Malcolm v. Schooner Henrietta

Bullard, J., delivered the opinion of the court. In this case the court is called on, for the first time, to consider and give an interpretation to those articles of the Louisiana Code, which relate to the mortgage of ships or other vessels. The question arises in the distribution of the proceeds of a schooner, sold in pursuance of a provisional seizure, sued out by Malcolm & Wood, to reimburse themselves certain supplies furnished by them, and for which they claim a privilege. Several persons intervened, and among others L. Holston, who exhibits a special conventional mortgage on the schooner, executed by the owner before a notary, and recorded in the office of the recorder of mortgages, in this city. Article 3256 of the code, enumerates among the objects susceptible of mortgage, “ ships and other vessels.” When treating afterwards of conventional mortgages, it declares (article 3272) that “hypothecations of ships and other vessels, are made according to the laws and usages of commerce.” The opinion that the legislature intended to [491] restrict the mortgage of ships, to the cases in which such hypothecation would be considered as valid, by the usages of commerce or the commercial law, is much strengthened by the fact, that by the same code, neither a judicial nor a legal mortgage attaches to that species of property. The hypothecary creditor can only exercise his right on immoveables and slaves. We have recently had occasion to, examine the subject, in relation to the legal mortgage of the wife, to secure the restitution of her dower, and came to that conclusion. See the case of Loze vs. Dimitry et al., ante, 485. The provision in the Louisiana Code,that “ships and other vessels” are susceptible of being mortgaged, is restricted to hypothecations made according to the laws and usages of commerce. In whatever cases those usages and laws would recognise the validity of an hypothecation of a vessel, our Code also recognises it, and in none other. The declaration that ships are susceptible of mortgage, is among the amendments of the old code, which contained no such enunciation in distinct terms. That code, after enumerating the objects susceptible of mortgage, and declaring that moveables shall no longer be subject to be mortgaged, either generally or specially, declares that “the present disposition, in no way alters or effects the dispositions of the maritime or trade laws, respecting ships and sea vessels.” Although there is a difference in the phraseology of the old and new codes, there is in our opinion no difference substantially, in their provisions on this subject. They both recognise, as a general principle of our municipal law, that moveables are not susceptible of mortgage, but at the same time, admit an exception as to ships and vessels, under the maritime law, which as the compliment of the law of nations, founded on the general acquiescence of commercial states, regulates and controls the great interests of navigation and commerce, except so far as it is repugnant to a positive law of the state. The old code contains only a reference to the usages of trade, in relation to the hypothecation of vessels; the amendment simply declares, that ships and other vessels are susceptible of mortgage, and then qualifies the principle by declaring, that such hypothecations are made according to the laws and usages of commerce; the one leaves the principle, that ships are in some cases susceptible of mortgage, to be deduced as an inference from its general provisions on that subject matter; the other announces that susceptibility in positive terms, according to the forms, and in [492] the cases established by the commercial law. We consider both as declaratory laws, recognising the existence of the commercial law, as a system distinct from, and co-existing with the municipal code, and giving effect to hypothecations of ships, made according to such usages, notwithstanding the general maxim, that moveables are not susceptible of mortgage. So where a conventional mortgage on a schooner, executed by the owner, in favor of a creditor to secure the jiayment of a debt, and duly recorded in the mortgage office, was sought to be enforced : Held, that such a mortgage lias no effect ; and that ships are not subject to tiie same incumbrances which attach to immoveables, as lands and slaves, situated within the constant operation of the laws of the state. Although it is generally unsafe to rely on arguments ah in convenienli, in the interpretation of laws, yet the view we have taken of this part of the code, is confirmed by a consideration of the consequences, which might result from a differ- • ent conclusion. If it were settled as a principle, that a mortgage in the ordinary form, and to secure the payment of a debt, no matter what might be its origin or consideration, would follow the ship into whose ever hands it might come, and adhere to it amidst all the changes and hazards incident to navigation, how could the master of a vessel, belonging to the port of New-Orleans, procure funds in a foreign port, on the credit of her bottom; funds, perhaps absolutely necessary for repairs or other exigencies of the vessel 1 Such a system would not only be productive of injurious impediments to commerce, but might lead to enormous frauds. The purchaser of a vessel in any foreign port or at sea, looks only to the register or other ship-papers, to ascertain the title and the incumbrances. The principle now contended for, by the appellant, would compel him to resort to the office of the register of mortgages; and where is such a mortgage to be registered 1 We cannot suppose, that the legislature intended to subject those great instruments of commerce, “ which are built to plough the seas, and not to rot by the walls,” to the same incumbrances which attach ,to lands, situated within the constant operation of its laws, or to slaves, wrho, although capable of being removed, are generally destined to its cultivation. The emperor Antoninus, when interrogated concerning a question of navigation, repeated the declaration of Augustus, “ I am the master of the earth, but the Rhodian law is mistress of the sea.” He recognised, as our legislature has, the existence of a commercial code, upheld by general [493] consent, growing out of the mutual wants of nations, and founded on principles of natural equity, which are of universal obligation. In whatever cases those usages and laws would recognise the validity of an hypothecation of a vessel, our code also recognises it, and in our opinion in none other. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. ‘