The "Australia."
| Jurisdiction | UK Non-devolved |
| Judgment Date | 19 July 1859 |
| Date | 19 July 1859 |
| Court | Privy Council |
English Reports Citation: 15 E.R. 50
ON APPEAL FROM THE VICE-ADMIRALTY COURT AT HONG KONG.
Mews' Dig. tit. Colony, II. Particular Colonies, 12. Hong-Kong; tit. Shipping, A. III. Registration, 1.g., VIII. Sale and Transfer, 3. Who can sell, f. Master, g. Ratification by Owner, XXVI. Admiralty Law and Practice, 5. Vice-Admiralty, etc., Courts. S.C. Swab. 480; 7 W.R. 718. See The Bonita, 1861, 30 L.J. Ad. 145, as to burden of proof. As to Colonial Courts of Admiralty, see authorities collected in Pulling's Index to the Stat. R. and O., 1899, 3rd ed. tit. "Colonial Court of Admiralty," p. 106.
[132] ON APPEAL FROM THE VICE-ADMIRALTY COURT AT HONG KONG. DOUGLAS LAPRAIK and GEORGE CHAPE,-Appellants; SILAS ENOCH BURROWS,-Respondent * [June 27 and 28, and July 18 and 19, 1859]. the " australia." The Vice-Admiralty Court at Hong Kong has only the ordinary Admiralty jurisdiction possessed by Admiralty Courts previous to the passing of Statute, 3rd and 4th Viet., c. 65. It has no jurisdiction to entertain a suit for possession, for the purpose of trying the title to a ship [13 Moo. P.C. 160]. The non-registration of a ship (required by the Ship Registry Act, 8th and 9th Viet., c. 89, sees. 37 and 38,) by the first purchaser, does not affect the title of a subsequent bona fide purchaser [13 Moo. P.C. 143]. Where the Master has no authority from the owner to sell the ship, there must be a strong case of necessity to justify the sale. The necessity which the law contemplates is not an absolute impossibility of getting the vessel repaired; for if the ship being in a foreign port cannot be sent upon her voyage without repairs to be done at such a great cost as no prudent person could venture to incur, that will constitute a case of necessity, and justify the Master in selling [13 Moo. P.C. 144]. The onus probandi to establish such necessity is upon a first purchaser. How far such onus attaches to a second purchaser depends upon the circumstances of each particular case [13 Moo. P.C. 156]. The fact of the purchasers being surveyors, employed by the Master to survey the ship, does not necessarily invalidate the sale [13 Moo. P.C. 156]. Unnecessary delay on the part of the owner, dissatisfied with the sale of the ship by the Master, may import acquiescence in the sale [13 Moo. P.C. 158]. If there has been acquiescence by the owner, however unauthorized the sale might have been at the commencement, it amounts to a ratification by the owner [13 Moo. P.C. 158]. A decree of the Vice-Admiralty Court at Hong Kong was reversed on appeal with costs. A monition to pay the taxed costs of the Appellants having been personally served upon the Respondent and not obeyed, a sequestration against his real and personal estate was granted by the Judicial Committee [13 Moo. P.C. 160]. This appeal was brought from a sentence of the Vice-Admiralty Court at Hong Kong, made in a cause of possession, civil and maritime, promoted by the Respondent, claiming to be owner of the ship The Australia, against the Appellants, resident in that Colony, the registered owners, and at that time in possession of the ship. The Vice-Admiralty Court [133] decreed possession to the Respondent on the sole ground, that the Statute, 8th and 9th Viet., c. 89 (a), for the registration of British ships, made applicable to foreign ships by Statute, 12th and 13th Viet., c. 29, had not been complied with. * Present: The Right Hon. Lord Kingsdown, the Right Hon. Dr. Lushington, the Right Hon. Sir Edward Ryan, a.nd the Right Hon. Sir Lawrence Peel. (a) The 37th section of this Statute is as follows:-"And be it enacted, that no bill of sale or other instrument in writing, shall be valid and effectual to pass the property in any ship or vessel, or in any share thereof, or for any other purpose, 50 LAPRAIK V. BURROWS-AUSTRALIA (the) [1859] XIII MOORE, 134 The facts-which led to the institution of the cause in the Vice-Admiralty Court were, in substance, as follows: - [134] In the month of April, 1852, The Australia, then called The Rob Roy, was despatched by her owner, the Respondent, Burrows, from San Francisco, in California, to Hong Kong, where she arrived on the 30th of June in that year. She was soon found to be in a bad condition, and unseaworthy without very extensive repairs. Daggett, the Master, had no means himself of defraying the expense of such repairs, nor could he raise the requisite means upon bottomry of the ship. Meantime the ship whilst at Hong Kong incurred many debts and liabilities, for the discharge of which the Master had also no available assets, the charterers resident at Hong Kong refusing to make any advances, and stating that they would look to him for any expenses incident from the delay in withholding the goods on board from their respective owners, and in respect of which, as the ship was liable for them, she was threatened with proceedings in the Vice-Admiralty Court there. In this state of things the ship, after having been surveyed by surveyors, was condemned, and put up to sale, piecemeal, by public auction, at Hong Kong, on the llth of November, 1852, when the hull was purchased by one Lament, of Hong Kong, to whom the Master executed a bill of sale of the hull, bearing date on the 23rd of that month. Lamont was one of the persons employed by the Master to survey the ship, and, as it was alleged, purchased the hull, not for use as a ship or sea-going vessel, but for use as a hulk [135] or heaving-down vessel, in order to the repair of other vessels, in his business of a ship carpenter, and for that purpose he used the hull for more than a twelvemonth after the purchase. During this period, as no attempt was made to fit up or navigate the hulk as a ship, no register was applied for. At the time of the purchase of the hull of The Rob Roy by Lamont, the price of shipping was low at Hong Kong, as ships were in no demand then for emigration or any other purposes. But, towards the end of 1853, and in the beginning of 1854, a tide of emigration to Australia and California, setting strongly through Hong Kong, caused a rapid rise in the value of shipping in that Colony, so that ships of every, and almost any, description were sold there for emigration purposes, at prices far beyond their real value. Upon this inducement, Lamont, at the end of 1853, repaired the hull of The Rob Roy at a considerable expense, and made her a good passage ship, and when so repaired and made seaworthy, he in the month of May, 1854, at which time the price of shipping at Hong Kong was at the highest, sold her to the Appellants, to whom he executed a bill of sale, bearing date the 8th of that month; and the Colonial Secretary at Hong Kong, granted a British register of the ship, then named The Australia,, to the Appellants. until such bill of sale or other instrument in writing shall have been produced to the collector and comptroller of the port at which such ship or vessel is already registered, or to the collector and comptroller of any other port at which she is about to be registered de novo, as the case may be, nor until such collector and comptroller respectively shall have entered in the book of such last registry in the one case, or in the book of such registry de novo, after all the requisites of law for such registry de novo shall have been duly complied with, in the other case (and which they are respectively hereby required to do upon the production of the bill of sale or other instrument for that purpose), the name, residence, and description of the vendor or mortgagor, or of each vendor or mortgagor, if more than one, the number of shares transferred, the name, residence, and description of the purchaser or mortgagee, or of each purchaser or mortgagee if more than one, and the date of the bill of sale or other instrument, and of the production of it; and further, if such ship or vessel is not about to be registered de novo, the collector and comptroller of the port where such ship is registered shall, and they are hereby required to endorse the aforesaid particulars of such bill of sale or other instrument on the certificate of registry of the said ship or vessel, when the same shall be produced to them for that purpose in manner and to the effect following (videlicet):-Custom House (Port and date). (Name, residence, and description of vendor or mortgagor) has transferred by (bill of sale or other instrument), dated (date), (number of shares), to (name, residence, and description of purchaser or mortgagee). A. B., Collector , C. D., Comptroller." 51 XIII MOORE, 136 LAPRAIK V. BURBOWS-AUSTRALIA (THE) [1859] During this period, and until the month of November, 1854, two years after the sale of The Rob Roy, Burrows, though with ample opportunity of so doing, neither protested against the sale nor took any step for the purpose of asserting his continuing interest in the ship. But at the end of that time, after the sums expended on her by Lamont, and [136] other sums spent upon her in alterations and repairs by the Appellants, he arrived at Hong Kong, and for the first time set up his continuing right to the ship, contending that the same had never been legally divested, and took proceedings to obtain possession of the ship, by instituting a cause of possession in the Vice-Admiralty Court. The points of law insisted upon in the Court below by the Respondent, were: - First; that the ship was not in such a state as to prevent any prudent owner from having her repaired. Second; that although several surveys were made upon her, none of the surveyors ventured to condemn her as irreparable. Third; that she was subsequently repaired by Lamont, without having had her sides removed, which were alleged to have been rotten, and after her sale to Lapraik and Chape, and prior to the institution of this suit, she was, without further repairs, sent to sea, and earned a large freight. Fourth; that there were not any debts at Hong Kong in respect to the...
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