THE CHAPTER XXI. Of Bottomry and Respondentia. HE contract of bottomry is in the nature of a mortgage ble him to carry on the voyage, and pledges the keel or bottom Com. 458. of the ship, as a security for the repayment; and it is under. 2 Blackst. stood, that if the ship be lost, the lender also loses his whole Com. 457. money; but if it return in safety, then he shall receive back his principal, and also the premium or interest stipulated to be paid, however it may exceed the usual or legal rate of interest. When the ship and tackle are brought home, they are liable, as well as the person of the borrower, for the money lent. But when the loan is not made upon the vessel, 2 Blackst. but upon the goods and merchandises laden thereon, which, from their nature, must be sold or exchanged in the course of the voyage, then the borrower only is personally bound to answer the contract; who therefore in this case is said to take up money at respondentia. In this consists the difference between bottomry and respondentia; that the one is a loan upon the ship, the other upon the goods: in the former the ship and tackle are liable, as well as the person of the borrower: in the latter, for the most part, recourse must be had to the person only of the borrower. Another observation is, that in a loan upon bottomry, the lender runs no risk, though the goods should be lost; and upon respondentia, the lender 2 Valin must be paid his principal and interest, though the ship perish, provided the goods are safe. But in all other respects, the contract of bottomry and that of respondentia are upon the same footing; the rules and decisions applicable to one, are applicable to both; and therefore, in the course of our enquiries, they shall be treated as one and the same thing, it being sufficient to have once marked the distinction between them. Com. p. 4. These terms are also applied to another species of contract, 2 Blackst. which does not exactly fall within the description of either; Com. 458. 1 Sider fin. namely, 27. Molloy, lib. 2. c. II. s. 8. 19 Geo. 2. C. 37. S. 5. 7 Geo. I. Cr 21. 8. 2. namely, to a contract for the repayment of money, not upon the ship and goods only, but upon the mere hazard of the voyage itself; as if a man lend 1000l. to a merchant to be employed in a beneficial trade, with a condition to be repaid with extraordinary interest, in case a specific voyage named in the condition shall be safely performed: which agreement is sometimes called fœnus nauticum, or usura maritima. But as this species of bottomry opened a door to gaming and usurious contracts, especially in long voyages, the legislature, at the time it suppressed insurances upon wagering policies, introduced a clause, by which it was enacted, "That all sums "of money lent on bottomry, or at responden tia, upon any "ship or ships belonging to His Majesty's subjects, bound to "or from the East Indies, should be lent only on the ship, or 66 on the merchandize or effects, laden or to be laden, on "board of such ship, and should be so expressed in the con "dition of the said bond; and the benefit of salvage should "be allowed to the lender, his agents or assigns, who alone “shall have a right to make assurance on the money so lent: "and no borrower of money on bottomry, or at respon "dentia, shall recover more on any insurance than the value "of his interest in the ship, or in the merchandizes and ef"fects laden on board thereof, exclusive of the money so "borrowed; and in case it should appear that the value of "his share in the ship or in the merchandizes or effects laden 66 on board of such ship, did not amount to the full sum or "sums he had borrowed as aforesaid, such borrower should "be responsible to the lender for so much of the money bor "rowed, as he had not laid out on the ship or merchandizes "laden thereon, with lawful interest for the same, in the "proportion the money not laid out should bear to the whole money lent, notwithstanding the ship and merchandizes "should be totally lost." 66 This statute has entirely put an end to that species of con tract which was last mentioned, namely, a loan upon the mere voyage itself, as far, at least, as relates to India voyages; but as none other are mentioned, and as expressio unius est ex clusio alterius, these loans may be made in all other cases, as at the common law, except in the following instance, which is another statute prohibition. The statute alluded to de clares, clares, that all contracts made or entered into by any of His Majesty's subjects, or any persons in trust for them, for or upon the loan of any monies by way of bottomry, or any ship or ships in the service of foreigners, and bound or designed to trade in the East-Indies or parts aforesaid, shall be null and void. This act, it should seem, does not mean to prevent the King's subjects from lending money on bottomry on foreign ships trading from their own country to their settlements in the East-Indies. The purpose of the statute was only to prevent the people of this country from trading to the British settlements in India under foreign commissions, and to encourage the lawful trade thereto. It became a question in the Court of Common Pleas, whether an American ship, since the declaration of American independence, was a foreign ship, within the statute of the 7 Geo. 1. ch. 21. s. 2. It came before the court, upon a motion to discharge the defendant out of custody upon entering The defendant was held to bail upon a common appearance. The Court were much inclined to think the bond was void, the case being within the mischief designed to be remedied by the act. But as the question was of considerable consequence, they thought it not proper to be discussed on this summary application: but they ordered the defendant to be. discharged, on the ground, that where it appeared from the affidavit to hold to bail that there was a probability of the contract being void on which the action was founded, it would be wrong to detain the defendant in prison: more particularly as the plaintiff would by such means have an opportunity of tampering with the defendant in prison, and of escaping from VOL. II. S.S the Sumner v. Green, 1 H. Blackst. 301. 14. tit. des Contrats à grosse the penalties of the act, by preventing the case from being brought before the court. A loan upon the voyage, without a security on the ship or goods, is entirely prohibited by the laws of France; for in the marine ordinances of that country, there is a general regula tion similar to that made here with respect to India ships; Ord. of Lou. "Faisons defenses de prendre deniers a la grosse sur le corps et ❝quille du navire, ou sur les marchandises de son chargement, "au dela de leur valeur, au peine d'etre contraint, en cas de Avant.art.3. fraude, au paiement des sommes entieres, non obstant la "perte ou prise du vaisseau." And in another place it is said, that where a greater sum is borrowed than the ship or goods are worth, where there is no fraud, the contract is void, except as to the amount of the real value of the ship or goods.. If then the contract be only binding as far as there is property to answer the loan, it follows that, by the laws of France, this contract cannot exist upon the hazard of the voyage merely, unless there be a security also upon the ship or goods. Loc. cit. art. 15. 2 Blackst. Com. 457. Barnard v. Moor, 918, ed in Ho bart, p. 11. Justin v. I Salk. 34. The ship Gratitudine, 3d vol. of Robinson's Admiralty Rep. p. 240. The contract of bottomry and respondentia seems to deduce its origin from the custom of permitting the master of a ship, when in a foreign country, to hypothecate the ship in order to raise money to refit. Such a permission is absolutely neces sary, and is impliedly given him in the very act of constituting him master, not indeed by the Common Law, but by the Marine Law, which in this respect is reasonable; for if a ship happen to be at sea, and spring a leak, or the voyage is likely to be defeated for want of necessaries, it is better that the master should have it in his power to pledge the ship and goods (a) or either of them, than that the ship should be lost, ог (a) That the master might hypothecate the goods, as well as the ship, in cases of necessity, depended till lately more upon a general understanding that such hypothecation might be made, than upon any very direct authority upon the point. In a note to a case in Salkeld, it is said that the master may hypothecate either ship or goods; for the master is intrusted with both, and represents the traders, as well as the owners of the ship. But in a late case in the High Court of Admiralty in England, this question has undergone all that elaborate and learned discussion which the abilities of the advocates of that court were so competent to afford it; and has Molloy, b. 2. C. 2. S. 14. art. I & 22. Hanse Hobart, II. or the voyage defeated. But he cannot do either for any debt of his own: but merely in cases of necessity, and for completing the voyage. Although the master of the vessel has this power while abroad, because it is absolutely necessary for Leg. Oler. purposes of commerce and navigation; yet the very same authority which gave that power in those cases, has denied it when he happens to be in the same place where the owners reside. Thus the laws of Oleron, in the place above cited, speak of the captain being in a foreign country, and first writing home to his owners for money, before he takes money on bottomry: and the laws of the Hanse Towns, which were Laws of the founded on those of Oleron, speak the same language; for they Towns, say, "a master being in a strange country, if necessity drive art. 60. "him to it, may take up money on bottomry, if he cannot "get it without, and the owners shall bear the charge." In addition to this, from all the cases, which have been determined at the Common Law upon the subject, it may be inferred that the ship should be abroad, as well as in a state of necessity, to justify the captain or master in taking money on bottomry. Molloy in express terms declares, that a master Molloy, 1. 2. has no power to take up money on bottomry, in places where II. S. II. his owners dwell; otherwise he and his estate must be liable thereto.-If, indeed, the owners do not agree in sending the Molloy loc. ship to sea, the majority shall carry it, and then money may be taken up by the master on bottomry for their proportion who refuse, although they reside upon the spot, and it shall bind them all. The two last rules are the same with the marine ordinances of France upon that point: for they also declare, that those who lend money to the master, in the place has met with a decision, confirming the above note of Justin v. Ballam, formed upon mature deliberation and solid argument, as will appear from the judgment pronounced by the eminent person who presides in that court. It was my intention to have given an abstract of the judgment: but an abridgment would have done great injustice to the argument of that learned judge; and therefore I content myself with having referred to the subject as so settled, and having pointed out to the reader the valuable reports in which the arguments both of the judge and advocates may be found a large. The extent of that decision seems to be this, that the master of a vessel, carrying a cargo on freight, may, in a foreign port, hypothecate that cargo for the repairing damages sustained by the ship at sea; such repairs being absolutely necessary for the purpose of delivering the cargo, according to the charter-party. SS 2 where Noy, 95. C. cit. Ord. of Lou. Avant, à la grosse, art. 14. tit. 8&9. |