time had elapsed, the shipowner, on paying the amount of the bond with interest into Court, obtained the condemnation of the bondholder in the costs of the proceedings.1 But an agreement whereby payment is postponed, though it may be legally valid, cannot be enforced by the Admiralty Division, in pursuance of its peculiar jurisdiction.2 Whilst the Admiralty Division recognises the negotiability of bottomry bonds, it aids their transfer with reluctance. It has enforced an agreement for a bond. Again, when freight was hypothecated for a certain sum, and the vessel earning it was lost by a collision with another ship, and a sum in respect of such freight, less the cost of completing the voyage, was recovered as part of the damages from the other ship, the Court ordered the owners to repay to the lenders the proportion of the loan which the amount recovered bore to the whole freight. The ground of this decision, though not stated in the judgment, apparently is that the freight having in fact been received, the loan should in equity be repaid, the subjectmatter of it not being in fact lost.5 It is an essential element of a bottomry bond that it Lien. confers a maritime lien on its subject for the amount lent and for the interest agreed on. time law. The law by which the contract of hypothecation is to be Governed 6 by marigoverned has been held to be the general maritime law." Thus a communication with the owners previous to the making of a bond was expressly decided to be necessary 1 The Eudora, L. R. 4 P. D. 208; 48 L. J. Ad. D. 36. There seems to be no reason The Aline, 1 W. Rob. 111 (120). 5 The Empusa, L R. 5 P. D. 6; 48 L. J. Ad. D. 36. The Bonaparte, 8 Moo. P. C. 459; The Hamburg, 2 Moo. P. C. N. S. 290; Br. & L. 253; The Onward, L. R. 4 Ad. 38; 42 L. J. Ad. 61. on this ground. The case of Lloyd v. Guibert1 no doubt contains expressions adverse to the decision of questions by such a maritime law, and even to its existence, and tends to show that a bottomry bond should be governed by the law of the flag. As this decision was not, however, upon a bottomry bond, but upon a contract of affreightment, and as the previous case of The Hamburg has been recently directly approved in the Admiralty Division, the decision of the Privy Council must be considered as laying down the existing rule.2 1 Lloyd v. Guibert, L. R. 1 Q. B. 115; 33 L. J. Q. B. 241. CHAPTER IX. SECTION I. Forfeiture of Ships. A SHIP is forfeited to the Crown if (a) anyone uses the Forfeiture of ship. British flag, or assumes the national character on board any ship owned wholly or in part by anyone not legally entitled to own a British ship; or (b) if the owner or master does any act or permits papers to be carried with intent to conceal the British character of the ship; or (c) if any unqualified person obtains a legal or beneficial interest in a British ship; or (d) if any person makes a false declaration touching his qualification for the ownership of British ships; or if the master or owner of a ship uses or attempts to use a certificate of registry not legally granted in respect of it. To carry out these rules, any commissioned officer on full pay, or any British officer of customs, or any British consular officer, may seize such ship, and then proceed by an ordinary action in the Admiralty Division to obtain a declaration that the ship shall be forfeited to the Crown. The right of the Crown to have a ship forfeited arises at the instant when the wrongful act is done, and like a maritime lien clings to the ship, so that it overrides the 2 1 M. S. A. 1854, s. 103; The Sceptre, 35 L. T. N. S. 429. right of a subsequent bona fide purchaser without notice of the fraud.1 Removal of master. SECTION II. Removal of Master. The Court has power to remove the master of a British ship on the application of an owner, part owner, consignee, agent of the owner, certificated mate, or one-third of the crew, when it is proved by oath that such removal is necessary. The amount of necessity to cause this power to be exercised is a matter wholly for the discretion of the judge; for example, a master was removed for fraudulent breach of trust. A new master may be appointed by the Court in place of one who has been removed, with the consent of the owner, agent of the owner, or consignee of the ship, if within the jurisdiction of the Court. If they are without the jurisdiction, then the judge may appoint the new master on his sole responsibility. The Court has also jurisdiction,-if the applicant shows a valid registered title to the vessel,-to order the former 1 Wilkins v. Despard, 5 T. R. 112; The Annadale, L. R. 2 Ad. D. 179; 36 L. T. N. S. 259; 46 L J. Ad. D. 68. Affirmed on appeal, L. R. 2 Ad. D. 218; 37 L. T. N. S. 139; 47 L. J. Ad. D. 3. 2 M. S. A. 1854, s. 240. Any Court having Admiralty jurisdiction in any of her Majesty's dominions may, upon application by the owner of any ship being within the jurisdiction of such Court, or by the part owner or consignee, or by the agent of the owner, or by any certificated mate, or by one-third or more of the crew of such ship, and upon proof on oath to the satisfaction of such Court that the removal of the master of such ship is necessary, remove him accordingly; and may also, with the consent of the owner or his agent, or the consignee of the ship, or if there is no owner or agent of the owner or consignee of the ship within the jurisdiction of the Court, then without such consent, appoint a new master in his stead; and may also make such order, and may require such security in respect of costs, in the matter, as it thinks fit. 3 The Frances, 2 Dods. 420; The Royalist, Br. & L. 46. master to deliver up the certificate of registry and the ship's papers.' SECTION III. Actions for Injuries inflicted by Persons on the High Seas. diction of The Admiralty Division possesses in virtue of its ancient The jurismaritime jurisdiction power to entertain actions in perso- the Court. nam for injuries inflicted by one person to another on the high seas. It is a jurisdiction which, though it exists, is not at the present day employed, but which nevertheless cannot be considered as obsolete.2 1 The St. Olafs, L. R. 2 Ad. D. 113; 35 L. T. N. S. 429. H |