Page:Federal Reporter, 1st Series, Volume 2.djvu/724

 THE BBIG B. A. BABNARD. , 717 �not. The element of marine risk is wanting. The language, "I shali make y ou a remittance from Oporto," etc., (relied upon by the claimants, in thia respect,) does not indicate that reiinbursement is to depend upon the safe arrivai of the vessel there. It bears no resemblance to the expression, "The amount to be paid in one month after the ship'a arrivai at any port of discharge in Great Britain," contained in the instrument involved in The Nelson, 1 Haggard, Ad. Eep. 169 ; as the court there said, "If the port was never reached, the time appointed for payment would never arrive." While the language of a bottomry bond should not leave the question of marine risk open to doubt, that of the instrument before me seems to be plainly inconsistent with the assumption of such risk. The ^stipulation for the owner's personal obligation can- not be reconciled with the idea that the vessel alone was looked to. Where the instrument is executed by the master, and a bottomry contract clearly appears to have been intended, a provision for such personal responsibility (being clearly beyond the master's authority) has been held void. This is reasonable, as well as just. But where the instrument is executed by the orcner, the provision not being liable to this objection, its insertion bears with very great (though, possi- bly, not controlling) force on the question of marine risk. �The instrument held by Baring Bros. &Co. cannot, there- fbre, be treated as a bottomry bond. Nor can the transaction out of whioh it grew, separately considered, be held sufficient to support an ordinary maritime lien. Furnishing the means required to relieve a vessel's necessities, in a foreign port, would undoubtedly be sufficient. But here, as has been de- termined in passing upon the claim of the stevedore, the vessel was at home; and (looking at the transaction inde- pendently of the paper, as must be done in considering this aspect of the claim) the inference that it was credited (the only ground on which such a lien can rest) is inadmissible. These claimants cannot, therefore, receive anything, as against the lien creditors. If a balance remained for the owner, they might stand in his stead, as upon a mortgage, or other hypothecation not of a maritime nature. �8* ����