indorsed generally. The necessary insurances were effected, and the certificates of insurance were obtained by the sellers on July 23.

On July 28 the sellers drew a bill of exchange upon the buyers, and, according to the statement of the Attorney-General, discounted it with the bankers (the Guaranty Trust Company, of New York, who have joined them as claimants). On the same date they deposited with the bankers the bill of lading and certificates of insurance, to be delivered up on payment by the buyers through a Berlin bank of the amount due on the bill of exchange for the cost and insurance, less the freight which was credited, as it was to be paid for by the buyers on delivery.

On the same date, also, the original documents were forwarded to the Berlin bank for credit of the New York bank by the steamer La Savoie, which left New York on July 29 and arrived at Le Havre on August 5; and duplicate documents were forwarded by the steamer Carmania, which left New York on July 29 and arrived at Liverpool on August 7. The buyers were duly notified of these matters, and an invoice was forwarded to them by the sellers on the same day (July 28), with all the necessary particulars of the shipment, bill of exchange, and documents.

So far as the buyers are concerned, no further information was given to the court except that the documents were tendered to them, and that on the tender they refused to accept the documents, or to pay the sums due under the bill of exchange and indorsed on the bill of lading as follows:

"Refused on account of late production, nearly one month after normal due date.-Colmar, Sept. 3, 1914.-GEO. FRIES."

That reason was a mere excuse; the real reason, no doubt, was that war had broken out. The sellers, therefore, or their bankers, still hold the bill of lading, and the bill of exchange remains unpaid.

The question of law is: Was the cargo on September 1 subject to seizure or capture by or on behalf of the Crown as droits of Admiralty or as prize? Before this question is dealt with I desire to point out that nothing which I shall say in this case is applicable to capture or seizure at sea or in port of any property dealt with during the war or in anticipation of the war. Questions relating to such property are on an entirely different footing from those relating to transactions initiated during times of peace. The former are determined largely or mainly upon considerations of the rights of belligerents, and of attempts to defeat such right. I will refrain from discussing these matters, and will only refer to such authorities as the Sally, heard on appeal by the Lords Commis

sioners of Appeals in Prizes in 1795, and reported in a note on page 300 of 3 C. Rob.; the Packet de Bilboa (2 C. Rob., 133, and 1 E. P. C., 209); and the Ariel (11 Moore P. C., 119, 2 E. P. C., 600) for the principles applicable in the prize court during a state of war.

In the case now before the court, there is no place for any idea of an attempt to defeat the rights of this country as a belligerent; and the case has to be determined in accordance with the principles by which rights of property are ascertained by our law in time of peace. The main contest was as to the right test to apply in these circumstances for determining whether a particular property was subject to seizure or capture. Another point was taken, and argued chiefly by junior counsel for the claimants, that in any event enemy property in a British ship could not be seized in port or captured at sea.

I will state the contention and propositions submitted by the learned Attorney-General in the words of the propositions which he submitted. He said:

My first proposition is that the test of the right to capture and sale is the answer to the question, "On whom is the risk at the moment of capture?" That is to say, who suffers if the goods are captured? Applying that test, the American claimants here would have had a jus disponendi, because they are holding the bill of lading, which has not been indorsed, and therefore they would have to that extent of course a special property, a proprietary interest in the cargo, but they would not have a general property in the cargo; still less would they have the risk. And there is a third proposition, which is really a development of the other proposition, viz., the American sellers had a vested right of payment, whatever happened to the goods on the tender of the documents, and I will add as a point for my third proposition: that for the purpose of determining whether the cargo is good prize (which is quite a separate question from the other), the material question is not the abstract question of property, but whether it is an enemy or a neutral who will suffer if the cargo is condemned-on whom is the risk?

And summing it up, the learned Attorney-General later submitted:

If my main proposition is right, that in a prize court one is not concerned with these niceties about the abstract law of property, the point really is, at the moment of capture, the goods being on the high seas, is it or not open to the consignor to compel payment by the consignee? That is the real test. Then plainly I am entitled here to the condemnation of the goods.

As I have intimated, it was subsequently assumed, and for this purpose agreed by the Attorney-General, that the goods were seized when afloat in port; but that makes no material difference.

The contrary contention of Mr. Leslie Scott for the claimants was that "The true criterion to apply where goods are shipped before war is,

whose goods are they? In whom is the property in the sense of a beneficial ownership of the goods vested?" Very difficult questions often arise at law as to when the property in goods carried by sea is transferred, or vests; and at whose risk goods are at a particular time, or who suffers by their loss. These are the kinds of questions which are often brushed aside in the prize court when the transactions in which they are involved take place during war, or were embarked in when war was imminent or anticipated.

Where, as in the present case, all the material parts of the business transaction took place bona fide during peace, and it becomes necessary to decide questions of property, I hold that the law to be applied is the ordinary municipal law governing contracts for the sale and purchase of goods. Where goods are contracted to be sold and are shipped during peace without any anticipation of imminent war, and are seized or captured afloat after war has supervened, the cardinal principle is that they are not subject to seizure or capture unless under the contract the property in the goods has by that time passed to the enemy. It may be that the element of risk may legitimately enter into the consideration of the question whether the property has passed or has become transferred.

But the incidence of risk or loss is not by any means the determining factor of property or ownership. (Cf. section 20 of the Sale of Goods Act, 1893). The main determining factor is whether according to the intention of seller and buyer the property had passed.

The question which governs this case, therefore, is: Whose property were the goods at the time of seizure? (See the Cousine Marianne, Edw., 346, and 2 E. P. C., 85; the Ida, Spinks, 26, and 2 E. P. C., 268; the Abo, Spinks, 42, and 2 E. P. C., 285; the Vrow Margaretha, 1 C. Rob., 336; 1 E. P. C., 149; and the Ariel, 11 Moore, P. C., 119, and 2 E. P. C., 600.) The Attorney-General did not argue that the property had passed to the enemy buyers. He admitted that the neutral sellers had a jus disponendi, because they held the bill of lading, which was not indorsed, although possibly he may have intended to qualify this admission by saying that "therefore the sellers would have to that extent a special property" in the goods. But, at any rate, as he did not contend that by law the property had passed to the buyers, I think it sufficient to deal briefly with the matter, and to state my conclusions without elaborating the grounds.

In my opinion, the result of the many decisions from Wait v. Baker ([1848] 2 Ex., 1) up to Ogg v. Shuter ([1875] 1 C. P. D., 47); Mirabita v.

Ottoman Bank ([1878] 3 Ex. D., 164); and thence up to the Sale of Goods Act, 1893; of the provisions of the Sale of Goods Act, 1893, itself (following closely on these matters the judgment of Lord Justice Cotton in Mirabita v. Ottoman Bank); and of the decisions after the Act-e. g., Dupont v. British South Africa Company ([1901] 18 The Times L. R., 24); Ryan v. Ridley ([1902] 8 Com. Cas., 105; 19 The Times L. R. 45); and Biddell v. Clemens Horst ([1911] 1 K. B., 214 and 934; [1912] A. C., 18; 27 The Times L. R., 47 and 331; 28 The Times L. R., 42)—is that in the circumstances of the present case the goods had not at the time of seizure passed to the buyers; but that the sellers had reserved a right of disposal or a jus disponendi over them, and that the goods still remained their property, and would so remain until the shipping documents had been tendered to and taken over by the buyers, and the bill of exchange for the price had been paid. It follows that the goods seized were the property of the American claimants; and were not subject to seizure. The court decrees accordingly, and orders the goods to be released to the claimants.

Another point was that, as the cargo was in a British ship, it could not be seized or captured, even if it was enemy property. In my opinion, this proposition is wholly lacking in foundation. No authority was cited for it. Such a contention has never been put forward, because I think no one has thought that it could prevail. Enemy property at sea or in port can be captured or seized except where an express immunity has been created. Abundance of authority exists for this in the books of international jurists (Wheaton's International Law, edited by Mr. Dana, 1866, Section 355 and Note 171).

His Lordship quoted the passages, and continued:

There is no distinction now to be made between capture at sea and seizure in port, and-apart from the practice introduced by the Declaration of Paris in favor of neutral vessels-it does not matter in what ships the cargoes seized may happen to be. According to the Order made in Council in 1665 as to the rights of the Lord High Admiral in former times, which are now the rights of the King in his office of Admiralty, "all ships and goods coming into ports, creeks, or roads of England or Ireland unless they come in voluntarily on revolt, or are driven in by the King's cruisers," belonged to the Lord High Admiral and now belong to the Crown. And according to Lord Stowell, "Usage has construed this to include ships and goods already come into ports, creeks, or roads, and these not only of England and Ireland, but of all the Dominions there

unto belonging" (see the Rebeckah, 1 C. Rob., 227; 1 E. P. C., 118). It has never been urged that enemy goods are free from capture or seizure if they happen to be in British ships.

This is, no doubt, the reason why there are no reported judgments upon the point; but if decisions of prize courts are desired to show that enemy cargoes in British ships have been captured, reference can be made to the Conqueror (2 C. Rob., 303); and the Mashona (10 Cape Times Law Reports, 163, and the Journal of Comparative Legislation, 1900, page 326). See also the Cargo ex Emulous (1 Gallison, 562); sub nomine Brown v. The United States (8 Cranch, 110) for the opinion of Mr. Justice Story in similar cases.

As to the suggestion that the right of seizure or capture of enemy property carried as cargoes in British ships no longer exists after the Declaration of Paris, it is obvious that the Declaration only modified or limited the right in favor of neutrals for the benefit and protection of the commerce of neutrals and in the interest of international comities; and did not in any other respect weaken or destroy the general right. It is well known that the United States of America refrained from acceding to the Declaration of Paris because they desired that all property of private persons should be exempted from capture at sea, to which other states have always refused to agree. And in practice, what would become of such cargoes? A British ship could not in times of war carry it or hand it over to the enemy either directly or through any intermediary, as it is not permitted for her to have any intercourse with the enemy. In my view, it is abundantly clear that enemy goods carried in British vessels are subject to seizure in port and capture at sea in times of war. His Lordship ordered the payment out of court of the proceeds of the sale of the cargo to the claimants' solicitors. He gave no costs and, on the application of the Attorney-General, granted a stay of execution.

THE SCHLESIEN

Decided November 30, 1914.

(The Times Law Reports, Vol. 31, p. 89.)

Submarine signalling apparatus found in a captured enemy ship, even if it is the property of neutrals and has only been leased to the owners of the ship, is nevertheless subject to condemnation as being part of the ship.

This case involved a claim by the Submarine Signal Company, an American company, to an apparatus for transmitting sounds received