Page:Federal Reporter, 1st Series, Volume 3.djvu/171

 164 FEDERAL REPORTER. �ship was prosecuting her aforesaid voyage, she met with the collision whioh formed the subject of the action by the ownera of the sohooner George W- Andrews, to which reference bas already been made. In the collision the schooner was sunk, and the ship so injured that she was oompelled to put back to New York, where, upon her arrivai, she was immediately seized, at the instance of the owners of the George W. An- drews, to recover for the loss of the schooner, and was there- after condemned to be sold in such action as already described. �Upon these facts the present libellants claim to be entitled to be repaid the amount of the loan out of the proceeds of the sale of the ship, and to be entitled to priority over the claim of the owners of the George W. Andrews in the distri- bution of the proceeds of the sale of the ship. �In this action by Force the owners of the schooner George W. Andrews have intervened for their interest in the proceeds of the ship, and, by exceptions to the libel, have raised vari- ons questions that are now to be determined. �In the first place, they eontend that the instrument set forth in the libel of Force does not show a contract of bot- tomry, and does not entitle the libellant to enforce his de- mand against the ship. The ground of this contention is that there was no agreement for maritime interest, and the transaction was simply a draft against freight. �Upon this question I remark that the character of the con- tract set forth in the libel must be determined from the terms of the instrument and the circumstances under which it was made, as those circumstances appear in the libel. The cir- cumstances stated in the libel, which on this occasion must be taken to be truly set forth, show the contract to be one of bottomry, unless it be that an agreement for maritime inter- ests is a necessary element of such a contract. But such is not the law. The absence of an agreement for maritime interest is a significant circumstance, always to be taken into consideration in determining whether the loan was in good faith made upon the risk of the voyage, but it is not con- clusive proof that no maritime risk was assumed. In this case the libel avers that the loan was made upon the risk of ����