The "Edmond"
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1861 |
| Date | 31 January 1861 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 103
HIGH COURT OF ADMIRALITY
S. C. 2 L. T. 521.
[211] the " edmond " January 31, 1861.-Bottomry-Objection to registrar's report-Practice-Items in bond-Discharging expenses of outward cargo- Law expenses-Payment of money into Court-Interest on money pronounced due-Practice.-Objection to a registrar's report cannot be heard on motion, except by consent The rule derived from The " Prince George " (4 Moore, P. C. 21) with respect to items to be allowed in a bottomry bond, is that all expenses incurred in the port where the bond is given, relating to the ship or crew, being expenses for which the master or owner of the ship is liable, and bang necessary to enable the ship to proceed on her voyage, may be allowed. Expenses of discharging outward cargo allowed in a bond for the homeward voyage. The agent of a ship abroad applied a balance of freight in discharge of law expenses relating to the ship's business, and took a bottomry bond ior other payments, for which there was a lien on the ship. Held, that the amount of such law expenses could not be deducted from the bond. The defendants in a bottomry suit having paid into the registry, by order of the Court, a sum of money, which proved larger than the amount finally pronounced due to the bondholder, the bondholder held nevertheless entitled to the full ordinary interest upon the latter sum from the date of the bond becoming due [S. C. 2 L. T. 521.J The claim of the bondholder in this case was, according to the previous judgment in the case (ante, p. 57), referred back to the registrar. At the reference the original papers in The " Pwnce George " were referred to by the registrar, and it appeared that in that case, where the bond was given for 1167 dollars, there were three items lor discharging expenses, amounting to about 120 dollars, which had been allowed by the decree of the Privy Council The registrar thereupon made his further report as follows .- " To tLfr Bight Honorable Stephen Lushington, Doctor of Laws, Lieutenant Judge and President of the High Court of Admiralty of England. " Whereaa by your decree or order of the 15th day of March 1860, you were pleased, at the petition of the proctor for the defendants, to refer back the report of your registrar and merchants for further consideration, and were also pleased to direct that the same should be reformed according to the rule laid down in the case of The ' Prince George,' reported in the 4th volume of Moore's Privy Council Rep&rte, pages 21-28 inclusive. " Now, I do most humbly report, that having, on the 17th day of May 1860, been attended by both parties, the proctor [212] for the defendants claimed that the items set forth in the schedule hereto annexed, marked No. 1, together with the bottomry premium thereon, should be struck off from the amount reported due by our said former report, which was opposed by the proctor for the plaintiffs. And having had the advice and assistance of Messieurs John Cattley and Robert Embleton, of London, merchants, in considering this case,-having also carefully read and considered the case of The ' Prince George,' and having heard counsel on behalf of the defendants, as well as what was urged by the parties, their proctors and agents on both sides, I find that, in the case of The ' Prince George,' the amount for which the bond was contracted included charges for pilotage, labour, ballast, discharging the outward cargo, and other expenses usually comprised under the head of port charges, besides a sum of 329 dollars for damage to and short delivery of cargo, I find also that, besides the said sum of 329 dollars, a further sum of 1115 dollars and 53 cents was due for other damage to and short delivery of cargo, and that the same was paid by the consignees out of the balance of freight in their hands, and in preference to the port charges and other expenses necessary to enable the ship to prosecute her voyage. I find, moreover, that the Lords of the Committee, in their report to Her Majesty tn the case of The ' Prince, George,' disallowed only the said sum of 329 dollars, and allowed the whole of the other charges, constituting 104 the "edmond" lush. us. the amount for which the bond had been given, and further refused to order that the said sum of 1115 dollars and 53 cents, which had been applied by the consignees out of the freight in payment of damage to and short delivery of cargo, should be applied in priority to the satisfaction of the port charges and other necessary disbursements to enable the ship to prosecute her voyage " Acting, then, upon the principles laid down in the case of The ' Pnnce George,' I find in the present case- " 1. That items Nos. 1 to 15, both inclusive, in schedule No 1, being charges for pilotage, labour, ballast, discharging outward cargo, and other expenses usually comprised under the head of port charges, are of a character similar to those which were allowed by their Lordships in the case of The ' Pnnce George,' and ought, therefore, not to be disallowed in this case; and, moreover, that they were charges necessary to enable the ship to prosecute her voyage, and as such are properly the subjects of bottomry " 2. That items Nos 16 to 22 inclusive, being charges for damage to and short delivery of cargo, ought, on the principles laid down in the case of The ' Pnnce George," to be disallowed " 3. That items Nos 23 to 26, both inclusive, having been [213] paid by the consignees out of the balance of freight in their hands, ought not to be disallowed, the consignees being justified on the principles laid down in the case of The ' Pnnce George,' in so applying the freight if they thought fit " I, therefore, find that there is due to the said Andrew Blowers Smith and John Smith, upon the bottomry bond proceeded on in this cause, the sum of £2474, Os. lOd , with interest thereon at 4 per cent per annum, as set forth in the schedule hereunto annexed marked No. 2 " AH which is most humbly submitted by " (Signed) H. C rothery, Registiar " Admiralty Registry, Doctors' Commons, "l9th May 1860." schedule No. 1. Lut of Items claimed by the Defendants to be disallowed from the Amount of the Bond. Claimed Allowed £ s d £ s d 1 Metcalf and Co , for towage . 500. 2. Fraser ,, bags . . . 0 15 0 3 R. T. Ford ,, port dues ... 14 17 0 4. H. M'Carthy and W. Haywood, for clearing stage . 500 5. Mitchell and Co., for towage . 500 6. Eldershaw, for customs' officer . . 770 7. J. G. Hand, discharging clerk 1120 8. J. B. Viles, surveyor 330 9. Whitaker, for discharging 20 0 0 10. Hugh M'Carthy, for ditto . 38 15 0 11. Australian Agricultural Company, foi discharging and use of gear . 109 15 0 12. Jewell, for lighterage . . 151 18 0 13. Baker Bingle and Sons, port dues, etc . 37 6 0 14. Discharging 62 11 10 15. Ballast 35 10 6 16. George Thorne and Company . . . . 4160 4160 17. Bnerly, Dean and Company 740 740 18. W. W. Buckland 13 0 0 13 0 0 19. Saddington and Son 18 18 6 18 18 6 20. Gilchrist, Watt and Co 208 50 208 5 0 21. Part of the Australian Agricultural Company's account 66 1G 5 66 16 5 L01H. 114. THE " EDMOND " 105 [214] C'aimed. Allowed. £ a. d. £ s. d. 22. Smith, Brothers and Company . . . . 13111 13111 23. Commissions on disbursements .... 121 50 24. Gurnet and Roberts, law charges . 69 0 1 25. Expenses of witness in law suit .... 2 10 0 26. Wbitaker and Harvey, as per award . . . 30 14 6 £1063 11 9 332 1 10 Together with the bottomry premium thereon schedule No. 2. £ s. d. Account of disbursements for which the bond was given . . 2311 6 6 Deduct-Amount of disallowances, as per schedule No I . 332 1 10 1979 4 8 Bottomry premium thereon, at £25 per cent. . . 494 16 2 £2474 0 10 With interest thereon, at the rate of £4 per cent, per annum, from the 3rd day of July 1858 until paid (Signed) H C eotheey, Eegistrar On the 22nd June, Lushington moved the Court to refer back the report of the registrar to be again reformed.-The matter in dispute was a question of law only ; for the information of the Court the points of law intended to be argued had been entered, in the minute notice of motion, and due notice had been given to the other side Clarkson, contra -The objection to a report of the registrar must be by petition. Dr. Lush%ngt#n ò If the parties do not agree to have the case heard on motion, the objection must be by petition m the ordinary way The following act on petition was then brought in by the proctor for the mortgagees of the ship " On the 21st July 1860 " On which day Waddilove, as the proctor of the said George [215] Seymour, George Peacock, and Martin Diedrich Rucker, the mortgagees in possession of the said ship or vessel ' Edmond,' declared that he objected to the further report of the registrar and merchants bearing date the 19th day of May 1860, touching the claim given in on behalf of the said Andrew Blowers Smith and John Smith, the aforesaid legal holders of a bottomry bond on the said ship or vessel, and the freight due for the transportation of the cargo lately laden therein ; for he, Waddilove, expressly alleged that on the 15th day of March 1860, the Right Honorable the Judge having maturely deliberated, by interlocutory decree remitted the former report of the registrar and merchants bearing date the 15th day of March 1860, to be, reformed by them according to the principle laid down by their Lordships of the Privy Council in the case of The ' Prince George,' reported in the 4th volume of Moore's Privy Council Reports, adding as follows : ' I apprehend the principle of The " Prince George " to be that the master by his sole authority can bottomry his vessel only for repairs-necessary provisions-articles furnished to the ship herself,-but that he cannot bottomry the ship for charges relating to the outward cargo, unless the ship could be arrested for the same, even though they constituted debts properly awing from the owners of the ship.' " And Waddilove referring to the...
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