by Justice William W. Bedsworth

Ed. Note: Beds is down with the coronavirus so he re-worked this column from one that ran a decade ago. If you remember it, you have been reading OCL as long as I have!

Every month, I’m embarrassed to look through the pages of this magazine and see how much more other people know than I do. They know all kinds of valuable things about family law practice and lienholders’ rights and the dangers of prematurely perfecting a Veebleforsh claim, and they provide cogent explanations in this magazine.

They know things I don’t even suspect. They know how to avoid pitfalls, for example. I, on the other hand, don’t even know how to recognize a pitfall. What does a pitfall look like? Is it different from a pit? If you fall into a pit, does it become a pitfall?

And what’s more impressive, these people are willing to share their knowledge. Every issue of this magazine is chock-full¹ of helpful articles by people who know things.

Then there’s my column. As near as I can determine, my column is supposed to provide a sort of intellectual counterbalance to all these helpful, scholarly dissertations. I’m supposed to provide comic relief by serving up a thousand words of worthless drivel. I think I do a nice job of it. Worthless drivel turns out to be my long suit.

But this month I’m going to set my sights higher. I figure it’s time to clean up my act. This month I aspire to the role of valuable, “learned-journal” type scholarship, the kind of stuff the other contributors provide.

The other day, I ran across this sentence in Pangborn Plumbing Corp. v. Carruthers & Skiffington, 97 Cal. App. 4th 1039, 1051-52 (2002): “The general rule, all things being equal, is that liens have priority among themselves according to the date of their creation, except in cases of bottomry and respondentia.”

Say what? “Bottomry and respondentia?”

I have a cousin who contracted respondentia in the tropics and almost died of it, so I’m familiar with that. But bottomry? What in hell is bottomry?

Well, I’ll tell you what it is. It’s my ticket to the big-time, my chance to engage in serious pedantry.² Herein my explication of this oft-misunderstood area of the law.³

We are, of course, all familiar with Insurance Code section 1881. It’s become so much a part of California legal culture that it hardly seems necessary to reproduce it here. I do so on the theory that a few new admittees may yet be unfamiliar with it. Section 1881 provides, “The insurable interest of the owner of a ship hypothecated by bottomry is only the excess of its value over the amount secured by bottomry.”

This seems fairly self-explanatory. And it pretty much follows as night the day that, “The master of a vessel can hypothecate it upon bottomry only when he cannot otherwise relieve the necessities of the vessel, and is unable to reach adequate funds of the owner, and when previous communication with the owner is precluded by the urgent necessity of the case.” Harbors & Navigation Code, Section 453.

Nonetheless, California law on hypothecation by bottomry has become a veritable morass of pitfalls.⁴ Bereft of guidance from California appellate courts,⁵ our state’s practitioners have been forced to look elsewhere for precedent in this area. To almost no avail.

The source of most of the confusion in the area is Haselrig v. Pessendon, 7 Q.B. 88 (1714). This is perhaps the most poorly written opinion in the history of non-Sumerian jurisprudence. Lord Fozziwick’s prose is considerably less accessible than Lewis Carroll’s Jabberwocky, and legal scholars are pretty much evenly divided on whether he was intentionally obtuse because he had no clue what he was talking about, or was simply stark-raving-bonkers when he wrote the opinion. Either way, it got the law of hypothecation by bottomry off to a very confused start.

Lord Fozziwick doubtless intended to clarify Haselrig in a subsequent opinion, but an irate husband beat him to death with a chamber pot before he got the chance. This, of course, prompted Lord Chenneyworth’s famous comment in The Sailing Ship Ernest C. Brown, 10 Q.B. 106, 144 (1719) that, “The law in this area is quite clear. Unfortunately, due to the untimely demise of Lord Fozziwick, it is unclear in which direction it is clear.”

Then, in 1816, after a century of confusion, bottomry law descended into a maelstrom of utter incomprehensibility with the publication of Horatio Danforth’s epic treatise Law of Admiralty. Danforth was perhaps the foremost admiralty authority in the history of western civilization, and his discussion of hypothecation by bottomry was eagerly anticipated as the ne plus ultra of marine explication.

Unfortunately, a printer’s error turned the word “hypothecary” (the old English term for “insurance agent”) into “apothecary” in the first three editions, and since no one had the temerity to challenge Danforth, English law for the next century required the approval of a druggist before a ship could be insured.⁶

With this history, it’s not surprising that American courts have pretty much scuttled⁷ Commonwealth precedent and developed their own. But the curse of Lord Fozziwick seems to have dogged our courts as much as the British ones.

The most striking example of this is the opinion of Justice Lucy Marie Tania in Narragansett Bay Homeowners’ Association v. Fitzgerald, 62 Mass. 331 (1928). Justice Tania, the first woman to sit on the Massachusetts Supreme Court, was a distinguished jurist, and by all accounts an accomplished sailor, so it was a shock to American maritime lawyers when her opinion in the Narragansett Bay case was utterly indecipherable. Nonetheless, since it was the first opinion dealing with hypothecation by bottomry outside the ill-fated Cayman Islands Treaty and the by-now thoroughly discredited English tradition, it was embraced by courts all along the Eastern Seaboard who tried, with varying degrees of success, to make sense of it.

Recent legal scholarship has determined that Justice Tania, while an expert yachts­person⁸ was also a prodigious consumer of grog. The best explication of the Narragansett Bay case is now that Justice Tania had somehow taken it into her head that the case turned on a definition not of “hypothecation” but of “hypotenuse.” This would explain some of the more bizarre geometrical references in the case but completely invalidates the complex mathematical formula devised by Justice Richard Posner in Munoz v. Bailey, 426 F.2d 920 (1972), and subsequently adopted by thirty-seven states.

California responded to the tortuous reasoning of Narragansett Bay by passing Section 1881 in 1935. This was, unfortunately, a year after the retirement of the St. Louis Cardinals’ Hall of Fame first baseman “Sunny Jim” Bottomley, and many in the profession, unfamiliar with the term “bottomry” thought Sunny Jim had gone into maritime insurance. So the next time your opponent refers to a “Sunny Jim” or “Bottomley” policy, you can feel reasonably secure that while she may have been practicing a long time, she hasn’t really kept up with the field.

The bottom line on bottomry⁹ is that you can pretty much disregard as precedent everything except Marziou v. Pioche, 8 C 522 (1857). Marziou has much to recommend it. For one thing it is almost literally the beginning and the end of California law in the area. It has the rather unusual distinction of being both the seminal¹⁰ case in the area and the last word on the subject. For another thing, the Reporter of Decisions then was H. Toler Booraem, and we all know what a wild man he was!

But it reads like Joseph Conrad. It begins, “In the month of December, 1849, the French ship Java arrived at the port of San Francisco, under the command of Capt. Devaulx.” With all due respect to my brethren and sistern¹¹ of the California appellate courts, you won’t get near an opening sentence that good in anything written in this century.

But most importantly, Marziou—having predated Section 1881 by seventy-eight years—gives you the chance to master both common law and statutory enactment in the entire area in about twenty minutes. You won’t often get that opportunity.

Nonetheless, the best practice tip I can give you regarding bottomry and ship hypothecation is that it is very complex, and you’ll probably want to associate with an attorney who has some experience in the area. Unfortunately, they’re all dead.

BEDS NOTES

1. My dictionary defines “chocks” as “blocks of wood.” But it defines “chock-full” as “filled to overflowing.” Why would you want to fill anything up with blocks of wood? If you fill up a pitfall with blocks of wood, does it become a chock-full pitfall? This scholarly journal stuff is tougher than I had anticipated.
2. Somebody revive Justice Goethals and reassure him that “pedantry” has nothing to do with young boys.
3. Actually, this is not my first foray into serious legal scholarship. I wrote a law review article in 1985 which was hard-hitting and insightful and has probably never—ever—been cited by anyone—anywhere—outside my favorite sports bar.
4. This is not a mixed metaphor. I have in mind here a swamp chock-full of holes into which unwary bog travelers might fall. Conceptually difficult, I will admit, but not mixed. Besides, you can’t write an article like this without using the word “pitfall.” I think it’s a law or something.
5. In the eighty-eight years since its passage, Section 1881 has never been the subject of a reported decision. Makes you wonder why the legislature thought it was so all-fired important in 1935.
6. Indeed, since the Cayman Islands Treaty of 1914 defines its terms by reference to “Danforth’s Law of Admiralty” without specification of edition, a good argument can be made that Commonwealth ships still require that a druggist sign off before debarkation. Just be glad your bottomry case is arising in California rather than Yorkshire or Saskatoon.
7. A little “learned-journal” humor there.
8. She preferred the term “tough old salt.”
9. See footnote 7, supra.
10. Is this a sexist term?
11. I know it sounds like something you fill chock-full of water, but I like the sound of “brethren,” so we need a gender-correct equivalent term. I offer this one.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.