This enactment was declared by the court to be directly applicable to the case; and the respondents having failed to exonerate themselves from the charge of negligence, the District Court (of the Northern District of California) awarding $2500 damages to the libellant, was affirmed. The interest and importance of this case are enhanced by the brief but forcible observations of Mr. Justice CURTIS, in delivering the opinion of the court, on what he denominates the "theory" of "three degrees of negligence, described by the terms, slight, ordinary and gross." This theory was transplanted into the common law from some of the commentators on the Roman law; but these commentators were divided in opinion respecting its utility; and by some of the ablest of them, as well as of the commentators on the civil code of France, it has been condemned and repudiated, "as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and difficulties." "Recently," moreover, "the judges of several courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them." In these expressions of disapprobation I understand the court cordially to concur. In the above mentioned case, reported in 14 Howard, the injury complained of was caused by viously asserted by the Supreme Court of the United States, as a principle of the common law, in the case of Saltonstall v. Stokes, 13 Peters's R., 181 (13 Curtis's Decis. S. C., 114). collision on the defendants' railroad. The plaintiff, CHAP. 4. who was a stockholder, and the president of another railroad company, was passing over the road of the defendants at the invitation of their president, and on this ground he was held, like the libellant in The New World, to have been lawfully present, and entitled to the immunities of an ordinary passenger. The liabilities of a common carrier, by water and by land, are essentially the same. VOL. 1. Bottomry bonds CHAPTER V. BOTTOMRY AND RESPONDENTIA BONDS. ANOTHER species of contract, which, as we have seen, it is the business of courts of admiralty to enforce, is that of maritime loans secured by express hypothecation. These loans have been in familiar use, as highly important auxiliaries to commercial enterprise, from a very early period. They were the subject of express regulation by the Roman law: they are recognized, and studiously provided for, in the maritime codes and ordinances of modern Europe: they have been copiously treated by the Continental jurists; and have been largely discussed in the British courts, and in those of the United States. But it is only within the last few years that some of the principles by which they are governed have been clearly defined, and some others for the first time adopted and explicitly declared, either in England or in this country. In the form of express hypothecation most frequently resorted to, the instrument by which the hypothecation is effected is denominated a bottomry bond. It is a contract in the nature of a mortgage pledging the ship (or bottom); or the ship and freight; or the ship, freight and cargo; as a security for the repayment of money loaned. Its conditions CHAP. 5. are, that if the voyage is performed in safety, the sum loaned, together with the stipulated interest, shall be paid, either upon the completion of the voyage, or at the expiration of some specified period; but that if the subject of the pledge is lost by a peril of the sea, the lender shall lose his money also. dentia. Sometimes money is loaned, on the like conditions, to the owner of the cargo or some part of it, upon the pledge of that alone; and the bond in that case is called a respondentia bond, the borrower being always personally responsible(a). Indeed, the bond Respondoes not, in England at least, uniformly, in express terms, hypothecate the goods; and in such cases it is held, in the English courts, that no lien is implied (6). The form said to be in common use in this country, contains an express pledge, not only of the particular merchandise or specie then laden on board the ship, but of all such as shall be laden on board on account of the borrower at any time during the voyage; thus embracing the return cargo, obtained by means of the outward cargo(c). As the risk incurred by the bottomry or respondentia lender is greater than in ordinary cases, the rate of interest or premium, pretium periculi, is proportionally higher according to the circumstances (a) 2 Blackstone's Commentaries, 457. (b) Burk v. Fearon, 4 East's R., 319. (c) Conrad v. The Atlantic Insurance Company, 1 Peters's R., 386 (7 Curtis's Decis. S. C., 637); Franklin Insurance Company v. Lord, 4 Mason's R., 248. Rate of interest not governed by usury laws of the case, and the agreement of the parties; and it has always been understood that these contracts are unaffected by municipal laws, regulating the rate of interest. It will readily be seen, therefore, that maritime loans bear a strong analogy to contracts of marine insurance. The risks assumed by the insurer, and by the bottomry lender, are generally the same: the money advanced in the one case, corresponds with the sum agreed to be paid in the event of the loss in the other: and the analogy holds good with respect to the premium of insurance, and the maritime interest. It will be seen, also, as was tersely said by Mr. Justice THOMPSON (α), that "the essential difference between a bottomry bond and a simple loan is, that in the latter the money is at the risk of the borrower, and must be paid at all events; in the former, it is at the risk of the lender during the voyage, and the right to demand payment depends on the safe arrival of the vessel." There is no settled form of contract in use for the purpose of maritime hypothecation, and sometimes the instrument used is in the form of a bill of sale. But whatever be the form-the occasion of borrowing, the sum, the premium, the ship, the voyage, the risks to be borne by the lender, and the subjection of the ship itself as security for the payment, all usually are, and ought always to be expressed(). The legitimate purpose and proper effect of a bot (a) Mr. Justice THOMPSON, in The Mary, 1 Paine's R., 671. |