Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Title to Merchants’ Vessels
THE utility of any attempt at an outline of the code of maritime law, must consist essentially in the precision, as well as in the perspicuity, with which its principles are illustrated by a series of positive rules. Every work on this subject will unavoidably become, in a degree, dry and minute in the detail; but it would be destitute of real value, unless it were practical in its design and application. The law concerning shipping and seamen, negotiable paper, and marine insurance, controls the most enterprising and the most. busy concerns of mankind; and it consists of a system of principles and facts, in the shape of usages, regulations, and precedents, which are assimilated in the codes of all commercial nations, and are as distinguished for simplicity of design, and equity of purpose, as they are for the variety and minuteness of their provisions. I have wished (and I hope not entirely without success) to be able to give to the student a faithful summary of the doctrines of commercial jurisprudence, and to awaken in his breast a generous zeal to become familiar with the leading judicial decisions, and especially with the writings of those great masters in the science of maritime law, whose talents and learning have enabled them to digest and adorn it.
The law of shipping may be conveniently arranged under the following general heads: 1. Of the title to vessels. 2. Of the persons employed in the navigation of merchants’ ships. 3. Of the contract of affreightment. This arrangement is very nearly the same with that pursued by Mr. Abbott, (now Lord Tenterden,) in his treatise on the subject, and which, after comparing it with the method in which these various topics have been discussed by other writers, I do not think can be essentially improved. It has been substantially adopted by Mr. Holt, in his “System of the Shipping and Navigation Laws of Great Britain,” and still more closely followed by M. Jacobsen, the Danish civilian, in his treatise on the “Laws of the Sea.” The law of shipping, as thus arranged and divided, will form the subject of this, and of the two succeeding lectures.
(1.) Requisites to a valid title to vessels.
The title to a ship passes by writing. A bill of sale is the true and proper muniment of title to a ship, and one which the maritime courts of all nations will look for, and, in their ordinary practice, require.1 In Scotland, a written conveyance of property in ships has, by custom, become essential; and in England it is made absolutely necessary by statute, with regard to British subjects.2 Possession of a ship, and acts of ownership, will, in this, as in other cases of property, be presumptive evidence of title, without the aid of documentary proof, and will stand good until that presumption be destroyed by contrary proof;3 and a sale and delivery of a ship, without any bill of sale, or instrument, will be good as between the parties.4 But the presumption of title arising from possession may easily be destroyed; and the general rule is, that no person can convey who has no title; and the mere fact of possession by the vendor is not, of itself, sufficient to give a title. Though the master of a ship, as we shall presently see, be clothed with great powers connected with the employment and navigation of the ship, he has even no authority to sell, unless in a case of extreme necessity, and then he has an implied authority to exercise his discretion for the benefit of all concerned.5
It has frequently been the case, that the sale of a ship has been procured in foreign countries by order of some admiralty court, as a vessel unfit for service. Such sales are apt to be collusively and fraudulently conducted; and the English courts of common law do not regard them as binding, even though made bona fide, and for the actual, as well as the intended benefit of the parties in interest. They hold, that there is no adequate foundation for such authority in the legitimate powers of the admiralty courts. They have no such power by the law of nations, and no such power is exercised by the Court of Admiralty at Westminster.6 Lord Stowel, on the other hand, considered the practice which obtained in the vice-admiralty courts abroad, of ordering a sale under the superintendence of the court, when the fact of necessity was proved, to be very convenient; and he seemed to consider, that it would be a defect in the law of England, if a practice so conducive to the public utility, could not legally be maintained. The Court of Admiralty, feeling the expediency of the power, would go far to support the title of the purchaser.7
The proceeding which is condemned by the courts of law, is a voluntary proceeding, instituted by the master himself on petition for a sale, founded on a survey, proof, and report, of the unnavigable and irreparable condition of the vessel. It is essentially the act of the master, under the auxiliary sanction of the court, founded merely upon a survey of the ship to see whether she be seaworthy; and it is to be distinguished from the case in which the admiralty has regular jurisdiction of the subject by a proceeding in rem, founded on some adverse claim. In such cases, the power of sale, in the sound discretion of the court, is indisputable and binds all the world. This is a proposition of universal law, founded on the commercial intercourse of states, and the jus gentium. So, as we have already seen in a former volume,8 capture by a public enemy divests the title of the true owner, and transfers it to the captor, after a regular condemnation by a prize court of the sovereign of the captor.9
Upon the sale of a ship in port, delivery of possession is requisite to make the title perfect. If the buyer suffers the seller to remain in possession, and act as owner, and the seller should become bankrupt, the property would be liable to his creditors, and, in some cases, also to judgment creditors on execution. The same rule exists in the case of the mortgage of a ship; but where a sale is by a part owner, it is similar to the sale of a ship at sea, and actual delivery cannot take place. Delivery of the muniments of title will be sufficient, unless the part owner be himself in the actual possession.10 If the ship be sold while abroad, or at sea, a delivery of the grand bill of sale, and other documents, transfers the property, as in the case of the delivery of the key of a warehouse. It is all the delivery that the circumstances of the case admit of; and it is giving to the buyer, or mortgagee, the ability to take actual possession, and which he must do as soon as possible on the return of the ship. But the buyer takes subject to all encumbrances, and to all lawful contracts made by the master respecting the employment and hypothecation of the ship prior to notice of the transfer.11
The English cases speak of the transfer of a ship at sea by the assignment of the grand bill of sale, and that expression is understood to refer to the instrument whereby the ship was originally transferred from the builder to the owner, or first purchaser. But the American cases speak simply of a bill of sale, and usually refer to the instrument or transfer from the last proprietor while the vessel is at sea, and which is sufficient to pass the property, if accompanied with the act of taking possession as soon as conveniently may be (and which in England must be by statute within ten days) after the vessel arrives in port.12
(2.) Who is liable as owner.
There is no doubt that the owner is personally liable. for necessaries furnished, and repairs made to a ship, by order of the master;13 and the great point for discussion is, who is to be regarded as owner. The ownership, in relation to this subject, is not determined by the register; nor is a regular bill of sale of the property essential to exempt the former owner from responsibility for supplies furnished. Where the contract of sale is made, and possession delivered, the circumstance that the naked legal time remains in the vendor for his security, does not render him liable, as owner, on the contracts, or for the conduct of the master.14
It has been a disputed question, whether the mortgagee of a ship, before he takes possession, be liable for the burdens, and entitled to the benefits, belonging to the owner’. In the case of Chinney v. Blackbourne,15 it was held by the K. B., that the mortgagor, in such a case, and not the mortgagee, was to be deemed owner, and entitled to the freight, and liable for the repairs and other expenses. The same decision was made by the C. B. in Jackson v. Vernon.16 But Lord Kenyon, in Westerdell v. Dale,17 entertained a different opinion, and he considered the mortgagee, whether in or out of possession, to he the owner, and entitled to the freight, and bound for the expense, of the ship.
The weight of our American decisions has been in favor of the position, that a mortgagee of a ship out of possession is not liable for repairs or necessaries procured on the order of the master, and not upon the particular credit of the mortgagee, who was not in the receipt of the freight; though the rule is otherwise when the mortgagees in possession, and the vessel employed in his service.18 The case of Fisher v. Willing,19 has also a strong bearing in favor of the decisions which go to charge the mortgagor; for it was held, that a mortgagee of a ship at sea did not, merely by delivery of the documents, acquire such a possession as to be liable to the master for wages accruing after the date of the mortgage. The contract was with the mortgagor, and there was no privity between the master and the mortgagee, before possession taken, sufficient to raise an assumption. A similar decision was made by Ch. J. Abbott, in Martin v. Paxton, and cited in the Pennsylvania case. The case of the The Mohawk Insurance Company v. Eckford, decided in the Court of Common Pleas in the city of New York, as recently as January, 1828, and the case of Thorn v. Hicks,20 show, that the rule is considered to be settled in this state, that a mortgagee out of possession is not liable for services rendered, or necessaries furnished, to a vessel, on the credit of the mortgagor, or other person having the equitable title. The question seems to resolve itself into the inquiry, whether the circumstances afford evidence of a contract express or implied, as regards mortgagees not in possession. If the claimant dealt with the mortgagor solely as owner, he cannot look to the mortgagee. To whom was the credit given, seems to be the true ground on which the question ought to stand. In a case before Lord Ellenborough, so late as 1816,21 he ruled, that a mortgagee, not in possession, and not known to the plaintiff, was not liable for stores supplied by the captain’s order.
The weight of authority is decidedly in favor of the mortgagee who has not taken possession; and if he has left the possession and control of the ship to the mortgagor, he will not he liable to the master for wages or disbursements, or to any other person, for repairs and necessaries done or supplied by the master’s order, where the mortgagor has been treated as owner. If, however, there has been no such dealing with the mortgagor in the character of owner, but the credit has been given to the person who may he owner, it is a point still remaining open for discussion, whether the liability will attach to the beneficial, or to the legal owner. The principle of the decision in Trewhella v. Rowe,22 was that, a vendee of a ship, whatever equitable title might exist in hint, was not liable for supplies furnished before the legal title was conveyed to him, and registered in the manner prescribed by the registry acts, and when he was unknown to the tradesman who supplied the materials.
There are analogous cases which throw light upon this subject. Thus, in Young v. Brander,23 the legal title remained for a month after the sale in the vendor upon the face of the register, because the vendee had omitted to comply with the forms prescribed by the registry acts. But it was held, that he was not liable during that interval for repairs ordered by the captain, under the direction of the vendee, and who had no authority, express or implied, from the legal owner. The vendee ordered the repairs in his own right, and there was no privity of interest between him and the legal owner, and the credit was actually given to the vendee. So, again, the regular registered owner of a ship was held to be liable for supplies furnished by order of the charterer, who had chartered the ship at a certain rent for a number of voyages. The owner had divested himself, in that case, of all control and possession of the vessel during the existence of the charter party, and he had no right, under the charter party, to appoint the captain.24 The question in these cases is, whether the owner, by reason of the charter party, has divested himself of the ownership pro hac vice, and whether there hits been any direct contract between the parties, varying the responsibility.
In Vallejo v. Wheeler,25 the court proceeded on the ground, that the charterer was owner pro hac vice, inasmuch as he appointed the master. The subject was much discussed in McIntire v. Brown26 and it was held, that where, by the terms of the charter party, the ship owner appoints the master and crew, and retains the management aid control of the vessel, the charter was to be considered as a covenant to carry goods. But where the whole management is given to the freighter, it is more properly a hiring of the vessel for thee voyage, and in such case the hirer is to be deemed owner for the voyage. In Hallet v. The Columbian Insurance Company,27 the owner of the vessel, by the charter party, let the whole vessel to the master, who was to victual and man her at his own expense, and have the whole management and control of her, and he was held to be the owner for the voyage; and a similar decision was wade in Taggard v. Loring.28 The case of Fletcher v. Braddick29 adopted the same principle which had been laid down by Ch. J. Lee in Parish v. Crawford,30 and it was declared, that the ownership, in respect to all third persons, remained with the original proprietor when the vessel was supplied and repaired by the owner, and navigated by a master and sailors provided and paid for by him.
In that case, the ship was chartered by the commissioners of the navy, who placed a commander in the navy on board, and the master was to obey his orders; but, with regard to third persons, it was still, notwithstanding that very important fact, considered to be the ship of the owners, and they were held answerable for damage done by the ship. This highly vexed question, and so important in its consequences to the claim of lien, and the responsibilities of ownership, depends on the inquiry, whether the lender or hirer, under a charter party, be the owner of the ship for the voyage. It is a dry matter of fact question, who, by the charter party, has the possession, command, and navigation of the ship. If the general owner retains the same, and contracts to carry a cargo. on freight for the voyage, the charter party is a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. The general owner, in such a case, is entitled to the freight, and may sue the consignee on the bills of lading in the name of the master, or he may enforce his claim by detaining the goods until payment, the law giving him a lien for freight. But where the freighter hires the possession, command, and navigation of the ship, for the voyage, he becomes the owner, and is responsible for the conduct of the master and mariners, and the general owner has no lien for the freight, because he is not the carrier for the voyage. This is the principle declared and acted upon in the greatly litigated, and very ably discussed case of Christie v. Lewis;31 and it is the principle declared by the Supreme Court of the United States in Marcardier v. The Chesapeake Insurance Company,32 and Gracie v. Palmer,33 and followed generally by the courts of justice in this country.34 It may be considered as the sound and settled law on the subject.
(3.) Of the custom house documents.
The United States have imitated the policy of England and other commercial nations, in conferring peculiar privileges upon American built ships, and owned by our own citizens; and I shall now examine the acts of Congress, so far as they go to ascertain the title to American ships, and the mode of transferring that title. ‘The object of the registry acts is to encourage our own trade, navigation and ship building, by granting peculiar or exclusive privileges of trade to the flag of the United States, and by prohibiting the communication of those immunities to the shipping and mariners of other countries. These provisions are well calculated to prevent the commission of fraud upon individuals, as well as to advance the national policy. The registry of all vessels at the custom house, and the memorandums of the transfers, add great security to title, and bring the existing state of our navigation and marine under the view of the general government. By these regulations, the title can be effectually traced back to its origin.35
The acts of Congress of 31st December, 1792, and 18th February, 1793, constitute the basis of the regulations in this country for the foreign and coasting trade, and for the fisheries of the United States; and they correspond very closely with the provisions of the British statutes in the reign of George III.
No vessel is to be deemed a vessel of the United States, or entitled to the privileges of one, unless registered, and wholly owned and commanded by a citizen of the United States. The American owner, in whole or in part, ceases to retain his privileges as such owner, if he usually resides in a foreign country, during the continuance of such residence, unless he be a consul, or an agent for, and a partner in, some American house, carrying on trade within the United States.36 The register is to be made by the collector of the port to which such ship shall belong, or in which it shall be, and founded on the oath of one of the owners, stating the time and place where she was built, or that she was captured in war by a citizen, as prize, and lawfully condemned, or forfeited for a breach of the laws of the States; and stating the owners and master, and that they are citizens, and that no subject of a foreign power was directly or indirectly, by way of trust, or otherwise, interested therein. The master is, likewise, in certain cases, to make oath touching his own citizenship.37 Previous to the registry, a certificate of survey is to be produced, and security given, that the certificate of such registry shall be solely used for the ship, and shall not be sold, lent, or otherwise disposed of.
If the vessel, or any interest therein, be sold to any foreigner, and the vessel be within the United States, the certificate of the registry shall, within seven days after the sale, be delivered up to the collector of the district, in order to be cancelled; and-if the sale be made when the vessel is abroad, or at sea, the certificate is to be delivered up within eight days after the master’s arrival within the United States.38 If a registered ship be sold, in whole or in part, while abroad, to a citizen of the United States, the vessel, on her first arrival in the United States thereafter, shall be entitled to all the privileges of a ship of the United States, provided a new certificate of registry be obtained within three days after the master makes his final report upon her first arrival.39 If the vessel be built within the United States, the ship-carpenter’s certificate is requisite to obtain the register; and when the ship is duly registered, the collector of the port shall grant an abstract, or certificate of such registry.40
There are several minute regulations respecting the change of the certificate, and the granting of a new register, which need not here be detailed;41 but when a vessel, duly registered, shall be sold or transferred, in whole or in part, to a citizen of the United States, or shall be altered in form or burden, she must be registered anew, and her former certificate of registry delivered up, otherwise she will cease to be deemed a vessel of the United States, or entitled to any of the privileges of one. In every case of sale or transfer, there must be some instrument of writing, in the nature of a bill of sale, which shall recite at length the certificate of registry, and without it the vessel is incapable of being registered anew.42 Upon every change of master, the owner must report such change to the collector, and have a memorandum of such change endorsed upon the certificate of registry; and if any ship so registered be sold, in whole or in part, by way of trust, or otherwise, to a foreigner, and the sale be not made known as above directed, the whole, or at least the share owned by the citizen who sells, becomes forfeited.43
Vessels enrolled and licensed, or licensed only, if under twenty tons, to be deemed entitled to the privileges of vessels employed in the coasting trade or fisheries.44 And vessels, to be enrolled, must possess the same qualifications;. and the same requisites, in all respects, must be complied with, as are made necessary for the registry of ships and vessels; and the same duties are required in relation to such enrolments; and the ships enrolled, with the master and owner, are subject to the same regulations as are in those respects provided for registered vessels.45 Any vessel may be enrolled and licensed, that may be registered, upon the registry being given up; and any vessel that may be enrolled may be registered, upon the enrolment and license being given up.46 In order to obtain a license for carrying on the coasting trade, or fisheries, the owner, or ship’s husband, and master, must give security to the United States, that the vessel be not employed in any trade whereby the revenue of the United States may be defrauded; and the master must make oath that he is a citizen, and that the license shall not be used for any other vessel, or any other employment, and if the vessel be less than twenty tons burden, that she is wholly the property of a citizen of the United States. The collector of the district thereupon grants a license for carrying on the coasting trade, or fishery.47
Vessels engaged in such a trade or business, without being enrolled and licensed, or licensed only, as the case may be, shall pay alien duties, if in ballast, or laden with goods the growth or manufacture of the United States, and shall be forfeited if laden with any articles of foreign growth or manufacture, or distilled spirits.48 If any vessel enrolled or licensed, proceed on a foreign voyage, without first surrendering up her enrolment and license, and being duly ‘registered, she shall, with her cargo imported into the United States, be subject to forfeiture.49 The other general provisions relative to the rights and duties appertaining to the coasting trade and the fisheries, need not here he enumerated, as my object is to consider the subject merely in reference to the documentary title to American vessels.
It is further provided, by the act of March 2, 1797, that whenever any vessel is transferred by process of law, and the register, certificate of enrolment, or license, is retained by the former owner, a new one may be obtained upon the usual terms, without the return of the outstanding paper. Vessels captured and condemned by a foreign power are to be considered as foreign vessels, and not entitled to a new register, even though they should afterwards become American property, unless the former owner regain his title, by purchase or otherwise.50 Every registered or unregistered vessel, owned by a citizen of the United States, and going to a foreign country, and, if an unregistered vessel, sailing with a sea letter, is entitled to a passport, to be furnished by the collector of the district.51 But no sea letter certifying any vessel to be the property of a citizen of the United States, can he issued, except to ships duly registered or enrolled and licensed, or to vessels wholly owned by citizens of the United States, and furnished with, or entitled to sea letters, or other custom-house documents.52
The English registry act of 26 Geo. III. requires the certificate of the registry to be truly recited at length in every bill of sale of a British ship to a British subject, otherwise such bill of sale is declared to be utterly null and void to all intents and purposes; and this is held to be necessary, even though the ship was at sea at the time, and the vendee took the grand bill of sale, and possession of the ship, immediately on next arrival in port.53 The laws of the United States do not go to that rigorous extent; and the only consequence of a transfer, without a writing containing a recital at length of the certificate of registry, is, that the vessel cannot be registered anew, and she loses her privileges as an American vessel, and becomes subject to the disabilities incident to vessels not registered, enrolled, or licensed, as the statute prescribes. But where an American registered vessel was in part sold, by parol, while at sea, to an American citizen, and again resold by parol to her original owner, on her return into port, and before entry, that transaction did not deprive the vessel of her American privileges, or subject her to foreign duties, for, in that case, no new register was requisite. It would have been, except in date, a duplicate of the old one, and perfectly useless.54
If a ship be owned by American citizens, and be not documented according to the provisions of the registry acts, it is not liable to any forfeitures or disabilities which are not specially prescribed. The want of a register is not a ground of forfeiture, but the cause only of loss of American privileges.55 Every vessel, wherever built, and owned by an American citizen, is entitled to a custom house document for protection, termed a passport, under the act of June 1, 1796; for it applies to “every ship or vessel of the United States, going to any foreign country.” As our registry acts do not declare void the sale or transfer, and every contract or agreement for transfer of property in any ship, without an instrument in writing, reciting at large the certificate of registry; and as they have not prescribed any precise form of endorsement. on the certificate of registry, and rendered it indispensable in every sale, as is the case under the British statutes of 26 Geo. III. c. 60. and 34 Geo. III. c. 68. we are happily relieved from many embarrassing questions which have arisen in the English courts relative to the sale and mortgage of ships.
There has been great difficulty, and some alternation of opinion, in the English courts, in the endeavor to reconcile the strict and positive provisions of the statute with the principles of equity, and the good faith and intention of the contracting parties.56 It has even been a question of much discussion, whether the statutes of 26 and 34 Geo. III. had not destroyed the common law right of conveying a ship, by way of mortgage, like other personal property; and whether the mortgagee had not a complete title, beyond the power of redemption, after the transfer of the legal title, according to the prescribed form of the endorsement on the certificate of registry. The language, in many of the cases,57 was in favor of the conclusion, that there could be no equitable ownership of a ship distinct from the legal title, and that upon a transfer under the forms of the registry acts, the ship becomes the absolute property of the intended mortgagee, and that the terms of the registry acts were incompatible with the existence of any equity of redemption.
But these opinions, or dicta, have been met by a series of adjudications, which assume the law to be otherwise, and that the registry acts related only to transactions between vendor and vendee, and to cases of real ownership; and that an equitable interest in a ship might exist by operation of law, and by the contract of the parties, distinct from the legal estate; and that notwithstanding the positive and absolute terms of the endorsement upon the certificate of register, a mortgage of a ship is good and valid, according to the law as it existed before the registry acts, provided the requisites of the statutes be complied with.58 The opinion of Sir Thomas Plumer, in Thompson v. Smith, contained a very clear and masterly vindication of the validity of the mortgage of a ship consistently with the preservation of the forms of the registry acts. He effectually put to flight the alarming proposition, that since the registry acts there could be no valid mortgage of a ship; and he insisted, that the defiance annexed to the bill of sale ought to be fully endorsed its part of the instrument on the certificate of registry, if the ship be mortgaged in port, or if while at sea, a copy of the whole transmitted to the custom house; and that though the defeasance should not be noticed in any of the forms adhered to at the office of the customs, and the instrument should be registered as an absolute bill of sale, the mortgagor’s right of redemption would not suffer by the omission. But as no such questions can possibly arise under the registry acts of Congress, these discussions in the English courts are noticed only as a curious branch of the history of English jurisprudence on this subject.59
The registry is not a document required by the law of nations as expressive of a ship’s national character.60 The registry acts are to be considered as forms of local or municipal institution, for purposes of public policy. They are imperative only upon the voluntary transfer of parties, and do not apply to transfers by act or operation of law.61 They are said to be peculiar to England, and to the United States, whose maritime and navigation system is formed upon the model of that of Great Britain. But by various French ordinances, between 1681 and the era of the new code, it wag requisite that all French built vessels should be owned exclusively by Frenchmen, and foreigners were prohibited from navigating under the French flag; and a Frenchman forfeited his privileges as such owner, by marrying a foreign wife, or residing abroad, unless in connection with a French house.62
The register is not, of itself, evidence of property, unless it be confirmed by some auxiliary circumstance to show that it was made by the authority or assent of the person named in it, and who is sought to be charged as owner. Without proof to connect the party with the register as being his direct or adopted act, the register has been held not to be even prima facie evidence to charge a person as owner.63 The case of The Mohawk Insurance Company v. Eckford, decided in the New York Court of Common Pleas in 1828, went upon the same ground, that the register, standing in the name of a person, did not determine the ownership of the vessel, though it might, perhaps, be presumptive evidence, in the first instance. An equitable title in one person might legally exist, consistently with the documentary title at the custom house in another.64
(4.) Of port owners.
The several part owners of a ship are tenants in common. Each has his distinct, though undivided interest.; and when one of them is appointed to manage the concerns of the ship for the common benefit, he is termed the ship’s husband. Valin strongly recommends., the utility of these associations of part owners, in the business of navigation and maritime enterprises, in order to unite the wisdom of joint counsels, as well as to divide the risks and losses incident to a very extended maritime commerce, which is exposed to so many hazards and revolutions: tua omnia uni nunquam navi credito.65 The marine law of England respecting part owners of vessels, is distinguished for the wisdom and equity of its provisions, and it has are undoubted pre-eminence over the common law doctrine concerning a tenancy in common in chattels. If there be no certain agreement among themselves, respecting the employment of the ship, the Court of Admiralty, under its long established and salutary jurisdiction, authorizes a majority in value of the part owners, to employ the ship upon any probable adventure, and at the same time, takes care to secure the interest of the dissenting minority.
Ownership in a ship is, ordinarily, not like the case of joint concern, or partnership; nor does the English law, like some of the ordinances of other countries, give power to the majority in value to control, in their discretion, the whole concern. The Court of Admiralty takes a stipulation from the majority, in a sum equal to the value of the shares of the minority, either to bring back and restore the ship, or pay the minority the value of their shares. In that case, the ship sails wholly at the charge and risk, and for the benefit, of the majority. This security the minority obtain upon a warrant issued upon their application to arrest the ship. This is the only safe proceeding to the minority; for if the ship be sent to sea by the majority without this security, and she be lost without any tortious act in the majority, the minority have no remedy in law or equity. If the minority have possession of the ship, and refuse to employ her, the majority, on a similar warrant, may obtain possession, and send the ship to sea, on giving the like security, The jurisdiction of the admiralty extends to the taking a vessel from a wrong doer, and delivering her over to the rightful owner; and this is a most useful part of the jurisdiction of the court.66 The Court of Chancery exercises this sort of equitable jurisdiction in cases where the admiralty cannot, as where the shares are not ascertained.67
If the part owners be equally divided in opinion in respect to the employment of the ship, either party may obtain the like security from the other seeking to employ her.68 It is said, that the Court of Admiralty has no jurisdiction to compel an obstinate part owner to sell his share;69 and yet it was considered, in the District Court of Pennsylvania, as still an unsettled point, whether the court might not compel a sale of the shares of the minority who unreasonably refused to act.70 If a part owner sells, he can only sell his undivided right. The interest of part owners is so far distinct, that one of them cannot dispose of the share of another; and this may be considered as a settled principle.71 The language in the Court72 of Errors of this state, in the case which has been already mentioned, does not lead to an opposite conclusion.73 That case only admitted, that a ship might be held, not only by part owners, as tenants in common, but in partnership, by partners, as any other chattel. And though a part owner can sell only his share, yet one partner can dispose of the entire subject; and the ease of vessels does not form an exception, when they are owned by a partnership, in the commercial sense, and so it has frequently been held.74
The cases recognize the clear and settled distinction between part owners and partners. Part ownership is but a tenancy in common, and a person who has only a part interest in a ship, is generally a part owner, and not a partner. As part owner he has only a disposing power over his own interest in the ship, and he can convey no greater title. But there may be a partnership, as well as a co-tenancy, in a vessel; and, in that case one part owner, in the character of partner, may sell the whole vessel; and he has such an implied authority over the whole partnership effects, as we have already seen. The vendee, in a case free from fraud, will have an indefeasible title to the whole ship. When a person is to be considered as a part owner, or as a partner, in a ship, depends upon circumstances. The former is the general relation between ship owners, and the latter the exception, and requires to be specially shown. But as the law presumes, that the common possessors of a valuable chattel will and desire whatever is necessary to the preservation and profitable employment of the common property, part owners, on the spot, have an implied authority from the absent part owners, to order for the common concern whatever is necessary for the preservation and proper employment of the ship. They are analogous to partners, and liable as such for necessary repairs and stores ordered by one of themselves; and this is the principle and limit of the liability of part owners.75
Whether part owners who render their companions liable for supplies furnished, or repairs made upon a ship, are to have their accounts taken, and the assets distributed, as if the ship was partnership property, or as if they had each a distinct separate interest in the vessel as tenants in common, depends, as we have already seen, upon the fact, whether the ship was held by them, in the particular case, as part owners, or as partners. The law of Holland considered it to be prejudicial to trade, to carry the responsibility of part owners to the extent of the English law; and the rule there is, that each part owner shall be answerable in relation to the ship, no further than to the extent of his share.76 The English and Scotch law render part owners, in all cases, responsible in solido as partners, for repairs and necessary expenses relating to the ship, and incurred on the authority of the master, or ship’s husband.77 But where a ship has been duly abandoned to separate insurers, they are not responsible for each other as partners, but each one is answerable for the previous expenses of the ship, rateably to the extent of his interest as an insurer, and no further.78
By the French law, the majority in interest of the owners control the rest, and in that way one part owner may govern the management of the ship, in opposition to the wishes of fifty other part owners whose interests united are not equal to his. This control relates to the equipment and employment of the ship, and the minority must contribute; but they cannot be compelled to contribute against their will for the cargo laden on board, though they will be entitled to their portion of the freight. If the part owners be equally divided on the subject, the opinion in favor of employing the ship prevails as being most favorable to the interests of navigation. Many of the foreign jurists contend, that even the opinion of the minority ought to prevail, if it be in favor of employing the ship on some foreign voyage. Emerigon, Ricard, Straccha, Kuricke, and Cleirac, are of that opinion; but Valin has given a very elaborate consideration to the subject, and he opposes it on grounds that are solid, and he is sustained by the provisions of the old ordinance, and of the new code.79 Boulay Paty80 follows the opinion of Valin, and of the codes, and says, that the contrary doctrine would enable the minority to control the majority, contrary to the law of every association, and the plainest principles of justice. The majority not only thus control the destination and equipment of the ship, but even a sale of her by them will bind the right of privileged creditors after the performance of one voyage by the purchaser, but not the other part owners.81
The ship’s husband may either be one of the part owners, or a stranger, and he is sometimes merely an agent for conducting the necessary measures on the return of the ship to port; but he may have a more general agency for conducting the affairs of the vessel in place of the owners, and his contracts, in the proper line of a ship’s husband’s duty, will bind the joint owners. His duty is, generally, to see to the proper outfit of the vessel, as to equipment, provisions, and crew, and the regular documentary papers; and though he has the powers incidental and necessary to the trust, it is held, that he has no authority to insure for the owners, or bind them to the expenses of law suits.82
The rights of tenancy in common among part owners apply to the cargo, as well as to the ship, and they have not a community of interest, as partners, so as to enable one to dispose of the whole interest, and bind the rights of his co-tenants.83
1. Story, J., 1 Mason’s Rep. 139. 2 ibid. 435.
2. Stat. 34, Geo. III. c. 68. See also, Camden v. Anderson, 5 Term Rep. 709. The Sisters, 5 Rob. Adm. Rep. 155. Bell’s Commentaries on the Laws of Scotland, vol. i. 152.
3. Robertson v. French, 4 East’s Rep. 130.
4. Taggard v. Loring, 16 Mass. Rep. 336.
5. Hayman v. Milton, 5 Esp. N.P. Rep. 65.
6. Reid v. Darby, 10 East’s Rep. 143. Morris v. Robinson, 3 Barnw. & Cress. 196.
7. Fanny and Elmira, 1 Edw.Adm. Rep. 117.
8. See vol. i. 96.
9. In the case of the Attorney General v. Norstedt, 3 Price’s Exchq. Rep. 97, a judicial sale of a vessel as derelict by the instance Court of the Admiralty, was held to bind even the crown’s right of seizure for a previous forfeiture.
10. Addis v. Baker, 1 Anst. Rep. 222. Abbott on Shipping, 10.
11. Mair v. Glennie, 4 Maule & Selw. 240. Hay v. Fairburn, 2 Barnw & Ald. 193. Atkinson v. Maling, 2 Term Rep. 462. Portland Bank v. Stubbs, 6 Mass. Rep. 422. Putnam v. Dutch, 8 Mass. Rep. 287. Badlam v. Tucker, 1 Pick. Rep. 396.
12. Portland Bank v. Stacey, 4 Mass. Rep. 663.
13. Webster v. Seekamp, 4 Barnw. & Ald. 352.
14. Wendover v. Hogeboom, 7 Johns. Rep. 308. Leonard v. Huntington, 15 ibid. 298. Thorn v. Hicks, 7 Cowen’s Rep. 697.
15. 1 H. Blacks. 117. note.
16. 1 H. Blacks. Rep. 114.
17. 7 Term Rep. 306.
18. McIntyre v. Scott, 8 Johns. Rep. 159. Champlain v. Butler, 18 ibid. 169. Tucker v. Buffington, 15 Mass. Rep. 477.
19. 8 Serg. & Rawle, 118.
20. 7 Cowen’s Rep. 697.
21. Twentyman v. Hart, Starkie’s Rep. 366.
22. 11 East’s Rep. 435.
23. 8 East’s Rep. 10.
24. Frazer v. Marsh, 13 East’s Rep. 238.
25. Cowp. Rep. 143.
26. 1 Johns. Rep. 229.
27. 8 Johns. Rep. 272.
28. 16 Mass. Rep. 336.
29. 5 Bos. & Pull. 182.
30. Str. Rep. 1251.
31. 2 Brod. & Bing. 410.
32. 8 Cranch’s Rep. 39.
33. 8 Wheat. Rep. 605.
34. Pitkin v. Brainerd. 5 Conn. Rep. 451. Clarkson v. Edes, 4 Cowen’s Rep. 470. Reynolds v. Toppan, 15 Mass. Rep. 370. Emery v. Hersey, 4 Greenleaf’s Rep. 407.
35. An historical view of the laws of England, with regard to shipping and navigation, is given with admirable clearness, method, and accuracy, by Mr. Reeves, in his “History of the Law of Shipping and Navigation,” published in 1792; and the policy of that system he considers to have been vindicated and triumphantly sustained, in the increase of the English shipping, the extension of their foreign navigation and trade, and the unrivaled strength of their navy. The policy of the British statutes was to confine the privileges of their trade, as far as was consistent with the extent of it, to British built shipping. But the quantity of British built shipping was not at first adequate to carry on the whole trade of the country, and it became a secondary object to confer privileges on foreign built ships in British ownership. In proportion as British built shipping increased, the privileges conferred on foreign built ships in British ownership were from time to time restricted. The English navigation laws, prior to the famous navigation act of 12 Charles II c. 18, were crude and undigested. They commenced with the statute of 5 Richard II and in the earlier acts, the preference of English ships and mariners, in English imports and exports, was given in simple and absolute terms, and they kept improving in accuracy of description and justness of policy down to the time of the registry acts. The navigation act of Charles II described what were English built and English owned ships, and in what cases a foreign built ship, owned by an English subject, should have the privileges of an English ship. The act did not require any foreign ships to be registered; but a foreign built ship, unless registered, was to be treated as an alien ship, though owned by a British subject. The statute of 26 Geo. III. c. 60 was framed by the elder Lord Liverpool, and it gave rise to the treatise of Mr. Reeve, who dedicated his work to that distinguished nobleman. The navigation act of Charles II only required ships to be the property of British subjects; but in the progress of the system, the qualification of being British built was added. The one encouraged British sea men and merchants but the other encouraged also British ship building. The statute of 26 Geo. III declared that the time had come when the policy of employing British built shipping exclusively in the commerce of that country, ought to be carried to the utmost extent, and it accordingly enacted, that no foreign built ship, except prizes, nor any ship built upon a foreign bottom, although British owned, should be any longer entitled to any of the privileges or advantages of a British built ship, or of a ship owned by British subjects. This statute likewise introduced into the European trade the necessity of a register, which had been introduced into the plantation trade by the statute of 7 and 8 Win. III c. 22. The general principle established by the act of 26 Geo. III was, that all British ships, with some few exceptions, should be registered, and a certificate of the registry obtained, in the port to which the ship belonged. All ships entitled and required to be registered, were made subject to forfeiture for attempting to proceed to sea without a British register. All ships not entitled to the privileges of British built or British owned ships, and all ships not registered, although owned by British subjects, were to be deemed alien ships, and liable to the same penalties and forfeitures as alien ships. British subjects might still employ foreign ships in neutral trade, subject only to the alien duties. The statute further required, that upon every alteration of the property, an endorsement was to be made upon the registry, and a memorandum thereof entered at the custom house; and that upon every transfer, in whole or in part, the certificate of the registry was to be set out in the bill of sale. The statute of 34 Geo. III c. 68 was an enlargement of the statute 26 Geo. III, and it contained several provisions for granting new certificates upon a transfer of property, and it regulated those cases only in which a title to a certificate had been given, and a certificate was required to be obtained, and it required all registered vessels to be navigated by a British master, and a crew of whom three fourths were British.
The navigation laws of Great Britain now form a permanent and regular code, but one still involved in a labyrinth of statutes, and not easily rendered simple and intelligible to practical men. The registry acts have peculiar simplicity and legal precision for statute productions of that kind, and they are regarded by English statesmen and lawyers as highly honorable to the talents, experience, and vigilance of Lord Liverpool, who has established on solid foundations the naval power and commercial superiority of his country. The code of laws constituting the navigation system of England, has been well digested, not only in the history of Mr. Reeves to which I have alluded, but by Lord Tenderden, in his accurate and authoritative “Treatise of the Law relative to Merchant Ships and Seamen;” and still more extensively, and very ably, in Holt’s “System of the Shipping and Navigation Laws of Great Britain.” That work contains all the laws on the subject, brought down to the year 1820. His introductory essay is a clear, intelligible, and well written, but brief, synopsis of the history and policy of the navigation system. In the sixth and seventh chapters of the first volume of Mr. Chitty’s very ample treatise on the “Laws of Commerce and Manufactures, and Contracts relating thereto,” we have also a condensed and accurate digest of the same code of navigation laws.
36. Act of 31st of December, 1792, sec. 1. and 2.
37. Ibid. sec. 3, 4, and 11.
38. Act of 31st of December, 1792, sec. 6. and 7.
39. Act of the United States, March 2d, 1803, sec. 3.
40. Law of the United States, 31st December, 1792, sec. 9.
41. Ibid, sec. 12 and 13.
42. Law of the United States, 31st of December, 1792, sec. 14.
43. Ibid. sec. 15. and 16.
44. Act of Congress, February 18th, 1793, sec. 1.
45. Ibid. sec. 2.
46. Ibid. sec. 3.
47. Act of Congress, February 18th, 1793, sec. 4.
48. Ibid. sec. 6.
50. Act of the U S., June 27, 1797.
51. Acts of Congress, June 1, 1796, and March 2, 1803.
52. Act of Congress, March 26, 1810.
53. Rolleston v. Hibbert, 3 Term Rep. 406.
54. The United States v. Willings and Francis, 4 Cranch’s Rep. 48.
55. Hatch v. Smith, 5 Mass. Rep. 42.
56. The cases of Rolleston v. Hibbert, 3 Term Rep. 406. Camden v. Anderson, 5 Term Rep. 709. Westerdell v. Dale, 7 ibid. 306. Moss v. Charnock, 2 East’s Rep. 399. Heath v. Hubbard, 4 East’s Rep. 110. Moss v. Mills, 6 Ibid. 144. Hayton v. Jackson, 8 ibid. 511, and Hibbert v. Rolleston, 3 Bro. Rep. 571, and the opinions of Wood, B. & Heath, J, in Hubbard v. Jobnstone, 3 Taunt. Rep. 177, and of Lord Eldon, in Ex parte Yallop, 15 Ves. Rep. 60, and Ex parte Houghton, 17 Ves. Rep. 251, and of Sir Wm. Grant, in 11 Ves. Rep. 642, may be selected as samples of the strictness with which the statutes are construed, and of the defects of bona fide transfers of vessels by failure to comply with the literal terms of the statutes. The cases of Rolleston v. Smith, 4 Term Rep. 161, Capadose v. Codner, 1 Bos. & Pull. 483, Ratchford v. Meadows, 3 Esp. N. P. Rep. 69, Bloxham v. Hubbard, 5 East’s Rep. 407, Kerrison v. Cole, 8 East’s Rep. 231, Robinson v. Macdonnell, 5 Maule & Selw. 228, Curtis v. Perry, 6 Yes. Rep. 739, Mestaer v. Gillespie, 11 Ves. Rep. 621, 637, may be selected, on the other hand, as containing evidence of the influence of equity upon the severity of those provisions.
57. Lord Eldon scattered ambiguas voces to that effect in Curtis v. Perry, 6 Vesey’s Rep. 739. Campbell v. Stein, 6 Dow’s P. C. 116. Ex parte Yallop, 15 Vesey’s Rep. 60. Ex parte Houghton, 17 Vesey’s Rep. 251. Dixon v. Ewart, 3 Merival’s Rep. 333.
58. Mair v. Glennie, 4 Maule & Selw. 240. Robinson v. Macdonnell, 5 ibid. 228. Hay v. Fairbairne, 2 Barnw. & Ald. 193. Monkhouse v. Hay, 2 Brod. & Bing. 114. Thompson v. Smith, 1 Madd. Ch. Rep. 395.
59. In 1823, Mr. Trollope published, at London, a distinct treatise, for the very purpose of vindicating the validity of mortgages of ships. It was entitled, “A Treatise on the Mortgage of Ships, as affected by the Registry Acts,” and it contains a view of all the discussions on the question. The same doctrine is maintained in Mr. Patch’s late “Practical Treatise on the Law of Mortgages,” p. 34. Mr. Holt, in a note to his reports of Cases of Nisi Prius vol. I. 603, fell into the current error, that upon a contract of mortgage in respect to a British registered ship there was no equity of redemption, and that the ship became absolutely the property of the mortgagee, without any relief to be afforded at law, or in equity; but subsequently, in his elaborate and accurate treatise on shipping, he adopts the doctrine in Thompson v. Smith, as being in conformity with the letter and spirit of the registry acts. Holt on Shipping, vol. i. 306-312.
60. Le Cheminant v. Pearson, 4 Taunt. Rep. 367.
61. 6 Vesey’s Rep. 739. 15 ibid. 68. Bloxham v. Hubbard, 5 East’s Rep. 407.
62. Boulay Paty, tom. i. 257-260.
63. Tinkler v. Walpole, 14 East’s Rep. 226. McIver v. Humble, 16 East’s Rep. 169. Fraser v. Hopkins, 2 Taunt. Rep. 5. Sharp v. United Insurance Company, 14 Johns. Rep. 201.
64. By the French law, a verbal sale of a ship may do as between the parties, but, not as respects the claims of third persons. It has been, at all times, the policy of their law, to require the written evidence of a sale. Formerly, every sale was required to be attested before a notary, but now a private instrument is sufficient. But the law of France places very material checks upon the transfer of ships; for in order to bar the rights and claims of third persons, it is requisite that the vessel make one voyage at sea at the risk of the purchaser, and without opposition from, the creditors of the vendor; otherwise their claims are preferred to the title of the purchaser. If the vessel be sold while on a voyage, that voyage is not computed, and it requires a new voyage subsequent to such sale, to bar the rights of privileged creditors. This privilege, under the French ordinance of 1681, applied to creditors of every description existing at the time of the sale; but under the new code of commerce, it would rather seem to be confined to the specified class of privileged creditors. Ord. b. 2. tit. 10. Des Navires art. 2. and 3. and Valin’s Com. ibid. tom. 1. 602. Code de Com. art. 193, 191, 196. Boulay Paty, Cours de Droit Com. tom. 1. 168, 170.
65. Valin’s Com. tom. 1, 584.
66. Graves v. Sawcer, T. Raym Rep. 15. Strelly v. Winson, 1 Vern. Rep. 297. Anon. 2 Ch. Cas. 316. Ouston v. Hebden, 1 Wils. Rep. 101. Lord Ch J. Abbott on Shipping part 1. ch. 3. In the matter of Blanshard, 2 Barnw. & Cress. 214. In Willings v. Blight, 2 Peter’s Adm. Rep. 298, the general jurisdiction of the admiralty, as stated, seemed to have been assumed.
67. Hally v. Goodson, 2 Merivale’s Rep. 77.
68. Abbott on Shipping, ub. sup. sec. 6,
69. Ouston v. Hebden, ub. sup.
70. Willings v. Blight, ub. sup. The remedy for the dissenting owners, in Scotland, is to compel a sale, or that the other owners shall give or take at a price put. Mr. Bell intimates, that the English method is less harsh and perilous. Bell’s Commentaries on the Laws of Scotland, vol. i. 503.
71. It was so declared by Mr. Abbot in his elementary work on shipping, p. 4. and Lord. Ch. J. Dallas observed, in 8 Taunt. Rep. 774. that one part owner of a ship could not bind the rest, as in partnership cases.
72. See ante, p. 16.
73. The ordinance of Rotterdam of 1721, gave the owners of above half the ship, the power to sell the same for the general account, as well as to freight her and outfit her at the common expense, and against the consent of the minority. (Art 171, 172. 2 Mugens on Insurance, 108.) On the other hand, the French ordinance of 1681, prohibited one part owner of a ship from forcing his companions to a sale, except in case of equality of opinions upon the undertaking of a voyage. Liv. 2. tit. 8. Des Proprietaires, art. 6. Valin, ibid. vindicates this interdiction as conducive to the benefit of trade, though he admits it has its inconveniences, and that such is the destiny of all human laws.
74. Wright v. Hunter, 1 East’s Rep. 20. Lamb v. Durant, 12 Mass. Rep. 54.
75. Holt on Shipping Int. p. 53. and vol. i. p. 367-369. Wright v. Hunter, 1 East’s Rep. 20. Scottin v. Stanley, 1 Dallas’ Rep. 129.
76. Van Leeuwen’s Com. on the Roman Dutch Law, b. 4. ch. 2. sec. 9. Vinnius, not. in Com. Peckii, tit. De Exerc. 155. The latter says, it is neither agreeable to natural equity, nor public utility, that each part owner should be bound in solido, or beyond his share.
77. Baldney v. Ritchie, 1 Stark. Rep. 338. Westerdell v. Dale, 7 Term Rep. 306. Bell’s Com. vol i. 520, 524.
78. The United Insurance Company v. Scott, 1 Johns. Rep. 106.
79. Ord. de la Marine, liv. 2. tit. 8. art. 5. tit. Des Proprietaires, and Valin’s Com. ibid. tom. 1, 573-554. Code de Commerce, art. 220.
80. Cours de Droit Commercial Maritime, tom. 1. p. 339-347.
81. Boulay Paty, ub. sup, 351. Pardessus, tom. 2. p. 27 is, however, of opinion, that they are equally concluded with the creditors by the sale, after one voyage. If the ship be seized for the debt of one of the part owners, and the claim of the others be put in before judgment, the right only of the part owner can be sold; but if not until after judgment, the entire right to the ship is sold, and the other part owners reclaim their share of the proceeds. Boulay Paty, tom. 1. 227, 228.
82. French v. Backhouse, 5 Burr. Rep. 2727. Bell v. Humphries, 2 Stark. Rep. 345. Campbell v. Stein, 6 Dow’s Rep. 134. Bell’s Commentaries, vol. i. 504.
83. Jackson v. Robinson, 3 Mason’s Rep. 138.