The master, for the same reason, has no such power if he have funds of the owner within his reach; or if he can borrow the the master may give a bond, although the owners reside in the same country. La Ysabel, 1 Dods, 273. And in The Trident, 1 W. Rob. 29, where the owner had lived in Scotland, it was held that the master might give a bond at Plymouth, England, the owner having died insolvent, and his personal representatives declining to interfere. So the master may pledge the credit of the owners in a port of the country in which they reside, if no communication can be had with them. Arthur v. Barton, 6 M. & W. 138; Robinson v. Lyall, 7 Price, 592. But not if a delay for the purpose of communication would work no injury. Johns v. Simons, 2 Q. B. 425; Stonehouse v. Gent, 2 Q. B. 431, n; Beldon v. Campbell, 6 Exch. 886, 6 Eng. L. & Eq. 473. In The Rhadamanthe, 1 Dods. 201, Sir Wm. Scott was of opinion that Cork was a foreign port as respected England, though the point was not decided. And in The Barbara, 4 Rob. Adm. 1, Jersey was held a foreign port in regard to London. But these distinctions are now done away with, and the only question is whether the owners could have been consulted. Thus in The Oriental, 3 W. Rob. 243, 2 Eng. L. & Eq. 546, the vessel was at New York, and the owners at St. Johns, New Brunswick. There was a telegraph between the two places. The master gave a bond without consulting the owners. Dr. Lushington held the bond was valid, but on appeal the judgment was reversed. Wallace v. Fielden, 7 Moore, P. C. 398. In the case of The Bonaparte, 3 W. Rob. 298, 1 Eng. L. & Eq. 641, a bond was given by the consent of the owners of the vessel on the ship, freight, and cargo. The shipper of the cargo was applied to, but refused to advance any money. It did not appear that the owners of the cargo had been notified. Dr. Lushington was of opinion that it was not necessary for the master to consult the owners of the cargo, and pronounced for the bond. On appeal, the privy council remitted the case to allow evidence to be taken, as to what notice, if any, had been given to the owners of the cargo. Wilkinson v. Wilson, 8 Moore, P. C. 459, 36 Eng. L. & Eq. 62. The law is stated by the court, on p. 473, and p. 70, of the respective reports, as follows: "That it is an universal rule, that the master, if in a state of distress, or pressure, before hypothecating the cargo, must communicate, or even endeavor to communicate, with the owner of the cargo, has not been alleged, and is a position that could not be maintained; but it may safely, both on authority and on principle, be said, that in general it is his duty to do so, or it is his duty in general to attempt to do so. If, according to the circumstances in which he is placed, it is reasonable that he should, it was rational to expect that he might obtain an answer within a time not inconvenient with reference to the circumstances of the case; it must be taken, therefore, upon authority and principle, that it is the duty of the master to do so, or at least to make the attempt." In The Hamburg, Brow. & L. 273, Lord Chelmsford, after citing the above, says: "This passage is obviously inaccurate. The judgment was not written, but appears to have been printed from a shorthand writer's note. It is not, however, difficult to collect what really was said by the learned judge, and, with a slight correction of the text, it would stand thus: "If according to the circumstances in which he is placed, it be reasonable that he should if it be rational to ex

money on the personal credit of the owner; or if a consignee be there with funds of the owner, or any agent of the owner; or, it

pect that he may obtain an answer within a time not inconvenient with reference to the circumstances of the case, then it must be taken upon authority and principle that it is the duty of the master to do, or at least to make the attempt.' That this is the true wording of the passage we have ascertained by communicating with the Lord Justice Knight Bruce, who delivered the judgment." On the case being sent back, further evidence was taken; it appeared that the British consul had written, on behalf of the master of the vessel and his agent, to the consignees in England, informing them of the damage sustained by the ship, but making no application for money, nor referring to the necessity for repairs. The letter also requested instructions as to what should be done. No answer was returned. Dr. Lushington held that under these circumstances the owners of the cargo were bound by the bond. The Bonaparte, 20 Eng. L. & Eq. 649. On appeal his decision was affirmed. 8 Moore, P. C. 459, 483, 36 Eng. L. & Eq. 75. See also, generally, The Lochiel, 2 W. Rob. 34; The Wave, 4 Eng. L. & Eq. 589; Agricultural Bank v. The Bark Jane, 19 La. 1. In The Nuova Loanese, 22 Eng. L. & Eq. 623, a bottomry bond was granted by the master at the port where the owner of the cargo, who was also charterer of the ship, resided. Advertisements for the loan were published. This fact was known to the owner of the cargo, and he was also aware that the ship was unseaworthy, and that the cargo had been laden and unladen while the ship was in port. No direct communication or application for advances, was made to him. Held that the bond was invalid as far as his interest was affected. It is true that in the case of The William and Emmeline, 1 Blatchf. & H. Adm. 66, 71, Judge Betts held that Charleston, South Carolina, was a foreign port in respect to New York, but this case was decided in 1828, when a long time was required for communication between the two cities, and moreover, though a bond was given in the case, yet it was informal, and the case was decided on the ground that repairs furnished in another State constitute a lien on the ship. See The Yuba, 4 Blatchf. C. C. 352.

Tunno v. Ship Mary, Bee, 120; Boreal v. The Golden Rose, id. 131; Putnam v. Sch. Polly, id. 157; Sloan v. Ship A. E. I., id. 250; Forbes v. The Hannah, id. 348, Hopk. 176; Canizares v. The Santissima Trinidad, Bee, 353, Hopk. 185; Rucher v. Conyngham, 2 Pet. Adm. 295; Cupisino v. Perez, 2 Dall. 194; The Ship Lavinia v. Barclay, 1 Wash. C. C. 49; The Ship Packet, 3 Mason, 255; Ross v. The Ship Active, 2 Wash. C. C. 226; Walden v. Chamberlain, 3 Wash. C. C. 290; Patton v. The Randolph, Gilpin, 457; The Nelson, 1 Hagg. Adm. 169; The Rhadamanthe, 1 Dods. 201; The Sydney Cove, 2 Dods. 1, 7; The Medora, 1 Sprague, 138. In the case of The Virgin, 8 Pet. 538, the court held that if the necessity for the supplies and advances is once made out, it is incumbent upon the owners, who assert that they could have been obtained upon their personal credit, to establish that fact by competent proofs, unless it is apparent from the circumstances of the case. It was also held that it was not enough to show that there were funds at the port of distress, which ought to have been appropriated to the use of the ship, and that the master was justified in giving a bond if he could not obtain them, because, "the non-existence of funds, and the

If the master, in a

is said, if the master has funds of his own. foreign port, has funds of his own, which he wishes to use for a profitable mercantile purpose, it would be hard to require him to lend them to the owner for mere common interest, and yet there is no authority for permitting a master to take a bottomry bond to himself, or to charge in any way more than legal interest for the use of his money, whatever may be the degree in which that falls below actual compensation.

The master is not bound to take the money on board which belongs to the shippers, nor, perhaps, has he a right to do this.2

non-ability to get at them, must, as to the master, be deemed to be precisely equal predicaments of distress."

1 In the case of The Ship Packet, 3 Mason, 255, 263, Mr. Justice Story said: "If the master has money of his own on board sufficient for the ship's necessities, it is by no means certain that he has a right in such a case to resort to the extraordinary measure of bottomry. In case of there being money of the owner of the ship on board, it is very clear that he cannot resort to bottomry. And although I would not absolutely decide that under no circumstances he could so resort, where he has sufficient money of his own on board; yet if he can, it must be in a case of a very peculiar character, and such as ought to induce the court to uphold it from great public principles." In Canizares v. The Santissima Trinidad, Bee, Adm. 353, the master had goods of his own on board, and could also have procured money from the intendant at the port of distress. Held, that he had no authority to give a bond. Same case on appeal, Cupisino v. Perez, 2 Dall. 194. But if this latter element had been wanting, we think that a bond given by him would be valid. See The William & Emmeline, 1 Blatchf. & H. Adm. 66, 72.

In the Ship Packet, 3 Mason, 255, it was objected that the master should not have given a bond, as he had specie dollars on board which belonged to some of the shippers. Mr. Justice Story said, p. 258: "The general principle is, that he (the master) is bound to act with a reasonable discretion. He is to get the necessary repairs done at as little sacrifice as is practicable. If he has money on board, and the use of that will be the least sacrifice, he ought to resort to it in the first instance. But there may be cases, in which the use of such money would be the greatest sacrifice that could be made, and the whole objects of profit in the voyage might be thereby defeated. Suppose a voyage to the East Indies or China, in which the principal outward property on board is Spanish dollars, and a disaster happens on the first passage, requiring repairs, the use of those dollars may be the most mischievous exercise of his discretion, and destroy the hopes of the voyage. In all these cases, therefore, much must be left to the master's discretion, and he must exercise it conscientiously for the general interest. If he acts bonâ fide and with reasonable care, the rights of the parties are bound up by his acts, although it should afterwards be found, that he had committed an error in judgment, and might have acted more beneficially in another manner."

ship if a part-owner, or the But this may be doubted;

It is said that he cannot bottom the agent of a part-owner, be present. and certainly there can be no such inflexible rule.2 The master is the agent of all the owners. And the presence and refusal of any one or more, ought not, of itself, to deprive the master of the power or relieve him from the duty of providing for the interests of all. But in such a case, the necessity must doubtless be particularly certain and pressing.

Nor can a master make this bond merely to secure former debts of the owner; but might, perhaps, if it were the only way to 1 Patton v. The Randolph, Gilpin, 457. See also Selden v. Hendrickson, 1 Brock. C. C. 396. Kent (3 Comm. 172) says, on the authority of Boulay Paty, Cours de Droit Com. Mar. tome 2, p. 271, that if only a minority of the owners are present, the captain's power remains good.

2 In some cases not only has the bond been pronounced valid, where there was at the time an agent at the place, but it has been also held, that a master may give a bond to the agent himself. See post, p. 156, n. 1.

Hurry v. Ship John & Alice, 1 Wash. C. C. 293; Walden v. Chamberlain, 3 Wash. C. C. 290; Clark v. Laidlaw, 4 Rob. La. 345; The Aurora, 1 Wheat. 96; The Lochiel, 2 W. Rob. 34; The Osmanli, 3 W. Rob. 198; Smith v. Gould, 4 Moore, P. C. 21. But see The Mary Ann, 10 Jurist, 253, 4 Notes of Cases, 376, 390. In the case of The Ocean, 10 Jur. 504, 4 Notes of Cases, 566, A bought up several simple contract debts, due on account of a certain vessel. He afterwards advanced money on bottomry on the same ship, and repaid himself out of the money so advanced the sums which he had paid for the contract debts. Held, that as to this part of the transaction the bond was void. In Cohen v. Sch. Amanda, Crabbe, 278, the bond was given to a party on condition that he should assume the debts which the vessel owed. No question seems to have been made as to the validity of such a bond. Payment was contested on the ground that the debts had not been paid. The Court held, that the defence should be clearly made out to contradict the primâ facie presumption afforded by the bond. In The North Star, Lush. Adm. 45, Dr. Lushington held that a debt for a general average contribution, arising in respect of an outward voyage, was not a sufficient foundation for a bond on the ship for the homeward voyage. In The Edmond, Lush. Adm. 57, Dr. Lushington held that the master had only authority to bottom his vessel for repairs, necessary provisions, and articles furnished to the ship itself, and could not include in the bond charges relating to the outward cargo, unless the ship could be arrested for the same, although the owner had received by anticipation the largest part of the freight, and had assigned a large part of the remainder, and thereby had deprived the master of the usual means of defraying the expenses which might occur. On reference to the registrar and merchants, they allowed items of port charges, towage, lighterage, discharging expenses of outward cargo, and ballast. And it appeared that these items were allowed in the case of Smith v. Gould, 4 Moore, P. C. 21. The Edmond, Lush. Adm. 211. See The Yuba, 4 Blatchf. C. C. 352.

liberate the ship from arrest and sale for those debts.1 And if a bond, given by the owner, includes other and former debts, those debts are merged in the bond, and are discharged by whatever discharges the bond, and no other or former securities on those debts are enforceable by themselves, or available in any way excepting through the bond.2

The master may give a bond for the amount due in good faith for compensation for services rendered in a foreign port by a consul of the country to which the ship belongs.3

SECTION IV.

OF THE DUTY AND OBLIGATION OF THE LENDER ON BOTTOMRY.

As there must be a necessity to justify the master in making the bond, so the lender must see to it, that this necessity exists.*

1 See post, p. 153, n. 2.

* Bray v. Bates, 9 Met. 237.

623.

The Zodiac, 1 Hagg. Adm. 320. See also The Cynthia, 20 Eng. L. & Eq.

* Putnam v. Schooner Polly, Bee, Adm. 157; Gibbs v. Sch. Texas, Crabbe, 236f; The Aurora, 1 Wheat. 96; The Boston, 1 Blatchf. & H. Adm. 309, 324; The Orelia, 3 Hagg. Adm. 75, 84; Heathorn v. Darling, 1 Moore, P. C. 5; The Royal Stuart, 2 Spinks, Adm. 258, 33 Eng. L. & Eq. 602. In Walden v. Chamberlain, 3 Wash. C. C. 290, it was held, that the lender on bottomry ought always to prove the necessity for the advances, and that they were made to enable the master to prosecute his voyage, and that the necessity for such advances, or that they were made on the credit of the vessel, was never to be presumed. In Soares v. Rahn, 3 Moore, P. C. 1, s. c. The Prince of Saxe Cobourg, 3 Hagg. Adm. 387, the bond was given by the master, who was also a part-owner. The agent of the charterer, and sole owner of the cargo, was ready and willing to advance money. The bondholders were not aware of this, but they had made no inquiries in regard to it. The bond was pronounced invalid though the holders were the lowest bidders at the auction advertised by the master. The court said: "If the foreign merchant, after due inquiry, shall have reasonable ground for concluding that the repairs are necessary, and that the money cannot be raised on personal credit, then his security on the ship and cargo shall not be impeached or invalidated, because it might happen that, notwithstanding his reasonable and bonâ fide inquiries, the repairs were not necessary, or the money might have been had on personal credit." But, although he is bound to show a reasonable case of unprovided necessity for the advance, yet he is not bound to inquire into the expediency of incurring the expense of the repairs with reference to the interest of the owner