"When this contract was made," said the court, "no statute had been passed by the State changing the rules of law or equity in relation to a contract of this kind, and it must, therefore, be governed, and the rights of the parties under it measured, by the rules above stated. They were the laws of Illinois at the time, and, therefore, entered into the contract, and formed a part of it, without any express stipulation to that effect in the deed. Thus, for example, there is no covenant in the instrument giving the mortgagor the ight to redeem by paying the purchase money after the day limited in the deed, and before foreclosed by a decree of the Court; yet no one doubts his right or his rem through the judicial proceeding in this suit. These proceedings are a necessary part of the transfer of title. The Legislature of Illinois has prescribed, as an essential element of the transfer by the courts in foreclosure suits, that there shall remain to the mortgagor the right of redemption for twelve months, and to judgment creditors a similar right for fifteen months, after the sale, before the right of the purchaser to the title becomes vested. This right, as a condition on which the title passes, is as obligatory on the Federal Courts as on the State Courts, because in both cases it is made a rule of property by the Legislature, which had the power to prescribe such a rule. See U. S. v. Fox [ante, 192]. 637] *But there is another view of the ques-edy; for, by the laws of the State then in force, tion which is equally forcible, and which leads to the same result. All contracts between private parties are made with reference to the law of the place where they are made or are to be performed. Their construction, validity and effect are governed by the place where they are made and are to be performed, if that be the same as it is in this case. It is, therefore, said that these laws enter into and become a part of the contract. There is no doubt that a distinction has been drawn, or attempted to be drawn, between such laws as regulate the rights of the parties, and such as apply only to the remedy. It may be conceded that in some cases such a distinction exists. In the recent case of Tenn. v. Sneed [ante, 610], we held that, so long as there remained a sufficient remedy on the contract, an Act of the Legislature, changing the form of the remedy, did not impair the obligation of the contract. But this doctrine was said to be subject to the limitation that there remained a remedy which was complete, and which secured all the substantial rights of the party. At all events, the decisions of this court are numerous that the laws which prescribe the mode of enforcing a contract, which are in existence when it is made, are so far a part of the contract that no change in these laws which seriously interfere with that enforcement are valid, because they impair its obligation within the meaning of the Constitution of the United States. Edwards v. Kearzey, this Term [ante, 793]. That this very right of redemption, after a sale under a decree of foreclosure, is a part of the contract of mortgage, where the law giving the right exists when the contract is made, is very clearly stated by C. Justice Taney, in the case of Bronson v. Kinzie, 1 How., 311. That case was one which turned on the identical Statute of Illinois which is invoked by the appellant in this case. The mortgage, however, on which that suit was founded, was made before the statute was passed; and the court held, that, because the statute conferred a new and additional right on one of the parties to the contract, which impaired its obligation, it was for that reason forbidden by the Constitution of the United States, and void as to that contract. But the Chief Justice, in delivering the opinion, further declared, that, as to all contracts 638] *made after its enactment, the statute entered into and became a part of the contract, and was therefore valid and binding in the Federal Courts as well as those of the State. As it is impossible to state the case and the doctrine applicable to the case before us any better. we give the language of the court on that occasion: this right and this remedy were a part of the laws of the contract, without any express agreement of the parties." Speaking of the law now under consideration, he said: "This law gives to the mortgagor and to the judgment creditor an equitable estate in the premises, which neither of them would have been entitled to under the original contract; and these new interests are directly and materially in conflict with those which the mortgagee acquired when the mortgage was made. Mortgages made since the passage of those laws must, undoubtedly, be governed by them; for every State has the power to prescribe the legal and equitable obligations of a contract to be made and executed within its jurisdiction. It may exempt any property it thinks proper from sale for the payment of a debt, and may impose such conditions and restrictions upon the creditor as its judgment and policy may dictate. And all future contracts would be subject to such provisions, and they would be obligatory on the parties in the courts of the United States, as well as in those of the State." In Clark v. Reyburn, 8 Wall., 318, 19 L. ed., 354, the court, in recognition of the doctrine that the statute becomes a part of the contract, uses this language: "In this country, the proceeding in most of the States, and perhaps in all [639 of them, is regulated by statute. The remedy thus provided, where the mortgage is executed, enters into the convention of the parties, in so far as that any change by legislative authority which affects it substantially, to the injury of the mortgagee, is held to be a law impairing the obligation of the contract, within the meaning of the provision of the Constitution on that subject." We are not insensible to the fact that the industry of counsel has been rewarded by finding cases even in this court in which the proposition that the rules of practice of the Federal Courts in suits in equity cannot be controlled by the laws of the States, is expressed in terms so emphatic and so general as to seem to justify the inference here urged upon us. But we do not find that it has been decided in any case that this principle has been carried so far as to deny to a party in those courts substantial rights conferred by the statute of a State, or to add to or take from a contract that which is made a part of it, by the law of the State, except where the law impairs the obligation of a contract previously made. And we are of opinion that Chief Justice Taney expressed truly the senti ment of the court as it was organized in the case of Bronson v. Kinzie, as it is organized now, and as the law of the case is, when he said [No. 275.] that "All future contracts would be subject to such provisions, and they would be obligatory Submitted Apr. 26, 1878. Decided May 13, 1878. upon the parties in the courts of the United States as well as those of the States." It is not necessary, as has been repeatedly said in this court, that the form or mode of securing a right like this should follow precisely that prescribed by the statute. If the right is substantially preserved or secured, it may be done by such suitable methods as the flexibility of chancery proceedings will enable the court to adopt, and which are most in conformity with the practice of the court. Ex parte McNiel [supra]. In the case before us, no better mode occurs to us than that prescribed by the statute, namely: that the master making the sale shall give to the purchaser a certificate of the sale with the sum at which the land was sold, and a statement that, unless redeemed within fifteen months by some one authorized by the law to make such redemption, he will be enti640] tled to a deed. The matter being thus reported to the court, it can, at the end of the time limited, make such final decree of confirmation and foreclosure of all equities as are necessary and proper; or, if the land be redeemed, then such other decree as the rights of the parties consequent on such redemption may require. The decree of the Circuit Court is reversed, so far as it requires the sale to be made in accordance with the course and practice of the court, and the case is remanded with directions to modify the decree, by making provision for the sale and redemption in conformity to this opinion. Dissenting, Mr. Justice Harlan. I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the head notes and opinion of the Court in the case of Ida Winter Brine, by George J. Brine, her Guardian ad litem, appt., v. The Hartford Fire Insurance Company, No. 279, October Term, 1877, as the same remains upon the files and records of said Supreme Court. In testimony whereof I hereunto subscribe my name and affix the seal of said [L. S.] Supreme Court, at the City of Washington, this 20th day of March, A. D. 1885. James H. McKenney, Clerk, Supreme Court, U. S. THE DELAWARE MUTUAL SAFETY INSURANCE COMPANY, Plff. in Err., V. JOHN H. GOSSLER et al. (See S. C., Reporter's ed., 645-658.) Error to the Circuit Court of the United States for the District of Massachusetts. This was an action for money had and received, brought in the court below by the plaintiff in error. The money in dispute is the proceeds of the sale of certain sugars, which formed a part of the cargo of the bark Frances, on her voyage from Java to Boston. The vessel was wrecked on the voyage, but a part of the cargo was saved and sold. The plaintiff Company was an underwriter on the cargo, and had accepted an abandonment and paid a total loss. The defendants, who were assignees of a bottomry bond given upon the ship, cargo and freight, took possession of the sugars, and claimed to hold their proceeds as such assignees. The case is further stated by the court. Messrs. William G. Russell, Walter Curtis and Charles M. Reed, for plaintiff in er ror: The agreed facts show an utter loss of the vessel. As to what constitutes an utter loss under a bottomry bond, the leading case is Thomson v. Roy, Exch. Ins. Co., 1 Maule & S., 30. Lord Ellenborough there held that a constructive total loss would not discharge the borrower, but that an actual total loss was necessary for this purpose; and at the close of the opinion he uses this language: "Nothing short of a total destruction of the ship will constitute an utter loss. If it exists in specie in the hands of the owner, it will prevent an utter loss." The case before his Lordship was one of constructive total loss only. The vessel was in existence as such and capable of repair, although at an expense disproportionate to her value. The same was the fact in the subsequent cases of the Catherine, The Elephanta, The Great Pacific. relied upon by the defendants. When it is said that "The existence of the ship in specie in the hands of the owner will prevent an utter loss," we submit that this can only mean the existence of a ship, as a ship, with the capacity of being put in the condition to be practically used as a ship, and that it does not refer merely to the form of the wreck. Joyce v. Williamson, 3 Doug., 164; Pope v. Nickerson. 3 Story, 489; Murray v. Hatch, 6 Mass., 475; Cambridge v. Anderton, 2 Barn. & C., 691; Roux v. Salvador, 3 Bing. (N. C.), 286; 2 Arn. Ins. Am. ed., sec., 364. p. 990; Marsh. Ins. 4th ed., 446; Barker v. Jauson, L. R., 3 C. Master's power to hypothecate ship-bottomry P., 305; see, also, 2 Phil. Ins. sec. 1485; Walkbond-rights of holder-preference to insurer v. Ins. Co., 29 Me., 317, 321; Gardner v. ance abandonment. Salvador, 1 Moody & Rob., 116; Irving v. Manning, 1 H. L. C., 287; Mullet v. Shedden, 13 East, 304. We submit that the condition of The Frances, at the time of the sale, brought her within the above definitions in the authorities above cited, of natural total loss. She had been driven on shore by two successive gales, had a bad break amidships, in conse quence of which she was filled with water, and entirely submerged at high tide. She was deemed irreparable, and the underwriter's agent had abandoned all hope of getting her off. It is further to be noticed that it was midwinter; that the vessel had been ashore nearly two months, and that the place was the outside of Cape Cod, exposed to the surf from the open ocean; that she was badly broken and an iron ship. As the vessel lay, she was clearly valueless as a ship, even if otherwise capable of being repaired, unless she could be raised and floated. Whether she could be gotten off was not a matter of exact calculation, like the expense of repairs, but a matter of opinion, and was at best but a possibility. The underwriters' agent, acting for the benefit of all concerned, considered it impossible. It is immaterial that the purchasers entertained some unfounded hopes of saving the vessel. The state of the ship, not the acts of the parties, is what determines the fact of the loss. Cambridge v. Anderson, Ryan & M., 61; Gardner v. Salvador, 1 Moody & Rob., 116; Murray v. Hatch, 6 Mass., 475; Poole v. Ins. Co., 14 Conn., 47. So where, as in the present case, the vessel was, after her sale as a wreck, exposed to no new perils, and the natural and inevitable result of the causes then operating upon her was to complete her utter destruction, and it has been proved by experiment that she could not be released from the operation of those causes, we submit that her final utter destruction, in connection with the testimony as to her previous condition and situation, is conclusive proof that she was virtually, at the time of sale, "utterly lost." Peele v. Ins. Co., 7 Pick., 256; Peele v. Ins. Co., 3 Mas., 42; Hall v. Ins. Co., 9 Pick., 484; Crosby v. Ins. Co., 5 Bosw., 369; Stagg v. Ins. Co., 3 Johns. Cas., 34; Coit v. Smith, 3 Johns. Cas., 16; Gardner v. Salvador, 1 Moody & Rob., 116; Tudor v. Ins. Co., 12 Cush., 554; Hugg V. Ins., etc., Co., 7 How., 595; Roux v. Salvador, 3 Bing. (N. C.), 266; Poole v. Ins. Co., 14 Conn., 47; Dyson v. Rowcroft, 3 Bos. & P., 474. We know of no case where a bottomry bond has been enforced, where the vessel was not eventually saved as a ship. The bond having become void by the utter loss of the vessel, the bond holders had no right to the cargo saved from the wreck. "It is clear," says Lord Mansfield, in Joyce v. Williamson, "that by the law of England there is neither average nor salvage upon a bottomry bond." 2 Park, Ins., 7th ed., 628, 629; 3 Doug., 164, supra; 2 Bl. Com., 455, n; Robertson v. Ins. Co., 2 Johns. Cas., 252; Appleton v. Crowninshield, 8 Mass., 340-361; Thorndike v. Stone, 11 Pick., 183; 1 Pars. Mar. Ins., 221. Accordingly, when the bottomry lender desired to secure the right to salvage in case of utter loss, such right has been specifically named in the bond. See, Bray v. Bates, 9 Met., 249; Thorndike v. Stone, 11 Pick., 183; Ins. Co. v. Duval, 8 S. & R., 138. But whatever may be the rights of the bond holders to the proceeds of the sale of the wrecked vessel, it is clear that, under the terms of the bond in question, he has no right to the cargo or its proceeds. The Virgin v. Vyfhius, 8 Pet., 538; The Hunter, 1 Ware, 249; Thorndike v. Stone, 11 Pick., 183; Bray v. Bates, 9 Met., 237; 1 Pars. Mar. L., 420 and cases cited. Messrs. Sohier & Welch, for defendant in error: By the general maritime law, which the terms of this bond express, there was no utter loss of this vessel. No doubt there was a total loss, as well by the English as by the American law, applicable to policies of insurance; but the law governing in insurance as to total losses, is not applicable to bottomry bonds, as will be seen by reference to the following citations from eminent text writers, and to the cases cited below; there must be an utter loss, just as this bond expressed it. 3 Kent, 12th ed., p. 359; 2 Arn. Ins., Perk. ed. m, p. 1122, sec. 392, 4th ed. of 1872 by Maclachan, p. 945; 1 Phil. Ins., 5th ed., 706, sec. 1170; Abb. Ship., 11th ed., 126; Mau. & Pol. Ship., 440; Macl. Ship., 57; Hopk. Average, 93; Crump, Ins., 1875, p. 46, sec. 147; Thompson v. Roy. Exch. Mut. Ins. Co., 1 Maule & S., 30 (1813); The Great Pacific, L. R., 2 Adm., & Eccl., 381; The Great Pacific, L. R., 2 P. C., 516; Broomfield v. Southern Ins. Co., L. R., 5 Ex., 192; Ins. Co. v. Duval, 8 Serg. & R., 138, 148 (1822); Ins. Co. v. Archer, 3 Rawle, 216226; The Catherine, 15 Jur., 231; Bynk. Quæst. Pub., lib. 3, ch. 16; The Elephanta, 13 Jur., 1185. In the present case, the bark existed in specie as a vessel at the time of sale. Her hull lay on the beach, injured, no doubt, and in a place of great danger; all her sails, rigging, anchors, chains and other appurtenances remained; the sails and part of the rigging had been carried ashore, probably to prevent her becoming topheavy as she discharged her cargo, or at any rate as they would have been carried if she had remained uninjured, and there had been a certainty of getting her afloat; everything was sold; the hull and lower masts and standing rigging were sold as one thing for $2,000, and immediately afterward resold by the purchasers, for $5,800 or $6,000. Both sets of purchasers evidently intended to get her off, and had good hopes of doing so. The latter actually tried, but a new misfortune, of the same kind as that which cast her ashore originally, prevented her being got off; but there was in no sense an utter loss of her, a total destruction. Mr. Justice Clifford delivered the opinion of the court: Maritime hypothecations had their origin in the necessities of commerce, and they are said to be the creatures of necessity and distress. When properly authorized and duly executed, they are of a high and privileged character, and are held in great sanctity by maritime courts. The Vibilia, 1 W. Rob., 1; The Rhadamanthe, 1 Dod., 201; The Hero, 2 Dod., 139; The Kennersley Castle, 3 Hagg., 1. Instruments of hypothecation are usually executed by the master, he being regarded as the agent of the owner; the rule being that the owner is bound to the performance of all lawful contracts made by the master relative to the usual employment of the ship, and other necessaries furnished for her use. The Aurora, 1 Wheat., 96. Contracts of the kind are authorized in emergencies, for the purpose of procuring necessary repairs and supplies for ships which may happen to be in distress in foreign ports, where the 649] *master and the owners are without credit, and where, unless assistance can be procured by means of such an hypothecation, the voyage must be broken up, or the vessel and cargo must perish. Burke v. The M. P. Rich, 1 Cliff., 308. Such an hypothecation of the vessel by the master is only authorized when based upon necessity. And the required necessity is twofold in its character: it must be a necessity of obtaining repairs or supplies in order to prosecute the voyage, and also of resorting to such an hypothecation from inability to procure the required funds in any other way. Thomas v. Osborn, 19 How., 22, 15 L. ed., 534; The Hersey, 3 Hagg., 404. Sufficient appears to show that the plaintiffs were the underwriters on the cargo of the bark Frances, consisting of sugar, on her voyage from Java to Boston; that, in due course of navigation, the bark sailed from a Port of Java, duly laden, for her return port; that she soon encountered a hurricane, which compelled the master to cut away her masts to save the vessel, and to put into a neighboring port for repairs, from whence it became necessary for the bark to proceed to the Port of Singapore to fit the vessel to continue the voyage. Destitute of funds to pay the expenses incurred for the repairs, and without credit, the master was obliged to execute a bottomry bond there for the sum necessary to liquidate those expenses, with marine interest at twenty seven and one half per cent. upon the bark, cargo and freight. All matters of the sort having been adjusted, the bark sailed from the Port of Singapore for the Port of Boston; but, before she reached her port of destination, she encountered a storm, and in the month of December of that year was wrecked and driven ashore on Cap Cod. Prompt measures for saving as much as possible from the wreck were adopted by the defendants, who were the agents of the bond holders or the assignees of the same; and it appears that they succeeded in saving nearly half of the cargo, which was sent forward to Boston, and was subsequently sold with the consent of the owners. Subsequent to the shipwreck, the bark was surveyed as she lay upon the beach; and, being found to be incapable of being repaired, she was broken up, and her material was sold in separate parcels, including the hull, chains, anchors, 650] sails, and rigging; *and, when the owners of the cargo were informed of the disaster, they made abandonment in writing to the underwriters, under each policy of the respective dates, as stated in the agreed statement, claiming payment on each policy as for a total loss. Pursuant to that claim, the plaintiffs, as such underwriters, paid to the insured owners of the cargo the amount as for a total loss under each policy, and received from the owners an assignment and transfer in writing of the sugar of the owners, and of all their right, title and interest in the same. Two other matters are admitted: (1) That the defendants hold the proceeds of the sugar, the amount being less than the amount of the bond. (2) That the plaintiffs accepted the abandonments tendered by the owners of the cargo, and have at all times claimed what was saved of the cargo. Payment being refused, the plaintiffs brought an action of assumpsit against the defendants for money had and received, and the parties submitted the case to the Circuit Court, upon an agreed statement of facts. Hearing was had, and the Circuit Court rendered judgment for the defendants, and the plaintiffs sued out the present writ of error. Due execution of the bond in question is conceded; nor is it questioned that the circumstances were such at the time as to give the master the power to make the loan, nor that the bond by its terms covers the cargo and pending freight as well as the bark, unless an utter loss of the vessel occurred during the voyage. Authority of the master to hypothecate the ship and pending freight in such a case, whenever, within the meaning of the maritime law, it becomes necessary to enable him to complete the enterprise in which the ship is engaged, was never doubted, whether the occasion arises from extraordinary peril or misfortune, or from the ordinary course of the adventure. Nothing but necessity can be a proper foundation for such an hypothecation. And that necessity, as before stated, must be twofold in its character: first, it must be a necessity of obtaining repairs or supplies in order to prosecute the voyage; second, it must be a necessity of resorting to a bottomry bond, from inability to procure the required funds in any other way. The Hersey [supra]; *The [651 Fortitude, 3 Sumn., 234; 1 Conkl. Adm., 2d ed., 269; Abb. Ship., 11th ed., 126. Ship-owners appoint the master, and they are in general responsible for his acts; but the general rule is different as to the cargo, in respect to which the master is the mere depositary and common carrier, whose whole relation to the goods consists in his obligation of due conveyance, safe custody and right delivery. Viewed in that light, it was supposed at one time that the master had no power to hypothecate the cargo to raise funds to prosecute the voyage, whatever the necessity might be; but the rule is now well settled the other way, that the hypothecation may extend to the cargo as well as to the ship and freight. The Lord Cochrane, 1 W. Rob., 313; The Gratitudine, 3 C. Rob., 240; The Packet, 3 Mas., 257; The Zephyr, 3 Mas., 343; Ins. Co. v. Scott, 1 Johns., 106; Fontaine v. Ins. Co., 9 Johns., 29; Searle v. Scovell, 4 Johns. Ch., 218; Ins. Co. v. Coster, 3 Paige, 323. Bottomry bonds, when given bona fide and for legitimate purposes, are to be liberally protected. It is important for the interests of commerce that a master in a foreign port, standing in need of assistance, arising out of some unforeseen necessity, to complete a voyage, and having no credit, should for that object be invested with authority to pledge the ship, and charge upon it the repayment of the loan in case of her safe arrival. The Reliance, 3 Hagg., 66. Beyond all doubt, the bond in this case hypothecates the cargo as well as the vessel and the unpaid freight by way of bottomry, as se curity for the payment of the loan on the terms and conditions specified in the instrument, which are as follows: (1) That the vessel shall proceed, and complete her voyage without unnecessary deviation. (2) That the principal and marine interest shall be paid in the manner specified, within three days after the safe arrival of the vessel at the port of destination, and before the cargo is landed or the freight it exists in specie in the hands of the owner, it collected. (3) That the cargo shall not be landed nor the freight collected until the payment is made, and that the bond holders for the time being shall have the privilege of enforcing those 652] *conditions. (4) That interest on the aggregate amount at the current rate in the port of destination shall be paid in case of failure to discharge the amount of the principal and marine interest as stipulated. Superadded to those terms and conditions is the following stipulation, in the form of a proviso: that, if in the course of the voyage, an utter loss of the vessel by fire, lightning, enemies, men-of-war or any other perils, dangers, accidents or casualties of the seas or navigation, shall unavoidably happen, then the loan and interest shall not payable; and all parties liable therefor shall be wholly discharged therefrom, and the loss shall be wholly borne by the lenders or bond holders; and everything herein contained for payment shall be void and determined, save and except only, and provided in such case, that the lender or bond holders shall be entitled to such average as can be hereby lawfully secured to them on all salvage recoverable in respect to the vessel, freight and goods, or any of them. Difference of opinion exists among Continental writers as to the meaning of the exception at the close of the preceding condition; but the great weight of authority, even from that source, is, that the holder of the bottomry bond is preferred over the insurer or owner, to the extent of his legal claim for principal and marine interest secured by the bond. 3 BoulayPaty, Cours de Droit Commercial Maritime, 183. Instead of that, Valin holds that the lender on bottomry is entitled in such a case only to such a proportion of the value of the property salved as the sum loaned bears to the whole value of the property hypothecated. Pothier and Émérigon concur with the writer first named; and the Court of Privy Council Appeals decided, that, if the vessel is lost, the lender on bottomry, though his remedy is limited to the value of the property salved, is entitled to the whole of what is saved, provided it was included in his security. Stephens v. Broomfield, L. R., 2 P. C., 522; 2 Emérigon, Traité des Assurances Maritimes et des Contracts à la grosse, 544. Much discussion took place in the preceding case, as to the meaning of the stipulation in the closing part of the condition of the instrument. which was quite similar in legal effect to 653] the *closing exception in the present case; the contention being there, as here, that it gave the owners of the ship or cargo, as the case may be, the right to share in the salved property; but the court, without hesitation, rejected the proposition, holding that the theory involved a forced construction of the stipulation, utterly inconsistent with such a maritime contract, and that it reserved no such right to the owners. The Great Pacific, L. R., 2 Adm. & Eccl., 381. Authorities, to show that the doctrine of constructive total loss is in no respect applicable to such a contract, are numerous, unanimous and decisive. Thomson v. Assur. Co., 1 M. & S., 30. In the case of bottomry, said the Chief Justice in that case, nothing short of a total destruction of the ship will constitute an utter loss; for, if will prevent an utter loss; and text writers of the highest repute adopt the same rule, and express it in substantially the same language. Nothing but an utter annihilation of the subject hypothecated, says Chancellor Kent, will discharge the borrower on bottomry; the rule being that the property saved, whatever it may be in amount, continues subject to the hypothecation. 3 Kent, Com., 12th ed., 359; Wms. & Bruce, Pr., 47. Unless the ship be actually destroyed, and the loss to the owners absolute, it is not an utter loss within the meaning of such a contract. If the ship still exists, although in such a state of damage as to be constructively totally lost, within the meaning of a policy of insurance; or, if she is captured and afterwards retaken and restored, she is not utterly lost, within the meaning of that phrase in the contract of hypothecation. Maude & P., Ship., 3d ed., 44; The Catherine, 1 Eng. L. & E., 679; The Elephanta, 9 Eng. L. & Eq., 553. Support to that view, of a decisive character, is derived from the case of Pope v. Nickerson, 3 Story, 489, decided by Judge Story, where he says, that, in cases of bottomry, nothing but an actual total loss of the ship in the voyage will excuse the borrower from payment; not even when by reason of the enumerated perils the ship shall require repairs greater than her value; and he adds that the proposition is fully borne out by authority; and he adopts and [654 fully approves what was decided in the case of Thomson v. Assur. Co., to which reference has already been made, that the question in such a case is not, whether the circumstances were such as that, in case of insurance, the insured might have abandoned the ship, but whether it was an utter loss within the true intent and meaning of a bottomry contract; and he held that, in cases of bottomry, a loss not strictly total cannot be turned into a technical total loss by abandonment, so as to excuse the borrower from payment, even when the expense of repairing the ship exceeds her value. tract in writing, whereby the master of a vessel Hypothecations of the kind are created by conin a foreign port, not having any credit in the port where the vessel is lying, is enabled to obtain money for the repair and equipment of the vessel, and for necessary supplies for the prosecution of the voyage, by creating a charge or lien upon the vessel and freight, or upon the vessel, freight and cargo, in favor of the lender; so that, if the vessel or cargo is sold or mortgaged by the owners, the property will be burdened with the charge or lien in the hands of the purchaser or mortgagee. Add. Cont., 6th ed., 275. Contracts regularly created in that mode, and for that purpose, give rise to a maritime lien well understood in the civil law as existing, even without actual or constructive possession; the rule being that, wherever a maritime lien of the kind exists, it gives a jus ad rem to the property to which it attaches, to be carried into effect by appropriate legal process. Such a contract does not transfer the property hypothecated: but only gives the creditor a privilege or claim upon it, to be carried into effect by legal proc ess, in case the vessel arrives at the port of destination in safety. Abb. Ship.. 11th ed., 128; The Tobago, 5 C. Rob., 218; Stainbank v. Fen |