1859.

December 22.

Judgment.

rights by signing the bond. He really signs in the interest of his owner and for his owner, and where an agent contracts for his principal the principal alone is liable. The words of the bond, whereby the master binds himself, are formal merely, and should receive an equitable construction. It is notorious and manifest from the very term, that in bottomry transactions the real security is the bottom of the ship. But even if the master is personally responsible, it is not here but in a Court of law; and if not responsible here directly, he cannot be made responsible indirectly. In point of fact the master, when he signs a bond, never intends to give up his remedy for his own wages; and it would be a hardship if the law took away his remedy from him. It would also be highly injurious to commerce; for masters would be unwilling to take up money on bottomry, although the interest of their owners required it.

DR. LUSHINGTON:-It is unfortunately incidental to this case that one of two innocent parties must suffer. It is certainly a case primæ impressionis; none similar, however, has ever come under the consideration of the Court.

It is most necessary to bear in mind who are the parties in this cause. They are the master of a ship and the holders of a bottomry bond. If the case were one of a master proceeding against the owner, or against proceeds in the registry claimed by the owner, very different considerations would apply. The master sues by virtue of the statute, the Merchant Shipping Act, 1854, s. 191. Whatever may have been the American law, Shipping Act, this Court, previous to the statute, had no jurisdiction in respect of a master's wages. But now the master has, by virtue of the statute," so far as the case permits," and these are not unimportant words," the same rights, liens and remedies for the recovery of his wages as any other seaman."

The master sues under the Merchant

1854.

Case of the
Milford.

When this case was first brought before the Court, it was said that the American law would exclude the master from the benefit of the statute,—that it was a legal incident of the contract that the master should have no lien on either ship or freight for wages or advances. But, pending that question, the Court decided, in the case of The Milford, that the remedy must follow the lex fori, and that a foreign master was intitled to the same remedy against ship and freight as a British master. I adhere to that judgment, though I repeat what I then said, that it was a case of great doubt and difficulty. If the present case, therefore, had gone no further, I should have decreed payment to the master.

1859.

December 22.

But since that time the bondholders have raised a new objection, which is stated in the present act on petition. It is there alleged for the bondholders that "they have no other security than the proceeds for the amount due to them on the bond, and will be unable, in any case, to recover a large portion of that amount, and that any wages recovered by the master out of the proceeds will, to that extent, increase the loss to them ;" and further, that "the greater part of the wages sued for by the master were earned by him before the execution of the bond ;" and the Court is then prayed to direct the proceeds to be paid out to the bondholders. But the main objection to the master's claim is not explicitly stated. It should have been stated what the contents The question of the bond were; that by the terms of the bond the master had bound ship and freight, and had rendered himself personally liable for the money advanced by the bondholders, and, consequently, could not put his lien in competition with their claim. However, the question is substantially raised by the concluding prayer, and has been directly submitted to the Court in argument. The counsel for the bondholders now contend that the lien of the master for his wages and advances cannot operate to the injury of those to whom he had made himself personally responsible, and to whom he had hypothecated the very fund from which he now seeks preferential payment.

turns on the terms of the

bond.

abso- As against the But the master is in ship a different posi

bondholders

tion from other

The other side rely on the master's lien for wages as lute, like any other mariner's, against the ship and freight. the question is not whether the master has lost his lien upon and freight, but whether he can inforce that lien against the in- seamen. terest of the bondholder. As to wages generally, seamen, no doubt, are generally intitled to a priority of payment; but even here difficulties might arise, and the Court has guarded against expressing any opinion in case of wages earned before the execution of a bond or on a previous voyage; and I wish to state that this is an undecided point, possibly of great difficulty, and that certain complications might give the Court much trouble in determining the rights of the parties.

bondholders;

I must now advert to the terms of the bond. Is the master a The master has made himself, debtor for the money advanced on bottomry? This is the im- by the bond, a portant fact on which the question of law must turn. The words debtor to the of the bond are these :-" And I do hereby bind myself, my heirs, executors and administrators, and my lands, tenements, goods and chattels, and especially the said barque or vessel, with her tackle, apparel, boats, oars and appurtenances; and also the said goods, and the freight which is or shall become due and

payable in respect thereof, to secure and pay," &c. I am urged to put an equitable construction on these words. I am desirous of so doing; but if I did not hold that the master, by these terms, bound himself for the payment of this money, I should not be putting an equitable construction upon these words, I should be obliterating them from the bond altogether. I apprehend no Court, pretending to administer justice, ever took upon itself to expunge from a bond words so clear, so perfectly free from ambiguity, as these. The next question is, whether the Court is at liberty to say, that though they clearly import that the master is bound to make the payment, yet that they are void and of no effect. It is said that the obligation is inoperative, because the master received no consideration. But it is clear that the master did receive consideration. He is intitled to receive money from the owner for the completion of the voyage, which, without the bottomry bond, might never have been completed. Again, it has been said that the master acted merely as agent, and that what he did as agent does not bind him but only binds his principal. But how is that applicable here, where the master expressly binds himself, and cannot, by the well-known rule of bottomry law, bind the owners personally at all. Lord Tenterden expressly says, as has been quoted by the Admiralty Advocate, "The remedy of the bottomry-lender is against the master." It is true that in many cases no proceedings are taken against the master,―for a very good reason, that he is generally incompetent to pay; and it may be true that this Court has no direct jurisdiction against him upon the bond, though I give no opinion on this point; but that he is liable somewhere I entertain no doubt. The master has, moreover, hypothecated by his own act the ship and freight as security for the money advanced. How, then, can I allow this man, who is personally liable to the bondholders, and who has made over to them the very property against which he raises a claim, to say, "I will take that property out of your hands, for my benefit and to your injury?" I am of opinion that I should be acting contrary to every principle of law and equity were I to do so; and further, I think I might subject the Court to an injunction, and, perhaps, to a foreign attachment. I direct the proceeds to be paid out to the bondholders; but certainly this is not a case for the Court to give

costs.

Bathurst, proctor for the bondholders.
Rothery for the master.

APPENDIX.

INDEX.