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![handle is hein.slavery/ssactsengr0505 and id is 1 raw text is: THE SLAVE, DUNCAN
and it is said, that the Court may do this, although the registrar and merchants
might be bound by the rules observed in ordinary practice. Upon enquiry, I do
not find that many instances have occurred in which such an item has appeared.
In The Rhadananthe, 1 Dods. 201, in 1813, the insurance was disallowed, and the
parties acquiesced ; and I do not find that there has been any case in which such a
charge has been brought to the notice of the Court. The inference to be drawn
from this paucity of precedents, however, is by no means favourable to the claim,
because it shews that there is no solid ground for the exception, and that this species
of contract can go on very well without it. On the other hand, great inconvenience
must inevitably ensue both in this Court, and in other Courts which are guided by its
rules, if the established practice is disturbed.
It is said that M'Intosh & Co. have a just claim on the Court to make this addition,
that they may not suffer by an insufficient premium, and that no essential principle
of bottomry would be violated by such an allowance. On this point I am by no
means satisfied. It is to be recollected, [425] that this is a bottomry bond executed
by the master of the ship, who has no power to bind the ship or the owner by the law
of England, except within special limits-for repairs and supplies becoming necessary
from the exigencies of the voyage. This is an essential principle of this species of
bottomry, and the Court has hitherto acted with great strictness in not extending
the privilege of bottomry against the ship beyond these limits, confining it to sums
necessary for repairs, and for the furtherance of the voyage.
Another essential principle of all bottomry is, that maritime interest is allowed
only as a compensation for maritime risk, which usually attends advances of this
kind. The advance of the sum in question was not -necessary for the furtherance
of the voyage, nor was it made under that representation; and it is in no manner
subject to maritime risk. I do not see, therefore, with what propriety it can be
introduced into a bond that is to bear maritime interest. Since the introduction
of insurance, lenders on bottomry, if not restrained by special regulations, may
insure their own advances in a distinct contract on their own account ; but it would
be contrary to the essential character of bottomry to make it a part and condition
of the bond; and after hypothecating the ship in maritime interest for maritime
risk, to hypothecate it also, in the same bond with the same interest, to take off
that risk by other collateral engagements. This is contradictory in form, at least,
and I think in principle.
I am not prepared to enter into the consideration of all the consequences that
might attend such a change of practice as is now applied for ; because [426] nothing
has been said upon them, and because it is an intricate subject, and may more safely
be left to mercantile men. In the present case the premium is low, and the rate of
insurance also ; and if there has been any mistake, the Court might wish to relieve
against iC: but, in time of war, both the premium and the insurance would be high,
perhaps 30 or 40 per cent., or even more, and the consequences might be very
different. The settlement of such accounts would, at least, be complicated ; and
much ambiguity and uncertainty would be introduced by any change of practice
on this point in a contract, which ought to be kept as simple and uniform as possible.
If this article of expenditure is not properly a subject of bottomry, it cannot be
made so, as I have before observed, by the mere agreement of the master ; and I
repeat the observation, because I think I perceive traces of a different notion pre-
vailing on this point in India, both in this agreement, and also in the bond, in the
case of The Reliance now depending, in which the master actually stipulates in
the bond, that he has the power which he has exercised. This is an additional
reason why the Court should be very guarded in adhering to the rules and principles
which have hitherto been observed on this species of bond. If a bond should appear
with such an exception given by an owner himself in a foreign country, as might
happen, the case might be different, or the question perhaps would not be raised :
but, with reference to the present bond and the facts of this case, I think it my duty
to adhere to the limits which have hitherto been assigned to the master's power in
bonds of this description ; and I, therefore, confirm the report.
[427] THE SLAVE, DUNCAN. Dec. 6, 1832.-On appeal from the restitution of a
slave, the alleged property of A., to whom he had only been just transferred,
and shipped for removal from Nassau to Ragged Island, within the same
2.99
2 HAGG. 425.](ViewImageLocal?handle=hein.slavery/ssactsengr0505&div=1&collection=&method=preview&ext=.png&size=3)