« AnteriorContinuar »
towards the repair of the vessel shall be answerable for their quotas of the money taken up by the master for refitting and victualling.
X. These moneys continued on as a loan, or renewed on B. on any voyage, shall not enter into competition with what shall have been lost, lest for the immediate service of the voyage.
XI. All B. contracts become void through the entire loss of those effects on which the loan has been made, provided it happen by accident, and in those places, and within the time, stipulated by those
XII. That which may proceed from the perishable quality of anything, or through the act or deed of the owner, master, or shipper, shall not be reputed accident, except otherwise stipulated by the contract. XIII. If the time the risk is to continue be not stipulated by the contract, with regard to the vessel, tackle, apparel, and victualling, it shall begin and run from the day she shall have sailed, till she be at anchor in her intended port, and there moored to the key. And as to the goods, the risk runs from the time of their being shipped, or in lighters to carry them on board, until they are landed.
XIV. Any one shipping of goods and taking up money at B. on them, though the ship and goods be lost, shall not be freed from his contract, except he prove that he had effects to the amount of the sum he borrowed.
XV. If, however, the borrower can prove that he could not ship for the value of the sums taken on B., the contract in case of loss shall be reduced in proportion to the value of the effects laden, and shall only hold good for the overplus; for which the borrower shall pay int. according to the course of the place where the contract was made, until the whole principal be paid: on the other hand, if the ship arrive safe, the current int., and not maritime prem., shall be due on what was borrowed more than what was actually shipped.
XVI. Lenders on B., and not the borrower, shall contribute to gross average, such as ransoms, contributions, jettisons, the cutting away masts and rigging for the common safety of the ship and goods; but not to simple averages, or particular damage, which may happen, except it be particularly stipulated.
XVII. Contracts on B. shall nevertheless be answerable for the value of goods saved from shipwreck. XVIII. If on the same cargo there be a B. contract, and also an ins. made thereon, the lender on B. shall have the preference of the insurers on the effects that may be saved-only for his capital.
Then, under the head of "Insurance," wherein it is defined who and what may be insured, there are the following:
XVI. We expressly forbid those who take up money on B. to have ins. made thereon; under the penalty of the same being declared invalid, and of corporal punishment.
XVII. The lenders on B., under the same penalty, shall not ins. the profit on the sum lent.
In the case of Deguilder and Depeister which came before the English Courts in 1682, the facts were as follows: The master of a ship entered into a B. B., whereby he bound himself, in consideration of £400, as well to perform the voyage within 6 months, as at the end of 6 months to pay £400 and £40 prem., in case the vessel arrived safe, and was not lost in the voyage. But it fell out that the master never went the voyage, whereby his bond became forfeited, and he preferred a bill in equity praying to be relieved and in regard the ship lay all along in the Port of Lond., and so the lender run no hazard of losing his principal, the Lord Keeper though fit to decree, that he (the lender) should lose his prem. of £40, and be content with ordinary int. on the sum advanced.
The Danish Code of 1683 contains the following regulations regarding B.:
1. If a captain, being in a foreign country, has not sufficient cash of his owners to load his vessel, or cannot take up money otherwise, and has not goods to sell to the advantage of his owners, he may mortgage his vessel, tackle, stores, cargo, and freight, with the obligation of bringing three of his best men as vouchers to the owners for his necessity of so doing; and he shall be obliged to pay such money borrowed, as soon as the ship arrives at the port specified in the deed of mortgage; but if he makes another port, against the will of the mortgagee, he shall not only pay the debt, but moreover make good all damage thence ensuing to the creditors.
2. But if he is not at a great distance from the owners, he shall not mortgage without their consent -excepting that part of the ship which is his own; nor shall any creditor have any claim against the owners in such case; but if one or more of the owners have given the captain full power, such of them shall satisfy for themselves, according to the tenor of the powers given.
3. If a captain of his own head, and without any necessity, takes up money on the ship; or without necessity sails to a different port than where he was hired for, he shall make good to his owners all loss thereby sustained, and be banished from the King's dominions; and if he runs away, leaving the vessel and cargo pledged, whenever he is apprchended, he shall be responsible according to the nature of the affair.
4. Latter deeds of mortgage shall take place for payment before prior ones.
5. If a captain takes up more money on mortgage than the vessel, stores, freight, etc., answer, he, and not the owners, shall make up the deficiency.
6. If a vessel mortgaged is taken, or arrested, so that the captain cannot recover it, he shall make it over in whole, or part, to the mortgagee according to what was pledged; and if the creditor recovers it, he shall, reserving the expenses and debt, return the overplus of the value to the owners.
7. If a vessel is lost, the debt is cancelled. But if any goods, for the freight of which the captain is to be paid, are saved, or any part of the ship or stores are recovered, the mortgage and int. thereof shall be paid, as far as the freight will go if the whole ship was pledged; but if only a part was pledged no more shall be paid but the proportion of that part. If any accident happen to the vessel mortgaged, by the manifest fault or negligence of the captain, he and all he is worth shall answer to the creditors for the money lent.
8. A mortgagee shall take care to have his debt paid within six months after the arrival of the ship at the port specified in the deed, or lose his right; but during that space his right is inviolable, though the vessel is sold. But if by agreement, the money lent is to be repaid on the return of the vessel to the port from whence it sailed, and it returns not within a year and a day, the money then immediately demanded, and not paid at the fixed time, shall thenceforward bear int.
The case of Goddart and Garret came before the Courts of Equity in 1692, under the following circumstances. Garret had lent £300 on a B. B., and afterwards ins. £450 on that ship with Goddart and others [for £6 6s. p. c. prem.] as int. for money lent, etc. The ship outlived the time at which the Bottomry money was repayable, and was afterwards lost in the E. Indies. Garret recovered the money on the B. B., and afterwards
sued the insurers upon their pol. Goddart, and others the insurers, resisted payment, and brought their bill in equity to be relieved, on the ground that the money ins. by the pol. was the money lent upon the B., and that Garret was not otherwise interested in the ship; and that the money being paid on the Bottomry, the pol. ought to be given up. The Court decreed the policy to be given up.
Leybourn, in his Panarithmologia, 1693, says:
This way of lending mony, or Bottomery, is much used now-a-days; it hath its name derived from the bottom of the ship or keel, and is practised in this manner: a master of a ship going to the Indies, Straights, Denmark, or any other part of the world, wants £100 to carry out in any commodity he thinks he can make a profit by; you lend him £100, and agree with him to have for this £100, £130, or £140, or £150 (or what you can agree for), at the ship's return. But if the ship happens to be sunk, burnt, taken, or any manner of damage happen that the ship comes not home, then you cannot recover one penny of the mony that you lent of the man that borrowed it, nor arrest his body; for he is to pay you at the return of the ship, and not at the return of his person.
The general way now is to lend 100 at 30 or 40 p.c., and then you go and find out one that will assure the ship, outwards and inwards, for a small matter, it may be 4, 5, 6, p.c. (as you can agree), the longest voyage; and if the ship be lost, you recover both principal and advance of the insurer (deducting only what the ins. comes to), and thus you are upon certain grounds; for he that lends his mony on B. and insures it, generally (whether the ship be lost or comes home) gains at least 22 or 23 p.c., if his mony were lent at no more than 30 p.c. And men are now-a-days so cunning, that they will not only have part of the ship mortgaged unto them (for their money), but will have some merchant or sufficient person that shall be engaged for it, and so have the borrower's bond as well as the ship, and his body bound as well as the voyage; which thing is seldom condescended to but where the borrower's necessity is great.
This way of taking up monies is likewise much used amongst masters of ships, that by any bad weather or other strait or emergency whatsoever, do put into any port in any kingdom, and there repair their ship, and buy what's necessary for them; and wanting mony to do the same with, they repair to some merchant, and he having the ship's name and the master's, and of what place she is, and her owners' names, will advance this mony at B.; and if the ship comes safe to her intended port, the said merchant hath his mony; if not, and the ship be lost, he hath nothing; nor can he recover any against the master or owners, but only against the ship. Indeed, this causes many cheats: many men have brought their ships safe to the river's mouth, and there have sunk them on purpose to avoid the payment of the monies they owed at B.
He (Leybourn) justifies the high rate of interest demanded in B. transactions, using the language of Molloy, already quoted.
There seems to have been a doubt previous to this period whether a loss by the attacks of Pirates was one of the risks which the lender on Bottomry had by his contract undertaken to bear. The point came on for argument in the Court of King's Bench, during the reign of James II., in the case of Barton v. Walliford; and the Court was of opinion that piracy is one of the dangers of the sea. [1688.]
Bottomry was practised in Holland at a very early period. A famous merchant, Adrian Verwer, writing in Amsterdam in 1711, gives a declaration, signed by several of the most eminent merchants of that city, dated 17 Sept., 1699, to the effect that the lender of money on Bottomry was not obliged to contribute to any gross average, and "by tradition had learned that it was the same in former times."
During the war in the reign of Wm. III., 1689-1702, the rate of marine ins. to the East Indies and back was 22 p.c.; and the rate for loans on B. was often as high as 55 p.c. "The rate of int. for money taken on B. was always more or less affected by the causes which led to an advance in the rate of ins.—and affected, by reason of the nature of the contract, in an intensified degree."— Chambers.
In the case of Dandy and Turner, which was before the Courts in 1701, the facts were these: A part-owner of a ship borrowed money upon a B. B., payable on the return of the ship from the voyage she was then going in the service of the E. India Co., and the E. I. Co. broke up the ship in the Indies. The owners brought their action against the Co., and recovered damages; but they did not amount to a full satisfaction. The lender brought his bill, to secure his proportionable satisfaction out of the money recovered. But his bill was dismissed, and he left to recover as well as he could at law : for a Court of Equity will never assist a B. B. which carries an unreasonable int.
During the war in the reign of Anne, 1702-14—the rate of marine ins. to the E. Indies and back was 16 p. c. The rate for loans on Bottomry was 45 p.c.
In the case of Harman v. Vanhatton, which came before the Courts in 1716, the facts were as follow: Vanhatton lent Harman £250 on a B. B., and afterwards ins. on the same ship; but the scope of the voyage was larger in the pol. of ins. than in the B. B.-there being liberty to go to other ports and places. The ship being lost, Vanhatton recovered the money on the pol. of ins, and also put the B. B. in suit. The latter on the ground of the ship having deviated from the voyage specified in the bond. Harman filed his bill to restrain, asserting that Vanhatton ought not to recover both on the ins. and on the bond-he having ins. only in respect of the money he lent upon the bond. All the risk he had run on the ins. was paying the prem. The Court held that Vanhatton having paid the prem., was entitled to the benefit of the pol. "And the insurers might as well pretend to have aid of the B. B., and to discount the money recovered thereon, as Harman to have the money recovered on the pol. to ease the B. B. By stat. 6 Geo. I. c. 18 (1720)—the Act for incorp. the Lond. Assu. and Royal Exchange Cos., and giving them the exclusive privilege, as corporations or partnerships, of lending money on bottomry in Gt. Brit., there is a special exemption (sec. 26) in favour of the South Sea Co. and the East India Co., that they might so lend on the bottom of any
ship, and on the goods on board any ship in the service of the said Cos. respectively, to any captains or other persons employed in the service of the cos. notwithstanding the passing of such Act. Subject to such special exemption, the Act provides:
And if any corp. or body politick, or persons acting in such so, or partnership as aforesaid, other than the two corps. intended to be estab. by this Act, or one of them, shall presume to lend, or agree to lend or advance by themselves, or any others on their behalf, after the said 24 June, 1720, any money by way of B., as aforesaid, contrary to this Act, the bond or other security for the same shall be ipso facto void, and such agreement shall be judged to be an usurious contract, and the offenders therein shall suffer as in cases of usury.
In that same year a co. specially desgined to make advances on B. had been set on foot, called Beele's Bottomree.
A correspondent in Mist's Weekly Journal for 9th Jan., 1720 [was it De Foe?], gives an amusing account of some of the projects of that period, and then proceeds:
Successive to these bubbles we have had another pub. for a subs. of a million also-for they cannot, it seems, talk of less on any account, and what should this be, but as mentioned, to lend upon B., that is to say, to lend money upon the risque of the bottom of the ship; so that if the ship comes home the borrower is obliged to repay, with the sum agreed added to the sum borrowed. If the ship is lost, the lender is to bear his own loss, and the money sinks with the bottom. But it would be of publick service, Mr. Mist, if you would fully expose that scandalous project.
What villanies have not been practised by masters, captains, and owners of ships and cargoes, upon such occasions as this of B.? I need not tell you, Mr. Mist, who perfectly understand sea affairs, how it is come to that pass in trade, that when we know a master or captain of any ship has taken up money upon the bottom, no wise man will send any goods on board that ship, nor any insurers underwrite upon her, except only goods bound to the East Indies.
Since then this is the case, I recommend to you, Mr. Mist, that you will desire of these B. lenders, that they will make it a condition of their management, that every ship that goes to sea, upon whose bottom they shall lend any money, shall be entered in a book, and that book lie always open upon their table, for all merchants to look over at pleasure.
In a previous part of the same letter, he had spoken of that old "fire-ship adventure of Bottomree." We fear his inferences were but too true.
By the Ins. Ordin of the City of Rotterdam, promulgated 1721, we find the following provisions regarding B. :
CXXXIII. When the masters have occasion for any money across the seas, whether it be beyond Dover, or past the Sound and having no goods of his owners on board, or that he cannot dispose of them at a reasonable rate, or at least not so much as he has a call for, they may take up money on B. CXXXIV. Provided the money taken on B., or the sale of goods, do not amount to above one-eighth part of the value of ship and cargo, unless in cases of the utmost necessity.
CCL. Creditors who have lent money on B. shall be preferred before all other bond creditors, excepting the ship-builders, who are to be preferred to the B. B.
CCLI. Among those who have lent money on B., the younger is to be preferred to the elder.
In a form of B. B. in use in Cadiz in 1725, we observe that it had become the custom of owners of ships there, on borrowing money for their expeditions, to pledge the ship's value, together with all its emoluments, wherein the freight was included.
In 1729 Mr. Joshua Gee pub. a work: The Trade and Navigation of Gt. Brit. considered; and therein he says: "The nation in Queen Elizabeth's time being in its infancy in trade, set out with great frugality, and saved money and grew rich apace; and our merchants spread themselves over all Europe, Turkey, and America, as well as India, and introduced our manufactures and products wherever they went. Their riches increasing by this traffic, they not only had money enough to carry on their trade, but supplied foreign princes, lent money upon Bottomry, and upon commodities in all countries.' By the Ins. Ordin. of Konigsberg, 1730 [frequently called the Maritime Law of Prussia], it is provided:
XII. The creditor or lender of the B. money shall be allowed to ins. his cap. lent, together with the prem. paid the insurer, but not the stipulated agio, or other profits of the B.; but ins. made by the debtor, or borrower on B., on the same goods and ships so bottomried, shall be of no effect, and void and punishable.
Chap. VII. treats of B. entirely. Thus :
We can only notice the more important provisions.
I. He who advances on B., that is, lays down either ready money or the value of it, on a ship or goods shipped, under obligation that if the same shall be lost, he shall also lose his deposit, without any claim or return, shall be allowed to contract for as high an int. as he and the borrower can agree upon. II. In the contract, and likewise in the whole procedure relating to B., the contracting parties, particularly the master of the ship, and the broker who may be employed in transacting the contract, shall, on the penalty of severe punishment in goods, body, or character, together with reparation of all damages occasioned thereby, proceed justly and uprightly, without fraud, and not insidiously draw in any one to advance money or anything else, on a deceitful B.
Sec. III. defines whether and when a master may take up money on B., against the owner's consent. IV. When and how a master of a ship, being abroad, may take up money on B. V. The lender on B. acting contrary to the preceding art. has no redress on the ship. VI. That is included under the mortgage of the bottom of the ship. VII. Duration of the hazard on B. VIII. Concerning B. goods returned. IX. Payment to be made within 8 days after the arrival of the B. goods. X. Or after they are duly sold; and if proceeds insufficient, no further claim or demand upon the borrower.
XI. The preceding art, shall take place, although the borrower shall have engaged both his body and goods for the sum taken up; this engagement being to be understood only as a security that he shall act fairly and justly in the things so Bottomry'd, that the lender may not suffer by his neglect,
mistakes, or dishonesty; and in case of any such thing, that he shall, with his person and substance. make good all losses.
XII. No payment after loss of things bottomry'd. XIII. Damages incurred by any fault to be made good by offender.
XIV. The like to be observed concerning any bottomry'd goods damaged or lost through the fault of any one; but in case the damage or loss arises from their own natural decay, or the fall of the price, and thus are not equivalent to the B., the proprietors shall not be entitled to compensation by cession, or legal sale, but must duly stand by the contract.
XV. Upon proof of fraud, the B. to be paid, though the goods or ship be lost. XVI. The last bond to be paid preferably to the others. XVII. A third possessor of the bottomryed things cleared upon payment of value. XVIII. An action for B. demands to be brought within a year and a day after arrival of the ship.
In the Ins. Ordin. of Hamburg, 1731, there are the following brief provisions only: Title 9. Of assurances upon money lent upon goods going by sea and B. I. When any person lends money on B. he may make his assurance to the full, for principal, int., and prem. II. Whoever insures upon B. is free from all average, and not liable to contribute thereunto.
Among the forms ordered by this Ordin. to be "pub. in print, in the German language, and whereof everybody is to make use in assu.,' was the following:
.. or any
Policy for money lent at B. on a Ship, or Goods, or Freight.-We, the underwritten assurers, for ourselves and heirs, assure unto each of us for the sum underwrote by him hereunto, upon receipt of... prem, upon B. money, which he has advanced on the bottom of the ship [or upon goods, and likewise the freight shipped on board of the ship] called the whereof other is master, from where she is to unload and discharge her cargo; Pray God conduct her in safety! We take upon ourselves the danger and risk of all accidents and misfortunes which may befall or happen to this ship [these goods], to the whole or part thereof, in any shape whatever during this present voyage; whether it be by perils of the Sea, Storms and Tempests, Shipwreck, Running ashore, being Sailed over, Fire, Carelessness and Steering Wrong Courses, Arrests and Restraints of Kings, Princes, or Republicks, being taken and carried in by Enemies, Reprisals and Confiscations, forcible Plundering of Privateers or Pirates, Mistakes or Bad Conduct of the Master and his Mariners, and by any manner of accident, whether to be imagined or not, from the Day or Hour that this Ship did begin to take its cargo or ballast on board [that the goods on which the money is lent are carried from the shore on board of .] till it is arrived at . . ., and has there discharged her whole cargo. We put ourselves entirely in the place and stead of .., to keep him harmless from any loss; and we promise, in case any misfortune or damage should happen to this ship, or these goods the money is lent upon, or to the freight, by the above-mentioned, or any other manner and means, that we will pay to. . the sums by us respectively underwrote hereunto, or such part thereof as shall be sufficient entirely to indemnify him, with all his extraordinary expenses, within two months after due notice has been given, that the requisite proofs exhibited of the loss or damage, and this fairly and justly without any contradiction.
We accordingly submit ourselves to the Ordin. relating to assu. and averages of this City of Hamburg, with all the clauses and conditions thereof, as well as printed, as those added hereunto in writing, which last are esteemed at least of equal value, if not preferable to the printed ones. For the true performance whereof we bind all our goods and chattels without any fraud or deceit. Thus concluded by ..., Sworn Broker. Hamburg, the [day of], etc.
By the Ins. Ordin. of Bilboa, approved and confirmed by King Philip V., and the Royal Council of Castile, A.D. 1737, there is a special division treating "Of the contracts of money on goods that are given on B., or risk of a ship; and the form of the bonds." It commences as follows:
I. As it is usual in this commerce to give and take money and effects on B., or risk of ships, for certain int. or prems. upon ships' bottoms, apparel, provisions, arms, and other necessaries for a voyage or voyages, or upon goods or effects loaden in them for any ports and voyages, with condition that the ships arriving at those they are bound to, the lenders are to remain free from the risk of such sums for the recovery of their principals and prems. at the time agreed on: It is agreed and commanded that in such cases they make writings, or contracts before notaries public, or between the parties, by means of a broker, or without him, according as it has been or is customary; with the contracts, clauses, and circumstances, in which they shall agree, and covenant; and that to the one, and the others, entire faith and credit be given.
Clause II. provides that not only the ship and appurtenances, or goods, but the freight shall be hypothecated in favour of the lender.
III. No more than three-quarter parts of its value may, for any motive, be taken at B. on the body and keel of the ship, appraising it by skilful men, named by the borrower and lender; on penalty that on acting to the contrary, and it being opposed by either of the two, it shall not be heard, nor admitted in judgment.
IV. Neither on goods loaded may it exceed the value that they shall have in the port where the risk shall begin to run, on penalty that if the contrary be proved, the borrower shall pay the principal sums and their prems., although the loss of the said goods should happen.
V. Neither may money, or effects taken on B., or risk of ship, upon freight, or sailors' wages, when they shall be in voyages regulated by months; but it may be given to the captains, officers, and sailors, that shall sail to the whale and bacallas fishery; the captain's intervention and consent preceding for what regards the seamen.
Sec. VI. provides that no person shall advance money on B. in the port to which the ship belongs, except in cases where, there being joint owners, any one or more shall refuse to contribute his or their proportion for necessary repairs. VII. When any person has lent on B., and neglected to recover, any such loan obtained for a subsequent voyage shall have priority. VIII. Where goods suffer damage from their own bad quality, or from neglect, the lender on B. not to suffer for same.
IX. In regard that all jettisons, ransoms, compositions of ships, masts and rigging cut away for the common good of ship and cargo, and whatever else is comprehended in a gross average, always results to the advantage of him who shall have given money on them at B.; it is ordained, that he or they
ought to contribute in these cases to the payment of the pro rata that shall touch them, but not to single averages, unless the contrary shall have been agreed on in the instrument or contract, as is expressed in the preceding number.
Sec. X. contains provisions as to time such contracts are to run, when same not noted in contract. XI. În case of loss, shipper to prove that he had the goods on board. XII. When all the goods against which loan obtained be not taken on board, contract to be modified. XIII. In case of wreck of ship, salvage of ship or goods to belong to those advancing on same at B. XIV. In such case the lenders on B. to be preferred to the insurers. XV. All writings and contracts to be extinguished in case of loss of ship or goods. XVI. With a view to "avoid lawsuits and differences which are wont to arise between those who give and those who take money on goods and B., or risk at sea, forms of policies are given. That for a loan on a ship is different from those already given, and hence we quote it as follows:
Be it known that I, . . ., inhabitant of .. , owner or captain of the ship named . . ., of the burthen of.... tons, that is now riding and anchoring in , say, that forasmuch as I have borrowed of... inhabitant of..., £. ... to make a voyage to . . ., and for that purpose and its expedition he has given and lent to me, of which I declare myself contented and possessed, as having received it, and it being passed into my power, really and effectively, in good common and current money (upon which, its delivery not appearing now, I renounce the exception of the Non numerata pecunia, Laws of the delivery and proof of its receipt), carry them at the risk of the said who gave me them upon the said ship, and upon its rigging, sails, anchors, guns, ammunition, and the other appurtenances, freights, and profits, and of the most certain and secure that shall be saved of the said ship from the sea in winds, storms, fires, enemies, corsairs, and other bad people and risks that may supervene from the time of the said ship's getting under sail, and going out of the aforesaid port where she is, in prosecution of her voyage, until she arrives at that of . . ., and being in it in safety, and twenty-four natural hours passed after anchoring, the said risk shall cease; and then I oblige myself to pay to the said .., and to him that shall have his power or order, or shall represent his right, the said £ in good current money on . . . or before, if the said ship shall have arrived before at the aforesaid port of . . ., because from that time the term ought to be deemed finished. And for said sum, and the charges of recovery, he may serve me with an execution; with this writing and his oath, to which I yield, releasing him fromany other proof; for the performance of which I oblige my person and estate which I possess, or may acquire; and I especially and expressly hypothecate said ship, sails, rigging, guns, ammunition, and the other appurtenances and freight, that the whole may be subject and obliged; and it may not be sold nor disposed of, until this debt be satisfied, and what shall be done to the contrary is not valid; and this special obligation does not derogate nor prejudice the general, nor on the contrary: and I give power to the Justices of His Majesty, etc.
Then follows the notarial certificate of submission, renunciation, etc., etc.
In another sec. of the Ins. Ordin. for Bilboa, dated the following year, 1738, we find the following:
Neither may any person get the sum assured that he shall take on B. on pain of nullity; but the person or persons that shall lend it may, for the bare sum which they shall have advanced, without including the prems. they have received for it, under the same penalty.
The Ins. Ordin. of Amsterdam, 1744, in setting forth the purposes to which ins. may be applied in that country, says:
XIX. Also ins. shall be permitted to be made on monies given by the ins. to a mariner, master, or other person navigating on any voyage on B., or adventure of a voyage, with the prem. included, provided the sum of money which is paid on B. be inserted in the pol., as also the prem.; otherwise the cap. only shall be understood to be ins.
The ins. shall, in case of loss, either by the ship's being cast away, taken or detained by friends or enemies, and her being missing a year and a day, not be obliged to produce any other proof, but only of the misfortune befallen the ship; and concerning his interest only his B. B.; provided the ins., on being paid, make over to the underwriter all claim on the taker on B., and deliver up to him the writings thereto belonging.
The ins. shall be obliged to insert in the pol. the name of him to whom the money on B. is given, also the name of the ship with which the taker on B. shall navigate, the name of the master, as also whither the ship is bound, on pain of nullity.
If during the voyage the same is altered by the master, not by means of the taker of the money on B., the underwriter shall, notwithstanding, in case of loss, be obliged to pay his engagement.
But the money on B. being given to the master, and the voyage being altered by order of his owners, the ins. shall be obliged, as soon as he receives knowledge thereof, to give notice to the underwriters, and agree with them concerning the altering of the prem., or leave the said altering to the arbitration of the Commissioners; otherwise the underwriters in case of loss are not obliged to make it good, the insured retaining his action only against the master, as receiver of the money.
XX. A master being on his voyage and receiving damage on the hull, or otherwise, and being obliged for the repairing or restoring of his ship, in order to proceed on his voyage, to negotiate money on B. on his ship, the giver of the money shall be permitted to cause the amount of the said B., with the prem., to be ins., although it should happen to appear that the owners, or some of them, had caused the ship, or his share in the same, to be ins. before or after.
XXI. Ins. made upon goods which at the place of their lading, or any where else, are charged to the full with B. are declared null, and of no value; with forfeiture of the prem. for the underwriters, and with penalty of arbitrary correction. But the taker on B., in case he ships more goods than the capital taken on B. doth amount to, may cause that overplus, as also for the gross average, to be ins. The giver of the money or the holder of the B. B. may also ins. his interest to the full, with the prem. thereof; provided that in all the bills of lading, or manifests of the lading, the taking and receiving the B. money on the said goods be particularly inserted, with mention of the date, the place from whence, the person to whom paid, and for whose account. This is only to be understood of money given in this country, and from the American Colonies, etc., to this country; but the ins. being made from other places, the tenor of the B. B. must be observed.
But in case the order of ins. was previously given by the lader, or it was already executed, the taker of the money shall be obliged to transfer by assignment the right to the said pol. or ins. to the holder of the B.; and in default thereof the insurer shall not only be deprived of his demand on account of the said pol., but his prem. paid be kept by the underwriters.
Ins. made on B. on goods is free of all gross average and diminution of value by their own waste. VOL. I.