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

R. v. Lowe (1843) NSW Sel Cas (Dowling) 957; [1843] NSWSupC 19

ship registration, ship,title to

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, November 1843

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 85

The English Ship's Registry Act is not an Act relating to trade or customs, and proceedings for penalty under the Act may only be brought in a court of record or of Vice-Admiralty, and not summarily before justices. Further an executing contract to build a vessel does not confer title to the vessel in the purchasers, prior to fulfilment of the contract.

Dowling C.J. On the return made last term in this case to a writ of certiorari it appeared that the defendant had been convicted by two justices of the peace for making a false declaration before the Collector of Customs, as to the ownership of a certain steam vessel called the Comet , for the purpose of obtaining a registry and certificate thereof for the port of Sydney, and was adjudged to pay a penalty of £500 in pursuance of the statute 3 & 4 Wm 4 c. 55 (1833). The defendant's counsel moved to quash the conviction on two grounds. First, for want of jurisdiction in the convicting justices, and secondly, for that the justices drew an erroneous conclusion in point of law, from the evidence, returned under the certiorari.

First, as to the point of jurisdiction. By the statute 3 & 4 Wm 4 c. 55, "An act for the registering of British vessels", it is by the 13th section required that a certificate of ownership of the vessel shall be made and subscribed at the Customs House before registration or certificate thereof be granted, and by the 45th section the party making a false declaration of ownership shall forfeit the sum of £500 and by the 46th section the penalty may be recovered in like manner as penalties incurred for offences against any law relating to the revenue of Customs, which might then be legally recovered. By the statute 3 & 4 Wm 4 c. 59 (1833) "An act to regulate the trade of the British Possessions abroad" it is by the 64th section enacted. "That all penalties or forfeitures which may have been heretofore or may hereafter be incurred, under this, or any other act relating to the customs or to trade, or navigation, shall and may be prosecuted, sued for and recovered in any court of record, or of Vice-Admiralty, having jurisdiction in the colony or plantation where the cause of prosecution arises, and in cases where there shall happen to be no such courts, then in any court of record, or of Vice-Admiralty having jurisdiction in some British colony or plantation near to that where the cause of prosecution arises &c". It is clear that by this section no summary jurisdiction is given to justices, to convict for any offence against that Act or any other Act relating to the customs, or trade, or navigation in British possessions abroad. The jurisdiction for enforcing the penalties is expressly confined to courts of record, or courts of Vice-Admiralty.

By the local ordinance 3 Vic. No. 3 (1839), "An act to repeal an act relating to the revenue of Customs in New South Wales and to provide for the general Regulation thereof", after repealing 5 Wm 4. No.15 (1834) and reciting that no order in council had been issued by Her Majesty under the Act 3 & 4 Wm 4 c. 59 "To regulate the trade of the British possessions abroad", proceed to make numerous provisions for regulating the customs and trade within the Colony and its dependencies. By the 82nd section of that Act it is enacted "that all penalties and forfeitures incurred or imposed by this, or any other act relating to the customs, or to trade, or navigation, shall and may be sued for, prosecuted, and recovered by action of debt, bill, plaint or information in any of Her Majesty's courts of record in the said Colony or in the courts of Vice-Admiralty in the name of Her Majesty's Attorney General, or in the name or names of some officer or officers of Her Majesty's Customs or by information before any two or more justices of the Peace for the said Colony".

The justices below, had in this case convicted the defendant in £500 for an offence against the statute 3 & 4 Wm 4 c. 55 ss 13, 45, and awarded the penalty "to go and be distributed as provided by the local ordinance 3 Vic. No.3". The question is whether they had jurisdiction by the local Customs Act to hear and determine an information for an offence committed in this Colony against an act of Parliament by force of the general words of the 82 section of the local Act 3 Vic. No 3 which enacts, that all penalties and forfeitures incurred by that or any other Act relating to the customs or to trade, or navigation may be recovered in a court of record, or by information before any two or more justices for the Colony.

It was contended in support of the conviction that "An act for registering British vessels", must be taken and construed to relate to trade or navigation, and consequently that the Justices below had jurisdiction to convict. On the other hand it was insisted that this was a forced construction, for though it might be that ships are used for the purpose of trade and navigation, yet an Act for regulating the mode of conferring the privilege of trading and navigating, was a different thing. No doubt the Registry Act 3 & 4 Wm 4 c. 55 enacted that penalties incurred by that Act might be enforced in the same way as penalties against any customs law then in being, i.e. any English customs law. This conviction took place for an offence, not against any local law relating to trade or navigation, but for a breach of an Act of Parliament for registering British vessels, even taking it that such an Act related to trade and navigation. Under the English Act 3 & 4 Wm 4 c. 59 for regulating the trade of the British possessions abroad, which did relate to the revenue of customs, the penalties theretofore or which might be thereafter incurred under that or any other Act relating to customs, or trade, or navigation might be recovered in a court of record, or court of Vice-Admiralty; but the jurisdiction of justices of the peace was ousted and this Court was now called upon to hold that justices here had summary jurisdiction to inflict a penalty of £500 for breach of an act of Parliament when such jurisdiction was excluded by Parliament.

Upon consideration of this question we are of opinion that the justices had no jurisdiction to convict in this matter, but in so deciding, we are by no means influenced by any consideration of the quality of the tribunal to which the case was submitted. It is purely a matter of legal construction, whether this was a case within the summary jurisdiction of colonial justices. This was an offence against an act of Parliament for the registry of British ships. That Act extends to the whole Empire. The penalties under it are recoverable in like manner as for offences committed against any British customs laws then in force.

By the 3 & 4 Wm 4 c. 59 all the customs laws relating to the British possessions abroad were consolidated into one Act, and by the 64th section the penalties under that or any other Act relating to the customs or to trade, or navigation shall be recovered in a court of record or of Vice-Admiralty. No jurisdiction is given to justices. It is true that the local Customs Act reciting the 3 & 4 Wm 4 c. 59 adopts part of the language of the 64th section as to jurisdiction for the prosecution of seizures and penalties, but it carries the jurisdiction much farther, by conferring it on two justices, as well as the courts of record and of Vice-Admiralty. Be it that the British Ship's Registry Act relates to trade and navigation, still the question is whether we can construe it as comprehending only the trade and navigation of New South Wales. The local ordinance in all its provisions and penalties has reference solely to the customs of this Colony, and not to the customs, trade and navigation of the British empire. As it is a mere local ordinance, we think we must construe the 82nd section as relating to penalties and forfeitures incurred or imposed by that or any other colonial act relating to the customs or to trade or navigation in the Colony. Being a colonial Act, we must construe it with reference to the Colony, and not allow it to confer a jurisdiction, not given by the imperial Act, for an offence after which this conviction has been made. It is desirable that the justices adjudge the penalty for an offence against the imperial Act, but that Act gives them no jurisdiction, and they only award the disposal of the penalty in the manner pointed out by the local customs Act. To hold that the local Act is to control the statute would be to determine that the colonial legislature has power to alter and amend an act passed for regulating the customs trade and navigation of the British empire, a proposition which could not be maintained. The conviction might have been quashed upon this point, but the other, as to the legal inference drawn by the justices from the evidence disclosed, being raised in argument, it becomes necessary to intimate our opinion on that also.

It happens from the record of conviction that on the 3rd April 1843 the defendant went before J.G.N. Gibbes Esq., Collector of Customs for the Colony and as such Collector, being the person authorized to make registry and grant certificates of registry in respect of ships or vessel to be registered at the port of Sydney pursuant to the Act 3 & 4 Wm 4 c. 55, "An act for the registry of British vessels", and then and there for the purpose of obtaining such registry at the port aforesaid and a certificate of such registry in respect of a certain ship or vessel called the Comet and which said ship or vessel was then entitled to be registered at the port aforesaid "did falsely make and subscribe before the said J.G.N. Gibbes as such Collector as aforesaid a certain declaration, that the said W. Lowe was then sole owner of the said ship or vessel and that no other person or persons whatever had any right to the interest share or property therein and thereto: Whereas, as was averred by the said information, in truth and in fact, the said W. Lowe at the time of making the said declaration was not sole owner of the said ship or vessel, but on the contrary thereof divers persons, to wit one E. Manning, one G. Morris, and one G. Coke, were with the said W. Lowe, joint owners of and jointly entitled to and interested in the said ship or vessel at the time of the making of the said declaration, contrary to the form of the Act in that case made and provided. And we do in pursuance of the Act in such case made and provided for the encouragement of British shipping and navigation award, order and adjudge that the said W. Lowe do for such offence forfeit and pay the sum of £500" to go and be distributed as in and by the act of the Governor and Council of the Colony of New South Wales made and passed in the third year of the reign of the present Majesty, instituted "An act to repeal an act relating to the revenue of Customs in New South Wales and to provide for the general regulation thereof is provided given &c".

From the proceedings returned it appears, that the defendant Lowe was a ship builder by trade and had prior to March 1842 commenced building the steam vessel in question, and on the 15th of that month, the following agreement was entered into:

We the undersigned agree to purchase of Mr William Lowe of Williams River a certain steam packet now in progress of completion, to be fitted with a condensing engine &c. of twenty seven horse power (or such augmented power as can be introduced) for the sum of £3,500 sterling in the proportions set against and our respective names and to make rateable payments thereupon. The Packet to be on the Hunter, Williams, and Paterson Rivers. Mr William Lowe agrees to complete the whole (both vessel, fittings and machinery) for the amount above stated in a workmanlike manner, the whole to be ready for work in six months from this period.

Sydney 15 March 1842

Edye Manning £ 1,000

William Lowe £ 500

T. Morris £ 1,000

George Coke £ 500

£3,000.

There was no subscriber for the remaining £500 share. At the time of the alleged false declaration Mr E. Manning had advanced £1,000 from time to time in fulfilment of his part of the agreement, but the defendant Lowe disputed a portion of this sum to the amount of £312 which he contended ought not to be charged against him as a payment for his share of the vessel. There was no proof that Mr Morris had paid up all the amount he subscribed for, and it was proved that Mr Coke had no interest whatever in the vessel. It appeared that Mr Manning and Mr Morris had filed a bill in equity to compel specific performance of the agreement.

The question was whether the justices drew a proper conclusion in law from these facts to warrant them in convicting the defendant for making a false declaration or ownership under the Registry Act .

It is quite obvious that the contract between the parties was an entire contract and does not appear to have been fulfilled by all the parties contracting with the defendant at the time the declaration of ownership was made. At the utmost it appears to be no more than an executing contract in which no doubt Messrs E. Manning and Morris have an interest, but this would not give them an absolute vested interest in the vessel in rem. They had no more than a contingent interest, upon the completion of the price stipulated to be paid. The contract is in fact an agreement for a partnership, more than for an interest in the vessel itself. It is a contract of and concerning the vessel, but it is only executory, and does not vest any interest in the body of the vessel itself.

In contemplation of law, therefore, and referring to the policy of the Ship's Registry Act , it could scarcely be said, that this defendant came within the penalty of the Act, in declaring, that he was sole owner and that no other person or persons whatever had any right, title, interest, share or property therein or thereto i.e. in the vessel itself. The strict legal title in the ship might be in Lowe, and yet consistently with his declaration the other parties might have such an interest in the contract, as to compel him to refund any money which they had paid under it, or pay any damage which they might have sustained by reason of his alleged breach of it. The policy of the Registry Act is to prevent aliens from having any interest in British built vessels, for the very declaration required to be made, is to contain a statement that the party subscribing it, is truly and bona fide a subject of Great Britain - that he has not taken the oath of allegiance to any foreign state whatever, and that no foreigner, directly or indirectly, hath any share or part interest in the vessel.

These seem to be the main objects of the declaration, and who may have an interest under an executing contract concerning the vessel, appears not to be contemplated. This defendant may be trustee in equity for the other contracting parties, when they complete their part of the contract, but in strict legal sense he was, for the purposes of the Registry Act, the sole owner of the vessel. That this is a mere executing contract, and did not pass any interest in the vessel itself until completed appears clear from the authority of Laidler v. Burlinston (1837) [ Laidler v. Burlinson (1837) 2 M. & W. 602, 150 E.R. 898]. This contract speaks of a certain steam packet "now in progress of completion", and Lowe "agrees to complete the whole", within a certain time for the sum stated - £3,500. This was not a specific chattel, completed at the time of the contract - but a chattel to be delivered in future, when completed, and the other contracting parties perform their part. The chattel itself did not pass by such a contract.

In Laidler v. Burlinston , a new ship had been about one third built, in the yard of the ship builder, who agreed to build it for £1,750. Several persons agreed to take shares in her, and amongst others the plaintiff, who paid the price he stipulated by the agreement to give. After which the builder became bankrupt, the vessel remained on the stock in his yard in an unfinished state, and it was held in trover that the share bought and paid for, did not pass to the plaintiff. The cases of Mucklow v. Mangles (1808) [ Mucklow v. Mangles (1808) 1 Taunt. 318, 127 E.R. 856 ] and Woods v. Russell (1822) [ Woods v. Russell (1822) 5 B. & A. 942, 106 E.R. 1436 ] were there cited for the principle, that if the thing be in existence at the time of the order, the property of it passes by the contract, but not so where the subject is to be made. On these authorities we think the facts of this case did not warrant the legal conclusion of the justices below, and the conviction must be quashed.

It is scarcely necessary to determine whether, supposing the declaration to be false, it must not be made to appear that it was wilfully false. It appears to us however, that such an ingredient was requisite in order to bring the defendant within the penalties of the Act, and as this could hardly be predicated of the defendant's declaration under the circumstances disclosed, we should have been of opinion on that ground that the conviction could not be supported.

Published by the Division of Law, Macquarie University