BOTTOMRY, (Lat. foenus nauticum, usura ma ritima, contractus pecunire trajectitice,) in commercial and maritime law, is a species of marine contract, in the nature of a mortgage of a ship, whereby the own er of a vessel, when he wants money to purchase pro visions or other necessaries for an intended voyage, borrows the sum required, and pledges the keel or bottom of the ship (partem pro toto,) as security for the repayment. Debts of this kind are constituted by bond or bill of bottornry, signed by the borrower, acknowledging the receipt of the sum, and charging the vessel with the payment thereof, upon her safe return home after finishing the voyage ; but at the same time declaring, that if she should happen to be lost during the course of the adventure, the obliga tion for repayment of the money shall cease and de termine, and that the whole loss shall, in that case, fall upon the lender. In the contract of bottomry, then, it is understood, that if the ship be lost, the lender loses the whole of the money which he advan ced ; but if it returns in safety, then he shall receive back his principal, and also the premium or interest agreed upon, however much it may exceed the legal rate of interest. And such a contract is allowed to be valid among all trading nations, for the benefit of commerce, and on account of the extraordinary ha zard run by the lender.
In bottomry, the loan is made on the security of 'he ship, which, with its tackle, is liable, as well as the person of the borrower, for the money lent, upon its return home : But when the loan is made, not upon the ship, but upon the cargo, which, from its nature, must frequently be sold or exchanged during the course of the voyage, then the borrower only is personally bound to answer the contract ; and he is therefore said, in this case, to take up money at re .pondentia. Bottomry, then, is a loan on the ship ; respondentia on the cargo. In the former, the ship and tackle are liable, as well as the person of the bor rower ; in the latter, for the most part, recourse must be had to the person only of the borrower. In the latter case, however, the personal responsibility of the borrower is not always the sole security of the lender : For if the money be lent for the outward and homeward voyage, the goods of the borrower on hoard, and the returns for them, either in money, or in other merchandise, purchased with the proceeds of them, are liable to the lender. It will be observed,
too, that in a loan upon bottomry the lender runs no risk, though the goods should be lost ; and upon re spondentia, the lender must be paid his principal and interest, though the ship perish, provided the goods are safe. Such are the distinguishing differ ences between the contracts of bottomry and respon dentia. In all other respects they are upon the same footing ; and the rules and decisions applicable to the one are also applicable to the other.
The contracts of bottomry and respondentia are of much greater antiquity that that of insurance. They probably arose originally from the custom of permit ting the master of a ship, in a foreign country, tr hypothecate the ship, in order to raise money to re fit. Such contracts appear to have been known among the Romans ; and evident traces of them may be found in those fragments of the famous sea laws of the Rhodians, which have been preserved and trans mitted to our times. The Rhodian laws, in general, were adopted by the Romans ; and accordingly we meet with chapters in their law books, de nautico foenere, de nauticis usuris, which clearly show, that the contract of bottomry was well known to the ju rists of that distinguished nation. The sum lent upon this contract was called by them pecunia trajectitia, probably because the borrower was accustomed to take the money on board with him in specie, for the purpose of employing it in trade, in the course of the voyage ; which money was to be repaid, after a fortu nate voyage, with a stipulated interest, called Jzericuli pretiunz, usura maritima, or usura nautica ; but the loan was made on the condition, that the lender should lose both principal and interest, if the ship was lost, by the perils of the sea, in the course of the voyage. From the laws of Oleron, of the Hanse towns, and of \Visley, it appears, that the nature of the contract of bottomry, as well as its name, was perfectly well known to the makers of those ordinances.