Admiralty Court Act, 1861, s. S.

Contribution towards expenses.

tain questions of account (t), and the only process by which part owners could compel an adjustment of the ship's accounts amongst themselves was, until recently, a suit in equity (u).

The jurisdiction of the Court of Admiralty was, however, extended by the 8th section of the Admiralty Court Act, 1861 (x), which conferred upon the Court jurisdiction to decide all questions arising between co-owners, or any of them, touching the ownership, possession, employment and earnings of any ship registered at any port of England or Wales, and to settle all accounts outstanding and unsettled between them, and to direct the ship or any share to be sold, or to make such order as to it shall seem fit. The Admiralty Division, therefore, now possesses full power to settle all disputes between co-owners, and although the Court is always reluctant to order the sale of a ship without the consent of the owners representing the majority in interest, yet where it is obviously for the advantage of the owners as a body that the ship should be sold the Court will decree a sale at the suit of the minority (y).

Each owner is also bound, before the commencement of the voyage, to contribute his share of capital for the expenses of the outfit, and, therefore, if one part owner, who is ship's husband, incurs this expense, he may sue the others separately for their share of it ().

One of several part owners has a right to require that the

(t) A copartner could not (before the Admiralty Court Act, 1861) originate a suit for accounts in the Admiralty Court. The Apollo, 1 Hagg. 306.

(u) Collyer on Partnership, 683. Where one of the part owners, who acted as ship's husband, covenanted with the others to make out the ship's accounts, and divide the profits after the ship's return, it was held, that the other owners might sue him at law on this covenant. Owston v. Ogle, 13 East, 538; see also Vanner v. Frost, 39 L. J., Ch. 626. To a bill filed for an account of the profits of the ship all the part owners were necessary parties. Moffat v. Farquharson, 2 Brown, C. C. 338; Collyer on Part. 683.

(x) The 24 Vict. c. 10, s. 8; The City of Mobile, L. R., 4 A. & E. 191. This section gives the Court power to order accounts between co-owners before the date assigned for the act to come into operation; also as to matters relating

to a ship lost before the institution of the cause. The Idas, Br. & L. 65. And it can order accounts to be taken between co-owners where one co-owner has ceased to be so at the institution of the suit. The Lady of the Lake, L. R., 3 A. & E. 29.

(y) The Nelly Schneider, 3 P. D. 152. See the judgment of Sir C. Robinson, in The Margaret, 2 Hagg. 276; Ouston v. Hebden, 1 Wils. 101. The Scotch and American Courts have exercised the right of compelling a sale, at least where the part owners were equally divided in opinion; 1 Bell's Comm. 503; 3 Kent's Comm. 153, 154. The Court will in its discretion exercise this jurisdiction in the case of a dispute between the owners of a foreign ship. The Evangelistria, 2 P. D. 241; The Agincourt, ibid. 239.

(2) Helme v. Smith, 7 Bing. 709; Vanner v. Frost, 39 L. J., Chanc. 626.

gross freight or proceeds of the cargo shall be applied in the first place to the payment of the expense of the outfit of the ship for the voyage on which the freight was earned; and the same rule applies to the expenses of repairs to the hull, done with a view to the particular adventure in which the earnings were made, and without which the adventure would not have been undertaken (a). By sect. 515 of the Merchant Shipping Act, 1854, all money paid on account of any loss or damage in respect whereof the liability of the owners is limited by Part IX. of the act, and all costs incurred in relation thereto, may be brought into account among part owners of the same ship, in the same manner as money disbursed for the use thereof.

Part owners may, by the law of England, separate at any time by parting with their shares. The rule of the maritime law was different (b).

Part owners are usually liable for necessary repairs and stores Power to bind ordered by one of themselves (c). But, strictly speaking, the each other. simple existence of co-ownership does not give power to one part owner to pledge the credit of the others; for it is clear that, in all cases in which it is sought to make one part owner liable upon the order of another, the real circumstances and position of the parties must be looked to in order to ascertain whether any agency exists in point of fact. In a recent case, one of two part owners had not done any act to induce the creditor to suppose that the other had power to pledge his credit, and had given notice to his co-owner of his intention not to sail the ship again, and had offered to sell his share in her; it was held that, under these circumstances, he was not liable for repairs subsequently ordered by his co-owner, although the notice of his intention to sell had not been communicated to the creditor (d). The principle and limit of this liability, where it exists, is that it is reasonable to suppose that a part owner on the spot is allowed by the absent part owners to order whatever is necessary for the preservation, navigation and proper em

(a) Green v. Briggs, 6 Hare, 395; Alexander v. Simms, 5 De G., M. & G. 57. Wages, and the expense of manning the ship, are proper deductions to be made from the gross freight as between part owners of a ship and the assignee of the freight of another part owner. Lindsay v. Gibbs, 22 Beav. 522. (6) Molloy, B. 2, c. 1, s. 3.

(c) See Ex parte Bland, 2 Rose, 92; Story on Agency, s. 40, and the cases as to repairs cited in the earlier part of this chapter.

(d) Brodie v. Howard, 17 C. B. 109. See also as to the circumstances from which such an authority is implied. Preston v. Tamplin, 2 H. & N. 363. Affirmed in error, ib. 684.

Ship's husband.

ployment of the ship, since the common owners of a valuable chattel must be presumed to intend its preservation and profitable employment (e). They cannot, however, bind each other as partners, unless an actual partnership exist, and then the ordinary rules relating to partnerships apply. Thus, one part owner has no authority to order insurances to be effected on behalf of the others, unless there is a partnership between them (f). If, however, the others subsequently adopt the insurance, they are bound by it (g): but, in the absence of any original authority, or subsequent ratification, the broker who effects the insurance can only look to the part owner who employs him, and is liable, on the other hand, to him alone, for the amount received from the underwriters (h).

Where, as is usual, one part owner is appointed ship's husband, he becomes the agent of the others in the management of the ship, and commonly receives some remuneration from his co-owners (i). It is then his duty to see to her proper outfit and equipment, and he has power to bind the others by contracts made within the scope of his agency. He has authority to procure a charter-party and to enter into contracts for the benefit of the owners of the ship; but he has no implied authority to cancel a charter-party (k). He cannot, as ship's husband, without express authority bind his co-owners for the expenses of extraordinary and unusual alterations (1), nor can he insure the shares of the other part owners, or bind them to the expenses of a

(e) See Holt on Ship., Introd. 33.
(f) Hooper v. Lusby, 4 Camp. 66.
(g) Robinson v. Gleadow, 2 Bing. N.
C. 156.

(h) Roberts v. Ogilby, 9 Price, 269;
and see Hatsall v. Griffith, 2 C. & M.
679.

(i) See Salter v. Adey, 1 Jur., N. S. 930, where it was held, that a part owner who entered on the duties of ship's husband without any express agreement for remuneration, but with a knowledge that his predecessor had received a commission, was, on an account being taken with his co-owners, entitled to the same commission as his predecessor. See also Coulthurst v. Sweet, L. R., 1 C. P. 649; Holden v. Webber, 29 Beav. 117; Miller v. Mackay, 31 Beav. 77. It has been decided that a director of a shipping company who was appointed to manage, in conjunction with a board of directors,

the affairs of the company for a stipulated remuneration, could not by appointing himself, even with the consent of the board, to the office of ship's husband, and, acting as such, entitle himself to receive sums for commission and brokerage as ship's husband. Benson v. Heathorn, 1 Y. & C. C. C. 340. In l'anner v. Frost, 39 L. J., Ch. 626, it was held that joint owners, acting as managers on behalf of the owners generally, furnishing supplies for the voyage, were entitled to sue for an account.

(k) Thomas v. Lewis, 4 Ex. D. 18.

(1) Steele & Co. v. Dixon, 3 Sess. Ca., 4th Series, 1003. See Keay v. Fenwick, 1 C. P. D. 745, where under special circumstances it was held that a sale of a ship by the managing owner had been ratified by the owners, and that the managing owner was entitled to a commission on the purchase-money.

law suit (m), or, as against other part owners, make an assignment of the whole freight, to secure money advanced to him (»). He is only entitled to charge the cost price of supplies to the ship, furnished by him in the course of his business (o). In a recent case it was held that a managing owner was entitled in virtue of his general authority to pledge the credit of his co-owner by giving a bond for the release of the ship which had been arrested in the Admiralty Court for a collision at sea (p). The fact that a part owner has acted as ship's husband is sufficient evidence of his appointment, without any formal proof; and although a part owner is entitled to refuse to expend money on the repairs of the ship, and to inform the other owners that if they order repairs it will be on their own responsibility, he cannot revoke an authority to make alterations after it has been acted on, and must give distinct evidence of his dissent, in order to avoid a liability for repairs and alterations ordered by the ship's husband (2). A ship's husband has a right to repay himself money advanced by him on account of the ship out of freight coming to his hands, but this right is in the nature of a right of lien or retainer, and does not constitute a charge upon freight (»).

The statutory provisions with respect to the registered managing owner have already been noticed in connection with registry (8).

Where one part owner becomes bankrupt his share passes to Bankruptcy. the assignees under the bankruptcy without being liable specifically to the claims of the other part owners in respect of their disbursements and liabilities for the ship (f); but it is a general rule, that the trustee of a bankrupt partner can obtain no share of the partnership effects until he has satisfied all that is due from the bankrupt to the partnership. Where oil, the produce of a joint adventure, was deposited in a warehouse, separated into shares, put into casks marked with the initials of the several owners, and, by the agreement between them, no partner

(m) French v. Backhouse, 5 But 2727; Bell v. Humphries, 5 Stark. 345; Campbell v. Stein, 6 Dow, 135.

(n) Guion v. Trask, 1 De G., F. & J. 373.

(0) Ritchie v. Couper, 28 Beav. 344.
(p) Barker v. Highley, 15 C. B., N. S.

(2) Chappell v. Bray, 6 H. & N. 145. (r) Beynon v. Godden, 3 Ex. Div. 263. See Bristow v. Whitmore, 31 L. J., Ch. 467.

(8) Ante, p. 21.

(t) Ex parte Harrison, 2 Rose, 76; Story, Eq. Jur. 1242.

Admission of one part owner not binding on the others.

Jurisdiction

and Ad

had a right to his part until he had paid his share of the expense of procuring it, and one of them became bankrupt before his share was actually removed, it was held that the other part owners had a lien on it for the bankrupt owner's proportion of the disbursements of the ship, and were not bound to give it up to his assignees until this was paid (r). Where the managing owner received the freight warrants and paid them into a bank in his own name, drawing cheques from time to time, for various sums, out of the proceeds, part of which he applied for the use of the ship, and part for other purposes: it was held that the other part owners had no lien on this fund in the hands of the banker, nor any claim against him as their debtor ().

Formerly questions arose as to whether part owners could give evidence for each other (≈); but as objections on the ground of interest are now removed, and the parties to a suit are competent witnesses in their own case (a), it is unnecessary to notice these decisions; it must, however, be recollected, that the admission of one part owner is still not binding on the others (b).

The Court of Chancery possesses a general power to restrain of Chancery the sailing of a ship in cases where the exercise of such a power is necessary to prevent justice being defeated, and it seems that the Admiralty Division may now exercise the same power (c).

miralty to
restrain the
sailing of a
ship.

Power of
Courts of

unqualified

The Courts of Chancery and of Admiralty have, as we have already noticed (d), by statute, power to order a sale of any property Chancery and Admiralty to in a ship or share which becomes vested, by transmission on the sell interest of death of any owner, or the marriage of any female owner, in any person not qualified to be the owner of a British ship. The application must be made on behalf of the unqualified person, and the Court may deal with it, and with the proceeds of the sale as it thinks just (e). The order for sale must vest the right to transfer

owners.

(x) Holderness v. Shackells, 8 B. & C. 612; Green v. Briggs, 6 Hare, 395; see also Boyd v. Mangles, 3 Ex. 387.

(y) Ex parte Gribble, 3 Deac. & Chit. 339; and see Sims v. Bond, 5 B. & Ad. 389. As to the transmission of shares in a ship by bankruptcy, see the M. S. Act, 1854, ss. 58-60. Mortgages of ships, when duly registered, are exempt from the operation of the reputed ownership clauses in the bankrupt acts, sect. 72. See also the 32 & 33 Vict. c. 71, s. 15, and the repealed act 12 & 13 Vict. c. 106, s. 125, and ante, p. 59.

(z) Atkinson v. Foster, 1 C. B. 712. (a) The 6 & 7 Vict. c. 85; the 14 & 15 Vict. c. 99, and the 16 & 17 Vict. c. 83.

(b) Jaggers v. Binnings, 1 Stark. 64. (c) Hart v. Herwig, L. R., 8 Ch. 860; The Horlock, 2 P. D. 243; Miles v. Thomas, 9 Sim. 606; Rules of the Supreme Court, Ord. LII. r. 3.