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Article 3. of the title of the ordinance engagement, contained, in this respect, inconsistent provisions, and such that the sailor hired by the month might be under the necessity of receiving less wages, if the rupture happened after the commencement of the voyage, than in the case where it should take place before the voyage was begun.
The fourth paragraph of article 252. of the project now presented, obviates this contradiction, and redresses the wrong which was done to the seamen. They are allowed half their wages for the remainder of the presumed duration of the voyage, and their expenses in returning home. This provision appears to reconcile what justice and humanity dictated in their favour, with the just regard due to the interests of the owners of ships, who in such cases cannot be separated from the interests of navigation.
The addition annexed to article 298. of the project, demands some examination,
This article presupposes that the master may have been obliged to sell a part of the cargo to defray the urgeur expenses of the ship, and prescribes that if the ship be lost, the master shall account for the goods thus sold, at the price he received for them, retaining the freight mentioned in the hills of lading.
The ordinance made no regulation on this subject in case of the loss of the ship. The commentators maintained a contradictory doctrine : some of them considered the goods sold previously to the loss, in order to provide for the urgent wants of the ship, as the forced subject of a contract of bottomry, and refused pay. ment to the owner of the goods ; others granted this payment, Cousidering the goods as saved, since they had been disposed of before the ship had experienced any disaster. It was necessary to come to a determination on this point. It has been deemed equitable to consider that the goods sold to defray the urgent expenses of the ship, constituted a valid debt in favour of their owner; that from that moment they had ceased to be at risk; that the master, and the owners of the ship, who were bound to provide for her wants, had contracted a personal debt in applying these goods towards the performance of their personal duty; that in such a circumstance, a contract of bottomry cannot, by its peculiar nature, be either presumed or supposed ; that it would be strange to consider as lost, goods sold before the loss of the ship, whilst they might have been saved even in the event of shipwreck; that finally, the owner of the goods sold, if they were not paid for by the master, would find himself stript of his property, without having any remedy against his insurers, who would not be chargeable with the reimbursement, since there would have been no object on board at risk at the time of the loss of the vessel.
These reflections have produced the provision expressed in the second paragraph of article 298.
In substituting, by article 306, 307. and 308. a deposite in the hands of third persons, and the lien of the master for his freight on the goods so deposited, for the right of stopping and seizing these goods, which the ordinance gave him, we have adopted a measure which appears to be better adapted to the conciliatory proceedings of commerce.
This measure preserves the interest of the master, who has a right to be paid his freight, before delivering irrevocably his pledge; at the same time that it also provides for the security of the consignee, who, before paying the freight, has a right, in his turo, to examine into the state of the merchandise which was to be delivered to him.
Such, gentlemen, are the principal changes nade in the ordiDance of 1681, in the first eight titles of the law which we now present to you.
Some slighter modifications, transpositions, differences in the mere penning, justify themselves; and their utility, though quite of a secoudary nature, will not escape your penetration.
In adopting this project, gentlemen, you will second the paternal views, and the beneficent intentions of the hero who deligbts to entwine the olive branch of peace with the laurels which he has gathered, who regenerates the whole of commercial legislation, and desires the freedom of the seas only for the prosperity of his people, and of commerce.
EXPOSITION OF THE MOTIVES
BOOK II. TITLES IX. AND X.
THE COMMERCIAL CODE. Presented by Messrs. Corvetto, Bégouen, and Maret, Counsellors
SITTING OF THE EIGHTH SEPTEMBER, 1807.
GENTLEMEN, Contracts of bottomry and of insurance form the subject of the titles 9. and 10. of the book which is now presented to you.
These contracts resemble each other in many respects.
In one, says an intelligent writer, the lender is erposed to maritime risks; in the other, the insurer.
In one, the nautical interest is the price of the peril ; and in the other, the premium is the price of the maritime risks.
The rate of this interest, or of this premium, is more or less high, according to the duration and the nature of the risks.
This analogy prevails in their essence. They are governed in their effect, by the same principles : neither of them can be the means of acquiring a title in the subject : their basis is a real risk : their object is only to relieve the borrower from the restitution of the sum borrowed, and to indemnify the insured against an intrinsic and real loss, in case of an unfortunate accident: hence they contribute, though in a very different proportion, to the prosperity of maritime commerce.
In pursuing these principles, gentlemen, you will appreciate the project which concerns these contracts. Here again the ordinance of 1681 has thrown light upon our labours, and we shall confine ourselves to pointing out to you with care the cases,
extremely rare, in which it has appeared to us necessary to supply or to change its provisions.
I am going to take a rapid view of a matter the principles of which so many able jurists, so many intelligent merchants, have developed; happy, if, whilst endeavouring to be brief, I do not become obscure !
Article 311. regulates the formalities necessary to be observed in contracts of bottomry, as well in France as in foreign countries : it was of importance here to make an addition to the ordinance.
A contract of bottomry carrying a privilege with it, the existence and the time of making this contract, ought to be verified in a manner not to expose ordinary creditors to becoming the victims of a collusory contrivance; the registry in the clerk's office of the tribunal of commerce in France, and the intervention of a magistrate in foreign countries, have appeared to us necessary to accomplish an object so just and so salutary.
Article 312. which renders the registry of every loan on bottomry necessary to its validity, is also a supplement to the ordinance.
Usage had anticipated this provision of the law: the interests of commerce required that this usage should be adopted: it was the wish of the most enlightened writers.
But it is necessary, to that end, that the bottomry bond be payable to order, without which, the acquirer would be but a simple assignee; he would be liable to all the exceptions or setoffs which might be brought against the obligee or leuder.
Here a pretty important question has arisen. The endorsement raises an action of guaranty against the endorser. Shall, then, the endorser, who becomes surety on the bottomry bond, be answerable for the maritime interest ? His obligation is indefinite : the maritime interest forms only an accessory part of the sum lent; the security ought to comprise both.
We have not entertained this opinion.
It is not that it may be disputed that the endorsement constitutes a guaranty, and that it gives a right of action on the lia
bility of the endorser ; but we must determine to what extent this guaranty ought to go: its limit ought to be the sum lent. The lender on bottomry has endorsed his bond ; that is to say, he has transferred it for a sum equal to that which he himself has given, and which is found expressed in the text of the bond. It is just, it is in the order and the nature of things, that he should guaranty to the amount of that sum; but why should he become surety for a larger sum? What indemnity would he receive for this new guaranty ? Surety for the sum which he receives, he would also be liable without a motive for 25 or 30 per cent, maritime interest, which he does not receive: equity and justice seem to repel this idea.
But although we have adopted this opinion, we have thought it would be proper to leave the parties at liberty to make a contrary agreement; for it may well be believed that the endorser, in running a greater risk, would not fail to stipulate for an indemnity proportioned to the conventional extent of his guaranty,
The third article of the ordinance prohibited the taking up of money on bottomry, upon the body and keel of the ship, or upon the merchandise laden on board, to an amount beyond their value, under the penalty of being compelled, in case of fraud, to repay the whole sum borrowed, notwithstanding the loss or capture of the vessel.
The framing of this article appears to be incomplete, because there was no reason for not applying the provision relative to the loss or capture of the vessel, to the case of the loss or capture of the cargo. It appears to be equivocal, because it was only known from the opinion of the commentators, whether the whole şum comprised or did not comprise the maritime interest. It did not sufficiently protect the interests of the lender, because, in case of fraud, the contract should have been pronounced void.
These considerations have induced us to frame the law in a manner which we have thought more exact. Article 316. of the bill declares the contract null, whatever may be the subject on which it is effected, if the sum lent exceed the value of the subject, and fraud be proved on the part of the borrower; but this nullity is to be declared only on the demand of the lender.