BLATCHFORD, Circuit Judge.
The only appeal taken in this case is one by the libel-lant. 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 Grati-tudine, 3 O. Rob. Adm. 240, before Sir William Scott, in the high court of admiralty, in 1801; La Ysabel, 1 Dod. 273, before the same judge, in the same court, in 1812; The Oriental, 3 W. Rob. Adm. 243, before Dr. Lush-ington, in the same court, in 1850, reversed by the privy council in 1851 (7 Moore, P. C. 398); The Bonaparte, 3 W. Rob. Adm. 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 (S Moore, P. C. 459); Cargo ex Sultan, before Dr. Lushington, in the high court of admiralty, in 1859 (Swab. 504); The Hamburg. 1 Brown. & L. 253, before the same judge, in the same court, in 1863, and before the privy' council, on appeal, in 1864 (Id. 265); The Kamak, L. R. 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 (L. R. 2 P. C. 509); The Onward, L. R. 4 Adm. & Ecc. 3S, before Sir Robert Phillimore, in the high court of admiralty, in 1873; and Kleinwort v. The Cassa Marittima. L. R. 2 App. Cas. 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 caigo 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, L. R. 4 Adm. & Ecc. 55. Sir Robert Phillimore states it to have been the judgment of the privy council in The Oriental. 7 Moore, P. C. 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 [47] Eureka [Case No. 4,547], it was doubtful whether it M’as 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 owner’s 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 M’as in St Thomas, M-as consigned to the claimants in New York, as owners of her cargo, and that -she had been consigned in St. 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 M'ith the claimants, as owners of her cargo, as also M’ith the charterer of the vessel and the shipper of her cargo, existed •and were well knoM'n 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 M’as 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 cai’go.
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BLATCHFORD, Circuit Judge.
The only appeal taken in this case is one by the libel-lant. 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 Grati-tudine, 3 O. Rob. Adm. 240, before Sir William Scott, in the high court of admiralty, in 1801; La Ysabel, 1 Dod. 273, before the same judge, in the same court, in 1812; The Oriental, 3 W. Rob. Adm. 243, before Dr. Lush-ington, in the same court, in 1850, reversed by the privy council in 1851 (7 Moore, P. C. 398); The Bonaparte, 3 W. Rob. Adm. 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 (S Moore, P. C. 459); Cargo ex Sultan, before Dr. Lushington, in the high court of admiralty, in 1859 (Swab. 504); The Hamburg. 1 Brown. & L. 253, before the same judge, in the same court, in 1863, and before the privy' council, on appeal, in 1864 (Id. 265); The Kamak, L. R. 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 (L. R. 2 P. C. 509); The Onward, L. R. 4 Adm. & Ecc. 3S, before Sir Robert Phillimore, in the high court of admiralty, in 1873; and Kleinwort v. The Cassa Marittima. L. R. 2 App. Cas. 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 caigo 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, L. R. 4 Adm. & Ecc. 55. Sir Robert Phillimore states it to have been the judgment of the privy council in The Oriental. 7 Moore, P. C. 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 [47] Eureka [Case No. 4,547], it was doubtful whether it M’as 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 owner’s 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 M’as in St Thomas, M-as consigned to the claimants in New York, as owners of her cargo, and that -she had been consigned in St. 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 M'ith the claimants, as owners of her cargo, as also M’ith the charterer of the vessel and the shipper of her cargo, existed •and were well knoM'n 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 M’as 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 cai’go.
The rule laid doM’n in the ease of The Hamburg, 1 Brown. & L. 273, by the privy ■council, as deduced from the judgment of the privy council in the case of The Bonaparte, 8 Moore, P. C. 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 ansM'er within a time not inconvenient M’ith 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 hy-pothecation of the cargo of a ship by the master: that the question. M’hether a master must communicate or not. is one which can ■only be decided by the circumstances in each particular case; and that this principle M-as recognized by Sir William Scott in The Grat-itudine. They furtner 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 M’ho is about to advance a large sum of money under such circumstances, that he should en--quire of the master M’hether he has communicated, or made an attempt to communicate. to the oM’ners the circumstances of his -distress and M’hat he proposes to do in regard to their goods. And it must be remembered, on the other hand, that the owners of the goods are equally interested, and, unless communicated M’ith, have not the same means of protecting their oM'n interests, M’hich the lender undoubtedly has. If it be said that a decision in their favor will tend to increase the difficulty of procuring loans in foreign ports for the repair of vessels in distress, it may also be said, on the other hand, that it M’ill tend very much to the benefit of commerce in general, to discourage improvident or fraudulent advances.” The reason for communicating M’ith the OM’ners of the cargo is well expressed by the privy council in the case of The Hamburg, in this language: “The character of agent for the owners of the cargo is imposed upon the master by the necessity of the case, and by that alone. In the circumstances supposed, something must be done, and there is nobody present who has authority to decide what shall be done. The master is invested, by presumption of law, M’ith authority to give directions, on this ground — that the oM’ners have no means of expressing their wishes. But, when such means exist, M’hen communication can be made to the owners, and they can give their OM’n orders, the character of agent is not imposed upon the master, because the necessity which creates it does not arise.” In. the case of The Lizzie. L. It. 2 Adm. & Ecc. 254, Sir Robert Phillimore, citing as authority, the cases of The Gratitudine. The Bonaparte, and The Hamburg, says, that, if there be an opportunity for the owners of the cargo to express their «will as to advancing the requisite funds, or as to unlading their cargo altogether, the master, who is the agent of necessity and not of their choice, has no right to deprive them of this opportunity, and, therefore, must communicate M'ith them, if it be reasonably within his power to do so. In the case of The Onward, L. R. 4 Adm. & Ecc. 38, the same judge says: “When the circumstances permit, the master must communicate M’ith the owner before he does any acts M’hich seriously affect the value of the ship in the one case, or of the cargo in the other. This is a doctrine at which the English courts have slowly but steadily arrived.” This rule of the English courts seems entirely reasonable, and one M'bich should be applied to the present case.
The master had notice that Cunningham & Sons were consignees of the cargo, at Philadelphia. He made no communication to them. He might have done so by telegraph at all times, and have received a speedy an-RM-er. He made no communication to Mee. The letter of June 1st, 1876, from Lamb & Co. to Mee, was sent by such a route that it did not reach him till July 13th. It contained no information as to the amount of the damage to the vessel, or as to the cost of the repairs, nor did it suggest bottomry. No other communication M’as made to Mee, Before July 21st. a telegram M’ould have reach[48] ed him at once, and, after that date, in about five days. But the master was told, by his letter of instructions, that Cunningham & Sons were the consignees of the whole of the cargo, and thus the proper persons to be communicated with; and, if he had lost his letter of instructions, and had forgotten the name and address of the consignees, he could have learned both by communicating, by telegraph, with Mee. The newspaper notice of the disaster to the vessel, which the claimants saw on June 2d, was not such a notice as called upon them to act. It conveyed no suggestion that a hypothecation of the cat's o was probable or intended. The other points involved, growing out of the special circumstances of this ease, are fully discussed and properly disposed of, in the opinion of the district court
[NOTE. In his opinion affirming this decree, in the supreme court. Mr. Chief Justice Waite says: “The master can neither sell nor hypothe-cate the cargo, except in case of urgent necessity, and his authority is no more than can reasonably be implied from the circumstances in which he is placed. * * * But at all events the necessity must be such as to connect the act with the success of the voyage and not for the exclusive interest of the ship-owner. * * * It is equally well settled that a lender upon the hypothecation of the cargo by the master is chargeable with notice of the facts on which the master appears to rely as a justification for what he is doing.” The learned chief justice holds that it was necessary in order to hind the cargo by the bottomry bond that communication shouid have been made to the owners of the cargo, and after an explanation to them of the circumstances of the case, their consent secured to the proposed action. No excuse is given why this was not done, and telegraphic communications were open with St. Thomas for nearly two months before the loan was advertised for. After commenting upon the condition of the vessel when she left Bio de Janeiro, and the unseaworthy condition which she was then evidently in, the learned chief justice further says: “From these facts it is, to our minds, apparent that when the vessel arrived at St. Thomas she ought not to have been repaired, at the risk of expense to the owner of the cargo, without his consent, and that this could have easily been ascertained by an inquiry into the facts. She came in. dismasted and leaky, for a general equipment and refit, with a cargo substantially imperishable, which might be forwarded in another vessel at comparatively small expense, and it must have been easy to see that to repair the vessel at the risk of the owner of the cargo would be to place his interests in jeopardy without any urgent necessity on his account. No master who held the balance evenly between his two principals could have believed himself justified, under the circumstances, in hypothecating the cargo for any such purpose without notice to the owner.” Bank of St. Thomas v. The Julia Blake, 107 U. S. 41S, 2 Sup. Ct. 092.]
As the suit is wholly upon the bond, and as the bond is void, as respects the cargo, for want of authority in the master, acting as agent for the owners of the cargo, to give it, it follows that the bond cannot be sustained against the cargo, to any extent.