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The Miscellaneous essays and occasional writings of Francis Hopkinson, Esq (Volume 3) online

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the leafe of the fliip did not exonerate the lelTora
during^ the term.

So in the cafe cited from Vezay. p. 154. This
alfo w^as purely a common law procefs; wherein
the parties, and the whole tranfaftion, appear to
have been i?2fra corpus coriiitatus. " Certainly,
fays the lord chancellor, by the maritime law, the
mafler hath power to hypothecate the iliip during
the voyage.^ and from the yieceffitj of the cafe ; but
it is dllferent where the fnip is infra corpus
comitatus, and the contrail made by the owners
cr mafters on land, and not arifmg from neceiTity^
then the laws of the land muil prevail." And
this is confonant with the whole current of autho-
rities refpe^ling a maritime hypothecation, viz.
that it muft be made during the voyage, and from
the ncceffity of the cafe.

When money is borrowed on the fliip before
the voyage is begun, the ihip is not anfwerable in
the admiralty — id Raym. 578. So in 2d. Raym.
982. in the cafe of Johnfon verfus Shippen, chief


T tjs J

luftice Holt fays — " If a fliip be hypotliecated be-
fore a voyage begun, fbat is not a matter within
the jurifdidtion of the admiralty ; for it is a con-
tract made here, and the owners can give fecurity
to perform the contrail."

It appears then to be a fettled doi^rine, that a
fhip cannot be hypothecated, according to the
maritime law, before the voyage is begun, or in
places where the owners refide, even for thofe ne-
celTaries v/ithout which the iliip could not proceed
to fea. The law means to favour the corapletionj
not the commencement of a voyage.

For this reafon the legiflaiure of Pennfylvanla
hath, by a fpecial ad^ given to the artificers, who
build or repair, and to thofe wdio furniili neccifa-
ries to fit out a lliip for fea, a lien on the vefTel
fueable in the admiralty before the voyage is be-
gun, becaufe the maritime law does not extend to
their fecurity.

Since then, it appears that the advance of mo-
nies to fit out the fhip Enterprize, was made be-
fore the commencement of her voyage, and not
from neceffity, and that the captain, the owners,
or fome of them, and the contra6lors were all
within the Hate at the time of the tranfadion \ and


[ ^1^ 3

•as the fuit IS not brought under the aci: of affeir!-
bly of the 27th of March, 1784, I cannot admit
this cafe to be of admirahy jurifdi^lion, and there-
fore 1 adjudge

Tpiat the bill be difmiiTed, and the libellants
pay the cods of fuit.

Auguft, 1785.

ANDREW HODGE, Respondent,

Edward FORBES of Dublin, in Ireland^

has libelled againft the brig Hannah, for the a-
mount of certain bonds of bottomry, which Fran-
cis Lewis, then captain and principal owner of the
vefTel, gave as fecurity for monies advanced h^
Forbes, in the port of Dublin, for necelTaries, as
it is faid, for the faid brig, and to enable her to
complete her voyage,

A. Thi

t ^n 1

The circumftances of this cafe appear from the
tcflimony to be thefe :

Francis Lewis, principal owner of the brig
Hannah, had chartered her to one Varlo^ for a voy-
age from fomjs port in America to Dublin in Ire-
land. Varlo himfelf went pafTenger with his
goods, and Lewis was captain for the voyage. Af-
ter their arrival at DubUn, Lewis borrowed mo-
ney of Forbes, at three feveral times, for which
he gave three bonds of bottomry on his brig, a-
mountingjwith premium and charges, to^T. 2 14:0:8
fterling money of Great Britain. Forbes then,
put a cargo on board the brig, in which it feems
that Lewis was concerned, as he was to have one-
half of the nett profits of the adventure, exclufive
of freight, and. to be anfwerable for one-half of
the lofs, if any there fiiould be, on the fales. Lewis
left Dublin with his cargo, bound for Boflon in
America* It does not appear whether ever he
arrived at Boflon, or what he did with his cargo ;
but in April lad he brought the brig into the port
of Philadelphia, at which time fome of his mari-
ners fued in this court for wages due, and the brig
was attached and condemned for thofe wages, a
mounting tO;^.29, Lewis making no plfca of de-
fence againft the libel. In confequence of this
libel and fentence, a writ ifTued to the marflial.
Vol. III. M 'in

[ '78 J

in the iifual form, direfting him to fell the brig
Hannah, with her tackle, apparel, and furniture,
or fuch parts thereof^ as might be necelTary, to fa-
tisfy the decree in favour of the mariners, toge-
ther with the charges and cofts of fuit. But Lew-
is requeued the marihal to fell the whole of the
veiTel, with her tackle, &c. under the decree,
and even endorfed this requefl: on the writ of fale.
And to fhew that he was the fole ovv^ner of the
brig at that time, he exhibited to, and lodged
with the marflial, an affignment or bill of fale from
one Simpfon, who had been a part owner, of all
his interefl in the brig, to Lev/is.

Andrew Hodge^ refpondent in this canfe, pur-
chafed the veffel at the marlhal's fale, and paid
down the full confideration money, out of which
the marihal deducted the mariners wages, with
charges and cods of fuit, and paid the balance to
Lewis as fole owner. After this, Lewis went off
without faying any thing of the bottomry bonds
he had given to Forbes in Dublin. And now thefe
bonds have come over, and Forbes has attached
the brig in the hands of Hodge the purchafer.

On thefe circumftances, two queftions have a-
rifen, viz,


r 179 ]

Tirjl^ Whether thefe bottomry bonds have
hypothecated the velTel, according to the rules of
maritime law, fo as to bring the caufe within ad-
miralty jurifdiflion ?

Secondly^ Supposing It to be fo, whether the
fale and purchafe, under the authority of this court,
have not vefted the property in the refpondent,
exonerated of all prior engagements ?

To determine the iirfl point, It will be necefiliry
to confider the characteriftic marks which diflin*
guifli an hypothecation, according to the maritime
law, from a common bottomry bond or mortgage,
according to the cuftom of merchants, cognizable
by the common law.


By the maritime law " a mafcer of a flilp hath
^' no power to take up money by bottomry in pla-
*^ ces where his owners dwell; but when he is
** out of the country, and where he hath no ow-
** ners, or any goods of theirs, or his own, and
'' cannot find means to take up, by exchange or
*' otherwife, and that for want of money, the voy-
*' age might be retarded or overthrown, monies
" may be taken up on botjomry." Molloy, B. II.
Ch. xi. Sec. 11.

M 2 From

FitoM this it appears, that the true grounds of
a maritime hypothecation are the necejjity of the
cafe, and the want of perfonal credit. Wherever
this dodrine occurs in the books, thefe two cir-
cumftances are flrongly pointed at. Thus, in 3d.
Mod. 244, " The reafon of the civil lav^^, which
allows the pawning of a fliip for neceffaries up-
on the high feas, feems to be plain, becaufe there
may be an extraordinary and invincible neceflity
to which the admiralty jurifdiflion is limited : for
if the law fliould be otherwife, the mafter might
take as much money as he will.'* And fo the
court, in that cafe, ordered a trial on the ne-

So alfo, in Bridgeman^ s cafe — Hob. 1 2. a prohi-
bition was granted, becaufe the impawning was
not fliewn to be occafioned by necejfity.

In id:. Magens, there is a report of an admiral-
ty fuit on a bottomry bond, at the conclufion of
which, p. 329. the author fays, " Perfons living
in fea ports may learn from this cafe, not to be-
lieve or truft too eafily a captain they do not
know ; and when they propofe benefiting them-
felves by lending money on bottomry to fuch
whofe diftreifes oblige them to feek it, the lenders,
for their own fatisfadlion and fecurity, ought to


r i8i ]

liavc proofs given that there was a necejjlty for
fuch an advance, and that the money had aclually
been employed for the purpofes alledged."

Further, the impawning mufl: be in foreign
parts; that is, where neither the owner, nor ma-
fter hatli any perfonal credit : for this conflitutes
an elTential part of the neceffity — " The mailer
can have no credit abroad but by hypothecation."
Salk. 35. — " Where a fliip in diilrefs is foxced in-
to any port where her owners have no correfpon-
dents to fupply the mafter with the money necef-
fary to enable him to profecute his voyage, he
may take it on bottomry from thofe will advance
it on theeafiefl terms." ifl. Mag. 27.

The reafon is, the maritime law requires, that
the monies ihould be lent folely on the credit of
the lliip, and that the fecurity of the lender iliould
depend altogether on her fafety : and there-
fore, if fhe be well engaged, that is according to
the principles Hated, ihe iliall be for ever obliged
till redemption — MoUoy book II. ch. ii. fee. 15,
And therefore alfo, becaufe of the hazard, an
unufual interefl is allowed on the monies advan^*

M 3 Such

r i52 1

Such are the prineiples v/hlch defignate a ma-
ritime hypothecation within admiralty junfdi£lion.

But bottomry bonds may be given by owners
for fecurity of mercantile or other debts; and thefe
may be executed either in places where the owners
dwell, or in foreign parts, by their order. They
may be formed under a variety of circumflances,
and depend on many contingencies, according to
the conditions or terms of the deed or contrail.

It jfhould feem by the neceffity^ fo frequently
urged as the ground of a maritime hypothecation,
that the fliip fhould be driven by diflrefs into fome
other port than that of her deflination ; or, at
leafl, that fome extraordinary cafualty fhould oc-
cafion an unforefeen and inevitable expence in
the port of her voyage. Becaufe it is hardly
to be fuppofed, that an owner would fend his fliip,
much lefs that he would take her himfelf, to a
place where he could not command either money
or credit for ordinary repairs and fupplies.

In the prefent cafe it does not appear, nor ha^
it been fuggefled, that any extraordinary circum-
ftances occafioned an unforefeen neceffity. The cap-
tain (Lewis), who was alfo principal owner, ar-

E i83 J

rives after a profperous voyage at the port of dc*
flination with his freighter on board. Here the
voyage is completed, and it may be prefumed that
he there received his freight. If fo, he could
not be without money fufEcient to refit his vefTel
for a new voyage. And that he was not without
pcrfonal credit is manifeft, becaufe Forbes entruft-
ed him with a new cargo, and agreed to allow
him ^^fo Iriili money per ton for freight on all
the goods he fliould deliver : and alfo one half of
the nett profits arifing from the fale of the cargo,
he to run one half of the riik of lofs. This mer-
cantile connection fliews at leafl: that Lewis was
in fome credit with Forbes.

Besides, if we look into the accounts, we (liall
find the firfl article charged is £»2>'^ * 5 • ^ ftei'-
ling paid to Varlo, by Lev/is's order, to take up
and cancel a former bottomry bond. It feems
flrange that Lewis, after navigating Varlo and his
goods acrofs the fea, ihould fall in his debt. This
circumftance is not at all accounted for. But
be it as it may, Forbes ftiould certainly have forwar-
ded his former bottomry bond, with an account
of the occafion and expenditures for which it was
given, that a judgment might have been formed
whether it was a proper hypothecation or not :


C i84 1

or havcfliewn that the brig was under condemnsw
tion of the admiralty at Dublin on account of that
bond ; and that the ^^.32 : ^ : 6 was paid for her

Upon a view of the circumflances of the prc-
fent cafe, I do not find them fuch as the maritime
law requires to conftitute a genuine hypothecation
within admiralty jurifdi£lion. This point being
conclufive, it is unnecelTary to determine on the
fecond general queftion,

I adjuge that the bill in this caufe be dilTmiffed 5
and that the libellants pay the cofts of fuit.


r 185 ]


'V erf us

Juan Joseph de Aguire Perez, Refponcknt.

1 HE libel in this caufe flates two feparatc
claims of Canizares, the complainant, againft the
brigantine Santiffima Trinidad : the one founded
on an hypothecation of the faid velTel, made by
the then captain to Santiago Cupifono at Havan-
nah, for two hundred dollars advanced by the
faid Cupifono for necelTaries for the faid brigan-
tine, as it is faid, and to enable her to profecutc
her voyage ; which inftrumcnt of hypothecation is
endorfed or affigned over by the lender to the
prefent libellant : and the other, founded on a writ-
ten contra£l between Narifco Sanchez y Serna,
then captain of the veflel, and Canizares the libel-
lant, refpe^ling the wages he fiiould receive for
ferving as pilot and mariner on board the faid bri-
gantine in her voyage from Hax^annah to Philadel-
phia. As thefe claims arife from dilTcrcnt con-

L iS6 ]

trails, It Is manifefl: that they mufl be fcparately

To determine on the force of this inflrument
of bottomry, I fhall firll Hate the circumflances
neceffary to a genuine hypothecation, accord-
ing to the maritime law ; and then take a view
of the hiftory of this veiTers voyage, and her
iltuation at Havannah when Cupifono advanced
the money in queflion.

As to the firll, I have had occalion in three for-
mer fuits in this court, to flate the law of a mari-
time hypothecation, and have not fmce found rea-
fon to alter my opinion of the principles on which
rhofe caufes were decided. The caufes to which I
refer were Liebart, Baes, Durdeyn and Co. againll
the jQiip Emperor, Turnbull againd the ihip En-
terprife, and Forbes againfl the brig Hannah. I
can only now repeat the fubflance of what was
then obferved.

[Here the judge recapitulated the doctrines ad-
vancedy and the authorities cited ^ in the cafes referred

I fhall now flate the hiftory of the voyage of

this brigantine, as the fame may be deduced from

the teftimony.


C 187 ]

It appears that this veiTel had been chartered on
account of the king of Spain, and was to fail
from Philadelphia to Carthagena with a cargo of
flour which was to be fold there, and a cargo of
d)^ewood purchafed and brought back to Philadel-
phia, or fome port of the United States. Such
was the defignated voyage ; but it feems the cap-
* tain, inftead of returning to Philadelphia from
Carthagena, went to Jamaica with an adventure of
his own ; to what amount does not appear : that
at Jamaica he purchafed dry goods fit for the Ha-
vannah market, and then took the brig to Ha-
vannah, where he difpoTed of the goods he had
bought at Jamaica upon his own account : that
at Havanndi he borrowed two hundred dollars of
Cupifono, and executed the inilrument called the
hypothecation, to engage the veffel and her freight
for this fum : that part of this money was ex-
pended in paying wages to the mariners, and part
in fupplying them with frefli provifions : that the
veffel was refitted at the king's arfenal, and at the
expence of the intendant : and that flie failed for,
and arrived at the port of Philadelphia.

I agree with the council for the libellant, that
the validity of an hypothecation ought not to de-
pend on the regularity of the captain's conduct
with refpecl to his owners, previous to the time


r 188 ]

of his arrival in a foreign port, and borrowing
money for the relief of the fliip's neceffities ; and
will go further, and fay, that neither ought it to
be afFe£led by the captain's fubfequent condu<Sl: ;
provided the lender was in no wife privy to, or
knowingly aiTiflant in his obliquities.

It has been urged on the other fide, that the
law of hppothecation was defigned folely for the
benefit of the owners, and an inference drawn,
that if it can be flievv^n, that the owners of a vefTcl
have not been benefited, but injured by the cap-
tains condu£l, and confequent hypothecation, it
ought not to be allowed. But this law has for
its object the good of commerce in general. And
no flranger v»rould lend money on hypothecation
if his lien on the fliip was to be invalidated hj
fome future proof that the voyage was irregular,
or that the captain had deviated from the orders of
his owners, and injured their intcreft, either before
or after the hypothecation made.

But where fhall we find, in the prefent cafe, that
necejfity which fliould juftify the captains condu(ri:,
and be the ground of a genuine hypothecation ?
This vefiel was chartered for the ufe of the king
of Spain by his agent : the cargo on board was
on the king's account, and fhe arrives in a leaky


t 189 3

and difabled condition in one of his Majedy^i
ports, where he had an officer flationed. This
officer, the intendant, orders the velTel to the
pubHc warehoufe to be difcharged, and then
round to the king's arfenal to be repaired ; all
which was done at the king's expence. In truth,
I cannot conceive a cafe of lefs neceffity, or one
wherein a more certain and able reUef coyld be de-
pended upon.

But it is faid, that there were confiderablc de-
lays before the intendant interfered ; and that the
captain was obliged to fend in five or fix memori-
als, and in the mean time the mariners were in
great want of wages and frcfii provifions ; and
that in this neceffity the captain applied to Cupi-
fono for two hundred dollars, who refufed to lend
them unlefs the veflel fliould be hypothecated for
his fecurity.

It is in tefiimony, however, that this money was
lent by Cupifono before the captain had made any
application to the intendant, and therefore, the
negledt of the intendant could not have occafioned
the neceffity of borrowing from Cupifono : that
the captain of a vefiel in the king's fervice, and
in one of his majefty's ports, fhould not find credit
for a fev/ days provifions until the proper officer


L ^9^ J

could be applied to, is too Incredible to bc'fc-
rioufly admitted : dill lefs can it be a legal ground
for an hypothecation, that the mariners muft have
wages paid to them in a place where it does not
appear that any wages were due ; nor is it pro-
bable that any could be due, becaufe this was
neither the conclufion of the voyage, nor even a
port of delivery*

The money ought to have been lent folely on
the faith of the hypothecation and not on any per-
fonal credit : but here was a flrong and well
founded credit ; for it is in the proof that Cupi-
fono knew that this veffel was chartered for the
king's fervice ; and it is exprefsly faid, that the mo-
ney was borrowed to pay wages and procure
frefii provifions — " until money could he had from
the intendant,'^

Further, in the quotation from Molloy B. IL
ch. xi. fee. II. it is faid — " When a mailer is
out of the country, and where he hath no owners^,
nor any goods of theirs, nor of his oivn,^^ — Now
it is confeft that the captain had goods of his own,
and, as it fliould feem, to a confiderable amount,
fmce it was fuilicient to induce him to violate his
duty to his employers, in taking the veifel, contra-
ry to their orders, on a trading voyage to Jamaica


r ^9^ ]

for his own benefit ; that at Jamaica he bought
goods fuitable for the Havannah market, and ac-
tually fold them at the Havannah though contra-
band ; and that Cupifono, the lender, was privy to
thefe circumflances. So that inftead of the lender's
having the vefTel alone to look to for his fecurity,
he had two fubftantial perfonal credits to depend
upon, viz. the intendant, from whom he might
reafonably expe£l: repayment of monies advanced
for the ufe of a veiTel in the king's employ ; and
the captain, whofe property he might have attach-
ed before he left the ifland, if fatisfa6lion was not
made. This circumflance alone, that is to fay,
Cupifono's knowledge that the captain had proper^
ty of his own on the fpot, fufficient to anfwer the
prefent exigencies of the veffel, would have invali-
dated the bond as a maritime hypothecation, inaf-
much as it removes that necejjlty which the law

ThePvE is a circumflance In the prefent cafe,
which although not in itfelf conclufive, forms too
itriking a feature in the tranfaiftion to pafs unno»
ticed. A fmguhirity in a maritime hypothecation
is, that the law allows an extraordinary premium
or intereft to the lender, to any extent, according
to the rifk to be run; becaufe, if the fliip fliould
be loft, the money lent is lofl with hen But
4 here

[ 192 1

lierc, a Granger lends two hundred dollars id i
captain in diilrefs without even flipulating for
common legal interell for the ufe of his money :
I fay, this alone might not be conclufive againfl
the hypothecation, becaufe a man may be as ge-
nerous as he pleafes; but in connection with the
other circumftances, it gives room for fufpicion^
that the engagement of this velTel to Cupifono
was not made within the rules or fpirit of the ma-
ritime law.

For the above reafons, I adjudge that the bill
in this caufe be difmilTed, fo far as the fame hath
refpect to a claim of two hundred dollars, faid to
have been lent on the credit of the brigantine
Santiffima Trinidad*

I am now to confiderthe libellant's demand of
wages for ferving as pilot and mariner on board
this veflel from Havannah to Philadelphia.

This claim for wages, amounting to ^.87:5:0,
is founded on a written contrail made at the
Havannah between Narifco Sanchez y Serna,


t 193 J

then captain of the veffel, and Canizares the li-

But It has been contended, that as this agree-
ment is in writing, and bears a feal, and is not, ac-
cording to the terms thereof, in the ufual way of a-
greeing for mariners wages, it becomes a fpecial
contra£t, and is not properly of admiralty jurif-

Vol. IIL N Its

* Copy of the Account annexed to the Libel.

** The brigantine Santiffima Trinidad, to Manuel Sagas de Ca-
nizares, . _ - - j)r,

Dec. 19. £, s. d.

To cafh lent in Havannah to captain Narifco San-
chez y Serna, commander of the faid brigan-
tine, by Santiago Cupifono, - . 75 o o
To 5 months and 19 days wages, fromi July i, to

Dec. 19, at 7/. loj.
To 3 months pay, agreeable to contract.
To his paiTage to Havannah,

Received in Havannah a months advance.

To I month's boarding Mr. Canizares has been
«bliged to find.












5 ^2





t 194 3

Its being in writing, however, is no more than
a teflimony or memorandum of the agreement
made, and does not afFeft the jurifdi£lion of this
court. What is called a feal appears to be nothing
more than a printed flamp, for which a duty is
paid to the crown : certainly it is not the feal
of the parties, or of either of them. But, as to
. the terms of the contra£i:, thefe are indeed out of
the ufual courfe, and deferve confideration.

One of the reafons for allowing mariners to
fue in the admiralty is, that the debt arifes from
fervices performed, or to be peformed at fea, and
a lien on the fhip given to them for their fecu-
rity, becaufe the contrail: they make is fuppofed
to be on the credit of the iliip.

Now, although the wages of twenty dollars per
month, promifcd in the prefent cafe, appear to be
extravagant, yet, as the difficulty of getting a per-
fon qualified to ferve both as a ficilful pilot and able
mariner might have been great, I think the rate
of wages per month ought to be allowed as con-
tracted for. But I cannot, upon any principle,
allow that a captain hath a power to bind his ow-
ners and their vefiel to the payment of a mariner's
wages for three months after his difcharge, and af-
ter all fervices at fea and elfewhere have ceafed.


r 195 1

If he could legally do this for three months, why
not for fix or twelve ; or even faddle his ow-
ners with an annuity for life to a mariner for a
few weeks a£tual fervice ? How far the common
law might confider this contradl as binding on
the captain perfonally, it is not my bufinefs to
fay ; but as judge of admiralty, I iliall be far
from doing my part towards eftablifliing a precedent
by which captains, in addition to the great pow-
er they necefTarily have over the property of
their employers, may have that of obliging them to
the payment of unlimited fums for an unlimited
time. The captain might have engaged for his
owners to pay wages per month during the fer-
vice, or a fpecific fum for the run to any amiount
juflifiable by the circumflances and neceflities of
the cafe ; but to bind the owner to periodical

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