Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

. (page 6 of 101)
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(3.) No peiison may be registered as owner of a fractional
part of a share ; but any number of persons not exceed-
ing five may be registered as joint owners of a ship, or of
a share or shares therein.

(4.) Joint owners are to be considered as constituting one
person only with reference to these regulations, and may
not dispose in severalty of any interest in a ship, or share
in respect of which they are registered.

(6.) Bodies corporate may be registered as owners by their
corporate name.

Declaradon by By sect. 38, before registration, the owner of the ship, or of

owners. ^^y share in her, must make and subscribe a declaration in the

form prescribed by the act, referring to the ship as described in

the certificate of the surveyor, and containing the following

particulars (p) : —

(1.) His qualification to be owner.

(2.) The time when, and the place where, the ship was built,
or (if foreign built, and the time and place of building
not known) a statement that she is foreign built, and that
he does not know the time or place of her building ; and
in the case of a foreign ship, her foreign name, or (in the
case of a ship condemned) a statement of the time, place
and Court at and by which she was condemned,
(3.) The name of the master.

and in the later acts which preceded trar that from any reasonable cause a

the statute now in force. It seems to person cannot make this or any other

have been selected on the supposition declaration, or produce any evidence

that the binary system of halving the required by the act in these respects,

ship, and each of the resulting shares, the registrar, with the sanction of the

until the whole is reduced to sixty-four Commissioners of Customs, and on such

parts, is, practically, convenient. See terms as they think fit, may dispense

Holt on Shipping, p. 25. with it. See sect 97. With respect to

(p) The form is given in the sche- infants, lunatics or others who arc in-

dule to the act See the form now capable of making a declaration, wee

in use, Appendix, p. ccvi. If, it is sect. 99.
shown to the satisfaction of the regis-



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TITLB TO MERCHANT SHIPPING. ^

(4.) The number of shares of which he is entitled to be regis-
tered as owner.
(5.) A denial that, to the best of his knowledge and belief,
any unqualified person or body of persons is entitled as
owner to any legal or beneficial interest in the ship or
any share in her :
This declaration must be made and subscribed in the presence
of the registrar if the declarant reside within five miles of the
custom-house of the port of registry, but if beyond that dis-
tance in the presence of any registrar or of a justice of the
peace (y).

By sect. 39, before registration by a body corporate as owner
of a ship or of any share, the secretary or other duly appointed
public officer must make or subscribe, in the presence of the
registrar, a declaration in the form given by the act, referring to
the ship as described in the certificate of the surveyor, and con-
taining a statement of such circumstances of the constitution and
business of the body corporate as prove it to be qualified to own
a British ship, together with the other particulars which are
required to be given by an individual in such a declaration (r).

Sect 40 provides that, upon the first registry of a ship there Builder's cer-
must, in addition to the declaration of ownership, be produced : — tifica^«

(1.) In the case of a British-built ship, a certificate (which
the builder is required to grant under his hand) con-
taining a true account of the proper denomination and of
the tonnage of the ship as estimated by him, and of the
time when and of the place where she was built, together
with the name of the party (if any) on whose account he
has built her ; and, if any sale or sales have taken place,
the bill or bills of sale under which the ship or share has

{q) By the IS & 19 Vict c. 91, s. 9, same to be false, is declared guilty of a

•ny penon who, in any declaration misdemeanor. And by sect 101 of the

made in the presence of or produced M. S. Act, 1854, the forging, assisting

to any registrar of shipping in pur- in or procuring to be forged, fraudu-

wance of the second part of the M. S. lently altering, assisting in or procuring

Act,1854, or in any documents or other to be fraudulently altered, any re-

eridence produced to such registrar, gister, book, certificate of surveyor,

wilfully makes or assists in making, or certificate of registry, declaration of

procures to be made, any false state- ownership, bill of sale, instrument of

mentconcemingtbe title to,or the own- mortgage, certificate of mortgage or

ershipof^or the interests existing in any sale, or any entry or indorsement re-

ihip or any share or shares in any ship, quired by the second part of the act, it

or who utters, produces or makes use of made a felony,
any declaration or document containing (rX See form, Appendix, p. ccxii.

any locb false statement, knowing the



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10 TITLE TO MERCHANT SHIPPING.

become vested in the party requiring to be registered as
owner.
(2.) In the case of a foreign-built ship, the same evidence as
in the case of a British-built ship, unless the person
requiring to be registered, or, in the case of a body cor-
porate, the duly appointed oflSicer, declares that the time
or place of her building is unknown, or that the builder's
certificate cannot be procured, in which case there need
be produced only the bill or bills of sale under which the
ship or share became vested in the party requiring to be
registered.
(3.) In the case of a ship condemned by any competent Court,

an official copy of her condemnation.
By sect. 41, a builder who wilfully makes a false statement
in any certificate required by the act to be granted by him
incurs a penalty not exceeding 100/. for each offence (j?).

Entry in book Sect. 42 provides that, the foregoing requisites having been
o registry. complied with, the registrar must enter in the register book : —
(1.) The name of the ship, and of the port to which she be-
longs.
(2.) The details as to her tonnage, build and description com-
prised in the certificate of the surveyor.
(3.) The particulars as to her origin stated in the declaration

or declarations of ownership.
(4.) The names and descriptions of her registered owner or
owners, and if there is more than one owner, the propor-
tions in which they are interested in the 8hip(0.
By sect. 43, no notice of any trust, express, implied or construc-
tive, may be entered in the register book, or is receivable by the
registrar; and, subject to any rights and powers appearing by
the register book to be vested in any other party, the registered
owner of any ship or share has power absolutely to dispose of
it, and to give effectual receipts for any money paid or advanced
by way of consideration (w).

(«) See also sect. 101. Act, 6 Geo. 4, c. 110.

(t) Under the 8 & 9 VicL c. 89, s. 35, (u) By 18 & 19 Vict. c. 91, 8. 10,

where ships were held by partners, it shares in ships registered under the

was not necessary to distinguish the M. S. Act, 1854, are to be deemed to

proportionate interest of each. The be included in the word "stock," as

names, however, of all the partners defined by the Trustee Act, 1850(13

must have been placed on the register. & 14 Vict c. 60), and the provisions of

See Slater v. IVilliSf I Beav. 354, de- that act are made applicable to such

cided on similar words in the Registry shares.



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TITLE TO MERCHANT SHIPPING. 1 1

By sect 44, upon the completion of the registry of a ship the Certificate of
registrar is to grant a certificate of registry in the form provided ^^^
by the act (a:), comprising : —

(1.) The name of the ship and of the port to which she be-
longs.

(2.) The details as to her tonnage, build and description com-
prised in the surveyor's certificate.

(3.) The name of her master.

(4.) The several particulars as to her origin stated in the de-
claration or declarations of ownership.

(5.) The names and descriptions of her registered owner or
owners, and if there is more than one owner, the propor-
tions in which they are interested, indorsed upon the
certificate.

By sect. 45, whenever a change takes place in the registered
ownership of a ship, if it occurs when the ship is at her port of
registry, the master must forthwith deliver the certificate of
registry to the registrar, and he must indorse thereon a memo-
randum of the change. If the change occurs during the absence
of the ship fi'om her port of registry, then upon her first return
the master must deliver the certificate of registry to the regis-
trar, and he must indorse on it the memorandum ; or if she pre-
viously arrives at any port where there is a British registrar, he
most, upon being advised by the registrar of her port of registry
of the change having taken place, indorse a like memorandum
thereof on the certificate of registry, and may for that purpose
require the certificate to be delivered to him, so that the ship be
not thereby detained. Any master who fails to deliver to the
registrar the certificate of registry incurs a penalty not exceeding
100/.

By sect. 46, whenever the master of a British registered ship
is changed, if such change is made in consequence of the sen-
tence of a naval Court, the presiding officer of the Court, or if it
takes place firom any other cause, the registrar, or, if there is no
registrar, the British consular officer resident at the port where
the change takes place, must indorse on the certificate of regis-
try a memorandum of the change, subscribed with his name,
and forthwith report the change of master to the Commissioners
of Customs in London ; and the officers of customs at any port

(x) See form, Appendix, p. ccxiii.



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TITLE TO MERCHANT SHIPPING.



situate within the Queen's dominions may refuse to admit any
person to do any act at such po{t*as master of any British ship,
unless his name is inserted in or indorsed upon the certificate of
registry as the last appointed master.

By sect. 47, the registrar may, with the sanction of the Com-
missioners of Customs, upon the delivery up to him of the
former certificate of registry, grant a new certificate in the place
of the one so delivered up.



Loss of, and

provisional

certificates.



Sect. 48 provides, that if the certificate of registry Be mislaid,
lost or destroyed, if the loss occurs at any port in the United
Kingdom, the ship being registered in the United Kingdom, or
at any port in any British possession, the ship being registered
in the same British possession, then the registrar of her port of
registry must grant a new certificate of registry, in lieu of and
as a substitute for her original certificate of registry. If, how-
ever, the loss occurs elsewhere, the master or some other person
having knowledge of the circumstances must make a declaration
before the registrar of any port having a British registrar at
which the ship is at the time or first arrives after the mislaying,
loss or destruction. This declaration must state the facts of the
case, and the names and descriptions of the registered owners,
to the best of the declarant's knowledge and belief; and the re-
gistrar must thereupon grant a provisional certificate as near to
the form appointed by the act as circumstances permit, and
insert a statement of the circumstances under which the pro-
visional certificate is granted.

By sect. 49, the provisional certificate must, within ten days
after the first subsequent arrival of the ship at her port of dis-
charge in the United Kingdom, if registered in the United
Kingdom, or if registered elsewhere, at her port of discharge in
the British possession within which her port of registry is situate,
be delivered up to the registrar, who must thereupon grant a
new one, as near to the form appointed by the act as circum-
stances permit. If the master neglects to deliver up the certifi-
cate within such time he incurs a penalty not exceeding 60/. (y).



Detainer and Sect. 50 provides, that the certificate of registry shall be used
^o ceru - ^j^jy £^^ ^j^g lawful navigation of the ship, and shall not be sub-

(y) See also as to provisional certificates where a ship is transferred at a foreign
port, sect. 54| postf p. 14.



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TITLE TO MERCHANT SHIPPING. 13

ject to detention by reason of any title, lien, charge or interest
whatsoeTer which any owner,«mortgagee or other person may
have or claim to have on or in the ship described in such certi-
ficate. If any person, whether interested or not in the ship,
refuses on request to deliver up the certificate, when in his pos-
session or under his control, to the person for the time being
entitled to the custody of it for the purposes of navigation, or
to any registrar, officer of the customs, or other person legally
entitled to require it, a magistrate, or any Court capable of
taking cognizance of such matter, may summon and examine
the person refusing, and, unless it is proved that there was rea-
sonable cause for the refusal, the offender will incur a penalty
not exceeding 100/. (z) If, however, it is shown that the cer-
tificate is lost, the party complained of must be discharged, and
the magistrate or Court must thereupon certify that the certi-
ficate is lost.

By sect. 61, if the person charged with the detainer or refusal
is proved to have absconded, so that a warrant cannot be served
upon him, or if he persists in his refusal to deliver it, the magis-
trate must certify the fi^ict, and the same proceedings may then
be taken as in the case of a certificate of registry mislaid, lost or
destroyed, or as near thereto as circumstances permit

By sect. 52, if the master or owner of a ship uses or attempts
to use for her navigation a certificate of registry not legally
granted in respect of it, he is guilty of a misdemeanor, and any
military or naval commissioned officer on full pay, or any British
officer of customs, or any British consular officer, may seize and
detain the ship, and bring her for adjudication before the High
Court of Admiralty in England or Ireland, or any Court having
Admiralty jurisdiction in the Queen's dominions. If such Court
is of opinion that the use or attempt at use has taken place, it
must pronounce the ship, with her tackle, apparel and furniture,
to be forfeited to the Queen, and may award a portion of the
proceeds arising from her sale to the officer so bringing her in.

(<) In R, ▼. Walsh, 1 A. & E. 481, who also held the majority of shares,

which was decided upon a similar pro- demanded of the roaster, who was also

Tision contained in the 8 & 9 Vict c. 89, part owner, the certificate of registry,

s. 30, it was held, that a conviction while the ship was in *harbour and be-

must state the purpose for which the fore she had discharged, but gave no

certificate was required. See also 77. v. reason for doing so, it was held, that

Pixtejft 13 East, 91, which was decided there was reasonable ground for the

on an earlier act, the words of which master's refusing to deliver it up. Arkle

are not the same. In a case in which v. Henxell, 8 £. & B. 828.
a ship's husband and managing owner,



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14 TITLE TO MERCHANT SHIPPING.

By sect. 53, if a registered ship is either actually or construc-
tively lost, taken by the enemy, burnt or broken up, or if by
reason of a transfer to any persons not qualified or otherwise
a ship ceases to be a British ship, every person who then owns
her, or any share of her, must, immediately upon obtaining know-
ledge of any such occurrence, if no notice thereof has already
been given to the registrar at her port of registry, give such
notice to him, and he must make an entry thereof in his register
book ; and, except in cases where the certificate of registry is
lost or destroyed, the master of a ship so circumstanced must
immediately, if the event occurs in port, or if elsewhere, within
ten days after his arrival in port, deliver the certificate of registry
to the registrar, or, if there be no registrar, to the British con-
sular oflScer at such port, and the registrar, if he is not himself
the registrar of her port of registry, or the British consular
officer, must forthwith forward the certificate to the registrar of
the ship's port. An owner or master who, without reasonable
cause, makes default in obeying these provisions, incurs for each
offence a penalty not exceeding 100/.

It is provided by sect. 54 of the Merchant Shipping Act,
1854, that if a ship becomes the property of persons qualified to
be owners of Brttish ships at any foreign port, the British con-
sular officer resident there may grant to the master, upon his
application, a provisional certificate, stating —

The name of the ship :

The time and place of her purchase, and the names of her
purchasers :

The name of her master :

The best particulars as to her tonnage, build and description
that he is able to obtain.

He must forward a copy of the certificate, at the first conve-
nient opportunity, to the Commissioners of Customs in London.
This certificate possesses the same force as a certificate of
registry until the expiration of six months, or until such earlier
time as the ship arrives at some port where there is a British
registrar ; but upon the expiration of this period, or upon arrival
at such port, it is void to all intents.

Registry anew Under certain circumstances it becomes necessary that a ship

regl^f^'' ""^ ^^^^^^ ^^ registered anew. On this head the Merchant Shipping

Act provides by sect. 84, that whenever any registered ship is



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TITLE TO MERCHANT SHIPPING. 15

go altered as not to correspond with the particulars relating to
her tonnage or description contained in the register book, then,
if such alteration is made at a port where there is a registrar, the
registrar of such port, but if made elsewhere, the registrar of the
first port having a registrar at which the ship arrives after her
alteration, must, on application made to him, and on the receipt
of a certificate from the proper surveyor, specifying the nature
of the alteration, either retain the old certificate of registry and
grant a new certificate of registry, containing a description of
the ship as altered, or indorse on the existing certificate a me-
morandum of the alteration, and subscribe his name to such
indorsement. The registrar to whom this application is made, if
he is the registrar of the port of registry of the ship, must him-
self enter in his register book the particulars of the alteration,
and the fact of the new certificate having been granted or of
the indorsement having been made on the existing certificate ;
but if he is not the registrar of that port he must forthwith report
such particulars and facts, accompanied by the old certificate
of r^stry in cases where a new one has been granted, to the
registrar of the port of registry of the ship, who must retain the
old certificate, and enter the particulars and facts in his register
book accordingly.

By sect. 85, when the registrar to whom application is
made in respect of an alteration, is the registrar of the port of
registry, he may, if he thinks fit, instead of registering it, require
the ship to be registered anew. Other registrars may require
the ship to be registered anew, but they must grant a pro-
visional certificate, or make a provisional indorsement of the
alteration in cases where no registry anew is required, taking care
to add to such certificate or indorsement a statement that it is
made provisionally, and to insert in their report to the registrar
of the port of registry of the ship a like statement.

By sect 86, every provisional certificate, or certificate provi-
sionally indorsed, must within ten days after the first subsequent
arrival of the ship at her port of discharge in the United King^
dom, if registered in the United Kingdom, or if registered else-
where, at her port of discharge in the British possessions within
which her port of registry is situate, be delivered up to the
registrar thereof, who must cause the ship to be registered
anew.

By sect. 87, on failure of registry anew in the above cases,



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TITLE TO MERCHANT SHIPPING.



the ship is deemed not duly registered, and will no longer be re-
cognized as a British ship.

By sect. 88, if upon any change of ownership in any ship
the owner or owners desire to have the ship registered anew,
although it is not required by the act, the registrar of the port
at which she is already registered may, on the delivery up to
him of the existing certificate of registry, and on the other
requisites to registry or such of them as he thinks material
being duly complied with, make the registry anew, and grant
a certificate thereof.

Sects. 89, 90 and 91, and sect. 12 of the 18 & 19 Vict. c. 91,
provide for the first time for the transfer of the registry of a
ship from one port to another, upon the application of all the
parties appearing on the register to be interested in her (J).

IfAvioATioN. Until recently a vessel, in order to enjoy the privileges of a
British ship, must not only have been duly registered, but must
also have been ** navigated as such ;" that is, by a master who
was a British subject, and by a crew a certain proportion of which,
varying as the ship was a foreign going or coasting vessel, con-
sisted of British seamen (c). Now, however, there is no statutory
or other restriction on this head, and British ships may be
manned by the subjects of any country.



Privileges of
British ships.



Supposing a ship to be duly registered as a British ship, we
have next to consider what are her privileges as such. These
privileges, which consisted formerly of a capacity to trade ex-
clusively as regarded the ships of other nations in some cases,
and of a right to a more favourable treatment with respect to
duties levied by the British government in others, have of late
years been from time to time greatly reduced, and at present the
peculiar rights of a British ship are substantially confined to
the right of assuming the national character and flag, and of
claiming the protection and benefit resulting therefi'om (d).



(b) By sect. 98 of the M. S. Act,
1854, a power is given to the Commis-
sioners of Customs, and to the governors
of British possessions, to grant passes,
under special circumstances, to British
ships which have not been registered,
so as to enable them to proceed from
one place to another in the Queen's do-
minions.



(c) 12 & 18 Vict c 29, 88. 7, 8. re-
pealed in the first instance by the 16 &
17 Vict. c. 131, 8. 31, and now repealed
by 17 & 18 Vict. c. 120, which has also
repealed the 16 & 17 Vict. c. 131.

(d) The various prohibitions under
which foreign shipping formerly la-
boured will be found in the repealed
statutes, ending with the 8 dt 9 Vict



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TITLE TO MERCHANT SHIPPING.



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With respect to customs and other duties and charges, and to
prohibitions or restrictions as to the voyages in which they
may engage, foreign and British ships are now therefore placed
on the same footing. If, however, other countries do not act
with reciprocity in this respect, the Queen may, by order in
Council, impose such prohibitions or restrictions as to the
voyages in which foreign ships may engage, and such additional
duties or charges on them or their cargoes, as will place them
in the same position here as that occupied by our ships in the
ports of the country to which the foreign vessels belong (e).

With respect to the national character and flag of British National
^^ps(/)« The Merchant Shipping Act, 1854, provides by sect.
102, that officers of Customs may not grant a clearance or
transire for any ship until the master has declared the name of
the nation to which he claims that she belongs. This name the
officer must inscribe on the clearance or transire, and he may
detain the ship until this declaration is made.

By sect 103, if the British flag is used and the national
character assumed on board a ship owned in whole or in part by
any person not entitled to own British ships, for the purpose of



t&S, and 17 & 18 Vict c. 120. The
polky of these acts was principally di-
rected against the importatioD into this
wuntry of merchandize, except in Bri-



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 6 of 101)