its destination bears to the total value of the whole cargo (ƒ). In ordinary cases, where a bond is given on ship and freight, and the ship belongs to one person and the freight to another, the Court will direct payment out of the proceeds of ship and freight pro rata (g). titled to Where, in a bottomry suit, there remains, after satisfying Proceeds— the claim of the bondholder, a balance of the proceeds of persons enfreight, the Court will, in the absence of other claims entitled contest application of. to consideration, pay the amount to the shipowner; it will not pay it out to a person to whom the shipbroker has assigned it, without authority from the owner (h). Where, in a bottomry suit against ship, freight, and cargo, judgment is allowed to go by default against the ship and freight, and the owner of the cargo alone appears to dispute the bond, the Court will order the full freight due to be paid to the bondholder on his application. The owner of the cargo who has paid the freight into the registry has not, in such a case, any right to pray a reference, for he has no longer any right or interest in the freight, and his position is not altered in this respect, although he may have a right of action against the shipowner to recover the value of a portion of the cargo sold by the master before the execution of the bond to defray the ship's expenses (). Where the claims of the owner have been satisfied by underwriters, the appearance in the suit should notwithstanding be entered by the owner, who will be allowed to defend as trustee for the persons really interested (). The assignees of a bankrupt shipowner may appear and contest the application of the proceeds (). (f) Cargo ex Sultan, Swa. 512; The Salacia, Lush. 573. In a case in which, owing to the default of the owners of the cargo, the master was compelled to incur expenses which rendered it necessary for him to sell part of the cargo, it was held that the owners of the cargo had no right to deduct any part of the freight from the holder of a bottomry bond previously granted on ship and freight. The Angerina, 1 Dods. 383. (9) But this has not been laid down as an inflexible rule. The Dowthorpe. (h) The Dowthorpe, 1 W. Rob. 86. (j) Cargo ex Galam, Br. & L. 180. (k) The Dowthorpe, 1 W. Rob. 86. Costs. Marshalling of assets. The master has no authority to render the owners of cargo in any way liable for the costs of the proceedings on the bond; the value of the cargo is ordinarily the limit of their liability. But if the owners of the cargo contest the validity of the bond, and fail, they become personally liable to costs like other suitors (1). Where there are several bonds, and the holder of one has a right to proceed against two funds, and the holder of another can only proceed against one of those funds, the court will order the assets to be equitably marshalled, if this can be carried into effect without violating other rules entitled to preferential observance (m). But where one of the bonds is granted upon the ship only, and one upon the ship and cargo, and the cargo is not the property of the shipowner, considerable difficulty arises in carrying out the principle of marshalling the assets, because it is an established rule that the holder of a bond on cargo cannot proceed against the cargo until the ship and freight have been exhausted. Thus, where there are several bondholders, and the one entitled to be paid first has the security of the ship, freight, and cargo, and the others have the security of the ship and freight only, the proceeds of the ship and freight must be applied to discharge the bond that is to be first paid, even though that should exhaust the proceeds of the ship and freight, and leave nothing for the other bondholders, who have no claim on the cargo. In a case (n) where there were (1) The Nostra Senora Del Carmine, Spk. 305. (m) The Trident, 1 W. Rob. 35; but see The Priscilla, Lush. 1; La Constancia, 2 Rob. 460. (n) The Priscilla, Lush. 1. In a note appended to this case by the learned reporter, it is observed that the question whether the last bond was entitled to absolute priority, was not mooted in the course of the argument. Should any similar case arise, and this important point be fairly raised, it is possible that the Court may be enabled to find its way to a different result, without infringing any of the principles laid down in the case cited. In The Priscilla, it was admitted or assumed that the last bondholder was entitled to absolute priority without any regard to the equity of the case. It is submitted, however, that the rule of the Court, which gives priority to the subsequent bondholder, is one which has been introduced for his benefit only, and is not an inflexible rule to be rigidly enforced irrespective of circumstances. See The Exeter, 1 Rob. 176. If, in the case of three bonds, the first on ship and freight, the second on the ship and cargo, and the third on the ship and cargo, the proceeds of the ship and freight were little more than sufficient to discharge the third and second bonds; the holders of the third and second bonds claimed to be paid in priority to the holder of the first bond, and this claim of theirs was not disputed; but it was contended, on behalf of the holder of the first bond, that the third and second bonds should be paid out of the proceeds of the cargo: this the Court refused to order. The learned judge, in the course of the case, said as follows:-"If the holders of the last bond, which is upon ship and cargo, have the same and equal right to proceed against the cargo as against the ship and freight, I shall be disposed to bold that in equity they should be The Priscilla, the holder of the first bond had applied to the Court to be allowed to proceed against the ship and freight in the first instance, and the Court had seen fit to grant the application, the claims of all the bondholders would have been satisfied, and none would have been prejudiced, (for the proceeds of the ship, freight, and cargo were sufficient to satisfy all,) no principle would have been infringed, and the equitable right of the parties would have been fairly adjusted. This view of the law appears to be supported by the recent decision of the Court in the case of The Edward Oliver, 16 L. T. N. S. 575. In this case there were bonds on ship, freight, and cargo, to an amount sufficient to exhaust the proceeds of the ship and freight, but the proceeds of the ship, freight, and cargo, were sufficient to discharge the bonds, and also to discharge a claim for wages due to the master. The master had bound himself personally by the bonds, so that according to the ordinary rule his claim would have been postponed to the claim of the bondholders, but to have acted upon this rule would have been practically to deprive the master of his remedy in rem entirely, as he could not proceed Jurisdiction of the Court of compelled to proceed against both, and in aid of the other bonds to resort, in the first instance, to the cargo. But I apprehend that, upon the authority of The Prince Regent, and the reasoning of Lord Stowell's judgment in The Gratitudine, the holders of the last bond have no such right against the cargo; they cannot make the cargo answerable until the ship and freight have been exhausted. The owners of the cargo have a perfect right to avail themselves of the principle of that decision. They have a right to say that, by law, the cargo, though legally hypothecated, cannot be touched till the ship and freight have been exhausted. They are strangers to all previous bonds on ship and freight." The result of the decision was, that the only fund available for the payment of the earlier bond was almost entirely exhausted by the payment of the last bond. In some cases, where the contract of bottomry is founded on fraud, or where equities attach to the contract which canChancery. not be satisfactorily dealt with by the Court of Admiralty, the Court of Chancery will assume jurisdiction, and give relief upon bottomry bonds. Now, however, that the Court of Admiralty possesses much more extended powers than it formerly exercised, circumstances can rarely arise to render the interference of the Court of Chancery necessary (0). (0) See Maude and Pollock on Shipping, 3rd Ed. 444. Glascott v. Lang, 8 Sim. 358, 3 Myl. & Cr. 453, note, 2 Phill. 323, note; Hussey v. Christie, 13 Ves. 594, 9 East, 426; Duncan v. CHAPTER IV. DAMAGE. juris THE Court has always exercised undisputed jurisdiction Original over torts committed by its own subjects (a) on the high diction. seas, but the ancient statutes expressly prohibited it entertaining any cause of action arising within the body of a county (b). Now, however, so far as relates to the jurisdiction of the Court in cases of damage, this prohibition has been almost entirely done away with by recent legislation. The 3rd & 4th Vict. c. 65, s. 6, enacts that the Court Extended shall have jurisdiction to decide all claims and demands what- Vict. c. 65. soever in the nature of damage received by any ship or seagoing vessel, and to enforce payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time the damage was received in respect of which such claim is made. The Admiralty And the Court Act, 1861, s. 7, enacts that the Court shall have juris- Act, 1861. diction over any claim for damage done by any ship. It is to be observed that in the 3 & 4 Vict. c. 65, the term (a) See the judgment of Lord Stowell in The Hercules, 2 Dod. 371. The Court has jurisdiction to entertain a suit for damages for assault and battery committed on the high seas; and actions have frequently been instituted against masters of ships by mariners, to recover damages for ill treatment. The proceedings are in personam, and the trial usually takes place in the ordinary way before the judge alone. See Chitty's General Practice, vol. 2, p. 513. The Agincourt, 1 Hagg. 272; (b) 13 Rich. 2, st. 1, c. 5; 15 Rich. Ad. Court |