May 2013 - Bottomry: The Opposite of Topiary

by Justice William W. Bedsworth

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.
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 by serving up a thousand words of worthless drivel. I think I do a nice job of it.
But this month, I’m going to set my sights higher. This month I aspire to the provision of valuable, “learned journal” type scholarship.
My colleagues do this all the time. Mark Simons writes on evidence, Walt Croskey writes on insurance law, and Bill Rylaarsdam does so many Rutter Group programs that they may have to change their name to the Rylaarsdam Group. I haven’t written a law review article in almost thirty years, but I think if I want to be one of the cool kids, I have to write seriously about the law. Ergo . . .
We’re all familiar with Insurance Code § 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 off chance that a few new admittees may yet be unfamiliar with it and I don’t want them to be intimidated so early in my article. 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-evident. 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, or to obtain any funds upon the personal credit of the owner, and when previous communication with the owner is precluded by the urgent necessity of the case. Harbors & Navigation Code, § 453.
Nonetheless, despite the rudimentary—indeed, almost tautological—nature of those concepts, California law on hypothecation by bottomry has become a veritable morass of pitfalls.2 Bereft of guidance from California appellate courts,3 our state’s practitioners have been forced to look elsewhere for precedent in this area. To almost no avail.
The source of much of the confusion in the area is Hazelrig v. Pesendon, 7 Q.B. 88 (1714). This is perhaps the most poorly written opinion in the history of non-Anasazi jurisprudence. Lord Fozziwick’s prose is considerably less accessible than Lewis Carroll’s “Jabberwocky,” and legal scholars are 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 Hazelrig in a subsequent opinion, but an irate husband beat him to death with a chamber pot before he got a chance. This, of course, prompted Lord Chenneyworth’s famous comment in The Sailing Ship Clement L. Gwynn, 10 Q. B. 106, 134 (1718) 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 maritime exposition.
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.4
With this selcouth5 history, it’s not surprising that American courts have pretty much scuttled6 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 Homeowner’s Ass’n v. Fitzgerald, 137 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 turned out to be utterly incoherent. Nonetheless, since it was the first word on 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 yachtsperson,7 was also a prodigious consumer of grog. The accepted 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 gloss applied to it by Judge Richard Posner in Cabrera v. Trout, 689 F.2d 920 (7th Cir. 1982), and subsequently adopted by thirty-seven states and all eleven federal circuits.
California responded to the tortuous reasoning of Narragansett Bay by passing Insurance Code § 1881 in 1935. This was, unfortunately, the 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 marine 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.8
The bottom line on bottomry9 is that you can essentially disregard as precedent everything except Marziou v. Pioche, 8 Cal. 522 (1857). While it pre-dates § 1881, Marziou has much to recommend it. For one thing, it is almost literally the beginning and the end of California precedent 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, it was reported by H. Toler “Apostrophe, My Ass” Booraem—and we all know what a wild man that particular Reporter of Decisions was!
But most important, it reads like Joseph Conrad: “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 on the appellate bench— past and present—I don’t think there’s another opening sentence in all of California law as good as that one. The rest of the opinion doesn’t live up to that sentence, but what could?
And reading Marziou,12 which predated § 1881 by seventy-eight years, gives you the chance to master both common and statutory law in an area addressed by two different California codes in less than twenty minutes. You won’t often get an opportunity like that.
Arm yourself with Marziou and your bottomry quiver is well-stocked. The best practice tip I can give you is that you should never rely solely on the plain language of sections 1881 and 453.
You’ll probably want to associate with an attorney who has experience in the area. Unfortunately, they’re all dead.

(1) My dictionary defines “chocks” as “blocks of wood.” 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?
(2) 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.
(3) In the seventy-eight years since its passage, § 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.
(4) 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 pharmacist sign off before debarkation. Just be glad your bottomry case is arising in California rather than Yorkshire or Saskatoon.
(5) Really? You were okay with “hypothecate” but “selcouth” stopped you?
(6) A little “learned journal” humor there.
(7) She preferred the term “crusty old salt.”
(8) Nor with baseball.
(9) See supra n.6.
(10) Is this a sexist term?
(11) I know it sounds like something you fill chock-full of water, but “sistern” should be a word. We need a gender-correct form of brethren, and learned journal articles are a good place for introduction of new terminology.
(12) I dare you. Trek down to the law library and ask them where the first series of the California Reports is kept. Take some water to revive them when they faint. It’ll be a lot more fun than just looking it up on the net.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.