BOTTOMRY. In Maritime Law. A contract in the nature of a mortgage, by which the owner of a ship, or the mister, as his agent, borrows money for the use of the ship, and for a specified voyage, or for a definite period, pledges the ship (or the keel or bot tom of the ship, pars pro toto) as a security for its repayment, with maritime or extraor dinary interest on account of the marine risks to be borne by the lender ; it being stipu lated that if the ship be lost, in the course of the specified voyage, or during the limited time, by any of the perils enumerated in the contract, the lender shall also lose 'his money.
2 Hagg. Adm. 48, 53; 2 Sumn. C. C. 157 ; Abbott, Shipp. '117-131.
Bottomry differs materially from an ordinary loan. Upon a simple loan the money is wholly at the risk of the borrower, and must be repaid at all events. But in hottomry the money, to the extent of the enumerated perils, is at the risk of the lender during the voyage on which it is loanod, or for the period specified. Upon an ordinary loan only the usual legal rate of interest can be reserved ; but upon bottomry and respondentia loans any rate of interest, not grossly extortionate, which may be agreed upon, may he legally contracted for.
When the loan is not made upon the ship, but on the goods laden on board and which are to be sold or exchanged in the course of the voyage, the borrower's personal responsibility is deemed the principal security. for the performance of the con tract, which is therefore called respandentia., which see. And in a loan upon respondentia the lender must he paid his principal and interest though the ship perish, provided the goods are saved. In most other respects the contracts of, bottomq and of respondentia stand substantially upon the same footing. See, further, 10 Jur. 845; 4 Thornt. 285, 512 ; 2 W. Rob. Adm. 83-85 ; 3 Mas. C. C. 225.
2. Bottomry bonds may be given by a mas ter appointed by the charterers of the ship, by masters necessarily substituted or ap pointed abroad, or by the mate who has be come master, as hceres neeessarius, on the death of the appointed master. 1 Dods. Adm. 278; 3 Hagg. Adm. 18.
The owner of the vessel may borrow upon bottomry in the vessel's home port, and whether she is in port or at sea; and it is not necessary to thd validity of a bond made by the owner that the money borrowed should be advanced for the necessities of the vessel or her voyage. 2 Sumn. C. C. 157 ; 1 Paine,
C. C. 071. But it may well be doubted whether when money is thus borrowed by the owner for purposes other than necessi ties or uses of the ship, and a bottomry bond in the usual form is given, a court of ad miralty has jurisdiction to enforce the lien. As a contract made and to be performed on land, and having no necessary connection with the business of navigation, it is probable that it would not now be deemed a maritime contract, but would take effect and he en forced as a common-law mortgage. See Abbott, Shipp. 119, 120, 121, and Perkins's notes ; 1 Wash. C. C. 293 ; 2 id. 145 ; 20 How. 393 ; Bee, Adm. 433 ; 1 Swab. Adm.
269. But see 1 Paine, C. C. 671 ; 1 Pet Adm. 295.
3. If the bond be executed by the master of the vessel, it will be upheld and enforced only upon prodf that there was a necessity for the loan, and also for pledging the credit of the ship; as the authority of the master to borrow money on the credit of the vessel rests upon the necessity of the case, and only exists under such circumstances of necessity as would induce a prudent owner to hypothe cate his ship to raise money for her use.
3 Hagg. "Adm. 66, 74; 3 Sumn. C. C. 228 ; 1 Wheat. 96; 1 Paine, C. C. 671; Abbott, Shipp. 156.
if the master could have obtained the necessary supplies or funds on the personal credit of himself or of his owner, and this fact was known to the lender, the bond will be held invalid. And if the master borrows on bottomry without apparent necessity, or when the owner is known to be accessible enough to be consulted upon the emergency, the bond is void, and the lender can look only to the personal responsibility of the master. .3 W. Rob.Adm. 243, 265. And moneys advanced to the master without inquiry as to the neces sity of the advance, or seeing to the proper application, have been disallowed. 33 Eng. L. & Eq. 602. It may be given after the advances have been made, in pursuance of a prior agreement. 8 Pet. 538. If given for a larger sum than the actual advances, in fraud of the owners or underwriters, it vitiates the bond and avoids the bottomry lien even for the sum actually advanced. 18 How. 63; 1 Curt. C. C. 341. See 1 Wheat. 96; 8 Pet. 538.