What is a British Ship.

17 & 18 Vict., c. 104, s. 18.

ship which had not yet on board her masts, sails, and steam machinery, was determined to be a "ship."

It must now therefore be considered settled that vessels which in popular language would be termed Ships, are Ships within the meaning of the Merchant Shipping Acts; and also, that whether or not in nautical language the word would be applied to any vessel is immaterial, but that the criterion, apart from the extended meaning given in the definition clause is, whether in the estimation of the public in general the thing is a Ship.""

II.-What is a "British Ship?"

In some instances the power of holding an investigation depends upon the ship to which the casualty has occurred being British. What is a British ship" is therefore a pertinent question. The Merchant Shipping Act of 1854, includes no definition of the expression, but contains a provision which will, for practical purposes, in the cases likely to arise, sufficiently define it; this is as follows:

"No ship shall be deemed to be a British ship unless she belongs wholly to owners of the following description; that is to say;

"(1) Natural born British subjects:

Provided that no natural born subject who has taken the oath of allegiance to any foreign Sovereign or State shall be entitled to be such owner as aforesaid, unless he has subsequently to taking such lastmentioned oath taken the oath of allegiance to Her Majesty, and is and continues to be during the whole period of his so being an owner resident in some place within Her Majesty's dominions, or if not so resident, member of a British factory, or partner in a house actually carrying on business in the United Kingdom or in some other place within Her Majesty's dominions :

"(2.) Persons made denizens by letters of denization, or naturalized by or pursuant to any Act of the Imperial Legislature, or by or pursuant to any Act or Ordinance of the proper legislative authority in any British possession:

"Provided that such persons are and continue to be

during the whole period of their so being owners resident in some place within Her Majesty's dominions, or if not so resident, members of a British factory, or partners in a house actually carrying on business in the United Kingdom or in some other place within Her Majesty's dominions, and have taken the oath of allegiance to Her Majesty subsequently to the period of their being so made denizens or naturalized:

"(3.) Bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession."

Effect of

the above enact

"British ship'

Upon this clause it is to be observed that while it provides that certain requisites shall be possessed by ment. a shipowner before his ship can be a "British ship," yet it does not imply that every ship whose owners comply with those requisites shall be a "British ship." In other words, though by the section ships may be prevented from being treated as "British ships" which at common law would have been such, yet no ship which is not at common law a "British ship" will, under this enactment, become such. What is at common law a "British Ship" is a question wrapt in some obscurity, and any adequate discussion of the at common law. subject would involve an enquiry which would be out of place in this work ("). For the purposes of warranties of a ship's nationality in commercial contracts, such as charter parties, and marine insurances, and for the purpose of determining a ship's national character during a time of war, it would seem from the authorities, that it is not the owner's nationality or allegiance that is to be regarded, but his domicile, or perhaps more accurately, his commercial domicile (5). Thus the ships of British born subjects commercially domiciled in an enemy's country, although these have not put off their British character, or taken an oath of allegiance

(") The Navigation laws, commencing in the reign of Charles II. (12 Car. II., c. 18) which are all now repealed, have a considerable bearing on the point.

(b) The Indian Chief, 3 Rob. Ad. 12; The Nayade, 4 Rob. Ad. 251. Marryat v. Wilson, 8 T.R. 31; In Error 1 B. & P. 430; McConnell v. Hector, 3 B. & P.113; Tabbs v. Bendelack, 4 Esp. 108, 3 B. & P. 207; Arnould on Marine Ins., pp. 123 et seq.; As to what is "commercial domicile" see Dicey on Domicile p. 343; See also Lord Westbury's Judgment in Udny v. Udny, 1 H.L. Sc. C. 441.

National

character dedomicile of

pends upon

owner.

Foreign ship

owners now excluded.

Evidence

of nationality.

Ownership by Corporation.

Growing practice of shipowners to form themselves into

companies.

to the foreign power, have been held not to be British ships ("). In such a case the requirements of the above section would have been complied with, yet it is submitted such ships would not now at common law be British ships. So too, the ships of foreigners commercially domiciled in British territory have been held to be subject to the burdens and entitled to the advantages of English nationality.

Foreign shipowners are now excluded by the 18th. section of the Merchant Shipping Act, 1854 (). The provisions in that section may be usefully compared with the provisions of the Naturalization Act, 1870 (). The flag a ship flies, or the papers she carries, are not conclusive of nationality, they are evidence thereof only. The provisions of section 18 of the Merchant Shipping Act, 1854, may also be compared with sections 5, 9, 12 and 23 of 8 & 9 Vict., c. 89, and sections 13 and 16 of 8 & 9 Vict., c. 88, and sections 62 and 103 of 17 & 18 Vict., c. 104.

Under a former Registry Act () it was held that ownership by a corporation within the United Kingdom, some members of which are foreigners residing abroad, may register ships which are the property of such corporation (), though there were in the Act prohibitions against foreigners being entitled to be owners in whole or in part, directly or indirectly, of any vessel requiring to be registered, on the ground that a British corporation was a British owner and a British subject.

A practice has grown up within the last few years of the owners of ships forming themselves into a limited liability limited liability company with respect to each ship, and instances of such incorporations are becoming every day more frequent. By establishing such a company and registering under s. 18, sub-sec. 3. of the Merchant Shipping Act, 1854, a practical and effective mode of evading the requirements of the Requirements Act as to ownership by British subjects is afforded, and at the same time protection from certain other

of Merchant

Shipping Act,

(a) The President, 5 Rob. Ad., 277.

(b) See ante, page 76.

(c) 33 Vict., c. 14.

(d) 8 & 9 Vict., c. 89.

(e) Reg. v. Arnaud, 9 Q.B. 806.

liabilities attaching to individual shipowners is 1854, 8. 18, thus secured.

evaded.

Question of nationality com

Some complication has been introduced into the question of the nationality of British ships by certain plicated. sections of the Merchant Shipping Act, 1854. The 19th section requires that:

"Every British ship must be registered, except in Merchant Shipmanner hereinafter mentioned:

"(1) Ships registered before this Act comes into operation;

"(2) Ships not exceeding fifteen tons burden employed solely in navigation on the rivers or coasts of the United Kingdom, or on the rivers or coasts of some British possession within which the managing owners of such ships are resident;

"(3) Ships not exceeding thirty tons burden and not having a whole or fixed deck, and employed solely in fishing or trading coastwise on the shores of Newfoundland or parts adjacent thereto, or in the Gulf of St. Lawrence, or on such portion of the coasts of Canada, Nova Scotia, or New Brunswick, as lie bordering on such Gulf." The penalty of non-registration is declared to be that every ship which is by the section required to be registered, shall not, unless registered, be recognised as a "British ship." "British ship." By the 106th section it is further provided that :

Whenever it is declared by this Act that a ship belonging to any person or body corporate qualified according to this Act to be owners of British ships, shall not be recognised as a British ship, such ship shall not be entitled to any benefits, privileges, advantages, or protection usually enjoyed by British ships, and shall not be entitled to use the British flag or assume the British national character; but, so far as regards the payment of dues, the liability to pains and penalties, and the punishment of offences committed on board such ship or by any persons belonging to her, such ship shall be dealt with in the same manner in all respects as if she were a recognised 'British ship.'" (*)

(") Compare 8 & 9 Vict., c. 88, s. 13.

ping Act, 17 & 18 Vict., c. 104,

s. 19.

17 & 18 Vict., c. 104, s. 106.

Object of

sections 19 & 106, above quoted.

Doubtful

result.

The object of the 19th and 106th sections was no doubt to make it every shipowner's interest to register his ship by depriving him of all the advantages to be derived from the British nationality of his ships if he did not register, while leaving him subject to all the disadvantages under which British shipping labours and so to make the register a complete index to British shipping. It may be doubted whether the object of the Act has been accomplished. The latter section (106) is but a partial indication of what is to be the effect of non-registration, and is not a definition of the expression "shall not be recognised as a British ship." The logical conclusion from the two sections is that no vessel which ought to be on the register can in law be treated as British, except for the purposes specifically enumerated in the concluding portion of the 106th section. Among those it should seem that the holding of the Inquiries or Investigations mentioned in this work is not included; and wherever, therefore, it is necessary that a vessel should be a "British ship" before such an Inquiry or for the purposes Investigation can be instituted in respect of her, she she is registered must be on the register or there will be no jurisdic

No juris

diction in regard

to a British ship

of an Investi

gation unless

as such.

Foreign

ships, jurisdiction as to.

tion.

III.-How far do the Enactments apply to Foreign

Ships?

On a perusal of the Merchant Shipping Act, 1854, and the amending Acts, it will be found that the word "ship" is by no means exclusively applied to British ships. In some cases it has been held to be so limited from the special nature of the sections in which it occurs ("). In others again, the enactments. are expressly made applicable to British ships only, or to foreign ships only when within British jurisdiction. Presumptively, the word "ship" would include ships whether British or foreign. In the sections above set out relating to Investigations ("), the word

(*) General Screw Collier Company v. Schurmans, 29 L.J. Ch. 877; 6 Jur. N.S. 883; Cope v. Doherty, 4 K. & I. 367; 27 L.J. Ch. 600; the Girolamo, 3 Hagg. Ad.; the Carl Johann, cited 1 Hagg. Adm. 113, 186; the Wild Ranger, 32 L.J. 49; see also the Amalia, 32 L.J. Adm., 191; Br. & L. 151.

(b) See ante, page 56, et seq.