not be enjoyed advantageously by all without a common consent and agreement among them. To regulate their enjoyment, in case of disagreement, is a hard task which the law of England, not without wisdom, in general declines, leaving it to them either to enjoy their common property by agreement, or to suffer it to remain unenjoyed or perish by their dissension; as being the best method of forcing them, by considerations of individual interest, to a mutual consent for their common benefit. But of ships, which are built for the purposes of trade and intercourse by sea, commercial nations consider the actual employment as a matter, not merely of private advantage to their owners, but of public benefit to the State, and therefore have laid down certain positive rules in order to favour this employment, and to prevent the obstinacy of some of the part-owners from condemning the ship to rot in idleness. It sometimes happens, that several persons become part-owners in a ship under a fixed compact among them for the employment of it, or that by mutual consent they delegate the management of their common concern to one of them, who by a very intelligible figure of speech is called the husband of the ship. When this is the case, nothing is left for the law of the State but to enforce the compact and agreement of the parties, according to its own mode of administering justice in analogous cases.' It is only when the enjoyment of the property has not been thus settled by the parties, that it becomes necessary to inquire, what mode the law of the country has prescribed for the regu lation of it. 2 Some foreign writers on maritime law have laid it down as Foreign Law. a rule, that if a ship is in need of repair, and one part-owner is willing to repair it, and another unwilling, he who is willing may repair it at their common expense; and if the other will not pay his quota within four months, he shall lose his share in the ship and they found their doctrine upon a passage in the Digest, in which the same opinion is delivered with regard to the repairs of a house. But it does not appear that this rule 1 Owston v. Ogle, 13 East. 538; Darby r. Baines, 9 Hare, 369; Servante . James, 10 B. & C. 411. Straccha de Nav. P. II. no. 8. The author cites two others, who had written before him, and is, as usual, has been adopted in practice in any country; and, in case of the poverty of the party, it would be extremely cruel.' The ordinances of Oleron and Wisby are silent on this subject. The ancient Ordinance of Hamburg' requires the minority, in value, of the owners to follow the opinion of the majority, except where the latter vexatiously wish to leave the vessel unemployed; in that case it seems the minority might take measures to send her to sea. The maritime code of Frederick II. of Denmark, 1561, is more curious in the provision which it makes on this point; for the minority might fix the sum of money at which they were willing to sell or to keep the ship, and those who became the owners by this offer, were to pay the price within six weeks, and take to the ship; but if they could not agree upon a price, the majority were to fit out the ship, and send her to sea, at their own risk, and for their own advantage. According to the law of Scotland, the half or major part of the owners may force the others to a compulsory public sale of the ship, or any one of them may have an action of sett in the Admiralty, to fix the price at which his own shares might be purchased by the others, or theirs by him. By the Ordinance of the Hanse 1 Some curious provisions are to be found in the early chapters of the Consolato, with regard to the construction, and also subsequent enlargement, of a ship by part-owners, in case some of them should become defaulters. The master (being himself part-owner) is empowered to mortgage the share of the defaulter for his share of the money requisite to construct the vessel; but for the subsequent enlargement of the ship, although a majority in number of the owners is to decide whether the work shall be done, the minority are not to be compelled, perhaps to their ruin, to advance more money on the ship, and the master is allowed to take in others as part-owners, who are willing to make the necessary advances, Consolato del Mare, cc. 3, 5, & 6-2 Pardess. 50, 54. In the United States the law makes a close approach to the doctrine stated in the text. It gives a lien for work done to a house or ship, in some of the 3 States (ante, p. 59, n. 3), and it presumes that one tenant in common has authority to bind the other for such repairs as are necessary for the preservation and proper employment of the ship, 3 Kent, Comm. 155. 2 Art. 24. This ordinance is variously attributed to the years 1270, 1276, and 1292, 3 Pardess, 337. The ordinance of Lubeck, 1299, Art. 25, is identical in effect, and almost in terms, 3 Pardess. 404. 3 Art. 61-3 Pardess. 241, 262. 4 Stair Inst. 1. 16. 4; Ersk. 3. 3. 56; 1 Bell's Comm. 405; Bell's Law Dict. Sett, action of. The difference, in this respect, between the law of England and of Scotland was under the consideration of the Commissioners for assimilating the mercantile law of the two countries, whose labours issued in the passing of the 19 & 20 Vict. cc. 60 & 97; but though they felt it very desirable that the law should be the same Towns,' if the owners disagree as to the freighting of the ship, the most voices shall carry it, and yet the master may take money on bottomry for those who will not contribute their part to the outfit. The French Ordinance, and now the code," directs, that in all cases, which concern the common interest of the owners, the opinion of the majority in value shall be followed. The ordinance of Rotterdam gives power to a majority, possessed of above half the ship, to let it out on freight, and to bind all the part-owners thereby, and to raise money for the outfit, either by borrowing it on bottomry, or by disbursing for the shares of the other owners, who appear unwilling to contribute after due notice. And the same ordinance' even authorises the owners of above half the ship to sell it for the general account. The law of this country appears to possess an important Law of England. advantage over all the ordinances that have been cited. It authorises the majority in value to employ the ship "upon any in both, they were unable to recommend an alteration in the law of either on this point. See their Second Report. The principle involved in the Scotch action of Sett, seems to have been familiarly known in the law of Iceland, as appears by extracts given by M. Par dessus from codes that have been handed down from those times of high civilisation which made that island remarkable in Europe, during the middle ages. There is also a provision to be found there to this effect: If none of the part-owners should be rich enough to buy the ship as to which they had differed, and no other person should be willing to buy it, then those partowners who wished to employ the ship might do so, distributing afterwards to the dissentients their share of the freight, subject to the deduction of expenses, as if the employment had been by common consent, 3 Pardess. 62.84. This provision, though enforcing what it calls the ancient usage, appears among the laws of the Hanse-Towns for the first time in the Ordinance of 1591, art. 57; and it is reproduced in 2 Liv. 2, tit. 8, Des Propriétaires, 3 Code de Com. art. 220. And in the absence of any agreement in writing to the contrary, one half the proprietory in interest may force à sale of the ship, ibid. Art. 172-2 Magens, 108. See also, on this point, Wesketh on Insurance, tit. Bottomry, § 3 & 4. 5 Art. 171-2 Magens, 108. probable design; "' while it takes care to secure the interest of the dissentient minority from being lost in the employment, of which they disapprove. For this purpose it has been the practice of the Court of Admiralty, from very remote times, to take bond from those, who desire to send the ship on a voyage, secured in a sum equal to the value of the shares of the others, who disapprove of the adventure, either to bring back and restore to them the ship, or to pay them the value of their shares. When this is done, the dissentient part-owners bear no portion of the expenses of the outfit; are not entitled to a share in the profits of the undertaking; and the ship sails wholly at the charge and risk, and for the profit of the others. This security may be taken upon a warrant, obtained by the minority, to arrest the ship; and it is incumbent on the minority to have recourse to such proceedings, as the best means of protecting their interests; or, if they forbear to do so, at all events they should expressly notify their dissent to the others, and, if possible, to the merchants also, who freight the ship. It has been decided, that one part-owner cannot recover damages against another by an action at law, upon a charge of fraudulently and deceitfully sending the ship to foreign parts, where she was lost. And it has also been decided, in the Court of Chancery, that one part-owner cannot have redress in equity against another, for the loss of a ship sent to sea without his assent. These decisions are consonant to the 1 Molloy de Jur. Mar. bk. 2, c 1, § 2. 2 The Apollo, Tennant, 1 Hagg. Ad. 306, 311; The Margaret, Tomison, 2 Hagg. Ad. 275, 278; Haly v. Goodson, 2 Mer. 77; 2 Dod. Ad. 420. In the matter of Blanshard and others, 2 B. & C. 244, 249. There is no similar provision in the law of Scotland; there was no such process known to the Admiralty there; so that a protest availed the dissentient owners nothing, Stair, 1. 16. 4. See form of such a security, Appendix. 3 So held, after reference to Sir Leoline Jenkins, who certified this to be the Law Marine and the course of the Admiralty, Anon. 2 Chan. Ca. 36. Trin. T. 32 Car. 2; and by Holt Ch. Boson v. Sandford, Carth. 63. J. in The case of Davis v. Johnston, 4 Sim. 539, 5 Graves v. Sawcer, Sir T. Raym. 15; 1 Keb. 38, and 1 Lev. 29. Strelly v. Winson, 1 Vern. 297; Skin. 230. general rule of law; if one tenant in common deprives the other of possession of the common chattel, and carries it away, no action lies against him; but if he destroys it, he is liable to be sued by his companion. In a case before Chief Justice King, where one part-owner had forcibly taken a ship out of the possession of another, secreted it, and changed its name, and afterwards a third person, obtaining possession, sent it to Antigua, where it was sunk and lost; the chief justice left it to the jury to say, under all the circumstances of the case, whether this was not a destruction of the ship by the defendant; and they finding it to be so, the plaintiff recovered the value of his share. The Court of Common Pleas afterwards approved of the direction of the chief justice. If a part-owner expressly notify his dissent beforehand, the Court of Chancery will not compel him afterwards to contribute to a loss. If the minority happen to have possession of the ship, and refuse to employ it, the majority also may, by a similar warrant, obtain possession of it, and send it to sea, upon giving such security. If a loss should subsequently happen, it is within the jurisdiction of the Court of Admiralty, upon application for that purpose, to declare the bond forfeited; but as it is not always in the power of the owners to prove the actual loss, the Court will, under proper circumstances, declare the bond forfeited if the vessel does not return within a time certain; and if she returns within the time, will dismiss the parties from the effect of the monition." It was indeed formerly doubted in Westminster Hall, whether Admiralty juris 1 Co. Litt. 200 a; 2 Wms. Saund. 470, 476; Ex parte Machell, 1 Rose, 447; 2 V. & B. 216, S. C. Barnardiston v. Chapman and another, 1 Geo. 1; Sir Peter King's Cases, MS. The cause was twice tried: at the first trial a verdict was found for the plaintiff, subject to a case, which stated only the title of the parties, and that the defendants by force took the ship out of the plaintiff's possession, and carried it The case away. was argued at the chambers of the Chief Justice, before him, and Tracy and Dormer, JJ., and a new trial ordered by consent. The trial men diction questioned. |