repairs mean such as are absolutely indispensable for the safety of the ship or the accomplishment of the voyage. * If the master has money of the owner on board, he cannot resort to bottomry until he has applied it as far as it will go. He cannot bottomry for existing debt, but only for advances for a purpose necessary to complete his voyage, made at the time of the necessity. Where an owner is known and has credit in the place where the money is wanted, he should, in the first place, endeavour to raise it by drawing bills upon him. If the money cannot be obtained in this way, his next recourse is to the property of his owner by using it under bottomry.§ It is only when all other means fail that a master can resort to bottomry. Nor ought a master to give a bottomry bond upon a ship, freight, or cargo, where under all the circumstances a communication with an owner, shipper, or consignee is practicable; and, in such cases, the lender of money on bottomry, before he enters into any engagement to advance, should satisfy himself that such communication has taken place. Still, it must be understood that although such communication must be had wherever practicable, yet there may be cases where it cannot so take place, and then the master has the right to hypothecate.¶ When a master finds the absolute necessity to take up money on bottomry, he should first strengthen his cause for it by having proper surveys made so as to include a very particular specification of each thing damaged, and so as to show what matters exactly will have to take place to help or make the vessel fit to pursue her voyage. First, noting and extending a protest before an experienced notary public, or the British Consul, therein giving a full *The Fortitude, 3 Sumner's (Boston) Reports, 233. The Packet, 3 Mason's (American) Reports, 255. The Ship Lavinia v. Barclay, 1 Washington's (American) Reports, 49. & Ross v. The Ship Active, 2 Ibid. 226. The Olivier, 1 V. Lushington's Reports, 484; La Ysabel, 1 Dodson's Reports, 274; Wallace v. Fielden, 7 Moody's Privy Council Cases, 398. La Ysabel, 1 Dodson's Reports, 274. statement of his wants and damage, how they occurred; and second, by having a proper survey which will go into every particular, so as to show, not only what damage is apparent, but also what is necessary to fit the vessel for sea. A master most frequently coming into a foreign port places his vessel in the hands of his owner's consignee, or, in the absence of this, assumes to employ a consignee of his own finding out. And, in either case, he will then, when compelled to a loan on bottomry, rely upon such consignee to advertise for such loan. A respondentia bond requires care and legal knowledge in the drawing and execution of it, and all this should be left to a mercantile lawyer. The lender, of course, keeps the bottomry bond after it is executed, and sends it forward to his mercantile correspondent, so as to arrive at the final port of the vessel by the time she gets there. It will be well for the master to obtain a copy of such bond, so that he may send it over to his owner by the first mail. In that way the latter will know the amount he has to be prepared to meet. Where once a transaction is proved to have been clearly and indisputably of a bottomry character-that is, where the distress is admitted or established, the want of personal credit beyond question, and the bond in all essentials apparently correct-then the strong presumption of law is in favour of its validity, and it cannot be impugned save when there shall be clear and conclusive evidence of fraud, or where it shall be proved, beyond all doubt, that, though purporting in form to be a bottomry transaction, the money was, in truth and in fact, advanced upon different considerations.* A seaman's lien for wages is not affected by the giving of a bottomry bond, no matter whether such wages are earned before or after the giving of any such bond. It (the lien for wages) will still have the priority of right.† *The Vibilia, 1 W. Robinson's Admiralty Reports, 5. The Union, 1 V. Lushington's Reports, 128. But, as to all other claimants, such as creditors and mortgagees, a bottomry is entitled to a preference. But, with regard to the priority of the holders of bottomry bonds, as between themselves, it is a general rule that a bottomry bond of a later is entitled to priority of payment over one of an earlier date; because, in this species of security, which is entered into under the pressure of necessity, the property would, without the subsidiary aid of the later bond, be totally lost, both to the owners and the former bond-holders.* It may be as well to remember that as to the amount of money to be secured by the bottomry bond, it is of no consequence whether the same was advanced at once and the bond immediately entered into, or whether the master received it from time to time in different sums, and thereafter gave a bond for the whole amount.† 18. MASTER DYING IN A FOREIGN PORT. If a master should die in a foreign port, the consignee of the owner of the vessel may appoint a substitute. But he must be appointed under a necessity which justifies the measure, and by the very person whose connection with the ship places him in a nearer relation than any other in the quarter of the world where the vessel is at the time of the substitution. It must have taken place under circumstances of perfect integrity. And when the appointment is so made, a court will be strongly inclined to hold the new captain entitled to the privileges and competent to discharge the functions of a master appointed in the more regular manner.‡ It has been decided in the High Court of Admiralty, that even a bottomry bond for supplies executed by such a substituted master will be good. In this case it was * Tudor's Leading Cases on Mercantile and Maritime Law, 64. The Tartar, 1 Haggard's Admiralty Reports, 1. CHANGE OF OWNERSHIP IN A FOREIGN PORT. 197 considered that the supplies which had been furnished were the proper subjects of bottomry, and that the charges were fair. Such a bond may be given to and in favour of the very consignee of the ship who appointed such new master.* 19. CHANGE OF OWNERSHIP OF SHIP IN A FOREIGN PORT. In case a ship is transferred or disposed of at any place out of Her Majesty's dominions, the crew will thereby be released from their agreement, and may quit the ship if they please. And if they choose to do so, they can claim from a Consul his action in compelling the master to give them a certificate of discharge. Their wages will have to be paid, and the Consul will act between the master and sailor, and see that justice is done.† But if, where a vessel is so transferred or disposed of, the crew consent to stay by her and complete the voyage for which she was destined, they must appear before the Consul and signify their consent to him; and must, in his presence, sign new articles to the effect that they have so consented, and the Consul will have to attest their signatures.‡ A master must remember that, when such transfer or disposition takes place, he must-where it has occurred in a foreign port-within six months, deliver or transmit to the shipping master at the port to which the ship belonged, the official log-book (if any), duly made out to the time of change of employment. In default of doing this, he would incur a penalty not exceeding ten pounds.§ * The Rubicon, 3 Haggard's Admiralty Reports, 9; Ibid., principle in the Alexander, 1 Dodson's Admiralty Reports, 278; The Tartar, Haggard's Admiralty Reports, 9. + Merchant Shipping Act, 1854, Sections 47, 49, 55 to 64. Ibid. Section 47. Ibid. Section 287. 20. GOVERNMENT MARINE HOSPITALS OF THE UNITED STATES. Although it does not appear that foreign seamen as a matter of right can claim admission into a Government Marine Hospital of the United States, yet they can get there whenever convenience to the institution will allow it. The application should be made to a director of such hospital by the master. Each sick seaman admitted will be subject to a charge of seventy-five cents per day for each day he remains therein. The payment is to be made to the collector of the district in which the hospital is situated, and the collector will not grant a clearance until the money is paid. The director of the hospital has to make out the accounts against each sick seaman and render them to the collector.* We shall see, however, when treating of particular ports, that there are local hospitals wherein seamen can get proper medical and surgical treatment. 21. CLEARANCE AT UNITED STATES CUSTOM-HOUSE. When a master of a British vessel has got in all his cargo, and made arrangements otherwise to depart, he must deliver to the collector of the port a manifest of all the cargo on board and a statement of its value, which will have to be subscribed and its truth sworn to by him. On this the collector will grant a clearance for vessel and cargo, without, however, specifying the particulars of the latter unless required to do so. If a master were to depart without delivering in the manifest and getting a clearance, he would subject himself to a forfeiture of five hundred dollars.† * Brightley's Digest U.S. Laws, 305. † Act of Congress, March 2, 1799, Section 93. |