The Julia Blake. all the time. Under these circumstances, to hold the master justified in hypothecating the cargo for the repair of the ship, without notice, would be contrary to the admitted principle which makes him only the agent of the owner of the cargo for that purpose in a case of necessity; for, no such necessity exists where the owner is himself thus, by means of the telegraph or the mail, so close at hand. Again, the master is bound, in acting as agent for ship and cargo, to consult, so far as he can, the true interests of both. He must not sacrifice the cargo to the ship. Now, here, he acted in flagrant violation of the rights and interests of the owner of the cargo. Knowing the condition of the ship, he must be presumed to have known that it was not the interest, and would not be the wish, of the owner of the cargo to contribute a large part of the value of the cargo for the purpose of enabling the ship, which was disabled by its own unseaworthiness at the commencement of the voyage, and not by a peril of the sea, to be repaired, in order to complete her voyage. His acts, as agent of the owner of the cargo, were not reasonably judicious, and, I am bound to say, on all the evidence, were not done in good faith. (The Onward, ut supra.) The letter sent on the 1st of June, by Lamb & Co., to Mee, at Rio, does not help the master's case. Assuming that it has the same effect as if written by him, it was sent by some roundabout way, so that it did not reach Mee till July 13th. It did not convey any definite information as to the probable cost of the repairs, nor indicate that it would be necessary to hypothecate the cargo. Moreover, Mee was not the party with whom the master was bound to communicate, although he happened, so far as appears, without the master's knowledge, to be the owner of a small part of the cargo. It must be held, therefore, that, under the circumstances of this case, the master was not justified by necessity, in hypothecating the cargo. This case is strikingly like the case of The Hamburg, cited above, with some added circumstances of recklessness, negligence and bad faith, and many of the arguments of the learned counsel for the libellants in this case, as to the impracticable character of the rule The Julia Blake. requiring communication, are met and fully disposed of in the opinion in that case. The point taken, that, by the Danish law, the cargo was already liable at St. Thomas, and that, therefore, the bond is good, is also clearly disposed of by that case and the other English cases cited. That the libellants advanced their money in good faith is not questioned; but that they made no inquiries whatever, except as to the sufficiency of the ship, freight and cargo, to secure the amount of the bond, is admitted. A lender upon bottomry, who makes reasonable inquiries of the proper parties, as to the facts which are essential to justify the master's action in hypothecating the ship, may have a good security, though misinformed as to the facts. This is in the interest of commerce, and secures the masters of ships in distress in foreign ports reasonable means of obtaining funds to refit and continue the voyage. There is no reason why the same principle should not apply to the hypothecation of the cargo. But, the validity of the bond, if upheld in such a case, depends wholly on the fact, that the lender made such reasonable inquiry, and, as the result of it, obtained information which, if true, would sustain the action of the master. The interests of commerce do not require that the same protection should be extended to lenders who do not inquire, though they may lend their money in good faith, believing that the master had the necessary authority. Indeed, the interests of commerce are not aided, but impaired, by having such facilities for borrowing money within the reach of the master. If he makes no inquiries, the lender must stand or fall by the facts as to the master's authority. Making no inquiries, he must be presumed to know what the master knows. (On this point, see The Hamburg, ut supra, and cases cited; Maclachlan on Merch. Shipping, p. 51.) At the least, the lender is chargeable with notice of the facts that he could reasonably be expected to discover on inquiry, and, in this case, he certainly could have been expected to discover enough to satisfy him that no communication was had or attempted with the owner, though especially necessary under the particular circumstances. The Julia Blake. In this case, therefore, there must be a decree in favor of the libellants against ship and freight, and in favor of the cargo against the libellants." George De Forest Lord, for the libellants. Everett P. Wheeler and Butler, Stillman & Hubbard, for the claimants. BLATCHFORD, J. The only appeal taken in this case is one by the libellant, and is from so much of the final decree of the District Court as dismisses the libel as against the cargo and the proceeds of the copper and junk, and as awards costs to the claimants of said cargo. The only question made, in argument, by the counsel for the libellant, is as to the cargo as no attempt has been made to show error as to the decree respecting the proceeds of the copper and junk. There is no dispute as to the material facts in this case, as affecting the cargo. Those facts, as found by this Court, were substantially found by the District Court, in its decision. The only question is, whether, on the facts of this case, the cargo is bound by the bond. The point involved is examined with care and thoroughness in the decision of the District Court, and I concur in the views there set forth. I have read the English decisions on the subject, namely, The Gratitu dine, (3 Ch. Rob., 240,) before Sir William Scott, in the High Court of Admiralty, in 1801; La Ysabel, (1 Dodson, 273,) before the same Judge, in the same Court, in 1812; The Oriental, (3 W. Rob., 243,) before Dr. Lushington, in the same Court, in 1850, reversed by the Privy Council, in 1851, (7 Moore, 398;) The Bonaparte, (2 W. Rob., 298,) before Dr. Lushington, in the High Court of Admiralty, in 1850 and 1852, and before the Privy Council twice, on appeal, in 1851 and 1853, (8 Moore, 459;) The Cargo ex Sultan, before Dr. Lushington, in the High Court of Admiralty, in 1859, (Swabey, 504;) The Hamburg, (1 Browning & Lushington, 253,) before the same Judge, in the same Court, in 1863, and The Julia Blake. before the Privy Council, on appeal, in 1864, (Id., 265;) The Karnak, (Law Rep., 2 Adm. & Ecc., 289,) before Sir Robert Phillimore, in the High Court of Admiralty, in 1868, and before the Privy Council, on appeal, in 1869, (Law Rep., 2 P. C. App., 509;) The Onward, Law Rep., 4 Adm. & Ecc., 38,) before Sir Robert Phillimore, in the High Court of Admiralty, in 1875; and Kleinwort v. The Cassa Marittima, (Law Rep., 2 Appeal Cases, 156,) before the Privy Council, in 1877. The result of these cases is, that it is the law of England, in regard to a bottomry bond covering cargo, given by the master of the vessel, that he cannot hypothecate the cargo, without communicating with the owner of it, if communication with such owner be practicable, and that such communication must state not merely the necessity for expenditure, but also the necessity for hypothecation. In The Onward, (Law Rep., 4 Adm. & Ecc., 55,) Sir Robert Phillimore states it to have been the judgment of the Privy Council in The Oriental, (7 Moore, 411,) that a mere statement of injuries done to the ship, and of the consequent necessity of repairs, which would entail considerable expense, unaccompanied by a statement that a bottomry bond must be had recourse to, was not a sufficient communication to the owners. This statement of the law is quoted in the judgment of the Court in Kleinwort v. The Cassa Marittima, (above cited,) with the remark, that the Privy Council entirely agrees in such view of the law. No case in the United States is cited deciding the points thus referred to. In The Eureka, (2 Lowell, 417.) it was doubtful whether it was open, on the pleadings, to take the objection that the master did not write sufficiently to the owners of the ship, and not at all to the owners of the cargo, and the conclusion of the Court was, that, if the English cases were of authority here, they would not require the bond to be set aside. In the present case, the point is taken in the answer of the claimants of the cargo, that the vessel, at the time she was in St. Thomas, was consigned to the claimants in New York, as owners of her cargo, and that she had been consigned in St. The Julia Blake. Thomas to the agents of the claimants there, as was well known to her master; that means of speedy communication with the owner of the vessel, and with the claimants, as owners of her cargo, as also with the charterer of the vessel and the shipper of her cargo, existed and were well known to said master and to the libellant, and that, although such means existed, said master did not communicate with the owner of the vessel, nor with the claimants, nor with either of them, relating to the execution of said bottomry; that said master had no authority or necessity for the execution of the same, as was well known to the libellant; and that the said bond, having been executed without such authority or necessity therefor, is void as against the vessel and her cargo. The rule laid down in the case of The Hamburg, (1 Browning & Lushington, 273,) by the Privy Council, as deduced from the judgment of the Privy Council in the case of The Bonaparte, (8 Moore, 473,) is, that "if, according to the circumstances in which he is placed, it be reasonable that he should-if it be rational to expect that he may-obtain an answer within a time not inconvenient with reference to the circumstances of the case, then it must be taken, upon authority and principle, that it is the duty of the master to do so, or at least to make the attempt." As to this rule, the Privy Council say, in The Hamburg, that they are unable to discern any novelty in it, either in the principle on which it rests, or in its application to the case of the hypothecation of the cargo of a ship by the master; that the question, whether a master must communicate or not, is one which can only be decided by the circumstances in each particular case; and that this principle was recognized by Sir William Scott in The Gratitudine. They further say: "As to the supposed inconvenience of the rule, their lordships do not forget that the lender of the money is the party interested in the event of the suit, and not the master. But there is no hardship in requiring from one who is about to advance a large sum of money under such circumstances, that he should enquire of the master whether he has communicated, or made an at |