Fewster Wilkinson and Others, - Appellants; Thomas Wilson and Others, - Respondents
| Jurisdiction | UK Non-devolved |
| Judgment Date | 02 June 1853 |
| Date | 02 June 1853 |
| Court | Privy Council |
English Reports Citation: 14 E.R. 175
ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.
Mews' Dig. tit, Shipping; A. X. Bottomry; 2. Validity; b. Authority of Master. S.C. below, 3 Rob. W. 298. Considered in Lloyd v. Guibert, 1865, L.R. 1 Q.B. 125; The Lizzie, 1868, L.R. 2 Ad. and E. 258; Australasian Steam Navigation Co. v. Morse, 1872, L.R. 4 P.C. 223; The Onward, 1873, L.R. 4 Ad. and E. 56; Kleinwort v. Cassa Marittima of Genoa, 1877, 2 A.C. 157; Acatos v. Burns, 1878, 3 Ex. D. 291; The Gaetano and Maria-, 1881, 7 P.D. 4. By s. 18 of the Judicature Act, 1873 (36 and 37 Vict. c. 66), and s. 4 (3) of the Judicature Act, 1891 (54 and 55 Vict, c. 53), the jurisdiction of the Judicial Committee upon any judgment or order of the High Court of Admiralty, was, except as to prize, transferred to the Court of Appeal.
The "Bonaparte."
WILKINSON V. WILSON-BONAPARTE (the) [1851-53] VIII MOORE, 460 ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND. FEWSTER WILKINSON and Others,-Appellants; THOMAS WILSON and Others,-Respondents [Nov. 26 and 27, 1851,* and June 29, 1853 f]- the " bonaparte." Bottomry bond upon the ship, freight, and cargo; taken up by the master of a small Swedish vessel at a port in Sweden. Part of the cargo was consigned to England. Held, that considering the distance between Sweden and England, and the means of communication, it was essential to the validity of the Bond, so far as the cargo was concerned, that the master should communicate with the owners of the cargo before resorting to hypothecation of the cargo, as he could have obtained an answer within a period not inconvenient with the exigency of the circumstances of the case [8 Moo. P.O. 473]. A Swedish vessel bound from a port in Sweden to Hull, was driven, by stress of weather, to put back into another port in Sweden. This took place on the 21st of November, 1848. Ten days afterwards the cargo was unladen, and the ship found to be greatly damaged. The repairs were completed, and the cargo re-loaded. The master at once communicated with the owners of the ship, resident in Sweden, who, being without funds, consented to the master taking up a Bottomry bond for payment of the necessary repairs, and the British Consul at the port where the vessel lay, wrote on behalf of the master, and as his agent, to the consignees at Hull, informing them of the damage sustained by the vessel, but made no application for money, nor referred to the necessity of repairs. No answer was made to this letter, and the master, in the month of March, 1849, hypothecated the ship, freight, and cargo for the money borrowed for the repairs. Held (affirming the judgment of the Admiralty Court), that such letter to the consignees was a sufficient notice to authorise the master raising money by Bottomry on the cargo [8 Moo. P.O. 483]. Where a party intends to rely upon a particular circumstance as a defence, such ground should be pleaded, and not raised at the hearing, ore tenus. In a question of fact, the Judicial Committee not being satisfied with the sufficiency of the evidence, relaxed the inhibition, and remitted the cause to the Court below, to take proof by further affidavits upon that one point exclusively, without requiring a fresh Act on petition to be brought in [8 Moo. P.C. 475-6]. The question raised in this case was the validity of a Bottomry bond, upon the ship, freight, and cargo, so [460] far as part of the cargo was concerned. The Bond was taken up by the master of the ship the Bonaparte, a Swedish vessel, at a port in Sweden, with the concurrence of the owners of the ship, who resided in Sweden. Its validity was opposed by the Appellants, the owners of part of the cargo, who resided at Hull. The Bond was not disputed by the other owners of the cargo, or by the owners of the vessel. The circumstances of the case were as follows:-The Bonaparte, belonging to the port of Uddevallah, in Sweden, being then oni a voyage from Gottenburg to Hull, with a cargo of iron and deals, put into South Koster Bay, in Sweden, on the 22nd of November, 1848, in consequence of injuries sustained through bad weather. On the 25th of the same month the master communicated that fact to the owners of the [461] vessel, who resided at Berg, near Uddevallah, and requested them to supply him with the funds necessary for repairing the schooner. The owners, however, informed the master that they had no cash, and that he must get the repairs * Present: The Lord Justice Cranworth, the Right Hon. Sir Herbert Jenner Fust, Knt., the Lord Justice Knight Bruce, and the Right Hon. Sir Edward Ryan, Knt. t Present: The Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, Knt., Lord Justice Turner, and the Right Hon. Sir John Dodson, Knt. 175 VIII MOORE, 462 WILKINSON V. WILSON-BONAPARTE (the) [1851-53] done at Stromstad, a port twelve miles distant, and there borrow money for the purpos". The master, upon that information, on the 3rd of December following, proceeded to Stromstad, and there applied to one Toren, a ship agent, and the British Consul at that port, who advanced the sum of 392 15s. lid. sterling, for the repairs of the schooner, on bottomry 'of the ship, cargo, and freight, at the maritime premium of 55 17s. 5d. sterling. The Bond thus given having been endorsed over by Toren to one Quensel, was by him endorsed over to the Respondents, the legal holders of the Bond. The Act on petition of the Respondents alleged, in substance, that the vessel, of the burthen of 52^^ tons, sailed from the port of Gottenburg on the 13th of November, then last past, laden with a cargo of iron and deals, and bound on a voyage to the port of Hull, and in the prosecution of such voyage encountered much bad weather and severe gales, whereby the cargo on board her was shifted, and the vessel became leaky. That with much difficulty she was got into Romsoe Bay in Sweden, and, on the 1st of December, she proceeded to Stromstad, when it was discovered that she had sustained so much damage in her hull and rigging, that it was necessary she should be repaired and refitted, in order to enable her to complete her voyage to England, and for this purpose the cargo was discharged, and the vessel was accordingly put into dock. That immediately upon the arrival of the schooner at Stromstad, the master went over to [462] Uddevallah, a distance of sixty miles, or thereabouts, where the owners of the schooner (chiefly farmers) resided, to inform them of the injuries the vessel had sustained at sea, and to obtain instructions from them for his guidance, and also the necessary funds to pay for the repairs indispensable to the schooner and the maintenance of the crew, but that the owners then informed him (the master) that they had no ready cash, and that they could not furnish him with the necessary funds, and that he must get the repairs effected at Stromstad, and there borrow the requisite sum on bottomry of the schooner, her cargo and freight. That the master being thus unable to obtain money from his owners, and being totally unprovided with the necessary funds for such repairs and refittings, and being unable to raise and supply the funds on his own personal credit, or that of the owners, applied to Mr. Toren, of Stromstad, to assist him in completing the repairs, and, amongst other things, to advance such sum as might be requisite for the payment of such repairs on bottomry, on the security, as well of the vessel, the tackle, etc., as of the cargo laden on board. That Toren agreed to lend and did lend to the master, on the aforesaid terms, the sum of 392 15s. lid. sterling, for the use of the vessel as aforesaid, and that the master mortgaged and hypothecated to Toren the schooner, and also the cargo laden on board, and the freight to be thereafter earned for the transportation thereof, for the payment of the principal sum of 392 15s. lid., at the rate or premium of 15 per cent., amounting in the aggregate to the sum of 451 13s. 4d. sterling. That the vessel was detained at Stromstad by reason of the severity of the weather, and as soon as the weather [463] permitted she proceeded on her voyage to England, and safely arrived at the port of Hull, on the 7th of April, 1849. That Gottenburg, and Uddevallah, and Stromstad, are all ports situated in the same province on the coast of Sweden, and that a Bottomry bond, taken up in the same province of the same country as that in which the owners reside, with their consent and at their request, the master being unable or unwilling to advance the required funds, was valid and legal by the laws of Sweden. The answer on the part of the Appellants, the owners of the iron, part of the cargo, opposing the Bond, denied that the Bond was valid by the laws of Sweden, at least so far as respected the cargo on board the ship at the time the Bond was executed, and insisted, that the Bond was given in reality to secure a former debt of the owners of...
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