The Northern Daily Times.
Liverpool, Merseyside, England, 1857-02-23 00:00:00

COURT OF ADMIRALTY.

JUDGMENT.—This case came before the Court under the
following circumstances : —lt was originally a cause of
Bottomry, brought by Messrs. Fruhling and Goshen, and it
is alleged that this ship, being of the burthen of 1,200 tons,
and commanded by a person of the name of Murdoch, put
into St; Thomas's in March 1855—that M"Faggart, who
succeeded Murdoch, being without funds, did, in June, 1855,
borrow from Nessrs. Nunes and Co., the sum of £2,418 on
Bottomry, at the rate of 14 and a half per cent., maritime
risk ; and accordingly, on June 21, 185.4 a bond was
executed. On the arrival of the vessel in 'This country a
suit was brought for the recovery of the amount due by this
bond. The validity of the bond was opposed by the owners,
who alleged that the vessel having sustained damage by
tempestuous weather on March 7,1855, put into St. Thomas's
for repair: that John Murdoch, then master, appointed Mr.
Emerson, a merchant at St. Thomas,s, who filled the office
of Lloyd's Agent, and also British Consul, his agent; and
that Murdoch was required and did sign an agreement of
which I shall speak more presently. That the ewnsrs being
informed of the condition of the vessel sent an agent
to St. Thomas with £4,000 to liquidate all demands.
That a further sum of £3,000 was Pent and paid over
to Mr. Emerson, whereby all lawful demands were
paid, and that the bond was given for no legal considerations.
When this case came before the Court, it was manifest that
its judgment might be affected by the state of the accounts, and
accordingly the Court, without pronouncing any opinion as to
the validity of the bond, directed a reference to the Registrar
and Merchants to take the accounts. The Report of the
Registrar and Merchants has now been brought in, and has
been objected to on behalf of the holders of the bottomry
bond. It, therefore, becomes my duty to consider the report,
and the ohjections thereto. The schedule annexed to the
report shows that nearly the whole of the items were allowed.
I should observe that the whole of the items do not appear to
have undergone minute examination, for it did not seem to
the Registrar and Merchants either that it was necessary so to
do, or that they had materials for forming a correct judgment.
The commissions were subjected to a great reduction, 14,706
dollars being demanded by Mr. Emerson for his commissions and
1,979 dols, were allowed, and consequently the Registrar and
Merchants were of opinion that there was an excess of charge on
this head amounting to 12,727 dollars—and they further
found upon taking the whole account, that so far from there
being anything due on account of the ship that 1,095 dollars
were owing to the owners on balance of the account. The
question, therefore, that I shall have to decide is whether the
registrar and merchants have acted rightly in the deductions
they have made. First. As to the principles upon which the
court must decide this question. I apprehend it to be
established by every day's practice that those who advance money
on bottomry cannot recover upon the bond any amount which was
not justly due and owing by the owners of the ship on which
the security is given ; indeed a reference to the registrar and
merchants to take the accounts in all ordinary cases would be
a matter of absurdity if it were otherwise. Though it is true
that merchants advancing money upon bottomry are not bound
to see to the application of the money, yet the money must be
wanting for the necessities of the ship. That this is the law is
clearly shown by every day's practice, and I shall not stop to
prove why such ought to be the law, or what would be the
consequences if money could be advanced on bottomry without
adequate necessity. The sole question, therefore, in this
case is whether the deductions made by the registrar and
merchants are co:reet or not. It is alleged, in objection to
the report that they have disregarded the customs and usages
of the island of St. Thomas in respect of mercantile commis-
sions, and that mercantile commissions allowed in this country
are no criterion as to such commissions. Certainly if the
registrar and merchants had acted on any such principle as that
alleged, they would have been in error, because it is well
known that the rate of commission varies according to the
circumstances of particular places, and cannot be subjected to
one inflexible rule, but it does not therefore follow that because
the registrar and merchants have reduced these commissions
that they have acted upon any such supposed rule. I am
1 further of opinion that the registrar and merchants are not
1 bound to allow commissions according to what may be the

alleged custom in any particular place, but that they are
justified in forming their own opinion, giving due consideration
to all the circumstances of the caso and to local usage. If my
memory does not deceive me the Privy Council have acted on
that principle, and have reduced commissions despite affidavits
to the effect that the commissions are usual and customary
Another ground, however, has been sot up in argument,
namely that Mr. Emerson made a special agreement
with the master when he undertook the agency, that he should
be entitled to all usual and accustomed fees of merchants in
the island. I am of opinion that ❑either Mr. Emerson or the
master were justified in entering into any such agreement. Mr
Emerson was not merely a merchant at St. Thomas's, but he
was British consul and Lloyd's agent, and he had no right
whatever to] make any agreement inconsistent with the duties
and obligations which attached upon these two characters, and
for very obvious reasons, not only was he bound by his engage-
ments, but it is to be supposed that masters of British ships
coming into that island engaged his services in consequence o f
of the public situations he filled, and on the faith that he would
fulfil the obligations incidental thereto. Mr. Emerson was
dismissed by the committee at Lloyds for the breach of such
engagements—and, so far as he is concerned, he can have no
pretence for claiming a benefit arising from a breach thereof.
Then, as to the master, bow was ho circumstanced? He
arrived on the 7th of March, in distress, and on the Sth he
was compelled or induced to sign this document annexed to the
act: he had not one atom of authority to bind his owners for
any expense for which they were not legally liable,
and therefore the question resolves itself back into this—
whether these charges are just and lawful charges ?
The commissions in this case for disbursements, care,
and superintendence from March till June, amount
according to the claim to nearly £3,000. The Registrar and
Merchants have allowed £4OO. I am most clearly of opinion
that the charge made was most exhorbitant and unjustifiable,
and that the sum of £4OO allowed by the Registrar and Mer-
chants was fully adequate to the services performed. It has
been urged that the ship might have been detained in the
island till all these charges were paid, and that, therefore, I
I ought to allow them. In answer to this argument the case
of the Augusta was cited, and in that case Lord Stowell
expressed his opinion that a bottomry bond could not be
upheld on this ground alone, even in a case where the expenses
might be legitimate. Two things, according to this rasa are
necessary to give validity to a bottomry bond, that the money
should be advanced ou bottomry, and that it should be wanted
to defray the neccessities of the ship. Such, I think, are
the rules to be deduced from the cases of the Augusta and
Mary, and other decisions of Lord S:owell. It has been
further said that to confirm this report would bear very
hard on Messrs. Nunes and Co., who actually ad-
vanced the money—than their characters as merchants

might be affected by such decision. It may be trig)
that they did advance the money. lam willing to assume the
fact to be so, though the registrar and merchants, who had ful!
opportunity it; investigate the transaction, entertained li
suspicion Ito the coni:ary. But the true question is, net
whether they advanced the m; nay, but whether it was wanted
for the necessities of the ship. ThiD is the matter that theYi
ought to have investigated, and this they haci amnia meaunps:e
doing. They would then have found that £7,000 hau "'- •
paid : they would have seen that nearly £3,000 was charge*
for commission : that no money was wanting, save to deft*,
such commissions: that otherwise Mr. Emerson was a dohtof
to the ship. If, with these facts before them, they would 001,
open their eyes and held their hands, it was their own want'
due caution in the transaction. I have no hesitation in 00'
firming the report, and in pronouncing against the bond, the
money not being required to supply the necessities of the
ship. It is a case in which I pronounce against the bond
with costs.

St. Thomas, 24th January, 1851.
Messrs. Nunes and Gommez present. iiis
Gentlemen,—Having read in the Shipping and Merely;
Gazette, of the 24th of December, the decison by Dr. Lushinr
ton, judge of the admiralty court, in the suit brought by rd.
agents against the parties concerned in the ship Roderick DI
for the reimbursement of a bottomry bond on said ship 3°'
cargo, by which the suit was not only adjudged against y.,
,•11P
but the terms of the report of the registrar and merchantst
which your respectability and probity as merchants, in petit
tar, was called in question, not having received any satisfactou
contradiction, we seize the earliest opportunity of conveyinfLt°
you our regret at this decision, being perfectly satisfied that
the full amount of the bottomry bond was bona fide disbursva
by you.
It is likewise to our knowledge that all the formalities awl
publicity customary in similar cases were duly observed at
o tl_ao
time, and that the bottomry bond in question was elt
awarded to you after having been in competition with Bowel
our most respectable firms, your offer having been the 10
advantageous.
We can, in consequence, testify with all truth that till
intended slur on your repu'ation is utterly unfounded 101
unjustified, and calls forth in the strongest manner our indies;
tion and reprehension.—We are, gentlemen, your obedtell
servants, RONCATOLO, ForrANA Co.
A. Wolff. Jos. Levi and Sons.
pr. pro. Rothschild, Son, and J. B. Anduze and File.
Co., Pannet. Gruner and Co.
Pretto y Aldecoa. C. H, Grasmeyer and Co%
P. H. Simmonds and Co. Z. I. Levy and Co.
scii,;2; Willink, and Co. pr. pro. V. Piccionni, 13'•
Da Costa and G. Benlisa.
Chas. Clemens & Co. Simnaonds and Co.
Riera e Hijos. J. H. Morel'. 1111 Co.
Ellis Morrison and Co. Costa Hermanos.
Meister and Co. D. M. Monsanto and Co.
Hjardemaal and Co. J. F. Peniston and Co.
0. I. Bergeest and Co. J. Cappe and Co.
Ridgway, Ruhl, and Co. A. Saubot and Co.
Briscoe, McDougal and Co. Von Lindeman Brothers.
osorio, Wiight, and Co. G. Feron and Co.

To the numerous documents forwarded by Messrs. Nub
and Gommez in justification of the bottomry bond on
English ship Rodezick Dhu, may be added the following:ha,""
1. The printed advertisement of the master, Wil'—
M•Taggart, dated 19th June, 1855.
2. A copy of the sealed tender of Messrs. Meister and 017
extracted from the protocol in her Britannic Majesty's cOOl/ij
ate, delivered and certified "correct" by the present Coni"

R.B. Lamb, Esq.
3. A declaration of.the firm of Meister and Co., rev:4)1111
the sealed tender, which was opened in presence of Mr. G'
Heise, one of the partners of said firm.
i„dl
4. A copy of the general account of expenses contracted
the Roderick Dhu, signed by the master, William M‘Tagr;
who added the word " correct," together with the bottot;
bond, signed by the said William M*Taggart, and 11 to
Britannic Majesty's consul. All of which documents pro
sufficiently the legality and bona fide of the whole ton"-
~,
tion.