were in the case, we do not know why the bond might not be valid, even if the consignee had appointed the master who made it.1

We should answer the question, whether a valid bottomry bond may be made to a charterer, in the same way. Such a bond would be open to suspicion, and would require the most careful scrutiny; but would be valid if wholly unimpeached.2 It is, however, decided on good authority, and for good reason, that a bottomry bond to a part-owner, which binds the shares of the ship belonging to the other owners to payment with extra interest for repairs, is not valid.3

SECTION IX.

A BOND MAY BE GOOD IN PART AND VOID IN PART.

A bottomry bond may be given for a sum of money composed of several items, for a part of which such a bond may lawfully be given, and for a part of which it may not be given. The bond

vessel left port and was necessarily relanded. The agents also supplied the ship with necessaries for the homeward voyage, and advanced a large sum of money to the master. They then took a bond covering the cost of supplies, the expense of re-landing the flour, and the money advanced to the master. The bond was admitted, but on reference to the registrar and merchants, the charges for relanding the flour, and the amount of money advanced to the master, were disallowed. The case came before the court on a motion to confirm the report of the registrar. It was held that the agents had no right to ship their own property on board, which from its nature might be dangerous, and then, when it became so, charge the owner with the expense of relanding it. Dr. Lushington said: "It must be remembered always that this is a bond taken by the agent of the ship, whose duty it is to protect the ship from all improper charges; and though it is true in law that an agent may take a bottomry bond, yet when he does so, all the transactions thereto appertaining require the utmost vigilance of the court, for the obvious reason, that when the agent and lender are blended in one, the owner is deprived of the protection expected from a paid agent." In regard to the money, there was no evidence that it was wanted by the master, and the court therefore held that as the lender was bound to see that a necessity existed, the bond was so far invalid. In Clark v. The Bark Leopard, U. S. D. C., Mass., 4 Law Reporter, 153, the libellant, who was also the consignee of the vessel, employed her on various voyages, without accounting for the earnings, and in other respects acted fraudulently, and it was accordingly held that he could not recover.

1 See ante, p. 140, n. 4.

Breed v. The Ship Venus, U, S. D. C., Mass. Abbott on Shipping, Am. Ed. 159, note.

Patton v. The Schooner Randolph, Gilpin, 457.

will then be good pro tanto; for it seems to be quite well settled that it may be good in part and void in part.1 If many claims are added together to make up the amount for which the bond is given, a court in which enforcement of it is sought, will analyze these claims, requiring them to be severally proved; and will decree in favor of those only, or that part of the bond only, which is sustained by sufficient proof and is not open to objection. It is doubtful whether courts of common law have this power; we think they have not.3

2

SECTION X.

OF THE HYPOTHECATION OF THE FREIGHT.

A bottomry bond which hypothecates the ship does not, of necessity, hypothecate the freight also. But the master has the same power over the freight that he has over the ship, and may hypothecate the freight under the same circumstances, for the same reasons, in the same way, and by the same bond. And a general hypothecation of the freight by the master in a foreign port, will be construed to include all the freight of the whole voyage, whether

1 The Augusta, 1 Dods. 283; The Hero, 2 Dods. 139; The Tartar, 1 Hagg. Adm. 1; The Nelson, id. 169, 176; The Heart of Oak, 1 W. Rob. 204, 214; The Ocean, 10 Jur. 504; Dobson v. Lyall, 3 Mylne & C. 453, n., 8 Jur. 969; The Royal Stuart, 2 Spinks, Adm. 258, 33 Eng. L. & Eq. 602; Smith v. Gould, 4 Moore, P. C. 21; The Brig Hunter, Ware, 249; The Ship Packet, 3 Mason, 255, 259; The Virgin, 8 Pet. 538; The Brig Bridgewater, Olcott, Adm. 35,

37; Furniss

v. The Brig Magoun, Olcott, Adm. 55.

The Aurora, 1 Wheat. 96. See also cases in preceding note, and The Osmanli, 3 W. Rob. 198, 219. In this case Dr. Lushington stated that he was not prepared to say that in all cases where a small amount of the sum claimed is properly a subject of bottomry, and the larger proportion of the demand is not properly the subject of a bond, that the court would be under the necessity of pronouncing for that smaller amount. Such a practice might lead to fraud, in

Convenience, and litigation.

4

See The Hero, 2 Dods. 139, 147; The Ship Packet, 3 Mason, 255, 259.

La Constancia, 4 Notes of Cases, 285; The Mary Ann, 4 Notes of Cases,

376, 383, 10 Jur. 253.

See also The Draco, 2 Sumner, 157; Crawford v. The

Wm. Penn, 3 Wash. C. C. 34.

The

The Gratitudine, 3 Rob. Adm. 240, 274; The Nelson, 1 Hagg. Adm. 169;

Augusta, 1 Dods. 283; Murray v. Lazarus, 1 Paine, C. C. 572; The Ship Packet, 3 Mason, 255. See also cases in subsequent notes.

earned at the time the bond is made or not,1 provided it has not been paid to the master or owner.2

SECTION XI.

OF THE CONSTRUCTION OF A BOTTOMRY BOND.

A bottomry bond is preferred to any other lien whatever,3 excepting only the lien of the seamen for wages; and the lien of

1 The Schooner Zephyr, 3 Mason, 341. In The Jacob, 4 Rob. Adm. 245, the freight of a subsequent voyage, was, under the circumstances of the case, held liable for the bond. The freight is liable to contribute pro ratâ with the ship, although the ship and freight belong to different persons. The Dowthorpe, 2 W. Rob. 73. And freight earned from sub-shippers of goods by permission of the charterers of the whole ship, is liable, as against them, in payment of a bottomry bond given at the port of the charterers, for advances subsequent to the charterparty. The Eliza, 3 Hagg. Adm. 87.

The John, 3 W. Rob. 170. See also The Cynthia, 20 Eng. L. & Eq. 625. The Mary, 1 Paine C. C. 671; The Duke of Bedford, 2 Hagg. Adm. 294, 304; The Mary Ann, 9 Jur. 94; The Orelia, 3 Hagg. Adm. 75, 83; The Hersey, 3 Hagg. Adm. 404, 407; The Wm. F. Safford, Lush. Adm. 69. See also cases ante, p. 138, note 2. In the case of The Aline, 1 W. Rob. 111, a collision occurred, and the vessel, to the negligence of whose crew the collision was owing, put into Cowes for repairs. Application was made to D., a merchant of that port, for assistance in procuring the necessary repairs. D. declined unless the master would issue a bottomry bond for such sums as might be expended. This the master agreed to do. D. had no knowledge of the claim against the vessel. Part of the repairs were made prior to the arrest of the vessel for the damage done by the collision, and part subsequent. The court having pronounced the vessel in fault, she was sold by order of court, and the proceeds paid into the registry. D. having intervened for his claim, the question came before the court as to which claim should be preferred. Held, that D. was entitled to priority only to the extent of the increased value of the vessel arising from the repairs. The vessel in this case had not left Cowes when she was arrested, and no bond had been executed. The decree, therefore, is to be taken in connection with all the circumstances of the case; and Dr. Lushington expressly said that he could not hold that, universally, bonds given for repairs must give way to prior claims of damage.

The Madonna D'Idra, 1 Dods. 37, 40; The Sydney Cove, 2 Dods. 1, 13; The Constancia, 4 Notes of Cases, 512, 10 Jur. 845, 850; The Louisa Bertha, 1 Eng. L. &. Eq. 665; Blaine v. Ship Charles Carter, 4 Cranch, 328; The Virgin, 8 Pet. 538; The Hilarity, 1 Blatchf. & H. Adm. 90; Furniss v. The Brig Magoun, Olcott, Adm. 55, 66. In The Selina, 2 Notes of Cases, 18, it was held that wages earned antecedently to a salvage service would not be entitled to priority.

material men for repairs or supplies indispensable to her safety.2 The reason of this rule is, that a bottomry bond saves the ship; for it is to be presumed that it was made from a strict necessity; and if it had not been made the other liens on it would have been worthless. The reason of the exception is, that the bottomry bond itself would never have brought the ship within reach of any persons having an interest in or a lien upon her, had she not been navigated home by the seamen. So, too, if there be several bottomry bonds on the same ship, the last takes precedence, and a latter over a former, on the same ground that it is the last which saved the ship. And if a bottomry bondholder discharges the And in The Mary Ann, 9 Jur. 94, Dr. Lushington is reported to have said: "Suppose the wages sued for had been, in part, wages on the outward voyage, before the bottomry bond was taken; then would arise a question of no small importance, namely, whether these wages would be entitled, as against the ship, to priority over the bottomry bond. I apprehend not." But in the subsequent case of The Louisa Bertha, 1 Eng. L. & Eq. 665, where there were several voyages, the court held that the lien of the seamen for their wages extended to all the voyages, they serving under a continuous contract. In The Wm. F. Safford, Lush. Adm. 69, a person who had paid the crew their wages by direction of the master, was allowed to stand in their place, and his claim was given precedence over a bottomry bond.

3

* The Jerusalem, 2 Gallis, 345. See also Ex parte Lewis; id. 483.

The Exeter, 1 Rob. Adm. 173; The Sydney Cove, 2 Dods. 1; The Eliza, 3 Hagg. Adm. 87; The Trident, 1 W. Rob. 29; Leland v. The Medora, 2 Woodb. & M. 113; Furniss v. The Brig Magoun, Olcott, Adm. 66; Code de Commerce, book 2, tit. 9, art. 323. In the case of The Betsey, 1 Dods. 289, the first bond was given on the 12th of March, and on the 17th of the same month, more money being required, another bond was given to another party. The preference was given to the latter bond, although there was so slight a difference as to date, and although the bonds were executed at the same place, and the money was lent on the same voyage and on the same risk. In The Constancia, 4 Notes of Cases, 285, there were three bonds. The first and third were on the ship alone, and the second on the cargo alone. The first and second were of the same date. The court held, that the two on the ship should be paid out of the proceeds of the ship alone. But though the second was on the cargo alone, yet the ship and freight primarily liable for it, and what remained of the proceeds of the ship should be first applied to the payment of it, then the freight, and lastly, the cargo. So in The Trident, 1 W. Rob. 29, where there were four bonds, Dr. Lushington said: "I also take it to be clear, that in a case where there are several bonds, and one is secured on the ship and freight, and another upon the ship, freight, and cargo, according to every principle of equity, and this court sits as a court of equity, I am bound to marshal the assets, and say you shall satisfy your claim from the cargo, and you yours from the ship and freight." This dictum is now, however,

were

demands of the seamen for their wages, he perhaps stands as assignee of their claims, and has their lien for wages, in connection with his own. It may be doubted, however, whether the principle of novation does not apply so far as to require the assent of the owner, or some security to protect his interests.2 If the lender had, under the same necessity and to liberate the ship, repaid advances made for indispensable repairs or supplies, he could include them in his claim.3

For the reason that a bottomry bond is supposed to have saved the ship, it is construed very liberally by all courts, and if possible the intention of the parties is carried into effect. At the same time, because they are made from necessity, or, as is sometimes said, are creatures of necessity and distress,5 they are very carefully watched, and, while the lender is protected against any formal or technical objections if he has acted in good faith, the

overruled. In The Priscilla, Lush. Adm. 1, there were three bonds. The first on the ship and freight, the second on the ship and cargo, and the third on the ship, freight, and cargo. Held, that the third bond was to be paid out of the ship and freight, and that the second was to be paid out of the same fund, and, as the first bond did not cover the cargo, it was not liable at all. This privilege' of priority is confined to bonds given under necessity in a foreign port.

The Virgin, 8 Pet. 538, 553; The Kammerhevie Rosenkrants, 1 Hagg. Adm. 62. But see The Adolph, 3 Hagg. Adm. 249. In The Cabot, Abbott, Adm. 150, it was held that the bondholder had the right to pay the wages and stand in the place of the seamen, but that he could not exact of them a formal assignment of their wages, nor the payment of his proctor's fees; and on an offer to satisfy their wages he could not require them to defer the prosecution of their demands until he should choose to institute a suit on the bond.

2 See Dr. Lushington's remarks in the case of The John Fehrman, 20 Eng. L. & Eq. 648.

See Miller v. The Snow Rebecca, Bee, 151.

Simonds v. Hodgson, 3 B. & Ad. 50; The Alexander, 1 Dods. 278; The Rhadamanthe, id. 201; The Hero, 2 id. 139; The Calypso, 3 Hagg. Adm. 162; The Reliance, id. 66, 74; The Schooner Zephyr, 3 Mason, 341; Pope v. Nickerson, 3 Story, 465, 486. In The Jacob, 4 Rob. Adm. 245, 249, Lord Stowell said: "The disposition of this court would certainly be to uphold the efficacy of bonds of this nature, as far as is consistent with law. They are bonds of great sanctity, and highly necessary in mercantile affairs, and, therefore, the court would be inclined to support them, as far as the justice of the case will admit." See also The St. Catherine, 3 Hagg. Adm. 250, 253; Smith v. Gould, 4 Moore, P. C. 28; The Mary Ann, 10 Jur. 253, 4 Notes of Cases, 376.

The Kennersley Castle, 3 Hagg. Adm. 1, 7.