The law of the sea

by George L. Canfield; J. Y. Brinton; George W. Dalzell

I. Ship Registry

General.—

Under the power to regulate commerce Congress, among its earliest enactments, adopted a system of ship registry for American-owned bottoms and created the class of vessels to be known as "vessels of the United States." The purpose of establishing this system was the double one of encouraging domestic commerce and of building up our national defense. It did not require and (with certain war-time exceptions) has never required that American-owned ships should be registered, but by imposing prohibitory penalties on foreign trade in American-owned vessels which are not registered, and by closing the coasting trade entirely to all except American-owned vessels (or vessels operating during war time under special permission of the Shipping Board) it made the securing of appropriate documents—a register—an enrollment and license—or a simple license, as the case may be,—a practical necessity for American-owned vessels engaged in American trade. In passing it is to be noted that while a ship's registry is a special document, distinguished from the enrollments and licenses of smaller vessels, the word registry is commonly used as covering generally all three classes of documentation.

Registry and Nationality.—

While vessels, like citizens, are commonly said to have a nationality, their nationality is not necessarily a matter of registry. Nationality means rather—To what country does the ship in fact belong and to whose protection is she entitled? As far as the United States is concerned this nationality—this right to protection—depends upon ownership.

Therefore, if a ship is actually owned by American citizens, her nationality is American, and she is entitled to the protection accorded to American property all the world over, regardless of the fact that for any reason she may not be entitled to, or may not desire to take, American registry.

Registry and the Flag.—

In the same way, the right to fly the American flag is not dependent upon American registry, but upon American ownership. The flag is only the symbol of nationality and of a right to protection. It is the signal to other vessels at sea—conveying information as to nationality, just as her other signals are used to convey the name of the private owner or of the line to which she belongs. It follows that the American flag may be flown upon any vessel owned by American citizens. For many years vessels of this character flying the American flag have been familiar in the trade in the Far and Near East.

The rule as to the use of a flag is somewhat different and more strict in England. Under the Merchant Shipping Acts the use of a British flag on board a ship owned either in whole or in part by persons not lawfully qualified to own a British ship, subjects the vessel to forfeiture. But there are no such provisions in the law of the United States and questions as to the improper use of the flag of this country upon vessels have not arisen, although occasional diplomatic negotiations have been undertaken to prevent the use of the American flag in foreign countries. Generally speaking it may be said that the United States has been extremely lax in regulating the use of her flag.

Registry and Ownership.—

Just as registry is not necessary to give nationality, with its corresponding right to protection, so it is true that the transfer of title to ships is not dependent upon its registry laws. While title to a ship must be passed by bill of sale, this does not depend upon any requirement of the United States law, but arises out of the general maritime law. It is only in the case of ships that are to be registered or enrolled that it is necessary that the transfer be made according to the particular and very specific form prescribed by the registry acts.

Vessels Entitled to American Registry.—

Under the early ship registry acts, and for a period of over 120 years, American registry was confined to American-built ships. Such alone were "deemed vessels of the United States, and entitled to the benefits and privileges appertaining to such vessels." As already noted, these privileges were, in effect, the right to engage in American trade.

In 1892, a special act was passed granting American registry to certain foreign-built vessels of the American Line under conditions as to the building of other vessels, but this was a special and very limited proviso.

The Panama Canal Act of 1912, however, made a radical change in our policy and opened American registry to foreign-built vessels not over five years old, owned by American citizens, although denying to these vessels the privilege of entering the coasting trade.

The Ship Registry Act of 1914 went a step farther and removed the limitation as to age, and also authorized the President to suspend, as to these vessels, the rigorous provision that the watch officers of all vessels engaged in foreign trade should be citizens of the United States. This authority was exercised by the President and many such vessels have been registered.

In 1915 a law was passed to facilitate the transfer of American-owned vessels from foreign to domestic registry by a repeal of the prohibitory duties on such vessels on condition that before leaving an American port they should secure the necessary documentation.

The Shipping Act of 1916, as amended in 1918, and again by the Merchant Marine Act of 1920, further enlarged the scope of the registry laws by providing that vessels (whatever their previous history) purchased, chartered or leased from the Board by citizens of the United States may be registered, or enrolled and licensed, or both enrolled and licensed, as vessels of the United States and entitled to the benefits and privileges of such documentation.

The various classes of vessels now entitled to registry under these laws may be thus divided:

(1) American-built vessels which have always been American-owned;

(2) American-built vessels formerly owned by foreign owners, but subsequently purchased by American citizens;

(3) Vessels captured in war lawfully condemned and owned by citizens;

(4) Vessels forfeited for breach of the laws;

(5) American-built vessels sold by the government to citizens, and foreign-built vessels bought or chartered by the government and sold to citizens;

(6) Vessels whose documentation is authorized by special act;

(7) Wrecked vessels purchased by citizens and repaired in American shipyards on proof that the repairs are equal to three times the appraised salved value; this is a special permission which is a dead letter except as to the coastwise trade, as wrecks can now be admitted to registry for foreign trade regardless of the amount of repairs;

(8) Vessels for foreign trade wherever built, wholly owned by citizens of the United States;

(9) Vessels purchased, chartered or leased from the Shipping Board by citizens of the United States.

Barges, lighters and other boats provided with sails or internal motive power, if falling within these classifications, are entitled to documents, as also barges and boats without sails or internal motive power engaged in the Canadian trade or employed upon the marine waters of the United States or engaged in the carriage of passengers.

The following classes of vessels are not within the provisions of the registry laws and therefore require no documents:

(1) Boats or lighters not masted, or if masted and not decked, employed in the harbor of any town or city and not carrying passengers.

(2) Barges or canal boats or boats without sails or internal motive power employed wholly upon canals or on the internal waters of the state and not engaged in trade with contiguous foreign territory and in carrying passengers;

(3) Barges or boats without sail or motive power, plying on inland rivers or lakes of the United States, also not engaged in trade with contiguous foreign territory and in carrying passengers;

(4) Vessels plying waters wholly within the limits of the state having no outlet into a river or lake on which commerce with foreign nations or among the states can be carried on.

Forms of Register, Enrollment and License.—

The Law provides for three classes of documents; (1) A Register; (2) An Enrollment and License; (3) A License.

Originally the license, which is applicable only in the coasting trade, was an altogether separate document from the enrollment, the form of each document being provided by statute. In 1906, however, the two documents were consolidated into one, so far as enrolled vessels were concerned, leaving the license only to be required in the case of smaller vessels. As the law now stands these documents are distinguished as follows:—

Registry is required, for vessels engaged in the foreign trade and in the trade with our insular possessions, except Hawaii and Porto Rico, and is permitted to vessels engaged in the domestic trade under certain requirements as to entry at the Custom House when laden with certain commodities, etc. There is but a single form of register.

Enrollment of License is required for vessels of twenty tons or over when engaging in the coasting trade. Separate forms are issued for the coasting trade or fisheries, and for yachts.

License alone is required for vessels between five and twenty tons when likewise engaged in the coasting and fishing trade.

Vessels of less than five tons may not be licensed, nor may pleasure vessels of less than sixteen tons be documented except under special instructions from the Department of Commerce.

In general form and purpose these documents closely resemble each other and further consolidation and simplification is badly needed.

Restrictions as to Coastwise Trade.—

From 1817 until the recent war the coastwise trade of the United States was limited to vessels of the United States. This restriction, however, was removed by the shipping Act of 1916. Under this act (§ 9) the Shipping Board was authorized generally (with certain very limited exceptions) to purchase, lease and charter vessels suitable for its purposes, regardless of whether foreign-built or not, and also to sell and charter the same to citizens of the United States, such vessels being entitled to American registry. As to all such vessels the Act specifically provided that they should be permitted to engage in the coastwise trade. This privilege was also extended to vessels owned, chartered or leased by the Emergency Fleet Corporation (see § XXV, below).

In addition, under an act passed in 1917, the Shipping Board was given authority in its discretion to permit vessels of foreign registry, and foreign-built vessels which had been admitted to American registry under the Act of 1914, already referred to, to engage in coastwise trade during the war, and for three months thereafter.

This latter act has been in terms repealed by the Merchant Marine Act of 1920, but with the proviso (§ 22) that all foreign-built vessels admitted to American registry, which were owned on February 1, 1920, by citizens of the United States, and all foreign-built vessels owned by the United States on the date of the signing of the Act (June 5, 1920), when sold and owned by citizens of the United States, may engage in the coastwise trade so long as they continue in such ownership.

The general policy above outlined is supplemented by a further proviso of the Merchant Marine Act (§ 27) forbidding the transportation of merchandise between points in the United States, or such of its possessions as are subject to the operation of the coastwise laws, in any other than documented vessels of the United States, owned by citizens of the United States, except in the case of the vessels to whom the privilege has been extended by the provisions above referred to.

Procedure for Documenting Vessels.—

Marine documents are issued by the Collectors of Customs for the various collection districts, one district frequently including several ports. The District of Philadelphia, for instance, includes Camden, Gloucester City, Chester, Somers Point, Tuckerton, Thompson's Point, Wilmington and Lewes.

Practically each step in the process of securing the ship's papers is marked by the production or issuance of one or other of a number of important documents. These steps are as follows:

1. Presentation of Carpenter's Certificate.—

The Carpenter's Certificate, sometimes referred to as the Master Carpenter's Certificate or Builder's Certificate, is the starting point of the vessel's official status in the eyes of the government, and is the first document to be produced before the Collector. It is the vessel's birth certificate, and is required in order to fix the origin of the vessel, to secure and place on record the best evidence as to the date and place of its building, the name of its builder, and its general description, given under the oath of the builder. For the purpose of this certificate the time of building is the time of completion; the place of building is that where the hull was built. Both of these facts must appear on all marine documents. The Carpenter's Certificate is not a document of title and does not of itself vest any interest in the person holding it. It is sufficient to authorize the vessel to be removed from the district where she has been built to another district in the same or an adjoining State where its owner resides, provided it be in ballast only. This document is filed of permanent record in the Custom House where the vessel receives her papers. The difficulties frequently encountered in the way of securing the certificate of the builder himself have led to the adoption of a regulation permitting other competent evidence establishing the same facts, subject to the approval of the Commissioner of Navigation.

2. Surveyor's Certificate of Measurement.—

The measurement of the boat contained in the Carpenter's Certificate not having been made by a government officer, is not an official measurement. It is therefore specifically required that there shall be produced a certificate of such an official measurement made, prior to every registry, by the Surveyor of Customs or by some person appointed by him, at the port where the vessel is, or if there be no such officer, by some one appointed by the Collector. The Surveyor is the "outside man" in the Custom House administration, the official who superintends and directs the inspectors and weighers, who visits all vessels as they arrive in port each day, and who incidentally is charged with this particular duty of measuring vessels for register. His certificate of measurement is required to show not only the measurement of the vessel, i.e., length, breadth, depth, etc., but her build, her tonnage, number of decks and masts. It is also required to state that the vessel's name and the place to which she belongs are painted on her stern. Once measured, it is not necessary that the vessel shall be measured again upon each successive register. Like all the other documents incident to the registration of the vessel, the form of this document is provided by the government and must be countersigned by an owner, or by the master, or by the owner's agent.

3. Securing and Marking of Official Number.—

The Secretary of Commerce has been authorized to provide a system of numbering all documented vessels. An application for such number must be made through the Collector of Customs by the master or owner. Each vessel so numbered must have her number "deeply carved or otherwise permanently marked on her mainbeam," preceded by the abbreviation "No."

Prior to 1866 the penalty for the violation of this requirement was the severe one of forfeiting her status as a vessel of the United States. To-day the penalty is a fine of $30 upon every arrival of the vessel in a port.

4. Marking of Official Tonnage.—

The law also requires that the net tonnage of a vessel shall be deeply carved or otherwise permanently marked on her mainbeam. This tonnage—representing the entire cubic contents of the interior of the vessel, excluding the spaces occupied by the crew and the propelling machinery, and known as the "registry tonnage" or "register tonnage"—is defined by elaborate provisions of a law passed in 1864, which has been several times amended. It is fixed in the first instance by the surveyor or other officer measuring the boat.

5. Marking of Name and Home Port.—

The law requires that the name of the vessel shall be marked upon each bow and upon the stern, and that the home port shall also be marked upon the stern. These names may be painted or gilded, or they may consist of cast or carved Roman letters in a dark color on a light ground, or in a light color on a dark ground, secure in place, distinctly visible, and not less in size than four inches. Originally the names of vessels were required to be in white on a black ground. In 1875 yellow and gilt letters were permitted. The rule as we now have it dates from 1891. The penalty for violation of this law is $10 for each name which is omitted.

In addition to this, every steam vessel of the United States is required to have her name conspicuously placed in distinct, plain letters not less than six inches high, on each outer side of the pilot house, and in case the vessel is a side-wheeler, then also upon the outer side of each wheel-house. "Double-enders" may place the names on the parts corresponding to the bow and stern; and on vessels whose sterns do not allow sufficient space for lettering, the letters may be placed on adjacent parts so as to conform as closely as possible to the requirements, and provided always that the home port shall be marked at one end of the vessel.

Scows, barges and other vessels with square bows may be marked on the bow instead of the side, where such marking would be speedily worn out by chafing against other vessels.

The "home port" as required to be marked on the stern of the vessel, may mean either the port where the vessel is documented, or the place in the same district where the vessel was built, or where one or more of the owners reside. From this it follows that the home port need not be the port of documentation, for, as already noted, the law is that the vessel must be registered in the district which includes the port to which the vessel at that time belongs, such port being defined by law as that at or nearest to which the owner, or if there be more than one, the managing owner of the vessel, usually resides.

Questions as to what is a vessel's "home port" frequently arise in connection with contracts for repairs and supplies and liens arising from the same. As will be seen the port of registry and the home port may often be quite different places.

6. Evidence that Number, Tonnage, Name and Home Port are Properly Marked.—

The Surveyor's Certificate under the form now in use should have covered all of these various points. However, if for any reason they have not been so covered, as for instance, if the vessel is out of the district in which she is being documented, the law requires that evidence be produced by the owner that all these requirements have been complied with. Thus, if the vessel is elsewhere, the owner may make an affidavit that the necessary has been done, but as soon as the vessel arrives within the vessel's home district, where the inspection certificate of a customs officer can be secured, such a certificate must be produced.

7. Owner's Oath.—

Before a vessel can be documented, the owner, or an officer or agent of the owner, whether individual or corporate, must make an affidavit disclosing the general facts as to the ownership of the boat, giving the names of its various owners, their proportions of ownership, and the citizenship of each of them, etc. It must also include a statement as to the name and tonnage of the vessel, and the place and nature of her construction. This oath is an absolute requirement, and if the vessel is documented without it, the document is void, and the vessel is not entitled to be considered a vessel of the United States.

It is also required that the owner's affidavit shall name the master of the vessel together with a statement that the master is a citizen, with a note of the means whereby he acquired his citizenship. The person thus named by the owner is thereby deemed her master for all legal purposes, regardless of the question of his competency, or as to who actually commands the vessel, but no name of a master who has not the necessary license to command a vessel of the class in question will be accepted by the Collector. Thus, while in the case of a barge any citizen may be named as the master, or one citizen may be named as master for any number of barges, in case of a tug or larger vessel requiring a licensed master, the person named as master must be licensed and qualified to perform this duty. This, however, is entirely irrespective of whether he has in fact assumed or does in fact assume actual command over the vessel. For such purposes the command may be a nominal one.

The importance of this document is illustrated by the fact that the penalty for a statement knowingly false is a forfeiture of the vessel, or of its value, to be recovered from the person by whom the oath was made.

8. Master's Oath.—

In addition to the oath of the owner as to the name and qualification of the master, it is specifically required that if the master is within the district where the registry is made at the time of application for it, an oath must be taken by him, instead of by the owner, covering his citizenship. In the case of a false oath by the master the vessel is not forfeited, but the master is liable to a penalty of $1,000. Every change of master must be reported at the first port and indorsed on the document.

9. Special Oath by a Corporation.—

Under recent legislation a special oath is required in the case of corporations, covering any question of a possible foreign interest in the corporation. This oath must set forth "that the controlling interest in the said company free from any alien trust or fiduciary obligation, or any understanding that it may be exercised directly or indirectly on behalf of any alien, is owned by citizens of the United States, and that the President and Managing Directors are citizens of the United States and that the corporation is organized under the laws of some particular State".

10. Evidence of Outstanding Certificate of Inspection.—

It is specifically forbidden to issue a ship's document on any vessel subject to the inspection laws until a copy of the certificate of inspection as issued by the Local Inspectors, has been filed with the Collector of Customs. If the original certificate is not available, a certified copy can always be secured from the office of the proper Collector of Customs.

Bill of Sale Not Required on Original Documentation.—

The foregoing completes the steps or documents necessary for the original registration of a vessel.

It will be observed that no reference has been made to a bill of sale. This is because no such bill is required by law to be produced at the first registration. In fact the only bill of sale recognized by statute is a bill which itself contains a copy of the ship's document, and therefore such a bill could not be produced before the registration had actually taken place. All that is required in the first instance, therefore, is the Carpenter's Certificate with the affidavits as to ownership, etc. These documents are taken as establishing the ownership, and laying the foundation for registry in a particular name. However, the bill of sale may be actually in existence, having been given either by the builder himself or by some one who had subsequently acquired title to the vessel before her documentation. In such case the bill of sale should be produced to complete the chain of title, and will be retained at the Custom House with the Carpenter's Certificate as a link in the chain. But it will not be recorded, for the law makes no provision for the recording of bills of sale except in the sense of transfers of documented vessels, as hereafter referred to.

Surrender and Reissue of Documents.—

The foregoing summarizes the steps to be followed in the case of an original registration. But on every change in the status of the vessel a new registry must be secured, and the vessel must be documented anew. This is the case where a vessel is sold in whole or in part to a citizen of the United States, or where it is altered in whole or in part, by being rebuilt or lengthened or built upon, or is changed from one classification or denomination to another, by alteration in its mode or method of rigging or fitting. It also applies to the case of a change of name as hereafter referred to, and, in case of corporations, to the death of the officer in whose name vessel is documented.

It should be borne in mind that the penalty for failure to effect such a new registration is the severe one that the vessel shall cease to be considered a vessel of the United States. No time limit for the accruing of this penalty, however, has been fixed by law.

In case of such new registration the process is the same as above outlined, but omitting the earlier steps relative to the measurement and marking of vessel, official number, etc., all of which are certified to by the previous document.

In the case of the sale of the vessel, it is of course the bill of sale that furnishes the foundation for the transaction, which must be accompanied by the owner's and master's oaths as already outlined.

The bill of sale, as the all-important and indispensable document, must be made to comply strictly with the requirements covering registry, the most important of which is that it will recite at length the last previous certificate issued to the vessel. This proviso is of great importance in England. The inaccurate recital of such a certificate voids the sale entirely. In the United States the penalty is not so severe, but still severe enough, as the ship is deprived of her American character.

The bill of sale when produced is recorded in the office of the Collector of Customs in accordance with the law hereinafter referred to, and is returned to the owner producing it, as in the case of any other bill of sale which the owner may desire to have recorded.

It frequently happens that it becomes necessary to secure new documents for a vessel which is distant from the port where her new owners reside, and where it is desired that she shall be documented. In such case it is often impractical at the time to secure the outstanding papers for surrender. The practice is to secure certified copies of the same either from the office of the Collector where they were issued or from the office of the Commissioner of Navigation at Washington, giving the necessary oath for the production of the original documents when they come to hand.

It also frequently happens that the certified copies, or indeed sometimes the original documents themselves, do not bear upon their face, as they should, a notation as to the date of expiration of the certificate of inspection of the vessel. In this case some evidence of an outstanding inspection must be produced to the Collector. The simplest plan is to secure, by wire if necessary, a statement from the appropriate Collector of Customs that such an inspection is outstanding.

The law is very strict on the surrender of the old documents upon the issuing of new ones, as also in those cases where a ship loses her right to continue as a vessel of the United States. The old law, passed in 1792, provided for the giving of a bond by the ship's husband or the acting or managing owner, varying in amount according to the tonnage of the boat from $400 to $2,000, guaranteeing that the registry should be used only for the vessel for which it was granted, and should not be sold, lent or otherwise disposed of, and that in case the vessel were lost or taken by an enemy or otherwise prevented from returning to the port, the certificate, if preserved, should be delivered up within eight days of her return to port, etc. The present law substitutes for this bond a penalty of $500 and declares the Certificate of Registry to be void after a violation of any of the requirements as to its surrender.

It frequently happens that a document is lost or wrongfully withheld from the possession of the owner. In this case, upon the oath of the master or other person having charge of the vessel, a new document may be issued either temporary in form, if the vessel is out of her own port, or permanent, if she is in her own port.