Page:Federal Reporter, 1st Series, Volume 3.djvu/172

 FORCE V. SHXP PBIDE OF THE OCEAN. 165 �the voyage, and upon the face of the contract set forth it appears that the repayment of the loan was dependent upon the arrivai of the vessel at the port of destination. �I see no ground, therefore, upon which to deny to this contract the character of a loan upon bottomry. No case in this country has been found that ean be cited in support of this conclusion, and, so far as I am informed, this is the first instance in this country where the legal character of the instrument under consideration has been called in question. But the instrument before the British admiralty, in the case of The Cecilie, (Law Eep. 4 Prob. Div. 210,) was very similar to the instrument here in question, and the ruling of the court in that case goes far to sustain the conclusion that the con- tract set forth in the libel is, in legal efïect, bottomry. �It is next contended in behalf of t he intervenors that upon the facts stated in the libel the loan has not become due, and, therefore, cannot be enforced against the ship. The libel shows that the voyage described in the agreement has been broken up, not by any act of the lender, but because the bor- rower occasioned the loss of another man's vessel and omit- ted to pay therefor. The collision that gave occasion for the seizing of the ship has been held to have arisen from the neg- ligence of the master of the ship. It was open to the bor- rower to prevent the condemnation of the ship by paying the damages caused by the collision or by substituting a stipu- lation in place of the ship. He elected to do neither, and the necessary resuit is to prevent the accomplishment of the voy- age, upon the risk of which the money claimed by the libel- lants was loaned. Under such circumstances it can hardly be doubted that the loan has become due and enforceable against the ship. �The next position taken in behalf of the intervenors is that the libellant can have no interest in the proceeds of the sale of the ship superior to theirs, because they were the first to proceed against the ship, and prior to any steps taken by the present libellants they had obtained a decree condemning the ship to be sold to pay their demand, by which decree it is insisted the ship and her proceeds, so far as necessary for ����