1865. LLOYD V. GUIBERT. it determined nothing as to the relative rights of the owners of the ship and cargo inter se, and any expressions there used by Lord Stowell, which might at first sight appear to have such a meaning, will be found, on examination, to be illustrative only, and not even professing to decide on any such relative rights." In Benson v. Chapman (a) it was also laid down that the master in executing a bottomry bond acts as agent of the shipowner. The validity of a bottomry bond depends on the law maritime. In The Hamburg (b) Dr. Lushington, in the Admiralty Court, in deciding on the validity of a bottomry bond given in a foreign port, was guided by the general maritime law, and not by the lex loci contractûs. It makes no difference that this ship is a French ship, and the defendants subjects of France, by the law of which country the owner of the ship may by abandonment of the ship and freight, as he has done here, free himself from all contracts made by the captain. The law of France does not govern this contract, for it is not the law either of the place where the contract was entered into, St. Thomas being a Danish island, nor of the place where it was to be performed, And were this even otherwise, if a French shipowner sends his ship to compete with those of other nations in the general carrying trade of the world, he must abide by the general maritime law of the world, except so far as a contract by himself or his agent contains stipulations to the contrary. Even the giving notice that the ship belongs to a country where the owner may, by abandoning the ship and freight, get rid of all liability on the contract of its captain, only amounts (a) 2 H. L. C. 696. (b) Brown & L. 167, 32 L. J. P. M. & A. 161., affirmed on appeal, nom. Duranty, appt., Hart, respt., 2 Moo. P. C. C. N. S. 289; 33 L. J. M. & A. 116. to saying that the captain has received private instructions from the owner, which of course cannot be obligatory on other persons. [Blackburn J. referred to the old stats. 26 G. 3. c. 86. and 53 G. 3. c. 159., repealed by The Merchant Shipping Repeal Act, 1854, 17 & 18 Vict. c. 120. and re-enacted by The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. ss. 503., 504., whereby the liability of shipowners for injury to goods not caused by their own default or privity was considerably reduced.] Foreign ships were not within those enactments, but the benefits of The Merchant Shipping Act, 1854, have been extended to them by stat. 25 & 26 Vict. c. 63. s. 54. Lush (J. H. Hodgson with him), contrà.-The general maritime law and the laws of different countries vary with respect to the power of the master of a ship to bind his owners by bottomry bonds, the very form of which varies in different places. In the case of The Nelson (a), Lord Stowell lays down that according to the law of England a bottomry bond may be given for necessaries: the general maritime law authorises the captain to hypothecate the freight and cargo only, not the ship, and the owner has the option to adopt or repudiate the contract: also that general average differs in different countries. In Story's Conflict of Laws, 6th ed., §. 286 b. "It is well known, that by the common law the master of a ship has a limited authority to take up money in a foreign port and give a bottomry bond in cases of necessary repairs, and other pressing emergencies. But he is not at liberty to give such a bond for mere useful supplies or advances, which are (a) 1 Hagg. Adm. Rep. 169. 176. 1865. LLOYD V. GUIBERT. 1865. LLOYD V. GUIBERT. not strictly necessary. It is highly probable, that in some maritime countries, the basis of whose jurisprudence is the civil law, a broader authority is allowed to the master, or at least a broader liability may attach upon the vessel and the owner. In such a case, the question might arise, whether the liability of the ship, or of the owner, was to be decided by the authority of the master according to the law of the foreign place, where the money was advanced, or by the law of the place of the domicil of the ship and owner. In England it would be held, (at least such seems the course of the adjudications,) that the master's authority to bind the ship, or the owner, in a foreign port, would be governed by the law of the domicil of the owner; and that consequently the master of an English ship could not bind the owner for advances, or supplies in a foreign port, which were not justifiable by the English law. But it is far from being certain, that foreign Courts, and especially the Courts of the country, where the advances or supplies were furnished, would adopt the same rules, if the lender or supplier had acted with good faith, and in ignorance of the want of authority in the master." And in a note to that section he refers to Mr. Brodie's notes on Lord Stair's Institutions, vol. 2, pp. 955-956, in which the conclusion is thus stated: "The clear result then is, that the transactions must be held to have reference to the master's implied mandate, according to the law of his own country,—a mandate which it is the duty of those who deal with him as an agent to ascertain the extent of; and that, while they never can justly complain of having their right limited by such a principle, the shipmaster cannot be supposed to intend an abuse of his powers,-whence the very gist of all contracts, the understanding of parties, would be wanting to infer a right, ex lege loci contractûs, which the scope of his authority did not import." If this were not so, the liability of the owner would depend upon the law of the country into a port of which the ship was obliged to go for repairs. A maritime contract, which bottomry obviously is, must therefore have reference to the law of the country to which the ship belongs: for the ship is part of her soil. Consequently every person who puts goods on board a French ship is bound as to those goods by the law of France. Now The Code de Commerce, livre 2. titre III., Des propriétaires de navires, Art. 216, ainsi modifié Loi du 14 Juin, 1841 (a), runs thus; "Il peut, dans tous les cas, s'affranchir des obligations ci-dessus par l'abandon du navire et du fret ;" and in Emérigon, Traité des Contrats à la Grosse, par Boulay-Paty, ch. iv. s. xi., p. 489, referring to the celebrated Ordonnance de la Marine, from which the original section was introduced into the Code de Commerce, it is said that no particular form of abandonment is necessary. [He also referred to the Code de Commerce, Liv. 2, tit. 1, art. 191, and the proceedings in the French Courts set out in Castrique v. Imrie (b)]. [Blackburn J. You would say that a contract made with the captain of a French ship at Sunderland to deliver a cargo at Plymouth, which would be a coasting voyage, is to be governed by the French law.] Yes: the ship retains its nationality in a foreign port. Mellish, in reply.-The general rule is that contracts are governed by the lex loci contractûs, unless they are (a) See Les Codes Français, par Tripier, Paris, 1862. (b) 8 C. B. N. S. 1. VOL. VI. B. & 2. 1865. LLOYD v. GUIBERT, 1865. LLOYD V. GUIBERT. to be performed elsewhere. [He cited Duncan v. Benson (a), and Blackburn J. referred to Cammell v. Sewell, in error (b).] Where a country makes laws at variance with the general international law, they cannot bind beyond the limits of that country's territory. The section of Story Confl. of Laws, 6th Ed. § 286 c, next following that relied on by the other side, runs thus, "In a recent case in Louisiana, where the question arose as to the liability of the owner for the property on board, belonging to a passenger who died on the voyage, the property being afterwards lost, the point was made, whether, as the passenger and property were taken on board at a foreign port, the law of that port, or the law of the place where the vessel and owner belonged, ought to govern as to the owner's liability. On that occasion the Court said: 'We are of opinion that the law of the place of the contract, and not that of the owner's residence, must be the rule by which his obligations are to be ascertained. The lex loci contractûs governs all agreements unless expressly excluded, or the performance is to be in another country, where different regulations prevail. What we do by another we do by ourselves; and we are unable to distinguish between the responsibility created by the owner, sending his agent to contract in another country, and that produced by going there and contracting himself.' Perhaps the case itself did not require so broad an expression of opinion; since the Court seem to have assumed, that the law of the owner's domicil coincided with the law of the place of the con (a) 1 Exch. 537; affirmed on error, 3 Exch. 644. |