1859. April 1. THE INDOMITABLE, M. W. KETT, Master. Bottomry-Maritime Risk. The expression of maritime risk, to be collected from all the terms of the instru- Stipulations in an instrument purporting to be an agreement to hypothecate the THIS HIS was a cause of bottomry, opposed by the mortgagees of the ship in possession. The instrument sued upon was as follows: "Articles of Agreement made this 22nd day of March, one thousand eight hundred and fifty-eight, between Major Woodhouse Kett, master of the steam screwship Indomitable, belonging to the port of London, and now lying in the roadstead of Madras, in the East Indies, of the one part, and James Ainslie, Robert Orr Campbell, Richard Barnes Bell, and William Scott, respectively, of Madras aforesaid, Esquires, merchants and agents, and there carrying on business in co-partnership together, under the style or firm of Binny and Company, of the other part. "Whereas the said ship sailed from London on the 12th of November, one thousand eight hundred and fifty-seven, bound to Madras, carrying British troops, and laden with sundries. And whereas in the due prosecution of her said voyage, the said ship called at St. Vincent's, Cape de Verd Islands, and there purchased and shipped a large quantity of fuel, for the use of the said ship in the further prosecution of her said voyage. And whereas the price of such fuel amounted to the sum of four hun dred and seventy-one pounds sterling, and in payment for the same the said Major Woodhouse Kett drew a bill of exchange on the directors of the Australian Auxiliary Steam Clipper Company, in favour of the Patent Fuel Company, limited, for the said sum of four hundred and seventy-one pounds sterling, bearing date the 5th of December, one thousand eight hundred and fiftyseven, and payable at thirty days' sight. And whereas the said fuel was properly and necessarily used and consumed by the said ship in the due prosecution of her said voyage. And whereas the said bill of exchange was dishonoured by the drawees, protested for non-acceptance, and forwarded to Messrs. Parry and Company, of Madras aforesaid, merchants and agents, for realization, with expenses, from the said Major Woodhouse Kett, as drawer thereof. And whereas the said ship arrived in the Madras roadstead on the 23rd of February, one thousand eight hundred and fifty-eight, and on the 27th of February, one thousand eight hundred and fifty-eight, the said Major Woodhouse Kett received a letter from Messrs. Wilkins and Shaw, of Madras aforesaid, as attornies for the said Messrs. Parry and Company, demanding payment of the said bill, with expenses, and stating that unless the same was paid, or sufficient security for the amount given forthwith, proceedings would at once be adopted to compel payment. And whereas the said ship has failed in getting employment at Madras, and the owners of the said ship and the parties now interested therein have not remitted the said Major Woodhouse Kett any funds for payment of the said bill of exchange, or for meeting the necessary disbursements of the said ship, nor have the owners of the said ship, or the parties now interested therein, made any arrangement for providing such funds, or making the same available at Madras. And whereas it has been determined that the said ship shall proceed to Calcutta, but she cannot leave the Madras roads until the said Major Woodhouse Kett has taken up and paid the said bill of exchange, with all interest and charges, and has obtained funds as well for that purpose as for the disbursements of the said ship. And whereas the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell, and William Scott, as such copartners as aforesaid, and at the special instance and urgent request of the said Major Woodhouse Kett, as such master as aforesaid, have agreed to lend and advance to the said Major Woodhouse Kett, the sum of fourteen thousand seven hundred and ten Company's rupees, for the purpose of enabling him to take up and discharge the said bill of exchange, with interest and charges, and of placing him, the said Major Woodhouse Kett, in sufficient funds to meet the disbursements of the said ship, on 1859. April 1. 1859. April 1. the terms and conditions following: that is to say,-that he, the said Major Woodhouse Kett, shall forthwith proceed to Calcutta, and shall immediately on his arrival at Calcutta consign and place the said ship to and in the hands of Messrs. Jardine, Skinner and Company, of Calcutta aforesaid, merchants and agents, to be laid on and loaded as hereinafter mentioned; that he, the said Major Woodhouse Kett, shall draw a bill on the said Messrs. Jardine, Skinner and Company, in favour of the said firm of Binny and Company, or order, for the sum of fifteen thousand Company's rupees, being the equivalent of the said sum of fourteen thousand seven hundred and ten Company's rupees, at the exchange of one hundred and two per centum, and payable at thirty days' sight; that he, the said Major Woodhouse Kett, shall also repay to the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell, and William Scott, or to the said Messrs. Jardine, Skinner and Company, as their agents in Calcutta, on demand, all such money as the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, shall pay or disburse by way of premia for effecting an insurance on the said ship from Madras to Calcutta, and until the said vessel shall take her departure from Calcutta on some outward voyage, with interest at the rate of nine per centum per annum, on all such money as last aforesaid, from the time or respective times of payment thereof, by the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, up to the time of such repayment; that he, the said Major Woodhouse Kett, shall charge, pledge and hypothecate, the said ship as and by way of security for the due payment of the said last-mentioned bill of exchange for the said sum of fifteen thousand Company's rupees, and for the due payment of all such other sums of money as aforesaid, and all such interest as aforesaid; and whereas in pursuance and part performance of the said agreement between the said parties hereto, the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, as such co-partners as aforesaid, did, on this 22nd day of March instant, advance to the said Major Woodhouse Kett the sum of fourteen thousand seven hundred and ten Company's rupees, as he, the said Major Woodhouse Kett, doth hereby acknowledge; and with such money the said Major Woodhouse Kett has paid and discharged the full amount due for principal, interest, costs and charges, upon and in respect of the said firstmentioned bill of exchange for four hundred and seventy-one pounds sterling. And whereas the said Major Woodhouse Kett, in further performance of the said agreement between the said parties hereto, hath drawn his bill of exchange at thirty days' sight on the said Messrs. Jardine, Skinner and Company, for the sum of fifteen thousand Company's rupees, being the equivalent for the said sum of fourteen thousand seven hundred and ten Company's rupees, at the exchange of one hundred and two per centum; and in further performance of the said agreement the said Major Woodhouse Kett hath agreed to enter into the covenants hereinafter contained. Now these presents witness, that for the considerations aforesaid he, the said Major Woodhouse Kett, for himself, his heirs, executors and administrators, doth hereby covenant, engage and agree to and with the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, their executors, administrators and assigns, that he, the said Major Woodhouse Kett, shall and will forthwith proceed with the said ship to Calcutta, and shall and will immediately on his arrival at Calcutta consign and place the said ship to and in the hands of the said Messrs. Jardine, Skinner and Company, for the purpose of being laid on and loaded for such port or ports as the said Messrs. Jardine, Skinner and Company, shall consider most advisable or expedient; that within thirty-four days after the arrival of the said ship at Calcutta aforesaid, he, the said Major Woodhouse Kett, or whosoever may act in lieu of him, or in case of his absence perform the duties of master of the said ship, shall and will take up and fully discharge the said bill of exchange for the said sum of fifteen thousand Company's rupees, and all interest that may have become due for or in respect thereof, in case such bill of exchange shall not have been previously paid and discharged by the said Messrs. Jardine, Skinner and Company; that within the period last aforesaid he, the said Major Woodhouse Kett, his heirs, executors or administrators, shall and will repay to the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, or the survivor of them, his executors, administrators or assigns, or to the said Messrs. Jardine, Skinner and Company, as their agents at Calcutta, all such money as the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, or the survivor of them, shall have paid or disbursed by way of premia for effecting an insurance on the said ship from the port of Madras aforesaid to Calcutta, and until the said ship shall have taken her departure from Calcutta on some outward voyage, together with interest on all such money as last aforesaid, at the rate of nine per centum per annum, from the time or respective times of the payment thereof, up to the time of such repayment thereof as aforesaid. And for further securing the payment to the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, or the survivor of them, his executors, 1859. April 1. 1859. April 1. administrators or assigns, or the said Messrs. Jardine, Skinner and Company, as their agents at Calcutta, of all such sums of money as aforesaid, and all such interest as aforesaid, he the said Major Woodhouse Kett doth hereby bind, pledge, mortgage and hypothecate the said ship, with her tackle, apparel and appurtenances. And the said Major Woodhouse Kett doth hereby declare that the said James Ainslie, Robert Orr Campbell, Richard Barnes Bell and William Scott, their executors, administrators and assigns, shall have a charge and lien upon the said ship, and her tackle, apparel and appurtenances, for securing the payment to them of all such sums of money as aforesaid, and all such interest as aforesaid. In witness whereof, the said parties to these presents have hereunto respectively set their hands and seals at Madras aforesaid, the day and year first above April 5. Judgment. The question put in issue was, whether the instrument purporting to be an agreement to hypothecate contained a sufficient expression of maritime risk. The Admiralty Advocate and Jenner, Q.C., for the bondholders. Deane, Q.C., and Spinks for the mortgagees. In the argument the following cases were referred to :-The Emancipation (a); The Nelson (b); Stainbank v. Fenning (c); Stainbank v. Shepard (d). On the 1st of April DR. LUSHINGTON gave judgment as follows:-I have delayed my judgment in this cause solely from a wish that the party against whom the judgment will be given should be satisfied that mature consideration had been given to the case. From the time I perused the papers I had no doubt upon the material question of fact on which the decision of the Court will turn. The principles upon which the Court must proceed are acknowledged on all hands; and the application of |