362 



BOTTOMRY. 



Eottomry. tering into a contract, may lend money on bottomry ; 

 and any person, who has a vested assignable property 

 in a ship or cargo, may borrow money on bottomry or 

 resjiondentia, to the extent of his interest. We have 

 already observed, that this contract appears to have 

 derived its origin from the practice of permitting the 

 master of a ship, when in a foreign country, to hypo- 

 thecate the ship in cases of necessity, in order to 

 raise money to refit. Such a permission, indeed, is 

 absolutely necessary for the safety of the ship, and to 

 ensure the success of the voyage ; and it seems to be 

 implicitly given him in the very act of constituting 

 him master, not indeed by the common law, but by 

 the marine law, which, in this respect, is reasonable : 

 For if a ship happen to be at sea, and spring a leak, 

 or the voyage be likely to be defeated for want of ne- 

 cessaries, it is better that the master should have it in 

 his power to pledge the ship and cargo, or either of 

 them, than that the ship should be entirely lost, or 

 the object of the voyage otherwise defeated. With 

 respect to the purposes of this contract, however, the 

 master possesses no such power, until he actually be- 

 comes master, or as far as this business is concerned, 

 until after he sets sail. And, therefore, although he 

 has this power while abroad, because it is absolutely 

 necessary for the purpose of commerce and naviga- 

 tion, yet the very same authority which gave that 

 power in such cases, has denied it when he happens 

 to be in the same place where the owners reside. 

 Hence, if he borrows money on bottomry in the 

 place where his owners reside, without their express 

 authority, the act can only be binding on himself, and 

 affect his own interest on board. Nor is the master 

 allowed in a foreign country, and in absence of the 

 owners, to raise money on this contract for any debt 

 of his own, but merely for the use of the ship, and 

 that only in cases of necessity ; which necessity must 

 appear in the written contract, otherwise the lender 

 will have neither a I' 1 en on the ship, nor an action 

 against the owners, the master alone being liable. 

 This seems clear from the laws of Oleron and of the 

 Hanse towns, and also from the cases which have been 

 determined at the common law upon the subject. 

 The lender, however, is not bound to look to the ap- 

 plication of the money which he may have lent upon 

 a bottomry contract, but shall have his lien on 

 the ship, and his action against the owners, without 

 being obliged to prove that the money was properly 

 applied, unless indeed he be himself an accomplice in 

 any fraudulent misapplication of it, on which ground 

 the owners may impeach the contract. 



There is no express restriction, by the law of Eng- 

 land, as to the persons to whom money may be lent 

 on bottomry, or at respondentia. A statute, indeed, 

 (21 G. II. c. iv. ) was once introduced into our code 

 of laws, with the view of preventing insurances from 

 being made on the ships or goods of Frenchmen, du- 

 ring the then existing war with France ; which also 

 prohibited his majesty's subjects from lending money 

 on bottomry, or at re*pondentia,on any ships orgoods 

 belonging to the subjects of France. But that act 

 was not of long continuance, on account of the peace 

 which almost immediately followed it; and the re- 

 straints thereby imposed upon this species of contract 

 were never afterwards revived by any positive law. 



As insurances, however, upon the property of an ene- Bolt 

 my. in time of war, are held to be illegal at common ' 

 law ; so also is the lending of money on bottomry, or 

 at rfspaiutcntla, in similar cases. 



Tin- articles hypothecated on a bottomry contract, 

 may be the body, tackle, furniture, provisions, or car- 

 go of the ship, or any part thereof; or both the ship 

 and cargo may be pledged. On respondentia, indeed, 

 money may be borrowed without hypothecating any 

 thing ; and the borrower may take specie on board 

 with him, for the purpose of employing it in trade 

 during the course of the voyage. But it is essential 

 to the nature of these contracts, that either the money 

 lent, or something equivalent to it, should be exposed 

 to the perils of the sea, otherwise there is no risk, on 

 the part of the lender, to entitle him to an higher than 

 the legal rate of interest ; and if the money be lent, 

 not upon the ship or goods, but upon the mere hazard 

 of the voyage, the contract becomes of the nature of a 

 wager. The same principles, however, which militate 

 against gaming insurances, apply equally to wagers in 

 the form of bottomry loans ; and accordingly such prac- 

 tices have been, in some degree, restrained by different 

 acts of the legislature : 16 C. II. c. 6 ; 22 C. II. c. 

 11. 12. ; 7 Geo. I.e. 21. 2. ; 19 Geo. II.c.37. 

 5. Freight may be hypothecated upon a bottomry 

 contract ; and seamen may borrow money on any 

 goods which they have on board, but not upon their 

 wages. 



The hazard to be run by a lender on bottomry, or 

 at respondentia, consists of the perils of the sea in 

 general ; comprehending all those accidents and mis- 

 fortunes to which ships at sea are liable, and which 

 cannot be prevented by human foresight or precau- 

 tion. These are, for the most part, specified in the 

 condition of the bond, and are nearly the same with 

 those to which the underwriter is liable upon a poli- 

 cy of insurance ; tempests, pirates, fire, capture, and 

 every other misfortune, excepting only such as arise 

 either from the defects of the thing itself, on which 

 the loan is made, or from the misconduct of the bor- 

 rower. Nothing, however, but a total loss will dis- 

 charge the borrower. The obligation continues, 

 notwithstanding any damage which the goods may 

 sustain from the perils of the sea ; nor is there any 

 deduction on account of such damage. According 

 to the opinions of Lords Mansfield and Kenyon, 

 (Vid. Joyce v. Williamson, B. R. Mich, term, 23 

 Geo. III., and Walpole v. Ewer, Sitt. after Trin. 

 1789,) there is, by the law of England, neither aver- 

 age nor salvage upon a bottomry bond. This doc- 

 trine is also supported by Mr Park, on ihe authority 

 of the statute 19 Geo. II. c. 37. 5., which al- 

 lows the benefit of salvage to lenders upon ships or 

 goods going to the East Indies ; clearly shewing, as 

 that author observes, that there was no such thing at 

 the common law, otherwise there was no occasion 

 to make such a provision. The soundness i.t this 

 doctrine, however, has been called in questiuii by Mr 

 Serjeant Marshall, who is of opinion, that the statute 

 above mentioned introduced no new principle into the 

 law either of insurance or of bottomry contracts, but 

 merely restored them to their original and proper use, 

 from which a spirit of gaming had puivmt-d them. 

 And the same author observes, that he has not been 



