1. Under the act of Congress of July 29th, 1850, enacting
"That no bill of sale, mortgage, hypothecation, or conveyance of
any vessel, or part of any vessel, of the United States shall be
valid against any person other than the grantor or mortgagor, his
heirs and devisees, and persons having actual notice thereof unless
such bill of sale, Mortgage, hypothecation, or conveyance be
recorded in the office of the collector of the customs where such
vessel is registered or enrolled,"
a recording of a mortgage in the office of the collector of the
home port of the vessel has the effect, by its own force and
irrespective of any formalities required by a state statute to give
effect to chattel mortgages, to give the mortgagee a preference
over a subsequent purchaser or mortgagee.
2. The home port of the vessel is the port in the office
o� whose collector the bill of sale, mortgage &c.,
should be recorded, not the port of last registry or enrollment
when not such home port.
3. The act is constitutional.
An act of Congress, "providing for the recording of
conveyances
Page 74 U. S. 647
of vessels and for other purposes," and passed July 29, 1850,
[
Footnote 1] thus enacts:
"No bill of sale, mortgage, hypothecation, or conveyance of any
vessel or part of any vessel of the United States shall be valid
against any person other than the grantor or mortgagor, his heirs
and devisees, and persons having actual notice thereof unless such
bill of sale, mortgage, hypothecation, or conveyance
be
recorded in the office of the collector of customs where such
vessel is registered or enrolled."
And a statute of the State of New York thus enacts:
"Every mortgage of chattels which shall not be accompanied
&c., shall be
absolutely void as against the creditors
of the mortgagor, and as against
subsequent purchasers and
mortgagees in good faith unless the mortgage or a true copy
thereof shall be filed as directed in the succeeding section of
this act."
The "succeeding section" above referred to directs where the
mortgage shall be filed. And a third section proceeds:
"Every mortgage filed in pursuance of this act, shall
cease
to be valid as against the creditors of the person making the
same
or against subsequent mortgagees in good faith after
the expiration of one year from the filing thereof unless within
&c., a true copy of such mortgage shall be again filed in the
office of the clerk or register aforesaid of the
town or city
where the mortgagor shall then reside."
With these two acts, one of the United States and the other of
the State of New York, in force, one Hoyt, then a resident of
Buffalo, Erie County, New York, executed, on the 22d May, 1863, a
mortgage to White's Bank, of Buffalo, upon the schooner
Emmett, of which he was owner. This mortgage was recorded
on the 12th of the June following,
in the collector's office at
Buffalo, where the Emmett was duly enrolled, and where, as just
said, Hoyt, her owner, resided. The mortgage was filed also in
the office of the Clerk of the County of Erie on the 5th June,
1863, according to the requirement
Page 74 U. S. 648
of the above-quoted law of New York,
but it was not refiled
at the end of a year.
Subsequently to the date of this mortgage of Hoyt to White's
Bank, the vessel became the property of one Zahn, residing at
Sandusky, Ohio, and on the 2d June, 1865, he mortgaged her to one
Smith. The mortgage to Smith was recorded in the collector's office
at the port of Sandusky, Ohio, on the 17th of June, 1865, where the
Emmett was duly enrolled, and at which place, as above
stated, the then owner, Zahn, resided. The vessel having been sold
subsequently to the date of both the mortgages under a paramount
lien for seamen's wages, and a remnant of the proceeds of sale
after payment of such wages remaining but being insufficient to pay
either mortgage, the question was to which of the mortgages it
should be applied -- to the first mortgage, that of the bank, or to
the subsequent one, Smith's? Smith set up that the lien of the
mortgage to White's Bank was lost on account of the omission to
refile it in the Clerk's Office of Erie County at the end of the
year, and this position it was which raised the material question
in the case -- the question, namely, whether or not the recording
of the mortgage in the collector's office at Buffalo had the
effect,
by its own force, and irrespective of the filing in the
clerk's office, to give a preference to it over any subsequent
purchaser or mortgagee?
The court below decreed that the fund should be appropriated to
Smith's mortgage, and White's Bank appealed.
Page 74 U. S. 650
MR. JUSTICE NELSON delivered the opinion of the Court.
The Act of Congress, July 29, 1850, on this subject, of the
present case, is as follows:
"That no bill of sale, mortgage, hypothecation, or conveyance of
any vessel or part of any vessel of the United States shall be
valid against any person other than the grantor or mortgagor, his
heirs and devisees, and persons having actual notice thereof unless
such bill of sale, mortgage, hypothecation, or conveyance be
recorded in the office of the collector of customs where such
vessel is registered or enrolled."
The next section provides for recording these bills of sale
&c., and also certificates of discharge and cancellation in a
proper book. No provision was made for any authentication of these
instruments preparatory to their being recorded. They were received
by the collector from the parties delivering them, and were
recorded, with no proof of their verity except from the execution
of the same as appeared on their face, and this both as it respects
the bills of sale, mortgages,
Page 74 U. S. 651
&c., and the discharge and cancellation of the same. And the
law thus stood for some fifteen years. On March 3, 1865, it was
enacted that
"No bill of sale, mortgage, hypothecation, conveyance, or
discharge of mortgage or other encumbrance of any vessel shall be
recorded unless the same is duly acknowledged before a notary
public or other officer authorized to take acknowledgment of
deeds."
Previous to this act of 1850 providing for the recording of
bills of sale, mortgages &c., of vessels, they were required to
be filed, by the laws of many of the states, in the clerk's office
or some place of public deposit in the town or city where the
vendor or mortgagor resided in order to protect the interest of the
vendee or mortgagee against subsequent
bona fide
purchasers or mortgagees. And this practice continued in many
places after the passage of the act of 1850, for abundant caution,
on account of a doubt as to the effect that would or might be given
to it as a recording act from the very imperfect provisions of the
law. There can be no doubt, however, but that the system of
recording these instruments in the collector's office at the home
port of the vessel furnishes a much readier opportunity to persons
dealing in this species of property to obtain a knowledge of the
condition of the title than by the former mode under the state law.
We say the home port because it is quite apparent from the language
of the act "be recorded in the office of the collector of customs
where such vessel is registered or enrolled" means the permanent
registry or enrollment, which is at the port,
"at or nearest to which the owner, if there be but one, or if
more than one, the husband or acting and managing owner of said
ship or vessel usually resides. And the name of the said ship or
vessel, and the port to which she shall so belong, shall be painted
on her stern, on a black ground, in white letters, of not less than
three inches in length,"
and if found without such name and the name of the port, the
owner is subject to a penalty of fifty dollars. [
Footnote 2]
Page 74 U. S. 652
The same act provides for a temporary registry, when the owner
acquires her in a different district from that in which he resides,
but this is to enable him to bring the vessel within the home
district or port, where she can obtain her permanent registry. The
character of his temporary registry is expressed on the face of it,
and is delivered up to the collector on the issuing of the
permanent registry, whose duty it is to return it to the collector
that granted it. [
Footnote
3]
So a registered vessel may be enrolled, or an enrolled vessel
registered, on the master giving up to the collector the registry
or enrollment, as the case may be, and if such vessel shall be in
any other district than the one to which she belongs, the collector
of such district, upon the master's taking an oath that, according
to his best knowledge and belief, the property remains as expressed
in a registry or enrollment proposed to be given up, and on giving
the bond required, shall make the exchanges above mentioned; but
the collector to whom the registry or enrollment is given up shall
transmit the same to the Register of the Treasury, and the registry
or enrollment granted in lieu thereof shall, within ten days after
the arrival of such vessel within the district to which she
belongs, be delivered to the collector of said district, and be by
him cancelled. [
Footnote 4]
This exchange of registry or enrollment may occur in any part of
a voyage or voyages, and the temporary registry or enrollment
continues till the vessel, in the regular course of her employment,
arrives at the port to which she belongs, where she may again
obtain a renewal of her permanent documentary title. As we have
said, we think it apparent that the collector's office in the
district in which this temporary registry or enrollment is made, is
not the office contemplated by the act of 1850. The temporary
papers are made in the office where the vessel happens to be at the
time of the sale or exchange of the documentary title, and
continues only till her arrival at the port to which she belongs.
Her name and the name of her home port remains painted on
Page 74 U. S. 653
her stern notwithstanding this temporary document, and satisfies
the requirement of the act in that respect, and both continue until
a new home port is acquired by a change of ownership, requiring a
permanent registry or enrollment on account of the different
residence of the owners, when the name of that port is substituted.
And confining the record to the home port, there is great propriety
and convenience in requiring bills of sale, mortgages &c., of
the whole or parts of a vessel, to be made matters of record in
this office, as in the registries there are the names of all the
owners under oath, together with their residences; and since the
act of 1850, containing also the part or proportion of such vessel
belonging to each owner (§ 5). And in this same section it is
provided that
"in all bills of sale of vessels registered or enrolled shall be
set forth the part of the vessel owned by each person selling and
the part conveyed to each person purchasing."
And in this connection we may also mention that in case of the
sale of a vessel, which can only be to a citizen or citizens of the
United States, and a new permanent registry becomes necessary, the
former certificate of registry must be delivered to the collector
to whom application is made for the new registry, to be transmitted
by him to the Register of the Treasury to be cancelled; and in
every such sale or transfer of a vessel there shall be some
instrument in writing in the nature of a bill of sale, which shall
recite at length the certificate of the former registry; otherwise
the ship or vessel shall be incapable of being registered anew.
[
Footnote 5] And as this bill
of sale is recorded in the collector's office in which the new
permanent registry is made, it affords information to any person
examining it as to the former home port and collector's office in
which the vessel had been previously registered, and where
examination can be made for any bill of sale, mortgage or other
encumbrance upon or against the vessel.
It will be seen, therefore, as the law now stands, there can be
very little difficulty on the part of a purchaser or
Page 74 U. S. 654
mortgagee in ascertaining the true condition of the title of a
vessel, as it respects written evidence of the same, or of
encumbrances thereon, from an examination of the records of the
collector's office at the several home ports of the vessel, as the
records of the last home port refers to the preceding one, the last
bill of sale incorporating into it a copy of the previous
certificate of registry. In this respect, the system of recording
in the collector's office possesses very great advantages over the
filing of these instruments in the clerks' offices where the vendor
or mortgagor happened to reside at the time, as no means exist,
under this practice, by which the subsequent purchaser or
mortgagee, by any diligence, could obtain a knowledge of the actual
condition of the title.
We are aware that in the case of
Potter v. Irish,
[
Footnote 6] the court came to
the conclusion, upon an examination of the acts on this subject,
that bills of sale, mortgages &c., under the act of 1850, in
order to protect the title of the purchaser or mortgagee, should be
recorded in the office of the collector of customs at the port of
the last registry or enrollment, though not the home port of the
vessel. And the court in the case of
Chadwick v. Baker,
[
Footnote 7] followed this
decision. Our respect for the courts rendering these decisions has
led us to examine the several statutes upon which this question
depends with more than usual care, and after the best consideration
we have been able to give, we are obliged to differ with them. We
think the better construction of these statutes leads to the
conclusion that the home port was the one in the contemplation of
Congress at which these instruments were to be recorded, and is the
more appropriate one in furtherance of the object for which the act
was passed.
The temporary registry or enrollment is at a collector's office
in a district where the owners do not reside, and is made without
any reference to such residence. It is made at any collector's
office, and at any port within the limits of the United States
where the vessel may happen to be at the time this temporary
document is registered.
Page 74 U. S. 655
While the home port may be at the City of New York, the
temporary registry or enrollment may be made at New Orleans or San
Francisco, or Portland, in Oregon, where it would be as
inconvenient for the vendee or mortgagee to make a record of the
bill of sale or mortgage as it would be for a person dealing in
this species of property to acquire any notice of such record,
whereas a record at the home port is within the district where the
owners reside, and where negotiations or dealings in respect to
this species of property would naturally be conducted.
Some question is made as to the power of Congress over the title
and property of vessels of the United States to such an extent as
to enable it to pass a recording act.
But after the regulation of this species of property by the
several acts of Congress to which we have referred, and in respect
to which there has never been a question, there can be very little
hesitation in conceding the power to protect the rights of
subsequent
bona fide purchasers and mortgagees
therein.
Ships or vessels of the United States are the creations of the
legislation of Congress. None can be denominated such or be
entitled to the benefits or privileges thereof except those
registered or enrolled according to the Act of September 1, 1789,
and those which, after the last day of March, 1793, shall be
registered or enrolled in pursuance of the act of 31 December,
1792, and must be wholly owned by a citizen, or citizens of the
United States and to be commanded by a citizen of the same.
[
Footnote 8]
And none can be registered or enrolled unless built within the
United States before or after the 4th of July, 1776, and belonging
wholly to a citizen, or citizens, of the United States, or, not
built within said states, but on the 16th of May, 1789, belonging,
and thence continuing to belong, to a citizen or citizens thereof,
or ships or vessels captured from the enemy in war by a citizen and
lawfully condemned as prize or adjudged to be forfeited for a
breach of the laws of
Page 74 U. S. 656
the United States, and being wholly owned by a citizen or
citizens thereof. [
Footnote
9]
Ships or vessels not brought within these provisions of the acts
of Congress, and not entitled to the benefits and privileges
thereunto belonging, are of no more value as American vessels than
the wood and iron out of which they are constructed. Their
substantial if not entire value consists in their right to the
character of national vessels, and to have the protection of the
national flag floating at their mast's head.
Congress having created, as it were, this species of property,
and conferred upon it its chief value under the power given in the
Constitution to regulate commerce, we perceive no reason for
entertaining any serious doubt but that this power may be extended
to the security and protection of the rights and title of all
persons dealing therein. The judicial mind seems to have generally
taken this direction. [
Footnote
10]
Decree reversed and a decree entered for the
appellant.
[
Footnote 1]
9 Stat. at Large 440.
[
Footnote 2]
Act 31 December, 1792, § 3.
[
Footnote 3]
Act 31 December, 1792, § 11.
[
Footnote 4]
1 Stat. at Large 288, § 3.
[
Footnote 5]
1 Stat. at Large 294, § 14.
[
Footnote 6]
10 Gray 416.
[
Footnote 7]
54 Me. 9.
[
Footnote 8]
1 Stat. at Large 287.
[
Footnote 9]
1 Stat. at Large § 2, 288.
[
Footnote 10]
The Martha Washington, 25 Law Reporter 22;
Fontaine
v. Beers, 19 Ala. 722;
Mitchell v. Steelman, 8 Cal.
363;
Shaw v. McCandless, 36 Miss. 296.
