CHAPTER III

OWNERSHIP

3.1 Qualifications
3.1.1 Right to own a British Ship
Under the Merchant Shipping Act M.S.A, there is no actual definition of
British Ship, instead the act declares who must own a ship before it can be
called British or it can be said that the Act accepts a ship being British and then
states who the owners may be. Under Section 1 of the M.S.A, it is declared that
the ship shall not be known as British ship unless owned wholly by persons of
the following description.
(a) British subjects
(b) Bodies Corporate.
Established under the subject to the law of some part of the Majesty's
dominions and having their principal place of business in those dominions. It
should be noted that a vessel is divided into (64) parts or shares. It is necessary
that all these parts be owned by either British subjects or body corporate as set
out above. In so far as Section 1 of the M.S.A speaks of a vessel being "owned
wholly by person", this includes anyone who owns any interest arising under
contract or any equitable interest in the ship or part of the ship be owned by the
person or bodies corporate set out in Section 1 of the M.S.A.
ownership - ပိင်ဆိင်ြခင်း

Merchant Shipping Act - ကန်သ ဘာအက်ဥပ ဒ

British subjects - ဗိတိသ နိင်ငသား

Bodies Corporate - ကမ္ပဏီများ

dominions - လက် အာက်ခနိင်ငများ

"A British subject" The definition of a British subject is to be found in

the British Nationality Act, 1948 and
(a) Citizenship of the U.K and colonies
 53

(b) Citizenship of one of the common wealth countries;

"Bodies Corporate" having their principal place of business. It is
necessary that the principal place of business be within the dominion in which
the Co is registered the test for deciding the locality of this principal place of
business is determined by the actual locality of the controlling mind or
governing power of the Co. It is not merely a question of the Co, being
registered within the contract (although this is necessary in my case) which is
important as a starting point. The real question is where we find the controlling
mind of the Co.
See the Polzeath1
The vessel in this case was owned by a Co. registered in the UK. The
Co. was in fact controlled from Hamburg by the chairman of the Directors, this
chairman being the holder of the majority of the shares in the Co. Proceedings
were taken for forfeiture of the vessel on the ground that being a British ship, it
was not owned by qualified person. Held, since the principal place of business
was not in the place as laid down in the act, therefore the ship would be
forfeited (as enemy property). In so far as it is necessary for the owner of the
whole or a part of a vessel to be registered, a Co. may be registered in its
corporate name, either as the owner of the whole or one or more of the (64)
parts. It should be noted that although an alien may not be the owner of a ship
or one or more parts of a ship which is registered as British yet he may be a
shareholder in a British Co. that itself owns a ship or one or more parts of the
ship. This is because merely having shares in a Co. does not give the
shareholders any ownership in relation to the vessel or part but the Co. is
controlled soon within H.M dominions that such control must be real not
merely colorable.
Proceedings - တရားစွဲဆိြခင်း

forfeiture - အသိမ်းခရြခင်း

shareholder - အစရှယ်ယာရှင်

1
(1916) P.241 (C.A)
 54

3.2. Corporate Personality

3.2.1 The Concept of Corporate Ownership
Since a corporation is not a living being, it is necessary to establish just
who is the owner of the vessel for the various duties and other acts which
according to the M.S.A must be carried out by the owner of the vessel e.g. In
Section 457 (1) we find that the Act speaks of "any persons" sending or
attempting to send a British ship to sea an unseaworthy condition.
Similarly Section 502 and 503 of the M.S.A which deal with the right of
owners to limit their liability in certain cases states that such right of limitation
shall only be permitted where the particular incident takes place without the
"fault or privity" of the owner. In order, therefore to render someone liable as
owner in the case where a vessel is owned by a corporation (Company), the
Court has devised in question in which they asked who the directing control is
or will of the corporation. Normally this directing control or will is to be found
in the Board of Directors, or were particularly in the Managing Director.
Corporate Personality - ကမ္ပဏီတစ်ခ၏ဥပဓိရပ်

unseaworthy condition - ပင်လယ်ဒဏ်မခနိင် သာ အ ြခအ န (သိ ့)

ပင်လယ် ရ ကာင်းအရည်အချင်း မြပည့်ဝ သာ

အ ြခအ န

fault - အြပစ်

privity - ပူး ပါင်း ကစည်မ

Board of Directors - ဒါရိက်တာအဖွဲ ့

Managing Director - စီမခန် ့ခွဲ ရးဒါရိက်တာ

 55

The Anonity2
In this case directors of a Co. failed to make sure that the crew of the
vessel fully understood that galley piers should not be lit whilst the vessel is at
her berth. The piers were lit and as a result a fire broke out and jetty was
destroyed. Held, The Co. could not claim the benefit of limiting its liability
because the incident had not taken place without the fault or privity of the
owners, i.e., to say without the fault or privity of the directing and controlling
will of the Co.
piers - ဆိပ်ခ

berth - ဆိပ်ကမ်း

jetty - ဆိပ်ခတိင်

incident - ြဖစ်ရပ်

The Dayspring3
The Dayspring was motor, crawler whose build requires that under
certain circumstances a second look put had to be used in addition to the
helmsman’s. This was because the forward visibility of the helmsman was
restricted by the vessels for castle. The Dayspring was in collision with another
vessel. It was shown in evidence that there was in fact in order displayed in the
wheel house to the effect "always insured that there are at least two men in the
wheel house". It was found by the Court that although the shipper and the mate
knew of this notice and knew that a general rule, there ought it to be two men
in the wheel house yet it was not shown that they regarded this rule as being
one which was to be strictly observed. It was therefore held that the owner (a
Co.) had not shown that three was no fault or privity in relation to the collision
and therefore they were unable to limit their liability.
motor crawler - ငါးဖမ်းသ ဘာ

helmsman - မာလိန်မှူး

2
(1961) 1. Lloyds 203
3
(1968) 2 Llyods 204
 56

castle - ရဲတိက်

collision - ယာဉ်အချင်းချင်းတိက်မြိ ခင်း

shipper - သ ဘာြဖင့်ကန်ပိ ့သူ

mate - ရယာဉ်မူှ း၏လက် ထာက်အရာရှိ

3.3 Privileges conferred by British Ownership

3.3.1 The Right to fly the British Flag
One of the privileges conferred is the right to fly the British flag but at
the same time as it is a privilege it is also in certain circumstances a duty. The
nationality of the vessel as denoted by the flag is of importance where the
vessel seeks to obtain a clearance certificate prior to putting into sea. An officer
of the customs has a right to request that the master makes a declaration as to
the nationality which the vessel belongs before he will grant such a certificate.
The right to fly the British flag is only given to registered British ships
belonging British owners. It is an offence to wrongly assume, the British
character, unless to escape capture in time of war and a vessel assuming such
character is subject to forfeiture. The burden of proving a title to use the British
flag lies on the person assuming British character. Whilst it is an offence to
assume British character, it is also an offence to cancel in the event of the
master or owner doing anything with intend to cancel the British character of
the vessel or with intend to assume foreign British character of the vessel or
with intend the assume foreign character will result in a vessel being subject to
forfeiture.
privileges - အထူးအခွင့်အ ရးများ

officer of the customs - အ ကာက်ခွန်အရာရှိ

declaration - ကြငာချက်

burden of proving - သက် သြပရန်တာဝန်

 57

The Secptre4
The owner of a vessel registered in Great Britain had the vessel removed
from the British register on representing that he was sold the vessel to a
foreigner. The vessel was then registered in a foreign register and sailed under
a foreign flag. In fact the former owner continued to receive the profits
received from the vessel and in fact still owned her. Held the vessel could be
forfeited.
The Annedate
This vessel was transferred to an Englishman living abroad in order that
the vessel might say under a foreign flag and thus evade British law as to
inspection of vessel. Her former owner continued to control the vessel and was
in reality still owner. Held, the vessel should be forfeited.
By Section 74 of the M.S.A, it is required that British ship must show
her colour (hoist the flag)
(a) if requested to do so by ship of H.M's Navy or a vessel under the
command of one of H.M's Navy officers.
(b) when entering or leaving foreign port.
(c) if equal to or more than 50 tons gross registered tonnage when
entering or leaving a British port. A failure to carry out this
operation may result the master being fined. This requirement
does not apply to commercial fishing vessels.
evade - တိမ်း ရှာင်သည်

hoist - လင့်ထူသည်

command - အမိန် ့ညန် ကားချက် ပးသည်

gross registered tonnage - မှတ်ပတင်ထား သာတန်ချိန်စစ ပါင်း

4
(1986) 3 ASP. MLC 269
 58

3.4 Jurisdiction of the Court in Relation to Ownership

Under Section 1(1) (a) of the Administration of Justice Act, 1956 the
High Court has jurisdiction to declare who is entitled to be registered the owner
of the vessel (See The Bineta) (1966) 3 All E.R.1

3.5 Transfer of Ownership

The ownership of a vessel may change in anyone of the following ways.
(1) By Sale
This may be sale of an existing vessel which in turn may be sale by
British owner to a British subject, sale by British owner to a lien or sale by an
alien to a British subject though in this case the law governing the contract may
be foreign law. Otherwise sale may take place from a builder to a purchaser
and this again may be the building of vessel for a British subject or for an alien.
(2) By Transmission
This may take place on death, bankruptcy or marriage though longer
marriage does so in English.
(3) By condemnation in sale under the order of the court.
(4) As prize in time of war

By Sale - ရာင်းချြခင်းြဖင့်

By Transmission - ဥပ ဒအရလဲ ြပာင်း ပးြခင်းြဖင့်

By condemnation in sale under the order of the court - တရားရး၏ အမိန် ့ြဖင့်

ရာင်းချြခင်း

As prize in time of war- စစ်အတွင်းစစ်သ ့ပန်းအြဖစ်သိမ်းယူြခင်း

3.5.1 Transfer of Ownership by Sale

Statement made by the seller.
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3.5.1.1 Statement Prior to Sale

A statement made prior to a contract of sale may be: -
(a) A "trade-puff" that is to say that the statement by the seller is
not intended to a representation upon which the purchase is to rely but it, used
merely as a means of getting the purchase interested.
In such a case the statement has no legal significance.
contract of sale - အ ရာင်းပဋိညာဉ်

trade-puff - ကန်ပစ္စညး် များခင်းကျင်းြပထားြခင်း

representation - တင်ြပြခင်း

(b) Representation
This is a statement made by the seller intended to be believed and acted
upon by the buyer and as a statement inducing the contract it may be the
subject of a legal action. Who’s a representation is made and it is not correct it
may be:
1. An innocent misrepresentation.
2. A Fraudulent misrepresentation.
inducing - သွး ဆာင်သည်

innocent misrepresentation - အြပစ်ကင်းမဲ့စွာလွဲမှားတင်ြပြခင်း

fraudulent misrepresentation - လိမ်လည်၍လွဲမှားတင်ြပြခင်း

1. Innocent Misrepresentation
Where one of the parties to a contract makes an innocent
misrepresentation the party induced to rely on this misrepresentation may take
the following actions.
(1) He may sue the other party on the ground that the statement was
negligently made. In case there is a defense opened to the party
making the statement.
 60

If he can show that he had reasonable grounds for making

the statement and believing it to be true and that he continued to
believe in the truth of the statement up to the time of the
performance of the contract. If he fails to establish such a defence
then he will be liable in damages to the innocent party and or
(2) The innocent party may treat the contract as at an end due to the
behaviour of the other party. Where the contract has not been
performed his is simple matter but where there has been
performance of the contract, the situation is more difficult. In
such a case the innocent party may takes application to the Court
for an order to the effect that the contract shall be set aside that is
he makes application for rescission of the contract.
negligently - ပါ့ဆစွာ

defense - ကာကွယ်ြခင်း

damages - လျာ် ကး

innocent party - အြပစ်ကင်းသည့်ပဂ္ဂိုလ်

behavior - ြပုမူပ

set aside - ပယ်ဖျက်သည်၊ ဖယ်ထားသည်

rescission - ပယ်ဖျက်ြခင်း

In such a case the Court has a discretion as to whether or not, to permit

rescission of the contract generally the court will not permit rescission where
the parties cannot be restored to the former position that is if the court see that
make such that make such order would be to make the other party suffer unduly
then it will refuse such an order and grant damages to the innocent party
instead. Where the Court refuses the rescission and grant damages, these
damages may be recovered in addition to any damages already given on the
ground of a negligent misrepresentation. But the Court will have regard to any
award made when deciding on the final damages.
 61

The about remedies are given by Section 2 of the Misrepresentation Act

1967. Although it is usual to think of the person making the innocent
misrepresentation as being the seller this is not necessarily true and the actions
are available to either party of the contract of sales. Goldsmith V.Roger,5
defendant offered to sell his fishing boat to the plaintiff for D 400, the plaintiff
told the defendant that he had examined the boat and had found certain defects
and the therefore offered him D 100. This statement was not correct and when
the defendant discovered that the plaintiff had not examined the boat at all, he
refused to go on with the contract and treated as being rescinded by the
plaintiff's behaviour. It should perhaps be noted that this statement was treated
as an innocent misrepresentation because the defendant did not allege any fraud
on the port of the plaintiff.
refuse - ြငင်းပယ်သည်

Misrepresentation Act 1967 - ၁၉၆၇ ခနှစ် အလွဲတင်ြပြခင်းဆိင်ရာ

အက်ဥပ ဒ

defendant - တရား ပိုင်

rescinded - ရပ်သိမ်းခဲ့သည်

allege - စွပစ
် သ
ဲွ ည်

2. Fraudulent misrepresentation
Fraud may be defined as a false representation made either knowing or
without belief it is truth or recklessly careless of whether it is true or false. In
the case of fraudulent misrepresentation the innocent party may bring an action
both for damages and rescission of the contract. Rescission will not be granted
if between the times of the performance of the contract at the time when the
writ is issued against the guilty party some innocent third party has acquired on
interest in the subject matter of the contract. The action which is based on

5
(1962) 2 Llyod's 249
 62

deficit is not often used due to the difficulty of proving as the defendant was
guilty fraud.
See Mason V. Wallase Bay Yacht Station6
An agent of the seller represented to a buyer that the yacht was
seaworthy, the buyer rely on this representation and entered into an agreement
under which he would purchase that yacht. The yacht was in fact unseaworthy.
It was held that the seller's agent had made the statement recklessly since he
had never been told anything about the yacht nor did he know anything about
its conditions. Therefore the buyer was entitled to rescission of the agreement
and then indemnity on the ground of fraud.
recklessly - ပါ့ဆစွာ

writ - စာခ န် တာ်အမိန် ့

yacht - အ ပျာ်စးီ ရွက် လှ

seaworthy - ပင်လယ်ဒဏ်ခနိင် သာ (သိ ့) ပင်လယ် ရ ကာင်း

အရည်အချင်း ြပည့်ဝ သာ အ ြခအ န

unseaworthy - ပင်လယ်ဒဏ်မခနိင် သာ(သိ ့) ပင်လယ် ရ ကာင်း

အရည်အချင်း မြပည့်ဝ သာအ ြခအ န

indemnity - ဆးရးမအာမခ ကး

3.5.1.2 Statement Contained in the Contract

In the actual it there will be a number of terms differing in importance.
These terms may be graded generally as being either conditions or warranties.
1. Conditions. A condition is a major term of the contact, the non-
performance of which makes the contract something different
from that intended by the party. A breach of conditions gives the
innocent party the right to.

6
(1939) 65 ULR, 2004
 63

(a) refuse to perform the contract if it has already been

performed. If the contract has been performed then-he may
have the right to return the vessel to the seller. This right of
return, however is made dependent upon the buyer having
been given in reasonable time in which to examine the vessel
and then rejecting the vessel within that reasonable time.
Where the buyer delays in either examining or if he does not
examine in rejecting the ship he may be unable to return the
vessel to the seller. In such a case however, the buyer may
still bring an action for damages in the same manner as he
would had the breach being only of a warranty and not a
condition.
(b) Sue for damages. The fact that there has been a breach of a
condition does not mean the buyer must reject the ship. He
may accept it and sue for damages done.
conditions - အ ရး ကီး သာစည်းကမ်းချက်များ

warranties - အရန်စည်းကမ်းချက်များ

refuse - ြငင်းပယ်သည်

rejecting - ပယ်ချြခင်း

(2) Warranty. A warranty is in something collateral to the main

purpose of the contract.
Thus the non-performance of a warranty does not result in the contract a
performed being something substantially different form that intended by the
parties. Where there is a breach of a warranty the innocent party is only entitled
to sue for damages and he may not reject the ship. Since a ship is classified as
"goods" for the purpose of the Sale of Goods Act, 1893, certain implied
conditions in that act may be implied in the case of a contract for the Sale of a
ship. It must be noted that since the conditions and warranties are only implied
under the Act they will not be considered as part of the contract if the contract
 64

contains express terms to the contrary. Under Section 12 of this Act, there are
implied conditions.
(a) that the seller will have the right to sell at the time when
the legal own ship (property) is to pass to the purchaser.
This can imply condition.
(ii) an implied warranty that purchase shall enjoy quiet
possession of the vessel.
(iii) an implied warranty that the vessel is free from any charge
or encumbrance (e.g. a mortgage) under Section 13, there
is an implied condition that where the vessel is sold by
description, that the vessel correspond with them
description.
collateral - အဆွယ်အပွား

goods - ကန်စည်

Sale of Goods Act, 1893 - ၁၈၉၃ ခနှစ် ဗိတသ

ိ ကန်စည် ရာင်းချ ရး

အက်ဥပ ဒ

implied conditions - သွယဝ

် က်
ိ သာစည်းကမ်းချက်များ

possession - လက်ဝယ်ပင်
ိ ဆင်
ိ မ

encumbrance - ဝန်ထပ်ဝန်ပိး

mortgage - ပါင်နှြခင်း

Under Section 14 (1) there is an implied condition as to the fitness for

purpose of the ship's port. Before this condition can be implied certain facts
must be fulfilled.
(i) The buyer must have made known the purpose for which
he requires the vessel. This may be done expressly or
implied from the circumstances known to the seller or
from the nature of the vessel.
 65

(ii) The seller must deal in goods of that sort in the ordinary
course of his business.
(iii) The buyer must actually rely on the seller's skill and
judgment though this reliance need not be total and may
be partial only.
fitness - သင့် လျာ် သာ

sort - အမျိုးအစား

judgment - ဆးြဖတ်ချက်

reliance - စိတ်ချယ ကည်ြခင်း

Cammel Laird V. Manganese Bronze and Brass7

The buyer asked the sellers to make a propeller for their ship. The buyer
provided he seller with certain specifications relating to the propeller but left
the final technical details to the seller. Held although this reliance on the sellers
was not total year there had been sufficient reliance on the seller's skill and
judgment for the buyers to recover damages for breach of this condition. Under
section 14(2) there is an implied condition as to the merchantable quality of the
goods. This condition is implied subject to the sale being a sale by description
as to the seller being a leader in such goods in the ordinary course of his
business. This condition does not apply where in the buyer has examined the
goods and the fails to discover such faults as ought to have been discovered on
a reasonable examination. The buyer also loses this right, however, if he
actually makes same attempt an examination. In view of the trials normally
given in the case of purchasing vessels are also having regard to the practice of
having a survey made before purchase, this particular implied condition does
not play, a very important part in the sale of ships.
propeller - သ ဘာကိပဲ့ထိန်းသည့်ပန်ကာ

merchantable quality - ရာင်းဝယ်နိင်သည့်အရည်အ သွးရှိ သာ

survey - ကည်ရ
့ စစ် ဆးြခင်း
7
(1966) Lloyds 566
 66

3.6 Remedies of Seller (Unpaid Seller)

3.6.1 Stoppage in Transitu
This particular remedy exists more in theory than in practice, but where
a seller has sent a vessel to be delivered to a buyer and the seller is an unpaid
seller time for payment being already due, then he may stop the vessel in transit
and have it return to transit will cease if the carrier has agree that he now holds
the vessel to the order of the buyer. Once the transit is at an end the seller may
no longer exercise this right.
unpaid seller - ကန်ဖိး ငွအ ကျမရ သးသည့် ရာင်းသူ

stoppage in transit - လမ်းခလတ်တင

ွ သ
် ဘာကိတား၍ြပန်ယြူ ခင်း

remedy - ကစားခွင့်

carrier - သယ် ဆာင်သူ

3.6.2 Possessory Lien

An unpaid seller who has vessel still in his possession may exercise a
right of then over the vessel. That is he may keep the vessel in his possession
until the buyer pays the purchase price.
possessory lien - ပိင်ဆိင်မအခွင့်အ ရး

possession - လက်ဝယ်ပင်
ိ ဆင်
ိ မ

purchase price - ဝယ်ယူသည့်တန်ဖိး

3.6.3 Power of Resale

An unpaid seller is a possession of a vessel may exercise a power of
resale over the vessel and can sell it to a third party. Such third party will by
Section 48 of the Sale of Goods Act, 1893 receive a good title against the
original purchaser. By "a good title" is meant the right to be regarded as the
true legal owner of the vessel.
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The Bineta,8 a motor yacht was sold by her registered owner to G. The
owner executed a bill of sale in favour of C and G had himself registered as the
legal owner of the vessel G, however, had not paid the owner and the owner
kept the yacht in his possession. The owner later sold the vessel to T. T now
brought an action for a declaration that he might be registered as the true legal
owner on the grounds that the original owner has poses to pass good title to
him under Section 48 of the Sale of Goods Act. T further required that the
register be altered to show him as the true legal owner. Held T was entitled to
such a declaration and to have the register altered since he had got good title to
the yacht the original owner having exercised his right of lien and then power
of resale as set out in the Act.
power of resale - တစ်ဆင်ြ့ ပန်လည် ရာင်းချနိင်သည်အ
့ ခွငအ
့် ာဏာ

good title - ကာင်းမွန် သာပိင်ဆိင်ခွင့်

bill of sale - အ ရာင်းစာချုပ်

3.6.4 Action for the Price

Where the property in the vessel has passed to purchaser and be has
refused or neglected to pay the purchase price irrespective (regardless) of
whether or not the purchaser has taken possession of the vessel the seller may
bring an action for the price of the (goods) vessel. This action will also lie
where the price is stated in the contract to be payable in or particular day and
that day has passed to the purchaser.
action for the price - သ ဘာတန်ဖိးအတွက် တရားစွဆ
ဲ ိ တာင်းခြခင်း

particular day - သတ်မတ

ှ ထ
် ားသည့် န ့

3.6.5 Action for Non-acceptance

This action may be brought wherever the buyer wrongfully neglects or
refuses to pay for the vessel. It must be contracted with the right to being an

8
(1966) Lloyds 566
 68

action for the price in that the latter action can only be brought where the
property in the vessel has passed to the buyer or the price was payable on a
particular day and thus day has passed in the case of an action for non-
acceptance the measures of damages is the estimated loss directly and naturally
resulting in the ordinary course of events. Where there is an available market
price for such a vessel, then prima facie the measure of damages will be the
difference between the contact price and the market or current price at the time
when the vessel ought to have been accepted or if no time as fixed for
acceptance then at the time of refused to accept.
action for non-acceptance - သ ဘာလက်မခမအတွက်

တရားစွဲဆိအ ရးယူြခင်း

wrongfully - တမင်တကာ

market or current price - ကာလ ပါက် စျး

3.7 Remedies of Buyer

3.7.1 Action for Non-delivery
This action will lie where the seller wrongfully neglects or refuses to
deliver the vessel to the buyer. The measures for damages is estimated loss
directly and naturally resulting in the ordinary course of events from the sellers
breach of contract, if there is an available market then the measure of damages
is prima facie the difference between the contract price and the market or
current price at the time when the vessel ought to have been delivered or if no
time for delivery was fixed then at the time of the refuses to deliver.
action for non-delivery - သ ဘာထတ်မ ပးမအတွက် လျာ် ကးကိ

တရားစွဲဆိ တာင်းခြခင်း

breach of contract - ပဋိညာဉ်ကိချိုး ဖာက်ြခင်း

prima facie - ြမင်သာ သာ

 69

3.7.2 Specific Performance

Where the seller refused to deliver the vessel to the buyer, the buyer
may ask the court to exercise its discretion in his favour and grant a decree that
the contract be specifically performed. This remedy will only be exercised
where damage will not be a sufficient remedy for the buyer. It is completely
discretionary and the court in granting such a decree may attach to it such
condition as may be though necessary.
In Behnke V. Bede S.S9
An order specific performance of a contract for a steamship where the
vessel was of peculiar and practically unique value to the plaintiff. The vessel
was being sold cheaply and she was very old, build in 1892, but her engines
and boiler were practically new, and such as to satisfy the German regulation,
and hence the plaintiff could, as a German shipowner, have her at once put on
the German register.
The seller refused to deliver him, so the buyer applied to the court for a
decree at pacific performance of the contract.
Held by the King's Bench Division that damages were an inadequate
remedy and a decree of specific performance would be ordered.
specific performance - သီးြခား ဆာင်ရွက်ြခင်း

decree - ဆးြဖတ်ချက်၊ ဒီဂရီအမိန် ့

steamship - မီးသ ဘာ

cheaply - စျး ပါစွာ

inadequate - မလ လာက် သာ

3.8 Remedies for Breach of Condition

3.8.1 The Right to reject the Vessel
Where the purchaser is able to treat the contract as at an end due to the
breach of the condition of the contract on the part of the seller, then the

9
(1977) K.B.649
 70

purchaser's remedy is an action for damages is based on the same fact as those
which support an action when the purchaser had also paid the purchase price,
then he may recover such purchase price from the seller. This is an addition to
any damage he may receive assessed on the basis of the seller’s failure to
deliver the vessel.
right to reject the vessel - သ ဘာကိြငင်းပယ်နိင်သည့်အခွင့်အ ရး

damage - ဆးရးမ

3.8.2 Where the Purchaser is unable to reject the vessel

Where the purchaser is unable the vessel due to the fact that he is
deemed in law to have accepted the vessel then his remedy is to bring an action
for damages on the basis of a breach of condition. The measure of damages in
such a case is assessed in the same manner as is used in assessing damages in
the case of a breach at warranty.
bring an action - တရားစွဲဆိ ဆာင်ရွက်ြခင်း

measure of damages - လျာ် ကးအတိင်းအတာ

assessed - တန်ဖိးကိခန် ့မှန်းခဲ့သည်

warranty - အရန်စည်းကမ်းချက်

3.9 Remedy of Purchase for Breach of Warranty

In the case of a breach of warranty the measure of damages is the
purchaser may recover the estimated loss directly and naturally resulting is the
ordinary course of event from the breach of warranty (condition) where there is
a breach of warranty in relation to quantity the measure of damages is prima
facie, the difference between the value of the vessel at the time of delivery to
the buyer and the value of the vessel would have had, if it had answered the
warranty. The buyer is also entitled to recover special damages in any case
where by law special damages may be recovered.
quantity - အ ရအတွက်
 71

value of the vessel - သ ဘာ၏တန်ဖိး

entitled - ရထိက် စခဲ့သည်

special damages - အထူး လျာ် ကး

3.10 Sale of a Vessel to an Alien

Since an alien may not own a British ship it is necessary that there be a
set procedure whereby the owner of a British registered ship may transfer such
ship to an alien. Under S.21 of the M.S.A, it is provided that in the event of the
vessel ceasing to be British owned due to transfer to an alien, then the owner of
the ship or indeed every owner immediately upon the obtaining this knowledge
of the event is to give notice to the registrar at the vessel's port of registry.
Upon receiving such notice the registrar must take an entry in the register book
and then proceed "to close the register" in relation to that vessel. The only
exception to closure of the register is in respect of outstanding mortgage or
certificates of mortgages which are still outstanding in that they have not been
entered. Once a vessel has been sold to an unqualified person, then the ships
certificate of registry must be delivered by the master of the vessel to the
registrar of the port at which the vessel is lying at the time when sale takes
place.
If there is no registrar at that port then the certificate of registry should
be delivered to the British consular officer at the port. In either case the
certificate of registry is then to be sent immediately to the registrar at the
vessel's port of registry. In the event of the vessel not being at the port at the
time when sale takes place, then the master must deliver the certificate of
registry to the registrar or to the British consular officer within (10) days of the
vessel's arrival at the next port of call.
an alien - နိင်ငြခားသားတစ် ယာက်

procedure - လပ်ထးလပ်နည်း

ceasing - ရပ်စသ
ဲ ည်
 72

registrar - မှတ်ပတင်အရာရှိ

mortgage - ပါင်နှြခင်း

British consular officer - ဗိတိသ ကာင်စစ်ဝန်အရာရှိ

3.11 By Transmission of Ownership

Transmission covers a very special case where the ownership at a vessel
or share takes place by operation of law that is that the transmission or transfer
of ownership came about without any dissect act on the part of the person
concerned and in particular without any act of the part of the person who new
finds himself owner of the ship or share. The transmission takes place on death,
or bankruptcy or marriage.
transmission - ဥပ ဒအရလဲ ြပာင်း ပးြခင်း

bankruptcy - လူမဲွ

3.11.1 Transmission to a Qualification Person

Under S.27 of the M.S.A a person becoming owner of a ship or share by
virtue of transmission must make a "declaration of transmission". In such
declaration be must
(1) identify the ship
(2) state his qualifications or if accompanied through the necessary
conditions to own a British ship or share in one.
(3) declare that to the best of his knowledge and belief no unqualified
person is entitled to any legal or beneficial interest in the ship or
share.
(4) make a statement as to how the transmission occurred.
(5) supply evidence in support of his statement as to how the
transmission came about e.g. in the case of death, the copy of the
death certificate.
 73

This declaration and the evidence in support of the statement made must
sent to the registrar of the vessel's port of registry and the registrar, it satisfied,
will register the person making the declaration as owner of the ship or share.
qualification person - အရည်အချင်းြပည့်ဝသူ

evidence - သက် သ

death certificate - သဆးြခင်းလက်မှတ်

3.11.2 Transmission to an Unqualified Person

This particular situation is dealt with S.28 of the M.S.A since an
unqualified person may not own a British ship nor a share in one it has been
necessarily to provide machinery to deal with the case where due to
transmission and an unqualified person suddenly finds himself owner of a ship
or share. In such a case the unqualified person suddenly finds himself owner of
a ship or share. In such a case the unqualified person should make application
to the court may order the ship or the share to be sold and may also order that
the purchase money received form such sale be paid over to the unqualified
person or the court may make such other order is the court may make such
other order person or the court may make such other is the court may make
such other order is the court thinks fit. The powers of the court in such a case
are extremely wide. The court may call for whatever evidence it thinks
necessarily in order to show the right of the unqualified person making the
application. This application must be made within (four) weeks of the event
bringing about the transmission. However the Court is given discretion to admit
application made up to one year after the even brining about the transmission.
Where the application is not made within the proper time that is four
weeks or where the court refuse its exercise, its discretion in relation to a late
application or where the court refuses to make an order for the sale of the ship
or share than that the ship or share becomes subject to forfeiture.
unqualified person - အရည်အချင်းမြပည်ဝ
့ သူ
 74

the court thinks fit - တရားရးကသင့် တာ်သည်ဟထင်ြမင်ယူဆသည့်

အတိင်း

admit - ခွင့်ြပုသည်

3.12 By Condemnation in Sale under the Order of the Court

In that the court orders the vessel to be sold may take place by reason of
(1) transmission to an unqualified person
(2) forfeiture
(3) as a mean of providing payment for creditors
(4) it might also be said to cover the case of prize where the vessel is
sold under the order of the competent court in time of war such
vessel having been captured form the enemy.
The normal process where sale is made under the order of the court is
for the court to make an order containing a declaration vesting in same person's
name, the right to transfer the ship or share.
By S.29 of M.S.A the person named in the declaration has the power to
transfer the ship or share as if he were in fact the registered owner. The
registrar at the vessels port at registry must obey the instruction of such a
person in the same way as he would obey the instruction of the registered
owner.
A purchaser of a ship or share sold under an order of the court must
when seeking registration state in the declaration made by him in time, place
and court in which the vessel or share was ordered to be sold. The purchaser
must also submit to the registrar a copy of the court. A purchaser who purchase
a ship was sold under an order of the court gets a clean title against the world.
Therefore if a ship is ordered to be sold and at the time of such sale a maritime
lien exists against the vessel, such maritime lien will not service the sale. That
so that the person claiming the maritime lien may not have the vessel arrested
after the sale and his rights after the sale are merely to proceed against the
funds held by the court as a result of the sale.
 75

by condemnation in sale under the order of the Court - တရားရးအမိန် ့ြဖင့်

ရာင်းချြခင်း

creditors - မီရှင်များ

obey - လိက်နာ ဆာင်ရက

ွ သ
် ည်

submit - တင်ြပသည်

maritime lien - ပင်လယ် ရ ကာင်းအခွင့်အ ရးများ

3.13 As prize in Time of War

Prize relates to enemy's vessel captured in the time of war in which are
such a vessel may be ordered to sell by order of the competent court. The right
in relation to prize belongs entirely to the Probate, Divorce and Admiralty
Division of the High Court.
The Admiralty Court has two jurisdictions.
(a) admiralty jurisdiction and
(b) prize jurisdiction. A prize court is a completely separate court
form normal admiralty court, and in the prize court the law
administered will be as the course of Admiralty and the law of
nations.
Rules governing and procedures are to be found in the prize court
(Procedure) Act, 1914. The court will deal with all cases concerning capture,
prize and booty (prize on share).
as prize in time of war - စစ်အတွင်းစစ်သ ့ပန်းအြဖစ်သိမ်းယူြခင်း

Probate, Divorce and Admiralty Division of the High Court - သတမ်းစာ၊

လင်မယားကွာရှငး် ရးနှင့် ပင်လယ် ရ ကာင်းစီရင်ပိင်ခွင့်အာဏာ ရှိသည့်

တရားလတ် တာ် (အဂလန်နင်

ိ င)ဌာနခွဲ

admiralty jurisdiction - ပင်လယ် ရ ကာင်းစီရင်ပိင်ခွင့်

prize jurisdiction - စစ်သ ့ပန်းပစ္စည်းနှင့်သက်ဆိင် သာစီရင်ပိင်ခွင့်

 76

3.14 Ship Building Contract

We now turn to the legal aspects of the shipbuilding contract. This case
differ from the purchase of an existing ship, since work and labour are
involved, and new legal question might arise as e.g. the shipbuilder's copyright
in the plans. In essence, however, this contract too is a sale of goods, and in this
section it is proposed to discuss but a few points of interest with regard to
which the purchase of an existing ship and the order for the construction of a
new one are at variance.10
shipbuilding contract - သ ဘာတည် ဆာက် ရးပဋိညာဉ်

variance - ြခားနားချက်

To begin with when a person gives such an order he makes an

agreement for the purchase of a ship not yet in existence, he buys what are
called future goods.11 It needs little imagination to realize that as no property
exists when the contract is concluded, none can pass at that time. Legally
speaking where future goods are bought or more specifically, where an order is
given for the construction of a vessel, no sale is possible, but the contract will
always constitute an agreement to sell.12 This being so, the passing of the
property will normally not occur until the completion of the vessel, but the
parties may provide for transfer by stages as building proceeds. Indeed a great
number of shipbuilding disputes have turned on such provisions.
future goods - အနာဂတ်ကန်စည်

imagination - စိတ်ကးူ ယဉ်ြခင်း

The problems underlying those cases must be sought for in the province
of business. The larger the vessel, the greater are the costs involved, and the

10
The person ordering a ship to be built is not free to have it designed he pleases. As explained in
Chapter 11, ships must comply with high standard of safety, hygiene and comfort to protect
passengers and crews.
11
See Sale of Goods Act, 1893, S.63
12
Ibid, SS.1,5(3); See P.13 ante
 77

longer is the time the builder has to wait for the payment of the purchase price.
As often he will not be able to finance the whole construction himself, and he
will be obliged to apply for help to other quarters. These other quarters will be
either the purchaser or third parties. The latter will usually be banks, and they
will require a security for their advance. Unless they are content with
debentures charging the whole undertaking of the builder a specific equitable
mortgage of the existing ship must be arranged; for we shall see in the next
section that legal mortgages can only be effected when the ship is complete and
registered. Our present problem is concerned with advances on the price by the
purchaser. He, too, must safeguard himself against the builder's possible
supervening insolvency. This is usually done by a term in the building
agreement, providing for the passing of the property to the purchaser of
portions of the ship as construction goes on, in accordance with the
installments he pays on the price. Compared with the sale of an existing thing
by installments, the position is just the reverse. In installment sales the vendor
retains the property until the last installment is paid; in our present case the
purchaser with each installment acquires portions of property.
equitable mortgage - သာတူညမ
ီ သ ဘာတရားအရ ပါင်နြခင်
ှ း

vendor - ရာင်းချသူ

That this effect is possible was laid down by the House of Lords a long
time ago13 and it was expressly recognized in Sec 18, Rule 5 (1), of the Sale of
Goods Act, 1893.
According to this Rule, the property in future goods, in the absence of
evidence to the contrary, wills pass to the purchaser under two conditions, viz.
(i) goods complying with the contractual description must exist in
such a state that the buyer is bound under the contract to take
delivery of them;14

13
Seach V. Moore (1886), 11 App, Cas, 350, 370 per Lord Blackburn:
It is competent to parties to agree for valuable consideration a specific article shall be sold, and
become the property of the purchaser as soon as it has attained a certain stage. "and see Lord
Walson, ibid, P.380.
14
Sale of Goods Act, 1893; SS 18, Rule 5 (1), and a 62 (4)
 78

(ii) such goods must be unconditionally appropriated to the contract

by the consent of the parties.
Moreover the buyers will not only desire that as building precedes the
vessel shall become his, but that if the builder become insolvent the completion
shall take place in due course. He will usually attempt to secure this by a term
in the contract that the materials brought into the shipyard for the purpose of
constructing the ship shall become property.15
unconditionally - ခင်းချက်မရှိ

shipyard - သ ဘာကျင်း
The desired effect is not always wholly achieved. One has to bear in
mind that whatever is thus transferred to the buyer ceases to be available to
builder's general creditors. Justice and common sense require that the evidence
that materials or portions of a ship in construction in the builder's yard, and
responsibly his property, have been excluded from his assets shall be strong.
Therefore the parties are not deemed to have intended the passing of the
property in stages, by merely agreeing that installments of the purchase price
be paid in advance.16 Likewise, where a contract for the building of two ships
on the Clyde provided, in addition to the payment of the price by installments,
that the materials be passed by the purchaser's superintendent, but delivery to
the Italian principals should take place after trials off the Italian must, it was
held that the contract was for the sale of two completed ships, and the property
until completion remained in the builders.17 On the other hand, a contract
providing for the payment of installments at particular stages of construction,
for inspection by the purchasers or their agents,18 and for the passing of the
property in the completed sections of the ship is effective.19 In a case like that
the contract is construed not as an agreement to sell a completed ship, but as "a

15
For a good example of such a clause see Reid V. Macbeth & Gray, (1904) A. C.223
16
Seath V. Moore (1886), 11 App. Cas, 350
17
Sir. Jams Laing & Sons. Ltd V. Barclay, Curel & Co.Ltd (1998) A.C. 35 (H.L.SC)
18
Lloyd's surveyors approval, which is desirable, as it will enable or facilitate a Lloyd's surveey prior
to registration, is not inspection by the purchaser, as Lloyd's surveyors do not act as the purchaser's
agent. Se Reid V. Macbeth & Gray, (1904) A.C.223 (H.L.Sc)
19
In R Blyth Shipbuilding & Dry Docks Co.Ltd (1926) Ch. 495 (C.A); Howden Bros. V.Ulster Bank,
(1924) 1 I.R 117; 19 L I.L.R.199
 79

contract for the sale from time to time of a ship in its various stages of
construction, or of materials to be used in the construction of ship, the seller,
however being under an obligation of working up the things sold into a
completed ship for the purpose of putting them into a deliverable State."20
installments - အရစ်ကျ ပး ချြခင်း

purchaser's superintendent - ဝယ်ယသ

ူ မ
ူ ျား၏ ကီး ကပ်ကပ
ွ က
် သ
ဲ ူ

This does not mean that property in materials intended to be built into
the vessel, and approved by the purchaser passes to the latter whenever it is
mentioned in the contract. To produce by this effect the material has to be
"appropriated" within the meaning of Sect. 18, Rule 5(1) of the Sale of Goods
Act. If the Court comes to the conclusion that the whole contract is not for
materials to be worked up into a ship, a case which will rarely arise, but a
contract for the sale "from time to time of a ship in its various stages of
construction," or for a complete ship, something more than intention, however
definite in necessary for the appropriation of material not yet worked into the
vessel. In addition "there must be some definite act, such as the affixing of the
property to the vessel itself, or some definite agreement between the parties
which amount to in assent to the property in the materials passing form the
builders to the purchasers."21
When the ship is finally completed, and not delivered to foreign
buyers,22 the builder has to give a certificate in accordance with Sec 10 of the
Merchant Shipping Act 1894, and unless the property has not already vested in
the purchaser in stages or under any other special contract as first described,
apply for registration, and deliver it to the purchaser, by bill of sale.23

20
1. Per Romer, in Re Blyth, supra. P 500, Whether such arrangements are made it is usual to preserve
the builder's lien for unpaid purchase money under S. 41, Sale of Goods Act, 1893, which enables
him to retain possession of the ship in case the price is not paid or the purchaser becomes insolvent.
Such possessor lien also attaches in favour of the builder who bas effected repairs, and he is in
possession of the ship though it be in a public dry dock and the presence on board of ship's officer
during repairs is by itself no reason why the shipwright should not have possession. See The REllim
(1922), 39 T. L.R.41.
21
I. Per Sargant, L.J.in Re Blyth, sura. P.518; cp. Lord Watson in Seath V. Moore, Supra, 381
22
Union Bank of London v. Lenanton (1878). 3C.P.D
23
P.20.ante.
 80

Implied Warranty. It remains to mention that, of course, the shipbuilder

is a person on whose skill or judgment the purchaser relies so that the builder
gives an implied undertaking as to fitness for a particular purpose within the
meaning of Sec 14 (1) of the Sale of Goods Act.24 In the same way where a
builder order ships part from a sub- contractor the latter will usually give an
implied undertaking as to the fitness of the part for the particular ship.25
On the whole, the purchaser of a ship may rely on the skill of the
shipbuilder as far as third parties are concerned. Suppose the purchaser of a
new vessel engages in trade, and persons or property suffer damage by reason
of any defect in the structure of the ship. It has been held that, apart from his
liability as a carrier, to be discussed later, he insure no liability if the can show
that builders of repute were engaged, and that he himself adopted a reasonable
precautions in the nature of appropriate surveys.26
Implied Warranty - ဥပ ဒအရမှတ်ယူနိင်သည့်အရန်စည်းကမ်းချက်

Shipbuilder - သ ဘာတည် ဆာက်သူ

sub-contractor - တစ်ဆင့်ခကန်ထရိက်တာ

Another question, concerning the builder's to third parties, has been

noticed but not decided, by the courts. It was laid down in the famous case of
Donoghue V. Stevenson27 that a manufacturer of goods may be liable in tort to
any person who normally uses the manufactured article and suffers damage
through sudden occasional be the manufacturer and not discoverable by the
retailer. Thus where cotton underwear from a retailer, and the purchaser
contracted a skin disease through chemical substances used in the
manufacturing process, damages was given against the manufacturer. The
ration decided was that in the circumstances the retailer has no means of
discovering the defect.28 It was argued for the manufacturer that to allow the
action to succeed lead to difficult questions particularly in shipbuilding

24
P.19, ante.
25
Commell Laird & Co. Ltd V. Maganese, Bronze & Brass Co.Ltd (1934) A.C. 402(H.L)
26
Angliss V.P & G Steam Navigation Co, (1927) 2 K456 461 per Wright J.
27
(1932) A.C 562; op Grant V.Australian Knitting Mills, (1936)A.C 85
28
Grant V. Australian Knitting Mills, supra.
 81

contracts where it could in no way be foreseen, who and many persons, would
use the ship possible at the same time, and that a decision against the
manufacturer would shoulder that class of persons with a risk of disastrous
magnitude. The court, however, refused to consider such a case before it arose,
and the question must be regarded as an open one.
In any event, until registration, shipbuilders limit their liability in case of
damage to persons or property cause by ships in course of construction to the
same extent as can owners after completion.29
Finally, it is perhaps worth a passing notice that shipbuilders owe a duty
of safety to their workmen and employees under the shipbuilding and Ship-
repairing Regulations 1960 and that any contravention will lay them open to
criminal prosecution.30
third parties - တတိယပဂ္ဂိုလ်များ

manufacturer - ထတ်လပ်သူ

retailer - လက်လီ ရာင်းသူ

shipbuilding and Ship-repairing Regulations 1960 - ၁၉၆၀ြပည့်နှစ် သ ဘာ

တည် ဆာက်ြခင်းနှင့်သ ဘာြပင်ဆင်ြခင်းဆိင်ရာစည်းကမ်းဥပ ဒများ

29
P.45 et seq. post.
30
Factories Act, 1961, as. 62, 76, 126. MePhail V. London Graving Doak Co, Ltd, (1936), 54 L 1.L.R
153; MacColl V. Bicker-Armstrong's, Ltd. (1936), 53L 1, L.R.2,9(Div, Court); Day V. Harlabd&
Wolff, (9153) 2 Lloyd's Rep, 58.