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liens

Effect of courts of prize generally look only to the legal title; and when, from the papers, the right of property in a captured ship or cargo appears to be vested in an enemy, no equitable or secret liens of a neutral or a subject can be made the foundation of a claim to defeat or vary the rights of the captors. The only exception to this rule, is where the lien is immediately and visibly incumbent upon the property, and consequently, is one which the party claiming its benefit has the means of enforcing without resort to legal process. Of such a nature is the freight due to the owner of the ship, for the ship-owner has the cargo in his possession, subject to his demand of freight money, by the general law, independent of any contract. The distinction between the two classes of liens is properly expressed in the language of the civil law, by regarding one as a jus ad rem, and the other as a jus in re.1

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§ 19. It is stated by Wheaton that a certificate of registry is the proof naturally to be looked to for the national ownership character of the ship in addition to the following proofs:Ist, the Passport, or Sea Letter. This is a permission from the neutral State to the master of the vessel to proceed on the intended voyage, and usually contains his name and residence, the name, description, and destination of the vessel, with such other matter as the local law and practice require. 2nd, the Muster Roll, or Rôle d'Equipage, containing the names, ages, quality, and national character of every one of the ship's company. 3rd, the Charter Party; if the vessel has been let to hire. 4th, the Bills of Lading, by which the master

A great distinction has always been made, by the nations of Europe, between ships and goods. Some countries went so far as to make the flag and pass of a ship conclusive on the cargo also, but the Courts of Great Britain never carried the principle to that extent. They held the ship to be bound by the character imposed on it, by the authority of that Government from which all the documents issue, but that goods, which have no such dependence upon the authority of the State, may be differently considered. As to whether the Courts will make the separation, it may be said, that in time of peace such separations will generally be made, but in time of war a more strict principle may become necessary. See the 'Elizabeth' (5 Rob., 2), and post., ch. xxiii. § 19, the distinction drawn by the Supreme Court of the U.S. between that case and the 'Julia' (8 Cranch., 181).

The San José Indiano,' 2 Gallis R., 284; the 'Frances,' 18 Cranch., 418; the 'Tobago, 5 Rob., 218; the Marianna,' 6 Rob., 24.

2 The case of Le Cheminant v. Pearson, 4 Taunt., 367, decides that a register is not a document recognised by the law of nations.

acknowledges the receipt of the goods specified therein, and promises to deliver to the consignee or his order. 5th, the Invoices, which contain the particulars and prices of each parcel of the goods, with a statement of the charges thereon. 6th, the Log-book, or ship's Journal, which contains an accurate account of the vessel's course, with a short history of the occurrences during the voyage. 'As the whole of these papers may be fabricated,' says Wheaton, their 'presence does not necessarily imply a fair case; neither does the absence of any of them furnish a conclusive ground of condemnation, as has been most unjustly provided by the ordinances of certain belligerent powers. As they furnish presumptive evidence only of the property in the vessel and cargo belonging to those to whom it purports to belong; so, on the other hand, their absence1 affords only presumptive evidence of the existence of enemy interests, which may be rebutted by other proof of a positive nature, accounting for the want of them, and supplying their place, according to the circumstances of each particular case.' At one period it was customary for the United States to issue sea letters and certificates of ownership to vessels owned by American citizens, whether entitled or not to registry and enrolment. But, since the Acts of March 26 and June 30, 1810, these particular documents were not often issued. With respect to ships which have been transferred abroad, a bill of sale is the proper evidence of ownership. A bill of sale,' says Lord Stowell, is the proper title to which the maritime courts of all countries would look. It is the universal instrument of the transfer of ships in the usage of all maritime countries.' 2

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A Bill of Health, or certificate properly authenticated, If it be clearly evident that a vessel, although without papers, is neutral, her detention by a ship of war is not justifiable, but in the absence of that clear evidence, a ship of war is justified in detaining a ship when the more important papers of the latter are wanting; the same, if those papers are irregular or inconsistent with each other, or with the statements of the master (the 'Sarah,' 3 Rob., 330; the 'Anna,' 5 Rob., 383; Nuestra Signora de Piedade,' 6 Rob., 43. As to regularity of papers, false papers, and spoliation, see post., chaps. xxiii. and xxvii. as to endorsement of a ship's papers, see the Hendrick and Maria,' 1 Rob., 82, and 4 Rob., 53; as to marking of load line on British ships, see 39 and 40 Vict., c. 80.

2 Kent, Com. on Am. Law, vol. i. p. 130; Wheaton, On Captures, pp. 65, 66; Duer, On Insurance, vol. i. pp. 550, 551; the Sisters,' 5 Rob., 155; the 'Pizarro,' 2 Wheaton R., 227; the Amiable Isabella,' 6 Wheaton R., 1; the 'Nereide,' 9 Cranch., 388.

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that the ship comes from a place where no contagious distemper prevails, and that none of the crew, at the time of her departure, were infected with such distemper, is to be found among the papers of the ships of many nations.1

The following list, extracted from the excellent ' Manual of Naval Prize Law' of Sir Godfrey Lushington, K.C.B., specifies what are the various papers in addition to the custom house clearance, the manifest of cargo, and the bills of lading which may usually, although not necessarily, be found on board the vessels of the principal Maritime States, viz.:-Austria.-Scontrino ministeriale (certificate of registry). Patente sovrana (royal license). Giornale di navigazione (official log-book). Scartafaccio, giornale di navigazione cotidiano (ship's log-book). Charter party, if vessel is chartered. Ruolo dell' equipaggio (list of crew). Bill of health. Denmark. - Royal passport, in Latin, with translation (available only for the voyage for which it is issued, unless renewed

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In the treaties which were from time to time made with the different States of Barbary (see vol. i. pp. 274 and 445), it was agreed that the subjects of Great Britain should pass the seas unmolested by the corsairs of those States; and for ascertaining what ships belonged to British subjects it was provided that they should produce a pass under the seal of the Admiralty of Great Britain. In pursuance of these treaties passes were made out at the Admiralty in the following form :-By the Commissioners for executing the office of Lord High Admiral of the United Kingdom of Great Britain and Ireland, &c. Suffer the [schooner “Perseverance," of Exeter, as described in the annexed certificate of registry] to pass with her company, passengers, goods, and merchandise, without any let, hindrance, seizure, or molestation, the said ship appearing unto us by good testimony to belong to the subjects of his Majesty. Given under our hands and the seal of office of Admiralty the [twenty-fourth] day of [September] in the year of our Lord one thousand eight hundred [and thirty-three]. To all persons whom these may concern. command of their Lordships, [signed] John Barrow.' It will be noticed that the pass contains very few words. It was written on parchment, with ornaments at the top, through which a scolloped indenture was made. The scolloped tops were sent to Barbary, and, being put into the hands of the corsairs, the commanders of them were instructed to suffer all persons to pass who had passes that would fit these scolloped tops. These passes were used in the trade to the East Indies, Africa, the Levant, Spain, Italy, and to every part of the Mediterranean; from the particular need of them in the latter they obtained the name of Mediterranean passes. They were granted to none but to British-built ships, or ships made free, navigated with a master and three-fourths of the mariners British subjects, or foreign Protestants made denizens. Each pass bore an impressed five-shilling stamp. Rules to govern Mediterranean passes were made by Order in Council in 1722. They are referred to in 6 Geo. IV., c. 110, s. 36, and in 3 and 4 Will. IV., c. 55, s. 6. By 4 Geo. II., c. 18, it is felony to forge or counterfeit a Mediterranean pass.

by attestation). Certificate of ownership. Build brief. Admeasurement brief. Burgher brief (certificate that the master is a Danish subject). Charter party (if vessel is chartered). Muster roll. Finland.-Materbref (certificate of measurement). Belbref (certificate of build). Journalen (ship's logbook). Charter party (if vessel is chartered). Folkpass (crew list). France.-L'acte de francisation (ie. certificate of nationality). Le congé (sailing license). Le journal timbré (stamped log-book signed by consul on clearance of vessel). Le journal du bord (ship's log-book). National flag. Charter party (if vessel is chartered). Le rôle d'équipage (list of crew). Bill of health. Germany.—Messbrief (certificate of measurement). Beilbrief (builder's certificate). Seepass (sailing license). Journal (ship's log-book). Charter party (if vessel is chartered). Musterrolle (muster roll). Great Britain. Certificate of registry.' Official log-book. Ship's log-book. National flag and code of signals. Code of signals and numeral flags. Charter party (if vessel is chartered). Shipping articles. Muster roll. Bill of health. Holland.Meetbrief (certificate of tonnage). Bijlbrief (certificate of ownership). Zeebrief (sailing license). Journal (ship's logbook). National flag. Charter party (if vessel is chartered). Monster-rol (muster roll). Bill of health. Italy.-Scontrino ministeriale (certificate of registry). Patente sovrana (royal license). Giornale di navigazione (official log-book). Scartafaccio, giornale di navigazione cotidiano (ship's log-book). Charter party (if vessel is chartered). Ruolo dell' equipaggio (list of crew). Bill of health. Norway.-Bülbrev (certificate of build). Maalebrev (certificate of measurement). Nationalitetsbrevüs (certificate of nationality). Journale (ship's logbook). Charter party (if the vessel is chartered). Muster roll or mandskabsliste, or volkelist (list of crew). Vessels pur

1 Where a vessel, not on the register, becomes at a foreign port the property of persons qualified to be owners of a British vessel, the British consular officer there may grant a provisional certificate, to be in force for six months or until she arrives at some port where there is a British registrar; and this certificate is to contain the name of the vessel, the time and place of her purchase, and the names of her purchasers, the name of her master, and the best particulars as to her tonnage, build, and description that he is able to obtain. (17 and 18 Vict., c. 104, sec. 54.)

A pass with the force of a certificate within the time and limits mentioned therein, may be granted in the case of a British vessel before registry to proceed from any one port or place to any other, both being in her Majesty's dominions. (Ibid. sec. 98.)

Laws of

States

chased by Norwegian subjects in foreign ports are permitted for two years to sail without a bülbrev or maalebrev. Russia. -L'acte de construction ou d'acquisition du navire (builder's certificate). La patente portant autorisation d'arborer le pavillon marchand russe (certificate of nationality). Journal du capitaine (ship's log-book). Charter party (if vessel is chartered). Le rôle d'équipage (crew list). Spain.-La patente real (royal license). El diario de navegacion (ship's log-book). National flag. Charter party (if vessel is chartered). El rol (list of crew). Bill of health. Sweden. - A passport from the chief magistrate or commissioner of customs. Bilbref (builder's certificate). Mätebref (certificate of measurement). Fribref (certificate of registry). Journalen (ship's log-book). Charter party (if vessel is chartered). Folkpass or sjemansrubla (muster roll). Vessels purchased by Swedish subjects in foreign ports are permitted, on application to the Board of Commerce, to sail for one year without a fribref. United States.-Certificate of registry. Sea letter, or certificate of ownership. Ship's log-book. National flag. Charter party (if the vessel is chartered). Shipping articles.

Muster roll. Bill of health.

§ 20. There seems to be some difference in the laws of diferent different States, as well as in the decisions of their courts and in the opinions of their text-writers, with respect to the character of the documents requisite to prove the neutrality of a vessel, and with respect to the effect of those documents even when their genuineness is unimpeached. Bello is of opinion that the passport, or sea-letter, is absolutely indispensable for the security of the vessel. Art. 2 of the French Ordonnance of July 26, 1778, required neutral vessels to prove their neutral character by 'passeports, connaissements, factures et autres pièces a'abord, l'une desquelles au moins constatera la propriété neutre.' Art. 6 of the Ordonnance of 1861, says: Seront encore de bonne prise les vaisseaux, avec leur chargement, dans lesquels il ne sera trouvé chartes-parties, connaissements, ni factures. Abreu was of opinion that these words were to be taken collectively and not distributively. But this is evidently

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erroneous, for another provision of the Ordonnance is (Art. 13) that no friendly or neutral vessel is to be made prize, if the captain produces the 'charte-partie ou police de chargement,' which latter word signifies the same as connaissement. Massé

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