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es, and some better expression, such as a privilege or right of arrest, substituted in the others.

The lien by bottomry is a good instance of maritime hypothecation. It is a debt of the ship, arises out of the necessities of the ship, and is good only against the ship. If the ship meets with a marine disaster, and seeks shelter and restoration in a port where she and her owners are strangers without credit, her master may borrow money for the purpose of refitment, and secure it by a bond pledging the vessel for its payment, on arrival at her destination. As the bond provides that it shall be void in case she does not arrive, the principal is at risk, and therefore a high rate of interest may be charged without violating the usury laws.

The loss which avoids a bottomry bond is an actual total loss. The doctrine of constructive total loss is found only in the law of marine insurance, and does not apply in considering the law of bottomry.*

REQUISITES OF BOTTOMRY BOND

43. The requisites for the validity of a bottomry bond are that the repairs or supplies must be necessary, and

that the master or owner has no apparent funds or credit available in the port.

But, if the lender satisfies himself that the supplies are necessary, he may, in the absence of knowledge, actual or constructive, as to the existence of funds or credit, presume, from the fact that the master orders them, that there is a necessity for the loan, and his lien will be upheld, in the absence of bad faith.

It is the duty of the master to communicate with the owner of the ship or cargo proposed to be bottomried if

8 Northern Light (D. C.) 106 Fed. 748.

4 Delaware Mut. Safety Ins. Co. v. Gossler, 96 U. S. 645, 24 L. Ed. 863; Great Pacific, L. R. 2 P. C. 516.

he can." The modern facilities for communication and ease of transferring funds from port to port have rendered bottomry bonds less common than in former times. In America the right to bind a vessel for repairs and supplies as a maritime contract without any bottomry renders them rarely needed.

The holder of a bottomry bond must enforce it promptly after the arrival of the ship, or he will be postponed to any subsequently vested interests.

Among different bottomry bonds the last is paid first. This is another sharp distinction between admiralty and common-law liens. Among admiralty liens of the same general character, the last takes precedence; the theory being that the last is for the benefit of the preceding ones, and contributes to saving the ship in the best possible condition for all concerned."

8

The case of O'Brien v. Miller contains a form of bottomry bond printed in full.

RESPONDENTIA

44. This is a hypothecation of cargo, similar in nature, purposes, requisites, and effect to the hypothecation of the vessel by bottomry.

A bottomry bond may hypothecate not only the vessel but the cargo. If it is on the cargo alone it is called a "respondentia bond." Since the master has greater powers as agent of the vessel owner than he has as agent of the cargo owner, it requires a stronger necessity and a stronger effort to communicate with the cargo owner in order to

§ 43.

Karnak, L. R. 2 A. & E. 289; Id., 2 P. C. 505. • Charles Carter, 4 Cranch, 328, 2 L. Ed. 636.

7 Omer, 2 Hughes, 96, Fed. Cas. No. 10.510.

8 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469.

The following cases

are interesting and typical: Virgin, 8 Pet. 554, 8 L. Ed. 1036; GRAPESHOT, 9 Wall. 129, 19 L. Ed. 651.

HUGHES, ADM. (2D ED.)—7

sustain a respondentia bond than to sustain a bottomry." In other respects the law as to the two is similar. Admiralty courts have cognizance of suits to enforce these bonds.10

SUPPLIES, REPAIRS, AND OTHER NECESSARIES 45. The lien of materialmen for supplies and repairs or other necessaries is an instance of implied hypothecation, similar to the bottomry lien for moneys advanced with the same object, the latter being an express hypothecation.

46. "MATERIALMAN" DEFINED-A materialman is one whose trade it is to repair or equip ships, or furnish them with tackle and necessary provisions.1 11

Under the general admiralty law as expounded by the Supreme Court, the materialman who furnished necessaries to a vessel in a foreign port on the order of her master was presumed to credit the vessel, though nothing was said on the subject; and he could therefore proceed against the vessel. The reason was the apparent necessity for credit in the absence of her owner, in order to enable the vessel to carry out the objects of her creation. As Mr. Justice Johnson expressed it in the St. Jago de Cuba,12 it was to furnish wings and legs to the vessel to enable her to complete her voyage.

For the same reason, necessaries furnished a domestic vessel gave no claim against the vessel, but could be asserted simply against the owner; for in such case the necessity for the credit ceased, and the presumption would be that the credit was given to him.

§ 44.

595.

9 JULIA BLAKE, 107 U. S. 418, 2 Sup. Ct. 692, 27 L. Ed.

10 Admiralty rule 18 (29 Sup. Ct. xl).

$$ 45-46. 11 Neptune, 3 Hagg. Ad. 142.

129 Wheat. 416, 6 L. Ed. 122.

The distinction between these two classes was the result of an early decision of the court, from which it has never felt at liberty to depart.13

The opinion in that case was but a page in length and announced the distinction without any discussion or review of authorities.

In the Lottawanna a vigorous attack was made upon it, but the court followed it in spite of the unanswerable dissenting opinion of Mr. Justice Clifford, which demonstrated that the distinction between foreign and domestic vessels had no place in the sources of the maritime law from which the grant of admiralty jurisdiction in our Constitution was drawn.

Soon after the organization of the Maritime Law Association, which includes many of the leading specialists in admiralty law, the subject of restoring the law by congressional action to its ancient uniformity in this respect was taken up, and a committee was appointed to draft such an act and submit it to the Association. It was before the Association for several years, was the subject of much consideration, and was redrafted many times, during which the committee underwent many changes. At last it assumed a shape which was acceptable to the Association, and Congress gave it the force of law by Act June 23, 1910.15 The act is as follows:

"An Act Relating to Liens on Vessels for Repairs, Supplies, or Other Necessaries.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that

13 General Smith, 4 Wheat. 438, 4 L. Ed. 609 (1819). 14 21 Wall. 558, 22 L. Ed. 654 (1874).

15 36 Stat. 604 (U. S. Comp. St. §§ 7783-7787). The Committee of the Association which gave the act its final shape was composed of Mr. Frederic Dodge, of Boston, Mr. FitzHenry Smith, Jr., of Boston, and the author. Mr. Dodge has since been elevated to the bench.

any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to prove that credit was given to the vessel.

"Sec. 2. That the following persons shall be presumed to have authority from the owner or owners to procure repairs, supplies and other necessaries for the vessel: The managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel.

"Sec. 3. That the officers and agents of a vessel specified in section two shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vessel, but nothing in this act shall be construed to confer a lien when the furnisher knew, or by the exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.

"Sec. 4. That nothing in this act shall be construed to prevent a furnisher of repairs, supplies, or other necessaries from waiving his right to a lien at any time, by agreement or otherwise, and this act shall not be construed to affect the rules of law now existing, either in regard to the right to proceed against a vessel for advances, or in regard to laches in the enforcement of liens on vessels, or in regard to the priority or rank of liens, or in regard to the right to proceed in personam.

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