That the vessel, shortly after the date of the bond, sailed, as directed by Mr. Bell, for Harvey, New Brunswick. 1879 THE That the bottomry of the vessel was actually necessary to ELYSIA A. enable the master to raise the funds required to enable him to relieve the vessel from debt and to proceed to sea, and that without such hypothecation the master would have been utterly unable to relieve the vessel and proceed to sea; and that the bond was executed in good faith, and without any fraud or otherwise on the part of any person whatever. There is also a deposition from the bondholder of the due execution of the bond, and that the loan was entered into by him in good faith. On the part of the owners, the following evidence was offered: 1. Of the master, John E. Simpson, who swore that he sailed in the vessel to Queenstown with a cargo of deals, where he arrived about the 27th July, 1878. That Queenstown was his port of destination, and that he believed the vessel was sent there for the purpose of being sold. That when she arrived, the vessel was in good order, not needing any repairs. That the vessel discharged her cargo and remained at Queenstown until about 30th September, and during that time was not in distress, nor in need of repairs. That the Elysia A., when she sailed from Queenstown, was not under any contract or charter party compelling her to proceed to North America, nor was her so proceeding a continuation of any voyage, but the same was a new voyage. That as there was no immediate prospect of selling the vessel, he concluded to bring the vessel out of the port of Queenstown, and bring her out to this Province, and for the purpose of paying the advance wages to a crew, and his own wages, and the other outward disbursements and bills of the vessel, he obtained the sum of £99 19s. 2d. on bottomry of the vessel now in suit. That at the time he advertised for and received the said money, all the stores for the vessel had been purchased, and were on board the vessel, but not paid for. с 1879 THE That he was not directed by William C. Anderson, the owner of the vessel, or by Major C. Anderson, the person ELYSIA A. who appointed him master, or by the mortgagees of the vessel, to take the vessel out of the port of Queenstown. That he did not communicate with them, or either of them, in relation to borrowing money on bottomry of the vessel. That he had no directions from them, or either of them, to bottomry the vessel. That the reason he borrowed the money and gave the bottomry bond was that he was advised and informed that he could lawfully do so by Mr. Scott, at Queenstown. That the vessel did not receive any repairs, nor was she in a damaged condition or in need of any repairs from the time he became master of her in July, 1878, until the issuing of the warrant in this action in December last. The depositions of Lorenzo H. Vaughan and Thomas A. Vaughan were also read on behalf of the respondent, alleging that in July, 1878, they and James L. Dunn were mortgagees of the Elysia A.; that the vessel was sent from St. John to Queenstown for the purpose of being sold; that she arrived at Queenstown in good condition; that William C. Anderson was the registered owner. That the vessel, when she left Queenstown, was beginning a new voyage, she not being then under any contract or charter party to proceed to North America, or on any voyage. That the bottomry bond was given without any notice to the mortgagees, or either of them. That the vessel arrived in St. John in November, 1878, up to which time she had not received any repairs or been in any distress, and that no part of the money from the bottomry bond was expended in payment for any repairs. That the bringing the vessel from Queenstown on this voyage, and the expenses incident thereto, caused the mortgagees to lose part of their debt; that they knew the vessel would have sold at Queenstown for more than sufficient to pay the amount due on their mortgage. That when the vessel was at Queenstown, the Messrs. Anderson resided at Harvey, N. B., and the mortgagees at St. John, N. B., and that immediate means of communication existed between Queenstown and Harvey and St. John by a weekly mail, by which a letter could be sent in from seven to nine days from Queenstown to Harvey, or St. Johu. The grounds of objection urged against this bond: 1. That the Elysia A., having been dispatched with a cargo of deals to Queenstown, where it was intended that she should be sold, the port of Queenstown became thereby her port of final destination, and that, being in that British port, her voyage was up; and that no bottomry bond could be then taken for the purposes of a new voyage, and it was strongly contended that no master in a British ship in a British port, on a new voyage, can bottomry a vessel. 2. That the vessel, not requiring any repairs, and not having been in any distress, there was no necessity existing to warrant the master in giving a bottomry bond. 3. That the master, before giving the bond, did not apply, or attempt to apply, to his owner, nor did he inform him or the mortgagees of his necessity and obtain the money. As to the first ground, that the original voyage was ended when the vessel arrived at Queenstown, where she was sent on sale, it must be remembered that the Elysia A. was a Canadian foreign sea-going vessel, registered in New Brunswick; that she had sailed from New Brunswick with a cargo of deals for Queenstown, where the owner contemplated selling her; whilst she lay at Queenstown she was, therefore, at a foreign port. It is alleged by the promovent in his pleadings, and not denied by the owner, that no purchasers offering to buy the vessel, the owner sent to Mr. George Bell, his agent at Dublin, this cablegram on 29th August, 1878: "Elysia return; effect insurance on hull, £250." To which Mr. Bell replied: "Vessel is detained on account of £50; cable bankers" - to which the owner sent no reply. Under these instructions it became the duty of the master to obey her owner, and bring the vessel to her home port, and his power for that purpose would be as full as if he had sailed from New Brunswick with the original intention of making a return voyage, and such return of the vessel to New Brunswick I should consider as a continuation and completion of her original voyage. 1879 THE ELYSIA A. 1879 THE The principle contended for might apply successfully if the bond had been given by the master in his home port ELYSIA A. prior to the commencement of a voyage; but, as I have remarked, this vessel was in a foreign port, and on her return voyage to the country where she belonged. On this point I would refer to the Adonis, (1), where the validity of a bond was held not affected by the circumstance of the money being advanced before an intervening voyage, if given for advances necessary for the vessel to prosecute and complete the original voyage. Next, did a necessity exist for giving this bond? It is well established law that it is that state of unprovided necessity that alone supports these bonds, and the absence of that necessity is their undoing. The Nelson (2). The want which exacts the loan must be such as, if not supplied, would prevent the prosperous completion of the voyage, including, therefore, indispensable repairs to the ship and necessary provisions for the people on board. A master entering a foreign port in need of necessaries from distress or otherwise, may incur debts for repairs or necessaries; these debts may be purely personal, but he may borrow on bottomry from any one not the creditor to pay such debts. The North Star (3). In the case of The Karnak (4), before the Privy Council, the Court says: "When a master cannot in any other way raise money which is indispensably necessary to enable him to continue his voyage, he may hypothecate the ship; this power would extend to a case where the ship might be arrested and sold for a demand for which the owner would be liable. It seems immaterial whether the necessity for funds arose from such a demand or to pay for repairs, stores or port duties." In the case of Beldon v. Campbell (5), Baron Parke, in speaking as to what constitutes necessaries for a ship, says: "The master is appointed for the purpose of conducting the navigation of the ship to a favorable termination, and he has, as incident to that employment, a right (1) 2nd Stuart, Ad. Rep. 125. (3) Lush. 50. (4) L. R. 2 P. C. 505. (5) 6 Ex. 886. 1879 THE to bind her owner for all that is necessary; consequently he has perfect authority to bind her principal owner as to all repairs necessary for the purpose of bringing the ship ELYsia A. to its port of destination; and he has also power, as incidental to his appointment, to borrow money, but only in cases where ready money is necessary, that is to say, when certain payments must be made in the course of the voyage, and for which ready money is required. An instance of this is in the payment of port dues, which are required to be paid in cash; or lights, or any dues which require immediate cash payments. So also in the case referred to in the course of the argument, Robinson v. Lyall (1), where a ship, being at the termination of the voyage, and about to proceed on another, money borrowed to pay the wages of seamen, who would not go on the second voyage without being paid, was considered necessary. See also The Osmanli (2), where a bond given for the purpose of raising supplies necessary to bring the vessel from Malta was pronounced for. It was also urged against this bond that the money raised was used to repay moneys advanced to the master whilst the vessel was lying at Queenstown, and for supplies presumably purchased there, and which were at the time the bond was executed, on board of the vessel. This would, I think, make no difference provided the advances were made and the stores supplied on the understanding that they were to be secured by a bottomry of the ship. Lord Stowell, remarking on a similar objection, says it was of no consequence whether the money was advanced at once, and the bond immediately entered into, or whether the master received it at different times and gave a bond for the whole amount. In the case of The Karnak (3), the judge held that in the case of money already supplied without any previous agreement, it is to be presumed, in absence of all evidence, that the foreign lender made the advances in contemplation of bottomry security, and the presumption is increased when the lex loci empowers the lender to arrest the ship in satisfaction of his demands, and this power of arresting the vessel, (1) 7 Price 592. (2) 3 W. Rob. 219; s. c. 7 N. of C. 322. (3) L. R. 2 A. & E. 289. |