In Altona, the ship-builder who repairs or builds a vessel (and consequently has the possession) may, in default of payment, institute an actio hypothecaria, and obtain a decree by publick advertisement to sell the vessel, at a time therein to be specified.

The 2d Book, title 9, de Ordonnance de la Marine, treats of ship-builders. It requires that they should name two persons (k) who, when sworn, were to have the superintendance of the work, and determine of its fitness, and to judge of the caulking, &c. But the practice in France as in every other country, is now, that the master who is to have the command of the vessel, should have the general superintendance of the building. (1)

Where, before the vessel has performed a voyage, the merchant fails, and process is sued out against the vessel, there the claims of materialmen, and of the workmen engaged in the work, according to the Code de Commerce, are privileged; and are, after the costs of court, concurrently preferred. Should a ship be so long detained in port, that additional work and repairs become necessary, it is still admitted that all claims of the above nature are to be paid pari passu. (m)

The Consolato del Mare remarks: that the workmen engaged by the ship-builder can exhibit no claim against the vessel, if he has undertaken to deliver her for a stipulated sum, and that fact is know to them. (n)

If rollers, windlasses and the like, are borrowed in the course of the work, and are injured, the owner bears the loss. Not so, if taken without his consent. (0)

A subject not often noticed in the contract, and frequent in its occurrence, is this, that the parties, as in every species of building, often miscalculate, rating the costs below the result. This is ascertained in many instances long before the completion

(k) Art. 3.

(1) Valin. tom. I. pag. 593. (m) Art. 190. No. 8. Nouvean Valin, page 10. 11.

(n) Chap. 52.

(0) Chap. 230.

of the work; and few owners are so unreasonable, as to refuse further compensation, upon plain proof of such miscalculation. But it would be difficult to enforce it by an appeal to law; all the Roman decisions and the principles of the contractus locati et conducti, are opposed to it (p). And as the community are extensively interested in the seaworthy completion of every vessel; some legislative provision should be framed, by which, in the event of a miscalculation from the rise of timber, from transportation, or other circumstances wherein the contractor is not in mala fide, and the parties cannot agree, skilful referees might award the damages, and decree compensation to the shipbuilder and his men, according to the then prevailing standard of wages, &c. These principles are to be found in the spirit of the Consulate.

To avoid inconveniences of this nature, the contract is occasionally so framed, that the ultimate cost of the vessel is not precisely stipulated, but only the costs of the separate parts. Or, a salary is reserved to the builder for his draught of the plan, and superintendance of the building; leaving to the owner's separate account, the purchase of materials, and the price of the wages.

As this, in many respects, begets greater uncertainty, the first species of contracts is more deserving of the encouragement of the law.

The Hanseatic Statutes do not permit part-owners to advance necessaries on account of the work, without the consent of all; so, the master is not permitted to make purchases on account of the vessel, without authority from the owners.(g)

When the ship sustains any damage by water or fire, not originating in the yard of the builder, who is to sustain the loss? Clearly the owner, if others are not in culpa. The Consolato del Mare remarks upon this point:

(5) Loccenius de jure maritimo, cap. 2. not. 4.

(9) Hanseatishes Seerecht, T. I. Art 5 and 6. Kürike jus maritimum Hanseaticum ad locum citatum.

"The shipbuilder is to indemnify the owner for all damages arising from his own fault, or negligence; but if the damage or injury does not accrue from his neglect or by his fault, it is not supposed, that he should be responsible." (r)

A second species of contract occasionally in use in the building of vessels, is that of Bottomry.

Benecke, in his celebrated system of Insurance and Bottomry, (s) decides the bottomry contract into two classes.

1. Where, by the application of the money taken on bottomry, the original value only of the thing bottomried, is to be restored, which is the most usual class.

2. Where the loan is to be applied to augment and increase the value. To this class belong the cases where money is advanced to continue and complete the building of a ship. (1)

(r) Consolato del Mare, chap. 52.

(s) 1st vol.-1st chap.-9th sect.

(1) Engelbrecht conceives the proper classification of this subject, to be of four kinds : The 1st, according to his division, when the owner of a ship procures a loan upon a bottomry bond, before he has insured. The 2nd, where the party being upon a distant voyage, is compelled to sell or pledge goods upon bottomry. The 3d, where the master, to repair the damages sustained by the vessel, is compelled to take money upon a bottomry bond on ship and cargo, the whole being previously insured. And 4th, where the master in a strange port, for the prosecution of the voyage, and the for benefit of the ship alone, without the responsibility of the shippers, takes up money, when the ship is insured. It is easy to perceive the errours of this classification. For in the first place, what has insurance to do with bottomry, which may exist in all its varieties, even if no insurance at all existed? In the first class no preceding insurance could exist; and had insurance been made, it must have been repealed, or assigned to the bottomror. In the 3rd and 4th classes it must be equally indifferent to the lender, whether the owner of the thing bottomried, be his own insurer, or have transferred the risks of the

It is a contract between the builders and the lender, by which a sum of money is advanced upon the vessel, at a certain bottomry interest, repayable at a particular time; or upon the

voyage to another. Besides, upon nearer reflection, it does not appear, that the nature of the bottomry is changed, whether it be upon the cargo, or upon the ship and freight; and whether the money be taken up for the use of the owners at home, or abroad.

The only true and characteristick distinction, Benecke thinks, is the above where, 1st: The money taken on bottomry is to be applied upon the thing bottomried. for the use of the owner, without increasing the original value of the thing bottomried :-and, 2nd, where the loan is to be applied to augment and increase the value of the thing bottomried; and whether the loan is had at the residence of the owners, or abroad, the case is equally the same.

Now, to shew that every case of bottomry is included either in one, or the other of these classes, he remarks: Every bottomry concerns either the ship alone, or the ship and cargo together, or the cargo alone. Other cases cannot occur.

Money taken on bottomry of the ship alone, at the port of depar ture, by the owners, whether for the completion, or victualling of the ship, belongs clearly to the second class.

Money taken on bottomry of the ship at a port of necessity, for repairs, or expenses of claim upon capture, cannot increase the original value, and therefore belongs to the first class.

Money taken on bottomry of the ship at the port of destination, according as it is to be applied to repairs, to victualling, or improving the ship for a new voyage, belongs either to the first or second class.

Money taken on bottomry of ship and cargo together, can only be applied to the common benefit of ship and cargo ; and must belong to the first class.

Money advanced upon a cargo, whether made at home or abroad, must clearly belong to the second class.

Money that might be required to be advanced in a port of necessity, to be applied for the sole benefit of the cargo, would belong to the first class.

arrival of the vessel at a particular place.

Benecke, treating of this second class, remarks, that the lender is to be considered the insurer of the sum advanced; for instance, he is. subject to general and particular average, &c. (2)

Thus, in a fair investigation of the subject of bottomry, it is easy to perceive, that all cases do not rest upon the same principle; but that there are various kinds, which in their nature, require the application of different principles; yet most writers treat the subject without distinction. All the varieties of this subject, were not at once found applicable to the business, or necessities of any particular nation; and every legislator had his attention directed solely to the particular classes, to which he intended to apply the provision. Thus alone are the various contradictions so often found among different nations to be reconciled. The Hamburg laws, for instance, release the lender from general and particular average; while the Prussian code burdens him with both. The laws of Holland acquit him of general but not of particular average; while again the French law releases him from particular, but subjects him so positively to general average, that even a stipulation against it in the bottomry bond, is not allowed to avail him~(vide 2 Valin, 19.) Thus also the laws and usages of some countries determine, that the thing bottomried, saved from wreck, belongs to the lender; others, to the borrower, or his insurer-(vide BENECKE loco citato.)

(2) In the first of these classes, Benecke holds the lender free of both general and particular average, except where the damage or injury to the thing bottomried, reduces it below the amount of the money advanced upon it; and what is saved from a wreck, he is entitled to in priority to the insurer of the goods. So the insurer of average monies, is to be held free of all averages, and is not liable to be called upon but when the first insurer has sustained a total loss. But in the second class he holds the lender to be the insurer for the whole sum advanced, and is to be considered and treated upon the same principles as an insurer, (vide Benecke.)-The lender on bottomry differs in nothing from an ordinary insurer, but by the pay