VICE-ADMIRALTY COURT OF NEW ZEALAND. Auckland, Wednesday, January 2, 1850.

New Zealander, Volume 5, Issue 389, 5 January 1850, Page 3

VICE-ADMIRALTY COURT OF NEW ZEALAND. Auckland, Wednesday, January 2, 1850.

His Honor Chief Justice Martin, Judge of the above Court, attended this morning, and delivered his decree in the case of the " biv John Franklin," which had been argued before him on the 19th December last. This X a suit for the purpose of enforcing payment of two bottomry bonds, given by the master of the schooner Sir John Franklin at Sydney. The first "bond bears date the 31 xt August, 1849. The Sir John Franklin sailed from Sydney on the 6th of September following* and proceeded on her voyage to this port until the Istb, when the crew and passenger* having protested against the further prosecution of the voyage on account of the leaky and unsafe state of the Tessel, ghe was put about and returned to Sydney. The master of the teisfel obtained from the holder of the former bond a further loan, and gave as security for it, the second bond, which bears date 22nd September, 1849. The owner of the resiel now insists that the bonds arc invalid. He contends, first, that the necessity which alone could justify the master of a veisel iv executing such instruments, di 4 not exist in this case —in o'her words, that the master could nut lawfully give the bonds ; tnd secondly, that the obligee of the bondi being at the time agent for the owner of the * easel, could not lawfully take them. As to the fint objection, it is certainly true that the

words of the Act on petition (particularly as to the fir»t bond) are not so'precise as might be debired ; and that the affi-laTit of Mr. W. S. Grahame rests sMely upon information and belief; but on the other hand, it is admitted that ihe moniei borrowed were, to some extent at any rate, applied to purposes for which money may be lawfully raised in tins nay, and it is expressly though indirec'ly alleged, that the master lound he could not raise those monies otherwise than by botomry. Moreover, fraud is not imputed to either party. As to the second objection, the circumstance that the obligee was also agent for the owner of the vessel, does not of itself invalidate the bund. It is admitted thai if the agent (to uss the words of Lord Stowell) ''finds it unsafe to extend credit to h>s employers b >yond a certain reasonable limit, he may then sure'y be at liberty to hold his hand and say, ' I give up the character of agent, and as any other merchant might, to lend his money upon bond, to secure its payment with maritime interest- "—[The Hero, cited in Abbot, 157.] Doubtless, in every case of this kind it is incumbent on the Court to watch carefully the conduct of any person who hai combined in his own person the character of lender and agent for the borrower, and who has voluntarily placed himself in a position of such peculiar difficulty. But here nothing appears as to the state of accounts between the agent and the owner; and, as I have said, the good faith of the parties to the transaction is not impugned. Now it is an established principle that, for the advantage of commerce, "bottoonry bonds are greatly favoured in Courts of Admiralty 5 and, where there it no suspicion of fraud, every ftir presumption is to be made to snpport them." (Smith v. Gould and Moore) •. or, as Sir John Nicboll said in the case of the Calypso (3 Hogs, 164), ''Bottomry bonds are not to be invalidated unless some ffaud or collusion be proved, or unless it clearly appear that some other credit existed, or that the money was raised for some other purpose than the necessary repairs and expenses." — It is also settled that, in a Court of Admiralty a bond of this kind may be held good as to part, and void as to the residue. I am far from saying that this case is quite free from difficulty — but, upon the whole, I have no doubt that I act in accordance with the equitable spirit of tin* Court, when I uphold both these bonds as good and valid to the extent of such changes as can be legally secured by a bo id of this nature. Two sums mentioned in the first bond ai intended to be secured thereby, have be^n abandoned by the holder. In taking tint cou r su he has acted on good advice. Ot the rcuummg charges, the one to which the strongest objections are made ii the following :— '' To wages paid crew, per receipts, £69 3j. 6d." It appears that a new crew was shipped at Sydney, and the sum just mentioned was the amount of wa^us paid to the former crew upon tbeir discharge, It is not denied that this payment waB properly made, but it is contended that, being a charge in respect of a voyage then past and ended, and not of the very voyage upon which tue vessel was then about to proceed, it is u charge which cannot b« lawfully secured by bottomry. The Counsel for the defendant relies upon the general principle thus stated by Dr. Lushingtou, "I know of no case which has decided that a vessel can be validly hypothecated for debt-, incurred prior to the immediate voyage in which ahe is engaged <v the time when the bond of bottomry is given."— ( Lochiel, 2 Rob 34). Unfortunately, we do not possess a. full report of the case cited, and cannot discover the pre cisc nature of the debt to which this observation of the very eminent Judge wa9 intended to apply. The principle, as enunciated, is certainly true as to dents contracted in the ordinary way for the supply of good* or services to the ship on a former voyage.— Such debts hating rested originally upon personal credit only, the master cannot afterwards give, as I against his owner, a security which was not contemplated at the time of contracting the debt. The claims of su< b creditors cannot be regarded at creating that I necessity upon which alone the power of a mister to bind the interest of bis absent owner in this way, is grounded. But the debt in this item is a debt due to I the teamen who, by law, possess a specific charge upon I the khip herself— who, to euforce that charge, m«y ; ctay the ship on he 1 - course, and insist on a sale of the ship, miles, their demand be otherwise satisfied. Now, that such a claim as this, arising out of transactions prior to the voyage in which the ship U actually engaged, may be secured by hypothecation, is shown in the case of Smith v. Gould. That wai an appeal to the Privy Council from a sentence of the Judge of the High Court of Admiralty in a cause of bottomry. The ship Prince George sailed, under a charter to the apellant from London to New York, and thence under chatter, partly to the respondent, to Quebec. Tue bond was given in New York ; pjrt of the money for which it was given bad been advanced for payment to con ignees in that city 1 in respect of damage done to the cat go on the voyage ' thither from London. It was urged that the bond ought to be sustained as to that iem, the consignee \ having (as was alleged) by the law of New York, a ' i specific Hen on the ship in tespect of such damage. — Lord Campbell, in delivering the judgment of the I Court said, " The appellant's couri&el have contended that by the law of New York the consignees of the cargo had a specific lien on the ship for any damage sustained by the cargo in violation of the contract contained in the bill of lading ; and that, as the master had no funds from which this damage could be paid, he might hypothecate the ship for the amount, so that she might prosecute her voyage, instead of being arrested and sjld by decree of the Admiralty Court. If it had been proved that the Lsw of New York gave the lien on the ship as suggested, we should have thought— upon the g-ineral priuciple, that, where the master cannot in any other way raise money, which is indispensably necessary to enable the ship to continue her voyage, he may hypothecate the ship — rhis power would extend to a case where the »hip might be arrested and sold for a demand for which the owner would be liable. It teems immaterial whether the necessity for funds arises from such a demand, or to pay for repairs, stores or port duties. But in this case there U no sufficient evidence that by the law of Nevr York, the consignee of goods has any specific remedy against the ship for damage they may have sustained in the course of the voyage." [ 4 Moore 25.] Although therefore their Lordships could not pronounce for the validity of the bond on t'lis ground, yet their refusal to uphold it, was owing to the want of evidence to show that the consignees did in fact possess the lien which was claimed for them, and wai coupled with a distinct intimation that, if the Hen had been proved to exist, the ship would have been held to have been validly hypothecated for the purpose of discharging it. Now, here the lien of the seamen upon the vessel is beyond doubt, and 10 the principle as stated by Lord Campbell, applies at once.— Therefore this item must be allowed. But the sum of £'S 2s. 6d. for commission on freight and passage money, being a charge made by Mr. Writ: ln in his capacity of agent, should not be included in the bond. In deducting, (as the Promoter has properly done,)/rom the amount of charges in the

statement marked (.\), the amount of freight and passage money &c in hand, the sum of £51 Is. lid. appears to have been calculated by deducting from tha gross amount actually received the item •• To freight returned £12 9a." It is contended that this money was not properly returned. The books furnish no definite rule applicable to such cases. But it would be too much to ssy that upon the return of a damaged vessel to her port of departure, freight may not be returned under any circumstances whatever. Therefore, as in th>3 case nothing at all is shown as to the cucumstanccs under which the return was made, and as fraud it not charged, I think this deduction ought to be allowed. The remarks I have made apply equally to certain items included in the second Bond, which have been questioned by the Di?fen<lant. I pronounce, therefore, for the validity of both these Bonds, save ai to the items abandoned, and the itemi for commission; but considering all circumitancei, and in panicular the irregularity of the first Bond, I do noi think it right to give the Promoter his costs.