XVII. Covenant upon a Charter-party, by which the Covenants Mafter of the Ship covenants to fail with the firft fair mutual fhall Wind to Barcelona, and that the Mariners fhall attend not be pleaded one against with a Boat to relade the Ship, and then to return with the other. the first fair Wind to London, and to unlade and deliver the Goods, and the Merchants covenant to pay fo much for Freight, and fo much for Demurage every day; the Mafter brought his Action for the Freight and Demurage, and declares that he failed fuch a Day with the first fair Wind, and upon all the other Points. The Defendant, quoad the Freight, that the Ship did not return directly to London, but went to Alicant and Tangier and made divers Deviations, and by thefe delays the Goods were spoiled, and as to the Demurage, that this was occafioned by the Negligence of the Mariners in not attending with the Boat to relade the Ship; to which the Plaintiff demurred, and per Curiam pro Quer. for that the Covenants are mutual and reciprocal, upon which each fhall have his Action against the other, but fhall not plead the breach of one in bar of another, for perhaps the damage of the one fide and of the other are not equal. 3 Levinz 41. Cole contra Shallet. Sir Tho. Jones 216. Show ers against Cudmore. Cro. El. 268. 2 Sand. 127. In Covenant the Plaintiff declared, that he covenanted Plea that anto fail with a Ship to D. in Ireland, and there to take fwers to Part 280 Men of the Defendant's, and to carry them to Jamai- only is ill. ca, and the Defendant covenanted to have the 280 Men pl. 3.330 pl. there ready, and to pay for their carriage 51. for each 10.433,434. Man, and that the Defendant had not the 280 Men rea- Cro. Jac. 27. dy, but that he had 180, which he took on Board, and Sand 27.28. carried them, but that the Defendant had not paid for Lutw. 1492. them; the Defendant pleaded that he had the 280 Men Plowd. 138. ready, and tendered to the Plaintiff, who refufed to receive them, but faid nothing as to the carrying of the 180 Men, nor to the Payment for them; and for that it was not a Plea to all, Judgment was given for the Plaintiff upon Demurrer, 1 Levinz 16. 1 Keble 100. CHAP. Leg. ne quid f CHAP. V. De Wreck. I. Of Goods wreckt, as in relation VI. Of Flotfam, Jetfam, and to the Alteration of the Property by the Civil Law. III. Of Goods wreckt, their Prefer- I. IN Lagan, where the King hall have the fame, and whether by the Grant of Wreck the fame passes; and where a Subject may preferibe. VII. Of Ships wreckt and no Creature in them, yet no Wreck; and of Ships forfaken, whether in Law accounted loft or wreckt, or neither. VIII. Of the Sheriff's Duty as in re lation to Goods wreckt; and of Owners their time of claiming their Property. IX. Wreckt Goods not to pay Cuftom. X. Of Wreck, in the Ife of Wight, not in the Admiral without Special Words. N matters of Wreck there is, as it were, a Contract between them which have loft their Goods by fuch Misfortune, and them upon whofe Lands the Goods and Merchandize are driven, that the fame be reftored to them or those that claim under them. And therefore by the Civil Law, it is precifely forbid, that no Man fhall meddle with fuch Goods as are wreckt; and fuch as are proved to have ftoln any thing thereout, are holden for Robbers; for that fuch Goods being caft on Land and recoLeg. 44. D. de vered out of the Sea, remain ftill his who was the Owner thereof, and defcend upon his Succeffor; neither Efcheat to the King, neither to any other to whom the King hath granted fuch Royal Privilege. de incendio, ruina & nauJragio. acq. rer. dom. The reason why the Laws were fo ftrictly declared by the Romans, was, for that by the Laws of Rhodes, if any Ship had become Wreck, though all the Perfons were fa ved and alive, yet the Ship and Goods became feizable by the Lord: But the fame being barbarous, was afterwards repealed and abrogated. The Emperor Conftantine the Great says, in this Cafe, if any Ship at any time by any Shipwreck be driven to the fhore, or touch at any Land, Let the Owner have it, Leg. 1. lib. 11. C. de Naufrag and let not my Exchequer meddle with it: For what Right bath my Exchequer in another man's Calamity, fo that it fhould bunt after Gain in such a woful Cafe as this is? And yet if no Kindred appear within a Year and a Day, or, appearing, prove not the Goods fhipwreck'd to be theirs, the Goods come to the Exchequer, even by that Law: So much that Law condemns careleffnefs, which is written, vigilantibus & non dormientibus, &c. And with this agree the Laws of Oleron and the Laws of this Land, as taken out of thofe Imperial Laws, in that Point, as is conceived. II. The Civil Law was ever fo Curious and Careful to preferve the Goods of fuch miferable Perfons, that if any deincend. ruin. Leg. 1. in pr. fhould fteal fuch, they fhould pay four-fold to the Ow- leg. in eum cum ner, if pursued within a Year and a Day, and as much auth. feq. de to the Prince or his Admiral: So careful were they, and furt. Leg. 3. in fo exact in requiring Reftitution, that the very stealing of fin. de incend. ruin. naufrag. a Nail, or the Worth thereof, obliged the Thief to the Reftitution of all the remaining Goods. And by the Emperor Antonius it was made a Law for fuch fort of Men, that they fhould be batten'd and banifh'd for three Years; Leg. pedibus but that was for only thofe of a high and honourable eod. Rank: But those that were Base and Ignoble, should be fcourged and fent to the Gallies or Metal Mines. And the preventing of Help to fuch fhipwreckt Perfons, was punifh'd with the fame Suffering as a Murderer. The like for those that put forth any treacherous Lanthorn or Light, with Intention to fubject others to Danger or Shipwreck, thefe were punished with Death. And though no Harm happens, yet he may be punifhed: Hence it is, that Fifhers are forbidden to fish with Lights in the Night, for fear of betraying Sailers. Arg. leg. fuccularit. de Extrod. d. crim. Per leg, incend. ruin. naufrag. Leg.ne pifcator. III. And here I cannot omit the great and pious Care that his Majesty hath had, in his Directions about Light-Houfes and Lanthorns, and other fpecial Sea-marks; but more efpecially in his erecting at his own Princely Charge, that moft Excellent Light-Houfe near Goldfon by Yarmouth, which, both for Height, Curiofity and Form, is not inferior to, if not excelling, all, or moft, in Christendom. III. And as the Emperor, and other maritime Kingdoms, had in fome fort abrogated and repealed that cruel Law, and fubjected the Violaters to Punishment for the Inhumanity offered to fuch diftreffed Perfons; fo our Famous King Richard, returning from the Holy War, in his own Experience at Sea, became fenfible of the Miseries which Merchants and Mariners at Sea underwent, their Lives being always within few Inches, often within an Hair's Breadth of Death; and having Confideration of their Calamities and Diftreffed State in his Voyage, refolved to revoke that Law, and at Oleron in the Bay of Aquitain (then part of his Dominions, as Sovereign Lord of the Ocean, and all thofe Maritime Kingdoms) did there, amongst other good Marine Laws, declare, That if any Person or living Thing efcaped out of any wrecked Ship to Land, it should not be Wreck or confifcated to him or his Succeffor, as it was before, though all the Men efcaped alive. For before that, both in England and in * Bracton, lib.* Normandy, the + Crown was entitled to fhipwreckt Goods, and the King Jure Gentium (indeed according to the Rhodian Law) became Heir unto them, which otherwife Jure naturali were conceived to be in bonis nullius, pertaining to no Owner: But now that Valiant and Religious Prince refolved no longer to embrace fo cruel a Prerogative, by the ftripping the diftreffed Mariners of thofe Rags of their Eftates, which the Mercy and Modesty of the Waves and Winds had left them; and therefore in the Month of October at Meffana, in the prefence of Roger Hoveden many Archbishops, and Bifhops, and others, he then for in the latter ever quitted the Royal Claim to Wrecks, which afterwards was declared and published at Oleron in his own Territories; fo that if any Man out of the Ship camealive to fhore, the Property of the fhipwreckt Goods was still preserved to the Owner: Which Royal Condefcention was fo enlarged by our fucceeding Kings, That if a Man, Dog, or Cat efcapes alive out of the Ship, neither the Ship or other Veffel, nor any thing therein shall be adjudged Wreck, but the Goods fhall be farved and kept 2. cap. 5. Norman.c.17. part of his Annals, fol. 678. Joan. Brompton. Chron. Coll. fol. 1887. by by the Sheriff, Coroners, or the King's Bailiffs, and delivered to the Inhabitants of the Town where the Goods are found; fo that if any, within a Year and a Day, fue for Wefm. 1. c. 4. thofe Goods, and after prove that they were his at the time 3 E. 1. of the Shipwreck, they shall be restored to him without delay: But if not, they fhall be feized by the faid Sheriff, Coroners, 2 Inft. 166. or Bailiffs for the King's ufe; and fhall be delivered to the Inhabitants of the Town, who shall answer before the Justices for the Wreck belonging to the King: But this good Law Per Leg. Oleextends not to Pirates, Robbers, Sea Rovers, Turks, or other ron, cap. 47 Enemies to the Catholick Faith. Where the Wreck belongs to another, he fhall have it in like manner; and if any be attainted to have done otherwife, he fhall fuffer Imprisonment, make Fine to the King, and yield Damage also. If a Bailiff do it, and it be difallowed by his Lord, the Bailiff fhall anfwer for it if he hath wherewithal; but if not, the Lord fhall deliver his Bailiff's Body to the King. IV. If the Ship perishes only, and the Goods are fafe, in that Cafe the Goods ought to pay a Proportion of a fifth or tenth Penny, according to the cafy or difficult Winning or Saving of the faid Goods. Rich Goods, as Gold, and Silver, and Silk, pay lefs than Goods of great Weight and Cumber, being in lefs Danger, unless it were a Wreck going into a Port, which the Skipper was not bound for; there è contra, then the Skipper is not to be confidered. Leg. 37. Naval. Rhod. & 40. Goods may be retained for Payment of Salvage. Ld. Raym. But if the Ship and Goods perifh in the Sea, and the 393. Owners do totally forfake her, and fo fhe becomes a meer Derelict, in that Cafe the firft Poffeffor that recovers her, or any part of her Lading, gains a Property: And this according to the Laws of Nations, as is that given for lost, whereof there is no Hopes of Recovery, like a Lamb in the Paws of a Lion. And the incomparable Ulpian compares fuch a Dereliction to a Man that knows his own Goods to be by another Man detained, and makes no Claim unto them in a long time; unless fome Caufe do manifeftly appear, feems to do it to no other purpofe but to Thew that he is willing to renounce them; and this is it what Ulpian elsewhere intends, where he faith, that a House poffefs'd for a long time by another, and no Claim made, nor |