CHAPTER VIII. SHIPS. Chap. VIII. Ships. Merchant Aliens. "Ship." PROPERTY in ships is subject to special laws, partly founded on the civil law as formerly administered by the Court of Admiralty, and partly contained in the Merchant Shipping Act, 1894 (a), which repeals the prior Acts (b). This Act provides that a ship shall not be deemed to be a British ship unless owned by (1) natural-born British subjects, (2) naturalized persons, (3) denizens, or (4) corporations established under the laws of some part of, and having their principal place of business in, the British dominions (c). A natural-born subject who has become a citizen or subject of a foreign state, a naturalized person, or a denizen, cannot be owner of a British ship until he has taken the oath of allegiance to the Sovereign, and resides in, or is partner in a firm carrying on business in, the British dominions (c). The Naturalization Act, 1870, which enabled an alien to take, acquire, hold, and dispose of real and personal property of every · description, especially excepted an alien from being qualified to be the owner of a British ship (d). If an alien or other unqualified person acquires any interest in a British ship, except by transmission on marriage, death, bankruptcy, or other lawful means, that interest is subject to forfeiture (e). In the case of transmission by marriage, &c., an application must be made to the Court for sale of such interest within four weeks after such transmission has taken place (ƒ). The Merchant Shipping Act, 1894, defines "ship" as including "every description of vessel used in navigation not propelled by (a) 57 & 58 Vict. c. 60, as amended by 60 & 61 Vict. c. 59 and c. 61, 61 & 62 Vict. c. 14 and c. 44, and 6 Edw. 7, c. 48. (b) Ib. s. 745. (c) Ib. s. 1. See post, pp. 417, 434. (e) Act of 1894, ss. 28, 71, 76. oars," and "vessel" as including "any ship or boat, or any other Chap. VIII. description of vessel used in navigation" (g). Every British ship must be registered (h), with the exception Registration. of some small vessels not exceeding 15 or 30 tons burden specially employed as in the Act mentioned (i). No ship required to be registered will, unless registered, be recognized as a British ship (h), and may be detained until the master of such ship, upon being required, produces the certificate of registry (h). If, when required, satisfactory evidence is not given that a ship registered as a British ship is entitled to be so registered, the ship will be subject to forfeiture (k). With respect to entries in the register book, the property in a Shares. ship is to be divided into 64 shares; not more than 64 individuals are to be registered at the same time as owners of any one ship; but this rule does not affect the beneficial title of any number of persons or of any company represented by, or claiming under or through, any registered owner or joint owner; no person is to be registered as owner of any fractional part of a share; but any number of persons not exceeding five may be registered as joint owners of a ship, or of a share or shares therein, and joint owners are to be considered as constituting one person only, and are not to be entitled to dispose in severalty of any interest; a body corporate may be registered as owner by its corporate name (1). No person is to be registered as owner of a ship, or any share 'therein, until he has made and subscribed the declaration of ownership prescribed by the Act (m); and no body corporate is to be so registered until the secretary, or other officer authorized by them for the purpose, has made the prescribed declaration (n). The mere fact that several persons hold shares in the same ship does not make them partners; whether they are part-owners only, or partners, depends upon circumstances; the former is the general relation, the latter the exception (o). In the absence of special circumstances, the holders of the shares have inter se the (g) Ib. s. 742. See Ex p. Ferguson, L. R. 6 Q. B. 280; Southport (Mayor of) V. Morriss, [1893] 1 Q. B. 359. (h) Act of 1894, s. 2. As to "British ship," see Union Bank v. Lenanton, 3 C. P. D. 243. (i) Ib. s. 3. (k) 6 Edw. 7, c. 48, s. 51. (m) Ib. s. 9. (n) Ib. ss. 9, 61. (0) Helme v. Smith, 7 Bing. 709; Story on Partnership, chap. 16, s. 417. Chap. VIII. rights of tenants in common, but the law as to the earnings of a ship, whether as freight or otherwise, follows the general law of partnership (p). Disputes between owners. Trusts. Equitable interests. Abbott, C.J., says (q): "It has been the constant practice, in disputes between part-owners as to the employment of the vessel, where the majority in value of the shareholders are desirous to send the vessel on a voyage to which the minority will not consent, for the Court of Admiralty to arrest the ship at the instance of the latter, and to take from the majority a stipulation in a sum equal to the value of the shares of those who disapprove of the adventure, either to bring back and restore to them the ship, or to pay them the value of their shares. Although the jurisdiction of the Admiralty in such cases was once doubted, there are several authorities recognizing it; and it may now be taken to be settled that, in disputes between part-owners as to the employment of a ship, the Court of Admiralty may arrest and detain the ship, until security be given to the amount of the value of the shares of those part-owners who dissent from the particular employment." The Court of Admiralty was unable to determine questions of title to the shares in a ship, or to take the accounts between the part-owners; but by the Admiralty Court Act, 1861 (r), it acquired jurisdiction to decide all questions arising between co-owners or any of them touching the ownership, possession, employment, and earnings of any ship registered at any port of England or Wales, and to settle all accounts outstanding and unsettled between them, and to direct the ship or any share to be sold, or to make such order as to it should seem fit (s). No notice of any trust, express, implied, or constructive, is to be registered or received by the registrar; and, subject to any rights and powers appearing by the register to be vested in any other party, the registered owner of any ship or share therein has power absolutely to dispose of such ship or share, and to give effectual receipts for the consideration money (t). Subject to the above provisions, and to the provisions for the exclusion of unqualified persons, equitable interests may be enforced by or against owners and mortgagees in the same manner as in respect of any other personal property (u). A person (p) Green v. Briggs, 6 Hare, 395. (r) 24 Vict. c. 10, s. 8. (8) See Maude & Pollock on Merchant Shipping, 102. (t) Act of 1894, s. 56; Bathyany v. Bouch, 50 L. J. Q. B. 421; The Horlock, 2 P. D. 243. (u) Act of 1894, s. 57. See s. 5, ante, beneficially interested, otherwise than by way of mortgage, in a Chap. VIII. ship or share registered in the name of another, is subject to all pecuniary penalties imposed by statute upon owners (x). A registered ship or share therein must be transferred by bill Transfer of of sale according to the prescribed form, executed by the trans- ship. property in feror in the presence of and attested by one or more witnesses (y). It will be remembered that transfers or assignments of a ship or vessel or any share thereof are not included in the Bills of Sale Act, 1878 (z). Ships do not pass by delivery; there is no market overt for ships (a). The transferee must make and subscribe the prescribed declaration of transfer (b), and the bill of sale when duly executed must be produced to the registrar of the port at which the ship is registered, and the registrar will enter in the register book the name of the transferee, and indorse the bill of sale with the date of entry; all bills of sale are to be entered in the order of their production to the registrar (c). Where a transfer of an interest in a ship is declared void by reason of fraud or otherwise, the Court has power to order the register to be rectified by expunging the entry (d). death, &c. When the property in a registered ship, or share therein, is Transmission transmitted (e) to a qualified person on the marriage, death, or in ship on of property bankruptcy of a registered owner, or by any lawful means other than a transfer under the Act, such transmission must be authenticated by a declaration of the person to whom such property has been transmitted, in the prescribed form, accompanied by the prescribed evidence; and the registrar is to register the name of the person or persons entitled, and such persons, if more than one, however numerous, are to be considered as one person only as regards the rule relating to the number of persons entitled to be registered as owners (ƒ). If the property in a registered ship, or share therein, is Transmission transmitted on marriage, death, bankruptcy or otherwise, to to unqualified persons. Chap. VIII. an unqualified (g) person, the proper Court may, on application by such person, order a sale and payment of the proceeds to such person (h). This application must be made within four weeks of the transmission; but the Court may extend the time, but not so as to exceed one year (h). If the application is not made in time, or a sale is refused by the Court, the share is subject to forfeiture under the Act (h). Mortgages. A mortgage of a registered ship, or share therein, must be in the prescribed form, and, on production of it, the registrar is to record it in the register book; and every such mortgage is to be recorded in the order of time in which it is produced to him for that purpose (i). If there is more than one mortgage registered, the mortgagees are, notwithstanding any express, implied, or constructive notice, entitled to priority according to the date of registration (k). Provision is made for entry of the discharge of a mortgage (1), for transfer of mortgages (m), for sale by mortgagees (n), and for the transmission of the interest of a mortgagee on marriage, death, or bankruptcy, or by any lawful means other than by a transfer (o). A registered mortgage is not affected by any act of bankruptcy by the mortgagor after the date of the record of the mortgage (p). Except so far as may be necessary for making the ship or share available as a security for the debt, a mortgagee is not, by reason of the mortgage, to be deemed the owner, or the mortgagor to have ceased to be the owner (q). The mortgagor remains the dominus of the ship with regard to everything connected with its employment, until the mortgagee takes possession; and the mortgagee when he takes possession is entitled to the benefit of contracts made by the mortgagor (r); but the mortgagee is not bound by a contract made by the mortgagor which is such as to impair his security, e.g., a charter-party which involves risk of capture by a belligerent (s). (n) Ib. s. 35. (0) Ib. s. 38; see s. 27. (p) Ib. s. 36. See Hay v. Fairburn, 2 B. & Ald. 193. (q) Ib. s. 34. See Collins v. Lamport, 4 De G. J. & S. 500. (r) Keith v. Burrows, 2 App. Cas. 636; post, p. 120. (s) Law Guarantee Soc. v. Russian Bank, [1905] 1 K. B. 815. |