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Blaine v. The Ship Charles Carter, 8 U.S. 4 Cranch 328 328 (1808)

Blaine v. The Ship Charles Carter

8 U.S. (4 Cranch) 328


If the obligee of a bottomry bond suffer the ship to make several voyages, without asserting his lien, and executions are levied upon the ship by other creditors, the obligee loses his lien on the ship.

A bottomry bond made by the master vests no absolute indefeasible interest in the ship upon which it is founded, but gives a claim upon her which may be enforced with all the expedition and efficiency of the admiralty process.

In case of a bottomry bond executed by an owner at his own place of residence, the same reason does not exist for giving an implied admiralty claim upon the bottomry, for it is in his power to execute an express transfer on mortgage.

There is strong reason to contend that the claim or privilege of a bottomry bond shall be preferred to any other for the voyage on which the bottomry is founded, except seamen's wages.

Where proceedings were commenced in the admiralty on bottomry bonds given by the master and by the owner on a ship anterior to several voyages made by the ship, and executions had been levied on the ship for other debts due by the owner before the warrant from the admiralty on the bottomry bonds was served, the Court said,

"Had the warrant of the admiralty been first served upon the ship, there might be some ground to contend that this Court ought not to divest that possession in favor of executions served at a subsequent day, at least to the prejudice of the bond given by the master."

But this will not be allowed against executions levied before the service

of the warrant. The owners of the ship had lost the possession, upon which alone the warrant of the admiralty could operate, after losing the right of preference.

Blaine libeled the ship Charles Carter, Bell, master, owned by McCawley, upon two bottomry bonds, one executed in London by Bell the master on 14 July, 1796, and payable ten days after the arrival of the ship in Virginia; the other executed on 27 October, 1796, by McCawley the owner, in Virginia where he resided, and payable in thirty days after the arrival of the ship in Europe. The answer of McCawley admitted the truth of all the allegations of the libel, but a claim was interposed by Donald and Burton, creditors of McCawley, who had on 30 November, 1797, obtained judgment against him, and at whose suit the marshal, on 30 December in the same year, had seized the ship in execution upon several writs of fieri facias issued on the 7th of the same month from the Circuit Court for the District of Virginia, before the warrant of arrest had issued from the district court upon Blaine's libel. The libel was filed on 19 January, 1798, on which day also the warrant to arrest the ship was issued.

It appeared in evidence that the first bottomry bond was given by the master to Blaine upon the first voyage

Page 8 U. S. 329

to London, and that the consideration of that bond consisted of money paid to take up a prior bottomry bond and given to one Robertson, and of money paid for seamen's wages, provisions, repairs, and finishing the ship, she having come out from Virginia in a rough unfinished condition and badly provided with sails and rigging. The money upon this bond was to be paid within ten days after the arrival of the ship in Virginia. She arrived in Virginia on 28 September in the same year; after which the agent of Blaine called for the discharge of the bond, but on failing to receive the money, did not think it necessary to arrest the vessel. Blaine was a very large creditor of McCawley, over and above the amount of the bottomry bonds, and was authorized to receive the freights of the ship and to apply them to his general account current with McCawley. The bond of 27 October, 1796, was taken in order to secure advances made by Blaine to McCawley to enable him to finish the ship before she sailed on her first voyage in March, 1796, to the time of her sailing, or at any time afterwards, and to secure Blaine for money paid by him to discharge three executions which had been served upon the ship. Between the date of the first bottomry bond and the filing of the libel, the ship made two voyages from England to America and one from America to England, and the freights were received by Blaine. The district court decreed in favor of Blaine for the whole amount of the first bottomry bond and for so much of the other as appeared to have been actually advanced for necessaries for the ship, but the circuit court, on 6 December, 1799, reversed the decree and dismissed the libel with costs. Blaine appealed from the decree of the circuit court to this Court, but the appeal was at that time dismissed for want of a statement of facts made in the court below agreeably to the 19th section of the Judiciary Act of 1789, c. 20. After the passing of the Act of Congress of 3 March, 1803, vol. 6, p. 315, c. 93, the cause was brought up again by writ of error, and was now argued upon the evidence contained in the record.

Page 8 U. S. 331

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