Of the mort gage of ships. all its parts and requisites, it is provided by the act that the com- Of agents making sale, missioners may permit a record of such sales or registry de novo, &c. as the case may require, upon proof of the fair dealing of the parties. And in all cases where any bill of sale cannot be produced, the commissioners, upon proof to their satisfaction of the fair dealing of the parties, may permit a registry de novo without the production of the bill of sale. Provided only, that due security be given to produce legal powers, or to abide future claims. (a) XXXII. The following section of the act is of the first importance and benefit to commerce. Where a transfer of any ship or share shall be made only as a security for the payment of a debt (either by way of mortgage, or of assignment to trustees,) the entry in the book of registry, and the indorsement upon the certificate of registry, shall state that such mortgage or assignment was made for such purpose. It is then expressly enacted, that such mortgagee, assignee, or trustee, shall not be deemed an owner; nor shall the assignor or mortgagor be deemed out of possession of the part so mortgaged or assigned, or cease to be regarded as the owner, except so far as may be necessary for the purpose of rendering the ship, or share, available by sale for the purposes of the mortgage. (b) XXXIII. The next section controuls the operation of the 21 J. 1., with respect to shipping; and enacts that where a mortgage, assignment, or other transfer of a vessel, or any share thereof, for security of debts has been duly registered, the mortgagee or assignee shall not be affected by any act of bankruptcy committed by such mortgagor or assignor after the time of such registry, notwithstanding such mortgagor or assignor may at the time have the reputed possession, order, and controul of the property so mortgaged or assigned. But such registered mortgage is to take precedence of any right or interest which may belong to the assignees. (c) The act of 21 limited in its operation, as to property in ships. Jac. 1. c. 19. missioners. XXXIV. This useful and excellent statute then concludes by Duty of comenacting, that the commissioners in Scotland and Ireland shall monthly transmit to the commissioners in England copies of all certificates by them granted; that governors abroad may cause all legal proceedings touching the registry of ships to be stayed, until his Majesty's pleasure shall be known; that all false oaths shall incur the common law penalties of perjury; and that persons falsifying any document required by the act shall forfeit the sum of (a) 4 Geo. 4. c. 41. s. 39. ) Same act, s. 43. K (c) 4 Geo. 4. c. 41. s. 44. five hundred pounds. Administration of the former registry acts in the courts of law and equity, 26 G. 3. c. 60.; and 34 G. 3. c. 68. Penalties are to be sued for, and disposed of, as penalties under the custom laws. (a) Having thus detailed the principal provisions of the new registry act, we believe it cannot escape the observation of the reader, that it abounds in many particulars, at once complicate and minute, and difficult, perhaps, to reduce to practice as the necessities of commerce may require. But, notwithstanding its formalities, it is not to be doubted but that the present act will be found better adapted to effect the purposes for which it is intended, than any of the preceding statutes. The old registry acts sometimes introduced much perplexity in questions of title to shipping, and were occasionally employed to supersede equity by the formalities of the law: but in a course of practice, and as they were fully investigated and understood, the rigorous construction of them, which once prevailed in our courts of justice, had gradually been softened down, and made to yield to more equitable and practical considerations. They were properly maintained, in their substance, as the basis of the navigation of the country; but were construed latterly, in our courts of justice, not with literal strictness, but as a system of laws founded on great purposes of public policy; open to considerations of natural equity, and yielding in their letter to cases of unavoidable accident and invincible necessity. The courts, therefore, did not exclude that construction which the urgency of a case will often require, but administered them with the exercise of fair discretion under difficulties and doubts. In all questions, therefore, upon these laws, it will be found in the cases which we are about to consider, that the courts never lost sight of their original purpose, and never gave them a larger authority than what belonged to them with reference to their leading object. The law required a compliance with the general provisions of these statutes in order to constitute a perfect title to shipping; and it annulled (in the nature of a condition subsequent, defeating a previous title upon the omission of certain acts,) all contracts for an interest in ships in which any of the substantial requisites were wanting. In this respect, indeed, as in most others, the registry acts bear a strong analogy to the revenue acts. The strict observance of the revenue acts is enforced for the purposes of revenue. The strict observance of all the forms of registration, (a) 4 Geo. 4. c. 41. s. 45, 46, 47, 48. See the Act printed at full in the Appendix. as respects shipping, is required for the great maritime interests of the country. But, in both cases, these formalities are merely modes of title: they in no respect alter the nature of a contract. Before we enter upon a review of the cases under the old registry acts, which we shall touch but very slightly, as the utility of them is nearly superseded by the new act, 4 Geo. 4. c. 41., it must be allowed us to observe, that although these registry acts were chiefly framed upon political views, they have been found, in their execution, most admirably to combine the public interests of the state with the private advantages of the merchant; and, therein, to indemnify the latter for the numerous and complicate forms which they prescribe. cisions. Of foreign ships British owned; their privileges and disabilities. I. A registry is not a document required by the law of nations Cases and deas expressive of a ship's national character. (a) Indeed the registry acts are altogether to be considered as forms of municipal institution, and scarcely any traces of a like system are to be found in the laws of any other nation. So, likewise, a foreign built ship, British owned, is not required to be registered. (b) The policy of the navigation law and of the registry acts generally is to confine our commerce as much as possible to British-built ships, and with this purpose to confer certain privileges upon such ships to which foreign vessels are not entitled; and in some trades, as in the colonial and coasting trade, to inflict a forfeiture on any foreign vessel engaging therein. But it was not the policy of the Legislature to prevent British subjects altogether from employing foreign ships in neutral trade in as ample a manner as they can be employed by aliens. The disability, therefore, of foreign ships is this, that they cannot be employed in certain trades; that they cannot procure a registry, and, therefore, cannot become entitled to the privilege of British-built ships: but, though they cannot be registered, British subjects are not prohibited from owning and navigating them, or employing them on certain occasions. There is a sufficient security, however, for their not being extensively employed, as they are liable to increased duties, and other disadvantages from which British-built shipping is exempted. The registry acts indeed, by taking from these vessels the privileges of British shipping, have nearly put an end to foreign ships, British owned, being employed in any trade whatever. II. Doubts had formerly existed on the 26 Geo. 3. c. 60. as to the precise distinction between the privileges of British-built ships, (a) Le Cheminant v. Pearson, 4 Taunt, 367. (b) Long v. Duff, 2 Bos. and Pul. 209. To be deemed alien ships, and subject to duties, penal ties, &c.; but not a prohibit ed property to British subjects. Of foreign ships, British owned. and foreign ships British owned; that doubt was removed by the 27 Geo. 3. c. 19. which declares that all ships not entitled by the 26 Geo. 3. to the privileges of British-built or British-owned vessels, and all ships not registered according to the said act, shall, although owned by British subjects, be deemed alien ships, and be liable to the same increased scale of duties, and to the same penalties and forfeitures as alien ships. The 4 Geo. 4. c. 41. confines, in like manner, the privileges of British shipping to ships which are duly registered; and no ships are entitled to be registered, unless they are built according to the provisions of the fifth and sixth sections of that act. The result, therefore, seems to be this, that foreign ships are under great disabilities, but they are not a prohibited property. British subjects may be owners of them, and may navigate them, except in certain branches of commerce: but they are not entitled to any of the privileges of British-built ships, and cannot be registered. III. A foreign built ship, owned in part or in whole by British subjects, is under disabilities not attaching to such ship if British subjects had no share or interest in her. For example: by the commercial treaty with the United States of America, vessels built in the countries belonging to them are permitted to import goods of the growth and manufacture of the United States into Great Britain: but such vessels must be owned by the subjects of the United States. In the same manner, the 51 Geo. 3. c. 47. allows to Portuguese ships, owned by the subjects of the Portuguese government, the privilege of importing goods of the growth and manufacture of the dominions of the Crown of Portugal into Great Britain. These privileges, thus conceded to these States, are a dispensation of the rule in the third section of the navigation act. Now, it would seem at first view reasonable that British subjects might participate in a trade which the law allows to foreigners: but the law is otherwise, and the principle appears to be a sound one. It is quite manifest that an American or Portuguese ship would lose her privilege of importing goods into this country, if she were owned in whole or part by British subjects; the privilege being conceded only to ships of the built of the particular country, importing goods of the growth or manufacture of that country, and owned by its subjects. This was decided, in principle at least, in the case of Campbell v. Innes. (a) It was an action on a policy of insurance on a ship and cargo from Virginia to Great Britain. It appeared that the ship was built in America, owned by British subjects, The importa tion of goods from America in a vessel, American built, when (a) Campbell and Others, Executors of Donaldson v. Innes, 4 Barn. & Ald. 426. but was the property of Messrs. Osborne and Co. who were British is not legalized by 49 Geo. 3. subjects, and by them was chartered for this voyage to one Donald- c. 39.; and it is son, who was also a British subject. The cargo consisted of tim- contrary to the navigation ber, the produce of the United States. Upon this it was objected, laws. that the voyage was illegal, being in violation of the navigation laws. Abbott, C. J. was of this opinion on the trial at Guildhall, and directed a nonsuit. In the ensuing term a motion was made to enter a verdict for the plaintiff; and it was contended, that if this had been an American ship, and owned by Americans, the importation would clearly have been legal. For by 49 Geo. 3. c. 59. an importation of American goods in American vessels is permitted, on payment of the like duties, as if imported in ships not British built. This is in pursuance of the American treaty, and a dispensation of the navigation laws. Then the circumstance Campbell. that this vessel is British owned cannot make a difference; for the case of Long v. Duff (a) shews that the policy of the legislature in such cases is not to prevent British subjects from employing foreign ships in neutral trade in as ample a manner as they can be employed by aliens. Abbott, C. J. I think the nonsuit right. The difficulty is this,—the importation is not legalized by 49 Geo. 3. c. 59., because that act is confined to ships American owned, and here the owners of this ship were British subjects. Nor can the importation be legal as being in a British ship, because the register acts prevent this vessel, which is American built, from being so considered. The case of Long v. Duff is very distinguishable. There the question turned on the words of the convoy act; and it was held that a foreign built ship, British owned, was not required ta be registered. But that case contains no decision on the point, whether an importation of goods in a vessel of that description would, in a case like this, be legal. Innes. A privilege with his Ma jesty, &c. does not extend to foreign-built An information was filed by the Attorney General for the condemnation of a ship and her cargo, on the ground of an illicit importation of flax-seed, &c., from Russia. It appeared that she had been American property; had been purchased by a British subject in 1809; and from that period had made several voyages to this country; some voyages in the character of an American, and others under different flags; but she had not received, nor was she ships British entitled to receive, (being foreign built) the character of a British owned. ship by being registered as such. The point raised was, whether the vessel was protected under the 43 Geo. 3. c. 153. s. 4., which made it lawful, during the continuance of hostilities, for any per (a) 2 Bos. & Pul. 209. and see ante. |