Mortgagee before the Admiralty Court. Bottomry. the power thereunder, it is required, that the attorney or attornies to exercise that power be named in it; the time limited for the exercise of the power be specified; and that the place where it is to be and is exercised and the port of registry be not both in the United Kingdom, or within the same British possession.' A mortgage created in accordance with the directions of the power, if that power is given by a certificate in which the statutory rules have been observed, must be recorded by the proper officer on the certificate of mortgage. Such mortgage takes precedence of all mortgages created subsequently to the registration of the certificate, and not under its authority; and ranks, in respect of mortgages created under the certificate, according to the date of their being indorsed thereon, irrespective of the date of the instruments, and notwithstanding any express, implied, or constructive notice." 2 Although this certificate is in the nature of a power not coupled with an interest, the death of the donor is no ground for impeaching a bona fide mortgage created subsequently to that event; nor is the prior bankruptcy or insolvency of the donor any ground of objection to its validity, provided the mortgage is bona fide made, to a mortgagee without notice, under a certificate in which the place of mortgage is specified, and the time limited therein for the exercise of the power does not exceed twelve months." The discharge of a mortgage so made may be indorsed on the certificate by the officer of whom the duties of registrar have been required by the statute. While the mortgage remains undischarged, if a suit is entered against the ship, or the proceeds thereof, in the Admiralty Court by any third party, the mortgagee has now a persona standi before that Court, for the protection of his interests; and the Court has jurisdiction to decide all questions affecting his claim under the mortgage. Somewhat in the nature of a mortgage on the ship is the contract of Bottomry, whereby the master, in the absence of other credit, and under stress of necessity, borrows money, to enable him to prosecute the voyage, on the security of the keel or bottom of the ship (pars pro toto), and engages to repay the principal, with maritime interest, if the ship shall arrive safe at the port of her destination.' from other Con tracts: The contract of hypothecation is distinguishable from a Distinguished mortgage at common law, and from a pledge or pawn in this, that while the mortgage transfers the property in the subject thereof, and the pledge gives a lien which is void without actual possession of the chattel, hypothecation confers only a right to be enforced against the subject of it through the medium of legal process." dentia. It is not to be confounded with respondentia. That word from Respon properly applies only to a loan of money secured upon the merchandise laden, or to be laden, on board a ship, repayment thereof, with maritime interest, being made contingent on the arrival of the cargo at the port of destination. The money raised upon it is for the purpose of the cargo only. The bond that secures it varies in form; and sometimes fails in strict construction of our law to effect hypothecation." It may be valid, though executed by the master alone, if sufficient necessity for it exists; in other countries, it is more usually effected by the owner of the goods himself; but 1 See 2 Bl. Com. 457; The Atlas, Clark, 2 Hag. Ad. 53; 2 Park Insur. 869. Emerig. des Contrats à la Grosse, c. 1, § 2. Bynkershoek seems to include Respondentia in his definition of bottomry; he says: Bodemery, definio contractum, quo pecunia creditur magistris navium in exteris regionibus, sive dominis navium et mercium in his regionibus, ea lege, ut si navis pereat, ereditor jus crediti amittat, si salva advenerit in locum destinatum, sors restituatur cum usuris nauticis, vel majoribus vel minoribus, ut pro ratione periculi inter creditorem et debitorem convenit. Quæstiones jur. priv. lib. 3, c. 16. Le Guidon, c. 1, art. 4; c. 18. * Stainbank v. Fenning, 11 C. B. 51; Stairbank v. Shephard, 13 C. B. 418; 5 22 L. J. (Ex.) 341, S. C. So by the 3 Compare The Cargo ex Sultan, 5 Jur. The Cargo ex Sultan, 5 Jur. N. S. 1060. Distinguished Conditions of valid Bottomry. Twofold necessity. in England such a bond as this, executed in any British port by the owner, would yield no remedy against the goods.' The closest similarity exists between this and bottomry; the law respecting them is the same; and the same jurisdiction takes cognisance of both.* The name of bottomry is incorrectly applied to a contract which does not pledge the ship as a security for the loan, but makes repayment of the money, with a high premium for the risk, dependent upon the success of the voyage. This is rather a loan upon a particular adventure to be made by a particular ship, than a loan upon the ship; and of course the lender has only the personal security of the borrower for the due performance of the contract. It seems that loans have sometimes been made in this manner, and probably also with a pledge of the ship itself, to an amount exceeding the value of the borrower's interest in the ship; such a contract is still legal in this country, except in the case of ships belonging to British subjects, bound to or from the East Indies." The validity of a contract of bottomry is to be judged of, chiefly, by the circumstances under which it was made, the purpose which it was intended to serve, and the condition on which performance of it is dependent. Any instrument of bottomry not occasioned and justified by inevitable necessity is void. This condition of its validity is a twofold necessity, depending first on the direct occasion for the money, and secondly on the impossibility of obtaining it on 58, 60; and 2 Magens, 431; both See the judgment of Dr. Lushing- 2 The Cargo ex Sultan, 5 Jur. N. S. 1060. 3 Three forms of bonds of this sort are printed in the Appendix to the Treatise of the Dominion of the Sea, and Body of Sea Laws, 659. 4 By the French law the contract is altogether valid to the extent of the borrower's interest in the ship, and for the surplus beyond that he is a debtor at the common rate of interest. Co. de Com. art. 316, 317; Ord. 1681, liv. 3. t. 5, § 3,-4 Pardess. 367; see Le Guidon, c. 19, art. 10,-2 Pardess. 426. 57 Geo. 4, c. 21, § 2; 19 Geo. 2, c. 37, § 5. 6"It is that state of unprovided necessity that alone supports these bonds; the absence of that necessity is their undoing;" per Lord Stowell, The Nelson, Brown, 1 Hagg. Ad. 169, 175; The Boddingtons, Noyes, 2 Hagg. Ad. 425 The Hersey, Grimwood, 3 Hagg. Ad. 404, 408. 47 2 Credit. personal credit. The want, which exacts the loan, must be Physical necessuch as, if not supplied, would prevent the prosperous comsity. pletion of the voyage; including therefore indispensable repairs to the ship, and necessary provisions for the people on board;' but not extending to the master's own debts, or the discharge of his person from prison, or even the liberation of the ship herself from arrest without other circumstances combined.' The Court, however, will not enter into nice calculations between less and more, if repairs are shown to have been necessary. But if personal credit might yield the money which the No personal occasion inexorably requires, bottomry is then unjustifiable, and the bond is invalid; and the clearest proof of this, that can be adduced against the bondholder, is the previous supply of the requisite cash or necessaries, for which a bond is only subsequently stipulated. And if a subsequent bond for money already in hand is bad, à fortiori for a debt contracted on a previous voyage, or for other ships, although belonging to the same owner,' it cannot be good; and for the same reason, a new bond substituted afterwards for another that had been given on a former voyage, will not be sustained by the Court." At the same time, small sums, to meet casual exigencies, Subsequent cannot be excluded from subsequent bottomry, without unduly Advances. cramping the freedom of commerce, and this the Court will The Nelson, Brown, 1 Hagg. Ad. 169, 175; The Prince of Saxe Cobourg, 3 Hagg. Ad. 387, 392. The Reliance, Hays, 3 id. 68; The Augusta, De Bluhn, 1 Dod. Ad. 283, 286; The Rhadamanthe, Mayer, 1 Dod. Ad. 201, 203; The Sydney Cove, Fudge, 2 Dod. Ad. 7. Soares v. Rahn, 3 Moore, P. C. 1; Wallace v. Fielden, 7 id. 398, 409; Molloy, de Jure Marit. b. 2, c. 11, § 11. Smith v. Gould, 4 Moore, P. C. 21, 28: Dobson v. Lyall, 8 Jur. 969; 3 My. & Cr. 453 n. S. C.; 6 Viner's Abr. 517. See The Gosfabrick, 4 Jur. N. S. 742. Otherwise, in foreign countries where the law enables them to arrest the ship for personal debts, everything would become the occasion of bottomry, Pr Lord Stowell, The Augusta, De Bluhn, 1 Dods. Ad. 283; per Dr. 4 Per Dr. Lushington, The Royal Heathorn v. Darling, 1 Moore, 6 The Augusta, De Bluhn, 1 Dods. 7 The Osmanli, 3 W. Rob. Ad. 198, 210; 7 Notes of Cases, 322, S. C.; The Toivo, infra. 8 The Toivo, 1 Eccl. & Ad. Rep. 185. Bonds for prior Duty to make not do; and if it manifestly appear that the wants of the ship were supplied in implicit reliance upon a lien for the debt, which the law of the country would give in the absence of express contract for the purpose, a subsequent bond, being but a performance of the original intention, will be sustained by the English Court of Admiralty.' These being the legal conditions of valid bottomry, previous previous Inquiry. inquiry, whether they exist, is imperative both on borrower and lender before the loan is made. The necessity for money existing, the master is bound to see whether he cannot obtain it on personal credit; and he does not discharge himself or the lender from this duty by merely selling a bond by auction, after advertisement, to the lowest bidder; yet the existence of a debt due to the owners at the same port, if he cannot obtain payment, is no objection to the validity of the bond,' unless it be given to the debtor himself. The lender, however, neglects at his peril to inquire, before he advances his money, whether it is wanted for the ship, or cannot be got upon personal credit; not that he is to calculate the expediency of the repairs, or even see to the proper application of the money afterwards; nor that he is to try the market, as though he were in person the borrower; but he is to inform himself, by reasonable inquiries, whether the money be indispensable, and whether some agent, consignee, or other person in some way connected with the ship, the cargo, or the owners, be not willing to advance it on their personal credit." 1 The Trident, Simson, 1 W. Rob. Ad. 29, 34; The Vibilia, Richardson, 1 W. Rob. Ad. 1. 2 The Alexander, Tate, 1 Dods. Ad. 278, 280; The Vibilia, Richardson, 1 W. Rob. Ad. 1, 13. 3 The Prince of Saxe Cobourg, Ladd. See The Virgin, 8 Peter's (Amer.) The Hebe, Hampton, 2 W. Rob. Cary v. White, 1 Bro. P. C. 284; 6 |