Pt. I. 49-50.

Regulations

alteration.

not exceeding five pounds for every day during which the offence continues after conviction.

The words in italics are repealed by the M. S. A. 1906, s. 85, Schedule II., and the words in clarendon substituted therefor by the M. S. A. 1906, s. 53.

As to fees in registry anew, see M. S. (Mercantile Marine Fund) Act, 1898, s. 3, and Schedule I., post, p. 457.

(a) As to summary procedure, see ss. 680-687.

49.-(1.) For the purpose of the registry of an alteration in for registry of a ship, the ship's certificate of registry shall be produced to the registrar, and the registrar shall, in his discretion, either retain. the certificate of registry and grant a new certificate of registry containing a description of the ship as altered, or endorse and sign on the existing certificate a memorandum of the alteration.

[1854, ss. 84, 85.]

Provisional

certificate and where ship is

endorsement

(2.) The particulars of the alteration so made, and the fact of the new certificate having been granted, or endorsement having been made, shall be entered by the registrar of the ship's port of registry in his register book; and for that purpose the registrar to whom the application for the registry of the alteration has been made (if he is not the registrar of the ship's port of registry), shall forthwith report to the last-mentioned registrar the particulars and facts as aforesaid, accompanied, where a new certificate of registry has been granted, by the old certificate of registry.

50.—(1.) Where any registrar, not being the registrar of the ship's port of registry, on an application as to an alteration in a ship directs the ship to be registered anew, he shall either grant a provisional certificate, describing the ship as altered, or provisionally endorse the particulars of the alteration on the existing [1854, ss. 85, certificate. 86.]

to be registered anew.

(2.) Every such provisional certificate, or certificate provisionally endorsed, shall, within ten days after the first subsequent arrival of the ship at her port of discharge in the United Kingdom, if she is registered in the United Kingdom, or, if she is registered in a British possession, at her port of discharge in that British possession, or, if she is registered at a port of registry established by Order in Council under this Act (a), at that ort, be delivered up to the registrar thereof, and that registrar shall cause the ship to be registered anew.

(3.) The registrar granting a provisional certificate under this section, or provisionally endorsing a certificate, shall add to the certificate or endorsement a statement that the same is made provisionally, and shall send a report of the particulars of the case to the registrar of the ship's port of registry, containing a similar statement as the certificate or endorsement.

(a) See s. 88 for foreign ports of registry.

As to form of certificate, see s. 65, Part II. of 1st Schedule.

51. Where the ownership of any ship is changed, the registrar of the port at which the ship is registered may, on the application of the owners of the ship, register the ship anew, although registration anew is not required under this Act.

Pt. I. 51-53.

Registry
anew on
change of
ownership.
[1851, s. 88.]

the registrar Procedure 52.-(1.) Where a ship is to be registered anew, the registrar shall proceed as in the case of first registry (a), and on the delivery for registry up to him of the existing certificate of registry, and on the other anew. requisites to registry, or in the case of a change of ownership [1854, s. 81, such of them as he thinks material, being duly complied with, 85, 88.] shall make such registry anew, and grant a certificate thereof.

(2.) When a ship is registered anew, her former register shall be considered as closed, except so far as relates to any unsatisfied mortgage or existing certificates of sale or mortgage entered thereon, but the names of all persons appearing on the former register to be interested in the ship as owners mortgagees shall be entered on the new register, and the registry anew shall not in any way affect the rights of any of those persons.

(a) See ss. 10-12 for registry of ships.

or

Part of this section is taken from 1854, s. 81, which applied only to registry anew upon a sale under a certificate of sale, as to which see now s. 44.

53. (1.) The registry of any ship may be transferred from Transfer of one port to another on the application to the registrar of the registry. existing port of registry of the ship made by declaration in 91; 18 & 19 writing of all persons appearing on the register to be interested Vict. c. 91, therein as owners or mortgagees, but that transfer shall not in 8. 12.] any way affect the rights of those persons or any of them, and those rights shall in all respects continue in the same manner as if no such transfer had been effected.

(2.) On any such application the registrar shall transmit notice thereof to the registrar of the intended port of registry with a copy of all particulars relating to the ship, and the names of all persons appearing on the register to be interested therein as owners or mortgagees.

(3.) The ship's certificate of registry shall be delivered up to the registrar either of the existing or intended port of registry, and, if delivered up to the former, shall be transmitted to the registrar of the intended port of registry.

(4.) On the receipt of the above documents the registrar of the intended port of registry shall enter in his register book all the particulars and names so transmitted as aforesaid, and grant a fresh certificate of registry, and thenceforth such ship shall be considered as registered at the new port of registry, and the name of the ship's new port of registry shall be substituted for the name of her former port of registry on the ship's stern.

As to fees on transfer of registry, see M. S. (Mercantile Marine Fund) Act, 1898, s. 3, Schedule I., post, p. 457.

Pt. I. 54-56.

Restrictions

on re-registration of abandoned

54. Where a ship has ceased to be registered as a British ship (a) by reason of having been wrecked or abandoned, or for any reason other than capture by the enemy or transfer to a person not qualified to own a British ship, the ship shall not be re-registered until she has, at the expense of the applicant for [36 & 37 Vict. registration, been surveyed by a surveyor of ships () and certified by him to be seaworthy.

ships.

c. 85, s. 6.]

Provision

for cases of
infancy or
other in-
capacity.
[1854, s. 99.]

[18 & 19 Vict. c. 91, s. 10; see 56 & 57 Vict. c. 53,

(a) See s. 21 for delivery up of certificate.
(b) See s. 724 for appointment of surveyors.

Incapacitated Persons.

55.-(1.) Where by reason of infancy, lunacy, or any other cause any person interested in any ship, or any share therein, is incapable of making any declaration or doing anything required or permitted by this Act to be made or done in connection with the registry of the ship or share, the guardian or committee, if any, of that person, or, if there is none, any person appointed on application made on behalf of the incapable person, or of any other person interested, by any court or judge having jurisdiction in respect of the property of incapable persons, may make such declaration, or a declaration as nearly corresponding thereto as circumstances permit, and do such act or thing in the name and on behalf of the incapable person; and all acts done by the substitute shall be as effectual as if done by the person for whom he is substituted.

(2.) The Trustee Act, 1850, and the Acts amending the same, shall, so far as regards the court exercising jurisdiction in lunacy in Ireland, apply to shares in ships registered under this Act as 88. 35 (6), 51, if they were stock as defined by that Act.

Sched.]

Notice of

trusts not

received.

As to the power of the registrar to dispense with declarations, &c., see s. 60. The guardian of an infant registered owner has no power, under sub-s. (1), to sell or mortgage a ship on behalf of the infant. Michael v. Fripp (1868), 38 L. J. Ch. 29; L. R. 7 Eq. 95.

Per

"The words go to minor unimportant acts, falling far short of an absolute disposition of the thing which is to be protected and taken care of." Malins, V.-C., ibid., L. R. 7 Eq. at p. 100.

Sub-s. (2) represents so much of 18 & 19 Vict. c. 91, s. 10, as was left unrepealed by the Trustee Act, 1893, s. 51. A similar provision as to England is contained in the Lunacy Act, 1890, s. 341. The remainder of s. 10 of 18 & 19 Vict. c. 91 is now represented by the Trustee Act, 1893, s. 35, sub-s. (6), by which the provisions of that Act as to vesting orders are applied to shares in registered ships as if they were stock.

Trusts and Equitable Rights.

56. No notice of any trust, express, implied, or constructive, shall be entered in the register book or be receivable by the [1854, s. 43.] registrar (a), and, subject to any rights and powers appearing by the register book to be vested in any other person (6), the registered owner of a ship or of a share therein shall have power absolutely

to dispose in manner in this Act provided of the ship or share, and to give effectual receipts for any money paid or advanced by way of consideration.

(a) As to equities generally, see the next section and notes thereto.

(b) E.g., under a mortgage (see s. 31), or under a certificate of sale or mortgage (see s. 40).

Act.

Pt. I. 57.

57. The expression "beneficial interest," where used in this Equities not Part of this Act (a), includes interests arising under contract excluded by and other equitable interests; and the intention of this Act is, [1862, s. 3.] that without prejudice to the provisions of this Act for preventing notice of trusts from being entered in the register book or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by this Act on registered owners and mortgagees (b), and without prejudice to the provisions of this Act relating to the exclusion of unqualified persons from the ownership of British ships (c), interests arising under contract or other equitable interests (d) may be enforced by or (e) against owners and mortgagees of ships in respect of their interest therein in the same manner as in respect of any other personal property (ƒ).

(a) The expression "beneficial interest occurs in ss. 9, 71; "beneficially interested" in 8. 58; and "beneficial title" in s. 5.

(b) See ss. 35, 56, for powers of sale by mortgagee and owner.

(c) See s. 1 for qualification for ownership.

(d) The words "interests arising under contract and other equitable interests are here substituted for “equities " in the repealed section (1862, s. 3).

(e) The words "by or" did not occur in the repealed section (1862, s. 3); but it was nevertheless held in Batthyany v. Bouch (1881), supra (s. 24), that equities might be enforced by registered owners.

(f) Equities.-Before M. S. A. 1862, s. 3 of which is re-enacted in the present section, it was held that a mortgage of a ship must be accompanied by the formalities required by the M. S. A. 1854, and that a Court of Equity could therefore give no effect to an unregistered contract for the assignment of a ship as security for money. Liverpool Borough Bank v. Turner (1860), 29 L. J. Ch. 827; 1 Johns. & H. 159; affirmed, 30 L. J. Ch. 379; 2 De G. F. & J. 502.

The Court of Chancery would, however, correct a mistake by which a person was registered as owner of a ship proved to be the property of another, and would direct the former to transfer to the latter, that being a case for which the Act (M. S. A. 1854) made no provision, and in which, therefore, the jurisdiction of the Court was not taken away. Holderness v. Lamport (1861), 30 L. J. Ch. 489; 29 Beav. 129. And see, as to the effect of the registration of a bill of sale apparently, but not actually, valid, Orr v. Dickinson (1859), cited in note (a) to s. 44. In consequence of the decision in Liverpool Borough Bank v. Turner, s. 3 of M. S. A. 1862 was enacted in order to provide for the enforcement of equities (see per Pollock, C. B., in Stapleton v. Haymen, infra), and the following cases have been decided thereunder :

Cases under M. S. A. 1862.-An owner who has executed a bill of sale absolute in terms 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 transactions. Ward v. Beck (1863), 32 L. J. Č. P. 113; 13 C. B. (N. S.) 668; The Innisfallen (1866), 35 L. J. Adm. 110; L. R. 1 A. & E. 72. See also The Jane (1870), 23 L. T. 791.

Similarly, an owner may show that the transferee of a mortgage had by other arrangements, contemporaneous with and subsequent to the transfer, agreed to

T.

D

Pt. I. 58-59.

Liability of

owners.

postpone repayment of the mortgage loan until a date subsequent to that named in the mortgage. The Cathcart (1867), L. R. 1 A. & E. 314; 16 L. T. 211.

But the Court cannot look behind the register for the purpose of dispossessing a bona fide purchaser for value, whose name is on the register, but whose transferor had obtained title by fraud. The Horlock (1877), 47 L. J. Adm. 5; 2 P. D.

243.

The requirements as to the transfer of a ship contained in s. 55 of 1854 (1894, 8. 24) apply only to the actual instrument of transfer, and not to an agreement to transfer, and therefore such an agreement may be enforced under this section by a registered owner though it is not a bill of sale and not registered. Batthyany v. Bouch (1881), supra (s. 24).

Indeed, independently of this section, the property in a ship passes, as between the vendor or his assigns and the vendee, by a bill of sale, although not registered. The Spirit of the Ocean (1865), supra (s. 26); The Two Ellens (1871), supra (s. 37). Hence the assignee in bankruptcy of the vendor could not retake possession from a vendee who, being an infant, was refused registration as owner. Stapleton v. Haymen (1864), 33 L. J. Ex. 170; 2 H. & C. 918.

And the unregistered grantee of a bill of sale of shares in a ship acquires a good title as against the trustee of the grantor's sequestered estates. Watson v. Duncan (1879) (Sc.), 16 Sc. L. R. 791.

The section does not entitle holders of unregistered debentures of a company owning ships to priority over subsequent registered mortgagees who had notice of the debentures. Black v. Williams, 64 L. J. Ch. 137; [1895] 1 Ch. 408.

Liability of Beneficial Owner.

58. Where any person is beneficially interested (a), otherwise than by way of mortgage (b), in any ship or share in a ship [1854, B. 100.] registered in the name of some other person as owner, the person so interested shall, as well as the registered owner, be subject to all pecuniary penalties imposed by this or any other Act on the owners of ships or shares therein, so nevertheless that proceedings may be taken for the enforcement of any such penalties against both or either of the aforesaid parties, with or without joining the other of them.

Ship's managing

owner or

manager to
be registered.
[39 & 40 Vict.
c. 80, s. 36.]

(a) See s. 57 for meaning of "beneficial interest."
(b) As to the position of a mortgagee, see s. 34.

Managing Owner.

59.-(1.) The name and address of the managing owner for the time being of every ship registered at a port in the United Kingdom shall be registered at the custom house of that port. (2.) Where there is not a managing owner there shall be so registered the name of the ship's husband or other person to whom the management of the ship is entrusted by or on behalf of the owner; and any person whose name is so registered shall, for the purposes of this Act, be under the same obligations, and subject to the same liabilities, as if he were the managing owner.

(3.) If default is made in complying with this section the owner shall be liable, or if there are more owners than one each owner shall be liable in proportion to his interest in the ship, to a fine not exceeding in the whole one hundred pounds each time the ship leaves any port in the United Kingdom.