1865.

[Monday, November

27th.]

Foreign law. Bottomry. Charter of affreightment. Authority of master of ship

to bind owners.

LLOYD against GUIBERT and others.

1. The rights of parties to a contract are to be judged of by that law which they intended, or rather by which they may justly be presumed to have bound themselves.

2. A party who relies upon a right or an exemption by foreign law, is bound to bring that law properly before the Court, and to establish it in proof, otherwise the Court, not being authorized to notice such law without judicial proof, must proceed according to the law of England.

3. Where a contract of affreightment does not provide otherwise, there, as between the parties to such contract, in respect of sea damage and its incidents, the law of the ship should govern.

4. The plaintiff, a British subject at a Danish West India Island, chartered a ship belonging to the defendants, who were French, for a voyage from St. Marc, in Haiti, to Havre, London or Liverpool, at the charterer's option, he knowing that the ship was French. The charter party was entered into by the master in pursuance of his general authority as such, and not by any special authority from the owners. The plaintiff shipped a cargo at St. Mare for Liverpool. On her voyage the ship sustained damage from a storm, which compelled her to put into a Portuguese port. There the master properly borrowed money upon bottomry of the ship, freight, and cargo, and repaired her, and she proceeded with the cargo and arrived safe at Liverpool. The bondholder proceeded in the Court of Admiralty against the ship, freight, and cargo, which being insufficient to satisfy the bond, he sued the defendants as shipowners to indemnify him for the deficiency. The defendants abandoned the ship and freight in such a manner as by the French law absolved them from liability. Held, by the Court of Queen's Bench, and affirmed by the Exchequer Chamber, that the plaintiff was not entitled to recover, because the French law, as being that of the ship, governed the case.

THE first count of the declaration alleged that the

defendants were the owners and interested in the possession of a certain ship called The Olivier, then in foreign parts, to wit the West Indies, of which ship one Jean François Lemaire was the master duly appointed by the defendants, and thereupon the plaintiff at the West Indies caused to be shipped and loaded on board the ship a cargo of divers goods and merchandizes of the plaintiff, of the value to wit of 30007., to be carried and conveyed in the ship by the defendants for the plaintiff from there to Liverpool, and at Liverpool to be

delivered by the defendants to the plaintiff, the dangers and accidents of the seas and navigation only excepted, for certain freight and reward agreed to be paid by the plaintiff to the defendants; and that the ship with the cargo on board of her to wit, on the 9th October, 1860, set sail on her voyage to Liverpool, and whilst proceeding on her voyage with the cargo on board in consequence of injuries and damages sustained by her on her voyage caused by stormy weather was by J. F. Lemaire as such master necessarily taken to and was forced to put into a certain other foreign port, to wit Fayal, in order to be repaired and rendered fit to prosecute and complete her voyage, and that the ship was there repaired by the authority of the master, and divers expenses were there necessarily incurred by him in and about the repairs, and in and about the providing of stores and victuals for the crew of the ship, and in and about divers other necessary expenses incident to the premises, and which were proper, and were required for the purpose of enabling the ship to prosecute and complete her voyage. And that J. F. Lemaire as such master at Fayal, the same being a foreign port, and neither the defendants or any of them, nor any person interested in the ship being resident there or being natives thereof, or having any agent there, in order to defray the said expenses amounting in the whole, to wit, to 20007., and in order to enable him to prosecute and complete the voyage, was compelled to hypothecate and borrow money on bottomry of the ship, and he accordingly did hypothecate the ship, to wit, by executing three bottomry bonds for three several sums duly advanced to him in that behalf, to wit, by onc Augusto Dally, and which, together with

1865.

LLOYD

V.

GUIBERT.

1865.

LLOYD

V.

GUIBERT.

interest, amounted in the whole to 24007. It then averred that the circumstances under which the bottomry bonds were so executed were sufficient to justify the master in executing the same respectively, and that each of the bottomry bonds was a good and valid instrument in that behalf, and that by each of the bottomry bonds the ship, freight and cargo were duly mortgaged, assigned and hypothecated so as to make the ship, freight and cargo a good and valid security in the hands of the obligee thereof, by whom the said several sums were so advanced as aforesaid for the payment of the several sums therein mentioned with interest according to the tenor and effect thereof, and that by the condi tion of each of the bonds the obligee thereof was entitled in the event of the ship completing her voyage, and of the amount and interest not being paid to such obligee within a certain time therein mentioned, to wit, ten days after the completion of the voyage, to seize and arrest the ship, freight and cargo by way of security for payment of the amounts and interest therein mentioned: that the defendants had notice of the premises, and in consideration thereof promised the plaintiff to indemnify and save him harmless against any loss or damage which might lawfully accrue to him as the owner of the cargo by or by reason of the premises. It then proceeded to allege that afterwards the ship again set sail upon and duly completed her voyage, and safely arrived at Liverpool with the cargo on board of her, to wit, on the 25th March, 1861 that none of the sums in the bottomry honds mentioned respectively were paid by the defendants as such owners, or by any person on their behalf within the time mentioned in that behalf in the bonds, or since, and that by reason and in consequence of such

non-payment proceedings were taken and a suit instituted in the Court of Admiralty in London, against the ship, freight and cargo by one F. R. Camroux, to whom the bonds had been indorsed by the said Augusto Dally the obligee thereof, and as the agent and on behalf of the obligee, for the purpose of obtaining payment of the three sums with interest, according to the tenor and effect of the said three several bonds: and such proceedings were thereupon had in the Court, that the plaintiff as the owner of the cargo and in order to save and prevent the cargo from being sold by the Court, and in order to recover and get possession of the same, was compelled to become a party to the suit and proceedings, and by the Court was compelled to pay and did pay, to wit, to F. R. Camroux as such agent and obligee as aforesaid, for and in respect of his said claim and costs a large sum, to wit 15007., being a less sum than the value of the cargo, and being over and above the freight payable in respect thereof; and the plaintiff was further forced and compelled to pay another sum amounting, to wit, to 2007., as and for his own costs in the Court of Admiralty, necessarily incurred and paid by him as a party to the suit and proceedings, which were so instituted and rendered necessary by reason of the several bottomry bonds not having been duly paid and satisfied by the defendants, according to the tenor and effect thereof. Averment, that although all things had been done and had happened to entitle the plaintiff, as the owner of the cargo, to be indemnified as aforesaid by the defendants, and to have had the above mentioned two sums of money repaid to him by the defendants, yet the defendants had not repaid to the plaintiff the said sums or either of them,

1865.

LLOYD

V.

GUIBERT.

1865.

LLOYD

V.

GUIBERT.

or any part thereof; and the plaintiff had by reason of the premises lost the full amount of the two sums, and the use thereof and interest thereupon since the payment thereof by him, &c.

The second count was for money paid, and interest, and on accounts stated. Claim 2000l.

First plea. To the first count, that the cargo was loaded on board the ship under and by virtue of a certain charter-party, and not otherwise, and which charterparty was made between the plaintiff on the one part, and the master on the other part, in parts beyond the seas, to wit at the island of St. Thomas in the West Indies; and by the charter-party it was provided that the master should freight to the plaintiff the ship, in the charter-party called a French ship, then at the island of St. Thomas, in the West Indies, for a voyage from St. Marc, in Haiti, either to Havre, a port in the empire of France, or London or Liverpool, at the option of the plaintiff, for certain freight in the charter-party mentioned that at and from the time of making the charter-party, until the ship was sold as hereinafter mentioned, the ship was a French ship, of and belonging to a port in the empire of France, to wit, St. Servan; and the defendants, the owners of the ship, were French subjects of the empire of France there domiciled and carrying on their business, and according to the laws of France during all the time lastly before mentioned and thence hitherto it was lawful for the owners of any French ship in all cases to free themselves from the acts and engagements of the master thereof, in all that concerns the ship and voyage, by the abandonment of the ship and freight; that the bottomry bonds were executed by the master as therein mentioned, without any express authority from the defendants, or any or