Bottomry bond-how enforced. instance of the consignees, on account of damage done on the voyage to part of the cargo, and for payment of the port duties and other disbursements necessary to enable the ship to prosecute her voyage. The bond was held good to the extent of the sums advanced for necessary supplies and for payment of the port duties (a). $ 84. The creditor on a bottomry bill or bond, entered into by a shipmaster, will have no property in the ship hypothecated, but only a maritime lien or charge on it (b). The creditor may avail himself of this right on the arrival of the ship in England, by obtaining a warrant from the Admiralty Division of the High Court, to arrest the vessel, and by summoning all persons interested before the court (c). There is no jurisdiction in a county court to enforce a bottomry bond (d); nor in the Admiralty Division, where the ship is mortgaged in England before the commencement of the voyage (e). The court has jurisdiction to decree a sale to be made of the vessel, and to divide the proceeds among the various claimants (b). It Unless the shipowners have expressly agreed to become personally liable, no action can be brought against them personally. The bottomry creditor must proceed either against the master himself, or against the ship (ƒ). follows from this that the creditor should not advance more than the value of the ship and freight (g); for the shipowner will not be liable for the difference. It would seem that where in an action for limitation of liability a sum of money is awarded as compensation for (a) Smith v. Gould, The Prince George, 4 Moore, P. C. Ca. 21. (b) The Tobago, 5 Rob. 218, 222; Stainbank v. Fennings, 11 C. B. 51. (c) Johnson v. Shippen, 2 Ld. Raym. 982; Benzen v. Jeffries, 1 Ld. Raym. 152; King v. Perry, 3 Salk. 23; Place v. Potts, 5 H. of L. Cas. 383. (d) The Elpis, L. R., 4 A. & E. 1. (e) The Royal Arch, Swa. 269; The Jenny, 2 W. Rob. 5. (f) Johnson v. Shippen, 2 Ld. Raym. 982. (g) Benson v. Duncan, 3 Ex. 644, 656. loss of freight to the owners of a ship run down by the plaintiff's ship, the holder of a bottomry bond on the freight of the ship run down can claim a portion of the sum so awarded (h). If several bottomry bills or bonds have been made at Priority of bottomry different periods of the voyage, and the proceeds of the bonds. sale of the vessel be insufficient to pay all the loans, the last in point of date will have priority of payment. This rule is based on the presumption that had not the last loan been made, the other mortgagees would have lost their security (). This privilege is, however, confined to bonds given under pressure of necessity in a foreign port, where the master and owners have no personal credit, and no other means of procuring supplies to repair the ship (i). A bottomry bondholder will have priority over a mortgagee (k). This will be the case, even where the existence of the bond has been concealed from the mortgagee (1). The bond, however, when due, should be enforced within a reasonable time (m). Further, the bond will not be preferred to claims for wages (n), salvage (o), towage, pilotage (p) or damage (q). A person who has advanced any dock dues will stand in the same position as the dock company. His claim will therefore rank with pilotage and towage claims, and will have priority over a bottomry creditor of an earlier date (r). (h) The Empusa, 5 P. D. 6; 48 L. J., P. 36; 41 L. T. 383. (i) The Rhadamanthe, 1 Dods. 201; see "Cases" (1) at end of this §; Abbott, p. 163, 8th ed. (k) The W. F. Safford, Lush. 69; The Gustaf, Lush. 506. (1) The Helgoland, Swa. 491; The Dungevan Castle, 3 Hagg. 331. (m) The Royal Arch, Swa. 269. (n) The Sidney Cave, 2 Dods. 13; The Union, Lush. 128; The Constancia, 10 Jur. 845; The Wm. F. Stafford, Lush. 71; The J. Goodhue, (0) The Wm. F. Stafford, Lush. 71. (a) The Aline, 1 W. Rob. 111; The Benares, 7 Not. of Cas. Suppl. 50; see Ch. XIII. § 87, p. 148. (r) The St. Lawrence, 5 P. D. 250; 49 L. J., P. 82. Law of flag governs as to validity. As between two or more bottomry bondholders the court will marshall assets (p). CASES. 1. A vessel on a voyage from Malta to London had to put into Port Mahon to repair. The cost of the repairs was advanced by a merchant on the security of a bottomry bond on the ship and freight. The bond amounted to 8047., including interest at the rate of 28 per cent. The ship then continued her voyage, but was again damaged. It was then repaired at Cork, the money being advanced by C. & Co. on two bonds, binding the ship, freight and cargo, but especially the ship and freight. The latter advances were, however, really made on the personal credit of the owners, and not on the ship. Held, that the bonds securing them had therefore no priority over that granted at Port Mahon (q). 2. One bottomry creditor was secured on the ship and freight, and a second on the ship and cargo. The latter was ordered to be paid out of the cargo; and so the ship and freight were sufficient to pay the former creditor (r). § 85. The validity of a bottomry bond, given by a shipmaster in a foreign port, will be governed by the law of the flag (s), i. e., the law of the country to which the ship belongs. For the owner of a cargo, shipped on board a foreign vessel, is deemed to ship it to be dealt with by the master according to the law of the flag, unless the master's authority be limited by express stipulation at the time of the shipment (s). From this it follows that a bond, given by the master, hypothecating cargo on board a foreign ship, will, if valid according to the law of the ship's flag, be enforced on the arrest of the ship and cargo at the port of discharge. This rule will not be affected by the mere fact of any (p) The Trident, 1 W. Rob. 29, 35; see "Cases" (2) at end of this §. (2) The Rhadamanthe, 1 Dods. A. R. 201. (r) The Trident, 1 W. Rob. 29, 35. (s) The Karnak, L. R., 2 P. C. 505; The Gaetano and Maria, 7 P. D. 1, 137 (C. A.); 51 L. J., P. 67; 46 L. T. 835; 30 W. R. 766. condition imposed by English law as essential to the validity of the bond not having been complied with (†). With respect to the validity of a bottomry bond, as in Foreign judgment. other cases, the judgment in rem of a foreign competent court is conclusive. Any hypothecation made by an agent of such a court, will be valid in the absence of fraud or manifest mistake (u). (t) The Gaetano and Maria, supra. (u) Messina v. Petrocochino, L. R., 4 P. C. 144; Dent v. Smith, L. R., L N. CHAPTER XIII. NECESSARIES AND RANK OF LIENS INTER SE. Material man's lien. Admiralty as to. $86. A SHIPWRIGHT employed to repair a ship will have a lien for repairs. But his lien is an ordinary common law lien, and differs from a maritime lien (a) in that, being a merely possessory lien, it is lost whenever he parts with the possession, and in that it never arises if the repairs are executed on credit (b). Whether or not he has a lien, a shipwright can of course bring an action against his employer to recover the price of the repairs. So a tradesman or other material man who supplies a ship with necessaries, can sue for their value. He has also a merely possessory and not a maritime lien. Actions for repairs and necessaries are generally within jurisdiction the Admiralty jurisdiction. Thus the Admiralty Court can entertain any claim for the building, equipping or repairing a ship, if the ship or its proceeds are under arrest of the court (c). So it can try an action for necessaries supplied to a ship elsewhere than in the port to which she belongs, unless the owner or part owner be domiciled in England or Wales (d). Where the amount claimed for necessaries supplied does not exceed 1507., or where the parties consent, the action can be tried in a county court (e). The county court, of course, has no greater jurisdiction than the High Court, (a) See p. 148, § 87. (b) Raitt v. Mitchell, 4 Camp. 146; Ex parte Shank, 1 Atk. 234. (c) 24 Vict. c. 10, s. 4 (The Admiralty Court Act, 1861). (d) 24 Vict. c. 10, s. 5. (e) 31 & 32 Vict. c. 71, s. 3. |