If which would prevent the completion of the voyage with The existence of this necessity depends on the facts of each particular case, as proved by ordinary evidence. The following instances will exemplify the rule: Bond held invalid in respect of sums due to a creditor who has previously furnished necessaries on personal credit;3 held valid when given to obtain the release or to prevent the arrest of a ship in a foreign port; when executed after advances have been made if in pursuance of an agreement for bottomry, or in contemplation of such a security;5 invalid for charges relating to outward cargo unless the ship was liable to arrest for them; and for insurance fees of consul.8 Assuming that the money is required for the necessities Impossiof the ship, the second element of necessity is the impos- obtaining bility of sibility of obtaining funds in any other manner than by funds. hypothecation of the ship, freight, or cargo. This is also a pure question of fact, whether money could have been procured by any other means, for if personal security is available the bond is invalid. But small sums lent contrary to this and the preceding rule will not be excluded, for it is contrary to the interests of commerce to be too careful of insignificant details.10 5. The consent of the owners raises a legal but rebut- Communi 1 The Karnak, 2 L. R. P. C. 505; 38 L. J. Ad. 57. 2 The Karnak, sup. 3 The Augusta, 1 Dods. 283; The North Star, Lush. 45; 29 L. J. Ad. 73; The Karnak, 2 L. R. Ad. 289. The Prince George, 4 Moo. P. C. 21; The Laurel, Br. & L. 191; 33 L. J. Ad. 17. 5 The Karnak, 2 L. R. Ad. 289; 18 L. T. N. S. 661. The Edmond, Lush. 57; 27 L. J. Ad. 76. 7 The Serafina, Br. & L. 277. 8 The Zodiac, 1 Hagg. 320. 9 The Hero, 2 Dods. 139; The Empire of Peace, 39 L. J. Ad. 12; 21 L. T. N. S. 763; and see cases collected under previous rule. 10 The Trident, 1 W. Rob. 29. cation with owners. Duties of lender. Repay ment of loan. Interest. table presumption of necessity. Consequently, communication with them by the master before hypothecation, where it is possible, is absolutely required, in order to establish the validity of a bond;2 and a separate communication with the owners of the cargo, where reasonable, is also absolutely necessary.3 6. The lender also, if he does not make such reasonable inquiries as are within his power, will avoid the bond.* Such inquiries must be as to the need of money for the ship, to the impossibility of obtaining it save by bottomry, and to communications by the master to the owners. The repayment of the loan must be contingent on the safe arrival of the ship, otherwise it is not a contract of bottomry, and the Admiralty Division has no power to enforce it. The loan is repayable in the case of a constructive. total loss, where the ship has been sold at an intermediate port or lost after deviation, and is only gone when there is an absolute and actual total loss of the ship or cargo at sea or by capture of an enemy.8 It is usual for the borrower to pay a premium or interest for the loan or on the sum lent. When a dispute arises as to the validity of the bond, the absence or presence, the small or large amount of interest, are circumstances which form important circumstantial evidence. Thus a low premium raises a strong presumption against the validity of the bond. If the interest is exorbitant, the Court will 1 The Royal Arch, Swa. 269. 2 The Lizzie, 2 L. R. Ad. 254; 19 L. T. N. S. 71; The Panama, 2 L. R. P. C. 199; 39 L. J. Ad. 37; The Onward, 42 L. J. Ad. 61; 28 L. T. N. S. 204. 3 The Lizzie, 2 L. R. Ad. 254; 19 L. T. N. S. 71; The Karnak, 2 L. R. Ad. 289; 37 L. J. Ad. 41; The Hamburgh, 2 Moo. P. C. N. S. 289; Br. & L. 253. 4 The Nelson, 1_Hagg. 169 (176); The Prince of Saxe Coburg, 3 Hagg. 287; The Faithful, 31 L. J. Ad. 81. The Atlas, 2 Hagg. 49. 6 Western v. Wildy, Skinner, 152, 7 The Great Pacific, 2 L. R. P. C. 516; 30 L. J. Ad. 45. 8 Joyce v. Williamson, 3 Doug. 164. 9 The Emancipation, 1 W. Rob. 124; The Royal Arch, Swa. 269 (286). reduce it to proper proportions. When no premium is agreed upon, the Court will, if it pronounce for the bond, refer the question of the amount of interest to be paid to the Registrar. collateral A bond may be given as a collateral security if all the Bond as circumstances required to establish its validity are present.3 security. The sum lent may be insured by the lender. Delay in Delay. enforcing a bond postpones it to the claims of those who have pursued their rights with diligence, and will, if very gross, altogether avoid the bond. But an agreement whereby payment is postponed, though it may be legally valid, cannot be enforced by the Admiralty Division, in pursuance of its peculiar jurisdiction." Whilst the Admiralty Division recognises the negotiability of bottomry bonds, it aids their transfer with reluctance.7 It is an essential element of a bottomry bond that it Lien. confers a maritime lien on its subject for its amount and for the interest agreed on. The law by which bonds granted by the master of a foreign ship are to be judged is that of the flag.s The Court allows interest on sums secured by bonds from the time at which the bond is due," and has enforced agreements to give bonds.10 1 The Huntley, Lush. 24 (reduced from 40 per cent.); The Heart of Oak, 1 W. Rob. 205 (215). 2 The Change, Swa. 240. 3 The Staffordshire, 4 L. R. P. C. 194; 41 L. J. Ad. 49; The Onward, 42 L. J. Ad. 61; 28 L. T. N. S. 204. 4 The Indomitable, Swa. 446. It is doubtful if an agreement by which the borrower insures for the lender, does not vitiate the contract, as the risk is not then incurred. 5 See The Indomitable, sup. The Royal Arch, Swa. 269 (282). There seems to be no reason why delay, so long as no one's rights are prejudiced thereby, should invalidate the rights of the lender. See The Helgoland, Swa. 491 (499); The Rebecca, 5 C. Rob. 102. 7 The Rebecca, 5 C. Rob. 102. 8 See ante, Breach of Contract, p. 33. 9 The Edmond, Lush. 211; 30 L. J. Ad. 128. 10 The Aline, 1 W. Rob. 111. CHAPTER IV. SECTION I. Forfeiture of Ships. Forfeiture A SHIP is forfeited to the Crown if, (a) any unauthorized of ship. person uses the British flag; or (b) if the owner or master does any act or permits papers to be carried with intent to conceal the British character of the ship; or (c) if any unqualified person obtains a legal or beneficial interest in a British ship; or (d) if any person makes a false declaration touching his qualification for the ownership of British ships. To carry out these rules any commissioned officer on full pay, or any British officer of customs, or any British consular officer, may seize such ship, and then proceed by an ordinary action in the Admiralty Division to obtain a declaration that the ship shall be forfeited to the Crown. The right of the Crown to have a ship forfeited arises at the instant when the wrongful act is done, and like a maritime lien clings to the ship, so that it overrides the right of a subsequent bond fide purchaser without notice of the fraud.2 1 M. S. A. 1854, s. 183; The Sceptre, 35 L. T. N. S. 429. Wilkins v. Despard, 5 T. R. 112; The Annadale, 2 L. R. Ad. D. 179; 36 L. T. N. S. 259. Affirmed on appeal, 2 L. R. Ad. D. 218 ; 36 L. T. N. S. 139. SECTION II. Removal of Master. of master. The Court has power to remove the master of a British Removal ship on the application of an owner, part owner, consignee, agent of the owner, certificated mate, or one third of the crew, when it is proved by oath that such removal is necessary.1 The amount of necessity to cause this power to be exercised is a matter wholly for the discretion of the judge. A new master may be appointed by the Court in place of one who has been removed, with the consent of the owner, agent of the owner, or consignee of the ship, if within the jurisdiction of the Court. If they are without the jurisdiction, then the judge may appoint the new master on his sole responsibility. The Court has also jurisdiction-if the applicant shows a valid registered title to the vessel-to order the former master to deliver up the certificate of registry and the ship's papers.3 SECTION III. Actions for Injuries inflicted by Persons on the High Seas. diction of The Admiralty Division possesses in virtue of its ancient The jurismaritime jurisdiction power to entertain actions in perso- the Court. nam for injuries inflicted by one person to another on the high seas. It is a jurisdiction which, though it exists, is not at the present day employed, but which nevertheless cannot be considered as obsolete.4 1 M. S. A. 1854, s. 240. Any Court having Admiralty jurisdiction possesses this power. 2 The Frances, 2 Dods. 420; The Royalist, Br. & L. 46. 3 The St. Olafs, 2 L. R. Ad. D. 113; 35 L. T. N. S. 429. The Ruckers, 4 C. Rob. 73. |