of 1793, ch. 52, § 6, § 20. Foreign ships also might, under the Act of 1793, trade between district and district to a limited extent; (see § 6, § 24); but this authority is now restricted to goods brought in them from a foreign port, and constituting part of their original cargoes. Act of 1817, ch. 204, § 4. There are many other regulations respecting the coasting trade and fisheries, which will be found in the Acts printed in the Appendix ; but the foregoing are the most material here to be noticed. On the construction of the 32d § and 33d § of the Act of 1793, ch. 55, see The Active, (7 Cranch, 100.) If a vessel licensed for the coasting trade be engaged in smuggling, or any other illegal business, she is forfeited under the 32d section. The Two Friends, (1 Gallis. R. 118); The Julia, (1 Gallison, R. 233); The Mars, (1 Gallis. R. 237); The Resolution, (2 Gallis. R. 47); The Active, (7 Cranch, R. 100.) The "proceeding on a foreign voyage" which induces a forfeiture, unless the enrollment and license be first given up, and the ship registered under the 8th section of the Act of 1793, ch. 52, must be a proceeding on a voyage to some foreign port, or at least to some place without the territories of the U. States. The forfeiture does not attach, until the ship has quitted the port with an intent to proceed on such a voyage. The Julia, (1 Gallis. R. 43); The Friendship, (1 Gallis. R. 45); The Lark, (1 Gallis. R. 55.) But a voyage to a foreign port by a vessel licensed for the fisheries is not within this section, if such port be not visited for the purposes of trade, and is a customary port or place to be touched at within the known usage of the fishing business. The Schr. Three Brothers, (1 Gallis. R. 142.) <A whaling voyage is not a foreign voyage within the meaning of the Act of Congress, 1803, ch. 62, and a bond executed under, but not required by, nor in accordance with that act, is a nullity. Taber v. U. States, 1 Story, C. C. 1. By statute 1840, ch. 6, provision is made for cancelling bonds given to secure duties upon vessels and their cargoes, employed in the whale fishery, and to make registers lawful papers for such vessels. > The difference between our Laws for the registry of ships, and for enrollment in the coasting trade and fisheries, as to transfers to foreigners, is striking. In the former case, the ship simply loses her American character; in the latter case, she is forfeited. But in neither case is the sale of the vessel void. Philips v. Ledley, (1 Wash. Cir. R. 227.) CHAPTER III. OF PART-OWNERS OF SHIPS; AND HEREIN, [† 97] (S.)1. Of their legal relation to each other as Tenants in Common, or as Partners and Joint Tenants. 2. Regulations for the Enjoyment of their Common Property in case of disagreement - by the Laws of Foreign States. 3. Jurisdiction exercised for that object by the High Court of Admiralty in England. 4. Power of one Part-owner to bind the others by his contracts. Office and Authority of Ship's Husband. 5. Adjustment of the interests of Part-owners on Bankruptcy of one of them. 6. Ship's Accounts how adjusted between Part-owners at law and in equity. 7. Interest of Part-owners as to Strangers; Who should be joined as Plaintiffs and Defendants. 8. Extent of liability of each Part-owner for Supplies and Repairs. 1. A SHIP is usually conveyed by bill of sale, or some writing of that nature, to different persons, in several and distinct shares, and consequently, the several part-owners thereby become tenants in common with each other of their respective shares: each having a distinct, although undivided interest in the whole; and upon the death of any one, his share goes to his own personal representatives, and does not accrue to the others by survivorship (a). It is proposed to (a) This is the most usual practice. If the interests are not severed and distinguished in this way, but the entire ship is granted to a number of persons generally, it is apprehended they become joint tenants at law, and that the rule jus ac- (1) This is not a note of the original Author, but of his English Editor. The point stated in it seems new, and is apparently contrary to what is laid down in Watson on Partnership, where he seems to consider the rule, as to the jus accrescendi, not applicable either to partnerships generally, or to ownership of vessels in shares, but as an exception created by the law merchant, and necessary for the advancement of com [98] consider the nature of their interest, first, with relation to each other; and, secondly, with relation to strangers. that this note was not written by the author, but by the editor of the fifth edition of this work but the learned judge is mistaken; there is no doubt that the doctrine in the note carries with it the weight of the late Chief Justice's authority. In the text of the three first editions of this Treatise, it was stated without qualification, that "the several part-owners were tenants in common with each other of their respective shares." In the fourth edition, (prepared by the author,) the text was altered, as it now stands, and the note in question first appeared. No change was made in either by the noble and learned editor of the fifth edition. - See upon this subject Kent's Commentaries on Commercial and Maritime Law, Edinb. edition, p. 32; also Smith's Compendium of Mercantile Law, pp. 150, 174; Wilkinson on Shipping, p. 182. See also Luke v. Gibson, 1 Abr. Eq. 290; Jeffreys v. Small, Vern. 217; 3 P. Wms. 158; and the elaborate judgments of the American judges, 4 Johns. Ch. R. 522; 20 Johns. R. 611, 615. See also note (u), post, p. 107.* merce. In chapter 1, p. 54, he says, "if several either build or purchase a ship, they are part-owners or partners as to this concern." And again in chapter 2, p. 67, "there is no difference in the interest of partners in goods to be disposed of in the course of trade, and in a chattel, the keeping and employment of which constitute the object of the partnership. The part-owners of a ship are tenants in common with each other of their respective interests." He afterwards says in chap. 2, p. 91, that a part-owner of a ship can only dispose of his own share, and not that of his co-owners, even if it be partnership property. The case of The King v. Collector of the Customs, (2 M. & Selw. 223,) proceeds on the principle, that the same rule, as to non-survivorship, exists as to property in ships, as in common partnership property. No allusion was there made as to the necessity of a suit in equity by the representative of the deceased in any case; and the particular shares of each party in the ship are not stated or referred to as material facts. In America it has not been unusual to omit any specification of the shares of each part-owner, both in the register and bill of sale; and it has never been yet decided, that such an omission made the parties joint-tenants with benefit of survivorship. See Merrill v. Bartlett, 6 Pick. 46; Thorndike v. De Wolf, 6 Pick. 120; Glover v. Austin, 6 Pick. 209, 221; Glover v. Hunnewell, 6 Pick. 222. > In Ohl v. Eagle Ins. Co. (Circuit Court, Oct. T. 1826, May T. 1827,) Reported 4 Mason, 172, 390, the Court thought, that if no other distinct shares appeared in the register or bill of sale, the parties must, in the absence of all other proof, be presumed to hold in equal moieties. So in cases of partnership, the interest of each partner, in the absence of all proof to the contrary, is presumed to be equal. Gould v. Gould, 6 Wend. 263; Honore v. Colmesnil, 1 J. J Marsh. 506; Farrar v. Beswick, 1 Mood. & Rob. 527; Conwell v. Sandidge, 5 Dana, 211. > See also, in the matter of Blanshard, (2 Barn. & Cresw. 244); Ex parte Young, (2 Ves. & Beam. R. 242); Nicoll v. Mumford, 4 John. Ch. R. 522; S. C. 20 John. R. 611, and 615, note. <Property in a ship may be acquired by two or more persons, either by building it at their own expense, or by purchase of a part thereof of the sole owner, or by a jointpurchase of the whole of another person. But whether acquired by the joint-building, or by a part-purchase, or by a joint-purchase, the parties, in the absence of all positive stipulations to the contrary, become entitled thereto, as tenants in common, and not as joint-tenants. Story, Partnership, § 417; 3 Kent, (5th ed.) 151; Nicoll v. Mumford, 4 John. Ch. 525, 526; S. C. 20 John. 611; Harding v. Foxcroft, 6 Greenl. 76; Merrill v. Bartlett, 6 Pick. 46; French v. Price, 24 Pick. 13, 19; Lamb v. Durant, 12 Mass. 54, 56; Story, Agency, § 40. So if property is given to two as owners of a ship, it belongs to them as tenants in common, and not as partners. Thorndike v. De Wolf, 6 Pick. 120; Harding v. Fox 2. First, A personal chattel, vested in several distinct proprietors, cannot possibly be enjoyed advantageously by all, without a common consent and agreement among them to regulate their enjoyment in case of disagreement is one of the hardest tasks of legislation; and it is not without wisdom, that the law of England in general declines to interfere in their disputes, leaving it to themselves, either to enjoy their common property by agreement, or to suffer it to remain unenjoyed, or perish by their dissension; as the best method of forcing them to a common consent for their common benefit. But of ships, "which are built to plough the sea, and not to lie by the walls," commercial nations consider the actual employment as a matter, not merely of private advantage to their owners, but of public benefit to the state, and therefore have laid down certain positive rules in order to favor this employment, and to prevent the obstinacy of some of the part-owners from condemning the ship to rot in idleness. It sometimes happens that several persons become part-owners in a ship under a fixed compact and settled agreement among them for the employment of it, or that by common consent they delegate the management of their common concern to one of them, who, by a very intelligible figure of speech, is called the husband of the ship. Nothing is then left for the croft, 6 Greenl. 78. See French v. Price, 24 Pick. 13; Jackson v. Robinson, 3 Mason, 138. A ship may be held by part-owners in partnership as any other chattel. Phillips v. Purington, 15 Maine, 425; Harding v. Foxcroft, 6 Greenl. 77; Lamb v. Durant, 12 Mass. 54. See Seabrook v. Rose, 2 Hill, S. C. Ch. 555, 556; Nicoll v. Mumford, 20 John. 611. Mr. Chancellor Kent, 3 Kent, (5th ed.) 154, has stated the distinction between partownership in ships, and partnership in ships. He says; "The cases recognise the clear and settled distinction between part-owners and partners. Part-ownership is but a tenancy in common, and a person who has only a part-interest in a ship, is generally a part-owner, and not a joint-tenant or partner. As part-owner he has only a disposing power over his own interest in the ship, and he can convey no greater title. But there may be a partnership, as well as a co-tenancy, in a vessel; and, in that case, one part-owner, in the character of partner, may sell the whole vessel; and he has such an implied authority over the whole partnership effects. The vendee, in a case free from fraud, will have an indefeasible title to the whole ship. When a person is to be considered as a part-owner, or as a partner, in a ship, depends upon circumstances. The former is the general relation between ship-owners, and the latter the exception, and requires to be specially shown. But as the law presumes, that the common possessors of a valuable chattel will and desire whatever is necessary to the preservation and profitable employment of the common property, part-owners, on the spot, have an implied authority from the absent part-owners, to order for the common concern whatever is necessary for the preservation and proper employment of the ship. They are analogous to partners, and liable under that implied authority for necessary repairs and stores ordered by one of themselves; and this is the principle and limit of the liability of part-owners." p. 154, 155. See Buddington v. Stewart, 14 Conn. 404. > law of the state but to enforce the compact and agreement of the parties, according to its own mode of administering justice in analogous cases. It is only when the enjoyment of the property has not been thus settled by the parties, that it becomes necessary to inquire what mode the law of the country has prescribed for the regulation of it. Some foreign writers (b) on maritime law have laid it down as a [† 99] rule, that if a †ship is in need of repair, and one partowner is willing to repair it, and another unwilling, he who is willing may repair it at their common expense; and if the other will not pay his quota within four months, he shall lose his share in the ship; and they found their doctrine upon a passage in the Digest (c), in which the same opinion is delivered with regard to the repairs of a house. But I do not find this rule adopted in practice in any country, and in case of the poverty of the party it would be extremely cruel. The ordinances of Oleron and Wisbuy are silent on this subject of disagreement among part-owners as to the employment of a ship. By the ordinance of the Hanse Towns (d), if the owners disagree as to the freighting of the ship, the most voices shall carry it, and yet the master may take money on bottomry for those who will not contribute their part to the outfit. The French ordinance (e) directs, that in all cases which concern the common interest of the owners, the opinion of the majority in value shall be followed, and this is still the law in that country (ƒ). The ordinance of Rotterdam (g) gives power to a majority possessed of above half the ship to let it out on freight, and to bind all the partowners thereby, and to raise money for the outfit, either by borrowing it on bottomry, or by disbursing for the shares of the other owners, who appear unwilling to contribute after (b) Straccha de Nav. Pars. 2, Num. 8. The author cites two others, who had written before him, and is as usual cited in his turn by Roccus and others, who have written after him. In the same passage, he very gravely tells us, that ships often want repairs, and as gravely cites the Digest to prove his proposition. (c) Dig. 17, 2, 52, 10. (d) Art. 59. I have followed the translation given in Malyne. The words, as given in the Us et Coutumes de la Mer, are, le plus de trois l'emportera sur les autres," which Cleirac interprets to mean three more on one side than on the other. (e) Liv. 2, tit. 8. Des Propriétaires, Art. 5. See the Commentary of Valin; see also Pardessus Cours de Droit Commercial, Art. 621. (ƒ) En général on peut dire que le choix du capitaine et des gens de l'equipage les engagemens envers eux, la redaction des instructions à suivre pendant la traversée, la location, le radoub et l'armement du navire sont des operations que la majorité peut décider malgré la minorité. - Cours de Droit Commercial, Art. 621. (g) Art. 172, 2 Magens, 108. See also on this point Weskett on Insurance, tit. Bottomry, sect. 3 & 4. |