I have detailed these cases with the more particularity, in order to prevent any mistake from the general doctrine delivered by Lord Mansfield, in the case of Rich v. Coe, which has sometimes been cited as an authority up to the full extent of the terms in which it was expressed (i) . 4. The Doctrine and Jurisdiction of the Court of Admiralty3 & 4 Vict. c. 65; 24 & 25 Vict. c. 10. There is, however, a determination of the Court of Admiralty that should be mentioned in this place. An American ship was supplied in the river Thames, by certain merchants of London, with stores and ammunition for a voyage to Venice; and having performed the voyage and returned to London, was sold under a decree of the court, in a suit instituted by the mariners for their wages. After payment of the wages, a surplus remained in the registry of the (i) In most of the countries governed by the civil law, repairs and necessaries form a lien on the ship itself. In England, the same doctrine for a long time prevailed in the maritime courts (1 Hagg. Rep. 320, 325; 1 Roll. Abr. 533, Cro. Car. 296), until, after a long contest, it was finally overthrown by the courts of common law, and by the highest judicature in the country, the House of Lords, in the reign of Charles the Second. The submission of the Courts of Admiralty seems, however, to have been limited to the very letter of the prohibition; for, in a late case, it appeared that the practice of paying material men out of the proceeds in the registry, arising from the sale of a ship under process of that court, had existed for more than half a century (the Neptune, 3 Hagg. Rep. 129). "This practice," said the late learned Judge of the Admiralty (Sir John Nichol), "founded on principle, on the law civil and maritime, on the usage of other nations, and on the ancient practice of this court; unchecked by prohibitions, except in the case of proceedings against the ship itself this practice, so founded and so allowed to grow up, I shall not disturb;" and he accordingly pronounced for the claim of the material men, with costs of suit, and that the same should be paid out of the registry. But this decision was reversed on the appeal of a mortgagee by the Judicial Committee of the Privy Council (2 Knapp's Cases, 94), and the law, therefore, as stated in the text, may be considered as finally established. In the Admiralty Courts of the United States, the rule of the civil law has been generally followed as to foreign ships, and in some of the states, as to repairs in domestic ports. In the case of the General Smith (4 Wheaton, Rep. 438), the Supreme Court of the United States held, that where repairs have been made, or necessaries furnished to a foreign ship, or to a ship in a port of a state to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in the Admiralty to enforce his right. But in respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed altogether by the municipal law of that state, and no lien is implied unless it be recognised by that law; and, accordingly, the court decided it in that case, because the common law, which was the law of Maryland, where the repairs were made, did not give it for repairs on a domestic ship. The legislature of New York and Pennsylvania have specially provided for material men, shipwrights, and artificers, a lien on the ships furnished or repaired by them; and in Louisiana, a like lien or privilege exists in virtue of the general Spanish Law. See Judge Story's note to the first American edition, p. 115. "The statute laws of the states generally give a lien to mechanics or others on buildings for labour bestowed and materials furnished in the erection of them. In Ohio the purchaser of a steamboat, with notice of a debt created on account of it by the original owner, takes the boat subject to such debt. The legislation of the several states exhibits a progressive inclination to extend the right of lien for the security of the claims of mechanics and labourers. It is extended to vessels in Vermont." Note to Kent's Commentaries, (ed. 1858,) vol. 2, 635. court. The master had returned to America and died; and the owner was insolvent there. The merchants applied to the court for payment of their demand out of this surplus; and in support of their application, a distinction was taken between English and foreign ships. The learned judge of the court, after having had the cases looked into, said he found it had continued to be the practice of the court to allow persons of this description to sue against proceeds remaining in the registry, notwithstanding prohibitions had been obtained on original suits instituted by them; and he referred to a particular case of the ship Adventure, in the year 1763, and decreed that payment should be made according to the application (k). It is observable, that there was not in this case any person representing the owner to object to the application. It appears by the report that the proceeds had been previously attached on the part of a creditor, and that the attachment had been removed before the decree, but no particulars relating to it are mentioned. In the case of the same ship, a person who had acted as agent and broker to the ship in this country, afterwards applied by petition for payment of the balance of his account; but the petition was rejected, by reason of the general and unsettled nature of the account, which was thought more fit for the Court of Chancery, where alone crossdemands could be investigated (7). With respect to foreign (m) ships, it is now, by the 6th section of 3 & 4 Vict. c. 65, enacted, that the High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered, or damage received, or necessaries furnished, in respect of which such claim is made. The Court of Admiralty, the owners not opposing, has given effect to this section, directing payment out of proceeds in the registry, of the full amount of a claim for necessary moneys advanced to a foreign ship, partly "within the body of a county," and partly in a Scotch port out of its jurisdiction-with a protest however, that but for the shipowner's not appearing to protect his interest-there would have been considerable difficulty in making the order (n.) It has also sustained its jurisdiction under this statute in the case of necessaries (k) The John Jackson, 3 Rob. A. R. 288. (1) See the recent case of Duncan v. M Calmont, 3 Beav. 409, and Castelli v. Cook, 7 Hare, 92. (m) A vessel built and registered at New Brunswick, and owned by a firm in Nova Scotia, has been held not to be a foreign seagoing vessel within this Act. The Ocean Queen, 1 W. Rob. 457. The 6th section of the Act applies exclusively to foreign vessels: the Ocean, 2 W. Rob. 368. To give the court jurisdiction, the articles must have been furnished to the foreign ship within the body of a county, or upon the high seas. The Ocean, 2 W. Rob. 368. (n) The Afina Van Linge, Swab. 514. supplied to a foreign ship in a colonial port (o). When necessaries are supplied to a foreign ship, the presumption is that the ship is liable, and to rebut this presumption, it must be distinctly proved that credit was given to some individual (p). In determining what are necessaries within the statute, that word will be liberally construed. It is not limited to things absolutely and unconditionally requiste for a ship in order to her putting to sea (q), nor on the other hand, held to include all articles which might be covered by a bottomry bond, but only such articles as are necessary for the ship itself as distinguished from the ship's voyage (r). Butcher's meat (s), anchors and cables (t), sails and copper sheathing (u), coals supplied at intervals to a foreign steamer for several voyages (v), have been considered necessaries, and the person supplying them has been thought entitled to sue in rem after the dishonour of a bill given to him in payment for them (s). Money paid by the acceptors of a bill drawn by the master of a foreign ship abroad, to procure necessaries, has been held recoverable against the ship (w). But not money due on the balance of an account between a shipowner and his agent, though part of the goods supplied were necessaries (x), nor money advanced upon a mercantile account and speculation to pay off a bottomry bond for which the ship had been arrested-relieve her from claims for seamen's wages, and outfit her for a new voyage, in consideration of receiving brokerage and prepaid freight for the new voyage (y). It has been held upon this statute, that the lien on a foreign ship for necessaries supplied continues notwithstanding the sale of the ship, if there has been no laches in enforcing the lien-and that the purchaser of a ship takes, subject to such lien, and has his remedy against the vendor (z). The above-mentioned provisions of the 3 & 4 Vict. c. 65, are limited to foreign ships, but by the 24 & 25 Vict. c. 10, it is enacted that the High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under its arrest, and over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it be shown to the satisfaction of the court, that at the time of the (0) The Wataja, Swab. 165; but see the Ocean, 2 W. Rob. 388, in which, however, as explained by Dr. Lushington in the Wataja, "an English merchant had supplied some of the fittings of a new vessel while building in a foreign port, and the question was whether that gave him a perpetual lien on the vessel for their cost,-not whether the statute extends to British ports, including colonies, for the supply of necessaries to a foreign vessel for the prosecution of a voyage." (p) The Perla, Swab. 353. (q) Ibid. (r) The Perla, Swab. 353. The Comtesse de Fregeville, 1 Lush. 329. (s) The Gosfabrick, Swab. 344. (u) The Perla, Swab. 353. (x) The Comtesse de Fregeville, 1 Lush. 329. (y) The Onni, 1 Lush. 154. The Wataja, Swab. 165. (z) The West Friesland, Swab. 455. institution of the cause any owner or part-owner of the ship is domiciled in England or Wales (a). 5. In Foreign Ports the Master may hypothecate the Ship, but not generally at the Residence of his Owners. Of Contracts by Bottomry. We have seen by several of the preceding cases that the master may, in foreign parts, hypothecate the ship; and I propose, in the next place, to consider the nature of those instruments of contract by which a ship itself is expressly made security, and pledged by the master for the repayment of a debt contracted with relation to it. It should be observed, that wherever the master may pledge the ship, he may pledge the freight also (b). These contracts are usually called contracts by bottomry, the bottom or keel of the ship being figuratively used to express the whole body thereof: sometimes also, but inaccurately, money lent in this manner is said to run at respondentia; for that word properly applies to the loan of money upon merchandise laden on board a ship, the repayment whereof is made to depend upon the safe arrival of the merchandise at the destined port. In like manner, the repayment of money lent on bottomry does in general depend upon the prosperous conclusion of the voyage; and as the lender sustains the hazard of the voyage, he receives, upon its happy termination, a greater price or premium for his money than the rate of interest allowed by law in ordinary cases. The premium paid on these occasions depends wholly on the contract of the parties, and consequently varies according to the nature of the adventure; and as the master of the ship may, under certain circumstances, pledge the ship by a bottomry contract, so also may the owners (c) or part-owners, in any case, to the extent of their respective interests; and this they not unfrequently do, in order to raise money for the outfit, when prudence dictates the propriety of such a measure, or the want of personal credit compels them to have recourse to it. The origin of these contracts is certainly very remote, and cannot now be accurately ascertained. It is said by a very learned writer (d), that they took their rise from the practice of allowing the master to hypothecate the ship in a foreign country, in order to raise money to refit. But this (a) Sect. 5. Provided always, that if in any such cause the plaintiff do not recover 201., he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said courts. (b) The Gratitudine, 3 Rob. A. R. 240, and the Jacob, 4 Rob. A. R. 245. See as to the extent of an hypothecation of the freight, the last section of this chapter. See also the Percy, 3 Hagg. 418, in which case a monition to bring in freight was refused to the mortgagee of a ship, the ship having been sold to defray a bottomry bond secured upon ship and freight, and warrant of arrest had been served upon the freight at the suit of the bondholders, and there were owners before the court. Held also, that the mortgagee could not bar payment of the bond out of the proceeds of the ship until the freight was in the registry. (c) Pothier, vol. 3, p. 97; Emerigon, 375; Valin, liv. 3, tit. 5, art. 8; Bynkershoek, c. 515; Duke of Bedford, 2 Hagg. Adam. Rep. 294. The consent to a bottomry bond of a managing part-owner binds his owners. The Royal Arch, Swab. 282. (d) 2 Black. Com. p. 457, c. 30, s. 3. opinion may well be doubted; for, although the practice of lending money upon maritime risks at a high premium was well known to the Romans before the time of Justinian, yet in those titles of the Digest and the Code (p) which expressly treat of this subject, no mention is made of contracts of this nature entered into by the master of a ship in that character, according to the practice which has since universally prevailed. And except for the purpose of securing the payment of maritime interest, actual hypothecation was not necessary to give the creditor a claim upon the ship, as I have already shown. This point, however, is rather a matter of speculative curiosity than of useful research, and therefore I shall pursue it no further. The consideration of these contracts, when made by the owners or part-owners themselves, does not properly belong to this place; their legality, and the risks which the lender is to incur, according to general rules, are very ably treated by Mr. Park and Mr. Serjeant Marshall, in their chapters on Bottomry and Respondentia. I shall only mention such circumstances relating to them as are connected with the subject of hypothecation by the master; premising, however, that a total loss, within the meaning of a bottomry bond, cannot happen if the ship exists in specie, although it may be so much injured in the voyage as not to be worth repairing and bringing to the ultimate place of destination, so as to constitute a total loss within the meaning of a policy of insurance on the ship (q). The name of bottomry has been sometimes incorrectly applied to a contract, by the terms of which the ship itself is not pledged as a security, but the repayment of money, with a high premium for the risk, is made to depend upon the success of a voyage (r). This is rather a loan upon a particular adventure, to be made by a particular ship, than a loan upon the ship: and of course the lender has only the personal security of the borrower for the due performance of the contract. And it seems that loans have sometimes been made in this manner, and probably also with a pledge of the ship itself, to an amount exceeding the value of the borrower's interest in the ship, and such a contract is still legal in this country in all cases, except the case of ships belonging to the King's subjects bound to or from the East Indies; as to which the legislature has enacted, "That all sums of money lent on bottomry, or at respondentia, upon any ship or ships belonging to His Majesty's subjects bound to or from the East Indies, shall be lent only on the ship, or on the merchandise or effects laden, or to be laden, on board of such ship, and shall be so expressed in the condition of the bond, and the benefit of salvage shall be allowed to the lender, his agents or assigns, who alone shall have a right to make assurance on the money so lent; and no borrower of money on bottomry, or at (p) De Nautico Fænore: Dig. 22, 2; and Codex, 4, 33. See on this subject, Park, ch. 21; Guidon, ch. 18; Emerigon, tom. 2, p. 380; and stat. 6 Geo. 1, c. 18, s. 12. (q) Thompson v. Royal Exchange Assurance Company, 1 M. & S. 31. (r) Three forms of bonds of this sort are printed in the Appendix to the Treatise of the Dominion of the Sea, and Body of Sea Law, p. 659, &c. |