which might be created by the mere agreement of the parties, or by implication of law, or by judicial decree,' he did that which has left the deepest traces on the maritime law of modern nations. But whilst those commercial countries of modern Europe, which have founded their jurisprudence on the civil law, are obliged by regard for commercial credit and confidence to restrain the facilities of hypothecating property in general, thereby deviating from the genius of their common law; they have for the most part recognised an implied lien on ships for the supply of necessaries or execution of repairs; and continue to enforce it, notwithstanding the absence of any written contract between the parties, and of any possession of the ship by the claimant." 1 Pothier, ubi supra; and see 2 Bell's Com. 3rd ed. No. 1290, 1291. 2 Among these nations modern commerce had rendered it impossible to maintain the Roman law as to conventional hypothec, whereby the moveable or immoveable property might be bound, pro quacunque obligatione, by the mere agreement of the parties (Dig. 20, t. 1). It became necessary to enact that there should be no valid hypothecation of immoveable property, except by solemn instrument duly enrolled in the public register; and as to moveables, or personal property, if hypothecation thereof be possible, the judicial tribunals have now long held, that the goods cannot be followed by the claimant into the hands of a bond fide purchaser; Pothier, de l'Hypothèque, c. 1, sec. 2, art. 1; Code Civ. art. 2119, 2279; Rodriguez, de Concursu et Priv. Cred. (p. 2, art. 1, 70); Emerigon, des Contrats à la Grosse, e. 2, §1; Van Leeuwen, Censura Forens. p. 1, lib. 4, c. 9, §7; 1 Bell's Comm. bk. 1, p. 2, c. 16. As to the ancient French law, see post, c. xii. Stoppage in Transitu; and post, p. 61, n. 9. Dig. 42. 5. 26. Qui in navem extruendam, vel instruendam, credidit, vel etiam emendam, privilegium habet. Id. fr. 34.; Quod quis navis fabricandæ, velemendæ, vel'armandæ, vel instruendæ causá, vel quoquo modo crediderit, vel ob navem venditam petat, habet pri vilegium post fiscum. See also Dig. 20. 4, fr. 5 & 6; Novell. 97, c. 3; Domat, Loix Civiles, liv. 3, t. 1, § 5; Vinnius in Peckium, 99, 233; per Lord Stowell, The Alexander, Tate, 1 Dods. Ad. 278, 280; per Dr. Lushington, The Vibilia, Richardson, 1,W. Rob. Ad. 1, 13. There is a remarkable leaning in the legislation and jurisprudence of the United States towards the principles of the civil law, which must have been observable upon other questions, but on this question of lien it is especially noticeable. The editor of the recent edition of Chancellor Kent's Commentaries (1858) says (vol. ii. 635, note) :"The statute laws of the States generally give a lien to mechanics and others on buildings for labour bestowed and materials furnished in the erection of them, as well as a remedy personally against the owner who employed them. This is the case in Maine, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, Kentucky, Mississippi, TenSouth Carolina, Alabama, Louisiana, Missouri, Michigan, &c. In Ohio the purchaser of a steamboat, with notice of a debt created on account of it by the original owner, takes the boat subject to such debt. Steamboat Waverley v. Clements, 14 Ohio R. 28." He adds, in a further note, to this :-"The legislation of the several States exhibits a progressive inclination to nessee, By the English In England, the judge and practitioners of the Admiralty Court, familiar with the Justinian law, favoured the same doctrine; and, from a desire to establish it within their peculiar province, entered with that purpose into an obstinate contest with the courts of Westminster Hall; and not until after many years, and many prohibitions, and an unexampled struggle, was it finally determined against them by the courts of Common Law, and by the highest judicature of the country, the House of Lords, in the reign of Charles the Second.' The English Admiralty, however, still entertains questions of maritime lien, in connection with seamen's wages, pilotage, towage, salvage, and collision, and furnishes the suitor with a ready remedy against the ship itself,-claims of that descrip extend the right of lien, for the security 1 Per Lord Stowell, The Zodiac, Scott, Lord Mansfield, however, is reported to have said generally, in Rich v. Coe, Cowp. 636, and also in Farmer v. Davis, 1 T. R. 109, that a person who supplies a ship with necessaries has not only the personal security of the master and owners, but also the security of the ship. Against this opinion, in addition to the above authorities, see Westerdell v. Dale, 7 T. R. 306, 312; Hoare v. Clement, 2 Show. 338; Hussey v. Christie, 9 East, 426; 13 Ves. 549, S.C.; Buxton v. Snee, 1 Ves. 154; Ex parte Shank, 1 Atk. 234; Wilkins v. Carmichael, 3 Doug. 101; and in a case appealed from Scotland to the House of Lords, Wood and others v. Hamilton, Dom. Proc. 15 June, 1789. Notwithstanding this result, the English Court of Admiralty, in case a sale of the ship had taken place by order of the court on a proper claim, was in the habit of admitting claims for repairs and necessaries, in the absence of bottomry bonds, to rank against the proceeds in the registry, and this notwithstanding prohibitions had been obtained on original suits instituted by these very persons; The John, Jackson, 3 C. Rob. Ad. 288; but that practice has been put an end to by the decision of the Privy Council in The Neptune, 3 Knapp, 94. 2 The Dowthorpe, Lofty, 2 W. Rob. tion being by the maritime law in the nature of an incumbrance on the vessel, not defeasible within a reasonable time by a mere change of ownership.' It is the interest therefore of every purchaser of a ship or shares therein to bear in mind that the property which he is paying for may be subject to incumbrances of this nature, in addition to those appearing on the register, and to take a covenant of indemnity from the vendor against all such claims." The law of France in this particular, differing materially By the Law of from the law of this country, is less favourable to the transfer France. of property, although made without fraud. By the French 4 6 ordinance, reproduced almost in terms by the Code de Commerce, all ships remain subject to the debts of the seller," until they have made a voyage at sea, under the name and at the risk of the new purchaser, unless they have been sold under decree of a court of justice.' The sale of a ship at sea works no prejudice to the creditors of the seller. Valin, in his commentary on that part of the ordinance, says that the debts there meant are debts of every description due at the time of the sale; and the Code de Commerce adds,-spécialement 73, 79; Harmer v. Bell (The Bold Buccleugh), 7 Moore, P.C. 267, disapproving of the dictum to the contrary in The Volant, 1 W. Rob. Ad. 387. 1 Ibid. 2 3 The Nymph, 1 Swabey Ad. 86. Ordonnance, 1681, liv. 2, t. 10. * Code de Com. liv. 2, t. 1. In Ohio, U.S., the purchaser of a steamboat, with notice of a debt created on account of it by the original owner, takes the boat subject to such debt, Steamboat Waverley v. Clements, 14 Ohio R. 28; 2 Kent Com. 635; and see ante, p. 59, n. 3. Code de Com. art. 194. Un navire est censé avoir fait un voyage en mer, -lorsque son départ, et son arrivée auront été constatés dans deux ports différents et trente jours après le départ; -lorsque sans être arrivé dans un autre port, il s'est écoulé plus de soixante jours entre le départ et le rétour dans le même port,-ou lorsque le navire, parti pour un voyage de long cours, a 7 When the requisite formalities are 8 Code de Com. art. 196. 9 He also states (Comment. vol. i. cated; HOW FORFEITED. By disqualified owner of a à celles que la loi déclare privilégiées,' specifying in the article that follows eleven classes of debts to which the law accords this precedence. We shall see in the following chapter with what jealous care the national character of British shipping is ascertained, and the protection and privileges of the British flag are guarded continually against imposition. It belongs to this part of the subject to state here how, through wilful breach of the law relating to that national character and flag, both foreigners and British subjects may forfeit to the Crown the property in ships rightfully acquired by them in one or other of the modes already described in this chapter. As a person not qualified within the statute to hold proregistered ship. perty in a British ship, may succeed in the event of death or marriage to a title to such property, it is provided that application may be made on his behalf within a limited time to the Court of Chancery, or other supreme court of civil jurisdiction within the country, for an order to sell the ship or shares, and if application is not made within the time, or if the court refuse to make the order, the property thus transmitted is possession is presumptive evidence of civil law; for, as Voet remarks, jure quidem civili illis, qui crediderant in navem extruendam, instruendam emendamve, nulla hypotheca per legem concessa fuerat, sed tantum privilegium inter chirographarios. Voetius ad Pandectas, lib. xx. t. 2, § 29. 1 Code de Com. art. 190, et seq. The word privilege, as used in this connection and sense, belongs peculiarly to the civil law, and is so far removed from the meaning attached to it in the English language, that, notwithstanding Mr. Abbott's example to the contrary, I have avoided the use of it, lest it should appear to some as the mere slang of a profession. It is thus explained by the Code Civile, art. 2095: Le privilége est un droit que la qualité de la créance donne à un créancier d'être préférer aux autres créanciers, même hypothécaires. 2 17 & 18 Vict. c. 104, § 18. forfeited to the Crown.' If a person thus disqualified, in any other way acquires, as owner, any interest, legal or beneficial, in a ship using a British flag, or assuming the British character; or if, in order to the holding of such property, a false declaration of qualification is wilfully made, for the person making it, or for another and with his authority,' such interest is forfeited. If any one uses the British flag, or assumes the British character, on board a ship owned in whole or in part by persons disqualified to own British ships, for the purpose of making such ship appear to be a British ship, unless it be also for the purpose of escaping capture by an enemy, or by a foreign ship of war exercising a belligerent right, the ship is forfeited. And in proceedings to have the forfeiture declared, the onus of proving the title to such use and assumption is cast on the person making it. This is a forfeiture which may involve the property of British subjects, who are therefore bound by regard to their own interests to see that no part-owner of the same ship with themselves is a person disqualified to own a British ship." If the master or owner of any ship, including therefore both British and foreign vessels, uses or attempts to use for the navigation of the ship a certificate of registry not legally granted in respect of such ship, he is guilty of a misdemeanour, and the ship, with her tackle, apparel, and furniture, is forfeited. law. There are three offences against the policy and express By offences provisions of the British ship-registry law, through one or and provisions against the policy other of which a British vessel may be forfeited,-the intent to of the registryconceal her British character from any person entitled' by British law to inquire into the same; the intent to assume a foreign character; and the intent to deceive any person entitled by British law to inquire into her national character whilst making such inquiry and in respect thereof. If any master or 17 & 18 Vict. c. 104, §§ 62, 63, 64. : Ibid. § 103 no. 3. Ibid. § 103 no. 4, § 38; besides being a misdemeanour in him who makes or procures, or uses it, 17 & 18 Vict. c. 91, 89. 4 17 & 18 Vict. c. 104, § 103 no. 1, See the declaration of ownership required, § 38. 6 Ibid. c. 104, § 52. 7 As to such officers, see 17 & 18 Vict. c. 104. $$ 19, 52, 102, 103, 105. |