By a charter party executed at Valparaiso, Chili, on April 5, 1884, Gibbs & Co., of the place named, chartered the ship Andrew Johnson to carry a cargo of nitrate of soda from Iquique and Caleta 'to any safe port in the United Kingdom or on the continent between Havre and Hamburg, both included, as ordered.' After loading at the places named, the Andrew Johnson, pursuant to orders, sailed on July 15, 1884, for Hamburg, the cargo on board being consigned to the order of Antony Gibbs & Sons, a firm doing business in London. On the 4th of August following, the vessel, being in distress, put into Callao. Certain mecessary repairs, which were advised by a duly-appointed board of survey, were made, and, upon the recommendation of the board, 8,449 bags, or about 1,200 tons, of the nitrate of soda were transhipped to the British bark Mary J. Leslie, to be conveyed, by that vessel, to Hamburg.
To defray the expenses incurred in the port of refuge, the master of the Andrew Johnson executed a bottomry and respondentia bond to the firm of Grace Bros. & Co. This bond not only bound the ship Andrew Johnson and her cargo and freight, but also, in express terms, hypothecated the cargo transhipped to the Mary J. Leslie. Although both cargoes were thus bound, the bond, in its defeasance clause, provided that it should be void 'if, during the said voyage, an utter loss of the said vessel by fire, enemies, pirates, the perils of the sea or navigation, or any other casualty, shall unavoidably happen.' A copy of the bond is found in the margin. The two vessels sailed for Hamburg. The Leslie arrived, but the Johnson perished at sea, as the result of a collision with the British hip Thirlmere. After the arrival of the Leslie at Hamburg, demand was made upon the representatives of Antony Gibbs & Sons, the consignees of the nitrate of soda which had been shipped on the Leslie, for payment in full of the amount of the bond, and, in order to obtain possession of the cargo, the consignees entered into an agreement by which the question of the liability of the nitrate of soda on the Leslie for the entire amount of the bond was to be determined by arbitration, the arbitrators to be selected by, and their decision to be binding upon, the respective parties. It is to be inferred that the only question controverted before the arbitrators was whether the use of the words 'said vessel' in the defeasance clause of the bond operated to avoid the bond in consequence of the wreck of the Andrew Johnson and the loss of her cargo. The German lawyers who were selected as arbitrators found that the nitrate of soda on board the Leslie was bound for the whole amount of the bond, and that, therefore, the consignees were not entitled to the cargo unless they paid the bond. Their award was as follows:
'We formulate the question which you, in the names of Messrs. Antony Gibbs & Sons and Messrs. Baring Brothers & Co., have submitted to our judgment as follows:
'Whether the portion of the cargo of nitrate of soda of the Andrew Johnson, brought home per Mary J. Leslie, is liable for the whole amount of the bottomry bond, which was signed in Callao, and whether, consequently, the receiver of this portion of the cargo has to pay the whole of the bottomry bond, provided the value of this portion of the cargo is not less than the amount of the bottomry debt.
'This question we must answer in the affirmative, because, according to the law here, ship, freight, and cargo of the Andrew Johnson, as well as the portion of the cargo which was transhipped into the Mary J. Leslie, are jointly liable for the whole amount raised on bottomry at Callao, and therefore the Andrew Johnson and her cargo having become a total loss, the holder of the bottomry bond can come upon that portion of the cargo which was shipped by the Mary J. Leslie for the whole amount of his claim.