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ing the summoning of special juries, whenever, in their opinion, the nature of the controversy requires it.
All papers and processes, of whatsoever nature, to be served upon the parties or upon witnesses, upon being deposited with the clerk, are by him copied and sent to the sheriff, and by him served; and there is no other cost taxed or taxable in the suit, than that which goes to the clerk and the sheriff. The compensation of the attorney or the counsel is, in all cases, payable by the client, without reference to items of taxation.
It would be less a matter of importance than of curiosity, to dwell upon the many peculiarities in the proceedings in the conduct of causes under the civil code and code of practice of Louisiana; and those only are alluded to, which are considered material to know, as having an important bearing upon the rights of parties.
Having thus disposed of that part of the subject which is connected with the courts and their jurisdiction, and the peculiar process through which that jurisdiction is exercised, the next subject to be considered is that of the provisions of the Louisiana code, as they define the rights and prescribe the obligations of persons. But as this article has already extended to the allowable limits, this subject will be considered in another number.
We will now inquire what the rights of a lender at respondentia would be, in case the master, on a voyage, had sold the cargo in the time the risk had to run, and not carried it to the port of destination. In such a case, the person of the borrower would be immediately liable to repay the loan with maritime interest; but in case of bankruptcy or insolvency of the borrower, the lender will lose his money loaned. It oftentimes becomes a question, in what way may the lender regain his money loaned? He will, in the first instance, have a right to look to the vessel, which becomes hypothecated for the amount of the loan and maritime interest. Should the money which arises from the sale of goods be invested in other property, the lender may resort to an action against those goods, in whose hand soever he may find them, not being a purchaser for a valuable consideration without notice. It matters not in the slightest degree, in whatever other form different from the original the change may have been made, whether it be that of a promissory note, or of goods, or of stocks, or of money; for the product of a substitute for the original thing still fol. lows the nature of the thing itself, so long as it can be ascertained to be such. When it becomes necessary to borrow money upon the vessel and cargo, by way of bottomry loans, and a decree and condemnation of the property hypothecated follows, a court of admiralty will take care to marshal the assets, and apply the proceeds of the vessel, as far as they will go, first to extinguish the demand; and then will call for the cargo no further than necessary to make up a full payment of the balance and costs. If this sale of the ship hypothecated will pay the loan, and maritime interest and costs, the hypothecation of the cargo becomes extinguished.”
* 3 Mason's Reps., p. 255.-The Ship Packet.
The commercial code of France declares that the master is responsible for all damages which may happen to any merchandise which he shall have put on the deck of his vessel, without the consent, in writing, of the shipper.” By the bottomry and respondentia contract, as well as by insurance, the master undertakes to carry and stow his cargo under the deck of his vessel, with the hatches securely fastened down, and not to break the bulk, unless the necessities of the voyage and the perils of the sea require it. Should the vessel be badly stowed, or the cargo perish by its own inherent quality, the lender will be discharged from his risks. The ancient ordinances of Antwerp provided that all masters of ships and seamen were obliged to look well after the ship and cargo, and to take due and vigilant care of the same ; and should either ship or cargo suffer any damage, or any additional risks, by the fault, negligence, ignorance, connivance, or means, of either the master or the crew, they were bound to make good all losses or damages. So, by these ordinances, no master was permitted to overload his vessel, or stow the cargo unskilfully, nor upon the deck of the vessel, nor in the boat of the ship, nor in any other manner than in the hold, and under the hatches, made fast and tight. When stowed to the contrary, should any loss or damage happen on the voyage, or the master was compelled to throw the goods overboard in a storm, yet such loss was to be borne by the master and owners of the ship.f B. Straccha, an Italian writer on maritime law at Ancona, in 1669, says that if dry goods have been placed under casks of oil, brandy, wine, or other liquids, or if the ship has been overloaded, or if there has been any pilfering, embezzlement, or alteration of the goods, after laden on board, the insurers are not liable for any of these losses. The same rule holds goods in regard to respondentia loans. Locceniuus, a Danish writer on maritime law, who published his work at Copenhagen, in 1651, declares that the nature of the contract of marine insurance is, that the underwriter is answerable only for the losses and damages which happen by unavoidable accidents and the perils of the sea, which are quite foreign to those which arise from neglect and faults of the master and mariners. The same writer further says, that it is the fault of the master and mariners, when goods have been badly stowed. The ordinances of Bilboa provided, that if goods upon which money had been lent on respondentia should suffer damage from their own bad quality or perishable nature, or by negligence and fault of the masters, proprietors, or merchant shippers, the lender should recover his entire capital lent, and the premium or maritime interest, unless it had been stipulated in writing that he should run the risks of damages or averages of the quality of the goods.i. By the maritime law of America and England, goods stowed upon deck are at the risk of the shipper, and not of the insurer or lender on respondentia. § Indeed, we may consider the law as now settled, that goods stowed on deck, or in the boat, or badly stowed in the hold, without proper care or proper dunnage to support them, are at the risk of the shipper, and not of the underwriter or lender upon respondentia.| This latter case was one where certain kettles had been shipped on board of the brig Thaddeus, at New York, destined for New Orleans, and stowed on deck, by the directions of the shipper. These goods were necessarily thrown overboard, for the safety of the brig, on her voyage. The court held that this loss did not authorize the shipper to maintain an action against the vessel or owners for contribution. The lender on respondentia, under like circumstances, would not have been responsible for this loss, but it would have fallen on the borrower. When the master carries goods on deck without the consent of the shipper, he does it at the peril of the owners of the vessel; nor can he protect himself from responsibility, by showing that they were damaged or lost by the dangers of the sea.” This rule of law not only is held in regard to goods and merchandise stowed on deck, but it also extends to the cables and apparel of the ship, which ought to have been stowed in the ship's hold. These, when on deck, encumber the mariners. The washings of the sea expose them to damage; and even when they are fast lashed, and afterwards cut away and thrown overboard, they cannot be brought into an average, though the perils of the sea have compelled them to be thrown overboard.t The same rule holds in regard to goods which are spoiled or damaged by the leakage of the decks of the ship, though they are stowed in the hold. Water passing through the deck or seams of a vessel, and injuring goods, is not regarded as a peril of the sea. When the hatches are not fastened down securely, and the loss ensues from this cause, it will be at the expense of the shipper; so, when goods are injured by delay or demurrage unnecessary on the voyage, or from an alteration of the voyage, the loss is at the charge of the shipper. The commercial law of all nations holds that when a damage happens to goods or cargo on a voyage, whether badly or well stowed, which might have been prevented or avoided by human foresight and ordinary prudence, the master and owners of the vessel shall sustain the loss, and not the underwriter or the lender upon bottomry or respondentia. A delay in sailing the vessel—a deviation of the vessel on the voyage, will discharge the lender on bottomry and respondentia from further risk. It is declared by the authorities that a deviation will work a discharge, whether it be for a long or short time. Any unnecessary delay during the voyage, when at sea, is tantamount to a deviation, and followed by the consequences of rendering a policy void. The shortness of the delay, or the distance of a deviation, makes no difference as to its effect on the contract ; whether for one hour or one month, or for one mile or one hundred miles, if it be voluntary and without necessity, it puts an end to the contract, and the underwriters are discharged;f The ancient marine ordinances of Copenhagen declared, that goods thrown overboard without cause or necessity, or on account of the weakness of the vessel, or by being overloaded, or spoiled by long demurrage, or damaged by inherent defects or natural decay, or by the unseaworthiness of the vessel, could not become a charge on the cargo saved for contributions, and when goods receive a damage on the voyage which were under a respondentia hypothecation, the borrower, or the persons by whose fault the damage happened, were to bear the loss, unless the loss happened by the perils of the sea. §
* Book 2, Art. 229. t Ordinances of Antwerp, Sec. 1,553. i Chap. 22, Sec. 8. § Phillips on Insurance, p. 332. || 4 Martin's Reps., (Louisiana,) p. 582.
* Admiralty Rep., p. 325.—The Paragon. + Reneckie on Average, p. 113. # 9 Massachusetts Reps., p. 436. § See Oid, of Copenhagen, 1726.
We will now consider the several claims of different persons who have loaned money upon bottomry or respondentia. As a general rule, the creditor who is prior in time is entitled to a priority of payment. But when the loan is for the necessities of the voyage, as when the expedition of a ship is at stake for want of finding, the last money on respondentia—he who last lent, has a preference in payment over others, if his loan was essential to the prosecution of the voyage, on the principle that the last loan furnished the means of preserving the things hypothecated, and as without it the former lenders might entirely have lost their securities. But the burden of the proof is here thrown upon the party who seeks to establish a preference in payment; as, unless it be established that the last loan was essential for the preservation of the vessel and cargo, the first security will be preferred, like the first mortgagee of land.* When a vessel, being in distress on its voyage, is driven into port to make repairs, or to procure supplies, the lender of the last money ought to have the preference before prior hypothecations, because the money was given for their common safety and benefit. By the ancient ordinances of Bilboa, it was provided that when a person who had lent money on the voyage at bottomry, and the voyage or term stipulated had ended, and through omission or other causes did not seek to recover it, but suffered the loan to remain at the same bottomry, and afterwards another person should lend money on the same subject matter of the hypothecation for another voyage, that the last person who lent his money should be preferred to him who had given it for the antecedent voyage.f The next subject that we will consider, is that of loans upon gaming or wagering agreements. By the laws of England, gaming and wagering agreements are not void in law, unless they are contrary to public policy, to the public peace and justice, or of an immoral nature, or calculated to hurt the feelings or affect the interest of third persons who are innocent. The courts, however, have frequently reprehended such contracts, and expressed their regret that they have ever been sanctioned.j: But the English parliament, in the fourteenth year of the reign of George III., chap. 48, passed an act that no insurance should be made on the life of any person, or any other event wherein the person for whose use or benefit, or on whose account such policy shall be made, shall have any interest by way of gaming or wagering. This act covers all cases of marine policies made upon a gaming or wagering consideration. The Revised Statutes of the State of New York have provided that all wagers, debts or stakes, made to depend upon any race, or upon any gaming, by lot or by chance, casualty, or unknown or contingent events whatever, shall be unlawful, and all contracts for or on account of any money, or property, or thing, in action so wagered, bet or stakes shall be void.} This statute, in terms, is so broad, that it covers all the various forms of marine insurance, whether upon bottomry, respondentia, or simple insurance, provided it is tainted with gaming and wagering. Nevertheless, contracts made in good faith, for the security or indemnity of the party insured, and contracts on bottomry or respondentia, do not fall within the prohibition of the statute.
* 1 Dodson's Reports, p. 201. t See Ordinances of Bilboa, Chap. 24, Sec. 7.. t Chitty on Contracts, p. 496. § New York Revised Statutes, p. 666.
The bona fides of the transaction is a question which will be determined by the circumstances of each case, as it arises in the course of commercial business. When a loan is effected on respondentia on goods which are not to be exposed to the perils of the sea, this is a gaming contract or a simple mortgage, and if a loan has been effected on goods above their value at the place from which they were carried, and the goods are afterwards lost on the voyage by the perils of the sea, the lender will be entitled to recover the money loaned, and maritime interest. The ordinances of Bilboa provided, that in case of the loss, the ship. per who had taken money at bottomry upon goods should justify that he had them really loaded on shipboard for his account to the full amount of the money taken up; and these ordinances also forbid money to be taken upon goods loaded which exceeded the value at the port where the risk should begin to be run, upon the penalty that the borrower should pay the sum loaned, and its premiums, though the loss of the goods hypothecated should happen.” The ancient marine ordinances of Koningsburgh prohibited all insurances on wagers or gaming agreements, expected gains, profit or freight moneys, seamen's wages, as of no effect. So did the ordinances of Amsterdam, Antwerp, Copenhagen, Rotterdam and France, prohibit insurances upon gaming and wagering agreements, and upon imaginary, uncertain or expected profits. And the ordinance of Koningsburgh declares that, in case of a person, from an eager desire of gain, should run the risk of insuring ships or goods to a greater sum than their EquitABLE value, he should be severely punished, according to the circumstances; and the insurance should be void, and the premium void to the insurer. The ancient Spanish ordinances of Seville and Cadiz required that the goods hypothecated upon an insurance, and upon a respondentia loan, should be numbered and marked as in margin of the policy, and the goods insured or hypothecated were to be registered in the King's register before the vessel sailed, and so were the forms of the policies. The form of a respondentia policy at Bilboa provided the lender took upon himself the risks by sea of certain goods, which were to be put on board a certain vessel, and that there were so many pieces, boxes, or whatever else there might be, of goods, with certain marks, put into the margin of the policy; and the form of the contract was, that the borrower warranted the goods to be worth more than the sum of money loaned upon them. We will quote another authority in regard to the illegality of wager. ing or gaming contracts in marine policies. This is from a decision in the Supreme Court of the State of Massachusetts. Chief Justice Parker, in delivering the opinion of the court, observed that it would seem a dis. graceful occupation of the courts of any country to sit in judgment between two gamblers, in order to decide which was the best calculator of chances. There could be, said the learned judge, but one step of degradation below this, which is that the judges should be the stake-holders of the parties. Franciscus Roccus, a Neapolitan writer on insurance and marine law, in 1708, declares that when there is no risk, there can be no contract of insurance ; for the risk is material to the contract, in whatever form the contract may be found. Indeed, wagering and gaming policies are condemned by all European nations at the present day as illegal and void.
* See Ord. Bilboa, Chap. 24, Sec. 4 and 11, t See Ord. Bilboa, Chap. 25, Sec. 16.