EOT 



pttty i'l a ftiip or curgo. mny borrow money on bottomfiy- w 

 itrporucntii;, to tin- txteiit ol liis iutcrcll. 'i"l>i' coiitradl 

 itlelf kerns to have originated from tlieprafticcof permittintr 

 the mailer of a fliip, in a foreign coimtry, to hypothecate the 

 fhijj, ill cafes of iitctflity, for the puvpofc of niiling money 

 to retit ; and, indeed, it is mcciVary for tlic faftty of the 

 fhip, ami in order to cnfurc the fucctfs of the vovagr. that 

 the mailer, in the abfei-.cf of the owners, (hould have this 

 powir, implied hy the marine law in his appointment. 

 However, with roi'pcd to the piiipofes of this contraft, he 

 potreiren no fiic-h power, till he hcconitsadiially mailer, or as 

 far a,, this biiliiRfs is concemcd, till after he fets fail. Hence, 

 if he borrows money on bottomry in the place where the 

 owners rifide, without their ex orefs anthority, the aft can 

 only concern himfcif, and affcii his own inttrtll on board.' 

 In a foreign country, and in the abfence < f the owners, the 

 ^nailer cannot rail'c any money on bottomry for any debt of 

 his own, but nieielv for the ufeof the (hip, in cafes of ne- 

 cefTity ; and this ncccfiity mull appear in the written contratl, 

 or tlfe the lender will have neither a lien on the fliip, nor an 

 adion apainll the owners ; the mailer alone being liable. 

 Neveithtlefs the lender is not bound to look to the application 

 of the money, but may have his adioii ngainll the owners 

 and his Am on tht. fliip, without being obliged to prove that 

 the money was properly applied, unlcis indeed he be an ac- 

 complice in any fraudiiltnt niifapplication of it ; in which 

 cafe the owners may impeach the contraft upon that ground. 

 As an infuraiice upon any trade with the enemies of the 

 llale in time of war is void, the lending of money tipon bot- 

 tomry is illegal. 



As to the articles hypothecated, they may be the body, 

 tackle, furniture, and provifions of the fhip, the whole or 

 any part of the cargo, or both Ihip and cargo. On refpon- 

 dciitia, indeed, money may be borrowed without hypothe- 

 cating any thing ; and the borrower may take money on 

 board with him in fpecie, for the purpofe of employing it 

 in trade, during the courfc of the voyage. But it is efien- 

 tial to the nature of the contraft, that the money lent, or 

 fome equivalent to it, be cxpofed to the perils of the fea, at 

 the rilk of the lender. The fame realons of policy which 

 forbid gan\ing infurances, equally apply to wagers in the 

 form of bottomry loans. The mifchiefs likely to refult from 

 ilii? praftice have been reilrained by our legiflature. Ac- 

 cordingly the ftatutc i6C. II. c. 6. re-enafted and made 

 perpetual by 22 C. II. c. n. §12. after reciting "that 

 maftcrsand mariners of lliips, having infured, or taken upon 

 bottomry, greater fums of money than the value of their ad- 

 venture, do wilfully call away, burn, or othcrwife dellioy 

 the fhip under their charge, to the great lofs of the mer- 

 chants and owners," en?.£ls, for future prevention of 

 the fame, " that if any captain, mafler, mariner, or other 

 officer belonging to any fhip, (hall wilfully call away, burn, 

 or othcrwife deilroy the Ihip ta which he belongs, or pro- 

 cure the fame to be done, he Ihall fuffer death as a felon." 

 When thin fpecies of gaming came into ufe in England, and 

 perfons borrowed mone'y " on the voyage," as it was called, 

 without any inlereit in the fliip or cargo, which they could 

 hypothecate, the llatutc l(, Geo. II. c. 57. § 5. directed, 

 that upon Eaft India voyages the money (hould only be lent 

 •on the (hip or goods on board, with benefit of falvage to 

 the lender. A; many Britifh fubjefts, in the reign of 

 George I. fitted out (liips, and clandcllinely traded to the 

 tail Indies'under colour of foreign commillions, the llatute 

 7 Geo. I. c. 21. § 2. made to reftrain thcfe pratliccs, and 

 to proteA the monopoly of the Eaft India company, de- 

 clares, " that all contiatts and agreements, made or entered 

 into by any of his majelly's fubjcfts, or any perfon or per- 



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•fons ill truft for them, for the loan of any money, by way of 

 bottomry, on any (hip or (hips in the fervice of foreigners, 

 and bound to, or defigncd to t-ade in, the Eaft Indies, (hall 

 be void." This claufe exprefbly, and in the moft unquali- 

 tied terms, reftrains the lending of money on bottomry, on 

 any (liip or fliips in tlie fervice of foreigners. But whether 

 a (hli>, the property of Britifli fubje-dis, (itted out by them, 

 and laden with their merchandize, can be faid to be in the 

 fervice of foreigneis, merely becaufe flie is furniflied with a 

 commiffion from a foreign Hate, is a qncftion upon which 

 there ha-- not yet been any judicial decifion. Freight may 

 be both infured and hypothecated upon a bottomry con- 

 tract. Seamen irv.y borrow money on any goods which they 

 have on board ; but with relpeft to their wages, they can 

 neither iiifure them nor borrow money upon them. 



As to the rate of marine intcreft, Julhnian, who, in ordi- 

 nary cafes prohibited the centf/ima, or one per cent, per 

 month, or 12 per cent, per annum, allowed it in this contraft, 

 and iV rhadc any higher intereft. But in modern times, 

 when <; jmmerce is carried on between countries remote from 

 one another, it is impofiible to fix any precife ftandard by 

 which this may be regulated. The legality of marine intereft, 

 however exorbitant it may feem, is allowed by courfe both 

 of law and equity ; nor can it be deemed nfury, provided the 

 money lent be bmdjide put in rifl-:. This intereft com- 

 mences with the rilk, and alfo terminates with it. But if 

 the time of the contraft be a fixed period at a ftlpulated rate, 

 and the voyage be performed within that period, the marine 

 intcreft for the whole period will be due ; but it the voyage 

 exceed that period, the rifl-; of the lender will ceafe, and 

 the debt become obfolete, though the voyage fhould not be 

 ended. The rillc alfo will ceafe, if the fhip has been pre- 

 vented by unavoidable accident from performing her voyage 

 within the time limited. Upon the cefTation of the fea-riik, 

 if the borrower delays the payment, common intereft begins 

 to run on the principal, exclufive of the m.arine intereft, 

 " tpfo jure," without any demand. 



The perils of the fea, which conftitute the ri/lc of the 

 lender, comprehend all thofc accidents and misfortunes to 

 which (hips at fea are liable, and which no human forefight 

 or precaution can prevent. Accordingly contradls on bot- 

 tomry and refpondentia exprefsly provide, that " if, in the 

 courfe of the voyage, and within the time prefcribed, an 

 utter lofs of the (hip by fire, enemies, men of war, or any 

 other cafualties, (hall unavoidably happen," the bond (hall 

 be void, and the borrower difcharged ; fo that the perils are 

 nearly the fame with thofe to w'hich the under-writers upon 

 a policy of infurance are liable. A lofs by pirates, though 

 not ufually expreffed in fecurities of this kind, is included in 

 the riflv. Nothing, however, but a total lofs will difcharge 

 the borrower ; and the obligation remains, notwithftanding 

 any damage which the goods may fuftain by the perils of 

 the fea ; nor is there any deduftion on account of fuch 

 damage. In this refpett the lender on bottomry is in a bet- 

 ter fituation than an infurer, who is obliged to indemnify the 

 infured, to the extent of the fum infured, from all damage 

 arifing from any of the perils againft which the infur- 

 ance IS made. No capture or detention, that does not 

 amount to a total lofs, in a cafe of infurance, can difcharge 

 the borrower. Lord Mansfield, in delivering the opinion of 

 the court, in a cafe of this kind, faid, " It is clear, that, 

 by the law of England, upon a bottomry contraft, there is 

 neither average nor falvage." But the lender is not liable 

 for lofs proceeding from the internal defeft of the thing that 

 is hypothecated, unlefs by exprefs ftipulation, fuch as the 

 (hip's not being fea-worthy, and perifhing by age, rotten - 

 nefs, or any fuch caufe, or the goods perifhing of themfcKes, 



liquors 



