In the Court of Vice Admiralty, Province of Lower-Canada.	}   The brig Young Proteous.

Judge Kerr: In this suit of the mate and seamen for salvage, two claims of an adverse nature have been filed, for 37 puncheons of rum, saved from the wreck; one by Thomas Holmes, the master, calling himself the legal agent for the owners of the brig and of the underwriters of the cargo; and the other by William Price, Esquire, styling himself, agent for John G. Reid of Demerara, sole owner of the rum saved; and each claim concludes that the rum be delivered up to the several claimants. To the claim of Mr. Price, an answer has been filed by the master in which he alleges that Mr. Price has abandoned the rum to the underwriters, and that he has no longer any interest in the same. But there being no proof of such abandonment, the question comes before the Court on these adverse claims, and I am called upon to decide, whether this rum ought to be delivered over to Captain Holmes, the master of the brig, or to Mr. Price, the consignee of the cargo. Mr. Price, being admitted to be the authorized agent of Mr. Reid, the owner of the rum, I can have little difficulty in giving my opinion upon this point, for the matter is resolvable into this short question. Shall the possession of the goods be awarded to him, who has been appointed agent by the immediate act of the owner, or to him to whom the policy of the law accords their disposal only in the absence of all direct authority from the owner? The maxim expressum, facit cessare tacitum applies with great exactitude here, and the case of the Gratitudins 3 Robinson, 257, may be referred to as deciding the question, for Lord Stowell, there says that the master in the ordinary state of things is a stranger to the cargo, beyond the purposes of safe custody and conveyance, "yet in cases of instant and unforeseen and unprovided necessity, the character of agent and supercargo is forced upon him, not by immediate act and appointment of the owner, but the general policy of the law." But whilst I have no hesitation in deciding that the right of possession is in Mr. Price as the dominus mercium, I am not disposed to award it to him without exacting from that justice which is due to the master, Captain Holmes, both in respect to his own claim as salvor, and more especially as the agent of the owners of the brig. It as being contended that Mr. Holmes, having in his petition, concluded generally for the delivery of the goods to him, there is no precise demand of lieu, and that his claim not being admitted, must necessarily be rejected, or if such prayer can be considered, and included in a general demand of delivery, he has, by advertising the sale of the rum at auction, committed such a tortious act as deprives him of his right of lieu. In regard to the first point, the Court, proceeding upon the principles of equity and maritime policy in the dispensation of its justice, in the adverse interests which often arise in the course of a suit, does not adhere with so much strictness to the rules of social pleading as do the Courts of common law, where the multiplicity of actions and their less complicated nature, both solicit and admit logical precision and exactness, and I consider this claim for the whole of the articles saved, virtually includes in it all that is requisite to establish the master's demand to be maintained in his lien for freight, and for such sums as he may have a right to ask, either for recompense or disbursements. In respect to the second point, namely, that in placing the rum in the custody of Quirouet & Chinic, auctioneers and brokers, for the purpose of sale, Captain Holmes has committed an act of tortious conversion. It may be observed that though the authorities cited, apply to persons standing in the relative situation of principal and agents, they cease to have force in the case, where both parties are agents; Mr. Price, for the owners of the cargo, and Captain Holmes, for the owners of the ship; and it would ill comport with the disposition which the courts of law have always shown to favour the right of lien for freight, were to hold that this act of the master were such a wrongful disposition of the property, as to work to their prejudice. (Holt on Shipping Vol. 2, p. 169). Besides, it was the duty of Mr. Price to watch the arrival of the goods, and to tender the freight, and it is but reasonable to suppose that his absence from Quebec at the time of their arrival, and the pressing demands made on the master for expenses incurred in bringing the goods from Anticosti, were the motives which induced him to place the rum in the hands of the brokers. I cannot, therefore, construe this to be a wrongful disposition of the property so as to deprive the owners of their lien: and though I admit and maintain the claim of Mr. Price as the consignee of Mr. Reid, yet I must decree the 37 puncheons of rum to be subject to the lien of the master for freight, and all such charges and disbursements as may afterwards be declared reasonable and just, and I further order that the master do forthwith file in the registry, a statement of all monies alleged to be due for freight, and other charges and disbursements so that justice may be done in the premises. In pursuance of this interlocutory decree, a statement of the freight, disbursement and compensation, claimed by Captain Holmes, was filed in the registry of the Court, to which various exceptions were taken by Mr. Price, and after hearing Mr. Wellan on behalf of the mate and seamen, Mr. Tremain and, Mr. Wellan on behalf of the master, and Mr. Black on behalf of Mr. Price, the judge pronounced a final decree as follows:

Monday 6th December 1824.
	The Young Proteous.
	I am sorry that my avocations in another Court should have prevented me so early as I wished, from giving my opinion on the new and important points which have arisen in the progress of this case. And in order that they be distinctly understood, I will state the substance of the affidavits of Thomas Holmes, the master of the Young Proteous and five of his seamen.     They disclose these facts: that on the first of August last, the brig set sail from Guiana, loaded with rum, sugar and molasses for this port, that on the 27th August, when in the Gulf of Saint Lawrence, the day commenced with cloudy weather and fresh breezes from the south southwest, towards evening the wind moderating, came round to the west southwest, with hazy weather and a heavy swell running: that at six o'clock in the evening, when in the act of tacking to the southward, the brig struck with a heavy shock on some sunken wreck: that notwithstanding every possible exertion made by the deponents, and the rest of the crew, the brig remained with her after-part aground, and her head in deep water, in which situation she remained labouring with a heavy sea, which beating on her, she made so much water, that the crew found it impossible to keep her free, and a consultation being held, it was deemed prudent for the preservation of their lives to take to their boats and make for the nearest shore: that the master and crew landed on the Island of Anticosti, from which they found the brig lay distant about a mile, that soon after they quitted the brig, she fell on her beam ends, and the sea drove her up on the shore of the Island, where the crew shortly after got to her in the long boat, found her full of water and cut away her masts to prevent her (as the deponents state) from going to pieces; that the deponents afterwards, as the weather permitted, employed themselves, with the rest of the crew, in saving the sails and cable, but from the want of means and resources, (the island being uninhabited, excepting, at two or three parts, the nearest of which was fifteen miles from where the brig lay) they made slow progress therein: that on the thirtieth of August, Captain Holmes left the Island to go to Quebec for assistance, in company with Benjamin Hastings on board a ship from Dublin and left the other deponents and the rest of the crew, and during the absence of the master and Hastings, the rest of the crew employed themselves in saving and preserving the cargo, and in landing some parts of the wreck of the brig.     This is the substance of those affidavits, which show the cause and manner of the loss of the brig, and the exertions of the master and crew in saving the rum and other articles which are the subject matter of the claims now before the Court, and had they stopped here, they would have furnished an answer to the pretensions set up by the master and crew for a recompense for these services; inasmuch as they did nothing more than what was imposed on them as a part of their duty. However, the affidavit of Captain Holmes states, that he and one of his crew proceeded in a vessel to Quebec, nearly four hundred miles from the place where the brig was wrecked, in order, it may be presumed, to give information to Mr. Price, of the loss of the ship, and to consult him as to what course was to be followed to bring to Quebec that part of the cargo which had been saved. It appears from his affidavit and that of the five seamen, that he and Hastings, on the thirteenth of September, returned to the wreck in a schooner which he had hired at Quebec, on board of which these deponents, assisted by White, the mate, loaded thirty seven puncheons and two hogsheads of rum, two anchors, some of the sails, and one hemp cable, and therewith proceeded to this port, where they arrived on the twenty seventh of September.     These are the facts, which coupled with the stipulations of the charter party entered into between Thomas Holmes, the master, acting for the owners, and John Dapwell Hamilton, on the twenty eighth of November 1822, for the hire of the Young Proteous from Quebec to Demerara, and back again to this port, have given rise to the different claims and pretensions, as well of Captain Holmes and the seamen, as of Mr. Price, the consignee of the cargo.     The claims of Captain Holmes on the rum and articles saved from the wreck, amount to £505 7 0, that is to say:

For freight,    Disbursements in leaving the wreck to come to Quebec and returning, including the hire of a schooner to bring up the rum and articles saved,    A compensation for his own time and trouble,

£350 0 0 105 7 0   50 0 0 --------- £505 7 0

These different heads of demand have been resisted by Mr. Price, and as they in part involve the rights of the seamen who claim wages until the safe landing of part of the furniture and apparel of the brig, as well as a recompense for their trouble since the goods saved were actually landed; I shall first dispose of this part of the case. It appears that the brig was hired for the sum of £450, on a voyage from Quebec to Demerara and back again to Quebec, of which sum, £100 was paid at Demerara, and it has been contended by Mr. Price's advocate, that it having been agreed that the delivery of the whole inward cargo should be a condition precedent to the payment of the remaining £350, the contract on the part of the owners of the brig had not been fulfilled by the delivery of the whole cargo at the place of destination, and therefore that the master has no right to the £350 demanded: that the mutual stipulations goes to the whole of the consideration on both sides, and unless the whole inward cargo were delivered at Quebec, the owners are not entitled to any part of the freight.

If in an action of covenant on the charter party at common law, I were called upon to decide this question, I should find myself bound by the judgment in the case of Cooke vs. Jennings 7, Term Rep. 581 which has been referred to by Mr. Price's counsel. But this claim is founded on a new agreement, and on a benefit supposed to be derived by the owners of the cargo, manifested by the acceptance by Mr. Price, of part of it, at the Island of Anticosti.     It must be recollected that the affidavits state that the brig was stranded on Anticosti, an island of 100 miles in length, on which there are only two families, who are maintained by Government, to afford relief to persons in the unfortunate situation of these claimants when the vessel was driven on shore: the master showed as commendable zeal by returning to the wreck and saving at considerable person risk parts of the ship and cargo, and the crew as well as himself render their best services to all concerned in the adventure.     The articles saved being placed in a state of safety, Captain Holmes might either have repaired his brig, or hired another vessel and transhipped the goods on board of her, but neither of these courses were obligatory on him. Lawrence J. in Cooke vs. Jennings says, indeed "when a ship is driven on shore, it is the duty of the master either to repair his ship or to procure another," but this is in order to entitle him to his whole freight, and does not apply to the case, where the master thinks it more advantage to his owners to abandon the freight than to repair the ship, or to hire another to convey the goods to the place of their destination. Neither the Ordonnance de la Marine nor the Laws of Oleron impose this as burden on the master; but leave it to his option what course is to be taken, for the third article of the latter provides, that "if the master can readily repair his vessel, he may do it, or if he pleases, he may freight another ship and perform the voyage."     Captain Holmes then finding that he could not repair his vessel, or find another at Anticosti, on board of which he could trans-ship the goods, embarks for Quebec, and Mr. Price in his affidavit states, that in a conversation with Captain Holmes, "he told this deponent, that it was his intention to engage a vessel to go down to the wreck to bring up such parts of the property as could be saved, and asked the deponent's opinion; that this deponent told him that he thought it was the most proper course he could peruse, and that, on his return, what was right should be done on the part of this deponent, but feeling the danger of interfering, this deponent declared, that he would incur no responsibility, and enter into no further pledge or engagement of any description."     Now what does this amount to, but a new and conditional contract? It appears to me that this conversation is to the same effect as if Mr. Price had said in these words, "I quite approve of your having another vessel to bring from the wreck what part of the cargo may have been saved by your exertions and that of your crew, but I beg that is may be understood that you must act in this matter on your own responsibility and not one mine. If you should bring to Quebec so much of the cargo as will pay all reasonable charges and disbursements, I will accept of it and pay these charges and disbursement."     I should have put that construction on Mr. Price's words, without referring to the affidavit of Captain Holmes; but on reading his affidavit wherein he states, that "upon enquiring of the said William Price, upon whom the expenses would fall, was told by the said William Price that the cargo would bear the expense." I do not see that any other interpretation can be given to them; and what then, does his act of claiming the ruin on its arrival here amount to in legal effect, but a virtual acceptance of a portion of the cargo, at Anticosti so as to bring this case within the principle of Luke vs. Lloyd, by which Mr. Price obliges himself to pay freight glossary.html#glo.42">pro rata itinerts per acti, together with all necessary charges and disbursements in bring it to this port? According to the spirit of the authorities, the owners of the brig are entitled to receive part of the hire under the charter party, and the master for his trouble and disbursements under the new contract which has sprung out of it. In this view of the case not only is the relative equity between the owners of the cargo preserved, but in conformity to a just and benevolent rule of maritime law, "regard is taken of the master's misfortunes, and provisions made for his indemnification."     The demand on the part of the seamen for wages to Anticosti, together with a recompense for their time and services in taking care of the cargo and materials saved, and in bringing them to Quebec, is taken up in the decision on the claim of the owners for hire, for if they be entitled to an apportionment of freight, so the seamen have a right to recover their wages until the ship was wrecked, according to the trite maxim, that "freight is the mother of wages." Nor does their claim rest solely on this ground, for the laws of Oleron which it would appear from Marshal on insurance, is a part of the maritime code of our own country, declares that "if any vessel through misfortune happen to be cast away in whatever place it be, the mariners shall be obliged to use their best endeavour for saving as much of ship and lading as possibly they can, and if they preserve part thereof, the master shall allow them a reasonable consideration to carry them home to their own country, and in case they save enough to enable the master to do this, he may lawfully pledge to some honest person such part thereof as may be sufficient for that occasion."

	The Ordinances of the Hansiatic League, and the Laws of Wisbuy are more precise, for they declare, that "The ship's crew are obliged to do all that lies in their power to save things from shipwreck, and gather up what they save on pain of losing their wages, and those that hinder or dissuade them from it shall be severely punished." The law is very well explained by an ordinance of Philip and in the year 1565, by which it is ordained that the "Seamen shall be bound to save as much as they can from shipwreck, and in such case the master is bound to pay them their wages, and to give them a further reward for their labour, out of the goods, but if the seamen refuse to do their endeavour to save the goods, they shall neither have pay nor reward."     As to the second part of their demand, namely, a compensation for their time and trouble in remaining on the island and taking care of the goods and in bringing them from thence to the place of their destination, it would be a departure from the principle I have adopted in deciding the claim of Captain Holmes, for personal compensation, was I to withhold from them a fair compensation for their services and privations, they having acted by the authority of the master.     On the whole I am of opinion that the owners of the brig are entitled to the sum of £225, being a moiety of her hire on the outward voyage, that is from Quebec to Demerara, together with an apportionment of freight for the 37 puncheons and 3 hogsheads of rum to Anticosti from which sums there ought to be deducted £100 admitted to have been received by Captain Holmes at Demerara, also a proportion of the expenses in bringing up the rum from Anticosti to Quebec. I am also of opinion that Captain Holmes is entitled to such charges and disbursements as may be reasonably due to him personally, since his leaving Anticosti on the 30th August to his return to Quebec on the 27th September with the cargo and materials saved from the wreck, the same to be borne pro rata on the rum and materials according to their respective value; and in order to ascertain the sum to be allowed to the master for his charges and disbursements, I shall order his account to be referred to two ship masters for their opinion and report.     As to the crew, I think they are entitled to wages to the time when the materials saved from the wreck of the brig was landed on the island, which I shall award to be exclusively paid out of the proceeds of these materials.     I am also of opinion that there should be allowed to each of them a sum not exceeding twenty dollars for their time, care and trouble in watching over the rum and articles belonging to the brig, and in bringing them to Quebec, to be borne in rateable proportions by the proceeds of the materials sold and the 37 puncheons and 3 hogsheads rum, according to their value.     I am moreover of opinion that the master and crew are entitled to costs.     Before I conclude I cannot but express the sense I entertain of the exertions and prudent conduct of Captain Holmes throughout the whole of this unfortunate affair. He has been greatly blamed for not consenting that the cargo be delivered up to Mr. Price, on that gentleman's giving security to abide the judgement; but let it be recollected the maxim is a wise one "plus cautienis in re, quam in persona," and if he had consented to that proposal he would have been hardly justified. On this head the learned judge to concluding cited Beawes's lex mercatoria.

	SUMMARY OF DECREE.
	Apportioned freight of an entire cargo from Quebec to Demerara, and of 37 puncheons and 3 hogsheads of rum,    Deduct, so much paid to the master at Demerara,    Proportion of expenses to be born by the men in bringing up the same from Anticosti to Quebec.    Balance of freight to be received by Captain Holmes as agent of the owners,    Proportion of expenses allowed to Captain Holmes for his personal services and disbursements in bringing up the rum from Anticosti to Quebec,    Proportion of law expenses, due to him on his person account,     Proportion of compensation allowed to the seamen for their services to be charged against the rum,     Proportion of law expenses to the suit brought by them,                           To be paid to seamen,     Rum decreed to contribute,     Seamen's wages to be paid exclusively out of the produce of the materials saved from the wreck,     Proportion of compensation to the seamen for services,     Law expenses,     Amount awarded to the seamen,     Average expense in bringing the material to Quebec.     Proportion of costs on the claim on the master to be borne by the materials.    Materials decreed to be subject to	100   0   0 132  13   4 _________ 132 13   4   56   3   1 _________   24   0   0   21   4   2 ________   47 15 11½    6   0   0   21   4   2 _________   33   6   8   14   0   9 _________	262 10   0  232  13   4   29  16   8  188  16   5   45   4   2  263  17   5   75   0   1½  17   7   5 £122   7   6½

G.R. Bossé©1999-03.

Posted: Nov. 25, 1999.

Updated: July 15, 2003.