By sect. 103, if the British flag is used and the national character assumed on board a ship owned in whole or in part by any person not entitled to own British ships, for the purpose of making her appear to be a British ship, she becomes forfeited to the Queen, unless such assumption was made to escape capture by an enemy or by a foreign ship of war in exercise of some belligerent right (h). Sect. 103 of The Merchant Shipping Act, 1854, contains also the following provisions: If the master or owner of a British ship does or permits any thing to be done, or carries or permits to be carried any papers or documents, with intent to conceal the British character of his ship from any person entitled by British law to inquire into it, or to assume a foreign character, or with intent to deceive any such person, the ship will be forfeited to the Queen; and the master, if he commits or is privy to the commission of the offence, is guilty of a misdemeanor. If any unqualified person, except in the case of transmitted interests hereafter noticed (i), acquires as owner any interest, either legal or beneficial, in a ship using a British flag and assuming the British character, such interest is forfeited to the Queen. Any person who, on behalf of himself or any other person or body of persons, wilfully makes a false declaration touching his or their qualification to own British ships, or any shares therein, is guilty of a misdemeanor; and the ship or share, to the extent of the interest of the person making the declaration, and unless it is shown that he had no authority to make it, that of the parties on behalf of whom it is made, is forfeited to the Queen. In order that the above provisions as to forfeitures may be carried into effect, any commissioned officer in the army or navy on full pay, British officers of Customs and British consular officers may seize and detain a ship which has, either wholly or as to any share therein, become subject to forfeiture as above, and bring her for adjudication before the High Court of Admiralty in England or Ireland, or any Court having Admiralty jurisdiction in the Queen's dominions; and the Court (h) In any proceeding for enforcing a forfeiture under this section, the burden of proving a title to use the British flag and assume the national character lies on the person using and assuming them. M. S. Act, 1854, s. 103. As to merchant ships using the Queen's colours without warrant from the Admiralty, see sect. 105. (i) Post, p. 25. TITLE TO SALE. By Court of Courts abroad. may make such order in the case as it may think fit, and award to the officer bringing in the ship a portion of the proceeds of the sale of it (k). Having considered in their order the registry, navigation, privileges and national character of British ships, we will now inquire how a title to them, whether absolute or limited, may be acquired; dealing with the subject under the heads of Sale, Mortgage and Capture (1). Ships are occasionally built for the builder's own use, but more often to order, or for sale; in which case the first ownership, which it is material to notice, will be that acquired by the sale. There being no market overt for ships, a sale to confer a good title must be from one who has a good title himself. We shall see in another Chapter in what cases the master has authority to sell (m). Upon any dispute of possession, or (since the 3 & 4 Vict. c. Admiralty and 65, s. 4) of title, if it arise in any cause of possession, salvage, wages or bottomry, the Court of Admiralty has jurisdiction by proceeding in rem; in such cases the power of the Court to sell, and thereby to confer a good title, is indisputable, and such a sale is binding on all the world (n). Sales sometimes occur by order of an Admiralty Court abroad, when a vessel has been surveyed and condemned as unfit for service. Where such a sale has proceeded merely upon the petition of the master, grounded upon the unseaworthiness of the ship, the common law Courts of this country have denied that Vice-Admiralty Courts abroad have any right to decree a sale, either by the law of commerce or by that of nations (o). In a case in the English (k) By sect. 104, officers are not responsible, either civilly or criminally, in respect of the seizure or detention of any ship that has been seized or detained by them, although it is not brought in for adjudication, or, if so brought in, is declared not to be liable to forfeiture, if it is shown to the satisfaction of the judge or Court that there were reasonable grounds for the seizure or detention; but if no such grounds are shown, the judge or Court may award payment of costs and damages to any party aggrieved, and make such other order in the premises as he or it thinks just. (1) It will be found that the following observations apply, to a certain extent, to all ships. (m) See post, Chap. III., Master. (n) 3 Kent's Comm. p. 132. See also the judgment in Cammell v. Sewell, 3 H. & N. 617; S. C. in error, 5 H. & N. 728. Before the passing of the 3 & 4 Vict. c. 65, the Court of Admiralty could not deal with questions of title even when they arose in causes of possession. The Warrior, 2 Dods. 288. (0) Reid v. Darby, 10 East, 143; Court of Admiralty, however, where such a sale had taken place at the Mauritius, upon the petition of the master, and it was proved that he was not in possession of any funds to repair the ship, and that the owner's agent, who was not shown to have held any funds, had refused in any way to assist him, and it appeared that he had acted bonâ fide and with discretion throughout, it was decided that the colonial Court was justified in decreeing a sale, and the title of the purchaser was upheld (p). There was some conflict in the earlier cases as to whether, when such circumstances existed as would entitle the master to sell, the title of the purchaser was strengthened by the decree of the foreign Court of Admiralty; and the weight of these decisions was in favour of the view that in all these cases the real question was merely whether the master had, independently of the interference of the Court, the power to sell. It is however now clear, that the innocent purchaser of a cargo sold by the master abroad (and the same rule is applicable to the ship) under circumstances which do not give him, by the law of England, power to sell, may make a good title against the owners, if there is no fraud, and the sale is directed by a Court having jurisdiction in the matter, and is so conducted that by the lex loci the property passes (9). It is scarcely necessary to observe that ships are personal By private property; like other goods and chattels, therefore, they pass to persons. the executors of a deceased owner, and, except where the Registry Acts have made certain formalities essential to their sale, the property in them would, subject to the operation of the Statute of Frauds, pass by a contract of immediate sale (r), or by an agreement to be completed in futuro, coupled with delivery. Ships, however, from their great value, and frequent Morris v. Robinson, 3 B. & C. 196. In this case, however, it did not appear that the Vice-Admiralty Court had any jurisdiction to make the decree in question. (p) The Warrior, 2 Dods. 288. (q) Cammell v. Sewell, 3 H. & N. 617; S. C. in error, 5 H. & N. 728. The broad principle upon which this case was decided in the Exchequer Chamber was, that if property is disposed of without fraud in a manner binding by the law of the country where the property is, such a disposition is binding everywhere. Mr. Justice Byles dissented from the judgment of the Court of Error, on the ground that the law of Norway, on which (r) Tarling v. Baxter, 6 B. & C. 360, Bill of sale. absence from port (s), have for so long a period been conveyed by a formal instrument known as a bill of sale, that, although the contracts mentioned above would convey sufficient property to the vendee to enable him to maintain trover against a wrongdoer (t) (since mere possession is primâ facie evidence of ownership (u)), yet it has been doubted whether, even at common law, such a sale would be valid, without the more solemn conveyance, by the bill of sale (x). However this may be, the bill of sale is the universal instrument of transfer in all countries, and is the proper title to which a maritime Court looks (y); and where a ship was sold whilst at sea, a delivery of the grand bill of sale was held, before the present system of registration, to amount to a delivery of the ship herself (z). Bills of sale were formerly spoken of as of two kinds. 1. The grand bill of sale, which conveyed the ship from the builder to the owner, or first purchaser, either before or after registry; and, 2, the ordinary bill of sale by which any subsequent transfer was made. These terms are not, however, now in common Formerly it was not necessary that either of these documents should be under seal, but it is otherwise under the Merchant Shipping Act, 1854. use. No stamp duty is payable on bills of sale, assignments or other conveyances of ships (a). The Merchant Shipping Act, 1854, provides by sect. 55, that a registered ship or any share therein, when disposed of to persons qualified to be owners of British ships, shall be transferred by bill of sale, which must contain the same description of the ship as is in the certificate of the surveyor (b), or such other description as may be sufficient to identify her to the satisfaction of the registrar, and must be in the prescribed form (c), or as near thereto as circumstances permit, and must be executed by (s) Being invented "to plow the seas, not to lie by the walls." Molloy, B. 2, c. 1, s. 2. (t) Sutton v. Buck, 2 Taunt. 302. (u) Robertson v. French, East, 130; (x) See Abbott on Shipping, p. 2. (z) Atkinson v. Maling, 2 T. R. 462. (a) 6 Geo. 4, c. 41, and M. S. Act, 1854, s. 9. (b) See ante, p. 8, n. (o). (c) With respect to the form of bills of sale and mortgages, the Commissioners of Customs, in their instructions to registrars, sect. 54, say, "the registrars will advise parties interested, that so far as relates to the dealings with, and the title to, the ship, no advantage whatever can be gained by the use of longer or more cumbrous instruments. If there are collateral arrangements between the parties they should be carried into effect by separate instruments." the transferor in the presence of and be attested by one or more witnesses (d). By the 18 & 19 Vict. c. 91, s. 11, it is provided, that if any bill of sale, mortgage or other instrument for the disposal or transfer of any ship or share or interest therein is made in any form or contains any particulars other than those prescribed and approved by the Merchant Shipping Act, 1854, no registrar shall be required to record it without the express direction of the Commissioners of Customs. of the Mer It is provided by sect. 56 of the Merchant Shipping Act, 1854, Requirements that, before a person can be registered as transferee of a ship, he chant Shipping must make a declaration in a form prescribed by the act, stating Act on sales. his qualification to be registered as owner of a share in a British ship, and containing a denial similar to that made by an original owner. In the case of a transfer to a corporation, the secretary, or other duly appointed public officer, must make a declaration in the prescribed form, stating the name of the corporation, and such circumstances of its constitution and business as may prove it to be qualified to own a British ship, and containing a denial similar to that contained in a declaration of ownership made on behalf of a body corporate. In the case of (d) A new form has been issued by the commissioners. See Appendix, p. celviii. It will be observed, that the bill of sale is now under seal. By the last Registry Act, 8 & 9 Vict. c. 89, s. 34, it was provided, that British registered ships should be transferred "by bill of sale or other instrument in writing, containing a recital of the certificate of registry of such ship or vessel, or the principal contents thereof," otherwise such transfer should not be valid or effectual for any purpose whatever either in law or in equity." These words were held to apply to an executory contract, as well as to an absolute sale; therefore an unregistered contract for the sale of shares in a British ship could not be enforced in equity; Hughes v. Morris, 2 De G., Mac. & Gor. 349; M'Calmont v. Rankin, 2 De G., Mac. & Gor. 403; and this was so even against a purchaser, with notice of the prior sale; Coombs v. Mansfield, 3 Drew. 193, in which case it was said, that the operation of the Ship Registry Acts precluded any application of the equitable doctrine of notice. Neither would any action lie for the breach of such a contract; Duncan v. Tindall, 13 C. B. 258; nor could equity afford relief N. S. 769. |