"Vibilia"--(Richardson)
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1838 |
| Date | 05 December 1838 |
| Court | High Court of Admiralty |
English Reports Citation: 166 E.R. 474
HIGH COURT OF ADMIRALTY
Referred to, The "Royal Arch." 1857, Swab. 279; The "Karnak," 1868, L. R. 2 Ad & Ecc 302
REPORTS of CASES ARGUED and DETERMINED in the HIGH COURT of ADMIRALTY commencing with the JUDGMENTS of the Right Hon. STEPHEN LUSHINGTON. By WILLIAM ROBINSON, D.C.L., Advocate. Volume I. 1838-1842. London, 1844. [1] " vibilia "-(Richardson). December 5, 1838 -A bottomry bond, granted by the master of a Bntish vessel to a merchant of Philadelphia, who had consented to act as mercantile agent for the ship and cargo during the progress of repairs in the port of Philadelphia, upheld. The fact of a hen on the ship existing by the law of the country in which the bond is given is an important ingredient, and furnishes a presumption in favour of bottomry, and against personal credit. [Referred to, The 'k Royal Arch" 1857, Swab. 279 ; The " Karnak," 1868, L. R. 2 Ad & Ecc 302 ] This was the case of a British ship bound from Belize, in the bay of Honduras, with a cargo of mahogany, for the port of London In the course of her homeward voyage, the vessel being much damaged by stress of weather, was compelled to put into Philadelphia, and the master upon his arrival having placed himself under the direction of the British Consul and the agent for Lloyd's at that port, was introduced by them to Mr Baldwin, a merchant of Philadelphia, who consented to act as mercantile agent for the ship and cargo during the progress of the necessary repairs. The master being wholly unprovided with funds or credit, endeavours were made in the first instance, but without success, to meet the expenses of the repairs by raising money upon bottomry. A sale of the cargo was then resorted to, and during the repairs the whole of the cargo was sold at three distinct sales, the proceeds being received by Mr. Baldwin and disbursed by him in the ser-[2]-vice of the ship, with the sanction and concurrence of Captciin Richardson, the master. Previous to the last sale of the cargo, it became evident that the whole of the proceeds would not be sufficient to meet the costs of the completion of the repairs and the outfit of the ship. Upon this attempts were again made to raise money upcn bottomry, by application to several merchants of Philadelphia Failing in these attempts, the master then applied to Mr Baldwin to take upon himself the responsibility of the expenses beyond the proceeds which might arise for the further sale of the cargo, the master undertaking to give a bottomry bond for the balance Upon the faith of this promise the repairs were completed by Mr Baldwin, and the vessel was furnished with supplies for her homeward voyage ; and upon the 13th of January 1838, a bond was executed by the master in favour of Mr. Baldwin to the amount of 3060 dollars, with maritime interest at the rate of fifteen per cent. The vessel sailed from Philadelphia on the 16th of January 1838, and arrived at the port of London on the 27th of February following, when payment of the bond being resisted b the owners, the proceedings in the cause were instituted by the bondholder, on whose behalf, Haggard and Robinson submitted- That the owners' admissions in the cause established a clear case of unprovided 474 1W. ROBS. THE " VIBILIA " 475 necessity for the foundation of a bottomry transaction, and the bond in question embraced upon the face of it every essential requisite of a bond of bottomry. That the conduct of Mr Baldwin had been fair and honourable throughout the whole of the proceed-[3]-ings, and was supported by a strong balance of testimony in his favoui, whilst the case set up on the other side rested solely upon the unsupported evidence of Captain Richardson, the master, whose present depositions were at variance with his own conduct at the time Lastly, that it was important for the security and promotion of the commercial interests, that bonds of this description should be supported , that they had ever been regarded as of a high and sacred character, and there was nothing in the circumstances of the present case to detract from the favour with which such instruments had heretofore been regarded by the Court in the cases of The '" Rhada manlhe'" (1 Dods 203) and The "Alexander" (1 Dods. 278) For the shipowners, Queen s Advocate and Addams, contra, contended - That the master had been superseded in his authority and imposed upon in the present transaction That the repairs were inexpedient under the circumstances of the case, and the owner's interests had been improperly compromised, inasmuch as the expenses of the repairs amounted to the sum of 4000, and the value of the bhip on her arrival in England was only 2300 That neither the master himself nor any person ac ting on his behalf had power to sell the whole cargo, as had been done in this case (c) Lastly, that by the law of America, Mr Baldwin the bondholder, had a lien upon the ship, which he had thought fit to relinquish [4-] That some of the items in the bond were for advances made before the bond was...
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The "Karnak."
...evidence, and at once disposes of the objection to the Bond being for expenses incurred previous to the date of its execution : The VibUw (1 W. Rob., 1); The Alexander (1 Dod., 278); The Prince George (4 Moore's P.C. Cases, 21); The Osmanli (3 W. Rob., 198); The Gratitudina (3 Rob., 240 ; a......
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...money has been fairly borrowed and that there is nothing in the transaction that is fraudulent: The Jane, 1 Dods. 464, 465; The Vibilia, 1 W. Rob. 1,10; The Orelia, 3 Hagg. 75, 84; The Royal Stewart, 2 Spinks, 260. As to the reduction of premium, in the case of The Cognac (ubi sup.) the pre......
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Fewster Wilkinson and Others, - Appellants; Thomas Wilson and Others, - Respondents
...unprovided necessity as justified him in resorting to bottomry and hypothecating the cargo. The Gratitudine (3 C. Rob. 240), The Vibilia (1 W. Rob. 1), The Lord Cochrane (1 W. Rob. 312), Story " On Agency," ch. vi. sec. 118, Abbott on Shipping, pp. 143, 321 (7 Edit.); and, that the Court fa......
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