Lloyd's Maritime and Commercial Law Quarterly
BRITISH FLAG—A PRIVILEGE OR AN ENCUMBRANCE—OR JUST AN ANACHRONISM?
Philip P. Jones
Solicitor, London.
The Merchant Shipping Act 1894 is constructed on the basis that it is a privilege to be allowed to register a ship under British flag. It defines a British ship by exclusion.
Section 1, as amended over the years, states:
“A ship shall not be deemed to be a British ship unless wholly owned by persons of the following description (in this Act referred to as persons qualified to be owners of British ships); namely,
(a) British subjects
(b) [Deleted by the British Nationality Act 1948]
(c) ,, ,, ,, ,, ,, ,, ,,
(d) Bodies corporate established under and subject to the laws of some part of Her Majesty’s Dominions, and having their principal place of business in those Dominions”.
Section 2 of the 1894 Act provides that every British ship shall, unless exempted from registry, be registered under that Act. It is not made an offence to omit to register a ship required to be registered under the Act but s. 2(2) provides that, if a ship required to be registered by the Act is not so registered she shall not be recognised as a British ship, and s. 2(3) enables the ship to be detained (under s. 692) until the master of the ship, if so required, produces the Certificate of Registry.
A British ship is not further defined by the Act but it seems to be the clear intention of the 1894 Act that all those ships which are entitled to be registered are required to be registered. A definition was attempted by the learned editors of “Tenterden’s Treatise of the Law of Merchant Ships and Seamen”, 14th edn., 1901, which appears to hold good today:
“… only such ships as are owned by persons qualified to own British ships as defined by Section 1, and ships built for such persons, if, on completion they become the property of such persons”.
It is sometimes argued that sub-s. (3) of s. 2 of the 1894 Act can be satisfied by the production of a Certificate of Registry granted by any competent authority, e.g. Panamanian. This sub-section is less clear than the equivalent provision of s. 19 of the 1854 Act, which was confined to ships which wished to put to sea as British ships. But there is in both Acts a provision which is sufficient to deal with foreign flag vessels, namely s. 102 of the 1854 Act and s. 68 of the 1894 Act. Therefore it seems that,
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