162

COGNIZANCE IN ADMIRALTY.

subsequent case (1856), Dupont v. Vance, 19 Pet. 162, it was substantially overruled so far as it may have affected admiralty proceedings in rem. And this decision remains unqualified by any subsequent decision of the Supreme Court. The opinion of the court was prepared by Mr. Justice Curtis, and is an able and clear exposition of the rules of pleading in admiralty, declaring that there are no such technical rules of variance and departure in pleading in the admiralty as in the common-law courts, and concluding generally that, “On full consideration, we are of opinion, that when cargo is lawfully jettisoned, its owner has, by maritime law, a lien on the vessel for its contributory share of the general average compensation; and that the owner of the cargo may enforce payment thereof by a proper proceeding in rem against the vessel, and against the residue of the cargo, if it has not been delivered."

And this is in harmony with other like decisions in Olcott's R. 89, and S. C. ibid. 157; Dike et al. v. The St. Louis, 6 McLean, 576, already cited; and Crocker et al. v. Jackson, 1 Sprague, 143 and note. General average therefore I deem now to be strictly cognizable in admiralty. So that, although most of the cases and much of the discussion on the subject may have occurred formerly in the common-law courts, it has been deemed.pertinent and not at all inappropriate to devote a single chapter in the present treatise to this interesting subject.

In 19 Howard, 169, Mr. Justice Curtis, the eminent jurist and precise technical lawyer, in giving the opinion of the court, says: "It would be extraordinary, if the right to a lien were not reciprocal; if it existed in favor of the vessel when sacrifice was made of part or

the whole of its value for preservation of the cargo, and not against the vessel when sacrifice was made of the cargo for preservation of the vessel."

The point decided was, that a proceeding in rem lies in admiralty in favor of either the owner of vessel or cargo, where either vessel or cargo has been voluntarily sacrificed for the purpose, and with an intent to preserve that which subsequently remained secure and unsacrificed, whether such remnant consisted of a portion of the cargo or of the vessel itself.

And the decision is the more significant inasmuch as the individual judge who prepared that opinion of the court had previously been of counsel in the case of Cutler v. Rae, and expressly declined to argue at Washington against the question of jurisdiction on which the case turned. And this appears still more manifest from the note which Mr. Justice Wayne caused to be inserted in the appendix to 8 Howard, p. 615; together with the very elaborate and able argument of the gentleman who was counsel for Rea, the original libellant in the Massachusetts District Court.

In the United States then, the claim for general average contribution may at the present day be deemed cognizable in admiralty; certainly in any proper proceeding in rem; and it is difficult to perceive why not, if the proceeding be in personam, as the rule is general, if not universal, that wherever a lien once attaches it can only be legally discharged in some well-known and recognized mode; and therefore that the admiralty may seize the rem-subjectam, whenever within the reach of its process, and whether the thing has been converted or exists in specie. If it have been sold, the arms of admiralty process may reach after and seize it wherever it

may be found; and especially so, if the proceeds of the sale are within the control or custody of the court or its registrar or clerk.

After the case of Rea v. Cutler was decided at Washington, suit was brought in the state court of Massachusetts, in behalf of the owner of the barque Zamora, and the court there declined to entertain it, but gave judgment for the defendants. But upon what ground the decision was made, does not distinctly appear; it may have been out of deference to the action of the Supreme Court at Washington. Upon an inspection however of the record, no papers appear to have been filed; and therefore no exact information is accessible, except in a note to 1 Pars. Maritime Law, 292, and in the case of Merethew et al. v. Sampson et al. 4 Allen, 192. In this last case, a bill in equity was brought for contribution, and a demurrer filed by the defendants; but this was overruled. And the court there decided, that a claim in behalf of a ship, though totally lost, was in this State maintainable against the owners of cargo. The court, in that case, say that "It is impossible now to say, on what precise ground the case of Cutler v. Rea, 1 Pars. Mar. Law, 292, note, referred to by the defendants, was decided. From the fact that it was not reported, the inference is, that it turned on a question of fact, and did not involve any new principle of law. It differs, however, from the present case, in the leading fact, that here it appears that an entirely new and different peril from that which threatened the destruction of both vessel and cargo, was elected by the master, when he determined to run the vessel ashore. In Cutler v. Rea, there was certainly room for the inference, that the actual

AND MASSACHUSETTS COURTS.

165

stranding of the vessel was the impending peril, and was the result of the action of the elements only, slightly and inconsiderably modified by voluntary

agency.

"The position that no claim can be sustained by the owner of the vessel, where she is totally lost, is not supported by the more recent authorities, and is not reconcilable with sound principle."

And the court cite the Columbian Insurance Company v. Ashby, 13 Pet. 331; Caze v. Reilly, 3 Wash. 298; 2 Serg. & Rawle, 229, Gray v. Waln; 3 Kent, Com. (6th ed.) 239, note; and The Nathaniel Hooper, 3 Sumn. 542.

Without therefore speculating as to the fact, which was supposed to be possible, whether the ship was lost or there was no voluntary stranding, I am inclined to the belief that in the different decisions upon this point, the State court, in both cases, followed the authority of the United States Court, in the years 1851 and 1862; unless it should appear that a real distinction did exist between the facts of the former and latter case.

The principle on which a claim for general average contribution is practically founded, may be summed up in this expression: Present sacrifice for future security.

166

MARITIME LOANS -BOTTOMRY

CHAPTER VIL

BOTTOMRY AND RESPONDENTIA.

Or maritime loans, those of Bottomry and Respondentia are in admiralty of a very high and privileged nature. Resorted to only in cases of emergency, loans of this description, fairly made, are usually strictly enforced. They are oftentimes essential to the success of commercial enterprises; and, therefore, it should be deemed good policy by admiralty judges to look upon such contracts as commercially sacred and peculiarly binding upon the parties legally qualified to make them.

The loan on bottomry is made upon the vessel, her keel or bottom, whence its name; that at respondentia may be made on merchandise laden in the vessel, or cargo.

Both are predicated on a marine risk; and under either, the lender may exact a large (or maritime) interest, as in case of loss of the property pledged, his bond, bill of sale, or other bottomry security becomes unavailing. For this risk, his claim for extra interest is recog nized, and admissible as not violating the laws against usury, inasmuch as it goes at the same time to pay the lender a premium for insurance as well as interest on his money loaned. The holder of bottomry security always accordingly represents the double character of lender and insurer.