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v. Wilson.

Attorney-Gen. son to import into the United Kingdom any sort of flax, or flaxseed, in any ship belonging to any kingdom or state in amity with his majesty, navigated by foreign seamen, from any port or place whatsoever, upon the same terms and conditions, &c. as if the same had been imported in foreign ships of the built of the country or place of which such flax or flax-seed was the growth, &c. notwithstanding the prohibition in the navigation act. Upon the part of the defendant it was contended, that although the vessel in question was confessedly a foreign ship, and not entitled, as such, to a British register, yet, inasmuch as she was the property of a British subject, a merchant residing in England, she was to be considered (if not within the letter, within the policy, of the statute) as belonging to a state in amity with his Majesty: and the case of Pearce v. Cowie (a) was cited, in which Gibbs, L. C. J. was reported to have ruled that a foreign-built ship, the property of a British subject, belonging to a state in amity with his Majesty, was within the meaning of the 43 Geo. 3. c. 163. s. 13. The defendant's counsel added that this decision had been followed up by a similar decision of Lord Ellenborough in a subsequent case on the same policy, (b) who was reported to have said, “It will be difficult to make me believe that a British subject is not a subject of a state in amity with his Majesty." They further pressed the improbability of its being the intention of the Legislature to afford a commercial advantage to a neutral state which it denied to its own subjects. They submitted, therefore, that in a case on the construction of a beneficial statute, passed in relaxation of a more rigorous law, for the purpose of granting privileges of commercial advantage to neutral ships; not for the benefit of the neutral, but of the British nation; the Court must, in a case of doubt, decide in favour of the British trade; that an alien ship, belonging to a British owner, was entitled to all the privileges conferred upon subjects of states in amity with his Majesty. On the other hand, the counsel for the crown objected to the case of Pearce v. Cowie, as a hasty dictum thrown out at Nisi Prius, without having undergone discussion, as it afterwards went off on another ground. (c) To shew that the Legislature had on many occasions observed a material distinction between the state itself and any other state in amity with it, (independently of the natural difference of the terms) they adverted to the various sections of the navigation act, and of the present statute, wherein that distinction was recognized, par(c) Holt's Nisi Prius Cases, p. 69.

Of foreign ships British owned.

(a) 4 Camp. N. P. 364.
(b) Pearce v. Glover.

v. 'Wilson.

ticularly in the fifth section of the latter, which gives a privilege to Attorney-Gen. import in ships built in, or belonging to Great Britain, or belonging to any state, &c. in amity with his Majesty. They contended, that a state in amity with his Majesty could not, by any construction, be made to mean any part of his Majesty's dominions; nor could a subject of his Majesty be the subject of a state in amity with his Majesty. The main object of a distinction taken between a British registered ship, and a ship foreign built, British-owned, is to encourage the former to the disadvantage of the latter. The Lord Chief Baron Thompson, in giving judgment, observed, that the terms ship or vessel, belonging to a kingdom or state in amity with his Majesty,' in their plain acceptation, necessarily referred to some kingdom or state whilst in a friendly relation to this country, and such a state as might hereafter become hostile to this kingdom, and not to the ships of individuals who compose part of the body of the subjects of this kingdom. Upon the whole, the court was of opinion, that a privilege given by act of Parliament to ships belonging to any state in amity with his Majesty, and manned with foreigners, to import merchandize otherwise prohibited, did not extend to foreign-built ships belonging to British subjects; the privilege being one strictissimi juris. (a)

Indeed, it is the obvious policy of the navigation laws, and more of foreign ships, British especially of our registry acts, to encourage British ship-building, owned. and British ownership, as the two chief instruments of maintaining and advancing our maritime interests. Having this object always in view, the Legislature, as far as it is possible, discourages and prevents the employment of British capital in all foreign shipping, and almost effectually compels our merchants to carry on all their export and import trade in ships of British built. The statute of 7 & 8 Will. excluded foreign built ships altogether from the plantation trade, and the 26 Geo. 3. c. 60., almost put an end to foreign ships, British-owned, by taking from them the privileges of a British ship; so that the trade of Great Britain after that act, with very few exceptions, was to be carried on in British-built ships equally with the plantation trade. The 34 Geo. 3. c. 68., completed what the previous statutes had begun. Hitherto the navigation system had confined all its restrictions upon shipping, whether British or foreign, to the importing of goods only, except in the plantation trade: but this latter statute enacted that no ship, registered or required to be registered as a British ship, should be permitted to export any articles whatsoever, unless

(a) Attorney-General v. Wilson, 3 Price's Ex. Rep. 431.

Of foreign ships, British owned.

Of foreignbuilt ships, British owned, in the East In

dia trade.

What is meant
by a vessel be-
ing of the
built of a fo-
reign country.

manned with and navigated by a master, with three-fourths at least of the mariners British subjects. By this act, the exportation to foreign places in Asia, Africa, and America, must be made by the same sort of shipping and navigation as the importation hitherto had been. And, as respects the European trade, the registry acts have imposed the like restrictions. All articles of European trade, previous to these acts, such at least as were not included in the eighth section of the 12 Car. 2., might be imported in any ships, British or foreign, howsoever manned and navigated: but the 34 Geo. 3. c. 68., by enacting that no ship registered, or required to be registered as a British ship, shall import or export any articles whatsoever, unless navigated by a master, and three-fourths at least, of the mariners, British subjects, has put all imports in British ships under the same restrictions with those included in the eighth section of the navigation act, and has created a restriction as to exports which before was unknown, except in the plantations, where the whole trade, export as well as import, was originally confined to Britishbuilt ships, manned and navigated in this manner. The new registry act 4 Geo. 4. c. 41. follows in the same line of policy with the 26 & 34 Geo. 3.; for although it gives new facilities to the system of registry, it cautiously confines all the main privileges of British commerce to ships, British built, owned, and manned.

IV. But foreign built ships, British owned, may still be employed by the East India company, during the continuance of their charter; such ships, however, must be built within some of the territories of the company, or in parts under the immediate protection of the British flag in the East Indies. These vessels must likewise be registered according to the forms prescribed by the 55 Geo. 3. c. 116., and are not suffered to trade beyond the limits of the company's charter. (a)

V. When the statutes speak of the built of a vessel, they are to be understood as using the term in its plain and natural sense. It was therefore determined by Lord Ellenborough, that a ship was not to be deemed of the built of Russia, within the meaning of the navigation act, which, having been originally constructed in another country, was wrecked on the coast of Russia, and repaired there at an expense of more than two-thirds of her value; although by the law of Russia she was, under these circumstances, treated

(a) 35 Geo. 3. c. 115., 42 Geo. 3. c. 20. As to the employment of Asiatic sailors and Lascars, see 4 Geo.

4. c. 80. s. 20. The new registry act, 4 Geo. 4. c. 41. makes provision for ships to be registered in India.

as a Russian ship, had a Russian register, was owned by a Russian subject, and was navigated under the Russian flag. "Repair, says his Lordship, "is not built. A ship must be of the built of the place where she was originally constructed; and while her identity continues, it is impossible, in the nature of things, that the place of her built should ever be altered. The law of Russia cannot be of force to control the navigation act of Great Britain." (a) By the 26 Geo. 3. c. 60. a vessel was permitted to undergo repairs in a foreign port to the extent of fifteen shillings per ton. The new registry act extends this privilege to twenty shillings per ton. But the master on arrival at a British port is required to declare such repairs upon oath, to the collector or comptroller of the customs; and the necessity of such repairs must be proved to the satisfaction of the commissioners.

VI. No person, we have seen, (b) is entitled to be the owner, in whole or in part, of a British ship, required to be registered, who has not his usual residence in Great Britain, or in the dominions belonging to the crown. It has, therefore, been holden upon this clause of the act of 26 Geo. 3., that a person who is continually shifting his residence, so as not to have, under any extension, what can be deemed an usual residence here, does not come within this description of the statute. He must be, unless in the cases which are specified, usually resident in this country. (c) So also by s. 11. of the new registry act, no persons usually residing in any country not under the dominion of his Majesty can be the owner of a British ship. There is an exception indeed in favour of the members of British factories; and the agents for, or partners in, British houses. VII. The most numerous cases, under the system of registry, are those which have arisen upon the provisions of the acts relating to the transfer of property in ships. Many of these cases will still continue to afford a rule for the direction of our courts, notwithstanding the repeal of the old registry acts. The three great provisions of the system are, first, that the party should have such a residence in the British dominions as would entitle him to a British register. He must not be a person coming occasionally, and for the purpose of obtaining a colourable domicile: secondly, that the ship shall not only be built, but, unless under circumstances of great emergency, repaired in the British dominions; and, thirdly, that there should always be a clear constat of the real ownership;

(a) Redhead v. Cater, 4 Camp. 188.

(b) 26 Geo. 3. c. 60. s. 8.
(c) 1 Edw 148.

Who may be

the owner of a

British ship.

Cases and decisions upon

the transfer of property in ships.

Cases and de

cisions upon

the transfer of property in ships.

Distinction between the acts of the

public officers,

and the parties

to the transfer.

Of the indorsement on the certificate, under the 34 Geo. 3. c. 68.

and therefore, if any transfer of the property take place, it must be publicly recorded, and the transfer indorsed on the certificate of register.

But a bill of sale from the original builder to the first purchaser of a new ship need not contain a recital of the certificate of registry; nor can properly do so, because the ship does not require to be registered till she is out of the hands of the builder, though the owners must cause her to be registered before the commencement of a voyage. (a)

VIII. Through most of the forms of registry and transfer which are required by the statutes, there are two acting parties; the one, the parties in the registry, or contract; the other, the public officers. The equity of the Legislature does not hold the one responsible for the acts of the other. If the parties in the registry or contract have omitted any of the regular forms, the act is incomplete, and the contract is annulled as the penalty of their act of omission. But if the public officers have made such omission, the contract is not thereby vacated. The distinction is, that as respects the contracting parties, the statutes are imperative, but are directory only as respects the public officers. It has been holden, therefore, that the omission of the officer at the out-port to transmit a copy of the indorsement upon the certificate of registration to the custom house in London does not invalidate a transfer. (b)

IX. The 34 Geo. 3. c. 68. s. 15., which gives the form of an indorsement upon the alteration of property in a vessel, uses the expression "all my, or our, right, share and interest." It would seem, therefore, as if by some oversight the framers of the act had neglected to provide for the case of a sale of a part. A question once arose upon this section; and it was contended that a transfer of any interest in a vessel would be defective, unless it stated that the interest transferred was the whole interest of the vendor. But the Court of Common Pleas decided, that upon the sale of any share, it was not necessary that the indorsement upon the certificate of registration should express the share to be all the vendor's interest; and that a person possessing a share in a vessel might sell or divest himself of any part, and still remain master of the residue. (c)

X. The provisions of these statutes are not confined to the transfer of property to a stranger, but apply also to a transfer by

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