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that since the trustee is authorized to hold for the benefit of "the person or persons who may prove to be entitled thereto," it follows that the act had reference to a case where there was but one claimant, and this could only be under the third section. But the answer is, that although there be several claimants, yet only one may be entitled to recover, and the word "person" is meant to apply to him.

Our confidence in this position is somewhat shaken by a learned and elaborate decision in the District Court of the Pennsylvania District,1 but we think further adjudication is necessary to determine the various points which have arisen under this statute. It was also held, in this case, that the fact of the vessel's being insured and a loss paid, would confer no rights upon the shipper, this not being an "interest in the vessel" within the meaning of that term, in the Act of 1851.

In respect to the "freight then pending," it has been held that the earnings of the vessel in transporting the goods of the owners are to be included.2

The second section of the Act of 1851,3 provides "that if any shipper or shippers of platina, gold, gold dust, silver, bullion, or

1 Wattson v. Marks, U. S. D. C., Penn., 2 Am. Law Register, 157. The point actually decided in this case does not conflict, we think, with any of the English cases. And the opinion of the court, though very learned and elaborate, does not seem to be in every respect accurate, especially in stating the points decided in cases cited in the course of the decision. The libel was in personam upon a contract of affreightment. The vessel was wrecked on the coast of California, and at some time, either shortly before or after she struck, the goods of the libellant were stolen by some person unknown. Kane, J., said, p. 163: "But whether the robbery preceded or followed the moment of wreck, or was contemporaneous with it, is in my judgment of no importance." This opinion proceeds on two grounds, first, that aside from the fourth section of the statute the value of the ship and freight is to be taken at the time the right of action accrued to the shipper, and that "the right of action, in a contract of affreightment against the carrier, unlike that which grows out of a collision, does not accrue till the end of the voyage, or the lapse of a reasonable time for the delivery of the cargo." And, second, because under the fourth section the measure of the ship-owner's liability must be, "in cases of affreightment at least, the value of the vessel and freight at the time of suit brought." The reason given for this is, that the transfer of his interest could not pass more than he had at the time. But the words "interest in such vessel and freight" may mean something more than merely his share in the vessel, and may be construed as the amount due by reason of such ownership, or in other words, his interest in the ship and freight at the time the right of action accrued.

2 Allen v. Mackay, U. S. D. C., Mass., 16 Law Reporter, 686.

3 Ch. 43, 9 U. S. Stats. at Large, 635.

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other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones, shall lade the same on board of any ship or vessel, without, at the time of such lading, giving to the master, agent, owner, or owners of the ship or vessel receiving the same, a note in writing of the true character and value thereof, and have the same entered on the bill of lading therefor, the master and owner or owners of the said vessel shall not be liable, as carriers thereof, in any form or manner. Nor shall any such master or owners be liable for any such valuable goods beyond the value and according to the character thereof so notified and entered."

Under this statute it has been held, that where the contract of carriage has been clearly defined in all its particulars by the parties in the bill of lading, and there is no imputation of fraud or mistake against the shipper, but he has fully executed his part of the contract, the ship-owner shall not relieve himself from liability by alleging that there has been a want of literal conformity to the provisions of this section; and that the carrier is estopped from denying his liability, if the bill of lading contains a substantial and clear recognition of all the facts which the statute required the shipper to inform the master of.1

The English statute of 17 & 18 Vict. c. 104, § 503, exempts the owners of a vessel from loss occasioned by reason of robbery, embezzlement, making away with or secreting similar articles, "unless the owner, or shipper thereof, has, at the time of shipping the same, inserted in his bills of lading, or otherwise declared in writing to the master or owner of such ship, the true nature and value of such articles." Under this statute it has been held, that the description in the bill of lading of a parcel of gold shipped as "one box containing about two hundred and forty-eight ounces of gold dust," is not a sufficient statement of its value.2

1 Wattson v. Marks, U. S. D. C., Penn., 2 Am. Law Register, 157. The case of Greyor v. The Black Warrior, U. S. D. C., La., Boston Courier, March 18, 1858, seems to be opposed to so liberal a construction, but the report of the case does not state whether or not the bill of lading contained a statement of the facts required by the statute to be in the note.

2 Williams v. African Steamship Co., 1 H. & N. 300, 37 Eng. L. & Eq. 462. In Gibbs v. Potter, 10 M. & W. 70, on a shipment of a cargo from Valparaiso to Eng

We have already seen that both in England and in this country the owner of a vessel is not liable for damage done to goods by an accidental fire happening to, or on board, of a vessel.1 The act of 1851 does not apply to any canal boat, barge, or lighter, or to any vessel of any description whatsoever, used in river or inland navigation. Under this section it has been held, that a vessel on Lake Erie is not a vessel used in inland navigation, the lakes not being considered as inland waters.3

SECTION IV.

OF THE CONTRACTS OF BOTTOMRY AND OF RESPONDENTIA.

A. Of the purpose of a Bottomry Bond.

One of the most important of the powers of the master is that of making a bottomry bond. By this instrument the ship is hypothecated for the payment of money borrowed.* As usually defined, its essentials are, that it shall bind the ship for the payment of the money, provided the ship perform a certain voyage and arrive in safety; and if the ship be lost, no part of

land, the bills of lading described the property as "1,338 hard dollars," which was a coin current at Valparaiso at the time. It was held to be a sufficient compliance with the provisions of the statute of 26 Geo. 3, c. 86, s. 3, which is similar to that above, on the ground that it is enough to state the value at the port of shipment. Lord Abinger also doubted whether the act could apply to countries not subject to British rule, and was clearly of the opinion that if it did, it could only be when the goods were shipped to an English port.

1 See ante, p. 183, note.

2 § 7, 9 U. S. Stats. at Large, 636.

3 Moore v. American Transp. Co., Supreme Ct., Mich., Boston Courier, Aug. 3,

1858.

4 The contract of bottomry is so called because the keel or bottom of the ship is pledged, a part being figuratively used for the whole. The Atlas, 2 Hagg. Adm. 48, 53 ; Scarborough v. Lyrus, Latch, 252, Noy, 95. In Blaine v. The Charles Carter, 4 Cranch, 328, Chase, J., said: "A bottomry bond made by the master, vests no absolute indefeasible interest in the ship on which it is founded, but gives a claim upon her, which may be enforced, with all the expedition and efficiency of the admiralty process.” See also, Johnson v. Shippen, 2 Ld. Raym. 982; Johnson v. Greaves, 2 Taunt. 344; United States v. Delaware Ins. Co., 4 Wash. C. C. 418.

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the sum borrowed is to be repaid;1 and because the lender takes upon himself this risk, he may charge for the use of the money, maritime interest, or extra interest which will cover and compensate for the risk he runs, which interest would be usurious but for that risk.2 Such is the description in fact of nearly all bottomry bonds; but there seems no good reason why a bottomry bond may not provide for common interest, and for payment by the owner of the ship of the money borrowed whether the ship be safe or lost; and, nevertheless, be so far a bottomry bond as to bind the ship effectually and give a lien upon it which may be enforced as in the case of an ordinary bottomry.

1 The Atlas, 2 Hagg. Adm. 48; Jennings v. Ins. Co. of Penn., 4 Binn. 244; Greeley v. Waterhouse, 19 Maine, 9; Leland v. The Ship Medora, 2 Woodb. & M. 92, 107; Rucher v. Conyngham, 2 Pet. Adm. 295, 303; The Brig Draco, 2 Sumner, 157; Bray v. Bates, 9 Met. 237; The William and Emmeline, Blatchf. & H. Adm. 66 ; The Brig Atlantic, 1 Newb. Adm. 514; The Emancipation, 1 W. Rob. 124; Stainbank v. Fenning, 11 C. B. 51, 6 Eng. L. & Eq. 412. In The Nelson, 1 Hagg. Adm. 169, the sum was to be paid within one month "after the ship arrived at her port." This was held to be a sufficient description of a sea risk. In Simonds v. Hodgson, 3 B. & Ad. 50, the bond, after reciting that the vessel had received damage, and that the master had borrowed £1,077, proceeded as follows: "I bind myself, my ship, her apparel, tackle, etc., as well as her freight and cargo, to pay the above sum with £12 per cent. bottomry premium; and I further bind myself, said ship, her freight and cargo, to the payment of that sum, with all charges thereon, in eight days after my arrival at the port of London; and I do hereby make liable the said vessel, her freight and cargo, whether she do or do not arrive at the port of London, in preference to all other debts or claims, declaring that this pledge or bottomry has now, and must have, preference to all other claims and charges, until such principal sum, with £12 per cent. bottomry premium, and all charges are duly paid." Held, reversing the judgment of the Court of Common Pleas, 6 Bing. 114, that this was an instrument of bottomry, that the words my arrival must be understood to mean my ship's arrival, and that the words, "I make liable the said vessel, etc., whether she do, or do not arrive at London," were intended only to give the lenders a claim on the ship, in preference to other claims, in case of the ship's arrival at some other than the destined port, and not to provide for the event of the loss of the ship.

2 Sharpley v. Hurrel, Cro. Jac. 208; Soome v. Gleen, Sid. 27; The Cognac, 2 Hagg. Adm. 377, 387. In The Atlas, 2 Hagg. Adm. 48, 57, Lord Stowell said: "If the ship arrived safe, the title to repayment became vested; but if the ship perished in itinere, the loss fell entirely upon the lender. Upon that account, the lender was entitled to demand a much higher interest than the current interest of money in ordinary transactions. It partook of the nature of a wager, and, therefore, was not limited to the ordinary interest; the danger lay not upon the borrower, as in ordinary cases, but upon the lender, who was, therefore, entitled to charge his pretium periculi, his valuation of the danger to which he was exposed." In White v. Ship Daedalus, 1 Stuart, Lower Canada, 130, a bond on a voyage from Quebec to London at twenty-five per cent. interest, was held to be valid.

It must be remembered that the law-merchant not only permits such a bargain, but of itself, and by its own proper force, has this effect. For if a master borrow money abroad, for the necessities of the ship and so apply the same, and no instrument-of bottomry or hypothecation is given, the law-merchant gives to the lender a lien on the ship for the amount, in addition to any remedy he may have at common law against the owner as his debtor for money borrowed.1 And it is not easy to see, why an instrument executed between the parties, and intended to have this very effect, may not be permitted to do so.2

1 See Wainwright v. Crawford, 3 Yeates, 131, 4 Dall. 225. And it is said that the owner is liable for money borrowed in a case of necessity, although the necessity arose by the fault of the master. Descadillas v. Harris, 8 Greenl. 298.

2 It has been said, that unless more than legal interest is charged by the contract, it is not a loan on bottomry. Leland v. The Medora, 2 Woodb. & M. 92, 107; The Mary, 1 Paine, C. C. 671. In The Emancipation, 1 W. Rob. 124, 130, Dr. Lushington said: "I am aware that it is not absolutely necessary that a bottomry bond should carry maritime interest, and that a party may be content with ordinary interest; but when the character of an instrument is to be collected from its contents, and where the argument in support of the bond is, that the advance of the money was attended with risk, it is a material circumstance, that only an ordinary rate of interest should be demanded. It is impossible to conceive that any merchant carrying on his business with ordinary care and caution, would be content to divest himself of all security for the loan of his money but a bottomry bond, and ask no greater emolument than the ordinary interest of £6 per cent., if the repayment of such loan was to depend upon the safe arrival of the vessel at the port of her destination, after performing such a voyage." In this case only legal interest was stipulated for, and the repayment of the loan did not depend on the safe arrival of the vessel. The bond was held invalid. See also, Stainbank v. Fenning, 11 C. B. 51, 6 Eng. L. & Eq. 412; Jennings v. Ins. Co. of Penn., 4 Binn. 244. It does not appear very distinctly from the case of Selden v. Hendrickson, 1 Brock. C. C. 396, whether the bond was given on legal or on maritime interest, though the former seems to be the more correct view, the decree being for the amount of the bond with seven per cent. interest, that being the legal interest at the port where the bond was given; and Marshall, C. J., said: "In fact I can conceive no reason, why a master may not, for the success of the voyage, hypothccate the vessel to secure a debt carrying only legal interest, in any case where he might bind the owner personally." See also, The Brig Atlantic, 1 Newb. Adm. 514. In the case of The Hunter, Ware, 249, money was advanced, on the personal credit of the owner, for refitting the ship, and a bond subsequently given. The court held, that the bond was invalid, but, on the libel being amended, rendered a decree for the sum advanced with legal interest. Mr. Justice Ware said: "If the court has authority to separate the good from the bad, and to reduce the maritime premium when an oppressive advantage has been taken of the necessities of the borrower, is it quite certain that it may not, in the exercise of its equitable powers, render judgment, in a case like the present, for the principal sum advanced with land interest?" See also the remarks of Mr. Justice Story in the case of The Virgin, 8 Pet. 538, 550. But in the case of The Brig Ann C. Pratt, 1 Curtis, C. C.

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