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His decision was, that the expenses of getting the vessel off and of taking her to Liverpool, are not chargeable in General Average. He supported this view by a long chain of argument, too extensive to introduce in the text of a manual like this; but I give the judgments in both cases in an Appendix (No. 8.)

It must certainly be considered very unfortunate that two decisions by a judge of such high authority should contradict each other, and leave a question in a state of greater uncertainty than before it was touched by him; but it may serve to show that where arguments of great force or of great delicacy can be urged on both sides, conclusions in such matters are not so irrefragable as to convince all persons; and that two minds may be led to opposite results in a manner equally satisfying to themselves, and that this also happen to the same mind at different times.*

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OF THE MEANS OF RAISING MONEY FOR DISBURSEMENTS IN FOREIGN PORTS.

When an English ship under average is in an English port, the expenses are usually paid by the agent drawing a bill on the owner, who, by custom, is taken to be purse-bearer for all parties by whom the average will eventually be paid. Should the sum required be too large for the owner to meet, he sometimes procures a portion from the proprietor of the cargo, or, if he be insured, an advance from his underwriters. Arrangements relating to funds are

See Appendix No. 8 for a report of the trial.

naturally more easy to make when owners reside in the same country in which the average occurs, and where there are the means of communication between the master and his owner. Even in foreign countries, it frequently happens that a shipowner has sufficient credit for the agent or merchant disbursing average expenses on his vessel to be satisfied with a bill of exchange upon him without further security. I need not point out how advantageous it is thus to be able to raise funds, free from those expenses which an average often entails in procuring the means of defraying the disbursements. It is one of the many advantages which a merchant gains by shipping goods on vessels belonging to respectable owners, with sufficient capital for carrying on their business. But more often, and, indeed, in the majority of cases, the agent who advances the money for a vessel under average in a foreign country requires a greater security for his outlay of funds than a simple bill of exchange.

Insurance of Disbursements.

Sometimes the danger he fears is not the insolvency of the owner, but the subsequent loss of the vessel after leaving his port, and he contents himself with insuring the sum advanced against this risk; in which case the premium and expenses of insurance are chargeable in the average statement, pro ratâ. This course is also taken not unfrequently by the owners or the insurers of ship or cargo; as in case of the vessel's subsequent loss, they would have to bear both that loss and the previous average.

Bottomry Bonds.

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A very usual manner of paying disbursements is by a Bottomry or Respondentia bond. A Bottomry bond is a bond which pledges the ship itself, instead of the owner's credit, for payment of the advances; and Bottomry Premium given on such a bond varies from five per cent. to fifty per cent., or even more. In its proper form it takes effect only at the termination of the voyage and at the place specified in the document; and, usually, three or more days' grace is granted for the captain and owner to satisfy the holder of the bond, after the ship's arrival at her destination. One of the conditions of such a bond is, that in case the vessel, by losses and accidents of the sea, never reaches the place to which she is bound, the bond is cancelled. This risk is frequently provided against by the lender of the money insuring the bond. There are other bonds which are given as collateral security for bills drawn on the owner; these are considered a spurious kind. They generally contain a clause that if the bills are duly honoured and paid, the bond is void, and the premium stated therein is not to be enforced. This non-enforcement of premium is sometimes the case with valid bottomry bonds,

This is the usual way of describing the security; but strictly speaking, it is incorrect. Bonds of Bottomry and of Respondentia are really written securities for loans made on the credit of the master, owner, and proprietor of cargo. The remedy is not against the things themselves,-technically speaking, not ad rem,-though proceedings in practice reduce it to much the same as if it were. The captain or other person who gives and signs the bond remains personally liable.

where the person advancing does not seek farther profit than his commission and agency, but requirės a security. There are other bonds of an irregular and ambiguous nature; some of which are for time, and follow the vessel about; sometimes precede her, and are made the means of getting bills of exchange paid in advance before the ship arrives. Such bonds are exceptional, and do not fulfil the meaning or intention of Bottomry.

Respondentia Bonds.

Sometimes, and very frequently, the freight and the cargo are included in the bond, and then it is called a Respondentia bond, or bond of Bottomry and Respondentia. In this case the holder's lien is first on the ship itself, next on the freight, and lastly on the cargo. The bond gives the holder the right, in case of nonpayment, to sell the ship, confiscate the freight (out of which, however, the seamen's wages must first be paid), and then, and lastly, to sell as much of the cargo as is required to make up the sum of the bond with its premium unsatisfied by the two former means of payment.*

If more of the cargo is sold than is necessary to pay that part of the bond which applies to the cargo, the remedy of the proprietors of cargo is personally against the shipowner.

It is needful that a lender should exercise care in making advances on bottomry. He is not by his facility to encourage a shipmaster in an extravagant

See foot-note, page 68.

expenditure. He must ascertain by inquiry that the loan demanded is really wanted for the necessities of the ship; and advertisements for bottomry must state the object for which the money is required. After this preliminary inquiry, it is not pretended that the lender is bound to see to the application of the money-how it is actually expended.

When two or more bonds are given on the same voyage the last takes precedence, and so on in a retrograde order. The last one being satisfied, the penultimate takes what is left, &c. There is one exception, however. If after a bond has been given the captain obtains a credit from his owner, and then gives a subsequent bond, the first, in this case, takes priority.

It has been thought that it is illegal to lend on bottomry to an English ship in an English port; but in the case of Arthur v. Barton it was decided that the master of a coasting vessel could bind his owner residing in England by a bond given in one of our own ports.

If a bond is oppressive from exorbitant interest, &c., or bad in itself, the Court of Admiralty can give protection and relief from it. And where the Admiralty Court was made use of to enforce a bond which was fraudulent, a court of equity has jurisdiction, and will stay proceedings.

The general name of thus dealing with the ship, freight, and cargo for the purpose of raising money is Hypothecation; a name which marks the distinction between absolute power over person and property by means of a bond in usual form, and the contingent

* Glascott v. Lang.

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