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this general rule. Yet the custom of owners, in dealing with ship property, to commit their transactions to the evidence of written documents, comes down to our own day from an age so distant, that judges have declined to give an opinion whether a transfer of such property without writing would be valid at common law.1 It seems to he a fact common to all the maritime nations of Europe, that with the growth of intelligence and education, sprang up a desire to create written muniments of title with regard to all those kinds of property, snch as land and ships, of which the owner could not always conveniently have, and give manual possession, and to displace the rude symbolical modes of transfer, that had sufficed for the simplicity of early times, by others better adapted to the use of letters inherited by our own day. The spirit and the result of this great change as it affects Europe, and the obligation with regard to it which is now imposed on the subjects of the British Crown, have been stated by the greatest authority that has yet appeared on these questions. Lord Stowell says,— "According to the ideas which I have always entertained on this question, a bill of sale is the proper title to which the maritime courts of all countries would look. It is the universal instrument of transfer of ships in the usage of all maritime countries; and in no degree a peculiar title deed or conveyance known only to the law of England; it is what the maritime law expects, what the Court of Admiralty would in its ordinary practice always require, and what the legislature of this country has now made absolutely necessary, with regard to British subjects by the regulations of the statute law." *
Bills of sale are known to this country under a distinction of name. The grand bill of sale is the original conveyance Bill of Sale, from the builder to the purchaser. The bill of sale is the ordinary instrument of transfer from one purchaser to another.
The usual contents of this document consist of a statement Content*.
1 Rolleston v. Hibbert, 3 T. R. 406, Q. B. 899.
412; The Sisters, 5 C. Rob. Ad. 155. 2 The Sisters, 5 C. Rob. Ad. 155,
Bat the Court of Queen's Bench were, of 159; The Copenhagen, Mening, 1 C.
opinion that a vessel not required to be R<ib. Ad. 289; per Dr. Lushington,
registered, might, although registered, The Eliza Cornish, 17 Jur. 738, 739;
nevertheless be transferred without a 1 Ecc. & Ad. Rep. 36 S. C. bill of sale, Benyon v. Cresswell, 8
of parties, the consideration money for the transfer, and receipt thereof; a description of the ship, specification of the property therein to pass between the parties, and transfer thereof to the purchaser; with covenants for title and against incumbrances.
The transfer of a registered ship,1 or share therein when disposed of to persons qualified to be owners of a British ship, must be by bill of sale, in the form prescribed by the Act, or as near thereto as circumstances permit.' When the transfer is to persons not qualified to be owners of a British ship, under the authority of a certificate of sale, a bill of sale seems to be the only effectual instrument of transfer, being a necessary part of the evidence to be produced to the registrar." And irrespective of the registry laws altogether, a bill of sale appears to be that evidence of ownership which is expected in the maritime courts of all nations.4
In form, this document when used for the purpose of transferring a registered ship, or share therein, to a person qualified to be the owner of a British ship, is required to contain the description of the vessel given in the surveyor's certificate, or such other description as may be suflicient to identify her to the satisfaction of the registrar; to be, in other respects, in accordance with the form issued in, or in pursuance of, the Merchant Shipping Act, or as nearly so as circumstances permit;5 and be attested by one or more witnesses in whose presence it has been executed by the transferor.6 If the instrument be in any other form, or con tain other particulars, no registrar shall be required to record
1 "Ship" shall include every description of vessel used in navigation not propelled by oars, 17 & 18 Vict, c. 104, § 2 ; but see the two classes of vessels not required to be registered, § 19, no. 2, 3. And post Chap. II.
* 17 * 18 Vict. c. 104, § 55. The same option is not now permitted as by the previous statutes, 3 & 4 Will. 4, c. 55; 8 & 9 Vict. c. 89, where it is, '' by bill of sale, or other instrument in writing." See infra, note
» 17 ft 18 Vict. c. 104, § 81, No. 10. It is observable that no similar provision to this is to be met with in regard to a
ship sold to a foreigner at the port of registry. See § 53.
* Per Lord Stowell, The Sisters, 5 C. Bob. Ad. 155, 159; The Copenhagen, Mening, 1 C. Rob. Ad. 289; per Dr. Lushington, The Eliza, Cornish, 17 Jur. 738, 739; 1 Eco. ft Ad. Rep. 36, S. C.
5 Another form has been issued by the Commissioners of Customs, under the sanction of the Board of Trade, which appears to be preferable to that in 'the schedule of the Act. See the Appendix, post, Mcrch. Ship. Act. Form E 2.
« 17 & 18 Vict. c. 104, § 6, 8, 55.
the same without the express directions of Her Majesty's Customs.1
Identification of the ship that is the subject of transfer, is a Considered with condition of validity in the bill of sale; and identification of 2?IJjLJj!lts the subject of transfer with the ship described on the register, is a condition of registration. If the vessel is not yet on the register, care should be taken so to describe her that the identity of the vessel in the grand bill of sale with that in the declaration of ownership and the surveyor's certificate, may satisfactorily appear. If she is already on the register, her identity being with much care and difficulty ascertained by measurement, description, name and number, it is hazardous to deviate from the description contained in the surveyor's certificate, notwithstanding that such other description as identifies the vessel to the satisfaction of the registrar is allowed by the Act.' Apart from its effect under the statute as a conveyance, this instrument is, for the registrar, the legal evidence that ascertains the property and proves the transfer; and that officer is protected in his refusal to register any instrument not statutory in form and particulars, unless expressly directed by the Commissioners of Customs to record it.
For that reason the statement of parties must, in respect of the transferor, coincide with the contents of the register. But apart from the evidence of identity in respect of owners, the effect of the instrument depends on the recorded owner being a party, as in him alone vests the power of absolutely disposing of the shares.' Moreover, the object of the legislature, being to preserve the simplicity of transfer, and the individuality of this power, whether the ownership be in a single person, or several persons jointly, requires the omission of any description of the transferees in the bill of sale e.g. as "trustees, partners, or copartners," which would complicate the register with new relations. The registration, therefore, of any instrument concontaining such particulars, is prohibited by statute, unless, in the particular case, this be directed by the Commissioners of Customs.4
1 18 & 19 Vict. c. 91, S 11. 4 18 & 19 Vict. c. 91, § 11. The
: Ibid. 17 & 18 Vict. c. 104, § 65. registrar is not to record it, even 1 17 * 18 Vict. c. 104, § 43. although the parties substitute in the
Objections to this
In the bill of sale issued in blank form by the Commissioners since the passing of the statute, the description of property is not merely "shares in the ship above described," but it proceeds, "and in her boats, guns, ammunition, small arms, and appurtenances," being for the purchaser of an entire ship a more advantageous account of his bargain. Still, for anything that would not pass under these words, ballast for instance, or kentledge in the ship at the time, he cannot make good his claim under this bill of sale, for want of its being expressly named.1 Eepresentations on which the bargain was closed, although amounting to a warranty, are by this form excluded from the written contract, and yet the adoption of the form is compulsory. Ballast, and the like, which is no part of the ship, may be transferred by a separate instrument; but representations respecting the ship itself must appear in the final contract of purchase in order to be available as a ground of action against the vendor.*
The authorised form closes with covenants by the transferor for power to transfer, and against incumbrances (other than those that appear on the register).
The execution of the bill of sale, under hand and seal, must be in the presence of the person or persons who attest it, and mere acknowledgment of the signature and seal before the witness will not suffice.1 One witness to the execution is enough; and for the purpose of proving the instrument, even he need not be called, if there is any other person able to bear witness to the requisite facts.4 In that case, proof of the attesting witness's hand-writing, or of one of them, accompanied by some evidence of the identity of the transferor with the person in question will be enough."
The statutory bill of sale does not require a stamp.'
game instrument the words "joint-
1 Kinter's case, Leon, 46; Lano v.
2 Pickering v. Dowson, 4 Taunt. 779. Sec ante, p. 15.
s 17 & 18 Vict. c. 104, § 55, differing from the Wills Act, 7 Will. 4, & 1 Vict. c. 26, § 9, where the words are, "acknowledged or made."
4 17 & 18 Vict. c. 104, § 526, applying to any document required by that Act to be executed in the presence of, or to be attested by any witness or witnesses.
5 Adam v. Kerr, 1 B. 4 P. 360; Nelson v. WhittalL 1 B. & Aid. 19; Doe v. Paul, 3 C. & P. 613.
6 17 & 18 Vict. c. 104, § 9.
Any alteration of this instrument, after it has been executed, Subsequent in a material part, without the consent of all the parties to it, renders it void,1 notwithstanding the absence of fraudulent intention.' But if the alteration be of an immaterial part,' unless made by the party that owneth the bill of sale,' or if it be to correct a mistake, so as to make the instrument express the original intention of the parties,5 or, being of a material part, is made with the consent of all, the instrument is not vitiated thereby."
This instrument, when duly executed and delivered, is to be Registration of produced to the registrar of the port at which the ship is BulofSaleregistered, for the purpose of being recorded.' The discharge of this public duty is secured by the private interest of the transferee in the registration; the statute, till that is accomplished, recognising an absolute disposing power as being still in the transferor.8 Elsewhere, the statute, distrusting the absence of interest, provides for the performance of a similar duty by enacting that an unqualified transferee, under a certificate of sale, shall be considered by British law as having acquired no title to, or interest in, the ship until the bill of sale and certificates are produced to the officer acting as registrar."
Being produced to the registrar, he is required to record it in the register-book, if it be proper in form, duly executed, and correspondent with the state of the register-book at the time; and then to indorse upon it the fact of such entry having been made, with the date and hour thereof." A refusal on the part of the registrar may be the subject of appeal to the Commissioners of Customs. The order of entries in the register is to be the order in which instruments are produced.10 The consequence is, that a bill of sale executed by A. to C. on the 28th of March, 1860, being already registered, another bill of
1 Davidson v. Cooper (in error'), 13 4 Pigot's case, 11 Co. 27; Com. SLiW. 343 ; Master v. Miller, 4 T. B. Dig. Fait, F 1.
820; (in error) 2 H. Bl. 141, S. C.; 4 Kershaw v. Cox, 3 Esp. 426. See Pigot's case, 11 Co. 27; 1 Shep. Bluck v. Gompertz, 7 Exch. 862. Tosehst. 68. 6 2 Lev. 35; Davidson v. Cooper,
: 1 Shepherd's Touchst. 68. mpra.
'Pigot's case, 11 Co. 27 a; 1 Shep. » 17 & 18 Vict. c. 104, § 57. Tonchst. 68, 69; See Sanderson v. 8 Ibid. § 43. Sjroonds, 1 B. & B. 426. » Ibid. § 81.
10 Ibid. § 67.