Banca di Genova v. The Sophie Wilhelmine

WALLACE, Circuit Judge, (after stating the facts.) If the contract was a bottomry on the freight of the vessel to be earned on her voyage from Gabo de Gate to New York, the libelant was not entitled to recover, because no freight was earned, and consequently there was a total loss of the subject of the maritime risk. It is not disputed that it was a bottomry loan. That it was so is clear, because the contract provides that “in case of total loss the amount received as loan shall not be paid back.” The libelant insists that the subject of bottomry was the ship, as well as the freight, and the argument is that the words “total loss,” mentioned in the hypothe-cation and in the rules which constitute a part of the contract, mean a total loss of the vessel and freight. Unless it was contemplated that the freight, and the freight only, was to be the subject of bottomry, all the recitals in the application and contract of hypothecation in respect to a loan upon freight [893] are superfluous and meaningless. Apparently, the only object oí these recitals is to disiinguish the transaction from a bottomry of the ship, or of the ship and freight, and make it a bottomry of the freight alone. There is no conceivable reason why the application for the loan should have been confined to one upon freight, or why the transaction should have been denominated in the hypoth-ecation a “loan on freight,” and made subject to the “rules for loans on freight,” if a bottomry upon the vessel had been in the minds of the parties. Nothing can be plainer than that they contemplated a loan in which the maritime risk was the contingency of earning freight, and a security payable only in the event of the safety of the interest pledged. A master has the same authority to hypothecate the ship that he has to hypothecate the freight. Whenever he may bottomry the one, he may the other, and the same circumstances must exist iii either case to justify the security. If it had been the intention of the parties to bot-tomry the ship as well as the freight, there is no reason why that, should not have been done, and the vessel assigned, as well as the freight, and it cannot he doubted that the intention would have been plainly expressed. It ought not to he inferred from the ambiguous terms embodied in documents prepared by the libel-ant. The stipulation in the contract hypothecating “ship and freight for repayment of said loan” is not at all inconsistent with the intention to found the maritime risk upon the safety of the freight. That stipulation merely adds the security of the vessel for the performance of the bottomry contract. A bottomry bond gives no claim against the shipowner. If it hind him personally, it is not a contract of bottomry, and the lender has no insurable interest under it; and, in the absence of the express sanction of the owner, such a bond given by a master is not enforceable. But its validity is not affected by the circumstance that additional security is given for the performance of the bottomry contract. The condition making the loan payable “eight days after the arrival at the port * * * which shall end the voyage of my vessel” is usual, whether the bottomry is on ship, freight, or cargo, Its purpose is to specify the time at which the obligation becomes payable, and when the marine interest will begin to run. Our conclusion is that the total loss, in case of which the loan shall not be repaid, is the total loss mentioned in Rule 13, viz. “If there he no payment of freight, either total or partial, the sums received as loan shall not be paid back.” The decree is affirmed, with costs.