Page:Halsbury Laws of England v1 1907.pdf/288

.

Admiralty.

66 Sect.

4.

Bottomry.

Evidence of necessity for loan.

contract, the lender on the bottomry bond loses his money but if the ship arrives safe, then he recovers the loan, with interest, which is called maritime interest and may be in proportion to the risks of the voyage (Q

103. In order to enable the Court to pronounce for the validity bottomry bond or bill (m) or a respondentia bond put in suit

of a

before it, and to condemn the ship or freight and cargo or cargo alone, as the case may be, in the amount found due on the bond or bill, the Court must be satisfied by sufficient evidence that necessity existed for the loan on bottomry {n) This is ordinarily established by proof that the master or owner of the ship was in want of supplies (o) and was without credit at the port where the bond was executed, and was unable to obtain the necessaries for the continuance of the voyage without resort to a bottomry bond(p). If the cargo is hypothecated it must be shown that the necessity of the cargo required its hypothecation, or at least that some prospect of benefit accrued to the cargo by the hypothecation {q). .

Bond on personal credit invalid.

104. The Court has no jurisdiction to pronounce for the validity bond if the bulk of the money lent on it has not been advanced on the security of the ship or cargo, but on the personal credit of the owners or master (?) a bond may, however, be good in part and bad in part (s) and upheld so far as it covers money advanced on the credit of the ship though void as to any money advanced on personal security. Where a bottomry bond has been given, bills of exchange for the amount lent, drawn by the master, may be, and frequently are, taken as a collateral security for the payment of the bond, and the validity of the bond is not thereby affected (^). of a



,

Where collateral

security taken.

Where no maritime risks.

Where maritime interest not stipulated for^

105. Where there is no maritime risk, that is, where the repayof the money advanced is not made dependent upon the safe a bond cannot be enforced in the Admiralty arrival of the ship Division as a bottomry bond, though a bond covering in part property not exposed to maritime risk, and bad as to that part, may be valid as to the residue in respect of which maritime risk exists {tv). A bottomry bond may be pronounced valid and within the

ment

See The Atlas (1827), 2 Hag. Adm. 48, 53. (m) These are to the same effect as bottomry bonds. See The Elpis (1872), The D. H. Bills (1878), 4 P. D. 32, n. L. E. 4 A. & E. 1 {n) The Karnak, (1868), L. E. 3 A. & E. 289, and, on appeal, (1869) L. E. 2 P. C. 505 The Panama (1870), L. E. 3 P. 0. 199. (o) See The Lizzie (1868), L. E. 2 A. & E. 254. The (p) Kleimiuort v. The Cassa Marittima of Genoa (1877), 2 App. Gas. 156 Onivard (1873), L. E. 4 A. & E. 38. {q) See The Onward, supra. The Court of Admiralty was not (V) The Rhadamanthe (1813), 1 Dods. 201. prohibited where it entertained a cause of bottomry against the ship, but a prohibition was granted where the owners were sued to compel repayment of the bond {Johnson v. Shippin (1703), 1 Salk, 35). (s) See Cargo ex Sultan (1859), Swa. 504 The Augusta (1813), 1 Dods. 283. The Staffordshire (1872), L. E. (t) Stainhank v. Shepard (1853), 13 C.B.418 4 P. 0. 194 The Onward, supra ; The Haahet, [1899] P. 295, {u) The Indomitable (1859), Swa. 446. (w) Cargo ex Sultan, supra. (/)