by the jury, were recognized by the statutes on this subject, which therefore precluded all other evidence. They argued that these statutes are legislative declarations of the distinction between sloops and cutters. The words in 24 Geo. 3. [ Rule 9 of this title]" Cutters, "&c. (of what built soever,)" show that the built, i, e. the shape of the hull, is not essential to its being a cutter or not; and the words following, "and all vessels "of any other description, whose bottoms "are clinch work," imply that the cutters, luggers, &c. are also clinch work; and that these, described with the general clause of all other vessels whose bottoms are clinch work, are meant to comprehend every sort of vessels clinchbuilt, those described by name being the most common of that built. These are all forfeited, “unless they shall be square" rigged, or fitted as sloops with standing "bowsprits." This sufficiently shows the meaning of the legislature to be, that all vessels not coming within the definition of sloops as to their bottoms, or resembling them in their rigging, by having standing bowsprits, are to be forfeited. The act of 27 Geo. 3. [Rule 15 of this title] relating to all vessels whose bowsprits are of a certain length, whether standing or not, includes sloops; but in the former statute, where having standing bowsprits is an exception, sloops are not included. A sloop, which is a vessel carvel bottomed and with a standing bowsprit, needs no licence; for there is no danger of their smuggling from their slowness. So a vessel resembling a sloop in either of these particulars, is protected without a licence. If then this vessel had really been a sloop, as she is described, she would have required no licence. The 7th section gives an exemption only in favour of every vessel "the "owner of which shall have a licence "as hereinafter described." The 10th section requires that each licence shall describe whether she is a cutter, lugger, shallop, or wherry, or what sort of built she is. If she is a cutter and is described as a sloop, she has not such a licence as is required, nor therefore such as will protect her. The owner in making his representation of the nature of his vessel has, in the 10th section, his option given him, either to describe her generally as a cutter or lugger, &c. or to specify particularly her construction: the owner in this case has chosen the former; he has given a false description, which therefore does not cover his vessel from the penalties. general construction, including the rigging, bowsprit, &c. This cannot refer to the shape of the hull; for that is no where, in either of the statutes, taken notice of as the description of those slow-sailing vessels which are exempted from the necessity of getting licences. It is necessary that the description in the licences should agree with the truth, for otherwise custom house officers would be continually led into mistakes, and afterwards harassed by prosecutions. Besides, if the licence of a sloop will cover a cutter from forfeiture, the consequence would be dangerous; as a sloop might obtain a licence and transfer it to a cutter, and while the sloop continued to trade securely, from her built, without any licence on board, the cutter would perhaps be carrying on a smuggling trade with all the advantages of a license, and without danger of forfeiting the security given on obtaining the licence, according to the 10th section [Rule 13 of this title], which would still continue to attach upon the sloop for which it was originally giveň. They also took another objection to the licence, that it stated the vessel as intended to be employed in the coasting trade generally, without stating to what port, harbour, or creek, she is about to "sail," according to the directions of the act. This omission, they contended, avoided the licence, which therefore was no security from the penalty or forfeiture in the act. If a new trial is granted, it can be of no use but to increase expenses; for there are at least sufficient grounds for the judge to certify that there was probable cause for seizure, and in that case only the value of the ship can be recovered, without other damages or costs: the defendant is now ready to return the vessel, each party paying their costs, and offered to return her on the second day after she was brought into port; so that the plaintiff may have, without a new trial, all he can hope for by one. Mr. Serjeant Lawrence and Mr. Gibbs, in support of the rule, argued that the construction put upon the acts by the defendant's counsel was fallacious. The words in the 4th section, 24 Geo. 3. "cutters, &c. unless they shall "be square-rigged, or fitted with standing "bowsprits," would be absurd, if a standing bowsprit and square rigging constituted a sloop; for that would be making a forfeiture of all cutters, unless they shall be sloops. The words, "fitted "as sloops with standing bowsprits," do not mean, fitted with standing bowsprits as sloops are fitted, but fitted like those sloops which have standing bowsprits. The world "built," in the 10th section, must either relate to the distinction between clinch and carvel work, or to the " In the 7th section the licence is said liament, 24 Geo. 3. The 4th clause seems to be on account of the built, which to favour the construction put by the shows the meaning of the legislature, defendant's counsel; but that construcAnd in the 10th section, which requires tion seems at first to be negatived by that the licence shall describe whether the word built, used in the 10th clause. she is a cutter, &c. or what sort of built Upon consideration, we are all of opishe is, means, that the built shall be de- nion that that word is there intended scribed in this general way; that is to to be used as synonymous with dessay, whether cutter, lugger, &c. or any cription, and not to imply that the body other description of built: the built is the distinguishing part. If the word being evidently the thing to be distin- "description" had been used, it would guished, and which the legislature sup- have cleared all difficulties; but as it poses to be distinguished by the word stands, we do not think it sufficiently cutter, lugger, &c. or as here by the word plain to contradict the parole evidence sloop. to which the judge gave credit. It would be an unnatural construction to say that the word built meant the rigging, and the evidence to which the judge at the trial gave credit sufficiently proves that it is not the technical use of the word. The words in the act 27 Geo. 3. where both cutters and sloops are forfeited "having bowsprits above a cer"tain length, whether the same shall be "a running or standing bowsprit," would be unnecessary, if these were known as certain distinctions between cutters and sloops; but are useful and effectual words, if cutters and sloops may use either sort of bowsprit indifferently; and the 4th section of the same act supposes that a sloop may have required a licence under the former act. It is equally advantageous to an owner to have his vessel described as a sloop or as a cutter if he has a licence, and it is equally easy to get one for either; therefore we cannot suppose any interest in the plaintiff to have it described wrong; and it is impossible that the act of any King's officers should forfeit to the King a fair trader under au act against smuggling. The other question, as to the destiuation, was properly laid aside at the trial, as having nothing in it; for if the licence had mentioned each port at which a vessel may call in the coasting trade, that would certainly be good; and where this licence says generally, "to be employed in the coasting trade,” it means to include all the ports in England; which is the same thing as if it specified every one. This is the general mode of granting licences to coasters; and if bad, half the coasting vessels are liable to be forfeited; and all requiring licences must leave that trade, as it is impossible to apply for a licence every time they run from one creek to the next. Eyre, chief baron. The principal difficulty in this case arises from the equivocal expressions in the act of par As to the other objection, to the uncertainty of her destination in the li cence, that has more weight. The words "what port, harbour, or creek," are very express; and although the argument used by the plaintiff's counsel is true, that if vessels requiring a licence must have a fresh one for every trip in the coasting trade, it would effectually prevent them from engaging in it: yet it does not follow that that was not the intent of the legislature; for the requiring licences at all shows a jealousy of allowing the vessels that are fit for smuggling to be hovering about the coast, and the licensing them for a voyage seems rather intended not to deprive them of advantages on any particular emergency, than to allow them the benefit of a general coasting trade. This, however, is a thing of very great importance, as it is the general mode of granting licences in the trade; and a multitude of vessels would fall within the penalty if we were to decide for the defendant. It is proper on this ground also, that there be a new trial, that the case may be put upon record, and receive the most solemn decision it is capable of. As to the objection, that it would only be to increase the costs of both, as there' is probable cause of seizure, that is not true. The certificate to be granted by the judge is only in cases where a wellmeaning officer has been led to make a seizure, by a probable cause of suspicion, in which he afterwards finds himself mistaken: but the defendant seized on other grounds, where he had not even a probable cause of suspicion: he fell on the present ground of defence afterwards, as a pretext for retaining the seizure, and was so conscious he was wrong, that he offered to let her go upon getting a release; that is, if the plaintiff would give up his right to redress for the injury he had sustained. He stands on the strict letter, and is not entitled to any favour. The Rule was made Absolute. ANSTRUTHER's Exchequer Reports, vol. i. p. 23. The Attorney General against Brown.-June 7, 1796. On an information of forfeiture of "to sail," which seems to confine the the defendant's cutter, it appeared that she was such a vessel as required a licence within 24 Geo. 3. sess. 2. c. 47, 27 Geo, 3. c. 32. and 34 Geo. 3. c. 50. She had accordingly obtained a licence which described her as "at "and belonging to Colchester, and in"tended to proceed on a voyage to "Lisbon." After having obtained this licence she did not go to Lisbon but to Flushing. After her return she went a voyage to Sunderland for coals; she was seized at Colchester after the last voyage. The chief baron directed the jury that, if they thought the intermediate voyages to Flushing and Sunderland could be considered as preparatory to the voyage to Lisbon to take in goods for that voyage or otherwise, so that it was not a substitution of a different destination from that specified in the licence, they ought to find for the defendant. The jury found a verdict for the crown. A rule having been obtained calling on the attorney general to show cause why a new trial should not be granted, cause was now shown by Mr. Solicitor General and Mr. Newnham. They argued that the vessel is forfeited by the acts, unless she has such a licence as is required by the legislature, a licence specifying the voyage apon which she is about to sail. While she continues to answer that description, the licence protects her. When she ceases to answer the description in the licence, she no longer has such a licence as the acts require, and is therefore liable to forfeiture. Rouse and Dauncey argued in support of the rule, and the solicitor general in reply. Macdonald, chief baron, this day delivered the opinion of the court. This case depends upon the construction to be put upon two acts of parliament, the 24th and 27th Geo. 3. the former of these, 7. requires the licence to set forth "for what port the vessel is about licence to a particular voyage between two specific ports. This was found inconvenient in some cases, and the legislature in the second act has impliedly given authority to issue licences for a general course of trading within any particular limits to which they may think proper to extend it; and it provides that, if the vessel shall be found out of those limits, she shall be forfeited as if she had no licence. I find, upon inquiry, that licences are now considered, and always granted, with the view of continuing so long as the vessel shall remain in the same course of trade specified in the licence. Thus, if a licence is granted to navigate from London to Hull, the vessel is protected in her return; for a voyage to Hull implies in truth the voyage there and back; and if she makes another voyage to the same place, it is not the practice to require a fresh licence. If she changes her voyage, a new licence is required. It is plain, upon looking into the two statutes, this is the meaning of the legislature. It is made necessary to set forth the description of the vessel, and the specific voyage or limits of her trade, for the purpose of enabling the admiralty to judge whether it will be safe to the revenue, that a vessel of such a description should be allowed to trade upon that coast. If granting a licence for one voyage is a general protection, this security to the revenue is lost, and the admiralty have no discretion upon the subject. It appears clearly, therefore, that the voyage upon which she is about to sail is a material part of the licence, and if there is a change in that particular, she has no longer a licence which sets forth for what port she is about to sail, and is therefore liable to forfeiture. [Licences now granted by commissioners of customs.] The Rule was Discharged. ANSTRUTHER's Exchequer Reports, vol. iii. p. 721. TITLE III-REGISTERS. [In the 26th year of the present King, very considerable alteration was made in the whole concern of registering shipping, with a view of securing to ships of the built of this country a preference and superiority which they had not enjoyed so completely before. The plan of regulation then proposed to Parliament was the result of an inquiry and deliberation of great length, before the Committee of Privy Council for the Affairs of Trade and Plantations; and that inquiry was commenced and carried on, and the measure at length decided upon, prin Isle of Man. Malta. 26 Geo. 3. c. 60. § 1. What vessels cipally by the exertion and perseverance of the late Earl of Liverpool. REEVES, 2d edition, p. 397. Some of the regulations under this title being closely connected with others under the preceding one, the reader is referred to the note prefixed thereto.] [As to the registry of vessels in the Isle of Man, see TITLE 54.] [As to the registry of vessels at Malta, see TITLE 74.] [As to the registry of vessels belonging to the East India Company, see TITLE 87.] Rule 1. No vessels foreign-built (except such vessels as have been, or shall hereafter be, taken by any of His Majesty's vessels of war, entitled to or by any private or other vessel, and condemned as lawful prize in privileges of any court of admiralty), nor any vessel built or rebuilt upon any British-built foreign-made keel or bottom, in the manner heretofore practised ships. and allowed, although owned by British subjects, and navigated according to law, shall be any longer entitled to any of the privivileges or advantages of a British-built ship, (a) or of a ship owned by British subjects; and all the said privileges and advantages shall hereafter be confined to such ships only as are wholly of the built of Great Britain, or Ireland, Guernsey, Jersey, and the Isle of Man, or of some of the plantations, islands, or territories in Asia, Africa, or America, which now belong, or at the time of building such vessels did belong, or which may hereafter belong to, or be in the possession of, His Majesty: provided always that nothing hereinbefore contained shall extend to prohibit such foreign-built vessels only as before the 1st May, 1786, did truly and without fraud wholly belong to any of the people of Great Britain, or Ireland, Guernsey, Jersey, and the Isle of Man, or of any of the aforesaid plantations, islands, or territories, as the proprietors and right owners thereof, and which shall be navigated according to law, and shall also be registered in manner hereinafter directed, from continuing to enjoy the privileges and advantages they have hitherto enjoyed, or from importing or exporting such goods or commodities as may now be legally imported or exported by such vessels, into and from such places as are now by law allowed, and under such regulations as have heretofore been made touching such foreign-built vessels, and subject to all such duties as have been imposed on any goods or commodities imported (a) By 27 Geo. 3. c. 19. § 13. all vessels which by the above act are declared not to be entitled to any of the advantages of a British-built ship, or of a ship owned by British subjects, and all ships not registered according to the said act, shall, although such ships may be owned by His Majesty's subjects, be deemed as alien ships, and shall in all cases be liable to the same penalties accordingly. Slave Trade. By 54 Geo. 3. c. 59. all vessels which, whether British or foreign, shall after the 27th May, 1814, become forfeited under any of the provisions of any act of parliament now in force, or which may hereafter be passed, for the prevention, abolition, or regulation of the slave trade, and be adjudged to be forfeited in any court of record in Great Britain, or which shall be condemned as forfeited in any court of admiralty or vice-admiralty in any part of His Majesty's dominions, for any offence in relation to the slave trade, shall, from such judgment or condemnation, be entitled to a certificate of registry, as a British ship, and thereupon have and enjoy all the privileges and advantages of British-built vessels, in like manner with vessels taken by His Majesty's ships of war, and condemned as lawful prize of war in courts of admiralty: provided that all such vessels shall be subject to the same duties and regulations, and shall be registered in the same manner, and subject to the same conditions and forfeitures, and shall be in like manner owned and navigated, as vessels condemned as lawful prize are required to be, in order to their obtaining British registers and enjoying the privileges of British ships owned, registered, and navigated according to law. Vessels built upon foreign or rebuilt, or exported as aforesaid in such foreign-built vessels, by any act of 26 Geo. 3. parliament and provided also, that nothing herein contained shall c. 60. extend to deprive any vessel, which before the passing of this act hath been built or rebuilt upon any foreign-made keel or bottom, and keels or botwhich, before the 1st May, 1786, was duly registered as a British toms. ship, from continuing to enjoy any privilege or advantage to which such vessel is now by any law or usage entitled; nor to prevent any Vessels begun such vessel which shall have begun to be repaired or rebuilt before the to be repaired said 1st May, 1786, from being registered according to, and in pur- before May, suance of this act, by an order under the hands of the commissioners 1786. of customs in England, or of the commissioners of customs in Scotland: which order the said commissioners respectively are hereby authorized and empowered to grant, if it be made appear to the satisfaction of the said commissioners respectively, upon oath, that Stranded vessuch vessel was stranded by the act of Providence, and not with sels or droits a fraudulent intent, and was, at the time of being so stranded, the of admiralty. sole property of some foreigner or foreigners; or that such vessel was a droit of admiralty, and it be in like manner fully and clearly ascertained, to the satisfaction of such commissioners respectively, that the said vessel, from the damage received by being so stranded, was rendered unfit to proceed to sea without undergoing a thorough repair in this kingdom, and that she was necessarily sold for the benefit of the foreign owner or owners, or, being a droit of admiralty, was sold by virtue and under the authority of an order or commission from the court of admiralty, and that she was fairly and openly purchased by a British subject or subjects, and being the sole and entire property of such British subject or subjects, that she hath been so much re- Portions of paired, that two-thirds of her at the least are of Britith-built. repairs. built or re on voyages. Rule 2. No vessel shall be deemed to be British-built, or enjoy the Vessels reprivileges thereunto belonging, which shall from thenceforth be re- paired in a built or repaired in any foreign place, if such repairs shall exceed the foreign port, sum of fifteen shillings for every ton of the said vessel according to the § 2. admeasurement thereof, unless such repairs shall be necessary by reason of extraordinary damage sustained by such vessel, during the ab- Extraordisence of such vessel from His Majesty's dominions, to enable her to nary damage perform the voyage in which she shall be then engaged, and to return in safety to some place of the said dominions; and before such vessel shall be repaired, so as to exceed the sum aforesaid, the master of such vessel shall report the state and condition thereof upon oath Oath as to to the British consul, or other chief British officer, if there be such state. consul or officer at the port, where it shall be necessary to repair such vessel, and shall cause such vessel to be surveyed by two fit and proper Vessel to be persons to be approved of by such consul, or chief British officer; and surveyed. shall deliver to such consul, or chief British officer, in writing, the particulars of the damage sustained by such vessel, and shall verify Oath as to upon oath (to be administered by such consul, or chief British officer) amount, &c. the particulars and amount of the repairs of such vessel; and that the same were become necessary in consequence of damage sustained during the voyage to that port, to enable such vessel to prosecute the voyage then intended, and to return to some place of His Majesty's dominions, which the said consul, or chief British officer, is hereby required to certify under his hand and seal; and if there shall not be any British consul or chief British officer resident at or near the place where such repairs may be necessary, then such survey shall be made by two fit and proper persons, to be approved of by two known of repairs. |