페이지 이미지
PDF

notice of hostilities; and that it has been enforced not only against the subjects of the Crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle which allied states in war have a right to notice and apply mutually to each other's subjects."1

In the case of The St. Philip, in 1747, at the Cockpit, Lord C. J. Willes present, the Lords refused to give the claimants liberty to prove that goods, which had been captured and condemned as prize, were bought before the war, the Chief Justice being clearly of opinion that the effects of British subjects taken trading with the enemy are good prize.* The Court of Queen's Bench, however, were of opinion that a neutral ship, freighted by an English merchant before the war, might have been lawfully supplied after the declaration of hostilities with a cargo at the enemy's port by factors on the spot from corn either purchased before from any one, or acquired afterwards from British subjects there, or from allies of the British Crown about to leave the country.' But assuming that such a cargo could be shipped without payment of customsdues to the enemy, it is yet very doubtful whether, upon principle, this opinion can be sustained. The case of The St. Philip, and of The Jvffrouw Louisa Margaretha, do not favour it; and these cases appear to have been followed in at least two others before the Supreme Court of the United States.4 To this extent certainly the decisions both in this

1 Per Lord Stowell, The Hoop, Cornelia, 1 C. Rob. Ad. 196.

2 The St. Philip, 1747, cited in Potts «>. Bell, 8 T. K. 548, 556. See also Tha Juffrouw Louisa Margaretha, 1 B. k P. 349 note, cited by Lord Stowell in The Hoop, 1 C. Bob. Ad. 203.

3 Esposito v. Bowden, 24 L. J. (Q. B.) 210; 4 E. & B. 963, S. C.; the point is noticed in the judgment of the Ex. Ch., but the decision, reversing the judgment below, proceeded on another ground, which is noticed below, 7 E. & B. 763; 27 L. J. (Q. B.) 17, S. C. in error.

4 The St. Lawrence, 8 Cranch. 434; 9 id. 120, S. C. j 1 Gall, 467, S. C.

The following case is cited by Mr. Wheaton with approval. A citizen of the United States had purchased a quantity of goods within the British territory, a long time previous to the declaration of hostilities, and had deposited them on an island near the frontier; upon the breaking out of hostilities, his agents had hired a vessel to proceed to the placo of deposit and bring away the goods; on her return she was captured, and, with the cargo, condemned as prize of war. The Supreme Court conclude an elaborate judgment respecting the cargo with these words: '' Whether, in the breaking out of war, a citizen has a right to country and America are clear, that the removal of a subject and his effects from the enemy's country must be set about without delay, and accomplished with expedition.1

All contracts made thereafter by a British subject with an inhabitant of the enemy's country, notwithstanding he is a natural-born British subject, are illegal;' all claims accrued due before, and not paid to such inhabitants, are suspended till the cessation of hostilities ;s and all executory contracts with such alien enemy, or with a neutral, if they cannot be performed by a British subject except in the way of commercial intercourse with the enemy, are dissolved, ipso facto, by the declaration of war, operating to that purpose with a force equivalent to that of an Act of Parliament.4 Therefore, a contract by charter-party, on the part of a British merchant with a Neapolitan shipowner, to load his vessel with a cargo of grain at Odessa, being a Russian port, was dissolved by the declaration of war against Russia by Great Britain before the ship arrived at the port of loading; and to an action for nonperformance, this was held a good defence for the merchant.' For this reason partnership with a foreigner is dissolved by the same event that makes him an alien enemy.6

remove to his own country, with his but this pica of alien enemy is not property or not, the claimant certainly favoured by our courts, Shepeler*. Duhad not a right to leave his own coun- rant, 23 L. J. (C. P.) 140. See Furtry for the purpose of bringing home tado v. Eodgers, 3 B. & P. 191; Ex his property from an enemy's coun- )iarte Boussmaker, 13 Ves. 71; The try;" The Rapid, 8 Cranch's Rep. 155; Neuetra Senora de los Dolores, Edw. Wheatou, International Law, 38". 60.

1 See The Ocean, Harmsen, 5 C. Rob. 4 Esposito v. Bowden, (in error) 7 K

91 ; The Dree Gcbroeders, Vandyk, 1 & B. 763; Furtado v. Rodgers, 3 B. &

C. Rob. 234; The Vrow Anna Catha- P. 191, 198; per Lord Ellenborough,

rina, Mahts, 5 C. Rob. Ad. 161 ; The Barker r. Hodgson, 3 M. & Sel. 267,

Venus, 8 Cranch, Rep. 277; The 270. Therefore a British underwriter

Alary and Susan, 1 Wheaton, Rep. 54. is not liable on a policy upon enemy's

It appears to have been held in the goods, Furtado r. Rodgers, supra. But

United States, in a case arising out of see the judgment of Martin, B., Cle

the Mexican war, that a neutral, pre- montson v. Blessig, 11 Exch. 135, 141;

viously domiciled in a belligerent coun- and see a learned note by the reporters

try, might carry his property with him appended to that case, 11 Exch. 141.

on quitting at the commencement of the • Esposito v. Bowden, 7 E. & B.

war; U. S. v. Guillem, 11 Howard, 60. 763 ; 27 L. J. (Q. B.) 17, S. C. in error,

1 WiRison r. Patteson, 7 Taunt. 43Q. reversing the judgment below, 4 E. &

a Brandon v. Xesbitt, 6 T. R. 23; B. 963, 24 L. J. (Q. B.) 210, S. C.

Alcenius v. Nygren, 4 E. & B. 217; 6 Griswold v. Waddington, 15 Johns.

If all the lie-days are not expired when the declaration of war becomes known at the port of loading, although the freighter, or his factor, may have refused till then to supply a cargo, this is no ground of action by the shipowner for nonperformance, unless before dissolution of the contract, the conduct of the other amounted to a dispensing with all further attendance of the ship, and an intimation on his own part that he would not perform his promise.'

These effects, however, are not operated by the mere existence of a war in the country where the contract is to be performed, if the parties to the contract are neutrals to the war; nor would it be a defence for either of them to an action for non-performance, that he expected daily a declaration of hostilities against his own country by the sovereign power of that country where he was to perform his contract. A British merchant bound himself to load a British ship at Odessa, or tjlse to supply a cargo at Constantinople, in case of the existence of war at the time of the ship's arrival there; and a war did exist when she reached Constantinople, but the merchant supplied no cargo there, yet the shipowner did not succeed in his action for non-performance at this port, because the war existing was between Russia and Turkey; whereas, the Court held, that the parties had in contemplation such a war as would render it unlawful for a British ship to proceed to Odessa.' And where a British shipowner at St. Petershurgh left the port without a full cargo, although there was merchandise enough to fill the ship, because he expected an embargo to be laid on British shipping by the Russian government, that would have been no defence had the merchant proceeded for damages in consequence;3 but the merchant set

[merged small][ocr errors]

up complete performance of the stipulation as a condition precedent to freight, and failed.'

Declaration of war being a prerogative of the Crown, any relaxation of the legal consequences attendant thereon must needs be derived from the same source ;* but it comes too late to be of use where the contract is already dissolved by the antecedent declaration of war.1

These rules of the law of nations respecting commercial intercourse between the subjects of adverse belligerent powers, are necessarily binding upon allies in the war, subject of course to any modification mutually agreed on by the sovereign authorities, and are properly vindicated by the sovereign power of the one against any acts in violation of them done by the subjects of the other.4

As a necessary consequence of the administration of these Effect of, ou rules of law, and in the nature of a corollary to them, it is ^yin franiitu. an established principle, that the national character of property cannot be altered in transitu. In the ordinary course of affairs, valid sales of ships and cargoes at sea are of familiar occurrence.5 In times of war, however, all property at sea liable to confiscation, owing to hostilities either continued or broken out since the time of its dispatch, would be covered by colourable transfers in fraud of the belligerent's rights ;8 and therefore it is a general rule, that transfer of the property without actual delivery of the subject shall be insufficient under these circumstances to change the rights and liabilities attaching thereto.7 It follows from this, that if the subject of sale and transfer actually reach the hand of the purchaser anywhere, the transitu* for this purpose is thereby determined, and the ownership effectually changed.8 But courts of prize investigate claims founded upon title of that description with a wakeful jealousy, and even the transhipment of enemy's cargo

1 Ritchie v. Atkinson, 10 East, 295. s Acramanr. Bates, 29 L. J. (Q. B.)78.

: Glemontson r. Blessig, 11 Exch. 6 The Danekebar Africaan, Smit, 1

135; Rucker v. Anstey, 5 M. &. Sel. 0. Rob. Ad. 107; The Negotie en Zee

25. vaart, cited ibid. 112 ; The Herstelder,

1 Esposito v. Bowden, 7 E. & B. 763. Koe, 1 C. Rob. Ad. li t.

4 The Nayade, Mertz, 4 C. Rob. Ad. 7 Judgment of the P. C. in Sorenseu

251; The Staadt Embden, Jacobs, 1 r. The Queen, 11 Moore, P. C. 119,

C. Rob. Ad. 29; The Santa Anna. 140.

l.irrinago, YAw. Ad. ISO. s Soronsen r. The Queen, mpra.

at a neutral port in the course of the voyage, being but an additional disguise, will not protect it from condemnation.1

The general rule is, that personal property follows the rights of the person. So that if at the time of the seizure the owner is entitled to restitution, and if at the time of adjudication he is in a capacity to claim, restitution to him must be awarded.* Or if, at the time of the ship sailing, the two countries were in a state of decided ainity, a bond fide transfer in transitu not made in contemplation of war, will be sustained, notwithstanding th*l outbreak of hostilities immediately after.' But when the relations of the two countries are unsettled and ambiguous, a declaration of hostilities following directly thereon as a consequence, is held to be retroactive in its effect, and property seized during the previous period, deriving national character from the country to which it belongs, and being susceptible of all the incidents of such character, becomes by the hostilities which follow liable to condemnation as lawful prize of war/ For the same reason, if war be manifestly imminent, and the contemplation thereof lead immediately, although before the war, to a transfer of property in transitu, becoming thus the foundation of a contract that would not otherwise be entered into by the vendor, and this be so to the knowledge of the purchaser, his acquired title will not prevail against the rights of the captor,5 although, on the part of the purchaser, there may also have been other concurrent motives to the transaction.6

Transfer of ships during war, or whilst it is imminent, from the enemy to a neutral, is a transaction narrowly scrutinised by a court of prize, and the onus of proving the sale to be bond fide and absolute lies on the claimant;7 but if bona fide title be satisfactorily shown, although it is acquired by gift from an

1 The Carl Walter, Schmidt, 4 C. Rob. Ad. 207 ; per Lord StoweU, The Vrow Margaretha, Crigsman, 1 C. Rob. 336.

Per Lord StowelL The Hcrstelder, Koe, 1 C. Rob. Ad. 114, 115.

3 The Vrow Margaretha, Crigsman, 1 C. Rob* Ad. 336.

4 The Herstelder, Koe, supra; The Prosper, Classen, Edw. Ad. 72 ; The Holstein, Jobs. ibid.

5 The Jan Frederick, Bloednme. !> C.

liob. Ad. 128, 132; The Rendsboijj Nyberg, 4 C. Rob. Ad. 121 ; per Lord Stowell, The Vrow Margaretha, Crigsman, 1 C. Rob. Ad. 114.

6 The Rendsborg, Nyberg, 4 C. Rob. Ad. 121.

7 The Christine, Schwartz, Spinks, 1'rize Cases, 82; The Ernst Merck, Kroger, id. 98; The Johann Christoph. Bohss, id. 60; The Rapid, Hansen. id. 80; The Soglasie. Fischer, id. 104.

« 이전계속 »