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since an abandonment under the American decisions relates back, the underwriters are liable for the acts of the master after abandonment, as he is then their agent."0

The acts of the insurer or the underwriter, in sending and making efforts to save, cannot be construed as an acceptance of the abandonment.11

The clause does not cover legal expenses incurred in defending the ship against an unsuccessful attempt to hold her liable for damages in the collision out of which the loss arose.42

This clause, however, only covers such acts of the underwriter as are authorized by the policy. If the underwriter takes the vessel to repair her, intending to return her, and keeps her an unreasonable time, and then returns her, not in as good condition as she was before, the suing and laboring clause will not protect him, and his acts in so doing, being unauthorized by the suing and laboring clause, will be held an acceptance of the notice of abandonment."

8 41. 40 Gilchrist v. Chicago Ins. Co., 104 Fed. 566, 44 C. C. A. 43. 41 RICHELIEU & O. NAV. CO. v. BOSTON MARINE INS. CO., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398.

42 Munson v. Standard Marine Ins. Co., 156 Fed. 44, 84 C. C. A. 210.

43 Washburn & M. Mfg. Co. v. Reliance M. Ins. Co., 179 U. S. 1, 21 Sup. Ct. 1, 45 L. Ed. 49; Copelin v. Phoenix Ins. Co., 9 Wall. 461, 19 L. Ed. 739.

CHAPTER IV

OF BOTTOMRY AND RESPONDENTIA; AND LIENS FOR SUPPLIES, REPAIRS, AND OTHER NECESSARIES

42. "Bottomry" Defined.

43. Requisites of Bottomry Bond.

44. Respondentia.

45. Supplies, Repairs, and Other Necessaries.

46.

47.

48.

49.

50.

51.

52.

"Material Man" Defined.

Necessaries Furnished in Foreign Ports.

"Necessaries" Defined.

Necessaries Furnished Domestic Vessels.

Domestic Liens as Affected by Owner's Presence.
Shipbuilding Contracts.

Vessels Affected by State Statutes.

"BOTTOMRY" DEFINED

42. This is an obligation executed generally in a foreign port by the master of a vessel for repayment of advances to supply the necessities of the ship, together with such interest as may be agreed upon, which bond creates a lien on the ship enforceable in admiralty in case of her safe arrival at the port of destination, but becoming absolutely void and of no effect in case of her loss before arrival.1

This is an express lien created by act of the parties. The Admiralty Lien

Admiralty is not a difficult branch of the law, and the difficulties of this part arise not inherently, but from the confusion incident to the use of the word "lien." To the student of the common law its use suggests the ideas which our studies in that branch associate with it; and, even if

§ 42.

1 GRAPESHOT, 9 Wall. 129, 19 L. Ed. 651.

there was such a production in those modern specialist times as an admiralty lawyer ignorant of all other law, the confusion would still exist to a lesser extent, since the word is used in different senses in marine law itself.

The admiralty lien, pure and simple, is strikingly dissimilar from the common-law lien. Take a common-law mortgage as an illustration. There the title to the security is conditionally conveyed to the creditor and he has á property interest in it. Take, on the other hand, the hotel keeper who retains the trunks of his guests till they pay for their wine. The moment he relinquishes possession of the trunks he loses his security, for his lien depends on possession. In other words, the common-law liens give the creditor a qualified title or right of possession as security for a personal debt due by the owner and as incident to such a debt.

The admiralty lien is different. Its holder has no right of possession in the ship. It exists as a demand against the ship itself as a contracting or wrongdoing thing, irrespective of the fact whether the creditor has any personal action against the owner or not. It is not a mere incident to a debt against the owner, but a right of action against the thing itself—a right to proceed in rem against the ship by name, in which the owner is ignored, may never appear, and appears, if at all, not as defendant, but as claimant. It is nearer what the civil law terms a "hypothecation"-a privilege to take and sell by judicial proceedings in order to satisfy your demand. This shows how little it has in common with the common-law lien.2

As said above, there are liens in admiralty law enforceable by admiralty process which yet are not admiralty liens. in the above sense. Such is the lien of the ship on the cargo for freight and demurrage, which is lost by delivery. It is to be regretted that the term was not limited to such cas

2 Pleroma (D. C.) 175 Fed, 639; Mayer's Admiralty Jur. & Pr. 55.

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.3

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

• 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

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