the law implies this. And where there are no laches on the part of the lender, his lien will be upheld even against a bona fide purchaser without notice.2

If marine interest is requisite to a bottomry loan, it may be presumed to be included in the principal sum. The bond should describe sufficiently the risk which the lender assumes. This is, generally, the loss of the ship by the perils of the sea; and any such words as "the bond is gone if she does not arrive," or "if she is lost," or "the money to be paid after her safe arrival," are sufficient to indicate this. The risk must be such as justifies maritime interest; and if the ship be lost by a peril, or from a cause not enumerated or implied, the debt survives, even with the maritime interest; as if the ship be lost through the misconduct of the master or owner.5

SECTION II.

OF BOTTOMRY BONDS MADE BY THE OWNER.

Bottomry bonds are often made, in this country, by the owner, in the home port. Nor is any necessity whatever requisite, as far

The Brig Draco, 2 Sumner, 157.

Wilmer v. The Smilax, 2 Pet. Adm. 295, note; The Brig Draco, 2 Sumner, 157; The Catherine, 1 Eng. L. & Eq. 679. See also the judgment of Mr. Justice Powell, in Trantor v. Watson, 6 Mod. 11, 13.

The Mary, 1 Paine, C. C. 671. "This," however, Mr. Justice Woodbury remarks, "makes the question of interest a nose of wax." Greely v. Smith, 3 Woodb. & M. 236, 257.

Wilmer v. The Smilax, 2 Pet. Adm. 295, note; The Brig Draco, 2 Sumner, 157; Thorndike v. Stone, 11 Pick. 183; Greeley v. Waterhouse, 19 Maine, 9. In The Duke of Bedford, 2 Hagg. Adın. 294, the bond was given by the owner of the ship, who was on board, at a foreign port. The master was also on board and received the supplies as necessary, but refused to sign the bond. A suit to dispossess the captain had previously been instituted. The court held, that the bond was valid. See also The Barbara, 4 Rob. Adm. 1; The Mary, 1 Paine, C. C. 671. And if, in such a case, the owner is also master, although he professes to contract as master, he confers the same rights as if he gave the bond as owner. The Ship Panama, Olcott, Adm. 343.

as his own interest is concerned.1 He may make such a bond hypothecating a vessel before sailing on her first voyage, if he pleases. It is then nothing more than a borrowing of money at extra interest, the lender assuming an extra risk. Sometimes this is in fact little more than nominal; the whole transaction being substantially a legal loan for usurious interest with security; for a party may lend ten thousand dollars on a bottomry for fifteen per cent interest, when six per cent is the legal interest, and three per cent the usual premium for insurance on that voyage; and as a lender on bottomry has an insurable interest,2 he may, by expending three per cent interest, insure the ship and secure the payment of his loan at all events, and yet receive his twelve per cent net for the use of his money. It is true that the uniform language of courts, both as to bottomry and respondentia bonds, is, that if the transaction be colorable only, and a mere pretence for getting usurious interest, it has none of the privileges given to these bonds, but is like any other loan on usury; 3 and this is a question for the jury. But there is no precise limit nor measure to marine interest; and in practice the interest must be far beyond the risks to be affected by the usury, as they would be measured by the mere rate of insurance.4

Bottomry bonds made abroad are generally made on the next voyage of the ship; which must be described with reasonable accuracy, or as near as the master can, but need not be precisely set forth. When made at home, by the owner, they are frequently made on time, as for a year.

1

Greeley v. Waterhouse, 19 Maine, 9; The Mary, 1 Paine, C. C. 671; The Brig Draco, 2 Sumner, 157. But see Greely v. Smith, 3 Woodb. & M. 236, 254. So of a respondentia bond. Conard v. Atlantic Ins. Co. 1 Pet. 386; The Brig

Bridgewater, Olcott, Adm. 35; The Ship Panama, Olcott, Adm. 343.

437.

1 Parsons on Mar. Ins. 208-225.

Thorndike v. Stone, 11 Pick. 187; Conard v. Atlantic Ins. Co., 1 Pet. 386,

See ante, p. 135, note 1.

And where the voyage is not under the direction of the party granting the bond, but is under the control of government, a bond is not invalid because the voyage is not described. The Jane, 1 Dods. 461.

• The Brig Draco, 2 Sumner, 157; Thorndike v. Stone, 11 Pick. 183; Bray v. Bates, 9 Met. 237.

SECTION III.

WHEN THE MASTER MAY MAKE A BOTTOMRY BOND.

4

Although an owner may make a bottomry bond anywhere, and for any reason, the master can do so, only abroad and from necessity; his power in this respect being exactly analogous to his power to sell; excepting that he may be justified, as we have already said, in giving a bottomry bond, by a less necessity than is required to authorize his sale of the ship. And the power belongs to any one who is lawfully master of the ship, however appointed ;2 as where he is appointed by the agent of the owners.3 So, if he is appointed by the consignees of the cargo. In one case where the captain was appointed by a foreign merchant, and gave a bond to him, the bond was held to be valid. And in another case, the same was held in respect to a bond given to the charterer by whom the master was appointed. So, too, the master of a transport, hired by government, and in the national service, may bottom her. And the master of a belligerent ship that is in a foreign port by virtue of a cartel, may give a bond, and this may be enforced in the courts of the country to which the master is an enemy. But

a bottomry bond on a belligerent ship is discharged by the capture

1

1 Sir Wm. Scott, in the case of The Gratitudine, 3 Rob. Adm. 240, 266, speaking of the necessity which will authorize the borrowing of money on bottomry by the master, says: "Necessity creates the law, it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal." See also The Nelson, 1 Hagg. Adm. 169; The Rhadamanthe, 1 Dods. 201; The Gauntlet, 3 W. Rob. 82, and cases infra.

The Orelia, 3 Hagg. Adm. 75; The Boston, 1 Blatchf. & H. Adm. 309.

The Kennersley Castle, 3 Hagg. Adm. 1. In this case it was doubtful whether the master was appointed by the agent of the owner, or by the agent of the underwriters, to whom the ship had been abandoned, or by both. The court were also inclined to the opinion that if he had been appointed by the underwriters alone, the bond would have been valid.

• The Alexander, 1 Dods. 278; The Rubicon, 3 Hagg. Adm. 9.

The Tartar, 1 Hagg. Adm. 1. See also The Brig Ann C. Pratt, 1 Curtis, C. C. 340, 344.

• Breed v. The Ship Venus, U. S. D. C., Mass. 1805, Abbott on Shipping, Am· Ed. 159, n. 1.

The Jane, 1 Dods. 461.

Crawford v. The William Penn, Pet. C. C. 106, 3 Wash. C. C. 484.

of the ship; and the courts of the captors will not enforce it as a subsisting claim even in favor of a subject of the capturing power.1 After the master has ceased to act and another is appointed, he cannot give a bond, since he is functus officio.2

If a ship be captured and restored to the owners, it is a detention or interruption of the voyage, and not a loss of the ship; 3 but if it be captured, condemned, and sold, and the proceeds afterwards restored to the owner by decree, this is a loss of the ship, and the owner holds the proceeds free from any claim of the bondholder on the bond; and if, as has been said, there is no salvage in bottomry, it would be difficult to give him any relief. But not only the justice of his claim, but some authorities indicate, what we must think should be the law, that he has such claim either by way of salvage, or in admiralty, on the general principles of equity."

The necessity, though less than that requisite for a sale, must still be a real and a sufficient necessity. Therefore a master cannot hypothecate the ship for money borrowed for his own wants."

1 The Tobago, 5 Rob. Adm. 218.

2 Walden v. Chamberlain, 3 Wash. C. C. 290.

Joyce v. Williamson, 3 Doug. 164. This was an action on a bond which contained a clause, that if the ship should be taken by the enemy, cast away, miscarry, or be lost, before her safe arrival at New York, the bond should be void. The ship sailed on the voyage, was captured, and afterwards retaken and carried to Halifax, where part of the cargo was sold for salvage and repairs. The vessel afterwards arrived at New York with the remainder of her cargo on board. The ship and freight were then worth the sum in the bond, but not worth that sum together with what had been laid out in repairs. The bond was pronounced

for.

Appleton v. Crowninshield, 3 Mass. 443.

See post, p. 151, n. 4.

• Appleton v. Crowninshield, 3 Mass. 443, 8 Mass. 340. In this case the vessel was captured and condemned. On appeal the decree was reversed and restoration ordered; and afterwards the value of the vessel and freight, with interest, was awarded to the owner. The court held that no action would lie on the bond, but intimated that an action for money had and received would lie against the owner. Accordingly such an action was brought, and the plaintiff recovered.

* King v. Perry, 3 Salk. 23. The following case is related by Loccenius, lib. 2, c. 6, § 12. The master of a ship being in a Spanish port, and having exposed the ship to seizure by his neglect to comply with a particular regulation of the country, entered into an agreement with a person who was supposed to possess sufficient influence to obtain the restitution of the ship, to pay him a very con

4

But it

Nor can he as master pledge the freight for his own use. is otherwise, if at the same time he is master and mortgagor in possession, and it is a question for the jury to decide in which capacity he acted.1 And it must be the necessity of the ship; for he cannot make a bottomry of the ship for the benefit of the cargo.2 That is a sufficient necessity which would induce an owner to do it if on the spot; 3 and therefore the master may hypothecate the vessel in a foreign country to enable him to return home, though the original voyage was broken up by capture and the compulsory sale of the cargo. But this necessity of judging whether the owner would do it, does not exist if the owner himself can act or be consulted. It is said that a master in a port of this country, may bottom his ship if her home port is in another State. But this ruling cannot be sustained; for the master does not have the power of binding the ship to the payment of maritime interest, if the owner can be consulted, whether he be in the same, or in a neighboring State, or in another country. If the master be in the British provinces, and the owner in the State of Maine, within a day's sail or ride of him, the master can have no such power. It must be a foreign port in the sense of a distant port; this is sufficient; and it may therefore be the port of destination.8

siderable sum with maritime interest, if he should procure the restitution of the ship, and she should afterwards return home in safety; and for securing the payment, executed an instrument in the nature of a bottomry bond. By the interest of the person with whom the agreement was made, the ship was restored, and afterwards returned home in safety; and he instituted a suit against the ship upon the instrument executed to him by the master. It was held that neither the ship nor her owners were chargeable. See also Gibbs v. Sch. Texas, Crabbe, 236.

Keith v. Murdoch, 2 Wash. C. C. 297.

2 Fontaine v. Col. Ins. Co. 9 Johns. 29.

The Fortitude, 3 Sumner, 228, 246. In The Medora, 1 Sprague, 138, it is said: "They (the supplies) are necessary, if they are fit and proper for the service in which the vessel is engaged, and what the owner of that vessel, if a prudent man, would have ordered if present."

Crawford v. The Wm. Penn, 3 Wash. C. C. 484.

See infra, n. 7.

• Selden v. Hendrickson, 1 Brock. C. C. 396. The vessel in this case belonged

to Richmond in Virginia, and the bend was given in New York.

In a case of necessity, where it is impossible to communicate with the owners,

Reade v. Comm. Ins. Co., 3 Johns. 352.