and writers on these subjects. Such authorities, at best, are but very unsatisfactory in cases of great importance. They will appear still further weakened by the observations that may be made upon them. The cases of ransom and jactus depend on other principles, arising out of urgent and instant danger, in which the titles of property are sacrificed, with every other consideration, to the preservation of human life. As to cases of authority exercised over the cargo, deliberately and in safety, in a foreign port, the utmost that is directly sanctioned is a power to sell a part; but this arises from principles very different from those which have suggested this action, and leading to consequences very different from what the proprietors of this cargo will suffer if the demand can be maintained. The master is the appointed agent of the owner of the ship, and, as such, competent to bind him in many instances. He is bound to consult the benefit of the owner of the ship as to the best means of accomplishing his voyage. The ordinance of the Hanse Towns, tit. 6, art. 2, Emer. v. 2, p. 432, contains a minute description of his duty in such situations, and, as we submit, prescribes the proper limitation of his power. If he is in want of repairs, “et istic loci nullum cambium ad exercitores transmittendum obtinere queat, aut etiam in navi nulla bona habeat, quæ meliori cum commodo exercitorum, quam pecunia sub fœnore nautico excepta vendere possit; tum hoc in casu necessitatis, pro servandâ navi et bonis, habeat potestatem, nomine universorum exercitorum, tantum pecuniæ sub fœnore nautico accipiendi, quantum ad reparationem damni et alios similes casu necessitatis opus habet; et taliter quicquid fœnori accepit, universi exercitores solvere tenebuntur." The whole of his discretion is supposed to be exercised pro meliori commodo exercitorum; but he is not entitled to lay any burden on the owners of the cargo. If his ship is disabled by accident and storms from proceeding, he is not bound on their account either to tranship or to repair. It is said that he may repair or that he may tranship, but the law lays no obligation upon him to do either. If he judges it for the advantage of his owner, various modes of raising money are offered to him, and he may so far meddle with the cargo as to sell a part; but not as agent for the proprietor, or as engaging him in the repair of the ship, but as making a forced loan, as it is termed, for the benefit of his employer; and for which the proprietor of the cargo is to be ultimately indemnified, at the price at which the remaining articles sell at the port of their delivery. case was it designed that the proprietors of the cargo

In no

should suffer for the repairs of a ship to which they are strangers, and under the direction of a man for whom they are in no degree responsible. The sale of a part would be easily compensated to them by the value of the ship and freight; and according to some ordinances, the master was himself personally liable to them. (Em. v. 2, p. 445). Of a very different nature and extent is this power of hypothecating the whole cargo, by which the burden of repairing the damages of the ship may be, in the event, thrown upon the cargo; and by which all distinctions of general and particular average may be overturned, and the whole expense be thrown as a particular average upon a person no way interested in the vessel. Neither the Consolato nor any later codes mention such a power. If there are instances in which writers appear to attribute such a power to the master, they will be found to be instances relating to cases where the master is also the consignee of his owner, and the dominus mercium, as well as the master of the ship. There is a passage in Targa which points strongly to such a combination of interests, as necessary to support such an act of authority exercised by the master over the cargo:-"Quando il capitano ò essercitori imbarcano robbe e merci di proprio conto, puono prender danari a cambio maritimo supra corpo e merci giontamente, perchè hanno la dispositione dell' una et l'altra materia; ecchi le dà, hà hypotheca più ampla " (c. 32, n. 1. Erm. p. 477). When the interests were several, as the necessary interpretation of this passage seems to imply, no such power could exist to bind the property of another person. Bynkershoek also, in the passage cited, seems to refer to a situation where the ship and cargo belonged to the same person; at least it is far from appearing that he meant to assert that the master, qua master, was empowered to hypothecate the cargo of a general freighter for the repairs of his ship.

Having been speaking of the origin of bottomry, and the simple form in which it continued till the middle of the seventeenth century, as a power given to the master in distress to hypothecate the vessel:"Ita tamen ut duntaxat de navi dominus teneatur, non ultra," Bynkershoek goes on, "ad solos magistros, et solas, ut dixi, naves obligatas pertinebat hæc causa mutui sed deinceps protracta est ad exercitores sive dominos, et mox etiam ad dominos mercium." So far the powers are described severally according to the several interests. It is not said that by the latest extension the master was considered as competent to bind the goods, as dominus mercium. In a follow

D

ing passage, discussing the personal responsibility of the master, he decides against it: "Nisi magister sit inter ipsos exercitores, vel onus pro parte ad ipsum pertineat." In this instance there was clearly a combination of interests, which, it is not improbable, continued to be in the contemplation of the writer during the next page, from whence the passage cited on the other side is taken, if in fact the words " hæc omnia obligare potuit," are to include the onus mentioned in the preceding sentence. He had been just before referring to some case decided in the Council of Holland, in which the fact might be, that the master was part owner of the cargo; or perhaps, as is more probable, the cargo might not be amongst the things hypothecated; for he begins the whole paragraph, “Dixi et naves, et instrumenta navium pignori dari," adverting only to the ship; and he concludes immediately after the sentence relied on, "Hæc omnia instrumenta, salva creditoribus, non magistro vel exercitoribus;" as if his consideration were directed solely to the case of hypothecation of ship and furniture. The other authorities that have been cited will be found in the same manner irrelevant. Molloy relies entirely on the Article of Oleron, and far exceeds his authority in the dictum which he advances on the subject. In the same manner the citation from Salkeld is a mere dictum of the reporter, not suggested by any of the circumstances of the case, nor depending, as far as it appears, on anything that fell from the Court; the same case being reported by Lord Raymond without any such observation. The passage from Mr. Parke rests solely upon Salkeld. The list that has been extracted from the registry contains no instance of an adjudged case, and therefore cannot be conclusive.

Upon this view of the argument, it is not too much to say that nothing has been produced that can have the force of direct authority to support this demand. It is in its consequence of momentous importance to the interests of commerce, and may be pregnant with incalculable mischief, if a power so easy to be abused should fall into the hands of fraudulent or improvident persons.

Arnold and Robinson in reply.

As far as the policy and probable effect of the law are to be considered, it would not be difficult to show that the power in dispute could operate only beneficially for the interest of the proprictors of the cargo. The master's power, as an absolute power convertible to purposes of fraud, would in no degree be increased by it. The cargo, in all cases where no supercargo is on board, must be in his

possession, and subject, as a possible accident, to misapplication and abuse. The inducement which the allowance of the authority in question would afford, would lead him to come back with his accounts, and submit them to the eye of his employer and the strict investigation of a Court of Justice; a temptation as little ikely to suggest measures of fraud as any that can be conceived. But were the opportunity of abuse greater, would that impeach the soundness or necessary utility of a general principle? or can it be supposed that this danger is predominant over every other consideration of maritime jurisprudence; when as far as the not inconsiderable value of a ship extends, that is allowed to be subjected to this danger by every code that exists? The great object of the law of bottomry is to secure the arrival of the ship and cargo at the port of destination. To this end, a power to sell the ship in a foreign port could not have conduced, and was accordingly never entrusted to the master. His power over the ship is specifically limited to the power of hypothecation. His power over the cargo is described in general terms to be a power to sell a part, but not as excluding the power of hypothecation in the same manner as the power of selling the ship is excluded; for the same reason does not apply. The final success of the voyage never could be frustrated by such an alternative as to the cargo. In the ancient state of commerce, when intercourse with foreign nations was more limited, hypothecation would not be so good a security to the foreign merchant as the sale and delivery of a part, and therefore in the simple language of ancient codes, the most obvious remedy was alone described, not as excluding, but rather including, the alternative of hypothecation, as a milder remedy where it could be effectual. Where it can be applied, it is undoubtedly a milder remedy, inasmuch as it ensures, or tends to ensure, the arrival of the whole adventure at its proper port; and thereby provides, that if a sale of a part is ultimately necessary, it shall be conducted to the best advantage, in the market for which it was assorted, and in the hands of the proprietors or consignees. Such a modification is not only to be inferred from the spirit of the ancient codes, and the nature of the subject, but is incidentally expressed in some of them in terms that are too clear to be misunderstood. The regulations of Antwerp use the words, "ni vendre, ni engager;" and the laws of Sweden, making no use of the expression "oppignare," as to the amount to which the master's power to sell was allowed, but passing by that probable contingency without any observation, or

without providing any punishment for it, as for an abuse or extension of his power, expressly declare, as to a larger amount, "Si petulantimodo, . . . vendat vel oppignat;" he shall be responsible to the owner and freighter, "exercitoribus et conductoribus," etc.

The express prohibition of hypothecating as well as selling ship or goods beyond the fourth part of the value of the ship, connected with the omission of any mention of hypothecating within the limits prescribed for selling, justifies us in supposing that, as far as the master was allowed to sell, he was not prohibited from hypothecating. It appears also that he was equally free to act in this manner with respect to the goods, whether they belonged to the owner of the ship or not; for his responsibility being put severally, when he was responsible, "exercitoribus vel conductoribus;" when he was not responsible (that is, either for hypothecating or selling within the prescribed limits), it would be to the same several interests, to his owner or freighter, that no responsibility was due. It cannot therefore be maintained, that in all cases universally, where a power over the cargo was attributed to the master, it was in contemplation of an union of interest in his employer. Indeed, the whole of that hypothesis seems to be unfounded. It is built upon a passage in Targa; but that passage does not relate to bottomry, properly considered, as the resource for cases of distress in a foreign port. It applies to the contrat à la grosse, at the commencement of the voyage in the port of the proprietors, and is rather to be taken as a contract on respondentia. The passage is so cited by Emérigon, in his chapter Contrat à la grosse, having been passed over without notice in the preceding chapter, where the writer is treating expressly of the power of the master to sell part of his cargo in a foreign port. The same observation applies to the argument from Bynkershoek. He is evidently speaking in some parts of the chapter on bottomry, of bonds given in the port of departure, which, as to the cargo, must be bonds on respondentia; on this account he may have delivered himself with less perspicuity than is generally natural to him. But in the passage cited, the cargo is expressly included, as being under the power of the master; and the obvious sense of his terms imports it to have been his opinion, that the master, as master only, was, on particular emergencies, competent to bind the cargo. On any other supposition, if he had been the owner of the cargo, or the constituted agent of the ship and cargo, there would have been no reason for any order or limitation in the manner of doing it; he might have