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THE

SHIP.MASTER'S ASSISTANT.

PART I.

CHAPTER I.

OWNERS OF SHIPS.

THE interests of owners and masters of ships are in some respects so intimately blended one with the other, that it is almost impossible to treat of them to all purposes separately so far, however, as those interests admit of distinct, as well as combined, considerations, they are comprehended in this and the following chapter.

The property of ships is most frequently acquired, like that of other chattels, either by being the fabricator, or purchaser, of the article.

There is, however, a great and distinguishing difference, imposed by statute, between ships, and all other personal chattels; for by former statutes, and lastly, by 6 Geo. IV. c. 110, it is required, that the property in ships shall only be transferred by a bill of sale, or other instrument in writing, accompanied by certain other formalities therein specified, by which the seller exhibits his power to sell or transfer, and the purchaser may ascertain the safety of his purchase. This provision has been made principally on account of the great distances from the supervision and superintendence of the owners, at which vessels engaged in trade must frequently be, and also as an additional security to the objects of the registry acts.

Compliance with the directions of the registry statute accomplishes a complete legal alienation and transfer, in all cases where such alienation and transfer would not have been illegal in its nature before that statute; but mere compliance with those directions in point of form, cannot confer a validity on a conveyance which antecedently would have been in its nature bad and invalid. For this reason, it is discreet, in all cases where a delivery is possible, to add possession also to the title acquired by the "bill of sale or other instrument," as a caution to remove such contracts from the operation of the bankrupt laws, and from any presumptions of courts upon cases where an execution may issue against an apparent owner.

The whole subject, in all its bearings, as involved in the necessity of compliance with the specified regulations of the law, and the prudence of superadding subsequent possession is fully considered, in three decided cases; viz. Mair v. Glennie, 4 Maule and Selwyn's Rep. 240. Robinson v. Macdonnel, Selw. 1142. And Hay v. Fairburn, 2 Barnewall and Alderson's Rep. 193. In all these cases the transfer had been regular according to the rules prescribed by the statute, but no possession had been subsequently taken by the purchasers; owing to which neglect, and the vendors becoming bankrupts while in the ostensible possession, their creditors came in.

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In addition to building and purchase, which we have above stated to be the most general titles to the property of ships, two others confer similar rights; viz. capture and mortgage. Of the former of these it is unnecessary to say much in this place. In time of war, king's ships, vessels having letters of marque, and merchant vessels fighting in their own defence, have legal right to make prizes; and such prizes having been condemned in the proper courts for taking cognizance of such matters (see PART II. the Registry Act,) are in the same situations as vessels built or purchased by the possessors.

Of titles by mortgage it is right to take more particular notice, as well on account of the greater intricacy in which rights so acquired are involved, as on account of the frequency of their occurrence. The mortgagee of a ship, who is not in actual possession, but only holds the mortgage merely as a security for money advanced, is in the same situation as the mortgagee of land; he is not bound by any contracts to which he has been no party and given no consent: therefore no credit given for repairs, stores, wages, or other expenses of the vessel, (not being given to him,) attaches any obligation upon him in his quality of mortgagee, if not in possession and deriving profit from it as an owner or part owner. This construction of a mortgagee's liability has been sanctioned by numerous determinations. The leading cases are Jackson v. Vernon, 1 H. Black, 114. Twentyman v. Hart, 1 Starkie, 366. and Mac Iver v. Humble, 16 East, 169.

Besides the statute 6 Geo. IV. c. 110, which may be considered as exclusively interesting to owners of ships, and to those who desire to become so; owners, as well as masters, have a common interest in the following statutes.

26 Geo. III. c. 86.-An act to explain and amend an act, made in the seventh year of his late Majesty's reign, intituled "An act to settle how far owners of ships shall be answerable for the acts of the master or mariners; and for giving a further relief to the owners of ships."

Whereas by an act made in the seventh year of George II., &c. it is amongst other things enacted, that no owner of any ship, &c. should be liable for any loss or damage, by reason of any embezzlement (by the master or mariners) of any gold, silver, diamonds, jewels, &c. which should be shipped on board any ship, or for any act, &c. done by the said master or mariners, without the privity and knowledge of such owner, further than the value of the ship, with all her appurtenances, and the full amount of the freight due, or to grow due during the voyage. And whereas all masters and owners of ships are by law liable to make good to any person the full value and amount of any goods, &c. by such person shipped on board any ship, notwithstanding such goods be lost by robbery, fire, or other accident, (other than by the king's enemies, the perils of the sea, and the act of God,) or unless the master or ship's company are privy to such robbery, in which case alone the responsibility of the owner is by the said act limited to the value of the ship and full amount of the freight; and whereas it is of the utmost consequence to the general welfare of this kingdom, to promote the number of ships, and to prevent any discouragement to merchants and others from being interested and concerned therein, which is likely to happen from the responsibility to which they are now exposed, notwithstanding the salutary intention of the said act. Be it enacted, &c. that,

1. Owners not answerable for loss of goods, by masters or mariners, beyond the value of ship and freight.-No person, who is owner of

any ship or vessel, shall be liable to answer or make good any loss or damage, by reason of any robbery, embezzlement, secreting, or making away with, of any gold, silver, diamonds, jewels, precious stones, or other goods or merchandise, which shall be shipped on board any ship or vessel; or for any act, damage, or forfeiture, done or incurred from the passing of this act, without the knowledge of such owner; farther than the value of the ship or vessel, with all her appurtenances, and the full amount of the freight due, or to grow due, for the voyage wherein such robbery, embezzlement, secreting, or making away with, shall be made, although the master or mariners shall not be concerned in, or privy to, such robbery, embezzlement, secreting, or making away with.

2. Owners not answerable for loss by fire.-No owner of any ship or vessel shall be liable to answer or make good any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, and put on board such ship or vessel, by reason or means of any fire happening to, or on board of, the said ship or vessel.

3. Masters or owners not answerable for loss of goods, unless their nature, quality, and value, are made known upon shipping.—No master or owner of any ship or vessel shall be subject or liable to answer for, or make good, any loss or damage which may happen to any gold, silver, diamonds, watches, jewels, or precious stones, which shall be shipped on board any such ship or vessel, by reason of any robbery, embezzlement, making away with, or secreting thereof, unless the owner or shipper thereof shall, at the time of shipping the same, insert in his bill of lading, or declare in writing to the master or owner of such ship or vessel, the true nature, quality, and value of such gold, silver, diamonds, &c.

4. When ship and freight are not equal to all the losses.—If several freighters or proprietors of any such gold, silver, &c. shall suffer any loss or damage by any of the means aforesaid, in the same voyage, (fire only excepted,) and the value of the ship or vessel and freight shall not be sufficient to make full compensation to all of them, then such freighters or proprietors shall receive satisfaction thereout in proportion to their respective losses; and, in every such case, it shall be lawful for such freighters, or proprietors, or any of them, on behalf of himself, and all other such freighters or proprietors, or for the owners of such ship, to exhibit a bill, in any court of equity, for a discovery of the total amount of such losses, and of the value of such ship or vessel, appurtenances, and freight, and for an equal distribution and payment amongst such freighters or proprietors, in proportion to their respective losses, according to the rules of equity. Provided that, if any such bill shall be exhibited on behalf of the part-owners of such ship, the plaintiff or plaintiffs shall thereto annex an affidavit, that he or they do not collude with any of the defendants; and shall thereby offer to pay the value of such ship or vessel, appurtenances, and freight, as such court shall direct.

5. Remedies against the master and mariners.-Provided that nothing shall extend to discharge any remedy which any person or persons now hath or have, or may hereafter have, against the master or mariners of such ship, in respect of any embezzlement, secreting or making away with, any gold, silver, &c. shipped or loaden ou board such ship or vessel; or on account of any fraud, abuse, or malversation, of and in such master and mariners respectively; but

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