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United States Supreme Court

59 U.S. 63

Carrington  v.  Brig

THIS was an appeal in admiralty from the circuit court of the United States for the district of Maine.

The case is stated in the opinion of the court.

It was argued by Mr. Rowe, for the appellant, and Mr. Fessenden, for the appellee.

Mr. Rowe made the following points, namely:--

1. Airey was rightfully in possession and command of the brig at St. Thomas, and had power to hypothecate her.

2. Airey's conduct, if wrong in this respect, cannot affect the libellant's claim. 3 Sumn. 228.

3. The attempt at deception was not for the purpose of wronging or injuring any party.

4. It does not appear that Carrington was particeps criminis.

5. The bond is not void in toto, but valid to the extent of the actual advances and interest. 1 Dodson, 389; 8 Pet. 228; 1 Wheat. 107.

6. The fraud, even if Carrington be particeps criminis, was not such as to render the bond void in toto. 3 C. Robinson, 240, 276.

7. If the bond is invalid in toto now, it was void ab initio, not voidable merely; and the rights of the parties are the same as if the instrument had not been drafted. 3 Camp. 119; Abbott on Shipping, Pt. II. 142, 151; 11 Mass. 359; 1 Pick. 415.

8. The libellant had a lien upon the brig for his advances, at the date of the bond. 8 Pet. 538, 550; The Hunter, Ware's Rep. 249.

9. The lien has never been extinguished or waived. 7 Pet. 324, 345; 4 Wheat. 255, 290, 291.

10. The lien was not lost by the subsequent fraud.

Mr. Fessenden made the following points:--

1. This was peculiarly a contract of bottomry, having all its characteristics and incidents. Kent's Comm. (7th ed.) 3, 429, 430; 3 Sumn. 228; 4 Law & Eq. Rep. 589.

The draft and agreement do not affect its character. Kent, 3, 423, 424; The Hunter, Ware's R. 249; The Nelson, 1 Hag. 169.

2. Being perfected, and in due form, it forms an express lien upon the vessel. Bottomry is a lien of the strictest kind, only seamen's wages having precedence of it. The Dowthorpe, 2 W. Rob. 73; 9 Eng. Ad. Rep. 79.

Having stipulated for and obtained an express lien of the highest character, as by bottomry, the material man, or lender, necessarily loses, or waives, the implied or tacit hypothecation, which he might otherwise have had.

Because the two liens are inconsistent, being of a different nature. One may coexist with a claim upon the owner; the other cannot. A bottomry bond binding the owner is held void as to that part, in order to sustain the express lien. The common law maxim applies, Expressum facit cessare tacitum. The Nestor, 1 Sumn. 1, 78, 83, 86; Abbott on Ship. from Molloy, 198; The Nelson, before cited; The Tartar, 1 Hag.

Maritime, like common-law liens, are lost by acts inconsistent with the lien-taking other securities and the like. Ramsay v. Allegre, 12 Wheat. 611; The William Money, 2 Hag. 136; The Betsey and Rhoda, Davies, 112; Paul v. Hayford, 22 Maine, 234; Story on Bailments, § 360; Swett v. Brown, 5 Mass. 180; Buck v. Ingersoll, 11 Met. 226; Libby v. Cushman, 29 Maine, 432.

3. The libellant having selected his security, must rely upon that alone, so far as the lien is concerned. And this security is lost by its fraudulent character. The Tartar, 1 Hag. 14; The Nelson, 1 Hag. 176; The Sydney Cove, 2 Dods. 1; Bouvier, Law Dic. Tit. Fraud; Willis v. Baldwin, Doug. 450; Smith v. Bromley, Doug. 696; Alsager v. Spalding, 4 Bing. N. C. 407; Smith v. Hubbs, 10 Maine, 70; The Ann C. Pratt, Curtis, 345; Lowry v. Pierson, 2 Bailey, 324.

A court of equity will not aid a party to enforce such a contract, or to escape from the consequences. Story's Eq. 1, § 59; Cases cited in note to same, 2, § 697.

This is equally true in the admiralty. Courts of admiralty act as courts of equity. Brown v. Lull, 2 Sumn. 449; The Betsey and Rhoda, Daveis, 119.

The fraud attempted in this case, if intended for the underwriters only, was upon a party directly interested, and for whom the master was agent, in the state of facts then existing. Bryant v. Com. Ins. Co. 6 Pick. 131; Douglass v. Moody, 9 Mass. 548.

4. The contract, being void for fraud, cannot be sustained for any part. The cases where a bottomry bond has been sustained for a part, go no further than to reject such portion as is inconsistent with the contract of bottomry, in order to give effect to the express contract. They do not reject the contract, and give another remedy. The Hunter, Ware, 249, stands alone, opposed to legal principles, and that was not a case of fraud. The libellant cannot, therefore, resort to the lien he might have had but for the bond. The Ann C. Pratt, and cases cited, Curtis, 352.

The libellant could only claim under a tacit hypothecation by alleging his own turpitude in the matter of the bond. This the law never permits.

Mr. Justice NELSON delivered the opinion of the court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).