Page:Federal Reporter, 1st Series, Volume 3.djvu/174

rOBCB V. BHIP PBIDB OP THE OOHAN. 167 �case of The Almi, already referred to ; and still further if, as these libellants contend, their demand became due upon the entry of a decree in favor of the crediter in damage and not before, it may foUow that their right to payment out of the proceeds of the sale, as fixed by the decree, must, for that reason, be subject to the right of the libellant in whose favor the decree was made. �These suggestions are made as worthy of consideration, but I rest my decision upon the ground before stated, that a lender of money upon bottomry is a voluntary creditor, who, for the advantage to be derived therefrom, and -with knowledge of the risks attending the voyage, deliberately enters into a contract with the ship, and, moreover, is permitted to obtain compensation for the risk assumed by exacting a maritime premium, while the relation to the ship of him whose demand arises out of a collision is involuntary. It is created by cir- cumstances over which the creditor in damage bas no control, and he can receive no compensation for the risk, �Nor is the case altered by the fact that in this instance the lender is not shown to bave exacted a maritime premium for the risk. If no such premium was taken, it is only because the lender saw fit not to take it. His right to exact it was clear ; but, if his contention be correct, he did not exact the premium, for he has here insisted that, "when no intent at premium is expressed on the face, the customary, reasonable, and logical conclusion is that it is included in the principal named." The right of the assignee of such a contract as this libel sets forth to maintain the action seems undoubted. In the case of the Cecilie, already cited, the action was brought by an assignee. �My conclusion, therefore, is that the libel is bad, so far as it asserts a claim to be paid out of the proceeds of the ship in preference to the claim of the owners of the schooner George W. Andrews for the loss of their vessel by the collision re- ferred to, but that in other respects it is good. ����