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ship such an average as by custom would have been due on the salvage, or if the ship should be utterly lost through perils of the sea. The ship was, during the voyage, damaged, and at an intermediate port sold as unseaworthy for less than the amount of the bond. Held, that the clause in the bond did not apply when the ship remained in specie, though so damaged as not to be worth the cost of repairing her (c).

4. A bottomry bondholder insured his interest at and from St. Christopher to London. The ship during the voyage was disabled and nearly foundered, but was towed into Falmouth. She was there broken up, not being worth the cost of repairing. Her hull was sold for 3001., and her sails and stores for 4001. Her value when she left St. Christopher was 4,0001. Held, that as there had been no actual total loss of the ship, the bondholder could not recover on his policy (d).

S 83. A shipmaster can borrow money on bottomry by hypo- When master

can give thecating the ship and freight at a foreign port, in case of bottomry and necessity and in furtherance of the voyage in which she is respondentia

bonds. actually engaged ; but in no other case: not even if by the law of the country where the ship is, she may be arrested and sold for any debt due by the owner to a creditor residing there, and she is arrested accordingly (e). The master can also raise money on respondentia, by mortgaging the cargo (f), if the money be absolutely necessary to the preservation of the ship and cargo, or to the completion of the voyage.

But the shipmaster may not borrow on bottomry or respondentia, if he can obtain the requisite sum of money on better terms, e.g., on the shipowner's personal credit (g), or from the owner's agents (1), or if he can communicate with the owner of the ship or cargo (i). The communication

(c) The Great Pacific, L. R., 2 P. C. 516.

(d) Thompson v. R. Ex. Ass. Co., 1 M. & S. 30.

(c) The Osmanli, 3 W. Rob. 198.

(f) The Gratitudine, 3 Rob. 240; The Olivier, 31 L. J. Adm. 137.

(9) Heathorn v. Darling, 1 Moore,

P. C. Ca. 5; Soares v. Rahn, 3
Moore, P. C. Ca. 1; see “ Cases"
(1) at end of this g.

(1) The Faithful, 31 L. J., A. 81;
Lyall v. Hicks, 27 Bea. 616.

(i) The Bonaparte, 3 W. Rob., Adm. Rep. 298; 8 Moore, P. C. Ca. 459; The Oriental, 7 Moore,

to the owner must state, not only the necessity for expenditure, but also the necessity for hypothecation (k).

Consequently the master cannot, to obtain advances for necessary repairs, hypothecate the vessel and at the same time pledge the personal credit of the owners for such advances, however low the rate of interest required (?).

The master cannot hypothecate the ship to raise money to discharge a debt of his own, or for a debt incurred by a ship on a previous voyage (m), not being the outward voyage (), or for premiums payable under policies on the ship or freight (o), or in order to pay a general average contribution (p). But the master's misapplication of money, bonâ fide advanced, when necessary to preserve the ship or to complete the voyage, will not deprive the lender of his right on the bottomry bill or bond (9).

For a bottomry bond or bill to be valid, the money must have been originally advanced on the security of the ship (r). Therefore, if the money were originally raised, not on the security of the ship, but on the personal credit of the owner, and the bottomry bill or bond were subsequently drawn up in consequence of the owner's liability being questioned, the bill or bond will be invalid ; even though made before the vessel left the port at which the money was advanced (s). But if only part of the money had been thus previously advanced on the owner's personal credit, and the remainder had been subsequently advanced

see

P. C. Ca. 398 ; see “Cases" (2) at end of this g; The Hamburg, 32 L. J., Adm. 161; Br. & L. 253 ; The Lizzie, L. R., 2 A. & E. 254 ; "Cases

(3) at end of this si The Karnak, L. R., 2 P. C. 505 ; The Onward, L. R., 4 A. & E. 38 ; Kleinwort v. Cassa Maritima of Genoa, 2 App. Cas. 156; The Gaetano and Maria, 7 P. D. 137 (C. A.).

(k) Kleinwort v. Cassa Maritima of Genoa, 2 App. Cas. 156.

(1) Stainbank v. Fenning, 11 C. B. 51; Stainbank v. Shepard, 22 L.J., Exch. 341; 13 C. B. 418.

(m) The Lochiel, 2 W. Rob. 34 ; The Osmanli, 3 W. Rob. 198; The Prince George, 4 Moo, P. C. 21.

(n) The Edmond, Lush. 57, 64.
(6) The Serafina, Br. & L. 277.
(p) The North Star, Lush. 45, 50.
(9) Abbott, pp. 160, 161, 8th ed.

(r) The Augusta, 1 Dods. 283; The Gauntlett, 3 W. Rob. 82.

(s) The Augusta, 1 Dods. 283.

on the hypothecation of the vessel, the bottomry bond or bill will not be invalid in toto, but only to the extent of the sum advanced on the owner's personal credit (t).

Thus a bottomry bond may be good in part, though void as to the residue. The same rule will apply in the case of respondentia bonds, for where a respondentia bond, while it covers goods exposed to maritime risk, also extends to other goods not so exposed, the bond will be good as to the former goods, though bad as to the latter (1).

Cases. 1. A bottomry bond on a ship bound from Cadiz to London, freight and cargo, was sold by public auction in Lisbon by the master and part owner of the ship. There was at the date of the sale, an agent at Lisbon of the charterer and sole owner of the cargo, who was willing to advance on the personal credit of such owner, for the necessary repairs of the ship. Held, the bond was void (v).

2. A bottomry bond was granted in New York without any previous communication with the owner by the master of a ship to obtain money for necessary rej irs. The owner was residing at St. John's, New Brunswick. Telegraphic communication existed between the two cities. The bondholder had previously acted as the general agent of the owner. Held, that, as the master could have communicated with the owner, the bond was void (-).

3. The L. being damaged at sea, put into K., and remained there repairing for three months. The master not being able to raise money on personal security to pay for the repairs, gave a bottomry bond on the ship, freight and cargo. The master did not previously communicate with the owner or consignees of the cargo in consequence of the great delay and uncertainty in the transmission of letters from K. Held, that the bond was binding on the consignees of the cargo, as the master was not under the circumstances bound to communicate with them before hypothecating (y).

4. A bottomry bond was given by the master at New York, both as security for advances to obtain his discharge from arrest, at the

(1) Smith v. Gould; The Prince George, 4 Moore, P. C. Ca. 21; see “ Cases" (4) at end of this ļ.

(u) Cargo ex Sultan, Swa. 504.
(v) Soares v. Rahn, 3 Moore,

P. C. 1.

(x) The Oriental, 7 Moore, P. C. 398.

(y) The Lizzie, L. R., 2 A. & E. 254.

.

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.

Bottomry bond-how enforced.

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 (6).

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 (6).

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 (f). It follows from this that the creditor should not advance more than the value of the ship and freight (9); 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

(a) Smith v. Gould, The Prince George, 4 Moore, P. C. Ca. 21.

(6) The Tobago, 5 Rob. 218, 222 ;
Stainbank v. Fennings, 11 C. B. 51.

(c) Johnson v. Shippen, 2 Ld.
Raym. 982; Benzen v. Jeffries,
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.

(9) 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 different periods of the voyage, and the proceeds of the bonds.

bottomry 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 (i). 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 (2). 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).

(1) 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.

(2) The Helgoland, Swa. 491 ; The Dungeran 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,
Swa. 524 ; The Daring, L. R., 2
A. & E. 260; The Eugenie, L. R.,
4 A. & E. 123; see Ch. XIII. p. 149.

(0) The Wm. F. Stafford, Lush. 71.

(p) The Constancia, 10 Jur. 845 ; The St. Lawrence, 5 P. D. 250, 252 ; 49 L. J., P. 82.

(9) The Aline, 1 W. Rob. 111; The Benares, 7 Not. of Cas. Suppl. 50; see Ch. XIII. § 87, p. 148.

(v) The St. Lawrence, 5 P. D. 250; 49 L. J., P. 82.

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