called the grand bill of sale, and is distinguished by this name If a ship be mortgaged, we know no reason why it does not come under the common law, or statute law where that exists, in relation to mortgages of personal property, unless the Statute of 1850, ch. 27, interferes with and controls the State statutes. For most of our States have now statutes requiring, to make a mortgage of personal property valid, either a transfer of possession, or a record of the mortgages; and they prescribe a place for the record. But the statute of 1850 requires, that every transfer, including, of course, mortgages, should be registered in the custom-house. The questions then occur, is of registry." And the omission of this recital has been adjudged in Great Britain to invalidate the sale, so that the vendee who had taken possession of the vessel under the bill of sale could not retain her against the assignees of the vendor, who subsequently to the sale had become a bankrupt. Rolleston v. Hibbert, 3 T. R. 406. And relief was denied in equity. Hibbert v. Rolleston, 3 Brown's Ch. 571. See, also, Campbell v. Thompson, 2 Hare, 140. The case is the same with an executory agreement to sell. Biddell v. Leeder, 1 B. & C. 327; Brewster v. Clarke, Meriv. 75; Hughes v. Morris, 2 De G., McN., & G. 349, 12 Eng. L. & Eq. 291. So where the certificate was misrecited. Westerdell v. Dale, 7 T. R. 306. These provisions of the registry acts do not, however, extend to transfers by operation of law. Curtis v. Perry, 6 Ves. 739 a; Ex parte Yallop, 15 Ves. 60, 68; Bloxam v. Hubbard, 5 East, 407. In America, such an omission merely forfeits the national character of the vessel. Mitchell v. Taylor, 32 Maine, 434; D'Wolf v. Harris, 4 Mason, 515, 533. So with the insufficient recital of the certificate. Philips v. Ledley, 1 Wash. C. C. 226, 229. So with the omission to enroll the bill of sale in the custom-house. Hozey v. Buchanan, 16 Pet. 215. See also, as to the distinction between the British and American registry acts, with respect to the consequences of a neglect to comply with their provisions generally. Colson v. Bonzey, 6 Greenl. 474, 475. 1 Abbott on Shipping, 3. In England the grand bill of sale is necessary to the transfer of a ship at sea. Atkinson v. Maling, 2 T. R. 462; Gordon v. The East India Co. 7 T. R. 228, 234. * Portland Bank v. Stacey, 4 Mass. 661; Wheeler v. Sumner, 4 Mason, 183; Morgan's Ex'rs v. Biddle, 1 Yeates, 3; 3 Kent, Com. 133. 8 See the remarks of Parke, B., on the stat. 3 and 4 Will. 4, c. 55, § 31, in Hunter v. Parker, 7 M. & W. 322, 343. the registry of the transfer in the custom-house sufficient, so that registry under the State statutes is unnecessary; or, secondly, is registry in the custom-house indispensable, or is it enough that the transfer is recorded under the State statutes. Waiving the question of the constitutionality of the Statute of 1850, which we have already considered, we are of opinion that the United States statute controls the State statute, so far, that record under this latter would have no effect as legal notice of the transfer. At least, if it be constitutional, we do not see how its requirements can be superseded or supplied by those of a State law.1 If the ship be abroad, by the statute of Massachusetts the record is not necessary, if the mortgagee takes possession as soon as possible after her return to that State; 2 and this would seem to be almost an inference of law, even without express provision. For if the ship be where possession cannot be taken, and possession is taken as soon as that is possible, it would hardly seem to come within the meaning or within the reason of a mortgage without possession. Hence we should say that this 1 It is well settled that a law of Congress, which is in accordance with the constitution, is the supreme law of the land, and that a State law which comes in conflict with it must cease to operate, so far as it is repugnant to the law of the United States. License Cases, 5 How. 504, 574; Fox v. The State of Ohio, 5 How. 410; United States v. Marigold, 9 How. 560; Moore v. The State of Illinois, 14 How. 13; Groves v. Slaughter, 15 Pet. 449; Passenger Cases, 7 How. 283; Nathan v. The State of Louisiana, 8 How. 73; United States v. Peters, 5 Cranch, 115; Mager v. Grima, 8 How. 490; Weston v. City Council of Charleston, 2 Pet. 449; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of United States, 9 Wheat. 738; Prigg v. The Commonwealth of Penn. 16 Pet. 539; Ogden v. Saunders, 12 Wheat. 213; Brown v. The State of Maryland, 12 Wheat. 419; Norris v. City of Boston, 4 Met. 282, 288; People v. Brooks, 4 Den. 469. See also, Port Wardens of N. Y. v. Cartwright, 4 Sandf. 236, opinion of Paine, J. It is provided by statute in New York, that a steamboat navigating the waters of that State at night shall carry two lights. It is also provided by an act of Congress that steamers shall carry one or more lights. In Fitch v. Livingston, 4 Sandf. 492, a steam propeller, licensed as a coaster, going up the Hudson on a voyage from Philadelphia to Albany, came into collision with another steamer, and was found by the jury to be in fault because she carried only one light. It was argued, that, having complied with the provisions of the United States statute, she had done all that was necessary, but the court held that she was bound to comply with the statute of the State through whose waters she was passing. See, however, The Steamboat New York v. Rea, 18 How. 223. 2 Rev. Stats. ch. 74, § 6. 8 This question of possession will be more fully considered in a subsequent section. . principle would apply to a mortgage of goods at sea; for, in general, all the principles which apply to the sale of the ship at sea, apply to the sale of her cargo.1 SECTION III. OF THE SALE OF A SHIP BY THE MASTER. A sale of a ship is frequently made by the master; and if this is justified by necessity, it is valid.2 The necessity must, how 1 Gardner v. Howland, 2 Pick. 599, 602; Pratt v. Parkman, 24 Pick. 42; Gallop v. Newman, 7 Pick. 282; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co., 1 Pet. 389, 449. Quite recently some further points have been decided in respect to this act of 1850. Thus, it has been held, that mortgages must be recorded at the custom-house where the vessel was last registered. Potter v. Irish, Sup. Jud. Ct., Mass., March T. 1858, 21 Law Reporter, 103. It has also been held in Admiralty that the act does not apply to charter-parties. Hill v. The Golden Gate, 1 Newb. Adm. 308. And by Judge Hoffman, in the Superior Court of New York City, that the act does not abolish State statutes, and, therefore, that a mortgage which is recorded according to the act of Congress, and also according to the State statute, takes precedence of a prior mortgage which is registered only according to the act of Congress. Thompson v. Van Vechten, Nov. 1857. But we doubt whether this be law. In Marsh v. The Brig Minnie, U. S. D. C., South Carolina, 6 Am. Law Register, 328, it was held, that the lien on a vessel for supplies, was not a "hypothecation within the meaning of that phrase in the act of 1850, and need not, therefore, be recorded. 2 It is expressly declared by several foreign ordinances, that the master shall not sell the ship without especial authority for that purpose from the owners. He was, however, authorized to borrow money upon the credit of the ship, with the consent of his crew. Consulat, par Boucher, c. 156; Laws of Oleron, art. 1; Laws of Wisbuy, art. 13; Laws of the Hanse Towns, art. 57; French Ord. liv. 2, tit. 1. It seems probable from the early case of Tremenhere v. Tresillain, Siderfin, 452, that the power of the master to sell his ship under any circumstances whatever, without instructions from the owners, was not originally recognized in England, although there is a case in Jenkins' Centuries, p. 165, which might countenance a different doctrine. It is there observed, that in case of famine a master may sell his ship, although it does not belong to him. Lord Raymond, in Johnson v. Shippen, 2 Ld. Raym. 982, considered a bill of sale given by the master void as such, but valid as a hypothecation of the vessel, upon which process in rem might issue in admiralty, although not in personam. The passage in Eakins v. East India Co., 1 P. Wms. 395, 2 Bro. Parl. Cas. 382, cannot be considered, as we apprehend, an authority one way or the other; for, although it is there stated that the captain had no power to sell the ship, it was also expressly found that there existed no necessity for a sale. It is now well settled by a series of decisions, that the master, in a case of necessity, has the power to sell. See cases infra. And Dr. Lushington, in the case of The Catherine, 1 Eng. L. & Eq. 679, ever, be imminent and extreme; and the master must have acted in good faith, and with the exercise of a sound discretion. It is not quite easy to determine by exact definition what the power of the master is in this respect. It is certainly not enough that he acted in good faith, if the necessity were not so cogent as to give him the authority. It is sometimes said also, that it is not 681, says: "In later days I think a wiser view of the question has been taken, because I take the law now to be, that, where an urgent necessity exists, which the master cannot meet, it is competent to him to sell the vessel." But in such a case, the burden of proof lies on the purchaser to show that the sale was necessary. The Glasgow, 28 Law T. (Adm.) 13. 1 The Fanny & Elmira, Edw. Adm. 117; Hunter v. Parker, 7 M. & W. 322; Cannan v. Meaburn, 1 Bing. 243; Meaburn v. Leckie, 4 Dow. & Ry. 207, n.; Idle v. R. Exch. Ass. C., 8 Taunt. 755; Tanner v. Bennett, Ryan & M. 182; Hayman v. Molton, 5 Esp. 65; Robertson v. Clarke, 1 Bing. 445. The law is stated with great accuracy by Tindal, C. J., in Somes v. Sugrue, 4 C. & P. 276: "A great deal has been said about the word necessity. Undoubtedly, it is not to be confined to, or so strictly taken, as it is in its ordinary acceptation. There can, in such a case, be neither a legal necessity, nor a physical necessity, and therefore it must mean a moral necessity; and the question will be, whether the circumstances were such, that a person of prudent and sound mind could have a doubt as to the course he ought to pursue. The points principally for consideration will be, the expenditure necessary to put the ship into a condition to bring home her cargo; the means of performing the repairs, and the comparison between those two things, and the subject-matter which was at stake; and it must not be a mere measuring cast, not a matter of doubt in the mind, whether the expense would or would not have exceeded the value; but it must be so preponderating an excess of expense, that no reasonable man could doubt as to the propriety of selling under the circumstances, instead of repairing. . . . . A captain has no power to sell, except from necessity, considered as an impulse, acting morally, to excuse his departure from the original duty cast upon him of navigating and bringing back the vessel. If he has no means of getting the repairs done in the place where the injury occurs; or if, being in a place where they might be done, he has no money in his possession, and is not able to raise any, then he is justified in selling, as the best thing that can be done." And in this country the same rule exists; the sale must not only be bonâ fide, but the necessity for it must exist. Pope v. Nickerson, 3 Story, 465, 504; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220; Patapsco Ins. Co. v. Southgate, 5 Pet. 604; The Brig Sarah Ann, 2 Sumn. 206, s. c. New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387; The Sch. Tilton, 5 Mason, 465. The necessity which will justify the sale is termed by Shaw, C. J., an "imperious, uncontrollable necessity." Peirce v. Ocean Ins. Co., 18 Pick. 83, 88. In Somes v. Sugrue, supra, and in Pope v. Nickerson, 3 Story, 465, 504, it is called a moral necessity. Mr. Justice Story, in the case of The Ship Fortitude, 3 Sumn. 228, 248, thus defines the meaning of moral necessity: "Some criticism has been employed upon the words 'moral necessity' as applied to the conduct of the master acting in cases of this sort; and it has been more than intimated, that the expression is quite new, and can scarcely be traced beyond the case of Gordon v. Mass. F. & M. Ins. Co., 2 Pick. 249. It does not appear to me that the criticism has any just foundation, or that the expression is either new or inapt. It seems to indicate precisely that which such a case requires. Moral necessity arises, where there is a duty incumbent upon a rational being to per enough that he sells in the exercise of a sound discretion, because the danger must be actual. But it is quite certain that the validity of the sale is not to be judged of by the event. That may show that the danger was apparent only, because the first tide, or an immediate change of wind, lifted her off.1 form, which he ought at the time to perform. It presupposes a power of volition and action, under circumstances in which he ought to act, but in which he is not absolutely compelled to act by overwhelming, superior force." And in Hall v. Franklin Ins. Co. 9 Pick. 466, it is said: "The sale should be indispensably requisite. The reasons for it should be cogent. We mean a necessity which leaves no alternative; which prescribes the law for itself, and puts the party in a positive state of compulsion to act." The master may sell where the ship is a total wreck. Cambridge v. Anderton, 2 B. & C. 693; Ireland v. Thompson, 4 C. B. 149. Or, in an insurance case, if the expense of repairs would exceed the value of the vessel when repaired. Gordon v. Mass. F. & M. Ins. Co. 2 Pick. 249. See also, on this point, the remarks of Mr. Justice Bayley, in Gardner v. Salvador, 1 Moody & R. 116. "If the situation of the ship be such, that, by no means within the master's reach, it can be treated so as to retain the character of a ship, then it is a total loss. If the captain, by means within his reach, can make an experiment to save it, with a fair hope of restoring it to the character of a ship, he cannot, by selling, turn it into a total loss." The master's opinion of the necessity, and the benefit resulting from the sale, and his professional skill, will not justify him in the absence of a real necessity. Patapsco Ins. Co. v. Southgate, supra; The Henry, 1 Bl. & Howl. Adm. 465. The presumption however is, that he has done his duty. Robinson v. Com. Ins. Co. 3 Sumn. 220. In Post v. Jones, 19 How. 150, the vessel was wrecked on the coast of Behring's Straits. The cargo, consisting of barrels of oil, was taken out and saved by three other whaling ships. The form of an auction was gone through with, the captains of the three vessels being the bidders, and the ship and tackle were sold for five dollars, and the cargo, part at a dollar, and the rest at seventyfive cents per barrel. The sale was held invalid. The court said: “All the cases assume the fact of a sale in a civilized country where men have money, where there is market and competition. They have no application to wreck in a distant ocean, where the property is derelict, or about to become so, and the person, who has it in his power to save the crew, and salve the cargo, prefers to drive a bargain with the master. The necessity in such a case may be imperative, because it is the price of safety, but it is not of that character which permits the master to excrcise this power." 1 The Brig Sarah Ann, 2 Sumn. 206, 215; affirmed on appeal, New Eng. Ins. Co. v. Brig Sarah Ann, 13 Pet. 387. Mr. Justice Wayne, delivering the opinion of the court in this case, said :-"Nor can the necessity for a sale be denied, when the peril, in the opinion of those capable of forming a judgment, makes a loss probable, though the vessel may in a short time afterwards be got off and put afloat. It is true, the opinion or judgment of competent persons may be falsified by the event, and that their judgment may be shown to have been erroneous by the better knowledge of other persons, showing it was probable that the vessel could have been extricated from her peril without great injury or incurring great expense, and the master's incompetency to form a judgment or to act with a proper discretion in the case may be shown. But from the mere fact of the vessel having been extricated from her peril, no presumption can be raised of the master's incompetency, or of that of his advisers." See also Idle v. |