Of lien on ships. Power of the master to hypothecate the ship. cally chargeable in respect of the expense incurred in repairing it, but that, the possession parted with, the lien is lost. (a) And in another case, sent by his Lordship to the King's Bench, for the opinion of the judges, that court expressly decided, that a shipwright, having a ship in his actual possession in his dock, had a lien for repairs. (b) VI. Upon a review, therefore, of all these cases, the law of lien, as respects ships, may be briefly comprehended in the three points: 1. That, in no case whatever, has the master of a ship any lien on the vessel for his wages, or for any money paid by him for necessaries or repairs. 2. That none of those who deal with the ship, whether at home or abroad, for repairs and necessaries, have any lien on the ship, unless a shipwright who shall have the ship in his actual and entire possession, and shall manually detain it till his debt be paid. 3. And that even in this latter case, if there be a custom of the port or country that such repairs shall be a personal credit, and not a lien, such custom takes away the right of lien; and the shipwright must deliver up the ship, though actually in his dock. (e) Secondly, As to the power of the master to hypothecate the ship, a power which, from the necessity of the case, the master possesses by the maritime code of all commercial countries, and which our own laws have adopted from the earliest period. VII. As this privilege of the master amounts almost to a power of the absolute disposal of the ship, the custom of all countries, and of our country amongst them, limits this hypothecation by the master to the circumstance of the vessel being in a foreign country, or in the course of her voyage, and not in the place of her (a) Ex parte Bland, 2 Rose, 91. (c) In the John, Jackson, master, had supplied the vessel applied for payment of their demand. The Judge, Lord Stowell, granted it; and added, that upon looking into the cases, he found it had been the practice of the Admiralty Court to allow creditors of this kind to sue against proceeds remaining in the registry, notwithstanding that prohibitions have been obtained on original suits instituted by them. That in particular, in the year 1763, he found such a suit was allowed to be prosecuted in the ADVENTURE, CLAP. But it is justly observed by a learned writer upon this case, that there was no person to represent the owner, and object to the application. Gibbons. owner's residence. But this term place of residence has received a large interpretation by some of the decisions, both in the courts of law and Admiralty. In Menetone v. Gibbons, (a) where the hypothecation was made in Ireland, Ireland was held to be a foreign Menetone. country so far as to justify the master in hypothecating the ship. And in the Barbara, Chegwin, (b) the Admiralty court held, upon the same principles, that Jersey, for the purpose of sustaining hypothecation bonds, might be considered as a foreign possession, to an owner of London. It may be necessary to observe here, that a bond given by the master for money advanced under circum- Of hypothestances of extreme distress, as an hypothecation of the ship and cation, and freight, is to be considered in the nature of bottomree. Such nature of botbonds have always been held within the jurisdiction of the Admiralty Court, and receive a very favourable consideration. They are, however, considered valid on the ground of necessity only. And, upon the same principle only, a later bond is entitled to a priority of payment over a former. But the same privilege is not to be extended to every species of security which may affect the ship. (c) And with respect to bonds, a priority has been allowed, even when the difference in date was very small, and the bonds were executed at the same place. (d) VIII. It is usually required as a condition necessary to the validity of an hypothecation bond, that they should be executed in a foreign port; but the law does not look to the mere locality of the transaction. The validity or invalidity of the bond does not rest on that circumstance only, but upon the extreme difficulty of communication between the master and his owners; and the master, it is said, will have a right to hypothecate the ship and cargo, though lying in a port of the same country in which the owners reside, provided he has no means of communicating with them. (e) But if the master can correspond with the owners, it is not such a case of extreme necessity as to give him the power of hypothecation. The Courts of Admiralty, looking always to the equity of the circumstances in such a case, have determined, that it is not an obligation of universal necessity that the master should send to the consignee of the cargo, previous to his giving the bond, and take his directions; nor will they decree such bond to be invalid upon the circum (a) 3 Term Rep. 267. b) 4 Rob. p. 1. (c) Rhadamanthe, Dodson, 204.; and the Alexander, 278. (d) Betsey, Dodson, 289. (e) The Isabel, Dodson, 273. The court in this case alluded to the ports of Spain, some of which were, at the time, in the possession of a foreign enemy. bonds in the tomree. Of hypothe cation, and bonds in the tomree. stance of the money having been advanced before the bond be given, if it were the understanding that the money was to be secured by means of bottomree; nor will the high rate of interest affect these bonds, when the casualties and risks to be provided against are very great. (a) Such a bond, moreover, is not invalid for want of a particular description of the voyage: but the master may describe the voyage, cypres, as near as he can. (b) IX. We have already said that the master ought not to hypothecate the ship, or to give a bottomree bond, unless in case of necessity. Therefore, when another species of security, entirely personal, as a bill of exchange, was resorted to, at the time, it cannot be said that the master had no personal credit, or other resource for procuring supplies, except on bottomree; and under these circumstances Lord Stowell decreed a bottomree bond to be invalid. But it appearing that some part of the money borrowed had reference to a security by bottomree, he permitted the bond to stand for that part; for in the Court of Admiralty it is not necessary that a bond should be either good or bad in toto. (c) But when money has been well advanced upon such bottomree security, there is nothing inconsistent in taking a collateral security as bills of exchange; nor does such transaction exclude the bond, or diminish its solidity. (d) And where the master is well authorized to raise money on such bonds, the party lending is not obliged to look to the application of the money; and though there may be some dishonesty in the master, the merchant, if he does not participate, cannot be affected by it. (e) A hired transport in the government service is not incapacitated from being the subject of hypothecation by a bottomree bond; (ƒ) and the Court of Admiralty will not reject a claim justly founded, by a minute criticism of the language of the bond, but will look to the substantial justice of the case. Where, therefore, the consignee, upon the direction of the master, appointed another, who was in some degree recognized by the owner, describing him as master, Lord Stowell decided that he was competent to hypothecate the ship, and a bottomree bond made to secure advances by such consignees was held to be valid. And the warrant of the court will extend to the sails and rigging, though detached and on shore, if so detached only for the purpose of safe custody. (g) (a) See the preceding Note. (b) Dodson, 463. (c) Augusta, Dod. 283. (e) Jane, Dod. 465. (f) Ibid. 463. (g) Alexander, Dod. 278. (d) Jane, Dod. 466. A bottomry bond is a nego ciable instru X. A bottomry bond is a negotiable instrument which may be put in suit by the person to whom it is transferred; and it is almost unnecessary to add, that if the money be not paid within ment. the time conditioned in the hypothecation bond, the ordinary course of practice is, for the agent of the lender to apply to the Court of Admiralty to issue its warrant for the arrest of the ship, and for trial of the demand claimed upon the contract; under which circumstances, if the bond be not satisfied by the parties, the court will decree a sale, and distribute the proceeds according to the justice of the case. (a) XI. According to the nature of hypothecation, the owners are never personally responsible: but the remedy of the lender is against the master and the ship only. But though it be not the ordinary practice for the master to give a supplementary security upon his owners beyond the hypothecation bond, there appears no good objection against it, so long as the lender does not confound two distinct obligations, by claiming maritime interest upon a security without risk. Therefore in Samson v. Bragington, (b) where a Jamaica merchant had taken both an hypothecation bond and bills upon the owner for money advanced to refit the ship, and the ship being lost, sued upon his bills of exchange, the Court of Chancery decreed that he should recover the money, but without the maritime interest. XII. Nor has the master the power to hypothecate the ship and freight only; but in case of necessity, as for example, when the value of the ship is an insufficient security for the amount of the repairs, he may hypothecate ship, freight, and cargo. Thus, in Parmenter v. Todhunter, (c) a case of capture and recapture, when money was wanted in the instant to pay the salvage to the . re-captors, and the mate procured it by hypothecating the ship and selling a part of the cargo, Lord Ellenborough held, that in the absence of the master he was justified in so doing. But the whole question came before the Court of Admiralty in the case of the Gratitudine, (d) upon which occasion it was deliberately decided that the master might hypothecate the cargo as well as the ship. As this is one of the most important cases of late years, and contains a more ample illustration of the law of hypothecation, it deserves the peculiar attention of the reader. XIII. The circumstances of the Gratitudine were as follows:The imperial ship the Gratitudine, bound from Trieste to London Of the hypotheship, freight, and cargo by cation of the the master. dine. The master may hypothe cate the cargo, and sell a part: but he has no authority to sell the whole. The Gratitu- with a cargo of fruit, suffered so much from tempestuous weather as to be compelled to go into Lisbon to refit. The master, seeing that the vessel itself was not of value sufficient to pay for the repairs, applied for advice and assistance to one of the Portuguese correspondents of the consignees in England; this Portuguese wrote to the consignee, and received an answer from them, that it belonged to the master exclusively to adopt every necessary measure for the preservation of the cargo; and if it was necessary to unlade, the master alone was to judge of the propriety of such a measure. Accordingly, the master, being in want of money to defray the charges of repairing the vessel and of unlading the cargo, he borrowed the necessary sum on a bottomry bond, binding the ship, cargo, and freight, to pay the said sum within twentyfour hours after her arrival in the port of London. The master, however, refusing to discharge the bond, the holder instituted this suit in the Admiralty against the ship, freight, and cargo, and prayed the court to decrce accordingly. The court ordered the bond to be enforced against the cargo as well as the ship. Lord Stowell said, in substance, that the security of the ship not being sufficient, and the master not being able to raise money on that alone, he was necessarily obliged to resort to the cargo; that it could not be said that the master is in all cases to wait till he hears from a distant country. That the necessity of such a case therefore compelled a choice of one of two things, to sell a part of the cargo for the purpose of applying the proceeds to the prosecu tion of the voyage by the repair of the ship; or to hypothecate the whole for the same purpose. With respect to the former, (the sale of a part of the cargo,) the books overflowed with authorities. With respect to the cargo, indeed, the power of selling could not extend to the whole, because it never can be for the benefit of the cargo, that the WHOLE should be sold to repair a ship which is to proceed empty to her destination. But that hypothecation might be of the whole, because it may be for the benefit of the whole that the whole should be conveyed to its proper market; the presumption being that this hypothecation of the whole, if it affects the cargo at all, will finally operate to the sale of a part, and this in the best market, at the place of its destination, and in the hands of its proper consignees. The advocates on the opposite side having suggested that the master might have sent the cargo by another ship, the same learned judge added, that there were no authorities to bind the master to such transhipment; and that upon all these principles he should decree the hypothecation to be valid. |