IV. OF BOTTOMRY AND RESPONDENTIA.

THE contract of bottomry is in the nature of a mortgage of a ship, when the owner of it borrows money to enable him to carry on the voyage, and pledges the keel or bottom of the ship, as a security for the repayment: and it is understood, that if the ship be lost, the lender also loses his whole money;(y) 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,(z) but upon the goods and merchandize 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 upor 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; (a) and upon respondentia the lender 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 inquiries, they shall be treated as one and the same thing, it being sufficient to have once marked the distinction between them.

These terms are also applied to another species of contract, (6) which does not exactly fall within the description of either; 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 1,000% 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 fanus nauticum or usura maritima. But as this species of bottomry (c) 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 enactted, (d) "That all sums of money lent on bottomry

[a] 2 Valin. Com. p. 4. [6] 2 Blackst. Com. 458. 1 Siderfin, 27. [c] Molloy, lib. 2. c. 11. sect. 8. [d] 19 Geo. 2. c. 37. sect. 5.

or at respondentia 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 on the merchandize or effects, laden or to be laden on board of such ship, and should be so expressed in the condition of the said bond; and the benefit of salvage should be allowed to the lender, his agents or assigns, who alone should have a right to make assurance on the money so lent; and no borrower of money on bottomry, or at respondentia, shall recover more on any assurance than the value of his interest in the ship, or in the merchandizes and effects 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 and effects laden 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 borrowed, 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."

This statute has entirely put an end to that species of contract 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 exclusio 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 declares, (e) that ail contracts made or entered into by any of his Majesty's subjects, or any persons in trust for them, for or upon the loans of any money by way of bottomry, on 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.

2

It lately 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. c. 21. sec. 2. It came before the Court,(ƒ) upon a motion to discharge the defendant out of custody, upon entering a common appearance. The defendant was held to bail upon a respondentia bond, which was executed by the defendant, who was an American, to secure [e] 7 G. 1. c. 21. sect. 3. [f] Sumner v. Green, 1 H. B. 301.

the payment of a cargo shipped by the plaintiff, on board an American ship in the East Indies, home. ward bound from Calcutta to Rhode Island in Ame❤ rica. The ship had sailed from England, and landed a cargo of European goods in Bengal, previous to her taking in the cargo, on which the bond was given.

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 apppeared 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 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 regulation similar to that made here with respect to India ships: "Faisons defenses de prendre deniers, a la grosse sur le corps et quille du navire (g) ou sur le merchandises de son charge

[g] Ord. de Lou. 14. tid. de Contrats a grosse Avent. art. 3.