The "Olivier."
| Jurisdiction | England & Wales |
| Judgment Date | 18 March 1862 |
| Date | 18 March 1862 |
| Court | High Court of Admiralty |
English Reports Citation: 167 E.R. 219
HIGH COURT OF ADMIRALITY
S. C. 31 L. J (Adm.) 137; 6 L T. 259
[484] the " olivier." March 18, 1862 -Bottomry bond on ship, freight and cargo -Duty of master to communicate with owners of ship and shippers or consignees of cargo-Pleading.-The master of a ship, before giving a bottomry bond on ship, freight and cargo, is bound, as against owners of cargo, to communicate both with the owners of ship and the shippers or consignees of cargo, where such communication is under all the circumstances reasonably practicable ; fctut not otherwise. The " Bonaparte '' (8 Moore, P C 459) considered. A French ship, with a cargo from Hayti, consisting chiefly of mahogany, which was consigned to a single house in Liverpool, was obliged to put into the port of Horta, in the island of Fayal, for repairs There was no dock there , but by discharging the cargo the ship could be repaired where she lay at anchor There was no means of transhipping the cargo. The master wrote to the owners of the ship in France, but did not wait a reply , and he did not write to the consignee of cargo at Liverpool. He discharged the cargo and warehoused it , aad obtained the repairs of the ship on bottomry of ship, and freight and cargo, by the sanction of the French consul; and eventually, after the lapse of several months, brought the ship and cargo to destination By the ordinary means of communication between Fayal and France, a reply from France could not have been obtained in less than two months The amount of the bond considerably exceeded the value of the ship and freight, which the shipowner abandoned to the bondholder. Held, that in these circumstances, the master was not bound to have waited for a reply from the shipowner, nor to have communicated with either the shipper or consignee of cargo ; and that the bond was valid against cargo. A defence that a bottomry bond is void, for want of communication with the shipowner or the consignee of cargo, must be specially pleaded. [S. C. 31 L. J. (Adm.) 137 ; 6 L T. 259 ] Borttomry. This cause was instituted by the holder of three bottomry bonds granted by the master of the French ship '' Olivier," upon ship, freight and cargo, under the circumstances hereinafter stated The cause went by default against ship and freight, but the owners of the cargo appeared and contested the validity of the bonds. The " Olivier '' belonged to M Guibert & Son, of Saint Servan in France, shipowners and bankers ; on the 30th of August I860, the vessel being then at the island of St. Thomas, was chartered on behalf of William Lloyd & CWipany, who had a house in the island of Hayti, and also a house m Liverpool, for a voyage from St. Thomas to Hayti, there to take on board a cargo of mahogany and a small quantity of cotton or coffee, and carry the same to Liverpool In fulfilment of this charter the " Olivier " [485] proceeded to Hayti, and there shipped 632 logs of mahogany, 30 bales of cotton, and 25 tons of logwood, all of which were consigned to the house of William Lloyd & Company of Liverpool, and bills of lading were signed and forwarded accordingly. On the 9th of October 1860, the " Olivier '' sailed lor Liverpool. Meeting with tempestuous weather, whereby she suffered considerable damage, the vessel, on the 8th of November 1860, was obliged to put into the port of Horta, in the island of Fayal, for repairs. There was no dock there, and the ship could only be repaired where she lay at anchor near the shore, for which 220 the "olivier" lush e. purpose it was necessary to discharge her cargo The master of the " Olivier " thereupon caused the cargo to be discharged and warehoused, and, being without funds or credit, he applied to the French vice-consul for authority to hypothecate his ship, freight and cargo, to pay for the repairs necessary for the ship to complete her voyage. This authority he received in writing on the 9th of December Accordingly on the 14th of December, he gave a bottomry bond on ship, freight and cargo, for 48,400 francs, payable ten days after arrival in Liverpool, with 20 per cent, interest ; and subsequently he gave two other bonds on the same security, viz. a bond dated 2nd March 1861, for 1634 francs, and a bond dated 10th March 1861, for 1410 francs, each carrying 20 per cent interest The bonds were in the French form^ and executed before the French vice-consul. Considerable delay m completing the repairs was caused by adverse weather, by further damage occasioned by a subsequent collision, and by the want of all convenient appliances. When the repairs were completed the " Olivier "' reslupped her cargo, and on the 16th of March 1860 sailed for Liverpool, where she arrived on the 25th of March The total amount of the sum secured bv the bonds, together with the maritime interest, amounted to £2100 The ship, on being sold by order of the Court, fetched £690 ; the freight amounted to £569 The nett proceeds of the cargo (sold by the owners) were £2043. The expenses incurred at...
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