CHAP. IV. given a bottomry bond was also a part-owner, he can in the Court of Admiralty defend himself against such bond, where no necessity existed for it; "for," said Dr. Lushington, sitting as one of the judicial committee of the Privy Council, "such argument (namely, that the master, also part-owner, by whom the hypothecation was effected, was precluded from joining with his co-owners in impugning the validity of the bond) cannot avail in the Court of Admiralty, because the authority of that court in the case of bottomry bonds is founded upon the existence of, and necessity arising from, the want of personal credit, and unless that fact be established, or at least after due inquiry the credible appearances of such necessity, the Court of Admiralty has no jurisdiction to enforce the bond. It is not in the received meaning of the word bottomry bond at all, and of other bonds the Court of Admiralty takes no cognizance."* They must arise from the destitute situation of a master in a foreign port unable to obtain the necessary supplies for his vessel on the personal credit of himself or his employers. The very purpose for which bottomry bonds were created, was the protection of the foreign merchant advancing the money, who is supposed to be an entire stranger to the owners of the ship and cargo, and to have no means of judging of their solvency: with them he has no privity, and has nothing to look to for his security, but the visible property of the ship in the place of his residence." † The jurisdiction of the Court of Admiralty, in respect to bonds of this nature executed abroad, has been so much encouraged and protected by the superior courts at law, as to make it a very pleasing subject for the admiralty lawyer to enter upon : for the few prohibitions (well founded) which have reached Doctors' Commons, * Soares v. Rahn. 3 Moore's Privy Council Reports, 1. have been grounded on a satisfactory proof of the Ad- CHAP. IV. miralty having proceeded to adjudicate on a question other or more than bottomry, properly so called; but their proceedings upon a real bottomry case have in numerous instances been protected and encouraged.* RULE I. To constitute a bottomry bond, and to give the Admiralty jurisdiction, the ship must be pledged. Such bonds have always been upheld by the Court of Admiralty with a very high hand, and it would be very detrimental to the interests of the commercial world if they were not so upheld. The jurisdiction of the Court over the subject matter of these bonds, has been allowed by the courts of common law upon various occasions, although they are, by the Court of Admiralty, viewed in a light very different from that in which bonds of other descriptions are considered in those courts. In the case of Johnson v. Shippen †, the jurisdiction of the Court of Admiralty was expressly acknowledged. That was a case in which "a ship put into Boston in New England, and there the master took up necessaries and gave a bill of sale, by way of hypothecation, and now there being a suit against the ship and owners to compel repayment, a prohibition was moved for; and the Court held, that the master could not by his contract make the owners personally liable to a suit, and, therefore, as to them, granted a prohibition; but as to the suit against the ship, denied a prohibition, for the master can * Bridgman's case, 12 Jas. 1. Hob. 11. Moor. 918. 1 Ro. Ab. 530. Scarborough v. Lyons, 3 Car. 1. Latch. 252. Noy, 95. Corset v. Husely, 1. W. and M. Comb. 135. Rep. temp. Holt, 48. Benzen v. Jeffries, 8 & 9 Wm. 3. 1 Lord Raym. 152. Johnson v. Shippen, 2 Ann. 2 Lord Raym. 982. Salk. 35. 6 Mod. 79. Rep. temp. Holt, 48. Lister v. Baxter, 12 Geo. 1. Stra. 695. Menetone v. Gibbons, 29 Geo. 3. 3 Ter. Rep. K. B. 267. † 1 Salkeld, 35. CHAP. IV. have no credit abroad, but upon giving security by Of bottomry bonds, the latter is entitled to priority of payment over a former. hypothecation, and it is not reasonable we should hinder the Court of Admiralty to give a remedy where we can give none ourselves.” In the same case as reported by Lord Raymond *, Mr. Justice Powell is represented to have said: "The original matter is cognizable in that court (the Court of Admiralty) and the hypothecation upon land is of necessity, for it must be done in port and cannot be done at sea, and the party has no remedy but at maritime law." Such is the foundation on which these bonds stand. They are considered valid upon the ground of necessity only, and it is upon the same principle of necessity that a later bond is entitled to priority of payment over a former. This course of payment is indeed directly contrary to what takes place in the case of common bonds, where those of a subsequent date can only be enforced after all demands upon former bonds shall have been first paid and satisfied. In this species of security, which is entered into under the pressure of necessity, the order of payment is very properly reversed, since, without the subsidiary aid of a later bond, the property would be totally lost both to the owners and to the former bondholders. But this privilege is confined to bonds given under this species of necessity in a foreign port, where the master and owners have no personal credit, and no other means of procuring the necessary supplies for the repair of the ship. It by no means follows that the same privilege is to be extended to every species of security which may affect the ship. In the case of the Rhadamanthet, from which the preceding has been abridged, it appears clear that maritime bonds must not only arise from the destitute situation of the master in a foreign port, before they * Vol. ii. 983. f 1 Dodson's Admiralty Reports, 201. The money must be ad vanced on the ship and not on personal credit; though a collateral security, will be such bottomry bonds as can be enforced by the CHAP. IV. aid of the Admiralty Court; but that, to constitute a bond, although of a maritime nature, a bottomry bond at all, and, as such, within the jurisdiction of the Admiralty Court, the money must not be advanced on personal credit, but on the ship: for, in the former case they have a remedy, and can recover at common law; and as in that case it was held clearly established that the advance was not with a view to any credit on the ship, the Court refused to pronounce for such bond as one entitled to the same privilege which is extended to bottomry bonds. But very frequently in bottomry transactions a collateral security is given and taken at the same time, such as bills of exchange, &c.; where this additional security has been taken, it has never been held to exclude the bond or diminish its validity; but where the money has first been advanced on personal credit and a bill of exchange given as security, such advance cannot be converted into a bottomry transaction, the most essential requisite of a bottomry bond being failure of personal credit.* The conversion of a transaction on personal credit into one of bottomry, will be noticed in a subsequent part of this treatise.† such as bills of exchange, taken at the same time, will not di minish validity of a bottomry bond. RULE II. To give the Admiralty jurisdiction, such bond must be taken in a foreign port (this rule is subject to the exceptions herein given). The privileges which, as mentioned above, are conferred on bottomry bonds, are confined to such bonds as are given under pressure of necessity in a foreign port; for, if it be one taken in this country, for more reasons than one, the Court of Admiralty will not hold the question, for the common law allows the jurisdiction * The Augusta, the Jane, 1 Dodson's Admiralty Reports. this country, so that lender can proceed in Admiralty against the ship. Can by owner abroad, so that &c. * CHAP. IV. of the Court of Admiralty, upon the ground of necessity only, and there can be no necessity for such bond in England, where personal credit can be obtained; and Bottomry bond therefore, if a contract of this sort be made by the cannot be given by owners in owners themselves in this country before the beginning of a voyage, by the terms of which the ship is pledged as a security, the lender can entertain no suit in the Admiralty against the ship, as he could in the case of hypothecation for necessaries in a foreign port. But it appears that a bottomry bond given abroad by an owner of a ship who was on board, for the necessities of a voyage, and was not able to obtain money otherwise (the master not being a party thereto), is not only valid, but also that the Court of Admiralty has jurisdiction to enforce such a contract; for in the case of the Duke of Bedford†, a bond of that nature granted for the necessities of a voyage was enforced against the ship, and it was held that it might be granted either by the owner or master; the Court, Sir C. Robinson observing, after an elaborate judgment, pronouncing for such bond: "The only doubt which occurs to me on this point, arises from the limited jurisdiction allowed to this Court, which has been confined usually to the cases of bonds given by a master at a distance from the owners; but that would be an objection rather to the jurisdiction of the Court, than to the essential quality of the bond; and, as the objection has not been raised, and may yet be raised, if it should be thought advisable, I shall not think it my duty to anticipate such an objection after the cases to which I have referred, of bonds given by owners alone, and which have been sustained in this Court. I feel myself bound, therefore, to uphold this bond." As the objection to the jurisdiction * Abbott's Shipping, p. 153. Shee's edition, and the authorities there cited in note. † 2 Haggard's Admiralty Reports, 294. |