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-?- V I
TEH AL IN THE COURT OF VICE-ADMIRALTY
[FROM THE MAURITIUS WATCHMAN.]
THIS was a cause of momentous interest to all passengers io merchant vessels, of which we possess a full report, but can only afford room for the fol lowing summary :
On the 15th April last, the ship Broxbornebury, bound from Bombay to London, put in here for repairs nearly at the same time with about six other vessels \yhich had suffered in the same '¿ale. Several had had their masts broken, and suffered
considerably, but they all made their repairs and proceeded on their voyage, except the Broxborne bury. She was abandoned to the insurance ; and Captain Burnett, her commander, refusing to pro vide a passage for, or return any portion of the passage-money to, his passengers; this suit was instituted by the Rev. Henry Frey, a German, to compel the captain to fulfil bis contract of giving a passage to London.
The reverend gentleman had first sought redress in th« Court of First Instance, on the ground that, he being a foreigner, and there being no German Consul at Mauritius, was (illegally) left on this is land destitute of all means of support, or of pro
secuting bis voyage.
The Civil Court, on the appeal of the captain, refusing to bring the case within its jurisdiction, it was taken into the Admiralty Court, and prose cuted pro forma pouperis.
The first examination of witnesses took place on Wednesday, 19th instant, when it was proved by the captain's answers to questions contained in the libel filed, that the passenger had paid nine hun dred rupees for his passage by the ship bound to London ; and in this port she had been abandoned, and subsequently sold for £850 ; that her remain ing stores had been sold by auction ; and that she
The counsel for the prosecutor then called wit nessess to give evidence of the unseaworthiness of the vessel, when, after several questions had been put to the first witness, Mr Macauly (the captain's counsel) objected to the admission of this evidence, and a long discussion ensued, the result of wlÉch was, that the unseaworthiness of the vessel, bevre she left Bombay, not being alleged in the libel, j could not be brought forward : and the evifWjçe of
the other witnesses was not taken. JfeP**
On Monday, 24th July, the Court entered upon the examination of witnesses to prove what was the ordinary practice of merchants in cases of this nature ; when it was decided that a vessel aban doned or condemned in any port, being considered as lost, the passengers who had prepaid their pas sage-money, had no claim whatever upon the cap tain or agent of the vessel.
This decision, and the entire ground of it, was warmly combated by the plaintiffs counsel, on the grounds that this question of the custom amongst merchants had not been pleaded in the defendant's answers to the libel, and therefore was liable to the very objection enforced by His Honor against the admission of evidence to prove the unseaworthiness of the vessel before she left Bombay-that the present contract was not between merchants, and one of the parties necessarily knew nothing about their customs ; and the contract, as shown by the receipt for passage-money, contained no provisa against perils of the sea ; that it was a general principle to decide all contracts, wherever made, by the laws of the country where the case is tried, tins Court being not convened to administer the cus toms of merchants, but the laws of the country ; that the vessel was not properly lost, her value being recovered by her sale, and the sale of her stores, and the insurance. It was argued, more over, that if a captain could legally, by abandoning his vessel and selling her, appropriate to his own use or that of the owners, the unexpended money of passengers, a bonus and bribe might in many supposeable cases be held out thereby for such
The plaintiff was nonsuited.