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Colonial Cases

The Brig Hindu, 1833


The Brig Hindu

Vice Admiralty, Mauritius
Source: Singapore Chronicle & Commercial Register, 5 December, 1833




   The American brig Hindu, Captain John Barrow, arrived in distress off this port on the 12th June last.  She had sprung a leak and was making 6 inches of water per hour.  Her crew was in a very sickly state and incapable of navigating the vessel with safety.  Several of them were subsequently sent to the Hospital, where one man died - four were finally discharged on account of sickness, and in consequence of the weak state of those who remained on board, the caption was compelled to ship six hands here.  The vessel was in performance of a voyage from Batavia to Amsterdam.  Her cargo consisted of a small quantity of sugar and tin, the rest was coffee.

   Under these circumstances a petition was presented to the Honorable Court of Vice-Admiralty for leave to enter the port and the Honorable Court in view of this petition, of the affidavit of Captain Barrow, and the certificate of two official surveyors and who had examined the vessel, issued a decree authorising her to enter the harbour for the purpose of repairing, &s., as prayed for.

   In consequence of a subsequent survey it was found necessary to unload a part of the cargo and 2,528 bags of Coffee were regularly landed and deposited in the Custom House Stores.

   The necessary repairs of the vessel having been completed the said coffee was re-shipped with the exception of 236 bags found to be damaged by sea water.  A Survey was held on this Coffee on the 4th July, by two sworn brokers and appraisers, who by declaration in writing and on oath, declared the same to be in a damp state to be damaged at least fifty per cent, and in consequence thereof to be in an unfit state for reshipment wherefore the said deponents recommended an immediate sale of the said 236 bags of Coffee by public auction for and on account of whomsoever it might concern.

   The Honorable Court of Vice-Admiralty, on view of this affidavit and petition of the Master of the same effect, by decree under date 9th July, ordered the Collector of the Customs and others concerned to permit the said Master to dispose of the said 236 bags damaged Coffee, by public auction, through the Marshal of the court, such sale to be for exportation and subject to the usual customs regulations.  A copy of this order was served, as usual, on the Collector of Customs on the 10th July, and the sale was fixed for the 13th.

   Early in the morning of this latter day the Collector of His Majesty's Customs politely informed me that some legal difficulties had arisen respecting the sale of this Coffee.  On waiting on him, I learnt that he had thought it his duty to lay the order of the Court before Government.  That no opposition would be made to proceeding with the sale, but that he might feel himself under the necessity of seizing the Coffee if sold.  I naturally insisted on the great inconvenience and injustice that must arise from such an innovation in the practice of the Customs, which had always hitherto been to comply in similar cases with the order of the Vice-Admiralty Court; and I took the liberty of suggesting the propriety of continuing so to do till, such time as instructions on the subject should be obtained from the Honorable Board of Commissioners in London.  I cited the example I had myself given in two instances of complying without difficulty with the demands of his department under the simple reserve of a reference to the Honorable Board.  The Collector answered he could do nothing in the business as it was now in the hands of Government - I beg permission to remark, without intention of offence, that it might have been more correct to say it was in the hands of the Advocate general.

   As the sale of the Coffee might have been deemed to constitute an importation, it was from prudential motives deferred.  During this interview or shortly afterwards a notice without date was served on Captain Barrow's Proctor informing him that the Honorable Court of Vice-Admiralty would be moved on Thursday the 16th instant, at the sitting of the Court, "or as soon after as counsel can be heard" to set aside for irregularity the decretal order of the Court of the 9th instant "the same being in contravention of the statute in such cases made and provided."

   The extreme impropriety of so long a delay in making this motion (the decretal order in question having been officially communicated to the Collector of the Customs, on the 10th instant) will be apparent to every one at all aware of the great prejudice such a loss of time might occasion to most commercial speculations, and the more so when it is added as the 16th was already specially fixed for pleading in the Court of Appeal, where the same Judge presides, a cause of some importance, it appeared very uncertain, and the terms of the notice justified the doubt, whether the cause of the Hindu could be heard at all on that day.  This prejudice did not escape the kind attention of His Honor the Judge of the Court of Vice Admiralty, on application being made to him in the view of insuring if possible the decision of the Hindu's cause on the 16th, with the greatest condescension he offered to hear it in chambers on the same day the 13th at 3 o'clock, if the parties were prepared and our adversaries would consent to it, and in the contrary case on Monday the 15th, at 10 in the morning.  It was not hovered till a late hour in Saturday the 14th, that this consent could be obtained.

   The cause was heard on the 15th as appointed.  The Advocate General insisted that under the Act 6 Geo: 4 Cap: 114.  The impartation of foreign Coffee by an American vessel was illegal, and this in great measure gave  rise to the dissuasion on this point alluded to in your paper of the 23rd July, No. 158, and on which I propose to offer a few additional observations in a sub sequent article.  As to the plea of necessity which he naturally enough anticipated, he insisted that none was shown - that the state of differs of the vessel was not even alluded to in the petition on which the decretal order was given, an assertion laterally correct but rather disingenuous, since the case of distress was before the Court from the moment of the first application made to it, and he might as easily have procured from the registrar's office the first part of the proceedings in respect to this vessel as the latter party only.  On this point however he instated strongly and he did not disdain even to insinuate to the Honorable Court that this vessel might be suspected of coming here, under the pretext of distress for purpose of illegal traffic, since she had already been here once before, in the year 1830.  An insinuation which he was compelled to acknowledge was satisfactorily rebutted by the explanations we gave, after examinations of the fact, that the Hindu, at the period alluded to belonged to a different owner, inhabiting a different port of the United States, was commanded by another captain, and theta the goods sold to pay her expenses consisted principally of Manilla Hemp,  an article evidently of much greater value in the united States, to which country the vessel was bound, than the Island of Mauritius.

   The discussion, though imperfect, of the legal question whether an American vessel could import Coffee to be warehoused for re-exportation, occupied the greater part of the time the Honorable Court was able to dedicate in the first instance to this cause, the further hearing of which was unavoidably postponed, from half-past eleven till two o'clock.

   The Advocate General shortly after the close of his reply offered to consent to an interlocutory decree, authorising the sale of the Coffee to be proceeded in, but subject to seizure in case the legal point was decided against Captain Barrow.  This offer was so far too kind - it would have precluded Captain Barrow from pleading the question of necessity on which alone his defence could be rested with certainty of success - Captain Barrow's Counsel therefore stated his intention to abandon the legal point and pleaded the case of necessity only.  The Captain's extended protest, and two affidavits were laid before the Court, one of the latter proving an ineffectual advertisement for money on Bottomry - The other, subscribed by the Captain, declaring to have strong and well founded apprehensions that the safety of the sound part of his cargo, might be endangered by the reshipment of the damaged Coffee.  Mr. Advocate General however insisted on the original petition being amended, and this principally, as it would appear from an observation he made, in the view of obtaining costs.  To prevent loss of time, discussion was avoided on this latter subject, and a second petition was prepared to which the above affidavits were joined.

  The cause being now placed as Mr. Advocate General admitted in its true point of view, no anxiety could be felt for the result, and more especially as he had been understood to indicate, that if a cause of real necessity were made out there could be no objection to granting relief.  It may however be proper to remark that it often appears rather difficult to follow up the chain of the Advocate General's arguments, or to comprehend perfectly his ideas.  I have no doubt however, but they are always expressed with the greatest clearness and precision, and I make this observation without intending the least disparagement to his superior talents, but rather in the view of acknowledging and regretting my own inferiority - I was however so confident that no further opposition was to be apprehended, that I did not consider it at all necessary to be present when the pleadings were resumed.  Greater however was my error.  Mr. Advocate General now, to our utter astonishment most unexpectedly declared that the power of dispensing with the strict execution of the law, in a case of unavoidable necessity clearly proved, appertained to His Majesty the king, and consequently in this colony to His Excellency the Governor alone, as representant of His Majesty.  That he claimed this dispensing power for His Excellency, in the name of His Majesty, as a part of the Royal prerogative, and denied the jurisdiction of the Honorable Court.

   As it is my intention to offer in a future article some observations on this new doctrine, I shall confine myself here to this short notice of it, merely adding, that the Honorable Court by its final decree, maintained its jurisdiction in the matter, admitted the case of necessity to be proved, and confirmed the order issued for the sale of the Coffee under date 9th instant.    As however the very extraordinary grounds on which the Advocate General's opposition was finally laid to rest were such as to render unavoidable a rather elaborate judgment, the decree could not be prepared before the 17th, and the sale it authorised was necessarily postponed till the 19th instant.

   I could not omit to mention, that as an appeal to the Court of Admiralty in England, regularly entered, would have had the effect of suspending the execution of this decree, I was compelled, even to accept as a favour, the alterative offered to me of entering previously to the sale into a Bond in the sum of Two Hundred pounds Sterling, with obligation, in the event of such appeal being made by the Honorable Board of Commissioners in London, to pay into the hands of the Collector of Customs, for the purpose of providing for the costs of such appeal, the sum of One Hundred Pounds Sterling.

   I avail myself of the earliest opportunity to notice and reply to certain observations made on that part of the decree by which Captain Barrow is condemned to pay the whole cists of the instance.  It may be [held], in the opinion of some, to impute without any reasonable grounds for so doing, fraudulent intentions to a Mariner entering a Port in distress; but I am sure no reasonable person could  wish or expect that the Honorable Court of Vice Admiralty should impute improper motives or vexatious proceedings where, from whatever cause or consideration it might have arisen, none had been pointed out to its attention by the party most interested in the  question.  Yet without some motive of this description, I believe it is not the practice of the Courts of Admiralty to condemn the Crown side in costs.  I do however trust, that as the jurisprudence of the Court is now ascertained, in other similar cases that may arise, the decision in this particular point will be different.  I admit also that the question still lies open for discussion, how far a Collector of Customs, or Advocate General, may be excusable in their misconception of the law till such time as it is solemnly decided by the Court under the jurisdiction of which they are placed to be in accordance with known and long established practice.  I am however desirous to abstain from discussing the subject.

   The consequence of these proceedings, in so far as those interests represented by my House are directly concerned, were the detention during a period which may be fairly estimated at ten days at least, of a Ship and cargo worth more then 80,000 Dollars, and of the important despatches she had on board for the Owners of this property, and an expense of about 500 Dollars incurred in effecting the sale of a small lot of damaged Coffee which produced only 1,410 Dollars and 75 Cents.  In the above expenses are included the amount of the following Bu=ill, published as a voucher, in which I regret to see comprised the costs of obtaining the information on which was founded the injurious allusion to a former voyage of the Vessel mentioned above.

   Such are the facts of the case.  They are published in the humble hope that they may meet the attention of His Excellency the Governor and of His Majesty's Ministers; and in this view it is trusted they will be laid before His Majesty's Government by the Minister of the United States at London, to whom I shall endeavour to have them forwarded officially.  I also indulge in the hope that they may not be considered entirely unworthy of the attention of those distinguished members of the legislature whose transcendent talents are so frequently dedicated to the protection of Commerce and to the maintenance of our amicable relations with fetidly States, and who for the honour of our country, in which we have all a common interest, most adroitly desire that, in every part of His Majesty's dominions, Justice, Humanity, Hospitality, and a charitable condescension to the necessities of making may not only be practised, but also religiously fostered and cherished as Cardinal virtues.   H. G.

Ceeneen, August, 6.

Note at foot column 1, but Note mark nit found.]  The one on my objection to pay duties on the value of the packages containing goods imported.  This question was decided in my favour by the Honorable Board. - The other a difference of onion respecting the new mode of valuing goods attempted to be introduced by the principal Collector - I am informed the Attorney General has given an opinion in conformity with mine, and I trust this question will also be finally disposed of in an equally satisfactory manner.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School