Lapas attēli
PDF
ePub

There being no evidence to shew that he had fince parted with any share of it, it was infifted that this was a variance. But Lord Mansfield held that this was fufficient evidence; for, orne majus continet in fe minus; and overruled the objection.

any

By the preamble to the fecond fection of the ftat. 19 G. II. c. 32, it appears that, before the paffing of that act, if an obligor in any bottomry or refpondentia bond, or an infurer in any policy of infurance, became bankrupt before a lofs happened, it was made a queftion whether the infured in fuch policy, or the obligee in fuch bond, could be let in to prove his debt, or to receive dividend under the commiffion: But now, by that section, it is provided, That fuch obligee or infured fhall be admitted to claim, and after the lofs or contingency fhall have happened, to prove, his debt, and to receive a dividend of the bankrupt's eftate, in pro'portion to the other creditors; and that the bankrupt fhall be discharged from the debt owing from him on fuch bond or policy, in like manner as if fuch loss or contingency had happened, and the money had been 'payable, before the iffuing of the commiffion.'

[blocks in formation]

tends to infur

ances upon lives.

As the words of the above preamble refer only to bot- This ftatute extomry contracts, and infurances on fhip and goods on board, it became a doubt whether it extended to infurances upon lives, though the words of the enacting part are general; and it was fuppofed that the legislature could not have had insurance upon lives in contemplation, becaufe the risk in fuch infurances may remain unfettled for many years :-But it has been determined that the general words of the enacting part are not restrained by the preamble; and that it comprehends all infurances, and confequently infurances upon lives. (a)

BOOK

(a) R. Cox v. Loftard, B. R. Hil. 24 G. III. Doug. 166. n. Vid. Pattijon v. Banks, Cowp. 540; and Mace v. Cadell, Corp,

232.

BOOK THE SECOND.

Of Bottomry and Refpondentia.

HIS fubject may be treated under the following diftribution;

TH

1. Of the nature and form of the contract;

2. Of the parties to it;

3. Of the thing hypothecated;

4. Of the principal and marine interest ;

5. Of the perils or rifks to which the lender is liable; 6. Whether he be liable to general average;

7. Whether he be entitled to the benefit of falvage.

Bottomry defined.

CHAP. I.

Of the Nature and Form of this Contract. BOTTOMRY is a contract in nature of a mortgage of a fhip, on which the owner borrows money to enable him to fit out the fhip, or to purchase a cargo for a voyage proposed; and he pledges the keel or bottom of the ship, pars pro toto, as a fecurity for the repayment: And it is ftipulated that if the ship should be loft, in the course of the voyage, by any of the perils enumerated in the contract, the lender alfo fhall lose his money; but if the ship fhould arrive in fafety, then he fhall receive back his principal, and also the interest agreed upon, which is generally called the marine intereft, however this may exceed the legal rate of interest. (a) Not only the ship

(a) Vid. 2 Bl. Com. 458.

and

and tackle, if they arrive safe, but also the person of the borrower, is liable for the money lent and the marine intereft.

When the loan is not on the fhip, but on goods laden Refpondentia. on board, which, from their nature, must be fold or exchanged in the courfe of the voyage, the borrower's perfonal refponfibility is then the principal fecurity for the performance of the contract, which is therefore called refpondentia. (a) In this confifts the principal difference between bottomry and respondentia. The one is a loan

upon the ship, the other upon the goods. In the former, the ship and tackle, being hypothecated, are liable, as well as the perfon of the borrower; in the latter, the lender has, in general, only the perfonal fecurity of the borrower. But the perfonal refponfibility of the borrower is not in all cafes, the only fecurity of the lender. Where the money is lent for the outward and homeward voyage, the goods of the borrower on board, and the returns for them, whether in money, or in other goods purchased abroad with the proceeds of them, are liable to the lender. (b) The money is to be repaid to the lender, with the marine intereft, upon the fafe arrival of the ship, in the one cafe, and of the goods, in the other. In all other refpects, these contracts are nearly the fame, and are governed by the fame principles.

Difference be

tween them.

The contract of bottomry is called by the French, con- Denomination. trat de prêt à la groffe avanture, or contrat à la groffe.

In Le Guidon (c) it is called bomerie, and Molloy (d) fays that it is derived from bomerie or bodmerie, a Flemish word which fignifies the keel or bottom of a ship.

the Romans.

Though it is extremely probable, as we have already In ufe among fhewn, (e) that the contract of infurance was unknown among the ancients, it is certain that the Romans were well acquainted with that of bottomry, or rather respondentia, which they denominated nauticum fenus or contractus tra

jecitiæ

(a) 2 Bl. Com. 458.—(b) Pothier, h. t. n. 34. Emerig. t. 2, p. 476, 561.—(ĉ) Ch. 18.—(d) De jur. marit. b. 2. c. 11, 12.-(e) Sup. 5.

titia.

jeitia pecunia; and it is treated of both in the Digit Pecunia traje and the Code, de nautico fenore. They called the fum lent pecunia trajectitia, perhaps because the borrower was used to take the money on board with him in fpecie, in order to employ it in trade in the courfe of the voyage; for fuch was probably the original deftination of fuch loans among the Romans, who exported very little from Rome, but fent money from thence to purchase the merchandize which the immenfe confumption of that city demanded. The money thus lent was to be repaid, if the voyage proved fortunate, with a ftipulated interest, which was called periculi pretium, fometimes ufura maritima, or ufura nautica; but upon this condition, that if the fhip fhould be loft by the perils of the fea, in the course of the voyage propofed, the lender fhould lofe both principal and intereft.

If the money

fhore, it was not

If the money was fpent in the place where it was lent, was spent on it was not pecunia trajectitia. (a) But if it was laid out in pecunia trajedi- the purchase of goods, which were embarked at the risk of the lender, then it retained its quality of pecunia traječlitia. So that, with the Romans, as with the moderns, it was of the effence of this contract that the loan fhould be expofed to the perils of the fea, at the rifk of the lender.

ta.

Whether the Roman nauticum fanus be materially different

from the modern bottomry.

How bottomry differs fronı a

fimple loan.

The author of Le Guidon (b) fays that there is but little refemblance between the contract of bottomry, as it is in ufe in modern Europe, and the nauticum fænus of the Ro mans. But upon an attentive comparison of the one with the other, it will appear that they are still in principle the fame; and only differ in the forms which modern regulations have given to the contract now in use.

Bottomry differs very materially from a fimple loan. In a loan, the money is at the risk of the borrower, and must be paid at all events. Incendium are alieno non liberat debitorem. (c) But in bottomry, the money is at

the

(a) Si eodem loci confumatur, non erit traje&titia, ff. de neut. fœn. 1.-(b) Ch. 18, art. 1.--(4) Cod. 1. 11, fi cert. pet.

the risk of the lender during the voyage. Upon a loan, only the legal intereft can be referved: But upon bottomry, any intereft may be legally referved which the parties agree upon.

be

tween bottomry and infur

The analogy between this contract and that of infur- Analogy ance is much stronger. In the one the lender, in the other the infurer, is liable to the perils of the fea; the ance. one receives the marine intereft, the other the premium, as the price of the risk, which varies in each according to the length and danger of the voyage. The lender and the infurer are, in general, expofed to the fame perils, which have the fame commencement and end. The marine intereft, like the premium of infurance, is not due, if no rifk be run, though this be prevented by the voluntary act of the borrower.

fer.

But though these contracts thus far agree, they differ How they difeffentially in many refpects. In bottomry, the lender furnishes the borrower with the money to purchase the goods which are put in risk; an infurer, on the contrary, furnishes nothing of the fubject matter of the infurance. The lender, in taking on himself the risk of the goods, does not contract any obligation to the borrower; a loss by the perils of the fea does not make him a debtor to the borrower, but only prevents the borrower from becoming his debtor: Whereas, upon a lofs happening, the infurer becomes a debtor to the infured to the amount of fuch lofs, not exceeding the fum insured. (a)—In case of shipwreck, the lender, by the general law, has a lien on the effects faved, to the extent of the fum lent and the marine intereft, to the exclufion of the borrower; whereas an infured has an intereft in the effects faved, in common with the infurer, fo far as he was uninsured. The lender is not liable for particular average; but the infurer is liable for this, unless he be exempt by express stipulation.-By the claufe, free of average, insurers may be exempted from general average; but, in a cafe where the lender is liable by law to gene

ral

(a) Pothier, h. t. n. 6.

« iepriekšējāTurpināt »