페이지 이미지
PDF

administering the government of such places respectively:— At any place so approved as aforesaid within the limits of the charter, but not under the government of the East India Company, and at which no custom-house is established,—the collector of duties, the Governor, Lieutenant-Governor, or other person, administering the government:—At the ports of Calcutta, Madras, and Bombay,—the Master-Attendants, and at any other port or place so approved within the limits of the charter, and under the government of the East India Company,1 the collector of duties, or any other persons of six years' standing in the civil service of the said Company, who is appointed by any of the governments of the said Company to act for that purpose:—At every other port or place so approved within her Majesty's dominions abroad,—the collector, comptroller, or other principal officer of Customs, or of Navigation Laws, or if there is no such officer resident at such port or place, the Governor, Lieutenant-Governor, or other person administering the government of the possession in which such port or place is situate.

The Governor, Lieutenant-Governor, or other person administering the government in any British possession, are to be considered in all respects as occupying the place of the Commissioners of Customs, for the purposes of the registry of any ship or interest therein; and any British consular officer is empowered to take declarations when there is no justice of the peace in the place.'

Officers to enforce The officers who may lawfully board any merchant ship a ioriuture. carrying colours usually worn by Her Majesty's ships, or resembling these, or seize and detain any ship which has either wholly, or as to any share therein, become subject to forfeiture, and bring her for adjudication before the proper court, comprise any commissioned officer on full pay in the military or naval service of Her Majesty, or any British officer of customs, or any British consular officer.3

1 The Merchant Shipping Act, 1854 Vict. c. 56, and by Act X. of 1841,

(§ 108), does not extend to ships passed in pursuance thereof by the

"built and trading within the limits of Governor-General in council,
the East India Company's Charter," 2 17 & 18 Vict. c. 104, § 31.
which are still regulated by the 3 & 4 1 Ibid. § 52, 103, 105.

No registrar is liable for any loss accruing by reason of any Exemption from act done, or default, made by him as registrar, unless the same re8pom"bllityhappens through his neglect or wilful act.1

No officer who may lawfully seize and detain a ship subject to forfeiture, is responsible civilly or criminally for any seizure or detention, although such ship is not brought in for adjudication, or being brought in, is declared not to be liable to forfeiture, if it appears to the satisfaction of the judge or court, before whom any trial relating to such ship, seizure or detention may be, that there were reasonable grounds for the same; but if otherwise, such judge or court may award payment of costs and damages, and make such other order in the case as they think just.'

In the course of these observations, with regard to the Consequence of principles and machinery of the register, there has been registering!*DOt occasion oftener than once, to state that under certain circumstances a ship not complying with the law will cease to be recognised as a British ship. The consequence would be, that the ship and her owners are thereby deprived of any benefits, privileges, advantages, or protection, usually enjoyed by British ships and their owners; and of any right to use the British flag, or to assume the British national character.1 On the other hand, such ship, while so deprived of these advantages, may yet be dealt with as if she were a recognised British ship, in respect of payment of dues, liability to pains and penalties, and the punishment of offences committed on board, or by persons belonging to her.4

For the purposes of evidence in any proceedings before a court of justice, or any person having authority by law or consent of the parties to receive evidence, any register or declaration made in pursuance of the Second • Part of the Merchant Shipping Act, sec. 17—108,5 may be proved by

1 1* ft 18 Vict. c. 104, § 93. the chief Registrar of Shipping, at

! Ibid. § 104. the Custom House, London, or by the

1 Hid. 1108, 516. Registrar-General of Seamen in Lon

'Ibid. § 106. don, is to be of the same effect, to all

1 By the 18 & 19 Vict. c. 91, § 15, intents and purposes, as the original

transcript or copy of the register register. My British ship which is kept by

DOCUMENTS AS
EVIDENCE.

production of the original or an examined copy, or a copy purporting to be certified under the hand of the registrar, or other person having the charge of the original.1

Every such register or copy thereof, and also every certificate of registry of any British ship, if such register or copy, or such certificate, purport to he signed by the registrar, or other proper officer,' is prima facie proof of all the matters contained or recited in such register, and of all the matters contained in, or indorsed on, such certificate of registry, respectively.'

This is in terms a re-enactment of the provision contained in the General Evidence Act respecting the register and certificate of registry under any of the Acts relating to the registry of British shipping.4

[merged small][ocr errors]

CHAPTER III.

THE OWNERS.

Legal Ealation between them
Mutual Eights

as to employment of Ship
profits thereof
Obligations to Third Persons
as Partners .
Principals .

87 88 88 97 101 101 103

Extent of their Liability . .105

at Common Law . . . 106

by Foreign Law . . 106

under Merchant Shipping

Act . . . . 109

Legal Proceedings . . .114

BETWEEN PART-
OWNERS.

When the shares of a ship are vested in a plurality of Lecui Relation owners, it becomes indispensable, for the adjustment of their rights and liabilities, to ascertain the legal relation which they have formed with each other in respect of the common subject of their property. There is nothing in the property which they hold to distinguish it in point of law from any other personal chattel. If part-owners hold in severalty distinct shares in a ship, with an undivided interest in the whole, they are tenants in common with each other of their respective shares; but if a ship, or shares therein, are vested in several persons jointly with unity of title and no distinction of interest, they are joint-tenants of the property so held. Lord Hardwicke, however, confounding two tilings which differ, the estate of the owners in the ship with the profitable use of the ship by the owners, was of opinion, that part-owners must be partners, and therefore held them liable each in solido for all goods supplied and work done to the ship;1 but the case was overruled oftener

'Doddington v. Hallett, 1 Ves. sen. 4&7. The reasoning attributed to bis Iwdshipis remarkable: "It must be admitted," he says, "the ship maybe th* subject of partnership as well as anything else, the use and earnings

thereof being the proper subject of
trade, and the letting a ship to freight
as much a trade as any other. Then it
appears plainly to be a partnership
among them, and the ship itself to be
part of the subject thereof, which was to

than once by Lord Eldon,1 and the opinion, though recently revived with the seeming sanction of Mr. Abbott's authority has never been received as law in the courts of this country." In the United States, however, the authority of this case has been admitted in very recent times before the highest legal tribunals, and the principle on which it proceeds is at this day the received law of several of the States ;4 a thing less to be wondered at, considering the general disposition throughout that country to adopt the doctrine of the civil law with regard to lien, noticed in a previous page.5

THEIR MUTUAL
RIOHTS ASD
OBLIGATIONS.

As to the Employment of the Ship.

We propose to consider the rights and obligations of the several owners of the same ship, first in relation to each other, and secondly in relation to strangers.

The first difficulty to be dealt with, arises on the first difference among the several owners about the employment of the ship. A personal chattel, vested in several proprietors, may

be let to freight to the Company, it being their method of trading. The foundation of this partnership stock is the ship itself, which must be employed, and the earnings and profits to arise. Undoubtedly all those persons subject to this agreement" [the agreement of partnership which his lordship thought the law would imply from the circumstance of their being part-owners and letting the ship to freight] "are liable in solido to the tradesmen who fitted it out, and this agreement for proportional shares is as between themselves, it is the case of all partnerships; but as to all persons furnishing goods or merchandise, or employed in work, they are each liable in solido." Ibid. See Green v. Briggs, 6 Hare, 395.

1 Ex park, Harrison, 2 Rose, 76; ex parte, Young, 2 V. & B. 242; 2 Rose, 78 n. S. C. ; Green v. Briggs, 6 Hare, 395.

* Brodie v. Howard, 17 C. B. 109. The passage from Mr. Abbott relied on in that ease, and to be found in the 4th ed. is this: "With regard to the repairs of a s'lip, and other necessaries for the employment of it, one part-owner

may, in general, by ordering these things on credit, render his companions liable to be sued for the price of them." This can only be maintained upon the assumption, that the part-owners are agents, one of another, as in the case of a partnership, an assumption not supported by the authority cited in Abbott CWright v. Hunter, 1 East. 20), or by a case of any authority in Westminster Hall since Doddington r. Hallett, supra.

3 See cx parte, Harrison, 2 Rose, 76; ex parte, Young, 2 V. & B. 242 ; 2 Rose, 78n. S.C.; Helmer. Smith, 7 Bing. 709; Brodie v. Howard, 17 C. B. 109; and see Mitcheson v. Oliver, 5 E. & B. 419.

* Nicoll v. Mumford (in error, overruling Chancellor Kent, who bad decided in accordance with the authority of Ex parte Young, 2 Rose, 78 n.), 20 Johns. N. Y. Rep. 611; Hewitt v. Sturdevant, 4 B. Monroe, Ky. Rep. 458, 459 ; Lamb v. Durant, 12 Mass. Rep. 54 ; 3 Kent's Comm. 40, 155.

6 See a statement of the doctrine of the civil law, and of the principles adopted in the United States, ante, p. 58, 59, and notes.

« 이전계속 »