v. Royal Ex. Ass. Co. 105

OF THE OWNERS OF SHIPS IN GENERAL: THE MODES BY WHICH PROPERTY IN THEM IS ACQUIRED; THE RIGHTS AND LIABILITIES ATTACHED TO IT; AND HEREIN,

SECT. 1. Of Title by Building and Purchase, p. 1.

2. By Purchase from the Master, and of his Authority to sell, p. 5.

3. Of Title by Capture, p. 16.

4. Of the Liabilities of Owners of Ships for Repairs done, or Stores supplied to them, p. 20.

5. Of the Liabilities of Charterers and Owners, pro tempore, of Ships, p. 21.

6. Of the Rights and Liabilities of Mortgagees, p. 22.

7. The Liabilities of Owners and Charterers of Ships further considered, p. 25.

1. Of Title by Building and Purchase (a).

[ONE or more persons may acquire the property of a ship by building it at their expense, or by purchasing it of another who has authority to dispose of it. Upon the death of the owner, his interest devolves upon his executors or administrators (b);] it is transmitted to a husband on his marriage with the owner, and to trustees on the owner's bankruptcy or insolvency. [In the case of purchase, it is necessary that the person who takes upon him to sell should have power to do so (c); for although a sale of other goods by the person, who is in possession of them, does in many cases vest the property in the buyer, even when the seller himself has neither property in them nor authority to dispose of them, the same cannot take place with respect to ships, as there is no open market (d) for the sale of them. Indeed, this species of property appears from very early times to have]

(a) As to its being illegal to build or equip ships to be employed in the military or naval service of any foreign state at war with any friendly state, see the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90).

B

(b) The parts within brackets are the same as in the 5th edition of this work. See Preface to this edition.

(c) The Perseverance, 2 C. Rob. 239.
(d) Hooper v. Gumm, L. R. 2 Ch. 290.

Part I.

Contract for building.

Bill of sale of ship.

[been evidenced by written documents, and at present always is so, which other movable goods rarely are; and therefore the buyer has in this instance the means of ascertaining the title of any person who offers to sell, and can seldom be deceived except by his own fault.]

In general, under a contract for building a ship, or making anything not existing in specie at the time of the contract, no property vests in the purchaser during the progress of the work, nor until the vessel or thing is finished and delivered, or at least ready for delivery, and approved of by the purchaser, even although the contract contains a specification of the dimensions and other particulars of the vessel or thing, and fixes the precise mode and time of payment (a). But this is a question of the intention of the parties to be ascertained from the building contract.

:

In the case of Wood v. Bell, supra, it was held that steam engines designed on a peculiar plan, for the reception of which an engine room had been adapted, as also iron plates, angle irons and plankings pre-arranged for different parts of a ship, though not riveted or fastened to her, passed as against the assignees of a bankrupt builder to the purchaser. In this case Lord CAMPBELL, C. J., said, "When a man contracts with another to make an article for a given price, the general rule is, in the absence of all circumstances from which a contrary conclusion may be inferred, that no property passes in the chattel until it be completed and ready for delivery on the other hand, where a bargain is made for the purchase of an existing ascertained chattel, the general rule, in the same absence of opposing circumstances, is that the property passes immediately to the vendee, that is, that there is at once a complete bargain and sale. But these general rules are both and equally founded on the presumed intention of the parties. If in the former there are attendant circumstances from which the intention may be inferred that the property shall pass in the incomplete and growing chattel as the manufacture of it proceeds, or even in ascertained materials from which it is to be carried to perfection, that intention will be effectuated; and in the latter, if it appear that the parties intended to postpone the transfer of the property till the payment of the price of the performance of any other condition, such intention will be upheld in the courts of law."

Doubts have been entertained (b) whether, at common law, a delivery by parol without any bill of sale or other instrument of transfer,

(a) Mucklow v. Mangles, 1 Taunt. 318. Simmons v. Swift, 5 B. & C. 857. Rhode v. Thwaites, 6 B. & C. 388. Goode v. Langley, 7 B. & C. 26. Atkinson v. Bell, 8 B. & C. 277. Carruthers v. Payne, 5 Bing. 270. Dixon v. Yates, 5 B. & Ad. 813. Wood v. Bell, 5 E. & B. 772; S. C. in error, 6 E. & B. 355; 25 L. J. Q. B. 148. The Anglo-Egyptian, &c. Co. v. Rennie, 44 L. J. C. P. 130. Baker v. Gray, 17 C. B. 462. Goss v. Quinton, 3 M. & G. 825. Woods v. Russell, 5 B. & A. 942. Clarke v.

Spence, 4 Adol. & El. 448; 6 Nev. & Man. 416. Wilkins v. Bromhead, 6 M. & G. 963. Reid v. Fairbanks, 22 L. J. C. P. 206, Laidler v. Burlinson, 2 M. & W. 602. Battersby v. Gale, 4 Adol. & El. 458. Bell's Principles of the Law of Scotland, p. 486.

(b) See Judge Story's note to this section in the American edition, and see 1 Inst. 11 b. 182 a. Meggadow v. Holt, 12 Mod. Rep. 15. Lethulier's case, 2 Salk. 443.