Joseph Story

“ In the present case, the value of the ship, the only fund out of which payment can be made, falls far short of a full payment of the amount due upon the bottomry bond. But this is the misfortune of the lender, and not the fault of the owners. They are not to be made personally responsible for the act of the master, because the fund has turned out to be inadequate; since, by our law, he had no authority by a bottomry bond to pledge the ship, and also the personal responsibility of the owners. ”

“ And, indeed, except so far as regards the maritime interest of ten per cent, the question would be unimportant; for it is notorious, that in foreign countries, supplies and advances for repairs and necessary expenditures of the ship, constitute, by the general maritime law, a valid lien on the ship; a lien which might be enforced in rem in our courts of admiralty, even if the bottomry bond were, as it certainly is not, void in toto. ”

“ Now, it may be admitted, that if a bottomry lender, in fraud of the owners, and by connivance with the master for improper purposes, advances his money on a new voyage, not authorized by the instructions of the owner, his bottomry bond may be set aside as invalid. ”

“ And after some interlocutory proceedings, the circuit court awarded a final decree against the owners, for the sum of two thousand nine hundred dollars, being the amount ascertained by a report of commissioners, as'expenditures and advances absolutely necessary, and made in the course of the usual employment of the ship,' with interest from the time of the decree, until the payment of the amount thereof. ”

“ The circuit court, on the appeal, reversed this decree, pronounced the bottomry bond invalid, and then proceeded to entertain the suit in personam against the owners; holding them liable for the necessary supplies and repairs of the ship, in the same manner as if the suit had been originally commenced in personam against the owners. ”

“ The only testimony to support it is a loose statement of Schimmelpennick, one of the partners of the house of Vanstaphorst and company; who stated to a witness, 'that the expenses of the Virgin had amounted to about eight thousand guilders, and that they would not be so foolish as to make such an expense for Delplat, without securing themselves by a bottomry.' This language is quite equivocak, and admits of different interpretations ”