Cargo Ex The "Hamburg."
| Jurisdiction | UK Non-devolved |
| Judgment Date | 09 December 1863 |
| Date | 09 December 1863 |
| Court | Privy Council |
English Reports Citation: 15 E.R. 911
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
Mews' Dig. tit. Shipping; A. X. Bottomry, 2. b. c.; XV. Cargo, 8. b. S.C. Br. and Lush. 253; 33 L.J. Ad. 116; 10 Jur. (N.S.), 600; 10 L.T. 206; 12 W.K. 628. See Lloyd v. Guibert, 1865, L.R. 1 Q.B. 125; The Lizzie, 1868, L.R. 2 Ad. and E. 257; The Empire of Peace, 1869, 39 L.J. Ad. 15; The San Roman, 1872, L.R. 3 Ad. and E. 593; Australasian S. N. Co. v. Morse, 1872, L.R, 4 P.C. 223, 8 Moo. P.C. (N.S.) 495; Acatos v. Burns, 1878, 3 Ex. D. 291; The Gaetano and Maria, 1881-82, 7 P.D. 1, 147. As to (i.) Admiralty jurisdiction of Privy Council, see note to The Europa, 1863, 2 Moo. P.C. (N.S.), 21; (ii.) authority of decisions of Judicial Committee (2 Moo. P.C. (N.S.), 313 n. (a)), cf. Clifton v. Ridsdale, 1877, 2 P.D. 276; Read v. Bishop of Lincoln (1892), A.C. 644.
DURANTY V. HART [1863] II MOORE N.S., 290 ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. ALEXANDER DURANTY,-Appellant; MESSRS. JUDAH HART AND COMPANY, and Others,-Respondents * [Dec. 9, 1863]. cargo ex the " hamburg." The validity of a Bottomry Bond, taken up in a Foreign port upon a Foreign ship, freight and cargo, the owners of the cargo being English, and the ship and cargo being proceeded against in England, is to be governed by the general Maritime law, and not by the lex loci contractus, or the law of the country the vessel belongs to. Whether the Master of a vessel, without funds or credit, must communicate with the owners of the cargo before hypothecating the ship, freight, and cargo, in order to enable him to pay the expense of the necessary repairs of the vessel, is a question which can only be decided by the circumstances of eacli particular case [2 Moo. P.C. (N.S.) 321]. A vessel belonging to the port of Hamburg, during her voyage from South America to London, put into the Island of St. Thomas to repair the injuries she had sustained. The cargo, belonging principally to English owners, was not of a perishable nature. Three months after the vessels arrived at the Island of St. Thomas, the Master, being without funds or credit, and acting bona fide, took up a Bottomry Bond on the ship, freight and cargo, to enable him to pay the costs of the repairs. It was not shown that the Master was unable to ascertain the address of the consignees of the cargo, with whom he neither communicated nor attempted to communicate, although the mail steamers left St. Thomas for London, and thence to St. Thomas's every fortnight. In these circumstances, held by the Judicial Committee (affirming the judgment of the Admiralty Court), that, as against the owners of the cargo the Bond could not be sustained, as it was established that the Master had reasonable opportunity of communicating with them and receiving directions from them, and that it was his duty to endeavour to obtain such directions. The decision in the case of the Bonaparte (8 Moore's P.C. Cases, 459) explained [2 Moo. P.C. (N.S.) 324]. A cause of Bottomry, instituted by the holder of a Bottomry Bond on the schooner Hamburg, the [290] cargo, and the freight, against the schooner, cargo, and freight, and against the Respondents, the owners of the cargo. The Hamburg was a schooner belonging to the port of Hamburg. In the month of January, 1861, whilst lying in the port of San Juan del Norte, she was chartered to convey Brazil-wood and other produce from that port to Liverpool, the freight being payable at Liverpool upon delivery of the cargo. The Hamburg was accordingly laden with a cargo of Brazil-wood, gum, indigo and india-rubber, which was consigned, by three separate Bills of lading, to the Respondents, Messrs. Hart and Co., Messrs. White and Sons, and Messrs. Fruhling and Goschen, Merchants, in the City of London. The Master retained in his possession copies of two of these Bills of lading, upon which the names and addresses of the consignees were endorsed. The vessel proceeded on her voyage from San Juan del Norte, and having met [291] with damage from heavy weather was obliged to put into St. Thomas on the 24th of April following for repairs. Upon her arrival there the Master reported her to Messrs. Levy and Co., who were the agents of the owners of the Hamburg, and applied to them for funds to enable him to repair the damage, but they declined to assist him. He then appointed Messrs. Paulsen and Co., of St. Thomas, agents for the ship, and reported her to the Consul for Hamburg, who directed her to be surveyed, and an estimate of her then value, and of the costs of necessary repairs, to be made by three persons, who so valued the vessel at 2000 dollars, and estimated the costs of the necessary repairs at 4820 dollars, " riot including what extra work might be found necessary afterwards." The repairs were completed by the 5th of * Present: Lord Kingsdown, Lord Chelmsford, and Sir John Taylor Coleridge. 911 II MOORE N.S., 292 DURANTY V. HART [1863] July, 1861. On the 9th of July, the Master advertised at St. Thomas for a loan of 6000 dollars or thereabouts, on Bottomry of the ship's cargo and freight. S. Bar-tholomei Lange, of St. Thomas, advanced on the security of a Bottomry Bond, dated the 24th of July, 1861, executed by the Master on the ship, cargo, and freight, a sum of 7,592.88 dollars, with a premium of 33^ per cent. (2,530.96 dollars), the whole sum secured by the Bond being 10,123.84 dollars, or 2154 Os. 2d. sterling. The money advanced was not paid to the Master, but to Messrs. Paulsen and Co., the agents for the ship. The ship sailed a few days afterwards from St. Thomas, and arrived at Liverpool on the 13th of August, 1861, when the ship, cargo, and freight were arrested by a warrant from the High Court of Admiralty of England, at the instance of the Plaintiff as the holder of the Bottomry Bond. The owners of [292] the ship did not contest the validity of the Bond, and allowed the vessel to be sold at Liverpool, when she realized 560. The freight, 201 12s. 10d., was also paid into the registry. The cargo on its arrival at Liverpool was valued at 895. The Plaintiff having received the net proceeds of the sale of the schooner and freight, amounting together to 704 17s. 3d., in part liquidation of the sum of 2154 Os. 2d., due on the Bond, claimed in the suit the full value of the cargo in further part liquidation of the Bond. The Respondents by their answer impeached the good faith of the Bottomry transaction, and alleged that the Master of the Hamburg might, without Bottomry, have obtained advances at St. Thomas from the firm of Levy and Co., and that the money specified in the Bottomry Bond was neither borrowed nor expended for the necessary repairs of the ship, and further that though a mail steamer ran between St. Thomas and England regularly twice a month no attempt was made by the Master to communicate with them before hypothecating the cargo, as he easily might have done. It was pleaded in reply that the money advanced by Lange was properly expended in defraying the repairs and other necessary expenses of the ship. That Lange having lent money on the Bottomry, bona fide, was not required by the law Maritime, or by any other law, to see that the money was duly expended. That by the law prevailing at St. Thomas, there was a lien on the Hamburg for her repairs and other necessaries supplied to the vessel, and that the Hamburg could not have sailed from St. Thomas, without duly paying for the same. That the cargo belonged to various parties in England, of some of whom the [293] Master of the Hamburg was ignorant. That by the law of Hamburg, the Master of a Hamburg vessel is not allowed to tranship his cargo unless his vessel cannot be repaired. That neither by the law prevailing at St. Thomas, nor by the English law, nor by the law maritime, was the Master, in the circumstances of this case, bound to have transhipped his cargo, or to have unshipped and left it at St. Thomas, and that neither by the law of Hamburg, nor by the law prevailing at St. Thomas, nor by the English law, nor by the law Maritime, was the Master of the Hamburg, in the circumstances of this case, bound to have communicated with the owners or consignees of the cargo before hypothecating the same. Evidence was given on the Appellant's behalf, by Levy, the agent at St. Thomas for Hamburg vessels, Wolffson, a doctor-in-law at Hamburg, and Staniforth, who had formerly been Clerk to the Danish Consulate General, that the law prevailing in the Island of St. Thomas was the Danish law, and by that law a person repairing a ship had a lien upon such ship for the price of the repairs done, and that in default of payment the ship might be arrested and sold. Further, that by the law of Hamburg, the Master of a Hamburg ship arriving in distress in a Foreign port was bound to place himself in communication with his Consul, and to act in all things by his direction, and was not bound in any case to communicate with the owners of the cargo resident at a distance before hypothecating the cargo, with ship and freight to pay for such necessary repairs. On the other hand, the Respondents put in an affidavit of Dr. Donnenberg, Councillor-at-law and Jurisconsult, practising at Hamburg, as to the law of Ham-[294]-burg affecting the case, in which his opinion was, first, that the law of Hamburg, as well as the Hanseatic maritime law, not containing rules or prescriptions different from the general Maritime law about this question, the question would be decided in Hamburg, as well as in England according, to the Maritime law. Secondly, that the Hamburg law, as well as the Hanseatic Maritime law, was not 912 DURANTY V. HART [1863] II MOORE N.S., 295 different from the general Maritime law. That, according to the law of Hamburg and the practice of the commercial Courts there, as well as the Courts of appeal, the Master of the vessel was obliged to correspond with the owners or consignees of the cargo before...
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The "Hamburg."
...English Reports Citation: 167 E.R. 362 HIGH COURT OF ADMIRALTY The "Hamburg." S. C. 2 Moore, P. C. (N. S) 289; 15 E. R. 911, 33 L. J. (Adm) 116; 10 L. T. 206; 10 Jur. (N. S) 600, 12 W R 628, 2 Mar L C. (Crockford) 1 Distinguished, Lloyd v. Gurbert, 1865, 6 B. & S. 100, the "Gaetano and Mari......