which permits such a decree to be examined into so freely is an exception to the general rule, which makes a decree of admiralty in rem binding upon all the world. But the reason of this rule in some degree qualifies it. The reason is, that all persons who have an interest in the property may interfere to protect it; but, in order that they may do this, there must be proper notice given, and reasonable opportunity afforded to them to assert and maintain their claims. Probably it would never be a sufficient reason for setting aside a decree of a foreign court of admiralty, that the person who seeks to avoid it had not actual notice or opportunity to present his rights and claims before the court, provided the usual notice and opportunity were given generally, and these were such as would import or carry with them a sufficiency of notice. But if these were wanting, if the proceedings were hastened, or so conducted that all persons interested would be in fact exposed to be deprived of their property unheard, this would taint the decree, and might have the full effect of fraud upon it. So if the property sold were never within the possession or reach of the court, either actual or constructive, or if the question upon which the case depended was not within their

1 Sawyer v. Maine F. & Mar. Ins. Co. 12 Mass. 291; The Mary, 9 Cranch, 126. In Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 607, Mr. Justice Story is very explicit upon this point. He says: “If a seizure is made and condemnation is passed without the allegation of any specific cause of forfeiture or offence, and without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary sovereign edict. It has none of the elements of a judicial proceeding, and deserves not the respect of any foreign nation. It ought to have no intrinsic credit given to it, either for its justice or its truth, by any foreign tribunal. It amounts to little more, in common sense and common honesty, than the sentence of the tribunal, which first punishes and then hears the party—castigatque, auditque. It may be binding upon the subjects of that particular nation. But upon the eternal principles of justice it ought to have no binding obligation upon the rights or property of the subjects of other nations; for it tramples underfoot all the doctrines of international law; and is but a solemn fraud, if it is clothed with all the forms of a judicial proceeding. I hold, therefore, that if it does not appear upon the face of the record of the proceedings in rem, that some specific offence is charged, for which the forfeiture in rem is sought, and that due notice of the proceedings has been given, either personally or by some public proclamation, or by some notification or monition, acting in rem or attaching to the thing, so that the parties in interest may appear and make defence, and in point of fact the sentence of condemnation has passed upon ex parte statements without their appearance, it is not a judicial sentence, conclusive upon the rights of foreigners, or to be treated in the tribunals of foreign nations as importing verity in its statements or proofs."

jurisdiction, this would show the proceedings to be either grounded upon a fatal mistake, or upon intentional fraud. But this possession may, as it is now settled, be constructive; for both the English and the American admiralty will, as we shall state more fully in another part of this work, condemn as prize a captured ship which has been carried into a neutral port, and is lying there at the time of the decree.1

The court must be a regular court, such as is recognized by the law of nations. It is settled, at least for England and America, that the sufficiency and authority of the court, as well as its jurisdiction, may be inquired into.2 And the courts of neither country acknowledge the authority of a consul, nor, indeed, of any other person, sitting as judge in a neutral port under a commission from his own country.3

If a ship has been wrecked in a foreign port, and there abandoned, and thereupon the government of that country sell the ship according to the laws thereof, a purchaser in good faith takes a good title.

1 The Christopher, 2 Rob. Adm. 207; The Henrick & Maria, 4 Rob. Adm. 43, 54; affirmed on appeal, 6 Rob. Adm. 139 n.; The Falcon, 6 Rob. Adm. 194; The Comet, 5 Rob. Adm. 285; The Victoria, Edwards' Adm. 97; Hopner v. Appleby, 5 Mason, 71; The Arabella and The Madeira, 2 Gall. 368; Cheriot v. Foussat, 3 Binn. 220. But see Wheelwright v. Depeyster, 1 Johns. 471, contra.

2 The Flad Oyen, 1 Rob. Adm. 135; The Henrick & Maria, 4 Rob. Adm. 43; Assievedo v. Cambridge, 10 Mod. 77; Hudson v. Guestier, 4 Cranch, 293; Rose v. Himely, 4 Cranch, 241; Cheriot v. Foussat, 3 Binn. 220; Wheelwright v. Depeyster, 1 Johns. 471; Snell v. Faussatt, 1 Wash. C. C. 271; Francis v. Ocean Ins. Co. 6 Cowen, 404; Ocean Ins. Co. v. Francis, 2 Wend. 64; Cucullu v. Louis. Ins. Co. 17 Mart. 464; Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 605; Turnbull v. Ross, 1 Bay, 20.

& The Flad Oyen, 1 Rob. Adm. 135; The Kierlighett, 3 Rob. Adm. 96; Havelock v. Rockwood, 8 T. R. 268; Wheelwright v. Depeyster, 1 Johns. 471.

4 Grant v. M'Lachlin, 4 Johns. 34. In the case of the Schooner Tilton, 5 Mason, 465, the vessel being wrecked on the coast of North Carolina, was sold by a wreckmaster as she lay, under the laws of this State; and Story, J., said, p. 479: "Where the sale is made by a wreck commissioner in cases falling within the language of the law, without any person present to claim the same as owner,' a very different interpretation ought, as I conceive, to be given to his act. He is there made virtute officii, the agent of the owner for public purposes, and his authority to sell, if exercised in good faith, is conclusive to transfer the property to any purchaser at the sale. . . . . Such a sale, however, though generally conclusive upon the title of the owner, is so only in cases of good faith. A statute sale by a public officer may be impeached, as, indeed, more solemn acts may be, for fraud; and the purchaser can protect himself only by showing that he is a bonâ fide holder, without notice of, or participation in, the fraud. A fortiori, a sale made by the consent of the owner or his agent may be avoided for fraud."

SECTION V.

HOW FAR THE COMMON RULES RESPECTING THE SALE OF A CHATTEL APPLY TO THE SALE OF A SHIP.

1. As to the Rules of Evidence and Agency.

The common rules as to evidence, agency, warranty, and the like, in respect to sales of personal property, apply to the sales of a ship. Thus, for example, if a ship is ordered to be built for a particular purpose, there is an implied warranty that she shall be fit for that purpose.1 So, also, the rule of caveat emptor applies. But material representations, made to affect the sale, and doing this, have much the same effect as warranty. If, however, the contract of sale be reduced to writing, it would, generally at least, be very difficult to add new stipulations, or introduce representations and assertions, merely by oral evidence.1 If the ship be sold, as is done more often abroad than in this country, "with all her faults," this was once held to make it obligatory on the seller to disclose a fault which the buyer could not possibly ascertain. The later and prevailing doctrine seems to be, that the seller may, under such a sale, be silent as to any or all the faults which he knows, without any reference to the buyer's ability to discover them; but he must not be active in

1 See Shepherd v. Pybus, 3 Man. & G. 868; Chambers v. Crawford, Addison, 150. In Cunningham v. Hall, U. S. Dist. Ct., Mass., March, 1857, the respondent built a vessel for the libellant. During the first voyage she leaked constantly, and at the end of it her copper was taken off, and it was found that the leak was owing to a defective plank. An action was brought against the builder to recover the expenses incurred in making the repairs, and for demurrage. Held, that there was an implied warranty on the part of the builder to furnish a sea-worthy vessel, and he was, therefore, liable for all damages resulting from his breach of the contract.

2 But the law of Louisiana imposes upon the seller the obligation of warranting the vessel sold against its hidden defects, which are those which could not be discovered by simple inspection. Bulkley v. Honold, 19 How. 390.

Schneider v. Heath, 3 Campb. 506; Shepherd v. Kain, 5 B. & Ald. 240. See, however, Dyer v. Lewis, 7 Mass. 284.

4 Pickering v. Dowson, 4 Taunt. 779; Freeman v. Baker, 5 B. & Ad. 797, 5 C. & P. 475; Kain v. Old, 2 B. & C. 627; Mumford v. M'Pherson, 1 Johns. 414.

5 Mellish v. Motteux, Peak. Cas. 115.

concealing them, for this is a positive fraud.1 The rule cannot be better illustrated than by the old dictum in Rolle's Reports; if one sells a blind horse, he is not held without warranty; but

1 In Baglehole v. Walters, 3 Campb. 154, the bill of sale contained the words, "in excellent condition;" but it does not appear whether or not the defects alleged by the vendee were such as to render such a description materially incorrect, and no notice is taken of this circumstance by the court. "I cannot," said Lord Ellenborough, “subscribe to the doctrine of Mellish v. Motteux, (supra,) although I feel the greatest respect for the authority of the judge by whom it was decided. Where an article is sold' with all faults,' I think it is quite immaterial how many belonged to it within the knowledge of the seller, unless he used some artifice to disguise them, and to prevent their being discovered by the purchaser. The very object of introducing such a stipulation is to put the purchaser on his guard, and to throw upon him the burden of examining all faults, both secret and apparent. . . . . It would be most inconvenient and unjust, if men could not, by using the strongest terms which language affords, obviate disputes concerning the quality of the goods which they sell. In a contract such as this, I think there is no fraud, unless the seller, by positive means, renders it impossible for the purchaser to detect latent faults." See, also, Schneider v. Heath, 3 Campb. 506. If a ship is represented to have been built in a certain year, whereas she was launched the year previous, the buyer may recover damages for the deceit, though she was sold with all her faults. Fletcher v. Bowsher, 2 Stark. 561.

And where the ship was described in the bill of sale as copper fastened," whereas she was in reality only partially so, and not what was known in the trade as a copper fastened vessel; this was considered a breach of warranty. "With all faults," say the court, must mean with all faults which it may have consistently with its being the thing described. Here the ship was not a copper fastened ship at all." Shepherd v. Kain, 5 B. & Ald. 240.

Where the bill of sale represented the vessel to be of greater dimensions and burden than she really was, it was held that the vendee could not maintain case against the vendor for false affirmation and promise. Dyer v. Lewis, 7 Mass. 284. The court do not seem to have considered this description as in the nature of a warranty. See also post, ch. 8, sect. 2. So in a late English case, 5 Exch. 779, Taylor v. Bullen, 1 Eng. L. & Eq. 472, where the ship was described as "the fine teak built bark Intrepid, A No. 1, well adapted for a passenger ship," and the document concluded with the words, to be taken with all faults, without any allowance for deficiency, etc., or any defect or error whatsoever. The plaintiff declared on a breach of warranty, alleging that the ship was not "teak built," nor A No. 1, nor well adapted for a passenger ship. The court were of opinion that this was not a warranty of any thing more than that the vessel in question was a bark, and that all errors of description were protected by the clause, " without allowance for any error." Shepherd v. Kain was admitted by the court to be correct, but it was held that the words at the bottom of the memorandum were used for further protection.

This knowledge of the vendor of the existence of the defects, we have seen, is immaterial, if he use no deceit in order to conceal them, and evidence of parol representations as to the condition of the ship is not generally admissible where there is a bill of sale; but where these two circumstances concur, that is, where the vendor knowingly makes such misstatements, this we presume would be conclusive evidence of fraud, sufficient to vitiate the bill of sale. See the cases, supra.

if he sells a horse whose missing eye is supplied by a glass eye, he is liable for the deceit.1

2. What are the Appurtenances of a Ship.

How much passes by the word "ship," or the phrase "ship and her appurtenances, or apparel, — or furniture," — or the like, cannot be positively determined by any definition. Stowell and Abbott agree, that whatever is on board a ship for the objects of the voyage and adventure in which she is engaged, belonging to the owners, constitutes a part of the ship and her appurtenances, within the meaning of the English statute of 53 Geo. 3, c. 139.2 To define what would pass by these, or similar words, in a sale, we should add to this definition some expressions denoting that the thing in connection was distinctly connected with the ship and the proper use of her. Usage would have much effect in deciding this question; and it is obvious that things may be part and parcel of a "ship" at one time and place, and under some circumstances, and not at others. In the note we show all that has been done to define the term by adjudications.3

1 Southerne v. Howe, 2 Rol. R. 5. "Si home vend chivall que est lame null action gist peur ceo, mes caveat emptor; lou jeo vend chivall que ad null oculus la null action gist; autrement lou il ad un counterfeit faux et Bright Eye.” These words have generally been understood as in the text; but Mr. Oliphant, in his work on Horses, p. 73, says: "Probably by Bright Eye' is meant 'glass eye,' or gutta serena, (which is a palsy of the optic nerve, and very difficult to detect,) and the words, 'counterfeit et faux' may be an attempt of the reporter to explain an expression which he did not understand. Because putting a glass eye into a horse is very far in advance of the sharpest practice of the present day, or of any former period." This seems reasonable; and then the case cannot be cited to illustrate the law of sale as stated in the text, which, however, rests upon sufficient reason.

2 The Dundee, 1 Hagg. Adm. 109; Gale v. Laurie, 5 B. & C. 156.

* In Kynter's Case, 1 Leon. 46, it was decided by the court, that ballast was not included in the furniture appertaining to a ship, on the ground that the ship may sail without it, as where the cargo serves instead. And this seems to be the reason assigned by Lord Ellenborough, in a modern case, Lano v. Neale, 2 Stark. 105, for holding that iron kentledge, (pigs of iron cast into a particular form for ballast, see McCulloch's Dictionary of Commerce, under "Kentledge,") was not included in a bill of sale of a ship with all her stores, tackle, apparel, etc., in the usual form, because, said his lordship, "it could not be considered as part of the ship or necessary stores, since common ballast might have been used." So in Burchard v. Tapscott, 3 Duer, 363, where the bill of sale conveyed the vessel with her masts, bowsprit, sails, boats, anchors, cables, and all other necessaries thereto appertaining and belonging, it was held, that ballast of any