When, however, the ship is abroad, and the necessary expenses can not otherwise be defrayed, the master has the same power which the owners or part-owners to the extent of their shares under all circum stances have, to hypothecate the ship and freight as a security for debts contracted on behalf of the ship. The contract of hypothecation is called a contract of bottomry, by which the ship upon its arrival in port is answerable for the money advanced, with such interest as may have been agreed on. By the terms of the contract the repayment of the money is made to depend upon the accomplishment of the voyage, and, in consideration of the risk, the lender is permitted to charge a high rate of interest. By such hypothecation the creditor acquires a claim on the ship. [BorromaY.] When the claim has been created by the master abroad, it may be enforced by suit in the Admiralty Court; but if the ship has been hypothecated by the owners at home, the parties can only have recourse to the common law or equity courts. The Admiralty and the equity courts will recognise the interest of the assignee of a bottomry bond, though at common law he cannot sue in his own name. In general the master has been held not to be authorised to raise money on bottomry within any part of the same country where the owners reside, on the ground that it is his duty to communicate with them before entering into such a contract. But where by reason of hostilities communication with the owners was almost impossible, and immediate necessity existed for the money, which could not be pro cured otherwise than upon bottomry, a master was held to have authority to raise it on those terms. Thenmoney is lent on bottomry, the owners are not personally responsible. The credit is giyen to the master and the ship, and the remedy is against them only. The master cannot hypothecate the ship for a debt of his own, nor can he give a bottomry bond for matters not within the scope of his authority. If the sums secured by the bond are not repaid, an application must be made to the Court of Admiralty, founded on the instrument of con tract and an affidavit of the facts, upon which a warrant issues to arrest the ship, and the persons interested are cited to appear before the court, which then decides what is to be done. If several bonds have been given at different times, the latest in point of time is entitled to be first satisfied, a rule derived from the civil law. (' Dig.' 20, tit. 4, s. 5, 6.) If the necessary amount of money cannot be raised by hypothecating the ship and freight, the master may also sell part of the cargo or pledge it.
Under those circumstances of unavoidable necessity which would authorise the hypothecation of the ship and freight, the master has authority in case of need to hypothecate the cargo for the purposes of the voyage. He may always in these circumstances sell a part of the cargo. He is never allowed to sell the whole for the professed pur poses of the adventure, as tho adventure is by that very act put an end to ; but in case of damage to the cargo, which threatens the destruc tion of the whole of it before his arrival at the port of destination, he may justify selling part or even the whole, as the only means of saving something for the advantage of the proprietors. To hypothecate the cargo for the purposes of the cargo and the advantage of the pro prietors, ie within the extent of his powers under proper circumstances, and such a bond executed by the master only is available to the holder by the process of the English Court of Admiralty. To sell the ship is
the last conceivable act of a master in circumstances of extreme distress. He will not be justified in doing so, nor can he give the purchaser a good title, 11 she can be repaired and he has the means and oppor tunity of doing so, under circumstances in which a judicious man would take that course. But to justify such an act, and make it a binding transfer of property to another, the distress must be so extreme, under circumstances so destitute of assistance, or so void of all occasion for wishing assistance, that either a faithful man can find no better remedy, or a judicious man can wish no other.
Limitation of LiaLility of Owners.—The liability of the owners under certain circumstances is either limited or altogether taken away by the law of this country.
No owner of any British sea-going ship, or share therein, is liable to any extent whatsoever for loss or damage happening without his fault or privity : 1, of or to any goods, merchandise, or other thing what soever taken in, or put on board any such ship, by reason of any fire happening on board sugh ship ; 2, of or to any gold, silver, diamonds, watches, jewels, or precious stones, taken in, or put on board any such ship, by reason of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof, has, at the time of shipping the same, inserted in his bills of lading, or otherwise declared in writing to the master or owner of such ship the true nature and value of such articles.
Where all or any of the following events occur without his actual fault or privity ; namely, 1, where any lose of life or personal injury is caused to any person being carried in such ship; 2, where any damage or lose is caused to any goods, merchandise, or other things whatsoever ou board any such ship ; 3, where any loss of life or personal injury is by reason of the improper navigation of such sea-going ship caused to any person carried in any other ship or boat ; 4, where any loss or damage is by reason of any such improper navigation of such sea going ship caused to any other ship or boat, or to any goods, mer chandise, or other things whatsoever, on board any other ship or boat'; no owner of any British sea-going ship or share therein, is answerable in damages to an extent beyond the value of his ship and the freight due, or to grow due, in respect of such ship during the voyage which at the time of the happening of any such events is in prosecution or contracted for, subject, however, to this proviso, namely, that in no case where any such liability is incurred in respect of loss of life or personal injury to any passenger is the value of any ship and the freight thereof to be taken as less than 15/. per registered ton. The benefit of these provisions is not obtainable, even in our courts, by any foreign ship, nor is it available for a British sea-going ship when sued for injury done by her to a foreign vessel, unless at the time of the accident both ships were in British waters.