THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ffedP^ mmm-^ ==— =^mÈm MARITIME LOANS, FROM THE FRENCH OF M. BALTHAZARD MARIE EMERIGOtf; WITH NOTES: TO WHICH IS ADDED AN APPENDIX, CONTAINING THE TITLES DE EXERCITORIA ACTIONE, DE LEGE RHODIA DE JACTU, AND DE NAUTICO FCENORE, Translated from the Digests and Code of Justinian, AND THE TITLE DES CONTRATS A LA GROSSE AVENTURE OIT A RETOUR DE VOYAGE, FROM THE < MARINE ORDINANCE OF LOUIS XIV. BY JOHN E. HALL, ESQ. Gallia causidicos docuit facundia Britannos. JuvencJ. H BALTIMORE : PUBLISHED BY PHILIP H. NICKLIN & CO: Also by Farrand & Nicholas, Philadelphia ; D. Mallory & Co. Boston ; Lyman, Hall & Co. Portland ; D. Farrand & Green, Albany ; and Swift & Chipman, Middlebury. A. Miltenberger, Printer, 1811. \ £*k 32 7 IS II • I *+v DISTRICT OF MARYLAND. BE it remembered, that on the 29 day of December in the thirty-fifth year of the Independence of the United States of America, PhUip H. Nicklin &. Co. of the said district, have deposited in this office the title of a book, the right whereof they claim as proprietors, in the words fol- lowing, to wit ; "An Essay on Maritime Loans, from thefrench of jr. Bahhazard Ma- rie Emerigon ,- -with notes: to -which is added an Appendix, containing the titles De ExercitoriaActione, De Lege Khodia de Jactu, and de Nau~ tico Feenore, translated from the Digests and Code of Justinian, and the title Des Contrats a la Gross Aventure ou a Retour de Vhyage, from the Marine Ordinance of Louis xiv. By John E. Hall, Esq. Gallia causi- dico docuit faeunfUn U> hunnus. Juvennl In conformity to the act of the congress of the United States, entitled "An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the Authours and proprietors of such co- pies during the time therein mentioned : and also to an act, entitled, 'An act supplementary to an act, entitled :ui art for the encouragement of learning, by securing the copies of maps, charts, and books, to the authours and proprietors of such copies during the time therein men- tioned, and extending the benefits thereof to the arts of designing, en- graving, and etching historical and and other paintings. }' I II LIP MOORE, €levk of the District of Marj land •■' t ADVERTISEMENT. BY THE TRANSLATOR. The title, under which this translation appears, has been adopted as a generic term to designate the two species of contract known in our law under the terms of Respondentia and Bottomry. Such a title is a desideratum in our legal language which is at- tempted to be supplied by translating the term nau- ticumfeenus from the civil law. The words gross adventure, from the French, are likewise used, oc- casionally, in the work, to convey the same general idea. When the principle, inculcated by the authour, applied, exclusively, to either of the contracts, there was no difficulty, as the words bottomry and respon- dentia are familiar to the lawyer, however uncouth they may appear to a scholar. The translator would have good authority for dwelling upon "the infinite labour, unwearied study and reflection" which his authour has displayed in collecting " the decisions and authorities, ap- plicable to the purpose of his work. He held a distinguished rank among the advocates of his own country,"* and when he undertook to pay that debt which, it is said, every man owes to his profession, he brought to the task, a mind in which " great learning was united with great practical knowledge." " His book is, of all the foreign publications on this subject, the most useful to an English lawyer, "f * Park on insurances, Introd. 1 1. t Marshal on insurance, Introd, 22. : .*. ' • ADVERTISEMENT. His treatise Oh Maritime Loans is now, for the first time, presented to the English reader, with all ihat attention to fidelity, which is the humble praise of a translator; and it is hoped that where he has ventured to exceed the province of an interpreter, he may not be considered as aiming at idle orna» snents or useless appendages. The notes are con- fined chiefly to the explanation of technical terms in the Civil and French law, and such local usages as appeared to be necessary to the elucidation of the language of a foreign jurist. The references to English authorities» include the most important cases: but they are given very briefly, because they may be found with great facility, by turning to the chapters which have been devoted to this subject by Park and Marshal. In the United States very- few eases have occurred: such as have been seen by the translator are noticed. As this treatise is professedly a commentary on a part of the celebrated ordinance of Louis XIV. and those texts of the civil law which treat of Maritime Loans r it was deemed not improper to translate and add them to the volume. Throughout the whole work, the translator has endeavoured to explain his originals with perspe- euity and accuracy. If he be found to have done this, he has fulfilled his duty to the reader. If his la- bours be rewarded with this approbation, it will be an encouragement to him to offer to the publick a translation of the treatise on Insurance by Emerigon and the Consolata del Mare : which works are nearly ready for the press» Baltimore. October 180^. TO JOSEPH HOPKINSOIV, ESQ. COUNSELLOR AT U1W IN THE SUPREME COURT OF THE UNITED STATES, THIS VOLUME Is dedicated as a slight memorial OF THE RESPECT AND GRATITUDE OF ms pr m TABLE OF CONTENTS. CHAPTER I. Page. Introduction, 17. General observations. 18. Sect. I. Texts of the Roman law relating to maritime loans. L. 1. ff. de naut fœn. ib. L. 3. ff. eod. 19. L. 4. ff'. eod. ib. On the §. 1. of the L. 4. ff. eod. 20. L. 5. ff. eod. 21. L. 6. ff. eod. ib. L. 1. c. de naut fœn. 22 L. 2. c. eod. ib. L. 3. c. eod. ib L. 4. c. eod. il> Opinion of Paulas. ib L. 26. c. de usuris. ib. L. 122. §. 1. ff. de verb, oblig\ 23. Sect. II. Definition, denomina- tion, legality and nature of the contract of mari\ loans. §. 1. Definition. 24 §. 2. Denomination. 25 §. 3. Legality of the contract 26. The different constructions which have been given to the chap, narriganti extra de usuris. 27. It is a contract of a particular kind. 30. The legality of it is undoubt- ed. 31. §. 4. It is more of a real than a personal nature. 32. Is it mutual ? ib. Each partv is interested. ib. It is gambling. 33. It is conditional. ib Sect. III. It is the essentia quality of this contract that there is a risk and that it should be borne by the lei/, ' §. 1. Bottomry by way of w a- ger. 33. Clause [voto per picno] of in- ;t or no interest. 33. §. 2. The risk should be boinc by the lender. 34. It cannot proper! ? be called bottomrj until the risk has commenced. ib. What will be the consequence if the money be expended on shore before any risk has commenced .' ib. If the risk ceases ? ib Whether the contract be void ? ib. Sect. IV. Difference bet-veen bottomry, loan, partnersldp andinsut i §. 1. Difference between bot- tomry and loan. 36. §. 2 In what respects it dif- fers from partnership. ib. §. 3. Its affinity with insur- ance 38. Ç. 4". The difference between them. S9. Sect. V. .Yotice of certain ma- : itii i associations. CONTENTS. Page. §. 1. Joint concern in the fit- ting out of a ship. 41. §. 2. .••nit concern in the pro- fan adventure. 42. Ç. i qi nt of an ad- reiiture on commission. ib. CHAPTER II. Of the form of the contract. Sect. | ternalform, §. 1. lr may be made before a notary or under a private - ; . liure. 44. Can it be made verbally? 45. §. 2. Does it create a lien on the property of the party, ib. Mast it be comptrolled, ac- knowledged and regis- ter. -d : ib. §. 3. If it has been executed by private signature, does it enjoy the same privile- ges ;is if it had been ex- ecuted by a publick act. 46. Sect. II. Internal form. §. 1. What ought to be men- tioned in it. 47. Is it necessary to stipulate that the lender run the risk ? ib. §.2. Blank bill of lading. 48. §.3. Bottomry united with other contracts. ib. (II VPTER III, Of maritime interest. Sect. 1. Genera/ rules- on the iect of maritime intt §. 1. Maritime interest is an ntial part of the con- tract. 49. §. 2. Is it necessary that the interest should be paid in mont j 50 Implied interest ib §. 3. What is the law where the parties have neglected to insert a stipulation for in- U rest. ib. $. 4. What is the law where the lender incurs no ha- zard ; 51. Pflge §. 5. What is the law in case the ship perish ? ib. Sect. II. Rate of maritime in- terest. §. 1. The rate of maritime in- terest is unlimited. 52. §. 2. Interest or premium at so much per month. 53. §. 3. The unexpected arrival of peace or war. ib. §. 4. The whole of the mari- time premium is due the moment the risk com- mences, ib. Sect. III. What if the vessel never return ? 58. Sect. IV. Common legal in- terest §. 1. When the maritime risk ceases, the common legal interest commences. 60. §. 2. May there be a charge of legal interest on the ma- ritime interest? 61. CHAPTER IV. Sect. I. General observations upon the action against ship owners (actio exercitoriâ) for the acts of the master. §. 1. Of the owner (exerci- tor.) 64. §. 2. Of the master. 65. Sect. II. It is a general rule that the owner is bound by the acts of the master. Of a substituted captain. 6$. Sect. lit. Are the owners re- sponsible for the contracts of the captain which are made at the place where they reside I §. 1. Of a captain who bor- rows money upon bottomry at the place where the own- ers reside. 69. Text oi the laws. ib The part owners who do not consent are not bound by such Loans. 70. Of the action de in remverso. 71. §. 2. Packages shipped on board without the know- ledge of the owners. ib. CONTENTS. Page. Sect. IV. Of a part owner -who refuses to contribute Ids pro- portion. §. 1. Do the part owners who refuse to contribute lose their shares or interest in the vessel ? 73. §. 2. Money may be taken up on bottomry on their ac- count. 73. §. 3. Whether a recusant owner may require the vessel to be sold. 75. The will of the majority is to govern. ib. Sect. V. Of a captain ivho bor- rows money at gross adven- ture in the course of the voyage. §. 1. Text of the laws 77. §. 2. Is it necessary that the captain should be autho- rized by the magistrate of the place to take up money at gross adventure? 79. §. 3. Ought it to be a publick contract ? 80. §. 4. The loan must be m ide expressly for the necessi- ties of the ship. 81. §. 5. Is the captain authorised to take up money at gr isa adventure in order to com- plete his cargo? 82. Sect. VI. Various questions on the points -which are treated of in the three prececding sections. 82. §. 1. What is understood by the terms, the residence of the owners. ib. Residence in the same baili- wick or county. 83. Residence not in the same bailiwick. ib. §. 2. Is the captain at liberty Page. to borrow money at the port where the vessel is tit- ted out without the con- sent of the owners who are domiciliated elsewhere ? 84. §. 3. If the owners or their correspondents be on the spot ? 85. Sect! VII. Of an unfaithful captain.. §. 1. the owners are no further bound by the acts of the captain than as those acts relate to the voyage. 86. §. 2. Penalties against a faith- less captain. ib, §. 3. The infidelity of the cap- tain who has squandered the money shall not preju- dice a third person who contracted with him bona fide. 87. §. 4. The lender is not obli- ged to prove that the loan was properly applied. ib. Of a fraudulent bottomry or Respondentia bill.* Sect. \ 111. Of an imprudent lender. §. 1. Is it necessary that the ship should actually be in need at the time of the loan ? 81. §■ 2. If too much has been borrowed ? 89. If the ship arrive in a port where the money cannot be expended ? ib. §. 3. Of a captain who is pro- hibited from taking up mo- ney at gross adventure. ib. §. 4. It is lawful for a party, according to circumstan- ces, to avail himself of the exceptions established by the law of Lucius Tithes. 91. * This paragraph was inadvertently omitted in the body of the work, (p. 88. ) and is therefore introduced in this place. §. 5. If a bottomry bond which appears to have been subscribed by the captain in the course of the voyage and executed for the necessities of the ship, be fraudulent, it lies upon the owners to prove the fraud. Thus it was decided in Sweden, in a case reported bv Loceenhts, lib, 2. cap. 6. n. 12. (But it is not sufficient that the captain has been unfaith- ful : it must be shown that the lender was an accomplice. Supra, §. 3. and 4. and see the following section . CONTENTS' Page. Sr.cr.IX. 0/ a captain who selh rt of his cargo in the com . >yage. 92. 3ec i . X. Of the several actions given by the chil law in such cases, viz. the actio principalis, accessoria and contre 96. $. 1. The Iloman law. »& The action against the owner was given in addition to that against the master. ib. Jt was optional to sue the master or the owner. ib. This choice did not destroy the right of action against • master. 97. If the master were a slave ? ib. When the person elected to sue the owner the action became a principal suit. ib. It was in solidum and for the whole. ib. There was no limitation a- gainst the actio exercitoria. ib. §. 2. The new law. 98. When the voyage is ended does the captain cease to be master ? ib. Can actions be instituted a- ,m? ib. When judgment is obtained again ter it may 1^.' executed upon the owners. ib. Do the powers of the captain reuse on the loss oi 100. Sec i . XI. Of aban i by the owners in order to being I/omul by (lie acts of :!, ■ m §. 1. Are the owners bound to answer jointly . x erally for the acts uf the masterl 101. - ligation of the o 1 I ; of tJ i master is more of a real than a 102. §. 3. Of a captain who is also supercargo, 103. §. 4. If the ' andon in : 104. $. 5. Maj the captain borj Page. money to be paid at an appointed time or draw bills of exchange? 105. §. 6. The form of an abandon- ment nu.de by the owners in order to avoid being re- sponsible for the acts of the captain. 113. §. 7. Exception on account of the ransom of the vessel. Sect. XII. Is the captain per- sonally bound by the con- tracts -which he makes in that capacity? §. 1. Is the person who con- tracts as agent for another personally bound? 114 Where an agent expressly states himself to be such or it is otherwise known? 115. Whether he may be person- ally bound notwithstand- ing the designation of Ids duality. 115. §. 2. Custom of merchants. 116. Sect. XIII. Stipulated penalty against a captain who vio- lâtes his engagemejits. §. 1. The penalty stipulated by the captain may be rigorously exacted. 118. Of a clause, that the freighter may exact the penalty stipulated with damages and interest. 122. §. 2. Is the lien or privilege of mariners ami of len- ders at gross adventure in anyway affected by the stipulated penalty above mentioned ? 123. CHAPTER V. What things may be pledged in a maritime loan. Sect. I. Maritime loan on the ship or the cargo. §. 1. On the ship. 124. §. 2. On the goods. 125. §. 3. On the ship and the go.; 126. §. 4. If it be expressed on ftain •■< i el without going farther? 127. CONTENTS. Page. Sect. II. Maritime loan on the freight, profits and -wages. §. 1. On the freight. 130. On the profits. 131. §. 2. On the wages. ib. §. 3. Penalties inflicted by the ordinance for the vio- lation of the provisions here treated of. 134. Sect. III. Maritime loan on a thing -which is already at risk. 135. Sect. IV. Is it lawful to lend any thing but money in a maritime loan !-' §. 1 What may be lent. 138. §. 2. Union of the contract of maritime loan with others of a different na- ture. 139. CHAPTER VI." Of cases in -which maritime interest is not due. Sect. I. Of a return in conse- quence of their being no risque. §. 1. If there be no risk, it is not a contract of mari- time loan. 146. §. 2. It is of no conse- quence that the borrower was unable or unwilling to put the goods on board 147. The borrower may retract and rescind the contract by his own act. ib. §. 3. The contract is not a maritime loan but in pro- portion to the value on board. 149. Of legal interest. 150. The one half/ier cent, on the premium to the underwri- ter ib. Sect. II. Of a fraudulent borrower. §. 1. Whether fraud is pre- sumed against the person who borrows beyond his interest. 151. §. 2. Punishment of a frau- dulent borrower. 152, He must restore the money notwithstanding the loss Pu •■••'. of the vessel. 152. Whether he ought to pay maritime interest. 153. Whether he ought to pay legal interest. If the vessel return safely ought he to pay maritime interest.' ib. Sect. III. Proof of the lading §. 1. If the vessel be lost the borrower must prove the lading. 156. Whether the borrower ought to pay a tenth part of the loss." 156. If the borrower carry the money with him? 156. Whether he must prove the special employment of the money. 157. Whether he must prove that the money was fur- nished before the risk commenced. ib. §. 2. The proof of the pro- per employment of the money is never imposed upon the lender. 158. CHAPTER VII, Of the risks. ect. I. Losses and averages occasioned by the perils of the sea. 158. §. 1. Simple average. ib. §. 2. Gross average. 161. §. 3. Clause, free from ave- rage. 163. §. 4. Clause, that the risk of the lender shall be con- fined to certain specified perils. 165. Sect. II. In general, the len- ders on'y bear the perils of the sea. §. 1. The perils of the sea are the only risk he bears. 166. §. 2. Internal defect of the tiling. ib. §. 3. Loss occasioned by the act of man. 167. Loss by contraband 197. Observations on the text of Art. 12. h. t. 168. §. 4. Dangers by land. 169. to CONTENT?. CHAPTER YIII. rage. Time and place of the risk. Sect. I. Of a contract of ma- ritime loan fuv an entire voyage. §. 1. What is meant by an entire voyage. 179. Contract for a voyage out ami borne. 170. In cast- of doubt, it is to be presumed that it was for the voyage out and home, ib §. 2. If the vessel do not re- turni ib. Sect. II. Contract for a limi- . ; ,nt'. §. 1. Losses which occur du ring- the term are borne by the lender. 173. The peril ceases with the time limited. ib. §. 2. Clause, at so much a month not exceeding' one year. 174. Terms of the clearance. ib. §. 3. Of a ship which is not heard of. ib. §. 4. If the ship return be- fore the expiration of the term. ib. §. 5. Unlimited time. ib. Ç. 6. Time of demurrage. ib. Sect. III. Of contracts for an entire voyage, with a de- sign ition of it or limitation of time. . 1. If there be a limited time and a designation of the voyage. 175. For the voj age not exceed- 3, and pro i, if it be longer. 176. Tor the voyage at two per cent, a month 176. agreement that the first six months shall be due not- withstanding any acci- dent subsequent to that time. ib. $ 2. Agreement, that after a certain time the bor- rower shall pay one half Page. per rent, a month on the principal and interest. 178. Ç. 3. Agreement, that in case of war the principal and interest shall be trans- mitted in bills t'of ex- change. 179. §. 4. Agreement, that in case of peace, the inter- est stipulated at so much per month, shall be re- duced to the usual course of the place. ib Sect. IV. Place of the risks and change of the ship. §. 1. Of a change of the vovage 180. §. 2. Change of the ship. ib CHAPTER IX, Of the payment of maritime m oi lien. S e c t . T. Is a bottomrn bill nego- tiable? §. 1. Is it negotiable, if drawn payable to order? 182. §. 2. Nature and effect of this negotiation. 183. Guarantee in case of insol- vency of the debtor, ib. Sect. II. In what manner, and at what time and place ought the money to be paid. §. 1. It ought to be paid in money. 18 Ç. 2. Ought it to be paid im- mediately on the safe ar- rival of the thing which was the subject of the loan' 185. §. 3. If the money has been lent on the outward voy- age or for a limited time. 186. Risk of the money which is not demanded at the place where the term ex- pires, ib, §. 4. Competent judge. 187. Provisional judgment. ib. arbitrations. ib. Sect. III. Of prescription or limitation of actions. 187. CONTENTS. CHAPTER X. Page. Of security. Sect. 1, In general, the secu- rity contracts the same obli- gations as the borrower. he security is discharged by the renewal of the contract. jgQ Sect. II. Whether the security is responsible for the fraud of the borrower. 192 Sect. III. Of the obligation in solidum of the securities. 195. CHAPTER XI Of the extinction and nulli- ty of the contract of mari- time loan. Sect. I. Comparison of the \lth 16lh and 17th articles, h. t. §. 1. If there be an entire loss ? 203 Ç. 2. If there be a general average ? ; b If there be a particular ave- rage ? ^ % 3. Of a total loss. 204. Opinions of Valin and Po- thier. ik f 4. If the goods of the bor- rower are landed before the accident. 205 $. 5. Of unseaworthiness or stranding. 206 Sect. II. Of the right of the lender to the things sain/. § 1. Of the nature of the action which lies for the lender to recover the thing saved. 207 Is the interest due in pro- portion to the amount saved. ib The things saved are pledged to the lender. 208. Lien on the freight. if,. Abandonment is not ne- cessary, ft Apportionmentbetween the assurer and the lender. 209. Sect. III. Does the contract become void by the ill suc- cess of the voitaje? JPaç-e' §• 1. General observations. 2Ï0- §. 2. Relinquishment of the voyage before its com- mencement. 211. Relinquishment of the voy- age after it is commenced, ib $. 3. If the vessel, in conse- quence of an accident, never return. 212. §. 4 If, owing to particular occurrences, the specula- tion of the borrower is not successful. 213. CHAPTER XII. Lien of the lender upon the effects at risk. Sect. I. View of the Roman laws relating to liens on the ship and caigo. 215. Sect. II. Laws of France on the same subject. §. 1. The law interdum has been adopted among us. 217. Can the ship be charged with hypothecation? ib. §. 2. The lender on the hull has a lien upon the ship. 220. If the vessel do not put to sea? ib The lender on the ship has a lien on the freight. 221 If the borrower on the hull have relinquished the freight? ^, Does die lien extend to the whole ship and freight? ib. §. 3. Lien of the lender on the cargo. 232. Effects landed before the accident. ffî m $. 4. Lien of the lender on the vessel and cargo. 223. §. 5. The lien embraces both the principal and interest. &. §. The lien attaches though the bill be private. ib. And although the holder do not prove the useful employment. :y Sect. III. Priority of liens on. a ship which iias not com- menced her voyage. Text of the ordinances. CONTENTS. lai Rank: Vendor of the ship. 224. The workmen. ib. Material men. ib. Concurrence of the above, persons. ib. If i he vessel was 'milt for a 225. 2; i The bottomry. 229. More j . .-•• bj a third per- son, [not at bottomry. ~\ 230. Join; owner who furnishes thé proportion of his part- ie r. 231. Sect. IV, Priority of Hens on a vessel which returns from her voyage. 1st Rank. Mariners, 232 2nd /'■ Creditors for loans made during' the voyage. 233. Owners of merchandize sold during the voyage to sup- ply the necessities of the ship. 234. 3rd Sank. Creditors for loans made be- fore the departure of the ship. 235. Material men. ib. Workmen. 236. 4th Hank: Shippers of small adven- tures, ib. 5tli Hank: Creditors for the premium of insurance. 237 6/A Rank. Money left by renewal. ib. 7th Hank-. The vendor. 239. Sect. V. .Priority of liens on the cargo. 1st Hank: Charges of unlading - . 241. 2nd Rank . Freight and general ave- rage, ib. 3rd Rank. Furnishers uf particular ar- ticles, during the voyage for the safety of the thing* ib. At h Rank. Lenders before the depar- ture, ib. Lenders at an intermediate part. ib. Does the vendor of the mer- chandize come in con- currence with the lender on the cargo ? 212 Sect. VI. Claim of property — Severance of property. Vendor's right of lien. 246. Severance of property. ib. Sect. ATI. Of those who have priviledged or concurrent claims, on the property saved and the policies of insurance. §. 1. Salvage. 253. Seamen's wages. ib. Other creditors. ib. Lien on the freight. ib. §. 3. Lien on the policies. ib. §. 3. Concurrence between several different credi- tors. 259. Sect. VIII. Of priority in cases where there are se- cret part owners by assign- ment from the original owner. §. 1. General observations. 259. §. 2, Are those who lend at risk to the assignor pre- ferred to the assignee ? 260. §.3. Are those who lerd at risk to the assignee pre- ferred to the assignor 260. §. 4. What if the interest as- signed had been modified by a contract of maritime loan. ib. What if the assignee had given bills of gross ad- venture to the assignor as the consideration of the interest assigned ? 261, De Exercitoria Actione. 267. De lege Rhodia de Jactu, 279. I )i Nautico Foenore, Digests. 288. Same title from the Code. 292. Des Contrats à la grosse. Aventure. 294. AN ESSAY ON MARITIME LOANS. THERE is a great resemblance between con« tracts of Maritime Loan and Insurance. They frequently appear to be governed by the same rules. They are twin brothers, to whom mari- time commerce has given birth : yet each has a character peculiar to itself. But we cannot dispute the promogeniture of Maritime Law. It enjoys certain privileges of which Insurance is deprived. But Insurance has acquired an extensive empire ; and its nobility, though less ancient, surpasses the other in dignity. I mean among ourselves ; for in Marseilles, the bor« rowers, are, in general, a kind of people not much favoured with the gifts of fortune, to whom money is trusted, in this way, very sparingly. C 18 a Calvi- nus. CHAPTER I. General Observations, Although Insurance was but little known to the. Romans, yet the contract of which we treat was in general use among them. That which we term money lent at bottomry or respondentia, or, to use a more general expression, money lent at maritime interest and risk, was call- ed by the Romans, pecunia trajectitia. Not that it was given by one person to another merely for the purpose of having it transported from one place to another, but because it was lent to a person, to be employed by him in maritime commerce, upon con- dition of returning it, in case of a successful trade, with maritime interest. And there was a stipula- tion that it should not be returned, nor should in- terest be paid for the loan of it, if the vessel should happen to be lost by the perils of the sea, in the pro- secution of a specified voyage. Pecunia nautica quœ et trajectitia et maritima dicitur, est, quœ peri- culo créditons in navem recepta, trajicienda commit- titur. (a) SECTION I. Texts of the Ro?na?i law relating to Maritime Loans. L 1. ff.de The law \ ff.de naut.fcenor. says, that iraj edit ia n ' pecunia ;: - is that which is transported beyond sea, ira iectitia pecunia est, qua trans marc vehitur : that is * So called, because it was give» lo the borrower to be em- ployed by him in commercial speculations upon and beyond - Maritime Loans. 1 9 to say, that which is transported beyond sea at the risk of the lender, and to be employed in merchan- dise for the advantage of the borrower. If this money be expended in the same place in which it has been furnished, it is not said to be tra- jectitia: caterum, si eodem loci consumatur, nor erlt trajectitia ; but if it be expended in the purchase of merchandise in the place where it was lent, which merchandise is afterwards embarked at the risk of the lender, it preserves its quality of being trajec- titia. Sed videndum, an merces ex ed pecunia com- parât^, in ed causa habeantur : et interest ntrum etiam ipso periculo credùoris navigent ; tunc enim trajectitia pecunia fit. We perceive by this last sen tence, that the essence of maritime loan consists in the hazard of the lender. The money is not at the risk of the creditor un- Lm 3i ff til the vessel has set sail. In nauticd pecunia, ex eod. ea die periculum spectat creditorem, ex quo navem, navigare conveniat : that is, the lender incurs the hazard from the moment that it commences. This is a text which demands attention. It is of L 4# ff# no consequence, says Papinian, if the money has eod. been furnished, in the first instance, upon condition that the maritime peril shall not be incurred by the creditor : nor if the peril has ceased to be at his risk by the completion of the term or condition stipulat- ed : in either case, nothing is due but common le- gal interest: utrubi, majus légitima usura fœnus non debebitur. But in the first case, that is, when the money of the creditor never has incurred the mari- time hazard, (trajectitia pecunia shie periculo cré- ditons accepta J it is, beyond dispute, only a loan at ordinary interest: in pnore quidem specie, semper. In the second case, on the expiration of a certain term or the fulfilment of a certain condition, (post- 20 An Essay on diem prastitittum et conditionem impletam, pericu- lum esse creditor^ desieritj the legal rate of inter- est shall be chargeable iii consequence of the want of maritime interest : in altera verb discasso periculo. In either case the creditor cannot retain the pledge or lien that has been given to him and which would enable him to demand a maritime interest, not due to him/ nee pignora vel hypothicœ, titulo majoris usurœ, tenebuntur. Upon this text, I shall remark, 1st, That, accord- ing to Papinian, we cannot apply the term trajecti- tia to money furnished for a transmarine voyage, upon a condition that it shall not be at the risk of the lender; but that in such a case, it is an imper- fect contract, which does not authorise the demand of maritime interest. 2d. It was lawful to lend upon bottomry, or for an entire voyage, or for a limited time ; but as soon as the lender ceased to run the risk (discusso peri- culo) the common and not the maritime interest was to be paid. 3d. The lender was not prohibited from demand- ing pledges and hypothecations as an additional security; provided that it was not a pretext for exacting maritime interest after the sea risk should be at an end. On the % When the money was only furnished for a part of l. of law a VO y a ge, it was usual, in consequence of the diffi- («) l. 4. culty attending epistolary correspondence, to des- §. l. fr. de p a tch a slave, for the purpose of demanding the naut.foen. l . . , ... * ,* , , „* ° • -, L. 23. de principal and interest at the place where the risk obiïg. ct C eased to be at the hazard of the lender, and to sti- 122. ff de pulate for the payment of a pecuniary penalty in case verb. the borrower should not perform his obligation, (a J oblig. The penalty was due at the expiration of the term, unless no person had appeared to demand pay- Maritime Loans. 21 ment.f a) This penalty could not afterwards exceed (<0 \- 2 - the common legal interest beyond which it was not naut . f œn . lawful to exact any thinar./^j L - 23. ff. „ . de obli s- ct act. Cujas. (b) d. L. 4. §. 1. ff de naut. fœn. id. Cujas. The law, periculi pretium, 5 ff. de naut fœn. is very obscure. The text is certainly corrupted. We may however infer that in contracts of hazard, that which is received beyond the principal is a pre- mium paid for the risk : periculi pretium est. And in such cases the simple agreement, not clothed with an express stipulation is sufficient to augment the obligation. In his omnibus, et pactum sine sti- pulation ad augendum obligationem prodest. That which is received, then, beyond the princi- pal is less an interest than an increase of the debt, in consideration of the peril to which the money is exposed. (c) And as Dumoulin says, in the expia- (c) ib. nation which he has given of this law (upon usuri- Cu J as ' ous contracts after No. 102,) valet sine stipulatione, 00 vid - j ' r 7 L. 7. ff. nec subest taxatiom zisurarum, quia augmentum sor- eo d. tis non est usura, sed periculi pretium. (d J Kuricke, I have lent you, at maritime interest a sum of l. 6. ff money on merchandise laden on board your vessel ; eod ' in consequence of which you have hypothecated, not only these goods, but others, which are on board of other vessels. If the vessel, which was the object of the contract, be lost, my principal and interest are also lost and I cannot resort to the other goods, upon which I had run no risk. This is the decision of the law 6 ff. de naut. fœn. because, as is observed by Cujas upon this law, (lib. 25. quœst. Pauli) the principal obligation being extinguished, the hypo- thecation, which was only accessary, is also at an end. Cam principalis obligatio non consistit, nec pignoratitia, quœ sequitur, (ocum habet. 22 An Essay on l. l. c. Money lent on Bottomry or at Respondentia, the fa." aUt ' risk of which is incurred by the creditor, cannot bear extraordinary interest longer than while the risk continues. Trajectitiam pecuniam, qua peri- culo créditons datur, tandiu liberam esse ab observa- tione communium usurarum, quamdiu navis ad por- tum adpulerit, manifestum est. l. 2. c. if you do not encounter maritime hazards, you cannot claim a greater interest than is allowed by law. l.^3. c. The i en der is not prejudiced by a loss, which happens at sea through the fault of the borrower. l. 4. c. Until the vessel is arrived at her port of destina- cod ' tion, the perils of navigation are at the risk of the lender, who has agreed to incur them. But if there be no stipulation to that effect, the borrower runs the risk. Sine hujusmodi verb conventione, infor- tunio naufragii non liberabitur.* Opinion Paulus, lib. 2. sentent, tit. 14. decides that mo- s ' ney to be transported is susceptible of an indefinite interest, because of the peril which the creditor takes upon himself. Trajectitia pecunia propter pe- riculum créditons, quamdiu navigat navis, injinitas usuras reaper e potest* i,. 26. c. J us tinian seems to have wished to reduce the ma- a-Scedn rltimc interest to one per cent, per month, fa J Dou- novels moulin, fbj says that the law of Justinian, relates 106 110. /.contrats usur. n. 91, &c. * Eut then he cannot stipulate for or receive any more than his principal with leçal interest. The contract, in that case, is a mere hypothecation or pledge of the vessel or goods, for the security of the money which has been lent; but it is not pro- perly speaking, a maritime loan. And bottomry bonds may be given for security of mercan tile or other debts, either in places where the owners dwell, or in foreign places by their order. Bn's Adw. dtc. 348. Maritime Loans. 23 only to navigation at ordinary seasons, when there was little danger : but that when the danger was considerable, he enforced the law periculi pretium, 5 ff. de naut. fœn. of which he endeavours to give a new explanation. It seems to me that it was easier to say, that the law of Justinian was applicable to money which was to be transported, the risk of which was not run bv the creditor, who is comprehended in the law 4. ff. de naut. fœn. This explanation is not at variance with the law 26. C. de usuris, nor with the text of the novels, 106, 110. Calimachus residing at Beritus, a village in Syria, l, 122, % . received a sum of money at bottomry from Stichus, l'Jt? e a slave of S'eius, for a voyage from Beritus to Bran - obiig. dusium and back ; with a warranty that the vessel should sail from Brandusium before the ides of Sep- tember. A slave was embarked to attend the ex- ecution of the contract. And it was agreed that if the vessel should not leave the port of Brandusi- um on her return voyage to Beritus before the ides of September, the principal, together with mari- time interest and the expences of the slave, who was despatched, should be paid at Brandusium, in order to be sent to Rome. Both the outward and inward cargo were hypothecated to the lender. The Ides arrived, and the vessel had not sailed. Erotus> the slave appointed to go in her, instead of de- manding the money, consented that the vessel should put to sea for Beritus, although the stipulat- ed term had elapsed. The vessel was lost. The law decides that it was not the loss of the creditor, because the slave had no power to prolong the « l y la - , . * l p Cuius, in. term, (a) 2.obs. 11 Upon all the texts which I have explained, you b part 4. may read the learned commentaries Stypmannus fbj "? b g and Locenius» (c) cap. 6. <24< An Essay on a ch. is. The Guidon de la Mer, (a) says, that the contract art ' 2< of bottomry, such as is now customary, has very little resemblance to that which was formerly in use. But this assertion is not true, except as it regards the form which modern rules have given to this contract whose origin is lost in antiquity. & origine di questo contratto è molto antica, percio di essa ne fanno es- b Targa, pressa mentione le leggi tanto civili, quanto canoniche ; cap. 32. n. m àdi forma, o piu tosto diri forma, é moderno. (b) 5. p. 131. *f * ■* SECTION II. Definition, denomination, legality and nature of Maritime Loan. § Défini- I adopt the definition which M. Pothier gives of non. rïû s con t r act. a n. l. h. " The contract of maritime loan," he szysfa) u is an agreement by which one, who is the lender, lends to an other, who is the borrower, a certain sum of money, upon condition that if the thing upon which the loan has been made, should be lost, by any peril of the sea, or vis major, the lender shall not be repaid, unless what remains shall be equal to the sum borrowed; and that if the thing arrive in safety, or in case that it shall not have been injured, but its own defect or the fault of the mas- ter and mariners, the borrower shall be bound to return the sum borrowed, together with a certain sum agreed upon as the price of the hazard incur- red." This definition is taken from the Roman laws, formerly cited. It is to be found nearly the same in all our books, fbj part. 4 ' cap. 2. n. 13. p. 378. Kur. jus Hans. lit. 6. p. 761. Locc. lib. 2. cap. 6. n. 2 p. 988 Targa, cap. 32. n. 6. Lubeck, de avariis p. 126. Wolfius and his glossarist Ç.680.68L 2. Black cap. 30. p. 461. diet, de Savary verb, contrat à la grosse Prévit de le Jaunes, principes de iurisprud. tit, 20. ni 556. Maritime Loans, 25 We have just seen that in the Roman law the §■ 2 -. De : contract of maritime loan is commonly called pecu- on. mma -" nia trajectitia, and sometimes pecunia nautica, fbenus nailticum, (a) fcfc. j U3 . hans.tit. 6. p. 761. Lubeck p. ? 2 6. UriCke In the Guidon de la Mer, (b) it is called borne- b ch. 18. rie, from a Flemish word which signifies a keel or bottom. Wolf (c) makes a distinction between c § 680 pecunia trajectitia, money lent to be transported, and bomerie. By the former he means money advanced upon merchandise, and by the latter, that which is given upon the body of the vessel.*" But the nature of the contract is the same in both cases. Among us the contract is called gross adventure ; because the lender exposes his money to the perils of the sea and contributes to the gross or general average. It is also called a loan on the return voy- age (à retour de voyage,) because the lender gene- l V p liT î rally runs all sea risks until the safe return of the n ! l. h.'t, ship.(rf) In many countries of Italy the contract of bot- tomry is called hypothecation, I ship certain goods on board a vessel and receive a sum of money from the captain, for which I hypothecate the vessel to him and stipulate to pay him a maritime interest. If the vessel return, I pay the freight of the goods, the sum which I have received and the stipulated interest. If the vessel perish, the captain loses his money and I lose my goods. He who furnishes the money is termed the lender e Savary and he who receives it, the borrower. (e) In the ^/j™" Roman law the lender is termed the creditor. grosse,. * In like manner we distinguish between money lent at Res- pondentia, which answers to the fiecunia trajectitia of the ito- mans, and Bottomry, a term which is derived from the same source, and corresponds with the French word bomei'ict D 26' An Essay on The condition is said to be fulfilled, when the vessel arrives in safety at her destined port ; and it is not performed when the voyage is not com- c l^ U 1 3. S » 1 ■■ - v inioc.cit. pleted.(tf) «3. Law- * It is beyond doubt that this contract, without fulness of which commerce would languish extremely, is law- omraet. ^ rpj^ î nteres t which the lender claims, in case of a successful voyage, is the price of hazard, pe- riculi pretium and has nothing in it which resembles usury. Nevertheless it seems to me that it is declared to be usurious by the 19th chap, extra de usuris Naviganti, vel eunti ad nundinas certain mutuans pecunïœ quantitatem, pro eo, quod suscipit in se pe- riculum, recepturus aliquid ultra sortem, usurarius est censendus.^ * The stat. 6. Geo. 1. c. 18. enacts that during the continu- ance of the Royal Lxchange and the London Assurance Com- panies, which were subsequently erected in pursuance of this statute by 8. Geo. 1. c. 15. § 25. all other corporations or bodies politick, sole or aggregate, and all societies and partnerships for assuring ships or merchandise at sea, or for lending money upon bottomry, should be restrained from so assuring or lending. All bottomry securities contrary to this act are made void, the con- tract is deemed usurious and the offenders are to be punished as in cases of usury. But private persons are not prohibited from lending at bottomry in the same manner as they might have done before the statute was enacted. Nor does it prevent the South Sea or hast India Company from advancing money on bottomry on ships or goods on board ships or to persons em- ployed in their service. §. 26. t This is a text of the Canon law, which our author has in- troduced, as we presume, merely to show the different opinions which have been entertained upon the subject- The various interpretations that have been given to this text can be of no practical use even in France, for there the extravagants, i. e. Fapai constitutions, which are a part of the Canon law, have never been considered as in force Maritime Loans. 27 Upon the strength of this text certain writers en- Different veigh against this contract and term it usurious. SSmTof Straccha (a) has entered into an elaborate disserta- the cap. tion upon this subject, which has been censured by na ^s ami , r ,. r J . ... t» i i a Introd. the generality ol civilians. But they do not agree de as- in their interpretations of the chapter, Naviganti. g &" n ' Some say that the chapter ought to be understood First in- of cases where the money has been furnished upon tei P ieta - bottomry for a voyage, which may be performed without just fear of peril : quod ibi simultantee, dici- tur de mutuant» naviganti, intelli&itur de navigante b 2 - ,P U ° jj . j . \ . . ** . moulin in jlumine, vel ita tuto, ut cesset Justus timor peri- contr. culi.(b) But there is no voyage without some da- usur ; mage, be it more or less. 38. ' P The lender upon bottomry is not declared to be Second an usurer, he is only presumed to be so : usurarius £22/*" est censendus. This legal presumption, they say, is admitted in courts though not in conscience. If I stipulate for a maritime interest in considera- tion of a loan, I am guilty of usury: but if the in- terest be to be paid in consideration of the risk to which my money is exposed, my conscience is safe. Fagnan upon this chapter n. 21. and 24. says, Ego ad concilianaas opiniones, puto sic distin- guendam: ant qnœritur, an ejusmodi, contractus censeatur usurarius in foro externo, et quantum ad judicium ecclesia: aut quaritur, an sit usura- rius in foro anima, et quoad Deum. In primo casu, existimo contractual judicari, usurarium, et ita procedere opinionem Canonistarum; quia, cum creditor recipit in se periculum rei mutuata, et aliquid accipit ultra sortem, ecclesia judicat princi- pale objection illius ess ex lucrum ex mutuoj ita ut non sit audsendns si dicat, se non recipere ratione mutui, sed solilm ratione periculi ; quia cum hoc consistât in intentione, non pertinet ad Judicium Ecclesia., qua von judical de occultis. 128 An Essai/ on In secundo ant em casu. iciest in for o animœ, vera videtur Theologorum distinctio: Nam si mutilans recipiat aliquid ultra sortem ratione mutui, seu eà intentione ut lucretur ex mutuo, quamvis pericu- lum in se suscipiat, absque dubio est usura, quae sold volant ate committitur ; sed si vere non intendat lucrari ex mutuo, sed tantummodb accipere per mer- cedem, seu pretium periçuli, in foro interiori, et quantum ad Deum non est usurarius. Itaque tota hœc res ab intentione distinguitur, et specijicatur. In dubio autem cum non distinguit an lucrum recipiat ratione mutui, vel ratione periculi, ceusetur recipere ratione mutui: et ideb usura est: et sic arbitror posse conciliari dissidentes opiniones : quod nota. Third in- Maritime loan or gross adventure is composed of terpreta- three different contracts: 1. The contract of part- nership, as to the profits of the voyage. 2. The con- tract for the sale of an uncertain portion of these same profits, if a portion have been agreed upon. 3. The contract of assurance, by which the lender adeLuca ta kes upon himself the risk as much as to the prin- de credi-. çipal ; as to the portion stipulated, which is indicated, 3?n. ft to hi m on tne profits. [In this circuitous manner de usuris. we arrive at the lawfulness of bottomry and evade Cas C are g is the Pontifical decision, (a) disc. 14. 62.Targa ch. 32- Fourth Some doctors get over the difficulty, by adding a 'talion*^ negative to the text of the Decretal.* They pre- tend that we should read usurarius non est censen- dus. Indeed, what follows the text seems to require this particular negative. Ille quoque qui dat decern solidos, ut alio tempore totidem sibi grant, vini, vel olei mensura reddantur: qua: licet tunc plus va- leant, utriim plusvel minus solutionis tempore fuerint valitin\c, verismiliter dubitatur : non debet ex hoc * A technical term by which the laws of the Papal powers are denominated. Maritime Loans. 29 usurarius reput ari. Ratione hujas dubii etiam ex* cusatur qui pannos, granum, vinum, oleum, vel alias mer ces vendit, ut ampli us, quàm tune valeaut in certo termina recipiat pro eisdem: si tameu ea tempore contractus non f tier at venditurus. Now, if it be not equally usurious, when I give you to-day ten crowns, upon condition that you shall deliver me wine, oil or fruit to the value of the money, according to the market price, a year hence : if it be not equally usurious when I sell you, to-day, a certain quantity of cloth, grain, oil or other merchandise for the price at which those arti- cles may be sold six months hence — if, in these cases, the uncertainty of the event makes the con- tract lawful, the same must be said in favour of bottomry. The words of the text, Me quoque qui dat decern solidos — non debet ex hoc usurarius repu- tari, imply that the lender on bottomry, who is be- fore spoken of ought not equally to be esteemed an usurer. Puto igitur negationem omissam, esse in- serandam. Stypmannus, part. 4. cap. 2. n. 181. p. 399. Fachin, lib. 2. cap. 47. Cabassut, lib. 6. cap. 8. Gibalinus, de usuris, lib. 2. cap. 4. art. 3. n. 25. This opinion is warmly disputed by the Cardinal a de usu- de Lucca, (a) He treats it as the result of error and gM ^ ignorant temerity : de errore et indoctd temeritate. and 9. Molina, (b) after having reduced to three princi- b de just. pal conclusions the. different opinions of the jurists ^j m ' upon the chapter naviganti, finishes by telling us sis. vol. that we may take which we please : ex his tribus 2 - P- 283 - expositionibus, elige quern malueris.* * Much learning and ingenuity have been wasted by many very sensible writers in attempting to prove the immorality and wicked- ness of usury. Some cite a proposition of Aristotle, which is probably misunderstood, that money is naturally barren and therefore cannot produce. But these same writers, by admit- ting that there is no immorality in receiving legal interest de- I •:-. Ii| I lliink i II) I. i |>uUi s (h I do • i 'minier ' I., i le Comté y naissii», tit. 3. art. I. II 1 I let! 1 . | . 1 ! . ,ii > is .i. : ■ | i .. I< assur.ii; l( n nt kinds : u 1 be nc« ut a brot -•her», an -c a Dt rrat h.iv the rate to tl ■ . j ;•• there i an ~ h which consists in exacting something beyond the ' sum lent, by way of reward for the loan, vi mutui; but, in this contract, the maritime profit which is stipulated beyond the sum lent, is not a reward for the loan, but the price of the risk, which the len- der undertakes to the exoneration of the borrower. * i'he authors whose names are here quoted are of various nations. He cU>es not thereto: e allude to the French lawyers exclusively. 32 An Essay on 5 4 - In considering the nature of this contract, wè tract of shall find that it is rather real than personal.* bottomry Commerce is its sole object. The maritime inter- areai >e ° est > which is the price of the risk, is considered, to than a some purposes, as a part of the profits of the voy- nature. a a g e - If tne sn *P perish, the lender can claim noth- ing; and if nothing has been exposed to the waves of the sea, there has been no contract of bottomry. mutual ? a Pothier is it f Pothier fa) says that " this contract is unilateral, ■nittrinl } * m 111* 1 or, on one side only; because the lender is under no obligation to the borrower by the contract. " No one" he continues "is bound but the borrower, who engages to return the money borrowed, with maritime profit, if no accident of vis major shall oc- casion the loss of the effects upon which the loan has been made." Each par- « j n t hJ s con tract continues the same author, ib. terestTd n. 4. there is an interest on each side; and it differs, in this respect, from an ordinary loan, which is a - contract of benevolence, that concerns the interest of the borrower only and imports, on the part of the lender, nothing but the pure service which he ren- ders the borrower by granting the use of his money without reward. But the contract of maritime loan is made for the interest of the lender as well as for that of the borrower. The lender does not contemplate the rendering of any service to the borrower, but he expects to receive the maritime interest, which is stipulated, if he is not prevented by some accident." * The civilians denominate real contracts^ those from which an action in rem results, and those which require an action in personam are called personal contracts. It is of no consequence- in the former case, whether the subject of the contract be land or moveable property. The word, real, in the Civil Law, does not apply, as with us, exclusively to land. •j- Synallagmatique. A term derived from the Creek, which is applied, by the French, to confacts (hat are mutually ohliffatorv. Maritime Loans. 53 " Maritime loan is to be ranked he adds, ib. n. 5. Sïï^i among the number of aleatory or gaming contracts," bù'aiea! [inasmuch as it depends, in a great measure upon t0!yor chance.] " The risk of the loss of the effects upon coSraft. which the loan is made and which the lender runs, is valued at a price which is the maritime profit ; and this the borrower binds himself to pay in case of a safe arrival." The borrower contracts to return the sum lent and to pay him a certain stipulated interest for the use of it. But this contract is not made, even for £** 33 ' the return of the principal, but with a condition, cap??3. that no accident of vis major shall happen, which JJJ" 4 - P shall occasion the loss of the effects upon which the loan is made.ffl^ SECTION III. It is cssejitial to this contract that there be a risk, and that that risk be incurred by the lender. At Leghorn and in other parts of Italy it is law- \ ^% ful to lend money at bottomry by way of wager. If wa 7 of the vessel arrive in safety, the principal and mari- wager - time interest become due to the lender ; and if the ship perish, all is lost to him although the borrower regïduc. has not employed the money which he received in u - 15, commerce nor has had any property at stake, (b) The stipulation, interest or no interest is a real interest wager. I have spoken of it in my treatise on insu- or no »"- ranCC (C) terest. c Cassa, disc. G2. n. 27. et seq. ch. 1. Sect. 11. §. 4. This is not permitted among us. To constitute this contract the money must be invested in some- thing which is exposed to the dangers of the sea; dAn.s. and in case of loss, it is incumbent on the borrower u - ^ n to prove property to the amount of the loan,fdJ E 34 An Essay on It is not less essential to this contract that the pen] must peril be borne by the lender: periculo creditoris.(a) be borne by the lender, a L. 1. 3. 4. 5. ff. de naut. fcen. L. 1. 2. 4. C eod. Pothier n. 16. h. t. Stypm. part. 4. cap. 2. n. 14. p. 378. it is not ^ cannot properly be said to be a contract of bot- properiy tomry until the day that the risk commences ; ea untuita d ie periculum spectat creditorem.(u) risk commences, b L. 3. ff. de naut. fan. if the mo- From which it follows that if the borrower ex- pended™ pend the money on shore without exposing it to the land be- dangers of the sea, it is not a contract of bottomry, com- he although it may be so called in the instrument of mence- writing, si eodem loci consumatur, non trit trajec- ment of , -, • Pi the mk? titia.(e) c L. 1. ff. de naut. fcen. [Vezeyl54. 1. Ld Raym 578. 2. ib. 982. Bee 346.] if the As soon as the risk ceases, either by the safe ar- ceîse ? r i va l °f the vessel or by the expiration of the stipu- lated term, the contract ceases to bear maritime dL -\*- interest, fdj de naut ' y fcon. L. 1. C. eod- Ifthe If the contract was void in its commencement, was,ab the maritime interest is not chargeable, because no initio, maritime dangers were borne by the lender.* void- Q * A bargain on a mere contingency, where the reward is gi- ven for the risk, not for forbearance, will not be within the sta tute. Cro. Eliz. 64". Button a/. Dovmftam. If therefore a man give or lend money not to be pa'd if the event should be one way, but double if the other, and it is uncertain which way it will happen, it is not within the statute : for the reward is given for the r ; sk and not for forbearance. But if under colour of such an hazardous bargain the real treaty is for a loan, with an usurious reward for that loan, and to evade the statute, the contingency inserted is of little moment, being no ingredient between the parlies: the court or a jury on the whole may pro- nounce such a contract usurious, notwithstanding the colour of contingency, if ihey are satisfied the reward is given lor forbear- ance, not for the risk. The intent of the bargain is the material thing : if that was borrowing the money, it is within the statute, whatever co- lourable contingency is inserted: and this is the sense of all the Maritime Loans. 35 resolutions in the several cases. 5. Co. 69. 70. 2. And. 15. Mo. 397. and Mason v. Abdy. But where the principal was fairly and truly put in hazard, and such as none would run for the interest the law allows, there is no case where it has been held within the statute. The slightness or reality of the risk, seem- to be the only rule directing the judgment of the court. Cro. Lliz. 741. Bedingfield v. Ashley; and in 3. Keb. 304. Long. v. Wharton, which, though inaccurately reported, seems to me to be good law. I cannot see two contracts bearing a greater similitude than this [bond by A. aged thirty in consideration of a loan of £ oOOo. to pay £ 10,000 if he survive B. aged 78.] and bottomry. A life may be insured ; so may a ship, which may sink the day after : so may the party die : one is as much an adventure as the other. It was endeavoured to distinguish bottomry from every contract upon this, that 'though above what the law allows upon a loan, vet bottomry contracts were established in favour of trade, there being a risk of the principal and they being ne- cessary for trade and commerce. But whatever favour the court may show to such contracts, they will never establish them upon the destruction of a statute ; and the principle of the court there- on was, that the bottomry bond was not within the statute ; nor could it be; for it is plain that a real risk was run, that the principal may never be payable ; therefore it cannot be given for forbearance, but grounded merely on the contingency, the risk. But as a colourable contingency in case of a life annexed to the payment may make that bond usurious, so will a colour- able contingency annexed to a bottomry contract : as in a bond, if one out of twenty ships bound from Newcastle to London, arrived safe ; that would be a contingency thrown in to evade the statute, which would be too hard for such a bond: so if such a contract is made, if the packet should return to Dover from Calais at a season of the year when their is no danger: and this I may say with the more security, as Joy v. Kent, Hard. 418. is an express proof of it ; where a bottomry bond was sent to be tried whether it was an evasion of the statue ; which would not have been so if it could not have been an evasion. Indeed Lord Hale throws out expressions very favourable to trade, but so inaccurate in that book, that I do not think they could be such as came out of the mouth of so great a man. One of the first cases of bottomry, which came in question, was Sharfiely v. Harrel, Cr. I. 208. what the court goes on there, is the real risk of receiving less; which is cited again in Roberts v. Tre- nayn 2. Roll. 47. and Cr. I. 508. which d:flered from the other. In Soome v. Glen., as in 1. Sid 27. the resolution is founded on the real hazard of the principal, which cannot be within the statue. Per Burnet, I Earl of Chesterfield v. Jansen. -2. Vez. 143. / s| ( I |( )\ |\ I -iiij.lv 1( lit, \ 1' ilt : th. U i».!. • I |.l< loan, iii'' due !>ut I whei ■ marit ! impie l< tin • ' Prim t the < uatom > • ' \\li ....,, ; ' annual]} , h ivc mai from th the « hole mai tly with the prim i| I th<- HIM tin Dumoulin oh maritiim • :':. ; . | : ». \\ in<.!i th:it t! rary : partnership vrhich is 1 •: But in orbV r to hip, the capital, the loa> or the ild equall) born' b) bothpart* ing is i ommon i tm m. 'I .\ Maritime Loans 37 In fact, partnership is an agreement between two or more persons, by which they hold all or a part of their goods in common : or it may be for a parti- * *£L. g i. cular voyage, a particular work or other affair, in £ p ™ so-' which they are to bear the loss or reap the profits cio - equally, (a) But money lent at gross adventure belongs pro- perly to him who has received it. The profits of the voyage belong to him exclusively, with the ex- ception of the maritime interest which he is obli- ged to pay. The sea risks are borne by the lender. It is certain, then, that a contract of maritime loan, is not a partnership and we need not regard the opi- nions of those authours whom I have just cited; c nor that of Casaregis, (b) who thinks that he per- „, ceives a species of partnership in this contract. Modernus contractus cambii maritimi, he says, rc- dolet speciem societatis nanigationis ami navarclw. But this system has been invented by the ingenuity of the Transalpine * writers in order to elude the pretended decision of the chapter Naviganti. There is nothing, however, to prevent us from uniting the contract of maritime loan with that of c d , 5. partnership, as we shall show more fully in a future Sec. 4> chapter, (c) You may load a vessel for the fish trade, a cruize or a mercantile voyage and I furnish a certain sum, upon condition that if the ship perish I shall lose my money, but that if she return in safety, m\ * The transalpine writers {ultra-montcdns^) are those who live ultra montes. In France, the word is used, to designate the in- habitants of those countries which are subject to the Papal power. In order to determine the degree of respect that is due to an author, particularly those who treat of maritime law or the laws of nations, it is frequently a matter of* some conse- quence., to know where he lived and when he wrote. The mo- dern decissions of most of the French and Lnglish Admiralty courts afford ah illustration of the truth of this remark; / ■ I I (I I n< . t r 1 \ to thai I -I • Will t!:( in. II. ; rincipk s. < J n, on I In the <>n< t, tin lei in th«. otht i , ti. In the one, the maritime interest is th<- j tlu peril ; and this term i n ith th viiuiti which is paid in the Otll The rate of the premium or înl r 01 less according to the durati I natun risk. In eithei il is incumbent upon the plaintiff to prov< that the condition lias been fulfilled. C9 BUÎt, it li< s upon the lmd< r, in < >f maritime loai how that the ship has arrived at lur port • ■..:< t\ ; and in an action <>n a p'>li* J f In- Buranot , it la s upon the I tun <>r shipu N ither of th. tenet until tin risk is commenced, [f the mot be not employed in maritime comnu 1 and it ought to turned Maritime Loans. 39 with common interest : if the assured do not put any thing on board, the policy ceases, defectu ma- teriœ and he is released by paying one half per cent. In each contract, it may be laid down as a gene- lar rule that the subject of the risk should be on board at the time when the accident happens. In general, the assurer and the lender are expo- sed to the same sea risks, during the time and in the places fixed by the parties. In general, the assurer and the lender are not re- sponsible for the barratry of the captain, or for los- ses occasioned by the fault of the assured or the borrower. We cannot assure nor take up money at gross ad- venture, on freight to be carried or on eventual profits, &c. * Assurance and maritime loan are dif- ferent in many respects. 1. In case of shipwreck, the lender has a lien $. 4. Dif- upon all the effects saved, without admitting the ference borrower to any participation with him : on the con- t he uvo trary if the whole of the property is not covered by contract?. the policy, the assured takes a part of the goods saved, in common with the assurers. * But by a declaration of the french government in 1779, freight, actually earned, was permitted to be insured; and it was provided that in case of loss, it should not be included in the abandonment of the ship, unless it were expressly so sti- pulated in the policy. But freight though actually earned, can in France be insured only by the freighter, when he agrees to pay the freight at all events. Le Guidon ch. 15. art. 1. Va* lin, on art. 15. p. 58. Pothier, h. t. n. 36. 1. Emerig. 225. In Italy, Rocc. not. 96. England and the U. S. freight may be insured, provided the risk on freight has been commenced. Mar. 76. In the U. S. it is common to insure commissions and eventual profits. 40 An Essay on avid, in- 2. The lender does not contribute to particular Sect. 2. averages, but the assurer does: (unless there be an ch. 7. agreement to the contrary.) (a) Avid, in- 3. By the clause, free from average, the assurers frach.7. are covered, even from general average: it is not so with respect to lenders, (bj 4. By the policy, the assurer may restrict him- c ib. self to particular sea risks ; but against lenders such a limitation would be void, fcj rfvid. in- 5. We may assure merchandize which is actual- se a c t h 4. 5 ty at nazar d; Dut lt 1S not permitted to take money ch. 6. at bottomry on a vessel which has sailed, unless she Sect. 4. j s m tne course f h er voyage and for intermediate necessities, fdj 6. Mariners are never permitted to assure their evid. in- future wages; but they are allowed, under certain sTc^s 5 modification, to take money at gross adventure up- on the wages which they expect to receive, fej fmd. n- 7. The formality of abandonment which is neces- frach.n. sarv m i nsurance is unknown in the other con- tract, (f) g vid. in- 8. The limitations of actions established respec- ta cn ; 9. ting actions on policies have not been applied to contract of maritime loan, (g) 9. The assurer who insures for a gross premium on a vovage out and home, is bound to refund one frach.'ï third of that premium if the vessel do not return; Sect..i but the whole sum is due to the lender, although the vessel do not return, fh) 10. In assurance, we must attend to the dates of the policies in order to regulate the return premium, but they are not regarded, in contracts of maritime Maritime Loans. 41 loan, effected for the same purpose and in the same place. 11. The assured may stipulate that in case of a- avid, in- bandonment, he shall not be obliged to pay sea'Vt freight: the same indulgence is not granted to the 2. lender on the vessel, (a) 12. The policies of Insurance made on loose sheets of paper create a lien on the property of the parties, provided they are executed before sworn brokers or notaries ; but the other contracts do not create b vid. in, such a lien unless they are recorded by a notary in se« h i 2 ' his publick register, in the same form as ordinary contracts, (b) 13. The assured ought to run the risk of one c vid - in - tenth.* But the same law is not imposed upon the s«t. 3. borrower, who may borrow upon the whole inter- §• 1 ■ kc - est which he has at stake, (c) SECTION V. Notice of certain Maritime Associations. We must not confound contracts of bottomry with certain maritime associations, of which it may be well to say a few words. We made a distinction, formerly, between the §■ *■ Joint owner of a ship and the victualler. The first fur- STthefit- nished the vessel, and the second, the provisions. tin & out . They were partners in the profit and loss in pro- ° a s ,p ' portion to the value of what they respectively fur- d Guidon nished. (d) We find traces of this species of mari- ^ la 18 mv time contract in the ordonnance de la marine, (e) art. l. 3. 19. Ord. 1589. art, 59. e art. 2. h. t. and art. 7. tit. des assnr. aad ch. * With us nc such rule prevails : a person may assure his •whole interest. F il i ri. is ■ \\\K Cil ill' il.it tin I b m ( , wh l of the J [f>) < -' I \\ !.« n I inn Mst u pack M st | tÛ I '"III, tV wl.h h I rive him \ ■ w , p, in virtu nhich tin profits art to be divided between us. I M hit is ( I' ndd. ■ i runs the risl ing hi> « apital, ! !.< oth< r, liis Lilnau. [f tl. more the first cost, tht former taxes the whol ut giving an) thing to th< lattei \\ is the profits «'illy which arc to be divided I the partners, according to their agreement (r) ttt. i li order ; " ai oid Uk taking fruit! \ i en in the babil oi Diall advc nturc s on in ighi win. h th« \ an i ni: if the rhis is wh tl the Juili;. i imphcita. {d) ■ * The (j New land Jl'ha- .Vr*, owned and navigated hi this man* :ul umki tins s|k.m m i I', captain and hu i ccr- to the agreement b em« ^urh menu wen »er) comma ihe mari. . It ii order l Ole- - codes iritùne i t In the Engl sh law, - alk-d ok/A Maritime Loans. 43 But all this has no relation to the contract of maritime loan. Yet we are apt to confound them sometimes. There is no doubt but that the admiralty has jurisdiction: 1. of contracts of bottomry: 2, of those which relate to the equipment of a ship and the recovery and distribution of freight; 3. of con- tracts with mariners who are to be paid out of the profits or freight: 4. of the transportation, proper- ly so called, of the cargo and adventures. But the Consular Court ought to have cognizance of, 1 . the manner in which adventures and other merchan- dizes are disposed of on land : 2. the distribution of the profits made out of them: 3. the riffht to , m . l . , . . . o à ch. 20. commissions : 4. every thing that relates to com- sect. 2. mercial transactions in foreign countries.* Vid. my §• ' treatise on Insurance, fa) In the last Section of the twelfth chapter, I shall „ . Cession speak of the cession of interest in the vessel and f inte- cargo or in particular goods. This contract forms rest - a kind of partnership, which unites itself sometimes with that of bottomry. (&) b Supra Sect. 4. §. 2. and infra, ch. 5. Sect. 4. * Previous to the French Revolution, the Court of Admiral- ty had cognizance of all maritime contracts and the Court of the Judge and Consuis, of all matters relating to commerce by land. But since that eventful epoch the two jurisdictions have been combined in one, which is exercised by the Tribunal de Com- merce. Matters of Prize are determined by the Council of Pri- zes sitting at Paris CHAPTER II. Of the form of the Contract. We have no printed form of the contract of ma- ritime loan.* It is drawn up in such a manner as the parties may find suitable. It is sufficient if the language be clear and unequivocal. It must con- tain proper clauses and nothing must be stipulated which is contrary to the nature of the contract. If it be obscurely written, we must interpret it as well as we can. It is enough if we can ascer- tain the intention of the parties, without expecting that illiterate men should express themselves with the precision of a lawyer; voluntas eoram amplec- a D'Ar- tenda est j et verborum captationes dicidiosce con- j r u ' d de .. demnendœ, si imperitus notarius sic non loquitur > cap. l. & a vt sic formulant non concipit, quoinodo Scœvola 4 - Africanus, (a) SECTION I. Of the external form. ther^the 6 ' M The contract of maritime loan may be made contract before a Notary or "under private signature." (a) may be made before a Notary or under private Signature, a art. 1. h. t. f This should be said with an exception as to mo- ney taken by captains who trade to the ports in the Levant, f The instrument when made there should * Vid. Appendix. f Constantinople, Smyrna ? ïhessalonica, Tripoli, Tunis* Cairo, Candy, Algiers, &c Maritime Loans. 45 be executed before the chancellor * of the consu- late of France, or it will be void, (a) a Declaration du 21, Oct. 1727. art. 30. infra ch. 4. Sect. 5. Notwithstanding the opinion of M. Vali. (b) Ma y it be I believe with M. Pothier (c) that parol evidence H-Y*' of the contract would not, at this day, be admit- ted, (d) b art. 1. p. 3. c n. 27. d vid. Emerig. on Ins ch. 2. Sect. 1. The contract of maritime loan when made before §.o. Doe* a. notarv creates a lien in the same manner as every lt ,C reate i ,.•! , -r% ' f • i i a lien on other pubhck contract, f But if it be made on a the pro . loose sheet of paper, although drawn up and signed P ert y of ? by a notary it will not give any lien. J epar s ' This contract is subject to the demi-controle ; § Must it be and if it be by private signature, the petition, when f e ™?c- a suit is brought upon it, must pray, that a day of knowkd- ged and registered I * Chancelier, is an officer under the consul in a foreign port, who exercises the functions of Notary Publick and Register or clerk of the consular court, in those places, as in the ports of Levant, where the consul enjoys a judicial authority. His acts have, in France, the same effect, as if they were the acts of a similar officer within the limits of the Empire. t In France every contract which is made in due form before a Notary Publick has the effect of a judgment with us, by cre- ating a lien upon the property of the parties. An obligation, for instance, executed before a Notary is equal to a judgment of record, and is therefore said to have a lien, fiorter hypothè- que. Nay more, it is executory without a judicial writ. It is only necessary for the party to obtain an exemplified copy and place it in the hands of an officer of the court, who, without further authority, may levy on the property of the debtoiy to the amount which is specified in the instrument. For this reason, those instruments are said to have execution Jiarèe, (ex- ecutio parata.) As these expressions frequently occur in the pages of writers on French jurisprudence, it was presumed that this explanation would not be deemed superfluous. \ It will, nevertheless, if the loose sheet remain as a record in the office of the Notary Publick ; but not if it be delivered to the party in the original, or, as it is termed by the French writers, en brevet. § The formality of comptrolling is a merely fiscal regula- tion, for the purpose of raising a duty to thr state. It is also, 46* An Essay on hearing be assigned to the borrower, three days af- ter the date of the summon, in order that he may come in and acknowledge the contract, in default of which it will be taken as proved. The petition must also pray that the contract be registered in the registry of Admiralty, to serve as occasion may re- quire. It is not until after this proof and enrolment that the lender may obtain a judgment against the borrower, who delays the performance of his con- tract. It is surprising that these contracts, which are in- finitely more beneficial than those of insurance, should be perplexed with restrictions, that are pre- judicial to commerce and of no advantage to the parties. 5,3. When M. Pothicr, n. 29. says "the instrument under it is made p nva t c signature, when it is acknowledged or pro- priété ved, is equally authentick with that which is exe- signature, cu t e d before a notary-publick, as against the bor^ it iseiSt- rower and his heirs. But it is not so," he adds, led to the "as to third persons, against whom the lender may v?iTg e es r as wish to enforce the privileges attached to his con- ifpubiick- tract. The date of instruments under private sig- ted. xecu " nature is not regarded as against third persons, if it be not proved by some other means than the instru- ment itself." The rule cited by this authour relates only to liens against purchasers. It is otherwise when the ques- de^TsT 2- tlon 1S of mere priority- ( a ) I know that frauds may ch! 16. be committed, but human laws can not prevent eve- sect. 5. §. r y ev ii -phe con tract of maritime loan under pri- vate signature is legal for this reason alone, that however, a check upon the Notaries, because, as this formali- ty must be observed in a very short time after the execution of the deed, it prevents the antedating of it ; a practice, which is substantially a forgery and deserves to be punished with equal severity. Maritime Loans. 47 the form has been adopted by the Ordinance ; and * ™ d * l as contracts of assurance correspond with those art. 16. made before a notary-publick, the same law pre- th.de la vails as to contracts of maritime loan, (a) 344. and tit. des Contracts à la grosse vol. 2. p. 3. infra ch. 4. Sect. 5. art- SECTION II. Of the internal form. The contract should contain the names of théii*Whai borrower and the lender, and those of the captain J^ c J on " and the vessel : it ought to mention the amount should lent, the rate of interest, the times and places of contam the risk, to state whether the money is lent on the b Pothier bottom or the cargo, jointly or separately, and all n \ 30 - in - other lawful stipulations which the parties may think sJct. i, § proper to make. (6) 4. Thus a promissory note for value received in mo- c Savary ney lent at gross adventure, without further expia- s^vaiin, nation, would not be called a bottomry bond, (c) art. 2. p. 4. According to the laws, 2. and 4. C. de naut. fœn. it is necessary that, by a special clause, the Isitne " lender should undertake to bear the. maritime risks, (d) state that With us, this agreement is presumed. It is suffici- gf iender ncurs the ent that you lend at maritime interest upon the vesm f c "r> sel or cargo, or both, to put the risks of the sea( upon the lender, (e) d Kuricke, jus hans. tit. 8. art. 1. p. 761. c Infra ch. 4. Sect. 5. 6. 7. * The French, or rather the Italian, word, fiarere signifies ofiinion. Savary has published a collection of fiarercs or opini- ons on subjects of commercial law, which is much esteemed. 48 An Essay on, Xc. §.2 Blank Promissory notes in blank are prohibited by the ^ouomry j^ict Q f 1715 . an( j yy^^ mucn greater reason should the law be so as to bottomry bills, on account of . f . h the privileges attached to this species of contract 6. Sect. 3. and to prevent abuses, (a) b infri Sometimes this contract is confounded and uni- sèct. 4. te d vy ith others, such as those of partnership and Supra ch. freisrht, examples of which may be seen hereaf- I could add several other points respecting the internal form of these contracts ; but it will be suf- ficient to refer to what I have said in my Treatise cch. 2, on Assurance, (c) where I have spoken of the inter- sect. 7. na i anc i external form of a policy. In the same place the reader will find a collection of rules on the interpretation of contracts. CHAPTER III. Of Maritime Interest. "The greatness of martime interest is founded up- on two considerations: the dangers of the sea, which render it proper that we should not incur such hazards without a prospect of uncommon ad- vantages; and, the facility, by which the borrower effects extensive speculations in consequence of the loan. On the other hand, common legal interest, not being supported by such reasons, is either en- tirely prohibited by the Legislator, or, which is a Mon - more reasonable, it is restricted by proper limits. "(a) Shi SECTION I. General Rules on the subject of maritime interest. " We cannot call that a contract of gross adven- %}• Ma- ture which does not contain a stipulation for the pay- rèTus'arç" ment of a maritime interest. That is, the borrow- essential er must be bound to return, not only the principal {J£ ° c l n _ but an additional sum or some other compensation tract. for the risk incurred. If a person lend a sum of money to a master of a vessel for a certain voyage, with an agreement that it is not to be returned in case of loss or the capture of the vessel by a vis major, and does not stipulate for a maritime proiit, it cannot be called a contract of gross adventure. But it is merely a contract of loan, mingled with b p thier a donation of the money lent in case of the loss or "• W- h. t. capture of the vessel, which donation would be- deTasSir. come valid upon the delivery of the money, provi- ch 3. ded the parties were able to contract, (b) | ec 3 t- 1L G 50 An Essay on In general, maritime interest is payable in mo- ney ; solet pretium hajas pericidi y ut plurimum, in a Locc. numerate pecunià consistera, (a) But, as Pothier lib. 2. cap. observes, we may stipulate for any other thing, (b) 6 - n ' 4 - éEmerig. des ass. ch. 3. Sect. 10. resuJy 16 If it De true tnen > tnat tne l en der may stipulate impiica- for any thing by way of interest, that is for any ad- tI0n ' vantage to himself, in case of the safe return of the vessel, this advantage, whatever it may be, should be such an implied interest as will give the legal character of gross adventure to the contract. For example, a captain, in time of war, being at Smyrna and in want of money to victual his ship, borrows of a French merchant 1000 piastres, Tur- kish money. Upon the safe arrival of his ship at Marseilles, he engages to return this money at the rate of a French crown for each piastre, the perils of the sea being at the risk of the lender. This is a real contract of gross adventure. The difference between the two coins constitutes the maritime premium and the price of the risk. This case is not within the 11th art. of the Declaration of 1779.* The captain, therefore, upon his safe arrival, should be obliged to pay the full sum of 3000 livres, which would, in fact, be paying a premium of about 20 per cent, on the sum borrowed. §. 3. The Straccha (c) maintains that no more than com- law, mon i e g a i interest can be recovered in cases where partes e the parties have neglected to make a stipulation have ne- f or tne payment of maritime interest. In this opi- fnsm a t0 nion I do not coincide. When a contract is fulfil- stipula- tion for interest, b Introd. de assecur. n. 24. * The article to which our author refers is as follows. Eve- ry article, the price of which shall be expressed in a policy of Insurance, in foreign or in other than the current money of this kingdom, and the value of which is fixed by our edicts, shall be estimated at the real value of such foreign or other money in livres tournois. We expressly prohibit any stipulation to the contrary under pain of its being declared void. 2 Emerig. 629, Maritime Loans. 51 led bona t fîdé, it is the province of equity to supply the omissions of ignorance or inadvertence. The lender incurs the perils of the sea and the borrower derives an advantage by employing his money in commerce. It becomes necessary, then that a ma- ritime interest should be paid, in order to place the parties upon an equal footing and to preserve the spirit of the contract. Thus, in the case stated, the maritime interest should be ascertained by the customary rate, at the time and in the place where the contract was made. Maritime interest is not due to a lender who has $■ 4 - If run no risk, even if it should so happen in consc- run ^ ' quence of the act of the borrower. risk. We have before seen (a) that the Italian lawyers, i 5 - u . in order to elude the chapter naviganti, have suppo- perish? sed that this contract is composed of those of part- nership, sale and insurance. But, if he who has ^o 1 ", lent his money at gross adventure, become the in- 1. surer, it is necessary that he should have a premi- um, for there can be no insurance where there is no premium, stipulated or implied. Casaregis (b) says idiîC- 65 . that the parties are presumed to have agreed that the premium due in such a case, should not be paid but by the merchandize at risk, and that if every thing be lost, the premium perishes also : quamo- brem seqïiitiir, quod amissa navi, illud quoque pre- mium amittatur. Such subtleties are unknown in France. The contract is a contract of maritime loan and nothing more. The lender cannot demand the principal, nor premium, nor maritime interest, if the thing upon which be lent his money, he entirely lost by the accidents of the sea* 52 An Essay on SECTION IL Rate of maritime interest. §. l. The In the first chapter, I quoted those texts of the rateofin - law and principles which prove that maritime inte- uniimi- rest is not subject to the limits of ordinary legal tcd - interest, but that it may be regulated by the de- gree of danger to which the lenier exposes or be- lieves he exposes his money. « ch. 33 Targa (a) says that if the rate stipulated be ex- n. 19. p- cessive, it is in the power of the court to lessen 149. iu bn.2.h. Pothier (b) observes that "although maritime profit, at however exorbitant a rate it may have been fixed, in the contract of gross adventure, is always considered in foro cxteriori as nothing more than the price of the maritime perils and is therefore law- ful : yet, if the intention of the parties was to com- prehend in that profit, besides the price of the risk, a compensation for the loan and the credit given by the lender, this profit would be, as to that compen- sation, unlawful and usurious in foro conscientiœ." But every thing which belongs to the forum con- scientiœ may be taken notice of in foro exteriori* when a contract contains clauses which are repug- nant to the nature of it or when a fraud is proved. Law is not a human institution; it is a science as immutable as its authour. The duty of judges con- sists in making it respected. Heme igitur video sapientissimorum fuisse sententiam, legem neque ho- minum ingeniis excogitatam, nee scitnm aliquod esse populorum, sed aternum quiddam, quod wiiversum mundum regeret, impera?idi y prohibendique sapientia * Or, in our own legal language, equity is a part of the law. Maritime Loam. 5 3 -Lex vera atque Princeps, apta adjubendum et « Cic. de. advetandum, ratio est recta summi jovis.^^ cap.4." Maritime interest or premium is generally stipu- § 2 Inte - lated at so much per cent, for the entire voyage or mumper by the month, &c.(b) cent * J x month or for the voyage, b Poth. n. 20. h. t. (infra, ch. 8.) The stipulated rate of interest is not affected by §. 3. the unexpected arrival of peace or war, unless the wj eth d er event was provided for in the contract. Such has J y e "* r or been held to be our law notwithstanding the opinion peace. Of Pothier, n. 22. h. t.(c) c Emerig. des. assur. ch. 3. Sect. 3. 4. 5. It is a general rule that the moment the risk com- § f • J h f o . . . . , j whole m- mences, the whole maritime premium becomes due, ter est is although the contemplated voyage is interrupted or due from . P i#» i . * y p,i .• » . j the mo- the risk cease before the expiration ol the stipulated ment the term. Pothier (d) says that " when the lender has "sk com- begun to incur the risks although he has not borne men ' them all the time that he contracted to bear them, d n. 40. the voyage having been shortened, the entire mari- h - *• time profit is not the less due to him, provided no e Eme rig. accident of vis major has occurred to occasion the des assur. loss of the goods upon which the loan was made. c Se ' CU 2. The ordinance having made this provision with re- and the gard to the premium on a policy of insurance, a £.%££* parity of reasoning requires a similar rule ns to the contract of gross adventure.(e) SECTION III. If the Vessel do not return ? If the money have been borrowed for the voyage out and home and the vessel do not return, it should seem that one third of the premium should be de- 5* An Essay on a Vaiin, ducted, according to the principle which has been "page adopted in matters of insurance .fa) 17. Poth. n. 41. (•) I should cheerfully submit to the authority of these writers, if their opinion did not appear to be at variance with the principles of our jurisprudence. 1. The general rule, they say, is, that as soon as the risk is commenced, the whole premium and the maritime interest becomes due. 2. According to * tit. du th e 9th Art.(6) " if the vessel, having been freighted out and home, be obliged to return in ballast, the whole freight is due to the master." In such cases it has pleased the Legislature to allow a return pre- mium of one third ; but this is stricti juris. Until there shall be a new law reducing the maritime in- terest and freight to two thirds where the vessel does not return, the borrowers, as well as freighters, must be governed by the general rule. rCasei. Among my notes I find two decisions fcj by our Bouïe° S admiralty f in which it was decided, that the entire v.' maritime interest is due though the vessel do not can- return. Valin, to whom I transmitted my notes, tcnuvnc * and on- has, through mistake denominated these decisions ver, 7th arrêts of the Parliament of Aix, and Pothier has fal- i726, S len into the same error. $ Case 2. Anow. v. Heirs of Galmi. 18 Aug. 1741. * Sed qu&re, where the premium is stipulated in the shape of interest by the month ; how can it be apportioned, or on what data can it be ascertained how Jong the voyage would have been, and how long the risk continued ? f The authour alludes to the admiralty court at Marseilles. \ Before the revolution an appeal lay from the Court of Ad- miralty at Marseilles, to the Parliament of Aix in Provence, which probably occasioned the error of Valin and Pothier. But it seems that the two decisions quoted in the text were acqui- esced in without any appeal. Maritime Loans D'J> In the year 1740, Pierre Evesque, master of the Case 3. -» ^ Francois, vessel called La Marie Fortunée, borrowed, 3000 B oniie livres upon gross adventure, from Francois Boulle. >- This sum was to be employed in merchandise, to Evesque and from the French West India Islands, at a mari- «ai time interest of twenty-two per cent, and the whole ' was to be paid one month after the safe arrival of the vessel at Marseilles. Jean Baptiste and Eustache Evesque, brothers of Pierre, the borrower, became jointly bound with him for the performance of the contract. The vessel arrived in safety at Guada- loupe, and the whole outward cargo was landed. On the 11th of September 1740, the vessel ran aground and was wrecked in a hurricane. The captain and his cargo were lost. On the 6th of July 1741, Francois Boulle filed a claim against the heirs of Pierre and his securities, praying that they might be condemned in solido [jointly and several- ly] to pay him the 3000 livres, together with the twenty-two per cent, and common legal interest upon the whole from the time it became due. A sentence was rendered for the whole sum on the 19th June 1742. On appeal, this sentence was con- firmed, 17th June 1743.* In the year 1746 Jean Baptiste Pons, a shipping Case 4. merchant, lent to Matthew David, captain of the i a a p n t ; ste Pink, la Vierge de Caderot, and to Francis Isnard, Pons the mate, 297 livres, upon the merchandize of the Matl ^ v said Pink for an outward voyage to the French David Islands and to return to some port in the kingdom, «ad Fran. r V* CIS Is- at a maritime premium ol 100 per cent. In ner na rd voyage to the islands, the vessel was captured by ir ' ; *- the English. Captain David ransomed her by- means of a bill of exchange of 1050 sequins of Venice, which he drew upon Veyrier of Marseilles, his owners, and left Francis Isnard, his mate, as a * Of course, by the Parliament of Aix. 56 An Essay on hostage. Veyrier asked Pons and the other persons interested, whether they would take the ransom upon their own account. They answered that they were bound to contribute to the ransom as soon as a liquidation should be made. The vessel arrived at Guadaloupe, where she was sold by the captain, who supposed he had become the owner, in conse- quence of the ransom. He embarked in another vessel and arrived at Bourdeaux. Pons filed a petition against David and Isnard jointly, for the 297 livres upon the return voyage, together with maritime exchange* of 100 per cent. and the common legal interest from the time of cap- tain David's return to France ; offering at the same time to contribute to the ransom at the rate of 28 liv. 18 s. per cent. The captain demanded two deduc- tions. 1. He wished the contribution to the ransom to be deducted with relation to the time of the ran- som itself, so that it should be subtracted from the principal, and thus the interest would be diminished likewise. It was decided that the ransom was an extra charge, which did not, ipso jure, diminish f °. f the capital, although, by the ordinance,(a) a lien is art! 21? given on the goods for the amount of contribution, * The French writers, when they speak of the consideration given for maritime loans, employ a variety of words in order to distinguish it according to the nature of the case. Thus, they call it interest when it is stipulated to be paid by the month or at other stated periods. It is a premium when a gross sum is to be paid at the end of a voyage, and here the risk is the principal object which they have in view. When that sum is a per cen- tage on the money lent, they denominate it exchange, consider- ing it in the light of money lent in one place to be returned in another, with a difference in amount between the sum borrowed and that which is paid, arising from the difference of time and place. When they intend to combine these various shades into one general denomination, they make use of the term maritime pro/it, to convey their meaning. As we shall occasionally use these expressions in the course of this translation, this explana- tion may not be entirely useless. Maritime Loans. 51 which takes place here by analogy on the money bor- rowed, yet it does not authorize a set-off until default of payment.* 2. The captain also prayed a deduc- tion of one third of the maritime interest, because the vessel had not returned. It was decided that this deduction takes place only in cases of insurance. On the 21st of January 1750, a sentence was ren- dered by which David and Isnard were condemned jointly to pay 297 livres, with maritime interest, at the rate of 100 per cent, and common legal interest from the time of the arrival of the captain at Bor- deaux, deducting 28 livres 18 s. per cent.\ with 5 per cent, interest from the date of the advance made by Veyrier, to effect the ransom. In the year 1746, Antoine Collury, of Port Ma- Case s hon, Minorca, lent to Balthazard Brusquo and Je- J, os £ rome Ferro, officers of a Felucca, 120 pieces of Mi- v . norca coin, for a voyage to and from Genoa, at the \f^' rate of 16 per cent, payable on the return of the Brusquo vessel at Mahon. The vessel arrived at Genoa, and -f e - where she landed her cargo and she did not return to Ferro, Minorca. The contract was assigned to Joseph 1750 * Coulet of Marseilles. A sentence was rendered, on the 13th March 1750, condemning Brusquo and Ferro to the payment of the 120 pieces, with 16 per cent, and also common legal interest from the termination of the risk. * And as payment cannot be demanded until the interest has accrued, the set-off or deduction must be made from that in the first instance. t The sentence does not express whether this proportional deduction was to be made from the principal of the money lent or from the gross amount of the principal and maritime interest. It seems that it was calculated on the principal only and deducted from the amount of the principal and interest, otherwise it would be at variance with the principle which appears to have been laid, down by the court. II 5 8 An Essay on Case 6 j n t ne y ear 1753 Jean-Baptiste Margerel, mate of r "v. m the Pink called la Vierge de la Garde commanded jem-Bap- by captain Clastrier, borrowed of Armelin, six Margerel dozen skins of Morocco leather, for which he exe- 1758. cuted a respondentia bond, binding himself to pay 270 livres and 100 per cent, free from average, on the safe return of the vessel to Marseilles. The vessel arrived in safety at Cayenne. MargerePs ad- venture produced 960 livres, which he received in paper money. The vessel was then declared not to be sea worthy. Margerel, not being able to find a vessel by which he could make a return shipment, was obliged to convert his money into a bill of ex- change upon the Royal Treasury, which was never paid. Armelin filed a petition against him, claiming the 270 livres, together with maritime and legal interest. Margerel replied that his contract was conditional and that he was only to be bound in case of the safe arrival of the vessel: that the vessel never did re- turn, having been declared unseaworthy: that he had not been able to find a vessel by which he could ship goods in return for Marseilles, and that, conse- quently, according to the 17th art. of the ordinance, hoc titulo, the contract was reduced to the value of the things saved, to wit, a draft on the Royal Trea- sury which he offered to deliver up. On the 27th of June 1760, a sentence was ren- dered in favour of Margerel, by which the plaintiff was non-suited. From this decision Armelin ap- pealed. He contended that the goods had been safely landed, before the vessel was condemned as not seaworthy and that as Margerel had disposed of them according to his own discretion at Cayenne, the contract was still in force. An arrêt passed, 30th June 1761, on the report of M. de Corriolis, in these terms: Maritime Loans, 59 " Our aforesaid court has annulled the appeal and judgment appealed from ; and proceeding to give a new judgment without regard to the offer which was made by Margerel upon the service of the sum- mons of the 20th of May 1760, and doing right on the petition of the said Armelin it has condemn- ed the said Margerel to render and restore to Arme- lin the produce of the sale of six dozen pieces of Black Morocco, which he received from Armelin and sold at Cayenne : and this he is to pay in the same paper money which he received in payment. For this reason Margerel shall exhibit to Armelin his journal and ledger, in order to show the nett profit of the sale : or he shall pay, if he shall prefer so to do, the 270 livres with maritime interest of 100 per cent, and common legal interest, in money : and he shall make his election within three days after notice of this arrêt, otherwise he shall be debarred from that privilege. This arrêt decides, 1. That notwithstanding the loss of the ship in the course of the voyage, the contract of gross adventure is in full existence as to effects landed. 2. That the borrower, who has not been able to send the returns by another vessel, is obliged to give an account of the proceeds of the outward shipment. 3. That if he do not render this account, he ought to pay the principle, toge- ther with maritime and common legal interest. In the year 1775, Pierre Pathier, mate of the Case 7. vessel called "la Marie Elizabeth" received, by j^ e way of maritime loan on goods, the sum of 600 piasse livres from Jean-Pierre Piasse. on a voyage to the v • 1 îcrr French west Inches and thence back to Marseilles, Rath îerre ier at the rate of 15 per centum. Ginezij joined in the and En- bond, agreeing to be bound by the contract of Ra- ^ lne ezy thier. The vessel arrived at Guadaloupe and dis- 1779. charged her cargo. On the 6, September 1776, she was lost in a hurricane. 60 An Essay on M. Plasse commenced an action against the deb- tor and his security to enforce the payment of the 600 livres, together with maritime (and common le- gal interest. In the month of January 1779 a sen- tence was rendered in his favour. From this sen- tence, the défendent, Ginezy, prayed an appeal. But after some altercation, he submitted to it and paid the judgment and costs, because the goods of the borrower had been shipped in another vessel and were amply sufficient to cover all expences. It results from this series of decisions among us, that if the goods, upon which the loan was made, be safely landed, no deduction from the maritime rate, is to be made, although the vessel do not re- turn or be lost on her voyage. If the borrower squander the goods or their proceeds, or dispose of them according to his own pleasure, instead of shipping them in another vessel, he is bound to re- P a y tne sum borrowed, with the maritime interest Sect! i*. entire. Vide infra (a) where the question concer- §• *• ning maritime interest is treated de novo according to the text of the 13, article /20c titulo* SECTION IV. Common legal interest. §.l.When Upon the termination of the maritime risks, if the mari- tne Dorr0 \ver delay the fulfilment of his contract, time risk . , J . . , ceases, the charge of common legal interest attaches ipso th.; com- jure, although it may not be judiciously deman- interesf a ded.* Discusso periculo, majus légitima usurâ non commen- ces. * If the risk be not commenced the contract will become a simple loan ; even though the borrower covenant to perform the voyage. Marsh. 647. I. Vern. 263. If the lender has insu- red his principal, Marshall thinks he should receive one half Maritime Loans. 61 debebitur. (a) Exinde, communis prœstatur usura, a L - 4 - ff « says the glossary upon L. 1. C. eod. (b) fan.""' b Styp- part. 4. cap. 2- n. 197. p. 392. Locc. lib. 2. c. 6. n. 11. p. 994. Targa, cap. 33. n 2. Wolf, §. 680. Such is our law, as it may be collected from the c ^f^ decissions cited in the preceeding section, saving §. 2. the modifications of which I shall treat hereafter.(c) Will the maritime interest carry common legal §• 2. May interest from the moment it becomes due? will it chï-ge^f carry interest from the date of the judgment? legal inte- the maritime interest ? rest on M. Pothier, in his remarks on n. 51. h. t. after having said that the principal of money lent at gross adventure carries common legal interest only from the date of the judgment, in which he directly con- tradicts the provisions of the laws, adds that " the same rule does not extend to maritime interest; this profit being an accessory which is given by way of interest on the sum lent; nautica usura^ nauticum foznus. You cannot demand interest upon it. It would be interest upon interest, a compound inte- rest which the laws prohibit: access io accessionis non ■est." Decormis fdj after having said that "when the d vol. 2. peril ceases and the vessel has returned, maritime P* 81 °- interest ceases, ipso facto and legal interest com- mences," in which he speaks the language of the Jier cent, upon the maritime interest and all costs of insu- rance, together with his principal. Of the same opinion is Valin, on art. 15. h. t. and Emerigon agrees with them provi- ded the non-performance of the voyage happen through the fault of the borrower, vid infra. The allowance of interest, as stated in the text, is an excep- t'on from the general law of France, by which interest does not commence to run except from the time of action brought, which alone constitutes a legal demand; or, as in some of the provinces, from the date of the judgment, unless the contrary be stipulated in the contract of the parties. Ferriere, in verb. interest. 62 An Essay on law, adds, that " it is by relation only to that which is due upon the principal ; and you cannot, by ad- ding it to and merging it in the profits obtain inte- rest upon the total sum."* m Code Julian (a J says, ex usu, debentur usura à die fi- dejcfis.'n niti periculi sine ulld petitione ; quia piotus ex socie- tate, quàm ex mutuo debentur, ratione periculi quod creditor in se suscepit, Sed an usurarum qua pro periculo debentur, alia usura debeantur? dubito quod sic: non tarn usura, quàm pretium periculi dicuntur. Notwithstanding the doubt which Julian enter- tains and the contrary opinion of Decormis, we have seen in the preceeding section that our decisions add common legal to the maritime interest, not on- ly from the time of the demand, but from the time that the latter became due. The point is not now disputed : but I do not know whether it be not dis- putable. In the first place, it is certain that the contract of maritime loan is not a partnership as I have before b eii. l. proved; (b) and there is no law which provides that Sect. 4. maritime interest shall, ipso jure, carry common legal interest. Upon what authority, then, do our deci- sions rest? They say that maritime interest is the price of peril, periculi pretium : that it is an increase of the obligation, according to the words of the c l. 5. §. Law: (c) that it is an addition to the capital, accor- l'Jf n **„ m ding to the language of Boumoulin: that this inte- rest being added to the principal, becomes identi- fied with it and the two sums make one entire whole which ought to carry interest. To such sophistry are they reduced; and I cannot suppress my emoti- * Our law is different. When a verdict is rendered for the principal and interest and judgment is entered for the aggregate bum, the whole bears interest from the date of the judgment. Maritime Loans. 65 on when I behold them, in this manner, overwhelm an unfortunate debtor, who returns to his country to be imprisoned by his fellow citizens, after he has escaped from the hands of pirates and survived the perils of the sea Ï* If, in contracts which flow from commerce the law has paid more regard to publick convenience than to personal liberty ;f we ought at least not to be more rigorous than it is, and enlarge by a new addition that which is, in truth, but an addition it- self. It would not be surprizing if this point in our jurisprudence should be one day overruled. It is supported by mere apices juris. * The substance of the argument is this. The maritime in- terest is» a reward for the risk which I have incurred. When the peril ceases I am entitled to this reward immediately. If it be withheld I am entitled a compensation for the use of my pro- perty, from which I might have derived an advantage, by len- ding it again, if I had received it when it became due. I see no reason for the pathetick lamentation which the authour makes. If the allowance here complained of were not made, lenders would calculate not only upon the perils of the sea but upon the danger of delay upon land, and increase the maritime inte- rest accordingly. The borrower might thus be injured by the very rule which was intended for his benefit. + This alludes to imprisonment of the body; which, in France, is allowed only in cases of debts arising from commer- cial transactions. CHAPTER IV. Every person who has an interest in a ship or car- go, may borrow money at gross adventure as far as his interest is put at hazard, and every person who is capable of contracting may make such loans, (a) Masters of vessels may sometimes bor- aEmeng. row U p on maritime loan on account of their owners, ch. 4. whether it be in the port where the vessel is fitted out or in the course of the voyage. This gives rise to the actio exercitoria; of which I shall treat in this chapter. SECTION I. General observations on the action against the owner for the acts of the master. The genius of the Romans, their thirst for glory, their military education, the form of their govern- ment, every thing, in short, in their character, was unpropitious to the pursuits of commerce. When they did engage in it, it was under the name or through the medium of their slaves or freedmen. The agent in négociations on shore was called itisti- tor> (factor) and he who conducted their maritime speculations was denominated master and sometimes merchant : Naviget, et mediis hyemct mercator in undis. Hor. lib. 1. Ep. 16. v. 71. §• 1- Of The owner of a ship, or he who hired her for rer°(Ex- tnp P ur P ose of navigating her on his own account ercitor.) was called the exercitor, because he exercised or Maritime Loans. 65 carried on this sort of commerce. Exercitorem eum dicimus, ad quern obventiones et reditus omnes "1"$^ perveniunt : sive is dominus navis sit, sive à domino exercit. navem per aversionem conduxit, vet ad tempus, vel act10 ' in perpetuum. (a) It results from the laws of the same title, that they applied the term exercitor indiscriminately to slaves who represented their masters in the property of the ship and to those who acted for their own e'^'/j account, as if they were the owners. This arrange- ad Ani- ment was undoubtedly adopted by Lentulus, who cum had promised a place to Cicero in one of his vessels. , « Lentulus navis suas pouicetur. \b) By these artifi- rig. des ces the Patricians of Rome eluded the law which assur - ch * prohibited them from engaging in merchandize on P ". 102.' their own account, (c) He, to whom the vessel and cargo beyond sea *• 2. of was entrusted, was called the master of the ship; th ter. magistrum navis accipere debemus, cui totius navis cura mandata est. (d) In the same manner as they d . L ft : *; f carried on the land commerce by means of an agent, exercit. called Institor, they placed him on board the ship to acu manage their speculations there. Datur institoria, \\ n c™dT ex negotiatione terrestri; sic exercitoria, de tantàm Inst - ec navali. (e) ac ^ rc " Magistri imponuntur locandis navibus, vel ad mer- fh. 1. Ç, ces., vel vectoribus couducendis armamcntisve emen- 3 " ft " . de dis; set etiam si mercibus emendis vel vendendis fuerit act. vid. prœpositus, etiam hoc nomine obligat exercitor em.ff) ^V~^ x 29. Pauli at Edict, and on the Code, de institoria. '. j-,' During the voyage, this agent represented the^Totn owner and had, in general, the same powers, in eve- Jf 56 '. 1, fi t * ry thing that concerned the vessel, fgj act. It was of little consequence whether this agency was committed to a slave or a freedman ; to a per T 66 An Essay on son of full age or to a minor, under twenty five years of age. Cujus antem conditionis sit, magister ipse, nihil interest, utrum liber an servus; et utrum a. L.'i.§.' exercitoris, an alienus; sed nee, cujus status sit, 4. ff. eod. intererit: sibi imputaturo, qui eiun praposuit. (a) When they projected an important voyage, they sometimes appointed many masters, plures magis- tros, in the same ship, that they might be a check ij.ii eod on eacn other, or tnat eacn might perform the task which was assigned to him. (b) The pilot, navicularius, was the person to whom the direction of the voyage and the conducting of the vessel safely into port, was entrusted. This appears from the L. 13. §.3. ff. locati, and the laws of the code under the title de naufragiis. With us these functions are separated when the owners place a supercargo on board, with power to demand freight, make all commercial operations and pay the necessary expenses. The captain is then, saving the rights of third persons, simply a pilot and the supercargo is the master. c l. is. Anions; the Romans these trusts were sometimes locati. l. united, as it appears from their laws, (c) This is l- §. 2. the reason why our writers sometimes compare our naûtœ. masters or captains of vessels to the navicularius or d Caivi- pilot of the Romans, (d) and sometimes they assi- verbô"™ niilate the magister or master with a captain or mas- vicuia'ri- ter of a ship in the modern acceptation of the 'b d Word, (e) The latter idea prevailed and was adop- ad l. i. 'ted by the Ordinance. ff. nautae. pa. 146. /°J ** Faber (f) and Stypmannus (g) appear to be sur- ff.deexer- prized that several masters of vessels should be pla- cit.aci. cec ] on board the same ship. Male cnim regitur îapA5.v..n av iS) ut et respublica, sinon ab uno regatur f Their 128. p. 543. Maritime Loans. 67 surprize would have been well founded if the mere navigation of the ship had been entrusted to many : but the laws (a) speak of many factors and super- « *» l. ff. cargoes with the title of masters, not for the go- de exer- vernment of the ship, but to make bargains, de- cit - act - mand freight and do other things relating to a ma- ritime commerce. Si plures sint magistri, non di- visis officiis, quodcumque cum uno gestum erit, ob- ligabit exercitorem: si divisis, ut alter loca?ido, al- ter exigendo, pro eu jusque officio obligabitur exer- citor. Sed et si sic prœposuity ut plerumque fa- ciunff ne alter sine altero quid geraty qui contraxit cum uno y sibi imputabit. SECTION II. It is a general rule, that the owner is bound by the acts of the master. Gothofredus* thinks that the Prœtor's Edict, by which the actio exercitoria was established! was b On the nearly in these words: (b) Quod cum magistro navis L - *• ff - /• • • , . ° de exer- gestum esse awetur, in exercitorem qui eum prcepo- c , t , act. suit y in solidum judicium dabo. The utility of this edict is evident: because, ex necessitate, we are obliged to contract with masters, of whose character or situation we are ignorant; and therefore, it is but equitable that the owner should be bound by the acts of the person whom he has appointed, in the same manner as a shop-kee- per must abide by the acts of his clerk. * Godefroy is called Gothofredus by tht English civilians and is best known by that name. + The forms of action at Rome were established by Praeto- rian edxts which had the force of laws. £8 An Essay on It may be urged as a further reason that he who contracts with a Clerk or Agent on shore has am- ple means of obtaining information about him ; but with respect to a master of a vessel, the time, place and other circumstances, often prevent us from de- aL.ij. liberating. In navis majistro non ità; nam inter- ciVact dwn locus, tempus non patitur plenius deliberandi concilium, (a) This, therefore is the reason why the owner is bound by the acts of the master, because those who contract bona Jidê with the latter are not to be de- ceived. Omnia facta magistri debet prœstare gui 20 L ff 1 e od 6um ptapo&uit; alinquio contrahentes deciperen- ' tur. (b) Another motive of this Edict is that navigation is of essential consequence to the Republick: quia ad summam Rempublicam navium exercitio perti- 20.ff.eod.™tf. (c) of a sub- The owners are responsible, not merely for the stimted acts f t h e Captain appointed by themselves, but also for those of any one, who, during the voyage, may be substituted in his place, although a substi- tution has been prohibited. A third person who has acted bona Jidê ought not to suffer ; the owners in that case, are left to their recourse against whom it may concern. Magistrum accipimus, non solum quern exercitor prœposuit, sed et eum quern magis- ter. Quid ta?nen, si sic magistrum prceposuit, ne alium ei liceret prœponere? An adhuc Juliani sen- tentiam admittimus, videndum est: Jinge enim et ottomr y> made by the captain in the place where not con- the owner resides, without his consent, are not sent, are b nKUn g upon him, The lender is not entitled to bound by hypothecation or privilege, but upon the mas- foans ters snare > w hich alone is liable, (d) d Pot'hier S' s ' di»c 71. n. 24.27. Strypmannus, purl. 4 tit. 5. n. 95. pag. 416- n 55 h t Vinnius. ad L. 1. §. 7. ff. de exercit. act. pag. 94. Kuricke, tit. 6. art. 1. Casai-e- P a S' ^ 64v Loccenius 1 ' 1) - 2. cap. 6. n. 8. pag. 993. Maritime Loans. 71 Nevertheless, if the lender prove that the money Action de in rem was usefully employed about the vessel and for the ver so. benefit of the owners, he may have the action de in „. . . ', -I - , , a Vinnius rem verso, against tnem. faj a d. a. le- cus, de navib, not. 17. Casaregis disc. 71. n. 10. (Vid. Boniface, torn, gem pag. 4. pag. 501. 98. Roc- "The master is bound to follow the advice of the §-2. Ad- owners of the vessel, when he takes freight, either shipped in whole or in part, in the place of their residence." b y the . But a third person who contracts, bonâfidê, on this w i£out subject is not bound to enquire, whether the terms the know- be conformable to the orders of the owners.* It t e he s ^ n . suffices that the charter party has been reduced to ers. writing and delivered by the merchant to the cap- tit A ,J' s tain, [b) It is sufficient that the bill of lading be sign- Chartes- ed by the master, or the clerk of the vessel, in or- ^^\. der to authorize the presumption that every thing tit. des has been done with the privity of the owners, {c) connois- semens. "The master shall be responsible for all the mer- d Art. 9. chandize laden on board his vessel and he shall ren- ^ 4 ç pledging the proportion of the recusant, he might 3. ff. com- commence a suit against him, to compel him to ™ n ; 3 l " contribute or abandon his interest, and then he tost, de would be directed by the rules of the common °^ g q U3si law. (b) ex contr. nius, Despeisses torn. 1. p. 125. n. 7. 'b'1- Vin- Nothing prevents a part owner from disposing of §. s.whe- his share. But can he demand a publick sale of ^Laln the entire vessel? can demand a publick sale. Art. 5. Tit. des Propriétaires says, that " the o- Opinion pinion of the majority shall be followed as to every of l . he . thing that regards the common interest of the own- ers; and they shall be deemed to be the majority who hold the largest share of the vessel." The majority has no right to sell the vessel. They have only a right to prescribe, for the vessel 76 An Essai/ on and the voyage whatsoever shall appear to them pro- per, although they may be opposed by those part owners who compose the minority. But the Ordi- nance permits a publick sale, if the owners be equal- ly divided, respecting the choice of a captain, the destination of the ship or any other important ob- ject. "No one shall compel his partner to dispose of a Art. 6. a vessel held in common between them, unless Proprié, they are equally divided in opinion respecting the taires. propriety of undertaking a voyage." (a J This question came before our Admiralty on the 20th July 1751. The owners of fifteen parts de- manded a publick sale of the entire vessel. They said that if an equal division of opinion would entitle them to demand a publick sale, with much more rea- son would the concurrence of fifteen shares give them the same right. But it was answered, that, as a general rule, no one could be compelled to sell an in- terest which he had in an undivided thing — that this rule ceased as to a ship held in common by many only when there was an equal division of opinion, qute mu~ tuo concur su se se impediunt : that as the ship could neither be divided, (for, qui navem dividet, perdit) nor sail at the same time to two opposite ports, a pub- lick sale became absolutely necessary; but that when there was not an equal division of opinion, the greater number had a right to direct the voy- age as they pleased, and therefore the applicants had no right to compel a sale: and thus this ques- tion was decided. /■L. 12. §. In this case, if the owners of the fifteen shares l. ff.de h a d refused to contribute to the common expenses, USllf. tt . . -11 1 T • quemad. the others might have borrowed money on nian- r On the time loan, on their account: for a vessel is made to nanoê*oî be navigated: navis cnim ad hoc paratur, ut ?wvi- theHanse get, (b) Cleirac (c) says, that "if there be two a.ru59. owners of a vessel and one would send her to sea pag. 2ii. and the other opposes him, the former should pre- Maritime Loans. 77 vail", but under such restrictions as the circum- a vid - t. . ! , , , \ Straccha, stances ot time and place may render necessary. [a ) d e navi . 2. n. 6. pag. 478. See the cases cited in Peters Adm. Rep. 288. bus, part. SECTION V. Of a Captain, who borrows money on bot- tomry during the voyage. In the title of the Digests de exercit. act. there is §• *• Text o of the not a word about money borrowed to be employ- i a ws. ed in maritime speculations, \_pecunia trajectitia~\ It is said, in general terms, that the owners are re- sponsible for all the acts of the master, respecting the ship and the voyage. This rule has been some- what modified by subsequent laws. The Consolato del Mare, (b) permits the captain Jo^ ia JJj 5 . to borrow money during the voyage for the neces- 236. sities of the ship. " If after his departure, the master stand in need qJ^ÔV^ of money to meet the expenses of the ship, he may art. l. ' pledge any part of the tackle, with the advice of the mariners." " If the vessel, in the course of her voyage, en- Art - 22, ter a port and remain there so long that the mo- ney is all expended, the master should immediate- ly send to his own country for more or sell a part wisbuy of his cargo." If the master want victuals he may art - 1S - pledge his cable and cordage. " If the master, being upon his voyage, want money, he ought to send home for it, — In case ^ art * of great necessity he may sell a part of his car- go." 78 An Essay on Art. 45. << jf tne mas ter be obliged to sell part of his mer- chandize or to borrow money on bottomry, he ought to pay it at the port where he shall arrive &c." Lawflf " ^ ne master being in a strange country, if there the is a necessity for it and he cannot do better, may Towns Dorrow money on bottomry and the owners shall art. 60! be answerable for it." The New $[ naticlcrus in ceteris locis, ubi suorem exerci- the torern compos non est, probabile damnum in navi, Hanse au t instruments navis perceperil, ac isthic loci t\x7™ nullum cambium ad exercitores transmittendum ob- *"• 2» tinere queat, aut etiam in nam nulla bona habeat, qiicc meliori cum commodo exercitorum, quam pecu- niu sub fcenora nautico accepta, vender e possit; turn hoc in casu necessitatis, pro servanda navi et bonis, habeat potestatem, nomine universorum ex- ercitorum, tantum pecuniae sub fœnore nautico ac- cipiendi, quantum ad reparationem damni et alios similes casus necessitatis opus habet; et quidquid ta liter fcenori accepit, universi exercitoris solvere tenebuntur. \ Le Gui- "After having weathered a tempest and suffered don de la injury, the captain, in order to repair the ship, may 5. an. 35. borrow money on bottomry." ch. is. u T^g ca ptain may bind the vessel alter she has sailed.— The reason of this is that the owners have placed confidence in his discretion and ability; by a lhiq. censtituting him master, they make him possessor cieirac p. anc i g 0vern0 r of the ship, and all that is incidental to it." (a) Ordi- " The master of a ship shall not borrow money nance of on bottomry, unless he is in a strange country and Antwerp. „ «► . .. ^ art. 19. in a casa ol necessity." Maritime Loans. 19 " In the course of the voyage, the captain may ° rdi - borrow money upon the body and keel of the ship i68i. an. for her repairs, victuals and other necessities. He 19 - *}*• du may even pledge the tackle or sell his cargo on con- ta ^è. dition of accounting for it at the rate at which the rest may be sold. All this must be done with the advice of his mates and pilots, who shall state in the log book the necessity of the loan, and the sale and the manner in which the money was expended." The Ordinance of Antwerp, (a) directs that the §. 2. captain shall bring a certificate of the necessity Ought which constrained him to do it. But there is no ex- ta in to be planation of this law nor does it say by whom the au * h °"* certificate shall be given. the Magi. the place to take up money on bottomry? a Art. 19. strate of The Maritime Ordinance, (b) directs that the b Art - 19 « borrowing should be made with the advice of the ta i ne . mate and pilot, who should certify the necessity of it, on the log book. But the Ordinance does not create any penalty for a neglect of this formality. M. Valin observes, upon this article, that in such a case, the captains generally draw up a procès ver- bal, which is signed by their officers, attesting the necessity of borrowing the money. Bnt, as the on- ly effect of these formalities is to justify the captain as against the owners ; whether they be observed or neglected, the rights of third persons are not im- paired; for the mere engagement of the captains gives them a legal demand upon the owners for their principal and maritime interest. The Declaration of the 21 Oct. 1727, (c) directs c Art. :c. that " the captains, masters or patrons* and others * In France, those who command vessels of war or mer- chant ships on long voyages are called captains; masters or pa- trons are those who com and vessels which are employed in the coasting trade. I presume they are synonimous with our ski/i- fiera or bay-crqft-meri. 80 An Essay on who borrow money at bottomry in foreign countries as well for the purchase and building of vessels in those countries as for the victualling wages and voy- age, cannot bind themselves but to a Frenchman, born in our kingdom: arid the contract shall be re- gistered in the chancery of the French consulate. We declare all contracts of this nature, executed before notaries in foreign countries to be null and void and direct our courts and judges to pay no re- gard to them." But this Declaration only relates to vessels which trade to the coast of Italy, Spain, Barbary and the ports in the Levant. In every other voyage, the contracts of captains and lenders are to be observed with good faith. Nevertheless, it is very much the custom of cap- tains, in case of any extraordinary expense, whe- ther it be for the ship or for the cargo, to go before a Judge, who, upon being satisfied of the truth of their allegations and having heard the advocate for the King, permits them to borrow money at bot- tomry, for the account and risk of the concerned. This is a wise precaution. I have known many examples of it. ^.l.Ought We, every day, admit contracts made under pubiick* P rrvatc signature by captains and patrons in the contract? course of a voyage. I am convinced that they are liable to be abused: an unfaithful captain may easi- ly fabricate a contract of bottomry or receive those which were made during a preceeding voyage. I will observe once more, that a publick contract, the date of which is unchangeable, was formerly a a t0n 522 re( I un ' eQl - Duperier, fa) recites an Arrêt of the Parliment of Aix, in these words: "The Patron of a ship does not bind the owners by contracts of loan under private signature. Thus decided by an Maritime Loans. SI Arrêt at the sitting of the 2nd November 1632, in favour of the Mess. Marin." But, since the ordinance of 1681, the contract of maritime loan, made under private signature, has had the same effect, even against third persons, as a publick contract. It was thus adjudged by an a infra arrêt of the 26th June 1767, in favour of Anselmo ch#6 - sect. 2. Rousseau, of which I shall give a report here- §2. after, (a) It is necessary that the loan should be for the ne- § 4 - If is cessities of the ship;f7>y for refitting, victualling S the* and other necessities of the ship;(e) in rtfectionem Xo * n navis(d) ad armandum, instruendamve navem, vell ™ . nan tas exhibcndos.[e) It is necessary that the cap- mine on tain borrowed, quasi in navem impensurus, and onhehe- that the lender should believe that his money is to cessitias be employed in that manner:* sciat vt in hoc se°J^* credtre, cui rei magister propositus est.(f) b art. 16. tit. de la saisie, c art. 19. tit. du Capitaine. dL. 7. ff. de exercit act. tL.1 §. 7. ff. eod. / L. 7, ff. eod. Whence it follows that if the instrument does s vin - not state it to be for the necessities of the ship, the L?Ldus lender has neither an action direct against the own- — Titms ers nor a lien upon the ship, even although his ^ e ff rc f t e money may have been employed in a manner bene- act. page ficial to the voyage. Si magister navis pecuniam^^' mutuatus, non cavit se recipere, in refectioîiem^es^ms navis, non tenetur hac actione exercifor, etiamsï l ™^' 8 pecunia in ref actionem navis impensa sit.(g) a d Afri- canum. In fact, when I do not take the precaution of de- claring in the contract, that the money is lent tOAL5. §. relieve the necessities of the ship, I do not lend to 15 - ft " dc the ship itself. I cannot say in the words of \xwfli) ac t. Bt ' * Moiloy b. ii. c. I 1. S. 1 !. 3. Mod. 2W. Hob. 12. Salk. 35.. 1 . Mag. 27. Bee's Adm. Kep. 120. 131. 339. And the lender should inform himself whether such necessity exists. Bee J 57, 350. 3. 1. Magens 329. L 8l ? An Essay on, that I have taken the thing as my security, in pre- ference to the person: merci magis quàm ipsi ? d " 5 credidi. The captain becomes my debtor, directly $. is. and solely : in creditum ei abii.(a) It is true that by making use of the rights of the captain I can sue the owners and claim a lien on the vessel.* But if it appear that there is nothing due from them to him, I cannot maintain an action a- gainst them or the vessel. § 5. Can According to some authors, the captain may bor- the can- • tain bor- row money at bottomry to complete his cargo, and row at thus avoid the necessity of returning empty, (bj to com- 7 ' But *f tne speculation be not successful, he runs piete his the risk whether the owners will allow it in his ac- ca ' s ° ? count, and I advise every captain not to exceed his gis^di^c. instructions. Diligenter fines mandati cnstodiendi 69. n. 15. sunt. Nam qui excessif, aliud quid facer e vide- cl. 5. ff. tur.(c) Si is qui mandatum suscepit, egressus mandati. j uer {i mandatum, ipsi quidem mandati judicium non compttit : at ei qui mandaverit, adversus eum JLi4.fr. competit.(d) Savery says that, he who exceeds his orders, does it at his own risk. SECTION VI. Various questions relating to the points which have been treated in the three prccceding sections. §ï.What According to the laws of the Oleron(c) and of stood'by Wisbury,(aj die captain, cannot, in the course of the his voyage, borrow money at bottomry, but in case words, residence of the owners, c art. 22. J art. 35. it is not possible to send home speedily for it. * Id order to understand this passage, it is necessary to know that the lender may sue the captain by attachment, and by this process become entitled to his rights and actons against the owners a» well as others. In this manner he becomes possessed of the captain's lien, if he have any. Maritime Loans. 83 a tit. t art. 2. By the late ordinance of the Hanse Towns(«) atit the captain, being in a strange place could not re ceive the necessary succour from his owners: in cœteris locis. ubi sitoruni exercitorum compos non est. Our ordinance is limited to the prohibition of the captain from borrowing, in the place where the owners reside, without their consent : and it recog- nizes loans made bona fide, where the owners do not reside even without their consent. I believe that the word residence ought to be Resi- understood according to the common law. A ves- t h" same sel was at Antibes. The owners, living in neigh county. bouring villages had paid their proportions. The master, before he set sail, borrowed money at bot- tomry. The vessel arrived at Marseilles, where she was seized at the instance of the lenders. Be- ing consulted by them, I answered that a person is held to be present, where he is domiciliated in the same bailiwick; (which is the opinion of Brodeau, of Duplessis and Fevriere on the custom of Paris, art 116.) and consequently the totality of the ves- sel was not affected by the loan. But it is a different thing if the loan has been Resi- made in another district, no matter how near it is. ^"' the A vessel sailed from Toulon and went to Marseilles same to take in a cargo. She belonged to three owners; ' of whom two were at Marseilles and the third lived at Toulon. The captain borrowed money at bot- tomry from Francis Boule, and the two owners at Marseilles consented to it. In the course of her voyage, the vessel was declared to be not sea wor- thy. The nett sales of the rigging, amounting to 360 dollars, was deposited in the consulate of France, at Tripoli. Boule claimed this sum, in payment of his contract. The owner who resided at Toulon countv 84 An Essay on objected as to his proportion, because in the com- mencement he had furnished his proportion of the expences. Sentence was rendered August 9, 1748, a infra j n favour of Boule, in conformity to the art. 8. h. sèct. 6 2. *• I sna ^ report hereafter(â) an arrêt, which dé- fi. 2. cides the question in the same manner. §.2. May According to the ancient laws, the captain could tain Tor- not borrow money at bottomry, on account of the row mo- owners, but when on his voyage, (b) when he has porï" ie hoisted sail,(c) or when he is in a strange country.(d) where the xjp 0n ^jg point, our ordinance has left a cloud ««"a out, which is not very clear. In art 17,(e) it is said that without the captain shall not borrow money on bottomry, lent C of " m t ac place where the owners reside, without their the own- consent. The same rule is repeated in the 8th ar- Suated "" ticle,(/) where it is said, that those who lend else- money at bottomry to the captain, in the place where where? t j j( , owners res j ( i Cy without their consent, shall have *J|"V vsof no hypothecation or lien but on the master's propor- art! S 25 X tion. Whence it follows, that the captain has an c Guidon indefinite power to borrow money at bottomry in ch' a i8 ler * every place where the owners do not reside, even an. 4. though the voyage has not been commenced. But d First the 19th art. fgj in denying to the master the power onhe 11 " °f borrowing at bottomry, without the consent of Hanse the owners, seems to require that it should be in J r j W 6 Q S ' the course of the voyage. &c. etit. du Capitaine, f tit. des Contrats à la grosse, g tit. du Capi- taine. In order that the whole of the vessel should be bound lor the payment of money borrowed by the captain, is it recessary that it should not only be borrowed in the course of the voyage, but at a place where the owners do not reside? Or, is it sufficient that it be not at the place of residence, although at the place where the vessel is fitted out? * V g-J " It is only during the voyage,' '(hj or when a ' vessel is equipped at a place where the owners are Maritime Loans. 85 not domiciliated (or their correspondents) that a mas- ter is allowed to pledge the whole of the vessel and the freight by borrowing at bottomry, for refitting and victualling. He then binds all the owners by his act, with a saving of their remedy against him, if he make an improper use of the money." I adopt this commentary as the most consonant with the Ordinance and the least subject to litigati- on. The absent owners are supposed to have gi- ven to the captain a power to equip the vessel where she lies and to make such contracts on the subject as are necessary. M. Valin, in the place above cited and also on $. 3. if the 9th art. h. t. says, that the Captain is permit- ^° wn ' ted to pledge the whole of the ship when he is in a their Cor- place where the owners have neither a domicil nor j" p t ° n b *j. correspondents. From which it follows that if there on the be correspondents at the port, the Captain should s P ot? do nothing without their consent. But if the third person who has furnished an un- faithful captain with provisions, was ignorant that the owners have correspondents on the spot, he has * J ^ ^ $' an action against the whole of the vessel, because inst! act. he has acted bond Jïdé. The Captain had a legal £ 'j 12 ^' authority. It is necessary then that this third per- §^3. L. son should have notice that this legal authority has 51 - s . ^ e been revoked, or at least that the knowledge of it l. n. ff. was publick in the place. As to the rest, the dini- ^fa- culties which may arise from the subject, ought to j e man-*' be decided by the rules of the common law.* (a) dat0 « See the next Section. * When the French writers use this term, they are to be understood as alludng to the civil /aw, which is the common law of France. What changes may have been made in it, by the Napoleon Code, must be learned by a reference to that work, which has but recent! v he?n promuleated 86' An Essay on SECTION VII Of an unfaithful Captain, §. l. The t he law does not give, against the owners, an arebound indefinite right of action on account of the acts of by those t ne Captain, whatever they may be : non autem ex of "he" } ' omni causa prcetor dat in exercitorem, actionem; Captain The right is restricted to those acts which are ne- iate to " cessary for the purposes of navigation and which the voy- result from his situation or character of master : age * sed ejus rei nomine, cujus ibi propositus fuerit.* So that if the Captain has borrowed money, with- out stating in the contract, that is for the necessi- ties of the ship, or if he has done any act which does not flow from his situation as master, the own- ers are not bound. 2uid, si mutuant pccuniam sumpserit? An ejus rei nomine videatur gestion? aL.i. §. Et p e gasus existimat si ad usum ejus rei, in qua exercit 6 propositus est, fuerit mutuatus, dandam actio- » ct - nem j quam sentent iam puto veram.faj c. 2. Pe- If tne nio«ey which was borrowed for the pur- naities poses of commerce, be squandered by the Captain, IT™- ne deserves to be severely punished. faithful Captain. Onii- " The Captain who has borrowed money without i68i e tu necessity at bottomry for the victualling or refitting du capi-* of the ship, sold the cargo, pledged the tackle or ÏÏt% made false entries in his journal of charges and ex- pences, shall be bound in his proper person, decla- red unworthy of the privelege of a burgher and also be banished from the port where he common- ly resides." * Abbott, 77. Maritime Loans 87 The 29th Article prohibits Captains from bor- rowing " for the voyage, more money than shall be necessary for their lading, under penalty of being deprived of their burgher-ship and forfeiting their share of the profits." Si prater hœc, nauclerus in aliis peregrinis locis J us Hali - absque necessitate fraudulento modo pecuniam sub 6 ar ' tt 3 ' # fœnore nautico mutub acceperit, solus damnum re- a Styp- fundere, et pro qualitate rei capitaliter puniri de- j^""]^' bet. fa) cap. 5. n. • i • c: n -,ec !34. pag. ricke, tit. 6 art. o. pag. 766. ^g j^°_ But the infidelity of the captain shall not preju- §. s. The dice third persons who have made contracts with J,f fi ?he ty him bona fide. These third persons are not the Captain less entitled to an action against the owners and a who ] \ as o squande- lien on the ship, because the contract was entered red the into for the promotion of the voyage. Unde qucerit ^ajfnot Ofilius, si ad reficiendam navem mutuatus nummos prejudice in suos usus convert erit, an in exercitorem detur a third • o r> ■ • 7 a I • •• person actio f At ait, si nac lege accepit quasi in navem who has impensurus. mox mutavit voluntatem. teneri exer- contra c- . r . j ' . . ted with citorem, imputât urwn cur tatem proposuerit. (b) him boni exercit. act. Vinnius ad. L. 7. ff. eod. pag. 182. 184. Stypmannus, part. fidê. 4 cap. 15. n. 144. pag. 545. Marquardus lib. 2. cap, 5. n. 27. Locceni- b L. 1. §. us lib. 3. cap. 7. n. 7. 8. pag. 1032. Valin, art. 19. tit. des Capitaines, 9. ff. de pag. 416. It follows, from this principle, that he who, in §• 4 - The the course of the voyage, has lent money to the nor bii- Captain for the necessities of the ship, is not obli- s ed t0 ged to follow this money, nor prove that it was EhaTthe usefully employed.* It is evident that he belie v- money ed the Captain to be honest; and, moreover, it is JJJ' " s m ". necessary that he should l^e one of that profession ployed. or trade in order to enable aim to judge of the ex- pediency and the nature of the disbursements made or to be made on any particular occasion. Non * Dig. 14. 1.7. 2. Abbott, 104, Marshal] 639. 88 An Essay on a l. 7. ff. obortet creditorem ad hoc adstringL ut ibse refici- de exercit 1 , . .. ° 7 . l , ** . . act. ibiq. endce navis curam suscipiat, et negotium domini Glosa, gerat ; quod cert} futurum sit y si necesse habeat Go a sum of money to the Captain; that is, that there is neither proof nor reasonable presumption of any collusion hctiveen him and the Captain" This authour does not exclude those reasonable presumptions of collusion, which arise out of th> 92 An Essai/ on transaction itself and which arc innumerably vari- ous. He who is desirous to embark himself or to lade a vessel, has not often the choice of a vessel. He is obliged, propter navigandi necessitate??!, to take the first which offers. But he who lends money to a Captain does it voluntarily and with- out any constraint; the motive of the Praetor's E- dict is not applicable to him. a vide It is then just that he should use common pru- Cujas dence : a lia nam diligentiam. (a) Vinnius ^ Faber ' Civilians u P on tne ^ aw °f Lucius-Titius, 7. ff. de exercit. act. Stypman- aiid other nus P ait- 4 * ca P" 6- n- 1 ^ 4 * ca P" 15 ' n " 154- P a S* 418 - 544, Pothier ' des Obligations, n. 448. torn. 1. pag. 231. SECTION IX. Of a Captain who sells part of his cargo, during the voyage. b Art. 68. The Ordinance of Wisbuy, (b) contains a sin- gular provision. " In case of necessity, the mas- ter may dispose of a part of his cargo in order to raise money, if he has need of it for the vessel; and if the ship be afterwards lost, the master shall be obliged nevertheless, to pay the merchant for the goods sold." M. Valin, (c) cites the provision of the Ordi- tit. dû nance of Wisbuy, and contends that the owner of fret. pag. the ship ought to pay the value of the goods sold, during the voyage, for the necessities of the vessel, independently of the subsequent hazard of the ship; in the same manner as if, instead of selling mer- chandize, the master had borrowed of another, a certain sum, for which he had drawn a bill of Ex- change upon him. Maritime Loam. 93 M. Pothier, ( a) informs us that, "persons of aCon - cxperience on the subject of maritime jurispru- ma«- dence, whom he has consulted respecting his trea- ^ es > "• tise, were of opinion that the owners of merchan- 72 . dize, sold to supply the necessities of a ship, could demand nothing, if the vessel should afterwards be lost. . ... .But," says he, "I should have some difficulty in making such a decision and I think the Ordinance of Wisbuy and the opinion of M. Valin more consonant with law It is a sort of compul- sary loan of which the Owner of the goods has made to the master for the necessities of the ship. From this loan arises an Obligation, that the mas- ter contracts with him, to return the money so lent. The Ovvner of the goods sold has also his action a- gainst the proprietors of the ship, for the price of his merchandize, They cannot defend themselves under the 2nd. article, fbj which applies only to b Tit. .des those obligations of the master, for which there f^es. would not be allowed any recourse against the own- ers for indemnification The ill success of a transaction which was ordered, when it does not proceed from the acts of the agent, does not release the principal from his obligation to pay the expens- es which have accrued and the contracts which the agent has made in the execution of his orders &c." Kuricke, (c) and Cleirac, (d) follow the Ordi- J^6, nance of IVisbuy. ?**. 765. § 4 as well as in that of Jettison, (b) I ought to observe in this place, that this sale is one of the perils of the sea for which the assurers are liable. An adventure which I have ensured is sold in the course of a vovae;e: from that time. I have a lien upon the ship and freight for the price of my goods. If the vessel afterwards perish or become not sea-worthv the assurers are obliged to •96 An Essay on pay me, saving their right to the things preserved. If the adventure thus sold should belong to one who lias borrowed money by way of maritime loan, the produce should be for the benefit of the lender. SECTION X. Of the several hinds of actions called principal, ac- cessary and contrary. In order to understand the nature of these differ- ent actions, it is necessary to revert again to the principles of the Roman laws. ^ l. Ro- The Masters of vessels were Factors, of a parti- Law, cular class. In every thing that concerned maritime commerce, they acted as real masters. It was with them principally and directly that persons contracted. It was then proper that they should be personally bound to third persons who had acted upon their credit. The ac- The exercitory action [actio exercitorial was only '■'ai" st 'the introduced to give more stability to their contracts owner and to inspire those who dealt with them with greater ikd to d " confidence, by adding to their own personal obliga- that tion, that of the owner ; non transfer lu r actio, sed them*- a djicitur.(a) The principal action then combines ter. that against the master and that against the owner, ff d iW 5 - Obligatio 17 ff eod. d on the title of the cod<% de c\-rrcit.. et ii\st. act. Maritime Loans. 91 actio datur in institorem out magistrum* Potest tamen etiam in exercitorem agi, in earn qui prœpo- suit, quasi in principalem. But the principal action against the master is not Thi . s affected, either by the addition of a right of action doe g not against the owner, nor by the election of suing the make any one or the other. Nee prœtor eè mente introduxit £he pmvT cxercitoriam, ut perimeret earn, qua ex contractu in cipai magistrum competit, et quasi novatione facta banc agàhTst in Mam transferret ; sed ut civili actioni honor ariam the mas- adjiceret; atque it a ei, qui cum magistro contraxit, ^s' typ . pleniùs consider et.f a) mannus part. 4. cap. 15. n 231. pag. 550. Duarenus, pag. 1299. the mis- er was a This was the law only when the master was a free What ; if man. If he was a slave there was no right of action but against the owner. (£) For a slave could not sIave? appear in judgment. Cum servo nulla actio es'.fc) *Cujas act. lib. 29. Pauli ad edictum. Vinnius at Leg. 1. §. 17. ft', eod. °" *** w pag. 129. Stypmannus dicto loco, n. 224. Dumoulin, Peresius. Cor- vinus, C. de institut. c. L. 107. ft', de regul, jur. L. 6. C de judiciis. exercit - In this last case, if the person elect to sue the If the P er - sou elect owner, setting aside the master who was a free man, t0 sue the the action which was, in its nature accessary, be- owiier > , • , • • , i the action comes principal or quasi- principal. W ouid be principal. The owner was bound for the whole of the debt ; Tt was iQ without being allowed to abandon the peculium of an d for his slave or of his son not emancipated, who had the whole. been appointed master. Si voluntate domini vel 22 g-. '£' patris exerccant, in solidum tenebuntur, [father or exercit. mastered) act - Ibic i" Duarenus pag. 1297. Corvinus, C. de inst, pag, 198. Although the exercitory action arose from the Theexer - edict of a praetor, it was nevertheless perpetual, in tionwa S C " order to favour commerce. It remained in favour perpetual. of or against heirs. HtC actiones perpétua et in hce- e L : 4 - §• redibus et hare des dabuntur.(e) «tercit? act. Ibirj. Duarenus, pag- 1299. Cujas C do inst. 9 S An Essay on §. 2. New t j iavc ba i c j before, fa ^ that in the place where the Docs' the owners reside, the captain cannot do any thing of Captain consequence without their consent ; and that he be'niaster does not become master, possessor and governor of when the the vessel, to use the language of the Guidon de la lidded* iS Mer > W until she has set sail > &c - Whence it a Sect. 3. seems that the master should cease as soon as the b ch. is. voyage terminates. Nevertheless, after the return art. 4. of the vessel, he preserves some vestige of his form- er authority, as we shall presently see. Can we The oblique actions established by the Roman law, menée of which I have before spoken, are scarcely known actions in practice. Hodie obliqua istœ actioncs y seu potius hfm" St actionum adjectiones, nsum non habent. Sed directe c Vinnius ex contractibus institorum nostrorum, aut alias prœ - j d , L j§" positorum tenemnr.(c) Those who have contracted ff. de ex. with the captain have the choice of proceeding di- 'aï'ïË rect ty against the owners, or the captain, or against dvliin. * both at the same time.(ûf) Every day, among us, *"*•?■ we see sailors proceeding against their captains to Proprie- procure the payment of their wages. taires, torn. 1. pag. o 37. T l \ e But the judgment which has been obtained a- URIC- ** V ment ob- gainst the captain may be executed against the own- tamed a- ers although they may not have been joined in the gainst the . A ,,',. ' , ... , J . .. master action. M. \ aim, (e) says, "that there is no di- maybe rec t action and executory condemnation against against the master, but when the engagement with him is the own- proper and personal; as to oblige him to fulfil his bills of lading, to answer for his own acts, his f Art. 2. faults or offences. All other judgments against tu. des him can only be executed on the owners, or, proprie- i • i • i i • • .• i i • i • taires, ib. which is the same thing, if they be against him, they cannot be but in a qualified manner, as the representative of the owners, according to the a- mount which he may have in hand belonging to them." Maritime Loam. 99 A captain was sued by his sailors, whose wages were to depend upon the profits, for an account of the profits and freight of a voyage Our Admir- alty appointed persons of experience to adjust the account between them ; and in consequence, a sen- tence was rendered, by which the proportion of each sailor was fixed at 27 livres. The same sai- lors filed a petition praying that the sentence might be declared to be common and executory against Paschal Zino, the owner of the ship. He moved to set aside the report which established the shares of the sailors. It was objected to him that he was not entitled to make that motion, because final sen- tence had passed against the captain, by which he was bound in the same manner as if he had been a party to the suit. Sentence was rendered 24th April 1750, which s^?* without regard to the prayer of Zino ordered a joint 2. see «u- execution. The owner could not hâve had any g ^"'. other resource than that of an appeal. The same ii. oT question was decided in a similar manner in favour this ch *P- of M. Saisset, by an Arrêt, (a) Roccus, de navibus not. 27. According to the Roman law, he who contract- Action »« ed with the captain was entitled to an action in so- again™ Mum against each of the owners. iSï plures nave m each of exerceant, cum quolibet eorum in solidum agi potest y ers. ne in plures adversarios distringatur, qui cum uno J L - l < §• contraxerit. (b) And he who contracts with one of ^ 2 Tff. the owners, has no right of action against the others, de exer- unless that one has been appointed master of the ^4.' fF. ship, (c) This doctrine is very little in use among eoi'i,! 7. us. (d) ' ff - nautœ - d Infra Sect, 11. According to the Roman Law the actio Contra- ria was not given to the Owners against those who bad contracted with the Master. They could only 100 An Essai/ on ° L - *• §• institute the action locati against them, in order to exèrcit compel them to account. Exercenti navem adver- act. (ibiq. sus €os ^ q U i cum magistro contraxcrunt, actio non p^g.tssd.pollicetur, quia non eodem auxilio indigebat. Sâd, and Fa- aut ex locato, ciun magistro, si mercede operam ei sius, c^ e exhibât; aut y si gratuitam, mandati agârâ po- de Inst. tâSt. (a) act. Sup- p artt 4 ca p t J5^ n# 242 pag. 550. Locoenius Mb. 3. cap. 7. n. 15. pag. mannus iq^O. Straccha, de nautis, part. 6. n. 4. pag. 455. JVjtmius. This rule was liable to one exception as to the ibid. pn£. . .. . i i r i t »• i 132. sco- transportation of provisions intended lor the publick tanus, service. But the action, which was granted m pag. 32o- , , • t ° i such case to the owner against the merchant was gis, disc! extraordinary: dicta legâ prima, §.18. Our au - I. n. 187. thours convert this exception into a rule, (b) With 9i. n.'is. s0 much the greater reason that among us, the cre- Brodean ditor is suffered to carry on the actions of his debt- Paris e or > cven without any conveyance from him, ad âvi- tom. I. tandam circidum. (c) pag. 43. an j Graverol, pag. 19. 159. 501. Vede!, torn. 2. pag. 107. Boutaric, Laroche i nst , p ag> 467. & c . It is then lawful for the owners, themselves to demand the freight, average and hypothecation and to pursue the execution of every contract which concerns the ship. In a word, the captain can do nothing without their advice, in the place of unla- ding and of their residence. Do the ^° tne powers of the captain in his quality of powers of master cease by the loss of the vessel? This ques- th.e Cap ' tirai was discussed in the case of the owners of the tain cease m . < upon the ship le Prince de Lamballâ. (d) I contended, for the th S « S °hi 1 sn W crs J that in case of wreck, the captain ought d Sen- not to forget to save all that hâ can, of the ship tence re- anf j cargo, beginning with the most precious ÈràSect?" things, (ej II. §. 6. e Arr. 27. tit. du Capitaine. This Obligation is imposed upon him in his ca- pacity of governor of the ship. The freight of the Maritime Loans 101 things saved belongs to him in his quality of mas- a Art. 21. ter. (a) This character even obliges him to seek f ret . another vessel in order to convey the things saved to their port of destination, (b) It is certain then that shipwreck does not absolve the captain, either from the shippers or the owners ; and that so far from releasing him from the care of the thing 6 . An. 22. wrecked it imposes further obligations upon him. J**. ™ Thus, since the wreck does not terminate the prior contract against the owners, who profit by the freight of the things saved, it follows that they must answer for the errors and faults committed by their agent, in all his operations which relate to the salvage, which necessarily result from his situ- ation as the master. It follows, from these principles, that if the cap- c Emerig. tain requires money to effect the salvage of the des ass. ship, he may borrow it and pledge the freight of Jj^; «, the things saved. In case of capture, he may ran- som the ship and draw upon his owners, (c) SECTION XL Abandonment j by the owners, in order to avoid being bound by the acts of the Master. The owners are bound in solid um by every thing i 1. Arc which the captain does in the course of the voyage ^ bound for the promotion of the voyage. Omnia facta in soti- tnagistri debet prœstare qui eum prœposuit...Sed^™J c ™ ejus ret nomine cujus prœpositus fuerit. . . Si plures of the navem exerceant, cum quolibet eorum in solidum master ■ agi potest, (d) d L 1. §. 5. 7. 25. ff de exercit. act. But this action in solidum does not exist against the owners, further than according to the interest 10£ An Essay on a Consu- which they have in the body of the ship ; hence, lato del if the ship perish or they abandon their interest 33*and h ' tnev are no longer liable for any thing. It is thus 236. ciei. that the maritime laws of the middle age have di- des'Ri- recte d. ( a ) Such is the law which is observed in vieres, the north, (b) And such is the regulation of our oar 595 Ordinance, (c) "The owners of the ship are re- statut, de sponsible for the acts of the master, but they may " am * . discharge themselves from it, by abandoning the ted by ship and freight." Kuricke, tit. 6. art. 2. pag. 766. b Grotius lib. 2 cap. 11. §. 13. Stypmannus, on the part. 4. cap. 15. n. 190. pag. 547. Kuricke, question 20. pag. 886. Loc- Hansia- cenius lib. 3- cap. 7. n. 10. pag, 1033. Vinnius, ad Leg. 4. de exercit. tic law, act. pag. 155. Scotanus ibid. pag. 321. c tit. des propriétaires art. 2. §.2. The j t appears, from what has been said, that the ooligation *-.. i»*. rl , ~ of the Obligations of the owners to guarantee the acts ot owners the master, is more of a real than a personal na- acts of ture. During the course of the voyage, the cap- themas- tain may borrow money at bottomry for the neces- more f a sities of the vessel, pledge the tackle or dispose real than of a part of his cargo, (d) This is all His le- nature* § a ^ P ovver does not extend beyond the limits of the ship of which he is master or manager. He can- d Art. 19. not bind the property of his owners other than the phatne*?*" sm P> car g° an d freights, unless he has been thereto authorized, in a special manner. eh. 33. The Consolato del Mare, (e) after having said that the interest of the owners is pledged for the payment of debts contracted by the captain in the course of the voyage, adds, that neither the person nor the other property of the owners are bound, unless they had given a sufficient power for that purpose. Ma li detti compagnie ne altri lor ôoni y non sono obligate se il detto patrono non ha avuto procura, o altro poder sufficienti de obligarli. In chapter 236, it is said that if the ship perish, it is sufficient that this loss be borne by the owners* ehe il compagno assay perde. Maritime Loans. 103 The Ordinance, (a) speaks of a captain, simply §- 3 - ° fa as the conductor of the ship and to whom the trans- W h?hai- portation of the cargo has been entrusted. The so Super- owners, by abandoning the ship and cargo are dis- carg0 * charged from contracts made by the captain, be- a Art. 2. cause his orders were limited to the mere naviga- tit- des tion and did not extend further. It is otherwise of taires. a captain who is likewise appointed to the money concerns of the cargo. The owners are bound by his acts, not only to the amount of the value of the ship and freight, but even to the value of the merchandize entrusted to his care and the returns which it way produce. We find ourselves then, as to certain respects, within the provisions af the actio institoria.* But, 1. by this action, the constituent is bound J L / 1 « ff - to third persons by the acts of his agent, {b) pro- acV. USt vided they were necessary to the transportation of J L 5 - §- the goods delivered to him. (c) The constituent is l.5.'§°8.' bound even by the faults of the agent which may ff - de ex - be committed in the exercise of his trust, (dj iTS. ff.'' 10. C de procur. d Cujas. on the Law 58. ff. de procurratoribus lib. 71. negot. Pauli ad edictum. Pothier, des obligations, n. 453. gest. I.. 2. By the same action, the person advancing e . L - 30 money acquires, in right of what he has advanced, c ûratôn°* a lien upon the thing purchased or preserved in blls Ca * consequence of his assistance, (e) dïïcfô. ses, torn. 1. pag. 159. 162. Valin, Coût, de la Rochelle, torn. 3. pag. 368. n . 12. ' Pothier, Traité du mandat, n. 59. 86. Bezieux, pag. 138. Despeis- It follows from these principles, that if the own- ers refuse to comply with the engagement contract- ed by a captain -supercargo, they ought to abandon * The actio institoria of the Romans was that which arose from the act» of factors engaged n the land trade. ï) lib. xiv. Tit. 1, Law vu, §. 2. 104- Ail Essay on the ship and cargo, as well the outward as inward, or at least to render an account thereof; (for a formal abandonment not having been prescribed in this case, they are not held rigorously to it;) It suffices that they have not profited by the engage- a l. l. ments of their Captain and that their fortune at 17! ff'.'de land will not be encreased thereby. This is relative inst. act. to the provisions of the Roman law. fa J Nota. When I speak of a case where the owners abandon f r ^r d " 5 in " the ship and freight, I consider the captain merely as the master and not as an agent for the sale of the goods. This latter quality modifies the provi- sions of the Ordinance, (b) §. 4. if jf th e owners abandon the ship and freight, do enaban- tne engagements which the captain has contracted don the in the course of the voyage, in his own name, still f r e " g e nt a " d exist against him, in favour of third persons? Art. 2. tit. des propriétaires seems to decide this question in the affirmative : but it must be understood with the exceptions which I shall make in the next sec- tion of this chapter. Kuricke, (c) speaks of a case c Tit. 6. where a captain, in the course of a voyage, had na^ 766 Dorr owed money at bottomry, beyond the value of the ship and freight and he decides, according to the Statut de Hamburg, that the captain shall an- swer such engagements in his own proper person, as far as they exceed the value of the ship and freight. Sed, quid si nauclerus in locis exteris tan- turn pecunice trajectitia seu nautica in carinam re- cipiaty ut Mi exsolvendce nee navis, nee naulum, nee vectura, nee armamenta navalia sujjîciant? Eo in easily secundum statut inn Hamburg, exercitores non sunt obligati pecuniam hanc reddere; sed qui pecuniam suam in carinam crediderunt, nauclerum, cjitsque bona tantummodb obligata habebunt. This s«t. 12. * s sound doctrine, if the captain has been guilty of fraud or has bound himself in bis individual name. Maritime Loans. 105 If the ship perish during the voyage the con- tract of maritime loan becomes extinct.* The shippers, whose goods have been sold for the ne- cessities of the vessel, can claim nothing; because if thev had remained on board thev would have been a ut - dl) , J , . t t riii • i • •„ /-capitaine. involved in tlie same disaster. 1 his is the spirit ot the 19th art. (a) and for this reason we should re- *, art> ^ ject the provisions of the Ordinance of JFisbuy, (b) as I observed in the preceeding section. I observed before that the title of the Digest, §. 5. May de exercit. act. does not sav a sine-le word on the th . ec ? p subject ol pecunia trajectitia; and that the Indict row mo- of the Praetor authorized masters to have recourse ne >' :° be , , . p , repaid at to simple loans, in the course oi the voyage, to a fixed supply the necessities of the ship : si fucrit mutu- '•} :i - v > or atus, dandam actionem, (c) of ex- g L. 1. $. 7, and 8. ff. eod. (Loccenius lib. S, cap. 7. n. 6. Vinnius change. pag 94. and 183. Targa, pag. 29.) The Ordinance of Antwerp, (d) did not permit , lg the Captain to borrow money at bottomry but when he could not obtain it by drawing bills. By the A r eiv ordinance of the Hanse Towns, ( e) e t i t . 6. if the Captain want money during the voyage, and arl - 2 « cannot draw upon his owners, si nullum cambium ad exercitores transimttendum obtinere queat, and it would not be advantageous to sell a part of his car- go, he may borrow money at bottomry. Tunc, in * Property found derelict at sea, will be restored alter any length of time on payment of salvage, unless there be proof ol an intention to abandon wholly. Bee's Adrn. Rep. 82. In such cases, generally,' one half should be allowed as salvage, ib. 195. In cases of salvage monition issues to the owner to show cause : it is not a proceeding in rem. 3 Rob. 177. ylm. Edit. The courts look not merely to the exact ijuantum of service per- formed in the case itself, but to the general interest of com- merce, ib. 287. A vessel with ilaves on board but no white per- son considered as derelict, in South Carolina. Bee's Adrn. Rep. 82. O 107. 417. 106 An Essay on hoc casu necessitatis, habeat potestatem tanthm pe- cunia sub fœnore nautico accipiendi, quantum opus habet, m pa g . Kuricke, on this article, (a) observes, that in a 765. strange country the captain may borrow money at bottomry, 1st. if he has need of it: 2nd. if he cannot draw upon his owners: si isthic loci, cambio sub fide exercitorum, pecuniam ab exercitoribus solven- dam comparare non queat; 3rd. if the sale of his b part 4 merchandize would be more prejudicial than paying cap. 5. n. maritime interest. Stypmannus, fb) holds the same P a s- language, and says that in the last case the captain should draw upon his owners, pecuniam collybo pa- rare, quam exercitores solvant, rather than borrow money at a considerable interest. But our ordinance has restricted the power of the captain, during the voyage, to borrowing money at bottomry, pledging his tackle or disposing of the goods in his charge for the necessities of the ves- sel. If he draw upon his owners, this engage- ment, although it be expressly in his name as cap- tain, becomes personal, because he has exceeded his legal authority. He ought not to contract any obligation which is not inherent in the vessel itself, and which does not depend on the success of the voyage. It is only whilst he keeps within proper limits that the authority of a master is delegated to him; (unless his articles with the owners, or the common law in certain cases, should give him a more extensive authority.) The following arc remarkable decisions on this subject. 1. Captain Pierre — Joseph Babin commanding the ship called the Raphael, being at Cape François was in want of money for provisions, custom-house fees, and for the replacement of his crew. He drew Maritime Loans. 107 upon Francis Raphael two bills of Exchange for 1000 and 750 liv. valae received in shipbread, jiour and in money for insuring the vessel on her return home. He set sail. He met an English privateer, with which he engaged. His ship took fire and he was blown up. The two bills were protested for non acceptance and non payment. M. Pelisseur, the holder, sued Raphael, in our Admiralty court and filed his pe- tition against the guardian of the children of cap- tain Rabin, as parties to the cause and in order to obtain a personal condemnation. Pelisseur and the guardian pleaded that the money had been borrow- ed for the urgent necessities of the vessel; that the captain was not able to borrow at bottomry : that he could not sell the rigging which was necessary to him ; that he could not dispose of the merchan- dize, but upon very disadvantageous conditions; that Raphael would derive a great advantage from the insurance upon the return cargo, that if he re- fused to pay the bills he ought at least to abandon his claim upon the underwriters; that this injustice would be the more odious as it would be ruinous to two children whose lather had sacrificed himself in the discharge of his duty, &c. &c. Raphael answered, that if captains were authori- zed to draw upon their owners, their fortunes would never be certain. The Ordinance has cir- cumscribed the power of the captain, during the voyage, within the limits of the vessel. The cap- tain can hypothecate no more than the vessel, the freight and those things which are under his direc- tion, and not the policies, to which he is a stran- ger and which belong to the general estate of the owners. It is essential to commerce that a mer- chant should be allowed to place limits on his risks, and that when he despatches a vessel, he should be 108 An Essay o?i allowed by a wise precaution, to moderate the haz- ards, to which he is exposed: instead of which, by admitting the contrary doctrine, owners might be overwhelmed at once by accidents and ruinous contracts. Re added that nothing remained at Cape Francois of the outward cargo. An Arrêt was rendered 20th June 1760, by the Parliament of Aix, on the report of M. de Mont- vallon, which, correcting the 'sentence of our Ad- miralty, condemned the heirs of Babin to pay the amount of the bills of exchange. 2. In 17 59 JDomi?iiquePauquetûtteEniei-i S personal obligation, (c) ^ 5 c L. 43. §. 1. ff. de Adm. tut. L. 15. C. eod. L. 12. ff. de his qui ut " '. \ indign. L. 30, § 1. ff. de inoff. test. L. 5. §. 1. ff. quandô ex facto. <>i..4, ff. But the agent who contracts in his own name, de soh.ti- binds himself, without any destinction with respect sare g is. a to third persons with whom he contracts, because disc. T8. th ev - are ignorant of his quality and he is rather Jcq.'disc. believed to act for himself than for another. Poti- 199. n. si. ii S mco nomine quàm pro alio, fdj D'Argen- 96i o. n. 3. Ansaldus, disc. 30 n. 3J. Despeisses, torn. 1. pag. 51. n. tree, art. 05 Maortica, de tacki:,, lib- 7. tit. 18. Maritime Loans. 1 1 5 There is a ease mentioned in L. 20. ff. de hist. Where an act. which I shall mention. As the agent of Oc- mentions tavius Felix, rem agens Octavii Felicis, I have re- hisquaii- ceived from you a thousand crowns, which I am JJ r °on e to return quos numerare debebo, within a specified dealing time. I am not bound in my own proper name, J" "^J? because I have signed the obligation in the capaci- norant ty of an agent, institoris officio. of lt - He who acts in a contract as an agent is only a l. 15. bound as such. Frustra vereris. ne ex ed inter- c - de ad - cesswne qua signasti ut curatory conveniri possis.(a) l. 43 $. In a word, the agent who designates his quality in 1 - ff - eod - the contract, whatever it may be, whether that of Hn."™"" a Guardian, Proctor, Father, Husband, Syndic,* de Paris, Factor or Tenant, is not personally bound. (6) It is f{ '"' sufficient if his quality be designated in the act, (c) 61. D'Ar or that it has been designated in a preceeding act, fj t nt jg of which the second is a consequence, (d) The not. 2. n. quality of an açent mav even be implied against 4-Des " i-i 'r i " ii i • & i peisses, third persons, n the act could not otherwise have tom. l. been done. In dubio videtur celcbrari actus in it- pa f'H 8 ' j a »•, . At' i \ n. o. Alor- La quatitate, in qua subsislcre potest, (e) nac, ad eo. Meynard liv. 4. ch. 15. c D'Argentri', d. loco, d Bezieux, pag. 276. Leg .7. C. e Dumoulin, dicto loco. § 1. gl. 1. n. 31. and 32. pag. 61. quod cum The contract of an agent who binds himself in Whether his own name, is valid against him, although he de- pJJJJJj- signates his quality. Si subscripsisti quasi jftfe-iy bound jussor, conveniri potes. (f) ^d*j signation of his quality, f L. 15. C. de admin, tut. the de- Si dixeiHs: fiet tibi satis aid à me, aut ab alio, s Nov - integrum cogeris per solvere, (gj \ 15 i " p " * Those who have permission to form a company or corpo- ration, have also their rights, their privileges, their goodb, their affairs ; and all the members not having leisure to attend at the same time the business of the community, they may appoint persons to take care of it, who are called Syndicks or by some other names- L. 1. §. 1. ff. quod cui un. dom. lib. 2. Tit. 3. Sect. I. be 1 1 6 An Essay on a î'ïiï ^ ie ^" 67, ff' P rocuraf - decides that the agent Bamaric, who pledges his faith to a purchaser, cannot, in inst. pag. casc f eviction from the thing sold, be released pefsses, CS from the contract which he has made. Procura- tom. i. tor, qui pro evictione prœdiorum qua: vendidit, Ji- h?25. Fa- dem suam adslrinxit: o'bligalionis onere, prœtoris ber, def. auxilio, 770?i levabitur. Nam 1 ' rocurator, q7ti pro c ^ e ' domino vinculum obligalio7iis yuscepit, onus ejus evict. Co- frustra, recusal. The same provision is to be ïï'frde' f° un( l m L. 27 C- de evict, and it is so held by all neg. gest. our authours. fa J lib. 2. resp. Papiniani. There is no particular form for entering into se- &de fi- cur ^y- The parties may couch their contract in dejus. §. what terms they please, provided the intention is l. mst. not expressed in an equivocal manner, (b) He who dc verb. . . , * . 1 , V -, i obiig. binds his own goods ior another necessarily be- comes his security; for hypothecation "does not exist alone. It supposes a principal obligation, to fFerriere, which it is only accessory* and for the security of modisre vvm ^h it is intervened. Pign7is est contractus ac- contrah. cessorius, qui principalem obligationem suponit, cu- jra imJ us v î ncy h l ™ est, et confirmation {c) The ar- gument which derives hypothecation from surety is valid. Valet argu7ne7itiun à causa pignoris, ad causam fidejussoriœ obligationis. Meriinus, dc pign. pag. 504. lib. 4. lit. 5. quest. 126. $. 2. u- In my treatise on Insurance (d) I have observed "f r e . of that, by the custom of merchants, every merchant chants, who effects an insurance, or who subscribes a poli- d ch.5. C y, or freights a ship, is personally bound to fulfil and 5.' ' ms contract, although in the instrument it be ex- pressly said to be done for account of another. Is the law the same in the case of a captain who borrows money by maritime loan, whether it be be- *L.bQ./T. de fid < jus hi c/ni acceasionis. Maritime Loans. 117 fore his departure, for account of those owners who refuse to contribute, or during the voyage to sup- ply the necessities of the ship, if on his return the owners abandon the ship and freight and the whole is not sufficient to discharge the debts which he has bonâfidè contracted and for a lawful cause? I believe we ought to make a distinction here. 1. If, in the contract the master has bound his oxvn person and property, (of which I have seen a thou- sand instances,) he is personally bound, although the quality in which he acts be expressly mention- ed : because he became the guarantee of the con- tract and the lenders acted on his credit. It suffi- ces, then, that the ship shall safely arrive, in order to compel him to discharge the principal and ma- ritime interest which he has promised, in his own name, to pay. 2. But if he entered into the contract in the capacity of a captain, exclusively, the lenders, not- withstanding the safe return of the vessel, are re- stricted to their action against the ship and freight without the right of suing either the owners who have abandoned, or the captain, who having con- tracted in a qualified manner, ought not to be re- sponsible for the ill success of the voyage. The Ordinance does not compel the captain to pay mo- ney borrowed at bottomry, but when he effected "^\q 7 ' the loan in the place where the owners reside, tit. du Ca- without their assent, or in cases where the borrow- P itaine - ing was without necessity, (a) 3. If the Captain draw a bill of Exchange, he b Sea n must pay it, because he exceeds his legal authori- ty, as we have before seen, (b) 4. Instead of borrowing at bottomry, if the cap- tain, for a legal cause, dispose of a portion of his 118 An Essai/ on cargo, and, on the return of the vessel, the vessel and freight (increased by the latter engagement and the seaman's wages) be insufficient to pay for the goods sold, this loss should be borne pro rata by the rest of the cargo, which, at the time of the for- ced sale, was on board and afterwards reached the port of destination: to which loss the value of the goods sold would have been equally subject to con- tribution. He who lends money at bottomry to a Captain may take such precautions as he thinks proper ; but he whose goods are sold during a voyage for the avid. Su- necessities of the ship, has no power to prevent it 9™ ■ or to obtain any particular remedy against the cap- tain. It then becomes just, that when the vessel and freight, being abandoned by the owner, are not sufficient he should be indemnified by all the own- ers, whose situation was similar.* (a J SECTION XIII. Stipulated penalty against a Captain who violates his contract. I i. The Conventional penalties a-e of rigour. Those who convenu- have agreed to them, ought to be condemned, if naît *S "of tne y ^ ave v i°l ate d their contract, (b) rijrour ^ V ^' inst - ^ e ver ' ) - olilig. L. 11. ff. de stipul. praetor. Pothier, des obli- gations, n. 345. * Though the master of a vsesel be also lessee of it, by a- greement with the owners, for a term of years, under cove- nants on their parts that he shall have the sole management of t the ship and employ her for his own sole benefit &c. And on his part, that he shall repair her at his own sole cost and charge &c The owners are still liable for necessaries furnished for the ship by order of the master, though without their know- ledge or without their being known to the person who supplied Maritime Loans 1 1 9 1. On the 9th October 1743. M. Raphel, shipped for Martinique, certain merchandize, on board the St. Mathexv, at a stipulated freight, " on condition, that if the vessel should not sail during the month of November following the said merchandize should go free of freight.'''' The vessel did not sail with- in the time mentioned, although the wind was fa- vourable and other vessels in port had put to sea. M. Raphel filed his petition in our Admiralty against the captain and demanded that the bills of la- ding should be signed free of freight. The cap- tain and M. Mathew Lée, his owner, in order to gain time, pleaded that the court could not hold jurisdiction of the cause. In this they were over- ruled by a sentence rendered 18th January 1744, and this sentence was confirmed by an arrêt of the 14th May following. The ship, whose departure had been retarded because the cargo was not ready, at length set sail and arrived at Martinique. The correspondent of M. Raphel required that the merchandize addres- sed to him, should be delivered free of freight. A sentence was given by the Judge of St. Pierre ordering that the goods should be delivered to the correspondent, upon his giving security to pay the freight if it should be so determined by our Admi- ralty. The ship returned to Marseilles. The owner sued Raphel for the freight and filed his incidental petition for the annulling of the penalty contained in the charter party. them. Cowp. 636. He who furnishes a ship with nécessaires has a treble security; I. The person of the master, a. The specific Ship. 3. The persons of the owners, ib. 639. which mav be enforced in the Achn'ralty. Bee's Adm. dec. 78. 120 An Essai/ on A sentence was rendered, on my report, in Sep- tember 1752 discharging Raphel from the payment of the penalty demanded and ordering that the agreement entered into on the subject, before the Judge of the Admiralty of Martinique, should be cancelled. 2. Capt. Pierre Lambert, commander of the Ste. Anne freighted his vessel to M. Jean Baptiste Gau- tier, the Elder, to go to the Levant and bring a cargo of wheat to Marseilles. It was agreed that "the captain should not in his outward nor inward voyage take any merchandize from individuals on freight nor even receive letters without the ex- press consent in writing of the owners ; under pe- nalty of forfeiting one half of the freight." The captain put a small adventure on board on his own account, consisting of sugar, cocoa and li- quors. He set sail and touched at Smyrna. He went next to the Gulf of Volo (in Thessaly) where he took a cargo of wheat, and returned to Mar- seilles. M. Guatier contended for the forfeiture of one half of the freight, because, after his departure from Marseilles, the captain had put merchandize on board clandestinely, as well on his own account as for that of others. He added that at Smyrna the captain had taken goods on freight by which the vessel was retarded. A Sentence was rendered on the 21 November 1752 on the report of M. le Lieutenant Gerin Ri- caud, by which after hearing the pleadings and con- clusions of the parties, it was ordered, that Gua- tier should adduce proof that the captain had, in the first instance, put merchandize on board for account of individuals, and that at Smyrna he had taken merchandize on freight. Maritime Loans, 121 This interlocutory judgment, to which the par- ties submitted, decided the principal question. It was considered that the prohibitory clause did not relate to adventures of the captain : quia in ge- nerali sermoni, persona loquentis non comprehends tur, but that he was only obliged to pay freight for them. It is not allowed to extend the conventional penalty from one case to another, nor from one per- a de taci- son to another. Pœna conventionalis non egreditur *£* j£' 6 personam expressam in conventionem, says Man- n. 36.' tica.(a) 3. Jerome Bourre, owner of the ship,L' "Espérance, captain Benet, freighted her to Antoine Paul, for a voyage to the French Islands; and by the charter- party it was agreed, that "the captain should not, in going or returning, take on board any merchan- dize, effects, nor specie from individuals, without the consent, in writing, of the freighter or of his cor- respondent, under pain of forfeiting one half of the freight:' The ship arrived at St. Domingo, from which port she returned to Marseilles. M. Paul, know- ing that the contract had been violated and desirous of obtaining proof of the fact, filed a petition in our admiralty, in which he accused the captain of hav- ing purloined a part of the cargo. He summoned the mate. All the papers of the ship were seized and deposited in the oflice. From these papers it was discovered that the captain, in conjunction with Bourre, his owner, had put goods on board for different people, but the captain was acquitted of the embezzlement, or any appearance of it. He filed a petition for damages as on a malicious prosecution. Q l i J2 An Essay on Bonne, the owner, made himself party to the suit and filed a petition against Paul for the pay- ment of 18511 livres, the amount of the freight. Paul exhibited the Charter-party and prayed that the freight might be reduced to one half the amount claimed. The cause was adjudged on my report. All the parties found themselves in fault. Benêt and Bourre had violated the contract, which prohibited the lading of any thing without the consent, in wri- ting, of Paul, under penalty of forfeiting one half of the freight. ït was inexcusable in Paul to have commenced a criminal action against Belief and to have defamed him by a charge of embezzlement. It is true that the captain had violated the contract ; but this violation, the proof of which Paul had ob- tained by the invocation of papers which he had prayed, was not, properly speaking, a crime, Which deserved the eclat of an extraordinary manner of proceeding. The merits on each side being thus balanced, we were of opinion that captain Benet should be compensated for the damage done to his reputation, by the moiety of the freight which he deserved to forfeit by his breach of the charter- party. Accordingly a sentence was given 20th March 1756, by which Benet was released from the pro- cess of the court and Paul was condemned to pay the whole freight and costs. By an Arrêt, in June a i.. 154. 1758, on the report of M. de Boutassy, this sen- §. l. ft. de tence was affirmed. llli debet permitti pcenam juris. petere, qui in illam non incidit.faj Agree- In a great many charter-parties I have seen a sti- roent that p U i ilt i on tnat m case f a v i i a tion of the agreement freighter the captain should forfeit half the freight, ivith da- mand the ma g es ana> interest. But the conventional penalty penaïtv agreed upon, 'vith damages and interest. Maritime Loans, 123 is in compensation of damages, of which it forms a kind of liquidation. Ne quanti tas stipulation's in incerto sit y ac necesse sit act or i probare quid ejus? n k À inter sit. (a) The freighter who complains that the verb. contract has not been executed, cannot demand, abl ' s ' both an indemnification of the damage suffered and 5^°oS r ' the conventional penalty. He ought to choose one n. 342. ' or the other, (b) He should not be prevented from making this election, because the penalty has been stipulated for his benefit and he cannot be hindered from claim- ing a common right. This conventional penalty cannot operate to the Whether prejudice of the lien or privilege, to which the sail- seamen ° ors and those who lend money at bottomry are * ntJ len- • -* * tiers n.t entitled on the body of the ship. bottomry €d by the conventional penalty in question. be affect- 1. The seamen and lenders at bottomry have acted on the credit of the ship itself. They are ig- norant of any agreements between the captain and the merchant. 2. The privilege granted to mariners and lenders at bottomry is of publick right: It is of consequence to the country, that seamen should not be defraud- ed of their wages and that the faith of maritime loans should not be impaired. 3. The ordinance,^ places merchant shippers c 16t !" after sailors and lenders, on account of the necessi- i a saisie. " ties of the ship. From which it follows that len- ders and seamen have a right to enforce their liens upon the ship and freight affected to them, before the freight be absolutely absorbed or diminished by a conventional penalty, to which they were utter strangers: without prejudice to the right of the freighter to pursue the goods and person of a cap- tain who has committed any fault. CHAPTER V. What things may be pledged in a Maritime Loan, In general, every thing which can be insured may be the subject of a contract of a maritime loan, provided that the maritime risque and the subject of it be real on both sides and that there be nothing repugnant to the nature of the contract. In this chapter I shall treat of the manner in which the thing should be described upon which money is lent at maritime interest; what are the subjects on which it may be lent, and whether it be legal to lend any other thing than money in a contract of gross adventure. SECTION I. Maritime Loan on tire Vessel or the Cargo» |.i. The Guidon de la Mer 9 (a) says that "the mas- Loan on ters ^ owne rs or shippers, may borrow on interest, Cargo, as much money as will enable them to furnish their a ch. 19. quota of the victualling and repairs, in which the pag. 337. va i uc f (he ship must not be taken into considera- tion : because, if they fear to hazard her, they may cause insurance to be made on her value at a premium which ivill be less than the profit which they ivill derive from the money ivhich they may borrow." Hereis a proof, not that they were restrict- ed from borrowing on the vessel, but that it was cus- tomary only to borrow for the victualling and re- art. h i 18 ' pairs, as appears from the Guidon.(b) Maritime Loans. 125 But to remove every doubt upon this point, the ordinance(tf) decides, that " money may be lent at JJ. 2 ?" 2 ' bottomry on the body and keel of the vessel, her rigging and apparel, jointly or separately." At present we make no distinction between the equipment and the body, excepting in Royal ves« sels, which private individuals sometimes are per- mitted to fit out for their own account; but as to merchant vessels, the distinction of which the or- dinance speaks, is scarcely ever made. The body of the vessel comprehends all its parts. It is suf- ficient if the money be lent on the body, to give a b v * lil1 ' lien upon the rigging, arms and victualling, (b) Traité There is nothing to prevent you from expressing, des assu - in the contract the value of the vessel. The con- ch^io! tract is as valid against lenders,, as againt insur- sect - 1 - ers.f CJ c Emerig des ass. ch. 9. sect 4. The ordinance (d) says, -that the money shall be §.2. Loan lent on the whole or part of the cargo. According °" r gof to the custom if the money be lent on the cargo, j Art. 2. the contract will embrace all the interest which the h - l - borrower has, as well in the cargo, properly so call- ed, as in the small adventures. But if a person bor- row on the cargo and also on the small adventures, they will constitute two distinct liens. So it was decided by an Arrêt of the Parliament d' A ix,^) e2 i j u]yf on the report of M. Pazery de Thorame, in favour 1779. of Beaussier, the elder and Felix Gravier. They had made a loan on a small adventure shipped by Jean-Pierre C... en the brigantinc le Bienfaisant, capt. Paul, The returns of this package were ad- judged to them to the exclusion of those who had made loans on the cargo of the same ship. It is not necessary that the borrower should give notice that his adventure consists of articles subject to leakage, because the lender does not contribute ch n 7 [ to simple average. (f) It is equally unnecessary to sect. 1. V26 An Essay on give a specification in'detail of the merchandize bought or to be bought ; it is enough if the subject of the risque be on board. The contract on maritime loan on the cargo af- fects, not only the goods on board, at the time of departure, but all which may be taken on board for account of the borrower, during the voyage. If the contract be for the outward and inward voyage, ch."i2. ^ covers the returns for account of the borrower, as sect. 2. will appear from an arret which I shall quote here- after.^^ But the lien does not attach upon merchandize which the borrower voluntarily, and without being compelled by necessity, ships in another vessel. To the risk of this merchandize the lender is a ch. 8™ stranger, even though it be the returns of the first sect. 4. cargo, (b) It is enough that the subject of the risk be on âh. n i2? board at the time of the accident. If it be not, the sect, 2. borrower is not released from his personal obliga- § " tion by the loss.(c) Nota. If I borrow money at maritime risque, on a part of the shipment, for instance, a moiety, or half of my cargo or adventure, the lender would fr:\ch. î'i! nave alien only upon this moiety, for which in case sect. 2. of wreck, the effects saved would be obliged to contribute, (d) rfVid. In frà ( sect §.2 a The 2d. art. h. t. seems to be equivocal. " Mo- han on ney may be lent at bottomry on the body and keel, the vessel t ne rigging and apparel, arms and victuals, jointly or separately, and upon the whole or part of the cargo, for the entire voyage or for a limited term." It seems that the words jointly or separately should be placed at the end of the article ; because noth- ing prevents a person from borrowing jointly on the ship and cargo, if he has an interest in them. 2uan- What if be ex- Marithnt Loans. V2~, do il Capitano, b essercito7*i imbarcano robbe,e mer- ci di proprio conto, puonno prender danari à cambio maritimo sopra curpo e merci giontamente, perche hanno la dispositione del'C ana, et Valtra materia ; et chi la dà y hà hipoteca piu amplia.{a)* The ac- aTar ,| a tion of the lender in such case is in solidum, against n ! P i.° the ship and cargo. [b) b infra ch. 12. sect. 2. §. 4. In general the words, per denari dali a cambio §. 4.' sopra la nave\ apply only to the body of the ship. J'*"' Nevertheless they may, according to the circum- pressed stances of the contract and the presumptive inten- "P™ a n 1 • 1 !• i« 1 1 certain tion 01 the parties, be equally applied to the cargo, ship with- The captain of a vessel borrowed money at bottom- ° m ,s oin s it • 1 1 . . mt d r- further. ry at Venice, sopra la delta lartana% tor a voy- age which he was about to undertake. The len- der caused insurance to be made at Genoa, super dicto cambrio maritimo.\ The vessel and cargo pe- rished. The body of the vessel was inferior in va- lue to the money lent. The assurer refused to pay the entire loss. They said that the containing clause would not embrace the contents : appellatione con- tinentis proprie non comprehenditur contentum; that according to the clause in their policy they had as* sured the money lent upon the cargo, whilst the con- tract of bottomry upon which that policy was af- fected, applied only to the body. Casaregis,(c) says, that their refusal was unjust. J( c ) tnat tne lender would beat the h. t. mercy of the borrower who would make no exer- cdicto tions to obtain freight, when it could yield no ad- loco * vantage to him. He adds that it is lawful to borrow on freight already earned : that is to say, to borrow for the purpose of paying a stipulated freight which is to be paid at all events, whether it be for the transportation of merchandize or for a mere pas- sage. But may an owner borrow at maritime risque on freight already due to himself? For instance : I have a vessel ready to sail for the West Indies, worth 50,000 liv. I freight her to you for 50,000 liv. which you are to pay at all events. I borrow from another person 50,000 liv. at bottomry on the hull. The ship perishes, without having incurred any in- termediate expense. May I demand from you the 50,000 freig/it earned and keep the sum borrowed at bottomry. Is the gain of 50,000 liv. which I make by this operation lawful ? I think not ; but that notwithstanding the loss of the ship, the sum borrowed should be returned, with legal interest. Nota. !• take the most easy manner of calculating, and the most perspicuous to develop my ideas. It Maritime Loans 1 3 1 is of no consequence whether the sum borrowed be _ ii i • i • i y i flEmeng. great or small : the principle is the same. fay des ass. eh. 8. sect. 8. ch. 17. sect. 9. To borrow money on profits expected to result § On the from an adventure is not permitted because the pro- P rofits - fit is uncertain and has no physical existence, nor is b Art 4 * it lodged in the ship. (6) P 0l h. n. 14, Emerigdes. ass. ch. 8. sect. 9. [Sed vide p. 39. ante.] The Guidon de la Mer (c) permitted the master §. 2. on " to take up as much money as the amount of the fhewa - primage, and that money which was promised to c cn ". i 9> him in the charter-party, in consideration of the art. 7. advances which he may make to the crew. The advances to seamen is one of the expenses of equip- ment and outfit. It may therefore be the subject of insurance, and of a contract of maritime loan for the benefit of those who fit out and equip the vessel." The ordinance of 1584, (d) says, that " no ohe^ Art - 95 - shall lend at maritime risque to seamen, more mo- ney than is necessary to them for the voyage. This is forbidden as well in the case of the lender as the borrower, under pain of losing the money and for- feiting thirty livres, one half to the informer and the other to the Admiral. Nor shall such loan be made but in the presence and with the consent of the cap- tain and principal owner, who shall record it, for fu- CIer3 ture information, if it should become necessary.(f |\ I « •>. B ■ not m < an cntcrpi d. m • 1 • f.ir from it, the the Till .ut. h. ' [lowed ' ■■ the hull, but to thou who iheir inoiu \ for the ' and i; it not allow! d " l to thosi \\1>'> furnished fimd* to pure \ rding to tlit. loth .ut.- li. t. the mone) lent fa i former ind left outstanding ' with mont j em I i ill) l< nt i<>r tli — _\\ - might rev* ri h befon i itul. (/») the But M. Valin, (< - r : quence whetfa r die loan hi sailing, because, he adds, tin- presumi : ther thai it has been use Fully empli \\ cd 1 at b : li.i^ bi " d to ment of debts contracted on the ban But this presumption wou tli. interest oJ third . ns and I art not to Ik extended l»\ constr • The I A ( vf the i Id be iir hided in a De :. n i pai ■ ' the last • aion of thtt law, supplied win. • Maritime Loans. 137 I am of opinion therefore that the third person Would be at liberty to oppose the payment by pre ference or even pari passu of a lender, whose con- tract was posterior to the commencement of the risk.* Such Was the principal ground of an arrêt, of which I shall relate the circumstances. B. and L. equipped the ship V Amitié, capt. V. They pur- chased the cargo on credit and borrowed the mo- ney necessary for the equipment by maritime loan. In order to raise funds, they made captain V» and B. the lieutenant, sign respondentia bonds to the amount of 27000 liv* without mentioning the names of the lenders, which were left in blank. After the departure of the vessel B. and L. negoti- ated these bonds and then became bankrupts. An arrêt was pronounced on the 23d June, 1769, which "declared these bills null, saving and reser- ving to the holders and indorsers the right of in- . , demnifying themselves against the bonds thus can- c h. 6. celled, in such manner and against whomsoever Sf;ct - 3 - they might find solvent." (a) After the departure of the vessel nothing pre- vents the borrower from contracting to pay the mo- ney borrowed out of the interest which he has at stake; but this indication of a particular fund does not give the creditor, any lien upon the fund thus pointed out. The money cannot truly be termed trajectitia but when it has been employed in the ac- tual purchase of the goods shipped or has enabled the borrower to purchase them. Trajectitia ea peat- nia est, qua transmaré vchitur. Sed videndum, an merces ex eâ pecunià comparitatœ in ea causa hade- antur ; et interest, utrum etiam ipsa periculo credi* * Marshall thinks Emerigon's reasoning is plausible, but- that of Vnl'.n is more satisfactory, vid. p. 645. : ! i Tbt x ' \ n We do ' I- n (0) it la lawful to lend ■ i than money at nmritinu , ., . i ubt th it men h mdize . m be the maritime i 'J*:. luire . i ', 1111 ii j that the ( m i ts k ;it should be d< 1,\ weight, number or measure; and that that ;i< h a nature, accoi torn of the ; med, or be int< ■ who I ili< mdition i d a maritime interest in urn of the ■ 1 thier, dj says, u in order to form a< of maritime loan, there sh mid be a sum of ni borrowed by one irom another, OD dons spe- cified in the contract. It is not n. nothing . includes that of mutuum,* to which ib rcsiorcd ..icJ in o;.: :it by Maritime LoaYis. 139 added an agreement, by which the lender takes up- on himself the risks : he may require all those obli- gations which are contained in the contract of mu- tuum, that is, of all those qiue pondère, numéro et mensurâ constant, et qua uni connmuntur.(a) But i.£d e it is not usual to lend any thing except money, in a reb - cred - maritime loan." I have mentioned already, (b) an Arret concern- bçX \l ing six dozen skins of Morocco Leather which dec. 6. were lent in this manner. They were estimated at 270 liv. This valuation would operate as a sale against the borrower, who, by this means, would be considered as having borrowed 270 liv. upon merchandize purchased by him. We are now prevented from modifying this con- §. 2. u.u- tract bv particular agreements or even from Uniting: on be " i » * ,*5 © tweeu tne others with it of a different kind. In contractu mu- contract tui, extra ullum labem usurariam, concurrere vel ac- ofman " ,. time loH-îi cumulari possunt alii contractus, sen paacta, dummo- au d those db justa et licita sunt. Et pro-ut similiter sequitur °J a dif " • I • •*• c^ r \ ferent in cambm maritimo, arc. (c) species. c Casaregis, dis. 201. n. 3. (Supra ch. 1. sect. 6.) In the year 1756, the widow Floret fc? So7is, own- ers of the ship la Marseillaise, Capt. Eydin, sent her on a voyage to St. Domingo. With a cargo al- so belonging to them. Previous to her departure, the captain and his officers subscribed an instrument of writing to this effect. " We acknowledge to have received from Floret &° Sons, owners of the ship la Marseill ise, the sum of 11,000 liv, in a fifth part of the cargo of the said ship which they cede to us, amounting to 55,000 liv. by the invoice. which one gives to another a certain quantity of the k'nd o! things that is given by number, weight and measure ; such as money, corn, wine, &c. on condition that the borrower shall re- store, not the same individual thing he borrowed, but as much of the same kind, and of the like quality. Vid. inst. quib. mod. re contr. obi. 1. 2. §. 1, & 2. ff. dc reb. ered. 140 in 1 \ ' i r ou .s w c 11 tlu said sum <-l 1 i< i sum I i liv. w In- h ritii i • which I / f W «S ■ \ the I tlu S4 a, and for tl • i.i maritime 1 •: sohdum h for tla.- othei ." The ship arrived al I I, whence she went to tl The outu produced 1 to the orders of his owners, tin . | .■ ! In hi- to the amount of 49795 liv. 1 ! : . 1 1 r i \ < ( ! in \\ h'k h the k main Uv of th n is had b I»» d, only two arrived in Frani i . I captured by the English. 1 seilloisc pi ... < )T which, 1 S fa the < api un and They the captain and s m n:t (! ' • on i In . i apitaland ma- ritime intui St dn* from the in. the difference. . . • £• 9889 Thej prop ied the same mod< of adjustment as to tlu- other two ships which h in port: and they said that the I . • irrs ht to be home equally between them as pari . n lo their respective interest / ' Sow contended that 1 ' ' biff, . I interesl Maritime Loans. HI came due and that therefore they were entitled to retain the 15468 liv. already paid on account of the 20,000 due to them. On an arbitration, an award was made by M Bres and myself, March 11, 1760, which, " consi- dering the demand of Capt. Eydin and his officers as legal, decided that the risk of the 11,000 liv. which were the consideration of interest transferred, as well as the maritime interest thereon was to be apportioned between the Marseillaise and the other fifteen vessels. The whole in proportion to the merchandize shipped on board of them for the joint account of Floret &? So?is and those interested with them, according to a proportional account to be settled between them, having regard to the mo- ney lent, and the maritime interest, on the one side, and to the value of the return cargoes of all the ships, on the other." An arret, confirming the award with costs, was pronounced by the Parlia- ment of Aix, in February 1762. In this case, if the contract of maritime loan had been simple and unmixed, the capital of 11,000 liv. and the maritime interest would have been due to Floret fc? S'oîiSy upon the arrival of the Marseillaise, although all the returns had not been laden on board of that ship. But here was a contract of maritime loan subordinate to a real contract of partnership be- tween the owners and the officers, in consequence of which it ought to be regulated by the rules which are applicable to both species of contracts. It follows, from this case, 1st. That every thing may be lent in a maritime loan as well as money. ( rtVid ', 2d. That this contract may be united with another, 12. 8 ect. and that it is susceptible of any modifications which 9 - §•■*■) the parties may think proper to make, fa J Jean Joseph Marseille, Innkeeper, furnished for (he use of the state room and kitchen of the Ring's / ; \ nô valuation th whi I' ■ t who entin va] < .1 t m r» ;!, him I : il\< ship .nil !.i unladi hi I» risk slt.ill ! hit Im! I I H hi' Il ■ tli- valuation and in • on I the L 10 per cent :iths the di ! ii;., thl t.iki s upon luiuM If ..II tin j) \; Guis and Remuzal insured 800 liv. on the uteri bj the order of M od for his account ( ). the L5th April 1761 the ship departed from 1 irsued b) the English she was obliged to run in to Oran, and afterwards : I wluncc, after a long abseno d I I I'm. .1/". - :!lr filed inst Finely praying the restitution of the uu nsils and , • . ; i .•li m 'he \il law, ami in whether h< I from i r] part owiitr*. .■.•:. i . ■ . it often happened in It -ornent let >>ut sh pa <•; •■■ •.Ki chant's se: bave Maritime Loans. 113 which had been lent at maritime risque and also the stipulated maritime interest. Pinal declared that the voyage had been broken up by vis major and abandoned. Marseille filed a petion against Laval, his assurer en assistance de cause* to the end that, if the abandonment, made by Pinel, should be admitted, Laval should be condemned to pay the amount insured. Laval replied that there was no ground for abandonment and claim- cd a return premium from Marseille and from Guis and Remuzat who had effected the insur- ance.f On the 22nd December 1764 a sentence was ren- dered, which "considering the petition of Jean Jo- seph Marseille as legal, condemned Pierre Pinel to restore within 24 hours to Marseille all the uten- sils and plate, which Marseille had lent him at ma- ritime risque and which had been enumerated at the commencement of the suit. Otherwise and in default of returning the aforesaid articles, hence- forward and without another judgment being pas- sed, he should stand condemned to pay 1043 liv. S. s. the price of the aforesaid articles, or the price * These words taken according to their literal signification, imply a proceeding similar or anologous to aid prayer at com- mon Law, but the preceeding which they designate might be more aptly compared to that of Voucher to Warranty, or per- haps nvght be in some measure assimilated to what is called a Bill of interpleader n Equ ty. In this case it was making the Insurer a party to the cause between the lender and the bor~ rower at maritime risque, on the ground that the lender, who promoted the suit, was entitled to satisfaction from the one or the other, and that the court might decide who was to make it. It was bringing before the Judges at one v;ew all the con- tending parties and their respective claims on the same subject that they might be enabled to do full and final .justice between all concerned. f 1 hat is to say from them or some one of them, or that they might be condemned to pay the return premium, jointly and severally. II! / lid hut | ;il t! ' il i; ..i l i lK ' tlif sa ni P'.ncl v. . ' the delay, with ■ lus Ixxl ! with i • rd to l 1/ thirds ol tin ; n nûum of tl I tin return vo] * its, Mid iî»t hib Lx days; and 1 thîa ; tenu contm< n and t G nui/.. il, I and int • on against th< ir bodies ; 1 1 1 c- r th< cl w s. And w ith rc ; .i"! to Uw |>- tition < illr 9th April 1762 in aid oi th / i, dismissed the Court :md r.ncl ib tond' ta.' 1 Vpp ils a this sentence to thi Parliament \i ., wh 28th of June 1765, rendered an Arrét y on th< port of M. di M< as, by w hich red l< Ion w m< ni the ( ut decreeing on the petition ol M the 17th ol Ma) L 762 ordered thai mari- time inti n->t or premium shoul id to bun bj Vmcl but theamounl of t!»'- pn mium which Marseilles was adjudg» d to pay to Laval 1>_\ the- first sentence — 1 i ; this pari of the cause, to pay hib own costs — As to the appeal / t M rset'iù r, and b) Man 1 val, the court dismissed them, and affirmed the tenceof thecoi it below, condemning Man i" pay the usual fine foi appealing without < And lastl) d< en 1 1 March 1705 colli in aid i Maritime Loans. 145 the court ordered this arrêt to have its effect against Remusat and Guis, jointly and severally, and con- demned Pinal to pay the costs of that part of the suit. We find from this arrêt the principles of which a infra I shall endeavour to develop hereafter (a) that any ch - 1I ( ; other article than money may be the subject of a *, 2 . " maritime loan : and that it is even permitted to sti- pulate that the lender shall continue to be the own- er of the articles lent and at his risk. This last case embraces two contracts, which being united, form a hiring at maritime risque. My brother was the advocate of Jean Joseph Marseille, t ( il IPTER \ i. I not i M h itim< risk i . tin « ■ •< m c ol the [t it nc- ; then that (hi the pui : w bi h !. It it be not so employed, I risk ; I foci l iK parture ol the sh to < in umstani es, to I  the contract; but the risk bein commenced, the < ontnu t should ' mm* stances will warrant. SEC TION I. a return m conscgt then being no risk. j il: The maritinu interest is the price of th If then has been no risk, it is • I I ! II not a evident thai ttim< interest is du< to the ten- der.* M. 1 , " suppose there been no risk in consequ the \< laving 1 i broken up ? in tin r would h - »• to return the money lent to him; but he would not tx oblige d also to pay the sum which he had promised, by way of maritime i: the maritime interest being th< pri of the risk which the lender ought t" encounter, be would not aided to maritime interest for the effects upon shall 617, Maritime Loans, 1 47 which the loan was made, if they never had been at hazard : and he cannot be entitled to the price of a risk, who never has incurred it. The condition that there shall be risks to be encountered, is one that is necessarily included in a contract by which the borrower has agreed to pay the price of a risk : tacite inest ex naturd rei in obligationem deducts" The Italian authours do not admit the non pay- §. 2. it is ment of maritime interest except in cases where Jjl"^™" the voyage has been broken up by vis ?najor before that the the commencement of the risk. Se per sorte il re- borro ^ r fj is unable cevitore non potesse, per alcuno accidente jorzoso, or unwiiu far impiego alcuno, overo navigare, non è dovuto in | t( ? Futile accordato; perche si accordo à quelle content' goods pkttioni. (a) a Targa, cap. 33. not. 3- pag 141. Casaregis, (b) after having said that the borrower, * disc 62 who voluntarily neglects to employ money borrow- "' ed, owes the stipulated interest, excepts cases where the employment has been prevented by an unforeseen obstacle : hoc non procedit in casu, quo cambwtarius propter aliquod justum impediment turn à se ipso minime dépendais, mer ces oner are non potuiset. Tune enim non potest cogi ad solven- dum cambia maritima. This relates to the clause voto per pieno, for which, see ante. eh. 1. sect. 3. \. 3. With us it is different, excepting in cases of The bos - fraud, of which I shall treat in the next section; ™^ e . and it is certain that, in the same manner as the tract and assured, the borrower may retract and release him- ^'"on- self from the obligation, without the consent of the tract by lender, either by breaking up the voyage before J ,sowu the departure of the vessel or by not putting any thing on board. There not being any peril, the contract cannot exist as a maritime loan. The borrower has a right to say to the lender, I hud a design to send my vessel to sea, or to load her / I w ith in< n li tndi l d It nu to do tl i rowed money ol j ou. I hat i < h m] ■ <1 m mination: I sh ill nut vml im m - I to I II nut load any thing: I. I iwcd From j ou 1 03 - . this vo) 11 w hi 1 \ oui mom j ': lia vc been < mployi d, m %r< w ill tak< p] .■ , I will satisfy you. fi 1 idem /'■ unatur, ") 11 \\ « do not make any diffère™ borrower in a maritimi loan, who h h m his powei to load the ship and him who could do it. L< 1 i!h lend< r h bed nun I faith, su muai alwaj s n 1 ur to p For tlv solution of ;nn question on the sub- ject: For the nature of the con:: u< h that the lender could not be entitled to anj maritim< fit, but as fer as he has incurred the risks to wni< !» I is subject. In the case- of not lading 11 • the- vessel he has run no risk: and then [thru profit can h,\< Imii earned. Whether tlu borrower was c^/c to ship is of no queuce." {h) c n. 39. M. Pothier, [c] holds the ' maritime profit,' 1 he says "is 1-"' 1 th< len- der, even in when tin voyage has been bro- ken up by tin act of the I For, let the i what it nuvj , it is enough that thi broken up; the lender has run. no risk, which he would be entitled to a maritime into and cannot demand the price of a risk which Ik il." The 15th art. //. t. speaks of a borrower who not shipped to ; rd, and leaves to th< the dis] - where the b< ' his intention, relinquishes a projected voyaj Maritime Loans. 149 Valin, (a) considers this article as if it had said; ° dloco « If he who has borrowed at maritime risque shall not have shipped goods to the amount &c* It follows from this principle that where the bor- §• 3 - Th e rower is unable or unwilling "to ship goods to h"™" a the value of the sum borrowed, the contract, in maritime case of loss, shall be diminished in proportion to f^'l^in. the goods shipped, and shall only be valid as to merest ap- the surplus, for which the borrower shall pay in- pears ' terest according to the custom of the place where it was executed, together with the principal : if the ship arrive safe, there shall be no more due than b Art 15# common interest and not maritime interest on the h. t. [Va- excess above the value of the goods shipped." (b) lm I6, J * In order to understand this passage, recurrence must be had to the 15th Art. of the ordinance quoted by Valin, and to the 14th which immediately precedes it. They are as fol- lows. Art. 14. — The shipper who shall have borrowed on his goods at maritime risque, shall not be liberated by the loss of the vessel or of her cargo, if he does not prove that he had goods on board to the amount of the sum borrowed. Art. 15.- If however, he who has borrowed money at ma- ritime risque, shall prove that it was not in his power to ship goods to the amount of the sum borrowed, the contract, in case of loos, shall be reduced in proportion to the value of the effects shipped, &c. Valin, and with him Emerigon, contend that the wovds of the Ordinance that it was not in his power to ship, must be con- strued that he has not shipped^ whether the omission was occa- sioned by a superior force or by his own caprice or neglect. But the anonymous commentator on the Ordinance, who wrote after Valin, and whpse work, was printed at Marseilles in 1780 in two duodecimo Volumes maintans against him that. the text ought to be taken literally, and that Valin's construct ion militates with the clear and express terms of the law. From tliis it would seem to follow that the doctrine of Valin and Emerigon on this point is an ingenious theory of their own, but that the ordinance of France is conformable to the princi- ples of the Italian writers, which they so strongly disapprove. An < II. <■ we find thai th os a maritime loan as far is th' time risk : 1 I » liv. Ii\ mariûmi 10 'I Kip no i than a moi< tv of thi I . the li ndcr will l shipped, and I "• him the balance, with legal in- terest* If I i the wholi pi in< ipaL - - £ M i [time inl i the mi h t) - £. Ami it the loan had I" i i mad I hould b paj him legal inti n to tli' custom of the p] the Oth* I" i. ... M. Pothier, (a) says that i risk, with- out the fault of the boi 1< gal inter, st but from tlr Fad the money to I - n tun d. 1> it this opini variance with th 15th art which par- ticularly mentions the jutti* ! and which, n Hi- ding this circumst him to ■ Throne As to t M. Valin* "would I remium the onto- rower, in a case where th lender had insured his • The passape in Val n, to wh'n ii our authour n : fellow*. " If the shipm not been made, the contract of maritime loan x-, filcno jure re» tectum the daa e ( 1 5th) in the inte- rest or exchange for .: the loa- I would q Maritime Loam. 151 capital and the borrower had failed to load by his own fault." This is just. But if the vessel was prevented from being laden by vis major , it is suffi- cient if the borrower return the capital, with legal interest, from the date of the loan. SECTION II. Of a fraudulent Borrower, " Too much money (says the Guidon) being bor- §.i.'Whe- rowed by maritime loan excites a violent presump- * er Jjj*" d tion against the master of the ship that he has been me d a- instrumental in her loss or capture : for, as in eve- § ainst the ry business, whether by land or sea, the object and w i 10 bor- end of traffick is profit and gain, he could not un- r ™s be- dertake a voyage with an expectation of gain, who Eres? became a debtor before the commencement of it ; It is therfore necessarily to be inferred, that he might contemplate some accident that would release him from those debts, which, by acting honestly, he could not pay upon his safe return» Such being the facility of abuse, we may attribute more of the ruin and loss of vessels, and the pillage or capture of merchandize to this cause, than to the perils of J^jJïï. the sea. This presumption, with the slightest c h. 19. proof that can be adduced, shall subject the guilty art « ia to death.* (a J half per cent on the premium (of insurance) against the borrower who should not have shipped the goods through his own fault or neglecf, in case the lender had caused his principal to be insured,, as the Ordinance permits him to do ; for it is easy to understand, that the Insurance having failed the Underwriters would in fkal case only be entitled to one half fier cent for h:s signature.'' 2. Valin 17. * This is carrying very far the doctrine of semi plena proba'io. / ( ( ■ . iniitHiM I I th< . mount b fn m this ti; .. ho has ! Ins mti n s !, must rebut the presumption fraud and j rovt his inn* ^ i:. M. Pothii ■ . lys that fraud is m that "the borrower should b I wtt- i\ in his justification, and we should l>< sati if he allege an) thing plausible in I \ s j rule it is true that hand is i, pre- sumed, but in this case the right of pn sumpti iblish< (1 b) the ordinan . w hi( h that the borrower should justify himself. Hi is justified, if ins' equipping, fori tin departure ol the ship, hi declare that the plan is relinquished, (in whole or in part;) but if lie T\ ;; i t until the ship Ik n tu.ni; to return the money, it is ver) su > and his justification ought I , in order to use him. Tl. ' ■;. li. t. "forbids persons to borrow by "]-^ n t in upon the hull and keel of the shi daient upon the c< d their value, under pam of d, in © sole ithstanding the ■ the r who has fraudulently «an beyond the Maritime Loan*. 153 lue of the thing at risk must repay the whole sum borrowed, notwithstanding any accident. The aetion of the lender, in this case, is confined Must he to the demand of the sum lent, without a claim of g^eST maritime interest, because he is not affected by the tetest ? loss, and he has not encountered any risk of which maritime interest is the price. Such is the opinion of M. Valin. ibid. This authour contends that this being the case of ?r lagai^ a penal law, which is always to be construed strict ™^** ly and never to be extended by implication, it is usions " sufficient if the fraudulent borrower restore the sum before borrowed, even without legal interest; because he J ^.3. is sufficiently punished by the loss of the effects and beyond the value which he had borrowed. 1 do not T ™- t r êd'„ agree with him. The contract being declared to assuran- be null in consequence of the fraud of the borrower, J| 8 ^ it comes then under the provisions of the common 5. law, which allows legal interest, (a) Captain Francis, of Goa, was the owner of six shares of a vessel called the St. John Baptiste. He borrowed 3,300 livres on the hull, in the place where the other owners resided. The ship was wrecked. The lenders demanded their money because the captain had borrowed more than the amount of his interest. A sentence was render- ed on the 31st January 1755, which condemned the captain to pay the 3,300 livres, with legal inter- est from the time it zvas furnished and costs. If the ship arrive in safety the fraudulent bor- If.tbe rower cannot avoid the payment of legal interest. '^Ys* a His deceit imposes silence upon him and he is not fraudu- allowed to demand that the contract be rescinded. (/>) JjJJjJj^J time interest ? b Emerig. Traite des assuranses ch. 16. sect. 5. pay mari» In such a case the owners would be obliged to pay the money with maritime interest for sums bor- U rowed by i b t in the t( .1 his • ta and tl ' l"in .it It .r>t until tin \ abandon the ship and : In tin i tli ch iptci l in the i , of R ,,::.. TlK • •: .:..' I W ■ s liatcd there, romand . ipl i Du sailed ; >m IV \ • n\. .I . • M -, Th ■ •• d > ! ' ■ II isscau. / the rig on a voyaj lertaken tli or iIm win it and return I iM i ill< s. Tl li :; M . illis and ..rriv< d at Ail« *. The affiûri Durand being deranged, he was diimiurd the ship by the <>•. . . . /; fil< d a r* tition in the admirait) \i\et -i; ainst Durand claiming the 200 livres with maritime interest of two per. cent a month, and legal interest, it' the captain would not immedial pill to s, ;.#■!.. r M ■ • tiles and i nd hi H( also prayed that the i>» of the judgUM which might I red, should be declared jointly against the owners' also. On the 20th December, 1765, n sent ed, which condemned Durand to paj the livres borrowed by him, with one half of the mari- time interest of the place and interest since the demand and costs. This sentence was du Ian d to be common and executor) against the owners, as such, but to be executed' on the ship OTjl) or its proof eda»* ' 1 hat is to say, that the sentence was given IgMMt UV eaftain and awnen, merely a:> such, and tac subject matter Maritime Loans. 155 The owners appealed from this sentence. They contended 1. That the bottomry bond being secret, it could not effect them, according- to the Arrêt re- ported by Duperier, [a) 2. That all the victuals a torn. 2. and every necessary expense had been furnished by P a s- 5 ^- themselves. 3. That the captain had not taken the advice of his officers. On the report of M. Descrottes, an arrêt passed the 26th June 1767 which confirmed this sentence. By this arrêt it was decjded: 1. That a secret bot- tomry bond executed by the captain, and in the course of the voyage was not less binding upon the owners than if it were publick, because it was .oc- casioned by the necessities of the ship. 2. That the consultation of the officers is a donjestick form, in which third persons take no part. 3. That the own- ers should pay not only the principal, but maritime interest» Nota. The whole maritime interest would per- haps have been adjudged to Rousseau if he hatf en- tered a cross appeal from the sentence. The ques- tion on the subject of legal interest was not agita- ted, nor even started, on account of the smallness of the sum. I shall remark hereafter that this* sentence was ir- . regular," inasmuch, as it condemned the owners merely a€ such, and awarded execution against tlw ship only, or because as they had not abandoned the vessel and freight they were personally and ab- solutely bound by the acts of the master; but Rous- seau, who had the whole ship as - a fund of pay- ment, was not very anxious to correct errors, which did .not operate to his prejudice. being a bottomry, the sentence of course, could be only execu- ted upon the ship, though nominally, it was against the own» Ips end master. 1 '<<- An I • SEC! [QN III. Proof I 'l,i SI, *• ] 1 ;- on who shall havi borrowed me - 03 maritime loftn on . sh.ill not be rthased from bis contrai : by (fie lots of the ship, ank e * prove that he had goods on hoard to the amount of the- sum borrowed." M. Valin, b) observes thai in such i iht proof of property should be the i » sam< a i m casi î of bisuranci . c J *'• ' i • -. i id. il. '■•• It suffices if the borrower prove pi ' ' " 1 r 1 l I ' "l I ■ to ran ibe to ">e Bmotint ot the sum borrow < d, w ithout DCUlg : obliged to run the risk of the tenth part; for b or ro ws the tenth? ., , , , part, o crs frequent!) are mi n ol no fortune and nave ] a thing but their industry u> depend upon. We must î,..-. te. not, then, be misled, by the opinion of Tarera, (' correspondens sorti ad cambium data. Et hoc com- muniter practicatur absque ullâ controversid. (b ) Must he From this, it has often been contended that it is ïhaTthc lawful to borrow when the thing is already at risk, money and that in case of accident, it is sufficient to prove USshedT" that the subject of the risk was on board when the before the loss happened. It is so as to Insurers, but not as me^cedT to lenders at maritime risque, who cannot be con- sidered in that character, unless they have made a loan to effect the equipment, to purchase the car- go or to supply the necessities of the ship during her voyage. The nature of the contract and good faith will not allow that the interest of third per- sons should be injured without a good and lawful cause, such, for instance, as those of the lenders for the equipment of the ship and furnishing of the cargo, which would be thus injured by a con- current and not equally meritorious claim and those An Ea ■In- Insuit rs, \\li<» b Id be de- 1 pi m (1 l'\ .m intruder oi thi n of the vcdi ttj The proof <»i the appli lion ol i U nt at maritime risk is nevei thn vn upon the lender. It . ition < : is sufficient Foi him to exhibit the m who has received his monet cm* his agent. " ' ■ \ / tit not he oola pn tto I camotutri, ■ :r, mffidt. (h) i %. .'. 4. • ■ CHAPTER VII. Of the risks. Cleirac, fa) ' says that the .contract of maritime * Notes loan is subject to the same risks as the policy of don^i* Insurance. Vai^n, (b) and Pothier, (c) adopt this mer. ch. rule, admitting t he exceptions to which it is lia- i^Sî* ble. b art. 11. h. t. and art. 6. tit- des assurances, c n. 16. h. t. In the present cha pter I shall endeavour to make some general observ ations respecting those risks which are borne by t he lender in a maritime loan, and I shall reserve for the 1 1th chapter those which relate to the annulling or extinction of the con- tract. In that chapter, I shall also treat the ques- tion of abandonment of the thing upon which the money has been borrower 3. SECTIO N I. Losses and average occasioned i by the perils of the sea. The Guidon de la Mer, (dj c decides that mari- §. l. sfrfi. time money does not contribute , to any particular P le aver * average. i ch. 19. art. 5. This decision has been adopted hy the ordi- *-t* nancc.(e) " The lenders at maritime risque, shall h ' tp mot contribute to any simple average or particular 160 An Essay on damage which maj happen to the mci chandiz< unit is a stipulation to the cou: ,\ ' Thai, in order to d • th* lende* / with perd- ( ular av< rage, tin n must be an i . , rn< nt m tli.it ( t r < . t, whilst tli- m- mi, r is » j\ , n - trit)iit< , if lie i •< i i' d hi gn , , t u . ( six - i mi clause to the contrar) ( a) An • 1 . HI", to Ml] .j n jr " ,iU of this difference. He sap thai c< the insurers bind themselves to indemnify the ii sured, loss and injury which their prop e ily ; - ifier from the perils oi tii<- sea; !" iT , in ., nmnûnu loan, the lender inters into no obi ration to the bon <:.' We may add that th safe arrival of tb \ is the essential and characi eristics condition <>\ the latter contract. Now, sin iple average has ik> influ- ence on the accomplishnu r ,t of this condition. The lender, therefore, is a st amger to it, unies made himself liable bj a special agreement • loco. ^ M. Valin,(c) appears t., be surprized at tiii, vision of the ordinant • •. n, observes that " mari- time loans would ha-. , abolished if th-- 16th article had not perm' itted persons to stipulate that tlie lendei should t ontribute to simple averages. Therefore, says he ( u: . see ,, (J borrowers who do not provide again: ,t the effect of this article, and who do not take « :alv ro i;is^it a precise clause, by which the lender ta kt S U j )OI1 himself all the risks and perils of the SL - a< ' m the same manner as an in- surer. I have ' K ver s en such a clause anion;; and the lender 3 (] uo t contribute to simple avcr- • By the law ^ ] uJ. • upon a bo; tom . . /; . • ■ ted in Park 431 and ? ïa-sliâll 655. I !. - point a average is ado ^ e< j |, v j. o;t i k 'hall^fcu. 1". 11-^43 ,. Ys observation» on tiit se cast 21 (intime Loam. 161 ges. Excepting in those cases, where the aver- a via. age being- occasioned by the unseaworthiness or yV^J' stranding of the ship, the borrower is thereby 1. §. 5. prevented from fulfilling his engagements.(tf) The Guidon dc la Mer,(b) says that "bottomry § 2. gross . , • ■ average. money must contribute to ransoms, compositions * and jettisons made for the safety of the whole, and ir c t . 5. for the release or avoiding of dangers." The ordinance, (c) also decides that u the len- c a,t. ffi. ders shall contribute, in acquittance of borrowers, h - u to gross averages, such as ransoms, compositions, jettisons, masts and cordage cut away for the com- mon safety of the ship and cargo. " What is the reason of this difference between simple and gross average as to the lender? I have already explained it. It is because simple average which is occasioned by accident and without the fault of man, contributes nothing to the fulfilment of the contract and the safe arrival of the vessel : on the ? 4- 1 - • • 1 insc - " e contrary, without the aid ol ransom or jettison tlie bu g . ship would never return. If, then, a person has i 11 * «i"**" 1 incurred an expense or voluntarily suffered an in- tra6t . L . jury to save your contract and to make it advanta- 2 et 9. ff. geous to you, it is but just that you should contri- g est. eS °L\ bute towards his indemnification. If you refuse to 3. « 5. ff. submit to the action negotiorum gestorum impetrat- ^0*1'" ed aerainst vou, expose vour vessel once more to Domat the rapacity of pirates or the impetuosity of the \£ \ m ûit hurricane. Qui utiliter gessit negotia, dominum 9.] habet obligatum negotiorum gestorum. ( dj M. Prevot de la Jaunes, (t) says "the lenders e Princ j; ought to contribute to discharge the borrowers from [unspra- gross averages, such as ransoms, compositions, Jence jettisons for the common safety of the vessel and ti [.*20^ cargo; for it is no more than a loss that they suffer 556. W /• / ■'ic |u< ! i .1 their morte) . which, v, il ihis might h.i\ < perished w i 1 1 » the \< ss< 1. It is evident thai the words ij there û no ttipu- , i< late only to the - ! part ol 'In Loth arti< le, in whi< 1> simple av< ra i is m w iii< h it follows, that .i 1< ii' he sh.ill i»< - •.' mpt from This is th< opinion ol Valii and ol ] Su< h rt< m< ni is absolutely void and ought I i be rejected, because it is h . i\ to natural equi even to the interest of the lender, to whom ever) thing would be lost, if tin \ ess< i pt rish. The Bame reasoning would not apply to the in* surcr, because he is a fidejussor who is onlj res- ponsible for risks embraced b) his contract and to whom such an exception cannot be otherwise than favourable. t In 1776 captain Jean Baptiste Joseph Reyne t commanding the Heureux Joseph borrowed a! ma- ritime risque from Jean Baptiste Scipion J > 16000 livres. It was cumulatively on thi vessel and ds on a voyage out and home from the 1 m » h West- India Islands, at the rate off 15 /» r << w . fret of aver ag\, , II borrowed 4000 livres of M. André ' i\ here n|i.ir> arc ordered by the underwriters, for the 1>. .ii.,. < i whi( h a bottomn bond is given, and they refuse lo pay it on the arrival of the vessel, in conséquence ofwlurh ibe is sold, tlu \ aie liable tor all the dam.. to the ou ni' ii i on equem e of that refusal. Where a ibip baa repa red, the underwriters ..re not em tkd to the usual deduo ! one third, '■ ■• for old, unless Lhe ship has been put intQ tlic free posses • V\ here a ship is o- bli^Ld to put imo pi> rhofc c once rn, the Mid unloading the cari^o and tak ng care of it, and the »,i -.men hired for the repairs, beion., . .. . j . I ... \. AfewnAoas, 2. T. R. v 7. t Marshall 65S. Maritime Loans 163 Vaille, on the hull and goods of the same ship, out and home, at 15 per cent. free of average and a- bandonment in case of innavigability. He insured his ship and cargo, with a clause free of average, 8(c. The ship arrived in safety at oN^artinique. He set sail to return to Marseilles. On the 29th of September 1777, he met with a tempest, in which the masts were cut away and several other things thrown overboard. He put in at Cape Francois where the ship was declared innavigable. The cargo was put on board another vessel and arrived at Marseilles. Captain Reyne filed a petition against the owners and consignees of the cargo, the assurers and the lenders at risque, praying that they might contri- bute to a common average. Fabre and Faille filed their petitions against the captain, praying a con- demnation against him for the sums lent at risque, with maritime interest and charges. There was a considerable argument whether the clause free of average was lawful against lenders, and further whether it was lawful in Faille to sti- pulate against abandonment in case of innavigabi- lity. An interlocutory order was made on the 15th May, 1778, which without prejudice, "to the rights of the parties directed that the papers and vouchers should within three days be lodged with the register, in order to proceed to the adjustment of the average, if necessary, but that in the mean while the sums due to Fabre and Vaille should be paid without delay, with maritime and legal interest. To this payment captain Reyne to be bound, under pain of execution against his body." V definitive senti ' \ ', which " withoui regarding the petition "I . / r 8fl !<» I lu iiiMip : . ■ :, !is- i li. i: -r s th. m From the proo i oun * ts, 'iid considt i ing the other ] ion as |nst, decree»! l st. Th tribute ■ a» the vi rl the li < i « aptain /.' m . w ith < osts. - L l'h« insi tli- l.D.l . .;.• to i contribute to the gross and ■ simpl< e, with costs» i d mment at the Cape, bj th< lSili N';\( n.iii r 1 777, 27th Jul}- 177.-.. Tin decisii n of the i l» : - | in f ' / • ■■■ i I ; . | : ;!,. amount sum lent with maritimt and legal interest, ib nounced to be definite M» Pazery being consulted upon thl b}' the lenders, replied, that the clauses Jreejrom average and abandonment in cat t nnavi nty were void and Contran to the ordinance. I sequence of this opinion, the lenders submitted to the sentence The Insurers on the hull, against whom the abandonment had not been j ited, also acquiesced* § 4 a- In my treatise on tnsurai .e seen -, T.vmcnt t j t | nsurcra an permitted to specify the- risks tli a' the ' i • lender which the} will bear, and to exclude others, lor J*"jj on,y which they will not be responsible. The Italians t-.„ adir.it a similar clause in their bottomry bonds. (6) risks. a eh. 12. S'-ct. 1. U Casar. » n. I. et scq. rcit 39 Targa (r) disapproves of this agreement; and it ' i: ' rI \v(u.d not be allowed by us, notwithstanding the opinion of Pothier, (dj to the contrary. He sa} s én n 4 that "th< lei ders b> ar all the risks which i h. t. cified by the ordinani i ng those winch are atl- r ■ excepted by express agreement Maritime Loans. 165 I have already observed that the safe arrival of the vessel is the essential condition and character- istick feature of the contract of maritime loan. Consequently it should be preserved scrupulously. To make the contract lawful the money must be used at the risk of the creditor. Periculo crédito- ns naviget. (a) If the ship perish before she ar- a L - L ff - rive in port or previous to the expiration of the li- f œn . mited time, the condition has not been performed and consequently the expectations of the lender vanish. This is the reason why the 11th art. h. t. decides generally and without exception that "eve- ry contract of maritime loan shall become void by the entire loss of the thing pledged in the loan, provided that it happens within the time and place of the risk." It is sufficient then that the entire loss shall hap- pen within the time and place of the risk in order to render the contract void. It would be intolera- ble if the borrower, after having lost his property, by an accident, within the time and place agreed upon, should be obliged to pay the whole principal with maritime interest, under pretence of an agree- ment which was radically void and usurious. Ac- cording to those principles the sentence of a 3rd. August 1779, which I just cited, paid no atten- tion to the stipulation of André Vaille^ which made him free from average and abandonment, in ease of innavigability. Assurance is a species of fidejussory security. The Insurer, therefore, may specify the risks which he is willing to bear; but the lender could only claim . his principal in case of the safe return of the ves- ç r \, ch? sel or of her safety during a certain specified u - sect « time, fbj 3 ' M. Valin,(c) observes that the contribution does $- 5 - In not become, ipso jure, chargeable on the money maîr.e* tender contribute to ransoms and gross average.' c art. 16. pag. 19. shall th« \66 I on lent, to the diminution of the mari ti mi int< Th< deduction is onl) chargeable from tt* di) thtl il,. I(iid(i has refused to paj the contribution. , This authour adds, thai it is tu how mm li "i ili« « ontribution ought to be paid m the other cases mentioned in th< 16th article and In- ch 11 quotes a sentena rendered on mi repori m l. ■ tli. . IK uni * of win' h I " I'' ». A ' il i< (I ,.• . I shall treat, <>i a contribution between the borrow» r and lend< r h» rcafter. SE< TION II. In gâterai, the lender* only bear the risks oj the sea. il The The 11th art. h. t. decides that the COnt oniybeu sna ^ become void upon the entire loss of the thing, •> which is the pledge in the loan, provided it hap. , by accident, within the time and places of the risks. It is the n certain, that the lender bears no other ' risks than those of the SCa. Cr ' wbit pcricu- lum navigationis, in castbus Jbrtuitis tantàm. (/») To illustrate this matter the ordinance adds that,(c) "nothing shall be termed, an accident^ which happens through the internal defect <■! the thing, or the act of the owners, master or shippers, if it i s not otherwise agreed in the- contract.'" i n . The lender is not responsible for accidents whi< h may happen from the internal defect of the thing: as if t!, ( commodities rot. if the liquors leak out of the casks, if, from length of time, dry Lfnods get heated, or if the vessel become innavigable by age. Maritime Loans. 167 M. Valin, (a) seems to disapprove of the clause a ib]d - by which the lenders make themselves responsible for the internal defect of the thing ;* but there is nothing to prevent them from bearing the risk of a defect to which the thing may be liable in the course of a voyage. It is allowed by the 12th and 16th art. h. t. (all that I have said in my Traité des assurances, ch. 12. sect, 9. and 38. may be applied here.)f According to the 12th art. h. t. the lender is not $. 3. a responsible for any accidents which happen through t , „ i ^ p " the acts of the owners of the vessel, the master by the act and mariners or shippers. It is not, then, a peril ot m in of the sea at the risk of the lender, if the voyage be changed by order of the owner, or a loss has happened by barratry or the fault of the merchant: si infortunium* vel naufra&ium ex culpa debitor is , „ processerit, tunc creditor non tenetur de periculo et de navib. damno in quod incurritur exculpd vehentis, aut al- not - 51 - terius. (b) But, according to circumstances, these general rules cease to operate, if it be otherwise provided by the contract.^ If the effects be forfeited in consequence of their £™J«- being contraband, in which the lender has not par- c L 3 c ticipated or of which he was ignorant, he does not de nam. suffer from this accident, because it is not a peril ^; p of the sea: non ex marinœ tempestatis discrimine, mannus, sed ex prœcepiti avaritid et incivili débitons auda- £*■ 4 - tid. (c) pag. 385. Casaregis disc 64.) 2. n. 105 * Marshall, lib. 2. ch. v. p. 651. + Where a ship's bottom is injured by worms in the coarse of the voyage, so that in consequence thereof she is incapable of completing the voyage, and is condemned, it has been held that the loss is not a loss "by per Is of the seas." 1. Ksp. N. P. C. 444. $ Marshall, 654. BlM il th.- h (,i v.. • .r trading ,u ■ • I I ■ ■ w ould fall D| '■ ■••'". fl ir en ut Jut J'-< The peil DJ du 1 - h. t. aniw . il. . ■ l. By the word tnvnert % M. Valin understands the "\\nris(,i tin thing upon which th lent lint tins interpretation is inconsistent tin remainder of tl,. which sj tci or shi . Wi must then taki terms as synonimous, which is not admissible, <r.( TION I. Oj tin contract of maritime loan, an nuire •Hat Tiu 13 art. h. t. says that if " the time of tin- ri^k Ik not stipulate (1 in tin stood i .% menée, as to the vessel, when she- hoists sail, :hk! Continue until she drops anchor in her port ^/'des- tination; and, as to \ H should be laden on hoard of the ship or of the light) rs to I rried thither and continue until I < Mvcred on shore.- According to this article, the voyage an entire ' ■ » Marsha Maritime Loans. 170 which the vessel makes from her departure until her arrival at the port of destination, whether it be out or home, constitutes, what is called, the entire voyage, to distinguish it from the voyage for a li- mitted term. The voyage out and home which is spoken of in a Art 6 the title des assurances fa) is yet more full than and 7. the proceeding and appears to be more analogous b Emeria . with the nature of a contract of maritime loan, Traité which, on that account, we sometimes denominate ^*™* tt ' a contract of return voyage fà retour de voy- c h. 13. age. J* fb) It is very common among us to borrow money Contract at gross adventure for the voyage out and home ^me. whether it be on the vessel or the goods. In this case, the risk commences at the place of equip- ment or lading, and does not end until the vessel c Pothier. has returned to the same place : the whole, accor- n * ° 4, ding to the provisions of the 13th art. h, t. (c) According to the 13th art. if the time of the in case of risk be not regulated by the contract, it appears j,°J« 8 £ that we ought to presume the money to have been medthat lent only for the outward voyage; M. Pothier, (d) net was believes, not without reason, that in doubtful ca- lent, out ses, we should adopt the contrary presumption, J^ e which, in effect, is analogous with the nature of relations, might prevent Litigation and give Maritime Loans. 173 stability to the jurisprudence of the kingdom. Hie labor, hoc opus est.* SECTION II. Contract of maritime loan for a limited time. os- ses which Losses which happen during the existence of the §• L £ risk, are borne by the lender, (a J happen tence of the risk are borne by the lender. a Art. 11. h. t. L. 6. ff. de during naut. fcen. Kuricke, tit. 6. pag. 762. Pothier. n. 37. the exis- But as soon as the time limited has elapsed, the The risk risk ceases, as to the lender, and the maritime in- with the terest becomes due, though the vessel be after- limited wards lost: post diem prœstitutam, et conditionem b l.4. ff. impletam, periculum esse créditons desinit. (b) de naut - part. 4. cap. 4. n. 87. pag. 384. Pothier, n. 36. Valin, art. 11. pag. 13. ten. ityp- mannus, * Notwithstanding the liberal wishes of our authour, whose work the compilers of the Napoleon Commercial Code had before them, and whose hints it would have done them the ho- nour to attend to, they have copied sevility the IJth article of the ordinance, without amending or explaining it as to the important point to which the text refers. Code du Commerce, No. 328. It was expected by many that this new Com- mercial Code which was announced w th so much pomp, would have settled all the points which were left doubtful by the celebrated Ordinances of Louis XIV. instead of which we find that where it is not a mere copy of their texts, there is very little in it to be commended: lionaparte's legislators do not seem to have possessed a spark of the spirit of the great Colbert, and have by no means improved his immortal works by their new Tangled code ; unless it can be called an improve- ment to have loaded the mercantile piofession with new and ignominious shackles, as, for instance, by punishing impru- dence as a crime, and that too, by means of the correctional fiolice, Nos. 586. 692. or to have changed the ancient French expression au marc la livre, into au marc la franc No. 331. without adverting that the marc is full as obsolete at this day as the hire, and that a grave legislatve work is disgraced by this Revolutionary pedantry. / I I lit 1 ■ pin- :. to 1 \ thin R In» ii is in i li« arc! of, is : ■ ii .i iii 1 . .! within the time lmm« « 1, .it k.ist, un- til the borroM ; r proi « s tin ry. (/>) . \ , as tb ;»' i il « omm < abi : I. (c) In [tali . thei som< tin ■ ■ i -i for an unlimited time, without designating toe li (It pends then <>n i ithi r <»i tlx partiel to terminate the contract, when h< thinks id< I ii Ik done al a proper time and under I . circumstances, (d Our money lef\ ipoken of in the ïQth art. h. t. . ii. s s, im n . ition t<> tl» m. The course of tl is not in term p- b) a demui : delà) in port during the route: I" w lu il »<. r 1»< \ olunt d, it is possible ûp ma) p< riah by • ii j .1 .s arc « lo port ii limited for tl. .iand. Fid. 3. J i. lilack, . Maritime Loans. 175 the perils of the sea. (a) In order that a delay may « st yp . suspend the time, there should be an express a- ,^"'4 greement to that effect: but such stipulations arech.2. n, not used among us, except in charter-parties 01 at- 383 ; 6 freightments or articles of associations for privateer- ing. A special agreement is equally necessary to jus- tify a deduction for the time during which a ves- sel is laid up for refitting or otherwise, from the term limited by the contract, unless, from the cir- cumstances of the case, the laying up of the ves- sel be considered as a general average. The law would be the same as to demurrage occasioned by a fear of enemies or pirates. SECTION III. Of contracts for an entire voyage, with, a desig- nation of it, or limitation of time. The ordinance has not provided for the case of sect. 1. money lent/or a limited time with a designation of the If there voyage, but (bj says, that there, the voyage desig- limited™ nated would be the principal object of the contract ami d ç- and the time merely accessory. It is just, he adds, qM^ that the borrower should arrive at the place of his voyage. destination, in order that he may be in a situation b T ^;s a - to pay the principal and interest. We presume I10 t.°i3. that the time has been added, not as a period for i' a ff l46 the termination of the risk, against the lender, be- fore the voyage is ended, but as a measure for the increase of interest, in proportion to the length of time beyond the period stipulated. The question is so decided in matters of insur- ance. " If the voyage be designated by the poli- / I i shall bear th< hole v i!i .; il . T' i ni limited, th< premium shall b insun i shall n I I to n in. I I . tin- first \ icw "t tl ;, . i ;,!( should I Bui 1. the law(A) < . tli.»t till slii ( time lin I I with I I' ought, then, t<» :.s U'hil I I . I .• I j ptions ai that if t! d in the poll I • , ! ; . l. ive und< the | la of the whole \ . ■ tnium ; luit blishi <1 the s une pn sump- tion, i tst the lend i . .1 ■ subject, lend* r 1 the whole \ I lu\c f 12 per cent (m lh\ (nul • r a longer tunc This signi- tinue I months, U tlr ii be dur to the tender, and il . ng« r tinv . the infc all be in' n ased ■•• But ii" the shi] ish, ;•• anj time during th d esign ate d , the lender un to the pnncij it n st c vei six months. Maritime Loans. 177 I have often seen contracts of maritime loan, for Foravoy- a voyage out and home, at two per cent, a month. ^. c % t ~ a In this case the interest is not clue until the end of month. the voyage ; and the amount is regulated by the du- ration of the voyage. But if the ship perish, the lender has no claim. I lend a sum for the entire voyage. I stipulate for Agree- 12 per cent, for the first six months; and I add that ™ n £ s h t at the interest for that time shall be due notwithstan- six ding any accident which may occur subsequent to it. JJJJ'iS The ship perishes after the period mentioned. (•*) — duenot- May I demand interest for the first six months ? jjjjjj. According to the principles which I have laid down, a ny acci- it would seem that my demand is not learal ; for, if dent sub ; . , , J . , ° . sequent to it be true that interest is but an accessary insepara- that ter m, ble from the principal, it follows that the loss of the latter includes the loss of the former, and that such an agreement is illegal. But the contrary is the practice, and we can only justify it by the parti- cular circumstances of each case. First case. During the first six months, the ship arrives, for instance, in the West Indies, or has made several short voyages en caravane, in the Mediterranean. The borrower has made some profit which he might have secured on shore, and remitted a part of it in bills of exchange to pay the interest for the first six months. If he fail to fulfil his agreement, it is just that he should be compelled to do it, notwithstanding any subsequent accident ; — because, in this supposed case we find two sorts of voyages : the first, from the place of departure to that where it was lawful for the borrower to appropri- ate a part of his profits to the payment of the interest for the six months elapsed: the second, from the time of leaving the last place to the arrival at the place of desti- nation. Here is a sort of renewal or continuation of * See Marshal's observations on this case. 6 iO. Y y ViicI 1 I tin umouiit <»l the | i( mi < in his course, 1 belicvi \\< would b< from \ I .i in' i is not bound to paj rent for ground whi< li hai ! rrcnt and has produced nothing. \ .,,::. s that " usui itii rs haï e in- \ ntcd a way of indemnifying then • i h th • • eld< notreturn within the ord time, by stipulating, that, \ i return .. , '• . ,/ month hot li vn tin 1 and li.' cd t«> stipulate for any raU of interest thai I should nu il li due, in return with- in the time limited Bj aconti inv loan hit It II.. i . D 1 .til for im ihc 30th r month, <>n ■ the principal as thi ■ the 1 afores id months.' 1 The legaht; s contested. In fine, th< - which mi put, have not been foreseen bj the Ordlru I j must be decided on general principles. Maritime Loans. 179 In the years 1777 and 1778 I saw contracts of ma- §■ 3 - A - ritime loan, on goods, to go to and from the French fhatTn "' West India Islands. The interest was fixed at so c "e of much per month, with a clause, that in case of war p Vi' n cipai the principal and the interest accrued should be sent andintcr- from the Islands, in bills of Exchange. This clause ^1 be is valid, because in case of war, we may suppose trans- that the money was only lent on the outward voyage. ™*nt of But here I believe exchange. 1. The bills ought to be at the risk of the lender, for whom the borrower acts onlv as an aeent. His si- tuation is not to be rendered worse, contrary to the natural order of things. It is enough if he pay the principal and interest at the time or place where the risk ceases ; (a) it is enough, if, with good faith a Infra- and in consequence of orders to that effect, he con- se< ! t 2 * vert this sum into Bills of Exchange, by the fate of which he is not to be affected. 2. In the case mentioned, as the money is presu- med to have been lent only for the outward voyage, the interest, stipulated at so much per month, ceases when the vesssl arrives at the Islands. I have never seen except in time of a war, a sti- §• 4 - A - pulation that in case of peace, the interest stipulated fhat^n" at so much a month shall be reduced to the usual case of course of the place, on the unexpired time. But if interest e such a case were now to happen we should take as the stipulated period of peace, the cessation of hostilities and be ^ u s c ° h guided by the ordinance of the 4th Febuary, month 1783. (*) shall be reduced to the usual course of the place. * That Ordinance or rather Proclamation is merely for the purpose of fixing the time of the cessation of hostilities be- tween Great Britain and France, graduated according to the different latitudes and parts of the world. It is such as issues in every maritime country at the end of every marit-me war, and therefore unnecessary to be inserted in this translatio 1- / s i ( r i on iv. \ I '1 in tli< / . t ol tl tli< j ils w ill applj The K iu!i r is M-.! ti (1 in tlic « onti di \ iation m< <1 b) i tlu \n nls of tin \ voluntai ii » i iiioii, clis. hargi s the li iiclt r liom \: :._\ ulti i ! L, although thi ihip retui . h< r li gitimat 16. The lender is not answerabfc I f the ship without 1 . other ship than that which ïi > : ! in the i t his ; < >u this su! ■ I' - Uni- rait] in sum for a voyage to the "1 I . on \\u : " tl . B. arrived ai th 1 ith his vessel, w he n he put the el called tir. p , \)\ " \ irtoi 1 from him. H< made N rj , tk i larinj obli- bj superior orders, to quit his vessel and put » on hoard of another, the j : iich •• A ;• on the D " should be, Inure forward, transferred to ■ " dichrri. The Pondicfun i turcdbytlft 9 M Maritime Loans. 181 " glish and the Penthievre arrived at her port. A. " demanded his principal and interest. B. contend- " ed in reply, that the risk had been transferred to " the Pondicheri and produced a certificate from " the East India Company, attesting that the gover- " nor of the Isle of France had ordered the captain " of the Pondicheri to take him on board. To 1 his " A. answered, that the certificate proved no more " than that B. who could not go in the P.-nd'cheri " without an order from the governor, had obtained " the order : but it did not prove that he had been " obliged to go in her : that without necessity, B. " could not, unless with the consent of A. change " his situation and subject A. to the risk of the Pon- " dicheri, when he had undertaken those of the Due " de Penthievre. By a sentence of the Admiralty " 23d June, 1758, from which there was no appeal, " B. was adjudged to pay the money." But if the change of the ship be of necessity, from the perils of the sea, the lender must bear the risk of the substituted vessel. For instance, the first vessel is taken for the service of the king, or is declared unseaworthy, or is wrecked. The borrow* er, whose goods have been landed before the acci- dent, may ship them or their returns in another ves- sel, at the risk of the lender, (a) I ought to re- « In j* rà * mark that the additional freight, which may have s eC t. à. §, been paid to the substituted vessel, is a gross aver- 5. & sec. age which is chargeable to the lender ; and that then' ' ^ ' the party comes within the provisions of the Decla- ration of 1779, art. 9.* * This Ordinance is published at large at the end of the ori- ginal of this work, 2d Emer : 625. But we think it suf- ficient to insert here by way of note the 9th art. referred to by our author. It relates to the transhipment of mer- chandize in cases of unavoidable necessity. Art. 9. In case the said merchandize should have been trans- shipped on board of another vessel, the insurer shall run the risque of the said merchandize until their landing at the place of their destination, and shall moreover be obliged to bear (to ( il VPTEH I ■ . / ' M I .iIk.kK Sj»«»k(ll I interest which uV I x -r i < »w 1 1 must] oand \\ .11 not* inquire in w hal manni r, t<» >m, and at what time and plia Uk sum lent I the maritime ini M.( TION I Is aboi i r 'lc ? A policy of insurance isanegotiabb instrument, . when it contains a clause that th< l<»ss snail \>< \ to the !» arer without ord with rcsrx ct to bottomr) bills ii tfo j / • i fr. 'I'lu it fon iln j i ii- nd dcliv( n d from one to anoth . \ inst rer of such a Mil uc cannot j ■oom and m u/tat plac< hi tin money to fh , Dm When the risk the principal and maritime i IV 11" If 1 ; ot oner m< rcl It the de in tin Vi\ I I di lorthi \a ^ ant. (I in Frani i , tin nv m y stipulât d is valu- « cl in livres 1 1 Ii' i u <>i - tabli ; I. " tin.' di putH i ! the current mont j of tl -, r .s in lh; I Q ■ :i(l)Cl- nicn s. < . I jtlV l | Nation in the port» of tin ichants, el 'ly by the other Frei i;c ; — I ul m his judic al lu • hicli be d Maritime Loam. 185 nois, as well in paying as in receiving. And they shall establish this valuation on the course of ex- change in their ports respectively and it shall be proved by the certificate of two known merchants a Emerig. nominated for that purpose by the Ambassador of j e r s ai ^ s3- the King at Constantinople and by the consuls and ch. 9. vice consuls in the other Islands, (a) * ec ' 8 ' The borrower has received money on the goods or the vessel. It is but just, then, that a little time should be allowed after the arrival of the vessel, for the collection of the freight or to sell the merchan- dize, so that he may be able to fulfil his obligations, In Sweden, it is customary to allow twenty days and the legal interest does not commence until that time has elapsed. Postquaim navis s aha re diet domum, mercatori indulsentar visinti dierum induciœ ad distrahendas mer ces, et conficiendam pecuniam, guam creditoribus suis solvaf, una cum usuris. 2uod si pecunia crédita diutius mane at apud debito- rem, reliqui temporis post illos dies elapsos non am- b Loccen . plias maritimes usurœ. Sed communes usitataque cenius, solventur, quia tunc desiit esse periculum créditons. ^ c *i" (b) I have seen contracts which allowed a delay of P ag. 994. fifteen days and even a month. If the contract do not provide for any days of grace * L- 186 ; I think a reasonable time should be allowed to the j u ' r .$ "' borrower, to enable him to raise funds : nihil pcii 2Jr i,,st - v . , de inm. potest ante id tempus quo per rerum naturam per- stip . solvi possit. (c) I think that time should be allowed even if it be if it be stipulated, in the contract, that the payment shall ^'i )Ul f/ ed be made immediately on the arrival ol tne vessel, ayment Quod dicimas dt'bere sfatini solvere, cum aliquo scili- sha ! 1 b . e ^ • ■ u- 7 made im- cet temperamento temporis mteUtgenctum est : vecer- mediately on the arrival-. z . In I I I. ihc prim i|>.d and m • tic pi d. 1 i i ■ • . iS fitur, 7 ditum : t i .. ; iln stipul thci i to whom tne prim ii minil' iii at .he ll,u : be paid, Uk jud'u ial i with him. In the ii ill no! ilc until [lis arrival, but the i i ov , -, barks, shall be al (i It. in ordi r to fulfil his .t, Unb .n I y the order <>ï th An agreement that the bills of < . bj order < i the credi >uld be at tl. I r, would be in. : the : usurious: for it issu bor- r pay the principal and i * ! ; icichandizc or money, i - Maritim e Loans . 187 where the term expires, without permitting him to place himself in a worse situation. As the borrower may apply to the judge of the §.4. com- place where the term expires, in order to be per- p e !- enl: mitted to make a deposit, so the other party may commence an action before him for what may be a o r di. due. The creditor may also sue in the court of ad- ua ^ ce t thirt) \ i ars. renby th applj to thi , it' the l>ili • "i tht lender .nul he n< ; otiau it, th< hold- • ! t-> against the ba within I .•.(•(1 1>\ the i hum ,' iy the bill i ^ pirafioa of this time I th his rijrj lion inst the i In Mich it is not siden d tract i i' maritime loan, but n a negotiable note. In it t] enrity, _ it is to I»' 1 wished that it wen.- regulated by th< ml< established rning bills of exchange by the Ordinance du commerce* <) They are barred after thr lunting from toe da) that they have become liable. But, until it i terrnined by a new ordinary form to . th'- common law, as it is laid down by M. Pothk r, (f/)imlcss the mom y h is been Kit in the hands of th<- \\cr In renewal, u the bail an dis- ch. 10. - ■ (e) I .. re is no . ist the ori^i- inlesfl there b' ; «.ars led f'jr an a . the bokk ' the drawer and endorser I , but the securià paid vhl . th< bill become dut, and tin;. inly become . . thenrise the I n&n ne manner as our lUtOteoflK CHAPTER X. Of Security. Nothing is more frequent than to see persons be- come security for others in contracts of maritime loan. If they have no personal interest to serve, they are very imprudent. It is true, they do not bear the perils of the seas, but they are responsible for the good faith of the borrower, who, in generaL possesses nothing ; and who, through misconduct or ill success, is often unable to fulfil his engage- "^the* ments. He who is wise will not be security for any rubrfck one. Non inscite doctores nostri dixerunt, titulos ^ig 6 ^ de donationibus et fdejussoribus esse fat ucorum ho?ni- precario. num. (a) Those who require security, are not free from, solicitude, propter fragilitatem cautwnis : as says the Law 66. $. l.ff. ad s. c. Trebell A poor debt- or gives poor security. Quern enim homo tenuis locup- letem pro sefdejusorem inveniat ? SECTION I. In general the security is bound by the same obliga- tions as the borrower. In general the security is bound by the same obli- gations to the lender, as the borrower himself, unless * Pothm there is a particular clause to the contrary in the con- n eS 404. Ig * tract, (b) The security is bound to pay the prinei- P a s- ^ 8 - pal and interest not only in case of the safe arrival dSef.' 3 /' hip, but it vi i. do not rctui find 'i. .m ilu d< i isiona I He i nul, h tii<- una • nu ni I ii. bod) i'li ution m tli< same manm n< ipal. I 1< !" h n Bted for the whole and din i tlj , without acl\ int n in matte rs ol \ ported by J the joint d< btor <>n a bottomn bill, is Ii ible for me insl th< other, although pn inst the other. I ider th< jurisdit tion <>f th Vdn i re he- alone is But ■ ho have Foi mi lent at profit are discharged on th< compl the voyage, if the creditor leavt tin principal in the hands of the debtor, for another \-< without I This renewal operates .is a I the Becuritj . ing to the princi] laid down \>y Soulatges, *)and < : . The urity is discharged, al- though the new eoiii imperfei t and insuffici- .iks »>7po-cnt to cancel the first obligation of the debtor. rh. 8. As in tli t a renewal or tacit continuance <>i a lease after the expiration of the stipulated term, and i other similar where it is evident that these rity is not bound." ,i I till of the 10th L, Jean Qayolt, in [ficer on board . ! i Garde, capt. Mar- cel [soard, borrowed oi Francois Pascal, the sum ofHOOlftV. ata maritime- interest of 1 Qt on ' I I Lis to say provided the goods on which the money was were securrd on shore before the loss of the sh'p , ■ h. 3, $. 3 Maritime Loans. 191 the cargo of the ship, for a voyage from Marseilles to Genoa and return. M. Jartroux became securi- ty for the payment of the money, with maritime in- terest. Some months after, the vessel returned to Marseilles. Gayole paid Francois Pascal 40 liv. being the amount of the maritime interest, and sail- ed on a new vo} r age. Pascal, not being paid his capital and accumulat- ing interest, filed a petition in our admiralty on the 11th March, 1769, against Gayole and Jartroux, claiming the 400 liv. with maritime interest, and common legal interest since the delay of payment, deducting the 40 liv. which he had received. Jar- troux plead that the money had been left by renewal and that by this act he was released from his security. Pascal denied that it had been left by renewal or continuation. On the 5th May, 1769, a sentence was rendered, u condemning Jean Gayole, the defaulter, to the payment of the 400 liv. and maritime interest at the rate of 10 per cent, with common legal interest since the demand and costs, deducting the 40 liv. which had been paid. Execution against his body, after a stay of eight days. And as to Jartroux, he is or- dered to adduce proof within eight days that the mo- ney was left in the hands of Gayole by renewal, for a new voyage, in failure of which" &c. This proof was deducible from the petition of Pas- cal. He had received the maritime interest for the voyage from Genoa ; and now he demanded principal and a maritime interest which could be due only in consequence of a renewal of the contract The interlocutory judgment wis therefore unneces- sary and moreover the renewal was presumable from the lapse of more than four years and the subsequent voyages which the borrower had made. I / I i (1 1.\ .m arrétofthj Parti inn ni 'une 1770, onth report ol M d R I tin. mi : / he makes no us* , The ship sur tandmg the lots of ihi vessel, th a art j. h. dinance ( another, and w in odiam fraud . or your benefit from the bottom of the sea, a right which had been swallow- edupbyth No plank remain; f* Maritime Loans. 193 ter this shipwreck, but the person of the borrower, whom the law permits you to pursue, but not me, whom the accident lias released from every obliga- tion." These objections are plausible; but they are at variance with the spirit of the contract of security. « ch. 19. The Guidon de la Mer,{a) allows an action against *"' 8 ' the borrower and his pledges jointly, and such is 62. n. '37. the doctrine which Casaregis maintains. (6) In the year 1749 Jean Baptiste Boule lent 3,000 J" n :^ livres to captain V. upon the cargo of the ship BouiT JJ Heureuse Marie, upon the security of Jean- An- ' v toine Fille. J eau- Antoine Fesquet also lent 2,000 jean-An- livres to the captain upon the same goods and with toine the same security. The ship perished in the British jjUf, channel. It was proved that the two sums borrowed by captain V. exceeded the value of his interest which amounted to only 2195 livres. Under the authority of art. 3. Boule filed a petition against V. and his security claiming the 3,000 livres. On the 4th December, 1751, he obtained a sentence against both V. and his security and on the I lth of June, 1753, this sentence was confirmed by an arrêt. Encouraged by this decision Jean Fesquet de- J ean re- manded the amount of his loan. Fille, the security, quet v plead that the security is not liable for the fraud of same, his principal. Fesquet replied that the security was not only the guarantee of payment in case of safe ar- rival, but also of the validity of the contract. The ordinance, (c) does not affix a penalty properly so cart. 3. called; it annuls the contract against the borrower, h ' r ' who ought to restore the money loaned with common égal interest, and for this the security u answër- ble. On the 8th of October, 175 4, a sentence was rendered against V. and Fille, jointlv for the sum A A \ i in.) ><)i\ w ith thi ! ' A affc / I I lore 1 inn rest. B rcl) ii»K r upon the d .irt. ' I ' th of them jointly for the sum demanded with im and ' nelle apjx al< «I. < > i th - JUi, I ruarj , 1 777, an arrêt w versed I rding tl 12th Jul] tin ! I • i d his in! risk. Thi nan i de- .i ill. I; ia ■ that the securit) should be iuld p*y the sum cause, i >w< r. The means of the com • i Maritime Loans. 195 loan, would languish extremely, in consequence of the little confidence that is placed in seafaring per- sons, if the bond of the security were to be weak- ened by exceptions which are contrary to the spirit and nature of the contract. I am therefore of opi- nion that we should conform to the decision in the first of the two arrêts which I have reported. SECTION III. Of the joint obligation of the securities. A captain borrowed, at bottomry, upon goods, the sum of 2,000 livres and one of his friends be- came his security. The goods were squandered. The borrower and his security became bankrupts and obtained a release by paying ten shillings iri the pound. The lender having received 1,000 livres from the captain, applied to his security for the ba- lance and was offered 500 livres. Ke refused to ac- cept this sum and a controversy took place, in con- sequence of which merchants were chosen as arbi- trators between them. This was in 1774. They decided that the offer of the security was legal. It was accordingly accepted, because it was conforma- ble to the general opinion of the law, at that time in Marseilles. In the numerous failures which took place in that year, the bearers of indorsed bills submitted to this practice, without difficulty. A single exception occurred. Laurent D. drew a bill for 242 1 livres payable to the order of Zacharie B. who endorsed it to the order of Antoine-Joseph and George A. They endorsed it to Pierre V. who passed it to Antoine I*hc draw< i inkrupi .. 1). I>j Ins < omp I to | . \ \ ■ . on th • hliis. ( )u tin- . B lion fik (I |i; tilat tribunal ol Mars till I the ihx c endorsers, | tlemned in soUdum to pa) tht sum due, i\ to mount of tin- l>ill ;ui(l so .is to < BTcct the full | .i\ ID' lit tin n ni'. ( )n tin i (',111 of March folio* i i (I b) \\ hich the draw» r and end '.. huh (I to pa) " the aforesaid sum li\ res in the proportions of tin ii dends, with interest, deducting, neverthcli (siv( I) , the sums which BeJlon 11. < i ived hum tin said I). Ii. A. and \ I>\ this si ntent c, it was del idi d that by virtu- 'idum, Bellon was entitled to claim from the assignees of each of th< four bankn but that he could not I to a dividend from i on the whole of his original demand, and until it were full) !. but only the balana which re- ined due to him, ai lucting successivel) the payments which hie had previous!) dL Belli 1 from this sentence to the Parlia- ment of Ai . Il c< itended that the borrower and the several endorsei indebted to him in tok- dum ; thai each and all wt re bound to pa) the whole • The Fn i [urns u| VI i •. r compc . ed upon !.. n ma- th the i!i! • I i n-t • ( rule of i provided there i* do fraud. — The law m its details cona stsooly of prov sions I. [*enfbrcin menu, top ; i and | rred. Maritime Loans. 197 sum: that the bill must exist in its integral state until the whole was paid : that the sums which each of them should pay, should be simply on account, without prejudice to his rights : in a word, that he was entitled to demand of each set of the assignees a dividend on the whole sum originally due, and that the original claim should exist against each until the debt were entirely satisfied. He added that the question was new, that it had never been discussed by any authour and that it ought to be decided upon principles of justice. I appeared as counsel for the defendants. I con- tended that the usage of Marseilles had always been to allow the bearer of paper to sue each person for no more than the balance actually due : from which it followed that if the creditor had received 50 per cent, from one debtor, his debt being reduced to a moiety, he could claim no more than the remaining half from the next debtor; and so on as to the others. For example ; I hold a bill of 2,000 livres and I will suppose, for the sake of facility in the calcula- tion, that the drawer and each of the three endorsers have declared a dividend of 50 per cent. I apply, first, to the drawer, who pays me - - JL 1,000 Next, to the first endorser, who pays me 50 per cent, on the ba- lance due me - 500 The second in the same manner - 250 And the third - - 125 L 1,875 I am then a loser of 125 L 2,000 Instead of applying, first, to the drawer, and then to the first, second and third endorsers, I may select either of them, by virtue of the action in soli- I / OH M. II, t!|. •i imI umqi d h i. h la iln m, m ! I (i .1 n • .i. tli. iu tl i lion \. lin) Would d if thing» h.ul i< iii.ii:.. (1 in lit» ir A I ly, ili» 'li.it ! i the 1 Kill . . 1 . Journal I tdmitted that, that am i. tated; I- I id that w D ' . B ■■ J cj nor J'n /.■ ( . that aft< r mi 1 .iiinot Im mi< d but « « ssiv< I) Poi tW l due. V I ,,cl admit that tli< question had not been dis* sed bj these authoursai I uld endeavour to supply the omission bj the» remarks: <-■ 1. Tlr bankrupt, sub 1>\ tlni c is <>f his creditors, has tl lubmit i ÎV4 ii this t H( cl to it, for the publick 1. The smaller numb* r must submit to th u huh the i i d upon and tor not oi ed l>\ judgment or mortj must support the I i by th( . The bearer of a bill is legally presumed to ' i f they had not become bankt 10 more that» the balance ; ha\'u a dividend on that ' D<- rite or utilement with credit Maritime Loans. 199 renounce a part of his claim to each joint debtor. This renunciation is implied. It results from the nature of a concordat to which he must submit. 2. I am a creditor only for what is really due to me and not for that which has been paid. Having ma- ny endorsers, the action in soli luin enables me to call upon each of them ; but in so doing I must be guided by two laws: the one resulting from the na- ture of the subject, the other prescribed by royal authority. According to these laws I act, and in claiming from each debtor, I can exact only the sum really due. My bill is for 2,000 livres. I apply to the first creditor, whose concordat is fixed at 50 per cent, and I receive 1,000 livres because he owes me 2,000 livres Upon receiving this sum my bill is reduced to 1 ,000 livres. I can claim no more than this sum from the second, by the action in solidum. His concordat is also 50 per cent, and I receive from him 500 livres being the moiety. There remains but 500 livres and by the same reasoning, I receive from the third debtor 250 livres. By this means, my action in solidum produces all that it is capable of effecting according to the nature of things and the law. I sued each person because I was the creditor in solidum of each bankrupt. But each creditor is only bound to pay "what remains due in proportion to his concordat. This argument was refuted with equal spirit and energy by a consultation of M. M. Simeon the father, and Pascalis, advocates of Bellon, and by the consul- tations of M. M. Aubrey, Frouchet and le Gouve advocates of the Parliament of Paris. The opinion of M. de Castillon, attorney-general, was in favour of Bellon and a reversal of the sentence. But by an arrêt of the 18th June, 1776, on the re- port of M. de Bellon, in the great Hall of the Parlia- ment, it was confirmed with costs. / il . I \ I ! 1 . I \ li. id beCOTTH l).tl)kl il| ■ m tin ir rcs| ittanooi tht I ' I ' idcd «In. tlay. Il w as tl ! thaï if o bill I ht to du iiiind die m hoir litor, until ii was paid. 1 (1 to th< i ih ki : <1 tli' ! \I VI mix rof i . the incil, li:i\ ing regard I tion, arrêt of the Parliament of A L81 I Il us conséquence , Vnd k> d tl the demands and which the said arrêt was passed, with all I cum 1 1 «tiered and t the partit s shall d bi his manda and i in the : the ordinance to 1" d< u rmin( d Done in the ki uncil of state, held at \ saiUes, tin 24th February ,17 S ncd, Huguel i!i M \: : : | w is I on tin 23d ( I 1783, which n petitio itioo, that had been filed by Zacharic lï. and otlu rs, * Before ihe I is in 1 ii - suppl ■'■'.' Maritime Loans. 201 Thus the question was decided in favour of die holders of paper. Each of die joint debtors owes the whole sum. The claim is indivisible against any one. Promittentes singidi in solidurn tenentur. In utràqae enim obligatione una res vertitur \{a) The ? §• 1 - bankruptcy of the joint debtors cannot affect the in- Suobus dividuality of the debt, which does not cease to be reis. the same against each person and which preserves its entire existence until it is fully discharged.* * The same rule appears to be settled in England, in equity as well as at law, that a creditor who has several securities for the same debt, may prove the whole of it against each of his debtors who are bankrupts, and receive a dividend from each on the whole sum, so, however, that he receives but one satisfac- tion. See Cooper's Bankrupt Law 267 — and the cases there cited. ( il \rj i i: \i. <)/ tin exthiction \ the loss of the things upon which tin mule. The latter d< m - : I th <■■..•:.■ f \ tract consid n d in itsel£ It n k \» s the borrows r from liis personal obligation, bj no tract to the value of the portion which may hare been saved. This is s condition whi< h operate i a release of the borrower who is only obliged topaj in If by the loss of the ship on the voyage. " Such is arTenure the nature of the contract of maritime loan, that if loss? the thing upon which the loan is made, perish, by a Va i in accident, the contract is of no effect and the lender i 2 ', cleiF' can claim nothing. This is what is meant in the rac s»r 11th art, where it is declared that the contract shall jf on U ç h< be void in this case. It is also the common law of is. art. the nations of Europe.' ^(a) %\^' If there be a general average, and the thing §. 2. if upon which the loan was made be not wholly lost, ^ e n r e e r ^ e a the lender contributes to it instead of the borrower, average ? This preserves the contract in its full force, and the borrower is obliged to fulfil his engagement, without being allowed to complain, because the gross average does not affect him. This will hold, however, where the original value of the borrower's property does not exceed the sum borrowed. But, for example, if my goods were worth 3,000 livres and I had borrowed 1,500 livres, the average would be borne equally by the borrower and my- b Supra, self, and if my part which was not lent was insured, sect. i f my proportion of the average would be paid by the §. %, insurers, (b) Simple average does not affect the contract ; and if there not beiner any obstacle to the safe navigation of the be a . par * .•5 . * . ° ticular vessel, it is borne by the borrower if there be no average. particular stipulation to the contrary. (c) " The c Supra. sect. 1. $ 1. the xtatme (f the effects si M. \ . 1 i ; i obscrves(c that "from thi • follow that if tin loss be n llj . lii is that he who i support thi loss, wh< li it is CJJ hea: whin it is less. TJlUs" he adds " if ii la a moiet) or a third, tin contract is i cible tu that tipn. This is so just, that pulai atrary would be usurious and th< n f< ri vi id." Hut according to the ordipj if the partial loss do n«>t proa « cl DOR1 gross a\ or vit major, it must be borne In the borrower if there be no stipulation to the contra: M. Pothier explains himself in a manner lesscqui- vocaL *• Wc. have seen/' says he, 4i that the arri- Maritime Loans. 205 val of the thing upon which the loan was. made, whatever damage it may have suffered, by. what ac- cident soever of vis major, preserves the obligation of the borrower who must pay the sum lent and the maritime interest. What if only a part of the thing return and the remainder has been lost or captured ? as, for example, if the vessel has been pillaged by pirates who take away only a part of the cargo ? In such cases the condition applies only to what is saved and the contract is void as to the remainder." The authour here alludes to cases of vis major, the effect of which is 10 convert into salvage all that escapes the accident. But if the goods of the borrower had been en- %. 4. if tirely landed before the accident, the contract would {JjjSSJS not be affected provided the goods or their proceeds lai.ded could be laden on board of another vessel. The JjeTV change of the ship would then be at the risk of the dent. lender .(a) a Vid. sect. 3. §. 3. of this chapter, and also Supra, ch 8. sect. 4. § 2. If the borrower cannot find another vessel in which to ship the goods or their returns, he be- comes released from responsibility, by rendering an account of the articles saved in the place where the goods are landed. Vid. infra, sect. 3. §. 3. where I shall again speak of the arrêt in the case of Armelin. In cases of insurance on goods out and home if they are landed before the wreck, the insurers are answerable for the returns laden on board another vessel. But if the insured could not find any other vessel to lade his goods, I think he could not require a reduction of more than one third of the premium ; for we cannot abandon to the insurers any other goods than those which were on board at the time of the accident. The decision pronounced by the arrêt in the case of the Armelin is no argument 20C An Estoy nit •' x ' gainst the insuredi whose privil< - mu h rraiié extensive than those oi the bonowcr.^aj • . ( . l icu H. 4 :i. and t h : l 'J. !»»>• [f the effects which were on board al tin* un, the .K .ill» m wc re worth 1< i than the mum borrow* d, .. the contract would still exist as to the surplus. 4 It u .is so dc< ni' il l>\ a sentence of our admiralty , 1 7th Clllflil, urrr \\ \, 1,7(">, 1 1 1 i . l \ ( ,1 1 ! ( ,f Si II l< «1 1 ( i 1 1 1\ , \\ 1 II ( 1 1 I 1 1. 1 \ f reported in mi Traité des assurances. (b ) This rtw«uir sentence was confirmed l>\ an arret 01 the imi» July, L779, ontbi reporl of M de Pent r. cj S cli 1 I : "il ilu Palaifl ,.3. If the effects of the borrower an landed in r quenoi of the innavigability of the ship, and he can- not provide another ship for them, they are to be considered as good* saved to the valu< of which ilic contract must be reduced, d) Ch. S« . ch. 3. 5«;ct. 4. %■ 2. ami intra sect. ." , If the}- arc shipped in another vessel, the risk, of the lender is transferred with them; but in such a . if, after the accident, the goods d< cay or dc- teriorate in consequence of the delay, cither on shore, in the new vessel or otherwise, so as to l>c in vahn than the amount of the loan and inti r« est, 1 belicrve the lender would be obliged to bear the because the contract is broken byv i major. It is die sam< of a vessel which is thrown on ixx ks ;u,d set a-drift. If the average paid be so great as to • It must be understood î lut there was originally on b value of the hum borrowed, and thai, a portion >.t them was landed at sonic time previous Bo the accident. The ! does not support the pos tioti without tins limita- ; on. If the borrower had not shipped to the amount of tl.e the lender could demand only legal interest for that part i au mployed in the voyage «nd exposed to its per ls< Maritime Loans. 207 put it out of the power of the lender to fulfil his engagement, the deficiency must be borne by the lender, according to the spirit of the declaration of 1779. SECTION II. Right of the lender to the effects saved. It follows from what has been observed in the$J-Na- preceding section, that the personal action against taction the borrower is barred by accidents arising from a which the vis major.* Nothing remains for the lender but j, e a n s d " an action in rem against the things saved and the gainst the action negotiorum gestorum against him who has'jJjJJÉ managed or taken care of it, and in whose posses- sion it may be. The lender may pay himself, from the effects saved, both his principal and interest, if they be sufficient. But if they are not, he has no recourse against the person. M. Pothier,(«) asks "whether under the 17th i^^e in- art, the borrower must pay maritime interest on the [np™ p d !r* sum to which the goods saved amount ; and he re- tion to plies in the negative." For when the ordinance *'^r ins says " the contract shall be reduced to the value of ' n 4g the goods saved, the term contract comprehends all the obligations which it contains, the stipulation to pay the sum lent and also that of maritime interest. All these obligations are reduced to the value of the effects. For all that may be due to him, the lender can demand only the value of the effects saved and nothing more." * The case of Janes, vs. the schooner Maisachussetts, was a suit on a bill of lading of goods at the Havtmnn to be delivered in Charleston. They were delivered, but they had sustained damage in the latter port. This was held not a subject of ad- miraky jurisdiction. Mrs's Adm. tttc. UC. / I dd tli.it he can < this va- lue onlj From th< p rson m w ho» 1. m be, who haft preserved them : mtvjJ the ei ;■' (t. I .m the moment of th it, the l< ndcr is d, "I right, "l the effects s.t\c no between the fender aud the insurer, but thnt tlic former must be preferred. He adds that neither this do nor the opposite one are founded on the principles of jii but t hat it is a point on which the law nuiy arbitrarily dec Brner. 236. Hut WE th nk differently. For the insurer has an evident interest in the preservation of the tiling insured, and money ient for its preservation, as for ins'ance, money lent on bottomry for the repairs» of a ship insured, operates for the b%- Maritime Loans. l 209 The borrower can claim nothing from the effects JjjJJJJ^ saved until the lender be wholly satisfied. The or- between dinance establishes nothing on this point. The ^ ve b r or * spirit of the ordinance is opposed to it, for the ere- and len- ditor never comes into apportionment with his der * debtor on the thing which is the pledge for the pay- J f,^f dd ment of the debt. Contcntio super prœlatione non rimh.cre- agitur inter creditorem et debitorem ; sed inter J lt ' P art " creditores ipsos. (a) 16. n. 23. pag. 143. and part 3. cap. 3. n. 59. pag. 379. For instance, the goods which I shipped, were valued at L 6,000. I had borrowed at risque - L 3,000 On a maritime interest of 15 per cent. ------ 450 L 3,450 The ship is lost. The nett produce of the goods saved amounts to 3,450 livres. The whole of this sum belongs to the lender and I can claim no part of it: because the effects saved are pledged to the creditor and all beyond the amount borrowed is lost. This is the true sense of the 17th art. h. t. and the opinion of Pothier, who very properly refutes that of Valin. Nota. The debtor cannot divide with the creditor to his prejudice ; but in some cases the ^^ creditor may demand an apportionment with the §, 2. debtor. ( b) nefit of the underwriters, and the lenders of such money ought tp be preferred. Indeed the same reason will not apply in cases where the money lent at maritime r sque, was borrowed for the purpose of purchasing goods which are afterwards in- sured. Still it may be said that without that money, the sub- ject matter of the contract of insurance would not have existed. But ought not the insurers to be told previous to making the insurance, that the goods have been bought with money taken up at risque ? € c ■1 10 In 1 h. t M. I' bici thai it tb lota "I oui) <»n a pa] i <>i the i n two thin three fourths, lb li< n cm onlj to thai pi . w 1'ii ii arc pi» u i . '-(| from w The con reduced, not to the v. hole, but to that proportion, and tlv remaining third <»r fourth belongs to Un borrower, free from an) < l.iim. or if the surplus is insured, it should bcabai to the uiuli rv rit i This di »tinction did n< M " *' L 1! Valin. b I> B< ws from urn principles. SECTION III. Does the contract become void by the ill mcc the voyage t In the contract of insurance, an abandonment can< not in made but in cases of a loss by vis major. Every other damage is considered as an which is regulated b etween the parties. B\ this mi . as, tin taw provides for the real interest of the insured, and gives ever) One his due. The b o rrower does not appear to have ! treated in so favourable a manner, since he is oblig- ed to bear simple average or particular damages. But is he exonerated from the payment of the principal and maritime interest, only where there is an entire loss of the thing upon which the loan was founded f Shall there be no indulgence, if the voyage be lost by an] other accident than the vit major provided .ut. des a g am st in the 46th art?(r) I borrowed a sum with ces. which I purchased a small adventure and shipped Maritime Loans. 2 1 1 it for a certain port. The fear of enemies or some- thing- eise obliges the vessel to return : am I bound to pay the whole principal and maritime interest, although the voyage is frustrated and the goods disembarked are not worth half the first cost ? This case is not provided for in the ordinance. The omission must be supplied by calling to our aid the application of general principles. The object of the contract is, that the vessel shall reach some spe- cified place, where the borrower may sell his mer- chandize, purchase returns, and make such a voy- age, as will enable him to comply with his engage- ments. It is only on his successful return that he has promised to pay the principal and interest. The accident renders this successful return impossible : therefore the object has not been accomplished, the^ condition is not fulfilled, the contract cannot exist in its original state and ought, necessarily, to be re- scinded. If, by accident, the voyage be broken up before §. 2 Re. it is commenced, I believe that the sum borrowed hn q uis1 '- . . ' , . . . . ment of ought to be returned, without entering into any the voy- modifications, which are of no use but to occasion ^gebe- 2 IOFC its law- su its. The maritime interest is not due and com . common leeal interest is due only from the time of menC€ - • m cut demand and refusal. The doctrine of M. Pothier,(a) 29 may be applied to this case. If, by accident of vis major, the voyage be bro- Relin - ken up, after the commencement of the risk, with- mént'af- out a possibility of preventing it, by a change of the ter the ship or otherwise, I think the contract would be void, com- 8 ' 6 " except as to the amount saved ; upon which the lcn- menced. der would have a lien for his principal, maritime in- , . terest and damages. I have already reported, (b) the C h. 5. arrêt of the 28th June, 1765. Jean Joseph Mar- | ect a 4 - i settles^ gave, by way of maritime loan, the use of 489^'' S 11 An I i m divers kitel \ I / P . /, who promised dira il 1 The ihip, b< ing întimi- ,. il !>\ i Kiii': foulon ( > » 1 1 ! mirait} decreed amounting t ( > i.jit livres should b the i« !id< P. Th i Bed this s- ! | it, a* Jean-Joseph Marseille was i I to i utensils in the same i ondition as they w turned and to pay the premium of insu i bad been effected for his account, th< Parliament, h\ way <>! indemnity directed the amount of the premium to be paid b) du,- borrower and tli.it the lender should pa\ the tost-.. The < sidi red as void by the non-performance of th< legal condition; and du- sum adjudgi d to Jean-Joseph Marseilles was given more as a comp nsation lor me use of his utensils, than as a portion of the stipulated maritime profit. If the If money be lent upon the cargo, to go and return, ; IB and, in consequence of bein red unfit to n*vi« qtence of gate or other vis major y the ship do not return, and den acc .'c- noother can be provided for the goods which have verre- been landed, or their returns, the contract is void. turns. -]'] u . i )()mnVcr then becomes the mandatary of the lender and has full power to dispos, of the effects saved for the account of the lender, in order that he may be reimbursed. The question was decided in ■ ▼»*■ this manner l>\ an arret of the 30th June, I761.( should regard the good or bad success of the spe- cess u ' culation; but the action pro socio has no relation a Supra with that which flows from pecunia trajectitia. As ch- 7 - e t i i i r i t J sect - 2 - §• 1 have more than once observed, they are contracts, 4. ch. 9. which are different in their nature and each is go- I e "- 2 - . verned by laws peculiar to itself. Em'erig. Traité ass. ch. 12. sect. 47. * Money was lent on a bottomry bond, conditioned that if the vessel should perform the voyage, the money should be paid in twenty days after her arrival; if she should be lost through the perils of the seas, or by fire, or by the enemies of the United States, the bond to be void. The vessel was captured by a British cruizer, and condemned as lawful prize : upon appeal, the condemnation was reversed, and full compensation received by the owner, for vessel, cargo and freight, by virtue of an a- ward of the commissioners under the treaty of \ T ovember, 1794. It was held that the obligee could not recover in an action of debt brought on the bond. 3. Tyng's Mass. Rep. 443. c HAPTER XIL Uen qftfu lender upon tin , Whether it be owing to the difiTeren « -in usage and the Roman law or to the ordinance de la Marine having omitted to develop u vi ral i i;i.il points, there is a considerable difficulty hi which <.m be removed onl) by t lie- application of the common law. " For it is m, that a lien, never takes place without an authorize it ; and another rule-, not less L r < [* that l'u us, of every sort, arc regarded with a jealous eye, because tiny an- prejudicial to third persons. It is for this reason that they are- never implied. It is always necessary that there should be a formal obligation executed which produces a conventional lien, or an express law which creates a legal li otherwise there is no lien, nor can there- be by any construction or implication ; neque enim tacitat hy- / < fingimu*"fa) " If We attend to principles we shall find that tlv re is no hypotlu cation or lien without a contract in writing expressly granting the same. Other contracts ate actions: hut action*, in themselves, do not create lit qs, until judgment, and then, onl}- from the • - day it i-, rendered: excepting in cases when- die 'I'.Cl" ' 1 " • • ■ « . i iMS law gives a tacit lien, as m actions against guardians, iu23. l^-bj Liens are stricti juris. They cannot he extend- ed from one case to another. Respecting them we cannot argue by deduction or analogy. The lien musl rested by the law itself. Privilégia, cum Maritime Loans. 215 sint stricti juris, nee extendi possunt de re ad rem, * Lep» s ' nee de persona ad personam. (a) 1. ch. 31. de pignor. lib. 4. quoest. 21. n. 44. pag. 372 Ansaldus, disc. 26. n. 35. pr.g. 3. Dernusson, de la subrogation, ch. 3. n- 17. and 52. Merlinus, If the thinsr which is the subject of the lien be * L - 8 - ff - extinct, the hen is lost : re corporali extincta, pig- mod. nus hypothecave perit.(b) P'S™- SaU part. I. cap. 43. n 14 pag. 324. Negusantius. part. 6. memb. 3. n. 9. pag. labvr. 574. Merlinus, de pign. lib. 5. tit. 5. quoest. 34. pag. 602. cred. SECTION L View of the Roman laws concerning liens on the ship and cargo. Among the Romans, he who lent money to pur- chase, build, repair, or rig a ship, had a lien on the ship, as a security for his debt. Qui in navem extruendam vet instruendam credidit, vel etiam emendam, privilegiam habet.(c) But this was ex- * L- l. clusively personal. It was only good by way of | 4 ;| n J e preference against simple contract creditors and had reb. auth. no effect against those who were secured by express Judlc ' hypothecations. Eos qui acceperunt pignora, cum qui poti c or in rem actionem habeant, privilegiis omnibus, qua jnpign. personalibus actionibus competunt, prœjlrri cons- 1 ^'^' tat. id) Godefroy. Stypman- n. 18. pag. 411. Loccenius, lib. 3. cap. 2. n. 2. pag. 1012. Vinnius, pag. nus, part. 100. and 233. Scotanus, pag. 393. 4, cap, 5 # Kuricke, in his celebrated questions,(e) contends « quast. that the Roman laws, gave an absolute hypothecs - 86D Pag ' tion to him who lent money to purchase, build, repair or rig a vessel. But this authour, perhaps, 916 An Envy M had no otlu i d< sign than to adapt the h lu c itea to modi i n customs^ I ought to r mark thai to the l: law, ii one umon^ those who held hy|>othccations ■■• ' ' on Uic ship, furnished mon j for her n pairs, or to s and 6. purchase provisions during the . : ■ pn (cm <1 to the ■»•.. titis ptgnoru causam.ta) The same law prevailed in favour of one who held an hypothecation on tin cargo or rurnished monej to pay avt ra| e or freight. 11' wai pi to the others who had similar tiens because the i om« mon pledge would have been lost without his sistance. Si cuis in mcrcet sibi obi vclut salv.v , ,; i:nt, vel Ui naulum exjotvatUT, putrn- 6L.6.C tlor rri1 > l lcct posterior sit: nam ct ipsum nnulum 1. ff. eod. potent ins est.(b) If the aid Mas furnished by a third per so n, who had no previous lien on the ship, he would h only a persona] privilege and be excluded by the actual holders of hypothecations. This is the true sense of the famous law interdum .• ' 03 om may u. J be convinced by comparing th | tf quest the law which have s re f e r ence to it. This is also lib. 8. the opinion of the authours already cited, to whom j' . may be added AntaUut^fc) Fvtniutfd) and Don- nor. p»g. nellus.(e) The last writer has left nothing to DC 560 said upon the subject. • Interdnm posteriori potior est priori: u'.puta, si in rem isi.im rr nservandam iinpcii sem Ht, quod leguess credid t| veluti si navis fait obli^ata, et ad unnandain cam \el ret; ini ego credidero. Dig. Lib. XX. Tit. 4. ^ui potiorci i r j !. 5. ■ Maritime Loans. 217 SECTION II. French laws concerning liens on the sldp and cargo. In many instances we have adopted the texts $. 1. The which have just been cited, as shall presently be \*££* seen. The personal privilege, mentioned in the has been Roman law, is unknown in our jurisprudence. jjjjjjjj? Every privilege includes a tacit and exclusive lien, us . at least as to the thing which is the subject of it. Livoniere,(a) says that "a common hypothecation J*£ gl ." is governed by the date of the contract and that a C h.4. privilege is regulated by the degree of favour due to sect - *; q each particular claim, and is preferred to common as * hypothecation, though prior in time.* It is not doubted that ships are personal proper- Czn the ty.(6)f From which it follows, that on the gene- charged pothecation.^: b Cleirac pag 599. n. 11. Furgole, on the ordinance of w i;h hy- 1731. art. 23. pag. 100. Valm art. 1. tit des Navires, &c. * To explain this : suppose that A. builds a ship and gives an actual mottgage to B. thereby to secure a debt due to him : afterwards the ship sails on a voyage, is damaged by storms and puts into port torepar : C. furnishes money for the repairs, which gives him a lien at the French law, on the vessel even without an express hypothecation. — On the vessel arriving home, his lien will be preferred by privilege to the prior actual mortgage, by reason of the favour due to his claim ; on the same principle, and for the same reason, mariners for their wages will be preferred to the same mortgage, though they have only a tacit and posterior lien. \ By the French law real or immoveable property only is susceptible of being hypothecated ; moveable or personal pro- perty cannot be hypothecated without an actual delivery of posses- sion, in which case it cannot be said to be properly hypotheca- ted, but pledged; this follows necessarily from its moveable and transito'rymature. But ships, which may be more easily traced & followed, and with less danger of UinK), are so far assimilated to real property by the law of every commercial country, that tli.ey mav be mortgaged or hypothecated in the same manner as land. This is thé subject of whi< h our autliour treats in this paragraph. jAn arret rendered 7th December, 1674, by the court of •accounts, aids and finances of Provence (reported in Boniface D B / I IW, 1 1 1 « ;. rj in I fact, mbcr, I , whi found torn i ! . nd wlir h w.is ]. ' • the ! th.n all \< v( Is should In l , .nul not l><- t.ikt h, nor consid< • ,! which ma) take \>. . v. iih an) m k •i modifia cl \>\ the ordiii i l. \iur having decided, in the first aittciet •-hijis and other vess< K shall \» ' as j' ; t\ , it add,, in art. 1. ru \t rth all VCSS< Is sh .11 Ik- hound lor the debt* <" dor, until the) shall have made a voyag in tin name t tin- risk of the purchaser: unless the) I been sold under a judicial decree." Art 3. of die same title decides that "the sale nia ship, whir ihall not op to the prejudice oi*th<: creditors of the \t\u\ .:id fialicin M.J mander of tbc I \ i i '1 fer • 1779. I I . Ik ; i I An arret of the 20 • the court i in favour of H M. Gassier 1 ; hum.' • . v. ithout « • Maritime Loans. L 2\9 M. Valin writes, at great length on these two last articles. But, 1st. The ship sold is liable for the debts of the vendor, until she has set sail under the name and at the risk of the purchaser. 2d. As the formality of a decretal sale is un- known in Provence,* the liens of creditors con- tinue, although the ship may be sold at auction by the lieutenant of the admiralty : for among us, ju- dicial auctions not preceded by a general instance of discussion, do not remove the lien. but in many respects are considered as matters of record, es- pecially when the original instrument remains deposited in the Notary's Office. Hence the distinctions taken in the French law between actes sous singe firivé (acts or instruments under private signature) and acts notaries, or actes publics, actes pauses fiardevant notaries [acts or instruments executed before a nota- ry] the former of which are considered as simple and the latter as solemn contracts. Hence also the distinction between debtor chirographaires (simple contract debts, or debts evidenced by private writing only) and debts privilégiés [privileged debts, debts evidenced by notarial acts or by judgments or other mat- ters of record] which have in France privileges analogous to those which our law confers on specialties and judgments of record. * It must be recollected that M- Emerigon wrote this work at Marseilles, in that part of France which was formerly called Provence* where it seems that a Decretal Sale, that is to say a sale by Judicial Decree was not made in the same form or with the same effects as in the other parts of the kingdom, where it was considered as notice to all the world and bar- red all prior liens, whereas in Provence, as our authour calls it, such liens were not removed without a special proceed- ing called discussion. These details are altogether uninter- esting to us, but it was necessary that our authour's meaning- should be elucidated, lest false conclusions might be drawn from his promises. . \ nam t risk • t i'i ill' ir lit ti on li 5th. A le mai d i ; ■ pi!- , sh:ill not pi'ju- dia impie .user has \ .>iil lh( full pi Tin ship, her t " Llf , appan I, J and < ■ h I I • i. i . ssitii s oi the i .(a) Thi i lieu is all».-, to th I rider, although the money was furni in, if within the aliened in art. 8. Il t. and before i in c h ! . | i'. r that 1 i titled to thu . it is sufficH nt if th' ' ' n fun ed, I fide, on the huit, for the nece f the . althouj hould be bi put to tea. It is true, that in thii no maria' • *• r aic w.is no risk.(6) But die • i oes the for the necessities of the ship, the lien extends to the ^" d e t *" whole ship and freight. (rf) the whole ship and freight I d art. 7. h. t. of the But if the money be lent to the captain, in the place where the owners reside, without their consent, the i to tii'- intones! v. I . uillhoi i Moncv lien on.. * in llx / 'icf/ur/ \\ In 11 tl I it twins \ olunl i ilv si ! tin- ; ■ i The b -isk iin tin r than to the amount of the sum that h 1 k nt to him. If he puts n ;, but tliis addition, voluntar) on his side, is □ »Ie. During the voyage, in. ma) unlade- the surplus; and the ; lain. The l tth art. h. ;. . that " I row* d moncj b) iiariiim. ^hall not b : rove to the '■ the sum *n w hi! is d 8 . i d i»> tin k « ii di* . i n wh thry to , l? I | |i : bu ill be sold at il i , launch* d, or : caulkers an who furnished the tim- I « r, pitch, nails and otl irhii h ai j in the ( onstrui don of a ihip, ail . . ni what sort sa \< r tin j i who bave lent mone) , und< i inn, that it is to be employed it» the build- ing of the ship." if, ( bmumee de la M I ssel sold hav< d rpesv ter, ship builders, caulkers and other workmen «Hi- ed in her, together with the creditors for the timber, cordage and other arti< les furnished to her, shall be preferred to other creditors and fa i urn m c among themsclvc r.\ the 17th art the vendor oftr* " in the first rank of pril which 1. d her first i This is rding to the i onuni n Ism whii h h< who sells, u] a Ben i the article sold, for the price of it. Tl Lulkers and other workmen ~rc included in the same rank with the vendor. rial In the same rank also, tlu ordinance hai the creditors for timber, cordage and other articles furnished tu the vessel. All die ab re paid in equal propor- onST* tions, without any preference. Nota* Iftheordi- above persons. Maritime Loans, 225 dinance did not preclude it. I would say that we discriminate between the body of the vessel in the state she was before the sale from the repairs that she has undergone, so that the vendor might have the original and leave the surplus to the material men and workmen. But the ordinance directs that the whole shall be divided among them in propor- tion to their respective claims. If the person who undertakes to build the vessel Jf «jfe F , , i j j 4. budding have received the price agreed upon and do not pay was un t the workmen and material men, are they entitled to dertaken a personal action against the owner and a lien on the J^JJJ'j ship? The law 1. ff. in quib. cans. pign. says, that if a third person lend money to an architect or under- taker, wrflch is employed in the erection of an edi- fice, and if this loan had been effected by the order of the owner, the lender shall have the same lien as if the loan had been made to the owner. Pignus insula, creditori datum, qui pecuniam ob restitu- tionem edificii ex'ruendi mutuant dedit, ad eum quo- que pcrtinebit qui redemptori, domino mandant e> nummos ministravit. The law 24. $. 1. ff. de reb. auctor. jud. gives a lien also on a house erected or repaired, to the person who lends money for the purpose, by order of the owner, to the undertaker* Quod privilegium ad cum quoque pertinet, qui redemptori. domino mandante, pecuniam subministravit. " But if the money was borrowed without the knowledge or order of the owner, and he pay the undertaker, the lender would have no action but against the borrower. But if the owner has not paid the undertaker, tfrw third person would have a Jien, whether the loan had been made with or withv E F. M. Ii ( amus, tins qu \\ ihci who Ii. is sold timl pcntcr, m ho li is und< itaken 1 1 •< building of a Unix i li. is Ix < :i < mpl in ttv build • house, pn i the owner thcrcol lui t!u materials furnished or the th< m It is !r inction: whether the work is done l>\ th< di\ \ the job t and we must also distinguish the t i ii k I it the timber be not \< t u '.. I think the vendor might recover it : but if it ' um % and th m< d) but by hing, in tlu hands ol the owner, v.., lue to the undertaker. The- owner is in no man- in r bound to tl. s pun h not!. m him and moveable propert) is not subject to lie ns, n< ■ • d w ith ; Such then is t! . of the common 1 ave furnished the und< . without . to an und ssel '.' -■■!■ The cai ; i r caull ho u ■ ij ulated the nun who weak under him: but tin shou them notice, that they mai de* a i\ t d. Ii he do not the thing foi . and it shall be liable ior the p; ; m< nt of the i: But if they had received warning, they shall 1 lien." Maritime Loans. 227 M. Valin/c; quotes this chapter of the Consulate). J t "^*£ But he does not admit the application of the princi- saisie, pies of the common law to vessels. " It is an im P a s- 349 - portant observation" he remarks, " on the subject of liens of carpenters and other workmen employed in the building of a ship, that they should work by the order of the owner, in order to be entitled to this privilege. If they were employed by an under- taker, who has received the stipulated price of the work from the owner, they have no lien upon the ship and have no remedy but a personal action against the undertaker, upon whose good faith they acted. This, however," he adds " is to be under- stood in cases where the workmen and material men knew that it was a job and that they had no busi- ness with any one but the undertaker." This qua- lification brings the doctrine of the authour very nearly within the law of the Consolato. By the declaration of May* 16, 1747, his majesty declares " that when merchants build vessels, by contracting with master-builders for a particular sum for the whole work, inasmuch as the material men and workmen have no remedy but by personal action against the contractor, under whose orders they laboured, they shall be at liberty to attach, in the hands of the owner, the debts due from him to the contractor ; and they shall be preferred to all other creditors of the contractor." But this declaration of the king has not been registered in the Parliament d'Aix. It was register- ed in that of Bourdeaux, with this modification ; inserted at the suggestion of the attorney general, " that contracts by the job for the building of a ves- * A declaration of the king is an ordinance, by which the king explains, modifies or annuls, in whole or in part any edict or ordinance, &c. Fcrr. in hoc verb. 'I Ik ;i is i. I Com ted in tl - m. It is i materia] m l deprived of it, unlesi it i^ ; ted on the faith of . e thing. ( ' .v.!- li K h< t fui : ■ hed a quantity of ii vessel built bj captain Cresp y in / i / - '.'. in (1 thiru en &1 I nl b) the creditors of ( : she put to Bouit) who had furnished the whol of bis propor« tion, endeavoured to confine tin lien to th< i interest But our admirait; | .< hen on the m hole vessel; and the sentence was confirm bo arret of the 13th March, 1717, on the report of M. d*JL ietme, Cresp was the contractor for the building Of the vessel; but Frichet acted on the faith of the vessel, not of the person : nam magit % quam ipsi crediderct. hùu dci According to the arrets of M. de La moignon >(b) «non* ne wno h as delivered seed grain to a fanner icV^'d' " is prefem d to the owner in the crop which it produ- h%poihe- ces." It is One that this opinion is very ninth 113. * Oroverted. We find in Decormis t (c and in tin c tom. :. edition of Duperitr^fd two arrets of the Parfia- r • ' ; ment of Aiz, which, Jbr the / n of frauds, give the preference to BO owner without whose quast. 16. knowledge the seed had been furnished. This, at r * s ' once, revives the domino mandante, of the laws be- fore cited. Maritime Loans. 229 But these laws, which can be adduced here only by way of argument, cannot controvert the express provision of the Consolato de la Mare, nor that of the maritime ordinance. The carpenters, caulkers and other workmen employed in building, together with the creditors for the timber, cordage and other articles furnished to the vessel, ought to enjoy the privilege allowed to them, unless they have been warned in due time that if they do not secure the payment of their claims against the contractor, they shall have no lien on the ship. And I do not believe that a simple registry of the contract, would be con- sidered as a notification within the meaning of the Consolato, it requires that the notice should be given to the workmen and other material men, in order that they may not be deceived. We have before seen that the Consolato del Mare, 2d Rank. (a) declares that the workmen and material men \™^ tr ° n shall be preferred to all other creditors ; even to ac\u2X those who have lent money with a written declara- tion that it is to be employed in the construction of a vessel This chapter does not say that lenders shall have a lien on a ship seized before she has put to sea. Art. 17. tit. de la Saisie does not speak of them. From which it follows that they have no lien. In fact, the contract does not really become a maritime loan until the moment of departure ; and * L * *• ff * if the vessel does not sail, pecunia non erit trajec- fœn. titia.[b) Nevertheless, as the lien which is given to lenders on the hull,(c) is indefinite, I believe that in order c art. r. to reconcile the ordinance with itself, we should h ' u . place, after the persons spoken of in the 17th art.(< paid in prefi til otbei ditoi ," irt 16. lit .la) ; >g Af> ind an34 ] muv b- be ng penal. Beei 18. Peter», xcv. in not. If the m:> suffer imprisonment under the 7- i • the- 5t!i • . ' • el must c*i •ere was r»n unavo dable a Ibi third Whcl the act . i then may be ' tun P r he n The • I not to li.. rfe't their wages bj absence own. Bee, 134. Pet lis, ju 60. H tl>< first ! et trimi t n But the ; ilu se classes shall uk< b) » on< u m i\cs, irithout to the dan live coni In the s. mu manner we must ; rank, those whose mcrchandizi tlic captain 1 in :. the voyage For the n< hip. '1 lu- I • M rr,(#) says, " il ■ iin si. nul in : o! mon j ■•. tlu voyage and be can find m will lend it t.. him, and the consignees bm mai sell merchandize to the amount rcquu 1 • Vnd those whose merchandize is thus sold, shall be preferred to all «>th< their claims for u. The ordinance of Wisbuy, V) says, M lb i whom the merchandi: Id for th • But if the obligee of a make 5c\ci al • ihc oblige* 4. ( . '.In ihip I .lit s laio lu Mich cue, ti • impTied hypol upon : (I in tlit admirmlty. H \ . .. - • :.: am n : it the : the vessel. He al d the pled twing dm port. < hi l> dmiralty. A ; . . i , . denied, ^ n,. Maritime Loans. 235 cessities of the ship) "belonged, or the creditor who shall have lent money shall have a special lien and right of attachment against the vessel." It was not through negligence that the ordinance, [a) has omitted to provide for merchandize sold to a art. 16, supply the necessities of the voyage, because in the m : ^ s la V- J , » , • • & , • n saisie. 19th art.(o) the master is permitted, m case ot ne- b tir da cessity, during the voyage, to borrow money at capitaine. bottomry, or to pledge his rigging or to sell a part of his cargo, on condition of paying for it at the rate at which the rest may be sold. The money arising: from the sale is considered as monev lent for the necessities of the voyage. He has then the same c Vall "> J o m torn. 1. lien as a lender at bottomry .* They should be paid pag . 343. in concurrence.(c) The ordinance^ é//* places in the same rank those 3rd. Len- who have lent money for the repairs, victuals and f "e the equipment before the departure. depar- art- 16. tit. de la saisie. ture * In 1775, I was consulted, whether those who Material have furnished timber and cordage ought to be men ' placed in the same rank. I answered in the affir- mative. For it is of little importance whether mo- ney or materials be furnished. Material men, in- deed, should be more favourably regarded, because there is no doubt about the employment of the arti- cles which they furnish ; but it is not so certain that the money lent has been appropriated to the vessel. f This explanation non est extensively sed intellectiva. Such is our law. * Pet. Adm. dec. 277. Gardner et al. vs. the ship New- Jersey. t But if material men take other security, the ship is released from the lien. In the Maryland district court, Gordon filed a libel against the ship Alexander, for cordage furnished. Brown, who had purchased the vessel from Wilson, who was the owner at the time when the cordage was furnished, appeared as clai-. / / W'.lkllH II «"III, lb uld Ik plai i 'I m tin i .tiii* rank it ; It \\..s ■ ■ The ( ■' M i bi| ped in a v< -• I, and n '1 in the lull «-I lading, l><- lost, the ship l ilu< . but w itnout prtjudit < to ill Chaptci 61, adds, that "tin captain oughl the un i< liaiuli::< in damp plat « s, rtOT nigh to tin mast. In lm, sink or in oth< r situations w it ih.i\ h it be injun d ! the deck, sides, masts, sink, helm or other places, in consequence, of the hold not being pro- perlj covered, the captain is ans we r abl* forth Il the captain b< insolvent, the ship is li and thosi who are thus injured are preferred I other creditors ( ;•.« ept th n.*' The VCSSt 1 tB hound to tlr the vessel. Règlement pour la n gatwnoj art* l ■ ■ I ■ . ; .. It i ins thai the lien of those whose naerchandi h.ts been lost or diminished I resulting from arrj other causi thanthi peril oft! ought to hi placed first; even before the seamen, - or dam eralrj proceed from their fault. It would be iiim h more just to give sin; the preference to those who have lent moue) b inant, and contended thai the lien l'a having taken a note at six months in payment i hill when I so die court decided An .; from this decision was pi ranted, ICthM the doctrine of liens created hy tlv time, the reader is i (1 to a (!( • \\ iter of the Mary la trirt. in the case of Stevens vs. the Sandwich* i'et. .\dm 233, M mAa. Maritime Loans. 237 the departure; because the former are ignorant of the provisions and loans that have been furnished in the place of equipment. But the Ordinance, (a) f. ar J- 16 places them only in the fourth rank, although the saisie. second is allotted to them by the Consolato. The Ordinance, in the place cited, divides the creditors into but four ranks ; and "as to simple contract creditors and others not privileged" it says, " they shall be paid according to the laws and cus- toms of the place where the decision may be made." It is to be remarked that the Ordinance does not 5th. say that there shall be no more than four ranks of t ^ e s d fô r privileged creditors. Its provisions are not so ex- the pre- clusive. We are then permitted to add other credi- . m,utn of tors to the above, if there be others who are entitled ranee. to a lien on the ship. In this class are the insurers to b v * hH » whom the premium has not been paid. I think i6th art. they should be placed in the fifth rank. (6) tit.de la •«r . * ' ... ,. „ ,, , .' « - „ saisie des Vaisseaux, torn. 1. pag. 34j. V. Traite des ass. ch. 3. sect. 8. Z\ securities for money lent by maritime loan. "These the hands renewals," it provides, "have no special lien on ofthe the profits of the voyage but are to be considered by're-^ as among the youngest privileged creditors. If the newal of merchant reserve the profits of each voyage and tract. "" leave the principal in the hands of the master to be c ch. 19. again employed, his right shall not be good against art - 2 - the tradesmen and victuallers, nor those who have lent their money by bottomry for the particular voy- age." In the 10th art. h. t. it is also said that " money left by renewal or continuation of the contract, shall not come into concurrence with that which is ac- tually furnished for the same voyage." .in I 1 10th ;irt. and ii U • . I ftuppon the In to rior t" .ill i • ti a t"i i Tl I I s !( sl(i 1|( (1 f.ll I ) il.< i . .■• M I ! Of i i tin hull, / f. On M h i^ r , Ik 1 in ilu Bam ihe further sum of 15 livres on the hull, i M i in, at the « >n 1 ! ' nsuinç, wi ti from ti N paid i Hut .\i\ up io the 21si tx i. l 763. T m bei n in his . lr'.m the « R . ith in- lllg aj< ution. nth r, . -i rata* • rc n d ci c d In the Parliament o\ . by which the ; tain was condemned to pa} the whole sum with interest and costs. The sentence was I Livres, :^c. From this sentence, the owners appealed. Ra consult me, I told him tlut his claim i Maritime Loans. ^3P the two first loans had been rejected very properly and that there was nothing due to him, upon which a common execution could be issued, but the last loan; for the ship had made several voyages after the 15th December, 1765. Consequently the owners were no longer responsible for the contracts of the captain. Raoul followed my advice. He acquiesced in the decision and departed with as much as he could obtain. On the 10th art. h. t. M. Valin observes that " it is only those who do not foresee the consequences of this article, that can come within its provisions. All that is necessary, is to conceal the existing contract and make another instead of renewing the old one. This authour has carefully guarded against authoriz- ing a practice which is but too common. Those who are guilty of it, commit a crimen falsi, and deserve to be severely punished. The 17th art. faj places the vendor among the fth. The privileged creditors on a ship which has not yet put %en or " to sea. But the 16th art. of the same title, in pre- 1,,^ scribing the order of liens upon a vessel which re- turns from sea, takes no notice of vendors. Nevertheless, by the common law of the kingdom, by the statute of Marseilles, (b) and by the délibéra- £f*s- tion of our Chamber of Commerce, in 1730, ap- ° proved by the Parliament of Aix, the vendor on credit may reclaim the thing sold, which he finds existing in the same state, in the hands of the pur- chaser, to the exclusion of other creditors, in order to pay himself. The vendor of a ship which is not yet paid for, may then reclaim it by action, to pay himself, pro- vided he yields the preference to those creditors An / \\h " I nant t«> the . i( th« . should !m I it Ul tu simple mnri with simplr . urns have no conn< ivith ( ! - uis aim 1 ':.« lor has always ! i . that is, b) those whose debts ; lation to the ship, lint si am< n, tl i vt lent monc) lor the m i ing the \ ■ \'. ho h.i\ c m. repairs, victuals and equipment I departure, and shippers, are preferred to the d<>r. The ship, 1a puttin under the name and at the risk of the new owner, I ■ l>c liable to the < reditors of the vend I with m ■on the vendor ceases to hav< any lit that which it suits from the general rules of lav. . • H y the French Lan the teller of merchandise I |)UI sue I iter for il Ml l>c idci be ii son. This n «ill inin. out notice. B dered that in i r nicd aa it is among us, with ;•. reccptin lull endorsed or at the foot for the whole i the ternu o( pays d <>n the bee of the instrument of sale. Therefore thi without not ic i uii never occur. It the vender should en in full on the bill ol ild undo*] hi>> lien, and be driven to the new security which he hud ih< proper to take from the ST. Maritime Loans. 241 SECTION V. Priority of liens on the Cargo. The charges for unlading, porterage and storage lst - cur- are placed in the first rank by the L. 6. $. 2. ff. çutiSing™ potior in pign. Si merces horreorum, vel area, velvecturce jumentorum debetur ; hie potentior erit. In the second rank, the captain should have a. 2d;Fr ^'g h t lien on the produce of the cargo, for the freight *ai ave'- 6 and general average, (a) Ipsum naulum potentius ra s e - est.(b) °.* n - 24 - 21. h, t. tit. du jet. Kuricke, quest. 11. b L. 6. § 1. ff. qui potior in "'" u pign. If, in the course of a voyage, the shipper require 3d. Parti. , . j J & • • - ll • S • , culararti- money to save his goods or repair injuries vvmen cies fur . may have happened to them, the lender shall have nished a lien subsequent to the freight and general ave- ^"JJ^ rage. Si cuis in merces sibi obligatas crediderit, ut age for salvce fant.(c) tliesafety of the cargo, c d. L, 6. §. 1. All those who lend money on the cargo or on 4th. small adventures, before the departure, come into Jj"^* 8 concurrence. The 7th art. h. t. gives them an the de- equal privilege, without regard to the dates of their P? rture - Suprà, respective contracts. (d) C h. 5. sect. l. §. 2. m an m- terme- If the merchant borrow by way of maritime loan Lenders in an intermediate port, in order to increase his ad venture the second lenders are not preferred to the diate first. They come into concurrence, because mo- pon * ney borrowed in the course of the voyage, has not had for its object the preservation of the common stock. Si diversi creditores mercatpri, sub obliga- tion mercium navi illataru??i s pecuniam nauticam. dederint, nullum inter eos esse pralationis ju$ y ra- G G ■ ■ 79 I . ritii m iii <»|" the .t.(cj The Btatuti ol M i it is to ■ ven : . d) • that the di the ■■ the • I • ■ h. t. him wrho furnishes m ■ ; to tb emplo) n* L It suffi in order to liem liable to the claims of the lender. li Male. dt The 17:': b lias put i' - ndof among the privi him a pn E : he hull, i not c< hum i < until tlv ship li is nchor. the risk 1 ding comm i moment it is put on boar J. rs to a hen Maritime Loans, 243 is consummated by lading the goods and that of the lenders by the departure of the ship. Now since the vendor of a ship which has put to sea, is ex- cluded by the lenders on the hull, the vendor of merchandize on board should be excluded by the lenders on the cargo. Thus, I cannot but disapprove of a sentence which our Seneschalsea tribunal* rendered on the 20th August, 1777, in the case of the heirs of cap- tain Orange, by which an absolute and exclusive privilege, notwithstanding there were lenders at maritime risque, was given to Mess. Ferreol and Bignan ; for the amount of certain linens which they had sold to the captain and which were found yet in existence at Cape Francois at the time of his decease. Mess. Ferrol and Bignan held a note payable to order, for the value received in merchan- dize. They had not furnished the goods as a part of the cargo ; the bill had none of the features of a maritime contract about it, and ought therefore, to have yielded the preference to the respondentia cre- ditors. The vendor, who is not paid, may reclaim his good, if he find them on board or elsewhere, still in the same state in which they were sold : but his lien cannot operate to the prejudice of the lender, whose right is established by publick law. With much greater reason, every sort of privi- lege should be refused to a vendor, whose goods are no longer in being. In 1767, Etienne B. bor- * Tribunal de Senechanssèe. Before the late revolution, France was divided into Bailiwicks, for the admin isttation of justxe. In every one of those districts there was a judge cal- led Seneschal f steward J and his tribunal was called Seneschal- sea (in French Senechanssèe.) In some Bailiwicks, that judge was called Baillif. and his tribunal, bailliage (Bailiw ck or county court.) This tribunal had cognizance in the first in- stance, of civil suits to any amount and also of cr.minal causes, subject to an appeal to a superior court, 244 Ak i l\t is MUMS o ■ > (1 in the vr.s. All • i.i. . there» ll sllCcl easlheJu I \\y were. I I.' ( ses brmerl) <,t . u hose decision there i kate. .13. Maritime Loans, 245 SECTION VI. Claim of Property. — Severance of Property * He who has furnished the timber with which the *§• *■ ?• vessel is built cannot reclaim it, because it has be- rer. do- come a part of the ship. Navi tabula cedit, says? 1 }"'^ the L. 26. (a) The materials of which the ship isç.s.'ff. ' composed and the ship itself, are considered as de p|gn. different things. Ahud est materia ; ahud navis.(b) "uj ' But if the materials can be detached from the ship without ruining it, as, for instance, the masts, cordage, sails and anchors, the furnisher may re- claim them by the action ad exhibendiwi, according * The title in the original is revendu cation \ distraction, which I have endeavoured to render more familiar to the English reader. By the civil law, he who has sold goods for cash or on cre- dit may demand them back from the purchaser, if the purchase money is not paid according to the contract. The French a- dopted this law into their system under the title revendication, which signifies re-claiming or re-demanding. See the 85th Parère, [answer or opinion] of Savary, where this subject is well treated. If the creditor seize more than his own goods, the owner of that part may demand a separation, [distraction] of the pro- perty. We have no technical terms in our legal grammar which an- swer precisely to these, and it is to be regretted that we have not adopted the principle. However prejudice or part ality may deride the manners or abhor the morals of this nation, we should not be ashamed to imitate thcr wisdom. It is not unu- sual for merchants on the eve of bankruptcy to purchase goods on credit, in order to enable them to bubble on the stream of specu- lation a little longer or to pay, what is called, their accommoda- tion notes. The latter case is a fraud which deserves the seve- rest punishment. See an attempt to introduce the principle of the action of revendication into our law, in the form of an action of replevin, in the case of Haskinx vs. Latour, 2 Hall's Law Journal, 181. nu ml rule • I : not ship. I ken of thr ■ he Km!' ( \ ' i ) . i . ■ / borrowed fi th< sum oi In n s on Ins hull an < icd and tlic m 1 returned to I The mother of Orange's children cmpon I • incis Guichard, , to di mand the fit ight, and to disp \ short time afl '■ her m\ v. ni» benefit The lemlc : the effects which were mi 1 ,; iur lici\ • bed, in the hands of Guichard, the sums which he had n Me. Scytrc, tl.< y 9 inasuit brought by 1 ditorsal r the distribution of the ci fthe d, li.i\ ing obtained a provisionaJ ordi : livn thereof, bind Guichard * J I in favour of the I cir, a ) accepting the i don thai I not be •id the ^alllc of the p tod B Co. ] V. j Maritime Loans, C H1 far this sum. Guichard pleaded the attachment laid in his hands by the lenders at maritime risque. He contended that they had a privilege and lien on the property in his hands, which was bound to them, to the exclusion of all other creditors : and that therefore the costs must be demanded else- where. On the 17th of August, 1775, a sentence was rendered against Me. Seytre. An appeal was pray- ed. The case was reduced to the point whether the lenders' application for the severance of the property bound to them was well or ill founded. On the 1 7th of July, 1776, an arret was passed, on the report of M. de la Boulie, which confirmed the sentence, whereby the question was fully settled. A definitive sentence was rendered on the 20th August, 1777, by which the severance was ordered, as prayed bv the lenders for whom I contended. This sentence is now the law on this point. The following is an abridg- ment of the argument that I wrote on the subject. The action of severance takes place when, in n. suit for the distribution of effects, I claim certain specific goods which belong to me or on which I have a lien or qualified right of ownership. It would not be just if I were obliged to follow the windings of a general suit involving various rights and demads and to see the thing which is mine or which ought to be mine in consequence of a special privilege, absorbed by the costs of court. Thus, the owner of a thing, of which a deceased person was simply the possessor, may reclaim it and have it severed from the general mass of the property in controversy. So likewise we may reclaim a deposit which is still in existence. The debtor may also claim or cause to be severed from the general estate of the deceased a. '.'IS . / / I tin sum for uhi< Ji il h «I t -Il i trusu d t-t :h« credit <•! « pin i him, tlic though tlu | the , who ! tl>< mit for th< distribution of Un y of his < , require the if the tel which he sold and for v. hi< h hi ha id; for the purpose of li ! hi ing paid out ol I to ev< i\ oth« r i reditoi . t on i • \. ill | . \ his debt, b In \unx( is first It oj a new g i h trusted in tl the Iran dit ; the i urcbas r tlu primitiv< .•ill non had ■ of distribution undc i sion. All that is aubj< nerai and all that is subject to n property* r a particular which is distil. from tni gt ne ral mi What has been pli - town lied, in cases of bankrupts, the right of pursuit. Th dor ol merchandize, who has not st ize it. And he may havi in order that il privilegi d debt. B bunk i ito two classes : the I Maritime Loans. 249 is the property of the general creditors, and the othei is subject to the respective liens of particular creditors or to the quasi right of property to a thing yet in existence. This distinction or division takes place every day aL. 22. in commercial partnerships. The partnership is as j e -^ s ri " one person. (a) The property of the partnership, b Dupny-, considered in one point of view is not the propertv of des 'f _*i _ trcs do the individuals in their particular capacity, (b) The change. creditors of the partnership are preferred in the joint ch - 16 - property to the creditor of one of its members, al- journal though prior in date, and even to the dowry of the du PaiaUi wife of one of them, (cj P ° a ™' 779> torn. 1. pag. 776 Journal des Audiences, torn 3. pag. 178. Toubeau, c Journal torn. 2. pag 101, &c. du Palais The creditors of two different firms, although they are composed of the same persons, have their respective privileges against each partnership. (d) D. dh.s |. and Mess. D. and A. had made a joint composition tribllt . with their respective creditors in which the property act. of D. personally and the joint property of D. and A. were confounded and the creditors were mingled together. But an arrêt was passed 30th June, 1767, by the Parliament of Aix, by which the property was divided into two parts. If the same person keep two shops, duas taber- c L- 3. §. nas> the creditors of one have a preference on its tr j[, uti e contents to the creditors of the other and so vice act. versa. [e) The creditors of two different partner- ^"decoc- ships have their respective liens on their several tor. part. effects. They are divided into two orders of distri- a„ s ?|. bution, because the respective creditors have con- dus, disc. tracted rather with the firm than with the person, t' Bro " , , *T cieau sur Unusquisque enim eorum, merci magis, guam ipsi la con- credulit. • " m . e de J am. pag. 447. n. 6. TtVubeati torn. 2. pag. 381. ton,. 2 H H • I ' I . - loan is more << l< , (1 m ;:.'•' I . fn : His loan was to th< \< sua I 01 . f. II' may, th< n, apply t., i! r paj iK nt . but it is : il 1 1 involved in listribul The ship of a bankrupt arrivt s. His ( ffi distribution tak I ■m the doctruv I whi< h I . the lierai, for the dut* II others si- milarly circumsi tl»-»î i reasonabl) I nc b) the ship, the duties bj i. ... . q • < he com- '• In the < ;n *l law, Ued r»«f which relati . ie, would a real aetton. I» die same manm» •ract mad redit of property excloaiteljr, is < ^ 1 1 <- « ' , ; -u I to say a contn - OZ 1 Mar Hune Loans. ~z Now if, in all these cases, there must be a seve- rance, or rather, if the ship and cargo have never been included in the general suit of distribution, the same rule should be observed towards those who have a privilege of a similar nature as the seamen ; a tit. de U for the 16th art.(a) confines itself to establishing the ^;: deb order of priorities without altering the nature of the seaur. privileges. Another arret. In the year 1771, captain Jean- Baptiste Mourardou equipped the snow la Vierge de Grace. He borrowed at maritime risque on the vessel 500 livres of André Raoul. 1,000 livres of Jean Pierre Plasse and 1,000 livres of Jean-Baptiste Fabre. To the two last he sold an interest in an adven* ture which he had on board, and he borrowed at maritime risque on the cargo, several sums ot Jac- ques Ventre, Jean-Pierre France, Fodrin and Botir- lier and Francis Gilles. He sailed from Marseilles and arrived at Satalia, in the province of Carama- nia.* All the merchandize composing his cargo, the joint and the separate adventures were together. He sold a great part thereof, which he converted into the produce of the country, without noting in his book the price of each separate article. He continued sailing and trading from port to port to Damietta, whence he returned to Satalia, where he died 30th March, 1772, of the plague. The mate brought the vessel back to Marseilles with part of the returns. The rest was left in the hands of Uoubin, Provencal and Co. who sent the proceeds by capt. Dauphin. Claire Bourellv, widow of the defunct, was appointed guardian of his chil- dren, jvnd administratrix to the estate. f * On the coast of Natolia in /viatic Turkey, the ancient Anvai'Aia in the province of Asia Minor. t In the original it is : she took the succession with benefit of inventory. We have already explained what that is, still, as / T! on w lii« !» if ■ |Ih m, to di \ of 1 st ilk s, on liit 1 Tlh Jul\ | 17" " ;i. non should I" severed from ih< Bapi istc M< mi. in!'. u, in ordi i thtt i should be appropi iati <1 to the up. el K.t\ 1 1, I ' 1 the monk s I i,t bj them on botti >mry w itli n This sent on th( . L8 well ;is that ol 1 ' and Fab< r, win» claimed as partners of the captain in the small adventun ; because the returns which had arrived ai Marseilles were mixed and confused I This reason was not a legal one because the whole being the propert) "I the captain, it was subject to the hens ol the respondentia creditors. The} sp- rit* nee. PI iss4 and Fabre, also appeal* d, as \ artnc rs of the i sptain. Vn arret 6th June, 1 1 report of M. d< B* luval, which rev< reing the d u that tlu ceeds of the returns should be from the of Mourardou, in order to be tributed among tlie respondentia creditors, to the sums lent with maritime and « id the remainder of the pre adds "shall DC distributed bf twt i n the ai Fabre and l'lasse, to the amount due to th( ni i( .y th( ii" share in the small adventure, with aim- nv i. bin read » w l.avc thon i ht it right, in this as in other in t :, l( >, tomukt. us.- of an anak^ous <..\pre;>sio.i of • • n law. Maritime Loans. £ 253 mon legal interest and costs ; saving to the afore- said Fabre and Plasse, their right to recover a- gainst the heirs, all further demands, to which they may be entitled," &c. SECTION VII. Concurrence between the lenders at bottomry and tlie insurers of those who have privileged or con- current claims, on the property saved and the policies of insurance. The expenses of salvage are preferred to all $. 1. Ex- others and ought to be a preferable lien on the pe , nces of . . o I salvage. whole .(a) , „, 1 ' a art. 24, naufrages, art. 45. tit. des assurances. Vid. Traité des assurances ch. aiu i 26. 17. sect. 7. §. 4. • t i t . des After the expences of salvage the wreck is affect- Mariners ed to the seamen for their wages. (b) wages. & V ' b Traité ch. 17. sect. 11. des ass- After the salvage and wages, what remains of the Other wreck is to be distributed among the other credi- creduors - tors in the order specified in the 16th art. tit. de la saisie. In my treatise on insurance, (c) I have spoken of Privilege the privilege which the mariners for their wages and f r n e lh t . lenders by bottomry have on the freight. sect. 9. and 11. cch. 17. M. \ r cum. fdj makes these remaks. " When J ,2 ' h g ien the solvency of the owner of a vessel which has policies. put to sea becomes doubtful, the material men and d art. 3. workmen may demand, whether he has insured his tif de ? vessel and to what amount and that he may be or- Ems" 1 ' pag. 296. torn. 1. i I llir i i irdcr that th lu\ « the l> m lit privilege il tin ; done. \ Imi- it them such » Id nm thi ' losing .ill that is (lu<* ., <>r al part oi it, in co «nu i being <. flccU d. Ii transfer tin on Lount oi the polii \ , that this pn j|d \h taken by tlu I m* n and w ! ."were ili<- owner neglects or i have a right to - I- done in his name. From \\hi< li it follows, that il the ' an insuj without being constrained to i I doubt that in case of the loss of the vessel, the material men and workmen would be entitled to their privi. I • in the same manner as if th \ themselves li.id .1 the policy. But, by an arret of the Parliament of Bourdt .1 1 in the . M. de Marboulin, the lather, on the 7th September, v ! 1, ( ourtés and rupts and their several creditors, the privilq lien on the policy which I contend for, the : I. nun, was : the principle that then is no law, which authoi the transferring of a privilege and that ever) privi* lege ought to be established bj some la Th*tsde< ision dors not . M. Valin to be just, "especially at Bordeaux," he they hold as a maxim, that the price of a thing so as the thing itself, that the vendoi moveable property retains lus privi for the finds it in the hands ol a ! pur- - r. The application ol this rule- to th a privilege on the policy in favour of the material* m< n and workmen, is so natural, that we cannot Maritime Loans. c 255 conceive how a difference could be made. The produce of the insurance as completely represents the ship, as the price does the thing. It is true that this maxim of the Parliament of Bourdeaux is not adopted in the provinces where the civil law does not prevail: but equity no less requires that the pri- vilege of the material-men and workmen should be extended to the policy, since it is really their pro- perty which is insured, at least as far as the ship with her apparel and furniture." To this I answer that with respect to a separate n «fe and specific article the price does not take the place „edîto." of the thing sold. /// particularibus, pretium non disc. 35. succeckt loco rei;(a) Those authours rely upon dif- p abfet ferent texts of \sw.fbj It follows from this princi- def. 26. pie, that if a purchaser on credit, has sold the ^''"î, thing on credit, and it ceases to be in existence in pign. its original condition, the first vendor has no privi- t m P T er ' lege for the price against the second purchaser, al- iiv. 3. though the price grows out of the thing which be- "J 11 " 1, 1# longed to him and for which he has not been paid. Code, v. This is the rule which is constantly observed by the discuno, Parliament of Aix . With more reason the material- , _ ' men and workmen, have no privilege on a policy $. 3". ff. which never belonged to them. For as Cujas says, ^ '^ at - ( c^there is nothing necessarily common between the c.in right of pledge and that of property : nihil commune 9 aib - habet pignu*, cum dominio. pi^ c on the law 6 §. 8. ff. commun divid. In a word, the ordinance gives no privilege to the material- men and workmen but on the ship. Conse- quently, they have none on the policy, according to the rule established in the preamble of this chapter. If the ship were represented by the policy > it would f^'^. be necessary that a privilege on the policy should be e Vid given to the seamen and to every other creditor, men- Supri dh, tioned in art. 16. fd J By this means, the purpose li/T^ of insurance would be destro} ed.(c) 1 I ts Inst wri ted by tJ i insured, ih ncc ; b i ii i (1 has no din 1 1 m iv m n< >r pri in ur.uu < . Thllt, thl I "i SU w hit Ii M. \ -ih , is not admissible. This point b< in 5 thus < x plained we ma) 1 some difficulties that have been started on the sub- ject. Have the material* men and workmen ;i righl demand of the owner of a ship that has put to w In ;1k 1 be I» is insun d th ml ' I think not. Thej might hav< the vessel befon she set sail, but having suff her to go, thej have nothing but a personal a< against the owner and a privfleg» on the «-liip. The n of effecting a policy belongs to th rand it he become bankrupt, it is th ty of his cre- ditors generally. If, before his bankruptcy , hi had caused poli< to 1 ' ted. thej would belong to the general mass of creditors and the material-men DM n WOUld nut be entitle (1 to l.i\ < Lim to tin in. If, while he is in busilH ss, th a third person, policies effected before his failure, they would belong to the assignee, exclusive of the materialmen, workmen and the general m < reditora It is true, that during the ri^k, th licy is an accessory of the thing insured, as I have ■ Tni.c observed before.(6) I- - . After the loss of the ship, the policj becomes a substantive right indrpend j thing else and gh ht of personal m in Favour I f the assured, <>r <>t" his creditors or as- 2d. During the risk, the policy, notwith- standing its dependence 0:1 the thing insured, is an Maritime Loans. c 251 eventual debt, capable of being assigned, aMid does not belong to the material-men or workmen. There is an easy method by which they might « Gode - secure their interest. They might procure sureties, L.'i9. a §. who, for a certain reward in the nature of a premium, *• ff« de would become security for their debt, in case Qf a dL.*6. the loss of the vessel. For we may become secu- § 7. ff. rity on a condition and it is not essential to suretyship Serine?- that it should be gratuitous : jidejubendi causa pecu- us', de niam accipere possumus.(a) Suretyship is different ™[j£ j from insurance and what I have here said does not cap. 27. militate with the observations in my treatise on in- " ng - J pag. or>2. surance. nonrinus, pag. 661. Roccus de assur. not. 76. Duperier, torn. 2. liv. 2. n. 86. C. de fi- pag. 94. dejus. The material-men and workmen are not co-pro- prietors of the ship. If they were to make insurance on account of their privilege, it would be improper as an insurance, though it might be regarded as a security and authorized by that name. At least such is my opinion, for it would be well, in such a case, to mitigate the rigour of the law and give them some means of securing their interest. However, it would be wrong to conclude from this that seamen may secure their wages: the lender his maritime profit ; the merchant, the profit that he calculates to make and the captain his freight. Reasons of publick convenience do not permit them to secure these objects nor to make insurance upon them. Ship-wrecks would become too frequent, if personal interest were not concerned in the preser- vation of the ship. Moreover, the wages, profits, &,c. depend upon an uncertain event and are condi- tional debts which have no certain existence, and are also less susceptible of suretyship than insurance: instead qf which the privilege ot the material-men I i ■ 1 / I : hip buil D G rin, ( bankruj ( ( d on ti I / h I». id '. 1 I ..lied ill. . D ■' Wh likewise been taken In' th< i. I). An award wa t 1st May, 1783, b) M.M.i * ux .iiul m i\ self, lb by which it u.is declared that thej wei d to it of | I wit oi th< \ i bs< N w hich wei to tin. n». m this principle, th to the l< iuIct on the whole •> hi< h tin born. put at risk, is j. s, \\ lui h the latter h cd on ! | rt) It is true, that for hi the L to the insurer, as i «an. i& feots saved : wreck, a But that is ail 'I h - '• fit ol the- insurance still r< m ans ti, i 1 iwer. I: wi iuld, 1. , . [ if Valin's doctrine were adopte . :.._•. I . ;• des Absur. b) Maritime Loans. 2 > In my treatise on insurance, (a) I have spoken of fj^^ the concurrence between the insurers and mariners, between insurers and lenders, and also among insurers them- jjJJ^ selves. In this treatise, (b) I have spoken of the con- a ch X7 [ currence between the lender and borrower and in sect 11. the present chapter,(c) have treated of that between J^ lenders themselves, &c. t>c\\. i\> c sect. 4 and 5. scct - 2 - SECTION VIII. Of priority in cases where there are secret part owners by assignment from the original owners. The cession of a part of a person's interest in the §■ Gene- ship and cargo or in a particular shipment is common vat ions. among us. It is a sort of secret partnership. The speculation is made in the name of the assignor, who has the management of it and who binds himself to the assignee to divide the net profits with him, ac- cording to the proportion assigned. I say the net proceeds ; by which I mean what remains after de- ducting all costs and charges. If the assignor fur- nished the whole capital, he, of course, must take it back, before dividing any profits, and would be preferred, in this respect, to the particular creditors of his partner. It is prudent to register the assignment in the of- fice of the admiralty before the departure of the ship : otherwise, the ceded interest in the vessel would d , continue to be affected to the debts of the vendor, Navires. conformably to the 3rd art.(rf) As the assignor is the manager of the common ad- §• 2 - Are • • • « tliosc w ho venture and the chief in the partnership, those who ; en d mo. risque to the assignor preferred to the assignee ? ney at I t., i. i sJwd hii 1 1 1 thi and thus m \ tin .h i' i of tl. ... (I i:i tli' s \ • > the . iistoih of the assignor; it is to him a sur: ,othc i venditor, f I : ! 1 interest in my ship and cargo to the i •inst . bei oming mj i three bills of maritime loai . and i ! ■ ■ n Bp( ctiv< l\ , in the foll« ino. "The undersigned Honnoré B. bcinj ! in the one half of the Actif, her tackk irgo, commanded by I'i' rre Guichard and now at an in the port of Marseilles, acknowledges to hav< ccived ol Mr Louis Aycard, the sum of at miIi sum has been employed in the equipment of th i and procuring tlu said vessel for a voyage to the Weal India Islands and bai k to this place, at t; • tin said Aycard, to whom, <>r to wha I promise t<> pa) the aforesaid sum with maritime fal- len stoi sev< n / 1 /• ci tit. On the same day, the account current betwo Aycard and B. was stated between them in tin terms. "J acknowledge the present it cur* • Non :• on, .i term derived from the rml law, is the change «lii< Ii the creditor rod debtor make, who mbttitutf m ÙM WOthei •; so tliat t lie f;r.-|>"int« <1 l« buj or -• il nu n handize, Ik binds the own< i ( wtcm. '■■ I nu tl rs not what is the 'tl id wh< tl - int of ; ; or of another; nor mi tti rs it of whal who appoints him being to impute all to himself. rum aittcm. "■ ■ V\ not onl\ cafl him master whom th< ownei d, but him a! has put in his place, and so tin rned Julianus answered to an 1er. B ides, ws and sufii : s him to at t at t( r in the vessel, he is su appoinl him. This opinion appears to me indisputable, lor, who has inted a master, must answer for all hi those be v< r id "I* '" tr ' in11 ^ 1!1 rtain rcgion6and incertam s « is, I hen in- Is which pa or Dyrrnch urn to Brudutium, and whi< h unable to carry burthens; some of them me able ;i on rivers hut not on the s Sijflures. | IS. If there an whose offices are not distinct, what by any i of them shall bind th own< : : il their offices arc dis- til ght, Lhc other to n ceive Maritime Loans. ( 2~\ the freight money, each shall bind the owner for what he does in the execution of his particular office. Sed Es? si. k 14. But if they have been so appoin- ted, as is done in several instances, so that none of them shall do any thing without the concurrence of of the other, whoever contracts with one of them singly, must impute it to himself. Exercitornmautem. \ ]5. We call exercitor (a) the person who receives the freights and profits of a vessel. Whether he be himself the owner of the ship, or whether he has hired her from the owner for a time or forever. Parviautem. \ 16. It matters little, however, Whether this exercitor ', this general or special owner, is a man or a woman, a father or a minor or a shive ; but if a minor owns a vessel, the authority of his guardian is requested to legalize his contracts. [ (a) The Latin word exercitor cannot be rendered by an ex- actly corresponding word in our language ; it answers to the French word armateur, and means not only the actual owner of a vessel ; but he who is in possession other, whether for himself or for another, who has the care of fitting her out, and who acts as owner, though it may not be in his ov/n right. Thus a speciai owner, one who holds a ship in pledge to pay himself out of her freights, or one who has hired her for a voyage, or for a limited time, and also he who has? the vessel in charge as the agent or factor of the owner or owners, all come within the meaning of the word exercitor. Ihe master himself may be exercitor in many cases and under a variety of c rcumstances. The English term " shi/i's husband" comes nearest to the idea which the word extrcitor conveys to the mind, but it is a word but lately brought into use, and not yet sufficiently defined. It has been generally employed for the acting owner, the one of the part owners who has the actual charge of fitting out the vessel, but we do not know that it has yet been applied to a mere agent, though perhaps it might be so applied without impropriety. It must be left to time and usage to fix the precise meaning and application of the word.] / / ; i i ; . I 1 with th I truor dinar) ici I 1 1 1 m ■ ' ituitoul} V. • ■ foi the publick U ne lit, will ov • . 19. If tl i i>. in aimlhi i li. htt consent, judgment .si. .ill '' in w 1,. iae power le with I I!.. Licet • . . . But although an a< tion • him in who» | i >n erl it must . v. itli I : i.t. I ' I ^ ( i. ill} ) wl ' | l. ..ilil. But tin lis w ith n mploycd in and I the fit l r itii siu h ■ pet affics on hi» own account, with i: Bent "i !.. fukll onlj . titk d b • of the factor's ; in vessels ith the k tb without il ' f him in w'. ht is, shall we | ni guardian as if lu or Maritime Loans. 273 only an actio tributoria, that is to say, extending only to the p ecu Hum or hereditary portion of his depen- dent? It is best in a doubtful case to follow the words of the edict, and not to raise an obligation m so- lidum from the mere knowledge of a father or master in the case of vessels, nor from his consent in the case of mere land traffick, and such seems to be the opin- ion of Pomponius ; if, says he, the master of a ves- sel is in another man's power, and act with his consent ', then the person in whose power he is will be bound with him in solidum, otherwise only in peculium. Inpotestate. ) 21. By those that are in the power of the other person we mean, sons and daughters and servants of either sex. Si tamen. § 22. If, however, a servus peculiaris that is to say, a slave belonging to a minor or to ano- ther slave, as a part of his peculium, shall act as excr- citor of a vessel with the consent of the minor or slave to whose peculium he belongs, the father or master who has not given his consent shall be held only de peculis, but the son himself shall be held in solidum. Clearly if they act as exercitors with the consent of the father or master, they shall be bound in solidum, and also the son, if he gave his consent, shall likewise be bound in solidum. Quamquam. § 23. Although the prœtor allow the action only in case of a contract with the master yet (as Julian has also written) even if the contract is made with the exercitor himself, the father or master shall be bound in solidum. Hœc actio. § 24. This action is given against the exercitor ex persona magistri, and therefore if you elect to sue one of them, you cannot afterwards sue the other; but if the master pays any thing, the obligation shall be so far diminished: and so if the. M m - 7 i . 1 ■ I ihinj « itl or in th I the m.ist r r , tlic ■ til In I t he that | nu .s 25. 1 t as .i maj sue .ill or ;ui\ ol ihcm jointly an< Jly, l.\\\ II I / A ■ I pi ...A< i man shall 1>< dri\ en tO .u.n ted onh u ith i \.\\\ III. I / ? <]uic(juarn....\\. makes no kind of dil what slu.ii Led had in tl i : it is liis I make du otb i part ov butc by i I . \ w i \ / . . • s .' . - [f sevi i.sl ai t as i j-, re ih iheir own persons thej shall I)- bound a< cording to their respective shares, nor shall tin \ beconsid id as l: tt rS L.l thi \ (.ah 1 for g r. 1st pâtres. ^ 1. But ii ral owners of the m< \ t. ssi 1 . , one of their number to be the master, thej maj be sued on his contracts tit soUdum, , 1 m rvant to several own actastorm û with their consent, H wttl Maritime Loans. 275 be the same as in the case of several exercitor s ; it is clear that if he acts with the consent of one of them, that one is bound jointly and severally with him, and therefore I think that if he acts with the consent of all, they are all so bound. Si serous sit. § 3. If he who acted as exercitor of the vessel with the consent of his master was a ser- vant, and the master aliens him, he who aliened him is still bound, and likewise if the servant dies, he shall be bound, for he is bound for the master of the ves- sel though he is dead. Hoz actiones. § 4. These actions will lie for ever for or against the heirs : so if a servant dies who ac- ted as exercitor of a vessel with the consent of his master, this action shall be given after the year, al- though actions de peculio are to be brought within the year. LAW V. Paulus, Lib. 29. ad Edict, Si eutn....lî you have for master of your vessel a person who is in my power, I have an action against you if you contract with him. The same if he is our common servant. You will however have an action against me ex locato for having hired the labour of my servant, &c. (The remainder of this \ is unin- teresting^ and relates only to the hiring of slaves y k?c.) Item si serous. § 1. Also if my servant acts as exercitor of a vessel, and I contract with the master or captain appointed by him, this will not prevent me from having my action against the captain, either jure honorario or jure civili y for this edict does not prevent any other person from having his action against the master; and the remedy given against / i <»i du i>\ tin dk i umulative, ;n» - Si communis. L. It' a slave l> longing to ■ raJ 1 < 1 sons act • exen ii< r ol a ^" v < li v irti the 1 msent of his masters, then an action lies m soBdum against every one of them. I.VW Ml. AfriconuSi Lib, 8. Quastionum* Lucius 7Yfiicf. ...Lucius Ti 1 tua appointed Stir chut • of his vessel: he having borrowed money, ackn ed that he had n w m d it for the repairs of the vess t. [t is asked whether 71* blein an actio exercitoria in like main. if the lender should prove that the money had been actually employed in repairing of the vessel? It is answered that the lender has an action, il when he lends money the vessel was actually in want of re- pairs: that it is not, however, necessary that the len- der should take upon himself the charge of repairing the vessel, and thus do the business of the owner (which must, undoubtedly, be the case if he is obli- ged to prove that the money has been laid out in repairs:) it is enough that he knows that he lends it for a purpose which falls within the master's Maritime Loans. 277 power and authority. This cannot he done other- wise but by his knowing also that the money he lends is necessary for repairs. Therefore, although the vessel be in actual want of repairs, yet if much more money should be lent than was necessary for those repairs, no action in solidum is given against the owner of the vessel. Interdum. ) 1. We must also enquire whether the money was lent in such a place where the thing for which it was borrowed could be purchased. What if one has lent money to purchase a sail on an island where no sail at all can be had ? In short, the lender must use some diligence about this matter. Eadem- \ 2. The same thing, nearly, maybe said respecting the actio institoria, that is to say, the ac- tion founded on the acts of factors in the land trade. For here the lender must also know that the money was necessary to purchase the merchandize which the agent was entrusted to buy, and it is sufficient if he lent it for that special purpose, the lender is not obliged to take upon himself to see that the money is actually so employed. THE Second Title of the Fourteenth Book of (he Digests 5 entitled.... De lege Rhodia de Jactu, DIGEST, Lib. XIV. Tit. II. Of the Rhodian Law concerning Jettison. LAW I. PauluSy lib. 2. Sententiaru?n. Lege Rfiodiâ. The Rhodian law ordains, that if goods are thrown overboard for the purpose of lightening the vessel, as it is done for the good of all, all must come into a contribution for the same. LAW II. Same, Lib. 34. ad Edict um. Si laborante : While the vessel labours, if a jet- tison be made of goods which were laden on freight, the owners of them have an action ex locato against the master of the vessel, who has an action ex con- ducto against the owners of the goods saved, that they may make good the damage by contribution. But Servius answers, that you must sue the master ex locato, that he may retain the merchandize of the other passengers, until they shall have contri- buted their share of the damage. Nay, although the master retains the goods, he has, moreover, an action ex locato against the freighters ; but what if they are only passengers who have no goods on. An Essay un board ' It ia certain!} more convenient, it there Is, to retain them. But if th ..1 if lu hin d the \\ hol< ■ . - I, he must l.iii !,..\ c hin d plac< s in tin \ c%& I ; for it i tremel) just that those \\ln> h.i\<- s;i\(d their ; bj i lu I'^s of i. uld i ontribute to the dan . . l . [f th Is be preserved, -hip is hurt or disabk d, no < ontribution is to take- place, because there is a difference beti th( things that belong to th< vessel and those for which a reward is received. For if a smith breaks his hammer or Ins anvil, it must not be imputed to him who has given him work to do. But il that damage has happened by the act of the passengers, or from Fear oi d nj i r, the) must make good the damage by a contribution. Cum in eadem, . _. S. w ral men liants had load- ed various quantities of goods on board the same ship, in which tin re were several passengers both freemen and slaves* In consequence of a violent tempest a jettison became indispensable. It was ked whether all must contribute to the jettison: and whether those must contribute win ids on board which did not load the vessel, such as pearls, jewels, I . and in what proportion tl must i itc? and whether there must also DC a contribution for the heads of freemen, and by what :. it Could be enforced? It was determined that all must contribute who had derived an advantage from the jettison, because it was a tribute due b) those things w hie h had been preserved, and therefore, that the owner of the vessel was bound to contri- bute for his share: the amount of the jettison must be apportioned according to the value of the goods. An Essay on 281 No estimation can be made of the body of a free- man. The owners of things lost have an action ex conducto against the master of the vessel. It has also been agitated whether an estimation is to be made of the cloths and jewels of every person ? and it was unanimously agreed that they should contri- bute, but not such things as are on board for pur- poses of consumption, as provisions. And this is so much the more reasonable, because if they should become scarce in the course of the voyage, what every one has is to be used in common. Si navis : §. 3, If the vessel is ransomed from pirates, Servius, Ofilius and Labeo, say, that all ought to contribute to the ransom. But whatever is carried oft' by pirates is to be considered as the loss of him to whom it belonged ; nor is he obliged to contribute who ransomed his own goods. Port fo autem : $.4. There must be a differ- ence, however, in the valuation of the things that are saved and of those that are lost; nor is it any matter whether those which have been lost would have been sold for a higher price, because the loss and not the profit is here to be estimated — but as to the things which are to contribute they must be valued, not at the price for which they were bought, but, at that for which they may sell. Servorum ; \ % 5. Nor can an estimation be made of servants that perish at sea, any more than of sick men who die abroad or throw themselves into the sea. Si cuis: $. 6. If any of the passengers cannot: pay, it will be no detriment to the master, for he is not to enquire into the circumstances of every on< N n 1/ / im. ir the things thai . tin i ontribution is ; bill if H I i i1k " ,! ,; the y rccoi « onducto what In sli-U h Hi .- •;. 8. IUit tl boan ' ll1 oww r. ; , the findi r, for it is not < onsidi i f t. i.\\\ in. Papumuty 1 '■ L9. Respotuorwti. Cum arbor: If a mast or any otht r thing bt !■■: ing t< the vessel b< thrown out in order to avert a common danger, a contribution is due. I . \ \\ IN Callistratns, Lib. 2. Qiucstiomnn. Kavis onutta: If, in order to lighten a vessel, which ! n so much loaded, that she cannot enter a river or port, - ods arc put into the boat, that the vessel ma) not be in danger either at sea «>r in the river or port, and if the said boat pe- rishes, thos< whose goods have been saved in the ship, must come into contribution, with those who lost tin us in tii, I oat, m the same maimer, as if a jettison had been made-. This Sabinus proves, lib. tponsorvm. Otherwise, if the boat has been saved with part of the merchandize, and the \ has been lost, that is to be no contribution for the of those who lost their effects aboard the ship, Maritime Loans. 283 because there is no contribution except in case a vessel is saved by a jettison. Sed si navis: $. 1. But if the vessel, having been lightened during a storm by a jettison of the goods of one shipper, is lost in another place, and the goods of some shippers are saved by the divers for a reward, those who saved their goods bv means of the divers, must contribute to him whose goods have been thrown overboard for the sake of lighten- ing the vessel, as Sabinus justly answered. But on the contrary, those who so preserved their goods are not to have a contribution from him whose ef- fects were cast into the sea to relieve the vessel if they should afterwards be found by the divers, be- cause it cannot be said that their goods were cast into the sea for the preservation of the ship. Cum autem: \. 2. But if a jettison is made from the vessel, and the goods of some person which remained on board have been spoiled or damaged, is he obliged to contribute? tor he must not be loaded with a double loss; viz. the damage which his goods suffered and that of contribution. But it may be answered that he is to contribute, estimat- ing his goods at their present value: as for instance, goods of two persons are respectively worth twenty pieces, and some of them are so damaged by the sea water as to be reduced to ten: he whose goods remained unhurt shall contribute for twenty and the other only as for ten pieces. We must consider, however, while we adopt this opinion, what has been the cause of the damage of the goods, that is to say, whether they have been damaged in conse- quence of the jettison or by some other cause, as for instance, from their being stowed in some cor- ner where the water penetrated, for in this case they must contribute. But if from the fust mentioned / 1 1 must not burthen «-( u tu lufiered from ih l I'Ct w uli • B • :..: h mon i ubil ili f i in wit, wh< . ■ tin n m itributi . W hat th n it the damage amount lo mon than the contribution t \ I . il the things have been damage d to die , and oi i ontributc I Undoubtedly t lit not t<> I >i -ir tlïi*> double burthen. But let us enquire whether the) ought to any thin I ir ^^ h.it is the diflR : whether I lo bj throwing th< m ov< i ! m- have them damagi d bj I m r, him « ho lost hi >ught him who had them damaged bj lettison; and thus ansv n P I / fo- I . \ W \ . //( . //, / ; tarum. A . Ih I m 1 is not to be made up by the contribution of those who have d their from the shipwreck. For the equit ntribution only obtains when the ship is i d bj a jettison agreed upon at a tin» ni' er. Ai , l. If the mast be cut away, in ve the ship and yoods, the equity of con - Maritime Loans. 285 LAW VI. Julianas, Lib. 86. Digestorum. Navis adverse! : A ship disabled by a storm, her rigging mast and yard destroyed by the lightning is carried into Hippona : and there having hastily pur- chased new furniture and apparel, sails to Ostia, where she lands her cargo in safety. It is asked whether the owners of the cargo are bound to make good the damage of the owner of the ship ? I an- swer, they are not: for this expense was incurred more for the sake of refitting the ship than to save the cargo. LAW VII. Paulusy Lib. 3. Epitomarum Alfeni Digestorum. Cum depressa: If a ship is lost or cast away, whatever any body saves of his own, he saves for himself, in like manner as what is saved from a fire. LAW VIII. Julianus, Lib. 2. Ex Minicio. - Qui levandœ. Those who throw any goods out of a vessel in order to lighten her, are not desirous to abandon them as derelict. But they mean to re- serve to themselves the right to take them away, if they should find them, or to look for them, if they should suspect where they are: in like manner as a person who throws down a burthen on his way, intending soon to come back with others to retake it. 1 £ OH I \W l\ I / ; ' VI th- . II . roast i: I > -, ■ I ulm h tin- Emperor an u I am ind I I : tritime hrw ' R our law. 1 * \ similar answei was made by the Emp Augustus. I \\\ I . Lib. 1, Piihatum P < \atorum. S It you have undertaken t'> carry ml if one die during the \ is dm lor him. /'. ia this case we must inquire into the : the . whether freight was to be paid for shipped on board, or for those who rriedtotheii of destination; but if the latter is notproved, it will l>< sufficient for the mas- ve that th on I Si ta condaione, I. If you have hit ondition that mry yout and the master without bin died to il Maritime Loans. 287 cessity, and knowing it to be against your will, has trans-shipped them into a worse vessel, and your goods perish with the vessel into which they have been lately transferred, you have an action ex con- ducto locato against the master of the first vessel. Paulus says, it is different if both vessels have pe- rished in that voyage, without any fraud on the part of the master. The same law will obtain if the master was detained by authority and prohibited to sail with your goods. Likewise if the master has taken your goods on condition that he should pay a penalty to you if he did not land them by such a day at the place of their destination and has incur- red the penalty without any fault of his. Of con- sequence the same law must obtain if it is proved that the master being detained by sickness could not navigate. And we must pay the same if his vessel was disabled without any fault or fraud on his part. Si condaxisti. §. 2. If y ou have hired a vessel of two thousand jars (amphora) and have shipped jars on board, you ought to pay freight for two thousand jars. Paulus says, if you have hired the whole vessel, you must pay freight for two thou- sand jars. It is the contrary if you have stipulated to pay freight for so many jars as you shall ship on board, for then you are only bound to pay for so many jars as you have actually shipped. Translation of the Second Title of the Twenty - second Book of the Digests, Entitled.... De Nautico Faenore. DIGEST, Lib. XXII. Tit. 2. Of Maritime Loan. LAW I. Modestinus, Lib. 10. Pandectarum. Trajectitia. What is called maritime money (pecunia trajectitia) is money which is carried be- yond the sea; if it should be consumed in the same place it will not be maritime. But it is to be consi- dered whether the merchandize purchased with that money has been purchased with that view. And it is material that it should be carried at the peril of the creditor. Then the money becomes maritime. LAW II. Pomponius, Lib. 3. ex Plaulio. Labes ait. Labeo says : if there is nobody on the part of the borrower on whom process can be served to compel him to pay the maritime money, the fact must be proved by testimony, and it will be equivalent to a legal demand. Oo / ou I \\\ III / I ni, thr N mit r un* dertakcs the risque from tin da) that l.\W IN / I! ' \ hil inter. \t t li in. lt« re not whether the in.ui- t'nn j h.:s been taken without being at the. ue of the kiuU r, or wh< dur il tin risque of the en ditor afb r the < xpiration of the ti mi or performance of the condition: in eitb the - than thr common legal int shall be due; and never in the first nor in the m the time that the risque ds pledged or hypothecated be retained .;< t ink n -I. l. The daily n ward ni' a purj venng the maritime monej shall not I. tu lui inten st of one per , a month. II tin- stipulation of interest to In I after tin rise] i not amount to the whole ^t, it m ■ ipplk d b) another slipu- lation lor the 51 ar. \.\W \ orum. /'< riculo preth . The j ii< i or coi ion of risqu hatever rand above the money received on a \ >ndition not actual!) isting, provided the contract is not ol a gaming Maritime Loans, 291 or wagering species, from which the condition is to arise ; as if you manumit, you do not do such a thing, if I shall not recover from sickness, 8s c. But there is no doubt where money is lent to a fisher- man to purchase fishing tackle, to be repaid in case he shall catch ,fish, or to a prize fighter to fit him- self for the combat, to be repaid in case he shall come off conqueror. §. 1. But in all these cases a simple contract without a stipulation is sufficient to sanction the ob- ligation. LAW VI. PauhiSy Lib. 25. Quœstionum. Fcenerator. A person having lent money at ma- ritime risque has taken in pledge some goods shipped on board of the vessel; and further, in case these should not be sufficient to satisfy the whole debt, other goods, shipped on board of other vessels al- ready pignorated to other lenders, are pledged to him in case there should be any residue. It is now asked, whether if the ship out of which he was to have been paid, the whole be lost, it is to the da- mage of the lender or whether he has yet a recourse on the residue of what was shipped on other ves- sels? I answer; in general, the diminution of the pledge is to the damage of the debtor and not of the creditor, but when maritime money is thus given, the lender has no right to demand his money unless the vessel arrives in safety at the stipulated time ; the obligation of the debt is extinguished by the non-existence of the condition, and therefore the lien on the pledge is also gone, even on those that are not lost. If the vessel is lost within the time fixed for the end of the risque, the condition • \ ' ni(t< (I • I I i tli' If Î ! Ill < .isr t||.- l«,st ! • • II tin \ ! l.i lost ilt< I tl ..; / / / ' • M : itimc i!i|\ to tin stipul.it, I I id U h ; mdition thai if the / I may receive the prin with the interest stipulai I. \\V \ II. Ulpim r, Lib, 77. I m. Jervi , thai the i f .» : '. if tin I il in iii- I his mOlM J II itlun tin ime. i.\\\ i\. i . I Paulo I ! tomator \\ th penalty of a maritime 1 stipulated for in the usual manner, although dj shijuld In alivi ■ owe the money, jrd tin penalty is oc manner as if the debtor had Translation of the Twenty-third Title of the Fourth Book of the Code Entitled .... De Nautico Fœnore. CODE, Lib. IV. Tit. XXXIII. LAW I. Impp. Dioclet. and Maxim. A A. Honorato. Trajectitiam : It is clear that maritime money lent at the risque of the creditor, bears an interest different from that of the legal rate, only until the arrival of the vessel at the port of his destination. LAW II. lidem, A A. Chosimaniœ. Cum dicas : If you say that you have lent money on condition that if should be returned to you in the Holy City, and if you do not declare that you undertook the uncertain dangers of the seas, there is no doubt that you cannot recover any more than common legal interest for money so lent. law in. lidem, A A, Juniœ. Cum proponas. If you declare to have lent mo- ney at maritime interest on this condition, that you / } s \ '>\\\\ undertook tin ; to A f ri d ol her, il the law «rill not |<« ; ■ : the loss ol bi the stress ol weather, but, b\ tlie greed) and insolent behaviour of th . should fall upon you, I \ \\ IN. / . ,.1.1. Suc/uin* ' I . Hut the loss ol m • at the peril of the creditor, before th hes the place < PA1 [AX / .2. Sentait. TU. 11. / Maritime money in of the risque which the tender runs, may, while t sel ib at - ■'• an indefinite int< i Translation of the Fifth Title of the Third Book of the French Ordinance concerning the Marine, entitled: Des Contrats à la grosse Aventure ou à retour de voyage. TITLE V. Of contracts of Maritime Loan, otherwise called, of gross adventure, or return voyage. Article I. All contracts of maritime loan, other- wise called of gross adventure, or, of return voyage may be made either by a publick notary, or under a private signature. II. Money may be given upon the body and keel of the ship and upon her rigging, tackle, provi- sions and outfits jointly or separately, and upon all, and any part of her lading, for one whole voyage, or for a time limited. III. We forbid all persons to take up, at maritime risque upon their ships or goods on board thereof, more than their real value, under pain of being obliged, in case of fraud, to pay the whole sums notwithstanding the vessel should be lost or taken. IV. We also forbid them, under the like penalty, to take up any money upon the freight for the voy- age to be made, or upon the profit expected on the lading, or even upon the seamen's wages, except it be in the presence and with the consent of the mas- ter, and under one half of the aforesaid wages, M J III \ \\ rbid all upon tj pt it be in the | w itl» tin consent "i the i ufis- i i »i th< Mmi^ h m, and .1 fii \ I. The masters shall be answ« rable m their own name s, for tlu whole unounl of tin sums tak< n up l-\ the seamen with tl>< ir consent, if the) shall 1 ol tin ir wages, and that notwithsl tlu loss or capture of tbi ship. \ 1 1. Tli< ship, hi r 1 1 tackle, provisions, and nm th it, shall l>< bi privi- 1 affected for the payment of the principal interest of monei gii en upon the ! tin ship, for the m c< ssiti< ! the lading shall be bound for the money borrowed ta procure the same. \ III. Such as give money upon bottomry I master without the consent of the owners, ii ; live in the place, shall lu\ , rivi- upon tin ship, any further than the part the master ma} have in the ship and frei the mom j was borrowi d for fitti for buj ing provisions. I \ . Howev< r, the parts of such of the owners i< fuse to furnish their proportions for fitting out I hall be affected for the monc) master for the equipment and provisions of the ship. X. Creditors for money former]) due on such things and left outstanding by renewal or continua- tion of the contract, shall not conic in competition with those thath. .illy lent for the An Essay on 29' XI. All contracts of maritime loan shall be void after the entire loss of the effects upon which the money was lent, if that happened by accident, and within the times and places therein expressed. XII. Nothing shall be reputed accident that is occasioned by the internal defect of the things them- selves or by the fault of the owners, master or mer- chants, except it be otherwise provided by the con- tract. XIII. If the time of the risque be not specified by the contract, it shall last as to the ship, her rig- ging, tackle and provisions, from the day she sets sail, until she arrives at her intended port and is moored at the wharf; and as to the goods, it shall last from the moment they are laden on board the ship, or lighter to be carried thither, until they be unladen and carried on shore. XIV. A person lading goods, and taking up money upon them at maritime risque, shall not be acquitted by the loss of the ship and lading, unless he makes it appear that he had there, upon his own account, effects to the value of the suni borrowed. XV. However, if the person that has taken money at maritime risque, make it appear that he could not ship goods to the value of the sum borrowed, the contract, in case of loss, shall be diminished in pro- portion to the value of the effects laden, and shall only subsist on the overplus; upon which the owner shall pay the interest, according to the current rate of the place where the contract is made, until the actual payment of the principal. And if the ship arrive in safety, there shall be due only the legal in- terest, and not the maritime profit of the overplus of the effects put on board M I ns. X \ I. 'I'll.. . • that riv( m • maritim of th.- borrow* i , to ral a\ ( i.ijH-, such as ran; jettisons, masts and ropes cot a waj for tin com •\ (.1 sluj) ill or particular damages that ma) hap] pt there Ik some agreement to the contrary, XVII. H.)\\( hipwrcck the con - 1 of maritime loan shall be reduu edto the value ut the effi 1 ta that art saved* XVIII, If then lie a contract of maritime loan and an insurance upon the same Cargo, the l< shall lit preferred to the insurers upon tl: preserved from shipwreck, tor lus capital and no further* INDEX Ab a n d o n m e n t, by the borrower, is not neces- sary, in order to release himself from the contract 40, 208 If the owner abandon his interest in the vessel and freight, he is no longer liable for the acts of the master. - - 102 In such a case, whether engagements con- tracted by the master, in the course of the voyage, still exist against him? - 104 A stipulation by the lender to abandon in case of innavigability is illegal. - 163 Accident, what shall be so termed. 166, 295 Actio Institoria, the, explained. - 103 Actions, of the several kinds, principal, ac- cessory and contrary. - - - - 96 Accommenda explained. 42 Act of Man, of loss by the - - 167, 295 Admiralty, jurisdiction of - - 30.231 French courts of 43 Adventures may be sold by the master du- ring the voyage to purchase necessaries, 94 Such a sale is among the perils of the seas for which ensurers are liable, and, in case the ship do not perish, it gives the owner of them a lien upon the ship and freight. 95 And an action against the owners of the ship. ..... 118 But freight is due upon them and they must contribute to gross average, - 94 Il \ The Id arc t«« be paid foi tl. .lllill.tl ; -.«kIs oil board wi re sold For. tin his own me, - - - - lit Bui he who d<" , ' be ■■ ' ra< 1er, in a rtain - aa< s ma) h infi m d. I I S . • : dii quoti cl and i nu un (1 upon, / \ IT \ . , on thi • ni j< ci ol Mai îtiiiK Loans is not provided for bj the ordi- - The award of an, cannot tx enforced b) I niioii. ... \\ bb lck, the lender do: s not contribute I simple, unless there is an i stipu- lation to that effect. \ stipulation that the lender shall be fi from gross average is ill* gaL i ( >. 162, 22 L Reason of the different proviso ct- ing simple and gross ... - 161 In England, no average on bottomry ids 160,5221 When a ship i d to put into port for the benefit i f the whole i oncem, the ch ig and unloading the cargo and taking care of it and the wages and provisions of the workmen hired for the repairs, become general average, f. - - - L62 Bankbupi law of France, principle of the 196 And of England. -" - - ! Bottomry, see Maritime Loans* Bill of Exchange, the master has no power to draw upon his owners, for neces- saries. .... 106, 1 17 Law of France respecting the protest of a, 188 INDEX. 301 Borrower, may retract and rescind the con- tract by his own act. - - 147 Must prove property on board in case of a loss. 31 If he is not able to procure a vessel for the return cargo, he must account for the proceeds of the outward cargo. - 59 Caravane voyage en, explained. - 174 Cargo, liens on the, see Liens. Captain, see Master. - Chancelier nature of the office of a - 45 Claim of Property, see Material-men. By the civil law, he who has sold goods may reclaim them if he is not paid ac- cording to the terms of the contract. 245 But not if he endorse a receipt upon the bill of sale. .... 240 Colbert cited. ----- 173 Companies, the Royal Exchange and London Assurance, have the privilege of ensuring and lending at bottomry exclusive of all other corporate bodies, except the South Sea and the East India companies, which may lend money on ships or goods on board ships or to persons in their ser- vice. 26 Commissary of the Navy, his duty. - 133 Commissions, cannot be ensured or hypothe- cated in France. - - - - 39 Comptrolling, in France. 45 Concordat, what it is and its effects. - 198 Condition, of a bottomry bond, when it is fulfilled. 26 Consignee, hypothecation cannot be made to a 30 Contraband, loss by, is not one of the perils of the sea. - ----- 167 Council of Prizes, its jurisdiction. - 43 Of State, its jurisdiction. - - 244 INIH I rjiiOi he contract ( I '.on. - Il bo4 mack i« rower mak< .1 judj ■! ..' i,' j ii will» him. . i 5 S - ! ; k , ton «I -if« i an) length ol tiim , 11 iil« >s tin re I" p* bn wli'»ll\ . I : Quantum of sah agi ont A \ » iscl with j .id but i. den li liable. But not For maritime ii - ' in cir- INDEX. 303 cumstances 39 Cannot be the subject of a Maritime Loan. - ib. 130 Penalty on such a contract. - - 134 Gross adventure explained. - - - 25 Greek vessels, how navigated. - ,> 42 Guidon Le, quoted, passim. Hazard, see Risk Hostage, see Ransom. Imprisonment of the body for debt, when allowed in France. - - - 63 Implicit a explained. - 42 Insurance, how it differs from bottomry. 38 tn what respects the two contracts are alike. - - . - - 39 The owner of a ship, covered by a bot- tomry bond to an amount beyond her value, has not an insurable interest. 231 Inst i tor, explained. 65 Instrument, simple and notarial, in France, effects of, ----- 218 Internal Defect, the lender is not liable for 166 Interdum, the law commented upon. 216 Has been adopted in France. - - 217 Intention, in a question of usury the inten- tion is the material thing. - - - 34 Interest, maritime, accrues only during the continuance of the risk. - - 146 Even though the risk be avoided by the act of the borrower. - - 51 And though he has stipulated to perform the voyage. - 60 And in proportion to the amount at risk. 248 In case of a rescission of the contract the borrower is entitled to legal interest. 150 If the contract was void ab initio no mari- time interest is due. - - - 34 Is implied in the contract. - - 36, 50 May be stipulated for, to any amount. 52 .-» ISD I- Ix |i.ml othcrwi I 'is not ! .\ i!k UOCXJM I t< <1 .11 1 i\ il TIk \\ hole pr< . due, l tl. ^, though ;i" intt rrupft d, 1 tl mi. s in note. - Whether legal interest b due oa thi ma- ritime intei - ( , ;i\ , in France, int< real d<>< s n<>t mnv n< i to run but from th< lim i( inbrou - - - - 61 In the U. S, w hen \ i rdict ia n principal and interest and ili« judgment is i nti n d for the gab sum, the u hole bears interest from th d the judgment, in | oar, ex in fit of, explained* J i i ntoK, see oppendi >. ! , mon< j ma] be ord< red to 1)*- 1 1 over, in most commercial cases, not- withstanding an appeal, upon tin party iving it, t;i\ . uritj t<> refund. 187 t not in cases of bottomry bonds. - ib Ji- îIk admirait} . The court of Judges and consuls. - ib Tribunal de commerce. - - ib ( unci] of pu - - ib ( our de ( assal i ... 200 Tribunal di Senechansée. Loss, The lender ia not prejudiced \>y a U which happens at sea through the fault ot the borrower. - - - 22. I Notwithstanding die loss of the- ship, the contract continues as to i fleets landed. 59 MaSTBS, who is so called in the eivil law. 65 When he becon - .69 INDEX. ' 30S ïs the representative of the owner during the voyage. - ib It is a general rule that the owner is bound by his acts. - 67 May substitute another in his place, even although it has been prohibited. - 69 The owners are not bound by bottomry bonds executed by the master in the place where they reside, unless they consent. ----- 70 But he is personally bound by them, and if he can prove that the money borrowed was usefully employed about the ves- sel, he may sustain an action against them. ----- 7i Is bound to follow the advice of the owners in taking freight. - - - ib But a third person who contracts with him bonajidl for freight is not bound to in- quire whether he is acting according to his instructions. - ib The owners are liable though they abandon ship and freight. - ib And they are bound by a judgment ren- dered against the master as such, in not. 72, 93 He may borrow money for account of those part owners who refuse to contribute their proportion and pledge their shares. 73 After due notice to them. 74 Or he may commence suit against them to compel them to contribute or abandon their interest. - - - - 75 The provisions of different codes respect- ing the power of the master to borrow. 77 Whether he may borrow at bottomry in order to complete his return cargo? 82 If the owners have correspondents in the port, their advice should be taken. - 85 B « thin! Mit tli.1l (lu V I I ' to Miff h. .m i!u d onsuh (In in. - - - - ib Punishment of a master who acts unfaith- fully. - ; III^ infidelity shall not afiei t third ; i i who - r» If mom \ l n p cd I »> him in a i ' \s ! i oiiM not make use of it, the l bder baa no action aj 89 Of r Who ^elli. part of his Qfl during the i ... Ho* tar and uikK r u hat circumstances he may niakr BUCh Bale, The action ô- exerciton iven in ad- dition to that against the master and therefore we may sir- the master ox owner or both. ... - 96 There is no limitation against the exerei- tory action* - 07 Tin- power of the master does not cease by the loss of the ship. - - - 108 In case of Wreck he must seek another \ st 1 ; he may burrow money for salvage and pledge the freight of the thin i sa\ ed, and in CJ ..pture he may ran- m the \ cssel and draw upon his owner. 10] Of abandonment by the owners in order to avoid being b >und by his acts ib If he bind his own person and property he is liable. ... - 1 17 Whether the master is bound personally for Contracts made by him in that capa- city? IU But not when he contracts co nomine un- less in if borrowing money with- out necessity, or in places where the owners reside and without their assent, ib INDEX. 36? The power of the master being restricted to the borrowing of money on bond or by pledging a part of his cargo, or to the raising of it by partial sales, he ought not to draw bills of exchange, and if he does he is personally bound to the holder. 110 But if he has incurred necessary expences for the ship and cargo, he has a lien upon it. - - - - - t ™ And the owners are obliged to honour his bills if they have received a part of the freight or other returns, as far as they are in funds. - *0 Of stipulated penalties against a master who violates his contract. - - 118 He who furnishes necessaries has a right of action against the master. - 119 Money, maritime what shall be so called. 22 Navicularius, his office. - - - 66 Notary Public, effect of his acts. - 45 Notice, if the lender has notice how far the* master's powers are restricted, he con- tracts with him at his own peril. - 90 Novati^j, explained. - - - 262 Owners, observations on the actions against them for the acts of the master. - 65 See Maritime Loans. Master. Who shall be understood to be, - 168 Part Owner, see Owner, Maritime Loans. Master. Partnership, difference between Maritime Loans and, - - - 36 The property of the partnership consi- dered in one point of view is not the property of the individuals in their par- ticular capacity. - 249 Parere's Savarys quoted. - - 47 Patron, explained. - 79 r /. r ' di- i I Maritime Loans» I : 1er is no! tl by any acci- dci .1 which - - ! , v.\v n tli. n ..tl loans, tin i. priority. - - - - ; ' Profits,] ■ : i . ' . 130 . how um IbyFn nch writ 1 ' r, See < ! \ ived in nio- \ I i,i at gross advt nturc is not a bot- tomry bond. - In blank foibid ' 46 P • ,, the master ma} pledge his \ | ru\ isions. - 85 i I : ance, what. 187 I , a bona fide, i^ not protected in - a receipt is endorsed I the bill .... -., money paid fur a, Isa charge upon th> - To which lenders must contribute. U I And owners cannot be d <1 by aban- donment. - ... ut The mast< r may pawn liis own person, which lie may redeem by borrowing ii: ; r it in admiralty . 2 I I : , See ( hum rt. lained. - - * L33 Rj . . i . , See M . \ ■ . A\ j left by, explained. - 153 Those who have been security for money lent at bottomr} are discharged on the completion et the voyage, it the eredi- INDEX. 309 tor leave the principal in the hands of the debtor for another voyage, without their consent. - - - - 190 Those who are creditors by renewal are among the youngest privileged credi- tors 237 Residence, what is understood by the resi- dence of t lie owners. - - - 83 Revendication, explained. - - 235 Risk, the money is not at the risk of the len- der until the vessel has set sail. - 19 As soon as it commences the whole sum becomes due. - 54 Is an essential part of the contract and must be borne by the lender. lb. 33, 49, 146 If the money has not been at risk it bears only legal interest. lb. - - 22, 51 The maritime interest ceases with the risk 22, 34 Simple average is not one of the risks in- curred by the lender. - - 158 But gross average is, though there be a stipulation to the contrary. - 161 Such a stipulation is unlawful. - 163 So also of a clause restricting the lender to particular risks. - - - 164 In general the lender only bears the perils of the sea. - - - - 166 ,He is not liable for losses happening by the internal defect of the thing. - ib, Or for any acts of the owners, master, ma- «. riners or «nippers, or a forfeiture in con- sequence of contraband. - - 167 Seeus as to contraband or smuggling if the design appear on the face of the con- tract. 168 The lender does not bear the perils by land on goods which are exported- - 169 See Maritime Loans. Voyage. - i' quoted. > found den Lid I will I ofan ink ntiotl to abandon w hollj I In mu h < li. ill' usiuilK all In i monition issu< i to the on i.( r to s|i< . ding in ran. ... {(j In England then is no nlrage upon a 1 torar] bond. .... i . the fust lien upon p rop e rty ill. Sbaj it pennitted to ensure their fu- ture waj - An not affected I .;. Dtional , nalties between the- master and ownei '1 lie ac'. tQ seamen arc among the ^ | ncea of Outfit and ma) be the bub- ject of maritime loan. - - 137 i of seamen constitute the first Ik vessel which returns from a ----- 232 d< en ed on the captain's rti : < ate, th >ugh the vessel be in port, not earning freight ... tf If the m e interrupted without their fault they shall receive \ «luring the time they work on board the vessel in port. The art of eon. peeling them must Ik- strictly followed* - - - j& If they sufier imprisonment under the»7th clause of that aet, the) must draw n under the filth. - - - ib |fthe esculents specified in the act cannot be procured, others may be substituted. ib And the master is the sole judge of the penditur - | INDEX. SU I The act applies only to seamen boundfrom the United States and not to those ship- ped in foreign ports. ib They do not forfeit their wages by absence without any fault of their own, or prize money. ----- ib Or by capture if they were on board. ib The right to wages is founded on the ser- vice , not the articles. - ib And the owner is bound if the vessel is insufficient. - - - ib If the seamen die, before the voyage is ended, whether his representatives shall be entitled to his wages? ib When the voyage is commenced in time of war, the wages are not to be dimi- nished by the arrival of peace. - ib Secus where the voyage, is commenced before that event. ib Security, See Maritime Loans. Senecshansee Tribunal, explained. - 243 Severance of property, what it is - 247 The owner of a thing of which a deceased person was simply the possessor may reclaim it. - 24 T So we may reclaim a deposit which is still in existence. ... jfa Though it be in the hands of the heir of him to whom it was pledged. - ib The vender on credit is not strictly enti- tled to a severance. - - - 24 S But if there be a suit for the distribution of the general property of his debtor, he may demand a severance of the chattel which he sold. - - - - f& In cases of bankrupts the vendor has ait exclusive lien on the article sold by him. ih Ship and Shippers, for Maritime Loans, M&ster. Owner, DID ' I i\r, tilt |>« I ><>u h him, has no righl i tioii but ajj \ \ i ui I « ith slaves on ' v , oi», • onsiden d a d< n l'« t m • ( ' Una. , , ;!,. V nder d< dbysm i il i d< ntly ii - - s plaiiK 1. - - - - US StNALI !MAT1 ' '"i( (1. Usui; r, obaervationa on the chaj usta ■ • • The inn nt of die is the m ti rid till! * " \ - iu r.\ m e Kplaini » i UllnliNh I I lilt \m 1 \ . • lr» I hit boot U IH I "ii ihe IaM <1jI< I Lirlo« Ljgi 1 315 LAW LIRK I OMVKKsm 01 ( AUFORNU LOS ANGELES uc SOUTHERN REGIONAL LIBRARY FACILITY AA 000 732 631 7