Who to be Defendant in Suit for Damage.

Sec. 529. "In any action, suit, or other proceeding in relation to such injury, the person so giving security as aforesaid shall be made defendant or defender, and shall be stated to be the owner of the ship that has occasioned such damage; and the production of the order of the judge made in relation to such security shall be conclusive evidence of the liability of such defendant or defender to such action, suit, or other proceeding."

Owner of damaging Vessel not answerable beyond Value of his Ship and Freight.

Sec. 504. "No owner of any sea-going ship, or share therein, shall, in cases where all or any of the following events occur without his actual fault or privity, (that is to say)

"1. Where any loss of life or personal injury is caused to any person being carried in such ship;

"2. Where any damage or loss is caused to any goods, merchandize, or other things whatsoever on board any such ship;

"3. Where any loss of life or personal injury is by reason of the improper navigation of such sea-going ship as aforesaid, caused to any person carried in any other ship or boat;

"4. Where any loss or damage is by reason of any such improper navigation of such sea- going ship as aforesaid, caused to any other ship or boat, or to any goods, merchandize, or other things whatsoever, on board any other ship or boat;

"be answerable in damages to an extent beyond the value of his ship and the freight due or to grow due in respect of such ship during the voyage which at the time of the happening of any such events as aforesaid is in prosecution or contracted for, subject to the following proviso, (that is to say) that in no case where any such liability as aforesaid is incurred in respect of loss of life or personal injury to any passenger, shall the value of any such ship and the freight thereof be taken to be less than 157. per registered ton."

Sec. 17th enacts that, "The second part of this Act shall apply to the whole of Her Majesty's dominions."

Description and Ownership of British Ships.

Sec. 18th enacts that, "No ship shall be deemed to be a British ship unless she belongs wholly to owners of the following description, (that is to say)

"1. Natural-born British subjects:

Provided that no natural-born subject, who has taken the oath of allegiance to any foreign sovereign or state, shall be entitled to be

such owner as aforesaid, unless he has subsequently to taking such last-mentioned oath taken the oath of allegiance to Her Majesty, and is, and continues to be, during the whole period of his so being an owner, resident in some place within Her Majesty's dominions, or if not so resident, member of a British factory, or partner in a house actually carrying on business in the United Kingdom, or in some other place within Her Majesty's dominiens :

"2. Persons made denizens by letters of denization, or naturalized by or pursuant to any act of the imperial legislature, or by or pursuant to any act or ordinance of the proper legislative authority, in any British possession:

Provided that such persons are and continue to be, during the whole period of their so being owners, resident in some place within her Majesty's dominions, or if not so resident, members of a British factory, or partners in a house actually carrying on business in the United Kingdom, or in some other place within Her Majesty's dominions, and have taken the oath of allegiance to Her Majesty, subsequently to the period of their being so made denizens, or naturalized.

"3. Bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom, or some British possession."

British Ships must be registered.

Sec. 19. "Every British ship must be registered in manner hereinafter mentioned, except,

"1. Ships duly registered before the Act comes into operation: "2. Ships not exceeding fifteen tons burden, employed solely in navigation on the rivers or coasts of the United Kingdom, or on the ́ rivers or coasts of some British possession, within which the managing owners of such ships are resident: "3. Ships not exceeding thirty tons burden, and not having a whole or fixed deck, and employed solely in fishing or trading coastwise, on the shores of Newfoundland or ports adjacent thereto, or in the Gulf of St. Lawrence, or on such portion of the coasts of Canada, Nova Scotia, or New Brunswick, as lie bordering on such gulf. "And no ship hereby required to be registered shall, unless registered, be recognised as a British ship, and no officer of customs shall grant a clearance or transire to any ship hereby required to be registered for the purpose of enabling her to proceed to sea as a British ship, unless the master of such ship, upon being required so to do, produces to him such certificate of registry as is hereinafter mentioned, and if such ship attempts to proceed to sea as a British ship, without a clearance or tran

sire, such officer may detain such ship until such certificate is produced to him."

Rule as to Ships meeting each other.

Sec. 296 enacts that "Whenever any ship, whether a steam or sailing ship, proceeding in one direction, meets another ship, whether a steam or sailing ship, proceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve any risk of a collision, the helms of both ships shall be put to port, so as to pass on the port side of each other; and this rule shall be obeyed by all steam ships and by all sailing ships, whether on the port or starboard tack, and whether close-hauled or not, unless the circumstances of the case are such as to render a departure from the rule necessary in order to avoid immediate danger, and subject also to the proviso that due regard shall be had to the dangers of navigation, and, as regards sailing ships on the starboard tack close-hauled, to the keeping such ships under command."

The last-stated enactment does not apply to foreign vessels, or to a foreign and English vessel.*

Conflict of Laws.

Sec. 290. "If in any matter relating to any ship, or to any person belonging to any ship, there appears to be a conflict of laws, then, if there is in the third part of this act any provision on the subject which is hereby expressly made to extend to such ship, the case shall be governed by such provision, and if there is no such provision the case shall be governed by the law of the place in which such ship is registered."

"

"

*The Zolverein, 1 Swabey, Ad. Rep. 96; 2 Jur. N. S. 429, Adm.

The

"A British and foreign vessel had come into collision. By the general "maritime law the foreign vessel was pronounced in fault, but by the Merchant Shipping Act, c. 104, s. 296, 298, 299, it was provided that if a ship did not port her helm when meeting another ship, and a collision occurred, such "ship could not recover any recompense for any damage sustained. "British ship did not port her helm; it was therefore urged that she could not recover, by reason of her own default:-Holden, that the 17th and 18th Vic., c. 104, ss. 296, 298, 299, did not apply to cases in which foreign vessels were "concerned, and that therefore the general maritime law must prevail, and the "British vessel was entitled to be recompensed for the damage she had sus"tained."

"

CHAPTER XLII.

BILLS OF EXCHANGE AND LITERÆ CAMBII-LETTRES DE CHANGE-WECHSEL-WECHSELGESCHAFTE.

DCCCXXXV. We have now to consider the rules of Comity with respect to that great instrument of commerce, Negotiable Paper-Promissory Notes, or Bills of Exchange. (a)

This subject was, on account of its importance and certain peculiarities incident to it, not included in the foregoing chapters on Obligations, but reserved for special consideration, though the general principles of the law relative to them are of course applicable to bills of exchange.

DCCCXXXVI. The contract of a bill of exchange, like other contracts, in this respect must be considered with refer

ence to

1. The lex domicilii, the law which governs the personal capacity to contract.

2. The lex loci contractus.

3. The lex loci solutionis. 4. The lex fori.

DCCCXXXVII. First, as to the lex domicilii, or the personal capacity to enter into this contract.

A bill of exchange must be considered with reference to the different persons interested or concerned in it, such persons

(a) See generally Byles on Bills of Exchange, c. 32,-Of the effect of Foreign Law in England relating to Bills of Exchange and Promissory

Notes.

Savigny, vol. viii. s. 364 (Wechselsrecht).

1 Falix (ed. Dem.), pp. 76, 160, 177, 181, 224, 244, 238.

2 Massé, ss. 141-148.

being, according to the nomenclature of English law, the drawer, the payee, the acceptor, the endorser.

A bill is, in the technical phrase, said to be honoured when it is duly accepted; when it becomes payable by lapse of time it is said to have arrived at maturity; and, when acceptance or payment thereof is refused, it is said to be dishonoured. (b)

It has been established as a general principle in the English Courts that the liabilities of the drawer, the acceptor, and endorser, must be governed by the laws of the countries in which the drawing, acceptance, and endorsement respectively took place.

DCCCXXXVIII. The English law, which looks exclusively to the lex loci contractus in contracts, and excludes all consideration of personal capacity by the law of the domicil, has some advantage over the foreign law in this particular instance. Savigny admits that there is no matter on which there exists such a variety of local and personal law as on the personal capacity of the drawer of a bill of exchange. Some foreign writers endeavour to get rid of the difficulty, and still adhere to the general doctrine respecting the personal statute following the person everywhere, by allowing in this instance a special capacity of the drawer derived from the place where the act is done, though in other respects his general capacity still remains governed by the law of the domicil. Savigny rejects this rather lame device, and maintains that upon true and sound principles the law of the domicil must decide the question of capacity: but such is the difficulty of the case that it demands, he thinks, positive legislation in each state upon the subject.

DCCCXXXIX. Since the 27th of November, 1848, a law has prevailed throughout the whole of Germany, which removes, so far as that country is concerned, all practical difficulty connected with the subject. By that law every subject

(b) Story on Bills, s. 126, p. 47.