be compelled to join in the charter-party (r). Thus, the mortgagee, permitting the mortgagor to use the ship, is bound by the lien for repairs of a shipwright to whom it was delivered by the mortgagor for that purpose (y). A mortgagee not in possession cannot maintain an action of restraint (2); nor can he recover passage-money received by the mortgagor before taking possession (a). The mortgagee, having taken possession, is entitled to use, as Powers of mortgagee in well as sell, the ship (b); but, on taking possession, he becomes possession. liable to everything (c); he can, however, only lawfully use it as a prudent man would use it if it had been his own property (d); and where, instead of selling the ship, the mortgagee employed it in hazardous and speculative adventures and made great losses, he was charged with the value of the ship and fittings at the time he ought to have sold it (d); but L. J. Turner thought that he ought only to be charged with the freight which he might have earned, and with the damage beyond wear and tear occasioned by his employment (d). What is said by C. J. Holt in Coggs v. Bernard (e) against the use of any chattel bailed by way of necessity which might be injured during the use made of it cannot apply to the mortgage of a ship (d). A mortgagee is entitled to a sale of a ship when a Scotch inter- Sale. dict has cast a cloud over it (x). A registered mortgagee cannot tack an unregistered further Tacking. charge against a third registered mortgage to other mortgagees where the unregistered charge was not exclusively for the first mortgagee's benefit (f). But generally the mortgagee is entitled to tack a second incumbrance in priority to every equitable charge of which he had not notice (g). A pledge of a policy on a ship may give the pledgee authority Pledge of to sue on the policy, but it passes no property in the ship, and does policy. not authorize the pledgee to give notice of abandonment (1⁄2). (x) Samuel v. Jones, 7 L. T. N. S. 760, V. C. Wood. (y) Williams v. Allsup, 30 L. J. C. P. 353. (z) Innisfallen, 1 L. R. A. & E. 72. (a) Willis v. Palmer, 6 Jur. N. S. 732, C. P. (b) European, &c. Co. v. Royal Mail, &c. Co. 4 K. & J. 677; De Mattos v. Gibson, 1 Jo. & H. 79. (c) De Mattos v. Gibson, sup. C.-VOL. I. (d) Marriott v. The Anchor Reversionary Co. 3 De G. F. & Jo. 177; 7 Jur. N. S. 713; affirming 2 Giff. 457. (e) Lord Raym. 909, 916; 1 Sm. L. C. 177, ed. 6. (f) Park v. Applebee, 7 De G. M. & G. 585. (g) Liverpool Marine, &c. Co. v. Wilson, 7 Ch. 507, L. J. (h) Jardine v. Leathley, 9 Jur. N. S. 1035; 3 B. & S. 700. SS Bankruptcy. Penalties on owners. Guardian of infant. Insurer. Equitable interests in ships. It has been held that where a mortgage, made before the completion of the ship, was registered after the ship was completed and registered, the trustee in bankruptcy of the owner of the ship could not claim it as against the mortgagee, on the ground that, no mortgage having been executed after the registration of the ship, the owner's title remained absolute (i). The purchaser by bill of sale from one who afterwards becomes bankrupt has a good title, although unregistered, against the bankrupt and all who claim under him (k). The provisions in the statute (7) that persons beneficially interested in ships and shares therein shall, as well as the registered owner, be subject to pecuniary penalties imposed upon owners, excepts persons who are beneficially interested by way of mortgage. S. 99 of the Act of 1854 does not enable the guardian of an infant shipowner to mortgage the ship for repairs, although it may be that, in the exercise of his necessary power to repair, a lien may be created upon the ship (m). The right of an insurer of ships who is, but does not appear on the register as, the mortgagee to the proceeds of the policies is not affected by the Acts (n). Before the Act of 1862 (0), it was held that a Court of equity could not give effect to an unregistered agreement to assign a ship as a security for money due (p). But the Act of 1862 is a declaratory enactment of the true interpretation of the Act of 1854 (q), to the effect that the expression "beneficial interest" includes interests arising under contracts and other equitable interests, as in the Act of 1862 mentioned; and equities may be enforced against owners and mortgagees of ships in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal property (r). Where a bill of sale of a ship has been executed in the form prescribed by s. 55 of the Act of 1854, the provisions of s. 66 thereof do not prevent the owners (i) Bell v. Bank of London, 3 H. & N. 730. (k) Stapleton v. Haymen, 2 H. & C. 918; 10 Jur. N. S. 497; 9 L. T. N. S. 655. (1) S. 100. (m) Michael v. Fripp, 7 Eq. 95, V. C. (n) Ladbrooke v. Lee, 4 De G. & S. 106. (p) Liverpool Borough Bank v. Turner, 1 Jo. & H. 159; 29 L. J. Ch. 827; affirmed 2 De G. F. & J. 502; 30 L. J. Ch. 379. (a) Ward v. Beck, 9 Jur. N. S. 912; 13 C. B. N. S. 668. And see Hutchinson v. Wright, 25 Beav. 451. (*) 2 Dav. Conv. p. 788, ed. 3; 235, 236, ed. 4. from shewing that the transfer, though absolute in its terms, was intended as a security only (s). The Court will look behind the registry to the real character of the transactions (t). On sale of a ship to an infant, the vendor is a trustee for the infant (u). Equities not registered will be taken into consideration against a transferee of the mortgage (). An unregistered transfer is binding on the trustees in bankruptcy (u). Where, however, a mortgage was concealed from the registry in order to obtain a better sale, the purchaser was not bound by it (y); but neither under the old Registry Acts, nor under the present law, is the validity of an agreement as to the disposal of money arising from the sale of a ship, or the produce of the freight, affected (z). In the transfer of a British ship, there is a clear distinction between the legal estate and mere beneficial interests therein. A sale by licitation without a bill of sale does not entitle the purchaser to be registered as owner (a). (4.) Powers of master. The master of a ship has no lien on it for necessary repairs or other expenses of the ship, though he may hypothecate it if the repairs are done abroad (b). Se he may pledge the credit of the owner for necessary supplies of goods and money (c), and he may even sell the ship for the benefit of those concerned when, from injuries suffered by her, there is no prospect of bringing her to the end of the voyage (d). There must, however, be an urgent necessity (e); and he has no lien on the accruing freight for his wages, or for the money expended by him for the use of the ship (ƒ). But he has a lien on freight earned under a charter-party made by him extra vires but which was adopted by the owner, for alterations (s) Ward v. Beck, sup. See European, &c. Co. v. Royal Mail, &c. Co. 4 K. & J. 676. (t) Innisfallen, 1 L. R. A. & E. 72; Cathcart, ib. 314. (u) Stapleton v. Haymen, sup. (x) 25 & 26 Vict. c. 63, s. 3; Cathcart, sup. (y) Hooper v. Gumm, 2 Ch. 282. (z) Armstrong v. A. 21 Beav. 78; 1 Jur. N. S. 859. (a) Chasteauneuf v. Capeyron, 7 App. C. 127, J. C. (b) Hussey v. Christie, 9 East, 426; Abbott on Shipping, 119, ed. 11. And see Lister v. Payn, 11 Sim. 348; The Hebe, 10 Jur. 227, Adm. (c) Weston v. Wright, 7 M. & W. 396; Arthur v. Barton, 6 ib. 138. (d) Hunter v. Parker, 7 ib. 322. (e) Robertson v. Clarke, 1 Bing. 445; Eliza Cornish, 17 Jur. 738, Adm.; 29 L. J. Exc. 88. (f) Gibson v. Ingo, 6 Ha. 112; Smith v. Plummer, 1 B. & Ald. 575; Atkinson v. Cotesworth, 3 B. & C. 647. Advances by charterer. Authority over proceeds of sale. Charter party. Definition. of the ship in pursuance of the charter-party; but this was a special case (g). The charterer of a ship in a foreign port, who, with notice of a prior mortgage of the ship, advances money for the equipment of the ship in her homeward voyage, cannot set off against the sum due under the charter-party the excess of the sum advanced by him over the sum covered by the bottomry bond (h). The authority, that a master has in cases of necessity to sell the ship, enables him to receive the proceeds, or to order payment of them bona fide to such persons as he may think fit (i), though the rule is otherwise in the case of an agent employed to sell an estate (k). It is the duty of a master, in case of damage to the ship, to do all that can be reasonably done to repair it, bring home the cargo, and earn the freight. Where, in case of damage to a ship, the master elects to repair it, the mere fact that the expenses of repair ultimately prove to be greater than the value of the ship, will not be sufficient to show that he acted beyond the scope of his authority (7). A ship's husband has the authority of the owners to procure a charter-party and to make contracts for their benefit, but he cannot cancel a charter-party (m). (5.) Bottomry bond. Bottomry is a contract by which a ship and freight, with the cargo (if necessary), are made liable by the master as the agent of the owner, failing other resources, for the payment, within a certain time after the safe arrival of the ship at her destination, of a debt contracted for the supply of what is necessary for the preservation of the ship or the continuance of the voyage. It requires that there shall be a maritime risk to be ascertained from the contents of the instrument, and it creates a debt (which is generally only treated as nominal) against the master, but none against the owner (»). (g) Bristow v. Whitmore, 9 H. L. 391; (h) Dobson v. Lyall, 2 Ph. 323, n. (k) Mynn v. Joliffe, 1 Mo. & Rob. 326. (1) Benson v. Chapman, 2 H. L. 696; affirming 5 C. B. 330; and reversing 6 Man. & G. 792; 7 Scott, 625; 13 L. J. N. S. C. P. 25. (m) Thomas v. Lewis, 4 Ex. D. 23; Story, Agency, s. 35, n. 4. (n) Fish. Mtg. pp. 8, 85, ed. 3; 91, ed. 4. bond. The bottomry bond is in writing, and may be under seal, and Form of may be executed on land (0). Before the Jud. Act it was not negociable at law, although it was treated as negociable in the Courts of Equity and Admiralty (p). No particular form is necessary (1). A bill of sale will suffice, if hypothecation is intended (r): but not if the intention were to effect a sale (s); and a bill of exchange, though on its face for repairs, will not operate by way of bottomry (1). But bills of exchange are commonly given in practice as collateral securities, and as being more negociable; but the nature of the original bottomry transaction is not affected thereby (u). And an agreement for a bottomry may be enforced if the other requisites exist (r). A bond may be valid, though its execution preceded (y) or followed (≈) the loan; and it may be dated after the commencement or even completion of the voyage (a). The agent of the ship acting bonâ fide may take a bottomry bond (b); and the bond is not invalidated by the fact of the master becoming the purchaser of the ship (c). Bottomry bonds are favoured in maritime Courts, and every intendment will be made in their favour, and any parts which are inconsistent with the rules of bottomry may be rejected without invalidating the bond (d). laws. The validity of a bond is determined by the general law mari- Conflict of time, and not by the law of the ship's flag, or of the country where it is granted (e). (0) Menetone v. Gibbons, 3 T. R. 267. (p) Rebecca, 5 Rob. Adm. 102; William, Swab. Adm. 346; 31 L. T. 345. (2) Alexander, 1 Dods. 278; Mary Ann, 1 L. R. A. & E. 13. (r) Johnson v. Shippen, 2 Ld. Raym. 982; 1 Salk. 35. (s) Ridgway v. Roberts, 4 Ha. 106. (t) Eeurom, 2 C. Rob. 1; Exp. Halkett, 3 V. & B. 135; 19 Ves. 474; Lochiel, 7 Jur. 265; 2 W. Rob. 34. (u) Tartar, 1 Hag. Adm. 1; Nelson, ib. 169; Jane, 1 Dods. 461; Emancipation, 1 W. Rob. 124; Ariadne, ib. 411; 1 N. of C. 494; Augusta, 1 Dods. 283; Stainbank v. Shepard, 17 Jur. 1032, Parke, B.; Exp. Halkett, sup. (x) Alexander, sup.; Aline, 1 W. Rob. 111. (y) Royal Arch, Swab. 269. (z) Ysabel, 1 Dods. 273; Vibilia, 1 W. (a) Mary Ann, 10 Jur. 253, Adm. (c) Helgoland, 1 Swab. 491. (d) Augusta, sup.; Osmanli, 3 W. Rob. 198; Smith v. Gould, 4 Mo. P. C. 21. (e) Bonaparte, 2 W. Rob. 398; 14 Jur. 606, Adm.; Duranty v. Hart, 2 Mo. P. C. N. S. 289; B. & L. 253; Lloyd v. Guibert, 1 L. R. Q. B. 115, Willes, J. |