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Decisions of the Superior Courts of New South Wales, 1788-1899

Lyons v. Walker (1842) NSW Sel Cas (Dowling) 937; [1842] NSWSupC 72

ship, title to - ship registration

Supreme Court of New South Wales

Dowling C.J., Burton, Stephen JJ, 12 November 1842

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 273.

There will be no defect in title under the Ship's Registry Act where a mortgage is produced for registration to a duly authorized clerk at Customs House and not to "the Collector" personally.*

Detinue for the brig Avon and the certificate of her registry. Pleas 1st. Denying the possession and 2nd. Denying the property in plaintiff and issue thereon.

At the trial before Stephen J. during the last term it appeared that the plaintiff and the defendant were respectively mortgagees of the brig Avon , of which Robert Duke and Company were the registered owners and mortgagors, and the question in controversy was whether either, and which, of the mortgagees had perfected his title, under the Ship's Registry Act 3 & 4 Wm 4 c. 55 (1833) by the 34th section of which, as far as respects this class of case, it is 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, until such bill of sale or other instrument in writing shall have been produced to the Collector and Controller of the port at which such ship or vessel is already registered &c. nor until such Collector and Controller respectively shall have entered in the Book of Registry (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, 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 the Collector and Controller of the port where such ship is registered shall and they are hereby required to indorse 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". Then follows the form, with directions in brackets, as to the particulars to be inserted with the signatures A.B. Collector, C.D. Controller".

The registered owners of the Avon as appeared by the book, under date 19th April 1839 were Robert Duke and Company. On the 5th September 1840, whilst the vessel was at sea Duke and Co. mortgaged 64 shares to the plaintiff, and on the 16th November 1841 the plaintiff produced the mortgage to a clerk at the Custom House then acting for the Collector, who thereupon made the following entry under the registry of the Avon , in the Registry Book.

Custom House Sydney 16th November 1841 Robert Duke and John James Curtis aforesaid, merchants, trading under the name of Robert Duke and Company have transferred by Conditional Bill of Sale by way of mortgage dated 5 September 1840, sixty four shares to Samuel Lyons of Sydney Auctioneer.

J.B. Howard

Pro. Coll.

Mr Howard stated that he was clerk to the Collector of Customs at the port of Sydney, there being no Controller and he kept the Book of Registry at the Custom House, and it was his duty to make the entry in question, and had authority to do so from the Collector, and he did make the entry when applied to for that purpose by the plaintiff, who produced to him the mortgage. He held a Treasury warrant appointing him clerk for general business under the Collector of Customs at Sydney, and he had authority verbally to transact business for the Collector during his absence. He knew the registered owners Robert Duke and Company, to be Robert Duke and John James Curtis. Colonel Gibbes the Collector of Customs stated that Howard had authority from him to make such entries as the one in question when he was absent from the Custom House. This was agreeably to the practice at all ports in England. In this Colony he represented the Commissioners of Customs in England.

On the 16th November 1841 when the entry in question was made he believed he was not in Sydney. At the close of the plaintiff's case, the defendant's counsel moved for a nonsuit on four grounds. First, that as the two pleas pleaded put in issue the possession of and the property in the vessel, the 42nd section of the Registry Act put the plaintiff out of Court, for by that section it is declared that a mortgagee claiming only as such, shall not by reason of such claim be deemed to be the owner, except so far as might be necessary for the purpose of rendering the vessel, or the shares transferred, available for payment of the debt secured thereby. Secondly, that the plaintiff had not shewn, under the 36th section that he had been the first to procure the indorsement required by the Act to be made upon the certificate of registry. Thirdly, that the provisions of the 34th section had not been complied with, inasmuch as that section required that the mortgage should be produced to the Collector personally and by him personally entered in the Registry Book of ownership, and fourth, that the entry of the mortgage in the Registry Book of ownership was defective in not setting forth the residences of the mortgagors.

The learned Judge declined to nonsuit on any of these points in the first instance, and suffered the defendant to go into his case, but at the close of it, he was of opinion that the third objection was too cogent for resistance and accordingly he held that the plaintiff had not complied with the 34th section of the Act, which requires the mortgage to be produced to the Collector of Customs and by him entered in the Registry Book, and by him signed, and that it was not sufficient to produce it to a Custom House clerk for those purposes. His Honor thought that the legislature, by the express language used evidently intended to interpose a public officer of known responsibility on whom should be devolved the duty of superintending and authenticating transfers of this description, and he could see no authority for delegating that duty to a mere clerk. On this ground he directed the plaintiff to be nonsuited. A motion having been made to set aside the nonsuit and grant a new trial, the question after agreement was reserved for judgment.

Dowling C.J. After full consideration, we are of opinion that the nonsuit must be set aside and a new trial granted. It is true that the words of the 34th section of the Ship's Registry Act are very stringent in terms in requiring the instrument to be produced to "the Collector", and that the transfer shall not be valid until "the Collector" shall have entered in the Registry Book the names &c of the mortgagor and mortgagee respectively; but the question is whether we are to construe the mere words of the Act so strictly as to work a forfeiture of the plaintiff's right to this vessel, for such would be the effect of such a construction, and that, without any default of his. The obvious policy of the Act is to give publicity and solemnity to the transfer, and this provided the instrument is produced at the Custom House, and the particulars thereof are entered into the Registry Book, by a clerk publicly acting for the Collector of Customs, is as much effected as if it were produced to and entered by the Collector himself.

The plaintiff does all that in him lies to comply with the law in producing the instrument at the Custom House, to the functionary there in attendance and representing the head of the customs department. The officer in attendance takes upon himself to do the act required by law. How is the mortgagee to know that the person in attendance has no right to see the instrument, and no authority to enter the particulars of it in the Registry Book? If the Custom House clerk had no such authority, it lay upon him to inform the plaintiff that it could not be done without the intervention of the Collector, and warn him of the necessity of postponing his registration until the Collector should be in attendance in his place, then he might have waited until the act could be done in technical form of law. But after the act was done, by a person apparently acting in a public office as competent to perform the functions of the Collector, a strong case of necessity must be made out to work a forfeiture against an innocent party who does all that he can be required to do to secure his title.

The public policy of the Act has not been evaded, and the question is whether the failure to perform the ministerial duty of looking at the instrument and entering it in the Registry Book, by the particular eye and hand of a particular officer by name is to defeat the right of the present plaintiff? There was here a production - an exhibition of the instrument at the public Custom House, to a party standing in a public office in the place and stead of the Collector. If any judgment or discretion were required to be exercised in looking at the instrument on its production and afterwards entering it, a strict construction of the Act might be required. But the thing to be done as far as the Collector was concerned was merely ministerial and required no exercise of judgment or discretion. In contemplation of law, any man appointed to or authorized by the Collector to act for him during a temporary absence from office to perform a ministerial duty, must as respects the public be regarded as the Collector himself. Although this may be a very lax mode of discharging the duties of a Collector, and is not free from apprehension, as a departure from the strict letter of the Act, yet as regards the public, it would work the grossest injustice to private rights, if the negligence of a public officer in not attending to perform his proper functions, were to unsettle title to property. The Collector swore that the Clerk had authority from him to make such entries when he was absent from office, and that this was the practice of Collectors in all ports in England. He may have been misled by such a practice if it really exists, but the doctrine cannot be recognised of allowing any practice or usage however convenient in case of the head of a department to dispose with the provision of an act of Parliament.

The principle upon which we are inclined to uphold the plaintiff's right of action is that the policy and the provisions of the law have been substantially complied with by him, and that for any literal default in a public functionary he is not damnified.

No reported case is perhaps to be found in which this construction has been put upon the modern Registry Act , but construing it in pari materia, with the old Acts, the decisions of the courts at Westminster seem to warrant the interpretation which we feel ourselves justified in applying to the present Act. In Heath v. Hubbard (1803) [ Heath v. Hubbard (1803) 4 East. 110, 102 E.R. 771] it was held that the 16th section of the 34 Geo. 3 c. 68 (1794) which relates to the alteration of property in ships when absent from their ports, construed by reference to the terms of the 15th, the immediately preceding section; and to which it immediately relates, can only be construed as directory, as far as it respects the entry and memorandum to be made, and the notice to be given to the Commissioners of Customs by the persons authorised to make registry; the vacating provisions being confined to the Commissioners of such acts only as are required to be done by the immediate parties to the sale or transfer and not extending (as it would be most unreasonable that they should extend) to the acts or omissions of third persons or strangers. The like construction was put upon the same Act in Bloxam v. Hubbard (1804) [ Bloxam v. Hubbard (1804) 5 East. 407, 102 E.R. 1126] and in Hubbard v. Johnstone (1810) [ Hubbard v. Johnstone (1810) 3 Taunt. 177, 128 E.R. 71 ] (in error) it was held by Wood B. and Heath J. that the Ship's Registry Acts , so far as they apply to defeat titles, and create forfeitures are to be construed strictly as penal, not liberally as remedial laws. The omission of the Collector to perform any duty required by the Act to be by him performed, might render him liable to penalties, but his omission of a duty which appears to be only directory, ought not to prejudice the right of the party sought to be affected by his omission, who has in other respects complied with the requisites of the statute.

The judgment which has thus now been delivered is of course that of the Court. It is proper to state that one of our number, Mr Justice Stephen, does not concur.

Published by the Division of Law, Macquarie University