was cited in the affirmative, and Emérigon (Contrats à la Grosse, chap. 4, sect. 11) upon the negative side. Pothier, founding his interpretation upon the civil law, de exercitoriâ actione (see Valin sur l'Ordonnance de la Marine, livre 2, tit. 8, art. 2), thought that the clause of the celebrated "Ordonnance de la Marine" of 1681, (Livre 2, tit. 8, art. 2), from which art. 216 of the Code de Commerce was taken, applied only to illicit acts of the master, and that upon his contracts the owner was liable, and could not get rid of liability by abandonment. Emérigon, on the other hand, founding his opinion upon the general rule of maritime law, as he understood it, thought that from liability for all acts of the master, whether licit or illicit, including contracts, the owner could free himself by abandonment. The jurisprudence of the Court of Cassation leant towards the opinion of Pothier, and that led, in 1841, to the modification of Art. 216 to its present shape, by which, according to the statement of the learned annotator in Sirey's Code de Commerce annoté, by Gilbert, Note 18, upon Art. 216, the opinion of Emérigon is now established in France. To this may be added that similar, though not identical, provisions for the protection of the owner are to be found in other codes; for instance, that of Spain (Código de Comercio, art. 621, 622), and Prussia (Allgemeines Deutsches Handels-Gesetzbuch, art. 451, 452, 453, and the following). This is sufficient to show that there is no general uniform rule in maritime law upon the subject; indeed, looking at home, there seems little if any difference in principle between the French law under consideration, and our own statutory provisions for limited liability, in respect of obligations by reason of collision, which 1865. LLOYD V. GUIBERT. 1865. LLOYD V. GUIBERT. latter have now by express enactment been extended (a) 1 Moo. P. C. C. N. S. 471; 32 L. J. P. M. & 4. 191. Committee of the Privy Council. would probably have considered and compared the case of Cammell v. Sewell, in error (a); and pointed out the distinction in this respect between a hypothecation in case of necessity, and a sale in case of necessity, which, according to the decision of the majority of the Court in Cammell v. Sewell, against the opinion of Byles J., depends for its validity upon the law of the place where the sale was made, and not the general maritime law as administered in England; upon which, however, we offer no opinion. In one other point of view the general maritime law, as administered in England, or (to avoid periphrasis) the law of England, viz. as the law of the contemplated place of final performance, or port of discharge, remains to be considered. It is manifest, however, that what was to be done at Liverpool (besides that it might at the charterer's option have been done at Havre) was but a small portion of the entire service to be rendered, and that the character of the contract cannot be determined thereby. It is true that as to the mode of delivery the usages of Liverpool would govern, as those of Algiers did in Robertson v. Jackson (b), and as, in the mode of taking on board the cargo, the usage of the port of loading would be regarded. See Hudson v. Clementson (c), and the custom set out in the pleadings in Gattorno v. Adams (d), which custom was proved at the trial, Guildhall Sittings after Michaelmas Term, 1862, and made an end of the case: and in this point of view it seems impossible to exclude the law of (a) 5 H. & N. 728; 29 L. J. Exch. 350. (b) 2 C. B. 412. (c) 18 C. B. 213; 25 L. J. C. P. 234. (d) 12 C. B. N. S. 560. 1865. LLOYD v. GUIBERT. 1865. LLOYD V. GUIBERT. England or even that of Haiti from relevancy in respect It is unnecessary however to discuss this point farther Next, as to the law of Portugal: the only semblance of authority for resorting to that law, as being the law of the place where the bottomry bond was given, is the case already referred to of Cammell v. Sewell in error (c); (a) 2 B. & C. 805. (b) Privy Council, 20th July, 1865; 11 Jur. N. S. 771. (c) 5 H. & N. 728, 29 L. J. Exch. 350. and we consider that the judgment in that case, if applicable at all, as to which we say nothing, could only affect the validity of the bottomry, and not the duties imposed upon the shipowner towards the merchant by the fact of the bottomry, which duties must be traced to the contract of affreightment and the bailment founded thereupon. The law of Haiti was not mentioned nor relied upon in the argument; and there remain only to be considered the laws of Denmark and of France; between which we must choose. In favour of the law of Denmark, there is the cardinal fact that the contract was made within Danish territory; and, further, that the first act done towards performance was weighing anchor in a Danish port. For the law of France, on the other hand, many practical considerations may be suggested; and, first, the subject-matter of the contract, the employment of a sea-going vessel for a service, the greater and more onerous part of which was to be rendered upon the high seas, where for all purposes of jurisdiction, criminal or civil, with respect to all persons, things, and transactions on board, she was, as it were, a floating island, over which France had as absolute, and for all purposes of peace as exclusive, a sovereignty as over her dominions by land, and which even whilst in a foreign port, according to notions of jurisdiction adopted by this country (stats. 18 & 19 Vict. c. 91. s. 21.; 24 & 25 Vict. c. 94. s. 9.), and carried to a greater length abroad (Ortolan, Diplomatie de la Mer, c. xiii., the work of a French naval officer, but of which a jurist might well be proud),-was never completely removed from French jurisdiction. Further, it must be remembered that, although bills of lading are ordinarily given at the port of loading, 1865. LLOYD V. GUIBERT. |