CHAP. IV. bottomry bonds properly so called, such bonds are founded on sea-risk, and are defeasible by the destruc- The Atlas. tion of the ship in the course of her voyage, on which account alone the high interest is allowed and is supported by the established course of maritime jurisdiction; but the bond recited above was not defeasible by any such casualty: "whether the ship sinks or swims, whether she arrives at her destined port, or is lost in the ocean, it makes no real difference in the bond; for the debt with the accompanying interest continues in full force, and is only slightly affected as to the time of payment by the event of a total loss: the hypothecation goes no further, and would not go so far if not compelled by the necessity of the later intelligence, which must be received after the actual loss of a ship. The bond is absolute without any dependence whatever upon the accidents of the voyage; the debt and the interest thereon must, under any event whatever, be discharged." The high interest is permitted so that the lender (who in every case of a bottomry bond, properly so called, and not the borrower, is to run the risk) may be properly reimbursed; such interest is denominated periculi pretium, or the price of the hazard which the lender incurs. The allowance of such an interest can, therefore, only be justified where such danger is incurred on the part of the lender; and in the Atlas the allowance of twelve per cent., which could be exacted in every case, whether the voyage was successful or not, was held not a periculi pretium, for danger there was none; and, further, that such a case lay rather beyond the jurisdiction of the Court of Admiralty, although it appeared that, in the East Indies, such bond would be denominated a hypothecation bond. Per Cur. "But it being so denominated there, will not make it such in the view of this Court, if it does not pledge the vessel The pretium lowed without the periculum cannot be al be contemplated. The Atlas. CHAP. IV. herself for the sole payment of the bond. Here the bond is absolute. In any event that happens to the ship, the money must be paid. It is, therefore, an absolute and indefeasible bond, at least in the sense which this Court applies to that term. I believe it may be true that some bonds, not exactly conformable to this rule, may have passed by unobserved by the Court, in cases where the parties have both of them come willingly before the Court, and have not drawn its attention to the phraseology of the bond; some such may have passed without observation. I have no reason to think this has happened frequently, but I believe the fact to be, that these bonds are often inaccurately expressed-expressed differently in the style of different countries, but tending to the same point; viz., the dependence of payment upon the safety of the ship. The mercantile capital of England is so universally diffused over the whole globe, and English credit is so well established in foreign ports, that occasions perhaps more seldom occur, and a less necessity exists for a recourse to such bonds in English use, than in the commercial transactions of other nations. But such necessities do occasionally exist, and where they do, this practice, coeval with the Roman law, is applied. The existence of such bonds is fully supported by the authority of maritime courts, in every part of the commercial world, as well as of this." The Court of Admiralty, except upon the subject of "If it be said that the ship is the first pledge in this bond, and therefore upon that principle, if it can be prize, exercises so called, the jurisdiction ought to act-I think that is not a principle which will support these bonds. This Court, except upon the subject of prize, exercises an original jurisdiction upon the grounds of authorised usage and established authority. The history of the laws of this country shows full well that such authorised usage and established authority are the only supports an original jurisdiction only on the grounds of authorised usage and established authority. to which this Court can trust, except in respect to the CHAP. IV. subject to which I have alluded. "I feel another strong objection to proceeding further in this case, supposing the question of jurisdiction got over. The transactions are entirely of a mercantile nature, but of a mercantile nature that is almost entirely Oriental; the whole demand from the original outset commences, and I had almost said terminates there. Of such transactions I am a very insufficient judge, what expenses were proper to be incurred there what enterprises to be undertaken - what allowances to be properly made. "It has been intimated that no other court possesses a jurisdiction that would grant a relief to the complaining party. Taking that to be the fact, it would not supply this Court with authority to proceed, for this Court is not a general receiver, nor is it empowered to entertain derelict jurisdictions. The proper result of such defect would be—what I am strongly inclined to recommend -a recourse to a reference to merchants acquainted with the modes of conducting Oriental adventures; for, as far as I can judge, such knowledge is essentially necessary to a right decision of this case. * I strongly advise the parties to accede to this recommendation, being confident that they would receive much more expeditious and satisfactory justice therein than could be expected from a court which, omitting all other objections to it, would, from the mere doubtfulness of its jurisdiction, be liable to expensive irruptions." This proposal or recommendation from the Judge was not acceded to by the parties, and the Court was pressed for its final decision; both parties having consented to the jurisdiction, there appeared to be no fear of a prohibition from the superior courts; and this was urged to the Court; but Lord Stowell, in his final decision, The Atlas. The Court of not a general Admiralty is receiver of derelict jurisdictions. CHAP. IV. dismissed the suit on account of the doubts he enterThe Atlas. "The tained respecting the jurisdiction. Per. Cur. civil law courts have no right to usurp an authority, merely because a common law court does not possess it: it must have a more direct and positive foundation. A court of civil law does not claim to be the refuge for all destitute jurisdictions." From this sentence, dismissing the suit for want of jurisdiction, an appeal was prosecuted to the delegates. For the respondents it was argued much to the effect of the judgment of Lord Stowell,-viz. that the instrument in question was not a bottomry bond; that it was an absolute mortgage of the vessel with an illegal interest; that marine risk is of the nature and essence of these bonds. Quoted Dig. lib. xxii. lit. 2.; Cod. lib. iv. lit. 33.; Bynkershoek, Quæst. Jur. Pri. lib. iii. c. 16. pp. 506. 509.; Pothier, Traité du Contrat d'Assurance, and De Prêt à la Grosse Aventure, vol. iii. c. 1. s. 2. and p. 77. et seq. (Ed. Paris, 1731); Benicke on Insurance, p. 72. et seq.; Abbott on Shipping, p. 487. et seq. (5th edit.); Magens on Insurance, vol. ii. pp. 33. 56. 393.; Glover v. Black, 3 Burr. 1394.; Menetone v. Gibbons, 3 T. R. 269.; the Jane, 1 Dod. 461.; Hero, 2 Dod. 139.; the Nelson, Brown, 1 Haggard, 177. In Ladbooke v. Crickitt, 2 T. R. 649., the Court of King's Bench expressly declined to give an opinion upon the subject of the Admiralty Jurisdiction. For the appellants it was argued to the effect, that there was an object manifest in these transactions to make it a bottomry contract; that it was in the contemplation of all parties that it should be a regular bottomry bond; that instruments are to be construed according to their general intent, and bonds of this description are not considered strictly, and may be good in part and bad in part; that if the ship had been lost, then this condition* of the bond would have come in question; Viz., the condition printed in italics at p. 68. but the ship being safe, it is only the good part of the bond which is before the Court; and, further, it was argued that if there be no sea-risk, still it is a good bottomry bond. Cited Tartar, 1 Haggard, A. R. 13. ; Augusta, 1 Dodson's A. R. 283. ; Sansum v. Bragginton, 1 Vesey, 443.; Bridgeman's case, Hob. 11 Moore, 918.; Scarborough v. Lyons, Latch. 252.; Corset v. Husley, Comb. 135.; Benzen v. Jeffries, 1 Lord Raym. 152.; Johnson v. Shippen, 2 Lord Raym. 982., 1 Salk. 35. The Court directed a search to be made whether any cases could be found in which the Court of Admiralty had entertained a suit upon a bond professing to be a bottomry bond, but which excluded sea-risk: five bonds of such nature were produced, but it was admitted that not one had been brought to the notice of the Court of Admiralty, and were not relied upon as adjudged cases. Then the Court directed the question to be argued, Whether the amount of interest reserved in the bond under consideration was not more than legal interest? and the Court held that maritime interest was contemplated, and that, as the bond excluded sea-risk, it was void; and the sentence of the Admiralty Court was therefore affirmed. In the case of Simmonds and another against Hodson, originally in the Common Pleas *, the master of a ship borrowed money and gave a bond, in which he bound himself, the ship, &c. for the repayment of the money advanced with 127. per cent. bottomry premium ; and he further bound himself, ship, &c., to the payment of that sum with all charges thereon "in eight days after my arrival at the port of London; and I do hereby make liable the said vessel, her freight and cargo, whether she do or do not arrive at the port of London, in preference to all other debts or claims, declaring that this pledge CHAP. IV. The Atlas. |