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must be explic- Barbadoes, fine deviatione, and afterwards, on her return itly denied. from Barbadoes towards London, fhe was loft in viagio Williams v. pradicto: The plaintiff replied, that the fhip, in her reStedman, Skin. turn, went from Barbadoes to Jamaica; and that after a 345; Holt's Rep. 126. S. C. ftay there, the failed from Jamaica for London, and was loft; and fo fhews a deviation: The defendant rejoined, that fhe was preffed into the King's fervice, and fo was compelled to go to Jamaica, which is the deviation pleaded by the plaintiff; abfque hoc, that the deviated after she was preffed. Upon demurrer to this rejoinder, the plaintiff had judgment.-The court held that the plea of the defendant was not good; for he alleged that the fhip went from London to Barbadoes, without deviation, and that, in her return from Barbadoes to London, fhe was loft in the voyage aforefaid; but did not fhew, without deviation. And as the condition was fo in exprefs words, the defendant ought to have shewn expressly that he had performed it according to the words.

lender.

Changing the So where money is lent on goods, on board a certain fhip without fhip, the lender is only confidered as liable for the risk neceflity, difcharges the on thofe goods while they are on board that fhip; and if they be removed to another fhip, without neceffity, the lender will be difcharged. (a)-But if the change be occafioned by any neceffity, he will still continue liable. As if the first fhip be preffed into the king's fervice, or be declared unnavigable, &c.; the borrower may load the goods on board another veffel at the risk of the lender, and the increase of freight, &c. will be a general average, to which the lender will be liable. (b)

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Money is generally lent for the whole voyage, outward and homeward; or for either feparately; or for a limited time. The contract ufually specifies the commencement and end of the risk; and any misfortune happening before or after, is at the rifk of the borrower. (c) If the voyage be defcribed in the bond; but

the

(a) Pothier, h. t. n. 18; Emerig. t. 2, p. 524.-(b) Emerig. ut fup. Vid. fup. book 1, ch. 11, § 2.--(c) Vid. Valin, on art. 13, h. t. Emerig. t. 2, p. 514.

the time of the commencement and end of the risk be not specified, the risk, as to the ship, shall commence from the time fhe fets fail, and continue till fhe anchors in fafety at her port of deftination; and, as to goods, from the time they are shipped, till they are fafely landed. (a)

When the loan upon goods is both for the outward and homeward voyages, the lender continues liable to the risk during the homeward voyage on the goods, by which those have been replaced on which the money was lent. (b)

(4) Vid. fup. book 1, ch. 6, § 5.—(b) Pothier, h. t. n. 34.

CHAP.

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CHAP. VI.

Whether the Lender be liable to general Average.

THERE is this difference between insurance and bottomry, that an infurer, unless he ftipulate to be free of particular average, is always liable to that charge; whereas a lender is not liable to it, unless by exprefs ftipulation: But, by the general law of merchants, in cafe of grofs or general average, the lender fhall contribute to discharge the borrower: (a) The reafon of this difference is, that particular average in no degree contributes to the safety of the fhip; whereas it is to thofe facrifices which are the fubject of general average, that the lender owes the prefervation of his money, which, without fuch facrifices, would be loft with the fhip. (b)

Foreign writers even hold that a ftipulation on the part of the lender, to be free of general average, would be abfolutely void, as being inconfiftent with the nature of the contract, contrary to good policy, and injurious to the interefts of the lender himself, who must lose all, if the fhip be loft. (c) Indeed the nature and object of bottomry contracts, feem, of themselves, to require that

the

(a) 'L'argent à profit n'eft contribuable en aucune avarie, 'refervé qu' aux rachapts, compofitions, et jets faits pour la 'falvation du total, et pour le foulagement ou l'évafion, des

dangers.' Le Guidon, ch. 19, art. 5. Ce qui eft fort jufte,' fays Cleirac in his commentary on this paffage, afin que cette 'groffe ufure paffe au paroiffe, Penfatio vel aquamentum periculi, comme dit Du Moulin fur la loi periculi pretium. Dig. De nautico fanore, en fon traité, Contract. ufur. quæft. 3 de trajeditiis. 'L'argent a profit ne charge pas le navire mais l'affecte par hypothéque, laquelle ne fubfifte que par la falvation d'iceluy ; 'c'eft quoy il eft raifonnable que la dite hypothéque contribue 'à ce qui concerne la confervation du total, ou de fon fujet, Ut omnium in tributione farciatur quod pro omnibus datum eft.' Vid. Pothier, h. t. n. 42, 47.--(b) Emerig. t. 2, p. 505.—(c) Confult on this point Valin, on art. 16, h. t.; Pothier, n. 46; Emerig. t. 2, p. 505.

'

the lender fhall be liable for general average. The borrower generally takes up the money because he has not a capital of his own upon which he can carry on his trade. Knowing that it would be impoffible for him to repay the fum borrowed, but in the event of a fortunate return, he means to run no risk, and agrees to part with a large share of his profits, to be free from all perfonal responsibility. But if he should be held liable to general average, then, by taking up money in this way, he must engage in a game of hazard, perhaps without being aware of his danger, in which he may eventually be ruined.

by

the law of

It has been faid, however, by a very diftinguifhed Whether judge, that, "by the law of England, there is neither average England. nor falvage upon bottomry contracts." (a) And this doctrine, fo far as it relates to average, has been fince adopted by another noble perfon, no less eminent for his learning and abilities. (b) I have anxiously fought, however, but fought in vain, to find any decided cafe, or authority in the law, which could warrant this doctrine.—I cannot agree with a learned writer (c) on this fubject, that the ftat. 19 G. II. c. 37, § 5, (d) which provides that the benefit of falvage fhall be allowed to the lender, on Eaft India voyages, conclufively proves that there was neither average nor falvage upon bottomry contracts at common law. I never could look upon that act as having introduced any new principle into the law either of infurance or bottomry contracts. On the contrary, it feems to me, after the best confideration I have been able to give the fubject, that it merely restored them to their original and only proper use, from which a spirit of gaming had been fuffered to pervert them. I cannot even admit that, because the statute gives the benefit of falvage to the lender upon Eaft India voyages, therefore he was not entitled to this at common law. As well might it be faid, that because the insurance of enemy's property, in time of war,

has

(a) Per Lord Mansfield in Joyce v. Williamson, fup. 652.— (b) Per Lord Kenyon at N. P. in Walpole v. Ewer, inf. 660.(c) Park, 423.-(d) Sup. 104.

If the infured

dentia intereft

fhip be obliged

has been occafionally prohibited by ftatute, therefore the infurance of enemy's property is a legal contract at common law. (a)-But even admitting the inference, that because the statute gives the benefit of falvage to the lender upon East India voyages, therefore he was not entitled to this at common law; does it from thence follow that he was not liable to general average at common law? The ftatute no where mentions general average.

But whatever may be the true rule of law which ought upon a refpon- to prevail on this fubject, it has been determined, that if on a foreign an insurance be made in England upon a respondentia intereft upon a foreign fhip, and it appear that the lender is liable by the law of the country to which the fhip belongs, to contribute to a general average; the underwriters upon the policy will be liable for fuch contribution.

to contribute

to a generalav

erage, the underwriters will be liable.

Walpole v Ewer, at N. P. af ter Tr. 1789,

Park 423.

Thus :-Where a refpondentia loan on a Danifh fhip and goods was infured in England, and an average lofs was fuftained upon the goods to the amount of 61. 15 s. per cent. to which the holder of the refpondentia bond was obliged to contribute. He brought his action against the English underwriters to recover the amount of this contribution.-Lord Kenyon, who tried the cause, said,"By the law of England, a lender upon refpondentia is not liable to average loffes; but is entitled to receive the whole fum advanced, provided the ship and cargo arrive at the port of deftination. The plaintiff contends that as, by the law of Denmark, fuch lenders are bound to contribute to average loffes, according to the amount of their intereft, the infurer here must answer to them. The Danish conful has proved that he received a judgment of the court of Copenhagen, the decretal part of which proves the law of Denmark to be as the plaintiff has ftated it. The opinions of feveral men of eminence in that country have been offered on each fide: But I reject them, because the folemn decifion of a court of compejurifdiction is tent jurifdiction is of much greater weight than the

The decifion of

a foreign court of competent

the best evidence to fhew

what the law

of the country

18.

opinions

(a) See this fubject fully confidered, fup. book 1, ch. 2. § 1.

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