Legal effect of Enforcement of the Bond. be made the subject of a set off under the statutes in the hands of the original party.' 2 A contract of hypothecation made by the master does not transfer the property of the ship, but gives the creditor only a claim upon it, to be carried into effect by legal process. This proceeding in rem against the ship itself is the proper and peculiar province of the Court of Admiralty. The jurisdiction of the courts of common law is exercised by suit against the person only (except in some particular cases of forfeiture, or demands of the Crown), although in many cases judgment is ultimately pronounced for the recovery of the subject of dispute in specie. With regard to the enforcement of his claim against the ship by a bondholder, it appears to be the practice of the Admiralty Court to discountenance unreasonable delay,' and the policy of the English law to discourage the voluntary continuance of secret liens, justifiable in their creation only by the distress which they were meant to relieve. Such bonds therefore must be put in suit with all reasonable diligence, at the peril of losing the precedence to which the holders are entitled over other claimants. If the original time fixed for performance under the bond is mutually postponed by a new agreement between the parties, the bond is thereby extinguished; and the rights of the parties are then of a personal nature, derived 1 Marshall v. Wilson, at Guildhall, Dec. 18, 1811, before Lord Ellenborough, L. C. J. Abbott. 2 Johnson v. Shippen, 2 Ld. Raym. 982, 983; Stainbank v. Shephard, 13 C. B. 418; 22 L. J. (Ex.) 341. 3 The Royal Arch, Kenney, 1 Swabey, 269, 283; The Rebecca, Maddick, 5 C. Rob. 102. In the American courts, Packard v. Sloop Louisa, 2 Woodbury & Minot, 48; Leland v. Ship Medora, 2 id. 92; Blaine v. Ship Charles Carter, 4 Cranch, 328; The Nestor, 1 Sumner, 73. 4 See the provisions of 17 & 18 Vict. c. 104, § 55, 66, with regard to transfers & mortgage. And the observations of Dr. Lushington, in The Royal Arch, Kenney, 1 Swab. Ad. 269; ante, p. 51, n. 2. The Royal Arch, Kenney, 1 Swabey, 269, 285. In a case before the Admiralty Court of the United States, it appeared that the ship had made a new voyage since the bottomry bond had become payable; that the lien had not been asserted, although there was full opportunity, and that executions at law were levied upon her before the process of the Admiralty was served; it was therefore held, that the priority of the bottomry lien over all others was gone, Blaine v. The Charles Carter, 4 Cranch, R. 328. Indeed the Court in that case said, that the precedence allowed to these claims is confined to the voyage on which the bottomry is founded. under the new agreement, and not enforceable in the Court of Admiralty.' Upon the arrival of the ship in this country, if the loan is not repaid within the time prescribed, the agent of the lender applies to the Court of Admiralty, with the instrument of contract and a proper affidavit of the facts, and obtains a warrant to arrest the ship and cite all persons interested to appear before the court, if they think proper to do so. If in the course of the proceedings it becomes necessary to sell the ship, the court decrees a sale to be made under the direction. of its own commissioners; and afterwards distributes the proceeds among the claimants as justice requires, and this notwithstanding the absence of the owners. If a bond is bad for part and good for the rest, the court, proceeding on equitable principles, gives effect to that which is good, whenever, in point of operation, it is severable from the other. It will also marshal the assets with a view to the rights of all parties before it. But if the subsequent lender, being also charterer, and knowing that there is a prior bond on ship and freight, stipulate in the charter-party that the advances made shall be taken as part and on account of the freight to be earned, the prior bondholder is not entitled to have more than the surplus of such freight paid into court to satisfy his bond. Prior advances on account of freight are not affected by a subsequent bond, notwithstanding it is on ship and freight.' Subject to the rule that requires diligence in putting the Priority among bond in suit, securities of this nature, when the fund is the Bondholders. deficient, take priority in the inverse order of their dates; the ground for this preference of the later bonds to the earlier being that same condition of necessity on which the validity of each is originally dependent. The extreme distress which is required to justify the creation of the latest equally as the first of several bottomry bonds, is a safe reason for presuming 1 The Royal Arch, 1 Swab. Ad. 269. 283, 288; The Tartar, Tharp, 1 Hagg. 169, 176. The probable limits of this * The Constancia, 10 Jur. 845. 4 The Cynthia, 16 Jur. 748. The John, Hay, 3 W. Rob. Ad. 170. that the later loan furnished the means of preserving the property for the earlier lender: Salvam fecit totius pignoris But if the case with which the bond before the A Court of Equity causam.' interferes, when. Admiralty Court is mixed up be vitiated with fraud, or if it be such that injustice will be done to others by adjudicating on the bond and the property affected by it, apart from the other circumstances and claims with which it is entangled, a court of equity will assume jurisdiction, and proceed in the matter as justice requires.' The Law of the With regard to the law by which the validity of this bond is to be determined, there is a speculative difference among jurists, which has left the actual course of the decisions upon it in the English and foreign Admiralty courts wholly unaffected and quite uniform. These tribunals have continued without variance to administer the maritime law of the flag in respect of the claims upon the ship by foreign lenders, notwithstanding the loan was made in a foreign country. To Mr. Brodie, however, and afterwards to Mr. Justice Story, viewing it as a question of municipal law, and applying to it the principles which rule in case of a conflict of laws of that nature, the decisions of the English Admiralty Court seem to be 1 The Rhadamanthe, Mayer, 1 Dod. 2 Interdum posterior potior est priori; Jur. Pub. lib. 1, c. 19. 3 Hussey v. Christie, 13 Ves. 594; 9 East, 426, S. C.; Glascott v. Lang, 3 My. & Cr. 454; 8 Sim. 358, S. C.; Duncan v. McCalmont, 3 Beav. 409; Dobson v. Lyall, 8 Jur. 969; Dandy v. Turner, Eq. Cas. Abr. 372. 4 I must content myself here with referring to the following authorities; the subject must come under consideration at greater length in discussing the authority of the master, post, c. iv. See 3 Pardess. Droit Com. No. 661, 911; 2 Emerigon, 485; & note by BoulayPaty, Ibid. 491; Boulay-Paty, Droit Maritime, vol. i. 291; vol. ii. 67, referring especially to the law of England as corroborating his opinion, Ibid. Every decision on bottomry bonds in our courts might be cited to the same purpose. See The Osmanli, 7 Notes of Cases, 322; The North Star, 29 L. J. (Ad.) 73, 76. anomalous and not assignable to any received general principle. Mr. Brodie hopes that some such principle might be found in the general maritime law. Mr. Justice Story thinks that perhaps they are reducible to the law of the owner's domicil.' The learned judge of the Admiralty Court has recently perplexed the general question, upon a case within the same. principle, by a decision which infringes on the uniformity that had heretofore prevailed among the decisions of the court. The question before him being the validity of the sale of an English ship in a foreign country by the master to an alien, Dr. Lushington, adverting to the strictures of the jurists we have named, abandoned the English maritime law, and determined the case on the general law maritime.' It is now much more complicated by a recent decision of the Court of Exchequer Chamber, on a similar question arising out of the sale of an English cargo by a Prussian shipmaster to a Norwegian in his own country. Viewing the question. as one governed wholly by the municipal law, that court determined, under the conflict of laws of that nature which had arisen, that the validity of the sale depended on the law of the place where the property was.' These two decisions are not more conflicting, one with the other, than both are with the whole course of the Admiralty decisions on bottomry of English ships in foreign countries. In neither of the cases, however, was the principle of these decisions referred to, and it remains to be seen what the law of this country, after being settled for two hundred years, is at length to become. This contract of bottomry comes down to us, with many other usages of the sea, directly from the times that witnessed the inconsiderable beginnings of modern commerce." All evidence of its existence is lost in the darkness of an earlier age.' But whether, after having been familiarly known to the 1 See Story, Conf. of Laws, No. 286 b, and Mr. Brodie's note to Stair's Institutes, vol. ii. 955, 956, quoted at length in Story, ubi supra, note. The Eliza Cornish or Segredo, 1 Eccles, & Ad. Rep. 36; 17 Jur. 738, S. C. Cammell v. Sewell (below), 3 H. & N. 617; (in error) T. T. 1860; 8 W. R. 639. 4 Coutumes d'Amsterdam, art. 4; Le Guidon, c. 18; Hanseatic League, (an. 1418) art. 4, (an. 1434) art. 4, &c.; Swed. p. 4; Ord. of Holland (an. 1549), art. 19, &c. 5 It is remarkable that so little, if Maritime Liens. Romans, it was a second time the birth of necessity and the human intellect, or whether it was revived in use with the study of the civil law in Italy and the other countries on the Mediterranean, or was merely perfected in theory as the result of that study, is a curious rather than an important question. It is impossible to admit the assertion made in Le Guidon, c. 18, art. 2, that this contract was unknown to any other age or country than that in which the author wrote.' At the same time it cannot be denied that such a doctrine as that of hypothecation, involving a refined idea of dominion over property not in possession, and complete confidence in the power of public law to enable the creditor at the proper time to assert that dominion with effect, could never have been the invention of a rude age. Accordingly, we know from the history of even the Roman law, in which that doctrine ultimately received its greatest development, that until a comparatively late period lien without possession was unknown to it, and that the only security for advances of money was by way of pawn of the chattel. At length, when the Prætor had conceded to this peculiar description of jus ad rem, afterwards known as hypotheca, an existence independent of possession, and indefeasible by purchase, 3 anything, relating to bottomry is to be found in the Consolato del Mare; see art. 194-2 Pardess. 225. The Laws of Oleron, in so far as they prescribe (art. 1 & 23-1 Pardess. 323, 339) the conduct to be pursued by the captain in distress, though they have been differently construed by Mr. Park (2 Pk. Insur. c. 21), present no evidence that this contract was known to the authors of that code. The laws of Wisby are believed to be a compilation chiefly from those of Oleron, and on this point they entirely agree; see art. 15-1 Pardess. 470. 1 See 2 Valin 1, on the French Ord. 1681; 2 Emerigon, des Contrats à la Grosse, 407, 408; Pothier, de Prêt à la Grosse, Art. 1; Dig. 22. 2, frs. 1, 4, 5, 6, and 7; Dig. 45. 1, fr. 122; Cod. 4, 33. Mr. Abbott, however, doubted whether this contract was known to the Romans before the time of Justinian, on this ground, that in those parts of the civil law which treat of this subject, no men tion is made of contracts of this nature entered into by the master of a ship in that character. But to that it may be answered that there is nothing unfavourable to it, and that the language there used is large enough to include that case; and besides, it must be remembered that in those times, as well as afterwards, on the revival of commerce in the middle ages, the master almost invariably was an owner, unless he was a slave. 2 Pothier, de l'Hypothèque, c. 1, sec. 1, art. 1. 3 Dig. 13. 7. 9. 2. Proprie pignus dicimus, quod ad creditorem transit; hypothecam, cum non transit, nec possessio ad creditorem. |