to preserve her national character. To be safe, until the vessel returns, the mortgage of a ship at sea should be recorded at the home port, as shown by the outstanding document as well as at the new home port. In the case of a transfer of a vessel at sea, where it is desired to preserve her nationality, it is necessary, upon her arrival at her home port, to deliver up her certificate of registration and obtain a new certificate. In the case of United States v. Willings, 4 Cranch, 48, a share in an American vessel was transferred by parole while she was at sea; and, before she reached port, was re-transferred, also by parole, to the original owners. The government challenged her right to the American flag, but the court held that the requirement that, upon transfer, the certificate of registery be surrendered, did not mean that the ship would forfeit the flag unless such surrender were contemporaneous with the sale, since a sale may be made by parole, and, inasmuch as the ship carries her papers with her, the registration could not be attended to until she returned. The Court, speaking through Chief Justice Marshall, held that the ship, having been sold at sea by parole and bought back by her original owners, also, by parole, before she reached port, had been twice legitimately sold and as her ownership when she returned was the same as when she started, her nationality remained unchanged. 18. Appurtenances.- A bill of sale or mortgage of the ship should describe the interest conveyed, either the whole or a fractional part, and include the appurtenances. These are covered by the usual phrase, "engines, boilers, machinery, masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereunto appertaining and belonging." Whatever is on board for the object of the voyage and belonging to the owners will ordinarily be included, like provisions, supplies, compasses, chronometers as well as new articles purchased for the ship but not yet installed on board. As in other cases of sales, the intention of the parties, so far as it can be ascertained, will control and it is desirable to have an inventory of separate articles in order to avoid misunderstandings or disputes. 19. Warranties and Representations. The law is the same as in other cases of sales. The buyer must take care. The seller must not deceive. Material representations made to effect the sale are equivalent to warranties. If the ship is built or sold for a particular purpose, there is an implied warranty of fitness for that purpose. If the contract is reduced to writing, the parole evidence rule will control as to prior stipulations. REFERENCES FOR GENERAL READING Shipping and Admiralty, Parsons, Vol. I, Chapter III. Sales, Benjamin (2d Am. ed.), §§ 336-339. White's Bank v. Smith, 7 Wall. 646. Fleming v. Fire Assoc., 147 Mich. 404. U. S. v. Forester, Newb. Adm. 81. Admiralty, Benedict, § 158. Huus v. S. S. Co., 182 U. S. 392. CHAPTER III OWNERS AND MANAGERS 1. Who May Be.- The owner of an American vessel must be a citizen of the United States. The statutes provide that "Vessels registered pursuant to law and no others, except such as shall be duly qualified according to law for carrying on the coasting or fishing trade, shall be deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels; but no such vessel shall enjoy such benefits and privileges longer than it shall continue to be wholly owned by a citizen or citizens of the United States or a corporation created under the laws of any of the States thereof, and be commanded by a citizen of the United States" (7 Comp St., 1916 §7707). Ownership may be shown by possession, under claim of title, as in the case of other personal property, but the best evidence is the formal bill of sale, possession, and a clean abstract of title from the records of the Collector of Customs of her home port. All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state wherein they reside. Thus minors, married women (except those having alien husbands), persons under guardianship, trustees, and corporations, like other citizens, may be owners. 2. Part-Owners.-The ship may be owned in shares by any number of individuals. Such part-owners do not become partners by reason of such ownership. Each has a separate and distinct interest which he may sell or dispose of without the consent of the others. They are not partners in the absence of a special agreement to that effect. Each is liable for only his own proportion of the debts and none is responsible for the acts of the others beyond the amount of his interest in the ship, unless he has himself created such further liability directly or by reasonable implication. Generally speaking, the part-owners of a ship occupy the legal status of tenants in common. They may, of course, become part ners and subject to the legal incidents of partnership. If they so agree, or if they act in such a manner, they assume the attributes of partnership, one of the chief of which is the liability of each individual partner for the entire indebtedness of the firm (The Wm. Bagaley, 5 Wall. 377). The Daniel Kaine, 35 Fed. 785, was a contest over the surplus remaining in the registry of the court from the sale of a tow-boat. This had been allotted to the several part-owners in proportion to their shares, but the master, who was one of the owners, claimed a lien against the entire fund for advances made by him on the theory that the owners held the vessel in partnership and not merely as individual coöwners. The Court said: The burden of proof is upon Captain Cowan to establish the allegation contained in his petition, but which is denied in the answer thereto, that the shareholders in the Daniel Kaine were not tenants in common but partners in respect to the ownership of the vessel. Has he succeeded in this? The evidence bearing upon this point is as follows: The boat was built by James Lynn, George T. Miller, and R. W. Cowan, who from the first held her in defined shares,- Lynn and Miller each owning seven-eighteenths and Cowan owning foureighteenths. Thus was the boat enrolled on February 8, 1882. Speaking of her enrollment, Captain Cowan testifies: "There was no other agreement among us than that the boat should be as set out in the registry." In April, 1886, George T. Miller transferred his seven-eighteenths in the boat to George B. Kaine. Captain Cowan further states that there was no written agreement between the owners of the boat as to how she was to be operated, nor any verbal agreement that she was to be run or operated in partnership. However, it seems that, by the tacit consent of all the owners, she was run on joint account. Her employment was in the towing of coal, and at first she was principally engaged in towing for two coal firms, in one of which Lynn was a member, and in the other Miller, viz., James Lynn & Sons, and George T. Miller, & Co. The bookkeeper who kept the books of the boat made out and furnished annually to the several owners balance sheets, in which the cost of the boat appeared as an item. Do these facts establish that the shareholders in the Daniel Kaine were partners in her ownership? I think not. That the cost of the boat appeared in the balance sheets which the bookkeeper made out is not a controlling circumstance, and, indeed, is a matter of little moment, when considered in connection with Captain Cowan's testimony, above quoted. According to the enrollment of the boat, her part owners were tenants in common, and there was no different or other agreement as to ownership. An agreement to run a ship on shares does not make the owners part ners with respect to the vessel. Says Chief Justice Gibson in Hopkins v. Forsyth, 14 Pa. St. 38: "Carriers may doubtless become partners, but not merely by becoming joint owners of a chattel, and using it for a common purpose. And the principle is peculiarly applicable to ships or other craft, the exceptions to it in respect to them being always founded in very special circumstances." Now, where the vessel is not partnership property, according to the clear weight of authority in this country, one part owner has no lien for his advances and disbursements upon the share of his co-owner. Nor does it make any difference that the part owner making such advances was also the ship's husband. In treating of this subject, Mr. Justice Curtis, in the case of the Larch, 2 Curt. 434, State, after remarking that in England the law is now settled against the existence of the lien, said: "There has been some diversity of decision in this country, 3. Corporations.— Corporations organized under state laws may be the owners of American vessels. A corporation is a legal person having an individuality distinct from all its stockholders. It is the corporation, and not the stockholders, who owns the corporation property. For that reason the Attorney General has expressed the opinion (29 Op. 188) in a case in which a vessel was owned by a corporation of the State of New York, a majority of whose stock was held by aliens and whose directors were all aliens, except three, that, under the laws, so long as the corporation was legally organized and existing as an American corporation under the laws of New York, a vessel owned by it was entitled to American registry. It is unlawful, without obtaining permission of the Shipping Board, to place under foreign registry, a vessel owned wholly or in part by an American corporation or to transfer such vessel to any person other than a citizen (Merchant Marine Act, 1920. See Appendix), and within the meaning of that act no corporation is deemed a citizen unless the stock control and management |