registrar can be required to record it without the express directions of the Commissioners of Customs (t). The instrument must contain all the particulars relating to the vessel, and must be under seal, and be attested and registered; provided that an absolute assignment may operate as a mortgage, if the parties clearly intended it to be a mortgage only (u). transfer of If more than one mortgage of the same British ship, or Priority and of the same share in her, be registered, the mortgagees mortgages. will have priority according to the dates of the registration of their respective mortgages, in spite of any notice, express or implied, which they may have had (x). Thus, in the case of registered mortgages on ships, there can be no tacking; priority will not depend on the dates of the execution of the different mortgages. When any registered mortgage is transferred or discharged, the registrar must enter such transfer or discharge on the register (). He has no power to erase entries of mortgages (z). The transfer may be by an indorsement on the mortgage (y). Any transmission of a mortgage on a British ship, or share in it, by the death, bankruptcy or insolvency of the mortgagee, or in consequence of the marriage of a female mortgagee, must also be registered. Such transmission must be authenticated by a declaration made in the statutory form (a). CASE. A., after insuring his ship, transferred it, but without the policy, to B. The transfer on the register, though absolute in form, was in fact by way of mortgage. The ship foundered. Held:-That (t) 18 & 19 Vict. c. 91, s. 11. (u) Myers v. Willis, 17 C. B. 77; Hutchinson v. Wright, 25 Beav. 444; see "Case" at end of this §; Ward v. Beck, 13 C. B., N. S. 668; The Innisfallen, L. R., 1 A. & E. 72; see "Cases" (1), on page 18. (a) 17 & 18 Vict. c. 104, s. 69. (z) Chasteauneuf v. Capeyron, 7 Rights of mortgagor and mortgagee of a British ship1. Of mortgagor; 2. Of mort gagee. A., since he was liable for the mortgage debt, had a sufficient interest in the ship to entitle him to recover the whole loss (b). § 14. The mortgagor of a British ship will remain the owner and have the control till the mortgagee take possession of the ship, except so far as may be requisite for the purposes of the security (c). Consequently the contracts of the mortgagor of a British ship, or share in it (e. g. for repairs), made bonâ fide by him while in possession of the vessel for the employment of such vessel, will bind the mortgagee, though the mortgagee cannot personally be sued thereon (d); provided they do not impair the security of the mortgagee (e). But he cannot assign to a third party freight not due, so as to defeat the mortgagee (ƒ). If the mortgagor of a ship in possession effect a charterparty, in no way prejudicial to the mortgagee's security, the mortgagee will be bound thereby, though the effect of the charter-party will be to remove the ship out of the jurisdiction (g). The mortgagor of a ship in possession has an implied authority to give a lien for cost of repairs, necessary to keep the ship seaworthy (h). The mortgagee of a ship, or share in it, is entitled to the possession of the vessel or share, and all its earnings (i); subject, however, to all legal liens (). With respect to when possession should be taken, it may be laid down as a general rule that if the mortgagee (b) Hutchinson v. Wright, 25 Beav. (c) 17 & 18 Vict. c. 104, s. 70. (f) Brown v. Tanner, L. R., 3 of this §. (g) The Fanchon, 5 P. D. 173; 50 L. J., P. 4; 42 L. T. 483. (h) Williams v. Allsup, 10 C. B., N. S. 417. (i) The European and Australian R. M. Co. v. Royal Mail S. P. Co., 30 L. J., C. P. 247. (k) Williams v. Allsup, 10 C. B., N. S. 417; The Mary Ann, L. R., 1 A. & E. 8; The Jenny Lind, L. R., 3 A. & E. 529. take possession after the ship has arrived in dock, but before the cargo is delivered, the mortgagee will be entitled to the mortgagor's liens thereon, and also to the freight. For then only the right to freight generally accrues (m). But where only a share of the ship is mortgaged, the mortgagee of course cannot take possession of ship, but he will be left to assert his claim by such intervention as may be practicable (n). The mortgagee immediately on taking possession becomes the owner of the ship or share, and as such is entitled to receive the freight, whether due or being earned by the vessel when he takes possession (o), or a proportionate part of it. He does not become entitled to the freight by virtue of any antecedent contract or right (p). He will also be entitled to any lien on the cargo which the mortgagor had (p). On the other hand, he will then become liable on the ship's contracts. The mortgagee of a British ship in possession may use it as he pleases, provided he employs it bonâ fide, and with due regard for its safety (7). Every mortgagee, whose mortgage has been registered, can dispose of by sale, or otherwise alienate the subjectmatter of, his mortgage. Provided that if he be a puisne mortgagee, the consent of the first mortgagee must be obtained to the alienation, unless the mortgaged ship, or share in it, be disposed of under the order of some court having jurisdiction in the matter (r). On the mortgagor of a British ship, or of any share or (m) Cato v. Irving, 5 De G. & S. 210; Rusden v. Pope, L. R., Ex. 269; Beynon v. Godden, 3 Ex. D. 263. (n) Beynon v. Godden, 3 Ex. D. 263. (0) Kerswill v, Bishop, 2 C. & J. 529; Brown v. Tanner, L. R., 3 Ch. 597; see "Cases" at end of this §; Gumm v. Tyrie, 6 B. & S. 298; Wilson v. Wilson, L. R., 14 Eq. 32. (p) Keith v. Burrows, 1 C. P. D. 722; 2 C. P. D. 163; 2 App. Cas. 636. (q) De Mattos v. Gibson, 30 L. J., Ch. 145; Marriott v. The Anchor Reversionary Co., 30 L. J., Ch. 571; see "Cases" at end of this §. (r) 17 & 18 Vict. c. 104, s. 71; Banner v. Berridge, 18 Ch. D. 254 ; 50 L. J., Ch. 630; 4 Asp. M. C. 420. shares in it, becoming a bankrupt, the mortgagee will be preferred to the creditors' trustee, and the mortgaged property will not be considered as in the order and disposition of the bankrupt, within the meaning of the Bankruptcy Act, 1869 (s). CASES. 1. A shipowner mortgaged his ship to T., and by a deed of even date assigned to T. all charter-parties and freight. By a charterparty subsequently effected, the owner obtained a lien for the freight on the cargo. During the voyage the owner assigned the freight to B., who knew of the mortgage. On the ship's arrival in port, and before the freight was payable, T., as mortgagee, took possession of her. Held:-That T. was entitled to the freight in priority to B. (t). 2. A shipmaster has under the Admiralty Court Act, 1861 (24 Vict. c. 10), s. 10, a lien both in respect of his wages and disbursements. His claim for wages was therefore held to have priority over a claim of a mortgagee (u). 3. The mortgagee of a steamer used her for the purposes of a speculation, which resulted disadvantageously, and she was subsequently sold at a loss. Held :-That the loss must be borne by the mortgagee, he being charged with her value when he took possession of her (x). (s) 17 & 18 Vict. c. 104, s. 72. (t) Brown v. Tanner, L. R., 3 Ch. 597. (u) The Mary Ann, L. R., 1 A. & E. 8. (x) Marriott v. The Anchor Reversionary Co., 30 L. J., Ch. 571. CHAPTER IV. CAPTURE AND PRIZE. § 15. THE property in a ship captured from the enemy does not Title to prize, how acquired. vest in her captors, unless and until it has been condemned by a competent court of the capturing power, constituted according to the rules of International Law. Consequently, before condemnation such a ship cannot be registered as a British ship, though she can after, on an official copy of the condemnation being produced (a). The decision of a competent court of the capturing power is, except in two instances, conclusive in determining the validity of the capture (b). The two exceptions are:(1) where the capture was made in the waters of a neutral state, and (2) where it was made by an armed vessel, which had been equipped in a port belonging to a neutral state. In these two cases the right to determine the validity of the capture, will belong to the courts of the neutral state (c). In England a capture must be made under Letters of Marque, for the captor to have a claim to the ship. For if the ship be captured otherwise than under Letters of Marque issued against the state to which she belonged, she will be a droit of Admiralty (d). |