CHAPTER II. SHIPS. A very important class of things in possession requiring special notice are ships. As ships differ widely in their nature and the conditions to which they are subject from any other class of property known to the law, it has been the policy of the law to deal with them in a peculiar and exceptional manner. Ships the Ships are accordingly subject to special legislation, contained object of special in a series of Acts called the "Merchant Shipping Acts, 1854 legislation. to 1890" (1). Every British ship, with the exceptions of certain small vessels, is required to be registered (2). The consequences of non-registration are pointed out hereafter (p. 251). It was pointed out by the late Lord Hatherley, then Vice-Chancellor Page Wood, in a celebrated judgment, that "there are two objects of public policy to which the statutes with regard to the registration of ships are directed. One which may be termed a national policy, relating to the interests of the nation at large, and carried out by prescribing the conditions which shall entitle any ship to the privileges of the British flag. The other, concerning the rights of individuals, which is effected by provisions specifying what shall and what shall not be deemed proper evidence of title, as between persons who may deal with property of this description" (3). "Where a purchase is made without notice of fraud for a valuable consideration, and the purchaser has got his name upon the register, it is not competent to the Court to look (1) 17 & 18 Vict. c. 104; 18 & 19 Vict. c. 91; 25 & 26 Vict. c. 63; 30 & 31 Vict. c. 124; 31 & 32 Vict. c. 129; 32 Vict. c. 11; 34 & 35 Vict. c. 100; 35 & 36 Vict. c. 73; 36 & 37 Vict. c. 88; 39 & 40 Vict. c. 80; 43 & 44 Vict. cc. 18, 22, 43 (Carriage of Grain Act, 1880); 46 & 47 Vict. c. 41; 50 & 51 Vict. c. 62; 52 & 53 Vict. cc. 46, 68, 73; 53 Vict. c. (as to compulsory marking of load line). (2) The two classes of vessels not required to be registered are― (1) Coasting vessels not exceeding fifteen tons burden employed in the United Kingdom or a British possession; (2) Coasting and fishing vessels not exceeding thirty tons burden employed on the shores of Newfoundland and the Gulf of St. Lawrence (17 & 18 Vict. c. 114, s. 19). (3) Liverpool Borough Bank v. Turner, 1 J. & H. p. 159. behind the register for the purpose of dispossessing the innocent purchaser whose name is then on the register. He combines both a legal and equitable title, of which it is not competent to this Court to dispossess him" (1). Ships, except those which are so new that they have never British and been registered, are divided, so far as they have been dealt with foreign by Statute law, into two classes-British and Foreign. A ship is not to be deemed a British ship unless she is owned by (1) Natural-born British subjects; (2) Persons made denizens by letters of denization or properly naturalized; (3) Bodies corporate having their principal place of business in the United Kingdom or some British possession. But if a natural-born subject has taken an oath of allegiance to a foreign sovereign he is not qualified to own a British ship unless he subsequently takes an oath to her Majesty, and is resident in her Majesty's dominions. Also denizens must either be resident in her Majesty's dominions, or be members of a factory or house carrying on business in her Majesty's dominions, and have taken the oath of allegiance after being made denizens (2). The Naturalization Act, 1870 (3), does not affect the disability of an alien to own a British ship. An officer of customs cannot grant a clearance or transire enabling a ship to proceed to sea as a British ship, unless she has already been registered as such. ships. tion. The registrar of every British port, who is the principal Registraofficer of customs when there is such an official, or in any British possession where there is no customs officer the governor or administrator is required to keep a register book, and to enter therein on the application of the owners of any British ship or their agents, the particulars required to be registered (4) as follows: (1) The name of the ship and port of registry. (2) Description of the ship. (3) Her master's name. (4) The particulars as to her origin stated in the declaration of ownership. (5) Her owners' names, and the proportions in which they are interested in the ship (5). (1) The Horlock, L. R. 2 P. D. 243. p. 54. (*) 17 & 18 Vict. c. 104, ss. 30, 33. Shares in ships. Property, how acquired. Sale of ships. The property in a ship is divided into sixty-four shares (1), and not more than sixty-four persons may be registered as owners of a ship (2). No person is entitled to be registered as owner of any fractional part of a share, but any number of persons not exceeding five, who are considered as one person, may be registered as joint owners of a share or shares in a ship (3). The national character of a British ship is also guarded by stringent provisions in the Merchant Shipping Act, 1854. If any person uses the British flag and assumes the British national character on board any ship owned, in whole or in part, by persons not qualified to own a British ship, except for the purpose of escaping capture by an enemy, or by a foreign ship of war in exercise of some belligerent rights, the ship shall be forfeited to her Majesty (4). A similar penalty is imposed if the master or owner of a British ship attempts to conceal her nationality, or to assume a foreign character, &c. (5). Property in ships may be acquired in four ways: by construction, by purchase, by operation of law, or by capture and condemnation. Where a ship which is being built for a purchaser is paid for in instalments at different stages of the construction, the property in the portions completed, "the growing chattel," to borrow Lord Campbell's phrase, will vest in the purchaser as they are paid for (6). The law on this subject was summed up in a case decided by the House of Lords in 1886, as follows: "Where it appears to be the intention, or in other words the agreement, of the parties to a contract for building a ship, that at a particular stage of its construction, the vessel, so far as then finished, shall be appropriated to the contract of sale, the property of the vessel as soon as it has reached the stage of completion will pass to the purchaser, and subsequent additions made to the chattel thus vested in the purchaser will, accessione become his property" (7). A ship may be sold like any other chattel, either by private contract or public auction. But in addition to the contract it is provided by the 85th section of the Merchant Shipping Act, 1854, that a registered ship or any share therein shall be trans (1) 17 & 18 Vict. c. 104, s. 37. 218. (*) See Woods v. Russell, 5 B. & E. 942; Wood v. Bell, 6 E. & B. 772. () Seath v. Moore, 11 App. Cas. 350; Semble, the principles applicable to the sale of parts of a shipare equally applicable to the sale of parts of any corpus manufactum in course of construction. sale. ferred by bill of sale, which must be in the form provided, containing a description of the ship sufficient for identification, and which must be entered in the register book at the ship's port of registry (1), the transferee having first made the declaration required by the Act. Bills of sale are entered in the Bills of register book in the order of their production to the registrar (1). Where the property in any ship or share in a ship becomes transmitted by operation of law, such as death or bankruptcy, the registrar will, upon receipt of a declaration in the form provided, and containing the requisite facts and particulars made by the person or persons entitled, register such person or persons as owners (2). But if any person in whom any property in a ship or share in a ship becomes thus vested is not qualified to own a British ship, the Court has power to order a sale of the property so transmitted (3). A registered ship, or any share in one, may be made a security for a loan or other valuable consideration, but the instrument of hypothecation must be in the form and comply with the conditions required by the Act (4), and must be duly registered. Mortgages are registered in the order of time in which they Mortgages. are produced to the registrar, and are entitled to priority according to the date of registration, and not of the instruments themselves, so that in the case of ships "tacking" (ante, p. 109), does not exist (5). A ship which ought to be registered, if unregistered, cannot be recognised as a British ship. She is thereby excluded from the statutory provisions limiting the responsibility of her owners (post, p. 1057); she is stripped of the protection of the British flag; and if she uses that flag on board, and assumes the British national character, she is exposed to forfeiture (“). Prior to the Merchant Shipping Act, 1862, equitable right Equitable could not be enforced against ships. rights. "Under the Merchant Shipping Act of 1854," said Chief Baron Pollock, in delivering judgment in a well-known case (7), " much hardship arose, because a man might buy a vessel and pay for it, and yet if he was in any way prevented from registering it the former owner had the vessel as well as the money, and for this very reason the sect. 3 of Act of 1862 was passed, expressly giving force to equitable rights." This section provides "that, (1) 17 & 18 Vict. c. 101, s. 57. (2) 17 & 18 Vict. c. 101, ss. 58, 59, 60. (3) 17 & 18 Vict. c. 104, s. 62. () 17 & 18 Vict. c. 104, s. 66; see as to what passes by mortgage of a ship, Coltman v. Chamberlain, 25 (5) 17 & 18 Vict. c. 104, s. 69. 318. without prejudice to the powers of disposition, and of giving receipts conferred by the Merchant Shipping Act, 1854, on registered owners and mortgagees, and without prejudice to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein in the same manner as equities may be enforced against them in respect of other personal property." An interesting question with regard to nationality arose in a case in which a ship had been built in this country in order to be sold to a Turkish company and to be delivered to their representatives at the Golden Horn. The Court decided that this ship was not a British ship within the meaning of the Merchant Shipping Act, 1854, and that accordingly the provisions as to assignment and registration of that statute did not apply to her. The statute the Court said was intended to apply to ships intended to be the property of a British owner. That was not the case here. As soon as the vessel crossed the sea she was intended to be transferred to a foreign owner, and never intended from that hour to be a British ship (1). The theory of the register fixes the maximum fraction of property and the maximum number of several owners that can appear on the register, the object being that the title may be so simple and obvious as to be a "matter of eyesight." As however the record of title is local, and it might be desirable to sell or mortgage the property at a distance, certificates of sale and mortgage were devised by means of which the authentic register with all its contents and authority may be submitted to the eyes of the distant purchaser or mortgagee without withdrawing it from those who desire to consult it at the home port (2). In this chapter we have dealt with ships solely in connection with the subject of property (3). A great variety of interesting questions which arise with regard to them will be more appropriately considered in other portions of this work, and chiefly in that which deals with the subject of Admiralty (post, p. 1048). (1) Union Bank of London v. Lenanton, L. R. 3 C. P. D. 243. (2) Maclachlan on Shipping, p. 75. (3) See, as to exemption from stamp duty, Stamp Act, 1870, schedule (general exemptions). |