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ish ship, borrowed in Sweden, of Mr. Toren, the sum of £392 15s. 11d. on bottomry, at a marine interest of £15 per cent., the bond being upon ship, freight, and cargo. The owners of the cargo were English; bail was given in their behalf for the cargo, consisting of iron; and bail was also given for the freight due. No

1 attempt was made by the master to tranship the cargo, and no notice was given to the owners of the cargo; but the shipper, though applied to, refused to advance money. Counsel appeared for the owners of the cargo, but no appearance was made for the ship-owners. The ship was sold, under a decree, for a sum less than that due on the bond. Affirming the ship to be the prior and the cargo the secondary fund, Dr. Lushington pronounced the bond valid against the cargo for any deficiency.

In the case of the Catharine, a British ship bottomried by bond, payable on her arrival in an English port, was sold at Bahia, with the consent of the resident English consul, for unseaworthiness. The foreign purchaser repaired her, changed her name, and sent her to England. He had no notice of the bond, at the time of the sale. Dr. Lushington pronounced for the bondbolder, finding the sale to be bonú fide, the lien unremoved, and that “the bond attached to the very last plank, and the holder might have that sold for his bene fit.” Thus he reaffirmed the doctrine formerly held by him in the Dante (2 W. Rob. 467), and expressly adopted that of Mr. Justice Story, in the Draco, 2 Sumn. 157.

It was held in the case of the Oriental, that Mr. Miln, though an agent of Mr. Wallace, the owner, might (to secure advances for repairs), take a bottomry bond from the master. The agent disclosed his intention to the





owner; but the owner provided no funds, and it did not appear that either master or owner had credit where the repairs were made. The master, being unable to pay the expenses, advertised for a loan on bottomry, and the agent's offer was the lowest. Under these circumstances, a bond was given, and by the court adjudged valid.

In the case of the Wave (4 Eng. L. & E. 589), an agent repaired and corresponded with the owners of ship and cargo, but did not intimate any intention to take a bond for security. Dr. Lushington, May 16, 1851, pronounced this bottomry bond to an agent invalid, upon the ground, that the repairs were ordered, in the first instance, on the owner's personal credit.

There may be cases where a consul as well as master may give a valid bottomry bond. This happened in the case of the Cynthia, 20 Eng. L. & E. 623. Her master and officers had been murdered by Mexican mutineers who had brought her into Campeachy; where she was taken possession of by Mr. Shiels, the British consul, “ standing in loco of the owner himself,” who appointed a new master; and for sums advanced to purchase stores and other necessaries, the consul gave a bottomry bond with maritime interest; and its validity was contested by a former bond-holder. Dr. Lushington considered it a case primæ impressionis ; but pronounced in favor of the consul's bond, it being “ the duty of a British consul to preserve and protect the property of British owners,” and refers to a like opinion expressed by Lord Stowell in the Zodiac, 1 Hagg. 320.

In another case of the Cynthia (20 Eng. L. & E. 625), a master bottomried his vessel; a subsequent charterer







advanced part of the freight to defray necessary expenses already incurred; and agreed by the charterparty to pay the balance of the freight to the bondholder, in discharge of his bond; and it was adjudged that the bond-holder had no claim upon the freight advanced as against the consignee of the cargo and assignee of the freight.

Upon appeal to the judicial committee, the case of the Bonaparte (20 Eng. L. & E. 649), came again before Dr. Lushington, upon remit, for insufficient communication to the owners or consignees of the iron; and upon taking additional evidence the same learned admiralty judge held that a letter written by a British consul in a foreign port, on behalf of the master of a small British vessel and his agent, informing the consignees in England of the damage sustained by the ship (but making no application for money nor referring to the necessity for repairs), is sufficient notice for the purpose of raising money on bottomry.

In trials of suits on bottomry bonds, the defense intended to be relied on should be stated in the pleadings.

In 1853, a decision in the case of the Nuova Loanese (22 Eng. L. & E. 623), was made by Dr. Lushington, to the effect that advertising for a loan, at the port where a charterer or shipper resides, is not sufficient notice to him, and that a bond so given is not valid against the cargo or owner or consignees thereof.

A Wallachian ship, after encountering violent storms, was found to have sustained much damage, rendering repairs necessary. She arrived at Rio, April 15, 1851, where the master and crew, except the mate and three seamen, died. Battestella, the mate, was appointed mas180 WANT OF COMMUNICATION NOT SUPPLIED BY ADVERTISING.


ter, by order of the Ottoman consul. A loan was ad. vertised for, and the owner of the cargo knew it, and also that his cargo had been laden and unladen ; and was well aware of the unseaworthy condition of the ship. But no direct communication or application for funds was made to the owner, and therefore his cargo had not become a subject of hypothecation. Such communication and application were prerequisites; and the want thereof could not be supplied by advertisement, or other means of publicity. And this was deemed an important rule, which in practice ought to be inflexible.

In 1 Spink’s Reports, p. 303 (Nostra Senora del Carmine), it was held that the master, though the agent for the owners, can only bind them to the extent of the value of the cargo; but should the owner contest, he may become personally liable for costs. I cite from the first volume of Spinks; but presume a second volume has been published, though it has not appeared in this country. The volume from which I cite contains decisions made in the year 1853–54. Vide Appendix H.

If the owner of the cargo give bail to the amount of the value of the cargo, and do not appear to contest, he is not liable either for any deficiency after sale, or for costs; though enough be not realized to liquidate the bond and provide for all the costs. This was so held in 1854, in the case just cited, the Nostra Senora del Carmine : also reported in 29 Eng. L. & E. Rep. p. 572.

In the Royal Arch (Swab. 269), it was held that the bond of the master, given with the owner's consent, where payment was postponed for a new voyage, was good originally; but the holder could not sue on the agreement to postpone, nor in admiralty.

A low rate of interest implies the absence of a searisk.

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In the William (ibid. 346), the master, who was also sole owner, gave a bond binding himself, ship, and freight; and it was there decided that he could not claim costs out of the proceeds, or wages against the bond-holder.

In the Jonathan Goodhue (ibid. 355), it was held that a bond, executed after the repairs were done and a contract of affreightment was made, but before an actual shipment of the cargo, was not valid.

A sea-risk must be directly expressed ; no matter if the lender insures, and the borrower pays a premium ; and the expression of a maritime risk is essential to the validity of a bottomry bond. And this expression is to be collected from the terms of the instrument itself. Hence stipulations, excluding an implication of risk, should be avoided, as tending to invalidate the bond; such as stipulating for a common rate of interest; extending its payment until the payment of the principal, or the payment of principal beyond the date of the arrival; insuring the ship by the lender; all which tend

; to exclude the implication of a veritable sea-risk; and such conclusions are not effectually repelled by a bill of exchange. Swabey, 446, The Indomitable.

In the Helgoland (ibid. 491), a British subject purchased a ship abroad and gave a bond for her outfit. It was held cognizable in admiralty. If there were a

a mortgage, the bond-holder is not bound to make known the existence of his bond to the mortgagee, nor is it affected by the owner's concealment of it. Nor is the mortgagee affected by the laches of the holder, unless specially prejudiced thereby; nor, if the bond is originally good, is it affected by the holder's agreement to purchase.

In the Edmund (Lushington's Rep. 57), it was decided

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