Mills v. The ScotiaMills v. The Scotia
The result of the long controversy in England between ■the courts of common law and the courts of admiralty was to curtail ■the latter of their jurisdiction to a large degree. Since then the maritime liens recognized in England have been comparatively few; and
The defendant’s contention is based upon some language found in the opinion of Mr. Justice Story in Pope v. Nickerson,
1. The lien or privilege in all these cases is not properly created by the master at all; nor does it rest merely upon his authority. It is created by tho law of the place of the transaction. Where the law gives the lien, the master’s authority is, therefore, not in question, save as respects his right to do those acts, or to make those contracts, to which the law of the place attaches the lien. In the case of The Young Mechanic,
2. The master, by the English law, as well as by the law of every other country, has authority in foreign ports to contract generally, and by simple contract, for necessary supplies. Nowhere has necessity,-as the foundation of the master’s general authority, been more forcibly stated than in the judgments of Lord Stowell. In the case of The Gratitudine, 3 C.
In contracts to be performed elsewhere, such as contracts of affreightment, and of bottomry, other considerations arise as to the law applicable to the transaction; depending upon the reasonable or presumed intention of the рarties, the conveniences of commerce, and the justice of the case. See The Brantford City, 29 Fed. Rep. 373, 383-396, and cases there cited. Whethér a lien created by the local law shall be recognized! and enforced, in another country upon the res when, found and seized
3. The cases of Stainbank v. Fenning, 11 C. B. 51, and Same v. Shepard, 13 C. B. 418, have no application to the present case; for no question in either arose oil the local law, because the supplies in those cases wrere furnished to British vessels in British ports; and in each case the only question was whether the master, in a port where the law created no lien, could himself create one; and it was held that he had nо authority to do so, except in the form of regular bottomry. Mr. Justice Curtis points out in Thomas v Osborn,
The suggestion of Story, J., in Pope v. Nickerson,
In no case that I have found has there been any final adjudication in opposition to the general maritime law, resting upon the narrow limitation of the master’s authority here contended for. In the case of Lloyd v. Guibert, L. R. 1 Q. B. 115, it is a significant fact, not only that the decision itself was in accordance with the general maritime law, but that in the decision of the appeal in the exchequer chamber no countenance was given to the alleged controlling force of the mere law of the ship’s flag, on which the decision below had proceeded; and the affirmance was upon wholly independent considerations. Pages 120, 129, 130. Subsequent authorities, both English and continental, do not support this narrow contention. See citations in The Brantford City, 29 Fed. Rep. 373, and Whart. Confl. Laws, §§ 335, 348, 441. In foreign jurisprudence, notwithstanding the general provisions of the maritime codes requiring certain formalities to the creation of simple liens, or of bottomry, the decisions of the courts, on the whole, sustain such liens in favor of bona fide lenders in foreign countries, notwithstanding the fact that the ‘formalities prescribed by the law of the ship’s home are' not complied with. 1 Desjardins, Droit Mar. Com. §§ 181, 508; Dufour, Droit Mar. Com. § 294; 1 Yalroger, Droit Mar. Com. §§ 38, 436, 442; De Gentil v. Chambon, (Court of Cassation, Dec. 4, 1866,) Dalloz, 1867,
Upon considerable research I have found no case in which a bottomry bond, entered into in good faith and in compliance with all the requirements of the law of the place of the transaction, has ever been held void in the courts of the country where it was made, because it did not conform to the law or to the decisions of the country to which the ship belonged. Still less has the doctrine of the restriction of-the master’s authority abroad to the law of his own country any application to the liens created by the law of other countries upon ordinary maritime transactions within their dominions, when prosecuted in their own tribunals.
4. But the English cases do not sustain the respondent’s contention that a British master has no authority to incur a simple maritime lien
In the case of The Alexander, 1 Dod. 278,280, Lord Stowell said, in reference to advances to an English ship at Pernambuco:
“ The question is whether they did not make these advances on the credit of the ship. * * * Some of the advances were made before the master was.appointed. ‘These,’ it is said, ‘could have no reference to a bond of hypothecation.’ But what could they have looked to but the ship? Of the owners of the ship they had no knowledge. The bond was not, perhaps, noticed at first, because in Pernambuco, as in other foreign states, there is no necessity for an-instrument of this kind; for, by the general maritime law, the vessel itself is ipso facto liable for repairs. There was no necessity, therefore, for having recourse to a bond until the ship wаs coming to this country, where, from peculiar motives of policy, a special hypothecation is required.”
In The Vibilia, 1 W.
"It is evident, therefore, that, in the opinion of Lord Stowell, it is competent for the foreign merchant, without any express agreement for a bottomry bond, to make advances on the security of the ship,—that is, upon the faith of a lien given by the law of his own сountry; and it is not necessary for him to have a bond of bottomry, or an agreement for such bond, until the ship is about to sail.”
In the case of The Prince George, 4 Moore, P. C. 21, a bottomry bond was executed at New York, by the master, to raise money to pay a demand for which he was personally liable to arrest, and also for damages to the cargo. The bottomry bond was held invalid in the court below, and in affirming this judgment the privy council say:
“The appellant’s counsel have contended that, by the law of New York, the consignees of the cargo had a specific lien on thе ship for any damage sus-f tained by the cargo. * * * It it had been proved that the law of New York.gave the lien upon the ship as suggested, we should have thought * * * that the power to hypothecate would extend to a case where the*915 ship might have been arrested and sold for a demand for which the owner would be liable.”
But as such was not the law of England, it was held that such a law in New York would not be presumed in the absence of evidence. Pages 25, 26. In the case of The Karnak, L. R. 2 Adm. & Ecc. 289, L. R. 2 P. C. 505, advances were made at Bermuda for repairs upon an English vessel, which wеre included in a bottomry bond, subsequently agreed upon and given. It was proved that the law of Bermuda gave a lion upon the ship for such advances. Sir Robert Piiillimoke, who reviews the authorities, says:
“I must now draw attention to another fact proved in this case, and having an important bearing upon the law, which must decide it. It is in evidence that, by the law in Bermuda, those who supplied the necessaries had a lien upon this ship, and could have arrested her.”
And, in accordance wjth the prior decisions, he holds this circumstance sufficient to validate the bottomry; and his opinion in this respect was adopted and approved by the privy council. L. R. 2 P. C. 505, 511. This was in full view of the case of Lloyd v. Guibert, which shows that the latter case had no reference to any question of a lien for supplies under the law of the country where they were furnished, and is not applicable thereto. So, in the case of The Laurel, Brown & L. 191, 317, an English ship had put into Batavia in distress, and there underwent repairs, for which the law of Batavia gave a lien upon the ship, and no bottomry was at first agreed on, but was afterwards given. The bottomry for the first advances was upheld by Dr. Losiiustgtojí on the ground of the local lien and the credit given to the ship. He says, (page 320:)
“I think that this ease cannot be distinguished from that of the Alexander; in both there is the absence of any agreement to advance on personal credit; and of waiver, direct or indirect, of the right by the lex loot to make the ship liable for the repairs. ”
In all of these cases, had “the law of the flag,” in the view of the English judges, abridged the ordinary authority of the master to procure supplies by simple contract, so as to prevent any lien attaching to the vefesel under the lex loci, there would not have been any authorized credit of the ship, nor any local lien upon the vessel at the place of bottomry; and hence the bottomry could not have been sustained. It was upheld in all these eases, because a credit of the ship was deemed authorized, and because a valid lien was deemed to have been created under the law of the place of the transaction. The same question arose in another form in the case of Castrique v. Imrie, 8 C. B. (N. S.) 1, 405; L. R. 4 H. L. 414. There an English ship from Liverpool had been furnished with necessary supplies at Melbourne, for which the master drew a draft, which was subsequently indorsed to a French holder. The ship afterwards touched at Havre. The master and ship, upon the non-payment of the draft, were sued for the supplies, and a judgment was obtained, under which the vessel was sold. The vessel afterwards came to England, where a suit for possession was brought by a former mortgagee. All the orig
“No proof was offered to the French courts whether, by the law in existence at Melbourne, where the bill was drawn by the master-of the ship, there was or was not a lien on the ship for necessaries; and they might well assume, in the absence of evidence, that the general maritime law of lien prevailed and attached upon the master’s contract.”
The implication is that, had “the law in existence at Melbourne” given a lien for supplies, then that law, and not the law of England or Liverpool, would- have governed the transaction; and no error would have been committed by the French court.
The defendant’s contention cannot, in any point of view, be sustained; and the libelants in each case are entitled to a decree for the amount of the advances and supplies, with interest and costs.
Notes
The observations of the court in this case are so pertinent to the general quеstion that the following translation, furnished by counsel, is apxiendcd:
“Seageb v. Sevastano.
“ (Court of Cassation. Naples. March 1,1888.)
“Head-Note. In Italian legislation the rule of private international lawis sanctioned, locus regí l actum,—the place governs the act,—not only for what relates to the form, but also to tiie substance and the effects of obligations contracted abroad between Italians and foreigners. In application of such rule, a contract of bottomry made abroad with a foreigner by an Italian captain of an Italian vessel remains valid and efficacious for binding the owner of the ship, when the conditions required by the law of the place of contract are fulfilled, even although all the requirements of the Italian law may not have been observed. * * #
“By the Godbt. * * * It is quite true that, in the general interest, it could not be found proper to oblige foreigners to know the laws of other nations relative to contracts, nor to insist that these contracts (which are based on the rules of universal law common to all nations in regard to juridical relations resulting from the volition of persons possessed of legal capacity, and thеrefore especially governed by good faith) ought to be subjected to the special laws of each nation to which the contracting parties belonged. One general law ought to govern such contracts, and that, law could only be the law of the place where they were entered into; that law being presumably known to the parties contracting., To take from the action of this rule contracts made by the captain of a vessel, and to require that they should be governed by the law of the nation of the’ owner of the shiр, would, besides holding everything subject to the requirements of our own published codes, also at the same time involve a coniiict of rules, which cannot be allowed in an orderly system of legislation. * * * To apply them [the provisions of the Code] to the contracts made with foreigners in a foreign country would amount to holding that the conditions and methods prescribed by the national law for the exercise of the powers conferred on the captain, in order that the obligations he assumes may-take effect, ought to be known to foreigners; whilе foreigners are not required to know them in any other kind of contract. * * *
“Looking more closely into the conditions laid down in article 881 of the Commercial Code, it is found to contain certain limits on the authority that the law presumes the captain to have received from the ship-owner, it not being possible to suppose his authority to be so extended as to admit that any obligation whatever that the captain may assume in his official capacity must be binding on his owners, even although the preservation, salvage, or recovery of the ship be not involved. Now, this limitation of authority imposed by the national law for the security of the ship-owner against the bad faith of those to whom the ship is intrusted, does in no degree diminish thoir full representation of the owner, wherever they may be, by reason of their official character. Foreigners who contract with suchrepresentatives, and who, according to the laws of the place, fulfill the conditions necessary to make the obligations assumed by such representatives binding on the principals, cannot be justly held responsible for the non-observance by those, representatives of the forms and conditions imposed on them by their own law in the interest of their principals. Such non-observance might be the result of negligence or fraud; and therefore the effects cannot bo permitted to the damage of the third party, who has contracted in good faith, supposing that the agent is fulfilling his duty to his principal. The court of appeal could not * * * adjudge, without modification, that the prescriptions of article 881 govern the effect of the obligations assumed abroad by the ship’s captain to foreigners for sums loaned for the needs of tho ship. On these grounds reversed.” Mibakelu, presiding, and La Vodpe.