and for the purpose also of warning those who advance money upon bottomry of the vital importance of making due inquiries. I must pronounce against the bond, so far as it regards the cargo, with costs. This judgment was appealed against. Milward and Vernon Lushington for the appellant.—There were three objections to the validity of the bond as against the cargo made by the respondents in the Court below. (1) That considering the total value of the ship, freight (2) That the master of the ship had not communicated, or (3) That the master had had opportunity of trans-shipping As to (1) we say that the conduct of the master at St. Thomas's, at the time he ordered the repairs (6th of May, 1861, or at the time he gave the bond, 25th July, 1861), cannot be fairly tested by the results of a forced sale of the property at Liverpool in August following. Again, the fact of the appellant accepting the property as his only security for the repayment of the money advanced by him is strong evidence that the value of the property did not appear manifestly inadequate to meet the bond. And if this be the case, as we say it is, is the security of the appellant who advanced his money bonâ fide to be destroyed? Further, the doctrine cannot be sound that a bottomry-bond cannot be enforced against the property of the principal, whether owner of ship or owner of cargo, merely because, looking to the value of the property and the amount of the bond, the agent, the shipmaster, exercised an unreasonable discretion in hypothecating. The doctrine, if true, must apply to the owner of the ship as well as to the owner of cargo, for the master is the agent of either to hypothecate by the policy of the law arising out of the circumstances. Yet there are from time to time many cases in the Admiralty Court of bottomry-bonds on ship, freight and cargo, in which the bond not only does exhaust the ship and freight, but must have been contemplated from the first as likely to exhaust them; and these bonds are enforced against the ship and freight and against the cargo. If 1864. March 16. 1863. December 9. 1864. March 16. the alleged doctrine were true, the owner of cargo, appealing to the law, that ship and freight must be exhausted before the cargo can be resorted to, might repudiate it also. As to the 2nd objection, we say, that under the circumstances of the case there was no obligation on the master to communicate with the owners of cargo. The duplicate bills of lading in his possession gave him no sufficient information as to who were owners. On the other hand, the respondents had notice of the ship having put into a port of distress, and gave no evidence that if applied to they would have advanced money to assist in forwarding the cargo. Nor could an answer to a communication have been obtained in any reasonable time. The survey on which the repairs were ordered took place on the 6th of May, 1861, and the earliest possible reply to any communication about that survey would have been on the 15th of June. Again, we have express evidence that under the law of Hamburg there was no such obligation upon the master. The counter-evidence contained in the affidavit of Dr. Donnenberg is unsatisfactory, and moreover does not even purport to prove that by the law of Hamburg the lender's security could be void. Article 3, Part II. Title 14, of the Hamburg Statute Law (A.D. 1771), to which Dr. Donnenberg refers as enacting that it is the duty of the master to communicate with the owners of the cargo, is correctly translated as follows: "In case a ship should suffer damage, and the merchants, the helmsman, and the greater part of the crew should be of opinion that it might be repaired, the captain is bound to get the ship repaired and mended in the very same place, and to bring the merchandise of the merchants to the places unto which he has promised to take it, if God preserves him from misfortune. But, in case the ship may not be mended, the captain then shall transfer the goods to other ships lying at the place, for account and risk of the merchant, in which case he is entitled to the whole of his freight. If, however, the captain cannot find any other vessel, or if he is prevented by other legal reasons, by bad weather and contrary wind, he shall store the goods safely, for account and risk of the merchant, and shall receive his freight in the same place, pro rata itineris." The merchants herein mentioned, it is submitted, mean the merchants being actually on board the ship with their goods, such being the custom according to the simplicity of ancient commerce (Gratitudine (a)), and provision being made in many (a) 3 C. Rob. 267. codes for their consultation in emergencies, as jettison and the like. The case of the Bonaparte (a), on which the judgment in the Court below is founded, proves, on careful examination of the circumstances, only to decide positively that a bond may be invalid against cargo if the master has a considerable interval to communicate with the consignees of the cargo between the time of the vessel arriving in the port of repairs and the time when the repairs are actually commenced. In the present case no such interval occurred. The relation of the master of a ship to the consignees or owners of the cargo is very different from his relation to the shipowner, more especially as concerns the duty of communication before granting a bottomry bond. The shipowner is the master's proper constituent and correspondent; the master knows his address, is bound to follow his instructions, and at all convenient opportunities to furnish him with full information, and seek his advice. The shipowner is also bound by his contract with the freighters to furnish the master with all necessary supplies to enable the ship to accomplish the voyage. On the other hand, the fundamental duty of the master towards the consignees of cargo is to carry on the cargo to destination as soon as possible, in the ship in which it was laden. Of the value of the cargo the master is imperfectly informed, still less does he know the measure of importance of an early arrival, in any particular case, but he knows the general importance of an early arrival, and that delay may lose a market, or cause a breach of contract. Above all, the master has in general no duty to correspond with the owners or consignees of the cargo. Bills of lading, from which he derives his information, are often to "shipper's orders," naming no consignees; but if consignees are named, their places of abode and business, and other circumstances, are generally unknown to the masters. The consignees may be many in number, and they may be bare consignees, having no property in the goods consigned to them, and no authority save to receive them in any case, they have no duty to advance money to the shipowner or the master (save by special contract), and if applied to by the master for that purpose, or for directions, they may send no directions and no supplies, or insufficient directions and insufficient supplies, or may send conflicting directions as to selling, trans-shipping or hypothecating the goods, or leaving them at the port of distress. Moreover, any mere attempt to communicate with distant con (a) 8 Moore, P. C. C. 459. 1864. March 16. 1864. March 16. signees not ending in actual and satisfactory communication has for a result simple waste of time. These circumstances, which are commented upon by Lord Stowell in the Gratitudine (a), and by the present learned Judge of the Admiralty Court in the Vibilia (b) and the Olivier (c), together with the fact, that if cargo is hypothecated in part for ship's expenses, and freed to pay such part of a bond, the owners of the cargo are entitled to recover all monies so paid from the shipowner (Duncan v. Benson (d)), it is submitted, ought to limit, and in fact do limit by the maritime law of all civilized states, the actual duty of the master to communicate with the consignees of cargo to a few rare and peculiar cases; and upon such conception of the law bottomry transactions have hitherto been founded. To these considerations it is to be added, that a lender on bottomry security, who is an entire stranger to the owners of cargo, has no means of ascertaining that the master has had means of communicating with the owners of cargo, or has neglected or availed himself of the same, except by inquiry of the master, and that such inquiry is futile when the advertisement for bottomry is issued (as in the present case) after all the expenses in respect of ship and cargo have been incurred, and when neither ship nor cargo can leave the port of distress until such expenses are paid. In the present case it was proved that by the law of St. Thomas there was a lien on the ship for all ship's expenses; and a lien upon cargo for warehouse rent obtains by general custom in all known jurisprudence. As to the third objection, that the master might and ought to have trans-shipped, the only evidence adduced to show any opportunity to trans-ship the cargo was the passage (e) from the affidavit of Mr. Cameron. This statement as to the Pioneer, into the truth of which the appellant had no opportunity to inquire, may well apply to the end of May, 1861, long after the repairs of the Hamburg had actually commenced. The plaintiff had, moreover, alleged in his reply, that by the law of Hamburg the master of a Hamburg vessel is not allowed to trans-ship his cargo unless his vessel cannot be repaired, and that neither by the law prevailing at St. Thomas, nor by the British law, nor by the law maritime, was the master, in the circumstances of this case, bound to have trans-shipped his cargo, or to have unshipped and left it at St. Thomas. (a) 3 C. Rob. 241. (c) Lushington, 487. (d) 1 Exch. 537; 3 Exch. 644. The plaintiff gave evidence of the law of Hamburg on this point, and the learned Judge of the Court below held, in his judgment, that there was not, by the law of England or otherwise, any obligation on the part of the master to trans-ship. We therefore submit, that no reasonable opportunity of transshipping the cargo, or wilful negligence of such opportunity, was proved; that there was no obligation on the part of the master to trans-ship; and that in any case the appellant, who advanced his money in good faith on the 24th of July, 1861, cannot have his security of that date affected by any default on the part of the master in not trans-shipping in the May previous. It is also shown by the evidence, uncontradicted on the part of the respondents, that by the law of Hamburg the master of a Hamburg ship, putting into a foreign port in distress, is bound to obey the directions of the Hanseatic Consul in respect of all extraordinary measures touching ship and cargo. It is evident that not only the master of the Hamburg, but the lender of the money, acted in reliance upon such obligation. The appellant also gave evidence, that by the law of Hamburg the master of a ship is bound, on putting into a port of distress, to follow the direction of the official surveyors, and that, if they recommend the ship to be repaired, and the master, contrary to such recommendation, sells the ship, the shipowner cannot recover against his underwriters. The respondents, therefore, having taken indorsements of bills of lading of cargo carried by a Hamburg ship had implied notice of such law, and are bound thereby in respect of the bottomry bond. On this ground also, therefore, the master acted rightly in repairing the ship, and in executing the bottomry bond, which should therefore be held valid. Lastly, the general equity of the case requires that the bond should be upheld. The appellant advanced his money in good faith, in the ordinary course of mercantile transactions, and with ordinary and reasonable care; by means of that money considerable expenses attaching solely to the cargo of the respondents, as well as general average expenses, were defrayed, and also the cargo was brought finally to destination. The Queen's Advocate and Dr. Tristram for the respondents, contrà. First, the Court below was right in refusing to enforce this bond against the owners of cargo, as it was invalidated by the want of communication or attempted communication with them before it was given. It is the master's duty, in the absence of special circumstances to make the case an exception, before hypothecating the cargo, to communicate or attempt to 1864. March 16. |