abandoned ship (u) by reason of having been wrecked or abandoned, or re-regisfor any reason other than capture by the enemy or transfer tration of to a person not qualified to own a British ship (x), the ship ships. shall not be re-registered until she has, at the expense of 36 & 37 the applicant for registration, been surveyed by a surveyor s. 6 of ships (y) and certified by him to be seaworthy (2). Incapacitated Persons. Vict. c. 85, for cases city. 18 & 19 55.-(1.) Where by reason of infancy, lunacy, or any Provision other cause any person (a) interested in any ship, or any of infancy share therein, is incapable of making any declaration (b) or or other doing anything required or permitted by this Act to be made incapaor done in connection with the registry of the ship or share, 1854, s. 99. the guardian or committee, if any, of that person, or, if it Vict. c. 91, there is none, any person appointed on application made s. 2. on behalf of the incapable person, or of any other person interested, by any court or judge having jurisdiction in respect of the property of incapable persons, may make such declaration (c), or a declaration as nearly corresponding thereto as circumstances permit, and do such. act or thing in the name and on behalf of the incapable person; and all acts done by the substitute shall be as effectual as if done by the person for whom he is substituted (d). (2.) The Trustee Act, 1850, and the Acts amending the same (e), shall, so far as regards the court exercising jurisdiction in lunacy in Ireland, apply to shares in ships registered under this Act as if they were stock as defined by that Act. Trusts and Equitable Rights. Trusts and 56 (f). No notice of any trust, express, implied, or con- Equitab'e structive, shall be entered in the register book or be Rights. Notice of (d) This does not allow guardians trusts not of infants to sell or mortgage ships, received. but only to execute the necessary 1851, s. 43. formalities of registration, Michael v. Fripp (1868), L.R.7 Eq. 95. (e) 18 & 19 Vict. c. 91, s. 10. See 56 & 57 Vict. c. 53, ss. 33 (6), 51 Sch. (f) This section must be read in Equities not ex receivable by the registrar, and, subject to any rights and powers appearing by the register book to be vested in any other person, the registered owner of a ship or of a share therein shall have power absolutely to dispose in manner in this Act provided (g) of the ship or share, and to give effectual receipts for any money paid or advanced by way of consideration (h). 57. The expression "beneficial interest," where used in this Part of this Act, includes interests arising under concluded by Act. tract and other equitable interests; and the intention of 1862, s. 3. this Act is, that without prejudice to the provisions of this Act for preventing notice of trusts from being entered in the register book or received by the registrar (i), and without prejudice to the powers of disposition and of giving receipts conferred by this Act on registered owners and mortgagees (k), and without prejudice to the provisions of this Act relating to the exclusion of unqualified persons from the ownership of British ships (1), interests arising under contract or other equitable interests may be enforced by or against owners and mortgagees of ships in respect of their interest therein in the same manner as in respect of any other personal property (m). conjunction with § 57, which repro- (g) § 24, by bill of sale. (h) A similar clause as to registered (k) §§ 35, 56. (1) §§ 1, 71. (m) This section slightly widens the wording of § 3 of the Act of 1862, though not more than is justified by the decision in Batthyany v. Bouch (1881), 50 L. J. Q. B. 421. The new section allows "interests arising under contracts or other equitable interests" (instead of, as formerly, "equities" only), to be enforced "by or against" owners, &c. (instead of, as formerly, "against" owners only). For operation of this section, see notes to § 30. As between a trustee and his representatives on the one side, and a cestui que trust or his representatives on the other, or as between persons in similar equitable relations, the courts will enforce such equities, provided that (1.) The registrar is not required to enter them on the register (§ 56); (2.) Bona fide transferees from u registered owner or mortgagee will not be injured (§§ 35, 56); (3.) Unqualified persons must not, in fact, take benefit from British ships (§§ 1, 25, s. 1, &c.). Liability of Beneficial Owner (n). 58. Where any person is beneficially interested (0), other- Liability wise than by way of mortgage (p), in any ship or share in of owners, 1854, s. a ship registered in the name of some other person as 100. owner, the person so interested shall, as well as the registered owner, be subject to all pecuniary penalties imposed by this or any other Act on the owners of ships or shares therein, so nevertheless that proceedings may be taken for the enforcement of any such penalties against both or either of the aforesaid parties, with or without joining the other of them (n). Managing Owner (q). 59. (1.) The name and address of the managing Ship's (n) There is no definition of "owner" in the Act, ani this clause enables the penal provisions of the Act to be applied to beneficial owners other than mortgagees, who may have the real interest in the ship, while the legal or registered owner may be merely a bare trustee. Apart from this, the tendency of the decisions is to construe the word "owner," when appearing in any part of the Act, so as to include a person who, though not in law or on the register as "the owner," has yet a real and substantial interest in the subject-matter of the clause, and to exclude a person who, though in law or on the register "the owner," has ro substantial interest in the particular subject - matter. Thus in Hughes v. Sutherland (1881), 7 Q. B. D. 160, decided under the section corresponding to § 111 of this Act, which imposes a penalty on a person other than the owner, who engages a seaman without a licence from the Board of Trade, a person whose interest in the ship was that he had a bona fide contract for the purchase of one sixty-fourth share from a person who at the time of the contract had himself only a contract for the purchase of the ship, was held an owner within the section; and it was said that a charterer by demise would be in the same position. In Meiklereid v. West (1876), 1 Q. B. D. 428, S.M.S.A. decided under the section corresponding to § 143 of this Act, which entitles a seaman's relatives to recover the amount of an allotment note from the "owner," the registered owner who had demised his ship by charter, and had nothing to do with engaging her crew, was held not an owner within the meaning of the section. These two cases illustrate the principle of construction to be applied. "Owner" will include "part owner." (0) $ 57, and notes to § 30. (p) A mortgagee is protected from the liabilities of an owner; see § 34. (q) The term "managing owner is a commercial, not a legal one. He is ordinarily an agent appointed by some or all of the other owners to do what is necessary to enable the ship to prosecute her voyage and earn freight. Barker v. Highley (1863), 15 C. B. N. S. 27, 34; Thomas v. Lewis (1878), 4 Ex. D. 18, 23. But the fact that a man's name is entered on the register as managing owner does not bind those of his co-owners who have, in fact, given him no authority to manage. "He binds those whose agent he is, he binds no one beside. . . . Shipowners are not necessarily partners. An owner's liability or non-liability for necessaries supplied to a ship depends on the question whether the person who gave the order had his authority to give it. The register is no doubt E managing. owner or manager to be re owner for the time being of every ship (s) registered at a port(s) in the United Kingdom shall be registered at the gistered. custom house of that port. 39 & 40 Vict. c. 80, 8. 36. Power of (2.) Where there is not a managing owner there shall be so registered the name of the ship's husband or other person to whom the management of the ship is entrusted by or on behalf of the owner; and any person whose name is so registered shall, for the purposes of this Act, be under the same obligations, and subject to the same liabilities, as if he were the managing owner. (3.) If default is made in complying with this section the owner (t) shall be liable, or if there are more owners than one each owner shall be liable in proportion to his interest in the ship, to a fine not exceeding in the whole one hundred pounds each time the ship leaves any port(s) in the United Kingdom (u). Declarations, Inspection of Register, and Fees. Declarations, In60. When, under this Part of this Act, any person is spection of Register, required to make a declaration on behalf of himself or of and Fees. any corporation, or any evidence is required to be produced to the registrar, and it is shown to the satisfaction registrar of the registrar that from any reasonable cause that person to dispense is unable to make the declaration, or that the evidence clarations cannot be produced, the registrar may, with the approval and other of the Commissioners of Customs, and on the production 1854, s. 97. of such other evidence, and subject to such terms as they may think fit, dispense with the declaration or evidence. with de evidence. Mode of making 61 (x).—(1.) Declarations required by this Part of this Cf. evidence of ownership of the vessel, Act shall be made before a registrar of British ships (y), or declaraa justice of the peace, or a commissioner for oaths (z), or a British consular officer (a). tions. 1854, 88. 31, 38, 39, 56, 58, 59. 52 & 53 (2.) Declarations required by this Part of this Act may be made on behalf of a corporation by the secretary Vict. c. 10. or any other officer of the corporation authorized by them Vict. c. 50. for the purpose (b). tion of 36 & 37 62. All fees authorized to be taken under this Part of Applicathis Act, shall, except where otherwise in this Act provided (c), if taken in any part of the United Kingdom, be 1851, s. 93. applied in payment of the general expenses of carrying Vict. c. 85, into effect this Part of this Act, or otherwise as the s. 29. Treasury may direct; if taken in a British possession (d), be disposed of in such way as the Executive Government of the possession direct; and if taken at any port of registry established by Order in Council under this Act (e), be disposed of as Her Majesty in Council directs (ƒ). Returns, Evidence, and Forms. Returns, Eridence, Returns to 63 (g).—(1.) Every registrar (y) in the United Kingdom and Forms. shall at the expiration of every month, and every other registrar (y) at such times as may be fixed by the Registrar- be made by regisGeneral of Shipping and Seamen (h), transmit to him a trars. full return, in such form as the said Registrar-General may 1854, 88. direct, of all registries (i), transfers (k), transmissions (1), 35 & 36 mortgages (m), and other dealings with ships which have Viet. c. 73, been registered by or communicated to him in his character of registrar, and of the names of the persons together. In some cases it varies the oldest Acts; e.g. under § 39 of 1854 any public officer of a corporation might declare; under this clause the officer, unless the secretary, must be specially authorized for the purpose. (y) § 4. (z) 51 & 55 Vict. c. 50. (Commissioners for Oaths Act, 1891). (a) § 742; and Int. "Act, 1889, § 12, 8. 20. (b) See note (x), p. 50. (c) Cf. § 676, s. 1 (a.). Certain fees (d) Int. Act, 1889, § 18, s. 2. (ƒ) § 738. (g) Cf. § 256. (h) § 251. §§ 11, 48, 52. (k) § 24. (1) §§ 27, 38. (m) § 33. 91, 278. 8. 4. |