would have been sufficient to pass a good title to a ship. Lord Chap. 1. KENYON, in the case of Rolleston v. Hibbert (c), declined to give an opinion upon the point; and Lord STOWELL (d), 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 transfer 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 (e) 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." Ships registered under the Merchant Shipping Acts are now transferred by bill of sale and in no other way (f). [The writers (g) 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 in which it is said that the boat is not a part of the ship (h), or of its apparel (i).] In the case of Hoskins v. Pickersgill (k), 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 (1), 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 (c) 3 Term Rep. 406. (d) 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. (e) By the Judicature Acts, the then existing superior courts, including the High Court of Admiralty, are united, and constitute one supreme Court of Judicature. This court consists of two permanent divisions, one of which is called Her Majesty's High Court of Justice. This High Court is divided into five divisions, one of which is called the Probate, Divorce, and Admiralty division. This division, for the sake of brevity, is frequently in this work called the Court of Admiralty. See the Preface to this edition. (f) See post, Chap. 2. Liverpool Borough (g) Roccus, note 20. Straccha, De Na- (i) Dig. 6, 3, 1. See (k) Marsh. Ins. by Shee, 5th ed. 568; Park 97. (1) The Dundee, 1 Hagg. Rep. 109, Part I. 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, was 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. Jurisdiction of Court of Admiralty. It seems also, from the observations of the court, in Gale v. Laurie, 5 B. & C. 156, 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 one 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 (a); and in the case of Woods v. Russell (b), 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 (c), for although in some cases necessary, it is not always so, and "ships may be laden with such merchandises as are convenient ballast of themselves," with advantage to the shipowner. In Lano v. Neate (d), 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. The Court of Admiralty has jurisdiction to detain a vessel, in a suit instituted by the real owner against a mere wrongdoer; and this court had such power before the recent enactments, extending the jurisdiction of this court (e). (a) Langton v. Horton, Leg. Ob., vol. 23, p. 524. Feltham v. Clark, 1 De Gex & S. 812. (b) 5 B. & Ald. 942. (c) Kynter's case, 28 & 29 Eliz. C. P. Leon. 46, 47, (d) 2 Stark, 105. See Langton v. Horton, 5 Beav. 9. (e) By the court, in the matter of Blanchard and others, 2 Barn. & Cress. 244; 1 Hagg. 311. See the Sisters, 4 Rob. Adm. Rep. 275; 5 Rob. Adm. Rep. The Court of Admiralty will decree possession to a party who has Chap. 1. been by force, violence, or fraud dispossessed of his vessel (ƒ). As to the jurisdiction of the Court of Admiralty in an action for possession of a foreign ship between foreigners, see the Evangelistria, 46 L. J. Ad. 1; the Agincourt, 47 L. J. Ad. 37; see the Renter, 1 Dod. 23; the Experiment, 2 Dod. 38. 2. Of Title by Purchase from the Master, and of his Authority to Sell (g). to sell. [The master of a ship possesses, as more fully appears in different Master's parts of this treatise, every power necessary for the employment and authority 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 dis. posing of the ship or any part of the cargo (h). 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 (i) 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 (k) 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] (g) See the Australia, 1 Swab. Adm. Rep. P. C., 480. (h) Underwood v. Robertson, 4 Camp. 138. Alcock v. Royal Exchange Assurance Company, 13 Q. B. 301. (i) Consulat, by Boucher, cap. 156. Laws of Oleron, art. 1; of Wisbuy, art. 13: of the Hanse Towns, art. 57. French Ordi nance, liv. 2, tit. 1. Du Capitaine, art. 19. Ordinance of Rotterdam, art. 165; 2 Magens, 107. (k) Tremenhere v. Tresillian, 1 Sid. 452. Part I. [ship, and his sale transfers no property; but he may hypothe cate" (a). And in a subsequent case (b), wherein Lord Chancellor COWPER decreed that the East India Company should pay to the owner of a ship, purchased of the master at Batavia for their use by one of their agents, the difference between the real value and the sum paid to the master, with interest thereupon at the rate allowed in India (which decree was afterwards affirmed by the House of Lords) his lordship took notice that the sale of the ship was not necessary: the transaction, indeed, was a gross fraud between the master and the agent of the company, but without their privity. By the Consolato del Mare, the master is allowed to sell the ship if worn out by age (c). And it is said by one of the earliest English reporters, that "the master of a ship may in some cases sell the ship, although it does not belong to him, as in the case of famine" (d), &c. This author does not cite the decision of any court as an authority for the observation. The exception, however, of cases of extreme necessity rather fortifies than weakens the general rule; and no person can safely purchase a ship of the master in any case which does not clearly fall within the principle upon which the exception is founded; and such a case will rarely happen. And although the master be himself a part-owner of the ship, yet will not his sale thereof be good for more than his own part, for the interest of part-owners is so far distinct, that one of them cannot dispose of the share of another; whereas, in articles of ordinary sale, one partner may in general transfer the whole property, if the transaction be without fraud. Since the publication of the first edition of this book, this power of the master has been a subject of judicial consideration in several courts. "In the first place," said Sir WILLIAM SCOTT, in the case of an American ship (e) unreservedly sold by her master, at Sligo, and afterwards arrested, on behalf of her owners, by admiralty process, "it must be shown that there was a necessity for the sale, and then it remains to be considered whether it was such as by law would give the master a right to sell. That such a case may arise I am not prepared to deny. Suppose, for instance, a ship in a foreign country, where there is no correspondent of the owners, and no money to be had on hypothecation to put her into repair. Under these circumstances, what is to be done? The ship may rot before the master can hear from his owners; and therefore, if the necessity were clearly shown, with full proof that everything was done optimâ fide, and for the real benefit of the owners, the court might be disposed to sustain] [a purchase so made." And again, "In a case of that description, I Chap. 1. say, strongly put, where there was no ground for suspicion, although I do not know that such a power is given to the master by the general maritime law, yet, feeling its expediency, this court would strain hard to support the title of the purchaser: but there must be the clearest proof of the necessity; it must be shown, not only that the vessel was in want of repair, but likewise that it was impossible to procure the money for that purpose."] In a case of Reid v. Bonham (f), Mr. Justice RICHARDSON said, "as to the necessity of sale, it is certain the assured has no right to sell, except in a case of strong necessity; perhaps he is not confined to a case of physical necessity, but the necessity must be such as would induce a prudent man, even uninsured, to sell. What, then, was the necessity here? The captain contents himself with 1,2007. when he had 12,000l. at stake, so that, if he had been uninsured, the loss must have been 10,8007., with the exception of the amount for which the ship's stores might have sold; whereas the loss would have amounted to no more than 5,000l., if the ship had been repaired at that expense, and had completed her voyage. There was, it is true, some difficulty in raising money, Calcutta being an expensive, though a good place for repairs, and the captain attempted, without success, to borrow on hypothecation of the ship, but he never offered to hypothecate the cargo, as he ought to have done. It appears a strong thing to say, that he would have sold the ship for 1,2007. if he had been uninsured. My Lord Chief Justice and my learned brothers seem to think that the jury have concluded this point. That the captain acted honourably there can be no doubt; but I should wish it to be again considered, whether he acted for the benefit of all concerned." This opinion of Mr. Justice RICHARDSON is consistent with all the cases above cited. The difference between him and the rest of the court was on the circumstances of the particular case, not on the principle of its decision. In the case of Robertson v. Clarke (g), in which the Court of Common Pleas considered a sale by the captain justifiable, it appeared that the ship, having been so shattered in a storm that the expense of repairing her would have exceeded her original value, was sold bonâ fide for the benefit of all concerned, and being brought by the purchasers to a place where she might have been completely repaired, had it been deemed advisable, was there broken up. Lord GIFFORD, C. J., in delivering the judgment of the court, said, "This principle may be clearly laid down, that a sale can only be permitted in case of urgent necessity; that it must be bond fide for the benefit of all concerned, and must be strictly watched. Nothing can now impeach the correctness of this principle; and the only question here is, Did the evidence establish that urgent necessity? The jury have (ƒ) 3 Brod. & Bing. 147 ; 6 Moore, 397. (g) 1 Bing. 445; 8 Moore, 622. And see the judgment in Ireland v. Thompson, 4 C. B. 168; Knight v. Faith, 15 Q. B. |