United States, in a recent case, allowed an attachment of personal property to prevail against a mortgage which was valid by the law of the owner's domicile, but not by the law where the property happened to be situated, on the ground that the principle of comity yields when the laws and policy of the State where the property is located have prescribed a different rule of transfer from that of the State where the owner lives.1 § 299. The Subject concluded; whether Lex Situs shall prevail. It is thus perceived that the old rule of the owner's domicile applied to legal conflicts concerning personal property fails in these days to give full satisfaction. Mr. Wharton, indeed, after adducing strong arguments in favor of the law of local situation as the controlling principle both with reference to movables and immovables, states the present rule of international law to be that "movables, when not massed for the purposes of succession or marriage transfer, and when not in transit or following the owner's person, are governed by the lex situs, except so far as the parties interested may select some other law." 2 This is, so far as English and American precedents go, rather a rule of promise than of fulfilment, for our courts are far from accepting it, though the drift is apparently in that direction; and even the principle as thus stated indicates that the law of local situation is by no means so precise in its application to personal as to real property. Whatever exception may have been made in particular instances, the general principle is still usually stated, in the language of Judge Story, that personal property follows the law of the owner's domicile. The present uncertainty of the whole subject will appear more evident as one proceeds to examine the leading classes of personal property at the common law. 1 Green v. Van Buskirk, 7 Wall. 139. See Liverpool Marine Credit Co. v. Hunter, L. R. 4 Eq. 62; Mumford v. Canty, 50 Ill. 370. 2 Whart. Confl. Laws, § 311. The reservation as stated in the second edition of this work (1881) is as follows: "Though in some jurisdictions an exception may be made in cases where all the parties, being subject to a common domicile, are held to be bound by the laws of that domicile." Wharton, ib. Considering, however, the limited scope of our present volume, we shall not pursue this subject into its details, but refer the reader to the latest editions of the standard textbooks already referred to, where he may expect to find this interesting subject discussed at length.1 1 Here we may add that a decision in the House of Lords in 1870 tends to regard the lex rei sitæ as to personal property with favor. The point decided, however, is that, when a thing is situated within the jurisdiction of the court, proceedings in rem give a title to it against all the world; and not otherwise. The rule is thus stated by Mr. Justice Blackburn: "Where a tribunal, no matter whether in England or a foreign country, has to determine between two parties and between them only, the decision of that tribunal, though in general binding between the parties and privies, does not affect the right of third parties; and if, in execution of the judgment of such a tribunal, process issues against the property of one of the litigants, and some particular thing is sold as being his property, there is nothing to prevent any third person setting up his claim to that thing, for the tribunal neither had jurisdiction to determine, nor did determine, anything more than that the litigant's property should be sold, and did not do more than sell the litigant's interest, if any, in the thing. But when the tribunal has jurisdiction to determine, not merely on the rights of the parties, but on the disposition of the thing, and does, in the exercise of that jurisdiction, direct that the thing, and not merely the interest of any particular party in it, be sold, or transferred, the case is very different." Castrique v. Imrie, L. R. 4 H. L. (1870) 414. See Whart. Confl. §§ 828, 829; Liverpool Marine Credit Co. v. Hunter L. R. 3 Ch. 479; Simpson v. Fogo, 1 H. & M. 195. The later American cases are by no means satisfactory as to the disposition of personal property. The old rule that the owner's domicile governs is still constantly asserted, though often by way of mere dictum. See Wharton Confl. § 353, 2d ed. and cases cited. See also the carefully expressed note of Professor Bigelow to Story Confl. 8th ed. (1883) § 383. Clearly, however, the old fiction of law that personal property follows the domicile of the owner will be forced to yield, at the present day, whenever the purposes of justice require it; and, furthermore, we shall find that each independent State or nation seeks in a matter of doubtful controversy to apply any and all property under its control for the primary benefit of its own citizens, as against foreigners; though where all are citizens or all foreigners the rule becomes fluctuating and capricious. What the Supreme Court of the United States, as umpire between equal and contending States, would decide, is not conclusive as to what the courts of a sovereign nation might decide, were the controversy between itself and another sovereign nation. Self-interest will sway the policy of independent governments, so long as no common arbiter of peace is found to adjust their quarrels. We have, in fine, hardly progressed with the long-drawn controversy further than to enable the reader to observe, in the language of Mr. Justice Davis, in a recent very important case, that how far the transfer of personal property, lawful in the owner's domicile, will be respected in the courts of the country where the property is located and a different rule prevails, is "a vexed question, on which learned courts have differed." See Green v. Van Buskirk, 7 Wall. 139; Story Confl. 8th ed. § 383, Bigelow's note. Writers of high repute would, indeed, gladly pilot us over to the lex rei sitæ as the true haven. But the courts still tarry. And it must be conceded that while the rei sita doctrine, if generally adopted, furnishes a test the simplest possible, and the easiest of application, that test is nevertheless certainly the most promotive of international selfishness. What is the probable result of controversies like that on which the English case of Simpson v. Fogo was decided, if not that vessels proceeding from port to port would be confiscated and sold by judicial process, and resold in each new country, until the temporary owner could find no use for his property save in allowing it to rot in the dock-yard at home? Those who contend for the doctrine of lex rei site own that it is not and ought not to be applied with the same force to movables as to immovable property. They admit that, in a number of instances where goods and chattels are concerned, the exception in favor of the owner's domicile or the place of contract must still prevail. Thus, there is the case of goods in transit; and in this connection a late Continental writer calls attention to the fact that the doctrine of the lex rei sita with reference to movables rests on the assumption of continuousness of location in a certain territory. See Whart. Confi. §§ 298, 353, 354, citing Bar. Mr. Bigelow (note to Story Confl. 8th ed. § 383), after a careful review of the latest cases down to 1883, observes that while the progress towards 384 the lex rei sita in questions of movables has been firm in the Supreme Court of the United States, the courts have not all reached this position, and the law is still in a state of transition unless the authority of Green v. Van Buskirk is final. See Bentley v. Whittemore, 19 N. J. Eq. 462; Paine v. Lester, 44 Conn. 196; Pritchard v. Norton, 106 U. S. 124. Since the above note was written (1883) the Supreme Court of the United States, in reaffirmance of Green v. Van Buskirk supra, has decided that personal property, subject to a lien claim under the statute of one State is, when sent into another State and received by a broker who has no knowledge of such lien, subordinate to the laws of the latter State where the property is now situated. Walworth v. Harris, 129 U. S. 355. Cf. 147 U. S. 476. As to stock, the rights of the stockholder or beneficiary, whatever his domicile, must depend upon the law of the State which created the company, and in reference to whose laws the contract of subscriber was made. Glenn v. Liggett, 135 U. S. 533. In corporation cases of this sort, the law of contract as entered into, or of the place where the contract was to be performed, becomes an ingredient of the comity and increases the confusion, where one wishes to regard the personal property as such. See 128 U. S. 195. The latest English inclination appears to be, in questions of a purchaser's title or ownership generally of a bill or note or of a certificate of stock, to prefer applying English to foreign law. Williams v. Colonial Bank, 15 App. Cas. 267; Alcock v. Smith [1892] 1 Ch. 238. Cf. [1892] 1 Ch. 219, 226, which (in a case of debentures) explains Simpson v. Fogo, supra. PART III. LEADING CLASSES OF PERSONAL PROPERTY. CHAPTER I. SHIPS AND VESSELS. Of § 300. Chattels Corporeal first to be considered; Ships or Vessels and Money. - Personal things of a corporeal nature, for the most part, such as corn, jewels, and merchandise, need not claim special consideration in this treatise. animals we have spoken in another connection.1 But there are two classes of corporeal chattels which should here be noticed at some length. One of these consists of ships or vessels, the other of money. § 301. Ships or Vessels; History of the Law of Shipping. Ships, as the reader has already seen, are chattels, though made to plough the waters and rarely taken for transportation from place to place like land movables. And such peculiar solemnities attending their transfer are to be found under the registry laws that some have even inclined to the belief that they are not chattels at all; it being undoubtedly true that the law of shipping is older than the law of freeholds and chattels; older than Bracton and Fleta; older in some respects than the civil law of Rome itself, as prevalent in the times of Justinian. For the famous imperial Digest pays tribute to the maritime laws of Rhodes, where commerce flourished at least a thousand years before the Chris1 Supra, §§ 48-51. See also Volume II. as to Estrays, &c. VOL. I. 25 385 t tian era. Yet the Roman civil law, the Consolato del Mare, the Laws of Oleron, the Laws of Wisbuy, Le Guidon, the Marine Ordonnance of Louis XIV., the Commentaries of Valin, and the treatises of distinguished writers of Continental Europe, among whom Pothier is conspicuous, shaped and directed the growth of our commercial system. The usage of merchants, or rather commercial usage thus borrowed from abroad, reinforced the scanty store of old common-law precedents, and in time enabled our later jurists, such as Mansfield of England and Story of the United States, to announce those legal principles which are now recognized as constituting the Anglo-Saxon law of shipping, and which must continue to develop with the rapid growth and increasing wants of modern commerce.1 2 § 302. The Ship a Peculiar Chattel. We say, then, that a ship is a chattel; or, better still, that it is personal property, a movable and not real property. But it is a very peculiar kind of property, in law and in fact; and so it has been treated from the time when insignificant craft carried merchandise between neighboring ports on the Mediterranean Sea, to this day, when we see large vessels built, equipped, and freighted to circumnavigate the globe. We use here the word "ship," too, in its general sense, as denoting any vessel employed in navigation, whether a ship of war or a merchant ship, whether a steamship or a sailing vessel, whether a brig, a schooner, a sloop, or a three-masted vessel.3 The ship's element is not the land, nor can vessels of the larger sort attend, literally, the person of the owner; but when we transport a small boat over land the chattel character of all such property becomes obvious. Our brief exami § 303. Division of the Present Chapter. nation of the law relating to ships, in the present chapter, will lead us to consider (1) the title to a ship and modes of transfer; (2) the persons employed in and about a ship; (3) the 1 See 1 Pars. Shipping, c. 1; Abb. Shipping, preface. Maritime law is only so far operative in any country as it is adopted by the laws and usages of that country. The Scotland, 105 U. S. 24. 2 See Jacobsen's Sea Laws, 21; 1 Pars. Shipping, c. 2. 8 See Bouv. Dict. "Ship." |