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Emerigon, in his learned Treatise on Assu., pub. 1783, took the same view as Pothier regarding the legality of the contract of B. His reasoning is at once clear, learned, and conclusive:
All our authors agree that the contract of maritime loan is lawful. It has been authorized by the Ordin. [of France]. It has a character and nature proper to it. I lend to Pierre 1000 crowns at a maritime int. of 12 p.c. for a voyage. If the voyage is fortunate, he is to repay me the principal and the stipulated int. If the vessel perishes, Pierre is discharged from the whole obligation. My capital then is at risk. I wish to have it insured. It is apparent that this ins. cannot be subs. by the borrower himself; for it is only in consideration of the maritime risk, from which he is discharged, that he has promised me an int. of 12 p.c. more or less. If he should become my insurer, the essence of the contract would be destroyed between him and me; and it would be only a masked usury.
But nothing prevents my effecting ins. on my cap. with a third party. This injures in no respect the principles of my contract with Pierre. In case of safe return, I shall have my cap. and the int.; but shall lose the prem. earned by the insurer. If the vessel perishes, I lose the maritime int., and the insurer will reimburse to me my cap., less the prem., and also the tenth. [Under the Maritime Ordin. of France ins. might only be made for nine-tenths of the value.] One cannot discover in all this any trace either of usury or of unlawful agreement. Such is the doctrine of the authors cited, and also of Ansaldus and Scaccia.
It is a species of re-insurance to which the lender has recourse, to remove from himself to a third party the maritime risks for which he is bound towards the borrower. Here is a case however not exempt from doubt: I advance you on maritime loan 100 crowns on condition that if the ship perishes you shall repay me one-half of this sum; but if the ship arrives you shall pay me my entire cap., and 20 p.c. maritime int. Silvestre maintains this contract to be usurious, because one and the same person cannot be borrower and insurer for the same object. Roccas says, on the contrary, that the contract is lawful, because the perils become common to both parties: Quia uterque se exponit incommodo.
I do not believe such a doctrine has been adopted among us. The nature of the contract is opposed to it. It would be intolerable that the borrower, who, by the shipwreck, has lost all that he had in the ship, should remain debtor for part of a debt, on which the maritime int. had been stipulated in consideration of the maritime risks to which the lender is subjected by force of law. It is quite enough that the latter is permitted to effect ins. on his cap.
In different countries of Italy it is permitted to advance sums on maritime loan, with the clause voto per pieno [empty for full], that is to say, with agreement that if the ship arrives safe, the cap. and the maritime int. shall be paid to the lender, though the borrower may have laden nothing on board; and that in the contrary case, the borrower shall be released from all obligation; this is a species of wager. If the lender has effected ins. on his cap., and the ship on which the borrower has laden nothing perish, the insurers will be discharged, unless, says Casaregis, the ins. has been made in form of wager; which, he adds, is forbidden in Genoa.
In Italy the lender may effect ins. not only on his cap., but also on the maritime int.
Although the decision in Glover v. Black has always been upheld, yet in a subsequent case before Lord Mansfield-Gregory v. Christie―decided in 1784, it was ruled that money expended by the captain for the use of the ship, and for which respondentia int. was charged, might be recovered under an ins. in "goods, specie, and effects," provided the usage of the trade, which in matters of ins. is always of great weight, sanctions it. This case was an action upon a pol. of ins. on "goods, specie, and effects," of the plaintiff who was also the captain, on board the ship; the plaintiff claimed under that ins. money expended by him in the course of the voyage for the use of the ship, and for which he charged respondentia int. Lord Mansfield said to the question whether the words "goods, specie, and effects," extended to this interest, I "should think not, if we were to consider only the words made use of. But here is an express usage which must govern our decision. A great many captains in the East India service swear that this kind of interest is always ins. in this kind of way. I observe the person ins. here is the captain."
In 1786 Del Signor Baldasseroni pub., in Florence, his famous work on Maritime Ins., B., and R., in which was given a collection of the then recent decisions of the Rota Romana, and of the Civil Courts of Genoa, Pisa, and Florence. The learned author was Judge of the Revenue Court of Leghorn.
In 1787 Mr. James Allan Park pub. his well-known work, A System of the Law of Marine Ins., with Three Chaps. on B., etc. This learned writer, following Pothier, says:
The contract of which we treat is of a different nature from almost all others; but that which it most resembles is the contract of ins.; for the lender at B. or R. runs almost all the same risks with respect to the property on which the loan is made that the insurer does with respect to the effects insured. There are, however, some considerable distinctions; for instance, the lender supplies the borrower with money to purchase those effects upon which he is to run the risk; not so with the insurer. There are also various other distinctions.
But however similar they may be in other respects, they differ very much in point of antiquity. We have formerly endeavoured to show that the contract of ins. was certainly unknown to the traders of the ancient world; but it is equally clear that with the contract of B. or R., or what was equivalent to it, they were perfectly acquainted.
Speaking of the differences between B. and R., and recognizing the distinction we have already laid down, viz. that the former is an advance upon the ship, the latter upon the goods, he adds:
But in all other respects the contract of B. and R. 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.
After reviewing various authorities, Park says, "It is of the essence of the contract of B., that the lender run the risk of the voyage; and that both principal and int. be at hazard; for if the risk go only to the int., or prem., and not to the principal also, though a real and substantial risk be inserted, it is a contract against the Statutes of Usury, and therefore void,"
About 1790 Mr. [afterwards Lord] Erskine pub. his Reflections, wherein he ingeniously
accounted for the excessive int. upon these bonds being allowable upon the grounds of trade:
On this principle alone the law allows pol. of ins., bonds on respondentia, and on ships and their cargoes. Exceptions to the general rate of int., founded on the truest spirit of commerce, and therefore vacated on the shadow of injustice or oppression, their end not being to permit artful and enterprising men to grow rich at the expense of fools, or the profligate to riot in misfortune, but to share the burden of human losses among a number, which in great concerns would oppress and ruin individuals; to bid defiance to the elements, the waves, and every accident of life, and by a prudent communication of a share of prosperity, to avoid the possibility of poverty.
Englebrecht, in his Corpus juris nautici, pub. at Lubeck, in 1790, considered that B. loans might be divided into four classes: i. Where the owner of the ship procures the loan before he has ins. 2. Where the party going on a distant voyage is compelled to sell or pledge goods on B. 3. Where the master to repair the damages sustained by the vessel is compelled to take up money on ship and cargo-the whole being previously ins. 4. Where, in a strange port, for prosecution of the voyage, and for the benefit of the ship alone, without the responsibility of the shippers, the master takes up money when the ship is ins. These distinctions are too fanciful. Those of Benecke  are much
As an indication of the niceties which arise under B. loans, we may take the following: If money be lent on ship-board by a merchant or passenger, and before the day of payment the ship happens to be cast away; if there be such a saver as will admit of a contribution, the party lending is not to have his whole money, but it shall come into the average; because if that money had not been so lent, it would have been in common danger with the rest; but if the time appointed were past before the misfortune happened, then the borrower must repay the lender his whole money free from contribution. Therefore many of the Ins. Ordin. provide that in case the borrower detains any money thus lent beyond the appointed time for the repayment, he shall on his return from the voyage not only pay the profit agreed on before, but be also obliged to augment the same according to the longer time accrued since the day of payment.-Chambers.
In 1796 Mr. Francis Plowden pub. his able Treatise upon the Law of Usury and Annu.; wherein he says:
All cases of B. are grounded upon the reality of the hazard, and therefore are not within the Statutes of Usury, and the excessive int. that is allowed to be taken upon such contracts is not permitted in favour of trade, but for the reason already mentioned, and because there are not words in the statutes that reach B. B. This doctrine was most expressly recognized in the famous case of Chesterfield v. Janssen.
In 1802 Mr. Samuel Marshall, Serjeant-at-Law, pub. A Treatise on the Law of Marine Ins., B., and R. These latter subjects were treated of more completely than by any former legal writer here. We can only notice a few points :
Formerly the practice of borrowing money on B. was more general in this country than it is at present. The immense capitals now engaged in every branch of commerce render such loans unnecessary; and money is now seldom borrowed in this manner, but by the masters of foreign ships, who put into our ports in need of pecuniary assistance to refit, to pay their men, to purchase provisions, Sometimes officers and others belonging to ships engaged in long voyages, who have liberty of trading to a certain extent, with the prospect of great profit, but without capitals of their own to employ in such trade, take up money on R. to make their investments; but even this, as I am informed, is not now very frequently done in this country.
This contract is of great utility in a country where the persons engaged in trade have not a sufficient cap. to carry on their foreign commerce, by inducing those unskilled in trade to embark their money in it; and thus is formed a sort of partnership between the lender and the borrower, in which the one supplies cap., the other skill and experience; the one takes upon himself the perils of the sea, and the other compensates by a share of the profits of the adventure. But except in this respect, this contract has no resemblance to a regular partnership—having in it no community of cap., no community of loss.
The analogy between this contract and that of ins. is much stronger. In the one the lender, in the other the insurer, is liable to the perils of the sea; the one receives the marine int., the other the prem., as the price of the risk, which varies in each according to the length and dangers of the voyage. The lender and insurer are in general exposed to the same perils, which have the same commencement and end. Both are entitled to the benefit of salvage, and liable to general average. The marine int., like the prem. of ins., is not due if no risk be run; though this be prevented by the voluntary act of the borrower.
The author of Le Guidon says that there is but little resemblance between the contract of B. as in use in modern Europe, and the Naticum fænus of the Romans. But with all due deference for the learned author of that treatise, it seems to me that, upon an attentive comparison of the one with the other, it will be found that they are still, in principle, the same; and only differ in the forms which modern regulations have given to the contract now in use.
A person indebted to the owners of a vessel cannot lend money to her master on B. He should satisfy his debt, and there would be no necessity for the loan.
The master cannot hypothecate the ship for a debt of his own, nor for a debt incurred in a previous voyage.
Then arises a question of International Law:
In a former part of this work it was shown that no Brit. subject can legally trade with the enemies of the State in time of war; and therefore an ins. upon such trading is void. It was also shown that the ins. of ships and effects of the enemy has, on several occasions, been prohibited by statute; and many arguments and authorities have been adduced to prove that, even at Common Law, such ins. are illegal. It is needless to repeat those arguments here, every one of which applies with equal, if not greater force, to prove that the lending money to the enemy upon B. is illegal, if not highly criminal.
It is a general rule of maritime law that money may be lent on B. or R., on any object which may be the subject-matter of ins. It may be lent on the body, tackle, furniture, provisions, and freight of the ship; upon all or any part of the cargo on board; or upon ship, freight, and cargo.
In 1802, also, Mr. Charles Abbott [afterwards Lord Chief Justice Tenterden] pub. A Treatise of the Law relative to Merchant Ships and Seamen; and therein he treats incidentally of B. and R.
In this same year there was before our Admiralty Court the case of the Hamburg ship Jacob. The question was whether the freight of a subsequent voyage was liable to be attached for a B. B. Sir William Scott (afterwards Lord Stowell) decreed the freight to the claimant; desiring however to be understood, as laying down no general rule for all circumstances, and all cases, where any third party may have become interested in the freight of the subsequent voyage. Most writers, as we have seen, have affirmed that this could not be done.
This learned Judge remarked on this occasion, "The disposition of this Court would certainly be to uphold the efficacy of bonds of this nature, as far as is consistent with law. They are bonds of great sanctity, and highly necessary in mercantile affairs."
In 1808 Mr. Annesley pub. A Compendium of the Law of Marine Ins., Bottomry, etc. This work is one which the reader may always consult with advantage. We do not however discover anything new on this subject.
In 1824 Mr. Wm. Benecké, of Lloyd's, pub. A Treatise on the Principles of Indemnity in Marine Ins., Bottomry, and Respondentia; and in the Practical Application of those Principles in Effecting such Contracts, and in the Adjustment of all Claims arising out of them. The work is regarded as of the very highest authority; and on the subject of B. it is eminently practical, as the following passages will show :
It frequently occurs that the master of a vessel is under the necessity of borrowing money abroad for the purposes of the voyage. If this happens at a place where the owner of the vessel has friends or correspondents, the master applies to them first, and they usually furnish him with the money required, for which they draw bills, including commission and int., either on the owner or on such other house as he may direct. The money thus expended for repairs, for expenses of liberating the ship or the cargo, would be entirely lost, over and above the orig. value of the thing for which it was laid out, if the vessel, etc., happened to be entirely lost on the continuation of the voyage. To guard against losses of this kind the ins. of money expended, etc., has been introduced. But if either the correspondents refuse to advance the money, or if it be wanted at a place where the master is not able to raise it upon bills, he is often reduced to the necessity of mortgaging, according to circumstances, either the vessel, or the vessel and cargo, which is called taking money on B.
The lender in B. pays no regard to the personal credit of the borrower, but looks upon the thing hypothecated as his only security. . . .
The necessity for borrowing money on B. may also originate in causes different from that before described. The master may want money in an intermediate port for purposes unconnected with the orig. adventure; or at the place of destination for fitting out his vessel for a new voyage. ...
Bottomry may be considered as entirely distinct from ins. ... Yet in the present state of commerce a competent knowledge of the one necessarily includes that of the other. B. is frequently taken either partly or entirely on account of the underwriters, who, therefore, ought to know the nature of this contract....
The following is a point to which the attention of the reader of this paper should be especially drawn:
If we consider the different purposes for which money may be taken on B., we shall soon perceive that this contract is not always founded on the same basis-but that there are different kinds of B., which by their nature ought to be differently treated. Most of the authors, however, who have endeavoured to explain this important subject, do not make those necessary and highly important distinctions, but steak of B. as if one kind only existed. The same remark applies to the laws of all maritime nations, which apply the same rules indiscriminately to all kinds of B. The only way of explaining this singular fact is, that the different kinds of B. were not in use at the same time in any country; and that each legislator only had that kind in view which was peculiarly known to him. To this branch he adopted his rules exclusively, and in process of time those rules were indiscriminately applied to B. in general. This alone can account for the astonishing variety in the laws respecting this subject, which are absolutely contradictory to each other.
Under these circumstances the B. transactions could not but remain in a state of great imperfection This is so much the case that even the best informed and most judicious merchants consider this to be amongst the most difficult and abstruse parts of mercantile knowledge. It is principally owing to this uncertainty and obscurity of laws and principles concerning this branch of bus. that marine int. has arisen to such an enormous height-that B., instead of facilitating navigation and commerce, as it ought to do, is become an intolerable burden to them; for it is but natural that the lender on B., finding himself subject to be treated in different ways, should contemplate the worst case to which he can possibly be exposed, and stipulate for the prem. accordingly.
He considers the two main distinctions in the B. loan to be these: I. Where the money taken on B. is to be used for the benefit of those for whom the loan is contracted, without increasing the orig. value of the thing hypothecated. 2. Where the money taken on B. is used to increase the value of the thing hypothecated. He supports this position by reasoning, of which the following is an abstract: Every B. concerns either the ship alone, or the ship and cargo together, or the cargo alone. Other cases cannot occur. Money taken on B. of the ship alone at the port of departure by the owners, whether for the completion or victualling of the ship, belongs clearly to the second class. Money taken on B. of the ship at a port of necessity, for repairs or expenses of claim upon capture, cannot increase the orig. value, and therefore belongs to the first class. Money taken on B. of the ship at the port of destination, according as it is to be applied to repairs, to victualling, or improving the ship for a new voyage, belongs ether to the first or the second class. Money
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 Fanus 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.
The work is one of high "Loans on B. and R.,
In 1848 Sir Joseph Arnould pub. his Treatise on Marine Ins. authority. It treats but incidentally of our present subject. 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