1925 A. M. C.

enrolled at the port of the district where she belongs; and this remark is correct, although she may be sailing under a temporary register or enrollment granted at the office of the collector of some other port."

(5) The flood of litigation which followed the passage of the Act of 1850 subsided after the decision in Johnson vs. Merrill. Except for the case of Moore vs. Lincoln Park etc. Co., 196 Pa. St. 519 (1900). referred to infra, no other decisions of significance bearing on the Act of 1850 are to be found in the reports during the period from 1878 to the passage of the Ship Mortgage Act in 1920, although, as has come. to be fully appreciated since the passage of that act, there were several questions of much difficulty which were left unsettled, and which, since the passage of the Ship Mortgage Act, have arisen to plague counsel having to deal with vessel conveyances and mortgages.

That these further problems did not get before the courts for decision was probably due to the fact that vessel mortgages were comparatively little used or looked to as dependable security because of their subordination to maritime liens of all kinds. As put by the court in The Owego (page 3, supra), "ships were about as available for credit for general purposes as the snows of last December." In the absence of court decisions, custom house practice was largely relied on for the solution of these unsettled problems when they arose in the putting through of conveyances and mortgages.

It was during this period that it became a common practice for corporations organized under the laws of one state, but carrying on no business there, to document their vessels permanently at a port in the state where their business was principally conducted, as constituting the home port of the vessel. This practice was apparently induced by two considerations: first, that corporate owners desired their vessels to hail from and bear on their sterns the name of the port with which the corporate owner was identified in the conduct of its business, and, secondly, because the corporation being unknown in the place of incorporation, departmental communications as to vessel matters would not be likely to reach it promptly if directed there, and there was more or less customs house business which had to be transacted at the official home port of the vessel. How far the practice was encouraged by the decision in the state court of Pennsylvania in Moore vs. Lincoln Park, etc. Co., 196 Pa. St. 519 (1900), holding that such a documentation was valid as within the requirement of R. S., s. 4141 that

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such documentation must be at the port "nearest to which the owner *** usually resides," it is impossible to say.

The difficulty with the practice and with the decision in Moore vs. Lincoln Park, etc. was that the statute was a United States statute, necessarily to be construed according to the decisions of the courts of the United States, and that by a long line of such decisions, including decisions of the Supreme Court rendered long before the decision in the Moore case, it had become the settled law of the United States that, as stated in Shaw vs. Quincy Mining Co., 145 U. S. 444 (1892) at p. 450,

“*** the legal existence, the home, the domicile, the habitat, the residence, the citizenship of the corporation can only be in the state by which it was created, although it may have business in other states whose laws permit it."

It would appear to follow conclusively from these decisions that the place where a corporate owner "resides" under the provisions of R. S., s. 4141 must be held to be within the state of its incorporation. Moreover, it was directly so adjudicated in Yost vs. Lake Erie Trans. Co., supra, at p. 748 (opinion by LURTON, J., later of the United States Supreme Court), where the court says:

“*** and by section 4141 the port to which such vessel belongs is defined as being that 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 such vessel, usually resides.' These vessels had but one owner, the Erie Transportation Company. That corporation must reside within the state of Michigan. A corporation may do business elsewhere, but it must reside at home.' By the local law of Michigan it is deemed, for the purposes of the state, to have its

To the same effect are Bank of Augusta vs. Earle, 13 Peters 519, at p. 588 (1839); Insurance Co. vs. Francis, 11 Wallace 210, at p. 216 (1870); Ex Parte Schollenberger, 96 U. S. 369, at p. 377 (1877); The Havana, 54 Fed. 201 (1893); The Havana, 64 Fed. 496 (2CCA), (1894); Yost vs. Lake Erie Trans. Co., 112 Fed. 746 (6CCA), (1901), at p. 748; The New Bruns wick, 125 Fed. 567, at p. 568 (1903); The New Brunswick, 129 Fed. 893 (1CCA), (1904); International Navig. Co. vs. Lindstrom, 123 Fed. 475 (2CCA), (1903), (Certiorari denied 193 U. S. 669 (1904)) and more recently, Fairbanks Shovel Co. vs. Wills, 240 U. S. 642 (1916).

1925 A. M. C.

habitat or domicile at a place fixed by the articles of incorporation. That place was Monroe, and the port at or nearest to which the owner *** usually resides' is the port of Monroe. Accordingly, the port of Monroe is by the act of Congress the home port of these vessels and their situs as fixed by the act of Congress."

See also, Hayes vs. Pacific Steamship Company (1854), 58 U. S. (17 How.) 596.

The report in Moore vs. Lincoln Park etc. Co. sets forth the cases which were cited to the court in that case. Extraordinary as it may seem in what appears to have been a rather hotly contested case, none of the decisions of the United States courts which have been referred to were cited and none of them are referred to either in the lower court decision or in the short affirmation of that decision by the Appellate Court. Had they been cited, it seems inconceivable that the court could have arrived at any other conclusion than that reached in Yost vs. Lake Erie Trans. Co., 112 Fed. 746, and The Susana, 1924 A. M. C. 1389 (4CCA) that the port of permanent documentation of a vessel owned by a corporation could only be within the state of incorporation.

So far as concerned the owner of the vessel, there was no particular danger in the practice in question so long as the Bureau of Navigation concurred in it, but its seriousness was in its effect on the validity of mortgages recorded at the port where the vessel was erroneously documented as constituting her home port, in view of the fact (1) that unless a vessel is documented according to law she does not have the legal status of a vessel of the United States, Chadwick vs. Baker, 54 Me. 9, at pages 11 and 12; Davidson vs. Gorham, 6 Cal. 343; Thurber vs. The Fannie, 8 Ben. 429 (Fed. Cases No. 14,014); White's Bank vs. Smith, 7 Wallace 646; Hatch vs. Smith, 5 Mass. 42, at p. 53; Veazie vs. Somerby, 5 Allen 280; and is not within the purview of the United States mortgage recording statutes; Johnson vs. Merrill, 122 Mass. 153 (1877); In re Empire Shipbuilding Co., 221 Fed. 223 (2CCA) (1915); Davidson vs. Gorham, supra; The Susana, 1924 A. M. C. 1389; and (2) that a recording is of no validity unless made at the legal home port of the vessel. White's Bank vs. Smith, 7 Wallace 646; Johnson vs. Merrill, 122 Mass. 153 (1877); The Lincoln Land, 1924 A. M. C. 194; The Susana, 1924 A. M. C. 1389.

Moreover, the situation could not be altered by a practice to the

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contrary, for such a practice, even if with the full acquiescence of the Bureau of Navigation, could have no effect to change the meaning of a term from that clearly established by repeated decisions of the court of highest jurisdiction. As stated in United States vs. Graham, 110 U. S. 219, at p. 221 (1884):

(*** it matters not what the practice of the departments may have been or how long continued, for it can only be resorted to in aid of interpretation, and it is not allowable to interpret what has no need of interpretation.' If there were ambiguity or doubt, then such a practice, begun so early and continued so long, would be in the highest degree persuasive, if not absolutely controlling in its effect. But with language clear and precise and with its meaning evident there is no room for construction, and consequently no need of anything to give it aid." 7

It was with the law and the customs house practice in the condition which has been outlined that the Ship Mortgage Act of 1920 was passed.

THE PERIOD FROM THE PASSAGE OF THE SHIP
MORTGAGE ACT 1920 TO 1925.

The Ship Mortgage Act, 1920, in creating "preferred mortgages provided (Subsection D (a)) that the mortgage must be on a "vessel of the United States," defined such vessel as being (Subsection B-4) any "vessel documented under the laws of the United States," defined "documented" as meaning (Subsection B-2) "registered or enrolled or licensed under the laws of the United States permanently or temporarily," and defined "port of documentation" as meaning (Subsection B-3) "the port at which the vessel is documented in accordance with law."

It further provided (Subsection B-4) that any vessel documented under the laws of the United States "shall be held to continue to be so documented until its documents are surrendered with the approval

'To the same effect are U. S. vs. Dickson, 15 Pet. 141, at p. 162 and p. 163; Wisconsin Central R. R. Co. vs. U. S., 164 U. S. 190, at p. 205; Fairbank vs. U. S., 181 U. S. 283, at p. 310, et seq., where the decisions which hold that practice and construction of a department can be given effect only in the case of a doubtful statutory provision are collected and reviewed; also U. S. vs. Murphy, 32 Fed. 376, at p. 382; Deming vs. McClaughry, 113 Fed. 639, at p. 641 (8CCA); Hemmer vs. U. S., 204 Fed. 898, at p. 905 (8CCA), Affirmed 241 U. S. 379; U. S. vs. Brirbach, 245 Fed. 204.

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1925 A. M. C.

of the board." The only provision in the act for any approval by the board of surrender of documents is found in Subsection O, which provided:

"(a) The documents of a vessel of the United States covered by a preferred mortgage may not be surrendered (except in the case of the forfeiture of the vessel or its sale by th order of any court of the United States or any foreign country) without the approval of the board. The board shall refuse such approval unless the mortgagee consents to such surrender.

"(b) The interest of the mortgagee in a vessel of the United States covered by a mortgage, shall not be terminated by the forfeiture of the vessel for a violation of any law of the United States, unless the mortgagee authorized, consented, or conspired to effect the illegal act, failure, or omission which constituted such violation."

The act further provided (Subsection C (a)) that:

"No sale, conveyance, or mortgage which, at the time such sale, conveyance, or mortgage is made, includes a vessel of the United States, or any portion thereof, as the whole or any part of the property sold, conveyed, or mortgaged shall be valid, in respect to such vessel, against any person other than the grantor or mortgagor, his heir or devisee, and a person having actual notice thereof, until such bill of sale, conveyance, or mortgage is recorded in the office of the collector of customs of the port of documentation of such vessel, as provided in subdivision (b) of this subsection."

The act did not purport expressly to repeal or amend any of the sections of the Revised Statutes relating to the status of vessels, or vessel documentation or the recording of vessel conveyances or mortgages except Section 4192 (page 11, supra) and sections 4193 and 4196 inclusive, the latter of which relate solely to the details of the duty of the collector in entering up recorded instruments, and qualified the repeal by the provision in the repealing section (Subsection X) that

"***This section, however, so far as not inconsistent with any of the provisions of law so repealed, shall be held a reenactment of such repealed law, and any right or obligation based upon any provision of such law and accruing prior to such repeal, may be prosecuted.