be

144. Small advances originally made without any express stipulation for a bond, but followed by a bottomry bond, may included therein. Aliter as to large advances. The Vibilia, Richardson, 1 W. Rob. 8.; The Trident, Simson, Ibid. 34.

145. A bottomry bond in respect of advances, originally made on personal credit, is invalid. The Trident, Simson, Ibid. 32. 146. If A. B. advance money for repairs, or furnishes necessaries to a ship on per

sonal credit, he shall not be at liberty to take a bottomry bond for what he has done on personal credit, as, having chosen his security, by that he must abide; but the master may borrow on bottomry money of C. D. to pay such debts and fit his vessel for sea. The Hebe, 10 Jur. 231., 2 W. Rob. 146., 4 Notes of Cases, 361.

See antè, Nos. 139, 140.

(b) of the effect of a right of lien on the

ship for such advances.

147. The fact of a lien on the ship, existing by the law of the country in which he bond is given, is an important ingredient, and furnishes a presumption in favour of bottomry and against personal credit. The Vibilia, Richardson, 1 W. Rob. 1.

148. Advances on personal credit cannot be included in a bottomry bond, though by the law of the country the lender had a lien on the ship; but advances on the security of such a lien may be the subject of bottomry. Ibid. 14.

See antè, No. 121.; and post, No. 149.

(c) Where proved.

149. Advances, upon the personal security of the owner, to the master while in a foreign port, to enable him to supply his ship with necessaries, and for which a bill of exchange drawn by the master upon the owner was given, but which advances, on such bill of exchange having been dishonoured, were included in a bottomry bond afterwards taken for further advances; Held not to be recoverable under such bond, as not made upon the security thereof, though the parties making such advances might, according to the law of such foreign port, thereof. The Augusta, De Bluhn, 1 Dodhave detained the ship until the repayment

son, 287.

150. A bottomry bond, executed by the master, whilst under arrest at the suit of the bondholder, for payment of certain bills of exchange drawn by the master on his owners to cover advances made by the bondholder, and which bills had been dishonoured, the bond being drawn to include the advances covered by such bills of exchange and subsequent advances made immediately prior to the execution of the bond, pronounced for to the extent of such subsequent advances, the Court holding no duress to have been proved; but pronounced against with respect to the advances made on the security of the bills of exchange. No costs given, the Court disapproving of the conduct of the bondholder in having imprisoned the master, and having pressed the execution of the bond during his confinement. The Heart of Oak, Crawford, 1 W. Rob. 204.

(d) Where not proved.

151. Boggs & Co., of London, the mortgagees in possession of a ship consigned to Bruce, Shand, & Co., of Calcutta, subsequently mortgaged the vessel and her freight to an assurance company in London, as security for a loan of 5000l. Prior to the departure of the ship from Calcutta, advances were made by, and a bottomry bond executed in favour of, Bruce, Shand, & Co., the consignees. Bond opposed on three grounds: 1st. that it was not originally a bottomry transaction; 2d. that the advances were made for payment of debts previously incurred; and 3d. that the conduct of Shand, jun., and the fact of his being a partner in the house in London and also in Calcutta, were against the integrity of the transaction; pronounced

for, with costs, the opponents thereof being held to have failed in proof of all three grounds of objection. The Ariadne, Macleod, 1 W. Rob. 411., 6 Jur. 513., 1 Notes of Cases, 494.

152. A bottomry bond pronounced for, with costs, on the ground that nothing had been advanced sufficient to gainsay its validity, suggestions of the advances having been made on personal credit, &c. being held not proved. The Mary Ann, 10 Jur. 253., 4 Notes of Cases, 376.

See antè, No. 47.

*

8. Where given as collateral securities.* 153. A bottomry bond, given by the master to the foreign agent who appointed him, binding the owners of the ship, and endorsed as a collateral security for bills of exchange, pronounced valid, with costs, the agent appearing to have acted bond fide, and not to have relied for his advances, referred to in the bond, upon the personal security of the owner, though he had done so with respect to some prior trivial advances. The Tartar, Tharp, 1 Hagg. 1.

154. A bottomry bond is not invalidated by the circumstance of its having been given as a security for bills of exchange drawn on the owner. The Emancipation, Tucker, 1 W. Rob. 129.

to believe that it will be paid, the bond is not put in suit. This rule is not in-. consistent with the suggestion that the bottomry bond is the original and primary security, for when the expression is used that a bond is the primary and a bill of exchange a collateral security, it only means that the transaction is originally a transaction of bottomry, and the bill of exchange is given as an additional and more negotiable security. The Ariadne, Macleod, 1 W. Rob. 421., 6 Jur. 573., 1 Notes of Cases, 494.

158. Where bills of exchange are given as collateral securities for the payment of a bottomry bond, it is every day practice that when the bills of exchange are paid the bottomry bond is not sued on, but the bondholder has his option to content himself with principal and interest without charging the bottomry premiums, except, perhaps, the insurance on the vessel, or to enforce his bond. The Lord Cochrane, & Jur. 716., 3 Notes of Cases, 180.

See antè, notes 2 and 51., and post, Nos. 214. 220.

10. Where good in part and bad in part.

159. A bottomry bond is not invalid because not valid in toto. It may be good in part and bad in part. The Hero, Howard, 2 Dodson, 147.; The Augusta, De

lateral securities.

155. There is no implied undertaking on the part of the owner that a bill of exchange drawn by the master on a third person for money advanced for the ship's use shall be duly honoured. Harber v. Brotherstone, 4 Camp. 254.

156. Bottomry bonds are valid, though bills of exchange be given at the same time by way of collateral security. The Jane, Birkley, 1 Dodson, 466.; The Nelson, Brown, 1 Hagg. 179.; The St. Catherine, Sinclair, 3 Hagg. 253.

157. It is a common practice in bottomry transactions for the lender to require the twofold security of a bill of exchange and a bottomry bond. In such cases, the rule is to present the bill of exchange in the first instance, and if there is reason

1 Hagg. 1.; The Nelson, Brown, Ibid. 176. A bond pronounced for in part and against in part. The Augusta, De Bluhn,

Dodson, 287.; Smith v. Gould and others (The Prince George), 4 Moore, 21., 6 Jur. 543.; The Heart of Oak, Crawford, 1 W. Rob. 204.

will pronounce a bottomry bond good in 160. Semble, that the Court of Chancery part and bad in part. Dobson v. Lyall, cited in Glascott v. Lang, 3 Myl. & C. 4.53.

11. Other circumstances affecting-et contra.

161. The validity of a bottomry bond is not affected by its binding the owners personally (which it cannot do) as well as ship and freight, for such bonds may be good in

part and bad in part. The Nelson, Brown, 1 Hagg. 177.

162. The conduct of a third party will not affect the validity of a bond if the bondholder have no privity therewith. The Zodiac, Scott, Ibid. 322.

163. The Court never pronounces against a bottomry bond on account of the extent of the premium. La Ysabel, Bozo, 1 Dodson, 277.; The Alexander, Tate, Ibid. 279.; The Lord Cochrane, 8 Jur. 716., 3 Notes of Cases, 172.

164. The holder of a bottomry bond held entitled to recover, notwithstanding the loss of the ship, she having deviated from the voyage stipulated for in the bottomry bond. Western v. Wildy (1683), Skin. 152.

165. But the deviation must clearly appear on the pleadings, and cannot be taken by implication. Williams v. Steadman (1692), Skin. 345.

166. The plaintiff entered into a penal bond of bottomry to pay 40 shillings per month for 501. The ship was to sail from Holland to the Spanish Islands, and so to return for England. If she perished, the plaintiff lost his 504. She went accordingly

* 57. If the accident happen by the default of the borrower or of the captain, the lender is not liable, and has a right to demand the payment of the bond. If, therefore, the ship be lost by a wilful | deviation from the track of the voyage, the event has not happened upon which the borrower was to be discharged from his obligation. This has been decided in several cases. See Williams v. Steadman, Holt's Rep. 126., S. C. Skin. 345., 1 Eq. Cases Abr. 372., 2 Ch. Cas. 130., 2 Park on Ins. 901.

58. Deviation in marine insurances is understood to mean a voluntary departure without necessity, or any reasonable cause, from the regular and usual course of the specific voyage insured. Whenever a deviation of this kind takes place, the voyage is determined and the underwriters are discharged from any responsibility. Nor is it at all material whether the loss be or be not an actual consequence of the deviation, for the insurers are in no case answerable for a subsequent loss, in whatever place it may happen, or to whatever cause it may be attributed. Neither does it make any difference whether the insured was or was not consenting to the deviation. 2 Park on Ins. 619. 625.

59. If the master put into a port which is not usual, or stay an unusual time, it is a deviation and discharges the insurer. 1 Park on Ins. 438.

60. Cruising in the hope of meeting a prize held a deviation; but if a merchant ship carry letters of marque, she may chase an enemy, though

to the Spanish Islands, took in Moors at Africa, went to Barbadoes, and there perished at sca. The plaintiff being sued on the bond for the penalty, sought relief in Chancery, pretending the deviation was necessary, but his bill was dismissed, save as to the penalty. Vachel v. Vachel, (34 Car. 2.), 2 Chan. Cases, 130.; Anon., 4 Viner's Abr. 280. Vide 2 Salk. 444.

167. A master, exercising a sound discretion, is fully justified in carrying his vessel, disabled and in urgent need of repairs, into a port without the limits of the Voyage, and therefore of the permission given in a bottomry bond shortly previously executed by him "to touch, stay, and proceed to all ports and places within the limits of the voyage." The conditions of the bond are not violated by such a deviation. The Armadillo, Benedict, 1 W. Rob. 256., 1 Notes of Cases, 75.

XVII. ON CARGO.†

168. A bottomry bond upon the cargo of a ship is called a respondentia bond, but is of rare occurrence. The Atlas, Clark, 2 Hagg. 58.

169. That description of bottomry termed respondentia has been disused in this country since the Act of 19 Geo. 2. c. 37. The Cognac, Ewen, 2 Hagg. 386.

she may not cruise, without being guilty of a deviation. 2 Park on Ins. 630.

61. A deviation merely intended, but never carried into effect, does not discharge the insurers. Ibid. 654. 657.

62. In insurance cases, if the deviation be but for a single night or for an hour, it is fatal. Ibid. 630.

63. Wherever the deviation is occasioned by absolute necessity, as where the crew forced the captain to deviate, the underwriter continues liable. Ibid. 634.

64. The justifications for a deviation seem to be, to repair the vessel, to avoid an impending storm, to escape from an enemy, to seek for convoy, or to relieve another vessel in distress. Ibid. 636. et seq. 647.

65. Where a captain justifies a deviation by the usage of a particular trade, there must be a clear and established usage, not a few vague instances only. Ibid. 646

† 66. When a bottomry loan is not made on the vessel but upon the goods and merchandizes laden therein, which from their nature must be sold or exchanged in the course of the voyage, then the borrower only is personally bound to answer the contract, who therefore in this case is said to take up money at respondentia. 2 Park on Ins. 869., 2 Black. Comm. 458., Cross on Liens, 298.

X Hell

X

1. Of the right to hypothecate.*

170. The master may hypothecate either ship or goods, for he is entrusted with both, and represents the traders as well as the owners of the ship. Justin v. Ballam, (1 Ann), 1 Salk. 34.

171. The master has power to hypothecate the cargo as well as the ship, for a reasonable purpose only, for the benefit of the ship and cargo. Hussie v. Christie, 13 Ves. jun. 599., 9 East, 426.

172. Where the master cannot obtain funds on a pledge of the ship, he has power to bind the cargo for the repairs necessary to effect the prosecution of the voyage. Bond so given enforced in the Court of Admiralty. The Gratitudine, Mazzola, 3 C. Rob. 240.

173. Such is the general principle, and such has been uniformly the practice of the Court, and no prohibition in such a case is known to have issued. Ibid.

174. If the repairs of the ship produce no benefit or prospect of benefit to the cargo, the master can neither sell nor hypothecate; but though the prospect of benefit may be more direct and more immediate to the ship, it may still be for the preservation and conveyance of the cargo; and when it is so, it is justly to be considered as done for the common benefit of

both ship and cargo. Ibid. 261.

175. There is this distinction between a sale of the cargo and an hypothecation of it — only a part can be sold, because the express purpose of the sale is to enable the remainder to go forward, but the whole may be hypothecated. Ibid. 263. See antè, No. 69.

owners of cargo.

Meyer, 1 Dodson, 208.

2.

71

The Rhadamanthe,

177. In a respondentia bond, the condition, after reciting that the money was lent upon the goods laden and to be laden on board a certain ship on her voyage out and home, was, that if the ship should proceed on her voyage, and return within thirty-six months (the dangers of the seas excepted), and if the borrower, within thirty days after her arrival, should pay to the lender the sum agreed on, or if, in the voyage and within thirty-six months, the ship should be lost by fire, enemies, or other casualties, the borrower should, within six months after such loss, pay to the lender a proportionable average on all the goods carried out and acquired during the voyage which should be saved, then the obligation should be void: Held, that this was no more than a personal obligation from the borrower to the lender, and did not give the latter any specific pledge or lien on the home cargo, or the proceeds thereof. Busk v. Fearon, 4 East, 319., 1 Smith, 103.

1. When due · 178. In a cause of bottomry claim of the bondholder to have the bond enforced prior to the arrival of the ship at her port of destination, on the ground, first, that the advances for which the bond was given had been obtained from the bondholder by the fraudulent misrepresentations of the master; and secondly, that the payment

ing the remaining owners.

176. The act of the principal owners of cargo, authorizing hypothecation thereof by the master, Held binding on the other

* 67. The hypothecation of the cargo is allowed | by the marine law and the law of England, but only in those cases in which it is made to further the carriage of it to its destination. Abb. Sh.

366.

† 68. It seems there is no mode by which a person who advances money at respondentia on goods laden on board a ship on an outward and homeward voyage, can resort for payment of his debt to the specific goods that may be brought back. Abb. Sh. 153., 2 Black. Comm. 458.

69. Upon respondentia the lender must be paid his principal and interest, though the ship perish,

delay, and illegal deviation in the progress of the voyage; dismissed with costs, the bondholder having failed in proof of such suggestions. The Armadillo, Benedict, 1 W. Rob. 251., 1 Notes of Cases, 75.

provided the goods are safe. 2 Park on Ins. 869., 2 Valin. Com. p. 4.

70. If, after the risk on the bottomry bond has commenced, the voyage or adventure is voluntarily broken up by the borrower in any manner whatsoever, whether by a voluntary abandonment of the voyage or adventure, or by a deviation or otherwise, the maritime risks terminate and the bond becomes presently payable. The Draco, 2 Sumner's (AMERICAN) Rep. 157.

71. If a sale is made of the vessel by the borrower, the maritime risk is thereupon terminated, and the bond becomes presently payable. Ibid.

179. The general principle is, that a bottomry bond does not become payable until the voyage for which it is given is completed; but if the master, after setting out on the voyage, fraudulently neglect or refuse to proceed with the vessel to her port of destination, the bond becomes instantly due, and payment thereof may be enforced in the Court of Admiralty. Ibid. See post, note 86.

2. Of the personal responsibility of the owners and master for

180. The hypothecation of the ship by

the master does not render the owners personally liable. Johnson v. Shippen (1702), 1 Salk. 35., 14 Viner's Abr. 300.

181. The master, for expenses, &c., abroad, may hypothecate the ship, and also make the owners personally liable. Samson v. Bragington (1750), 1 Ves. 443.†

See antè, notes 51. and 66., and No. 161.

3. Of the relative liability and contribution of ship, freight, and cargo, to —‡

182. A warrant of arrest in a cause of bottomry having been executed on the ship and parties in possession of the freight, and no appearance having been given, the ship was sold under a decree of the Court; after which an appearance was given for the owners. Motion, at the suit of a mortgagee of the ship, for monition against the parties in possession of the freight to bring in the same rejected, the Court intimating, however, that the bondholder might so apply. On application of the bondholder for payment of the bond out of the proceeds of the ship sufficient for the purpose, further motion of mortgagee to suspend such decree

72. When money is taken up by the master on bottomry at maritime interest, the owners are never personally responsible. The remedy of the lender is against the master or the ship. If, however, the lender do 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. See Samson v. Bragington, 1 Ves. 443., Abb. Sh.

156.

73. Where the interest reserved in a bottomry bond exceeds the legal rate of 5 per cent. interest, the owner could not, before the recent acts, however it may now be, have been made personally responsible, and the lender's remedy was against the master or the ship, though it would seem that if the lender contented himself with 5 per cent., the master might have pledged both the ship itself and

until the freight should be brought into the registry in part discharge of the bond, rejected, the Court holding that though the freight is part of the bondholder's security, he is not compellable to enforce it. The Percy, Tanner, 3 Hagg. 402.

183. A ship having been arrested in a suit for wages, on motion on behalf of a bondholder for a warrant of arrest against the ship and freight, the bond in terms binding only the ship, the Court directed the warrant to issue, though it would not, upon motion, determine whether the bond in such a case extended to the freight. The Mary Ann, 9 Jur. 94.

who takes a benefit should bear his share 184. The principle of equity, that he of the burthen attaching to it, Held to apply to a bottomry bond on ship and freight; and which, as benefiting both ship and freight, should, upon principle, be paid by both pro rata, where the owners of the ship and freight are different parties. Claim of a bondholder in such a case directed to be satisfied out of proceeds in the registry of ship and freight. The Dowthorpe, Lofty, 2 W. Rob. 74. 81. 85.

185. In an action on a bottomry bond against ship, cargo, and freight, in which judgment as against ship and freight had been allowed to go by default, but in which the consignees of cargo had appeared and contested the validity of the bond, and during the dependance of the suit had obtained an injunction to stay further proceedings; motion of the bondholder for the amount of freight, and of the proceeds of sale of the ship, to be paid out of the registry to him in part liquidation of the bond, opposed by the consignees, on the ground that if the bond, as against the cargo, should be pronounced against, the

the personal credit of the owner. Smith's Merc. Law, 384.

74. In cases of bottomry the ship and tackle, if brought home, are (as well as the person of the borrower) answerable for the money lent. Cross on Liens, 298.

75. When freight is pledged in a bottomry bond, it means the freight of the whole voyage and not the freight of that part of the voyage unperformed at the time of giving the bottomry bond. The Zephyr, 3 Mason's (AMERICAN) Rep. $41.

76. In payment of a bottomry bond the assets are to be so marshalled as to apply the property of the owner of the ship first. If the master has money on board it should be applied pro tanto before the goods of the shippers. It seems, also, that the same should be done with other property of the master on board. The Packett, Ibid. 255.