sity," (y) "an imperious, uncontrollable necessity," (*) and that it is sufficient if the jury are told that the sale is "necessary" without adding any qualification. (a) A consideration of all the cases in the light of the reason and principle of the rule, leads us to doubt whether anything better can be said, than that such a sale is justified only when the master can do nothing else to save what remains of the property for the benefit of all concerned.

*

We think that a test which has sometimes been applied to measure this necessity is not an accurate one. That test is this: Would the owner, if a prudent and reasonable man, and present at the time, have made the sale? (b) The objec- * 277 tion to the test is, that such an owner then and there present might have weighed the expediency of various courses of conduct, each of which might offer its advantages; whereas a master has no such power. He can only sell when he must. The law-merchant does not clothe him with any general power to act for all concerned, but only gives him this power when somebody must exercise it, to prevent an inevitable waste of property.

At the same time it is now equally certain, that the necessity of the sale is not to be determined by subsequent events. (c) If a ship, wrecked and lying high and dry, is sold by the master, and is drawn off at the next high tide, it does not follow certainly that the sale was not justified; because the sale was necessary, if at the time an honest and rational view of all then existing facts and probabilities would have led to the conclusion that it was necessary. The master must of course have acted in good faith, and in the exercise of a sound discretion; although both these circumstances may exist, and yet the sale not be necessary.

We do not think that the mere want of funds would of itself constitute a sufficient necessity to justify a sale by the master. (d) A ship cannot often, if ever, be in a place and condition in which, if funds were procurable, they would repair and save her, and yet she would be destroyed by the delay requisite to communicate

(y) Somes v. Sugrue, 4 Car. & P. 276; Pope v. Nickerson, 3 Story, 504; The Ship Fortitude, 3 Sumner, 248.

88.

(z) Peirce v. Ocean Ins. Co., 18 Pick.

(a) Prince v. Ocean Ins. Co., 40 Maine, 481. In Post v. Jones, 19 How. 150, the court held, that a sale of derelict property, in a distant ocean, where there was no market and no competition, to a person who had it in his power to save the crew and cargo, and drove a bargain with the master, was invalid, although the forms of a sale at auction were had.

(b) Hayman v. Molton, 5 Esp. 65.

(c) The Brig Sarah Ann, 2 Sumner, 215, affirmed on appeal, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387; Idle v. Royal Exch. Ass. Co., 8 Taunt. 755; Fontaine v. Phoenix Ins. Co., 11 Johns. 293; Hall v. Franklin Ins. Co., 9 Pick. 484; The Henry, 1 Blatchf. & H. Adm.

465.

(d) See American Ins. Co. v. Ogden, 20 Wend. 287; Ruckman v. Merchants Ins. Co., 5 Duer, 342; Allen v. Commercial Ins. Co., 1 Gray, 154.

with the owners. And it is quite certain, that if the master can communicate with the owners before making the sale, either by sea intercourse, or land intercourse, or now by telegraph, or by all of these combined, he must delay his sale until he receive instructions, unless this delay imports the destruction of the property. The old rule, that a master has this power if the ship be wrecked abroad, and not if it be wrecked on the coast of his own country, was founded upon this principle. (e) But the rule has dis*278 appeared, and given place to the question of possibility * of instructions. (f) For if he can become the agent of the owners with instructions, he cannot make himself their agent from mere necessity. (g)

C. Sale of a Ship under a Decree of Admiralty.

A ship is sometimes sold either abroad or at home under a decree of Admiralty. If this rest upon a condemnation of a ship, whether as prize, or for forfeiture, or in execution of a decree to pay salvage, or to discharge a bottomry bond, or to satisfy a lien which admiralty would enforce, it would be valid and binding upon all courts and all parties of all nations, (h) unless it could be proved to be vitiated by fraud. But it seems that if the decree for a sale rests only on a survey asserting unseaworthiness, and takes place in a foreign port, then the courts of the country to which the ship belongs, will regard the decree as of little more than cumulative authority for the report of the surveyors; and will look into the actual facts to ascertain whether they justified the report and the decree. (i) But the practice of selling by decree of admiralty merely for unseaworthiness is but little known in this country. The court must be a regular admiralty court, recognized by the law of nations. The sufficiency, authority, and jurisdiction of the court may be inquired into. (j) Neither in England nor in this country is a consul or any person holding court as a judge in a neutral port under a commission from his

(e) Scull v. Briddle, 2 Wash. C. C. 150. (The Brig Sarah Ann, 2 Sumner, 215, affirmed New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387.

(g) Pike v. Balch, 38 Maine, 302; Hall v. Franklin Ins. Co., 9 Pick. 466; Peirce v. Ocean Ins. Co., 18 Pick. 83.

(h) The Tremont, 1 W. Rob. 163; Attorney-General v. Norstedt, 3 Price, 97; The Helena, 4 Rob. 3; Grant v. M'Lachlin, 4 Johns. 34.

(i) Reid v. Darby, 10 East, 143; Hun

ter v. Prinsep, 10 East, 378; Morris v. Robinson, 3 B. & C. 203; The Sch. Tilton, 5 Mason, 474; Jamey v. Columbian Ins. Co., 10 Wheat. 411, 418; Dorr v. Pacific Ins. Co., 7 Wheat. 581; The Dawn, Ware, 487.

(j) Hudson v. Gustier, 4 Cranch, 293; Sawyer v. Maine Ins. Co., 12 Mass. 291; The Mary, 9 Cranch, 126; Bradstreet v. Neptune Ins. Co., 3 Sumner, 607; The Flad Oyen, 1 Rob. Adm. 135.

own country, recognized as being or having the authority of a court of admiralty. (k)

*D.— Of Transfer by Mortgage.

1. How A MORTGAGE OF A SHIP SHOULD BE RECORDED.

* 279

We know not why a ship may not be mortgaged in the same way and to the same effect as a personal chattel. Such mortgages of ships are not unfrequently made. They should now be registered under the requirements of the Statute of 1850. (l) (x) Some uncertainty perhaps exists, as yet, as to the effect and operation of this statute, when it conflicts with or covers the same ground as a State statute. The decisions on this question, so far as they have arisen, are not quite reconcilable. Where a statute of the United States, on a subject which is clearly within the power of Congress, conflicts with a State statute, we should have no doubt that it superseded the State statute. But if it only covers the same ground and is not inconsistent with it; either of two views might be entertained as to its effect. One would be, that it should be held as cumulative to the State statute, both statutes remaining in full force. The other would be, that where the statute of the United States covers the whole ground, it renders the State statute unnecessary and nugatory, and in fact repeals it. We think the tendency of adjudication and of practice favors this last view.1 Therefore, a registry of a mortgage of a ship under the Act of 1850 would make the mortgage valid, although it was not recorded in the manner required by State statutes in relation to mortgages of personal chattels. (m)

2. OF THE LIABILITY OF MORTGAGEES.

An owner of a ship, in possession of her, is liable for all supplies furnished, and all repairs made, and all contracts made, by his authority, for the benefit of the vessel. But the question has frequently arisen, when and how far mortgagees are thus liable.

(k) The Flad Oyen, 1 Rob. Adm. 135; The Kierlighett, 3 Rob. Adm. 96; Have. lock v. Rockwood, 8 T. R. 268; Wheelwright v. Depeyster, 1 Johns. 471.

(1) C. 27, 9 U. S. Stats. at Large, 440;

Rev. Stat. § 4192. In respect to the place where a mortgage should be recorded, see ante, p. * 265, n. (v).

227.

(m) See Sinnot v. Davenport, 22 How.

1 This seems now well settled. White's Bank v. Smith, 7 Wall. 646; Aldrich v. Aetna Co., 8 Wall. 491; Fontaine v. Beers, 19 Ala. 722, 730; Perkins v. Emerson, 59 Me. 319; Haug v. Third Bank, 77 Mich. 474; Best v. Staple, 61 N. Y. 71. — W.

(x) See The W. B. Cole, 59 Fed. 182, 258; The Vigilancia, 73 Fed. 452, 19 8 C. C. A. 78; The Seguranca, 70 Fed. C. C. A. 528.

*

A mortgagee who neglects to take possession, unless * 280 protected by some statutory provision, may have his title defeated by a party who acquires a right to the ship honestly and in ignorance of the mortgagee's title. (n) But if he takes possession, and, still more, if besides having taken possession he takes out a new register in his own name, or does any act which may be regarded as giving public notice that he is owner, he then makes himself responsible as an owner. (0) But if he takes possession he is not liable for necessaries ordered by the master, if it is clear that the master did not order them as his agent. (00) (x)

If he does no such acts, and takes no actual possession, and is still protected in his title by record or statutory provisions, he has not then such liabilities as spring only from actual possession.

The general rule must be, that a mortgagee who is not in possession, is not liable for supplies or work rendered to the vessel; (p) but he may of course make himself so liable by a bargain, (q) and he will be held to have made this bargain if he authorized the credit to be given to him personally. But not by the mere fact that he is benefited by such supplies or repairs. The same rule applies to persons who hold a ship as trustees. (99)

Hypothecation by bottomry is at once one of the most ancient and one of the most common transactions of shipping. It is almost, if not quite always, effected by an instrument known as a bottomry bond. The word "bottomry" is founded upon an ancient usage still in some force, which considers the bottom or keel of the ship as the ship. (r)

Originally, the contract was made and the bond executed chiefly, perhaps only, by the master in a foreign port, to raise funds to enable the ship to return to her home port. And while

(n) Ex parte Matthews, 2 Ves. Sen. 272; Atkinson v. Maling, 2 T. R. 462; Portland Bank v. Stubbs, 6 Mass. 425; Tucker v. Buffington, 15 Mass. 480; Badlam v. Tucker, I Pick. 389; The Sch. Romp, Olcott, Adm. 196.

(0) Miln v. Spinola, 4 Hill, 177; Tucker v. Buffington, 15 Mass. 477; Dean v. M'Ghie, 4 Bing. 48; Champlin v. Butler, 18 Johns. 169.

(00) The Troubadour, Law Rep. 1 Adm. & Ecc. 302.

(p) Myers v. Willis, 17 C. B. 77, 33

Eng. L. & Eq. 204, affirmed in Exchequer Chamber, 18 C. B. 886, 36 Eng. L. & Eq. 350; Hackwood v. Lyall, 17 C. B. 124, 33 Eng. L. & Eq. 211; Howard v. Odell, 1 Allen, 85; Blanchard v. Fearing, 4 Allen, 118; M'Intyre v. Scott, 8 Johns. 159; Winslow v. Tarbox, 18 Maine, 132; Cutler v. Thurlo, 20 Maine, 213.

(q) See Fish v. Thomas, 5 Gray, 45. (99) Macy v. Wheeler, 30 N. Y. 230. (r) The Atlas, 2 Hagg. Adm. 53; Scarborough v. Lyrus, Latch, 252, Noy, 95.

(x) Davidson v. Baldwin, 79 Fed. 95, 24 C. C. A. 453.

it has been repeatedly asserted that admiralty has complete jurisdiction of every bottomry bond, wherever made *281 or however made, we are not entirely certain that this is true of any other bonds than those made as they originally were made. (s) It is, however, true that common-law courts do not usually take cognizance of bottomry bonds, nor is it easy to see how they could enforce their peculiar provisions. And, therefore, as a matter of necessity, admiralty might take jurisdiction over all bottomry bonds. They are certainly and eminently maritime contracts. A bottomry bond transfers the ship to the bottomry creditor, as a security for advances made by him. In this respect it is similar to a mortgage or a pledge. It differs from a pledge, however, in this: that possession is not transferred to the creditor. A change of possession is of the essence of a pledge, (†) and this possession seldom if ever is given to the creditor in a case of bottomry. (u)

But a contract of bottomry differs wholly from a mortgage or a pledge, in one particular, wherein it differs also from all other contracts of security. That particular is this. All contracts for security are void if, or so far as, the debt or loan which they are intended to secure is illegal and therefore void. Nearly all civilized nations have what are called usury laws; that is, they place a limit to the amount which can legally be promised for the use of money, or the forbearance of a debt. Now, bottomry bonds are valid, although they go far beyond these limits. They may indeed provide for the payment of any amount of interest which the parties choose to agree upon. (v)

The interest payable by a bottomry bond is called by the lawmerchant maritime interest. The reason of the rule and of the name is this: that the bond always provides, that if the *ship be lost before the bond becomes payable, no part of * 282 the debt, whether principal or interest, is payable. Or, as

it is often said, the debt is paid and the bond discharged by the

(s) The jurisdiction where a bond is made by the owner in a home port, has been doubted or denied in Blaine v. The Charles Carter, 4 Cranch, 328; Forbes v. Brig Hannah, Hopk. 99, Bee, 348; Knight v. The Attilla, Crabbe, 326; Hurry v. Ship John & Alice, 1 Wash. C. C. 293; Hurry v. Hurry, 2 Wash. C. C. 145. The jurisdiction has been sustained in Wilmer v. The Smilax, 2 Pet. Adm. 295, n.; The Sloop Mary, 1 Paine, C. C. 671; The Brig Draco, 2 Sumner, 157.

(t) Ryall v. Rolle, 1 Atk. 165; Reeves

v. Capper, 5 Bing. N. C. 136; Homes v. Crane, 2 Pick. 607; Brownell v. Hawkins, 4 Barb. 491.

(u) There is no jus in re in such a case, but merely a jus ad rem, a right to the thing hypothecated, which can be enforced for the payment of the debt. The Tobago, 5 Rob. Adm. 222; The Young Mechanic, 2 Curtis C. C. 404.

(v) Sharpley v. Hurrel, Cro. Jac. 208; The Cognac, 2 Hagg. Adm. 387; The Atlas, 2 Hagg. Adın. 57; White v. Ship Dædauls, 1 Stuart, L. Can. 130.