*payment of those instalments appropriates specifically to the purchaser of the ship so in progress, and vests in him a property in that ship, and that as between him and the builder, he is entitled to insist upon the completion of that very ship, and the builder is not entitled to require him to accept any other. In conformity with this opinion, the Court of Queen's Bench, in the case of Clarke v. Spence (h), decided that where a purchaser contracted with a shipbuilder to build him a ship for a certain sum, to be paid by instalments as the work proceeded; the first instalment when the vessel was rammed; the second when she was timbered; the third when she was decked, &c., and an agent for the purchaser was to superintend the building; that on payment of the first instalment, the property in the portion then finished, became, by virtue of the contract, vested in the purchaser, subject to the right of the builder to retain such portion for the purpose of completing the work, and earning the rest of the price; and that each material subsequently added, became, as it was added, the property of the purchaser as the general owner. In a subsequent case (i), it was considered by the Court of Exchequer, that the contract was executory, for the ship when finished, and, therefore, that the property in it did not pass while the ship remained in progress and incomplete; but the doctrine laid down in the two former cases was expressly recognized.

This doctrine of appropriation of ships in the course of building, seems to have been first established in Scotland, where also the special contracts which have given rise to it appear to have originated. In the case of Simon v. Duncannon's creditors (k) (1786), a vessel was contracted to be built in Scotland, the price to be paid by instalments, one when the keel was laid, another when the vessel was planked, and the last when the vessel was launched; the builders having

failed after the first payment, it was held that the vessel, [5] on the principle of special tappropriation, belonged to the *employer, from the time of laying down the keel (1). * (1).

(h) 4 Adol. & Ell. 448; 6 Nev. & Man. 416.

(i) Laidler v. Burlinson, 2 M. & W. 602. See also Battersby v. Gale, 4 Adol. & 11. 458.

(k) Faculty's Coll. no. 290; Bell's Principles of the Law of Scotland, p. 486. (1) The law of vendors and purchasers of ships formed no part of the design of the Author of this Treatise, and his present Editor would not thus briefly have adverted to it, but for his experience of its importance, and his wish to direct attention and acknowledge his obligations to a very valuable work lately published by Mr. Wilkin

(1) See Glover v. Austin, 6 Pick. 209; Sumner v. Hamlet, 12 Pick. 82, 83; Johnson v. Hunt, 11 Wendell, 135; Chitty, Contracts, (6th Am. ed.) 378-382; 2 Kent, (5th ed.) 504, and note; Bonsey v. Amee, 8 Pick. 237, 238. >

The writers (m) on Maritime Law inform us that if a ship be sold with the tackle, apparel, furniture, and other instruments thereto belonging, the ship's boat is not conveyed by these words; and they found their opinion upon the authority of those parts of the Digest, in which it is said that the boat is not a part of the ship (n) or of its apparel (o). (1).

* Ballast in an early case was held not to be furniture in a ship (p), for although in some cases necessary, it is not always so, and "ships may be laden with such merchandize as are convenient ballast of themselves," with advantage to the shipowner (2). In Lano v. Neate (q), a ship was conveyed with all stores, tackle, apparel, &c., but no mention was made of kentledge," or permanent ballast, consisting usually of pigs of iron, cast in a particular form, or other weighty material, which, on account of its superior cleanliness and the small space occupied by it, is now frequently preferred to ordinary ballast, but Lord Ellenborough ruled that it could not be considered as part of the ship's necessary stores, since common ballast might have answered the same purpose. In the case of Hoskins v. Pickersgill (r), a question arose whether the fishing tackle was included under the terms "ship furniture," &c., in a policy of insurance on a ship employed in the Greenland fishery. Lord Mansfield said, there was no [† 6] doubt but that the boats, rigging, and stores belonging to the ship were included, but that as to fishing tackle in insurance cases it must depend on the usage of trade.

son, "On the Law of Shipping as it relates to the Building, Registry, Sale, Transfer, and Mortgages of British Ships, including the Registry, and Trading of Ships built in India," (Blenkarne, Chancery Lane.) This book, which supplies a want much felt in the profession, ought to find a place in the library of every mercantile lawyer. In addition to a learned analysis of all the cases decided in the Courts of Law and Equity, it contains a variety of practical directions and forms which cannot fail to be of great utility to professional men, whose assistance is likely to be required in the sale, conveyance, and mortgage of British ships.

(m) Roccus, not. 20; Straccha de Navibus, pars. 2, no. 12; Molloy, de Jure Marit. book 2, ch. 1, s. 8. The latter adds, that if a ship commit piracy, the boat is not forfeited; and refers to a case in Roll. Ab. for his authority; and Beawes has followed the words of Molloy, but in the case referred to, the boat is not mentioned. See the case of Shannon v. Owen and Others, 1 Man. & Ry. 392.

(n) Dig. 21, 2, 44.

(0) Dig. 6, 3, 1.

(p) Kynter's case, 28 and 29 Eliz. C. P.; Leon. 46, 47.

(q) 2 Stark. 105.

(r) Hoskins v. Pickersgill, 2 Marsh. Ins. 735; Park, 97.

(1) See Starr v. Goodwin, 2 Root, 71; Richardson v. Clark, 15 Maine, 422, 423; Briggs v. Strange, 17 Mass. 405. >

(2) See Richardson v. Clark, 15 Maine, 422. >

*In the case of the Dundee (s), decided in the Court of Admiralty, and afterwards by the Court of Queen's Bench, the principle of construction applicable to general words of this description has been more clearly exemplified than on any former occasion. The ship Dundee on her voyage to the Greenland fishery, having on board the necessary stores and implements for the taking of whales and other fish, and procuring and bringing home in casks the oil and blubber, having run foul of another vessel, the question was, whether those stores, implements, &c., were to be understood as forming part of the ship within the meaning of the first section. of the 53 Geo. 3, c. 159, by which the responsibility of shipowners in case of loss or damage occurring without their fault or privity, is limited to the value of their ship and the freight due, or accruing due, for and during the voyage in prosecution, or contracted for at the time of the happening of such loss or damage. It was decided that the first section of that statute was to be construed as if the words "with all her appurtenances," which occur in many sections of the Act, had been inserted in it, and that whatever was on board of a ship for the object of the voyage and adventure on which she was engaged belonging to the owner, constituted a part of the ship and her appurtenances within the meaning of that Act, and that the owner was liable to the extent of the value thereof.

In the case of Woods v. Russell (t), the rudder and cordage bought by the builder specifically for a ship complete or nearly so, though not actually attached to it at the time of delivery to the purchaser, were considered to pass with the ship. It would seem also, from the observations of the Court, in the case of Gale v. Laurie, that the fittings of a packet, or the guns of a privateer, would be included in the word "appurtenances;" and the Master of the Rolls, in a recent case, appeared to approve of the opinion of Lord Stowell and Lord Eldon, to be collected, as he thought, from their judgments, that the word "appurtenances " included all such mat*ters as are incidental to the working of a ship (u). (1).

(s) 1 Hagg. Ad. Rep. 109; Gale v. Laurie, 5 B. & C. 156.

(t) 5 B. & Ald. 942.

(u) Langton v. Horton, Leg. Ob. vol. 23, p. 524.

(1) In Richardson v. Clark, 15 Maine, 421, it was held, that a bill of sale of the hull of a vessel with all and singular her tackle, apparel and furniture, does not include a chronometer on board at the time, where no agreement of the parties, or custom of merchants, in relation to it, is made to appear, though the box containing the chronometer had been secured to the transom and removed. The Court in this case,

†2. The master of a ship possesses, as more fully appears [† 7] in different parts of this Treatise, every power necessary for the employment and navigation of the ship; but he has not, unless in a case of extreme necessity, authority to sell the ship, and he is bound seriously and deliberately to try every other expedient to raise money, before disposing of the ship or any part of the cargo (r). And with a view probably to prevent the opportunity of fraud, which the allowance of this power to him might afford, several of the foreign (y) ordinances expressly declare, that he shall not sell the ship without a special authority for that purpose from the owners; at the same time, however, authorizing him, in case of necessity, to borrow money upon the credit of the ship or its furniture, with the assent of his crew. And in conformity to these regulations, Sir Matthew Hale, when Chief Baron of the Exchequer, is reported to have decided upon a (z) case referred to, and argued before him, that the sale of a ship by the master did not convey the property to the buyer, although the sale was made in a foreign country, in a case of inevitable danger, the ship and tackle being beaten and broken, and no hope of saving any part of them, partly on account of the tempest, and partly on account of the barbarity of the inhabitants of the country, who carried off every thing that was cast on shore. Perhaps, however, there might in this case be some circumstances, not noticed by the reporter, which might lead the learned Judge to doubt the absolute necessity of a sale, or to think the buyer a party to the misconduct mentioned in the book. In a case that came before the Court of King's Bench on the subject of hypothecation, Lord Holt is reported to have said, "The master has no authority to sell any part of the ship, and his sale transfers no property; but he may hypothecate" (a). And in a subsequent case (b), wherein Lord Chanceller Cowper decreed that the East India Company should pay to the owner of a ship purchased of the master at Batavia for their use by one of their agents the difference between the real value and the sum paid to the master, †with [† 8]

(r) Underwood v. Robertson, 4 Camp. 138.

(y) Consulat, par Boucher, cap. 156; Laws of Oleron, art 1; of Wisbuy, art. 13; of the Hanse Towns, art. 57; French Ordinance, liv. 2, tit. 1; Du Capitaine, art. 19 ; Ordinance of Rotterdam, art. 165; 2 Magens, 107.

(z) Tremenhere v. Tresillian, 1 Sid. 452.

(a) Johnson v. Shippen, 2 Lord Raym. 984.

(6) Elkins v. East India Company, 1 P. Wms. 392; 2 Bro. Parl. Cases, 72.

however, add, that they do not intend to decide, but that in the improvements of nautical science chronometers may become necessary appurtenances to ships. p. 425. >

*In the case of the Dundee (s), decided in the Court of Admiralty, and afterwards by the Court of Queen's Bench, the principle of construction applicable to general words of this description has been more clearly exemplified than on any former occasion. The ship Dundee on her voyage to the Greenland fishery, having on board the necessary stores and implements for the taking of whales and other fish, and procuring and bringing home in casks the oil and blubber, having run foul of another vessel, the question was, whether those stores, implements, &c., were to be understood as forming part of the ship within the meaning of the first section of the 53 Geo. 3, c. 159, by which the responsibility of shipowners in case of loss or damage occurring without their fault or privity, is limited to the value of their ship and the freight due, or accruing due, for and during the voyage in prosecution, or contracted for at the time of the happening of such loss or damage. It was decided that the first section of that statute was to be construed as if the words "with all her appurtenances," which occur in many sections of the Act, had been inserted in it, and that whatever was on board of a ship for the object of the voyage and adventure on which she was engaged belonging to the owner, constituted a part of the ship and her appurtenances within the meaning of that Act, and that the owner was liable to the extent of the value thereof.

In the case of Woods v. Russell (t), the rudder and cordage bought by the builder specifically for a ship complete or nearly so, though not actually attached to it at the time of delivery to the purchaser, were considered to pass with the ship. It would seem also, from the observations of the Court, in the case of Gale v. Laurie, that the fittings of a packet, or the guns of a privateer, would be included in the word "appurtenances;" and the Master of the Rolls, in a recent case, appeared to approve of the opinion of Lord Stowell and Lord Eldon, to be collected, as he thought, from their judgments, that the word "appurtenances " included all such matters as are incidental to the working of a ship (u). (1).

(s) 1 Hagg. Ad. Rep. 109; Gale v. Laurie, 5 B. & C. 156.

(t) 5 B. & Ald. 942.

(u) Langton v. Horton, Leg. Ob. vol. 23, p. 524.

(1) In Richardson v. Clark, 15 Maine, 421, it was held, that a bill of sale of the hull of a vessel with all and singular her tackle, apparel and furniture, does not include a chronometer on board at the time, where no agreement of the parties, or custom of merchants, in relation to it, is made to appear, though the box containing the chronometer had been secured to the transom and removed. The Court in this case,