The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-09-28
YN CITY
T'NE CGUlsTS.
vsl1Ep STATES nElslcr COuaT-a lpsslW

pGH{el Siet3tnldA rs. NE Steamship COC0sSidn
GcThis is a proceeding in rem against the sieanl-
sbip Circasslan TO enforce payment OF q boilomry
loan for the OF o $50 francs given by the master
to the lbellanis in the port OF Antwerp. The mate
rial facts are as follows;-The Circasslan was an
ocean steamer owne0 by one william Salem, o resi-
dent OF New York, and was by him despatched 10
Antwerp as the first vessel OF a line OF steamers
whc ii proposed TO establish between the ports
of Antwerp and New York. The Intention was 10
have such line conducted by q corporation, and
such corporation, called the Continental Mail
steamship Company, had been organized and
its officers designated, but its capital was not
yet paid in, and Ii had neither the title nor the
possession OF the Circasslan Or any other steamer.
The Caucasian accordingly went ont under the
charge OF q master appointed by Salem, her owner
Hartman 1f0ost was also on board III Tie capacity OF
secretary q the Continental Nal Steamship Conn.,
pany and authorized by the owner TO make the
necessary arrangements on the part OF The ship for
opening tie line IN Antwerp. Upon the arrival OF
me steamer III Antwerp, tne Ibellanls were duly
appointed agents al the proposed line, aud lie vessel
pacee iii their hands az agents and consgnees.
They collected the Inward freight and made arrange
mails advertised the vessel to sail with Tie mails
and passengers on day certain, ana procured Tor
tie yesse. furniture. bedding provisions, &c. neces
intended route, ana passengers were engaged who
paid their passage money in advance. Freight
also was emppea, OF part Of which freight
was paid in advance. After the vessel had
fairly entered upon the adventure ana pas
sengers hal been engaged, the vessel WAS
seized under an attachment issued TO collect q per-
sonal debt Of Salem, the owner, Salem being then
lns0ivent and his paper under protest in Antwerp.
EilnTls were at once made in court 10 procure Tie
discharge OF the Attachment, but without success.
Efforts TO procure money sufficient TO discharge the
debt for which the attachment was issued were also
made, and the master and Fr0ost went TO ondon
Tor that purpose but failed. An additional enbar-
OF the cholera had interlered with the engaging OF
passengers 80 that as te day OF sailing approached
iE appeared that the total Qmolnt Of freight and pas
sage money Corrected vas 10 pc insufficient 20 pay
the advances actually made by the agents towards
htng out tAe ye55ei 10Y me yoyage Nhan The sail
ea 70 me ss 81 gr94gg c e. once the
postponed until lie termination or the LEGAL proceed
ngs by judicial sale Of the owners interest in the
vessel-which, with vessel situated Ike this, was
equivalent 10 a breaking up OF the voyage
an abandonment Of the line ana tcrmi.
ment for the steamer on the proposed route.
The result Of such q breaking Up Of the voyage or
even of any Intended delay IN the departure OF tie
steamer would have been to cucumber the vessel
with maritime liens TO the passengers and Fighters
for damages and freight prepaid which would, IN all
for which the vessel was attached. Ia this emer-
gency II was agreed between the master and Stein.
man 4 Co.. the llhelants that they should procure
the release OF the vessel from the attachment by
guaranteeing the payment OF the demand, and
should be secured for The payment OF the amount of
their advance by bottomry bond upon the vessel.
The release OF the vessel was accordingly effected
% thus proposed. The master executed 10 Stenman
x Co. the bott0mry bond in guit, and the steamer
sailed on her appointed day with the cargo and pas
scnger3 which mad been engaged. The voyage was
performed in safety, and upon the arrival of tho
vessel she was taken possession or by the claimant
who held large mortgage upon her, and who when
sac was proceeded against In this action appeared
claimant and disputes the validity OF the bond.
IN considering The question which these facts pre-
sent, IL may be noticed az The outset that although
the circumstances under when this bond was taken
afforded opportunity Tor cOlius1On between the cred
itor VINO attached the steamer and the agent, who
subsequently, TOOK the bond, none Is suggested here.
Had any circumstances appeared in any way point
ing TO collision, it would have been incumbent
upon the bOndhOlders 70 present full and satisfac-
tory explanation OF them before the Court could be
asked TO consider their demand; nor Is there any,
thing oppressive in the rate OF interest which was
inserted in the bond; but IL il shown that the ten
per cent which IL provided for Is the usual charge
upon commercial advances on merchandise intended
10 cover simple interest, with the difference OF ex
change, commissions and insurance; so that the
demand represented by The bond is simply sum Of
money advanced by the libellants with the ordi
nary expenses OF such an advance. The case thus
presents no features Of hardship as against the
claimant, but on the contrary shows strong equity
In favor of the libellants. There appears therefore,
no reason why tue sond IN question should not
receive that favorable consideration which Courts OF
Admiralty are ALWAYS inclined to give TO this class
OF security. IL must also be held subject TO those
rules which the courts have declared TO be appca
bic to such instruments. Turning, then, TO the
BONA II Is found TO be composed Of two items dr.
ferng from each other IN their nature. ono Is that
OF 1870 lraDcs consisting OF tic general balance
OF The Deienfsi account or advances as apenrs OF
the steamer. AS to this balance It has been shown
IN evidence that the lbelants made no suggestion
OF security for II until after the advances had been
made and the vessel was ready to depart, when. on
presenting the bond TO the master for signature
They stated that they had not intended TO ask secu.
ry for account but might as well be inserted since
BOND was TO be gwen THIS evidence brings the
portion OF the bona now under consideration clearly
within The rule, which declares that advances can
not be secured by boitomry, unless made under an
| agreement. or nc least reasonable expectation
| founded upon surrounding circumstances That such
| security would be given. The rule must. therefore,
be applied ana accordingly 1t must be held that as
| 10 this item the bond is Invalid. The remaining
balance OF the principal OF the bond represents the
| amount claimed to have been advanced by the libel
J lans TO procure the discharge or the attachment
which had been levied upon the vessel for the per-
| sOnal debt Oh the owner; as TO which bOttomry
security was agreed on by the master. TO this item
several objections nave been tasen, single one OF
Whlch VIII be noticed here It's said that the item
assuming tlat 1t represents an actual advance by
,he nDeiiantJ cannot be allowed, for the reason
tnat the maritime law does not Authorize the mas
yer Oh u snp IN any case 10 raise money BY
bottonry for the purpose OF releasing his snip
from an attachment levied TO collect personal
debt Tor the owner, for which the snip IL IN no
way liable. To the important question thus raised
have given great consideration, ana by very careful
arguments On the part OF tho advocates, and
reference TO all the cases calculated TO throw light
upon 1t. There are undoubtedly, difficulties and
dangers in permitting the exercise of such power
by the master OF o ship. but there are also strong
reasons against the absolute denial OF tho power
arising ont OF The nature, employment and possible
greatly doubt whether the rule contended for by the
claimants can be laid down rs fixed rule applica-
of necessity and distress. They are permitted In
order to allow the shp to save herself from disaster
and TO continue the employment for which sho Is
constructed; and when In any that object has
been attained IN proper manner, by means
OF bottomry bond as last resort It IL doubt
fui whether u Will do 10 mold that the instrument
is IN. ,uthorizcd; as Sir william Scott mas we'll said,
"Ncce ssIty creates the lawit suspends rules and
Yhatet or 10 reasonable and just In such cases Is
likewise legal" llhe Galitudean, Rob-, al $780,
IL would seem neither reasonable nor Just to say
that stea mor sent out TO Europe, TO be tho pioneer
vcsse lin lew Inc, when attached for q debt Of tho
owner and 6,e owners interest liable to be sold by
due process OF Jaw, must therefore throw herself out
OF permanent employment aud abandon her v0y-
age, thereby rehs crES herself liable IN rem 10