« 이전계속 »
the absence of himself and the ship at some other port, a separate bond may be given by him at the port where the ship may then be, which shall be transmitted to the port where the ship is to be registered, and the two bonds shall be of the same effect as if the parties had bound themselves jointly and severally in one bond; and every such bond is to be as a security that the certificate shall not be lent, sold, or disposed of, but solely used for the service of the ship for which it is granted; and in case the ship be lost, captured, or destroyed, or otherwise prevented from returning to the port to which she belongs, or shall have forfeited the privileges of a British ship, or have been condemned for illicit trading, or have been taken in execution for debt and sold accordingly, or sold to the Crown, or have been registered de novo, the certificate, if preserved, shall be delivered up within one month after the arrival of the master in any port in his Majesty's dominions, to the Collector and Comptroller of some port in Great Britain, or the Isle of Man, or of the British plantations, or to the Governor and so forth of Guernsey and Jersey; or if any foreigner shall have purchased or become entitled to the whole or a part of the ship, the certificate must be given up at the time and place mentioned in the statute, which vary according to the different circumstances therein mentioned.
II. The certificate (a) specifies the name, occupation, and residence of every owner, in the proportions mentioned on the back of it, the name of the ship, the place to which she belongs, her tonnage, the name of the master, the time and place of the built or of condemnation, the name of the surveying officer, the number of decks and masts, the length, breadth, height between decks if more than one, or the depth of the hold if only one deck, whether rigged with a standing or running bowsprit, the description of her stern, whether carvel or clincher built, and gallery and kind of head, if there be any. And on the back are indorsed the names of the several owners, with the number of sixty-fourth shares held by each.
(a) 3 & 4 Will. 4, c. 55, s. 2.
Of the Ship’s Transfer.
By the 31st section of the Registry Act-When and so often as the property in any ship (a), or any part thereof, belonging
of his Majesty's subjects, shall, after registry thereof, be sold to any other or others of his Majesty's subjects, the same shall be transferred by bill of sale, or other instrument in writing, containing a recital of the certificate of registry of such ship, or the principal contents thereof, otherwise such transfer shall not be valid or effectual for any purpose whatever, either in law or in equity; provided always, that no bill of sale shall be deemed void by reason of any error in such recital, or by the recital of any former certificate of registry instead of the existing certificate, provided the identity of the ship therein intended be effectually proved thereby.
By the 34th section it is enacted, that no bill of sale (6) shall be valid and effectual to pass the property in any ship, or in any share thereof, or for any other purpose, until such bill of sale shall have been produced to the collector and comptroller of the port at which such ship is already registered, or to the collector &c. of any other port at which she is about to be registered de novo, as the case may be, nor until such collector &c. respectively shall have entered in the book of such last registry, in the one case, or in the book of such registry de novo, after all the requisites of law for such registry de novo shall have been duly complied with, in the other case, of such ship, as the case may be, (and which they are respectively thereby required to do upon the production of the bill of sale for that purpose), the name, residence, and description of the vendor or mortgagor, or of each vendor or mortgagor if more than one, the number of shares transferred, the name, residence, and description of the purchaser or mortgagee, or of each purchaser or mortgagee if more than one, and the date of the bill of sale, and of the production of it: and further, if such ship
(a) The words of the act throughout are, “ ship or vessel.”
(6)“Or other instrument in writing,” passim.
is not about to be registered de novo, the collector &c. of the port where such ship is registered shall, and they are thereby required to indorse the aforesaid particulars of such bill of sale on the certificate of registry of the said ship, when the same shall be produced to them for that purpose, in manner to the effect following; viz.
Custom-house port and date; name, residence, and descrip'tion of vendor or mortgagor), has transferred by [bill of sale or
other instrument], dated [date; number of shares], to [name, residence, and description of the purchaser or mortgagee].
A. B. Collector.
• C. D. Comptroller.' And forthwith to give notice thereof to the commissioners of Customs; and in case the collector, &c., shall be desired so to do, and the bill of sale shall be produced to them for that purpose, then the said collector, &c., are thereby required to certify, by indorsement upon the said bill of sale, that the particulars before mentioned have been so entered in the book of registry, and indorsed upon the certificate of registry as aforesaid.
By the 35th section it is enacted, that when and so soon as the particulars of any bill of sale by which any ship, or any share or shares thereof, shall be transferred, shall have been so entered in the book of registry as aforesaid, the said bill of sale shall be valid and effectual to pass the property thereby intended to be transferred, as against all and every person and persons whatsoever, and to all intents and purposes, except as against such subsequent purchasers or mortgagees who shall first procure the indorsement to be made upon the certificate of registry of such ship, in manner thereinafter mentioned.
The 36th section enacts, that when a bill of sale has been entered for any shares, thirty days shall be allowed for indorsing the certificate of registry, before any other bill of sale for the same shall be entered; but in case no person shall produce the certificate of registry for the purpose of being indorsed within the said space of thirty days, then it shall be lawful for the collector and comptroller to indorse upon the certificate of registry the particulars of the bill of sale, to such person or persons as shall first produce the certificate of registry for that purpose, it being the true intent and meaning of this act, that the several purchasers and mortgagees of such ship, share or shares thereof, when more than one appear to claim the same property, shall have priority, one over the other, not according to the respective times when the particulars of the bill of sale by which such property was transferred to them were entered in the book of registry as aforesaid, but according to the time when the indorsement is made upon the certificate of registry.
By the 11th section it is enacted, that whenever such owner or owners shall have transferred all his or their share or shares in such ship, the same shall be registered de novo before such ship shall sail or depart from the port to which she shall then belong, or from any other port which shall be in the same part of the United Kingdom, or the same colony, plantation, island, or territory as the said port shall be in.
Of the Mutual Rights of Partowners.
In most countries it seems to be in the power of the majority, either in number or value, of the partowners to send the slip on a voyage. In England, the majority in value are entitled to send out the ship “ upon any probable design,” subject to certain restrictions in favour of the rights of the dissentient minority (a). Those restrictions are enforced by the Court of Admiralty, which has authority to arrest and detain a ship upon the application of a partowner who dissents from her intended employment, until security be given by the other partowners to the full value of his share. The practice has in some earlier instances been subject to some doubts; but it has entirely survived those doubts, and it has been formally recognised by the Courts of common law and equity (6).
In matters of this nature, the Court of Admiralty is not merely ministerial, for it compels the party authoritatively to find security; it likewise compels him to pay the sums stipu. lated in the bond given for the security (c).
(a) Beawes, 53; Abbott, 70.
(6) The Apollo, 1 Hagg. 306; Strelly v. Winson, 1 Vern. 297;
Anon. 2 Ca. Ch. 36.
(c) The Apollo, supra.
When a loss has happened, application may be made by the minority to have the bond declared forfeited. But the Court will not always wait until an actual loss has been proved. It will sometimes declare the bond to be forfeited if the vessel does not return within a certain time; and if the vessel returns within that time, will dismiss the cited parties from the effect of the monition (a).
In practice, the bond is frequently, perhaps generally, conditioned for the return of the vessel to a particular port. The form, however, as given in Abbott (6), omits the mention of any particular port, and merely speaks of the return; and Sir Christopher Robinson expressed a doubt whether all bonds of this nature should not be limited to that extent.
« When a vessel,” he said, “is within the protection of the country to which she belongs, she is in her general home, and the parties are restored, as to any legal remedies, to the situation in which they stood before the departure of the vessel.” In the case which gave rise to this remark, it appeared that a vessel which had been bound to return to a particular port, being damaged by storms, was carried to another port in Great Britain, and there arrested in suits of salvage and wages; but the Court held, that while the vessel was within the jurisdiction of the Court, safe and unsold, an application to have the bond forfeited was premature (c).
When a bond is required and taken under the circumstances which we have mentioned, the dissentient partowners bear no portion of the expenses of the outfit, and are not entitled to a share in the profits of the undertaking; but the ship sails wholly at the charge and risk, and for the profit of the others (d). It may happen that the dissentient partowners forbear to take these steps in the Court of Admiralty; but, in such case, they should expressly notify their dissent to the others, and if possible to the merchants also who freight the ship; for although it may
be doubtful whether the Court of Chancery would give relief to a partowner in respect of the loss of a ship sent, to sea without his assent, yet, if a partowner expressly notify his dissent, that Court will not compel him to contribute to a loss (e).
(a) The Anne, and The Waterhen,
(6) Page 496. (Ed. Shee, p. 606).
(d) Abbott, 71; and see Knight v. Parry, 1 Show. 12; Davis v. Johnston, 4 Sim. 539.
(e) Horn v. Gilpin, Ambl. 255.