(2.) Bills of sale of a ship or of a share therein shall be entered in the register book in the order of their production to the registrar.

The duty to register a transfer rests with the vendee, and, apart from registration, the execution of the bill of sale (see s. 24) entirely divests the title of the vendor. The Spirit of the Ocean (1865), 34 L. J. Ad. 74; 12 L. T. 239. See also Stapleton v. Haymen (1864), 33 L. J. Ex. 170; 2 H. & C. 918, where the assignee in bankruptcy of the vendor was held not entitled to retake possession from the vendee, who, being an infant, had been refused registration as owner. See also Watson v. Duncan (1879), 6 Crt. of Sess. Cas. (4th Ser.) 1247. Cf. The Two Ellens (note to s. 37).

As to the enforcement of an agreement to transfer which is neither a bill of sale nor registered, see Batthyany v. Bouch, cited under s. 24.

As to the effect of registration under a "certificate of sale," where the bill of sale is apparently valid, but in fact ultra vires and void, see Orr v. Dickinson, infra (s. 44).

As to the power of the Court to correct a mistake in the register, and generally as to the enforcement of equities by or against the registered owner, see 8. 57 and cases there cited.

As to fees on transfers, see M. S. (Mercantile Marine Fund) Act, 1898, s. 3, and Sched. I., post, p. 460, and note to Sched. I.

Pt. I.

27.

27.-(1.) Where the property in a registered ship or share Transmission therein is transmitted to a person qualified to own a British of property in ship on death, ship on the marriage, death, or bankruptcy of any registered bankruptcy, owner, or by any lawful means other than by a transfer under marriage, &c. this Act (a) :

(a.) That person shall authenticate the transmission by making and signing a declaration (in this Act called a declaration of transmission) identifying the ship and containing the several statements herein before required to be contained in a declaration of transfer, or as near thereto as circumstances admit, and also a statement of the manner in which and the person to whom the property has been transmitted.

(b.) If the transmission takes place by virtue of marriage, the declaration shall be accompanied by a copy of the register of the marriage or other legal evidence of the celebration thereof, and shall declare the identity of the female owner.

(c.) If the transmission is consequent on bankruptcy, the declaration of transmission shall be accompanied by such evidence as is for the time being receivable in courts of justice as proof of the title of persons claiming under a bankruptcy.

(d.) If the transmission is consequent on death, the declaration of transmission shall be accompanied by the instrument of representation, or an official extract therefrom (b).

(2.) The registrar, on receipt of the declaration of transmission so accompanied, shall enter in the register book the name of the person entitled under the transmission as owner of the ship

[1854, ss. 58

60.]

Pt. I. 28.

Order for sale

on transmis

sion to unqualified person.

[1854, ss. 62, 64; 24 & 25 Vict. c. 10,

8. 12; 30 & 31 Vict. c. 114,

s. 35; J. A.; J. I. A.]

or share the property in which has been transmitted, and, where there is more than one such person, shall enter the names of all those persons, but those persons, however numerous, shall, for the purpose of the provision of this Act with respect to the number of persons entitled to be registered as owners, be considered as one person.

As to fees on transmission, see M. S. (Mercantile Marine Fund) Act, 1898, 8. 3, and Schedule I., post, p. 460.

See note to s. 25 for powers of the registrar.

(a)" Or by any lawful means other than," &c.-These words comprehend only transmissions by operation of law unconnected with any direct act of the party to whom the property is transmitted. Hence, a transmission to a purchaser at a sale by licitation by order of a court is not such a transmission, and the registrar was held to be right in refusing to register such a purchaser in the absence of a conveyance by bill of sale. Chasteauneuf v. Capeyron (1882), 51 L. J. P. C. 37; 7 App. Cas. 127, 134. The difficulty arising in such a case appears, however, to be now met by the extension of the powers given by s. 29: see note (a) thereto.

(b) For definition of "representation," see s. 742.

28. (1.) Where the property in a registered ship or share therein is transmitted on marriage, death, bankruptcy, or otherwise (a) to a person not qualified to own a British ship, then

if the ship is registered in England or Ireland, the High Court (b); or

if the ship is registered in Scotland, the Court of Session; or if the ship is registered in any British possession, the court having the principal civil jurisdiction in that possession;

or

if the ship is registered in a port of registry established by Order in Council under this Act (c), the British court having the principal civil jurisdiction there;

may on application by or on behalf of the unqualified person, order a sale (d) of the property so transmitted, and direct that the proceeds of the sale, after deducting the expenses thereof, be paid to the person entitled under such transmission or otherwise as the court direct.

(2.) The court may require any evidence in support of the application they think requisite, and may make the order on any terms and conditions they think just, or may refuse to make the order, and generally may act in the case as the justice of the case requires.

(3.) Every such application for sale must be made within four weeks after the occurrence of the event on which the transmission has taken place, or within such further time (not exceeding in the whole one year from the date of the occurrence) as the court allow (e).

(4.) If such an application is not made within the time aforesaid, or if the court refuse an order for sale, the ship or

share transmitted shall thereupon be subject to forfeiture under this Act (ƒ).

(a) Cf. note (a) to s. 27.

(6) For procedure in England, see Rule 1 of R. S. C. (Merchant Shipping) 1894, Appendix, post, p. 763.

(c) As to foreign ports of registry, see s. 88.

(d) I.e., a sale generally or a particular sale if preferable. Re The Santon (1878), 26 W. R. 810.

(c) See case last cited.

(f) For an instance of forfeiture on failure of application in a case of transmission of a share to an alien, see The Millicent, W. N. (1891) p. 162. As to time of forfeiture, cf. note (c) to s. 70.

Pt. I. 29-30.

by order of

29. Where any court, whether under the preceding sections Transfer of of this Act or otherwise (a), order the sale of any ship or share ship or sale therein, the order of the court shall contain a declaration vesting court. in some person named by the court the right to transfer that [1854, s. 63.] ship or share, and that person shall thereupon be entitled to transfer the ship or share in the same manner and to the same extent as if he were the registered owner thereof; and every registrar shall obey the requisition of the person so named in respect of any such transfer to the same extent as if such were the registered owner.

person

(a) "Any court, whether . . . otherwise." The corresponding words of the repealed section were "such court as aforesaid." The removal of the limitation appears to meet the difficulty which arose in Chasteauneuf v. Capeyron, supra (8.27).

30. Each of the following courts, namely:—

(a.) in England or Ireland the High Court (a), (b.) in Scotland the Court of Session,

Power of court to prohibit transfer.

[1851, 8. 65;

(c.) in any British possession the court having the principal 24 & 25 Vict. civil jurisdiction in that possession; and

(d.) in the case of a port of registry established by Order in

c. 10, s. 12; 30 & 31 Vict. c. 114, s. 35;

Council under this Act (), the British court having J. A.; J. I. A.] the principal civil jurisdiction there,

may, if the court think fit (without prejudice to the exercise of any other power of the court), on the application of any interested person (c) make an order prohibiting for a time specified any dealing with a ship or any share therein, and the court may make the order on any terms or conditions they think just, or may refuse to make the order, or may discharge the order when made, with or without costs, and generally may act in the case as the justice of the case requires (d); and every registrar, without being made a party to the proceeding, shall on being served with the order or an official copy thereof obey the same.

(a) For procedure in England, see Rules 1, 2, of R. S. C. (Merchant Shipping) 1894, Appendix, post, p. 763.

(b) See s. 88 for establishment of such ports.

T.

C

(c) The section (1854, s. 65) has been treated as applying generally and not merely to the cases of transmission referred to in its former context and now in ss. 27, 28; see Re Ship Isis (1868), 3 M. L. C. (O. S.) 52; The Horlock (1877), 47 L. J. Ad. 5; 2 P. D. 243. For decisions to the contrary, see the Scotch cases, Roy v. Hamiltons (1867), 5 Ct. of Sess. Cas. (3rd Ser.) 573; McPhail v. Hamilton (1878), 5 ib. (4th Ser.) 1017.

(d) For instances of such orders, see Nicholas v. Dracachis (1875), 1 P. D. 72 ; 45 L. J. Ad. 45; and cases in note (c).

Mortgages.

31.—(1.) A registered ship or a share therein may be made a security for a loan or other valuable consideration, and the instrument creating the security (in this Act called a mortgage) shall be in the form marked B in the first part of the First Schedule to this Act, or as near thereto as circumstances permit, and on the production of such instrument the registrar of the ship's port of registry shall record it in the register book.

(2.) Mortgages shall be recorded by the registrar in the order in time in which they are produced to him for that purpose, and the registrar shall by memorandum under his hand notify on each mortgage that it has been recorded by him, stating the day and hour of that record.

"Ship."-As to what vessels are included in this term, see s. 742.

As to what articles on board pass under the word "ship" in a mortgage, see note to s. 24, ante.

"Registered ship."-See note as to these words under s. 24.

Where the owner of an unfinished ship mortgaged it before registration, and then registered it in his own name as owner, and the mortgagee subsequently registered the mortgage, the property in the ship was held to be in the mortgagee. Bell v. Bank of London (1858), 3 H. & N. 730; 28 L. J. Ex. 116.

Stamp duty.-See exemption in s. 721.

Fees. See M. S. (Mercantile Marine Fund) Act, 1898, s. 3, post, p. 457.

Form.-As to the power of the authorities to make alterations in the prescribed form, and of the registrar to refuse to register a mortgage in any other form, and other provisions as to forms, see s. 65.

The detailed stipulations of the mortgage may be contained in a separate deed. The Benwell Tower (1895), 8 Asp. M. L. C. 13.

Where a bill of sale, absolute in terms, has been executed and registered, either party thereto may show that it was intended to operate as a security only, and the Court will, for such purpose, look behind the register at the real character of the transaction. Ward v. Beck (1863), 32 L. J. C. P. 113; 13 C. B. (N. S.) 668; The Innisfallen (1866), 35 L. J. Ad. 110; L. R. 1 A. & E. 72; Myers v. Willis (1856), 25 L. J. C. P. 255; 18 C. B. 886. See, also, The Jane (1870), 23 L. T. 791, and s. 57.

Equities.-As to the enforcement of equities by or against a registered mortgagee, see ss. 56, 57, and notes thereto.

Unregistered mortgage.-Under M. S. A. 1854, it was held that a mortgage of a ship must be accompanied by the formalities required by that Act, and that a Court of Equity could give no effect to an unregistered contract to assign a ship as security for money. Liverpool Borough Bank v. Turner, infra (s. 57).

But the effect of this decision was annulled by the enactment of M. S. A. 1863, s. 3 (1894, s. 57), as to the enforcement of equities. See s. 57, and cases there cited.

And it would seem that, even apart from s. 57, registration is not a condition of the validity of the mortgage, as between the parties to it or their representatives. See cases cited under s. 26; and cf. The Two Ellens, infra (s. 37).

As to the position of an unregistered mortgagee claiming freight as against the purchaser of the cargo, see Keith v. Burrows (1876), 1 C. P. D. at p. 734; 3 Asp. M. L. C. 280.

An equitable mortgage may be created by the deposit of the builder's certificate of an unfinished ship: Ex p. Hodgkin, Re Softley (1875), L. R. 20 Eq. 746; S.C., sub nom. Ex p. Winter, Re Softley, 44 L. J. Bky. 107; 33 L. T. 62; or of a registered mortgage of a ship. Lacon v. Liffen (1862), 32 L. J. Ch. 25; 7 L. T. 774.

Mistake or variation in name.-Where, before registration, a vessel was described in a mortgage as the "City of Bruxelles," and subsequently the owner registered the vessel and the mortgagee the mortgage, in the name "City of Brussels," this variation in name was held to be immaterial, and not to in alidate the mortgage, the identity of the vessel being established by the descriptions of her in the register and the original mortgage. Bell v. Bank of London (1858), supra.

The principle of this decision would seem not to be affected by s. 47.

Power to expunge.—The Court has inherent jurisdiction to expunge an invalid mortgage from the register. Brond v. Broomhall, 75 L. J. K. B. 549; [1906] 1 K. B. 571.

Pt. I. 32-33.

mortgage.

32. Where a registered mortgage is discharged, the registrar Entry of shall, on the production of the mortgage deed, with a receipt discharge of for the mortgage money endorsed thereon, duly signed and attested, make an entry in the register book to the effect that [1854, 8. 68.] the mortgage has been discharged, and on that entry being made the estate (if any) which passed to the mortgagee shall vest in the person in whom (having regard to intervening acts and circumstances, if any) it would have vested if the mortgage had not been made.

The registrar has no authority to erase an entry of a mortgage on its being discharged. Chasteauneuf v. Capeyron (1881), 51 L. J. P. C. 37; 7 App. Cas. 127. In Bell v. Blyth (1868), 38 L. J. Ch. 178; L. R. 4 Ch. 136, where the question was one of priorities, it was held that the entry of a discharge in the register discharged the mortgage, and that it could not be revived by a memorandum on the register that the discharge was given by mistake. But in The Rose (1873), 42 L. J. Ad. 11; L. R. 4 A. & E. 6, where there was also a mistaken entry of discharge, but apparently no question of priorities, the Court pronounced that the purchaser from the mortgagee was entitled to be registered as owner. See also Duthie v. Aiken, (1893) (Sc.) 20 Ct. of Sess. Cas. (4th Ser.) 241; 30 Sc. L. R. 229.

33. If there are more mortgages than one registered in Priority of respect of the same ship or share, the mortgagees shall, notwith- mortgages. standing any express, implied, or constructive notice, be entitled [1854, s. 69.] in priority, one over the other, according to the date at which each mortgage is recorded in the register book, and not according to the date of each mortgage itself.

A mortgagee by registering gets priority over a prior unregistered equitable mortgage of which he had notice. Coombes v. Mansfield (1855), 24 L. J. Ch. 513. And over unregistered debentures of prior date, of which he had notice. Black v. Williams, 64 L. J. Ch. 137; [1895] i Ch. 408, and post, p. 34. See also as to tacking, priorities, &c., Liverpool Marine Credit Co. v. Wilson (1872), 41 L. J. Ch. 798; L. R. 7 Ch. 507. The section, however, relates only to such priorities as, apart from registration, would arise from the dates of the instruments, and when the priorities depend, not upon the dates of the instruments, but upon a state of facts wholly independent of the dates of the instruments, this section does not apply. The Benwell Tower (1895), 8 Asp. M. L. C. 13. Thus the