We have already considered, in a previous section, a question which might arise under almost any transfer of a ship. It is, Can such transfer be made without a written instrument? And we have seen that there is no positive rule of law requiring such an instrument, although one is universally used; and our general statutes of registration confine the character and privileges of an American ship to one so transferred. And the Statute of 1850 certainly limits within narrow bounds the validity of an oral sale.

1. Of the Implied Warranty in such a Sale

The rules of the common law as to evidence, agency, and warranty, applicable to sales of chattels, apply generally to the * sale of a ship. For example, if a ship be built for a par ticular purpose, under a contract, there is an implied warranty of her fitness for that purpose; and if built for use generally, there is an implied warranty that she shall be fit for such use as vessels of the kind in question are generally put to. (m) The rule of caveat emptor applies generally to the sale of a vessel after she is constructed, but with the established qualifications. (n)

(m) Shepherd v. Pybus, 3 Man. & G. 868. In Cunningham v. Hall, 4 Allen, 268, it was held, that if in a contract for the construction of a vessel, it is agreed that she shall be planked with pine, and that the builder shall see "that she is just right in all respects," the latter agreement is qualified by the former, and the builder is not liable for defects which are naturally incident to pine plank, and were not known to the builder, and could not have been discovered by him, by the exercise of reasonable care* and skill. This decision is contrary to the opinion of Mr. Justice Sprague, in the same case. Sprague, 404.

(n) In Louisiana there is an implied warranty by law against hidden delects, and those are considered hidden which cannot be discovered by simple inspection. Bulkley v. Honold, 19 How. 390.

Thus, if the ship be sold under material representations, made to affect the sale, they would be equivalent to warranty, when they would be so in the sale of any other chattel. So if a ship be sold "with all her faults," both extremes of construction are avoided; that is, neither can the buyer refuse the ship because of faults he did not know, nor is the seller now obliged to declare faults which he knows and the buyer cannot discover. But the seller is not permitted to say or do anything whatever to conceal her faults or prevent the buyer from discovering them. (o)

By the phrase "a ship with all her appurtenances," - or "with her apparel" - or "furniture" - or any equivalent phrase; and, even as we should say, by the word "ship" alone (or barque -brig - schooner, etc.), whatever is then on board of or attached to her to adapt her for the voyage or adventure in which she is engaged, passes as a part of the ship to him who buys her. There have been many adjudications on this question; and it might sometimes be affected by usage, but generally the rule is not capable of a more precise definition. (p) Fraud would of course vitiate and annul any contract of sale, or for a future sale of a ship, as it does every other contract.