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.
49. Ibid.
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.
