safety of the ship, and that the repairs and supplies could not be procured upon reasonable terms, or with funds within the master's control, or upon the credit of the owner, independent of the hypothecation. The master's right exists only in cases of necessity, and when he cannot otherwise procure the money, and has no funds of the owner, or of his own, which he can command, and apply to the purpose. He is to act with reasonable discretion, and is not absolutely bound to apply the money of others in hand, except it belong to the owner, in preference to a resort to bottomry; and it has been suggested, by very high authority, that there may be special cases in which the master may raise money by hypothecation, even though he has his own money on board. But if he should raise money by bottomry in such a case, the admiralty will marshal the assets in favour of the shippers of the cargo, so as to bring their property last into contribution. The power of the master to charge the owners relative to the repairs and freight of the ship, does not exist when the owners are present, or when the ship is at their residence.

But if only a minority of the owners are *172

The Aurora, 1 Wheaton's Rep. 102. The Ship Fortitude, supra. The necessity that will justify the resort to a bottomry bond, is more pressing and commanding than the necessity which will justify the master in resort to an ordinary contract for repairs.

The Ship Packet, 3 Mason's Rep. 255. The lien of the master for repairs made by his means at a foreign port, may exist without any express hypothecation. Ibid. American Insurance Company v. Carter, 3 Paige, 323. It is clearly the rule of the maritime law, supported by the foreign authorities, that the owner of the cargo, sold by the master for the necessities of the ship, has an implied lien upon the ship for his indemnity, though there be no express hypothecation. The owners are liable to pay the ship. pers the full amount of the proceeds of the ship appropriated by the master, within the scope of his authority, for the use of the ship. Abbott on Shipping, part 3. c. 5.

• Code de Commerce, art. 232. Ord. de la Marine, liv. 2. tit. 1. Patton & Dickson v. The Randolph, Gilpin's Rep. 456. In the case of the Ship

present, or reside at the place, then the captain's power remains good. It is incumbent upon the creditor who claims an hypothecation, to prove the actual existence of the necessity, or of an apparent necessity, of those things which gave rise to his demand, and which are reasonably fit and proper for the ship, or for the voyage, under the circumstances of the case; and he must have acted, after he has used reasonable diligence, with good faith in his inquiries, though he need not see to the actual and bona fide application of the money. The loan must not exceed the necessity, and it must be made in a place, and under circumstances,

Lavinia v. Barclay, 1 Wash. Cir. Rep. 49, it was held, that the captain could not raise money by hypothecation, when one of the owners resided at the port. But in a home port, the master may bind the owner for necessary and ordinary repairs and equipments, under a presumed authority. Webster v. Seekamp, 4 Barnw. & Ald. 352. This is likewise the rule in the Scotch law. 1 Bell's Com. 524. It is held, that a port in a state in which the owner does not reside, is not a home port in the maritime law, as applicable to the United States; and the master of a vessel may in such port hypothecate the vessel by a bottomry bond for necessary repairs, if the owner has no agent there, though he reside in another state. Selden v. Hendrickson, 1 Brockenbough, 396. Perhaps, however, the distinction between foreign and homeports, in relation to the master's power in these cases, ought to rest, not in relation to the government of the country, but to the proximity or remote. ness, the facility or difficulty of communication between the place where the master acts, and the place where the owner resides. This was the doctrine declared in the case of Hooper v. Whitney, in the Commercial Court at New Orleans, 1839, and it is reasonable and just; and the other rule would be very unreasonable in many cases, as, for instance, between the city of New-York and Jersey City. In Johns v. Simons, 2 Adolph. & Ellis, N. S. 425, held, that in a home as well as in a foreign port, the master has an im plied authority to pledge the credit of the owner, and borrow money for the use of the ship, if the owner be absent, and no reasonable communication with him. Eleven miles distant are not sufficient to imply the power. Arthur v. Barton, 6 M. & W. 188, S. P. Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 178, 179.

Boulay Paty, Cours de Droit Com. tome ii. 271.

The Ship Fortitude, C. C. U. S. for Mass. August, 1838. Story on Agency, sec. 122.

to afford relief. This power of the master to borrow

money on bottomry, and hypothecate the ship for the hop 3

repayment, may exist as well at the port of destination,
as at any other foreign port, when the necessity for the
exercise of the right becomes manifest. A doubt has
been raised, whether an hypothecation would be valid
when made to the consignee of the owner.
The power

in that instance would be very liable to abuse and col-
lusion, and the averment of the necessity and integrity
of the transaction ought to undergo a severer scrutiny,
but the weight of authority seems to be, that under
circumstances a consignee may take a bottomry bond.

• Rucher v. Conyngham, 2 Peters' Adm. Rep. 295. Dall. Rep. 194. The Aurora, 1 Wheat. Rep. 96. Stark. Rep. 27. Roccus, De Navibus, not. 23.

Cupisino v. Perez, 2
Rocher v. Busher, 1.

Read v. Commercial Insurance Company, 3 Johns. Rep. 352.

• See Rucher v. Conyngham, 2 Peters' Rep. 307 ; and Abbott on Shipping, 5th Am. edit. Boston, 1846, p. 207. See infra, p. 361, to the S. P. to that point. The power given to the master to raise money while abroad, for the necessities of the ship, is the most dangerous form in which his authority can be exerted, and all the foreign authorities have recommended and enforced the same precautions, and which have been universally adopted. (Casaregis, Disc. 71. Roccus, De Navibus, n. 23. Vinnius ad Peck.) In Boyle v. Adam, in the Scotch Admiralty, in 1801, the rule that the lender, on an hypothecation bond, was not bound to see to the application of the money, was qualified in a case where the expenditure was enormous, and the master a weak man. Bell's Com. vol. i. 529, note. The question respecting the lien of the master on the ship, for necessary expenditures, has been extensively litigated and discussed in the English and American courts, as has been already shown; and for a more full view of some of the cases, see Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 181-192. The American editor of Abbott on Shipping, 5th edit. Boston, 1846, pp. 200— 202, has industriously classified the most material cases in the American admiralty courts, on the power of the master to borrow money on bottomry. (1.) It must be, in cases of necessity, where he has no other adequate funds in his power, and can obtain none upon the personal credit of the owner. (2.) If the necessity existed, and the advances were bona fide made, any subsequent misapplication of them by the master, will not vitiate the hypothecation. (3.) There must have been an inability to procure the funds on the personal credit of the owner. (4.) The credit must have been given to the ship as security. (5.) The master cannot give a bottomry bond for

*The master in the course of the voyage, and when it becomes necessary, may also sell part of the cargo, to enable him to carry on the residue; and he may hypothecate the whole of it, as well as the ship and freight, for the attainment of the same object. The law does not fix any aliquot part or amount of cargo which the master may sell; nor could any restraint of that kind be safely imposed. The power must, generally speaking; be adequate to the occasion. The authority of the master must necessarily increase in proportion to the difficulties which he has to encounter. There is this limitation only to the exercise of the power, that it cannot extend to the entire cargo; for it cannot be presumed to be for the interest of the shipper, that the whole should be sold, to enable the ship to proceed empty to her port of destination. The hypothecation of the whole may, however, be for the benefit of the whole, because it may enable the whole to be conveyed to the proper market. This power of the master to pledge or sell the cargo, is only to be exercised at an intermediate port, for the prosecution of the voyage; and if he unduly breaks up the voyage, he cannot sell any part of the cargo for repairs for a new voyage, and the power is entirely gone. In cases of capture by an enemy or

antecedent advances, or for other debts due from the owner to his creditor. (6.) The master cannot pledge the ship or freight for his own private interests, or hypothecate the ship for the benefit of the cargo. (7.) The mas. ter may hypothecate the ship, although the ship be hired upon charter, and the master has been appointed by the charterers. (8.) The owner is not personally bound by the bottomry bond. (9.) A bottomry bond may be given to pay off a former bottomry bond on the same foreign voyage.

■ Story, J., in Pope v. Nickerson, 3 Story's R. 491, and the authorities, foreign and domestic, there cited.

The Gratitudine, 3 Rob. Adm. Rep. 240. 263. The United Insurance Company v. Scott, 1 Johns. Rep. 115. Freeman v. The East India Com. pany, 5 Barnw. & Ald. 617. Ross v. Ship Active, 2 Wash. C. Rep. 226. • Watt v. Potter, 2 Mason's Rep. 77.

pirate, the master may redeem the vessel or cargo by a ransom contract for money, or part of the cargo, and the whole cargo, as well as the ship, will be bound by the contract made under the authority of the necessity of the case. But if the voyage is broken up in the course of it by ungovernable circumstances, the master, in that case, may even sell the ship or cargo, provided it be done in good faith, for the good of all concerned, and in a case of supreme necessity, which sweeps all ordinary rules before it. The merely acting in *174 good faith, and for the interest of all concerned,

The Gratitudine, 3 Rob. R. 240. Maisonnaire v. Keating, 2 Gall. R. 325. See, also, supra, vol. i. 104. 106.

⚫ Hayman v. Molton, 5 Esp. N. P. Rep. 65. Mills v. Fletcher, Doug. Rep. 219. Idle v. The Royal Exchange Insurance Company, 8 Taunt. Rep. 755. Freeman v. The East India Company, 5 Barnw. & Ald. 617. Cannon v. Meaburn, 1 Bingham's Rep. 243. Robertson v. Clarke, ibid. 445. Fanny and Elmira, Edw. Adm. Rep. 117. Reid v. Bonham, 3 Bro. & Bing. 147. Soames v. Sugrue, 4 Car. & Payne, 276. Tindal, Ch. J. Scull v. Briddle, 2 Wash. Cir. Rep. 150. The Schooner Tilton, 5 Mason, 475. 477. Jordan v. Warren Ins. Co. 1 Story's R. 342. In the case of the American Insurance Company v. Center, 4 Wendell, 45, it was held, that in this country the master's right to sell was more extensive than in England; for here, if there existed a technical total loss, and the master has reason to believe the owner would elect to abandon, he might sell the ship. The English rule is more strict, and it is the duty of the master to repair the vessel, unless there be an actual total loss, or he has no means of repairing, and cannot procure any by the hypothecation of the ship or cargo. The earlier English cases, as well as the foreign ordinances, denied to the master the authority to sell the ship. 1 Sid. 452. 2d Lord Raymond, 934. But though such a power is not given to the master by the general maritime law, yet the modern cases have, in some degree, yielded that power to the master in a case of strong necessity. Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 10–26. In this last work, in the notes of the learned English and American editors, all the authorities on the question of the power of the master to sell the ship, are collected and critically examined. In the cases of Gordon v. The Mass. F. & M. Ins. Co. 2 Pick. 249, and of Hall v. The Franklin Insurance Company, 9 Pick. 466, the stricter doctrine of the English law was asserted and maintained. The master's authority to sell the vessel was confined to cases of extreme necessity, and where he acts with the most perfect good faith for the interest of the owner, and when he has no opportunity to consult the