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VII. It is scarcely necessary to observe that the above clauses of the transfer
and mortgage put an effectual end to all such future cases as those above cited ; (a) of ships, and in which a former ship-owner had transferred his ship as a security shares of ships, for money borrowed, and became bankrupt before the mortgagee 41.; and the had taken actual possession of the ship. We have seen, that under the 21 Jac. 1. such circumstances, the courts have holden that the assignees of c. 19. s. 11. (as the bankrupt (the bankrupt being the reputed owner) were entitled ownership) in to the ship, and that the mortgagees must relinquish her. By the such cases of
mortgage and 44th clause of the new registry act, it would now be sufficient, in a transfers. case of this kind, to enter the mortgage in the book of registers, during the absence of the ship; and upon her return (that is, within thirty days after) to have the indorsement on the ship’s certificate made by the proper officers. The two cases of Robinson v. Macdonnell, (b) and Hay v. Fairburn, (c) proceeded on the same principle; and would, at the present time, fall under the same remedy. In Robinson v. Macdonnell, the mortgagee had actually registered the ship before the bankruptcy of the mortgagor: but as the mortgagor continued in the actual possession of the ship, and exercised all the acts of owner, the court held, that under the statute of James the assignees of the mortgagor were entitled to it. The case of Hay v. Fairburn, (d) appears to be the precise case, which led the framer of the new register act to the introduction of these most useful clauses, and particularly to the 43d and 44th clauses ; by which it is provided that a mortgagee shall not be deemed an owner (as to the ship's debts) and that a mortgagor, not only need not be put out of the possession, use, and disposition of the ship, but shall not be deemed to be out of possession; and that although the mortgagor should continue, as heretofore, in the use, possession, and controul of the ship, the 21 Jac. 1. c. 19. 8. 11., (the reputed ownership clause) shall not attach, so as to affect the rights of the mortgagee. In Hay v. Fairburn, which was likewise an assignment of a ship as a security for a debt, there was a positive condition that the assignor should have the use of the ship; and upon this ground the court held that the ship was in the order, disposition, and controul of the assignor, and therefore, under the circumstance of his bank
(2) Mair v. Glennie, 4 Maule and Selv. 240. Robinson v. Macdonnell, 5 Maule & Selw. 288. and 2 Barn. & Ald. 196. Hay v. Fairburn, 2 Barn. & Ald. 193. Kirkley v. Hodgson, 1 Barn. and Cress. 588. We have, however, thought it necessary to cite these
cases shortly, as many contracts may
(6) 5 Maule and Selw. 288.
ruptcy, passed to his assignees. The more recent case of Kirkley v. Hodgson falls within the principle of the cases of reputed ownership, and was determined upon the 21 Jac. 1. c. 19. s. II. Although it differs in some particulars, it is in conformity in principle with the decisions in the previous cases. All these cases, as above said, would now fall within the remedy of the 43d and 44th clauses of 4 Geo. 4. c. 41.
VIII. The two most usual ways of acquiring property in ships
are, by building the vessel, or purchasing it from another. A Of property in third mode is by capture from an enemy in time of war, the ships taken as prize.
captor having a legal title to make the prize, and the vessel being afterwards condemned in a suitable court. Such capture must necessarily be made by a King's ship, a private vessel having letters of marque, or a merchant vessel fighting in its own defence. But in almost all these cases, the capture, in practice, almost immediately resolves itself into a sale; the prize being taken into a suitable port, upon condemnation sold, and the proceeds divided amongst the captors. This immediate sale is so much indeed the natural course, that the acts of parliament, by which prizes are permitted to be registered as British ships, always presume their sale. The purchasers of captured vessels, therefore, may apply for their register in the same manner as if such vessels were British built; except that, in order to prevent frauds, they must produce to the proper officer of the customs certificate of condemnation under the hand and seal of the judge of the court in which the ship has been condemned, together with an
oath of the vessel's identity. Of property in
IX. As pirates are robbers, and as a sale by them is, of course, ships acquired by a purchase only a sale by robbers, a third party, though a bona fide purchaser, from pirates. cannot claim against an owner upon the allegation of a capture by
such pirates, and a sale to himself. Such a taking is not a capture, but a robbery; and does not divest the property of the owner. But an eminent distinction must be taken here with respect to captures made by Algerines, Tunisians, and other of the Barbary States. Such states, at least, before the last treaty, were considered to be in perpetual hostility with Christian communities, and captures made by them were deemed to be captures by an enemy. No case has arisen since the treaty made after the late expedition by Lord Exmouth. As respects the Algerines and their dependencies, the only African power comprehended in the treaty, a doubt might reasonably arise in a court whether captures made subsequent to this treaty were to be deemed as acts of piracy, or as captures made by an enemy. But this question can only arise with respect to the vessels of Algiers and Tunis. But before this treaty, all captures by these powers were deemed sufficient to give a title to a third party being a bona fide purchaser. In the Helena, Heslop, (a) it was decided by Lord Stowell, that the capture and sale of an English ship, by a vessel belonging to the Dey of Algieas, was not such a piratical seizure as to affect the conversion.
X. But in all cases of legal capture a sentence of condemnation of property is necessary to complete the title of the purchaser; and he should in ships sold
under a senaccordingly not neglect to demand it as one of the muniments of tence of conthe ship. In the Flad Oyen, (b) the Kierlighett, (c) and the the Admiralty
demnation in Prosperous, (d) the vessels, after capture, were restored by the Courts. Court of Admiralty to their original owners upon two principles ; 1. That such sentence of condemnation was necessary to complete a legal alienation of the ship; and, 2. That in the case of those vessels, such sentence had been pronounced by an insufficient jurisdiction; namely, by a consul or minister of a belligerent power in the country of a neutral state. Indeed, the courts of this country are so careful not to infringe upon the rights of neutral nations, that in the Herstelder (e) a decree, which had been passed upon a vessel, described as lying at Plymouth, was rescinded, on its appearing that she was in fact in a port of Norway at the time of adjudication: the court refusing to condemn a vessel lying in a neutral port.
XI. Under these decisions, two important points seem fully established with respect to the property in ships acquired by capture, and purchases under them. The first, that condemnation is always necessary; and, secondly, that such condemnation must be by a sufficient court. In the case of the Flad Oyen, above The Flad Oyen. cited, Lord Stowell gave a decision so strongly illustrative of this mode of Admiralty law, and of the reasons upon which it rests, that, with some condensation, we shall here cite it. He observed, that it has been deemed peculiar to the law of England to require a sentence of condemnation, as necessary to transfer the property of prize, whilst with other nations the simple act of keeping possession of such prize for twenty-four hours, and bringing her infra præsidia, was a sufficient conversion. But this notion is not correct, the more general practice amongst European nations being, to require a sentence of condemnation; and
'(a) 4 Rob. 3.
(d) Abbott. 15.
Of property in the cases of sale by the captors to deliver over such sentence of in ships sold under a sen- condemnation as one of the titles of the ship. And this is the law tence of con- of England: but it is not sufficient that there should be a sentence demnation in the Admiralty of condemnation; it must likewise be by a sufficient jurisdiction, Courts.
It is entirely contrary to the usage and practice of nations, that such sentence should proceed from a tribunal not existing in the belligerent country. A court of such jurisdiction can only exist
within some part of the belligerent country itself. The Slyboom. XII. In the Christopher, Slyboom (a) it was decided by the
same eminent judge, that a sentence of condemnation, passed in the country of the enemy upon a British prize ship, lying in the port of an ally of the enemy, was valid. This is manifest; such ally being, of course, a member of the belligerent power. And where vessels have been legally condemned, that is to say, condemned by a sufficient tribunal, and transferred to neutral
purchasers, the legality of such conveyance, whether as respects ves
sels formerly enemy's property, or of our own country, cannot be The Nostra disputed here. In the Nostra Signora de los Angelos, (b) the Sigaora.
circumstances were of great nicety, the point of a previous insufficient condemnation being implicated in the question of a second seizure by the king. This vessel had been taken by a French privateer, carried into a Spanish port, and sold to a Spaniard, prior to the war between England and Spain. Being seized in the port of London on the breaking out of Spanish hostilities, and proceedings commenced in the Instance court on the part of the former owner against the ship, as not having been legally converted by a condemnation to the French captor, she was decreed to be restored to the former owner; the crown, standing in the place of the Spanish purchaser, not being able to shew that any legal sentence of condemnation and sale had taken place. But, though the Admiralty Courts have always maintained the principle that a ship, lying in a neutral port, shall not be condemned by any agent or jurisdiction whatever acting in such neutral port or country, and have generally extended the rule so far as not even to admit the condemnation of a prize in a neutral port by the
nearest tribunal in a belligerent country, it was nevertheless Henrick and decided by Lord Stowell, in the Henrick and Maria, (c) that
there might exist a state of circumstances under which a condemnation in the court of the enemy of a prize ship, lying in a neutral port, might be sufficient to warrant a sale to a neutral merchant, on the principles of reciprocity, arising out of the
(a) 2 Rob. 209.
(6) 3 Rob. 287.
(c) 4 Rob. 43,
modern practice of our own prize courts, which exercise a power of property of adjudication over vessels of the enemy carried into foreign under a sen
tence of conneutral ports. Lord Stowell, in this case, said, that the court was bound, against the true principle, by the practice which the Admiralty it bas not only admitted, but applied; for that in the conduct of war you must hold that to be lawful to your enemy
you practise yourself. But that the true and better principle was, that the belligerent should have, at the time, a safe and certain possession of the prize, and, therefore, that it should not be condemned whilst lying in a neutral port. (a) In conformity with the principle of these decisions in the Admiralty, the courts of common law have almost invariably regulated their practice, holding that if the prize courts condemn captured vessels, the sentence, whilst unappealed from, is conclusive in the common law courts, and to all the world. (b) The common law courts, indeed, cannot entertain jurisdiction of the question whether prize or no prize, or by whom taken. So, likewise, if it can be discerned on the face of the sentence of a foreign court of prize, that such court has condemned a ship on any sufficient ground, the sentence is conclusive evidence in the courts here of the facts of such' ground of condemnation. (c) But the same distinction is to be taken in this case, as in the case of our own superior courts reviewing the judgments of subordinate tribunals. Such superior courts will not enter again into facts already decided by a sufficient jurisdiction. But if it appear upon the very face of the case, that such judgment has been manifestly given, either against the evidence of such facts, or to a greater extent than is warranted by the facts; if there be a manifest error of judgment, or excess of jurisdiction; in all such cases our own courts will wholly disregard the decision of the foreign tribunal. It will only not re-try the same facts. (d) But in all these cases the mere production of the foreign sentence of condemnation is a prima facie and presumptive evidence that its judgment is just, and therein conclusive upon our own courts. But in the case of Bernardi v. Motteux, (e) where there was some ambiguity in the sentence, so that the precise
(a) See likewise 5 Rob. 285; the Comet.
(b) Duckworth v. Tucker, 2 Taunt. 7; and Park on Insurance, 490.
(c) Bolton v. Gladstone, 2 Taunt. 85.
(di Pollard v. Bell, 8 T. R. 444. Baring o. Claggett, 3 B. and P. 215.
Oddy v. Bovil, 2 East. 473. Havelock
(e) 2 Dougl. 574. 3 B. and P. 215. ;