The "Royal Arch"-(W A Kenney, Master)
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1857 |
| Date | 13 November 1857 |
| Court | High Court of Admiralty |
English Reports Citation: 166 E.R. 1131
HIGH COURT OF ADMIRALTY OF ENGLAND
S C. 30 L T. (O. S.) 198; 6 W. R. 191. Referred to, The "Staffordshire," 1871, 25 L. T. 137; London and Midland Bank v. Nelson, 1895, 1 Com Cas. 18: the James W Elwell," [1921] P 366
the " royal arch "-(W A. Kenney, Master). November 13, 1857.-Bottomry/aj* bond-Agreement to postpone payment-Mortgages-Part-owner.-A bottomry ' bond given by the master with the consent of the owner, upon a British ship, lying in a British port, for a new voyage, cannot be sued upon in the High Court of Admiralty , but it is otherwise, if the ship was lying in a foreign port.-A bond may be given, though money has not actually been advanced, to a person who has pledged his own credit for the expenses incurred -No particular rate of interest is essential to a bottomry bond, though, when the ordinary or a low late of interest is taken, it raises a suspicion that sea risk was not intended, and sea risk is essential to the jurisdiction ot the Court -The consent of a managing part-owner to a bottomry bond binds his co-owners, and is strong evidence of the necessity of the bond.-A bottomry bond is entitled to priority of payment over a mortgage during the voyage for which the bond was executed ; but when due, should be enforced within reasonable time, and a voluntary agreement on the part of the holder to postpone payment under it alters itb character totally, and substitutes a contract, over which the Admiralty Court, at least has no jurisdiction. Where the interests are distinct, separate bails should be given A Butash ship, owned at Liverpool, Nova Scotia, terminated at New York a voyage 1132 the "royal arch" swab.270 from Glasgow ; being in need of repair, her master, with the consent of her managing part-owner, gave a bottomry bond, payable at New York on her return to a port of discharge in the United States or British North America After the termination of such contemplated voyage, the bondholder agreed with the same managing part-owner to postpone the payment of the bond till after the conclusion of a subsequent voyage and her arrival at a port of discharge as before, the bond to remain a hen on the ship ; such voyage was also performed, and on the ship reaching Liverpool, in England, in prosecution of a further voyage, she was arrested by wan ant of the Court ; the validity of the bond and agreement was contested by the mortgagees of three-fourths and the owner of one-fourth of the ship. Held that the bond was originally good, but the holder could not now sue upon it in this Court, or upon the agreement. [S C. 30 L T. (O. S.) 198 ; 6 W. R 191. Referred to, The " Staffordshire" 1871, 25 L. T. 137 ; London and Midland Bank v. Nnlsnn, 1895, 1 Com Cas. 18 ; The " James W Eliodl" [1921] P 366 ] This was a question of the validity f a bottomry bond and an agreement of a subsequent date to postpone payment thereof The circumstances sufficiently appear on the face f the documents and in the judgment |270] The bond was in the following terms - " United States of America. " Know all men by these presents that I, William A. Kenney, master of the British barque ' Royal Arch,' built in the year 1855 at Liverpool, in the province of Nova Scotia, of the burden of 430 tons British or thereabouts, owned by Archibald J. Campbell, Colin Campbell and Sylvan us Morton, merchants, residing in Liverpool aforesaid, am held and firmly bound to Mahlon Vail, of the city of New York, in the said United States, merchant, his certain attorney or attorneys, executors, administrators or assigns, in the sum of 8000 dollars, lawful money of the said United States, to which payment well and truly to be made I bind mvself my heirs, executors, administrators and assigns firmly by these presents. Sealed with my seal and dated in said city of New York this 5th day of February 1856 " Whereas the said barque ' Royal Arch,' under the command of the above-bounden William A Kenney, departed from the port of Glasgow in Scotland, on or about the 29th October last past, bound to the port of New York, laden with a cargo of general merchandise, the freight of which was to become due and payable on delivery at said port : And whereas, in the due prosecution of her said voyage, the said barque ' Royal Arch ' was struck by a fearful sea, which started cutwater, doing other serious damage, and also suffered other serious damage in violent gales and dangerous seas, and on or about the 21st December arrived at her destined port and earned her freight: " And whereas, to repair the said damage, it became indispensable that she should undergo extensive repairs in order to render her seaworthy and fit to undertake a Yoyage to the port of Glasgow aforesaid, whither she is now bound : " And whereas, to pay said repairs, together with port and other charges incident to his contemplated voyage, heavy expenses were unavoidably incurred And whereas the said master had not funds sufficient to pay the expenses necessarily incurred as aforesaid ; for, after using the money collected from inward freight, a large sum remained unpaid, which he the said master could not raise on his owu personal credit or that of the owners of the said barque or otherwise, except by bottomry : " And whereas in this emergency the said William A. Kenney made application to tte above-named Mahlon Vail for supply of [271] the funds indispensable to the repairs and expenses aforesaid, who agreed to make the said advances on condition, for his security in so doing, and for legal interest of the State of New York, from the date of these presents till paid, to take a bottomry bond upon the said vessel, her tackle, apparel and furniture, in the manner hereinafter mentioned, with this express proviso, that the sail W A Kenney should obtain consent to his so doing of the above-named Archibald J. Campbell, acting owner of the said barque . Accordingly the said W. A. Kenney sent a telegraphic message to the said effect, and by telegraph the said Archibald J. Campbell authorised the execution of the bottomry bond required : '* And whereas the said Mahlon Vail has accordingly made the said advances for swab ta. the "royal arch" 1133 the purposes aforesaid, amounting to the sum of 4000 dollars lawful money as aforesaid : And the said barque is now in a fit condition to prosecute her voyage to Glasgow and intends to put to sea with all possible dispatch : " For the security of the said Mahlon Vail for the payment of the said sum of 4000 dollars, and for interest thereon as aforesaid till paid, I, the said William A. Kenney, master aforesaid, in consideration of the premises, and by virtue of my powet and authority as master, and by express authority of Archibald J. Campbell, acting owner as aforesaid, have mortgaged, hypothecated, pledged and assigned, and try these presents do mortgage, hypothecate, pledge and assign over to the said MahlottVaO, his executors, administrators or assigns, or to his order endorsed hereon, the said British barque ' Royal Arch,' her tackle, apparel and furniture, boats and all appmrtffiamces, for the security of the said Mahlon Vail in the premises, and to be pmt to no other use or purpose whatever until the payment of the said sum of 4000 dollars and interest as aforesaid be justly and fully made, according to the conditions hereinafter expressed. And the condition of this obligation is such, that if the said William A. Kenney or the said Archibald J. Campbell, their heirs, executors or administrators, shall and do well and truly pay, or cause to be paid, to the said Mahlon Vail, his certain attorney, attorneys, executors, administrators or assigns, or to his order endorsed hereon, the aforesaid sum of 4000 dollars, with interest ass aforesaid till paid, on or before the expiration of five days next after the arrival of the said barqme?' Boyal Arch ' in a port of discharge in the United States, or in a port of discharge in any of the BntisJi provinces of North America, to one of which the said master hereby binds himself to return in and with the said barque direct, [272] or ma a port in the West Indies, from the port of Glasgow, in such manner that the full amount due shall be provided and paid in New York aforesaid, then this obligation to be void, otherwise to remain in full force and virtue. " In witness whereof, I, the said William, A. Kenney, have signed and set my seal to three bonds, all of the same tenor and date, one of which being accomplished,, the otheis to be void and of no effect. " W A. Kermey, Master of barque ' Royal Arch.' " Signed, sealed and delivered in the presence of." Agreement for the extension of time of payment of bond :-" Know all men by these presents, that whereas the sum of 4000 dollars and interest, secured by a certain bottomry bond on the British barque ' Royal Arch,' which bond nears date at the city of New York on the 5th day of February 1856, and is made, executed and delivered to Mahlon Vail, is payable on or before the expiration of five days next after the arrival of the said barque at a port of discharge in the United States, or at a port of discharge in any of the British provinces of North America ; and whereas the said barque has arrived at the port...
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