law confer authority to sell the ship (e). But it seems now to be established that where a ship in a foreign country (or her cargo) has been sold by the order of a Court there of competent jurisdiction, the sale must, in the absence of fraud, be regarded as valid (ƒ). In some cases a distinction has been drawn between a sale ordered in the course of proceedings in personam, and a sale ordered in the course of proceedings in rem; but it is apprehended that the principle of the recent decisions bearing upon this question rests not upon any matter of form, but upon the broad ground 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. The rule is thus expressed by Mr. Justice Blackburn, in delivering the opinion of the judges, in the case of Castrique v. Imrie (g): "We think the inquiry is first, whether the subject-matter was so situated as to be within the lawful control of the state under the authority of which the Court sits; and secondly, whether the sovereign authority of that state has conferred on the Court jurisdiction to decide as to the disposition of the thing, and the Court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive." The true foundation for the jurisdiction in such cases seems to be that everyone is supposed to give to the state under whose protection he places his property jurisdiction over that property (h). (e) See Simpson v. Fogo, 32 L. J., Ch. 249; 1 H. & M. 195; the judgment of Byles, J., in Cammell v. Sewell, 3 H. & N. 617, and the cases there cited. See also Liverpool Marine Credit Co. v. Hunter, L. R., 4 Eq. 62; 3 Ch. 479. (f) Cammell v. Sewell, 3 H. & N. 617; S. C., in error, 5 H. & N. 728; Messina v. Petrococchino, L. R., 4 P. C. 144. The judgment of course may be impeached on the ground of fraud; Ochsenbein v. Papelier, L. R., 8 Ch. 695. Whether it may be impeached on the ground that the foreign tribunal has knowingly and perversely disregarded the rights given to an English subject by English law, is a question which cannot be regarded as authoritatively settled. In a case where a defendant was sued in this country on a judgment obtained against him in an action in personam, instituted in a foreign tribunal, and it appeared upon the face of the proceedings that the judg The ment proceeded upon a mistake as to English law, it was held by a majority of the judges that the foreign judgment could not be impeached; Godard v. Gray, L. R., 6 Q. B. 139. The judgment of the Common Pleas Division in the more recent case of Meyer v. Ralli, 1 C. P. D. 358, may appear to modify to some extent the law as laid down in Godard v. Gray. judgment in the latter case, however, treats the sale of the ship and cargo as a valid sale, but as it was admitted that the sale included a portion of the cargo, which it was the duty of the master to have trans-shipped and forwarded, the Court held that it could not affect the right of the owner as against his underwriter, by making that a total loss, which apart from the sale was clearly not a total loss. (g) L. R., 4 H. L. 414, at page 429. (h) See Wharton on the Conflict of Laws, sect. 800. But it seems the jurisdiction thus conferred does not By private persons. Bill of sale. It is scarcely necessary to observe that ships are personal property; like other goods and chattels, therefore, they pass to 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 (i), or by an agreement to be completed in futuro, coupled with delivery. Ships, however, from their great value, and frequent absence from port (k), 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 (1) (since mere possession is primâ facie evidence of ownership (m)), 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 (n). However this may be, a bill of sale is the universal instrument of transfer in all countries, and is the proper title to which a maritime Court looks (o); 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 (p). 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; and, 2, the ordinary bill of sale, by which any subsequent transfer was made. Now, however, the term grand bill of sale is never used, and the builder's certificate is commonly the only document delivered by the builder to the first purchaser as evidence of his title (q). No stamp duty is payable on bills of sale, assignments or other conveyances of ships (r). extend beyond the property. See the (i) Tarling v. Baxter, 6 B. & C. 360, Mol (4) Being invented "to plow the (1) Sutton v. Buck, 2 Taunt. 302. (m) Robertson v. French, 4 East, 130; Amery v. Rogers, Esp. 207; Thomas v. Foyle, 5 Esp. 88; Pirie v. Anderson, 4 Taunt, 652. (n) See Abbott on Shipping, p. 2. (0) Per Sir W. Scott, in The Sisters, 5 Rob. 159. In The Eliza Cornish, 17 Jur. 738; S. C., 1 Spinks, 36, Dr. Lushington said, ships in general cannot be sold save by an instrument in writing." 66 (p) Atkinson v. Maling, 2 T. R. 462. (a) See supra, p. 18. (r) The 6 Geo. 4, c. 41; the M. S. Act, 1854, s. 9; and the 33 & 34 Vict. c. 97, s. 3, and Schedule. of M. S. Act The Merchant Shipping Act, 1854, provides by sect. 55, that Requirements a registered ship or any share therein, when disposed of to per- on sale. sons 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 (s), or such other description as may be sufficient to identify her to the satisfaction of the registrar, and must be in the prescribed form (†), or as near thereto as circumstances permit, and must be executed by the transferor in the presence of and be attested by one or more witnesses (u). (8) See ante, p. 7, n. (q). (t) 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." Where a warranty is entered into on the sale of a ship, it is not necessary that the warranty should appear on the face of the bill of sale; Stuckley v. Baily, 3 F. & F. 1; 1 H. & C. 405; 31 L. J., Ex. 483. See Chapman v. Callis, 9 C. B., N. S. 769; 30 L. J., C. P. 241. (u) For the form now in use see Appendix, "Forms," No. 10. It will be observed, that the bill of sale is now under seal. By the 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., M. & G. 349; M'Calmont v. Rankin, 2 De G., M. & G. 403; and this was so even against a purchaser, with notice of the prior sale; Coombes v. Mansfield, 3 Drew. 193, in which case it was said, that the operation of the Ship Registry Acts precluded any applica tion 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 even where the purchaser of a ship fraudulently took away the bill of sale and got it registered without having paid the purchase-money; Follett v. Delany, 2 De G. & Sm. 235. By the 8 & 9 Vict. c. 89, s. 37, it was provided, that no bill of sale or other instrument should be valid and effectual to pass the property in any ship or share, or for any other purpose, until it had been produced to the collector, and he had entered certain particulars in the book of registry. Under this section it was held, that a mortgage not registered was inoperative; Parr v. Applebee, 7 De G., M. & G. 585; although it seems that a contract relating only to the produce of a sale of a ship would be enforced; Ib. and Armstrong v. Armstrong, 21 Beav. 78. Accordingly the registration had no effect by relation, so as to defeat the title of assignees of a bankrupt mortgagor accruing subsequently to the execution of the bill of sale, but previously to the registration. truth, the bill of sale was not in legal existence until registered; Boyson v. Gibson, 4 C. B. 121, decided upon the corresponding sections of the 3 & 4 Will. 4, c. 55. The old Registry Act, 34 Geo. 3, c. 68, s. 15, after directing that the indorsement should be made, enacted that, "otherwise such sale or contract, or agreement for sale, shall be utterly null and void to all intents and purposes whatsoever." Upon this section it was held that the transfer of a ship at sea vested the property in the vendee, subject only to be divested by the neglect of the vendor to make the indorsement within the proper time, and that although a bankruptcy intervened before the arrival of the In Declaration by transferee By the 11th sect. of the Merchant Shipping Act, 1855, 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. But a contract which fails to observe the requirements of the statutes will be valid and will create equitable rights between the parties to it. Thus the property in a ship may pass as between a vendor and vendee by an unregistered bill of sale (u). It is provided by sect. 56 of the Merchant Shipping Act, 1854, that, before a person can be registered as transferee of a ship, he must make a declaration in a prescribed form, stating 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 (c), 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 an individual, this declaration must be made, if he reside within five miles of the custom house of the port of registry, in the presence of the registrar, but if beyond that distance, it may be made in the presence of any registrar or of any justice of the peace. In the case of a body corporate the declaration must be made in the presence of the registrar of the port of registry. ship, the indorsement, being only an V.-C. In Coombes v. Mansfield, 3 Drew. 193, Kindersley, V.-C., refused, when a ship had been registered by the proper authority, to inquire whether the registry ought to have been effected, and said, it must be assumed that the registration was regular and valid. See also Benham v. Keane, 31 L. J., Chanc. 134. (u) Stapleton v. Haymen, 2 H. & C. 918; 33 L. J., Ex. 170. See The Spirit of the Ocean, Br. & Lush. 336; The M. S. Act, 1862, s. 3. See post, p. 56. (e) For the forms now in use, see Appendix, "Forms," Nos. 2-7. (a) See Appendix, "Forms," No. 8. By sect. 57, every bill of sale for the transfer of a registered ship, or of any share therein, must, when duly executed, be produced to the registrar of the port at which she is registered, together with the transferee's declaration; and the registrar is to Entry in enter in the register book the name of the transferee as owner of register book. the ship or share comprised in the bill of sale, and indorse on the bill of sale the fact of such entry having been made, with the date and hour thereof. Bills of sale must be entered in the register book in the order of their production to the registrar (y). The Registry Act, 8 & 9 Vict. c. 89 (now repealed), contained special provisions to meet the case of several transfers by sale of the same ship or shares, under which provisions priority was given to the vendees, not according to the order in which their bills of sale were entered in the registry book, but according to the time when the indorsement of the particulars of the bills of sale was made on the certificate of registry (). These provisions are omitted in the statute now in force. The certificate of registry is no longer the essential evidence of title, and the priority of vendees appears to depend, although the statute does not declare this in terms, upon the order in which the bills of sale are entered by the registrar in the register book which has just been mentioned. LAW. Before the passing of the Merchant Shipping Act, 1854, it TRANSFER BY was held that the Ship Registry Acts applied only to transfers OPERATION OF made by the acts of the parties, and not to those effected by operation of law, such as the vesting in the assignees of a bankrupt (a), or the transfer from a testator to his executor, or to the next of kin, or to residuary legatees (b). But by the 58th section of the Merchant Shipping Act, 1854, it is provided, that if the property in a ship or share becomes transmitted in consequence of the death, bankruptcy or insolvency of a registered owner, or the marriage of a female registered owner, or by any lawful means other than by a transfer ac (y) The present act for the first time requires the date of the entry to be indorsed on the bill of sale. The 8 & 9 Vict. c. 89, required the date of the production of the bill of sale to be entered. See as to this, R. v. Philp, 1 Moody, C. C. 263. Sect. 61 of the M.S. Act, 1854, provides, that of the documents required to be produced to the registrar he is to retain in his pos- () The 8 & 9 Vict. c. 89, ss. 38 to 41. |