*

been laid down by Ch. J. Lee, in Parish v. Crawford, (g) and it was declared that the ownership, in respect to all third persons, remained with the original proprietor, when the vessel was supplied and repaired by the owner, and navigated by a master and sailors provided and paid for by him. In that case, the ship was chartered by the commissioners of the navy, who 138 placed a commander in the navy on board, and the master was to obey his orders; but, with regard to third persons, it was still, notwithstanding that very important fact, considered to be the ship of the owners, and they were held answerable for damage done by the ship. This highly vexed question, and so important in its consequences to the claim of lien, and the responsibilities of ownership, depends on the inquiry, whether the lender or hirer, under a charter-party, be the owner of the ship for the voyage.1 It is a dry matter-of-fact question, who, by the charter-party, has the possession, command, and navigation of the ship. If the general owner retains the same, and contracts to carry a cargo on freight for the voyage, the charter-party is a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership.2 The general owner, in such a case, is entitled to the freight, and may sue the consignee on the bills of lading in the name of the master, or he may enforce his claim by detaining the goods until payment, the law giving him a lien for freight. But where the freighter hires the possession, command, and navigation of the ship for the voyage, he becomes the owner, and is responsible for the conduct of the master and mariners; and the general owner has no lien for the freight, because he is not the carrier for the voyage. This is the principle declared and acted upon in the greatly litigated and very ably discussed case of Christie v. Lewis; (a) and it is the principle declared by the Supreme Court of the United States, in Marcardier v. The Chesapeake Insurance Company, (b) and Gracie v. Palmer, (c)

(g) Str. Rep. 1251.

(a) 2 Brod. & Bing. 410.

(b) 8 Cranch, 39.

(c) 8 Wheaton, 605.

1 The hirer of a vessel on shares, and not the general owners, will be liable to the owner of goods used for the benefit of a vessel. Sproat v. Donnell, 26 Maine,

185.

2 Eames v. Cavaroc, 1 Newb. Adm. 528.

and followed generally by the courts of justice in this country. (d) It may be considered as the sound and settled law on the subject. (e) 4

(d) Pitkin v. Brainerd, 5 Conn. 451; Clarkson v. Edes, 4 Cowen, 470; Reynolds v. Toppan, 15 Mass. 370; Emery v. Hersey, 4 Greenl. 407; Lander v. Clark, 1 Hall (N. Y.) 355; Lord Tenterden, in Colvin v. Newberry, 6 Bligh (N. S.) 189; The Schooner Volunteer and Cargo, 1 Sumner, 568, 569. In the case of Certain Logs of Mahogany, 2 Sumner, 596, 597, it was decided, that where the owner of a chartered vessel has a lien for freight, the consignee cannot, by a writ of replevin, withdraw the cargo from the jurisdiction of the Admiralty Court; and that the owner of the vessel is presumed to be the owner for the voyage, unless the charter-party contains clear evidence of an intention to make the charterer owner for the voyage; and that the owner has a lien on the cargo for the amount due by the charter-party, unless, by the terms of the instrument, delivery of the cargo is to precede payment of the freight, and the owner is divested of the possession of the goods, without the right to claim immediate payment; that a stipulation that the freight is to be paid in five days after the return and discharge of the vessel, is not a contract to give credit so as to displace the lien; and that the stipulation to discharge the cargo is simply to unlade, and not to deliver it.

(e) In Massachusetts, the charterer of a vessel is declared to be the owner, in respect to the responsibility for embezzlements by the crew, in case he navigates the vessel at his own expense.3 Revised Statutes of 1836, part 1, c. 32, sec. 3. The liti gated question, who are to be considered as the responsible owners of the ship for repairs and necessaries, is considered, and the numerous authorities cited and reviewed, in Abbott on Shipping, 5th American edit. Boston, 1846, pp. 38-70. In that same work, pp. 377-379, the learned editor, Sergeant Shee, observes, on a review of the English decisions respecting the ship-owner's lien for freight, that there is great con trariety, and almost inextricable conflict in the construction of the charter-party; that the maritime law is founded upon the principle, that the master is the servant of the owner, and is intrusted with authority over the property in his charge; and by his contract with sub-freighters the owner of a chartered ship is bound, and for misconduct in him, or in the mariners engaged by him, the owners are responsible to the extent and value of the ship and freight; and yet, that by subtle distinctions, the possession of the master is made out not to be the possession of the owner; and learned judges have determined against the ship-owner's lien for freight, and against his liability for the acts of the master; that the maritime law of France and England is founded upon the civil law; and Pothier (Charter Partie, p. 1, sec. 5) holds, that in the locatio rei et operarum and the locatio operis, the obligations of the master and the merchant are the same. In the French charter-party, the proprietor of the ship engages to employ her in the same service of the freighter, in the same way as the owner of a coach engages to carry goods or passengers. (Code de Commerce, art. 273.) The service of the master and mariners goes with the service of the ship, but they do not cease to be the

The act of Congress of March 3, 1851, limiting the liability of ship-owners, provides that as respects the operation of that act, charterers shall be deemed owners whenever they man, victual, and navigate the vessel. 9 Stat. at Large, 635.

4 Tuckerman v. Brown, 17 Barb. (N. Y.) 191; Swanton v. Reed, 35 Maine, 176; Nash v. Parker, 38 Id. 489; Urann v. Fletcher, 1 Gray, 125; Marquand v. Bonner, 36 Eng. L. & Eq. 136; Baker v. Haskins, 5 Gray, 596.

*(3.) Of the custom-house documents.

*139

The United States have imitated the policy of England and other commercial nations (a) in conferring peculiar privileges upon American built ships, and owned by our own citizens; and I shall now examine the acts of Congress, so far as they go, to ascertain the title to American ships, and the mode of transferring that title. The object of the Registry Acts is to encourage our own trade, navigation, and ship-building, by granting peculiar or exclusive privileges of trade to the flag of the United States, and by prohibiting the communication of those immunities to the shipping and mariners of other countries. These provisions are well calculated to prevent the commission of fraud upon individuals, as well as to advance the national policy. The registry of all vessels at the custom-house, and the memorandums of the transfers, add great security to title, and bring the existing state of our navigation and marine under the view of the general government. By these regulations, the title can be effectually traced back to its origin. (b)

servants of the owner, to whom the lien for freight and the responsibilities of owner attach. The learned sergeant seems to think most favorably of the latter doctrine; and for the removal of doubts, he recommends an express.agreement in the charterparty, as was done in the case of Small v. Moates, 9 Bing. 574, which avoided the vexatious question, and vested the ownership fully in the original owner, and gave him a right of lien, without considering the question whether the possession of the ship remained in him, or had passed to the charterer.

(a) Mr. Prescott refers to a Spanish law, or pragmatic, as early as the year 1500, prohibiting all persons, whether natives or foreigners, from shipping goods in foreign bottoms from a port where a Spanish ship could be obtained. The object of the law, like the English famous Navigation Act, was to exclude foreigners from the carrying trade. Another pragmatic, of 1501, prohibited the sale of vessels to foreigners. Prescott's Ferdinand and Isabella, vol. iii. 453.

(b) A historical view of the laws of England, with regard to shipping and navigation, is given, with admirable clearness, method, and accuracy, by Mr. Reeves, in his "History of the Law of Shipping and Navigation," published in 1792; and the policy of that system he considers to have been vindicated and triumphantly sustained, in the increase of the English shipping, the extension of their foreign navigation and trade, and the unrivalled strength of their navy. The policy of the British statutes was to create skilful and hardy seamen, and to confine the privileges of English trade, as far as was consistent with the extent of it, to British built shipping. But the quantity of British built shipping was not at first adequate to carry on the whole trade of the country, and it became a secondary object to confer privileges on foreign built ships in British ownership. In proportion as British built shipping increased, the privileges conferred on foreign built ships in British ownership were from time to time restricted. The English navigation laws, prior to the famous Navigation Act of the Republican Parliament of 1651, and adopted by the statute of 12 Charles II. c. 18, were crude and undigested. They commenced with the statute of 5 Richard II., an1

The Acts of Congress of 31st December, 1792, and 18th February, 1793, constitute the basis of the regulations in this

in the earlier acts, the preference of English ships and mariners, in English imports and exports, was given in simple and absolute terms, and they kept improving in accuracy of description and justness of policy, down to the time of the Registry Acts. The Navigation Act of Charles II. described what were English built and Englist owned ships, and in what cases a foreign built ship, owned by an English subject, should have the privileges of an English ship. The act did not require any foreign ships to be registered; but a foreign built ship, unless registered, was to be treated as an alien ship, though owned by a British subject. The statute of 26 George III. c. 60, was framed by the elder Lord Liverpool, and it gave rise to the treatise cf Mr. Reeve, who dedicated his work to that distinguished nobleman. The Navigation Act of Charles II. only required ships to be the property of British subjects; but in the progress of the system, the qualification of being British built was added. The one encouraged British seamen and merchants, but the other encouraged also British shipbuilding. The statute of 26 George III. declared that the time had come when the policy of employing British built shipping exclusively in the commerce of that country, ought to be carried to the utmost extent; and it accordingly enacted, that no foreign built ship, except prizes, nor any ship built upon a foreign bottom, although British owned, should be any longer entitled to any of the privileges or advantages of a British built ship, or of a ship owned by British subjects. This statute likewise introduced into the European trade the necessity of a register, which had been introduced into the plantation trade by the statute of 7 and 8 William III. c. 22. The general principle established by the act of 16 George III. was, that all British ships, with some few exceptions, should be registered, and a certificate of the registry obtained in the port to which the ship belonged. All ships entitled and required to be registered, were made subject to forfeiture for attempting to proceed to sea without a British register. All ships not entitled to the privileges of British built or British owned ships, and all ships not registered, although owned by British subjects, were to be deemed alien ships, and liable to the same penalties and forfeitures as alien ships. British subjects might still employ foreign ships in neutral trade, subject only to the alien duties. The statute further required that, upon every alteration of the property, an indorsement was to be made upon the registry, and a memorandum thereof entered at the custom-house; and that upon every transfer, in whole or in part, the certificate of the registry was to be set out in the bill of sale. The statute of 34 George III. c. 68 was an enlargement of the statute of 26 George III., and it contained several provisions for granting new certificates upon a transfer of property, and it regulated those cases only in which a title to a certificate had been given, and a certificate was required to be obtained; and it required all registered vessels to be navigated by a British master, and a crew of whom three fourths were British. The existing British regulations respecting the registration and enrolment of ships are embodied in the act of 3 & 4 William IV. c. 54, and the acts of 8 & 9 Victoria, c. 88, 89, for the encouragement of British shipping and navigation, and for the registering of British vessels. Vessels under fifteen tons, navigating rivers, &c., or under thirty tons, in the Newfoundland fishery, need not be registered. Foreign ships were those of the build or prize of the country, or British built, and owned and navigated by subjects of the country; and natives of India are not deemed to be British seamen. And by the act of 8 and 9 Victoria, c. 93, for regulating the trade of British possessions abroad, the Queen may grant free ports in discretion, and give or withhold the privileges of the reciprocity system.

The navigation laws of Great Britain now form a permanent and regular code :

* country for the foreign and coasting trade, and for the *141 fisheries of the United States; and they correspond very

and they were involved in a labyrinth of statutes, and not easily rendered simple and intelligible to practical men, until the statutes of 4 Geo. IV. c. 44, 6 Geo. IV. c. 109, 110, 7 Geo. IV. 48, and 3 and 4 Wm. IV. c. 54, 55, successively displacing each other, reduced all the former provisions, with alterations and improvements, into one consolidated system. The Registry Acts have peculiar simplicity and legal precision for statute productions of that kind, and they are regarded by English statesmen and lawyers as highly honorable to the talents, experience, and vigilance of Lord Liverpool, who established on solid foundations the naval power and commercial superiority of his country. The code of laws constituting the navigation system of England may be considered as embodied in the statutes of 3 and 4 William IV., and which are said to owe much of the merit of their compilation to the industry and talents of Mr. Hume, of the Board of Trade. As the code previously existed, it was well digested, not only in the history of Mr. Reeves, to which I have alluded, but by Lord Tenterden, in his accurate and authoritative "Treatise of the Law relative to Merchant Ships and Seamen"; and still more extensively, and very ably, in Holt's "System of the Shipping and Navigation Laws of Great Britain." That work contains all the laws on the subject, brought down to the year 1820. His introductory essay is a clear, but brief synopsis of the history and policy of the navigation system. In the sixth and seventh chapters of the first volume of Mr. Chitty's ample "Treatise on the Laws of Commerce and Manufactures, and Contracts relating thereto," we have also a condensed digest of the same code of navigation laws. An abstract is given in the last Am. edition of Abbott on Shipping, by Sergeant Shee, pp. 75 to 123, of the enactments of the last English Registry Acts; and the American editor, Mr. Perkins, has added to the notes the corresponding sections in the American Registry and Navigation Acts.1

1 The English navigation laws are now essentially abrogated; yet a few additional notices of this system of policy, so long the cherished object of British legislation, and supposed to be the basis of the naval and commercial supremacy of England, may, perhaps, be appropriately added to those contained in the text.

The statute 12 Car. II. c. 18, the celebrated Navigation Act, and sometimes termed the charta maritima of England, regulated the trade and shipping of England in respect, 1st, to the coasting trade; 2dly, the European trade; 3dly, the trade with Asia, Africa, and America; and 4thly, the trade with the British Colonies.

1st. As to the coasting trade, it was made unlawful for any person to carry, in any ves. sel whereof a stranger was owner, part-owner, or master, and whereof three fourths of the mariners were not English, any goods, from one port of England, &c., to another port of the same. By subsequent laws, the privileges of this trade were confined to ships built (as well as owned) within the king's dominions (act 23 Geo. III. c. 60); and the whole of the crew were required to be British subjects.

2d. As to trade of Great Britain with Europe, the act c' 12 Car. ch. 18, sec. 8, prohib. ited the importation into England of any goods of Russia and Turkey, and certain other enumerated articles, except in British vessels, or such foreign ships as were of the build of the country of which the said goods were the growth or manufacture.

By another act of 13 and 14 Car. II. c. 11, the prohibition was rendered absolute as to the importation of certain enumerated articles from the Netherlands and Germany. The restrictions of those statutes were materially modified by various statutes subse