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II. OF MERCHANT SHIPPING AND SEAMEN.
IN considering the Law of Shipping as a whole, but Part Second. divisible into its subordinate parts, the mind immediately Shipping and perceives that the subject matter distributes itself into Seamen. three principal members :-The first, the Navigation Laws, under which every vessel must be built and navigated; and which, therefore, is the foundation and commencement of the whole System.-- The second is the ship itself and crew, and whatever belongs to the ship, abstracted from its employment by the merchant. And the third and last part treats of such employment of the ship by a merchant charterer or freighter, and generally of all contracts under which merchant shipping is hired or let out. Such, therefore, is the order of our subject, and the division of our subject matter. In the former part of our Introduction we have endeavoured to give a general view of the Navigation Laws, and of the principles upon which they rest. In this part it is proposed to execute the same purpose as regards the Law of the Ship itself, the owner, master, and crew, abstracted from its employment under a contract with the merchant, and further separated from the detail and discussion, which belong to them in the body of the Work.
Under this relation, the first point of consideration is obviously the property of the ship, the manner of acquiring or alienating it; and, as such property may be possessed by several in common, the rights and liabilities of owners. and part-owners : the second, that of the legal authority, duties, and liabilities of the master; and the third, that of the duties of the seamen, and the legal mode of their hire and payment.
First, therefore, as respects the property of ships in
whole or part.
Of acquiring property in ships.
1. As respects property in ships, it is of course acquired ordinarily either by being the builder, or by purchase from another. In purchase from another, there is this main difference between a ship and another personal chattel, that from consideration of its great value, and from a kind of public as well as private character, the law requires all transfers of ships to be by bill of sale or other instrument in writing. (h) The ship at the time of sale is in port, or absent at sea. If in port, the sale must be by bill of sale; and in order to render such bill of sale effectual, it should be immediately carried to the officer of the port to which the vessel belongs, and should by him be entered and described in the book of registry ; and after such entry, the officer must indorse a memorandum of the transfer upon the certificate of registry. In case the vessel be absent, and the certificate of registry be with the master, thirty days are allowed after the arrival of the vessel for such certificate of registry to be produced. If it be then produced, the indorsement is made, and the property of the ship or share finally conveyed. In the mean time, namely, before the lapse of such thirty days, the entry on the book of registry, per se, passes the property of the ship or share from the date of the entry on the book of registry. If the certificate of registry of a ship, which is in port at the time of transfer, be not produced and indorsed within thirty days after entry of the bill of sale on the book of registry, or within thirty days of the ship's arrival, if the ship be absent at the time of sale and entry on the book of registers, then the officer of customs may make indorsement to any subsequent purchasers or mortgagees, who shall first produce the certificate of registry. 4 Geo. 4. c. 41. $ 35, 36, 37.
2. A frequent relation amongst ship-owners is that of being mortgagee of the vessel of another. Such a mortgagee is, as to certain circumstances, not an owner; and is, therefore, not liable for necessaries or services for the ship. He is in fact, for most purposes, only in the same Of Merchant situation with the mortgagee of real property. We have Seamen. already shewn, that the numerous embarrassments and uncertainties which accompanied this relation have been effectually removed by the new Registry Act, 4 Geo. 4. c. 41. $ 43. The transfer of a ship by way of mortgage is now expressly recognized by the legislature. The mortgagee is no longer to be viewed in an equivocal character; but, in the express terms of the act, is not to be deemed an owner. And in order to complete the security of the relation of mortgagee, and to exclude many of those inconveniences which arose under the bankrupt laws, the new act provides, that the transfer of ships for the security of debts when registered, according to the provisions of the act, shall convey such a title to the mortgagee, that his right shall not be affected by any act of bankruptcy of the mortgagor, after the time when his mortgage shall have been registered, notwithstanding the mortgagor, at the time of his becoming bankrupt, should have in his possession, order, and disposition, and be the reputed owner of the ship, so mortgaged or assigned ; in other words, that the mortgage or assignment shall take place of and be preferred to any right or claim of the assignees of the mortgagor, under the 21 Jac. c. 19. But if the mortgagee be in possession of the ship, that is, if he be the registered owner, and in possession, he is of course owner de jure et de facto ; and, therefore, liable accordingly. But a registry by itself is no proof of ownership in a civil suit; for it is capable of being made without the act of the party himself; and in almost all cases there is a possibility of its being so made ; so that an insolvent owner might add to his own name in the registry that of a solvent man, and thus render a person liable without his own act.
of the mortgagee of a ship.
(h) 4 Geo. IV. c. 41. 29.
3. Another frequent relation amongst owners is that they charter their vessel to a merchant to be employed by him as a general ship: in which case two persons are ostensibly held forth to the public as owners; the actual
owner; and the merchant freighter exercising all the acts Shipping and Seamen.
of ownership. In this case the distinction must be taken, whether according to the terms of the charter-party, and the manner of navigation and service, the ship itself be let out, or only the room and space of the ship. If the ship itself be let, and the captain and crew be effectually the servants of the merchant-freighter, which is sometimes the case, the merchant will be liable for all necessaries, accidents, &c. But if the space or room only be let out, and the owner remain in full controul and dominion of the ship, the owner will himself be liable for all necessaries, accidents, &c.; except only as respects the persons with whom the merchant himself has contracted, that is, the
under or subordinate freighters. Of part-own
4. But a fourth, and the most frequent of all relations of ship-owners, is that of being part-owners with each other : that is, possessing a ship in shares. The two most common questions under this circumstance are,-first, how far one part-owner is liable for the acts of another; and, secondly, in the event of disagreement with each other as to the employment of the vessel, how the decision is to be made; each person possessing his own part in exclusive dominion, and neither having any representative character as regards the other. With respect to the first of these questions, and in all cases which arise under it, the principle lies in the difference between partners and partowners. Partners are two or more persons, who have so united, and as it were incorporated, with each other in prosecution of some general concern, that the act of one is the act of both; and so far as relates to the general concern, each represents himself and the other. But part-owners have no other union nor association than the common possession of the same personal chattel. In partnerships, properly so called, one man cannot become the partner of another without his consent: but partowners may be imposed upon each other, without consent; namely, by purchase, succession, &c. They have, therefore, no general representative; nor can one part
owner act generally for the other. But as it is a neces
Shipping and sary presumption of law, that the common possessors of a Seamen. valuable chattel must will and desire whatever is necessary to its preservation ; and, in their absence, must equally will and desire the profitable employment of their common property, so the law further infers, as a necessary consequence from the first presumption, that a part-owner on Par:-owners. the spot has an implied authority from the other absent part-owners to order for the common concern whatever is necessary
for the preservation, navigation, and proper employment, of the ship. This is the principle, and the limit of the liability of part-owners. Part-owners, therefore, are liable for necessary repairs ordered by one of themselves. They are equally liable for necessary stores taken up by the master or one of themselves, during the voyage. But they are not liable for an insurance ordered by one of them; neither for enlarging a ship, nor for painting it. But, as respects the necessary repairs and expenses of the ship, part-owners are bound to the third persons who make those repairs, not only for their own share, but for the whole; and therefore, if any one fail of paying his share, the others must pay it rateably for him. The reason is, that they are partners as respects the necessaries and proper employment of the ship. Upon the same principle of their being partners, so far as respects the contracts and concerns of the ship, they must sue and be sued jointly ; for example, they must sue their freighters jointly; and, on the other hand, may claim to be sued jointly by their shipwright, &c. With respect to this relation, the new Registry Act has much altered its character and extent. In the first place, by providing that no more than thirty-two persons shall be owners at any one time, as tenants in common in any British ship; and, secondly, that where shares are held by partnership or joint stock companies, the ship may be registered in the names of the copartnership or joint stock companies, without distinguishing the proportionate interest of each owner; and that such shares shall be deemed partnership