The referees are to be sworn before they proceed to make the appraisement.

ART. 415. The goods thrown overboard are valued, according to the market price thereof at the port of delivery, and their quality is ascertained by the exhibition of the bills of lading and invoices, if there be any.

ART. 416. The referees appointed by virtue of the preceding article, adjust the proportions of the loss and damage.

The adjustment after being confirmed by the tribunal, has the force and effect of a judgment.

In foreign ports the adjustment is confirmed and made exécutory by the consul of France, and if there be no consul, by any competent tribunal of the place.

ART. 417. The adjustment of the loss and contribution is made upon the goods cast away, and those that have been preserved, and upon one half of the ship and freights in proportion to their respective value at the port of discharge.

ART. 418. If the quality of the goods is misrepresented in the bill of lading, and they are found of a greater value than represented to be, they contribute, if saved, in proportion to the estimate made thereof.

And if lost, they are paid for in proportion to the value of goods of the quality mentioned in the bill of lading.

If the goods are found to be of an inferior quality to that which is expressed in the bill of lading, then, if they are saved, they contribute in proportion to the value of goods of the quality expressed in the bill of lading.

And they are paid for in proportion to their real value, if they have been cast away or damaged.

ART. 419. Provisions and ammunition and the clothes of seamen do not contribute towards jettison, the value of those thrown overboard shall be paid for entirely by contribution out of the property saved or preserved.

ART. 420. Articles for which there is no bill of lading or declaration (150) of the master, shall not be paid for, although they be cast away, but, if preserved, they shall contribute.

ART, 421. Articles stowed upon deck contribute, if saved.

If they are thrown overboard or damaged by the jettison, the owner thereof is not admitted to share in the contribution; he can only pursue his remedy against the master.

ART. 422. No contribution is allowed for damage suffered by the vessel, unless it has been done to facilitate the jettison.

ART. 423. If the jettison does not save the vessel, there shall be no contribution.

In that case the merchandise saved is not bound to contribute to any indemnity for that which has been cast away or damaged.

(150) It may sometimes happen that the master in the hurry of departure forgets, or perhaps has not time to attend to the signing of a bill of lading; in that ease his declaration on his return into port, supplies the place of it. 2 Valin, 202. VOL. II. APP.

+ Y

ART. 424. But if the ship being preserved by the jettison, and pursuing her voyage is afterwards lost,

The goods saved contribute in proportion to their value in the condition in which they are found, deducting the expenses of salvage.

ART. 425. The goods thrown overboard do not contribute in any case, to the payment of damage suffered after jettison by the merchandise saved.

The cargo does not contribute for the ship if she is lost, or rendered unfit for sea.

ART. 426. If in consequence of a deliberation, the hatches have been opened to take out the merchandise, it contributes to repair the damage suffered by the vessel in consequence thereof.

ART. 427. In case of the loss of goods put on board of lighters or boats, in order to lighten the ship, in entering a port or river, the ship and her whole cargo are bound to contribute.

If the vessel perish with the remainder of the cargo, the goods put on board of lighters do not contribute, although they reach the port in safety.

ART. 428. In all the above cases, the master and mariners have a lien and privilege on the goods or the proceeds thereof, for the amount of the contribution.

ART. 429. If after adjustment, the goods or articles cast away are recovered by the owners, they shall be bound to refund to the master and others concerned, what they have received of the contribution, deducting the damage occasioned by the jettison and expenses of salvage.

TITLE XIII.

Of Prescription or Limitation of Actions.

ART. 430. The master cannot, by prescription acquire the property of the vessel.

ART. 431. The action of abandonment is barred after the expiration of the terms or periods specified in art. 373. (151)

(151) It is not sufficient that the abandonment be made within the respective periods which the code prescribes, but it is also necessary, in order to prevent the effect of the legal limitation, that a judicial demand be made, or, in other words, that a suit be brought against the insurer within the same limited time; otherwise the abandonment, though made with all the requisite formalities, is caducary, and the insured is left to his remedy by action of average. The abandonment may be made in judicial as well as in ministerial form. In the former case, the insured makes it a part of his judicial proceedings, and obtains a judgment against the insurer, by winch he is decreed to pay the loss, according to the tenor and effect of the policy. Nay, if he wishes to postpone to the last moment, the exercise of his right to abandon, he may have an interlocutory decree against the underwriter, declaring him liable to pay the loss, total or partial, as the insured may afterwards elect to consider it, reserving to the latter his right to abandon, within the term of limitation prescribed by law. By this mode of proceeding, the proof of the policy, property, and loss, become matters of record, and the insured, making his abandonment in due time, may pursue his further remedy for the recovery of a total loss, or if he chooses to waive that right, may prosecute his action as for an average loss without being barred by the limitations above mentioned.

ART. 432. Every action founded on a contract of maritime loan or policy of insurance, is barred after the expiration of five years from the date of the contract.

ART. 433. The several suits and actions herein after mentioned shall be commenced and prosecuted as follows:

Suits for the payment of freight or mariners' wages, within one year after the voyage ended.

Suits for provisions furnished to mariners by the master's order, within one year after the delivery thereof.

Suits for timber and other necessary articles, sold and delivered, or furnished for the building, equipping and fitting out of a ship or vessel, within one year after the delivery thereof.

Suits for work and labour done and for journeymen's wages, within one year after the finishing of the work, or delivery of the manufactured article.

Suits for the delivery of merchandise, within one year after the arrival of the ship.

ART. 434. There is no prescription or limitation, if the debt is evidenced or secured by a note, obligation or stated account, or if there has been a judicial demand.

TITLE XIV.

Of Peremptory Causes of Nonsuit. (152)

ART. 435. A suit cannot be maintained:

Against the master or insurers, for damage suffered by merchandise, if the same has been received without protesting.

Nor against a shipper or affreighter for contribution to average, if the master has delivered the merchandise and received his freight without protesting.

Nor against any one for damage suffered in consequence of one ship's running foul of another, in a place where the master might have had his legal remedy, and did not avail himself of it.

ART. 436. The protestations above mentioned are null and void, if they are not made and notified to the party within twenty-four hours, and if within one month thereafter they are not followed by a demand at law.

(152) Fins de non recevoir. In the technical language of the French law this means a ground of objection on the part of the defendant, that the plaintiff has not made out his case by sufficient legal proof, and therefore that he ought to be nonsuited. There is no corresponding term in our legal practice; for although we frequently say, that a particular objection affords a sufficient ground or cause for a nonsuit, yet those specific objections have never been classed together under a common denomination, as they are in the French system of jurisprudence. We have therefore been obliged to adopt a new mode of expression as nearly consistent as possible with our legal idiom, and which we hope will be found sufficiently clear and intelligible.

BOOK III.

Of Failure and Bankruptcy. (153)

GENERAL RULES.

ART. 437. Every merchant who stops his payments, is in a state of failure.

ART. 438. Every merchant who fails and is guilty of some one of the acts of fraud or gross misconduct specified in this law, is in a state of bankruptcy.

ART. 439. There are two species of bankruptcy, to wit:

Simple bankruptcy. It shall be tried by the tribunals of correctional police.

Fraudulent bankruptcy. It shall be tried by the courts of criminal jurisdiction.

TITLE I.

Of Failure.

CHAPTER I.

Of the Commencement (154) of the Failure.

ART. 440. Every person in a state of failure, is bound within

(153) Des Faillites et Banqueroutes. We have already explained above, note 41, the essential difference between these two French denominations. The latter was first brought into use in feudal times, when commerce, then principally carried on by the persecuted and despised Jews, was considered as a base and illiberal occupation, and its misfortunes were not only branded with ridicule, as the words bankrupt and banqueroute from the Italian bunco rotto (broken bench) clearly imply, but stigmatized with the general imputation of guilt. Hence bankruptcy in the earliest English statutes is invariably contemplated in the light of an offence, and the bankrupt, however innocent or unfortunate, is indiscriminately styled the offender. See Stat. 34 & 35 H. 8. c. 4. 13 Eliz. c. 7. and 1 Ja. c. 15. In process of time and with the progress of civilization, the mercantile profession acquired that weight and consideration in the state to which it is justly entitled, and it was discovered that guilt and misfortune are not necessarily convertible words when applied to merchants. The terms bankrupt and bankruptcy, therefore, gradually acquired a more rational and at the same time a more determinate meaning; they became generic terms, including every case of mercantile insolvency, in which comprehensive sense they are now used, and never at present involve the idea of guilt but when coupled with the word fraudulent or some other of similar import. In France on the contrary the words banqueroute and banqueroutier have preserved their original signification, but have ceased to be applied to cases of innocent misfortune. The more appropriate term failure has been introduced as a word of general description, and when employed in a more restricted sense serves to distinguish fair and innocent from fraudulent or otherwise culpable bankruptcy.

The reader will easily perceive why we have been obliged to employ the French instead of the English terms in this translation. With the only help of the words bankruptcy and bankrupt, coupled with occasional adjectives, we are satisfied that we could not, without much awkward circumlocution have conveyed to the reader the full meaning of our text. We do not hesitate, nay we think it necessary to make use of the technical language of the English law whenever we believe that it will convey clearer and more precise ideas to the readers' mind, but we cannot forget that we are employed in the translation of a foreign code, and that we should give but a very imperfect idea of it, were we to strip it altogether of its phraseology, which we consider as one of its most peculiar and distinguishing features. (154) L'ouverture de la faillite. The English law does not take notice in terms

three days after and including the day on which he has stopped his. payments, to make his declaration thereof in the registry of the tribunal of commerce.

In case of the failure of a partnership under a collective firm, the declaration shall contain the names and places of residence of every one of the joint and several partners.

ART. 441. The commencement of the failure is declared by the tribunal of commerce. The precise time thereof is determined by some one or more of the following circumstances, to wit: 1. The debtor's (155) departure from the place of his usual residence. 2. The shutting up of his comptinghouse or stores. 3. His refusal to pay commercial engagements, evidenced by acts or instruments in due form, which acts and instruments, however, shall not be sufficient evidence of an act or commencement of failure, unless there be an actual stoppage of payments (156) or declaration of the party. (157) ART. 442. From the day that a failure is commenced, the debtor is divested of all right over his property and the management thereof.

ART. 443. Every lien and privilege on the property of a merchant is void, if obtained within the ten days next preceding his failure.

ART. 444. All voluntary (158) transfers of real property made by the debtor within ten days next preceding the commencement of his failure, are null and void, as against the creditors, and all deeds and conveyances purporting to be made for a valuable consideration, may be set aside on the application of the creditors, if the court shall be of opinion that there is a strong presumption of fraud.

ART. 445. All commercial acts or engagements contracted by the debtor within the ten days next preceding his failure are as far as respects himself, presumed to be fraudulent; they are null

of the commencement but of the act of bankruptcy, to which every thing subsequent is made to refer. It will be easily observed that the difference lies only in the mode of expression, for in fact the commencement of the failure is the act of bankruptcy, and the act of bankruptcy is the commencement of the failure.

(155) Du failli. According to the English phraseology, we should say the bankrupt's, but having concluded to make use of the word failure, we are much at a loss for a proper derivative. We might perhaps, by way of analogy, have said the failee, but the word has an uncouth sound and would not probably be relished. We prefer saying the debtor, though we are sensible that it is a more vague and less determinate expression than that of our original, We shall endeavour to be more precise, by the help of a circumlocution or otherwise, whenever the phrase and the context will permit it.

(156) There must be an entire stoppage of payment according to the French law to constitute an actual failure. One or more protests or even unsatisfied judgments, are indeed, partial, but not conclusive evidence of an act of bankruptcy by stopping payments, which is contemplated in this article. Jousse, Comment. sur l'ard. de 1673, p. 182. Denisart, Collect. de Jurispr. verbo Banqueroute, § 14, 15.

(157) Such as is mentioned in Art. 440.

(158) The word voluntary here means, made without good or sufficient con sideration.