JUDGMENTS IN THE Admiralty Court of Pennsylvania. Liebart, Baes, Durdeyn and Co. v. The Ship Emperor. 1785. July. UDGMENT. This is a suit brought on a bottomry A bottomry JUD entered into ter only un when he has Ostend, whereby he hypothecates the ship Emperor, by the masof which he was then the captain, for 4500 florins, der circumequal to 4091. 1s. 9d. sterling money of Great Britain, stances of advanced for repairs of the said ship. Whereupon tress, and James Oellers, the owner of this ship, and others his no other assignees, come in and answer to the libel, alleging means of rethat this bottomry bond ought not to take effect as an hypothecation, according to the maritime law. The power vested in a master of a vessel to impawn his owner's ship or goods for necessaries furnished in a foreign port, is a legal indulgence founded on the urgency of the case, and for the general benefit of commerce. There are few rules of law more strictly defined than this of hypothecation, and none in which the reason and intention of the law are more manifest. It is thus delineated: "A master pairing. Hypothecation cannot be made to a consignee... 1785. "A master of a ship hath no power to take up moLiebart et al. "ney by bottomry, in places where his owner or ownShip "ers dwell"-" But when a master is out of the counEmperor. try, and where he hath no owners, nor any goods of their's, nor of his own, and cannot find means to "take up by exchange or otherwise, and that for want "of money the voyage might be retarded or over"thrown, moneys may be taken up upon bottomry." Molloy, b. II. c. 11. s. 11.-" And the money so taken up by the master, is done upon great extremity, and "that for the completing of the voyage, when they are "in distress and want in some foreign parts."-s. 12. All the books agree in the spirit of this doctrine. The extreme necessity appears, every where, to be the reason of the law, and the intention, to favour com merce. Let us now take a view of the circumstances of the present case. The leading facts appear, from the testimony exhibited, to be these. The ship Emperor, John Walsh master, belonging to James Oellers of Philadelphia, sailed for Ostend with a cargo of tobacco on board; the ship and cargo being consigned by the owner to Bine, Overman and Co. merchants at Ostend. This ship was so damaged by a storm at sea, that the captain was obliged to put into the port of Dover, in England, in distress. The captain on his arrival at Dover, immediately sent notice of his situation to the consignees at Ostend, and they speedily furnished him with a credit on London, from which he raised money sufficient to refit his ship. Af ter this, he sailed for and arrived at Ostend, where the consignees took charge of the ship and cargo. Before the vessel arrived at Ostend, Bine, Overman and Co. had accepted bills, to a considerable amount, drawn upon them by Oellers, on the credit of this consignment. Upon closing all accounts, Bine, Overman and and Co. found that Oellers had not only drawn upon 1785. them to the full amount of the cargo and freight, (" the Liebart et al. tobacco not selling so well as was expected,") but that there remained a considerable balance in their favour. To secure this balance, they tell captain Walsh that he shall not leave the port, and even threaten to attach the ship, unless he will repay them the moneys advanced at Dover for repairs, or hypothecate the ship, for security. It was not in captain Walsh's power to do the one, that is, to repay the money, and he declined the other proposal for some time. But finding expenses accumulating, and that he could not sail without some accommodation, he at last consented to hypothecate the ship. Bine, Overman and Co. then recommended him to Liebart, Baes, Durdeyn and Co. telling him that they would lend money on bottomry; and conducted him to their house, where he executed the bottomry bond, now in question. But no money was paid to Walsh; for the bills for repairs, for which the ship was hypothecated, had long since been discharged by the produce of the credit on London. After this, Bine, Overman and Co. permitted captain Walsh to sail, and in due time he arrived in the port of Philadelphia. During these transactions, Oellers had failed, and assigned this ship to his creditors, and the question now is, Whether this bottomry bond shall operate to the exclusive security of the merchants at Ostend against all other creditors, as a genuine hypothecation would do, on the principles of maritime law. After a careful consideration of these circumstances, I cannot discover one real feature of that rule of law, which should be the ground of the present suit. True it is that the ship was in necessity, and so is every ship that wants essential repairs. But the owner had credit within reach. The consignees were not far distant. The application was easy and certain, and the consignees V. Ship Emperor. V. Ship Emperor. 1785. consignees no sooner heard of the disaster but they Liebart et al. furnished the means of relief. In fact, Bine, Overman and Co. had the strongest inducements to exert themselves in getting the ship repaired at Dover, to enable her to get round to Ostend, for they had made themselves answerable for Oellers' bills, upon the credit of this cargo; it was, therefore, of great importance to them that the cargo should arrive safe to their hands. So that, instead of advancing money to a distressed stranger, they were only taking care of their own security. This motive is manifested by their letter to Walsh at Dover, and still further by their subsequent conduct; for, after they had disposed of the cargo, and found a balance due from Oellers to them, they insist that Walsh shall not sail unless he will hypothecate the ship to Liebart, Baes, Durdeyn and Co. which, from all appearances, seems to be the same thing as hypothecating her to themselves. For the captain received no money from Liebart, Baes, Durdeyn and Co. who were not at all interested in the transaction, and whose names were only made use of to save appearances; for Bine, Overman and Co. well knew that, being consignees, the captain had no power to hypothecate the vessel to them. And, in order to give the bottomry bond the appearance of a genuine hypothecation, they select from the general account the moneys spent in repairs at Dover, and compel the captain to hypothecate the ship, as for those particular charges, to the libellants, who had not advanced one shilling towards that expense. Further, if we look into the accounts we shall find, that although this voyage was not a very successful one, yet the ship cleared all charges accrued since she sailed from Philadelphia, even including the repairs at Dover. But Oellers had drawn upon Bine, Overman and Co. on the credit of the future voyage, long before the vessel sailed from Philadelphia, to raise mo ney |