or for repairs, or for any other purpose than the delivery of her cargo.

By virtue of the provisions of the 25th section of the Mer- Inspection of lights and chant Shipping Act, 1862, and of an Order in Council made in signals. pursuance thereof, regulations are made concerning lights and fog signals (u). These regulations will be considered hereafter: it is only necessary here to observe that by the 30th section of the Merchant Shipping Act, 1862, power is given to surveyors (e) appointed by the Board of Trade to inspect ships for the purpose of seeing that they are properly provided with lights and with the means of making fog signals; and if any such surveyor finds any ship not so provided he may give to the master notice in writing pointing out the deficiency, and also what is in his opinion requisite in order to remedy the same. Every notice so given is to be communicated to the collector of customs at any port from which such ship may seek to clear, and no collector to whom such communication is made shall clear such ship outwards, or allow her to proceed to sea, without a certificate under the hand of one of the said surveyors to the effect that the said ship is properly provided with lights and with the means of making fog signals in pursuance of the said regulations (x).

Complaints having been made that this power of detaining ships was in some cases vexatiously exercised by the surveyors, the 14th section of the Merchant Shipping Act, 1876, provides that if a shipowner feels aggrieved by the refusal of a certificate as to lights or fog signals, he may appeal to the Court of Survey. But as this right of appeal relates also to the refusal of surveyors to grant declarations for passenger steamers under the M. S. Act, 1854, and certificates of clearance under the Passenger Acts, the mode of procedure will be more conveniently considered hereinafter in the chapter relating to passengers.

Having considered in their order the registry, navigation, TITLE TO privileges and national character of British ships, we will now BRITISH SHIPS.

(M) See Appendix, "Orders in Council," Navigation Rules.

(v) By the 13th sect. of the M. S. Act, 1872, all duties in relation to the survey and measurement of ships under that act, or the acts amended thereby, are to be performed by the surveyors appointed under the 4th part of the act of 1854, in accordance with the regula

tions of the Board of Trade.

(x) As to the fees to be paid with respect to the survey and measurement of ships under the M. S. Acts, 1854 to 1876, see the M. S. Amendment Act, 1873, s. 30, Sched. III. and Appendix, "Forms," No. 55; and the M. S. Act, 1876, s. 39, as to the mode of payment of such fees.

SALE.

By Court of Admiralty and Courts abroad.

inquire how a title to them, whether absolute or limited, may be acquired; dealing with the subject under the heads of Sale, Mortgage and Capture (y).

There being no market overt for ships (≈), a sale to confer a good title must be by the authority of one who has a good title himself. We shall see in another chapter in what cases the master has authority to sell (a).

Where a foreign ship is sent over to this country for sale, and is sold here, the rights of the parties under the contract of sale must be determined by the law of this country, although in the determination of those rights regard will be paid to the law of the foreign country in order to ascertain what was the position of the parties under that law prior to the contract of sale (b).

The Admiralty Division of the High Court of Justice possesses jurisdiction in many cases to order a ship to be sold, and in such cases the power of the Court to sell and thereby to confer a good title is indisputable (c). Sales sometimes occur by order of a British Admiralty Court abroad, when a vessel has been surveyed and condemned as unfit for service (d).

A doubt was at one time raised whether the Courts of this country would treat as valid the sale of a ship in a foreign country, ordered by a Court of competent jurisdiction there, under circumstances such as would not according to English

(y) It will be found that the following observations apply, to a certain extent, to all ships.

(z) See per Turner, L. J., Hooper v.
Gumm, L. R., 2 Ch. 290.

(a) See post, Chap. III., Master.
(b) Hooper v. Gumm, L. R., 2 Ch.

282.

(c) See the 3 & 4 Vict. c. 65, and the Admiralty Court Act, 1861 (24 Vict. c. 10). In certain cases other Divisions of the High Court possess similar powers. See, also, the Supreme Court of Judicature Act, 1873, s. 42; the Supreme Court of Judicature Act, 1875, Örder V. sect. 2, rule 4.

(d) Where such a sale has proceeded merely upon the petition of the master, not under circumstances of stringent necessity, the Courts of this country have refused to recognise the validity of the sale; Reid v. Darby, 10 East, 143; Morris v. Robinson, 3 B. & C. 196. In

the latter case it did not appear that the Vice Admiralty Court had any jurisdiction to make the decree in question. In a case in the English Court of Admiralty, however, where such a sale had taken place at the Mauritius, upon the petition of the master, and it was proved that he was not in possession of any funds to repair the ship, and that the owner's agent, who was not shown to have held any funds, had refused in any way to assist him, and it appeared that he had acted bona fide and with discretion throughout, the title of the purchaser was upheld; The Warrior, 2 Dods. 288. See The Eliza Cornish, 1 Spk. 36; The Cobequid Marine Insurance Company v. Barteaux, L. R., 6 P. C. 319; Acatos v. Burns, 3 Ex. D. 282. The authority of the master to sell in circumstances of stringent necessity is considered post, Chap. III.

law confer authority to sell the ship (e).

But it seems now

to be established that where a ship in a foreign country (or her cargo) has been sold by the order of a Court there of competent jurisdiction, the sale must, in the absence of fraud, be regarded as valid (ƒ). In some cases a distinction has been drawn between a sale ordered in the course of proceedings in personam, and a sale ordered in the course of proceedings in rem; but it is apprehended that the principle of the recent decisions bearing upon this question rests not upon any matter of form, but upon the broad ground that if property is disposed of without fraud in a manner binding by the law of the country where the property is, such a disposition is binding everywhere. The rule is thus expressed by Mr. Justice Blackburn, in delivering the opinion of the judges, in the case of Castrique v. Imrie (g): "We think the inquiry is first, whether the subject-matter was so situated as to be within the lawful control of the state under the authority of which the Court sits; and secondly, whether the sovereign authority of that state has conferred on the Court jurisdiction to decide as to the disposition of the thing, and the Court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive." The true foundation. for the jurisdiction in such cases seems to be that everyone is supposed to give to the state under whose protection he places his property jurisdiction over that property (h).

(e) See Simpson v. Fogo, 32 L. J., Ch. 249; 1 H. & M. 195; the judgment of Byles, J., in Cammell v. Sewell, 3 H. & N. 617, and the cases there cited. See also Liverpool Marine Credit Co. v. Hunter, L. R., 4 Eq. 62; 3 Ch. 479.

(f) Cammell v. Sewell, 3 H. & N. 617; S. C., in error, 5 H. & N. 728; Messina v. Petrococchino, L. R., 4 P. C. 144. The judgment of course may be impeached on the ground of fraud; Ochsenbein v. Papelier, L. R., 8 Ch. 695. Whether it may be impeached on the ground that the foreign tribunal has knowingly and perversely disregarded the rights given to an English subject by English law, is a question which cannot be regarded as authoritatively settled. In a case where a defendant was sued in this country on a judgment obtained against him in an action in personam, instituted in a foreign tribunal, and it appeared upon the face of the proceedings that the judg

ment proceeded upon a mistake as to English law, it was held by a majority of the judges that the foreign judgment could not be impeached; Godard v. Gray, L. R., 6 Q. B. 139. The judgment of the Common Pleas Division in the more recent case of Meyer v. Ralli, 1 C. P. D. 358, may appear to modify to some extent the law as laid down in Godard v. Gray. The judgment in the latter case, however, treats the sale of the ship and cargo as a valid sale, but as it was admitted that the sale included a portion of the cargo, which it was the duty of the master to have trans-shipped and forwarded, the Court held that it could not affect the right of the owner as against his underwriter, by making that a total loss, which apart from the sale was clearly not a total loss.

(g) L. R., 4 H. L. 414, at page 429. (h) See Wharton on the Conflict of Laws, sect. 800. But it seems the jurisdiction thus conferred does not

By private persons.

Bill of sale.

It is scarcely necessary to observe that ships are personal property; like other goods and chattels, therefore, they pass to the executors of a deceased owner, and, except where the Registry Acts have made certain formalities essential to their sale, the property in them would, subject to the operation of the Statute of Frauds, pass by a contract of immediate sale (i), or by an agreement to be completed in futuro, coupled with delivery. Ships, however, from their great value, and frequent absence from port (k), have for so long a period been conveyed by a formal instrument known as a bill of sale, that, although the contracts mentioned above would convey sufficient property to the vendee to enable him to maintain trover against a wrongdoer (1) (since mere possession is primâ facie evidence of ownership (m)), yet it has been doubted whether, even at common law, such a sale would be valid, without the more solemn conveyance by the bill of sale (n). However this may be, a bill of sale is the universal instrument of transfer in all countries, and is the proper title to which a maritime Court looks (0); and where a ship was sold whilst at sea, a delivery of the grand bill of sale was held, before the present system of registration, to amount to a delivery of the ship herself (p).

Bills of sale were formerly spoken of as of two kinds. 1. The grand bill of sale, which conveyed the ship from the builder to the owner, or first purchaser; and, 2, the ordinary bill of sale, by which any subsequent transfer was made. Now, however, the term grand bill of sale is never used, and the builder's certificate is commonly the only document delivered by the builder to the first purchaser as evidence of his title (q). No stamp duty is payable on bills of sale, assignments or other conveyances of ships (r).

extend beyond the property. See the
judgment of Blackburn, J., in Schibsby
v. Westenholz, L. R., 6 Q. B. at page
158. See also Phillimore's Interna-
tional Law, vol. 4, DCCCCXLVI; Story's
Conflict of Laws, s. 607; Copin v.
Adamson, L. R., 9 Ex. 345, on appeal,
1 Ex. D. 17.

(i) Tarling v. Baxter, 6 B. & C. 360,
and per Wood, B., in Hubbard v. John-
stone, 3 Taunt. 205. Per Parke, J.,
Dixon v. Yates, 5 B. & Ad. 340.

(m) Robertson v. French, 4 East, 130; Amery v. Rogers, 1 Esp. 207; Thomas v. Foyle, 5 Esp. 88; Pirie v. Anderson, 4 Taunt, 652.

(n) See Abbott on Shipping, p. 2.

(0) Per Sir W. Scott, in The Sisters, 5 Rob. 159. In The Eliza Cornish, 17 Jur. 738; S. C., 1 Spinks, 36, Dr. Lushington said, " ships in general cannot be sold save by an instrument in writing."

(p) Atkinson v. Maling, 2 T. R. 462, (a) See supra, p. 18.

(r) The 6 Geo. 4, c. 41; the M. S. Act, 1854, s. 9; and the 33 & 34 Vict. c. 97, s. 3, and Schedule.

of M. S. Act

The Merchant Shipping Act, 1854, provides by sect. 55, that Requirements a registered ship or any share therein, when disposed of to per- on sale. sons qualified to be owners of British ships, shall be transferred by bill of sale, which must contain the same description of the ship as is in the certificate of the surveyor (s), or such other description as may be sufficient to identify her to the satisfaction of the registrar, and must be in the prescribed form (f), or as near thereto as circumstances permit, and must be executed by the transferor in the presence of and be attested by one or more witnesses (u).