The

ship was of sufficient value to warrant the repairs. The sum, for which the deed of hypothecation was executed, exceeded the estimate of the ship in its damaged condition, and of the freight, by a sum, which was supposed to be about equal to the charge, that would fall upon the cargo for unloading, warehousing, &c. ship arrived at London; and the loan not being [158] discharged, the creditor instituted a suit in the Court of Admiralty against the ship and cargo. The ship produced considerably less than its estimated value, on account of its being a foreign ship, and the impossibility of obtaining a register for it. It was admitted, that the question as to the validity of the hypothecation of the cargo had never been actually contested and decided in this country; but several precedents of proceedings in the Court upon similar cases were found among the records of the Court, and it was agreed, that the practice of hypothecating the cargo in such cases was frequent among merchants. It did not appear

whether or no the master had an opportunity of sending the cargo by another ship: but the learned Judge of the Court held that, according to all the authorities on the subject of transhipment, the master was not bound to tranship, and thinking, upon the view of all the circumstances of the case, that the master had acted for the best according to the appearance of things at the time, decided that the hypothecation of the cargo was valid; considering the hypothecation of the whole to be both in its principle, and in the consequences, that might ordinarily result from it, exactly analogous to the sale of a part. On account of the great importance of the ques

where a ship was so chartered on a voyage to Bristol, in England, and back to Boston, and on the voyage from Bristol, the ship was compelled to go into Kinsale in Ireland to refit, and there the necessary sum was advanced by a person connected in business with the charterers, and a bottomry bond taken in their name for the amount, and afterwards the ship and freight were libelled in the District Court of Massachusetts, Davis J. decreed in favour of the bond. And the learned Judge said, that he did not find any authority, either from decided cases or general principles to introduce the limitations contended for in that case, either as to the rights of the master or the charterers. That the master, although appointed by the charterers, must be considered as approved by the owner, and had the same authority as if appointed by him, and that although the charterers might have advanced their money, and have recovered the amount on the covenant in the charter-party, yet they were not bound so to do; and by entering into the bottomry.contract, they waved their remedy on the charter-party for the advance so made. Breed, &c. v. Ship Venus, 1805, MSS. ante 155, note.

But although a ship be well bottomed by the master, yet it does not follow that the lender on bottomry is entitled to the marine interest in all cases. If the voyage has not commenced, by default of the owner, although his right to admiralty process is not devested, yet he is not entitled in ordinary cases to the full marine interest, for the court of admiralty may moderate, at their discretion, the marine interest, in proportion to the actual hazard incurred by the lender. Wilmer v. The Smilax, Maryland District Court, 1804, 2 Peters. Adm. Rep. 295. So where the ship and cargo are owned by the same persons, if the advances are made by a consignee or agent having funds in his hands, or usually giving credit to the owner, or under circumstances that shew he made the advances upon the personal responsibility of the owner, the court will not allow the marine interest. Rucher & Co. v. Conyngham, 2 Peters. Adm. Rep. 295,

So if such consignee has in any way taken advantage of the, party's situation, or diverted the funds in his hands to other objects, which, though consistent with the owner's orders, are not indispensible. Reade v. The Commercial Insurance Company, 3 John. Rep. 352. But it must not be considered from these cases, that such a consignee may not, under circumstances become the valid holder of a bottomry bond. A consignee not in the habit of dealing with or crediting the owner, and not having any goods, funds, or security at the time, seems under no obligation to risk his property without the usual and adequate compensation and security. 2 Peters. Rep. 225. So the *Consolato del Mare, art. 104. (3 Rob. 240.) directs that if the

merchant is present, having money, he shall lend it; if he has not money, the master may sell part of the cargo, giving him a lien on the ship for his security. The merchant here alluded to, is the owner of the goods, and his rights do not seem to vary from those of a consignee of the cargo, when freighted.

But a bottomry bond on an enemy's ship, is not an interest which is protected on capture. And therefore where in a time of peace, a British merchant had taken a bottomry bond on a French ship, which was captured in the subsequent war, Sir W. Scott held that the claim on the ship was invalidated by the capture and at an end. The Tobago, 5 Rob. Adm. 194.

A bottomry bond is preferred to every other claim or privilege for the voyage on which it is founded, except seamen's wages. But this right of preference or lien may be lost by laches or delay, when the interests of third persons intervene. The right therefore should be followed up with reasonable diligence. Blaine v. The ship Charles Carter, 4 Cranch. Rep. 328, The Jacob, 4 Rob. Adm. Rep. 245.

And when the voyage has not been performed, but the ship has been lost, the right to recover on the bottomry bond is gone forever, though a compensation in the nature of salvage, may have subsequently accrued to the owner. Therefore where the

owner of a ship executed a bottomry bond for 300l. on the ship for a voyage to the West-Indies and back, and during the voyage the ship was captured and condemned in a British Court of Vice-Admiralty, and the ship was sold, and afterwards the decree of condemnation was reversed in the high Court of Appeals, and compensation awarded to the owner by the commissioners sitting under the treaty between the United States and G. Britain, and after compensation was received by the owner, an action was brought on the bond, the Supreme Court of Massachusetts held that the plaintiff had no right to recover on the bond, the ship having been lost by the perils enumerated in the condition; and that if any right to recover the amount existed, it must be sought in another form of action. Appleton v Crowninshield, 3 Mass. Rep. 443.

CHAPTER THE FOURTH.

OF THE BEHAVIOUR OF THE MASTER AND

MARINERS.

1. THE

HE great trust reposed in the master by the owners, and the great authority which the law has vested in him, require on his part, and for his own sake, no less than for the interest of his employers, the utmost fidelity and attention. For if any injury or loss happen to the ship or cargo by reason of his negligence or misconduct, he is personally responsible for it; and, although the merchant may elect to sue the owners, they will have a remedy against him to make good the damages, which they may be compelled to pay. So, if he make any particular engagement or warranty without a sufficient authority from his owners, although the owners may be answerable to the persons with whom he contracts, by reason of the general powerbelonging to his situation and character, he is in [161] like manner responsible to the owners for the in

jury sustained by them in consequence of his acting beyond, or in violation of, the particular authority given to him (a) (1).

(a) The owners are also answerable for damage done by their ship to another through negligence; and this although the ship be chartered to the Commis

sioners of the Navy, and a naval officer be on board, and have the command. Fletcher v. Braddick, 2 New Rep. C. P. 182.

(1) The law of this section is fully recognized in Purviance, &c. v. Angus, 1 Dall. Rep. 180. The court there said that it is