1. So long as a vessel exists
in specie in the hands of
the owner, although she may require repairs greater than her value,
a case of "utter loss," within the meaning of a bottomry and
respondentia bond does not arise, and she continues subject to the
hypothecation.
2. The holder of such a bond, which was conditioned to be void
should an utter loss from any of the enumerated perils occur, is,
upon a wreck of the vessel during the specified voyage not
amounting to such loss, entitled to the proceeds of the cargo saved
by his efforts, as against the insurers thereof, who accepted an
abandonment by the owners as for a "total loss" and paid the amount
of their policies, said proceeds being insufficient to satisfy the
bond.
So held in this case, which relates solely to such
proceeds.
The plaintiff, the Delaware Mutual Safety Insurance Company, was
insurer of a cargo of sugar on board the
Frances from Java
to Boston. After leaving her port of departure, the vessel
encountered a hurricane, which compelled her to proceed to
Singapore, where she was repaired and fitted to continue the
voyage.
To meet the expenses of repairs, the master was obliged to
borrow at Singapore the sum of $26,055.43, Singapore currency, and
to execute, on the twelfth day of July, 1872, a bottomry bond for
that sum, with marine interest at twenty-seven and a half percent,
upon the vessel and freight.
The bond contained the following stipulation:
"
Provided nevertheless, and it is hereby agreed, that
if, in the course of the said voyage, an utter loss of the said
vessel by fire,
Page 96 U. S. 646
lightning, enemies, men-of-war, or any other perils, dangers,
accidents, or casualties of the seas or navigation, shall
unavoidably happen, then the said loan and interest shall not be
payable, and all parties liable therefor shall be wholly discharged
therefrom, and the loss shall be wholly borne by the said lenders
or bondholders, and everything herein contained for payment thereof
shall be void and determined, save and except only, and provided in
such case, that the said lenders or bondholders shall be entitled
to such average as can be hereby lawfully secured to them on all
salvage recoverable in respect to the said vessel, freight, and
goods, or any of them."
The vessel sailed from Singapore for Boston, encountered a storm
in the month of December following, and was cast ashore on Cape
Cod, Mass.
The defendants, Gossler & Co., who were agents of the
bondholders and assignees of the bond, succeeded in saving somewhat
less than half the sugar on board, and forwarded it to Boston.
The vessel, as she lay upon the beach, was surveyed, and, having
been found incapable of repair, was broken up, and her materials
were sold. When she was sold, she lay "on the beach, full of water,
as high as she could, but so low as to be submerged at high water."
The chains and anchors, sails and rigging and hull were sold
separately at auction by the underwriter in January, 1873; the
chains, anchors, and other utensils bringing $1,494.75, the sails
and rigging, $2,323.70, and the hull $2,000.
Upon learning of the disaster, the owners of the cargo made
abandonments in writing to the plaintiff as the underwriter
thereon, and claimed payment for a total loss under their
respective policies.
The letters of abandonment were dated, respectively, Dec. 28,
30, and 31, 1872.
In March, 1873, the plaintiff paid to each owner the amount of a
total loss under his policy, and received on the same date from
them so insured and paid an assignment and transfer in writing of
"the sugar of said owners and all their right, title, interest,
trusts, claim, and demand therein and thereto."
Page 96 U. S. 647
The defendants, as agents of the bondholders, with the consent
of the owners of the cargo, proceeded to sell the sugar saved, and
now hold the proceeds, claiming them on account of said bond, such
proceeds not being sufficient to satisfy it. The plaintiff, having
at all times claimed them as the underwriter who accepted
abandonments and paid a total loss thereon, brought this action to
recover them.
The case was tried by the court below, and, judgment having been
rendered for the defendants, the company brought the case here.
Page 96 U. S. 648
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Maritime hypothecations had their origin in the necessities of
commerce, and they are said to be the creatures of necessity and
distress. When properly authorized and duly executed, they are of a
high and privileged character, and are held in great sanctity by
maritime courts.
The Vibilia, 1 W.Rob. 1;
The
Rhadamanthe, 1 Dod. 201;
The Hero, 2
id.
139;
The Kennersley Castle, 3 Hagg. 1.
Instruments of hypothecation are usually executed by the master,
he being regarded as the agent of the owner, the rule being that
the owner is bound to the performance of all lawful contracts made
by the master relative to the usual employment of the ship, and to
the repairs and other necessaries furnished for her use.
The Aurora, 1
Wheat. 96.
Contracts of the kind are authorized in emergencies for the
purpose of procuring necessary repairs and supplies for ships which
may happen to be in distress in foreign ports, where the
Page 96 U. S. 649
master and the owners are without credit and where, unless
assistance can be procured by means of such an hypothecation, the
voyage must be broken up or the vessel and cargo must perish.
Burker v. The Brig M. P. Rich, 1 Cliff. 308.
Such an hypothecation of the vessel by the master is only
authorized when based upon necessity. And the required necessity is
twofold in its character: it must be a necessity of obtaining
repairs or supplies in order to prosecute the voyage, and also of
resorting to such an hypothecation from inability to procure the
required funds in any other way.
Thomas v.
Osborn, 19 How. 22;
The Hersey, 3 Hagg.
404.
Sufficient appears to show that the plaintiffs were the
underwriters on the cargo of the bark
Frances, consisting
of sugar, on her voyage from Java to Boston; that in due course of
navigation, the bark sailed from a port of Java, duly laden, for
her return port; that she soon encountered a hurricane, which
compelled the master to cut away her masts to save the vessel, and
to put into a neighboring port for repairs, from whence it became
necessary for the bark to proceed to the port of Singapore to fit
the vessel to continue the voyage. Destitute of funds to pay the
expenses incurred for the repairs, and without credit, the master
was obliged to execute a bottomry bond there for the sum necessary
to liquidate those expenses, with marine interest at twenty-seven
and one-half percent, upon the bark, cargo, and freight. All
matters of the sort having been adjusted, the bark sailed from the
port of Singapore for the port of Boston, but before she reached
her port of destination, she encountered a storm, and in the month
of December of that year was wrecked and driven ashore on Cape Cod.
Prompt measures for saving as much as possible from the wreck were
adopted by the defendants, who were the agents of the bondholders
or the assignees of the same, and it appears that they succeeded in
saving nearly half of the cargo, which was sent forward to Boston
and was subsequently sold with the consent of the owners.
Subsequent to the shipwreck, the bark was surveyed as she lay
upon the beach, and, being found to be incapable of being repaired,
she was broken up and her material was sold in separate parcels,
including the hull, chains, anchors, sails, and rigging,
Page 96 U. S. 650
and when the owners of the cargo were informed of the disaster,
they made abandonment in writing to the underwriters, under each
policy of the respective dates, as stated in the agreed statement,
claiming payment on each policy as for a total loss. Pursuant to
that claim, the plaintiffs, as such underwriters, paid to the
insured owners of the cargo the amount as for a total loss under
each policy and received from the owners an assignment and transfer
in writing of the sugar of the owners, and of all their right,
title, and interest in the same.
Two other matters are admitted:
1. That the defendants hold the proceeds of the sugar, the
amount being less than the amount of the bond.
2. That the plaintiffs accepted the abandonments tendered by the
owners of the cargo, and have at all times claimed what was saved
of the cargo.
Payment being refused, the plaintiffs brought an action of
assumpsit against the defendants for money had and received, and
the parties submitted the case to the circuit court upon an agreed
statement of facts. Hearing was had, and the circuit court rendered
judgment for the defendants, and the plaintiffs sued out the
present writ of error.
Due execution of the bond in question is conceded; nor is it
questioned that the circumstances were such at the time as to give
the master the power to make the loan, nor that the bond by its
terms covers the cargo and pending freight as well as the bark,
unless an utter loss of the vessel occurred during the voyage.
Authority of the master to hypothecate the ship and pending
freight in such a case whenever, within the meaning of the maritime
law, it becomes necessary to enable him to complete the enterprise
in which the ship is engaged, was never doubted whether the
occasion arises from extraordinary peril or misfortune or from the
ordinary course of the adventure. Nothing but necessity can be a
proper foundation for such an hypothecation. And that necessity, as
before stated, must be twofold in its character -- first it must be
a necessity of obtaining repairs or supplies in order to prosecute
the voyage; secondly it must be a necessity of resorting to a
bottomry bond from inability to procure the required funds in any
other way.
The Hersey,
Page 96 U. S. 651
3 Hagg. 404;
The Fortitude, 3 Sumn. 234; 1 Conkl. Adm.
(2d ed.) 269; Abbott, Shipp. (11th ed.) 126.
Shipowners appoint the master, and they are in general
responsible for his acts, but the general rule is different as to
the cargo, in respect to which the master is the mere depositary
and common carrier, whose whole relation to the goods consists in
his obligation of due conveyance, safe custody, and right
delivery.
Viewed in that light, it was supposed at one time that the
master had no power to hypothecate the cargo to raise funds to
prosecute the voyage, whatever the necessity might be; but the rule
is now well settled the other way, that the hypothecation may
extend to the cargo as well as to the ship and freight.
The
Lord Cochrane, 1 W.Rob. 313;
The Gratitudine, 3
C.Rob. 240;
The Packet, 3 Mason 257;
The Zephyr,
id., 343;
The United Insurance Co. v. Scott, 1 Johns.
(N.Y.) 105;
Fontaine v. The Colombian Insurance Co., 9
id. 29;
Searle v. Scovell, 4 Johns. (N.Y.) Ch.
218;
The American Insurance Co. v. Coster, 3 Paige (N.Y.)
323.
Bottomry bonds, when given
bona fide and for legitimate
purposes, are to be liberally protected. It is important for the
interests of commerce that a master in a foreign port, standing in
need of assistance, arising out of some unforeseen necessity, to
complete a voyage, and having no credit, should for that object be
invested with authority to pledge the ship, and charge upon it the
repayment of the loan in case of her safe arrival.
The
Reliance, 3 Hagg. 66.
Beyond all doubt, the bond in this case hypothecates the cargo
as well as the vessel and the unpaid freight by way of bottomry, as
security for the payment of the loan on the terms and conditions
specified in the instrument, which are as follows:
1. That the vessel shall proceed, and complete her voyage
without unnecessary deviation.
2. That the principal and marine interest shall be paid in the
manner specified, within three days after the safe arrival of the
vessel at the port of destination, and before the cargo is landed
or the freight collected.
3. That the cargo shall not be landed nor the freight collected
until the payment is made, and that the bondholders for the time
being shall have the privilege of enforcing those
Page 96 U. S. 652
conditions.
4. That interest on the aggregate amount at the current rate in
the port of destination shall be paid in case of failure to
discharge the amount of the principal and marine interest as
stipulated.
Superadded to those terms and conditions is the following
stipulation, in the form of a proviso: that if in the course of the
voyage an utter loss of the vessel by fire, lightning, enemies,
men-of-war, or any other perils, dangers, accidents, or casualties
of the seas or navigation shall unavoidably happen, then the loan
and interest shall not be payable, and all parties liable therefor
shall be wholly discharged therefrom, and the loss shall be wholly
borne by the lenders or bondholders, and everything herein
contained for payment shall be void and determined, save and except
only, and provided in such case, that the lender or bondholders
shall be entitled to such average as can be hereby lawfully secured
to them on all salvage recoverable in respect to the vessel,
freight, and goods, or any of them.
Difference of opinion exists among Continental writers as to the
meaning of the exception at the close of the preceding condition,
but the great weight of authority even from that source is that the
holder of the bottomry bond is preferred over the insurer or owner
to the extent of his legal claim for principal and marine interest
secured by the bond. 3 Boulay Paty, Cours de Droit Commercial
Maritime 183.
Instead of that, Valin holds that the lender on bottomry is
entitled in such a case only to such a proportion of the value of
the property salved as the sum loaned bears to the whole value of
the property hypothecated. Pothier and Emerigon concur with the
writer first named, and the Court of Privy Council Appeals decided
that if the vessel is lost, the lender on bottomry, though his
remedy is limited to the value of the property salved, is entitled
to the whole of what is saved, provided it was included in his
security.
Stephens v. Broomfield, Law Rep. 2 P.C. 522; 2
Emerigon, Traite des Assurances Maritimes et des Contrats a la
grosse 544.
Much discussion took place in the preceding case as to the
meaning of the stipulation in the closing part of the condition of
the instrument, which was quite similar in legal effect to the
Page 96 U. S. 653
closing exception in the present case, the contention being
there, as here, that it gave the owners of the ship or cargo, as
the case may be, the right to share in the salved property; but the
court without hesitation rejected the proposition, holding that the
theory involved a forced construction of the stipulation utterly
inconsistent with such a maritime contract, and that it reserved no
such right to the owners.
The Great Pacific, L.R. 2 Ad.
& Ec. 381.
Authorities to show that the doctrine of constructive total loss
is in no respect applicable to such a contract are numerous,
unanimous, and decisive.
Thomson v. The Royal Exchange
Assurance Co., 1 M. & S. 30.
In the case of bottomry, said the Chief Justice in that case,
nothing short of a total destruction of the ship will constitute an
utter loss, for if it exist
in specie in the hands of the
owner, it will prevent an utter loss; and text writers of the
highest repute adopt the same rule and express it in substantially
the same language. Nothing but an utter annihilation of the subject
hypothecated, says Chancellor Kent, will discharge the borrower on
bottomry, the rule being that the property saved, whatever it may
be in amount, continues subject to the hypothecation. 3 Kent Com.
(12th ed.) 359; Williams & Bruce, Prac. 47.
Unless the ship be actually destroyed and the loss to the owners
absolute, it is not an utter loss within the meaning of such a
contract. If the ship still exists, although in such a state of
damage as to be constructively totally lost within the meaning of a
policy of insurance, or if she is captured and afterwards retaken
and restored, she is not utterly lost within the meaning of that
phrase in the contract of hypothecation. Maude & Pollock,
Shipp. (3d ed.) 44;
The Catherine, 1 Eng.L. & Eq. 679;
The Elephanta, 9
id. 553.
Support to that view of a decisive character is derived from the
case of
Pope v. Nickerson, 3 Story 489, decided by Judge
Story, where he says that in cases of bottomry, nothing but an
actual total loss of the ship in the voyage will excuse the
borrower from payment, not even when by reason of the enumerated
perils the ship shall require repairs greater than her value, and
he adds that the proposition is fully borne out by
Page 96 U. S. 654
authority; and he adopts and fully approves what was decided in
the case of
Thomson v. The Royal Exchange Assurance
Company, to which reference has already been made, that the
question in such a case is not whether the circumstances were such
as that in case of insurance, the insured might have abandoned the
ship, but whether it was an utter loss within the true intent and
meaning of a bottomry contract, and he held that in cases of
bottomry, a loss not strictly total cannot be turned into a
technical total loss by abandonment, so as to excuse the borrower
from payment, even when the expense of repairing the ship exceeds
her value.
Hypothecations of the kind are created by contract in writing
whereby the master of a vessel in a foreign port, not having any
credit in the port where the vessel is lying, is enabled to obtain
money for the repair and equipment of the vessel and for necessary
supplies for the prosecution of the voyage, by creating a charge or
lien upon the vessel and freight, or upon the vessel, freight, and
cargo, in favor of the lender, so that if the vessel or cargo is
sold or mortgaged by the owners, the property will be burdened with
the charge or lien in the hands of the purchaser or mortgagee.
Addison, Contr. (6th ed.) 275.
Contracts regularly created in that mode and for that purpose
give rise to a maritime lien well understood in the civil law as
existing, even without actual or constructive possession, the rule
being that wherever a maritime lien of the kind exists, it gives a
jus ad rem to the property to which it attaches, to be
carried into effect by appropriate legal process. Such a contract
does not transfer the property hypothecated, but only gives the
creditor a privilege or claim upon it, to be carried into effect by
legal process in case the vessel arrives at the port or destination
in safety. Abbott, Shipp. (11th ed.) 128;
The Tobago, 5
C.Rob. 218;
Stainbank v. Fenning, 11 C.B. 88;
Stainbank v. Shepard, 13
id. 417.
Where several securities of the kind are given upon the same
ship and cargo, the rule is, all other things being equal, that
they take effect in the inverse order of their dates, because it is
supposed that the last loan furnished the means of preserving the
ship, and that without it the prior lenders would have entirely
lost their security.
The Eliza, 3 Hagg. 86.
Page 96 U. S. 655
Subject to the rule that requires diligence in putting the bond
in suit, securities of this nature, when the fund is deficient,
take priority, as before remarked, in the inverse order of their
dates, the ground for the preference of the later bonds to the
earlier being the condition of necessity on which the validity of
each is originally dependent. Which is applicable to the last as
well as to the first, and is regarded as a safe reason for
presuming that the one latest in date furnished the means for
preserving the property for the earlier lender. Maclachlan, Shipp.
(2d ed.) 5.
Liens of the kind are preferred to all other claims upon the
property, except those arising from seamen's wages, the claims of
salvors for subsequent service in saving the adventure, and the
holder of a subsequent bottomry bond.
The William F.
Safford, Lush. 69;
The Priscilla, id., 1.
Throughout, it should be borne in mind that the bond in this
case covers the bark, pending freight and cargo, and that the
controversy in the case has respect only to the proceeds derived
from the sale of so much of the cargo as was saved by the efforts
of the defendants. Where the bond only covers the ship, the lenders
run no risk as to the cargo, as they must be paid if the ship
arrives in safety, even though the whole cargo is lost; but where
the bond covers the cargo as well as the vessel, the lender, unless
the condition is otherwise, is entitled to be paid even if the ship
is lost if enough of the cargo arrives in safety to pay the
bottomry loan, the rule being that the maritime lien of the lender
attaches to the entire property covered by the bond, or, to all
that part of it which arrives at the port of destination in
safety.
Actual total loss of the property by the described perils
displaces the lien of the lender and defeats his right of recovery,
but the rule is that if the ship is once bottomried, the bond
attaches to the very last plank, and the holder of the bond may
have that sold for his benefit.
The Catherine, 1 Eng. L.
& Eq. 679.
Abundant authority exists for that proposition, and the Court is
of the opinion that the same rule is applicable to the cargo in
cases where it is without condition covered by the bond.
The Virgin, 8
Pet. 538.
Page 96 U. S. 656
Prior remarks are sufficient to show that the doctrine of
constructive total loss is not applicable to contracts of bottomry,
which serves very strongly to show that the maritime lien of the
bondholder attaches to every part of the property covered by the
bond, as seems to follow from all the authorities upon the subject.
Broomfield v. Southern Insurance Co., L.R. 5 Ex. 192.
Slight differences exist between a loan on the ship and a
respondentia loan or loan on the cargo, but it is unnecessary to
remark upon that distinction, as the bond in this case covers the
bark as well as the cargo. 2 March. 734;
Stephens v.
Broomfield, 6 Moore, P.C.N.S. 161.
By the general marine law, the lender on bottomry is entitled to
be paid out of the effects saved, so far as those effects go, if
the voyage be disastrous.
Appleton v. Crowninshield, 3
Mass 443.
Underwriters and lenders on bottomry stand upon a different
footing, as was well explained at a very early period in our
judicial history.
Wilmer v. Smilax, 2 Pet.Adm. 299.
By an abandonment, the insurer is placed in the situation of the
insured whom he represents, and can have no greater right than the
insured would have had. Unlike that, the lender on bottomry loses
his remedy only when the ship or other property hypothecated is
wholly lost, and where parts are preserved, such parts are esteemed
his proper goods, being presumed to be the product of his money,
and he therefore takes preference of the owner or insurer. In case
of shipwreck, "the owners are not personally bound, except to the
extent of the fund salved which has come into their hands."
The Virgin, 8
Pet. 538.
"Utterly lost," said Chief Justice Tilghman, is a strong
expression, intended, as he held, to distinguish the case from one
where the vessel is technically lost, as in case of abandonment.
Such must have been his meaning, for he adds that a ship is not
utterly lost while she remains
in specie in the hands of
the owners. "Had she been taken by an enemy, she would have been
utterly lost to the owner" unless she had been recaptured and
restored. "So, had she been burnt, or wrecked and gone to pieces,"
unless some of her sails, masts, anchors, or chains had been saved.
But she is not utterly lost merely because it
Page 96 U. S. 657
may cost more than she is worth to repair her.
Insurance
Company of Pennsylvania v. Duval, 8 S. & R. (Pa.) 138.
Salved property, in case of wreck or other disaster, says
Phillips, continues to be subject to the hypothecation, but if the
loss is by the perils assumed by the lender, the borrower becomes
discharged from all liability on his bond excepting to the amount
saved. Nothing short of a total loss will discharge the borrower. 2
Phillips, Ins. (5th ed.), sec. 1170.
High authority also exists for the proposition that a total loss
within the meaning of a bottomry bond cannot happen if the ship
exists
in specie, although she may be so much injured on
the voyage as not to be worth repairing and bringing to the
ultimate place of departure. Abbott, Shipp. (11th ed.) 126.
Bynkershoek defines such contracts to be a pledge of the vessel
or other effects upon which the loan is made, and of what may
remain of them after any event by which the personal responsibility
is excused. Bynk., Quaest.Pub., lib. 3, c. 16.
From the moment of the accident, says Emerigon, the lender is
seised of right to the effects saved, he having a special lien upon
them for the payment of his debt, saving the freight and salvage,
and the French ordinance is to the same effect, the rule there
promulgated being that in case of shipwreck, the security of the
loan is reduced to the value of the effects saved from loss. Title
5, art. 17.
Decided support to the proposition that the lien extends to
whatever is saved from the property covered by the bond is also
derived from a case in which the opinion was given by Chief Justice
Gibson, in which he expressly decided that the lender in a
respondentia bond takes the risk only of a total loss, that any
part of the property which arrives goes to the holder of the bond,
without regard to whether it be great or whether it be small, so
that it does not exceed the amount of the loan.
The Delaware
Insurance Co. v. Archer, 3 Rawle (Pa.) 226.
Rules of law defining the right of abandonment in cases of
insurance do not apply in bottomry controversies, as there is no
constructive total loss in the latter class of litigation.
Instead
Page 96 U. S. 658
of that, the rule is that if the ship exists
in specie,
though in a state which would warrant an insured to make an
abandonment, as where the cost of repairs would greatly exceed the
value when repaired, the lender on bottomry may still recover, for
the ship must be absolutely and wholly destroyed in order to
discharge the borrowers. 2 Arnould, Ins., by Maclachlan (4th ed.)
945.
Examined in the light of these authorities, it is clear that the
bark in this case was not utterly lost within the meaning of the
bottomry bond, when considered in view of the facts as they existed
at the time the vessel was sold and before she was voluntarily
broken up by the purchaser. Subsequent acts of the purchasers
cannot affect the right of the defendants, and, if not, then the
proof is full to the point that the vessel existed
in
specie as she lay stranded on the beach.
The Brig
Draco, 2 Sumn. 157;
Shipwreck occurred in this case before the bark arrived at her
port of destination, but the agreed statement shows that the
vessel, though "cast ashore," still existed
in specie, and
that the voyage was terminated by a sale of the bark at an
intermediate place; that she was surveyed subsequent to the
disaster, as she lay upon the beach, and, though found to be
incapable of repair, she was not an utter loss within the maritime
rule applicable in such a case; nor can the act of the owners in
making an abandonment as for a constructive total loss have any
effect to conclude or impair the rights of the defendants as the
holders of the bottomry bond.
Judgment affirmed.