No ship shall the privileges be entitled to of a British shall be entitled to any of the privileges or advantages of a British registered ship unless the person or persons claiming property therein shall have caused the same to be registered, in virtue of the 6 Geo. 4, c. 110, or of the 4 Geo. 4, c. 41, or until such person or persons shall have caused the same to be registered in manner thereinafter mentioned, and shall have obtained a certificate of such registry from the person ship unless or persons authorised to make such registry, and grant such registered according certificate as thereinafter directed” (a). And it is further to the act. enacted, "that in case any ship or vessel not being duly registered, and not having obtained such certificate of registry as aforesaid, shall exercise any of the privileges of a British ship, the same shall be subject to forfeiture, and also all the guns, furniture, ammunition, tackle, and apparel to the same ship or vessel belonging, and shall and may be seized by any officer or officers of his Majesty's customs" (b). "That where the property in any ship, or any part thereof, belonging to any of his Majesty's subjects, shall be sold to any other of his Majesty's subjects, the same shall be transferred by bill of sale, containing a recital of the certificate of registry of such ship, or the principal contents thereof, otherwise such transfer shall not be valid or effectual for any purpose whatever, either in law or in equity; but no bill of sale shall be deemed void by reason of any error in such recital, provided the identity of the ship intended in the recital be effectually proved thereby" (c). And, therefore, a certificate of registry affords conclusive proof that a person not named therein, was not at that time owner. Marsh v. Robinson (d). Transfers of made by bills of sale, reciting registry. interest to be certificate of A certificate of registry is evidence that a party whose name is not mentioned therein is not And in the case of Camden v. Anderson (e), where two partners purchased a ship under a regular bill of sale, and owner. were registered accordingly, and they afterwards took in two (a) Sect. 2, and see the form in the act. (b) Sect. 4. (c) Sect. 31. Upon the construc tion of this section, see Hunter v. (d) 4 Esp. 98. (e) 5 T. R. 709. other partners, who paid their respective shares in the ship, but there was no transfer to them under the direction of the statute (a), it was held that the four partners had not an insurable interest in the freight, for as the right of freight resulted from the right of ownership, these four partners had not shewn in themselves jointly (as laid in the declaration) either a legal or equitable title in the ship. When, therefore, the interest in the ship is claimed by a bill of sale or other writing, and possession and acts of ownership are not relied upon by the assured, he must give in evidence the proper documents required by the statute in order to support his case (b). In the case of Senat v. Porter (c), where the agent or broker of the assured, having shown to the underwriter the protest of the captain, stating the circumstances of the loss of the ship insured, and demanding payment, it was held by the Court, on a motion for a new trial, that the delivery of this paper to the defendant did not entitle him to read it, as evidence of the facts contained in it; though, had the captain been called to give a different account of the loss from that contained in the protest, it might have been produced to show that he was not worthy of credit; but it could not be read on the part of the defendant to prove any fact in the case. So also in Wright v. Barnard (d), in an action on a policy on the ship, a condemnation of the vessel by a Court of Vice Admiralty abroad for insufficiency, after a survey had upon oath, was offered in evidence by the underwriters, to prove that there were defects in the ship, from which want of seaworthiness at a prior time was meant to be inferred; but Lord Kenyon rejected the sentence as evidence of the facts (a) 26 Geo. 3, c. 60. (b) See the 40th sect. of 3 & 4 Wm. 4, c. 55, and see Teed v. Martin, 4 Camp. 90, as to secondary evidence, and see Woodward v. Larking, 3 Esp. 286. (c) 7 T. R. 158. The same doctrine had been previously held by Lord Kenyon in Christian v. Combe, 2 Esp. 489. (d) Sittings after Mich. 1798, at Guildhall, Park Ins. 863. contained in it, though he admitted it to be read, to prove the mere fact of a condemnation having taken place; and this, notwithstanding an order of the Court of Exchequer, directing that it should be admitted in evidence. A man having purchased goods beyond sea, in order to prove his property in the cargo, in an action upon a policy of insurance, produced a bill of parcels of one Gardiner, at Petersburgh, with his receipt to it, and proved his hand. The defendant objected that this was no evidence against the insurers; but the Lord Chief Justice allowed it. Russel v. Boheme (a). If the policy is on freight, the assured must show either that the goods were on board, or ready to be put on board, under a contract capable of being enforced, or that there was an inception of the right by means of a charter-party. And the assured cannot recover for the whole freight under even a valued policy where only part have been put on board, and no inchoate right to freight had arisen under a charterparty or other contract (b). The plaintiff must prove the happening of the loss as declaration. averred in the It is, in the last place, incumbent on the plaintiff to prove that a loss has happened, and that by the very means stated in the declaration. It is absolutely necessary that this rule should be strictly adhered to; for otherwise the insurers would come into Court prepared to defend themselves against one charge, and one species of loss; and they would then be obliged to resist a demand upon a quite different ground. This appeared clearly in the case of Gregson v. Gilbert (c), and also in the case of Kulen Kemp v. Vigne (d), which was an action on a policy of insurance, which came on to be tried before Mr. Justice Buller, who nonsuited the plaintiff. Upon performed the a motion to set aside that nonsuit, the following report was made by the learned Judge. The insurance was upon goods on board the ship Emanuel, at and from Falmouth to Mar (a) 2 Stra. 1127. (b) See Devaux v. l'Anson, 7 Scott, 507; 5 B. N C. 519, and ante, p. 173. (c) B. B. East. T. 23 Geo. 3. Park Ins. 138, ante, p. 272. (d) 1 T. R 304. Where a ship was captured but afterwards restored and might have voyage notwithstanding the capture, but was lost by the perils of the seas, and the declaration seilles, warranted a Danish ship, and on the policy was this alleged a loss by capture. The proof of the loss was held not to support the allegation in the declara tion. memorandum :-"The following insurance is declared to be on money expended for reclaiming the ship and cargo valued at the sum which shall be declared hereafter. The loss to be paid, in case the ship does not arrive at Marseilles, and without further proof of interest than this policy; warranted free from all average, and without the benefit of salvage." It appeared that the plaintiffs were proprietors of the cargo, but not of the ship. That the ship originally sailed with the cargo on board from Riga to Marseilles, and that insurance. had been effected at Bremen upon the cargo for that voyage, in the course of which she was taken and brought into Falmouth by an English privateer. That a sentence of condemnation had been there obtained, which was afterwards reversed, upon the prize having been proved to be a neutral ship, but the expenses of procuring that reversal were ordered by the Admiralty Court to be a charge upon the cargo. The plaintiff's agents accordingly paid the sum of 1,031% 14s. for the expenses of reclaiming the ship and cargo; and immediately procured the policy in question to be effected in January, 1781, according to the purport of the memorandum. In the February following, the ship set sail from Falmouth, with the original cargo on board, in the prosecution of her voyage to Marseilles, but, on the 26th of the same month, before her arrival there, was captured by a Spanish ship, and carried into Ceuta, in Spain, where she was again condemned. An appeal was brought in the Superior Court at Madrid, which promising to be of long continuance, the cargo, which was of a perishable nature, was ordered to be sold, and the proceeds to be brought into Court to wait the event of the suit. In May, 1783, the vessel was restored by sentence of the Court, and the surplus of the proceeds which arose from the sale of the cargo was paid to the owners, deducting the expenses incurred in Spain in prosecuting the appeal. After all the charges paid, there only remained twenty-six rixdollars. As soon as the ship was liberated, she sailed from Ceuta to Malaga, in order to refit, and having there made the necessary repairs, set sail for Bremen, and in that voyage was lost. The insurance made upon the cargo at Bremen had been paid. The declaration averred that, "whilst the ship was proceeding in her said voyage from Falmouth to Marseilles, and before she could arrive at Marseilles, she was captured by the Spaniards, and thereby the said ship, and also the goods and merchandises on board her, were totally lost to the plaintiffs." At the trial, it was objected, on the part of the defendant, 1st, that this was not an insurable interest; and 2ndly, that the plaintiffs could not recover upon the policy in this form of declaring, for they stated the loss to have happened by capture; whereas, though the vessel was captured, yet, having been afterwards restored, she might have reached her destined port, notwithstanding the capture, in which case the underwriters would have been discharged by the terms of the memorandum. I was of that opinion, and upon the last ground I nonsuited the plaintiffs." This case was very fully argued both upon the merits and the formal objection, after which all the Judges spoke upon the question. Lord Mansfield.-" A loss accrued upon the cargo in the voyage, the underwriter is sued, and the loss is averred in the declaration to be by capture. The fact of the case is, that the ship was taken by a Spanish privateer, but was afterwards restored, and in a condition to pursue the voyage, and was afterwards lost in another voyage." Mr. Justice Willes.-" Upon this case it is clear that the plaintiffs cannot recover. In the first place there was certainly a deviation, for the ship set sail for Malaga, instead of proceeding to Marseilles. Secondly, the plaintiff has declared for a loss by capture; but after the capture, the policy might still have been complied with by the ship's going to Marseilles, and therefore the loss cannot be said to have happened by that circumstance." But where, in the case of Cary v. King (a), a loss is averred (a) Cas. temp. Hard. B. B. 304. But salvage payable under a decree of a Court of Admiralty must be proved by evidence of the judgment of the Court. Thelluson v. Sheddon, 2 N. R. 229. |