1857. November 13. Can a bond be given by the master with consent of the owner for either in the port of her owner or in a foreign port? case (a) to be so essential that the bond was held void for the want of such communication. Formerly this rule was not so stringently applied. In Glascott v. Lang (b), Lord Chancellor Cottenham declared that there was no authority to support such a proposition. I must now enter into other and more intricate questions. The first of these is,--can the master, with the consent of the owner, bottomry a vessel for a new voyage, and, if so, against whom would such bond be valid, the owner a new voyage, only, or prior or subsequent mortgagees? Again, under what circumstances has this Court jurisdiction? This vessel belonged to Liverpool in Nova Scotia, her last voyage before the execution of this bond was from Glasgow to New York; that voyage was concluded before the bottomry bond was given, and the bond was given to defray the expense of repair and outfit necessary for a new voyage. The master states that he had a new charter, and for a new voyage. Upon this state of facts several questions arise. First, is it competent to the master of a British ship, with the consent of the owner, to give a bottomry bond for a new voyage? Secondly, could that be done if the ship had been lying at Liverpool, in Nova Scotia, the port of her owner? Thirdly, does it make any difference that the ship was lying in the port of New York, a port foreign to the owner, though at no great distance? Fourthly, what is the jurisdiction of this Court in such a case? Fifthly, must not the Court bear in mind that there are Acts of Parliament applicable to British ships, and that they must be considered as well as the law maritime? What is the principle applicable to such cases, and what authorities bear upon the question? I have opened up a very large field for investigation, but it may not be necessary to pronounce an opinion. on all the points so raised, nor to examine minutely into the principles which may govern them. It appears to me that, under with consent of all ordinary circumstances, it is not competent to the master, with the consent of the owner, to grant a valid bottomry bond upon a British ship lying in a British port for a new voyage, such bond to be suable in this Court. It may be that I might put the proposition more widely, but it is sufficient for the present case to state it with these limitations. I am of opinion that a bond such as I have now described would not be valid, so as to be sued upon in the Admiralty Court, and I think so for the following reasons:-First, because such a bond would create, if valid, what may be termed a secret lien on the ship, without what the law would consider necessity, and the consequence would be that subsequent bonâ fide mortgagees might be injuri(b) 2 Phillips, 321. The master, the owner, cannot give a Court has no (a) The Oriental, 7 Moore, P. C. 408. 1857. November 13. and British North America the Courts of Admiralty may have a wider jurisdiction. ously affected. In early times such bonds would or might be used to cover usurious transactions; fortunately all such useless restrictions are now removed. But at the present time it is clearly the policy of the law that no liens on the ship should be created which do not appear on the face of the ship's papers. Now, whether this reasoning be good or bad, the authorities show that this Court has no jurisdiction when the bond is executed in the country of the owner before the beginning of a voyage. Contracts of bottomry made by the owners themselves in this country, at the beginning of a voyage, by the terms of which the ship is pledged as a security, cannot be enforced in the Admiralty Court against the ship. In the American Courts, Though in the probably, a wider jurisdiction is conceded (a). And the Admi- United States ralty Courts in our North American provinces exercise a fuller jurisdiction than the High Court of Admiralty of England. The reason seems to be that, after the Revolution of 1640 broke out, there was a great jealousy against the Ecclesiastical Courts, and this was extended to the Court of Admiralty, and so in Lord Holt's time its jurisdiction was curtailed; whereas, in our North American colonies, there were no Ecclesiastical Courts to excite any such jealousy, and the jurisdiction of the Admiralty remained on its ancient footing. The next question for consideration is, whether a British vessel, having completed a voyage to a foreign port, a new voyage being contemplated, can be bottomried for foreign port for the expenses of repair or outfit with the consent of the owners, with consent of and whether such a bond can be sued upon in the Admiralty the owner, Court. I must observe that I see little difference between a usual circumbond executed by the owner himself, or by the master with the stances which justify a botexpress authority of the owner. The consent of the owner having tomry bond been obtained, it appears to me not necessary to inquire whether the foreign port be or be not within any distance of his place of residence. The proposition so put is the present case, divested of other objections which do not vary the proposition. I must candidly confess I know of no authority bearing directly upon the question. Upon the best consideration I can give this question, and assuming the ordinary requisites, such as want of credit, necessity, &c., to exist, I think that such a bond would be valid against the owners, and might be sued on in this Court. There appears to me a reasonable distinction between such a bond and a bond granted by the owner himself in his own country before a voyage commences; and I think so because such a bond on bottomry may be supported upon the ordinary principles applicable to bottomry bonds. Take the case of a ship bound to a (a) The Draco, 2 Sumner, p. 157. A British vestomried in a sel can be bot a new voyage where the exist. 1857. November 13. foreign port with no other fixed or agreed voyage, it being intended that the chance of the market shall be taken for an advantageous freight; she meets with damage, but eventually completes her outward voyage; she is then in want of repair and necessaries; the master and owner have no credit, or not sufficient credit; why should not money be in this case as validly advanced upon a new voyage? Could it be reasonably contended that money on bottomry might be advanced to bring the ship home, which no one can doubt, and yet not upon an advantageous charter? Sure I am that all the principles on which bottomry is founded would justify the advance to bring the ship home, and I cannot conceive why the same reasoning should not be equally applicable to a voyage to some other port as well as that of the owner, and more especially where the vessel was employed in a course of trade in which the voyages did not usually end at the port of the owners. I feel confident that, even if it could not be truly said that the necessities of commerce lead to this conclusion, yet that the interests of commerce, duly considered, would support the opinion I have formed. If the case which I have stated falls within the ordinary principles of bottomry, then I think it may be fairly concluded that this Court is entitled to exercise jurisdiction. Speaking, therefore, of the transaction was originally generally, and reserving for further consideration all other objections, I am of opinion that a bond, executed according to the form of the proposition I have stated, would be a valid bond against the owners, and capable of being put in force in a Court of Admiralty. It is true that New York is not distant from Nova Scotia, but though distance may be all-important where the consent of the owner has not been obtained, yet, I repeat, that I do not think such reasoning applies to cases where such consent has been given. I now proceed to consider in detail the other objections which may be raised against the bond, or, which is a distinct head, the enforcement of it by this Court. Lord Stowell decided in the Augusta (a), that if money was adcover advances vanced or pecuniary responsibility incurred on personal credit, originally made on personal such transaction could not be converted into bottomry aftercredit; wards; though it was competent to the merchant having made such advances, or having incurred such responsibility, to stop when he thought fit, and require and take a bond for subsequent advances or responsibility. Lord Stowell also said (b) that the circunstance of a vessel being by the law of the country where she was lying capable of being arrested for a debt, incurred on personal security, would not alone render a bond, granted to pre The present instrument a valid bottomry bond. A bottomry bond cannot be given to nor would the liability of the vessel to arrest, alone and with out other circumstances, warrant a bond. 1857. An agent may take a bot vent such arrest and detention, valid; and he said that in most parts of the continent there existed a power of arrest for debts November 13. incurred on account of the ship, and consequently bottomry bonds might, if this were sufficient, be granted in all cases. I have not the slightest intention of departing from the two propositions of law which I have just stated, but I must observe, as indeed I took an opportunity to do in a former case (a), that there could hardly be a stronger necessity for the execution of a bottomry bond than that a vessel might otherwise be arrested, and either remain under detention or be sold; and that, therefore, though in conformity with Lord Stowell's authority I should hold that a bottomry bond could not be granted solely to prevent arrest, yet I think that that, combined with other circumstances, ought to be taken into consideration. I will now endeavour to extract from these proceedings as exact a statement of the facts as I can with reference to the objections raised. The first objection raised is, that Mr. Vail was agent for the owners. This certainly was so, and by the authority of the managing owner contained in the letter to the master, dated Liverpool Nova Scotia, Nov. 29, 1855; but it is settled law that an agent may legally take a bottomry bond, and more especially he may do so with the sanction of the owner. Secondly, it was contended that the bond could not be sustained because the ship was new coppered; that she had never been coppered before, and that, therefore, this was an expense not for repairs, but for improvement. The owner clearly apprehended that the coppering might, if not necessary, be expedient, and in that same letter observes, that Mr. Vail will get it done in time for a voyage to Europe at six months' credit. I am of opinion that the validity of the bond cannot in any degree be affected by the fact of the copper being an improvement upon the former condition of the vessel. The Court will never enter into the in- The Court will vestigation whether a little more or less has been done in pre-examine what not minutely paring a ship for sea, and more especially when the owner has has been done sanctioned it, and when what was done was requisite for the par- the vessel for in preparing ticular voyage on which the ship was to proceed, as I think it is sea. shown to have been in this case. Thirdly, with respect to the A bond given bond having been given when Mr. Vail had not actually advanced actually adthe money for the repairs, I am of opinion that, as it is shown vanced is that Mr. Vail made himself responsible for the payment of the bills, and had pledged his credit for the payment, and, in fact, paid them when due, such a circumstance cannot affect the validity of the bond. Indeed, the same circumstances have often (a) The Vibilia, 1 W. Rob. 6. tomry bond. before money Vaild. 1857. November 13. The result of the evidence shows that the advances were made not on personal secu occurred in other cases, and never have been considered to create any valid objection; the utmost effect attributable to such a fact is, that it might slightly affect the amount of interest when the account was settled. Fourthly, a much more important objection, if founded in fact, is, that the transaction was not originally a bottomry transaction; that all the advances were made or responsibilities incurred before a bottomry bond was required. It is necessary to see how the evidence stands respecting this matter. Mr. Vail was not the general agent of the owners; that same letter of Nov. 29 states, "as regards an agent I have no one particular, but should give Mr. Vail the preference, as I know rity, but on the him, and could get many things from him I could not get from security of a bond. parties who were strangers to me. You had better give the business to Mr. Vail if he is in New York; still, if you can make matters equally advantageous to me, you may do as you think best, as I make you the agent for the vessel.” Mr. Vail had been employed before to effect insurances on the vessel. In this state of things the owner had no right to expect that Mr. Vail would make advances, or incur any personal responsibility. [The learned Judge here referred at some length to the affidavits of Mr. Vail and of the master Kenney, and then proceeded.] Now, looking at the whole of this transaction, considering that Mr. Vail was not the general agent of the owners, that they had no right to expect credit from him, that Mr. Vail's statement is in part corroborated by Messrs. Watson, that Mr. Campbell sanctioned the execution of the bond and has admitted its validity over and over again, that nothing is opposed to this statement save the affidavit of the master, I think the probabilities, as well as the balance of the evidence, preponderate in favour of Mr. Vail's statement, and therefore I cannot pronounce against the validity of the bond, on the ground that it was not originally a bottomry transaction. Fifthly, in the course of the argument it was said that the sanction of the owners to the execution of this bond was unduly obtained by compulsion; for reasons already stated, this objection cannot be supported. Sixthly, there is a peculiarity in this bond which I think it is my duty further to notice; the stipulation for interest is confined to the legal interest allowed by the State of New York: what that legal interest is, or to what transactions it is applicable, the Court has no information; so that, so far as appears, there will be no premium at all for maritime risk, and yet it is termed in the instrument itself a bottomry bond; and unless it be a bottomry bond, and maritime risk be run, this Court has no jurisdiction to enforce it. I must admit that this part of the transaction is left in great mystery, and is not cleared up, either by No improper compulsion either on mas ter or owners. A low rate of suspicion on Court has jurisdiction, whatever the rate of interest may be. |