The "Fortitude"

JurisdictionEngland & Wales
CourtHigh Court of Admiralty
Judgment Date20 December 1843
Date20 December 1843

English Reports Citation: 166 E.R. 736


The "Fortitude"

S. C. 2 Notes of Cas. 515; 2 L. T (O. S.) 229; 8 Jur. 23. Referred to, place v. potts 1853, 1 C L R. 679.

the " fortitude "-(Douglass). December 20, 1843.-Construction of the third section of the statute 3 & 4 Viet. c. 65 The enabling power conferred upon the Court by the statute does not extend to all questions arising out of a deed of mortgage, but is confined to the ship itself being mortgaged. [S. C. 2 Notes of Cas. 515 ; 2 L. T (O. S.) 229 ; 8 Jur. 23. Referred to, Place v. Potts, 1853, 1 C L R. 679.] This was a cause civil and maritime, promoted by the mortgagees of forty-eight sixty-fourth parts or shares of the vessel, respecting certain claims of the said mortgagees under a deed of mortgage, bearing date 4th August 1841. It appeared that T. Humphreys, the owner of the forty-eight sixty-fourth parts in question, having [218] mortgaged his said shares to the mortgagees as a security for his banking transactions, the ship nevertheless remained in the possession and under the management of the owners, and in the month of October 1841, sailed under the command of J. Douglass, also part owner, on a voyage from London to South Australia, and other parts in the China Seas, and back to England. During the voyage T. H., the mortgagor, became a bankrupt, and the ship returned to London with a valuable cargo on board, Douglass, the master, being at such time the only solvent owner of the said ship. The freight for the transportation of the cargo was duly paid by the consignees to Douglass, the master, who disposed of the larger portion thereof in the liquidation of his own wages as master and the liabilities of the ship during the voyage Upon the return of the ship, actions were commenced in this Court for wages on behalf of the manners, and these actions were still pending upon the 2d July 1841, when a principal action was also entered on behalf of the mortgagees, claiming forty-eight sixty-fourth shares of the gross freight so paid into the master's hands. The warrant as against the freight was executed by the arrest of the cargo, and bail was given on behalf of Douglass, the master, and the consignees of the cargo in the sum of 2000. An appearance to the action was also given on their behalf, under protest. The act on petition in support of the protest, after setting forth the circumstances of the case as stated above, further alleged that, by an Act of Parliament of the 3 & 4 Viet. c. 65, intituled " An Act to improve the Practice and extend the Jurisdiction of the High Court of Admiralty of England," it is by the third section of the 3 W. ROB. 819. THE " FORTITUDE " 737 said Act enacted in the words following, [219] to wit, " And be it enacted, that aiter the passing of this Act, whenever any ship or vessel shall be under arrest by process issuing from...

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4 cases
  • Ocean Jade', Owners of cargo laden on board the ship or vessel; 'Ocean Jade', Owners of the ship or vessel v; The Ocean Jade
    • Malaysia
    • High Court (Malaysia)
    • 1 January 1991
  • Goring, The (Admiralty)
    • United Kingdom
    • House of Lords
    • 25 February 1988
  • The "Ocean Jade"
    • Singapore
    • High Court (Singapore)
    • 27 February 1991
    ...[1965] 2 All ER 323 (folld) Cargo Ex Argos (1873-74) 5 LRPC 134 (refd) Conoco Britannia, The [1972] 2 QB 543 (refd) Fortitude, In re (1843) 2 W Rob 217; 166 ER 736 (refd) Halcyon Isle, The [1981] AC 221 (folld) J (an infant), Re [1960] 1 WLR 253; [1960] 1 All ER 603 (folld) Kaleten, The [19......
  • The "Edmond"
    • United Kingdom
    • High Court of Admiralty
    • 31 January 1861
    ......The item for new masts cannot be allowed, the new masts were not necessary in that strict sense of necessity required in bottomry repairs, as clearly explained by Justice Story, in The " Fortitude " (3 Sumner, 234). They were put in only upon the demand of the underwriters who were going to insure, not the ship, but the bond. Lastly, many circumstances raise a suspicion of fraud The bondholders do not give the date of the agreement for bottomry, they produce [62] no instructions received ......
1 books & journal articles
  • Canada's admiralty court in the twentieth century.
    • Canada
    • McGill Law Journal Vol. 47 No. 3, May 2002
    • 1 May 2002
    ...1985, c. F-7. (4) R. v. Forty-Nine Casks of Brandy (1836), 3 Hag. Adm. 257, 166 E.R. 401 (H.C. Adm.); The Fortitude (1843), 2 W. Rob. 217, 166 E.R. 736 (H.C. Adm.). For a recent application of the rule, see The Goring, [1988] 1 A.C. 831, [1988] 1 All E.R. 641 (5) The Thomas Jefferson, 23 U.......

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