sell. 3. The facilities of communication with the owner. 4. The resources of the master or the total absence of such resources. 5. In some degree, too, the power and means of the owner to avert a sale. The law inclines against sales of this description, and throws the burden of strict proof upon the purchaser, for it is his duty to ascertain the authority under which the master acts, or the circumstances which render a sale imperatively necessary; and from this proof, save where there has been a decree of a competent court, no formality can release him.

It has been decided also in the Court of Admiralty that whether the onus of proving the necessity of sale against the original owner attaches to a second purchaser, depends upon the circumstances of each case (x); that the omission by the first purchaser from the master to comply with the Ship Registry Act, (8 & 9 Vict. c. 89, ss. 37, 38,) does not affect the title of a subsequent purchaser (y); that a shipwright surveying the ship with a view to its sale may be justified in becoming the purchaser (2); that the owner, if dissatisfied with the sale of his ship by his master abroad, must seek recovery with the utmost possible promptitude, or he may be held to ratify the sale by acquiescence (a); and that the owner receiving the proceeds of a sale of his ship by the master abroad is estopped from disputing such sale, as are also parties deriving title under him with knowledge of the facts (b).

This doctrine, that necessity alone can justify the sale of a ship by its master, and sustain the title of a purchaser from him, is in strict conformity with the laws of other maritime nations. In France, the rule is, that the master cannot sell his ship without a special authority from his owners, unless it be so damaged as to be no longer capable of navigation (c). In the United States, the decisions of our courts have been maintained; and it has been held, that in cases of extreme necessity the master may sell in a foreign country, but not in the country where his owner lives (d).

What circumstances of distress or damage will constitute such a case of urgent necessity as may enable a master to convey to a purchaser an indefeasible title to his ship, it is more difficult to determine (e). A learned writer has cited with approval the rule suggested by Mr. Justice Richardson, when at the bar, in the case of Reid v. Darby: "So long as the subject matter which the master is entrusted to navigate continues as a ship, and capable of navigation with such repairs as are to be had, he cannot sell it; he can only sell the materials when it is broken up, or become a mere wreck." Cases may, perhaps, occur in which this rule would be considered too strict (f), but it is one to which prudent purchasers will find it their interest to

attend. "The master," said Baron Parke, delivering the judgment of the Court of Exchequer, in a late case (2), "has, by virtue of his employment, not merely those powers which are necessary for the navigation of the ship, and the conduct of the adventure to a safe termination, but also a power, when such termination becomes hopeless, and no prospect remains of bringing the vessel home, to do the best for all concerned, and therefore to dispose of her for their benefit. It is a case of necessity when nothing better can be done for the master's employers."

A person employed by the master to superintend the sale may lawfully pay over the proceeds to him or his employers (a).

In foreign countries, attempts have been made to evade the effects of these restrictions, by procuring a sentence of condemnation and sale of a ship as unfit for service from some court or judge having jurisdiction in maritime affairs. In France such condemnation is required, and is deemed sufficient to protect the title of a bona fide purchaser, even when obtained by the fraud of the master, against whom the owners must seek their remedy (b).

But no such jurisdiction (c) is known to the law of England (d). The condemnations, as they are called, sometimes made abroad, upon the survey and report of captains or carpenters, have no binding force in this country, but the fact upon which they profess to be founded may be again litigated by the parties interested in disputing it. This was successfully done at a trial before Lord Ellenborough, of a case (e) in which the ship Grace having been driven on shore at Rio Bueno, in Jamaica, in a gale of wind, was surveyed by four masters of ships, in pursuance of an order of the deputy of the

(z) Hunter v. Parker, 7 M. & W. 322. (a) Ireland v. Thompson, 4 C. B. 168. (b) Pardessus, Cours de Droit Commercial, vol. 3, tit. "De l'Acquisition des Navires."

(c) Lord Stowell, in the case of the Fanny and Elmira, above cited, speaks of an appeal by the master to such a court for authority to sell in terms of approval. "There is a very convenient practice, which obtains in the Courts of Vice-Admiralty in the West Indies, where, the fact of distress being proved, the transaction is not left to the master, but a sale is ordered under the superintendence of the court itself." And again, in the case of the Warrior (1), a cause of possession, in which he refused to restore to the real owner a ship which, after ineffectual attempts to obtain money for necessary repairs, was sold by the master under the order of the Vice-Admiralty Court of the Mauritius, the same learned judge observed, "What is the master to do? Common sense, as well as the law, point out that he should, in the first place, apply to the agent of the owner, which it

appears he did. If the agent cannot or will not assist, and if himself and his owners are without any other friends who are ready to come forward and furnish him with the necessary supplies, what can be done better than make application to the Court of Admiralty?" But the convenience of this practice may well be doubted from Valin's experience of its effects: "Un capitaine ou maitre ne s'avise pas de vendre son navire, mais quand il veut s'en défaire, il trouve aisément le secret de le faire condamner, du moins y en a-t-il assez d'exemples pour qu'on puisse penser sans jugement téméraire qu'l y a eu des navires condamnés, qui ne méritaient pas de l'être, mais quand il n'y a pas de preuve de la friponnerie, il n'y a pas moyen de la punir."-Valin, Comm. sur l'Ordonnance, liv. 2, tit. 1 art. 19.

(d) See, however, the 3 & 4 Will. 4, c. 55, s. 8.

(e) Hayman and others v. Moulton and others, Sitt. at Guildhall, Nov. 1, 1803. There is a report of this case in 5 Esp. N. P. C. p. 65. Ridgway v. Roberts, 4 Hare, 103.

(1) Dodson's Ad. Rep. 288.

naval officer, appointed by the governor of the island to inspect ships on their arrival there, and sold, on their opinion, as a wreck, for less than a third of her value, but afterwards got off, very little injured, and after slight repairs, brought, with a cargo, to England.

The owners being dissatisfied with this sale, brought their action to try its validity; and it appeared by the evidence of her master, and of three masters of ships who had surveyed her, that they had paid very little attention to the ship itself, which was never pumped before they made their report; but they swore that they thought a sale the most prudent step to be taken, on account of the difficulty, expense, and hazard of removing her from her situation, and the little resources that her master had for such a purpose. The plaintiff's contended, that the master of a ship could not dispose of her in any case; or that admitting him to have this power in a case of absolute necessity (f), such necessity did not exist in this instance, and the whole transaction was a gross fraud.

The Chief Justice, Lord Ellenborough, told the jury, that although the master had no general authority to sell, he had an implied authority, in cases of extreme necessity, to act for the benefit of all concerned, exercising a sound discretion, such as the owner himself would exercise if he were upon the spot; and that in extreme cases, and extreme cases only, he had power to sell, as in the instance of a wreck which could not be got off, and ought not to be left to perish. absolutely. And he desired the jury to consider whether there was such a necessity as would have induced the owner himself to sell if he had been present; and, if they thought there was such a necessity, then, whether the sale in this instance was fraudulent?

In the course of the trial no regard was paid to the authority of the deputy naval officer, whose situation certainly gives him no manner of jurisdiction on such a subject. In commenting upon the evidence, the Chief Justice adverted particularly to the circumstance of one of the surveyors having bid at the sale, and another become a purchaser before the ship left the island; and observed, that it might be a useful lesson to teach such persons, that by accepting the office of surveyor, they elected, not to become purchasers, and not to derive any benefit from the sale.

And at a subsequent trial of an action (g), brought to recover the value of a ship, condemned and sold at Tobago, as incapable of repair, his lordship said, that he considered a proceeding of this sort, not as the sentence of a court pronounced for the captors of a captured vessel, but rather as the inquisition of a sheriff, for the purpose of information to those who, under certain circumstances, have the power of selling the ship. Such an inquisition is not conclusive upon the party whose property is in question.

(f) As to this (the degree of necessity which will justify a sale of the ship by the master), see the authorities and reasoning collected in 2 Phillipps on Insurance, 307, et seq., and the note to Story's edition of

this work, p. 10. As to necessity being an excuse for the violation of a positive law, see Lord Stowell in the Generous, 2 Dods. 328.

(g) Andrews v. Glover. Sitt, after Trin. T., 46 Geo. 3, at Guildhall.

In the case of the ship Grace, the sale was considered to be fraudulent; but in those of the ship Glamorgan, and the ship Lady Banks (h), the sale was thought to be fair and well intended; and the former was made under an order of the Court of Vice-Admiralty of Antigua, founded on the proceedings usual on such occasions-viz., a petition of the master to the court for a survey, a commission of a survey, report of surveyors, decree of the judges adopting the report, petition of the master for a sale, and a commission of sale directed to the marshal of the court. Yet in this case also, the Court of King's Bench decided, that the Vice-Admiralty Courts abroad have no authority to decree, upon the mere petition of the master, the sale of a ship reported upon survey to be unseaworthy, and not repairable, so as to carry its cargo to the place of destination without an expense exceeding the value of the ship when repaired (i).

3. Of Title by Capture and Condemnation.

Another mode of acquiring property in a ship is by capture from an enemy in time of war, legalized and sanctioned by a sentence of condemnation in a court of the capturing power, constituted according to the law of nations (k). In this case, however, if the capture is made by a ship belonging to his Majesty, the prize is formally condemned to the king, and the value distributed among the captors; and if the capture is made by a private ship, in which case the sentence is in form a condemnation to the captors, a sale will always be the most convenient mode of ascertaining the value, both for the purpose of distribution among the captors, and of payment of the (1) duties to the king (m); and the Acts of Parliament which give to prizes the privileges of British ships, presume a sale thereof, and provide regulations accordingly, as will appear in the next chapter.

There appears to be no settled and uniform rule established in

(h) Ante, p. 8.

(i) Reid v. Darby, 10 East, 143.

(k) Molloy, b. 1, cc. 2 and 3. Asseviedo v. Cambridge, 10 Mod. 77. Goss v. Withers, 2 Burr. 690. "The sentence of a foreign Court of Admiralty of competent jurisdiction pronounced in rem is conclusive against all the world as to the existence of the ground on which the court professes to decide." Smith's Leading Cases, 3rd ed., vol. 2, p. 452, citing Bernardiv, Motteux, 2 Dougl.574. Boring v. Claggett, 3 B. & P. 201. Pollard v. Bell, 8 T. R. 434. Bolton v. Gladstone, 5 East, 155. Don v, Lippman, 5 Cl. & Fin. 1. "If," says Mr. Starkie, "it be a general sentence of condemnation without assigning any reason, the courts will consider that it proceeded upon the grounds of the ship being the property of an enemy; but if the sentence profess to be made on particular grounds, set forth in the sentence, and which appear not to warrant the condemnation, the sen

tence is not conclusive as to those facts." See Starkie on Evidence, vol. 3, p. 1182. And if founded in injustice, as where the defendant had never been summoned, the courts will not give effect to it. Saunders on Pleading and Evidence, vol. 2, p. 52, and the cases there cited. See also Henderson v. Henderson, 6 Q. B. 288.

(1) By 34 Geo. 3, c. 70, ships of war, made prize, are exempt from duty. (m)" Prize," said Lord Stowell, “is alto. gether a creature of the crown. No man has or can have any interest in it but what he takes as the mere gift of the crown." See the Elsebe, 5 Rob. 173, in which the power of the crown to direct the release of property secured as prize before adjudication, and against the will of the captors, was affirmed. See also the Thetis, 1 Hagg. 231. 1 Blackstone, by Christian, 259, note. tel's Law of Nations, b. 3, c. 15.

Vat

practice among nations as to the precise period at which property is devested by capture. By some writers, and in some nations, this has been held to take place after a possession of twenty-four hours; by others, not until the prize has been carried infra præsidia (n)—an expression of very doubtful meaning as applied to maritime warfare. Lord Stowell has said, that, in his apprehension, "by the general practice of the law of nations, a sentence of condemnation is at present deemed generally necessary, and that a neutral purchaser in Europe during war, looks to the legal sentence of condemnation as one of the title-deeds of a ship, if he buys a prize vessel" (o). Such a sentence was thought necessary in this country to devest the title of the original owner, and give a valid title to the purchaser under captors more than a century ago; and a ship taken from an Englishman by a French squadron in the year 1691, and sent into Bergen in Norway, and there sold, coming afterwards into this country, was claimed by the original owner, and decreed to be restored to him by a sentence of the Court of Admiralty, affirmed afterwards upon appeal to the delegates (p); and upon the ground, that a legal sentence of condemnation cannot, according to the law of nations, be pronounced by a consul or minister of the belligerent power, in the country of a neutral power to which the prize may have been taken, ships have been restored, by the judgment of the Court of Admiralty, to their original owners, as well upon recapture from the purchaser (q), as upon arrest in a port of this country (r). In one case, the ship, while in the hands of a neutral purchaser, had been taken by the French and carried into a Spanish port, and there condemned by the French consul as prize, but that condemnation had been reversed on appeal to the Superior Prize Court at Paris, and the ship restored to the purchaser. These facts, however, were held not to alter the case, or give validity to the title of the purchaser.

When this practice of condemnation in a neutral port, by the consul of a belligerent state, was first challenged in the Court of Admiralty of England, it was treated by Lord Stowell as a pretension altogether without authority. "I must deem," he said, "the act of this French consul a licentious attempt to exercise the rights of war within the bosom of a neutral country." Lord Kenyon, in the Court of King's Bench, a few months after, emphatically approved of this decision, and said, that "the case had been determined on grounds which would recommend it to all who filled judicial situations" (s). In the United States also, it has been held that the exercise of such a jurisdiction is inconsistent with the law of nations (t).

The principle upon which these decisions were founded is, that a sentence of condemnation as prize of war is a judgment in rem; the result of legal proceedings in a legitimate court, armed with com