Part III. [-Lord STOWELL decided that the bond was valid, and in the course of his judgment observed, "It was not in the same province of that distracted kingdom that the transaction took place, nor could the master, under the circumstances in which he was placed, have applied to his owners for assistance;" and added, "It is true that it is usually required, as a condition necessary to the validity of bonds of this kind, that they should be executed in a foreign port, but the law does not look to the mere locality of the transaction. The validity or invalidity of the bond does not rest on that circumstances only, but upon the extreme difficulty of communication between the master and his owners. The difficulty of communication was, in fact, greater than if the ship had been in a foreign port. If the policy of the law, in allowing this authority to the master to hypothecate his ship and cargo, is founded on the extreme difficulty of communication with his owners, there is no reason for saying that there was not abundance of difficulty to authorize him to do so in the present instance."] It is the duty of the master or bondholder, wherever it is reasonably practicable, to communicate with the owners of ship and cargo before the master hypothecates them (a). Until an owner has been judicially declared insolvent he is entitled to such notice; if an owner has been judicially declared insolvent the assignees are entitled to notice (b). To render valid a bottomry bond where communication is practicable between the port of distress and the owner, it is not sufficient that the owner should be made aware of the disaster which has happened to the ship; he should also be informed of the intention to hypothecate (c). In considering an objection to a bottomry bond on ship and cargo, upon the ground that the master had not communicated with the owners of the cargo before giving the bond, the court will consider the probable effect of the delay arising from such communication, and not only whether it was reasonable and prudent for the master or the lender of the money to have any such communication with the owner or consignee of the cargo before entering into the bond. Where a bottomry bond was given at Plymouth by the master of a British ship, the owner of which, during its voyage to the East Indies, had died insolvent, his personal representative not having administered, and declining to make advances, a learned Judge of the Court of Admiralty entertained no doubt of his jurisdiction (d). More recently he refused to support a bottomry bond given by the master, with the consent of the owner, upon a British ship lying in a British port for a new voyage, on the ground that it would create without necessity a secret lien on the ship, to the prejudice of subsequent bonâ fide mortgages (e). (a) See Wallace v. Fielden, 7 Moore P. (b) The Panama, 39 L. J. Ad. 37. (d) The Trident, 1 W. Rob. 29. And see P. C. 398, as to the master's duty to communicate, where the means exist, with his owners. (e) The Royal Arch, Swab. 269. See the Heligoland, Swab. 491, where the owner gave a bond abroad. country. [With regard to a foreign country, the rule appears to be, that if Chap. 3. the master of a vessel has occasion for money to repair or victual his Raising ship, or for any other purpose necessary to enable him to complete money on the enterprise in which she is engaged, whether the occasion arises bottomry in from any extraordinary peril or misfortune (f), or from the ordinary foreign course of the adventure, he may, if he cannot otherwise obtain it, borrow money on bottomry at maritime interest, and pledge the ship, and the freight to be earned in the voyage, for repayment at the termination of the voyage. When this is done, the owners are never personally responsible (g). The remedy of the lender is against the master of the ship. But if the person who thus advances money does not choose to take upon himself the risk of the ship's return, and will be content not to demand maritime interest, there seems to be no reason why the master should not pledge both the ship itself and the personal credit of the owner. And in a case which came before Sir JOHN STRANGE, Master of the Rolls, wherein a man, who had advanced money to refit a ship in distress at Jamaica, and had taken from the master both a deed of hypothecation of the ship, and bills of exchange upon the principal owner in England, for the amount of the sum advanced, claimed payment of the owners personally, the ship having been captured on her voyage home, it was decreed that he should recover the money; and it is said also, that the ship was thought to be well hypothecated (h).] But it has been decided that the master has no authority to hypothecate the ship to secure advances for repairs, unless repayment be made to depend on the arrival of the ship (i). A bottomry bond may be given to a person who, without (f) The Gauntlet, 3 W. Rob. 82. The Prince George, 4 Moore, P. C. 21. (g) Molloy, book 2, ch. 11, s. 11. (h) [Samsun v. Bragington, 1 Ves. 443. It appears by the entry of the proceedings in the registrar's book, that the defendant Bragington said in his answer, that he believed 20 per cent. was added to the actual expense, to make up the sum for which the deed of hypothecation was given ; but this does not seem to have been proved. The deed of hypothecation, as stated in the plaintiff's bill, was for payment absolutely, and not upon condition of the ship's safe arrival in England, and the deed was proved in the cause.] (i) Stainbank v. Fenning, 11 C. B. 88. In the case, Stainbank v. Shepperd, Ex. Ch. 22 L. J. Exch. 341; 13 C. B. 418, in which, the facts being the same, a bill of exceptions had been tendered at the trial, Baron PARKE, in delivering the judgment of the court, observed:-" Precedent and authority show that it is essential to hypothecation that the sea-risk should be incurred by the lender, and that the pledge should take effect only in the event of the ship's safe arrival. The Nelson, 1 Hagg. 169; the Atlas, 2 Hagg. 48; the Emanci- Part III. actually advancing money, has pledged his credit for the expenses of the ship (a). Money should be advanced on credit of ship. To whom and by whom given. 6. Requisites to Validity of Bottomry Securities. [It is necessary, however, to the validity of a bond securing maritime interest, that the money should be originally advanced upon the credit of the ship. If it be originally advanced upon the credit of the owner, and such a bond be afterwards given, in consequence of doubt arising as to his responsibility, even before the ship leaves the place of advance, the bond will be invalid (b). It is no objection to the validity of such a bond that it happens to be given to the consignees of the cargo; the necessity of borrowing by hypothecation, and the fairness of the transaction, being established (c).] And this is so, though the master was appointed by the consignees. It has been doubted even whether a master substituted by underwriters, after abandonment by the owners, cannot give a valid bottomry bond (d). Bonds given by masters substituted by the British consul at a foreign port, and even given by the consul himself, after a new master, in a case of great emergency, had been appointed by him, have been supported against a claimant on a bond of prior date (e). So also has a bond given by a master who had been confined by a mutinous crew, though given to cover charges incurred when he was out of possession, and which the bondholder has incurred without his authority (f). These securities are the creatures of necessity and distress, and may be expected to assume different shapes, which cannot be limited except by the condition of maritime interest is not payable; if dis- (a) The Royal Arch, Swab. 279. (b) [The Augusta, 1 Dods. 283:] the Wave, 15 Jur. 518; Gore v. Gardiner, 3 Moo. P. C. 79. The Empire of Peru, 39 L. J. Ad. 12. But where it is clear that the advances were made on the faith of a lien on the ship, according to the law of the country, the bond is good. The Alexander, 1 Dods. A. R. 280. The Vibilia, 1 Rob. 1. Smith v. Gould, P. C. 6 Jur. 543. The Royal Arch, Swab. 278. As to the presumption that a foreign lender makes advances in contemplation of bottomry, see the Karnak, 37 L. J. Ad. 41. (c) [The Alexander, 1 Dods. 278;] the Rubicon, 3 Hagg. 9. (d) The Kennersley Castle, 3 Hagg. 1. Lord Cochrane, 2 W. Rob. 320. (e) The Zodiac, 1 Hagg. 320; the Cynthia, 16 Jur. 748. As to the power of a master appointed by a charterer to pledge the ship by bottomry contract, see ante, p. 91, note. (f) The Gauntlet, 3 W. Rob. 82. a faithful and beneficial discharge of the authority exercised in Chap. 3. granting them, as being necessary for the preservation of property. A bottomry bond given to the charterer of a ship was supported by Lord STOWELL, although there was a consignee of the ship at the port, the latter not being willing to make the advances (g). When a bottomry bond had been given to the agent (h) of the owner, and it was objected that the agent was bound to supply the necessary funds for the disbursements of the ship without bottomry security, the same learned judge said "The case of necessity, which is the foundation of a bottomry bond, does not arise where there is a credit existing on which money can be obtained without resorting to the real security of the ship. At the same time, I will not take upon myself to lay it down as an universal proposition, that an agent may not, under any circumstances, take the security of a bottomry bond. Cases may possibly arise in which an agent may be justified in so doing. It can be no part of his duty to advance money without a fair expectation of being reimbursed; and if he finds it unsafe to extend credit to his employers beyond a certain reasonable limit, he may then surely be at liberty to hold his hand, and to say, 'I give up the character of agent,' and, as any other merchant might, to lend his money upon bond, to secure its payment with maritime interest." But a person indebted to the owners of a vessel cannot lend money to her master on bottomry (i). He should satisfy his debt, and there would be no necessity for the bond. [There is no settled form of contract in use on these occasions. Form of conSometimes an instrument in the form of a bond, at others in the tract. form of a bill of sale, at others of a different shape, is made use of (k); but, whatever the form, the occasion of borrowing, the sum, the premium, the ship, the voyage, the risks to be borne by the lender, and the subjection of the ship itself as security for the payment, all usually are and properly ought to be expressed.] It is absolutely necessary that the liability of the lender to the sea risks should appear or be fairly collected or implied from the instrument (). Maritime interest is not essential to its validity, though a stipulation for an ordinary rate of interest will be a material circumstance in determining whether maritime risk was intended (m). If sea risk be directly expressed, a stipulation that the ship shall be insured for the voyage by the lenders, and the premium be repaid (g) The Nelson, 1 Hagg. 169. (h) The Hero, 2 Dods. 139. The Oriental, 7 E. & M. 476. See Smith v. Bank of New South Wales, 41 L. J. Ad. 49, where a bond to an agent was held good. Upon the 3 & 4 Vict. c. 65, s. 6. it has been held that an agent for a ship, being also part-owner, may sue in rem for necessaries supplied to it. The West Friesland, Swab. 454. (i) The Hebe, 2 W. Rob. 146. The Karnak, 37 L. J. Ad. 41; L. R. 2 Ad. 289. (k) [The reader will find in the Appendix two different forms used in the same voyage, (1) 2 Hagg. 57, Atlas. The Indomitable, (m) The Emancipation, 1 Wm. Rob. 124. The Indomitable, ubi supra. The Royal Arch, Swab. 279. Part III. by the borrowers, may not be thought material (a). These instruments being the language of commercial men, and not of lawyers, will receive a liberal construction to give effect to the intention of the parties (6). Thus in an action on a policy of insurance, where the plaintiff in his declaration alleged his interest to be bottomry, setting out the bond in which was the following clause-"I do further hereby bind myself and schooner brig Clarence, her freight and cargo of every kind, to the full and complete payment of the said sum, with all charges thereon, in eight days after my arrival at the afore-mentioned port of London; and I do hereby make liable the said vessel, her freight and cargo, whether she do or do not arrive at the above-mentioned port of London, in preference to all other claims, until such sum, with 127. per cent. bottomry premium, be paid”— the Court of Common Pleas, upon demurrer, decided that it was not bottomry, and gave judgment for the defendant. The case being brought by writ of error before the Court of King's Bench, that judgment was reversed; Lord TENTERDEN said, "We are all satisfied that our judgments must be for the plaintiffs. Of course, no person can be entitled to the periculi pretium who does not take upon himself the risk of the voyage-but it is not necessary that his doing so shall be declared expressly, and in terms, though this is often done : it is sufficient that the fact can be collected from the language of the instrument considered in all its parts. In this case, if the words 'instead of eight days after my arrival' had been eight days after my ship's arrival,' there could have been no doubt that the lender took upon himself the peril of the voyage, if there be not, in some part of the instrument, some matter denoting a contrary intention. Now the personal arrival of the master unconnected with the ship, is a matter which it cannot be supposed that either party contemplated; it cannot be supposed that the lenders looked to him personally, or to his personal means-nor that he intended to pledge himself personally and absolutely for the payment, without regard to the means with which he might be furnished by the ship and her freight; we, therefore, are of opinion that the words 'my arrival' must be understood to mean my arrival with the ship, or my ship's arrival. With respect to the words 'I do hereby make liable the said vessel, her freight and cargo, whether she do or do not arrive at the abovementioned port of London,' we think these words were intended to provide only for the ship's arrival at some other than the destined port, and, in such an event, to give the lenders a claim on the ship in preference to other claims: it cannot be intended to provide for the case of the loss of the ship, because in that event there would be nothing on which a pledge could operate, or a preference be claimed." 6 The master and part-owner of the ship sometimes professes to bind not only himself and his ship, but also his co-owner personally, (a) The Indomitable, Swab. 44. (b) Symonds v. Hodgson, 6 Bing. 114; 3 B. & Ad. 50. |