HAVING described the various modes of acquiring and per fecting a title to ships, we will now consider the evidence of ownership, and the duties and liabilities of owners, as between themselves and as regards others. OWNERSHIP. Possession is, as we have seen, primâ facie evidence of owner- PROOF OF ship (a). Under the earlier statutes relating to the registration of ships, which did not provide that the certificate of registry should be evidence of the matters recited in it, the certificate alone was not even primâ facie evidence of ownership. It was necessary to show that the party sought to be charged had either assented to, or adopted the entry (b). Acting upon the same principle, the Courts held that proof of the execution of a bill of sale was not sufficient to charge the alleged purchaser, as owner, unless his assent was shown (c). The later statutes have, however, made a difference with respect to the effect of the certificate of registry as evidence of ownership. The Registry Act of 1845, the 8 & 9 Vict. c. 89, which is now repealed, contained provisions simplifying the formal proof of ownership and making copies of the registers evidence without the production of the originals; and the Law of Evidence Amendment Act, the 14 & 15 Vict. c. 99, which is still in force, provided, by sect. 12, that registers, and copies thereof, and certificates of registry, granted under the acts then in force relating to the registry of British ships, purporting to be signed as required by law, should be received as primâ facie proof of all the matters contained or recited in such registers and copies, and of all the matters contained or recited in or indorsed on such certificates of registry. And now, by the Merchant Shipping Act, 1854, sect. 107, every register of or declaration made in pursuance of the second part of that act in respect of any British ship may be proved either by the production of the original, or by an examined copy, or by a copy purporting to be certified under the hand of the registrar or other person having the charge of the original, and shall be received as primâ facie proof of all the matters contained or recited in such registers or copies thereof, and of all the matters contained in or indorsed on such certificates of registry and purporting to be authenticated by the signature of a registrar. The form of certificate of registry now in use mentions the names of the persons who are owners at the time of registration, and the proportions in which they are in (a) Robertson v. French, 4 East, 130; Sheriff v. Cadell, 2 Esp. 617, ante, p. 21. (b) Pirie v. Anderson, 4 Taunt. 652; Fraser v. Hopkins, ib. 5; Tinkler v. Walpole, 14 East, 226. In two cases at Nisi Prius the rule was laid down with- (c) Tinkler v. Walpole, ubi supra. DUTIES OF Selection of captain, &c. terested (d). By sect. 45, all subsequent changes of ownership must be indorsed on the certificate of registry. The usual and proper mode of proving ownership is by the production of the register or a copy, and by evidence of acts of ownership done by the alleged owner; such, for instance, as directions and interference with respect to the employment and concerns of the ship. It will be useful to bear in mind, that a beneficial ownership may often be shown to exist, where no legal ownership can be proved, and that it frequently happens that the beneficial and not the legal owner is liable on contracts made with respect to the ship (e). The first duty of the owners of a ship employed in the carriage of goods is to see that at the commencement of the voyage she is in a proper condition to perform it, and fit for the employment for which she is offered to the public or to the charterer. Whether the charter-party expressly require it or not, she must be tight, staunch and strong, and properly furnished for the voyage (f). Sufficient stores must be on board, and the anchors and chain-cables must be of a proper description, and fit for service (g); nor is it any excuse for the unseaworthiness of the ship, that the owner has been himself deceived by the ship-builder, or repairer, and is ignorant of the defect (h). If a ship chartered for a particular voyage becomes unseaworthy after the commencement of the voyage, it is the duty of the owner, as between himself and the freighter, either to repair, if he has the opportunity, or at least not to proceed on the voyage in an unseaworthy state (i). A further duty is the appointment of a proper captain and (d) See Form, App. p. cclv. (e) See post, p. 59 et seq. (f) Lyon v. Mells, 5 East, 428; Wedderburn v. Bell, Camp. 1; Dale v. Hall, 1 Wilson, 281. In Amies v. Stephens, 1 Str. 128, Pratt, C. J., says, "No carrier is obliged to have a new carriage every journey; it is sufficient if he provide one which without any extraordinary accident will probably perform the journey." See also Sharp v. Grey, 9 Bing. 457. The rule of the American and of the Scotch law is similar; 3 Kent's Comm. 216; 1 Bell's Comm. 550, 4th ed. See Pothier Charte-Partie, pt. 1, sect. 2, art. 2, sect. 4. As to when the ordinary statement in the charterparty that the ship is "tight, staunch, &c.," amounts to a condition precedent to the obligations of the charterer, see Thompson v. Gillespy, 5 E. & B. 209; Tarrabochia v. Hickie, 1 H. & N. 183; Sieger v. Duthie, 8 C. B., N. S. 45; Behn v. Burness, 1 B. & S. 877; S. C., in error, 32 L. J., Q. B. 204, and post, Chap. VI., CONTRACT OF AFFREIGHTMENT, Part 1. (g) Wilkie v. Geddes, 3 Dow. 57; Harrison v. Douglas, 3 A. & E. 402. (h) Holt on Shipping, 383; Sharp v. Grey, ubi supra. (i) Worms v. Storey, 11 Ex. 427. crew. The owners are bound, not only to the charterers and to each other, but also to all whose life and property may be embarked in the ship, to exercise a fair and impartial judgment in this respect, and to select a master and crew of competent skill (k). It was held, however, after the passing of the 5 & 6 Will. 4, c. 19, that a ship was not unseaworthy because the crew, although competent and sufficient in number, were not properly hired under articles specifying the amount of wages, as required by that act(); since the violation of these provisions, which were introduced for the benefit of the seamen, only subjected the master to a penalty (m). Where a pilot is required, it is the duty of the owners to take one on board (n). They are also bound to receive on board the cargo which they Receipt of have contracted to carry, and to find proper ballast for the ship. cargo. Questions have frequently arisen as to whether a freighter who has contracted to load a full cargo, which is to consist partly of light and partly of heavy goods, is bound to load heavy goods, which, by supplying the place of ballast, would enable the ship to earn more freight. This depends upon the intention of the parties, and unless there be some express or implied stipulation, or some custom of the trade to the contrary, the freighter may ship what goods he likes, and the shipowners must provide proper ballast (o). Merchandize may, however, be taken on board a chartered vessel as ballast, if it do not occupy more space than the ballast would have done (p). When the goods have been loaded, the shipowners are, as we Care of cargo. shall see (q), bound, ordinarily, to take the utmost care of them; (k) Card v. Hope, 2 B. & C. 674; Law v. Hollingsworth, 7 T. R. 160; Tate v. Levi, 14 East, 481; Forshaw v. Chabert, 3 B. & B. 158; Shore v. Bentall, 7 B. & C. 798, note (b); and the judgment in Dixon v. Sadler, 5 M. & W. 414; Clifford v. Hunter, M. & M. 103; S. C., 3 C. & P. 16. The precise point, which was decided in the last-mentioned case, namely, that on a voyage from India to England there must be on board a mate, competent by his skill in navigation, to take the command, in case of the accidental removal of the master, has been discussed in the American Court, and doubts have been expressed as to its correctness. This rule has been said to be oppressive, and to be contradicted by the usage. See the observations in 3 (1) This act was repealed by the 7 & (m) Redmond v. Smith, 7 M. & Gr. 457. (n) Post, Chap. V., PILOT. (0) Moorsom v. Page, 4 Camp. 103; Cockburn v. Alexander, 6 C. B. 791, and post, Chap. VI., CONTRACT OF AF FREIGHTMENT. (p) Towse v. Henderson, 4 Ex. 890. Commencement of voyage. LIABILITY OF OWNERS FOR LOSS OR DA MAGE TO GOODS AND FOR PERSONAL At common but this liability may be narrowed by the terms of the particular contract under which they are carried, and is also in many cases removed by statute. Where a general ship is advertised for a particular voyage, it is the duty of the owners, if her destination is altered, to give specific notice of the change to all those who afterwards ship goods on board (r); and it is a general rule, even where there is no express agreement as to time, that there must be no unreasonable or unusual delay in the commencement of the voyage. The duties of owners with respect to the carriage of passengers will be mentioned in a subsequent chapter (s). At common law, shipowners, like other common carriers, were insurers, and were liable as such for any loss or damage to goods intrusted to them, unless it was occasioned by the act of God, (such as storms, tempests and the like,) or of the King's enemies. They were also liable for damage done by their servants acting within the scope of their employment, and the law formerly exacted a full compensation out of all their property, upon the principle that persons undertaking the conveyance of goods are answerable for the conduct of the persons whom they employ, since the parties suffering damage know nothing of these persons and have no control over them (t). This general liability, however, no longer exists; it is not only usually narrowed by the express terms of the contract for carriage, but has been materially qualified by several acts of Parliament. Before we refer to the Merchant Shipping Act, 1854 (the 17 & 18 Vict. c. 104) and the Merchant Shipping Act Amend (r) Peel v. Price, 4 Camp. 243. tion v. Wood, 3 Esp. 132, and the judgment in Laveroni v. Drury, 8 Ex. 170. As to whether shipowners carrying passengers beyond the seas are strictly common carriers, see Bennett v. The Peninsular Steam Boat Company, 6 C. B. 775. The fact that a carrier's terminus ad quem is without the realm does not relieve him from the liabilities of a common carrier. Crouch v. The London and North-Western Railway Company, 14 C. B. 255. The Carriers Act, 11 Geo. 4 & 1 Will. 4, c. 68, protects carriers who have contracted to carry goods partly by land and partly by water, where the loss occurs on the land. Pianciani v. The London and South-Western Railway Company, 18 C. B. 226. |