other according to the date at which each instrument is recorded in M. S. Act, the register books, and not according to the date of each instrument itself.

1854.

not to be

70. A mortgagee shall not by reason of his mortgage be deemed to Mortgagee be the owner of a ship or any share therein, nor shall the mortgagor deemed be deemed to have ceased to be owner of such mortgaged ship or owner. share, except in so far as may be necessary for making such ship or share available as a security for the mortgage debt.

to have

power of

71. Every registered mortgage shall have power absolutely to dis- Mortgagee pose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchase-money; but, if there are sale. more persons than one registered as mortgagees of the same ship or share, no subsequent mortgage shall, except under the order of some Court capable of taking cognizance of such matters, sell such ship or share without the concurrence of every prior mortgagee.

not affected

72. No registered mortgage of any ship or of any share therein Rights of shall be affected by any act of bankruptcy committed by the mort- mortgagee gagor after the date of the record of such mortgage, notwithstanding by any act such mortgagor at the time of his becoming bankrupt may have in of bankhis possession and disposition, and be reputed owner of, such ship or mortgagor. share thereof; and such mortgage shall be preferred to any right, claim, or interest in such ship or any share thereof which may belong to the assignees of such bankrupt.

ruptcy of

73. A registered mortgage of any ship or share in a ship may be Transfer of transferred to any person, and the instrument creating such transfer mortgages. shall be in the form marked K. in the schedule hereto; and, on the production of such instrument, the registrar shall enter in the register book the name of the transferee as mortgagee of the ship or shares therein mentioned, and shall by memorandum under his hard record on the instrument of transfer that the same has been recorded by him, stating the date and hour of such record.

terest of

or marriage.

74. If the interest of any mortgagee in any ship or in any share Transmistherein becomes transmitted in consequence of death, bankruptcy, sion of inor insolvency, or in consequence of the marriage of any female mortgagee mortgagee, or by any lawful means other than by a transfer accord- by death, ing to the provisions of this Act, such transmission shall be authen- bankruptcy, ticated by a declaration of the person to whom such interest has been transmitted, made in the form marked L. in the schedule hereto, and containing a statement describing the manner in which and the party to whom such property has been transmitted; and such declaration shall be made and subscribed, if the declarant resides at or within five miles of the custom house of the port of registry, in the presence of the registrar, but if beyond that distance in the presence of any registrar or of any justice of the peace, and shall be accompanied by such evidence as is herein before required to authenticate a corresponding transmission of property from one registered owner to another.

mortgage.

75. The registrar, upon the receipt of such declaration and the Entry of production of such evidence as aforesaid, shall enter the name of the transmitted person or persons entitled under such transmission in the register book as mortgagee or mortgagees of any ship or share in respect of which such transmission has taken place.

M. S. Act, 1854.

Powers of mortgage

be conferred by certi

CERTIFICATES OF MORTGAGE AND SALE.

76. Any registered owner, if desirous of disposing by way of mortgage or sale of the ship or share in respect of which he is registered and sale may at any place out of the country or possession in which the port of registry of such ship is situate, may apply to the registrar, who shall thereupon enable him to do so by granting such certificates as are hereinafter mentioned, to be called respectively certificates of mortgage or certificates of sale, according as they purport to give a power to mortgage or a power to sell.

ficate.

Requisites for certificates of mortgage and sale.

Restrictions

on certificates of mortgage and sale.

Forms of

of mortgage and sale.

77. Previously to any certificate of mortgage or sale being granted, the applicant shall state to the registrar, to be by him entered in the register book, the following particulars, (that is to say),

(1.) The names of the persons by whom the power mentioned in such certificate is to be exercised, and in the case of mortgage the maximum amount of charge to be created, if it is intended to fix any such maximum, and in the case of a sale the minimum price at which a sale is to be made, if it is intended to fix any such minimum :

(2.) The specific place or places where such power is to be exercised, or if no place be specified, then that it may be exercised anywhere, subject to the provisions hereinafter contained:

(3.) The limit of time within which such power may be exercised. 78. No certificate of mortgage or sale shall be granted so as to authorize any mortgage or sale to be made

At any place within the United Kingdom, if the port of registry of the ship be situate in the United Kingdom; or at any place within the same British possession, if the port of registry is situate within a British possession; or

By any person not named in the certificate.

79. Certificates of mortgage and sale shall be in the forms marked certificates respectively M. and N. in the schedule hereto, and shall contain a statement of the several particulars herein before directed to be entered in the register book, and in addition thereto an enumeration of any registered mortgages or certificates of mortgages or sale affecting the ships or shares in respect of which such certificates are given.

Rules as to certificates

of mortgage.

80. The following rules shall be observed as to certificates of mortgage, (that is to say,)

(1.) The power shall be exercised in conformity with the direc-
tions contained in the certificate:

(2.) A record of every mortgage made thereunder shall be in-
dorsed thereon by a registrar or British consular officer:
(3.) No mortgage bona fide made thereunder shall be impeached
by reason of the person by whom the power was given dying
before the making of such mortgage:

(4.) Whenever the certificate contains a specification of the place
or places at which, and a limit of time not exceeding twelve
months within which, the power is to be exercised, no
mortgage bona fide made to a mortgagee without notice shall
be impeached by reason of the bankruptcy or insolvency of
the person by whom the power was given:

1854.

(5.) Every mortgage which is so registered as aforesaid on the M. S. Act,
certificate shall have priority over all mortgages of the same
ship or share created subsequently to the date of the entry
of the certificate in the register book; and, if there be more
mortgages than one so indorsed, the respective mortgagees
claiming thereunder shall, notwithstanding any express,
implied, or constructive notice, be entitled one before the
other according to the date at which a record of each instru-
ment is indorsed on the certificate, and not according to the
date of the instrument creating the mortgage:

(6.) Subject to the foregoing rules, every mortgagee whose mort-
gage is registered on the certificate shall have the same
rights and powers and be subject to the same liabilities as
he would have had and been subject to if his mortgage had
been registered in the register book instead of on the
certificate:

(7.) The discharge of any mortgage so registered on the certificate
may be indorsed thereon by any registrar or British consular
officer, upon the production of such evidence as is hereby
required to be produced to the registrar on the entry of the
discharge of a mortgage in the register book; and, upon such
indorsement being made, the estate, if any, which passed to
the mortgagee shall vest in the same person or persons in
whom the same would, having regard to intervening acts
and circumstances, if any, have vested if no such mortgage
had been made:

(8.) Upon the delivery of any certificate of mortgage to the regis-
trar by whom it was granted he shall, after recording in the
register book in such manner as to preserve its priority any
unsatisfied mortgage registered thereon, cancel such certifi
cate, and enter the fact of such cancellation in the register
book; and every certificate so cancelled shall be void to all
intents.

81. The following rules shall be observed as to certificates of sale, Rules as to (that is to say,)

(1.) No such certificate shall be granted except for the sale of an entire ship:

(2.) The power shall be exercised in conformity with the directions contained in the certificate:

(3.) No sale bona fide made to a purchaser for valuable considera-
tion shall be impeached by reason of the person by whom
the power was given dying before the making of such sale:
(4.) Whenever the certificate contains a specification of the place
or places at which, and a limit of time not exceeding twelve
months within which, the power is to be exercised, no sale
bona fide made to a purchaser for valuable consideration
without notice shall be impeached by reason of the bank-
ruptcy or insolvency of the person by whom the power was
given:

(5.) Any transfer made to a person qualified to be the owner of
British ships shall be by bill of sale in the form herein before
mentioned, or as near thereto as circunstances permit :
(6.) If the ship is sold to a party qualified to hold British ships,

A A

certificates of sale.

M. S. Act, 1854.

Revocation of certifi

the ship shall be registered anew; but notice of all mortgages enumerated on the certificate of sale shall be entered in the register book:

(7.) Previously to such registry anew there shall be produced to
the registrar required to make the same bill of sale by which
the ship is transferred, the certificate of sale, and the certifi-
cate of registry of such ship:

(8.) Such last mentioned registrar shall retain the certificates of
sale and registry, and, after having indorsed on both of such
instruments an entry of the fact of a sale having taken place,
shall forward the said certificates to the registrar of the port
appearing on such certificates to be the former port of registry
of the ship; and such last-mentioned registrar shall there-
upon make a memorandum of the sale in his register book,
and the registry of the ship in such book shall be considered
as closed, except as far as relates to any unsatisfied mort-
gages or existing certificates of mortgage entered therein :
(9.) On such registry anew the description of the ship contained
in her original certificate of registry may be transferred to
the new register book, without her being re-surveyed, and
the declaration to be made by the purchaser shall be the
same as would be required to be made by an ordinary trans-
feree :
(10.) If the ship is sold to a party not qualified to be the owner
of a British ship, the bill of sale by which the ship is trans-
ferred, the certificate of sale, and the certificate of registry
shall be produced to some registrar or consular officer, who
shall retain the certificates of sale and registry, and, having
indorsed thereon the fact of such ship having been sold to
persons not qualified to be owners of British ships, shall
forward such certificates to the registrar of the port appear-
ing on the certificate of registry to be the port of registry-of
such ship; and such last-mentioned registrar shall thereupon
make a memorandum of the sale in his register book; and
the registry of the ship in such book shall be considered as
closed, except so far as relates to any unsatisfied mortgages
or existing certificates of mortgage entered therein :
(11.) If upon a sale being made to an unqualified person default
is made in the production of such certificates as are men-
tioned in the last rule, such unqualified person shall be con-
sidered by British law as having acquired no title to or
interest in the ship; and further, the party upon whose
application such certificate was granted, and the persons
exercising the power, shall each incur a penalty not exceed-
ing one hundred pounds :

(12.) If no sale is made in conformity with the certificate of sale,
such certificate shall be delivered to the registrar by whom
the same was granted; and such registrar shall thereupon
cancel it, and enter the fact of such cancellation in the
register book; and every certificate so cancelled shall be
void to all intents.

83. The registered owner for the time being of any ship or share therein in respect of which a certificate of mortgage or sale has been

granted, specifying the place or places where the power thereby given M. 8. Act, is to be exercised, may, by an instrument under his hand made in the 1854. form O. in the schedule hereto, or as near thereto as circumstances cates of permit, authorize the registrar by whom such certificate was granted mortgage to give notice to the registrar or consular officer, registrars or consular and sale. officers, at such place or places, that such certificate is revoked; and notice shall be given accordingly; and all registrars or consular officers receiving such notice shall record the same, and shall exhibit the same to all persons who may apply to them for the purpose of effecting or obtaining a mortgage or transfer under the said certificate of mortgage or sale; and, after such notice has been so recorded, the said certificate shall, so far as concerns any mortgage or sale to be thereafter made at such place, be deemed to be revoked and of no effect; and every registrar or consular officer recording any such notice shall thereupon state to the registrar by whom the certificate was granted whether any previous exercise of the power to which such certificate refers has taken place.

registry not

91. The transfer of the registry of any ship in manner aforesaid Transfer of shall not in any way affect the rights of the several persons interested, to affect either as owners or mortgagees, in such ship, but such rights shall in rights of all respects be maintained and continue in the same manner as if no owners. such transfer had been effected. See sec. 12 of the 18 & 19 Vict. c. 91.

THE MERCHANT SHIPPING ACT AMENDMENT

ACT, 1862.

25 & 26 VICT. c. 63.

REGISTRY AND MEASUREMENT OF TONNAGE (PART II. OF MERCHANT

SHIPPING ACT, 1854).

Merchant

3. It is hereby declared that the expression "beneficial interest," Equities not whenever used in the second part of the Principal Act, includes excluded by interests arising under contract and other equitable interests; and the shipping intention of the said Act is that, without prejudice to the provisions Act. contained in the said Act for preventing notice of trusts from being entered in the register book or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by the said Act on registered owners and mortgagees, and without prejudice to the provisions contained in the said Act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal property. See secs. 37 (2,)—38 (5,)—39 (5,)—100.