CHAPTER II. OF PROPERTY IN BRITISH SHIPS; AND OF THE HISTORY, POLICY, AND REGULATIONS OF THE REGISTRY ACTS; AND HEREIN, (SECT.) 1. The Description and Ownership of British Ships, p. 47, 50. 2. The Measurement of Tonnage, p. 51. 3. The Registry of Ships, p. 51. 4. Of the Certificate of Registry, p. 56. 5. Of Transfers and Transmissions of Ships and Shares of Ships, p. 59. 7. Of Certificates of Mortgage and Sale, p. 61. 8. Of Registry anew, and Transfer of Registry, p. 63. 9. Registry-Miscellaneous, p. 64. 10. Fishery Boats, Lighthouse Boats, and pleasure Yachts, p. 65. 11. Evidence of Affidavits, Books of Registry, Certificates, &c., p. 66. 12. Offence of Forging or Fraudulently altering Documents, making False Declarations, &c., p. 70. ALL commercial nations have, for the advancement of their individual prosperity, conferred various privileges of trade upon the ships belonging to their own countrymen; and the legislature of this nation has, for the same purpose, at different periods, enacted laws suitable to the circumstances of the times, requiring for the exercise of some particular branches of commerce, ships, not only the property of its own subjects, but also of the build of its own dominions-allowing other branches to ships the property only of its own subjects, without regard to the build; and, in others, in which foreign ships were suffered to participate, favouring those of its own subjects by a difference in the rate of duties. It has, however, at all times been the policy of the legislature to confine the privileges of our trade, as far as was consistent with the extent of it, to ships built within the King's dominions; but it was reserved for the reign of George the Third to see the shipbuilding of the country advanced to such a state as to warrant the confinement of those privileges exclusively to ships of that description, or taken as prize in war. And, accordingly, this measure was carried into execution by a statute, the 26 Geo. 3, c. 60, reserving, however, to such foreign-built ships as were then the property of his subjects, the privileges to which they were then entitled by the existing laws. For the more effectual execution of this important measure of public policy, various new regulations were at the same time introduced to ascertain the build and property of ships, which were afterwards improved by subsequent statutes (a), as experience showed that some particulars, notwithstanding the great attention paid to the original statute, and the great talents employed in framing it, had not been sufficiently provided for by it. The great, and, perhaps, the only original object of these statutes was to advance the public policy of the state, by the notoriety of property obtained through the medium of a public register, a measure adopted, with numerous improvements, from the wisdom of former times (b). They were often, and upon the whole perhaps truly, considered beneficial in another point of view-namely, as calculated to prevent the commission of private fraud upon individuals; but the instances in which fair and honest transactions are rendered unavailable through a negligent want of compliance with the forms directed by these and other statutes requiring a public register of conveyances, make the expedience of all such regulations, considered with reference to private benefit only, a matter of question and controversy. It happened also with regard to these statutes, as to all others of a similar kind, that doubts and difficulties arose upon their construction, and upon the application of general rules and enactments to particular cases. The matters to be provided for were very numerous and very various. The difficulty of framing positive regulations, even for objects of a limited nature, is much greater than those who have not tried the experiment themselves, or attended with candour to the experiments of others, are ready to admit. It will often happen, that defects can be discovered, and inconvenience manifested, by experience alone. After an experience of somewhat more than thirty years, it was thought advisable to make many alterations, and to comprise the whole subject in one statute, and, accordingly, all the former acts were repealed, and a new statute passed in the fourth year of the reign (a) 27 Geo. 3, c. 19; 34 Geo. 3, cc. 42, 68; 35 Geo. 3, c. 58; 37 Geo. 3, c. 63. (b) The registering of ships appears to have been first introduced into practice in this country by the Navigation Act, 12 Car. 2, c. 18, s. 10, A.D. 1660, for it is not mentioned in the Navigation Ordinance in the time of the usurpation; but the statute of Charles the Second only requires foreign ships, British-owned, to be registered. The statute 7 & 8 Wm. 3, c. 22, s. 17, requires British or Plantation-built ships, British. owned, if intended to be employed in the Plantation trade, and also prize ships, to be registered. And ships for which Mediterranean passes were wanted were also registered in consequence of a regulation at the Admiralty, although a register was not required by statute for British ships employed in the Mediterranean trade, as we learn from Reeve's History of the Law of Shipping and Navigation, p. 423. Louis the Fourteenth, by an ordinance dated the 24th October, 1681, required all his subjects to make a declaration in the Admiralty of the place of residence of all ships belonging to them, whether built in France or foreign countries, and of the names of the several part-owners, who were to be Frenchmen only, and resident in France, in order to preserve the privileges of the national flag to his own subjects. See Valin on the French Ordinance, tom. i. 564, &c. The first article of the Hanseatic Ordinance of 1614 prohibits the building of ships in the Hanse Towns to all except citizens, and persons having the particular permission of the magistrates of the place. An Act of Congress of the 31st of December, 1792, ch. 1, contains regulations for registering ships in the United States of America, the greater part of which correspond almost exactly with those of our statute of 26 Geo. 3, c. 60. The national privileges of trade are confined to ships belonging to and commanded by citizens of America, and either built within the United States, or belonging to American citizens, on the 16th of May, 1789, and continually thereafter, or taken and condemned as prize in war; or forfeited for a breach of the laws of the United States. of George the Fourth, which took effect for general purposes on the 1st of January, 1824 (c). In the sixth year of the same reign, all the statutes relating to the customs were repealed, in order to bring the whole of that extensive and complicated subject into a very few acts; and it being considered, that by this measure the Registry Act of the fourth year of that reign was virtually repealed, the 6 Geo. 4, c. 110, and 7 Geo. 4, c. 48, were passed. These acts were superseded by the 3 & 4 Wm. 4, c. 55, which, with some few modifications, was re-enacted by the 8 & 9 Vict. c. 89, the Registry Act in force when the 9th edition of this work was published. So much of this last act as limited the privileges of vessels registered at Malta, Gibraltar, and Heligoland, and provided that no vessel should be registered which was not of the build of the British dominions, and related to the disqualification of ships repaired in a foreign country, and prevented ships captured, or sold to foreigners, from being entitled to be again registered as British ships, in case they again became the property of British subjects, was repealed by the 12 & 13 Vict. c. 29, since also repealed by the 17 & 18 Vict. c. 120. The object of the legislature in those statutes was to confine the privileges of British ships to ships of the build of the British dominions, navigated by a certain proportion of British seamen, and duly registered. A British ship was not absolutely required to be registered, but could not legally exercise, and was subject to forfeitures for exercising, the privileges of a British ship without being duly registered. These privileges were much restricted, being limited to the coasting trade of the United Kingdom and the Isle of Man, the trade of the Channel Islands, and the coasting trade of the British possessions, by the 12 & 13 Vict. c. 29, which extended the right of importing goods into this country and her colonies, theretofore confined to British ships, and to those of the countries of which the goods were the produce, to ships of foreign build, owned by British subjects residing abroad, or by foreigners who had been naturalized. So much of this last statute as required every British ship to be navigated by a master who was a British subject, and by a crew of whom a certain proportion were British subjects, was repealed by the 16 & 17 Vict. c. 131. The Merchant Shipping Act, 1854 (d), 17 & 18 Vict. c. 104, now in force, came into operation on the 1st of May, 1855 (e), and has introduced a variety of important alterations of the law relating to the ownership, measurement, and registry of British ships. It will be convenient to consider these provisions according to the order adopted by the legislature in their enactment, abstracting them, (e) 4 Geo. 4, c. 41. (d) On reference to the schedule of the Merchant Shipping Repeal Act, 1854, 17 & 18 Vict. c. 120, it will be seen that nearly the whole of forty-seven statutes, beginning with the 8 Eliz. c. 13, "Touching Sea-marks and Mariners," and ending with the 17 & 18 Vict. c. 5, "An Act to admit Foreign Ships E to the Coasting Trade," has been repealed. The substance of them, extending over 1000 sections, is now (with many important alterations) condensed into 548, by the Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104. (e) Amended by 18 & 19 Vict. c. 91 (1855), and 25 & 26 Vict. c. 63 (1862). with occasional references to the former state of the law, and introducing or noticing such of the decisions on the former statutes as seem applicable to or illustrative of the present, under the following heads:1. The Description and Ownership of British Ships. 2. The Measurement of Tonnage. 3. The Registry of Ships. 4. The Certificate of Registry. 5. Transfers and Transmissions of Ships and Shares of Ships. 6. Mortgages. 7. Certificates of Mortgage and Sale. 8. Registry anew, and Transfer of Registry. 9. Registry-Miscellaneous. 10. Fishing Boats, Lighthouse Boats, and Pleasure Yachts. 11. Evidence of Affidavits, Books of Registry, Certificates, &c. 12. Offence of Forging or Fraudulently altering Documents, making False Declarations, &c. 1. Description and Ownership of British Ships. No ship shall be deemed to be a British ship, unless she belongs to owners who are natural-born British subjects (e), or persons naturalized or made denizens by letters of denization, or bodies corporate, established under, subject to the laws of, and having their principal place of business in, the United Kingdom, or some British possession. A natural-born subject who has taken the oath of allegiance to a foreign sovereign or state, cannot be such owner, unless he has subsequently taken the oath of allegiance to her Majesty, and continues, while owner, to be resident in her dominions, or member of a British factory, or partner in a house carrying on business within her dominions (f). These conditions apply also to persons naturalized or made denizens. Every British ship must be registered under the Act-except those registered before it came into operation, ships not exceeding fifteen (g) tons burden, employed on the rivers or coasts of the United Kingdom, or of some British possession in which the managing owners are resident, or ships not exceeding thirty tons burden, not having a whole or fixed deck, and employed solely in fishing or trading coastwise on the shores of Newfoundland or parts adjacent thereto, or in the Gulf of St. Lawrence, or on such portion of the coasts of Canada, Nova Scotia, or New Brunswick, as lie bordering on such gulf. Ships required by the Act to be registered shall not, if unregistered, be recognised as British ships. Officers of customs are not to grant clearance or transire to the master of any ship who (e) See Reg. v. Arnaud, 9 Q. B. 817. (f) Sects. 18, 38, 39, 53, 55, 81, and 25 & 26 Vict. c. 63, s. 3. (g) Vessels not exceeding this tonnage were, under 12 & 13 Vict. c. 29, s. 30 (repealed), admitted to be British ships, if the property of British subjects, and employed in English and Colonial coast and river navigation, and it has been held that such boats or vessels might be transferred without a bill of sale, &c. as required for transfer of other vessels. does not, on being required to do so, produce the certificate of her registry; and may detain such ship if she attempts to proceed to sea as a British ship without such clearance or transire (h). 2. The Measurement of Tonnage. For information respecting the new mode of admeasurement, which could be useful for any practical purpose, reference must be had to the Act itself. The object of all rules for measuring ships is to ascertain, with the utmost possible accuracy, the space in them applicable to the carriage of cargo and passengers. After much complaint of the errors of the then existing law, a commission appointed by the government, in 1849, recommended the adoption of a system of external instead of internal measurement. But that plan was found open to serious objections; and the one now adopted-the result of the study and scientific knowledge of Mr. Moorsom, a member of the commission-was submitted to and approved of by a large number of intelligent shipowners and others interested in, and acquainted with, the subject. As regards the space below the tonnage deck, the principal differences between the new plan and the one prescribed by the 8 & 9 Vict. c. 89, consist in these particulars:-the number of measurements taken is greater, it increases with the size of the ship, and they are combined according to a well-known mathematical law, commonly called "Stirling's Rule," for determining the cubical contents of bodies. The Act also contains provisions for measuring the space between decks; also ships with cargo on board; steam and open vessels (i). The owners of existing ships are allowed, but not obliged, to adopt the new measurement. 3. The Registry of British Ships. The following persons are required to register British ships, and are to be deemed registrars for the purposes of the Act : The collector, comptroller, or principal officer of customs, at any port or place of the United Kingdom or the Isle of Man, approved by the Commissioners of Customs for the registry of ships; the principal officers of customs, and the governor, lieutenant-governor, or other person administering the government of the islands of Guernsey or Jersey; the governor, lieutenant-governor, or person administering the government of Malta, Gibraltar, and Heligoland; the collector of duties, together with the governor, lieutenantgovernor, or other person administering the government at any port or place so approved as aforesaid, and at which no Custom-house is (h) 17 & 18 Vict. c. 104, s. 19. (1) Sects. 20-30, and see a memorandum on the Shipping Laws Consolidation Bill, by Henry Thring, barrister-at-law, and Thomas |