The meaning of this rule is, that the relation of partnership does not arise between them from the mere fact of their holding shares in the same ship; they may, however, be actually in partnership (c), or there may be a partnership in the adventure, and not in the ship (d). In partnership, properly so called, no one can become the partner of another without his consent: but a person may become part owner of a ship without the consent of the other owners, as by purchase, succession and the like (e). There appears to be nothing to render impossible the creation of an ordinary joint tenancy in the shares of a ship (f), but even should this relation exist between the part owners, it is a rule both of the law merchant and of equity, that there is no survivorship between them, for jus accrescendi Jus accrescendi. inter mercatores, pro beneficio commercii locum non habet (g). When it is said that this is a rule of law, it is meant that if a joint tenancy existed in a ship, there would be no survivorship of the legal title to the shares, but it must not be supposed that rights of action are affected by this rule. The right of action on any joint contract with merchants, or for any injury to the joint property, survives, and the executor of the deceased. could not be joined in the suit (). The earnings of a ship follow the general law of partnership (). Subject to these observations, the ordinary rules respecting Remedies as tenants in common apply to part owners. Thus one part owner against each could not, according to the principles administered in the Com (c) See the judgment in Helme v. Smith, ubi sup. Where part owners work the ship together for profit they are in the same position as partners. Jebsen v. East and West India Dock Company, L. R., 10 C. P. 300. (d) Holderness v. Shackells, 8 B. & C. 612. It was once held that part owners, although tenants in common and not joint tenants, had a right to consider the ship as partnership effects, and as liable to pay all debts which any of them might have incurred on her account, so as to give to those partners who were compelled to pay, a lien in equity on the share of others who had not contributed. Doddington v. Hallett, 1 Ves. sen. 497. But this decision has since been overruled. Ex parte Young, 2 Rose, 78, note; 2 Ves. & B. 242; and see Green v. Briggs, 6 Hare, 395. (e) Holt on Ship., Introduction, 32. (f) See Abbott on Ship. 78; Smith's Merc. Law, p. 189 (8th edit.). (g) See the authorities cited in the last note, and Co. Litt. 182 a; Buckley v. Barber, 6 Ex. 164. (h) This is an anomaly; see the judgment of Dampier, J., in Rex v. Collector of Customs, 2 M. & S. 225; Martin v. Crompe, 1 Ld. Raym. 340; Buckley v. Barber, 6 Ex. 164. In the earlier cases this rule was not distinctly recognized; actions were brought jointly by the survivor and the executor, and the non-joinder of the executor was in some instances pleaded in abatement. See Hall v. Huffam, 2 Lev. 188, 228; 3 Keb. 737, 798; Kemp v. Andrews, 3 Lev. 290; Smyth v. Milward, 2 Lutw. 1493. (i) Green v. Briggs, 6 Hare, 395; Gardner v. McCutcheon, 4 Beav. 534. other. Admiralty jurisdiction as to employ ment of ship, mon Law Courts, bring trover for the value of his share against another, unless there has been an actual destruction of the ship, or some act equivalent to it (). The mere sale of the ship by one of them, it appears, was not equivalent to a destruction, for, generally, such a sale would only pass the interest of the seller; although it would be otherwise if the whole property passed (7). Where it appeared that the plaintiff was tenant in common of one moiety, and the defendants of the other, and that they forcibly took the ship out of his possession, changed her name, and secreted her from him, and that she, after getting into the hands of a third person who sent her on a foreign voyage, was totally lost, it was left to the jury to consider whether the destruction was not by means of the defendants' acts; and the jury having found that it was, the Court held that the direction was proper, and refused to disturb the verdict (m). But where one part owner sued the other for fraudulently and deceitfully carrying the ship beyond the seas without his assent, whereby he lost his share, the Court arrested the judgment, and held, that owing to the trust and confidence which the law supposes to exist between tenants in common, there cannot be any fraud between them, and that, under such circumstances, they had no remedy at law (»). It has been held, that where one part owner objects to the employment of the ship on a particular voyage, but does not expressly dissent, he is liable in equity, if the ship is afterwards lost, for his proportion of the loss (o), but that it is otherwise if he expressly dissents (p). In consequence of the difficulty of obtaining complete relief in the Courts of Common Law in cases of disputes between part owners as to the employment of the ship, the Court of Admiralty putes between from early times has exercised a peculiar jurisdiction in such cases (q). In the words of Lord Tenterden "it has been the and as to dis owners. (k) See Litt. s. 323; Heath v. Hubbard, 4 East, 110; Mayhew v. Herrick, 7 C. B. 229. (1) Heath v. Hubbard, ubi sup., 2 Wms. Saund. 47 p, note (c); Barton v. Williams, 5 B. & A. 395; and see the observation of Parke, B., in Farrar v. Beswick, 1 M. & W. 688; and Ex parte Howden, 2 Mont. D. & D. 574. (m) Bernadiston v. Chapman, C. B., 1 Geo. 1, before King, C. J., cited 4 East, 121. (n) Graves v. Sawcer, 1 Lev. 29; S. C., Sir T. Raym. 15. It does not appear distinctly whether the ship was lost; see also Molloy, B. 2, c. 1, s. 2. (0) Shelley v. Winson, 1 Vern. 297. (p) Horn v. Gilpin, Ambler, 255. (7) Molloy, B. 2, c. 1, s. 2; Beawes, 107. 1 constant practice, in disputes between part owners as to the em- (r) In re Blanchard, 2 B. & C. 248, and see The Apollo, 1 Hagg. 306. The Court has jurisdiction to take a vessel from a mere wrongdoer, and deliver it to the lawful owner. Ib. (5) According to the present practice the condition of the bail bond is to answer judgment in the action. Where a bond was given for the safe return of a ship to a particular port of this kingdom, and the ship having been carried by distress into another port was there arrested in suits for salvage and wages, the Court of Admiralty declined to pronounce the bond forfeited, and held, that while the ship was within the jurisdiction of the Court, safe and unsold, the application was premature. It appears that, according to the American law, the minority may employ the ship in like manner, if the majority decline to employ her at all. Steamboat Orleans v. Phœbus, 11 Peter's (American) Rep. (t) Anon., 2 Chanc. Cas. 36; Boson Davis v. Johnston, 4 Sim. 539. Where the shares were not ascertained, the Court had no jurisdiction of this description, and in such a case the Court of Chancery would restrain the sailing of the ship by injunction until the share of the party complaining was ascertained, and security given to the amount of it. Haly v. Goodson, 2 Mer. 77; Christie v. Craig, Ib. 137. See, however, Castelli v. Cook, 7 Hare, 89. As to the jurisdiction of the Court of Chancery where there is an express agreement as to the employment of the ship, see Darby v. Baines, 9 Hare, 369. See, also, Brenan v. Preston, 2 De G., M. & G. 813; Hart v. Herwig, L. R., 8 Ch. App. 861. of accounts. Admiralty Court Act, 1861, s. 8. Contribution towards expenses. tain questions of account (t), and the only process by which part owners could compel an adjustment of the ship's accounts amongst themselves was, until recently, a suit in equity (u). The jurisdiction of the Court of Admiralty was, however, extended by the 8th section of the Admiralty Court Act, 1861 (x), which conferred upon the Court jurisdiction to decide all questions arising between co-owners, or any of them, touching the. ownership, possession, employment and earnings of any ship registered at any port of England or Wales, and to settle all accounts outstanding and unsettled between them, and to direct the ship or any share to be sold, or to make such order as to it shall seem fit. The Admiralty Division, therefore, now possesses full power to settle all disputes between co-owners, and although the Court is always reluctant to order the sale of a ship without the consent of the owners representing the majority in interest, yet where it is obviously for the advantage of the owners as a body that the ship should be sold the Court will decree a sale at the suit of the minority (y). Each owner is also bound, before the commencement of the voyage, to contribute his share of capital for the expenses of the outfit, and, therefore, if one part owner, who is ship's husband, incurs this expense, he may sue the others separately for their share of it (≈). One of several part owners has a right to require that the (t) A copartner could not (before the Admiralty Court Act, 1861) originate a suit for accounts in the Admiralty Court. The Apollo, 1 Hagg. 306. (u) Collyer on Partnership, 683. Where one of the part owners, who acted as ship's husband, covenanted with the others to make out the ship's accounts, and divide the profits after the ship's return, it was held, that the other owners might sue him at law on this covenant. Owston v. Ogle, 13 East, 538; see also Vanner v. Frost, 39 L. J., Ch. 626. To a bill filed for an account of the profits of the ship all the part owners were necessary parties. Moffat v. Farquharson, 2 Brown, C. C. 338; Collyer on Part. 683. (x) The 24 Vict. c. 10, s. 8; The City of Mobile, L. R., 4 A. & E. 191. This section gives the Court power to order accounts between co-owners before the date assigned for the act to come into operation; also as to matters relating to a ship lost before the institution of the cause. The Idas, Br. & L. 65. And it can order accounts to be taken between co-owners where one co-owner has ceased to be so at the institution of the suit. The Lady of the Lake, L. R., 3 A. & E. 29. (y) The Nelly Schneider, 3 P. D. 152. See the judgment of Sir C. Robinson, in The Margaret, 2 Hagg. 276; Ouston v. Hebden, 1 Wils. 101. The Scotch and American Courts have exercised the right of compelling a sale, at least where the part owners were equally divided in opinion; 1 Bell's Comm. 503; 3 Kent's Comm. 153, 154. The Court will in its discretion exercise this jurisdiction in the case of a dispute between the owners of a foreign ship. The Evangelistria, 2 P. D. 241; The Agincourt, ibid. 239. (2) Helme v. Smith, 7 Bing. 709; Vanner v. Frost, 39 L. J., Chanc. 626. gross freight or proceeds of the cargo shall be applied in the first place to the payment of the expense of the outfit of the ship for the voyage on which the freight was earned; and the same rule applies to the expenses of repairs to the hull, done with a view to the particular adventure in which the earnings were made, and without which the adventure would not have been undertaken (a). By sect. 515 of the Merchant Shipping Act, 1854, all money paid on account of any loss or damage in respect whereof the liability of the owners is limited by Part IX. of the act, and all costs incurred in relation thereto, may be brought into account among part owners of the same ship, in the same manner as money disbursed for the use thereof. Part owners may, by the law of England, separate at any time by parting with their shares. The rule of the maritime law was different (b). Part owners are usually liable for necessary repairs and stores Power to bind ordered by one of themselves (c). But, strictly speaking, the each other. simple existence of co-ownership does not give power to one part owner to pledge the credit of the others; for it is clear that, in all cases in which it is sought to make one part owner liable upon the order of another, the real circumstances and position of the parties must be looked to in order to ascertain whether any agency exists in point of fact. In a recent case, one of two part owners had not done any act to induce the creditor to suppose that the other had power to pledge his credit, and had given notice to his co-owner of his intention not to sail the ship again, and had offered to sell his share in her; it was held that, under these circumstances, he was not liable for repairs subsequently ordered by his co-owner, although the notice of his intention to sell had not been communicated to the creditor (d). The principle and limit of this liability, where it exists, is that it is reasonable to suppose that a part owner on the spot is allowed by the absent part owners to order whatever is necessary for the preservation, navigation and proper em (a) Green v. Briggs, 6 Hare, 395; Alexander v. Simms, 5 De G., M. & G. 57. Wages, and the expense of manning the ship, are proper deductions to be made from the gross freight as between part owners of a ship and the assignee of the freight of another part owner. Lindsay v. Gibbs, 22 Beav. 522. (6) Molloy, B. 2, c. 1, s. 3. (c) See Ex parte Bland, 2 Rose, 92; Story on Agency, s. 40, and the cases as to repairs cited in the earlier part of this chapter. (d) Brodie v. Howard, 17 C. B. 109. See also as to the circumstances from which such an authority is implied. Preston v. Tamplin, 2 H. & N. 363, Affirmed in error, ib. 684. |