The Bark Edward Albro.

tion is practicable under the circumstances, without unduly delaying the ship, before he can execute a bottomry bond. (The Oriental, 7 Moore's P. C. 398; see also The Bonaparte, 8 Id. 459; The Onward, L. R. 4 Ad. and Ec. 57; The Julia Blake, 16 Blatch. 472.) It has been suggested that this objection goes only to invalidating the stipulation of the bond for payment of maritime interest on the ground that the failure to communicate has only subjected the owner to this extraordinary expense. (The Eureka, 2 Low. 418.) But, as I understand the cases, it has been held that the communication with the owner, where practicable and prudent under the circumstances, is one of the modes of obtaining funds to which the master must resort and which he is bound to exhaust before that necessity can be said to exist which clothes him with authority as agent of the owner of the ship to make an express hypothecation of the ship by a bottomry bond. This being so, the objection, if well taken in the particular case, must make the contract as a bond invalid for want of authority to execute it. The same principle has been held to apply to a bond hypothecating the cargo, and in respect to the cargo upon a ground which does not apply to the case of the ship, namely, that the owner of the cargo may have the opportunity to exercise his option to take the cargo at the intermediate port upon payment of full freight and indemnifying the ship against expense and loss arising from his retaking it. (The Julia Blake, ut supra; The Onward, ut supra; The Lizzie, L. R. 2 Ad. & Ec. 250.) But it is entirely clear as to the cargo and a fortiori as to the ship, that the master is not bound to wait to communicate with the owner, if it is impracticable under the circumstances, or will seriously delay the vessel, having regard to all the circumstances. Perhaps no better test can be applied than this, that in the matter of communicating the master must do what a prudent owner, if

The Bark Edward Albro.

personally present, would do under the same circumstances. (The Lizzie, ut supra.) The failure of the bond for want of communication would not, however, necessarily lead to the dismissal of the libel, since the court may, if it appears that through a mistake and without fraud, an attempt to convert a tacit hypothecation under the general maritime law into an express hypothecation by the bond has failed, allow an amendment of the pleadings and enforce the maritime lien. And such practice would especially be proper where the parties, without fault, have, as in this case, been delayed two years in the trial of their case, and have really tried the questions that arise in respect to the maritime lien. (The William and Emmeline, B. and H. 20; The Eureka, ut supra; Carrington v. Pratt, 18 How. 66.) Of course this would be impossible if the prior claim did not constitute a maritime lien, as in the case of The Circassian, 3 Ben. 414, or in case of an attempted hypothecation of the cargo, where no prior lien exists.

The barque arrived at Cape Town on the 15th of April, in command of Capt. Cummings, who had sailed in her from New York. She had sailed from New York with a cargo of petroleum for Stettin. From Stettin she proceeded to Gefle and from Geffle took a cargo of deals for Cape Town. She put into Madeira in distress and was there repaired, and incurred expense, for which a bottomry bond was executed. She was consigned at Cape Town to one Ardeme. The owner had, before her arrival, sent a power of attorney to a merchant at Cape Town, to attend to the business of the vessel, but for some reason he did not act. Soon after his arrival Capt. Cummings got acquainted with this libellant, Joseph Grady, who was doing business under the name of Joseph Grady & Co., as a ship chandler, and Grady solicited of the captain the business of the ship so far as related to the supplying of

The Bark Edward Albro.

ship-chandler's stores. The captain informed Grady that he would have coming from his consignees three or four hundred pounds to spare, which he wished to put into old iron to bring to New York, and asked him to assist in procuring other freight. The vessel seems to have had no business at Cape Town except to deliver her inward cargo and to get such homeward cargo as she could obtain. Soon after his arrival, the master consulted with the libellant in respect to getting a homeward cargo, and by his advice, the ship was advertised in the newspapers for New York, for any freight that might offer. The libellant was then doing business with an American man-of-war, and secured for the barque the carriage of her guns to New York, the freight agreed upon being £100. Cargo did not offer in any large quantity, but some wool and other produce was secured. The libellant arranged with one Wainwright to sell to the master about two or three hundred tons of old iron and about twenty tons were actually delivered and shipped on the barque. This was soon after the delivery of her inward cargo, which took about ten days. But afterwards, upon settlement of the master's accounts with Ardeme & Co., it was discovered that instead of there being three or four hundred pounds to spare of his freight moneys to invest in cargo, as the master had represented, there was but £37 payable to him. The precise time when this discovery was made does not appear. It was, however, before the 29th of May, when the master died. Up to that time most of the cargo that was obtained at all had been shipped and there was little prospect of any more. From the time that the discovery was made that the master had but £37 at his command, it became evident that he would be in want of funds to disburse the ship in order to prosecute his voyage, unless the freight on the cargo shipped and to be shipped should be sufficient and available there

The Bark Edward Albro.

for. The owner had no agent acting for him and no funds in Cape Town at the master's command. The vessel, on her arrival, needed some slight repairs and supplies and stores for her stay in port and her return voyage, which was ordinarily a voyage of about two months. The apparent necessities of the ship were much short of the amount afterwards secured by the bottomry, £687, for, as will be shown hereafter, many expenses were included therein which were not really necessities of the ship, and after the death of the captain there was a further unexpected delay of the vessel in port, and repairs which had not been anticipated, but which were rendered necessary in consequence of the refusal of the crew to go to sea in the vessel as she was, and the consequent order by a survey of some additional repairs. All this tended to make the ship's disbursements, in fact, larger than seemed probable before the death of Captain Cummings, and before the bills of the vessel were called in by advertisement, which was some time, but how long does not appear, before his death. When the bills were called in it was evident that the master could not obtain the means at Cape Town of disbursing the ship. It is suggested that the freight, in all amounting to about £300, was a fund that he could have used. Upon the evidence, however, I am bound to find that it would not have been possible, at Cape Town, without some collateral security or an indorser, to raise money on the freight. Before Captain Cummings' death he had been arrested at the suit of Wainwright for the price of the old iron delivered to the ship. The libellant paid the bill and costs, amounting, in all, to about £49, and the captain was released, went on board ship and almost immediately died. He seems to have been an intemperate man and had lived on shore while in port and run up considerable bills for his board, for liquor and other unnecessary expenses. Upon the death of

The Bark Edward Albro.

the master the libellant advertised for a master, and on the 14th of June Captain Reimer offered his services, and he was accepted and assumed the command of the barque on the 16th of June. It is objected that his appointment was irregular for want of authority on the part of the libellant, and, also, because the vessel had a mate who was competent to act as master and who should have succeeded to the command. It is, indeed, suggested that the libellant designed a fraud on the owner, and for that reason set aside the claims of the mate and procured and installed a master in his own interest who would make no objection to executing the bottomry bond and would aid the libellant's fraudulent designs. As above indicated, the evidence does not sustain this charge. The mate seems to have been set aside because he was, or the libellant was credibly informed that he was, not a suitable man to become captain. In this the libellant may have been mistaken, but it cannot be concluded from such mistake that Captain Reimer, who became, in fact, the master, and who has since been recognized as such by the owner, had not all the customary authority of master from the time he took command of the vessel. Tenders for bottomry on ship and freight were advertised for, but no tenders appeared, and finally the libellant, who had already a large bill for supplies due him, paid the bills of the ship and took the bottomry bond. The vessel sailed from Cape Town on the 12th of July. No communication was had with the owner, except that on the 30th of May the libellant wrote the owner a letter, which was received in New York on the 7th of July, informing him of the death of the master, referring to the claims against the vessel and promising further information by the next mail, which would leave on the 5th of June. This letter is clearly insufficient as a communication, if communication was necessary, because it was not sufficiently.