tiff's agents accordingly paid the fum of 1031 1. 14 5. for the expences of reclaiming the hip and cargo; and immediately procured the policy in question to be effected in January 1781, according to the purport of the memorandum. In the February following, the fhip fet fail from Falmouth with the original cargo on board, in the profecution of her voyage to Marjeilles: but on the 26th of the fame month, before ber arrival there, was captured by a Spanish ship, and carried into Ceuta in Spain, where he was again condemned. An appeal was brought in the fuperior court of Madrid, which promifing to be of long continuance, the cargo, which was of a perishable nature, was ordered to be fold, and the proceeds to be brought into court, to wait the event of the fuit. In May 1783, the veffel was reftored by fentence of the court, and the furplus of the proceeds, which arofe from the fale of the cargo, was paid to the owners, deducting the expences incurred in Spain in profecuting the appeal. After all the charges paid, there only remained twenty-fix rix dollars. As foon as the fhip was liberated, the failed from Ceuta to Malaga, in order to refit, and having there made the neceffary repairs, fet fail for Bremen, and in that voyage was loft. The infurance made upon the cargo at Bremen has been paid. The declaration averred, that "whilst

the fhip was proceeding in ber faid voyage from "Falmouth to Marfeilles, and before he could ar"rive at Marfeilles, fhe was captured by the Spa"niards, and thereby the faid fhip, and also the

goods and merchand zes on board her, were totally left to the plaintiffs." At the trial, it was objected on the part of the defendant, 1ft, That this was not an infurable intereft; and 2dly, That the plaintiffs could not recover upon the policy in this form of declaring, for they flated the lofs to have happened by capture; whereas, though the veffel was captured, yet, having

been afterwards reftored, the might have reached her destined port, notwithstanding the capture, in which cafe the underwriters would have been difcharged by the terms of the memorandum. I was of that opinion, and upon the last ground, I nonfuited the plaintiffs.

This cafe was very fully argued both upon the merits, and the formal objection, after which all the Judges fpoke upon the question.

Lord Mansfield.-The intereft, on which the plaintiffs effected this policy, was money laid out in reclaiming the cargo. The event, infured by the policy, was the arrival of the ship at Marfeilles. If he did not arrive, then the money was to be paid; if he did, then there was an end of the insurance. A lofs accrued upon the cargo in the voyage: the underwriter is fued, and the lofs is averred in the declaration to be by capture. The fact of the cafe is, that the fhip was taken by a Spanish privateer, but was afterwards restored, and in a condition to purfue the voyage, and was afterwards loft in another voy

age.

In

Mr. Juftice Willes.-Upon this cafe, it is clear, that the plaintiffs cannot recover. the first place, there was certainly a deviation, for the fhip fet fail for Malaga, instead of proceeding to Marfeilles. Secondly, the plaintiff has declared for a lofs by capture: but, after the capture, the policy might ftill have been complied with by the fhip's going to Marfeilles; and therefore the lofs cannot be faid to have happened by that circumstance.

Mr. Justice burst and Mr. Juftice Buller alfo delivered their opinions, agreeing with Lord Mansfield and Mr. Juftice Willes upon the formal objection; and both went much at large into the merits, upon which I forbear to follow them or the Chief Juftice, as what paffed upon that fubject is not material to our prefent enquiry.

Hh 2

But

B. R. 304.

But where a lofs is averred to be by perils of the fea, and fome of the goods infured are spoiled, and others faved, it is allowable to give the expence of the falvage in evidence upon fuch an averment, because it is a confequence of the accident laid in the declaration.

Cary v.King. In an action on a policy of infurance, for inCaf Temp. furing goods on board the fhip A. the plaintiff Hardwicke, declares, that the fhip sprung a leak, and funk in the river, whereby the goods were spoiled. The evidence was, that many of the goods were fpoiled, but fome were faved; and the question was, Whether the plaintiff might give in evidence the expence of falvage, that not being particularly laid as a breach of the policy in the declaration.

2 Black. Comm. 457.

Lord Hardwicke Chief Juft.-I think they may give it in evidence; for the infurance is against all accidents. The accident laid in this declaration is, that the fhip funk in the river; it goes on and fays, that by reafon thereof the goods were fpoiled, that is the only fpecial damage laid yet it is but the common cafe of a declaration that lays fpecial damage, where the plaintiff may give evidence of any damage that is within his caufe of action as laid. And though it was objected, that fuch a breach of the policy fhould be laid, as the infurer may have notice to defend it; it is fo in this cafe, for they have laid the accident, which is fufficient notice, because it must neceffarily follow, that fome damage did happen.

CHAPTER THE TWENTY-FIRST.

Of Bottomry and Refpondentia.

THE contract of bottomry is in the nature of a mortgage of a fhip, when the owner of it borrows money to enable him to carry on

the

2 Blackf

the voyage, and pledges the keel or bottom of the fhip, as a fecurity for the repayment: and it is understood, that if the fhip be loft, the lender alfo lofes his whole money; but if it return in fafety, then he thall receive back his principal, and alfo the premium or intereft ftipulated to be paid, however it may exceed the ufual, or legal rate of interest. When the fhip and tackle are brought home, they are liable, as well as the perfon of the borrower, for the money lent.But when the loan is not made upon the veffel, but upon the goods and merchandizes laden Com. 458. thereon, which, from their nature, must be fold or exchanged in the courfe of the voyage, then the borrower only is perfonally bound to answer the contract; who therefore in this cafe is faid to take up money at refpondentia. In this confifts the difference between bottomry and refpondentia; that the one is a loan upon the fhip, the other upon the goods: in the former the fhip and tackle are liable, as well as the perfon of the borrower; in the latter, for the most part, recourse must be had to the perfon only of the borrower. Another obfervation is, that in a loan Valin Com. upon bottomry, the lender runs no rifk though p. 4. the goods fhould be loft; and upon refpondentia, the lender must be paid his principal and intereft, though the fhip perifh, provided the goods are fafe. But in all other refpects, the contract of bottomry and that of refpondentia are upon the fame footing; the rules and decifions applicable to one, are applicable to both; and therefore in the courfe of our enquiries, they shall be treated as one and the fame thing, it being fufficient to have once marked the diftinction between them.

These terms are alfo applied to another fpecies of contract, which does not exactly fall within 2 Blackf Com. 458. the description of either, namely, to a contract for the repayment of money, not upon the fhip and goods only, but upon the mere hazard of 1 Siderfin 27.

Hh3

the

the voyage itself: as if a man lend 1000l. to a merchant to be employed in a beneficial trade, with a condition to be repaid with extraordinary intereft, in cafe a fpecific voyage named in the condition fhall be fafely performed: which aMolloy, lib. greement is fometimes called fanus nauticum or ufura maritima. But as this fpecies of bottomry opened a door to gaming and ufurious contracts, efpecially in long voyages, the legislature, at the time it fuppreffed infurances upon wagering policies, introduced a clause, by which it was enacted, "That all fums of money lent on

2. C. II.

1. 8.

19 Geo. 2.

bottomry, or at refpondentia upon any ship or fhips belonging to his Majefty's fubjects, "bound to or from the East Indies, fhould be lent "only on the fhip, or on the merchandize or "effects, laden or to be laden, on board of "fuch fhip, and fhould be fo expreffed in the "condition of the faid bond; and the benefit of "falvage fhould be allowed to the lender, his

agents or affigns, who alone fhould have a right to make affurance on the money fo lent; "and in cafe it fhould appear that the value of "his fhare in the fhip, or in the merchandizes "or effects laden on board of fuch fhip, did not "amount to the full fum or fums he had bor"rowed as aforefaid, fuch borrower fhould be

refponfible to the lender for fo much of the money borrowed, as he had not laid out on "the fhip or merchandizes laden thereon, with lawful intereft for the fame, in the proportion "the money not laid out fhould bear to the "whole money lent, notwithstanding the hip "and merchandizes fhould be totally loft."

This ftatute has entirely put an end to that fpecies of contract which was last mentioned, namely, a loan upon the mere voyage itself, as far, at least, as relates to India voyages; but as none other are mentioned, and as expreffio unius eft exclufio alterius, thefe loans may be made in all other cafes, as at the Comпion Law.