Oldalképek
PDF
ePub

Admiralty jurisdiction of High Court

of Justice.

County courts.

Charterparty.

tions arising between the co-owners, or any of them, touching the ownership, possession, employment and earnings of any ship registered in any port in England or Wales, or any share thereof; and it empowered that court to sell all accounts outstanding and unsettled between the parties in relation thereto, and to direct the ship or any share thereof to be sold, and to make such order in the premises as to the court should seem fit (r). The same Act also gave the Court of Admiralty jurisdiction over any claim in respect of any mortgage duly registered according to the provisions of the Merchant Shipping Act, 1854 (s).

By the Judicature Act of 1873 the jurisdiction of the High Court of Admiralty was transferred to and vested in the High Court of Justice (t), as from the 1st of November, 1875 (u); and all matters and causes which would have been within the exclusive cognizance of the Court of Admiralty were assigned to the Probate, Divorce and Admiralty Division of the High Court (x). All suits which were commenced by a cause in rem or in personam in the Court of Admiralty are now instituted by a proceeding called an action (y). Some of the county courts now possess Admiralty jurisdiction (~).

Sometimes a vessel is hired for a given voyage. The instrument by which such hiring is effected is termed a charter-party (a). Whether the legal possession of the ship passes to the hirer (or charterer, as he is called) depends on the stipulations contained in the charterparty, such as whether the charterer or the owner is to

(r) Sect. 8.

(s) Sect. 11. See also sects. 10, 12, and 13.

(t) Stat. 36 & 37 Vict. c. 66,
s. 16.

(u) Stat. 37 & 38 Vict. c. 83.
(x) Sect. 34.

(y) Rules of the Supreme Court,

1883, Order I., rule 1.

(2) Stats. 31 & 32 Vict. c. 71; 32 & 33 Vict. c. 51.

(a) The stamp duty on a charter-party is now sixpence; stat. 54 & 55 Vict. c. 39, First Schedule.

provide the seamen, and keep the vessel in order (b). Where a merchant ship is open to the conveyance of

goods generally, it is called a general ship. The receipt General ship. for the goods given by the master is called the bill Bill of lading. of lading it states that the goods are to be delivered to the consignee or his assigns; and by the custom of merchants, the bill of lading, when endorsed by the consignee with his name, becomes a negotiable instrument the delivery of which passes the property in the goods (c); but it was formerly held that the right to sue upon the contract contained in the bill of lading to carry and deliver the goods did not pass by the indorsement (d). It is, however, now enacted, that every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself (e). The money payable for the hire of a Freight. ship, or for the carriage of goods in it, is the freight which, whether accrued or accruing, is assignable in the same manner as any other ordinary chose in action (f). But in the case of a mortgage of a ship, the mortgagee Right of whose mortgage is first registered, obtains, by taking mortgagee to actual (g) or constructive (h) possession, a legal right to the freight, with all the advantages which equity gives

(b) Dean v. Hogg, 10 Bing.345; Fenton v. City of London Steam Packet Company, 8 Ad. & Ell.

835.

(e) Caldwell v. Ball, 1 T. Rep. 205, 216; see ante, p. 68.

(d) Thompson v. Dominy, 14 Mee. & Wels. 403.

(e) Stat. 18 & 19 Vict. c. 111, s. 1. It has been held that this

enactment does not place the indorsee of a bill of lading, to whom it has been delivered by way of

pledge only, in the position of a
party to the contract contained
therein; Sewell v. Burdick, 10
App. Cas. 74.

(f) Douglas v. Russell, 4 Sim.
524; 1 M. & K. 488; Leslie v.
Guthrie, 1 New Cases, 697; Lind-
say v. Gibbs, 22 Beav. 522.

(g) Brown v. Tanner, L. R. 3 Ch. 597.

(h) Rusden v. Pope, L. R. 3 Ex. 269.

freight.

Bottomry

freight and cargo.

to a legal owner, in the event of a conflict of claims (i). The delivery of goods imported from foreign parts, and the lien of the shipowner for their freight, are now regulated by the provisions of the Merchant Shipping Act Amendment Act, 1862 (k).

The necessity, which authorizes the master of a ship bond on ship, to bind her by way of bottomry, may authorize him to hypothecate freight and cargo along with the ship by a bottomry bond. But he can only so bind the cargo, with prospect of benefit to the cargo (l); and before doing so he must communicate with cargo-owners if practiRespondentia. cable (m). Respondentia is a contract of similar nature to bottomry, but entered into with respect to cargo only. At common law a contract of respondentia confers no right of property in or lien upon the goods hypothecated, the borrower only being personally liable in the event of the safe termination of the voyage (n). But the holder of a respondentia bond given by the master of a ship and warranted by the necessity of the case, may enforce it against the cargo under the admiralty jurisdiction of the Court (o). The master of a ship has no authority to sell any part of the cargo, except in a case of necessity, where he cannot communicate with the cargo-owner (p).

Sale of cargo by ship's master.

General

average.

An incident of the carriage of goods by sea is the liability of the several persons interested in the ship, freight, and cargo to contribute rateably to indemnify

(i) Liverpool Marine Credit Company v. Wilson, L. R. 7 Ch. 507; Wilson v. Wilson, L. R. 14 Eq. 32; Keith v. Burrows, 2 C. P. D. 163; 2 App. Cas. 636.

(k) Stat. 25 & 26 Vict. c. 63, ss. 66-78.

(1) The Gratitudine, 3 Rob. 240; The Lizzie, L. R. 2 A. & E. 254; The Karnak, ib. 289; 2 P. C. 505; The Onward, L. R. 4 A. & E. 38; The Pontida, 9 P. D. 102,

177.

(m) Kleinwort & Co. v. Cassa Maritima of Genoa, 2 App. Cas. 156. (n) 2 Black. Comm. 457; Busk v. Fearon, 4 East, 319.

(0) Cargo Ex Sultan, Swab. 504.

(p) Australian Steam Navigation Company v. Morse, L. R. 4 P. C. 222, 228; Atlantic Mutual Insurance Company v. Huth, 16 Ch. D. 474, 481.

a person who has suffered loss by the sacrifice voluntarily and properly made of some portion of the ship or cargo to secure the general safety of the whole. Such a contribution is called a general average contribution (q). The jettison, or throwing overboard of part of Jettison. the cargo in order to save the ship, is the simplest instance of a case of general average (r). But the principle extends to all loss which arises in consequence of extraordinary sacrifices made or expenses incurred for the preservation of the ship and cargo (s). The Lien for shipowner has a lien on cargo liable to contribution for general general average (t). But no maritime lien arises from liability to general average contribution (u). Where Particular sacrifices are made or expenses incurred to preserve particular articles only-for instance, the cargo but not the ship-the owners of the articles saved are liable to what is called particular average; for which a like lien is given as in the case of general average (x).

(g) 1 Maude & Pollock on Merchant Shipping, 425-437, 4th ed.

(r) See Butler v. Wildman, 3 B. & A. 398; Hallett v. Wigram, 9 C. B. 580; Strang, Steel & Co. v. Scott & Co., 14 App. Cas. 601. (s) Birkley v. Presgrave, 1 East,

220; Svensden v. Wallace, 13
Q. B. D. 69; 10 App. Cas. 404.

(t) Simonds v. White, 2 B. &
C. 811. See Huth v. Lamport, 16
Q. B. D. 442, 735.

(u) The North Star, Lush. 45. (x) Hingston v. Wendt, 1 Q. B. D. 367.

average.

average.

CHAPTER IV.

OF CHATTELS WHICH DESCEND TO THE HEIR.

Exceptions to THERE are some kinds of choses in possession which

the general

rules.

Title deeds pass by the

conveyance of the lands.

form exceptions to the general rules governing the ownership of goods, and their devolution upon their owner's death. These consist of certain chattels so closely connected with land that they partake of its nature, pass along with it, whenever it is disposed of, and descend along with it, when undisposed of, to the heir of the deceased owner. The chattels which thus form exceptions are the subject of the present chapter: they consist principally of title deeds, heir-looms, fixtures, chattels vegetable, and animals feræ naturæ. Of each in their order.

Title deeds, though moveable articles, are not strictly speaking chattels. They have been called the sinews of the land (a), and are so closely connected with it that they will pass, on a conveyance of the land, without being expressly mentioned: the property in the deeds passes out of the vendor to the purchaser simply by the grant of the land itself (b). In like manner a devise of lands by will entitles the devisee to the possession of the deeds; and if a tenant in fee simple should die intestate, the title deeds of his lands will descend along with them to his heir at law (c). In former times, when warranty was usually made on the conveyance of land (d), the rule

(a) Co. Litt. 6 a.

(b) Harrington v. Price, 3 B. & Ad. 170; Philips v. Robinson, 4 Bing. 106; S. C. 12 Moore, 308.

(c) Wentworth's Office of an

Executor, 14th ed. 153; Williams on Executors, pt. 2, book 2, c. 2, s. 3, p. 730, 8th ed.

(d) See Williams, R. P. 540, 17th ed.

« ElőzőTovább »