Barnes v. Taylor , 31 Me. 329 ( 1850 )

Tenney, J.

The laws of the United States provide, that whenever a ship or vessel, registered in conformity with the statute requirements, shall be sold wholly or in part to a citizen or eitizens of the United States, the former certificate or register shall be delivered up to the collector, and by him, without delay, be transmitted to the secretary of the treasury to be canceled. And a ship or vessel so sold or transferred, shall be registered anew, by her former name, and a certificate thereof shall be granted by the collector. U. S. Laws of 1789, c. 11, § 10. Every ship or vessel shall be registered by the collector of the district in which shall be comprehended the port, to which such ship or vessel shall belong at the time of her registry; which port shall be determined to be that at or nearest to which the owner, if there be but "one, or if more than one, the husband or acting or managing owner of such ship or vessel usually resides. U. S. Laws of 1792, c. 45, § 3. When, upon a sale or transfer to a citizen or citizens of the United States, a ship or vessel is required to be registered anew, her former certificate shall be delivered up to the collector to whom application for such new registry shall be made, at the time the same' shall be made, to be by him transmitted to the register of the treasury, who shall cause the same to be canceled. And in every such case of sale or transfer, there shall be some instrument of writing in the nature of a bill of sale, which shall recite at length the said certificate, otherwise the said ship or vessel shall be incapable of being so registered anew. And in every case, in which a ship or vessel is required by the statute to be registered anew, if it shall not be done, she shall not be entitled to any of the privileges or benefits of a ship or vessel of the United States. ibid, § 14. The same requisites, in all respects, shall be complied with, for the purpose of enrolling and licensing ships ox-vessels, to be employed in the coasting trade axxd fisheries, and for regulating the same, as are made necessary for the registering of ships and vessels by the act of 1792, c. 45; U. S. Laws of 1793, c. 52, § 2.

If the transfer of “ the Palo Alto" by the plaintiff to C. C. Mitchell & Son was absolute, they residing ixx the district of Portland, it was necessary in order to prevent a forfeiture of all the privileges and benefits of a vessel of the United States, that a new enrollment should be made in the district of Portland, upoxx the surrender to the collector of that port, of the certificate of the former enrollment and license in the district of Wiscasset.

Upon the sale or transfer of a ship or vessel from oxxe to another, it is well understood, that the certificates of registry or enrollment pass to the purchaser ; axxd from these alone, he is enabled to cause a new registry or exxrollmexxt to be made, and proper certificates, thereupon obtained, uxxless they have been lost or mislaid. Consequently, in such cases, the former certificates are without value, and will secure no privileges or benefits to the vendor, although he may be the master of the vessel after such transfer.

It is contended in defence of the action, that, from the evidence reported, the defendant was made reasonably to believe, by the plaintiff, the transfer of the vessel to C. C. Mitchell & Son was absolute at the time of the demand; and that therefore, the refusal to deliver the papers demanded was justifiable, and was not sufficient evidence of a conversion.

It appears that the certificates in question had been surrendered to the defendant on July 15, 1847, and the reason for their being so deposited ceased on Dec. 22, 1847, when the vessel was delivered by the deputy marshal to the plaintiff, by authority of a precept then in his hands. On July 24, 1847, the plaintiff gave to C. C. Mitchell & Son a mortgage of the vessel, for the security of two notes of hand, which became payable in four months from July 10, 1847, which mortgage was duly recorded. This mortgage was deposited in the custom house, on Oct. 18, 1847, and remained there till after the demand was made for the papers. The mortgage was not foreclosed by operation of law, although there was a breach of the condition at the time of the demand. R. S. c. 125, § 30. Upon these facts alone, the defendant might have been bound to deliver the certificates upon the demand made by the plaintiff in his own behalf. But we understand from the evidence, that before the vessel was delivered by the deputy marshal to the plaintiff, the latter, in presence of the defendant, requested the delivery to be made to one Beals, who was acting as the agent of C. C. Mitchell & Son, Beals being present, and he and the plaintiff at the time asserting that the vessel was their property. The deputy marshal declined to deliver the vessel to Beals, giving as a reason, that he was directed in the precept under which he acted, to make the delivery to the plaintiff. Upon the delivery to the plaintiff, he immediately delivered the same to Beals for C. C. Mitchell & Son. The plaintiff and Beals afterwards, on the same day, went to the defendant, and at his office demanded the papers, saying that the vessel would be of no use without them. The defendant expressed a willingness to comply with the demand, if the vessel belonged to the plaintiff; but referred to his previous statements as evidence, that he had no title, and was therefore not authorized to deliver them, and declined to do it.

Although the mortgage was not foreclosed by lapse of time, after the breach of the condition, the title of the vessel might have been absolute in the mortgagees, by an agreement between the parties to the mortgage; the mortgage continuing in the custom house was not inconsistent with such agreement. A sale and transfer of a vessel, like any other chattel, may he valid without any bill of sale or document in writing, though it may be necessary to entitle the purchaser to a new registry, giving an American character to the vessel; and the consequence of a non-registry is, that the vessel becomes a foreign vessel. Bixby v. Whitney, 8 Pick. 86; Vinal v. Burrill, 16 Pick. 401; United States v. Willings, 4 Cranch, 55; 3 Kent’s Com. 5th ed. 130, 131; 1 Greenl. Ev. §. 261; Balkam v. Lowe, 20 Maine, 369.

The evidence, therefore, necessary to give to C. C. Mitchell & Son the privileges and benefits of an American vessel, in the one, which they might have purchased, was not required to be known to the defendant, to justify him in retaining the papers in their behalf. Any notice which should be reasonably satisfactory, that they were really the owners, was sufficient to protect him in'withholding the papers upon the demand.

The facts, which were presented to the defendant at the time of the first demand, were such evidence of an actual sale to C. C. Mitchell & Son, that he cannot be regarded as tortiously refusing to surrender the papers. It is not pretended, that the papers were called for, with the view of causing a new enrollment in another district; and that the same might be delivered up to the collector thereof. And no request was made of him of that character, by the plaintiff, as master of the vessel. The declarations of the plaintiff were full and unequivocal, that C. C. Mitchell & Son were the owners of the vessel, and this without any qualification. His statements were confirmed by those of the acting agent of them who were declared by the plaintiff to be the owners ; this confirmation was in the presence of the plaintiff, who interposed no remark, to gainsay or restrict the effect of the assertion, that the title was, as he had previously avowed it. The representations of either or both being true, made in the presence of the defendant, the papers, if received in the condition in which they were demanded, could give him no rights, inasmuch as they could have no legitimate effect, as evidence, that the vessel was one, entitled to the privileges and benefits of vessels belonging to the United States.

On December 25th, 1847, the plaintiff went to the collector’s office, accompanied by Beals, presented the order of C. C. Mitchell & Son, and demanded the papers. They were refused by the defendant.

It does not appear, that at the time the order was presented, the plaintiff claimed to have any other rights, than such as would be given by the order; and he can have no benefit therefrom, excepting so far as it was proof that he was entitled to the papers in his own behalf. If it was a request to deliver the papers as belonging to them, and to no other, the refusal to deliver them was a wrong upon their owners and not upon their agent, sent to receive them. If the order had expressly declared or required the construction, that the signers of it had no title to the vessel, such as gave them an exclusive right to the papers, and that a delivery of them to the plaintiff as his, would interfere with none of their rights, and he had made the demand in his own name, a refusal might have created a liability. But the meaning of the order is not of such a character. It contains a request to the defendant to deliver the papers to the plaintiff, “ as we wish him to continue master of said schooner, till further orders; although she is mortgaged to us, we wish him to manage the vessel.”

This shows that they professed to have the control of the vessel, and to retain the plaintiff as master, so long as they should choose to permit it, but to be subject to their order. The plaintiff made use of this order, and thereby assented to the correctness of whatever was declared therein. This claim would give him no interest in the papers, further than as theh agent. The reference to the mortgage, is not absolutely inconsistent with the statement of the plaintiff, that C. C. Mitchell & Son were the owners. This statement, previously made, was not retracted by the plaintiff, when it was adverted to by the defendant as a reason for his refusal to surrender the papers. The existence of the mortgage and its contents are understood to be known to the defendant before the time of this demand, and its being referred to in the order gave to the defendant no additional information, excepting, that the signers of the order asserted no other title. If this stood alone, it might be reasonable that he should conclude, that they claimed no other right, than such as the mortgage would give. But when taken in connection with other parts of the order, it was at least doubtful, whether they intended to admit, that he had any other rights than such as they had conferred upon him as their agent, to be master of the vessel and to have the management of it, for them. When in connection, there was the positive statement of the plaintiff himself, that C. C. Mitchell & Son were the owners, accompanied by the delivery by him, to their acting agent, standing unqualified by any explanation, the refusal to deliver the papers as his, is not sufficient evidence, that he was guilty of a conversion of the property as alleged in the writ.

Plaintiff nonsuit.