Mr. Justice Terry concurred.
The Act of Congress of July 29, 1850, “to provide for recording the conveyances of vessels,” enacts “that no bill of sale, mortgage, hypothecation or conveyance of any vessel of the United States shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof, unless such bill of sale, mortgage, hypothecation, or conveyance be recorded in the office of the collector of the customs where such vessel is registered or enrolled.”
The term, “vessel of the United States,” is made by the Registry Act of Congress of 1792, a legal technical term, and by that Act and the subsequent amendatory Act of March, 1803, the requisites are expressly laid down, which entitle a vessel to that national designation. The three acts referred to are all in derogation of the common law, and the rule must be applied which requires a strict construction.
By the Registry Act of 1792, those vessels which shall be registered pursuant to the Act, and no others, “shall be denominated and deemed ships or vessels of the United States.”
By the second section of the same Act, no ships or vessels are entitled to registry unless belonging wholly to a citizen or citizens of the United States, and by subsequent sections of the same Act, the sale of a registered vessel to a foreigner deprives her of the right of registration; and consequently of her privileges as a “ vessel of the United States.”
The sale likewise to a citizen requires the vessel to be registered anew, and a failure to do so forfeits her national character.
It will thus appear that the rules of action, prescribed in the Acts referred to, are very strict, and everything necessary to constitute a “ves*347sel of the United States,” is required to appear affirmatively, and for this purpose the Act requires the oath of the interested party.
It appears from the facts in this case that the steamer Underwriter was, on the 12th of July, 1854, a “ vessel of the United States,” duly registered at the port of Philadelphia, and the property of one Williams, a citizen of the United States. On the 19th of July, 1854, while the Underwriter was at sea, on a voyage from the port of registry to the port of San Francisco, she was sold by her owner to Henry Meiggs, of San Francisco, California, and a bill of sale was properly executed. While the vessel was yet at sea she was mortgaged by Meiggs to one Godeffroy, and the mortgage assigned by Godeffroy to Davidson, the plaintiff. All of these instruments were recorded in the Custom House of San Francisco, but not in the Custom House at Philadelphia, where the vessel was registered.
It is now insisted that the mortgage is void against an attaching creditor of Meiggs, under and by virtue of the Act of 1850, heretofore cited.
Now, to maintain the affirmative of this proposition, it is absolutely necessary to show that the vessel in controversy was a “vessel of the United States,” within the meaning of the registration Acts of Congress at the time of her seizure, and to do this it is necessary to show affirmatively every incident which entitles her to that privilege, or to show as much as would, under the Acts referred to, entitle her to a new register.
That she was registered in Philadelphia does not help her to the position of a national vessel, because a few days after leaving that port she was sold to another person. The Act of 1803 would give her still the character of a “ vessel of the United States,” until her first arrival in the United States thereafter, provided she was sold to a citizen or citizens of the United States. But therein consists the difficulty of the respondent’s case. It is nowhere shown that Meiggs, the purchaser, was a citizen of the United States; nor does it appear, except by the recitals in the various instruments of conveyance, that he was a resident of the United States, and these recitals would bo no proof of that fact; much less would they prove his citizenship. The case, therefore, as it stands, does not show that Meiggs would be entitled to a register, and consequently in the absence of the fact that he was a citizen, the vessel had lost its national character from the time of the sale by Williams.
Furthermore, the registration of vessels is not compulsory upon their owners. It is a privilege and advantage which the law offers to them, but of which they may or may not avail themselves, as they choose. It was, therefore optional with Meiggs (if he was a citizen) to take out a new register within the five days allowed after the arrival of the vessel in San Francisco. The only thing which the law required of him, was to deliver up the first certificate, and this he was obliged to do under a penalty, whether he registered anew or not.
By the Act of 1792, the sale of a vessel, even to a citizen, took away *348•her right to be deemed a “vessel of the United States,” and no provision was made to continue her national character and privileges when she happened to be at sea at the time of the sale. But the additional Act of 1803 was intended to cure this defect, and in case of such a sale it gave to the vessel her national character upon her first arrival, after the sale, into the United States; provided that the new owner should pursue all the requisites of the law for the purpose of obtaining a registration within five days after her arrival. This proviso, of course, qualifies the new right or privilege given by the Act, which is dependent upon it, and unless the requisitions of the proviso are followed strictly, the new right does not accrue; and the vessel remains in the same condition as if the Act of 1803 had not been the law, or in other words, she is left to her condition under the Act of 1792, which, in this case, forfeits her privileges as a “ vessel of the United States,” from the time of her sale; for there is nothing to show that either Meiggs, or any one on his behalf, availed himself of the proviso of the Act of 1803, in which event alone, as I have shown, would the new provision of that law take the vessel from under the rule of the Act of 1792.
From these views it follows, that at the time of the seizure of the Underwriter, by the defendant, as sheriff, she was not a “ vessel of the United States,” within the meaning of either of the Acts which I have referred to. That consequently it was not incumbent upon the mortgagee to record his mortgage at the port of Philadelphia, in order to hold a valid lien against all persons, because the property mortgaged is not within the description and meaning of the Act of 1850, and therefore the plaintiff’s right to recover, being established by the record, beyond doubt, the order for a new trial must be reversed, and the judgment of the Court below, in favor of the plaintiff, must stand affirmed.