THE LEGAL VALUE OF A BOTTOMRY BOND.

Hawke's Bay Times, Volume V, Issue 222, 3 February 1865, Page 2

THE LEGAL VALUE OF A BOTTOMRY BOND.

(Abridged from tlie Lyttelton Times.) Some time ago the Countess of Seafleld came into port at Lyttelton with a cargo of goods consigned to furious parties in this province. The ship had suffered severely from very heavy weather during the voyage, and had been obliged to put into Hobart Town to refit. In that port Captain Danvers, her master, who was, as it is important to remember, not only master but owner—a point of great weight in estimating the legality and propriety of subsequent proceeding—found himself obliged to raise upwards of £3ooo—for which he gave the security of a bottomry bond over the ship, freight, and cargo. When the ship arrived in port at Lyttelton, possession of the goods was given by the captain to the defendants Buckley and Turner, to realize the security. As agents for the lender on the bottomry bond, Mr. Macdowell, of Hobart Town they entered into possession of the goods and declined to give them up to the respective consignees without a pay. ment from them respectively of ten per cent, upon the value of the goods to meet the bottomry bond. Mr. J. E. Fitzgerald who being a consignee of sundry bales of paper brought his action against Messrs. Buckley. Turner, and Danvers for detinue, to recover the paper, and damages tor its detention. The declaration in the action was the ordinary one for detention of goods, and to this declaration the defendants, Buckley and Turner, put in plea, which set forth briefly that the defendant Danvers was master and owner of the ship, that he had raised money on security of the ship, freight, and cargo, that the defendants Buckley and Turner had taken possession of the goods as agents of the lenders in bottomry, Macdowell, of Hobart Town, and that they claimed to hold the goods until the lien was discharged by the consignees, as Macdowell himself legally might. To this plea the plaintiff put in a demurrer: the legal ground for which was, that a bottomry bond gives the lender or his agent no right whatever to the possession of anything included in it, whether ship, freight, or cargo. That such an instrument is a mere hypothecation, the peculiar character of which security is that it can be enforced only by the medium of process in a proper court; and that it is well settled that a bottomry bond, as well as every other maritime lien can be enforced and realized by the process of a Court of Admirality, and not by any taking into possession of the ship, freight or cargo by the parties themselves. The demurrer was argued by Mr. Louis, on the part of the plaintiff. , The Court, expressed a strong opinion in favor of the demurrer and called upon Mr, Garrick to support plea. Mr. Garrick said he did not attempt no question the law, as stated by Mr. Louis, but mentioned some inconvenience that might arise to holders of a bottomry security if the plea were decided to be a bad plea. Mr. Louis replied that these inconveniences were imaginary. The security, if valid, could be amply and swiftly protected by giving to the Admiralty jurisdiction to take possession. After a short conversation upon the history of Admiralty Jurisdiction in New Zealand, the court allowed the demurrer. The effect of the decision is, that the proceedings of Messrs. Buckley and Turner, in taking possession of the goods, and requiring the payments from the consignees, were not warranted by law.