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taken on B. of ship and cargo together can only be applied to the common benefit of ship and cargo, and must belong to the first class. Money advanced upon a cargo, whether made at home or abroad, must clearly belong to the second class. Money that might be required to be advanced in a port of necessity, to be applied for sole benefit of the cargo, would belong to the first class.
In 1828 Mr. F. L. Holt, Q.C., pub. A System of Shipping and Navigation Laws of Gl. Brit., and of the Laws relative to Merchant Ships and Seamen, and Maritime Contracts. The author says:
The contract of B. and R. seems to deduce its origin from this necessary authority of the master; and although this contract has been the subject of very learned investigation in several treatises on the law of maritime ins., it must not altogether be omitted in the present place. But previous to this inquiry, it will be necessary to say a few words on the form of the instrument of hypothecation. When the master hypothecates the ship abroad, there is no settled form of contract to use on these occasions; sometimes an instrument in the form of a bond (then popularly called a B. B.), at other times a bill of sale; at others instruments of a different kind are employed to hypothecate the vessel. But whatever the nature of the instrument be, it ought to express the occasion of borrowing (for example, to repair the ship, to pay Customs duties, etc.), the sum, the prem., the ship, the names of the parties, the voyage, the risks to be borne by the lender, and the subjection of the ship itself as security for the payment of the moneys advanced. We have already observed that this security being in re, the lender, by the universal maritime law of Europe, has a right to have recourse to the ship itself for repayment.
The process of recovery is the following:
Upon the arrival, therefore, of the vessel in her home port, if default be made in payment of the money borrowed, the lender may obtain a warrant from the Court of Admiralty to arrest the ship, upon an affidavit of the facts, and may cite all persons interested to appear before the Court. This citation is generally made by posting a copy of the warrant upon some part of the ship. The Court of Admiralty may decree a sale of the ship, and distribute the proceeds to the different claimants; and the absence and default of the owners will be no impediment to the proceedings of this Court; for if it were admitted that no decree could be made unless they should appear, a failure of justice would frequently occur. This proceeding in rem against the ship itself is the proper and peculiar province of the Court of Admiralty. The Courts of Law have no such power; their proceedings are entirely personal, and they have no authority to adjudge a delivery of the ship in specie.
Mr. David Hughes, in his Treatise on the Law relating to Ins., also pub. 1828, treats of B. and R. We do not discover anything calling for special note.
In the case of Simonds v. Hodgson, which was before our Courts in 1832, the facts were these: It was an action on a pol. of ins., and the plaintiff in his declaration alleged his interest to be bottomry, setting out the bond, in which there was the following clause :
I do further bind myself and schooner-brig Clarence, her freight and cargo of every kind, to the full and complete payment of the said sum, with all charges thereon, in eight days after my arrival at the afore-mentioned port of Lond.; and I do hereby make liable the said vessel, her freight and cargo, whether she do or do not arrive at the port of Lond., in preference to all other claims, until such sum, with 12 p.c. bottomry prem., be paid.
The Court of Common Pleas, upon demurrer, decided that it was not bottomry, and gave judgment for the defendant. The case being brought by writ of error before the Court of King's Bench, the judgment was reversed, and Lord Tenterden said:
We are all satisfied that our judgment must be for the plaintiff. Of course no person can be entitled to the periculi pretium, who does not take upon himself the risk of the voyage: but it is not necessary that his doing so shall be declared expressly and in terms, though this is often done. It is sufficient that the fact can be collected from the language of the instrument considered in all its parts. In this case, if the words "instead of 8 days after my arrival," had been " 8 days after my ship's arrival," there would have been no doubt that the lender took upon himself the peril of the voyage, if there be not in some part of the instrument some matter denoting a contrary intention. Now the personal arrival of the master, unconnected with the ship, is a matter that cannot be supposed that either party contemplated. It cannot be supposed that the lenders looked to him personally, or to his personal means, nor that he intended to pledge himself personally and absolutely for the payment, without regard to the means by which he might be furnished by the ship and her freight. We, therefore, are of opinion that the words "my arrival" must be understood to mean "my arrival with the ship," or "my ship's arrival." With respect to the words, "I do hereby make liable the said vessel, her freight and cargo, whether she do or do not arrive at the above-mentioned port of Lond.," we think these words were intended to provide only for the ship's arrival in some other than the destined port; and in such an event to give the lenders a claim on the ship in preference to other claims. It cannot be intended to provide for the case of the loss of the ship, because, in that event, there would be nothing on which a pledge could operate, or a preference be claimed.
In 1841 Mr. James Reddie pub. An Historical View of the Law of Maritime Commerce; wherein he expressed a very confident opinion that the practice of advances upon B. and R. led to the invention of marine ins. in the present sense. He is of opinion that it was to the want of accumulated cap. in the hands of individual shipowners and merchants, combined with the perils to which their maritime commerce was exposed, which chiefly led to the prevalence among the Greeks of Fænus nauticum, B., and R. "In the practical exercise of this contract the theory of maritime risks came to be pretty extensively unfolded, as it was a species of investment or adventure very frequently resorted to by fathers of families, who had thereby the chance of reaping large profits. The Romans studied the practices of the Greeks, and adapted them to their own requirements. "That the Romans should have been so well acquainted with a contract so nearly allied to marine ins., and yet should not have practised the latter contract itself, is rather difficult to be accounted for."
In 1845 Mr. Francis Hildyard pub. A Treatise on the Principles of the Law of Marine Ins.; in which he briefly treats of B. and R.
In 1848 Sir Joseph Arnould pub. his Treatise on Marine Ins. The work is one of high authority. It treats but incidentally of our present subject. "Loans on B. and R., though themselves a species of ins., may yet be the subjects of ins., inasmuch as they are an interest exposed to risk from the perils of the sea. The lender alone, from the nature of the contract, can ins. the sum advanced."
In 1851 Mr. Frederick Hendriks contributed to the Assu. Mag. some most excellent papers, Contributions to the Hist. of Ins., etc., which must have opened the eyes of many students to the fact that ins. had a hist., and a very instructive and remarkable one too. In the pursuit of his subject he was naturally led up to the question whether ins. was practised by the nations of antiquity; and hence he came upon B. contracts and R. loans. He carefully reviewed the whole question; and finally, after comparing the B. contract of the Greeks with that now in use, sums up as follows:
The similarity throughout in the nature and principles of the preceding ancient and modern forms of contract is too obvious to require a recapitulation of their particulars. All that our present inquiry will require is that we should put the question to ourselves, whether under these circumstances the ancients had ordinary need of any other form of ins. On every consideration, does not the contract which they made use of seem completely suitable to the wants of their commerce? To the borrower or assured it supplied a trading capital, and a pol. of assu. without doubt or danger, as the sum assu. was in his own hands, exigible in the event of a fair claim arising. To the lender or assurer it gaveas has been before remarked- a profitable investment, over which mercantile usage, if not statute law, afforded proper control, by public registry of the transactions, power to appoint a supercargo, and strict enforcement of other stipulations in his favour. I think it will be agreed that the pecuniary terms of such contracts could not have offered an impediment to their habitual use by the merchant of those days. The prem. (as we here term the profit beyond the ordinary rate of int.) was computed according to the time occupied by the journey; and in the Justinian Code this extra rate on nautical risk was limited to 6 p.c. p.a. above the ordinary rate on loan. Before the promulgation of that Code the nautical interest was unlimited, as in Greece; and although the terms in the example from Demosthenes may at first sight appear comparatively high, it will not be so when viewed with reference to the very high ordinary rate of int. which prevailed at the period in Athens. The prem. system of marine ins. could hardly have been desirable for any reason, when the merchant could habitually obtain advances in the above form on nautical interest; for even assuming that his capital was large, and that the loan was consequently a burden, there was the ancient method of banking to relieve him; and he could re-invest its amount with the Argentarius, who allowed interest on the deposit at the common rate-thus reducing the merchant's or shipper's outlay to the bare differential interest or premium of insurance.
In 1852 Mr. W. S. Lindsay pub. Our Navigation and Mercantile Marine Laws; considered with a View to their Revision and Consolidation, etc. The author, and he was a man of wide experience, said:
It is highly desirable that the whole law on this subject should be re-adjusted and simplified. At present so many difficulties are thrown in the way of the recovery of his debt by a party lending on B., in consequence of the most unnatural or improper jealousy with regard to those hypothecations felt by the Judges of our Admiralty Court, whose duty it is to take cognizance of them, that, as a general rule, it is not easy for a master to obtain advances on such security, except at the most exorbitant rates of prem.
In 1853 Messrs. Maude and Pollock, Barristers-at-Law, pub. A Compendium of the Law of Merchant Shipping, etc. In the chapter on "Hypothecation" will be found some very useful information on B. and R.; with reference to some of the then latest cases: Where a Brit. ship [the Gauntlet] was carried into a foreign port in the possession and under the control of a mutinous crew, and expenses were incurred by a person employed by the Brit. Vice-Consul to investigate into the mutiny and restore the master to his command, the Court of Admiralty supported a B. B. given by the master to cover these expenses.
In the case of Stainback v. Shephard, which was determined in 1853, it was decided, that as the master has no authority to hypothecate the ship, unless the payment be made to depend on the safe arrival of the ship, that the holder of a bottomry bond, not containing that condition, has no insurable interest.
It is provided by most of the Ins. Ordin. that the master of a ship shall not take up money on B. in places where the owners dwell, unless he is a part owner, and in that case he may take up so much only as his part will answer in the said ship. If he exceeds that, his own estate shall stand liable to make satisfaction. It has been more recently held that if communication could have been had with the owner by telegraph, a B. B. given in the absence of such communication is void.
In the General Conditions of Marine Ins., 1867, based upon the German General Mercantile Law, "and adopted as the result of the deliberations of competent persons in the North German seaports," an authorized translation of which into English was pub. in 1868 by the Hamburg Chamber of Commerce, we find the following regarding B. :
26. Moneys advanced on B. may be ins. on account of the B. creditor together with the B. prem., but not including the prem. of ins. In case of an ins. on B. moneys, should it not have been mentioned what objects are bottomried, it should be considered that the B. advances are ins. upon ship, freight, and cargo. If the whole of these objects have not actually been bottomried, the assured may only claim against the underwriter, so far as, even with the addition of the objects not included in the B. B., the B. claim would not have been covered. The assured shall produce evidence on this point. 41. When in case of an ins. on B., it is not notified that the same is given upon a ship in ballast, or that the B. B. has been signed on account of an old debt having arisen before the commencement of the insured voyage, then the ins. is void against the underwriters, and the prem. forfeited.
112. A total loss with regard to B. or average-money occurs when the objects which have been bottomried, or for which average-money has been advanced or expended, have been subjected either
to total loss or to other incidents in such a degree that, in consequence of injuries, hypothecations, or other liabilities thereby occasioned, nothing has been left to cover such money.
139. In case of partial loss on B. and on average-money the damage consists of the deficiency resulting from the fact that the object bottomried, or upon which average-money has been advanced or expended, may from subsequent accidents have become insufficient to cover the B. or the average-money. We regard these general conditions as of the highest practical value.
When a master or owner of a ship takes up money on B., and buys in lading, but endeavours to defraud the Prince or State of their customs, or puts such goods on board as incur the forfeiture of the ship, in such case the borrower alone runs the hazard-not the lender. And where bonds or bills of B. are sealed, and the money is paid, if the ship receives injury by storm, fire, enemy, or any other accident, before the commencement of the voyage, then the person borrowing shall alone run the hazard, unless it be otherwise provided by the special wording of the contract, to the effect that it was to begin from the date of sealing. But if the conditions be that the ship shall sail from Lond. to a port abroad, and shall not arrive there, etc., then, etc., the contingency begins not until the departure.
The contract both as to Bottomry and Respondentia loans must always be in writing. The deed, or instrument, is sometimes made in the form of a deed-poll, called a Bill of Bottomry; sometimes in the form of a bond or obligation, with a penalty, called a Bottomry Bond. It seems to us that inasmuch as the ship alone is liable under the loan of Bottomry, properly so called, a bond should never be required or given. In a loan on Respondentia the case is different, for the advance being upon the goods and merchandize, it may well be required of the captain that if he dispose of or reduce these from any cause, he shall either replace them, or be answerable for the consequences. It is quite certain that any personal undertaking to repay the advance would have brought the transaction within the Usury Laws while they were in force. And in some parts of the world, including the U.S., they still remain in force.
Whatever the form of the instrument of security given, it must contain the names of the lender and the borrower; those of the ship, and the master; the sum lent, and the stipulated int.; the voyage proposed, with the time of commencement, and the duration of the risk which the lender is to run. It must show whether the money be lent upon the ship or among the goods on board, or on both. Indeed, all the stipulations of the contract must be distinctly and clearly shown. The form varies slightly with local circumstances and customs. Those already given in this art. show sufficiently, in the light of the above requirements, the nature of the document.
The law-books abound with cases arising under contracts of B. and R.; and additional points from time to time yet arise. The cases we have quoted are intended to give the reader a comprehensive grasp of the subject; but it must be remembered that this is not a work on practical law, brought down to the latest date. [FENUS NAUTICUM.] [PECUNIA TRAJECTITIA.] [RESPONDENTIA.] [USURA MARITIMA.] BOTTOMRY, BILL OF, is a contract between two persons, the one borrowing and the other lending a sum of money, by which the borrower, setting forth his intention to make a voyage in a certain ship therein named, acknowledges the receipt of a certain sum of money from the lender on this condition: that if the ship does happily perform her voyage without any disaster by enemies or otherwise, then he is to restore that sum to the lender, with an add. sum therein expressed for the int. within a certain time after his return; but that if the ship be lost, or taken by enemies or pirates, then the person of the borrower to be for ever discharged, and the lender to bear the loss. See obs. on the form of contract in the preceding art., and also the forms of B. Bills there given. BOTTOMRY BOND [short B. B.]. The legal instrument usually designated a Bottomry Bond hardly warrants that designation, for reasons stated at the close of our art on BOTTOMRY. A BOTTOMRY BILL appears the more correct designation. [RESPONDENTIA.] BOTTOMRY PREMIUM-A high rate of int. charged on the safety of a ship, the lender losing his whole money if she be lost.-Smyth. We have discussed the incidents of this prem. in the preceding art. on BOTTOMRY.
BOUCHER, GEORGE, head of Country Department in Atlas, in which Co. he has held various positions of trust and responsibility for more than half a century --having entered the office in 1820. He is a type of the old school of officials, whose like we shall never see again. BOUCHER, MONS. P. B., pub. in Paris in 1808, Consulat de la Mer, ou Pandectes du Droit Commercial et Maritime, a work bearing upon marine ins. This work, which never enjoyed any reputation, has been entirely set aside by that of Pardessus.-McCulloch. BOUGHT AND SOLD NOTES.-The practice of licensed brokers is to keep books wherein they enter the terms of any contract they effect, and the names of the parties. In cases of loss by fire these books become important mediums of evidence. BOULAY-PATY, MONS. P. S., pub. at Rennes, 1821-23, Cours de droit Commercial Maritime d'après les principles et suivant l'ordre du Code de Commerce; or the Law of the Commercial Marine. A work of very considerable merit and learning, and which we have had occasion to quote in these pages. Another ed. was pub. in Paris in 1834; he also edited an ed. of Emerigon, which was pub. at Rennes in 1827.
BOULT, SWINTON, Man.-Director of Liverpool, Lond., and Globe, which we believe may
be correctly designated the largest F. Ins. Co. in the world. We have, after some years of obs., come to regard Mr. Boult as the very Napoleon of F. Ins. He commenced ins. bus, in 1831, being then associated with Mr. Geo. Booth in agencies in Liverpool for the Albion L. and Protector F. offices. In 1834 the last-named Co. closed most of its Liverpool agencies, and soon afterwards disappeared from the scene. Mr. Boult then became agent to the Lond. Assu. Corp.; but in 1836 occurred the event which has shaped his subsequent course of life: he founded the Liverpool F. and L. Ins. Co. This Co., in 1848, assumed its better known name of the Liverpool and Lond.; and finally, in 1864, became the world-wide Liverpool, London, and Globe.
Mr. Boult became the Sec. of his new Co. The only feature of his early management which it seems necessary to note, is that it was entirely free from all push and dash. He has been often heard to say that up to 1844 the Co. did not possess 20 working agents. We think we can fathom his policy in this. Liverpool had not, at that date, been a successful field for F. ins. enterprise. The experience of Lond. as well as provincial offices had been alike disastrous. So well was this fact known, that when he founded his Co. the press assailed him for inviting subs. to an enterprise which could but fail; as indeed two previous Liverpool offices had failed. Mr. Boult determined to feel his way quietly-he was nursing a young giant ; and he knew it.
The years 1842-3 are celebrated in the annals of Liverpool for the number and destructiveness of their fires. The shareholders in the infant Co. were threatened with ruin. Friends urged them to sell out. Rival offices, or their agents, with a natural instinct, fanned the flame of discontent. But these latter were inconsistent: for they continued to seek new bus. for their branches and agencies-thus endeavouring to extend their hold upon this same Liverpool bus. which they, in the hope of exterminating a rival, so loudly decried. There can be no doubt that the fate of the Co. hung upon the balance.
It was at this juncture that the character of the man at the helm became manifest. It has never been determined, even by our most able historians, whether great men cause great events, or great events produce great men. We are disposed to think the events, and the men, act and re-act upon each other. The result in this particular instance was that the young Sec. determined for himself a course of action. He resolved to apply himself (1) To ascertain the causes of the fires in Liverpool; (2) To secure their diminution. It was this inquiry which enabled him to embody in a report the germs of those provisions, which were afterwards embodied in the Liverpool Fire Prevention Act-and which Act has proved of much advantage to the town, and the entire commercial community.
It must not be supposed that these measures were perfected without a struggle with those competitors who now discerned the supremacy which the successful solution of some of the difficulties here involved would afford to the now rising Co. Yet were not these measures for the common good? The North British Co. threw in the weight of its influence with the local Co. The other offices, in the end, followed. The victory on his own ground gave Mr. Boult an influence which he has never ceased to exercise for the common good. Let us try and recount a few instances, viz.: The introduction of a tariff, based upon the principle of rating improved risks in the degree of their improvement. The application of a tariff to cotton mills, based upon the principle of the "numbers spun," i.e. the degree of fineness of the threads produced-a principle maintained to the present day. In the preparation of this last tariff we have heard Mr. Boult say that he was materially assisted by his then Manchester agents, Messrs. Ewart and Co. From this period the present tariff system takes its date. [TARIFF.]
Again, Mr. Boult was the originator of the Liverpool Salvage Committee. This was the first combination of the kind ever introduced, and its success has been most marked in the services it has rendered to the F. ins. cos. [SALVAGE, FIRE.]
The division of the country into districts, and the appointment of a committee of the offices to take charge of the tariffs in each district, originated with Mr. Boult. He was elected Chairman of the Northern Committee, which position we believe he still occupies. It has been more particularly in connexion with these committees that his wonderful practical knowledge of the details of the bus. of F. ins. has made itself most impressively known.
One of his more recent services has been the securing the introduction of a uniform fire pol. for the tariff offices. This was certainly equally required in fire as in marine ins., where it has proved of the very first importance. Such a change takes time to develope into perfect working. We trust Mr. Boult will nurse this project until that state of things has been accomplished.
Having followed Mr. Boult through those labours which have conduced to the common good of all F. offices ins. mercantile risks, we now return to note his operations regarding his own Co. He had made himself master of all the more important details of home F. bus.; but the necessities of Brit. commerce carry Brit. F. offices into risks located in other climes. These wider fields of enterprise came within the grasp of Mr. Boult's ambition. He made the circuit of the globe-we do not mean the Globe he afterwards conquered; he applied his practical experience to the altered circumstances of the varying countries; and there is not at the present moment any one spot on this planet wherein
the interests of commerce have become predominate, in which either his own name, or the name of his Co., and more prob. both, are not known-and respected, or feared, as the case may be.
Mr. Boult at one period became the champion of amalg. in F. ins. offices; and carried out various combinations of this character on a grander scale than any before or since. Some of his compeers voted him a little mad upon this point at the time. We ventured then, as now, to assert that his madness had a method in it. We shall speak more in detail of these combinations in our hist. of the Co. We here deal with the motive power only-the man. It is enough now to add that whereas the first year's income of the Co. did not exceed £10,000, the last year's income  from F. prems. alone was about £1,250,000! And although fully one half of this princely sum was required to meet the loss resulting from one single casualty-the Chicago fire-yet no other loss remained delayed one single hour in consequence. The Co. nobly sustains the shock. Its founder stands serene at the helm.
Mr. Boult has of late years expressed himself as strongly opposed to the system of re-insurance in F. bus. His argument is that no office should take more on any one risk or combination of risks than it means to retain. Are not others coming round to the same view?
Mr. Boult has pub. various pamp. and papers on subjects connected with joint-stock COS., political economy, currency, and ins. It is only the latter we can here notice. He has also given evidence before various Parl. Committees-notably that of 1867, on Fire Protection, on which occasion many of his statements were so important that we propose to give a brief synopsis of them here; and to recur to more specific points of the evidence under various heads hereafter. The sledge-hammer style of delivery, occasionally toned down by a characteristic sarcasm, cannot be entirely reproduced on paper.
He handed to this Committee certain statistical tables regarding fires in Lond. [LOND., FIRES IN.] The increase of fires returned as suspicious, doubtful, or unaccounted for, was, he said, no less than 14 p. c. between the years 1863 and 1865. Jute fires took place in Lond.; cotton fires in Liverpool. Many of such fires were the result of incendiarism, to conceal theft. In the Liverpool warehouses the carrying of lucifer-matches, or pipes, was strictly forbidden. Two policemen had then recently taken from the men no less than 590 pipes. He did not attach so much importance to the practice of smoking. He thought a Fire-Marshal would be the best officer to conduct inquiries regarding the origin of fires. He (the Marshal) should attend all fires personally. Then the following dialogue ensued:
Do you think that ins. cos. are as careful as they ought to be in taking risks? It does not do for a man to sit in judgment upon his neighbours, but we are as careful as we can be.-What commission do the cos. offer to the agents? That is a very difficult question to answer. It varies from something like 7p.c. up to 25 or 30 p.c.-Now do you think when an office allows an agent to get 25 p.c. that they hold out an inducement for him to take any risk that comes in his way? I should say a very strong inducement.-Looking at all these things together, do not the cos. offer a great many temptations to raising fire? I do not hesitate to admit that the cos. have to thank themselves for a great part of the evil they have suffered from of late years.-The cos. are much disinclined to prosecute, are they not? Some are. We feel that we have scarcely a fair chance. There have been more prosecutions within the last 12 or 18 months on the part of the offices than I have known for a long period.-Then seeing that the cos. are so careless in taking risks, and that it is the interest of the agent to take anything, what would you recommend us to do with such a class of men? You must leave the cos. to take care of themselves. You have to legislate for the public, and you can do nothing more effective than instituting an inquiry for the purpose of stopping fires. There has been so large an infusion of fires which are not accidental, which are wilful fires beyond all question, that it is impossible for the prems. to meet those cases.-Are you not aware of cases in which goods under the Customs lock and key have been stolen? I am aware of cases where whole cellars have been emptied of goods under the Customs lock and key.
Regarding the difficulties of the offices in getting a proper prem. for mercantile risks, Mr. Boult said, “We have heard something of compound householders lately, and we have compound directors: merchants who are sometimes directors of ins. cos. and dock Cos. as well." The point of these answers was well understood by those most interested. In 1870 Mr. Boult pub. Obs. on a Bill to Amend the Law relating to Life Assu. Cos. He expressed himself opposed to any new legislation in this direction. He considered that the past legislation was responsible for many of the evils which had occurred a view concurred in by many.
In 1865, after 30 years of most assiduous service to his Co., Mr. Boult was elected, by the voice of his associates, to the proud position of Man.-Director. We wish him long
life, and health and strength in his labours. Will not the entire ins. community on either side of the Atlantic gladly exclaim, Amen and Amen?
BOURNE, THOMAS, Man. of National Guardian (No. 2) from its commencement in 1865. He was Sec. of New National from 1854 to 1864.
BOWMAN, JOHN, was Sec. Life Association of Scotland, for some years preceding 1850, when he retired from ins. bus.
BOWRING, SIR JOHN, while Plenipotentiary of Gt. Brit. at Hongkong in 1855, addressed a letter to our Reg.-Gen. on The Pop. of China, containing some facts of great interest, which we shall mention under CHINA, and POPULATION.
BOWS OF A SHIP.-The two sides of the fore extremity of a vessel; as the starboard and larboard bows.