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which other movable goods rarely are; and therefore the buyer has in this instance the means of ascertaining the title of any person who offers to sell, and can seldom be deceived except by his own fault.

Doubts have been entertained (a) whether, at common law, a delivery by parol without any bill of sale or other instrument of transfer, would have been sufficient to pass a good title to a ship. Lord Kenyon, in the case of Rolleston v. Hibbert (b), declined to give an opinion upon the point; and Lord Stowell (c), in the case of the Sisters, expressed himself as follows:-"It has been contended in argument that the effect of a bill of sale alone would not be material, because this was a foreign ship, in respect of which it might not be requisite that it should pass by a bill of sale. A bill of sale is the universal instrument of transfers of ships in the usage of all maritime countries, and not a peculiar title-deed, or conveyance known only to the law of England. It is what the Maritime Law expects; what the Court of Admiralty would in its ordinary practice require; and what the Legislature of this country has now made absolutely necessary, with regard to British subjects, by the regulations of the statute law."

In practice, ships are sold by auction or private contract, after advertisements of particulars and conditions of sale and inventory, all of which should be drawn with care, as the vendor is responsible for their accuracy. The bargain is generally followed by an agreement of purchase (d), in the preparation of which also great attention is required, as upon its contents may depend the relief which a court of equity would afford against a purchaser, refusing to complete his contract (e). By this agreement it is commonly stipulated, that on payment of the purchase-money within a time specified, a legal bill of sale shall be executed to the purchaser, to be prepared at his expense, and the ship, appurtenances, &c., be forthwith delivered to him.

Bills of sale of ships are of two kinds : 1. The grand bill (ƒ) of sale, by which the ship is transferred from the builder to the first purchaser. 2. The ordinary bill of sale, by which the owner of a ship, not being the builder, conveys his title to another.

The property in ships and in parts of ships is also frequently acquired under the terms of a special agreement between the shipbuilder and his employer, for the payment of the price agreed upon,

(a) See Judge Story's note to this section in the American edition, and see 1 Inst. 11 b. 182 a. Meggadow v. Holt, 12 Mod. Rep. 15. Lethulier's case, 2 Salk. 443. (b) 3 Term Rep. 406.

(c) 5 Rob. A. R. 155. See also Atkinson v. Maling, 2 Term Rep. 462, 466. Sutton v. Buck, 2 Taunt. 301. Kent's Commentaries on Commercial and Maritime Law, Edinburgh edition, p. 127.

(d) See the form, Appendix. (e) Wilkinson on Shipping, p. 131. Story's Equity, 26. Brewster v. Clarke, 2 Mer. 75. Lynn v. Chaters, 2 Keen, 521.

(f) See forms, Appendix. By a some

what irregular practice, which seems to have received the sanction of the courts, the grand bill of sale is frequently dispensed with, the purchaser from the builder contenting himself with the builder's certificate, required by the 3 & 4 Will. 4, c. 55, s. 25, and now by the 17 & 18 Vict. c. 104, s. 39, to be produced to the Commissioners of Customs by all persons applying for a certificate of registry of a ship not previously registered. See the cases of Woods v. Russell, 5 B. & A. 942; Ĝoss v. Quinton, 4 Scott's New Rep. 471; and see, as to this practice, Wilkinson on Shipping, pp. 68, 147.

by stipulated instalments, during the progress of the work to completion.

In general, under a contract for building a ship, or making anything not existing in specie at the time of the contract, no property vests in the purchaser during the progress of the work, nor until the vessel or thing is finished and delivered, or at least ready for delivery, and approved of by the purchaser, even although the contract contains a specification of the dimensions and other particulars of the vessel or thing, and fixes the precise mode and time of payment (g) ; but in the case of Woods v. Russell (h), it was laid down by Lord Tenterden, that if a ship be built upon a special contract, and it is part of the terms of that contract that given portions of the price shall be paid according to the progress of the work-e.g., part when the keel is laid-part when at the light plank-the payment of those instalments appropriates specifically to the purchaser of the ship so in progress, and vests in him a property in that ship: and that, as between him and the builder, he is entitled to insist upon the completion of that very ship, and the builder is not entitled to require him to accept any other. In conformity with this opinion, the Court of Queen's Bench, in the case of Clarke v. Spence (i), decided, that where a purchaser contracted with a ship-builder to build him a ship for a certain sum, to be paid by instalments as the work proceededthe first instalment when the vessel was rammed: the second when she was timbered; the third when she was decked, &c.—and an agent for the purchaser was to superintend the building, that on payment of the first instalment, the property in the portion then finished became, by virtue of the contract, vested in the purchaser, subject to the right of the builder to retain such portion for the purpose of completing the work, and earning the rest of the price; and that each material subsequently added became, as it was added, the property of the purchaser as the general owner. In a subsequent case (), it was considered by the Court of Exchequer, that the contract was executory for the ship when finished, and therefore that the property in it did not pass while the ship remained in progress and incomplete; but the doctrine laid down in the two former cases was expressly recognised.

This doctrine of appropriation of ships in the course of their building, seems to have been first established in Scotland, where also the special contracts which have given rise to it appear to have originated. In the case of Simpson v. Duncannon's Creditors (k) a vessel was contracted for, to be built in Scotland, the price

(g) Mucklow v. Mangles, 1 Taunt. 318. Simmons v. Swift, 5 B. & C. 857. Rhode v. Thwaites, 6 B. & C. 388. Goode v. Langley, 7 B. & C. 26. Atkinson v. Bell, 8 B. & C. 277. Carruthers v. Payne, 5 Bing. 270. Dixon v. Yates, 5 B. & Ad. 813. Wood v. Bell, 5 E. & B. 772; S. C. in error, 6 E. & B. 355; 25 L. J., Q. B. 158.

(h) 5 B. & A. 942. See the form of a contract of this kind in the Appendix.

(i) 4 Adol. & El. 448; 6 Nev. & Man. 416. See also Goss v. Quinton, 3 M. & G. 825. Wilkins v. Bromhead, 6 M. & G. 963, Reid v. Fairbanks, 22 L. J. 206, C. P.

(j) Laidler v. Burlinson, 2 M. & W. 602. See also Battersby v. Gale, 4 Adol. & El. 458.

(k) Faculty's Coll. 1786, no. 290. Bell's Principles of the Law of Scotland, p. 486.

to be paid by instalments-one when the keel was laid, another when the vessel was planked, and the last when the vessel was launched the builders having failed after the first payment, it was held that the vessel, on the principle of special appropriation, belonged to the employer, from the time of laying down the keel (7). In the case of Woods v. Bell (m), it was held that steam engines designed on a peculiar plan, for the reception of which an engine room had been adapted, as also iron plates, angle irons and plankings pre-arranged for different parts of a ship, though not rivetted or fastened to her, passed as against the assignees of a bankrupt builder to the purchaser. What was the intention of the parties to the contract? is the question in all such cases. "When," said Lord Campbell, C. J., "a man contracts with another to make an article for a given price, the general rule is, in the absence of all circumstances from which a contrary conclusion may be inferred, that no property passes in the chattel until it be completed and ready for delivery; on the other hand, where a bargain is made for the purchase of an existing ascertained chattel, the general rule, in the same absence of opposing circumstances, is that the property passes immediately to the vendee, that is, that there is at once a complete bargain and sale. But these general rules are both and equally founded on the presumed intention of the parties. If in the former there are attendant circumstances from which the intention may be inferred that the property shall pass in the incomplete and growing chattel as the manufacture of it proceeds, or even in ascertained materials from which it is to be carried to perfection, that intention will be effectuated; and in the latter, if it appear that the parties intended to postpone the transfer of the property till the payment of the price of the performance of any other condition, such intention will be upheld in the courts of law."

The writers (n) on maritime law inform us, that if a ship be sold with the tackle, apparel, furniture, and other instruments thereto belonging, the ship's boat is not conveyed by these words; and they found their opinion upon the authority of those parts of the Digest

(1) The law of vendors and purchasers of ships formed no part of the design of the author of this Treatise; and his present Editor would not thus briefly have adverted to it, but for his experience of its importance, and his wish to direct attention and acknowledge his obligations to Mr. Wilkinson's very valuable work "On the Law of Shipping, as it relates to the Building, Registry, Sale, Transfer, and Mortgages of British Ships, including the Registry and Trading of Ships built in India." This book, which supplies a want much felt in the profession, ought to find a place in the library of every mercantile lawyer. In addition to a learned analysis of all the cases decided in the courts of law and equity, it contains a variety of practical directions and forms, which cannot fail to

be of great utility to professional men whose assistance is likely to be required in the sale, conveyance, and mortgage of British ships.

(m) 6 E. & B. 355; 25 L. J. (N. S.) 148. See also Baker v. Gray, 17 C. B. 462. Goss v. Quinton, 3 M. & G. 825. Douglas v. Russell, 1 Myl. & K. 488.

(n) Roccus, note 20. Straccha, De Navibus, pars. 2, no. 12. Molloy, De Jure Marit book 2, ch. 1, s. 8. The latter adds, that if a ship commit piracy, the boat is not forfeited, and refers to a case in Roll. Ab. for his authority; and Beawes has followed the words of Molloy; but in the case referred to the boat is not mentioned. See the case of Shannon v. Owen and others, 1 Man. & Ry. 392.

in which it is said that the boat is not a part of the ship (0), or of its apparel (p).

In the case of Hoskins v. Pickersgill (q), a question arose whether fishing tackle was included under the terms "ship furniture," &c., in a policy of insurance on a ship, employed in the Greenland fishery. Lord Mansfield said, there was no doubt that the boats, rigging, and stores belonging to the ship were included, but that as to fishing tackle it must depend in insurance cases on the usage of trade.

In a case (r), decided in the Court of Admiralty, and which afterwards came before the Court of Queen's Bench, the principle of construction applicable to general words of this description, has been more clearly exemplified than on any former occasion. The ship Dundee, on her voyage to the Greenland fishery, having on board the necessary stores and implements for the taking of whales and other fish, and procuring and bringing home in casks the oil and blubber, having run foul of another vessel, the question was, whether those stores, implements, &c., were to be understood as forming part of the ship within the meaning of the first section of the 53 Geo. 3, c. 159, by which the responsibility of shipowners, in case of loss or damage occurring without their fault or privity, is limited to the value of their ship and the freight due, or accruing due, for and during the voyage in prosecution, or contracted for at the time of the happening of such loss or damage. It was decided that the first section of that statute was to be construed as if the words "with all her appurtenances," which occur in many sections of the Act, had been inserted in it, and that whatever was on board of a ship for the object of the voyage and adventure on which she was engaged, belonging to the owner, constituted a part of the ship and her appurtenances within the meaning of that Act, and that the owner was liable to the extent of the value thereof.

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It seems also, from the observations of the court, in the case of Gale v. Laurie, that the fittings of a packet, or the guns of a privateer, would be included in the word "appurtenances." The Master of the Rolls, in a recent case, appeared to approve of the opinion of Lord Stowell and Lord Eldon, to be collected, as he thought, from their judgments, that the word "appurtenances included all such matters as are incidental to the working of a ship (s); and in the case of Woods v. Russell (t), the rudder and cordage, bought by the builder specifically for a ship complete, or nearly so, though not actually attached to it at the time of delivery to the purchaser, were considered to pass with the ship.

Ballast, in an early case, was held not to be furniture in a ship (u), for although in some cases necessary, it is not always so,

(0) Dig. 21, 2, 44.

(p) Dig. 6, 3, 1.

(8) Langton v. Horton, Leg. Ob., vol. 23, p. 524. Feltham v. Clark, 1 De Gex & S.

(q) Marsh. Ins. by Shee, 5th ed. 568; 312. Park 97.

(r) The Dundee, 1 Hagg. Rep. 109. Gale v. Laurie, 5 B. & C. 156.

(t) 5 B. & Ald. 942.

(u) Kynter's case, 28 & 29 Eliz. C. P. Leon. 46, 47.

and "ships may be laden with such merchandises as are convenient ballast of themselves," with advantage to the shipowner. In Lano v. Neate (v), a ship was conveyed with all stores, tackle, apparel, &c., but no mention was made of "kentledge," or permanent ballast, consisting usually of pigs of iron cast in a particular form, or other weighty material, which, on account of its superior cleanliness and the small space occupied by it, is now frequently preferred to ordinary ballast; but Lord Ellenborough ruled that it could not be considered as part of the ship's necessary stores, since common ballast might have answered the same purpose.

2. Of Title by Purchase from the Master, and of his Authority to Sell (w).

The master of a ship possesses, as more fully appears in different parts of this treatise, every power necessary for the employment and navigation of the ship; but he has not, unless in a case of extreme necessity, authority to sell the ship; and he is bound seriously and deliberately to try every other expedient to raise money, before disposing of the ship or any part of the cargo (x). And with a view probably to prevent the opportunity of fraud, which the allowance of this power to him might afford, several of the foreign (y) ordinances expressly declare, that he shall not sell the ship without a special authority for that purpose from the owners; at the same time, however, authorizing him, in case of necessity, to borrow money upon the credit of the ship or its furniture, with the assent of his crew. In conformity to these regulations, Sir Matthew Hale, when Chief Baron of the Exchequer, is reported to have decided upon a case (~) referred to, and argued before him, that the sale of a ship by the master did not convey the property to the buyer, although the sale was made in a foreign country, in a case of inevitable danger, the ship and tackle being beaten and broken, and no hope of saving any part of them, partly on account of the tempest, and partly on account of the barbarity of the inhabitants of the country, who carried off everything that was cast on shore. Perhaps, however, there might in this case be some circumstances, not noticed by the reporter, which might lead the learned judge to doubt the absolute necessity of a sale, or to think the buyer a party to the misconduct mentioned in the book. In a case that came before the Court of King's Bench on the subject of hypothecation, Lord Holt is reported to have said, "The master has no authority to sell any part of the

(v) 2 Stark, 105.

(w) See The Australia, 1 Swab. Adm. Rep. P. C., 480, in which the law as set forth in this section is approved of.

(x) Underwood v. Robertson, 4 Camp. 138. Alcock v. Royal Exchange Assurance Company, 13 Q. B. 301, where it was held, that on the question whether a good judgment had been exercised by the master,

evidence of his being addicted to drunkenness was admissible

(y) Consulat, by Boucher, cap. 156. Laws of Oleron, art. 1; of Wisbuy, art. 13; of the Hanse Towns, art. 57. French Ordinance, liv. 2, tit. 1. Du Capitaine, art. 19. Ordinance of Rotterdam, art. 165; 2 Magens, 107.

(z) Tremenhere v. Tresillian, 1 Sid. 452.

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