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![handle is hein.slavery/ssactsengr0457 and id is 1 raw text is: THE CHARLOTTE WYLIE
questions of bottomry; and would involve the Court in the greatest difficulties,
because in every case where a bond of bottomry was given abroad, I should have to
examine, in the first instance, into the form of the contract, and determine, according
to such form, by what law the transactions ought to be regulated. Bonds in the
English form, it'is well-known, are sent out from England to all parts of the world ;
and these bonds are copied from the form appended to Lord Tenterden's treatise on
shipping, or from some other work of the same description. Was it ever known to
be contended, that such bonds were to be construed by the law of England, according
to whose form they were drawn, and not by the law of the country in which they
were to be enforced ? It is unnecessary for me to pursue the enquiry, how far the
law of France, as stated by the owners of the cargo, is correctly stated in the present
instance. However clearly that law might be demonstrated, it could not be applied
to the circumstances of this case. I am perfectly satisfied, looking to the whole of
the proceedings, that as regards these several bottomry transactions, the contracts
were entered into, not with a view to the law of Rio, which is the lex loci contractus,
not with a view to the law of France, which governs the form of the bond, but with
a view to the law of [494] England, where the contracts were to be carried into effect.
Before I leave this case, I must add one further observation upon the practical
effect of the principle which the owners of the silver have sought to introduce, and
which they have stated is a principle recognised and adopted in the law of France.
If such a principle were generally admitted into the maritime law of Europe, it would,
I conceive, be attended with consequences very little for the advantage of the
shipping interest of this or any other country in the'world. If such were to be the
law, however urgent the necessity, however pressing the demand, merchants when
applied to. for advances would say, We will not advance money at all, because the
property upon which it is lent may be taken for claims we khow nothing about; or
if they did run the risk, they would require a much larger premium than is demanded
under the existing state of the law. It has been said that by this decision the present
claimants will be left without a remedy ; if this be so, certainly the law would appear
to leave a case of great apparent equity without redress. I cannot, however, for a
moment conceive, that because I cannot interfere, such will be the case with regard
to other tribunals. It may indeed possibly happen, that in this case, as sometimes
happens in other cases, the right of action may be useless ; that the owners of the
vessel may be abroad, and not within the jurisdiction of the Courts of Common Law,
or that such owners are bankrupts or insolvent. Such may by possibility be the case
in the present instance, but that is not a circumstance which would give me a juri
diction to interfere. For all these reasons, I am clearly of opinion, that it is impossible
to lend the [495] authority of the Court to satisfy the demand of the owner of the
silver out of the funds which are in the hands of the Court. I must, therefore,
reject this petition, and with costs.
THE CHARLOTTE WYLIE -(Rands). November 11, 1846.-The commander and
crew of a vessel of war, upon the African station, held to be entitled to a salvage
remuneration for putting a sailing-master and two seamen on board a homeward-
bound merchant vessel to assist in navigating the vessel, the master and one of
the mariners of the merchant vessel being invalided with fever, and incapable of
discharging the duties on board. Deductions claimed by the owners for the value
of the ship and cargo, on account of freight, primage and insurance, disallowed.
[S. C. 5 Notes of Cas. 4.]
This was a cause of salvage, promoted by the officers and crew of H.M.S. Cygnet,
for services rendered to this vessel under the following circumstances :-
The vessel, it appeared, was proceeding on her homeward voyage to this country
from the coast of Africa, where the master and one of the seamen were seized with
fever, and a signal of distress was hoisted. Upon going alongside, the commander
of the Cygnet immediately took out the master and the sick seaman, and put
his gunner and three of the crew of the Cygnet on board ; and by their assistance
the Charlotte Wylie was navigated to Prince's Island, the Cygnet occasionally
towing. At Prince's Island Mr. Collier, the sailing-master of the Cygnet, accom-
panied by two of the seamen, went on board the Charlotte Wylie; and
Mr. Collier took the command of the vessel, and brought her in safety to England.
The defence on the part of the owners was, that the mate was quite competent
2 W. ROB. 494.](ViewImageLocal?handle=hein.slavery/ssactsengr0457&div=1&collection=&method=preview&ext=.png&size=3)