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Chambers' Public Libraries and Museums: A Digest of the Law relating to Public Libraries and Museums and Literary and Scientific Institutions, with much Practical Information useful to Managers, Committees, and OfSoers of all classes of Associations and Clubs connected with Literature, Science, and Art, including Precedents of By-Laws and Begnlations, the Statutes in fuU, and brief Notes of Leading Cases. Third Edition. By GEOEGE F. CHAMBERS, Esq., Barrister-at-Law. Royal 8vo. 1889. Price 8s. 6d. cloth. Chambers' Law relating to Local Bates, with especial reference to the Powers and Duties of Rate-levying Local Authorities, and their Officers. Comprising the Statutes in fall and a Digest of 718 Cases. By G. F. CHAMBERS, Esq., Barrister-at-Law. Boyal »vo. 1889. Price 10s. 6d. cloth. Allan's Law relating to Goodwill By Chaiiles E. ALLAN, M.A., LL.B., of the Iimer Temple, Esq., Barrister-at-Law. Demy Bvo. 1889. Price 7s. 6d. cloth. AU Stamdard Lam WorJca are kept t» stock, in lain calf arnd other bindings. Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924016950127 I ,\Jr-0 jtXoL (XjXJir^*^ . Shoolbred 76 Medeiros v. Hill 125, 418 Melanie 109 MeUish v. Stamforth 82 Melomane 136 Mennett v. Bonham 44, 290 Mentor 57, 58, 64, 117, 321 Mercurius. . . . 107, 112, 119, 188, 340 Mersey 23, 25, 227 MetoaUe v. Britannia Ironwork Co 419, 421 Meyer v. Gregson 395 Miller «. The Resolution .288,302,321 MineiTa 25, 98 Minett v. Anderson 47 MitpheU V. Darthez 428 Monarch 40, 114, 125 Moodie v. Brig Harriett 304 Moorsom v. Greaves 423, 428 Morgan v. Oswald 285 Moser v. Pratt 396 Muller V. Germon 416 Muller V. Thompson 274 N NANCY 109, 190, 222 Napoleon is Nassau 24 Nayade 261, 270 Naylor v. Taylor 126 Negotie en Zeevaart 23 Neptune 172, 271 Neptunus....l7, 112, 114, 168, 169, 262, 270, 340 Nereide 213, 357 Table of Cases. XXI FAQE Nesbitt V. Lushington 436, 438 Neutralitet 118, 158, 189, 220 Newport 426,427 Nornen 114 Northoote v. Douglas 107, 118 Nostra de Couoeioaa 323 Nostra Senora de Begona 171 Nostra Signora de los Angelos. .131, 322 Nostra Signora del Eosario .... 128 OCEAN 109,110,266 Ocean Bride 20, 335 Odin 20, 223 Ogdenjj.Peele 259 Omnibus 21 Omoa 408 Ouachita 59 O'Eeilly v. Gonne , 81 O'KeUly v. Royal Exob. Ass. Co 81 Orozembo 210 Osgood V. Groning 417, 428 Oster Eisoer 341 Ostsee 58, 65, 325, 331, 332 Oswell V. Vigne 231 PACKET DE BILBOA 21 Page V. Thompson 42, 276 Palme 20 PaJmer v. Naylor 437 Panaghia Rhomba 118, 119 Parkin t>. Dick 273, 309 Parkin v. Tunno 40 Parlement Beige 207 PAOB Parr v. Anderson 101, 103 Parsons v. Scott 73, 74 Patria 422 Patterson v. Ritchie 73 Pawson V. Watson 398, 400 Peacock 62, 220, 320, 332 PenhaUow v. Doane 359 Pennsylvania 135, 217 PeterhofE ..108, 110, 153, 169, 186, 189, 194—199, 206, 219, 220, 326, 404 Phoenix 18 Phoenix Ins. Co. v. Pratt . .232, 359 Pieschell v. AUnutt 290 Pioneer , 266 Pizarro 220 Planche v. Fletcher 402 Planter's Wensch 287 Polka 318 Pollard V. Bell 228, 229, 390 PoUy 237 Pomona 320 Portland 16 Port Mary 322 Potts f.BeU 273 PoweU V. Hyde 64, 79, 86 President 10 Price V. Bell 230, 389 Primus 18, 332 Progress 133, 134 Prosper 342, 427 Profidentia 234 Purissima Conception . .62, 129, 213, 314, 321, 332 R RACEHORSE . .136, 426, 426, 428 Rainej". Bell 102 Ranger 175, 189, 221 Bapid 202, 209, 264, 265 Raven 172 RawUnson v. Janson 281 Rebecca 64,235, 301 xxu Table of Cases. PAGE Rebekah 407 Redmond v. Smith 405 Reg. ■!<. Carlin 383 Reg. V. Corbett 383 Reg. V. Keyn 313 Reg. V. Sandoval 375 Reid V. HarTey 398 Raid i>. Hoskins 415 Reid». TteVere 217 Rendsborg 234, 336 Republic of Peru v. Dreyfus Bros. & Co 434 Resolution 54 Reyner v. Pearson 82 Rich V. Parker 229 Richmond 171, 221 Record v, Bettenham 300 Rice, 1253 Bags of 134 Rising Sim 341 Robertson v. Ewer 41 Rodocanaohi v. Elliott . .39, 41, 252 RoUa 110, 421 Rosalie and Betty.. 120, 190,235,387 Rose in Bloom 112, 283, 292 Rotchi). Edie 41 Routh V. Thompson 328, 409 Russell V. Niemann 423 s SALLY 21,23 Sally Magee 21 Samuel 260 St. Lawrence 264 St. Nicholas 359 San Bernardo 133 San Francisco 128 San Juan Baptista .... 68, 150, 213, 217, 330, 332 San Roman , 422 Samson 132 Santa Cruz 128, 322 PAOB Santissima Trinidad ..62,162,193, 368, 404 Sarah Christina . .170, 221, 245, 246 Sarah Starr 25, 266 SawteU J). Loudon 402 Schact V. Otter 325 Schoone Sophie 318 Sohroeder v. Vaux 280 Schultz V. Ins. Co. of N. Am. . . 232 Scott V. Thompson 397 Scottish Mar. Ins. Co. ii. Turner 46 Seaman v. Foumereau 403 Seohs Gesohwistem 23 Seton». Low 193,404 Seymour ». Lon. and Pro. Ins. Co 197,199,387,399 Shepherdess 114, 118, 119, 387 Shiffner v. Gordon 279 Ships taken at Genoa 298 Short Staple i: United States . . 216 Sibbald v. HUl 399 SiEfkin v. Lee 228 Simeon v. Bazett 44 Simondv. BoydeU 31, 393 Sir William Peel 314 Sisters 23, 227 Smith V. Readshaw 390 Smith V. Robertson 71 Smith V. WUsou 426 Soblomsten 426, 429 Soglasie 23, 24 Sophia 85 Sophia Rickmers 25 Sophie 129 Spes and Irene 113 H5 Springbok ..110, 153, 186, 189, 219, I 220, 228 Staadt Embden 169 189 Stamma v. Brown 73 Steel V. Lacy 230, 231 Stephen Hart ....25, 110, 185, 219, 220, 227, 325 Stert 107, 109 Stevenson v. Snow 395 StirUng v. Vaughau 410 Stringer v. English Mar. Ins. Co. 70 Table of Cases. xxiu PAOE 20,225 Susan 208, 224 Susanna 321, 332 Swedish. Convoy 145 Swift 133 Swineherd 65 Syers v. Bridge 101 TABBS V. Bendlehack 20 Taylor v. Curtis 84 Taylor v. Woodness 392 Tentonia .... 171, 422, 423, 429, 430 The Two Friends 135, 216, 218 Themis 303 Theresa Bonita 427 Thompson v. Rowcroft 46 Thomyris 185, 238 Thomeley v. Hebson 75 Tisketeir 109 Tobago 23 Touteng v. Hubbard 42, 236, 419 Trende Sostre 187, 202 Trent 203 Triton 321 Tunno v. Edwards 73 Twee aebroeders. .280, 313, 329, 380 Twee JufBrouwen 170 1233 Bags Rice 134 Twende Brodre 169 Twilling Riget 342 Two Brothers 221 Two Friends 135,216,218 Two Susannahs 330 Tyrie v. Fletcher 393 u UNION 113 United States v. Pirates 435 United States v. Smith , Usparioha v. Noble , . . PAGE . 433 . 289 VANDTCK V. Whitmore . .280, 285 Venus 17, 292 Victoria v. Cleeve 391 VigUantia 20, 223, 225, 234 Virginiue 295, 381, 436 Volant 243 Vorwarts, Ludwig and 31 Vreede Scholtys 225 Vriendsohap 279 Vrow Anna Catherina . . 20, 67, 234, 322 Vrow Barbara Ill Vrow Henrietta 67 Vrow Judith 110, 116, 120, 387 Vrow Margaretha 23, 175, 341 Vryheid 246 w WACHUSETT 313 Walsingham Packet 128 War-onskan 132 Ward «>. Smith 413 Ward V. Wood 101 Washington 35, 216, 309, 318 Wedderbum v. Bell 397 Weldsborgaren 67, 428 Welvaart van Pillau 120 West India Telegraph Co. v. Home Colonial Ins. Co 84 Wight 131 Wilbraham v. Wartnaby 157 WUhelmina 234, 339 Wilhehnina Eleonora 67 Wilhelmsberg 65, 318 ■ XXIV Table of Cases, PAGE William 236, 237, 321 WiUiainB v. Shee 392 Willison V. Patteson 259 Wilson V. Forster 76 Wilson V. Owners of Cargo, per Xantho 80, 84 Winifred 23 Wm. H. Northrop 119 Wolff ». Oxhplm 31 Woolmer v. Muilman 388, 400 Wright V. Welbie 273 Y PAGE YATES V. HaU 303 Yeatonf.Fry 117 Young Jacob 56 ZACHEMAN 246 Zelden Rust 175 " DECLARATIOISr OF WAR" km WAEFAEE GENEEALLY. EXPLANATORY. That the scheme of arrangement followed in these pages is unassailable on the score of its strict accuracy is by no means supposed. It is, indeed, difficult to imagine any system having the same object which would not be open to such an objection. But the various rights and obligations which constitute what is called the Law of Nations seem especially to re- quire, in order that they may be readily appreciated, careful dissection and classification. In this view a method of arrangement has been here attempted which, if not beyond the reach of criticism as to its technical accuracy, may, it is hoped, yet be found to possess the merit of simplicity. What this system is will sufficiently appear on reference to the table of contents suppKed above ; but seeing that a perusal of these pages wiU not necessarily be prefaced by such a reference, a few words of explanation at the outset may be useful to the reader. First, then, there is submitted — I. A Retrospect showing the harsh foundation on which the Law of Nations is supported, and o. y B 2 Explanatory. briefly reviewing the circumstances which, haive placed this law on the footing which it now occupies amongst civilized states. Enemy property being ordinarily Kable to, and neutral property being ordinarily exempt from, confiscation, the next subject for con- sideration is the principles adopted by prize courts in deciding whether captured property is to be deemed to belong to an enemy or to a neutral : that is, to a friend, — ^f or a neutral is to be regarded as the friend of both belli- gerents, impartially. Therefore, under II. Domicile and Ownership are set forth the principles governing the decision of this all- important question. As the position alike of belligerents and neutrals has been largely affected by the so- called Declaration appended to the Treaty of Paris of 1856, it is necessary to hold the Declaration well in view when discussing the Law of Nations as it stands. The Declara- tion cannot, of course, alter this law : but, as an international agreement to substitute the rules defined by the treaty for the principles of the Law of Nations, the latter, so long as the treaty remains in force, must be regarded as subordinated to its rules. The next chapter for consideration then is III. The Declaration of Paris. Explanatory. 3 By the above three preliminary chapters the way is cleared for a review of the rights and obligations which it is the object of this work to place succinctly before the reader. On the outbreak of war the community of nations becomes divided under two lieads, viz.: (1) Those who fight ; (2) Those who look on. By the law of Nature the only rule of the prize-ring, whether nations or individuals be the combatants, is the rule of the strongest. Civilization has, however, toned down the brutality of this rule, and there must nowadays be no hitting below the belt, in the case either of the individual or of the nation. There are now, in fact, rules of the ring, and the com- batant or belHgerent setting these rules at naught risks the hatred and contempt, if not the actual interposition, of the lookers on, — individuals or nations, as the case may be. The rules consist partly of Eights, partly of Obligations. As the former put the latter completely into the shade, the Rights may reasonably be considered first. And these, for greater convenience, may be divided into three distinct heads, viz. : first, IV. Belligerent Rights against the Enemy — which, as well as the various other rights and obli- gations, are scheduled in detail in the table ■ of contents ; second, b2 4 Explanatory. V. Belligerent Rights against Neutrals, who are bound both to respect the rights of belligerents and to honourably fulfil their own obligation to preserve a strict neutrality ; and, third, VI. Belligerent Municipal Rights; such as the placing of restrictions on the trade and trans- actions of the national subjects, appropriating their property for warlike purposes, and so forthi Having thus dealt with the belligerent rights, the next subject for consideration is VII. Belligerent Obligations ; namely, respect of neutral territory ; the bringing of captured property to prompt adjudication by a prize court of the captors, &c. The obligations, as compared with the rights, are few enough. But to them must be added the general duty not to unduly interfere with neutral trade, — a subject which it has been found better to treat from its corresponding aspect. Neutral Eights ; to which we shall come presently. The position of those who fight having been discussed, there remains to consider that of the lookers-on. It may, perhaps, be suggested— and with some truth — that in scheduling the belligerent rights against neu- trals we have already practically enumerated the obligations of neutrals to belligerents: EXPLANATOEY. 5 and similarly, that " belligerent obligations" is only another way of expressing "neutral rights." The circumstance has not been overlooked; but there yet remain certain neutral rights and obligations which — espe- cially so far as they are of an abstract nature — ^it has been considered preferable to treat directly from the neutral aspect. These special rights and obligations of neutrals should in strictness be subjected to the same system of analysis as that applied in the case of those of belligerents : but this has proved impracticable. The rights and the obliga- tions so dovetail and sometimes overlap that they have to be dealt with together. The next chapter, therefore, is entitled VIII. Neutral Rights and Obligations. — These, so far as they have not already been sche- duled from the corresponding belligerent aspect, although they do not lend themselves to useful analysis, are at any rate collectively capable of a rough classification. Some are rather of a mercantile character, others political ; and this distinction has been made use of in considering the subject as a whole. With this chapter ends our study of the Law of Nations from its maritime point of view. There are, however, certain mercantile considerations arising out of a condition of warfare which, at any 6 EXPLANATOEY. rate to the mercantile reader, are of much import- ance ; and. without some reference to these, the ob- jects of this work would scarcely be fulfilled. These considerations are more especially interesting and important in relation to Marine Insurance, and they are accordingly submitted under their several heads, as follows, viz. : — IX. War Warranties. — The word warranty in marine insurance may, for convenience, be regarded as having two different meanings, the one, in which the assured guarantees, as a fact, a certain condition on which the underwriter undertakes the insurance, as, "Warranted neutral"; the other, in which it may be said that the underwriter excludes a certain risk from the risks other- wise covered under the policy, as, " "War- ranted free from capture." This chapter treats of the warranties specially met with dm-ing or in view of hostilities. Similarly in the case of the subjects following : items not specially connected with the question of hostilities not being referred to. X. Misrepresentation and Concealment of facts material to a risk submitted for insurance. — Illustrates the obligations of insurers, in time of hostilities, to inform the underwriter truthfully and fully touching the nature and circumstances of risks offered for insurance • and the consequences of failure in this respect. EXPLANATOEY. 7 XI. Void Insurances. — Indicates those insurances which are ordinarily incapable of being efEected in time of hostilities, and those which are rendered void by the outbreak of hostilities. XII. Insurable Interest of Captors.— Discusses the position of captors as regards their right to insure their interest in property seized at sea and sent in by them for adjudication. XIII. Effect of War on Contract. — Shows in what manner the outbreak of war affects contracts existing between the national subjects and alien enemies ; and especially the effect of war on the Contract of Affreightment. XIV. Piracy. — Included mainly in order to indi- cate the characteristics which mark the dis- tinction between the lawful belligerent and the unlawful combatant, or pirate. To the reviews of the various rights and obliga- tions dealt with in this work there has been appended, wherever necessary, a special summary of the re- lative Law of Marine Insurance. These summaries speak for themselves ; but it may be remarked re- specting them that the reader interested more especially in the marine insurance aspect of the subject will find it to his advantage to first examine 8 EXPLANATOET. in each case the review of the Law of Nations to which the summary relates. Inquirers respecting the Law of Nations are, on the other hand, likely to find under the head Insurance useful illustrations of the practical application of the principles embodied in the review. N.B. — The references to cases in the American Law Eeports are printed in italics. ( 9 ) I. EETEOSPECT. The rights and obligations subsisting between nations are, by some, comprehended under the denomination Law of Nations, whilst others prefer to designate them by the title International Law. Titles, like names, being for the most part rather labels than definitions, this difference of denomi- nation may be of no great moment. But as the propriety of accepting the two terms as synonymous, and therefore interchangeable, seems open to question, it may be well to indicate the meaning which, rightly or wrongly, is attached to them in these pages. The term Law of Nations, then, is, as we hold, correctly used to describe that condition of mutual rights and obliga- tions subsisting between nations, based on what is, by some Tmters, called the Law of Nature, — that law to which we should revert if the softening influences of civilization were to be done away. Whereas, by International Law we under- stand that condition of mutual relations which results from special convention ; such convention being commonly, though by no means necessarily, in mitigation of the sterner rights of the Law of Nations. As, for example : By the Law of Nations enemy goods are liable to confiscation none the less that they may be on board a neutral vessel. But by treaties now subsisting between the powers, or most of them, this 10 Reteospect. right has heen disavowed; so that International Law here expressly prohibits that which the Law of Nations as clearly permits. Municipal Law, it is scarcely necessary to ohserve, is, as distinguished from International Law, the domestic law of a state, hinding all persons within the national jurisdiction to do, or to refrain from doing, such acts and things as may hy the governing body he decided to be necessary for, or contrary to, the public interests respectively. The object of this work is rather to set forth the state of the Law of Nations, as it now subsists, than to inquire into and discuss those changes which have, in bygone days, con- duced to the present condition. The history of international rights, from the earliest times of which we have records, may therefore be very briefly summed up. The warlike rights of nation against nation were originally, and till within a measurable distance of modem times, limited not by any sense of right and wrong, but apparently only by the power of nations to conceive and execute deeds of violence one against the other. The Old Testament abounds in instances of such unrestrained cruelty. Thus, we read how the army of the Chaldeans under Nebuchadnezzar having besieged and captured Jerusalem, and caught the unhappy King Zede- kiah, after some process described as "giving judgment" upon him, slew his sons before his eyes, and then, having put out his eyes, bore him in fetters to Babylon. The waUs of the Jewish stronghold were levelled, and such of the nation as were worth anything were also carried captive to the same destination. In the days of ancient Eome con- temporary history makes it abundantly plain that very similar views prevailed as to the rights of the vanqidsher over the vanquished. The Eomans, indeed, considered it permissible to enslave or kill any of the enemy race on whom they could lay their hands,' in Eoman territory, on the breaking Retrospect. 11 out of war. An enemy -was regarded as a criminal and an outlaw, to be hunted down and slain wherever found ; whilst his wife and children were sold into slavery. And even at the close of the 13th century our own King Edward I., on capturing Berwick from the Scotch, put the citizens to the sword by thousands, without distinction of age or sex; so that, as we read, for two days the city ran with blood like a river. From time to time some nation or another would seek, by municipal enactments, to restrain its subjects from perpe- trating such deeds, but until Christian influences had begun to be generally felt, the precedents handed down from the ancients were commonly accepted and followed with but little modification. The crusades, binding together as they did the Christian nations, were no doubt a factor of some importance ; but it was not until the 16th century that a more enlightened sense of justice and humanity came into general acceptance amongst Christian powers. Maritime commerce was then rapidly extending, with the inevitable result of bringing nations into closer relationship ; whilst the power of appeal to the Head of the Church at Bome, and the knowledge that any outrage of the principles there pro- pagated would entail the risk of punishment, materially supported the advance of civilii:ation and the dictates of humanity. Until the early part of the 17th century there was no such thing as a recognised code of the rights subsisting between the nations, but this was in a great measure supplied by the writings of the learned Grrotius, 1583—1645, regarded by many as the father of the Law of Nations. FoUowiag in his steps came Puffendorf , Bynkershoek, Yattel, Valin, Emerigon, and others, who, though not always in accord on disputed points, served to beat into a firm and well-defined road the path first traced by Grotius. The adoption in subsequent 12 Eeteospect. wars of the principles contended for by sucli writers crystallized into accepted law what had before been but matter of belief. So that at the present day the writings of Wheaton, Kent, and other publicists may be regarded as an exposition of the Law of Nations as now accepted by the powers and acted, upon in the various national tribunals. Whether a formal declaration of war communicated to the enemy should precede the outbreak of ofiensive operations is somewhat of an open question. As a matter of fact, the various powers appear to consider themselves under the obligation to make such a declaration only at such time as it may suit them. Thus, in 1877 the Eussian declaration of war against Turkey was preceded by some hours by the entry of the Russian forces into Turkey. A nation may convey its warlike intentions to the state with which it is at variance by the recall of its minister, or by a pubHo declaration of war within its own territory, or by announcement of an ulti- matum followed by hostile acts ; or, indeed, by any such un- ambiguous mode of intimation as may grow out of the circum- stances at the time. War having once been commenced, a formal declaration to the enemy can, it would seem, be formu- lated and communicated at leisure if it so please the aggressor. But it is of course open to nations to provide for such a case by a clause in international treaties. Previous to the actual declaration of war or commencement of active hostilities a provisional seizure is occasionally made of enemy ships and goods within the national jurisdiction. Such seizures are of the nature of embargo or reprisal, and may be relinquished on adjustment of the difficulty which resulted in the hostile act. This subject will be considered ■under the head Embargo and Eeprisals (b). The disputed right of confiscation of enemy debts and property within the national territory will also be considered in its place (c). {b) Vide p. 36, infra. (<,) Vide p. 49, infra. Retrospect, 13 When war is entered upon, every individual of the nations engaged is considered to be involved in the hostilities, since every man is considered to be a party to the acts of his own government. According to the letter of the law of nations this condition of affairs warrants the arrest of any subject of the enemy found within the national territory. But this right, if right it be, is now obsolete, though if one nation at war were to revive and execute it, the other would probably claim the same right by retortion if not by the law of nations. The effect of this taint of hostilities, as regards individuals, is to stop aU intercourse between citizens of the nations at war. The individual members of the nations are embarked in one common bottom and must share one common fate. Therefore, all trading with the common enemy becomes at once ilKcit, and is usually so proclaimed on the outbreak of hostilities (d). But the extension of this spirit of hostility to individuals does not, by the usage of nations, entitle individuals to engage in independent hostile acts against the enemy or subjects of the enemy. Only those persons who have been expressly empowered or commissioned by their government to engage in active hostility are entitled to exercise any such aggres- sive acts. The circumstance that two nations decide to settle their differences by resort to war is not to be allowed to interfere with legitimate trade on the part of neutrals. It is now a fundamental principle of the public law of Europe that neutral nations shall, ia time of war, be allowed to carry on their accustomed trade, subject only to such restrictions on the part of belligerents as may be necessary for the safety and protection of the latter. The nature of such restrictions will be set forth in its place (e). {d) Vide sub "Trading with the Enemy," p. 258, infra, {e) Vide p. 345, infra. 14 Retrospect. By the law of nations it is permissible to seize and confis- cate enemy property found on toard a neutral vessel ; but this right, as will presently appear, has been disavowed by the Declaration of Paris. Ships of the enemy may of course be seized and confiscated, and any enemy property found on board of them will be involved in the same fate, though neutral goods, except contraband of war, must be restored. These subjects will receive fuller consideration later on, but mean- time it may be observed that a fruitful source of difficulty and irritation between belligerents and neutrals is the decision of the crucial point as to the ownership of goods found on enemy vessels. That is, whether the property in such goods is to be regarded as vested in neutral subjects, and the goods therefore exempt from confiscation ; or in subjects of the hostile nation, and the goods consequently the subject of legal condemnation to the captors. The answer to this im- portant question frequently turns on the domicile of the owner. Before proceeding further it will be well to give some special consideration to this subject. ( 15 ) II. DOMICILE AND OWNERSHIP. Domicile and nationality are not of necessity the same thing. Thus a British subject may have a commercial domicile or domiciles in foreign countries, or the subject of a foreign state may have a domicile in Great Britain. In deciding as to the nationality of captured goods, the courts of prize are not ordinarily concerned to inquire of what nation the owner of the property is a member: what they do set themselves to ascertain is, whether the property is to be deemed to be owned by an enemy subject or — which is the same thing — by a person who has cast in his lot with the enemy. Of what particular nationality the owner may himself be is another matter alto- gether, and not ordinarily material to the point at issue. No matter of what nationality a person may be, if he establishes himself in business in a neutral or hostile state, he becomes, so far as the transactions of such business are concerned, to all intents and purposes a neutral or an enemy, as the case may be. And in such capacity he must accept all its inconveni- ences, just as he shares its advantages. Therefore all persons trading in the enemy's country are considered juro hac vice to be enemy subjects so far as concerns the interests of their alien domicile. Aliens are deemed to be under no obligation to remain in the enemy country, and the fact that they do so remain is to be taken as an admission of their willingness to • 16 Domicile and Ownership. cast in their lot with the foe. The theory acted upon is that an alien subject resident in a country against which war is declared by his government must at once return to the national territory. To hesitate is to be lost ; and even if, on at once returning with his goods, the latter should be cap-' tured by his government, the Courts, before restoring them, will require the clearest proof of his intention to abandon the hostile domicile {a). A distinction is drawn between a tem- porary and a permanent residence, though the mere fact that a person has only just recently entered the country with which hostilities have broken out will not absolve him if it be clear that he came there with intent to remain. Nor will the circumstance of a longer residence necessarily convict him if he should succeed in rebutting the presumption that such prolonged stay was evidence of his intention to remain. What has in all cases to be looked at is the animus manendi or the animus revertendi, the onus of disproof or of proof lying on the claimant {b). "A mere intention to remove has never been held sufficient, without some overt act" (c). Whether, on the outbreak of war, a subject domiciled in the enemy country can withdraw his property from such country, free from risk of confiscation on the part of his own government, without first obtaining a licence or safe-conduct from his government, is disputed. But to take such a pre- caution would, in any case, be a prudent act on the citizen's part {d). An instance of double domicile is supplied by the case of Tlie Portland {e), where the property of a German subject was seized on the ground that he had a domicile on French territory. Great Britain being then at war with (a) Vide Passports and Safe-conducts, p. 277, infra. (J) Vide The Diana, 5 Eob. 60. (c) The President, 6 Rob. 277. (rf) Vide p. 266, infra, [e) 3 Rob. 41. Domicile and Ownership. 17 France. It turned out that the transaction was connected with a neutral domicile in Grermany, and not with the enemy domicile, and the cargo was accordingly declared neutral. The Jonge Klassina (/) was a case where, during war between Great Britain and Holland, a British citizen named Eavie obtained a special licence {g) to import from Holland goods belonging to him, presumably as a Birmingham mer- chant. The citizen was, as it turned out, not only the importer, to England, but also the exporter from Holland, and it was held that the licence was given to protect Eavie in his capacity of a British importer, and did not extend to cover his exportation from Holland in the capacity of a Dutch merchant. That he held no fixed counting-house in the enemy's country was held to be a consideration of secondary importance. The goods were condemned. If an alien subject be domiciled in a country with which war is declared, the fact that he shipped goods thence before the declaration of war does not exempt them from capture by his government as being enemy goods. This was decided by the American Court (which, however, was not unanimous) in The Venus {h) . If a British subject be domiciled in a neutral country, he is entitled to carry on his lawful trade unmolested, even with nations with which his government is at war (i). If, however, he should trade in articles contraband of war, or of a contraband nature, such traffic would be deemed con- trary to his allegiance {k) . And if he should engage in the (/) 5 Rob. 297 ; and p. 283, infra. (g) Vide p. 277, infra, for the subject of Special Licences. (A) 8 Cranek, 253. ( Vide Wheaton's comments on this case ; Int. La-w, 2 Eng. ed. pp. 388—395.) (i) The Danaous, cited in 4 Rob. 255 ; Bell v. Reid, 1 M. & S. 726. \k) The Neptunus, p. 270, infra. o. c 18 Domicile and Owneeship. priyileged trade of the enemy, the act would imbue the under- taking with a hostile character, whatever his domicile (l). If a neutral and an enemy subject engage in a joint imdertaking, and a shipment of the joint property be cap- tured, the share of the neutral will be released, while that of the enemy is confiscated (m). But if, as in The Primus (w), a neutral be part-owner of an enemy's ship, his share will be confiscated. The neutral owner, said the Court in this case, enjoys the privileges attached to the enemy's flag and must take its risks. All produce of soil in the enemy's territory is impressed with a hostile character, whatever the nationality or domicile of the owner, provided that at the time of capture this pro- duce be owned by the proprietor of the soil (o). In The Boedes Lust (p), till December, 1803, the iahabitants of Demerara had remained British subjects, but the colony was then surrendered to the Dutch in virtue of the Treaty of Amiens. In January and February, 1804, certain property, the produce of the island during the British occupation, was shipped by the above vessel, which sailed in March, and was captured in May under an embargo laid on all Dutch property at sea, a month before the declai-ation of war against Holland. Before adjudication the settlement had again been acquired by the British; The circumstances were, on the one hand, submitted to the Court as justifying condemnation, and on the other as requiring restoration, of the property. Sir Wniiam Scott (afterwards Lord Stowell), in a lucid and interesting judgment, which does not admit of a brief sum- mary, decided that the property at the time of iis seizure was vested in Dutch owners ; that the declaration of war (l) The Ann, Dodson, 222 ; The Anna Cathariua, 4 Eoh. 107. (ot) The Franklin, 6 Eob. 120. (») 2i L. T. 16. Cf. The Napoleon, match. Pr. Ca. 357. (o) The Phoenix, 5 Eob. 20 ; The Mary Clinton, Blatch. Pr. Ca. 556. (p) 5 Rob. 233. Domicile AND Ownership. 19 had a retroactive effect, applying to all property previously detained ; that the fact that the owners of the property had since hecome friends of this country would not relieve them ; and, finally, that the property was liable to confiscation. As regards factories or colonial establishments in Asia or Africa, there is attributed to them the national character of the European mother state to which they belong {q). Insurances on enemy property being void by statute, the property of subjects domiciled with the enemy is, so far as concerns property attaching to the domicile, also within the statute (r). To an inquiry, in 1854, on the part of British merchants domicUed in Eiga, as to what respect would be paid by British cruisers to bond fide British property, the produce of Eussia, if shipped on board neutral vessels, a reply was sent from the Foreign Ofiice that such property, even if purchased before the outbreak of war, would not be respected unless specially Kcensed or exempted by instructions to the officers of the British navy (s) . Shortly afterwards, however, it was by proclamation announced that her Majesty had decided to waive the right to sei2;e enemy's property laden on neutral vessels (^). The Treaty of Paris («<), in 1856, having embodied the principle " free ships, free goods," all property, except contraband of war, covered by the neutral flag must, so long as the treaty holds good, be deemed, as between the signatories of the treaty, free from capture. The privilege of trading, in time of war, through the enemy's ports is allowed to inland states, such as Switzerland, in consideration of the hardship to which they would be exposed were this denied them. But such a trade, as being necessarily exposed to great suspicion, must, accordiag to [q) 5th ed. Amould's Insoe. 146. (r) Vide sui Void Insurances, p. 405, infra. («) 44 State Papers, 1853-4, pp. 106, 108. {t) 1 BuUetins, 1854, p. 356. («) P. 27, infra. c2 20 Domicile and Ownership. Sir W. Scott, in The Magnus, be justified by proofs of more than ordinary strictness («). "^ In like manner as domicile is the test of the ownership of goods, so the national character of a ship is deemed to depend on the domicile of the owner («/). Thus, in Tahhs v. Bendlebrack (s), a vessel built and registered in America, and owned by an American subject, was deemed British property, the owner being domiciled in Great Britain. But a vessel sailing under the flag or pass of the enemy is regarded as enemy property, irrespective of the real ownership («). Except that if a country have no national maritime flag, and a vessel belonging to subjects of such country be, in consequence, sailed under an alien flag, the flag is not to be deemed conclusive as to the vessel's nationality. This was decided in The Palme, a Swiss vessel, captured by a French cruiser in 1871, whilst sailing under the German flag (6). And if a vessel be engaged in the privileged trade of the enemy, or be habitually engaged in the trade of the enemy's country, or sail under his licence and passport, she will be regarded as enemy property : as will be illustrated presently (c). This principle of the law of nations is not to be evaded by a colourable transfer. Thus, in The Jemmy, which had been purchased of the enemy, but left in the trade and under the management of the former owner, the Court, regarding the transfer as colourable, de- clined to admit further proofs {d). The Odin (e) is another {x) 1 Bob. 31. See also The Actiye, Ho. Lords, 10 March, 1798. [y) The Elizabeth, 5 Hob. 2; The Vigilantia, 1 Eob. 1, 19, 26; The Vrow Anna Catharina, 5 Eob. 161 ; The Success, 1 Dodson, 131 ; The Magnus, 1 Eob. 31. [z] i Esp. 108 ; 3 Bos. & Pul. 207, note, S. C. {a) Vide pp. 233 et seq., infra. lb) Wheat. Int. Law, 2 Eng. ed. 401. (c) Vide p. 233, infra. (rf) 4 Eob. 31 ; The Christine, 2 Spinks' Eo. & Ad. Eep. 24. (e) 1 Eob. 248. Vide The Ocean Bride, p. 336, infra, for a special excep- tion to the rule. Domicile and Ownership. 21 instance of condemnation consequent on a transfer not recog- nized by the Court. This was a vessel belongiug to British subjects at Calcutta, who had been in the habit of trading with Batavia. On the outbreak of war with Holland, an ostensible transfer was made to a Norwegian domiciled at a Danish establishment near Calcutta, by whom the trade with Batavia was continued. When seized, the vessel was on a voyage from Batavia to Copenhagen, having on board an English ship-master (the former master of the vessel), but who, it was asserted, was not acting as master. The Court, finding that the allegation of transfer had not been suffi- ciently supported, condemned the property, of which the value was assessed at 150,000^. In The 0?nmbtts (/), also, Sir Wniiam Scott declared that " the Court had often had occasion to observe that where a ship, asserted to have been transferred, is continued under the. former agency and in the former habits of trade, not all the swearing iu the world wiU convince it that it is a genuine transaction." It beiug established as a general principle that domicile is the test of ownership, the question remains, in whom is the property in goods captured on the high seas to be deemed to be vested : — ia the shipper ; the consignee at destination, or the purchaser; or other apparent proprietor, domiciled perhaps in the country neither of the ship's port of loading nor destination? The common rule is, that goods entrusted to a ship-master by a consignor for delivery to a consignee are regarded as the property of the latter (g). But notwithstanding this general rule, if at the commencement of the transit the goods are enemy-owned, the circumstance that they are destined to a neutral consignee will not be considered material (h). In short, neutral goods with a hostile destina- tion, or hostile goods with a neutral destination, shipped (/) 6 Rob. 71. . Young, 2 Ld. Baym. 840 ; 2 Salk. 444. And see 6th ed. Amould's Insoe. 725, n. («) 3B. &P. 291. Embaego and Reprisals. — Insurance. 43 princes and rulers excepted) to St. Michael's for a cargo of fruit. Shortly after sailing from London, the vessel put into Eamsgate, ■where, in consequence of an embargo then placed on aU. Swedish vessels, she -was detained for six months. On release of the vessel, the charterer gave notice to the shipowner that the con- tract was at an end, the fruit season being over. The ship- owner on this sued for damages. The Court held that a distinction was to be drawn between an embargo laid on for general purposes and an embargo, as in this case, in the nature of partial hostilities ; that this embargo had been laid on by the British Government in order to resist the injustice of the Swedish Court ; and that it would be a violation of all principle if it were competent for a Swedish subject, by a contract of affreightment, to defeat all the efforts of the British Govern- m.ent, and throw the burden on a British subject ; that, from a political point of view, the plaintifi's loss might be considered as arising from his own fault, since it was the consequence of an act of aggression on the part of his (the Swedish) Govern- ment ; and that where a party had been disabled from perform- ing his contract by his own default, he could not allege the circumstances by which he had been prevented as an excuse for his omission. The reasoning here is intelligible enough ; but in Conway v. Gray {v), which followed in 1809, Lord Ellenborough seems to have given it too wide an application. In this case an insurance had been effected in England on an American vessel bound from New York to Liverpool. The American Government having placed an embargo on all vessels in the United States ports, the assured abandoned, and claimed a total loss. The Court, however, decided in favour of the underwriters, on the ground that the assent of every man is implied to the acts of his own government, and makes such an embargo as the present his own voluntary act. "In all questions arising between the subjects of different states," said his lordship, "each is a party to the pubUc authoritative acts of his own government," as, was added, seemed to be esta- blished by Touteng v. Hubhard. But the circumstances were not the same in these cases. In Touteng' s case the embargo was in the nature of hostilities. In Comvay's case it was for («») 10 East, 536. 44 Belligerent Rights against the Enemy. general pitrposes unconnected with hostilities. Conway's decision was followed in 1812 by Mennett v. Bonham [w], Flindt v. Croc- hett (x), and Flindt v. Scott (y). In Simeon v. Bazett (z), however, a distinction was di-awn between the two sets of circumstances, and the decision in Conway's case was practically overruled. An insurance had been effected in London on ship and goods from London under special licence, to any ports in the Baltic, with liberty to carry false papers, the goods to be covered till warehoused. The intended voyage was to a port in Prussia, with which country England was at peace. Prussia was, however, under control of Napoleon's continental system, in force of which all British cargoes to the Baltic had been interdicted. These facts were common knowledge, and it was also well known that an extensive commerce was, notwithstanding, carried on between Great Britain and the Baltic ports by means of simulated papers. The Prussian Government having confiscated the pro- perty insured, the underwriters, averring that the owners of the goods were Prussian subjects, repudiated liability and based their defence on Touteng v. Hubbard and Conway v. Gray. But Lord EUenborough gave judgment for the plaintiff, though it can hardly be said that his reasons for so doing were very con- clusive. Without disavowing the decision in Conway, v. Gray he laid stress on the circumstance that whereas, in the cases relied on, the embargo was never an object of the insurance nor contemplated by the underwriter, in the present case the cause of loss arose from the course of the commerce itself. It was carried on, he said, by simulated papers : the parties had leave to carry these papers, and it was clear that the perils of the trade were contemplated under the policy. The underwriters appealed against this decision — Bazeit v. Meyer {survivor of Simeon {a)) — but the judgment was affirmed. In 1821 the question again arose in Campbell y. Innes{b), and (w) 15 East, 477. {x) Ibid. b11. (y) Ibid. 525. Overruled by Plindt v. Soott, 5 Taunt. 674 (1814), on appeal. (z) 2 M. & S. 94. Confirmed on appeal, Bazett v. Meyer, 5 Taunt. 824 (1814). (a) 5 Taunt. 824, An. 1814. (S) 4 B. & Aid. 423. Embargo and Reprisals. — Insurance. 45 was decided in favour of the underwriters on a different issue, viz.: concealment of nationality (c). In 1861 it again came before the Courts in Auhert v. Gray (d). An insui-ance had heen effected on carpets by The Jovellanos, from London to Alicante, the assured being Spaniards. The vessel, having put into Oorunna, was there restrained and seized by the Spanish Government. The cargo was turned out upon the quay during the prevalence of tempestuous weather in order to make room for Spanish troops, to be conveyed to Malaga en route for Morocco, with which country Spain was on hostile relations. The cargo having sustained damages, and sue-and-labour charges having been incurred in its behalf, plaintiffs sued for indemnification. The underwriters disclaimed liability, basing their defence on the judgment in Conway v. Gray. The Court, in rejecting this defence, observed that if Conway v. Gray really decided that in such a case as the present the assured must be taken to be con- senting parties to the acts of their own government, the judg- ment in that case must be overruled. " This judgment " {i.e. in Auhert v. Gray), observed the Court, "recognises a marked distinction between an embargo in a time when there is peace between the countries of the insurer and the assured, laid on for a purpose wholly unconnected with hostility, either existing or expected ; and an embargo connected with such hostility. Therefore this judgment does not interfere with any of the decisions on points connected with war." To this was added a declaration that it was also to be understood that the Court did not say that if the act of seizui-e was a lawful act under the municipal law of Spain, as against a Spanish subject such seizure would be within the insurance. By which, as it appears, the Court indicated that a distinction was equally to be drawn between a seizure consequent on a breach of ordinary municipal enactments and a seizure consequent on a government procla- mation, issued, as in the present case, under pressure of some special emergency. This decision must presumably be regarded as a final expression of the law on the subject. The assured being entitled to abandon to his underwriters on receipt of news that his property insured is restrained by the (c) Vide p. 403, infra. (d) 3 B. & S. 163, 169 ; 32 L. J. Q. B. 50. 46 Bi;LLiaEEENT Rights against the Enemy. emliargo of a foreign power, the underwriter or tlie several underwriters have to provide for realisation of the property in the event of the embargo being taken off. The various under- writers on the ship and cargo having paid as for a total loss, and the property in those several interests having accordingly become vested in the said underwriters respectively, it becomes necessary for them to appoint trustees to act on their joint behalf. It may be arranged with the shipowner that he shall undertake this responsibility, or the property may be formally vested in certain persons as trustees on behalf of all concerned. Inasmuch as abandonment of the ship carries with it the title to unpaid freight, shipowners, as in other cases of abandonment of a vessel which may yet earn her freight, have to take care that the underwriters on the freight also accept abandonment. Other- wise it may result that after acceptance of abandonment by underwriters on ship, but before such acceptance by those on freight, the ship may be released, the shipowners thus losing their rights against the underwriters on freight. The result being that the freight becomes due to the ship underwriters, and the owners of the vessel have no rights under the policy on freight ; there being no loss of this interest by a peril insured against ((^). In Sir James Park's work on marine insurance a case is reiported in which the shipowners, in consideration of payment of the sum insured by the underwriters on freight, expressly assigned to them any freight which might be earned. The ship arrived, and the freight was claimed by the underwriters on ship. Held, that the shipowners were, notwithstanding, bound by their voluntary undertaking with the underwriters on freight (e). To sail in contravention of an embargo is an unlawful act, and if the vessel be insured within the dominions of the pdwer laying on the embargo, the insurance wUl be voided by the offence (/). If on the entry of a vessel into a port she find herself under an embargo, she cannot be said to have been "moored in safety" for twenty-four hours within the meaning of the policy. On the [cl) McCarthy v. Abel, 5 East, 388 ; Scottish Mar. Ins. Co. v. Turner, I Macq. H. L. Cas. 334. (e) Thompson v. Eowcroft, 4 East, 34. (/) Vide Delmada v. Motteux, pp. 289, 308, infra. Embargo and Repsisals. — Insurance. 47 contrary, from the moment of her arrival, instead of being " moored in safety" slie is practically detained as a prize by the enemy (jr). In a somewhat similar case judgment went for the underwriters on the ground that the vessel was carrying simulated papers without leave (A). The offence of carrying simulated papers will be discussed in its place {i). The brief reference to the subject of insurance sub Blockade may also be referred to in this connexion, p. 123, infra. In the late war against Russia an example was set which, if it should meet with general adoption in the future, will do much to mitigate the losses and inconveniences consequent on embargo on declaration of war. War was declared by Great Britain on 28th March, 1854, and on the following day a Eoyal Proclama- tion was issued, ordering a general embargo or stop to be made of all Eussian vessels then or which might thereafter arrive in her Majesty's dominions, together with all persons and effects thereon. But by a second proclamation of the same date it was declared that all Russian merchant vessels then in the dominions should be allowed until 10th May, a period of six weeks, for loading their cargoes and departing, such vessels to be free from arrest at sea unless carrying any officer in the naval or military service of the enemy, any article contraband of war, or any despatch of or to the Eussian Government (^). By another proclamation it was declared that any Eussian merchant vessel which prior to the date of the said order had sailed for any port in her Majesty's dominions, should be per- mitted to enter and discharge at such port and thereafter depart unmolested and be permitted to proceed to any port not blockaded. On 7th April it was further ordered that Eussian merchant vessels at that date at any port within her Majesty's dominions or possessions should be allowed thirty days in which to load and depart, and should not be molested or detained if met with at sea, or on an examination of the ship's papers establishing the {ff) Minetti). Anderson, Peake, 211. (A) Homeyer v. Lushington, 15 East, 46. (j) Tide p. 219, infra. [k) 1 Bulletins, 1854, 359-60. Vide also p. 92, infra. 48 Belligerent Rights against the Enemy. fact that the sailing took place within snch period. And on 15th April it was declared that this order extended to aU Eixssian merchant vessels -which prior to 15th May had sailed from any Eussian port of the Baltic Sea or White Sea for any port in the British dominions. Vessels having on board officers in the enemy's public service, contraband of war, or hostile despatches were excluded from these concessions. Concessions on the above lines were in like manner proclaimed by the governments of Trance and Eussia. The above proclama- tions, it will be observed, make no reference to the case of vessels on voyages to other than British ports. The subject of restraint, seizure, and detention of property of the national subjects, which may be usefuUy referred to in this connexion, will be considered separately, in its place {Pj. The reference to "Letters of Marque and Eeprisal " (p. 91, infra) is also of interest in relation to this subject. Analogous to the right to seize, on the outbreak of hostili- ties, vessels of the enemy within the national jurisdiction, is the less obvious right to seize and confiscate property of and debts due to the enemy within the dominions. This subject will now be briefly considered. (?) Vide p. 251, infra. Confiscation of Enemy Debts and Enemy Pkoperty WITHIN THE National Teeeitoky. WTietlier such assets of the enemy as above can be lawfully confiscated as a right of war is matter of controversy on the part of writers on the law of nations. The letter of the law would certainly appear to recognise the right, and that the ancients had no scruples on the point is manifest. On the outbreak of hostilities between Great Britain and France in ' 1793, France sequestrated the debts to and property of British , subjects, which proceeding was retorted upon by Great Britain as regards property of French subjects. But in 1814 the sequestrations were removed on both sides, and the claims of individual sufferers at the hands of the French were liqui- dated. By modern iaternational usage, however, the right, ■ if right it be, is presumably deemed to be extinct, and in many cases the contingency is probably specially provided for by treaty. In the absence of such a treaty all civilized powers would, it may be confidently assumed, now refraiu from claiming any such rights, unless, indeed, the property were of such national importance that its seizure would result in diminishing the capacity of the enemy for carrying on the war. But in the event of the maintenance of the right on the part of one belligerent, the other might assert it by way of retaKation. One of the stipulations of Magna Oharta provides that at the commencement of a war the enemy's merchants shall be kept and treated as English merchants are treated by the enemy. Subsequent enactments in this and other countries provide that enemy subjects shall, on outbreak of 50 Belligerent Rights against the Enemy. war, be allowed to depart from the country of their domicile in safety, taking with them or selling their goods on depar- ture. In 1854 it was declared by the government of this country that the persons and property of Eussian subjects domiciled in Ghreat Britain would be respected to the full extent promised by the government of Eussia to British subjects domiciled in that country. To confiscate the property of an alien who has entered the country with the sanction and under the implied protection of the government of the country would certainly, according to the enhghtened opinion of the present day, be considered a discreditable breach of the national good faith. This principle does not apply to the seizure of enemy ships and cargoes temporarily within the jurisdiction, for it is obvious that there is a wide difference between seizing the property of an alien domiciled in the country, contributing to the national taxes, and sharing the lot common to individuals of the nation ; and seizing ships and cargoes in port belonging to enemy subjects domiciled in the hostile territory. During the war between Grreat Britain and the United States in 1814, certain timber found within the jurisdiction of the latter power was confiscated on the ground that being British property it was lawful prize of war. On appeal this order was reversed, the Supreme Court declaring that though the right of seizure was undoubtedly possessed by the sovereign power, the right did not of itself operate as a confiscation of enemy property, but that the intention to exercise it must first be declared by the State. No such intention having in this case been expressed, the right of seizure had not attached (m). During the American civil war, cotton, the property of individuals in the Southern States, was seized and confiscated by the Federal troops, on the ground that it was the mainstay of the Confederates, and ministered directly to their power to (m) Srowny. United States, 8 Oranch, UO. OoNnscATioN OF Enemy Debts, etc. 51 carry on hostHities («) . The Confederate States, on their side, passed an act confiscating property, of whatever nature, except public stocks and securities, held by an alien enemy. Lord Eussell strongly protested against this measure, declaring " that whatever may have been the abstract law of nations on this point in former times, the instances of its application in the manner contemplated, in modem and more civilized times, are so rare, and have been so generally condemned, that it may almost be said to have become obsolete " (o). On the outbreak of hostilities, debts due from a belligerent State to alien enemies are in strict law subject to confiscation, but modern usage does not sanction the exercise of this right. The case is, probably, now commonly expressly provided for by international conventions {p) . As regards private debts, the rule appears to be that the right of enemy subjects to moneys owed to them by indi- viduals of this country is not annulled on outbreak of war, but is held in suspense nntil the conclusion of hostilities. During war an alien enemy has no locus standi in our Courts, and there- fore cannot sue for payment. With the renewal of peace his right revives, so far as it relates to debts contracted before hostilities, but any contract made during hostilities would be void {q). In Wolff y. Oxholm (r) Lord Bllenborough declined to recognise as legal the confiscation by the Danish Govern- ment of debts due from Danish to British subjects. On an action being brought against a Danish subject in the British Courts, the Court held that the payment by such subject to («) Wheat. Int. Law, 2 Eng. ed. 412. (o) Edinburgh Review, Jtdy 188i. 273. [p) In the case of government honds, it is sometimes expressly declared upon them that payment of interest shall be made, and redemption of principal take place, as well in time of war as during peace, and whether the holders be subjects of a friendly or hostile state. (?) Alcinous V. Nigreu, 4 E. & B. 217. Vide Effect of War on Contract, p. 412, infra. [r) 6 M. & S. 92. E 2 52 Belligerent Eights against the Enemy. Ms government did not furnish a defence to the demand of the creditor in this country, and judgment was given against him accordingly. The rights of embargo, reprisals, and confiscation may be roughly described as rights more especially internal — that is, which can be exercised by a belligerent against the enemy within the national territory. Other and more important or, at any rate, better known rights are those to be exercised outside the jurisdiction. Poremost amongst these stands the right to seize and confiscate enemy shipping on the high seas. This we will now consider. ( 53 ) Captuee of Enemy Vessels and Enemy Cargo THEREIN. Capture may for present purposes he defined as the forcible seizure of the ships and goods of an enemy, or of enemy sub- jects, with intent to appropriate the same to the captors' use, and it may be effected either (1) by the public vessels or national forces ; or (2) by individuals commissioned by letters of marque to engage in hostilities against the enemy on the high seas and within the enemy jurisdiction. The subjects of Letters of Marque and Privateers will be specially con- sidered presently (s), and the subject of Neutral Territory (as opposed to " enemy jurisdiction ") wUl be referred to in its place under the general head Belligerent Obligations (t). On the outbreak of hostilities the right of capture at once becomes active, but having regard to the example in modera- tion set by the belligerent powers in recent wars, it is not unreasonable to suppose that the right to capture any enemy vessels withia the dominions on the outbreak of hostilities win henceforth be postponed. Thus, ia the war with Eussia in 1854, six weeks was allowed for Eussian merchant vessels withia British territory to load and proceed; wMlst such vessels which had sailed for British ports prior to the outbreak were permitted to enter, discharge, and proceed unmolested to any port not blockaded (m). And on the occurrence of the (s) Vide p. 91, infra, [t) Vide p. 311, infra. («) 1 Bulletins, 1854. Vide also p. 47, supra. 54 Belligerent Rights against the Enemy. Franco-G-erman war in 1870, thirty days were allowed for G-erman merchant vessels in French ports to load or unload and depart, whilst those vessels which had sailed prior to the war with cargoes on French account were also to he free from capture {v). To French vessels in German ports a period of six weeks was allowed in which the vessels might load or xmload and depart («). To constitute a capture it is not necessary that the captured vessel should be actually hoarded and seized hy the enemy, or even that a prize master should he sent on hoard. The striking of the colours of the assailed vessel is deemed a token of surrender and capture (y) ; or the vessel may he driven on shore or into port (s). In The Edward and Mary (a) Sir W. Scott mentioned as an instance of this a famous case in which a smaU British vessel, having only three men on board, and with no weapons except two swivel-guns, drove iato Ostend, then the port of an ally, a French row-boat full of heavily armed men. The British seamen dared not attempt to board the row-boat, but forced the enemy into port, by following them all the way at a suitable distance, covering the boat meantime with the swivels. And in another case, that of The Hesolution {b), which was seized by a British vessel and claimed as a capture, it was held that the vessel had already been captured by another British vessel, although the first captors, instead of putting a prize crew on hoard, had accepted the master's voluntary promise that he would proceed to a {v) 60 State Papers, 879 ; and vide p. 269, infra, (x) 60 State Papers, 899. («/) The Rebekah, 1 Rob. 233. («) Cf. Powell V. Hyde, p. 79, infra, wtere an abandoned sbip, deliberately sunk by the enemy, was held to have been " captured," (a) 3 Rob. 306. (*) 6 Rob. 13. Captuee of Enemy Vessels and Cargo therein. 55 Britisli port, -which promise, however, was not kept. The vessel was a neutral, and had been seized on the ground that she had enemy goods on board. A capture is none the less a capture if illegally made, or if it prove on adjudication that the property is not subject to condemnation (c). A reasonable suspicion on the part of the captors wiU justify seizure, and a ship may be liable to capture though not to condemnation. But every capture, whether by a public vessel or by a privateer, is at the peril of the captors, who, on failure to show reasonable and sufficient justification, are liable to a suit for restitution, and may in addition be mulcted in costs and damages (d). All captured vessels must be brought without unnecessary delay and with due care to a port within the jurisdiction of the nation of which the captor is a member, or to the port of an ally, for adjudication (e). The Prize Act {vide Appendix) allows captors considerable latitude as to the port to which to take their prize, but they must not select any port they please. It must be a convenient port, and one of the first considerations in this connexion should be the convenience of the claimants in proceeding to adjudication (/). If a captor finds himself unable to bring his prize into port — because, for example, he cannot spare men to man her ; or because his own national ports are too closely watched by the enemy ; or for any other sufficient reason — in default of other means of disposing of the vessel he may destroy her. But before resorting to such an extreme exercise of the rights of war he should satisfy himself that the vessel, if brought in («) Hobba B. Henning, p. 196, infra. (i) Story on Prize CourtB, p. 35. Vide also p. 324, infra. («) Vide -p. S\6, infra, "Adjadioation and Condemnation." (/) The Wiltelmsberg, 6 Rob. 143 ; The Lively and Cargo, 1 Gall. 318 ; The Washington, 6 Rob. 275. 56 Belligerent Rights against the Enemy. for adjudication, woidd be condemned, and in case of doubt- upon this point she should he released. If destruction be resorted to, the vessel's papers should be preserved, for it wiU be open to innocent sufferers to demand adjudication and compensation, though ship and cargo be destroyed (g). Dur- ing the American civil war many Federal vessels were burnt by the Confederate cruisers, and in so doing the Confederates followed, as was subsequently admitted by the Federal law officers, the example of the United States during the war with this country in 1812 — 1814 {fi). And during the recent war between Russia and Turkey, a similar course was, it is alleged, adopted by Russian cruisers against merchant vessels of the latter power (i). But failing such evidence as in captors' opinion would secure the confiscation of the property, the capture should be released (/ ) . If a prize be destroyed on insufficient grounds, compensation may be ordered to the claimants [k). But great indulgence is allowed to errors in cases where captors act in good faith and without gross mis- conduct (l). Formerly, fishermen engaged in their occupation were deemed non-combatants and their property exempt from cap- ture, but Sir W. Scott, in The Young Jacob {m), observing that the rule was one of comity and not of law, condemned the vessel as being constantly and exclusively employed in the enemy's trade. But by an Order in Council dated May, (ff) Bat vide p. 357, infra, relative to neutral property on belligerent vessels destroyed in the Franco -Prussian War. (A) Vide Jecher v. Montgomery, p. 299, infra. Also Wheat. Int. Law, 2 Eng. ed. 432. («) Ibid. (J) The Felicity, 2 Dod. 381. (A) The FeHoity, supra; The Aotseon, 2 Dod. 381. (I) The Lively and Cargo, supra; The Anne, 3 Wheat. 435; The George, 1 Masm, 24 ; The John, 2 Dod. 339. (m) 1 Eob. 20. Capture op Enemy Vessels and Cargo therein. 57 1806, all fishing vessels engaged for the purpose of catching fish and conveying them fresh to market, -with their crews, cargoes, and stores, were declared to he free from molesta- tion (n). " Whenever the captors are justified ia the capture they are considered as having a bona fide possession, and are not responsible for any subsequent losses or injuries arising to the property from mere accident or casualty, as from stress of weather, recapture by the enemy, shipwreck, &c. (o). They are, however, in aU cases bound for fair and safe custody ; and if the property be lost from the want of proper care, they are responsible to the amount of the damage ; for subsequent misconduct may forfeit the fair title of a bona fide possessor, and make him a trespasser from the beginning " {p). An unduly postponed claim for damages in respect of illegal capture is not specifically barred by the Statute of Limita- tions, but after a great lapse of time the Court wiU by equity extend to prize causes the principle of that Statute {q). When damages are allowed, iu the case of loss of the pro- perty, the measure of damages is usually the actual loss sustained. And if after assessment of damages, payment be delayed, interest will be allowed on the whole sum awarded, from date of the assessment (r). The person immediately liable for damages in the case of illegal seizaire by a public vessel is he who effects the capture, and not his superior in command, such as the admiral or commodore ; though the actual captor may have rights over against his superiors within the scope of whose authority he is acting. It is the (») 5 Bob. Appendix. (o) The Betsey, 1 Rob. 93 ; The Catharine and Anna, 4 Rob. 39 ; The Caroline, 4 Rob. 266 ; Del Col t. Arnold, 3 Dall. 333. (p) Story on Prize Courts, p. 37. \q) The Mentor, 1 Rob. 179 ; The Huldah, 3 Rob. 235. (r) Story's Prize Courts, p. 41. 58 Belligeeent Eights against the Enemy. actual wrong-doer who must be brought before the Court (s). In the case of a capture by privateers the matter stands on a somewhat different footing, as will be set forth under the head Privateering and Letters of Marque {t). All persons found on board a captured vessel have, as pro- vided by Art. VI. of the Instructions for Commanders of Her Majesty's Ships of War as to the Disposal of Captured Vessels, to be treated as prisoners of war, and they must accordingly be handed over to the authorities charged with the duty of receiving such prisoners. And by Art. III. of the same instructions, when a vessel is captured, bulk must not in ordinary circumstances be broken until judgment has been given in the Court of Admiralty. In case of the cap- ture of a neutral vessel the crew must not in the absence of special reason to the contrary be handcuffed or put in irons (w) . Damages will be awarded by a Prize Court against captors acting contrary to this general rule. If the master of a cap- tured vessel have cause to complain of the treatment received at the hands of the captors, the proper course is for him to set forth his complaint in the form of a public instrument of protest, sworn before a notary public in the customary form. Any damages sustained by the ship or cargo in consequence of the mismanagement, neglect, or malfeasance of the captors should in like manner be protested against by the master. If a belligerent vessel having prisoners on board puts into a neutral port, the prisoners are lawfully under the belli- gerent's jurisdiction so long as they remain on board ship, and the neutral power has no right of interference ; but if once they set foot on land they become free (x). (s) The Mentor, 1 Kob. 179 ; The Diligentia, 1 Dod. 404 ; The Ostsee, p. 32S, infra. {t) Vide pp. 94 and 332, infra. (u) The St. Juan Baptista, 5 Eob. 33 ; The Die Fire Darner, 5 Eob. 357. {x) Vide reply of H. M. Government to a complaint by the French Govern- Capture of Enemy Vessels and Cargo therein. 59 If the ship be condemned, the master's private effects are apparently subject to the same fate (y). Where on adjudication the property is condemned, the costs of discharging, warehousing, &c., have to be defrayed by the captors. Where it is restored, payment of the charges ■will be awarded as the Court, having regard to the circum- stances, may in its discretion deem proper (s). Costs may be awarded to captors, notwithstanding a decree of restitution, if it appear that sufficient grounds existed for the seizure (a). The precise poiut or moment at which captured property is deemed to be vested absolutely in the captor has never been universally decided, and different rules exist respecting it. According to the United States laws, when a ship has once been condemned in a competent Court of the captors she becomes thenceforth vested absolutely in the captors; whereas, according to the laws of this country, if the vessel be re-captured from enemy subjects even after condemnation, she is deemed to be re-vested in the original owners, who accordingly become entitled to enter again into possession on paying salvage to the re-captors (i). The circumstance that the sailing of a vessel took place before the outbreak of hostilities entails, as may be perceived on a consideration of the observations sub Embargo (c), no security against capture, unless this immunity be voluntarily ment as to a Prussian vessel in the Firtli of Eortli : State Papers, 61 (1870-1), 1093. Also The Sitka, 1854. " Opinions of the Attorneys-General of the United States: " Tom. 7, p. 123. See also Twiss's Intemat. Law (War), p. 454, for a reference to the views (in 1855) of the United States Govern- ment, which harmonize with those of H. M. Government. {y) The Ouachita, Blatch. Fr. Ca. 306. (a) The Industrie, 5 Rob. 88. (a) Berens v. Ruoker, 1 Black. 313 ; vide sub Adjudication and Condemna- tion, p. 316, infra. (i) Vide sub The Right of Recapture, p. 126, infra, [e) Vide p. 36, supra. 60 Belligerent Rights against the Enemy. declaxed by the nation at war with the power hj which such vessel is deemed to he owned. In the war with Russia, in 1854-5, privilege was, by an Order in Council, granted to enemy ships which had sailed for a British port prior to- 29th March, 1854. A Eussian vessel (d), which had left Antwerp for Havannah in November, 1853, proceeded from Havannah to Matanzas in February, 1854, left Matanzas for Cork on 2nd April, and was seized and carried into Cork as an enemy ship not protected by this Order. Restitution was decreed, the Court holding that the voyage must be deemed to have commenced with the sailing from Havannah in ballast in the month of February, and that the subsequent putting into Matanzas did not alter this fact. No capture may be effected or attempted in neutral waters, though a capture so made cannot be called in ques- tion except by the sovereign whose neutrality has been invaded. It is one of the first duties of belligerents to respect neutral waters (e). The right to captm'e enemy goods in neutral vessels calls for separate consideration in its place (/). The subject of Joint Capture need scarcely be closely con- sidered in these pages. The question may become on occasion highly interesting to rival claimants of captured property, but it is of little concern to the owner of property lawfully seized by others to know on what basis the spoil is to be divided between such captors. Great Britain having, by the Declaration of Paris, renounced the right to commission privateers, British shipowners have no longer the interest in the subject of joint capture which they possessed so long as it was open to them to send their vessels to sea under commis- sion of war. Suffice it, therefore, to say, generally, that in {d) The Argo, 24 L. T. 16. (e) Vide sub Belligerent Obligations, p. 311, infra. (/) Vide p. 88, infra. Capture of Enemy Vessels and Cargo therein. 61 the ease of claim for joint capture the British Courts are mainly guided by the following principles :— If the claim to constructive capture be grounded on the fact that the claimant ship was in sight, it must be established that she was seen both by the captured vessel (whose yielding may be presumed to have been induced by the approach of the claimants) and by the immediate captors. In the absence of some antecedent agreement, a vessel in harbour cannot claint as joint captor merely on the ground that one of her boats was in sight of the parties to the engagement or pending engage- ment. If the claimant be a privateer, the mere beiag in sight is not sufficient ; some overt act must also be shown in support of the claim : for a privateer is under no obligation to fight in aU cases, so that the animus capiendi is not necessarily to be assumed in his favour. In ordinary cases revenue cutters cannot claim, their primary duty being to protect the revenue, and not to enter upon active hostilities. "Warships forming part of a fleet associated in a common enterprise of capture may be entitled to share though not actually in sight, but the decision must in each case rest upon the particular facts {g). If two vessels engage in joint chase of an enemy ship, and one of them effects the capture out of sight of the other, the capture is, nevertheless, deemed to be joint. Decisions bearing upon these and other relative points win be foimd reported and discussed in Hazlitt and Eoche's valuable "Manual of the Law of Maritime Warfare " ; and numerous cases before the Courts appear in Eobinson's "Admiralty Eeports." Sect. 35 of the Naval Prize Act, 1864, provides that allies of Her Majesty shall be entitled to share ia joint captures on such basis as may be from time to time agreed upon between Her Majesty and Buch ally. And by sect. 36 it is provided that claimants for ig) Vide The Anglia, Blatch. Pr. Ca. 666. 62 Belligeeent Rights against the Enemy. joint capture shall give security for a due proportion of any costs or damages whicli may he awarded against the actual captors on account of improper capture or detention (A). It is lawful by maritime law to chase under false colours, but to fire under false colours is illegal (i). By the French " Ordonnance de 17 Mars, 1696," it is strictly provided that French vessels firing under false colours shall lose aU right to the prize captured if the vessel be declared an enemy, and shall be condemned m costs, damages, and interest if she be adjudged neutral {k). If, without the sanction of the neutral power, a belligerent vessel be fitted out or her force be augmented in neutral territory, any captures made by such vessel during the suc- ceeding cruise are illegal, and in the event of the prizes being brought within the neutral jurisdiction proceedings may be instituted for restitution (l) . No such sanction should, however, be granted by neutrals, but if on any occasion con- ceded, it should be granted to both belligerents impartially (m) . Prizes may be taken into neutral ports, but it rests with neutral powers to impose such limitations to this right as they may deem consonant with their obligations as neutrals. A prize lying in a neutral port in possession of the captors is not properly the subject of valid condemnation in a Prize • Court in the captors' territory. This principle was strongly enunciated by Sir W. Scott in The Senric and Maria («) ; but inasmuch as it had not always been acted upon in the British Courts, his lordship declared himself unable to enforce (A) Vide sub The Right of Eeoaptare, p. 130, infra, as to prize money pay- able to captors. (j) The Peaoook, 4 Rob. 185. (A) Story ou Prize Courts, p. 38. [l) The Santissima Trinidad, 7 Wheaton, 283. Vide also p. 380, infra. (m) Vide as to this, sub Netitrai Rights and Obligations, generally, pp. 345, 363, &o., infra. («) 4 Rob. 43; 6 ih. 139, n. Vide also The Purissima Conception, 6 Rob. 45. Captuee of Enemy Vessels and Caego therein. 63 it to the detriment of aHen captors who asserted the contrary right (o). If the master of a neutral ship resists an attempt to hoard her on the part of a belHgerent, he exposes his vessel to con- fiscation (p). But if the vessel assailed he enemy property condemnation will naturally succeed capture ; so that, in this respect, the master has, so far as his property is concerned, little to lose and everything to gain hy resistance. An enemy subject (master or seaman), even if there be a fair prospect of rescuing the vessel, is ordinarily under no obligation to offer resistance, unless required to do so by the terms of the contract of service under which he has been engaged. An old statute {q), after setting forth the loss and discredit to which the country has been sub- jected by shipmasters yielding up their cargoes to pirates, sea-rovers, and Turks, lays it down that no master of an English vessel of 200 tons or upwards, and mounted with sixteen or more guns, shall yield to any such foe without fighting, and that no smaller or less-armed vessel shaU without fighting yield to any such vessel as aforesaid unless the latter shall have at least double the number of guns carried by the English vessel. Any shipmaster found guilty under this statute to suffer the pains and penalties therein provided, and any one of his crew refusing to fight when ordered to do so, or uttering words to dis- courage the other mariners from defending their ship, to suffer imprisonment. This law was called forth by the tactics of the Turks and others, who induced shipmasters not to fight, by promising to release the ship and the master's property on condition that the rest of the property was yielded up. The provision exists as a gratifying testimony (o) For observations in tMs connexion, and relative to the question of Compensation and Costs, vide sub pp. 316, 325, infra, (p) Vide sub Resistance to Search, p. 212, infra. Also p. 216, infra. (?) 22 & 23 Car. II. ,,. 11, s. 7. 64 Belligerent Rights against the Enemy. to the estimation in which the fighting powers of the English seaman were in old times held by the legislature ; but seeing that merchant vessels now go for the most part unarmed, while "pirates, sea-rovers, and Turks" are no longer an occasion of dread, the enactment must now be considered obsolete. If the crew of a vessel seized for examination attempt to rescue her from the prize crew put in charge, the attempt, if ultimately defeated, involves confiscation (r). Captures after Cessation of Hostilities.— The effect of a truce or treaty of peace is that, in the absence of express provision otherwise, hostihties between the contracting parties terminate on the signing of the treaty. It may, however, very easily happen that, owing to ignorance on the part of the captors that peace has been concluded, a capture or re- capture may be effected after cessation of hostilities. Thus the American ship Mentor (s) was, in 1783, destroyed by British warships after the cessation of hostilities, but before either of the parties had become aware of the fact. Unfor- tunately, owing to the manner in which the injured party prosecuted his claim for compensation, little more is to be learned from the decision in this case than that the proper person to be sued in respect of a wrongful capture is the actual captor. The claimants appear to have proceeded, in the first instance, against the captor; but the Admiralty Court, for reasons which do not appear, refused redress. No appeal seems to have been made by the claimants against this decision ; but ten years later they instituted proceedings agaiast the admiral under whose general orders the captor was acting at the time of the capture. Sir W. Scott de- cided {t) that no action lay against the admiral ; that the (r) Vide, as to this, Attempt at Kesoue, p. 216, infra. («) Kent's Int. Law, 2nd ed. 388. (<) 1 Rob. 179. Captuee of Ejtemy Vessels and Caego theeein. 65 proper person to proceed against was the actual -wrongdoer ; and as at the trial already mentioned it had heen held that the captor was not liable, the sirSerer thus obtained no com- pensation. The learned judge intimated that if through ignorance an act of mischief had been done by the kiag's officers, the ignorance would not necessarily protect them from civil responsibility, though if in such case held liable the government should indemnify them. He was, therefore, inchned to thiok that the determiaation of the judge in the former case did not turn upon the fact of ignorance only, but upon all the circumstances of the case. Queen's officers who act wrongfully are personally respon- sible to the party aggrieved, but so long as their action has been within the general scope of their authority they may reasonably look to their government for indemnification (t). A few years later arose the case of The Swineherd (u), seized whilst on a voyage from Calcutta to England by the French privateer Bellona. By the Treaty of Amiens it had been inter alia provided that hostilities between Great Britain and France should cease in the Indian Seas five months after a date fixed by the treaty. The Swineherd sailed after news of the peace had reached Calcutta, but before the period of five months had elapsed. The master of The Bellona had been made aware, though unofficially, that peace had been concluded, but, notwithstandiug, he seized The Swineherd, which vessel was finally condemned ia the French Courts. The grounds of this decision were that the master of The Bellona was not bound to accept notice of cessation of hostilities unless such notice were attested by the French authorities ; and, further, that imtil the aforesaid period of five months had elapsed hostilities remained in force in the Indian Seas. Again, in 1814 {x), a question arose in a British Yice- [t] Vide The Ostsee, p. 328, infra. («) Kent's Int. Law, 2nd ed. p. 389, n. [x) Ibid. 390. Vide also The Sophia, 6 Eob. 138. o. r 66 Belligerent Rights against the Enemy, Admiralty Court on the validity of a recapture, by a British warship, of a British yessel which had been previously seii:ed by an American privateer. The original capture was in itself valid, but the prize had not been carried into port and condemned, and the recapture was efEected after the cessation of hostilities, but whilst the parties were still in ignorance of the fact. It was held that the British vessel could not, after the peace, lawfxilly use force to divest the original captor of a possession which was lawful. The restoration of peace put an end, from the time limited, to all force, and the general principle then applied that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. "Peace gives a final and perfect title to captures without condemnation, and, as it forbids all force, it destroys aU. hopes of recovery as much as if the vessel was carried infra prcesidia and condemned." Capture of Enemy Vessels. 67 Neutral Goods on Enemy Ships : the question of Freight.— If an enemy ship be captured with neutral cargo on board, the captors are entitled, if they so elect, to carry the cargo to its intended destination, and to eai-n the freight there payable. But captors cannot claim freight unless they carry the property to its port of destination, or at any rate to the country in which the latter is situated (y). There have, however, been cases in which freight has been allowed to captors where the goods, instead of being taken to destination, have been carried to the claimants in their own country (z). In The Weldsborgaren (a), the vessel, bound from Philadelphia to Lisbon, had been brought into a British port under an embargo on Swedish vessels, and it became necessary to discharge the cargo, which was forwarded in another vessel. On the release of the vessel a claim was made against the cargo for freight, but the Court rejected this applica- tion, observing that the cargo had itself been a sufferer on account of the ship. But when the goods have been sold short of their destination, even though the sale be to the advantage of the owners, the captors cannot lay claim, to freight (5). And where freight is allowed to the captors, if they have done any damage to the cargo, the amount may be deducted by way of set-off or com- pensation (c). No exception, as regards captured cargo, is made by the Court to the rule respecting payment of pro-ratd freight. Thus, delivery by a neutral carrier to the captor, at a port selected by the latter, is deemed a delivery under the original contract, and the full freight due at destination must be paid by the captor. On the other hand, as appears above, a captor, in order to earn freight from a neutral consignee, must carry the cargo to its destina- tion, and he has no right to part-payment for delivery at a port (y) The Diana, 5 Rob. 67 ; The Vrow Henrietta, ih. 75. But of. The Wilhelmina Eleonora, 3 Rob. 234. {«) The Eortuna, 4 Rob. 278 ; The Diana, supra ; The Vrow Anna Catharina, 6 Rob. 269. (a) 4 Rob. 17. Vide also The Isabella Jaoobina, 4 Rob. 77. (S) The Vrow Anna Catharina, supra, (c) The Tortuna, supra. r2 68 Belligerent Rights against the Enemy. Bhort of such destination. (The converse view,— Belligerent Obligations : payment of Freight to Neutral Carriers (p. 339, infra) is of some interest in connexion with the foregoing remarks.) Insurance, — Capture generally. The common form of the English policy of marine insurance expressly protects the assured against the risk of capture. "Touching the adventures and perils which we, the assurers, are contented to bear, and do take upon us in this voyage, they are," — says the Lloyd's policy — " of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and counter-mart, surprisals, takings at sea, restraints and detain- ments of all kings, princes, and people, of what nation, condition or quality soever " [d). In cases where the underwriters intend to exclude hostile risks, they do so by inserting a special clause commonly known as the "F. 0. & S." or "free of capture" clause (e). The risk of hostile capture is thus covered in the body of all the marine policy forms in common use in England ; and if the underwriter in any case decides to exclude the risk, he does so, as just stated, by inserting a clause expressly to over- ride the words including it. A large proportion of British tonnage is, however, insured in the so-called Mutual Insurance Clubs or associations of shipowners. Whether war risks are covered by the conditions of the insurance in such clubs must in each case be ascertained by reference to the club terms. It is now settled law in this country that as between the underwriters and the assured, the vessel insured, if captured, is primd facie to be deemed a loss within the policy, notwith- standing that she be never condemned or even taken into port(/). It is the fact of the capture which constitutes the loss; and the circumstance that the vessel may possibly be subse- quently released or recaptured, and that by the law of Great {d) The following clause is sometimes inserted in policies on vessels chartered by the government for employment in connexion with hostilities : " To include war risks except those taken by H. M. Government." Owen's Mar. Insoe. Notes and Clauses, 2nd ed. p. 100. (e) Vide as to this clause, suh War Warranties, p. 386, infra. \f) Gobs v. Withers, 2 Burr. 69i ; and p. 73, infra. Capture generally. — Insurance. 69 Britain the property is deemed to remain vested in the owners until the vessel has been condemned by a Court of prize, does not afEect the position. It can never be positively affirmed that a captured vessel remaining afloat can by no possibility come again into the owners' possession, and ships may be justifiably captured, though the captors fail to obtain condemnation by the tribunals of prize. And whether the capture be legal or illegal (y), or effected under a mistake (A), the underwriters are equally liable. Capture is primd facie a case of constructive total loss (j), and gives the right to abandon to the underwriters on receipt of the announcement of the capture. If the under- writers accept the tender, the question of liability becomes thereby definitely fixed. If on the other hand the abandonment be declined, it remains for the assured either to bring their action forthwith, or to abide the issue of events and claim ultimately as for an average loss. As a general principle, if a loss be in fact total, there is nothing to abandon, and the assured can claim for payment of the sum insured without previous abandonment. In the case of constructive total loss, however, the position is different, and notice of abandonment is a necessary preliminary to the right to recover as for a total loss. If, before action brought, news be received of the safety of the ship, by release, rescue, recapture, or otherwise ; or if the assured so proceed as to indicate their intention to claim as for an average loss and to waive the right to claim as for a total loss ; then the claim wiU be not for total loss, but for the actual damages and costs caused by the captiu-e. As in other cases giving rise to tender of abandonment, the assured must make up their mind as to the course to be taken so soon as the facts communicated to them enable them to come to a decision. They must not stand by from day to day before deciding to abandon, as by so doing they may be deemed to have elected to claim as {ff) Gobs v. Witters, 2 Burr. 683, 694-5, and p. 73, infra. ■ {h) Lozano v. Janson, 2 E. & E. 100 ; 28 L. J. (Q. B.) 337. (i) Of course, if, in the case of cargo, only a portion of it be on board on capture of the vessel, and only such portion be captured, the loss -will not be total ; and in this case, if the insurance be free of particular average, a question may arise as to the liability of underwriters. As to this, see McArthur's Contract of Insoe., 1st ed. 254-5. 70 Belligerent Eights against the Enemy. for an average loss. The reason for this is that, if immediate notice of abandonment be given to underwriters, they are thus put in a position to take prompt steps to protect their interests, whereas by the indecision of the assured the opportunity to take such protective measures at the outset may have been lost to them. But though the assured may thus lose their right to abandon, the right will revive if circumstances should subsequently occur to renew the option of decision. In Stringer v. English Mar. Insce. Co. (/c), the assured, instead of abandoning on news of the capture, as they might have done, intervened in the suit for condemnation, with the result that judgment was given in their favour. Against this decision, how- ever, an appeal was lodged by the captors, and pending the final judgment the goods insured were ordered by the Court to be sold, in default of bail or deposit in American currency up to their full value. The condition of the American currency was at that time very unsatisfactory, and the assured declined to provide the security. The underwriters similarly declining to interfere, pro- ceedings were instituted against them for payment of a total loss under the policy. The Court decided for the plaintiffs. The latter had, it was true, tendered at the outset no notice of abandonment, but the subsequent material alteration in the circumstances revived, it was held, their right to abandon. As has already been mentioned siib Embargo and Reprisals (J), abandonment of the ship carries with it the right to the freight in course of being earned by her. Shipowners, therefore, have to take care, when abandoning their ship to underwriters, to secure themselves for payment of total loss by underwriters on freight. Por if underwriters on ship accept abandonment, and the ship be, for example, released before action brought against those on freight, the shipowner will be in the position of having alienated his freight in favour of the huU underwriters, without having any right to claim for a total loss under the policy on freight. Apparently it may, during hostilities, be on occasion a politic course for underwriters on ship to accept abandonment as by so doing they may acquire the title to a considerable (A) L. R. 4 Q. B. 670 ; 5 Q. B. 599. U) P. 36, mpra^ Captuee generally. — Insurance. 71 amount of unearned freight,— the more so as the hare risk of capture or detention may have forced the rate of freight to a point much in excess of rates current in times of peace. If after acceptance of abandonment, but before payment of loss, the ship be again in safety, underwriters have, notwith- standing, to consummate their acceptance by paying the sum insured under the policy (m). They are under no legal obliga- tion to accept abandonment, but if they elect to do so they must needs abide by their decision. On abandonment being accepted, or on a total loss being paid, the assui-ed's title to the property becomes transferred to the underwriters, with whom it rests until divested by condemnation. If the vessel be ultimately released, then the various underwriters concerned wlLL have to decide as to the course to be adopted with the property. For this purpose, as has been already mentioned sub Embargo and Eeprisals (ra), it may be necessary for all concerned to vest the property in trustees to be by them sold and apportioned over the various interests involved. The assured cannot abandon to underwriters on the ground that, though restitution may in fact have been decreed, they are meantime out of possession of the property (o). If a neutral vessel be seized by a belligerent, and taken into port in order to be examined as to the nature or ownership of her cargo, such a seizure, although not intended as a capture, is a detainment for which underwriters are expressly liable under the policy. And as between underwriter and assured, a loss so arising is to be dealt with as if the seizure had been with a view to condenmation of the vessel in a prize court of the captors (^). BeUigerents have a right to visit and search aU neutral private vessels, and, in case of need, to carry them into port for further examination {q). If in case of capture the claim under the policy be treated as (m) Smitli V. Eobertson, 2 Dow's P. C. 474. Vide also Hudson v. Harrison, 3 Brod. & B. 153. («) Vide p. 46, supra. (o) Amould's Insce., 5tli ed. p. 1016. {p) Barker v. Blakes, 9 East, 283. (?) Fi») Tte Jonge Margaietha, 1 Rob. 194 ; The Peterhoff, match. Pr. Ca. 463. («) The Eendraght, 1 Rob. 23. (o) The Eleonora Wilhehnina, 6 Rob. 331. [p) 5 Rob. 305. \q) 1 Rob. 29. (r) 4 Rob. 33. (s) Maritime Warfare, p. 257. {t) The Neptumis, 3 Rob. 108. 170 Belligerent Rights against Neutrals. produce of the comitry from whicli they were exported (m). The reason for this leniency was that these aiiicles formed so considerable a part of the native produce and ordinary commerce of the countries priaoipally exporting them, that it would have heen a very harsh exercise of belligerent right to subject them to confiscation. But this concession agaiast the right of confiscation was not absolute. The goods, whilst exempted from condemnation, remained subject to the sub- stituted milder right of pre-emption on the part of the captorS if they should so elect. It might be a hardship that peaceful neutrals should be debarred from shipping to the enemy, in the ordinary course of the trade, goods forming the staple product of their country ; but, on the other hand, it would equally be a hardship that a belligerent should be debarred from stopping the supply of stores directly subservient to the maintenance of hostilities by the foe. Pre-emption was a via media for both neutral and belligerent, but attached to this belligerent concession were the conditions — (1) bona fides on the part of the neutral shipper {v) ; and (2) that the latter should satisfactorily establish that the goods seized were really the produce of his own couiitry {x). Hemp was not, per se, Hable to confiscation or pre-emption, but only so if fit for naval purposes (i/) . In The Neptunus, supra, although tallow was restored as being destined to a non-military port, sailcloth in the same vessel was condemned as being universally contraband. Copper sheets fit for the metalling of vessels have been confiscated, being a "manufactured article immediately serving for the equipment of ships of war," and therefore (m) The Sarah Christina, 1 Rob. 241. (») The Sarah Christina, supra. {x) The Twee Juffrouwen, i Rob. 242 ; The Apollo, 4 Rob. 168. (y) The Gute Gesellsohaft, 4 Rob. 94 ; The Evart Evarts, ihid. 354. Capture of Contraband of War. 171 contrary to treaty (z). Iron in an unmanufactured state has been treated with indulgence, anchors and chains heing re- garded as directly contraband. On the same reasoning hemp has been more favourably regarded than cordage ; and wheat (to be considered presently) than final preparations of it for human consumption. Such articles as saltpetre and. sulphur suitable for making gunpowder, and all kinds of machinery for manufacturing arms or ammunition, have always been confis- cated by the British Prize Courts. Lead, and the various com- ponents of explosive materials, would doubtless be subject to similar treatment. In The Teutonia (a) nitrate of soda seems to have ' been regarded as contraband. But as Sir W. Scott laid down in The Jonge Margaretha, supra, the most important distinction is whether the articles are intended for the ordi- nary use of life, or even for mercantile ships' use ; or whether they are going with a probable destination to military use. This was the principle applied to a cargo of resin in 1747 ifi). Neutral vessels may lawfully have on board such quantity of contraband as may be required for their own use, but they may not carry a larger quantity on the suggestion of the speculation of purchasing other ships (c). The master in the case cited averred that the naval stores which he had onboard were wanted for another ship which he designed purchasing at Batavia. The contrary principle, if admitted, would be an endless source of fraud. Ships of war, i.e., vessels evidently built or peculiarly adapted for waxlike purposes, destiaed to be sold to the enemy, are contraband, being, as Sir W. Scott observed in The Richmond [d), most powerful instruments of mischief ; but [z] The Charlotte Fox, 5 Rob. 275. (a) L. R. 4 P. 0. 171. (J) Nostra Senora de Begona, 5 Rob. 99. (c) The Margaretha Magdalena, 2 Rob. 138. (rf) 5 Rob. 325. 172 Bej^ligeeent Rights against Neuteaxs. each of such cases calls for consideration in accordance with the particular circumstances. The Richmond w&b an American vessel well adapted for use as a ship of war, under a false destination, and with contrahand goods concealed on board, and with the avowed intention of sale to a belligerent. Sir W. Scott in condemning the vessel remarked that the malignant nature of such a purpose was not a little increased by the indecent levity with which the master expressed him- self, viz., that the vessel " would be seen playing round the East India Company's ships in the Bay of Bengal next season." In another case, a vessel (e) built in America and pierced to carry fourteen guns, and despatched to the Havana for sale, was condemned as contraband, though the master had been ordered, if he could not effect a sale, to ship a cargo by her. In two somewhat similar cases (/) the vessels, though in the first instance condemned in the Vice-Admiralty Court at the Bahamas, were on appeal ordered to be restored, they having been actually engaged in trade, and being of a more ambiguous construction. In a fourth case {g) the vessel was also restored, as it appeared that the purchaser, though he had bought her as a privateer, intended to employ her in trade, and had in fact done his best to fit her for such pur- pose. Mnding the vessel unsuitable, however, he was intend- ing to sell her agaiu when she was seized on the charge of being contraband. By a convention concluded between Great Britain and Russia in 1803, it was agreed that, in addition to other named articles, the following should be deemed contraband, viz., coined money, horses, and the necessary equipments of cavalry; aU naval stores, the produce of either country, to be subject to the right of pre-emption. {e) The Brutus, 5 Rob. App. I. (/) The Fanny, 24 March, 1804 ; The Neptune, 18 July, 1804. [g) The Eaven, 5 Bob. App. 1. Capture of Contraband of War. 173 Provisions. (In past times.) — These, though certainly coming withia the description of equivocal goods, have usually heen placed in a somewhat exceptional position. That there is nothiag of a contraband nature ia provisions per se is obvious, — or, rather, provisions are no more contraband than most other articles shipped for the common use of nations ia a state of peace. The early vn-iters are not unanimous on the subject of provisions, some considering them as generally contraband, others denying that this is so unless the goods are being carried to besieged places. Com, grain, and pro- visions of all sorts were declared contraband by Charles I. ia 1626. And Sir W. Scott, ia The Jonge Margaretha {h), stated that in 1673 it was expressly declared by a person of great knowledge and experience in the English Admiralty that, by its practice, com, wiae, and oil were liable to be deemed contraband ; and that in much later times many sorts of provisions, such as butter, salted fish, and rice, had been so con- demned. The learned judge proceeded to say that the modem established rule was that provisions were generally not con- traband ; but that they might, in special circimistances, become so. Circumstances specially mentioned were the nature and quality of the port of destination, and whether the goods were presumably intended for civil or for military use. Amongst the circtmistances tending to prevent condemnation was the fact that the goods were the growth of the country exporting them ; or that they were in a raw or unmanufactured state. But Sir "W. Scott subsequently abandoned the port-of- destination theory. Thus, in The Charlotte ii) he stated that the character of the port was immaterial ; since goods sent to a mercantile port might either be there applied to the use of privateers or conveyed to a port of naval equipment. In {h) 1 Rob. 192. (t) 5 Rob. 305. 174 Belligeeknt Rights against Neutrals. 1793 the British Grovernment instructed their cruisers to stop all vessels carrying corn, flour, or meal to any port in France, and to send them to a British port for pre-emption by the government. Or, as an alternative, the ships might be re- leased on the masters giving security that they would dispose of the cargo in the ports of some country in amity with Great Britain. This action was justified on the ground that the French G-ovemment had armed almost the whole of the labouring classes in France, and that in these circumsta,nces it was, by the modern law of nations, permissible to powers at war with that country to resort to the measure of cutting off all supplies of provisions. This reasoning was resisted by the neutral powers, Sweden, Denmark and, especially, the United States, which denied that the circumstances gave any such right of interference with the legitimate and ordinary trade of neutrals. In 1794 a treaty was drawn up between Great Britain and the United States specifying the goods to be deemed contraband as between the two nations. On the subject of provisions, it was provided that, " whereas the difficulty of agreeing on the precise cases in which alone pro- visions and other articles, not generally contraband, may be regarded as such renders it expedient to provide against the inconveniences and misunderstandings which might thence arise," it was agreed that such articles shotdd not be confis- cated, but should be paid for by the captors — ^the price paid to be the full value with a reasonable profit, the freight, and the demurrage incident to the detention. The subject of pre-emption versus confiscation in the case of provisions has from time to time been hotly debated, and it cannot.be said that any generally accepted conclusion has resulted as to the real position in which, by the law of nations, the matter stands. From time to time this country, acting on what it has maintained to be its rights under this law, has condemned various articles of food. Thus, cheese fit for Capture oi^ Contraband op War. 175 naval use and bomid to a port of naval equipment has been confiscated (A). In the two cases cited neither cargo was actually bound to a naval port, but both had destinations not far removed from such ports, and the question of the propinquity was in each case regarded by the Court as an element of importance in deciding as to the quality to be attributed to the cargo. In the case of The Ranger {I), ships' biscuits improperly shipped, under a proclamation permitting the carriage to Cadiz of provisions for the relief of famine, were condemned. Sir W. Scott remarking that such a ship- ment was a gross breach of privilege. A cargo of wine destined to Brest but under false papers to Embden was con- demned by the same judge. The wine was notoriously for naval use, and his lordship remarked that, in such a case, to ^PPly ^^ rule of pre-emption would be to show excessive and undue indulgence, especially as the vessel was sailing under a false destination (m). In this case it was pleaded that the wine, having been shipped at another port of the same country, viz., Bordeaux, could not be considered contraband ; but Sir W. Scott ruled that the transfer of contraband from one port to another in the same country was to be treated as an original importation. Barley and oats shipped from an enemy's port in a neutral vessel, and intended for the enemy's forces in another cotmtry, were, in The Commmxen (n), con- demned by the American Courts. Provisions, it was declared, might become contraband if intended for the use of the enemy's army or navy or destined for a port of naval equipment ; and if the growth of the enenjy's country, and destined for the use of its forces, were contraband, although bound for a neutral port. The circumstances in this case were peculiar, Ghreat (/c) The Vrow Margaretha, 6 Rob. 92 ; The Zelden Rust, ibid, 93. {1} 6 Rob. 126. {m) The Edward, i Rob. 68. («) 1 WJteaton, 382. 176 Belligerent Rights against Neuteals, Britain was at war with the United States, and also with IVance, and the stores in question were being carried by a Swedish vessel from Limerick to Bilboa, for the use of the allied forces in the Spanish peninsula. During the recent hostile relations between France and China the French Government announced its intention to treat rice bound for certain of the open China ports as contraband of war. The government stated that this resolve had been come to mainly in the belief that large quantities of rice were being forwarded to these ports, and that the stoppage of the supply would materially affect the Pekin government. The British ambassador in Pekin refused to recognise the right claimed by France. The home authori- ties, however, decided that the exercise of the right should not be opposed by physical force, and that its legality must be determined by the French prize courts, subject to ulterior diplomatic action. But the preliminaries of peace were shortly after settled, and no case of the kind appeal's to have occurred (o). Eice, as well as butter and salt fish, had been previously condemned as contraband in 1747 and 1748. Tobacco was on the occasion of a war between Spain and the States Greneral confiscated by the former on the ground that the article was rightly to be considered amongst victuals, since by its use the consumption of these might be prolonged. The English shippers of the tobacco in vain contended that -tobacco was not a nutritive plant, and in the result the King of England granted them letters of reprisal against the sub- jects of the King of Spain in order that they might so make good their loss {p). Goods of Equivocal Nature, including Provisions. (Nowadays.) — The precedents cited above relate for the most part to times (o) Pitt Cobbett's Leading Oases, p. 226. (p) Law of Nations, Twisa, 2nd ed. p. 249. Capture of Contraband of War. 177 when the conditions of naval warfare differed widely from those of the present day. ^n most eases, therefore, the con- clusions arrived at by the courts are now valuable rather as expositions of the principles by which the real quahty of equivocal goods is to be tested, than as fixing, once and for all, the character of the articles then submitted for adjudication. For it is easy to see that many articles which ia the days of wooden sailing vessels might be regarded as eminently capable of adaptation to warlike uses, must needs, in these times of iron steamships, be regarded from the opposite point of view : and contrariwise. In bygone days the equivocal goods declared to be contraband of war have been commonly, if not exclu- sively, naval stores, horses and harness, and provisions. As regards the former, tar, pitch, resin, tallow, planks, and copper sheathing were the commoa subjects of condemnation in eases where they were intended for a port of naval equipment; Nowadays they coiild scarcely be logically subjected to such a fate. Hemp, cordage, masts, and spars, although in a measure useful for iron vessels, are certainly more the attri- bute of those built of wood. Anchors and sailcloth are common necessaries, but it is not every anchor that will be useful to modern war-ships ; and of these vessels many are quite independent of sails. So that, owing to the modern conditions of warfare, articles formerly sternly seized and ruthlessly condemned, as partaking at least as much of the nature of warlike as of peaceful goods, may now, one might well believe, be allowed to rank with permissive goods, as pos- sessing few, if any, of the essentials of warlike stores. The recent Eussian list of contraband goods already set f orth (g') makes no mention, by name, of any of the articles just enumerated, and they would presumably no longer be held to (j) Page 166, supra. 178 Belligerent Rights against Neutkals, come witHn the general words " everything destined for military or naval forces." Horses, saddles, harness, and provender, if shipped in any considerahle quantity to a nation carrying on belligerent military operations, would probably he deemed at the present, as they have been in the past, military stores, and as such liable to confiscation. Peovisions stand on a peculiar footing, the law of nations not beiag so clearly defined in respect of these as could be wished. But, broadly stated, the position appears to be approximately this : — The right to cut off food supplies altogether, with a view to starve the foe into submission, has in certain circumstances been asserted on the part of some and denied by others. The right contended for, however, has not been to condemn as contraband, but to order off or to pre- empt. Food-stuffs in an unprepared state, such as grain or flour, though liable m certain cases to pre-emption, are more favourably regarded than if in a manufactured state ready for use. Supplies of a kind specially valuable for military or naval purposes, such as ships' biscuits or Dutch cheeses, may be condemned as contraband. Food supplies of whatever kind shipped to the enemy's forces, wherever stationed, would presumably occupy a similar position. At one time great weight was attached to the destination. Thus food supplies to a port of naval equipment would probably be condemned, whilst similar goods to a non-military port would be allowed to pass. But while the case as regards goods to military ports presumably remains unaltered, modem facilities of inland communication must be held to have disposed of the theory that supplies caxried to a mercantile port are to be regarded as ipso facto intended for mercantile uses. The prin- ciple embodied in the Declaration of Paris, that free ships make free goods, however, will, it may be supposed, be found in the Capture of Contraband of War. 179 future to have greatly narrowed the question of contrahand, — always supposing, that is, that this item of the treaty is destined to remain an accepted principle of modern naval warfare. Formerly, owing to the restricted inland communication between the continental states, each nation was compelled to import necessaries direct. The hostile destination of the ship stamped the cargo as enemy property, and such property was Hahle to seizure, even in neutral vessels. So long as the Declaration of Paris holds good, enemy property can be freely carried in neutral vessels. But still more important, owing to the present network of railways on the Continent, any continental power can effect its shipping through neigh- bouring neutral ports and in the names of neutrals, and it will usually be a comparatively simple matter to do the national marketing in adjacent countries. So that a belli- gerent continental power will in future be ordinarily under no such imperative necessity to trade through its own ports. Coal and modekn Waklike Stores and Appliances. — The articles which would appear to have taken the place of the hemp, pitch, cordage, sailcloth, and so forth, of former days, are Coal, Electric Wire and CaUes, Chain Cables, Wire Eopes, Hawsers, and Netting, Ships' Plates, Marine Engines, Boilers, Shafts, &c., Eire Bars, Iron Bars and Eivets, Cement, and the like. The chief of these is coal. Coal is to the steamship what sails and sailcloth are — or were — to the sailing vessel ; and if a naval power could be completely cut off from its fuel supplies, it is obvious that its fleet would be rendered useless. From this it follows that coal shipped to an enemy port may rightly be regarded as contraband of war. To an inquiry whether the Queen's proclamation of neutra- lity in 1859 contemplated coal as contraband, it was replied that "The prize court of the captor is the competent tribunal to decide whether coal is or is not contraband of war, and it N 2 180 Belligerent Rights against Neutrals. is obviously impossible for Her Majesty's G-ovemment as a neutral sovereign to anticipate the result of such decision. It appears, however, to Her Majesty's Grovemment that, having regard to the present state of naval armaments, coal may in many eases be rightly held to be contraband of war, and therefore that all who engage in the traffic must do so at a risk from which Her Majesty's Grovemment cannot relieve them"(?"). And early in 1854 the carriage of coals to an enemy port in the Black Sea was stopped owing to a minis- terial statement in the House of Commons that coals would be regarded by our cruisers as one of the articles ancipitis usus not necessarily contraband, but liable to detention iu circumstances warranting the suspicion that it was intended to apply the coals to the military or naval uses of the enemy. Pitt Cobbett, in his Leading Cases on International Law («), says : — "In 1859'and 1870 coal was declared by Prance not to be contraband. According to Calvo the greater number of secondary states have expressed themselves in a similar manner with reference to this. In 1870, during the Franco- Prussian war, Grreat Britain held that the character of coal depended upon its destination, and refused to permit vessels to sail with it to the French fleet in the North Sea. Germany remonstrated agaiast Grreat Britain's allowing its export under any circumstances" (^). It is impossible to forecast what view might prevail in the event of hostilities occurring in which the question became important, and was not pro- vided for by treaty ; but if a belligerent insisted on treating coal as contraband it woidd clearly be within his rights to do so. There might, however, be an exception to the exercise (r) Vide Kent's Intemat. La\r, 2 ed. 337 ; and Bulletins, I. X859, p. 1167. Vide also pp. 3S0-1, infra. (s) Se The Jonge Margaretha, pp. 224-7. (i!) See, also, the correspondence between Earl Granville and Count Bem- Storff, p. 350, infra. During the Franco- German war close restrictions on the sale of coal, by the national subjects, to belligerents were decreed by the United States and by Pern. (61 State Papers, pp. 665, 656-7.) Capture of Contkaband of War. 181 of the right in the case where a cargo of coals was shipped to a purely mercantile port with no presumption against its pacific use. Coal heing an article of daily use, to condemn it ahsolutely and in all cases might he an extreme measure. If at some future period petroleum or any other substance should take the place of coal as a steam or power-producing agent, such substance would doubtless be regarded as of an equivocal nature, and therefore subject to the rules governing equivocal articles generally. By an Order in Council of 18th February, 1854, issued in anticipation of declaration of war, the following were pro- hibited either to be exported from the United Kingdom or carried coastwise, viz. : — "All arms, ammunition and gunpowder, military and naval stores, and the following articles, being articles which We have judged capable of being converted into or made useful in increasing the quantity of military or naval stores; that is to say, " Marine engines, screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, fire bars, and every article (sic) or any other component part of an engine or boiler, or any article whatsoever which is, or can or may become, applicable for the manufacture of marine machinery" (m). This, it is true, is not a public declaration of contraband, but it is useful as throwing a strong light on the class of naval stores which were in 1854 deemed by the British Govemment subservient to warlike uses. Two months after this prohibition the restriction on trade which it imposed was modified by a proclamation permitting the export of such articles to certain countries named, including all the British (w) Bulletins, I. 1854, p. 198. 182 Belligerent Rights against Neutrals. colonies, on a bond being given that the prohibited articles ■would be landed and entered at the port of destination. Telegraph Cables and insulated wire suitable for sub- marine mining and other warlike uses would similarly be in danger of condemnation as articles of equivocal use especially subservient to warlike purposes. During the Franco-Prussian war of 1870, a vessel called The International {v), loaded with telegraph cables for Trance, was detained by the British authorities, on the ground that the contemplated shipment was contrary to the Foreign Enlistment Act {w) . It was, how- ever, shown that the undertaking for which the cables were required was of a purely commercial nature — a coastal sub- marine postal telegraph line — and the Court, setting aside the argument that the line when completed would equally sub- serve military purposes, ordered the vessel to be released. But as the Court was of opinion that the detention was, in the circumstances, warranted and justifiable, no order was made as to costs or damages. If inland telegraph wires should ever be condemned as subservient to military uses, railway materials would seem to stand on the same footing. There is not, and there can scarcely be formulated, a definite and comprehensive list of goods which are, and shall remain, confiscable as contraband of war, or which axe liable to be so regarded. The principle governing the question is, however, very clearly defined, and time and circumstances only can show what are the articles coming lawfully within its applica- tion. As an illustration of this proposition may be mentioned the instance of the raw bulls' hides used by Spain to cover the floating batteries which that country was at one time fitting (») L. E. 3 a. & E. 321. (w) Eor the Foreign Enlietment Act, vide p. 372, infra. Capture op Contraband of War. 183 out for the purposes of attack on the fortress of Gibraltar. It was known that hides were to he used as the chief article of defence in the attack, and there can be no doubt that ship- ments of such articles to Algeciras— the opposite side of the bay— would have been properly regarded as contraband of war (x). " The catalogue of contraband," said Sir W. Scott, in The Jonge Margarethal^y), "has varied very much, and sometimes in such a manner as to make it very difficult to assign the reason of the variations, owing to particular cir- cumstances, the history of which has not accompanied the history of the decisions." Any ships or vessels apparently intended to be devoted to warlike uses, or which might be regarded as specially adapted to such uses, would no doubt be regarded as of a contraband nature. It is obvious that, for purposes of transport especially, tug-boats and steam launches, their engines and appliances, might on occasion become highly necessary to a belligerent. Condition (1) — Subservience to "Warlike Uses — having now been dealt with, let us pass on to the consideration of condition (2), — (2) The Belligerent Destination. — Neutrals possess, as we have seen, the right to ship warlike stores as between them- selves, but they must not carry such articles to belligerents. It has by some been contended that this principle is to be literally applied, and that so long as warlike stores are shipped by a neutral to a neutral port they are absolutely free from beUigerent confiscation; the question whether the property has a belligerent destination beyond such neutral port being altogether irrelevant ; and that, while it must be admitted that belligerents have the right to visit and search, and, i£ need be, to carry into port for adjudication a neutral vessel {x) Ward's Essay on Contraband, 1801, p. 248. [y) 1 Rob. 192. 184 Belligerent Rights against Neutrals. whose aTerment of neutral destmation is mistrusted (z), on the facts proving to he as represented hj the neutral master the vessel must be at once restored and allowed to proceed without further molestation. " Goods going to a neutral port," said Six W. Scott, in The Imina (a), " cannot come under the description of contraband, all goods going there being equally lawful." But this description, with other expressions which fell from the learned judge in the same case, seem scarcely, when viewed by the context, to support the con- clusion that, because the port of destination is neutral, a belligerent is ipso facto precluded from seizing the warlike articles. In the above case the facts were as follows :^A neutral vessel, bound from Dantzic to Amsterdam, was seized and brought in for carrying, as was alleged, warlike stores to an enemy port. But, as it proved, at the time of the capture the vessel was bound to the neutral port of Embden. For, on arriving at Elsinore, her master learnt that Amsterdam had been declared to be blockaded ; whereupon he altered his course. Captors contended, however, that the original inten- tion to proceed to Amsterdam with prohibited goods should be held to fix the voyage, and that the incident that the destination was subseqiiently altered was immaterial. But the learned judge rejected this contention. It was true, he said, that if the capture had taken place before the varia- tion the original intention would have subjected the pro- perty to confiscation ; but inasmuch as the variation had taken place before the capture, there was then no corpus delicti. It must be remembered that this was the point which the Court had to decide, and neither the decision nor observations leading to it should consequently be re- garded as supporting the proposition that all goods going to a neutral port are ipso facto free from seizure. Sir (s) Vide p. 154, supra. (a) 3 Rob. 167. Capture op Contraband of War. 185 W. Scott's decisions on the subject of what are called Con- tinuous Voyages- (S) clearly show that his lordship by no means regarded the fact of an immediate neutral destination as of such sanctity as to preclude all question as to an ulterior destination towards which the neutral port might be but a first step. In the United States Courts it has been decided that the test of whether warHte articles are contraband is not solely whether they are being shipped to a neutral port, but whether they are intended for the enemy's use. The Stephen Hart (c) was the case of a neutral vessel captured by a Federal cruiser about twenty-five miles from Key West, Florida. She had on board a cargo of arms, ammunition, &c., loaded in England for Cardenas (Cuba), and the captors contended that it was contemplated to introduce these goods into the enemy's territory by breach of blockade ; and they argued that if this was so, the mere fact that the vessel was neutral, and bound from one neutral port to another, would not avail as a defence against condemnation; and that if the goods were really intended for the enemy's use it was immaterial whether they were carried direct to a belligerent port or were first landed at Cardenas. In the result the cargo and — the master's conduct having been found to be fraudulent — the ship were both condemned, the Court observing that the continuous trans- portation of contraband goods into several intermediate voyages cannot in such cases make any part of the entire transportation a lawful transport ; and that such voyages are not to be regarded as separate and distinct, but part of one unit, forming one entire transaction. " In order to constitute the unlawfulness of the transportation of contraband goods," said the Court, "it is not necessary that the immediate destination of the vessel and cargo should be to/ an enemy's {b) As to -which vide pp. 236—240, notably The Thomyris, p. 238, infra. (c) Mar. Law Ca., 2 vol. 73 ; Blatch. Pr. Ca. 387. Vide also The Bermuda, 3 Wall. 551 ; The Commereen, 1 Wheat. Bep. 388. 186 Belligerent Rights against Neutrals. country or port ; for if the goods are contraband, and destined to the direct nse of the enemy's army or navy, the transporta- tion is illegal. . . . The proper test to he applied is, whether the contrahand goods are intended for sale or consumption in the neutral market, or whether the direct and intended ohject of their transportation is to supply the enemy with them." The Springbok (d) was a very similar case. The vessel was hound from London to Nassau, N. P. (Bahamas), with a mixed cargo, partly warlike, partly innocent, but all the pro- perty of one owner. It appeared that the intention was to tranship the goods at Nassau and thence to run the blockade of the Confederate ports. The whole cargo was condemned, the Court affirming the principles declared in The 8tephenHart; but the vessel was ultimately restored, on the ground that therb was not sufficient ^roof that her owners knew that the ultimate destination of the cargo was a blockaded port. Finally there occurred the case of The Peter hoff (e), which is especially interesting owing to the litigation which ensued in England in respect of policies of insurance granted on the cargo ; to which proceedings reference will be made presently. The warlike stores were, in this case, shipped to the Mexican port of Matamoras, situated up the Bio Grande, forty miles from its mouth. The Eio Ghrande divides Texas from Mexico, Matamoras and the Texan town of Brownsville being on opposite sides of the river, at that part about sixty yards wide. The mouth of this river was not included in the general blockade of the Confederate ports, and it was found by the United States Courts that the obnoxious goods were intended to be carried to the enemy by means of lighters. The whole cargo and the ship were, in the first iristance, con- demned, all the claimants of the cargo having some more or [d) BUtch.Fr. Ga. 434; 6 Wall. 1. (e) Blatoh. Pr. Ca. 463 ; 5 Wall. 28. Captuee OF Contraband OP War. 187 less obnoxious goods on board, and the master being found guilty of fraudulent conduct in various respects. As wiU. presently appear, the ship and a portion of the cargo were restored on appeal to the Supreme Court, but the Court con- firmed the confiscation of the distinctly warlike articles intended to be delivered to the enemy. The above decisions make it abundantly clear that the American view of the law of nations in respect of contraband is that the point to be looked at is the tdterior destination of the warlike articles ; and that from this issue the captors are not to be diverted by arguments based on the incident that the property, when seized, was in the course of transit to a neutral port. It is easy to see that the application of this principle may be, iu some cases, attended by substantial difficulties, as, for instance, i£ the obnoxious goods are prim& facie shipped to what may be reasonably or plausibly alleged to be a neutral market, but it is, notwithstanding, contended by the captors that the intention was to carry the goods to the enemy via the neutral territory. But if the abstract priQciple be correct, the circumstance that it may occasionally be difficult of application is not to be allowed to interfere with its acceptance. That the principle as declared in the United States Courts is correct, and that it is also accepted in this country, is to be concluded from a consideration of the two suits which arose out of The PeterhoJ' seizure, viz., Hobbs v. Henning, and Seytnour v. London and Provincial Insurance Co., referred to under the head Insurance below. A neutral vessel carryiag contraband of war must on no account touch at an enemy's port (/). Nor, as was esta- blished by The Edtcard {g), must contraband goods be coasted from a belligerent commercial port to a port of naval equip- ment in the same country. (/) The Trende Sostre, 6 Rob. 387. (g) Page 175, supra. 188 Belligerent Rights against Neutrals. (The subject of Continuous Voyages is considered in con- nexion with the offence of Engaging in the Privileged Trade of the Enemy, pp. 236—240, infra.) Application of the Penalty of Confiscation. — It has already been remarked (/) that neutrals are within their strict rights in shipping contraband of war to belligerents ; but that the exercise of such right is attended by the concurrent belli- gerent right of seiijure and confiscation of the prohibited goods ; though, in the case of ordinary provisions, the latter right is now usually softened down to that of pre-emption. The law of nations, rigorously applied, would appear to admit the principle that vessels engaged in contraband trade are themselves, as well as the contraband goods, liable to confisca- tion ((/) ; and the Russian Grovernment, in 1854, by proclama- tion adopted this principle. The milder rule of limiting the penalty of confiscation to the obnoxious article carried, to- gether with any freight due to the ship in respect of it, may, however, be regarded as the rule now generally accepted. In cases where the right has been exercised of seizing enemy goods on board a neutral vessel, it has been usual to allow freight to the neutral vessel ; but it is otherwise in the case of contraband articles carried by neutrals {h). Neutral owners must be made to feel that, though the ship herself may be released, to engage in the carriage of prohibited goods is still attended by the substantial disadvantages of loss of freight (where it has not been paid in advance), of time, and expenses. But if the condemnation of the goods, and the consequent confiscation of the freight, be due to deceit on the part of the shippers, the master may proceed against them for compensa- (/) Page 160, supra. (g) Vide 1 Rob. 288, note. [h] The Merourius, 1 Rob. 288. Capture of Contraband of War, 189 tion («'). If the captain be found guilty of carrying false papers, or of similar misconduct calculated to defeat the rights of a belligerent, the ship wiU be involved in the fate of the cargo (y). The offence of carrying false papers, and of simulating or destroying papers, will be considered presently per se (k). Where the ship belongs to the owner of contraband cargo, both are liable to condemnation ; and the same principle has been held to apply where contraband goods appeared by the ship's papers to belong to a part-owner of the ship (l). The rule is that contraband contamiaates any other property in the same vessel belonging to the owner of the contraband (m) ; but the application of this priuciple is, of course, subject to modification by treaty. Similarly, if contraband goods are carried ia breach of special treaty engagements, the vessel may be condemned as well as the cargo (n). By the practice of the French prize courts both ship and cargo will be forfeited en bloc if three-fourths of the entire cargo consist of contra- band. An innocent shipper and iusurer of permissive goods is not to be held responsible for the shipment of contraband by other parties (o) . If the master carry contraband he will not be heard to aver ignorance of the contents of the objectionable packages (p) ; nor is it open to the owner of the vessel to aver ignorance of the master's act or that he acted contrary to orders ; for the act of the master biuds the owner {q). In former times the (») The Emanuel, 1 Rob. 296. (J) The Franklin, 3 Rob. 217 ; The Edward, 4 U. 68 ; The Ranger, 6 ib. 125. (A) Infra, p. 219. (?) The Jonge Tobias, 1 Rob. 329 ; The Springhok ; The Feterhoff, infra. (m) The Staadt Embden, 1 Rob. 26 ; The Springhok, Blateh. Pr. Ca. 434 ; The Feterhoff, ib. 464. [n] The Neutralitet, 3 Rob. 296. (o) Hobbs V. Henning, 34 L. J. C. P. 121. {p) The Springbok, Blateh. Fr. Ca. 434 ; The Feterhoff, ib. 463. \q) The Imina, 3 Rob. 167. 190 Belligerent Rights against Neutrals, offence of cairying oontralband to tlie enemy was not purged by successful delivery : the ship remained liahle to confisca- tion on the homeward voyage. Nowadays, however, the vessel herself is not in ordinary cases held liahle to con- fiscation; and, as ohserved by Sir "W. Scott ia The Imina (r), " under the present understanding of the law of nations you cannot generally take the proceeds in the return voyage. . . . If the goods are not taken in delicto and iu the actual prose- cution (of the intention) the penalty is not now generally held to attach." But where there has heen misconduct on the part of the master, such as concealment of the contraband goods ; or the use of papers showing a false destination ; the vessel has been condemned on the return voyage, and not only the vessel, but her cargo also, though the latter was not purchased with the proceeds of the contraband goods (.s). The soundness of these last decisions is questioned by Wheaton, who disputes the right to inflict a penalty when the offence no longer continues, arguing that if the offence is to be held to survive after termination of the actual delictum, it should logically be held to survive indefinitely, and not only for the return voyage. His opinion on this point is in accord with the priaciples laid down by the King's Advocate, Sir E. Wiseman, so far back as 1672. Summary. — To constitute any article contraband of war two essential conditions must be fulfilled, viz. (I) the article must be adapted for warlike purposes, and (2) it must be destined for belligerent use. The circumstance that the ship is bound to a neutral port is strong presumptive evidence that the article is bond fide intended for neutral use. This presumption (r) 3 Rob. 167. («) The Margaret, 1 Act. 335 ; The Rosalie and Betty, 2 Rob. 343 ; The Nancy, 3 Rob. 122. Captuee of Contraband of "Wae. 191 may, however, be rebutted by the captor ; but no mere unsup- ported allegation of a bare intention to deliver to the enemy win justify condemnation. The sole judge of the sufficiency of evidence, however, is in all cases the prize court of the captors. The fact that goods are not contraband of war will not necessarily ensure that they shall not be captured and brought m for adjudication. If, on restoration, the bringing- iu be attributed to the fault of the shipmaster, he may be called upon to pay compensation to the captors. On the other hand, if the capture prove unwarrantable, damages maybe awarded against captors. If the goods be condemned as con- traband, the master cannot claim freight from the captors. If he be guilty of fraud or misconduct, the ship may be forfeited. All articles of an essentially warlike quality are distiactly liable to confiscation if destined for belligerent use. Goods of a purely peaceful quality may be freely carried to belli- gerent ports not blockaded. Articles of an equivocal nature have to be considered on their merits, by the light of the facts as ascertained. It is, in short, less the goods than the disposition with which the goods are regarded. If presum- ably intended for warlike purposes they will probably be condemned; if for peaceful purposes, restored. The sole judge of the probable use is the capturing belligerent. His right it is also, by common consent, to say what goods are contraband and what are not, and there is no appeal against his decision. But of course if, in so deciding, he should act in a high-handed and grossly unreasonable manner, he would expose himselE to the hostility of neutral powers. The decisions of former days, on the subject of contraband, ^are valuable as exemplifying the principles on which prize courts proceed ; but as regards the articles themselves, which called forth these decisions, the latter are at the present day worth, for the most part, very little. This is more especially the case in respect of the articles destined for maritime uses in 192 Belligerent Rights against Neutrals. the days when ships were built of timber, carried masts and spars of the same material, were rigged with hempen rope, and depended on canvas for their propulsion. All this is now changed. The articles which will in the future be regarded as equivocal, only the future can show. All that can be confi- dently affirmed on this point is that a belligerent will almost certainly regard as contraband any goods shipped to the enemy which may strengthen the hand of the latter for war. What these articles are likely to be is a question to which the answer must meantime be provided by the common sense and practical judgment of the enquirer ; there is no authority to which to appeal for definite information on the subject; Many, possibly most, of the articles likely to be regarded, either absolutely or in certain circumstances, as contraband of war, have been suggested above ; but on the pinch of war no doubt the list will be supplemented. As regards provisions, they stand in an exceptional position. If made up into a form specially suitable for warlike purposes, they are likely to be condemned. So, also, with stores appa- rently destined for the use of forces in the field. Foodstuffs not made up, such as wheat and flour, are not likely to be condemned, unless in face of a strong presumption in favour of their warlike use. They may be ordered o£E from the belligerent coast, or they may be pre-empted. Generally, the tendency is rather to pre-empt than to confiscate pro- visions, except in the cases just indicated. Finally, it may be observed that if the owner of permissive goods ship with them any contraband of war, or if the owner of the contraband be also owner of the vessel, the taint of the contraband wiU be held to permeate all the property captured belonging to the same owner, and the whole wUl be subjected to the same fate. It seems improbable that the question of contrabandj in any European war, will assume in the future the prominence Capture of Contraband of War. 193 whioli it occupied ia the past. A iDelligerent is not likely to import contraband of war, at the risk of capture, if he can procure it in a neighhouring neutral market ; and owing to the facilities now afPorded by railway communication, this will doubtless frequently be found a matter of no great difficulty. Insurance. With, respect to the insurance of contraband, there being, as we have seen, nothing unlawful, in the strict sense of the word, in the shipment of such articles by neutrals, there is nothing unlawful in their insurance. It is, however, within the right of a neutral government to prohibit the shipment of contraband to belligerents (m) ; and such a prohibition by this country would nullify, even if it did not in terms proscribe, any insurance of goods shipped contrary to it. But in the case of a lawful insur- ance, in order to secure enforcement of the contract it would have to be shown that the underwriter had either express or implied knowledge of the material facts at the time he accepted the risk (v). In the case of a belligerent country, all unlicensed trade with the enemy being prohibited, any insurances in pro- tection of such trade would naturally be illegal. And any insurance of contraband in the country of the hostile belligerent, though the articles insured have been shipped by neutrals, would be incapable of being enforced (a;) ; as, for example, if Grreat Britain were at war with France, and it was proposed to insure in England contraband goods carried by a neutral vessel from Kussia to France. In the United States it was held, in 1797 (y), that under an (m) Vide as to tHs p. 350, infra. {v) The Santissima Trinidad, 7 Wheat. 283 ; Ex parte Ohavasse, In re Graze- brooke, 34 L. J. Bank. 17. {x) Amould, Stt ed. p. 699. (y) Seton v. Low, 1 Johns. Cases, 1, confirmed by Juhel v. SMnelander, 2 John. 120, 487 {an. 1802). O. 194 Belligerent Rights against Neutrals, insurance on "all kinds of neutral goods," articles contraband of war may be comprised, and that all goods are lawful which are not prohibited by the positive law of the country to which the vessel belongs : further, that the insured are not bound to dis- close to the underwriter that the goods are contraband of war, seeing that it is lawful for neutrals to ship contraband of war, and that the underwriter must be presumed to know that the neutral trade is very likely to consist of the same kind of articles during war as in times of peace. But it has since beeii decided in the British Courts, in Ex parte Chavasse, In re Grazelrooh {%), that an insurance on contraband of war is a good insurance provided the underwriter was informed of the nature of the risk which he was undertaking, or if the circumstances were such that he might reasonably be presumed to be acquainted with the nature of the trade engaged in. Two cases arising out of the seizure of the steamer Peterhoff axe especially interesting in this connexion. It has already been mentioned that The Peterhoff was a neutral vessel carrying a cargo largely consisting of warlike or equivocal articles to the neutral port of Matamoras on the Eio Grande. Matamoras was separated from the Confederate town of Brownsville by merely a narrow stream. It came out that a packet containing papers had, in accordance with the previous instructions of the master, been thrown overboard on seizure of the vessel, and that other papers had been burnt. It was moreover averred that part of the cargo was intended to be lightered into Texas, and part to be offered in the market at Matamoras. Of the alleged contra- band articles, some were distinctly for military purposes, whUst others, such as boots, horse-shoes, sapping tools, drugs, blankets, &c., would be available for similar uses. The ownership of the cargo appears to have been vested in but a few persons, and it was found that the goods of all the claimants consisted more or less of contraband articles ; also, that the owner of the vessel was himself a shipper of contraband cargo. The vessel, which had been captured by a Federal cruiser off St. Thomas, was, with her cargo, declared to be confiscated. («) 34 L. J. Bank. 17, and p. 403, infra. Vide also Hobbs v. Henning, p. 404, infra. Capture of Contkaband of Wae. — Ins. 195 It was clearly recognised by the United States Courts that a neutral vessel, laden -with a neutral cargo, may la-wfully trade between neutral ports in time of war, in all descriptions of merchandise, whether warlike or otherwise (a) ; and that no, articles alleged to be contraband can be so imless they are going to a belligerent (5). On the other hand, it was stated to be equally well settled that the ulterior destination of warlike goods determines the character of the trade, and that a trade in such goods with the enemy's country, through neutral territory, is unlawful ; numerous authorities, British and American, being cited in support of this doctrine (c). With respect to the actual destination of the warlike goods, the Court observed that there was no army or navy in Mexico at or near Matamoras to be supplied, and that there could have been no demand in Mexico for the large quantity of the other articles found on board the vessel. To sum. up, the learned judge was "led to the conclusion, upon all the evidence, that The Peterhoff, when captured, though ostensibly on a voyage from London to neutral waters at the mouth of the Eio Gbrande, was laden with a cargo composed largely of articles contraband of war, which were not designed, on their departure from England, to be sold or disposed of in the neutral market of Matamoras, but were designed to be delivered either directly or indirectly, by transhipment, in the country of the enemy, and for the use of the enemy" {d). "It was not credible that there was a design, in good faith, to sell and dispose of the cargo in the market of Matamoras " (e). In these circumstances the cargo was condemned en Hoc. The ship was likewise condemned, the owner being also an owner of contraband articles, and the master having destroyed and con- cealed certaiu papers and prevaricated generally. The foregoing is a summary of the main features of this important case, tried by the U. S. District Court in July, 1863, as set forth at great length in Blatchford's Eeports of Cases in Prize, 1861-65. This judgment was subsequently reversed, as [a) Blatoh. Pr. Ca. at p. 506. \h) lb. at p. 528. (c) B. at p. 508. [d) Ih. at p. 633. («) Ih. at p. 541. o2 196 Belligeeent Rights against Neutrals, regards the ship and part of the cargo, hut it is necessary to hear the first judgment in mind, because when Hobbs's case, to be presently considered, came before the British Courts, The Peierhoff appeal had not come before the Supreme Court of the United States. Hobhs V. Henning (November, 1864, and January, 1865) (/), was a case arising out of the above seizure. There had been no special warranty of no-contraband, but the underwriters dis- claimed liability, relying mainly on the pleas (1) of concealment of material fact, and (2) of misdescription of the voyage insured. The latter defence was based on the decision of the United States Coui't that the real voyage was in fact to a belligerent and not to a neutral destination. Judgment was, however, given for the plaintiff, the Court deciding (I) that the goods were not contra- band of war, and consequently that there had been no conceal- ment; and (2) that the judgment of the United States Court was not intended to express that the ship's voyage was not as alleged by the master, but that the alleged destination of the cargo was false. The decision that the goods were not contraband was directly opposed to that of the United States District Court, which con- demned them for being contraband; and this case has been cited as evidence of a divergence of views, on the subject of contraband, between the Courts of this country and of the United States. But a careful examination of the decision in the British Court seems to establish that the difference between the decisions of the two Courts was one entirely as to the facts, and not as to the principle. The United States District Court held, as to the whole of the cargo, that it was not intended to be sold at Matamoras, but that it was really destined for delivery in Con- federate territory. In Seymour^s case, infra, the British Court held that this view of the facts, so far as the particular goods were concerned, was correct, for a contract existed under which delivery was to be made to the Confederate Government. But in Hobbs's case no evidence was adduced of any such arrange- ment, and the British Court held that the goods insured were (/) 17 C. B. 818 ; 34 L. J. C. P. 117. Capture of Contraband of War. — Ins. 197 intended to be sold at the neutral port, and that they were there- fore not contraband, and were wrongfully condemned as such. "The allegation," said the Court, "that the goods were shipped for the purpose of being sent to an enemy's port is an allegation of a mental process only. We are not to assume either that the plaintiff had made any contract or provided any means for the further transmission of the goods into the enemy's state, or that the shipment to Matamoras was an unreal pretence. If the goods were in a course of transmission, not to Matamoras, but to an enemy's port, the voyage would not be covered by the policy." In the view of the Court {g), the assured must be taken to have known of the good demand at Matamoras, and to have shipped to that port in the expectation of a profitable sale there to pur- chasers on behalf of the Confederate States ; but that a price was the sole object in view, and that he was indifferent whether the sale were to Confederate or Federal purchasers ; and that in a neutral territory he might lawfully sell to either : therefore that the plea was bad (as to intention) ; for, there being no wan-anty against contraband, it was necessary to show that the goods were contraband of war, and, as such, liable to be seized by the Federal Government : the averment of the intention that the goods should go to the Confederate States did not indicate that the goods were bound to go there, and therefore that the plea (j. e., in effect, of concealment) was insufiicient. (It was con- sidered by the Court that the plea of contraband of war was intended to be a defence on the ground of concealment by the plaintiff of a material fact.) In the opinion of the Court the seizure by the Federal Government was, on the facts, so far as concerned the plaintiff's property, unlawful. But the insurance was against capture, lawful and unlawful, and the defendant, said the Court, in order to discharge himself, must show con- cealment by the assured. The further allegation that the ship was carrying goods and papers which involved liability to seizure, was held to be immaterial as a ground of defence ; for these goods were not alleged to be plaintiff's goods, and the plaintiff was not shown to be responsible for the ship's papers, nor for any other goods than his own. {g) So understood in Seymour's case, infra, 41 L. J. C. P. 193. 198 BELtlGEEENT RiGHTS AGAINST NeUTEALS. This decision was, as lias been said, arrived at in 1864-5, and the American judgment in The Peterhoff, on appeal to the Supreme Ooui-t in 1866, amply establishes the justice of the conclusions of the British Court in Hohhs's case. Further, it goes to show that there is no difierence of opinion between the Courts of this country and of the TJnited States as to the principles by which the question of alleged contraband is to be tested. That the District Court had wrongly interpreted the facts in The Peterhoff case appears from the subsequent judgment of the Supreme Court (A). Said the Court: " The evidence in the record satisfies us that the voyage of The Peterhoff was not simulated. . . . Nor have we been able to find anything in the record which fairly warrants a belief that the cargo had any other direct destination We dismiss, therefore, from consideration the claim, suggested rather than urged, on behalf of the Government, that the ship and cargo, both or either, were destined for the blockaded coast." With respect to the permissive or innocent goods, the Court thought it a "fair conclusion from the whole evidence, that the cargo was intended to be disposed of in Mexico or Texas as might be found most convenient and profitable to the owners and consignees ; " and that the destination in this case became specially important only in connexion with the question of the goods of a contraband nature. With respect to the equivocal goods, they had not been proved to have been actually destined to belligerent use, and they could not therefore be treated as contraband. The articles held to be contraband were artillery harness, military boots, and regulation blankets. These, said the Court, came fairly within the description of goods primarily and ordinarily used for military purposes in time of war, and made part of the necessary equipment of an army. If really intended for sale in the market at Matamoras, even these goods would have been free from liability, but all the circumstances indicated that these articles at least were destined for the use of the rebel forces then occupying Brownsville and other places in the vicinity, notwithstanding that they were primarily destined for Matamoras. This portion of the cargo was therefore con- [h) 5 Wall. 28. Capture of Contraband op War. — Ins. 199 demned, and with it any part of the cargo belonging to the owner of the same goods. As regards the ship, although the conduct of the master had been inconsistent with the frankness and good faith due from neutrals in such circumstances, yet, in face of the fact of the almost certain destination of the ship to a neutral port with a cargo for the most part neutral in character and destination, the Court decreed restitution on payment of costs and expenses. This judgment, both for its searching and impartial examina- tion of the facts and for its able and exhaustive review of the law, well repays perusal. The final judgment of the United States Court in The Peterhoff and of the British Courts in Hobhs V. Henning must be considered to set at rest, once and for all, the principles to be followed in deciding questions of contraband of war : as to which principles there woidd appear to be no difference of opinion between the government of this country and that of the United States. In Seymour v. London and Provincial Insurance Co. («'), an insurance had been effected in London on goods per Peterhoff from London to Matamoras, " "Warranted no contraband of war." The goods having been confiscated as above stated, the underwriters repudiated liability on the ground of misrepresenta- tion and breach of warranty. This refusal was justified by the Court, by which it was held that the goods were iatended from the beginning to go to Matamoras, not to be disposed of there as part of the merchandise of such port, but for the purpose of being transhipped across the Eio Grande, to be delivered to the Confederate Government under contract. This decision, which was on all fours with the finding of the American Court, was subsequently confirmed, the Court thinking that the special facts of the particular case clearly showed, first, that the artUlery harness was destined to a belligerent state for belligerent ptirposes, and so, as was admitted, "in such case contraband" ; ■and, secondly, that there had been a concealment of this material fact (A). (j) 41 L. J. 0. P. 193. {k) 42 L. J. C. P. Ill, «o!;. 200 Belligerent Rights against Neutrals. As the ownership of goods partly contraband and partly per- missive taints the whole with the vice of contraband, in the case of an insurance on the permissive portion of such mixed goods, or on a neutral ship carrying contraband goods belonging to her owner, the underwriter must be either explicitly or impliedly informed of the circumstances. Otherwise, as intimated above, the insurance may be held void on the ground of conceal- ment (Z). But it is to be deduced frofli Hobbs's case, supra, that the circumstance that a Court of the alien captors has condemned property as contraband of war will not necessarily debar the assured from pleading in the Courts of this country that the condemnation was bad under the law of nations ; and that it is not de facto a defence to a claim on the underwriters under a policy warranting no contraband (»»). The carriage by neutrals to a 'belligerent of all articles subservient to warlike uses being by the common law of nations attended by the liability to confiscation of the obnoxious cargo, it naturally follows that the transport of the enemy's troops and conveyance of his despatches will be at least as strictly prohibited. This subject we will now consider. (?) Arnould, 6th ed. p. 636, reads as fpUows :— "As carrying contraband articles entails the confiscation of aU property on hoard the neutral ship belonging to the same owner, it would clearly amount to a breach of the warranty of neutrality as to such property. "With regard to the ship and such portion of the cargo as belongs to different owners, it wiH only produce such a result when the circumstances of criminaUty are such as involve both ship and cargo in one common penalty ; as where they show that the shipowner and the other freighters were cognizant of, and concerned in, the contraband trading." But seeing that contraband of war may be directly shipped and insured without being so described in the poUcy, and yet without violating the neutral warranty, it is by no means obvious why any violation of neutral warranty should ensue in such circumstances as the above. Vide sub War Warranties, p. 387, infra. («j) Eor examples of clauses expressly excluding risks arising from car- riage of contraband of war, vide p. 124, siipra. ( 201 ) Capture and Confiscation of PEOPEETY ENGAGED IN Carrying Despatches or Military Persons of THE Enemy. The transport of hostile despatches, or of military persons in the service of the enemy, is regarded as a heinous offence against the law of nations. The injury likely to result from the carriage of a cargo of contraband articles is necessarily of a limited nature ; but the transport of hostile despatches may affect perhaps the whole plan of campaign : while the presence of military persons with the forces of the enemy may indefinitely iacrease his powers of conducting warlike operations. What are Despatches. — "The carriage of despatches," said Sir W. Scott, in The Atalanta (a), " is a service which, in whatever degree it exists, can only be considered in one character — as an act of the most noxious and hostile nature." " Despatches," observed the same learned judge, in The Caroline (b), " are all official communications of official per- sons on the public affairs of the government. The com- parative importance of the particular papers," his lordship added, " is immaterial, since the Court wiU not construct a scale of relative importance, which, in fact, it has not the means of doing with any degree of accuracy or with satis- faction to itself ; it is sufficient that they relate to the public business of the enemy, be it great or small The true (a) 6 Bob. 440. {i) 6 Rob. 464. 202 Belligerent Rights against Neutrals. criterion ■will he, are they on the public business of the state and passing between public persons for the public service ? " The conveyance of the despatches of an ambassador resident in a neutral country is, however, an exception to this rule. Despatches carried from the mother country to her colonies or foreign possessions are distinctly prohibited, a belligerent having the right to assume that such despatches are hostile to himself, inasmuch as they relate to the security of the enemy's possessions ; but neutrals have a right to preserve their relations ■with the enemy, and no such presumption of hostility exists in the case of despatches of or to ambassadors resident in a neutral country, for the purpose of preser-ving friendly relations be- tween the neutral state and that of the belligerent power to which such ambassadors owe allegiance. Confidence must needs be placed in the integrity of the neutral state ; and persons discharging the functions of ambassadors are pecu- liarly objects of the protection and favour of the law of nations (c). This principle was, in The Maddison (d), held equally to apply to the carrying of despatches to a consul of the enemy resident in a neutral country. And, clearly, all papers found on board a neutral vessel sailing to or from a belligerent port, although of a public nature and relatiag to public affairs, will not of necessity be of a contraband quality ; for if the person to whom they are committed be a neutral and not invested with a public character they are not despatches, nor is the carriage of them an offence (e). If a neutral vessel carryiag despatches from the enemy to a de- pendency be seized on the voyage, but the dependency have meantime ceased to be a colony of the enemy, this circum- stance will absolve the vessel from confiscation (/) . (c) The Caroline, 6 Rob. 464. \d) Ed-w. 224. {e) The Rapid, Edw. 228. (/) The Trendre Sostre, 6 Rob. 457. Oaerying Despatches, &c. : confiscation. 203 In tlie familiar case of The Trent (g), commonly known at tlie time of the occurrence as tlie Mason and Slidell affair, the United States Government sought to establish the claim to an extreme exercise of helligerent rights in respect of the car- riage by neutrals of hostile despatches and military persons. The case, shortly stated, is as follows : — The Trent was a British mail steamer bound from Havannah to England with mails and passengers. Amongst the latter were the per- sons named, proceeding as envoys from the Confederate States to Great Britain and Prance. When about nine miles from the coast of Cuba the vessel was approached by the United States cruiser San Jacinto, which fired a round shot in a direc- tion obviously divergent from the course of The Trent, and shortly afterwards discharged a shell across her bows, the missile exploding half a cable's length from the steamer. A naval officer from the cruiser then boarded the steamer and demanded that Messrs. Mason and Slidell, with their two secretaries, should be given up. The officers of The Trent protested against the action of the cruiser, but ultimately, on a show of force being made, the persons indicated were ■allowed to be transferred to the cruiser, and they were subsequently imprisoned in a military fortress. The mail steamer proceeded on her voyage, and, on the facts becoming known in England, a demand was made to the United States Government for restoration of the prisoners and a suitable apology. In this demand the British Government was sup- ported by France, Austria, Prussia, Italy, and Eussia. It was •urgently complained that this arbitrary act of the United States Government, in seizing non-combatants travelling under the protection of a neutral flag and bound to a neutral state, was unjustifiable and a breach of the common law of nations. The main contention of the captors in support of their illegal Pari. Papers, 1862, Vol. LXII. 204 Belligeeent Rights against Neuteals. action was, that the persons seized, and the despatches which they were helieved to be carrying, were contraband of war, and therefore liable to seizure. It was not, however, at- tempted to justify the mode in which the alleged right of seizure had been exercised, and it was practically admitted that the steamer should properly have been brought into a United States port for adjudication. To the above contention it was replied, that whatever may be the law as regards naval and military persons, no single Admiralty decision, and no single expression on the part of any international jurist, could be cited in support of the argument that ambassadors or public officers, non-combatants, are liable to be regarded as contra- band of war ; and that in any case these persons were bound to a neutral destination. Further, that as to the despatches, neutral states have a perfect right to maiatain friendly relations with belligerents; and that these despatches were under protection of the neutral flag and bound to a neutral destination. Ultimately the persons seized were released and allowed to proceed to their destination in a British vessel. The interesting and important arguments arising out of this case are discussed at length in Kent's International Law, 2nd ed. pp. 357—364. Who are Military Persons. — By naval and military persons is meant persons competent to take an active part in the prose- cution of hostilities. Ambassadors or public persons holding civil appointments apparently do not, as we have seen above, come within this category, though an observation of Sir W. Scott, in The Orozembo, to be referred to presently (^), intimates a different conclusion. " As to the number of military persons necessary to subject the vessel to confiscation, it is difficult to decide ; since fewer persons of high quality and character may ig) Vide p. 210, infra. Cakeying Despatches, &c. : confiscation, 205 be of mucH more importance than a much greater numher of persons of lower condition. To carry a veteran general, under some circumstances, might be a much more noxious act than the conYsyance of a whole regiment" {h). Mail Packets: Public Vessels.— In Wheaton's International Law (?) the editor expresses the opinion that " the carrying of despatches can only invest a neutral vessel with a hostile character in the case of its being employed for that purpose by the belligerent, and that it cannot affect with criminality either a regular postal packet or a merchant ship, which takes a despatch in its ordinary course of conveying letters, and of the contents of which the master must necessarily be ignorant. This view, it is supposed, is not inconsistent with the text, which refers to a fraudulent carrying of the despatches of the enemy. Since the former European wars some governments have established regular postal packets, whose mails, by international conventions, are distributed throughout the civilized world; whilst in other countries every merchant vessel is obliged to receive tiU the moment of its setting sail, not only the despatches of the government, but all letters sent to it from the post-offices." International conventions or not, it may surely be safely assumed that the general introduction of the postal system, and the consequent institution of mail steamers, have practically extinguished the old right of confiscation for the carriagdTof hostile despatches. If, for example, war were to arise between France and Spain, by the strict law of nations France would have the right to stop and search every British mail steamer which she might suspect of carrying in her mail bags despatches from the Spanish Grovemment to any of the Spanish East Indies. The (A) Wleaton's Internat. Law, 2 Eng. ed. p. 580. \i) 6 Am. ed. p. 567. 206 Belligerent Rights against Neutrals. result of the exercise of this right would be that successive P. and 0. steamers might he stopped while their scores, or even hundreds, of mail bags are got out and the contents of each examined, and on the examination proving successful, the steamer might be taken into a French port for adjudication, to the serious loss and infinite discomfort of a large comple- ment of passengers, the peaceable subjects of various neutral powers. Such a state of affairs would raise the ire and hostility of all neutral governments, and would obviously be utterly inconsistent with the enlightened civilization of the present day. Moreover, the great facilities which now exist for communication by telegraphic cable, as well as for the for- warding of despatches by various and independent routes, must needs in most cases render it a sheer waste of time to attempt to intercept despatches by stopping and searching mail steamers. And, indeed, to search any of the floating leviathans of the present day on the chance of discovering a letter which it would be the interest of persons on board to conceal, would be little less than an absurdity. But what- ever rights may still be held to exist as to the search for despatches on private trading vessels, there can, one would imagine, be no doubt that no such right exists — or that if it exists, few powers would have the hardihood to attempt to exercise it — in the case of mail or packet steamers. These vessels, being under government contract for the carriage of the mails, may in a manner be said to be public vessels. Not, it may be, vessels of war or transport, but still public vessels, as being under government subsidy, and as such exempt at any rate from the prohibition against carrying belligerent despatches ; though the right of search for military persons of the enemy having a belligerent destination might stiU be insisted upon. But The Peterhoff{j) case, where a British (i) Vide p. 186, supra. Careying Despatches, &c. : confiscation. 207 vessel -was seized by a Federal cruiser for carrying contraband of war and for tbe alleged intention to run the blockade of the Confederate ports, indicates that the modern view favours the recognition of the right of neutral vessels to carry mails free from belligerent examination. For although the cir- cumstances of the voyage and cargo were in this case open to grave suspicion, and the conduct of the master was eminently imsatisfactory, a sealed postal mail bag found on board was ordered to be delivered to the attorney of the United States, out of the custody of the Court, and was given up to the British authorities imopened (A-). It may, however, be supposed that the right to carry postal mail bags and the sanctity of their contents is now in many cases provided for by international convention. The cases of The Charkieh {l) and The Parlement Beige {m) are interesting as bearing upon the question of public vessels ; but as these were pacific cases in respect of damages caused by collision, involving the question of territorial jurisdiction of the British Admiralty Court over the property of a foreign sovereign, it is imnecessary to discuss them here. The case of The Constitution (n), a United States frigate, carrying private goods for public exhibition — against which salvage proceedings were issued in the Admiralty Court — stands on a somewhat similar footing. At one time so-called packet ships were, with certain special allowances, by statute (o) strictly forbidden to carry any merchandise : they were to carry " letters and packets " ; and goods carried unlawfully, contrary to the statute, were to be forfeited. The Penalty of Confiscation. — To ensure as far as prac- ticable that contraband of war shall not be conveyed to the (A) Blatch. Fr. Ca. at pp. 468, 532. (?) L. E. 4 A. & E. 59. (ot) L. E. 5 P. D. 197. («) 48 L. J. (N. S.) P. D. & A. 13. \o) 13 & 14 Car. II. c. 11, § 22. 208 Belligerent Rights against Neutkals. enemy, a belligerent seeks to render tUe carriage of such articles unprofitable to the shipowner. Forfeiture of contra- band goods commonly involves the shipo-wner in loss of freight, besides inflicting on him indirect loss by the delay attending seizure of the ship. But to confiscate despatches or to imprison military passengers would ordinarily involve no loss of freight, and the captors, in order to discourage shipowners from engaging in such prohibited traffic, therefore resort to confiscation of the ship itself. If the ship and the cargo or any of it belong to the same individual, the cargo or the part of it so owned must share the common fate. Simi- larly, the cargo is liable to condemnation if it appear that privity as to the offence exists between the master and the cargo-owner. Thus, in 1807, during war between this country and France, there were found in a tea-chest on board the neutral vessel Atalanta {p), on a voyage from Batavia to Bremen, despatches from the Governor of the Isle of France to the French authorities. The tea-chest was in a trunk belonging to one of the supercargoes, and on these facts the ship was condemned as well as aU cargo on board belong- ing to the owners, and all cargo the property of the supercargo. On the conclusion of this case the Court observed that the despatches, which had been inspected, were in fact of a noxious character, "though this was a eircumstanoe of no great consequence." In the following year an American vessel (q) was captured on a voyage from Bordeaux to New York, having on board a letter addressed to the Prefect of the Isle of France. The master made an affidavit that the packet was delivered to him by a private merchant as containing old newspapers and some shawls for a merchant in New York. Moreover, it was contended that the letter itseK was an entirely unimportant document, unconnected with the political Ip) 6 Eob. 440. (q) The SuBan, 6 Eob. 461, note. Carrying Despatches, &c. : confiscation. 209 objects of the wax. This latter objection was overruled ; and as to the averment of ignorance, the Court observed that with- out saying what might be the effect of an extreme case of imposition practised on a neutral master, notwithstanding the utmost exertions of caution and good faith on his part (r), it must be taken to be the general rule that a master is not at liberty to aver his ignorance. But that if he be made the victim of imposition, practised on him by his private agents or by the government of the enemy, he must seek for his redress against them. This judgment seems to be somewhat con- trolled by that in the The Rapid {s), where the despatches were being carried by a neutral ship from a neutral port to a port of the enemy. It appeared that the master of the ship had received the despatch among other letters from private persons, and was ignorant of its contents, and in these circumstances the ship was released. In so deciding, the Court was in accord with the principles indicated by Sir W. Scott in The Atalanta, supra, viz., that besides the trans- portation there must, ia order to convict the master, be a fraudulent intention on his part, and also the carrying must be in the service of the enemy. As has been already suggested, it would be utterly unreasonable to condemn a vessel carryiag mails on the ground that despatches were discovered in the mail bags. In the foregoing case of The Rapid, the war was between England and Holland, the vessel, American owned, being bound from New York to Tonningen ; and it was a decided point in the master's favour that these facts were so, and that the obnoxious article was not being carried from one port of the enemy to another. In the latter event the master is bound to exercise the utmost vigilance as to the papers he carries. The arguments in The Atalanta refer to several other (r) Vide The Lisette, cited in The Atalanta, supra. (s) Edw. 228. P 210 Belligerent Eights against Neuteals. decisions on this subject, of whicli it is unnecessary to make further mention here. It may, however, be remarked that the circumstances which in all cases justify confiscation on the one hand, or warrant release of the vessel on the other, are not so clearly defined as might be desired were this particular class of offence destined to bear the same importance in the hostilities of the future as it has borne in the past. But whatever doubt may attend the question of the degree of delinquency on the part of the master necessary to involve confiscation of the ship, in the case of despatches, his position in the case of carrying military persons of the enemy is free from all ambiguity. The bare fact of such persons beiug discovered on board has been decided to afford suiScient ground for condemnation of the ship(^). In The Orozembo, three military officers of distinction were found on board, besides two persons holding civil appointments in the govern- ment of Batavia, and twelve others. Judgment having been given against the ship in the case of the military men, the Court was under no necessity to determine whether the same principle applied to the civilians. It was, however, observed that " wherever it is of sufficient importance to the enemy that such persons should be sent out on the public service at the public expense, it should afford equal ground of forfeiture against the vessel engaged in carrying them" (u). In The Friendiship {v), a neutral vessel engaged in the transport of soldiers of the enemy, Sir W. Scott, in condemning the ship, intimated that the carrying of a few invalided soldiers or discharged sailors, taken on board by chance and at th'eir own charge, or of a military officer travelling at his own expense as an ordinary passenger, would be entitled to be favourably looked at, but that the deliberate carrying of {t) The Orozembo, 6 Eob. 430. (n) See also The Henric and Alida, 1 Hay & Marriott, at p. 139. {v) 6 Eob. 420. Caeeying Despatches, &c. : confiscation. 211 effective soldiers undoubtedly involved confiscation of the ship, and this whether the soldiers carried be connected with immediate action in the service of the enemy or not. In the same manner that no averment of ignorance can jus- tify the master, so the plea oi force majeure will not deliver him. If a neutral vessel be impressed to carry troops by a belli- gerent, and be seized and confiscated in consequence, the master must seek his remedy against the power by whose wrongful act he has been made to suffer. " Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act " («). Insurance. The carriage of belligerent despatches or of militaiy persons in the belhgerent service being contrary to the law of nations, the act breaks a warranty of neutrality and voids the insurance. If there be no warranty of neutrality the insurance will be void on the ground of concealment of material fact, unless it can be plainly established that the underwiter was fully informed as to the nature and circumstances of the voyage at the time he undertook the insurance. The remarks sub Blockade (p. 123, supra) are somewhat pertinent to this subject. The next neutral offence justifying capture by a belligerent which it is proposed to consider is that of Eesistance to Yisit and Search. {x) The Carolina, 4 Rob. 256. p2 212 Belligekent Rights against Neutrals. Resistance to Visit and Seaech. As already indicated (y), the right to visit and search neutral vessels in time of hostilities is inseparahle from the larger belligerent right to seize and confiscate contrahand of war, — or, indeed, from that, where not waived by treaty, of the capture of enemy property generally. The circumstances and manner in which the right of visit and the attendant, but not necessarily consequent, right of search are to be exercised, having already been discussed, they need not now be further reviewed. Belligerents having a right to visit and, if thought necessary, to search neutral vessels, neutrals lie under the corresponding obligation to permit such visit and search. The penalty attaching to breach of this neutral obligation is confiscation. In applying this penalty, no regard is to be paid to the national character of the vessel or of the cargo, and the latter has to share the condemnation of the former. " The right of visiting and searching merchant ships upon the high seas," said Sir ~W. Scott, in The Maria (z), " what- ever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestable right of the lawfully com- missioned cruisers of a belligerent nation And the penalty for the violent contravention of this right is the con- fiscation of the property so witUield from visitation and search." Resistance to search is regarded as amounting to a forfeiture of the vessel's neutrality, and the cargo follows the fate of the ship. If, however, the vessel prove to be the property of the enemy, the cargo is not involved unless the (y) P. 144, supra. (z) 1 Rob. 340. Eesistance to Visit and Search. 213 cargo-owner concurred in the act of the captain (a). There is nothing illegal in the resistance of a belligerent master. He has everything to gain and not much to lose by resisting ; and in the American courts it was, in The Nereide (b), decided that his action did not bind neutral cargo not participating in it. Sir "W. Scott, however, in The Fanny (c), asserted the directly contrary doctrine, declariag that the American prize courts are justly entitled to condemn property taken by an American cruiser from an armed vessel of the enemy. Three years later (in 1818), the American courts, in reviewing the judgment of The Nereide, affirmed the principle then laid down, and expressed the opinion that the British courts would eventually admit its justice (d). If the neutral master be bona fide ignorant of the existence of hostilities, and, by consequence, that he has any neutral duties to perform, his resistance to search will not involve confiscation. This was decided by Sir W. Scott in the case of two Spanish vessels San Juan Baptista and La Purissima Conception (e), in which case, moreover, an award of com- pensation was made to the crews of these vessels, the captors having wrongfully handcuffed them. Neutral Goods on Armed Belligerent Vessels. — The cases of The Nereide and The Fanni/, just mentioned, afford instances of the shipment of neutral goods on board armed belligerent vessels. The American courts decided that it was no breach of neutrality to make such a shipment, and that neither the goods nor the neutral owner were to be chargeable with the consequences of the captain's resistance, unless the goods- (a) The Catharina Elizabeth, 6 Hob. 232. {b) 9 Craneh, 388. (c) 1 Dods. 443. (d) The Atalanta, 3 Wheat. Sep. 409. (e) 5 Rob. 34. 214 Belligerent Rights against Neutrals. owner concurred in the act. The British courts decided just the other way. They decided that while a neutral is entitled to put his goods on the merchant vessel of a helligerent, he is not entitled to ship by an armed belligerent vessel. And that if he does so ship he must be deemed to have showed an intention to resist visit and search, thus placing himself under enemy protection and forfeiting his neutrality. Whether the Declaration of Paris is to be deemed, as between the signatories to it, to have wiped this offence off the slate, must be left to conjecture. Neutral Goods shipped under Convoy.— The principle laid down by the British courts, that the shipment of neutral goods by an armed vessel of the enemy is to be regarded as evidence of an intention to resist visit and search, applies equally to the placing of neutral goods under protection of convoy. Whether the convoy be that of an enemy or of a neutral, the implication is that resistance to search is intended ; and the neutrality of the goods is ipso facto forfeited. The presumed intention to resist may never be carried into effect, but this is not material (/) . This position may, of course, be affected by special treaty provisions, but in the absence of such provi- sions — and unless, again, the Treaty of Paris is to be held to have sanctioned such neutral conduct — the law wiU be as laid down by Sir W. Scott, in 1799, in the celebrated case of the Swedish convoy, under protection of which The Maria (/) and other vessels seized were sailing. The American Grovernment, however, in 1810, denied the right of Denmark to seize American vessels which had sailed on the outward voyage under protection of British convoy, and after twenty years of negotiations Denmark agreed to compensate America for the seizure of the vessels. War was then prevailing between (/) The Maria, 1 Rob. 340 ; The Elsabe, 4 Rob. 408. Eesistance to Visit and Search. 215 Great Britain and Denmark, and several American vessels engaged in carrying naval stores between American and Eussian ports had been seized by Denmark on the return voyage, in accordance with the above right, which right was maintained by Denmark as weU as by this country. Insurance. If a vessel "warranted neutral" under the marine policy resist the right of search or sail under convoy: or if neutral goods be shipped by an armed belligerent vessel ; this is to be regarded as a breach of warranty which voids the policy (^). But such illegal acts might, perhaps, in some cases, be attributed to barratry on the part of the captain and so claimed against the underwriters. It is the duty of a neutral to submit to lawful search, and if the residt of such search be that the vessel is carried to a port for adjudication, it is equally the duty of the neutral master to submit. Eesistance to search involves the ship, as has been seen, in condemnation ; and any attempt to resist the carrying into port by rescuing the vessel from the captors also exposes the vessel to this sentence. This subject — Attempt at Eescue — ^may be next reviewed. (f?) Amould, 5th ed. pp. 609, 763. 216 Belligerent Rights against Neutrals. Attempt at Rescue. Eescue, as we have already seen {h), is teelmically distinct from what is termed Eecapture ; the one being the action of those on board the vessel rescued, the other the result of efEorts from without. If a neutral vessel be seized and taken towards port for adjudication, and the master and crew rise and attempt to rescue her from her captors, such an attempt is a breach of neutral obligation, and involves confiscation. The Dispatch (i) was a Danish vessel recaptured after a rescue eHected by her crew. The Court condemned the vessel " on the ground of the parties having declared themselves enemies by this act of hostile opposition to lawful inquiry." If the vessel be enemy property, however, the master may look upon her as already condemned, and beyond the risk of harsh usage and personal inconvenience to himself and crew, he may be said to have nothing to lose by an attempt at escape, and there is nothing unlawful in the attempt [j). He is, at the same time, under no obligation to make such attempt, however meritorious such conduct might be. " Sea- men," said Sir W. Scott, " are not bound by their general duty as mariners to attempt a rescue ; nor would they have been guilty of a desertion of their duty in that capacity if they had declined it. It is a meritorious act to join in such attempts ; but it is an act perfectly voluntary, in which each individual is a volunteer, and is not acting as a part of the crew of the ship in discharge of any official duty, either ordinary or extraordinary " (k). (h) P. 126, supra. (i) The Catharina Elizateth, 6 Rob. 232 ; The Short Staple v. The United States, 9 Cramh, 65 ; The Dispatch, 3 Rob. 278 ; The ■Washington, 2 Act. 30, n. ; The Franklin, 2 Act. 109. (j) The Catharina Elizabeth, 5 Rob. 232. Vide also sub (i) generally. (A) The Two Eriends, 1 Rob. 271. Vide also p. 63, supra. Attempt at Eescue. 217 A mere attempt to escape before any possession has been assumed by the captor, does not draw with it the con- sequence of condemnation (^) . And if, as in The Penn- stjlvania (tn), the captors of a neutral vessel, without putting a prize crew on board, content themselves with ordering her commander to carry the vessel into port for adjudication, without causing him to enter into a binding agreement to so proceed, and the neutral vessel, in consequence, makes her escape, such an escape, if the vessel be subsequently captured, win not be regarded as a rescue, and so involving confis- cation. " If the crew of a captured vessel, or prisoners placed on board a vessel in order to be carried to port, rise and over- power those in command of the ship and carry her into a neutral port, the neutral power cannot be required to render up the vessel to those who have thus been deprived of their right over her (n). It is the duty of the captors to protect their own interests, and if they fail to efiiciently do so they cannot claim the interposition of neutrals to assist them " (o) . An interesting illustration of this principle occurred during the civil war in America in 1862. A British vessel, The Emily St. Pierre, having been seized by a Federal cruiser for an alleged attempt to run the blockade, her crew, all but three men, were taken out of her and a prize crew of fifteen men were put on board with instructions to take the prize to Philadelphia. On the voyage the three prisoners — the master, cook, and steward, who were to have given evidence before the prize court — overpowered and secured their captors, and with the assistance of three or four consenting members of the prize crew, managed to bring the vessel to (I) The San Juan Battista, 5 Rob. 33. (m) 1 Act. 33. («) Eeid V. The Vere, Bee's Mep. 66. (o) Opinions of the Attorneys-General of the United States, Vol. III. p. 327 ; L'lmincibk, 1 Wheat. 256. 218 Belligerent Rights against Neuteals. Liverpool. Lord Eussell deelined to restore the vessel to her captors, as demanded by Mr. Adams on behaH of the United States, declaring that such a rescue, however punishable by the law of nations, was no offence against the municipal laws of Great Britain (o). The penalty of confiscation is applied to both ship and cargo without distinction, the master being deemed to have acted as agent for the cargo {p) . This is so, at least, in the case of neutral vessels and their cargoes ; but not so as regards neutral property on an enemy vessel. In this case the master is guilty of no breach of neutral obligation in endeavouring to escape, and his action is not, therefore, to prejudice the cargo {q). Though if the cargo owners be found to have connived at the resistance, or the cargo belong to the owners of the ship, the case will be otherwise (r). As has been already indicated, the crew of a captured neutral vessel ought not to attempt a rescue, as by so doing they expose the vessel and cargo to confiscation. And if the vessel be warranted neutral in the policy of iasurance, the attempt at rescue will be deemed a breach of this warranty, and will void the policy (.s). The crew of a captured bellige- rent vessel may lawfully make such an attempt, though they are ordinarily under no obligation to do so ; and if the attempt be made and result successfully, the rescuers have as salvors a lien on the property salved by their action {f). The next neutral offence involving confiscation is that of falsLEyiag or destroying the ship's papers. (o) An interesting account of this singularly bold and successful enterprise, ■witli the diplomatic correspondence which grew out of it, appears in 55 State Papers, 1864-5, pp. 817—837. [p] The Franklin, 2 Act. 108. (}) The Catharina EMzaheth, 5 Roh. 232. (r) Vide remarks sui Resistance to Search, p. 212, supra. («) Garrels v. Kensington, " The Dispatch," 8 T. R. 230. (f) The Two Friends, xiiprn. Tide also p. 135, supra. ( 219 ) Capture and, in certain cases, Confiscation of Property involved in Sailing under False Papers, OE IN THE Suppression or Destruction of Papers. (Witli Eemarks as to the Papers to be carried.) On the exercise by a belligerent of the right of visit (m), probably his first demand will be to see the ship's papers. If these be promptly produced and be found in all respects in order, and there be no other circumstances warranting the detention of the vessel, she will be entitled to proceed on her course without further interference. If, however, the docu- ments be not aU produced, or if on production they bear evidence of having been tampered with, or be found in any respect contradictory — either as between themselves, or of the surroundings, or otherwise,— defective or unsatisfactory, the belligerent will be entitled to carry the vessel into port for further examination (v). If on adjudication it be found that the irregularities giving rise to the capture are attribut- able to bad faith on the part of the master, condemnation of the ship will be involved (w) . Even if the vessel be released, the master may be ordered to pay the costs of the captors (x), on the ground that neutral masters are by the law of nations required to carry proper documents, and that any loss or («) Vide p. 144. (v) The Anna, 5 Rob. 382. (w) Vide cases cited in Wheat. Int. Law, 2nd Eng. ed. 584. The Stephen Mart, Blatch. Fr. Ca. 388 ; The Springbok, ibid. 434 ; The Peterhoff, ibid. 463 ; The Louisa Agnes, ibid. 107. [x) The subject of costs will he dealt with in its place. Vide p. 325, infra. 220 Belligerent Rights against Neutrals. charges sustained by the helligerent captors in consequence of a neutral's failure to comply with this requirement must be borne by the defaulter. And even if the master escape being required to indemnify the captors, he will probably be deemed to have forfeited all right to any compensation to which he would himself be otherwise entitled in the case of a capture not warranted by the facts. Mere irregularity resulting from inadvertence, and not accompanied by any circumstances indi- cating mala fides on the part of the master, while it may justify the bringing in of the vessel and involve the master in costs, will not necessarily entail condemnation ; but irregu- larity accompanied by misconduct will be unfavourably con- strued in a prize court of the captors (»). It is hardly possible to define the irregularities which will justify con- demnation, or at any rate warrant the bringing of the vessel into port for adjudication ; each case must necessarily stand on its own merits. But if in any case a presumption of fraud or bad faith be not rebutted by the master, it will fare badly with him. Thus, the spoliation of papers is regarded as misconduct of an aggravated kind, and their destruction creates a strong presumption of enemy's property. But the spoliation of papers does not of itself create an absolute pre- sumption of guilt, to the exclusion of further proof, for the circumstance may possibly have arisen from accident, necessity or superior force (y). But if, coupled with spoliation, there be unsatisfactory explanations, or vehement presumption of bad faith, or gross prevarication, it is good cause ;for denial of further proof. As regards the throwing overboard of papers, Lord Mansfield observed, in Bernardi v. Motteux (z), that while this offence is universally considered a strong presump- ix) The Neutralitet, 3 Rob. 295. ($() The Peacock, 4 Rob. 186; The Stephen Sort, supra; The Springboh, supra; The Peterhoff, supra; The Fizarro, 2 Wheat. 227. W Doug. 581. Capture and Confiscation : false papers, etc, 221 tion of enemy's property, the act does not of itself necessarily involve condemnation. Generally, if papers be destroyed, the presumption is that they related either to the ship or cargo, and that it was of material consequence to some interests that they should be destroyed ; though this presumption is capable of being rebutted (a). Papers with which the master must needs have been acquainted, setting up a false description of cargo, clearly involve confiscation. Thus, an attempt of the master to suppress the fact of there being contraband cargo on board, by means of fictitious bills of lading, entails confis- cation of the ship (b). In The Sarah Christina (c), goods otherwise subject to pre-emption were confiscated by reason of there being false cargo-papers on board ; the Court observing, that to entitle the owner to the benefit of the rule of pre- emption a perfect bona fides on his part is required. And papers setting up a pretended neutral destination are regarded as evidence of bad faith on the part of the master, for which he must suffer by the confiscation of his ship {d). Commenting, in The Franldin (d), on the difficulty frequently met with as regards the detection of the offence of sailing to a false destination, the Court observed that " pretences and excuses are always resorted to, the fallacy of which can seldom be completely exposed ; and therefore, without undertaking the task of exposing them in a particular case, the Court had been induced to hold generally in each case, that the certain fact shall prevail over the dubious explanations." A vessel which succeeded in delivering a contraband cargo, and was captured on the return voyage, was condemned on the ground that the success of the adventure had been ob- (fl) The Two Brothers, 1 Rob. 133. (4) The Richmond, 5 Rob. 323. (c) 1 Rob. 241. (d) The Franklin, 3 Rob. 221 ; The Ed-wwd, 4 Rob. 68 ; The Rang-er, 6 Rob. 126. 222 Belligerent Rights against Neutrals. tained by means of false papers (/ ). In this case so heinous- was the offence regarded that the cargo was condemned as well, notwithstanding that it had not been purchased with the proceeds of the contraband goods, and did not belong to the owner of the ship. If some papers be produced on demand and others be with- held or concealed, it is not necessarily to be assumed that the latter are to be fully credited. " If such a rule were estab- lished as a principle of the Court," said Sir "W. Scott, in The Calypso (g), " it would let in an infinity of fraud, and make it the easiest thing in the world to protect the chief bulk of property in any case by giving up some part upon the pre- tended disclosures contained in these concealed papers. The more reasonable rule would be, that where there is one set of papers admitted to be false, and another set coming out of the same hands, that the whole is thrown into a state of uncer- tainty and doubt" (h). " The papers alone," said Erie, 0. J., in Mobbs v. Henning (i), " are not a breach of neutrality so as to work a forfeiture of the ship ; they are only evidence from which a cause of forfeiture can be inferred. They may be evidence either of enemy's property, or of destination to a blockaded port or to an enemy's port with contraband, and so (/) The Nancy, 3 Rob. 122. Also The Margaret, 1 Act. 336. {g) 2 Rob. 158. , (A) The foUowing extract from an " Attestation on bringing in Papers Concealed" (Story on Piize Courts, p. 209), is interesting as an iUuslration of the expedients resorted to for concealment on the one hand, and of deter- mined efforts at discovery on the other: — " .... And the day after the capture he (i. e., the commander of the capturing vessel) found the parcel of papers and writings hereunto annexed, marked "with the letter A, made fast to the end of ■• twine, and stowed away and concealed amongst the bread ; that the day following he found the parcel of papers and writings hereunto also annexed, marked with the letter B, concealed in a bin of rice ; and the two parcels of papers and writings, marked with the letter C, concealed in two bins of calavanoes." (i) 34 L, J. C. P. 122. Capture and Confiscation : false papers, etc. 223 be evidence on which the judge may find a cause of forfeiture proved; but they are in themselves no cause of forfeiture. The language of Sir W. Scott, in the case of The FranJdin, speaking of simulated papers, and saying that ' this fraudulent conduct justly subjects the ship to condemnation,' must be taken with reference to the question before him, whether the ship should be confiscated as well as the contraband cargo ; and his decision is in the affirmative, and rightly, if the ship- owner was knowingly conveying contraband to an enemy's port, of which knowledge papers indicating a false destination would raise a presumption." The Court further observed that the plaintiff had not been shown to be responsible for the ship's papers, nor for any other goods than his own. If discrepancies be found to exist between the depositions of the master and crew on the one hand, and the ship's papers on the other, the conviction of the Court must, as a general rule, be kept in equilihrio till it can receive further proof ; but this is not a fixed rule, and each case must be regarded on its own merits (/). If a neutral master be found guilty of fraudulent miscon- duct as regards the ship's papers, the vessel will be subject to condemnation ; and if the cargo be of the same ownership, or it appear that the cargo-owners were privy to the fraud, the cargo wiU presumably share the fate of the ship. So that the principles as to confiscation applicable in the case of car- riage of hostile despatches Qt), would doubtless equally apply in the case of false or irregular papers. But the circumstance that false papers relative to the cargo be found will not necessarily condemn the ship. For, as was observed by Sir W. Scott in The Calypso (l), "evidence respecting the cargo (y ) The VigUantia, 1 Rob. 1 ; The Odin, iHd. 252. {Jcj Vide p. 208, swpra. [l) 2 Rob. 158. 224 Belligerent Rights against Neuteals. does not generally affect the ship, as it may frequently hap- pen that the owners of the cargo will, from lust of gain, put on board false papers without the knowledge or privity of the owners of the ship. But it is a very different case when the ship and cargo belong to the same persons ; although I will not say that false papers would, even in such a case, neces- sarily lead to condemnation of the ship." It is the duty of the master to produce all his papers, and least of all to withhold his instructions {m) . And if he have an alternative destination the fact should so appear on the papers, otherwise belligerent cruisers may be misled («). General clearances (as to the East or West Indies), if not absolutely illegal, are highly objectionable : and if resorted to should be accompanied by an affidavit that the cargo contains no prohibited goods (o). The master, also, is required to have knowledge of his cargo. Whatever may be the rule in times of peace, in times of war the master must be prepared to answer all reasonable enquiries as to his cargo (/)). He must not aver ignorance, but if prejudiced by imposition practised upon him, he must seek redress from those by whose action he has been made to suffer {•) Am. Insoe., 5th ed. p. 614. Papers to be Caeeied. 225 The Elizabeth {infra), establish the importance attached to it in the case of the vessel, though not of the cargo (s) . And Sir C. Eotinson has subjoined a note to the case of The Elizabeth, stating that {t) in The Vreede Scholtys the Court laid down the distinction as to hostility of character between ship and cargo in the following terms :— " A great distinction has been always made by the nations of Europe between ships and goods ; some countries have gone so far as to make the flag and pass of the enemy conclusive on the cargo also, but this country has never carried the principle to that extent. It holds the ship bound by the character imposed upon it by the authority of the government from which all the docu- ments issue. But goods which have no such dependence upon the authority of the state may be differently consi- dered." For the purposes of insurance a ship warranted neutral must bear no other flag than that which was neutral on the inception of the risk. If warranted of any given national character, she must bear the flag of that and of no other nation. 2. The Passport, Sea-brief, Sea-letter, or Pass. — This is a certificate granted by authority of the neutral state, giving permission to the master to proceed on the voyage proposed, and declaring that while on such voyage the ship is under protection of the neutral state (m). It is indispensable to the safety of a neutral ship, and no vessel may disown the national character so ascribed to her(«;). "It is the esta- blished rule," said Sir W. Scott in The Elizabeth (x), " that a vessel sailing under the colours and pass of a nation is to be («) Vide also The Success, 1 Dobs. 131 ; and The Vreede Scholtys, infra, {t) 5 Eob. 5, not. («) The Vigilantia, 1 Eob. 1 ; The Vreede Scholtys, supra, (v) The Vigilantia, supra ; The Vreede Scholtys, supra, {x) 5 Kob. 4. O. Q 226 Belligerent Rights against Neutrals. considered as clothed with the national character of that country. With goods it may he otherwise." And in The Soop {y), his lordship refused to restore the vessel to an individual laying claim to it, but whose name did not appear on the ship's pass. The pass should also contain the master's name and address ; the name, ownership, description, and tonnage of the vessel ; the nature and quantity of the cargo, with its origin and destination, and any other details which the circumstances of the particular case may seem to render advisable. As additional evidence of neutral ownership, the vessel is sometimes herself stamped with the nationality of the owners. Thus, The EUze (z), seized in 1854, bore branded on her deck-beams the words "Danish property," together with the royal initials. A distinction is sometimes set up, notably in New York, between the pass or passport and the sea-letter or brief, the latter supplying more particularly the details already men- tioned relative to the cargo. But, generally speaking, both terms have the same meaning (a) . 3. The Register, or Certificate of Registry, showing to whom and to what port the vessel belongs ; and bearing, as being signed by some officer of customs, a certain stamp of public authority. As regards insurance, this document is not indis- pensable in order to comply with a neutral warranty if the ship possesses other documents from which her neutral character may be decisively ascertained. So it was held in the United States, where the vessel had a sea-letter but no register (&). (y) 1 Bob. 129. («) 24 L. T. 170. (a) Vide cases cited Arn. Insce., 5th ed. p. 615. (i) Barker v. Fhcenix Insce. Co., 8 Johns. 237, cited 1 Phill. Insoe., No. 806 ; and vide p. 230, infra. Papers to be Carried. 227 4. The Bill of Sale. — This document is useful ia cases where the flag and the build of the vessel appear out of harmony, in order that, by its means, belligerents may be satisfied that the vessel was purchased before ; or captured, legally condemned, and purchased since ; the declaration of war (c). 5. The Muster-roll (role d'equipage), or Ship's Articles, as containing the names, ages, quality, place of residence, and, especially, the place of birth, of every person of the ship's company. A strong suspicion must naturally be created if the majority of the crew be found to consist of foreigners, or stiU more if they be enemy subjects (d). 6. The Charter-party, in the case of chartered vessels ; as it serves to authenticate many of the facts on which the proof of neutrality must rest (e). 7. The Log-book, faithfully kept. In the case of a steam- ship, no doubt the engineer's log-book would also be called for by captors. 8. The Bill of Health, which is a certificate, properly authenticated, that the ship comes from a place where no in- fectious distemper prevails. 9. Bills of Lading, Invoices, Certificates of Origin, and any other proofs of the national character of the cargo. The " captain's copies " of the bills of lading and the invoices can no doubt be easily falsified or fabricated where fraud is intended, and they carry with them less authenticity than attaches to documents of a more oflacial character. Nevertheless, in the absence of any circumstances indicating fraudulent intention, («) The Adriana, 1 Rob. 317; The Sisters, 5 Rob. 155 ; Marshall, Insoe., 441 ; The Mersey, Blatch. Pr. Ca. 187 ; The Stephen Sart, ibid. 388. [d) The Sisters, supra, le) IHd. q2 228 Belligeeent Rights against Neuteals. they are valuable as evidence of the place of shipment and of destination, and probably as to the shippers and consignees. Certificates of origin were generally deemed necessary during the continuance of the French wars, in order to prove that the goods were the subject of legal transport. In The Springbok (/), the absence of invoices from on board a vessel in time of war was characterized as a suspicious circumstance. 10. Any documents which have to be carried in accord- ance with express treaty provisions (g). Although the absence of a document ordinarily deemed requisite will not of itself involve the vessel in condemnation, it may well be that the failure to produce the document will be held to justify the captors in bringing the vessel in for adjudication. Insurance. " In order to be neutral within the meaning of the warranty, so as to be protected against hostile capture, the ship must be furnished with all those documents and proofs of the neutral character of herself and her cargo required to be on board either by the law of nations or by the regulations of international treaties" (A). A warranty of neutrahty requires that the owner- ship of the property shall be in accordance with the warranty, and that the property shall be accompanied by the usual evidence of neutrahty (i), or by such evidence as may be required by treaty enactments. Thus, in 1778, a ship "warranted American pro- perty," which was seized by a French privateer, and ultimately released, was proved to have sailed during a portion of her (/) match. Tr. Ca. 435. [g) Pollard v. Bell, 8 T. E. 434. (A) Amould, 5th ed. p. 614. («) Siffkiu V. Lee, 2 B. & P. N. E. 484. Capture : false papers. — Insurance. 229 voyage witliout any passport. A treaty between Prance and America provided that such a document should be carried, and the Court decided that the non-compliance with the treaty- requirements discharged the underwriters ; the warranty not meaning merely that the ship was American property, but that she was entitled to all the privileges of the American flag, and free from all inconveniences arising from liability, owing to non- compliance with treaty, to be otherwise regarded (/c). And in another ease (Z), where an American ship was condemned in the French Courts for not carrying a list of her crew according to the treaty model, the Court of King's Bench held this sentence to be a conclusive falsification of neutral warranty, without inquiring whether the vessel was, as a fact, neutral or not. Again, in Baring v. Claggett{rn), where the sea-letter did not contain the master's name, as by treaty required, the Court decided that the warranty of neutrality was not satisfied, as the ship had not such a sea-letter as was required by treaty. Thus, in Pollard v. Bell (n), it was observed that " where a State in amity with a belligerent power has by treaty agreed that the ships of their subjects shall only have the character when fur- nished with certain precise documents, whoever warrants a ship as the property of such subject should provide himself with those evidences which have, by the country to which it belongs, been agreed to be the necessary proof of that character." In another case — Bell v. Carstairs (o)— of documents deficient in re- spect of treaty requirements, the underwriters were held dis- charged, though the sentence of condemnation also proceeded on other grounds. And where a ship was condemned for not producing the documents required to establish her neutrality, which was warranted in the policy, the insurance was declared to be voided ; though if the master had produced the documents in question, the vessel would have been subjected to condemnation on the {k) Rich V. Parker, 7 T. R. 703. [I) Geyer v. Aguilar, 7 T. R. 681. [m) 3 B. & P. 201 ; and S. C. in error, 5 East, 398. [n) 8 T. R. 434, and Park's Insce., 8th ed. 731. (o) 14 East, 374. 230 Belligerent Rights against Neutrals. evidence of prohibited sailing contained in tte said docu- ments (^). But while a vessel must carry all documents required by treaty, and in the strict form of the requirements, a neutral shipowner is under no obligation to provide himself with every document that belligerent powers may require purely by their own private ordinances ; and the want of such documents wiU not forfeit a neutral warranty {q). Thus, where an American vessel had been condemned in a Danish prize court on the ground that her sea passport had not been notarially certified, the defendant underwriters were called upon by the Court to show how such a requirement came within either the provisions of the general law of nations, or of any relative international treaty (r ) . Similarly, in Le Cheminant v. A llnutt («) , it was in effect held that condemnation on the ground that the ship had no register did not discharge the underwriters, unless they could show that the carrying of this document was necessary in the foregoing sense. But the above implied conditions relate only to insurances effected for the shipowner, and not to those effected for cargo - owners. Por Lord Ellenborough, in Carruthers v. Gray (J), held, that there was no implied warranty on the part of the goods- owner that the ship should be properly documented. And in another case, where the insurance was on goods, and the vessel was condemned for not being properly documented, the under- writers were held not to be discharged (m) ; and on this case being mentioned in Bell v. Carstairs, Lord Ellenborough approved it, observing that in an insurance on goods "the owner of the goods has no concern in the obtaining of the proper documents with which the vessel is to be furnished for the voyage ; " the case being otherwise where the ship herself is concerned. {p) Steel V. Laoy, 3 Taunt. 284. (q) Vide note, Amould, 5th ed. p. 618. (r) Bell V. Bromfield, 15 East, 368. See also Price v. Bell, 1 East, 663, and BeU V. Carstairs, supra. («) 4 Taunt. 367. {t) 3 Camp. 142 ; S. 0. 15 East, 35. See also Hobbs v. Henning, 34 L. J. (C. P.) 117, 122 ; 17 C. B. N. S. 791. (w) Dawson.i'. Attj, 7 East, 367. See also Carruthers v. Gray, supra. Capture: false papers. — Insurance. 231 Marshall and Phillips consider this distinction very question- able, hut it has, in fact, been adopted by the English Courts. Arnould {x) is also in accord with it. During the great French wars, trade with the Continent was carried on by means of simulated papers ; but it was uniformly held by qui- Courts that condemnations on that ground dis- charged the underwriters in the absence of an express licence in the policy to carry such papers (y). And this, although it was notorious that the trade protected by the policy could be carried on in no other way, and that 'the possession of such papers actually tended to diminish the risk(2). The decision was the same where the fact of carrying simulated papers was apparently one at least of the efadent causes of condemnation. Looking at the terms of the sentence of condemnation, said the Court in Osivell v. Vigne {a), the carrying of simulated papers must be regarded as one of the grounds of forfeiture; and as the policy contained no leave to carry such papers the loss could not be charged against the underwriters. In this case the ship had been condemned by enemy captors on various grounds, and the underwriters disclaimed liabiHty on the plea that one of these grounds was the carrying of simulated papers, for which the policy contained no permission. The Court decided, in effect, that the underwriters' contention was weU founded, and that, however ungracious, in the particular circumstances, was this defence, the breach of the insurance conditions must be held to have voided the policy. Of course, if the policy contains a licence to carry simulated papers, and the ship is condemned for carrying them, the underwriters wiU be liable (J). The above cases answer an enquiry of Lord Mansfield, referred to in Steele v. Lacy, supra, as to the necessity for permission to carry such papers (c). It has been held in the United States that the carrying of suspicious papers is a breach of neutral warranty. Thus, where {x) Insce., 5th ed. p. 673. {y) Arnould, bth. ed. 673. (z) Homeyer v. Lushington, 15 East, 45, an. 1812 ; 3 Camp. 85. See also Fomin v. OsweU, 3 Camp. 357, an. 1813 ; 1 M. & S. 393 ; of. p. 402, infra, {a) 15 East, 70. {byBeUv. Bromfield, 15 East, 364. (c) Arnould, 6th ed. 673, n. 232 Belligeeent Rights against Neuteals. certain papers relating to a former shipment, written in sympa- thetic iak, were found concealed in a cast on hoard, a mystery heing in consequence thrown over the shipment, the under- writers were discharged («?). Concealment of papers, as justify- ing carrying into port for adjudication, has also been held by the United States Courts to amount to a breach of neutral warranty (e). In the same country it has been held that the mixing of belligerent with neutral goods and carrying them, so disguised, as neutral, is a breach of neutral warranty, and will void the policy as to the whole of the neutral cargo (/). We will now pass on to the consideration of the conse- quences to neutrals of engaging in the privileged trade of the enemy. (d) Carrere v. Xlhion Insce. Co., 3 Sar. ^ John. 321 ; 1 Phillips' Insce., No. 809. [e) Livingston v. Maryland Insce. Co., Craneh, 536 ; 1 Phillips' Insce., No. 809. (/) Fhcenix Insce. Co. v. Fratt, 2 £inn. 308 ; Schultz v. Insce. Co. of N. Am., 3 Wash. C. C. E. 117. ( 233 ) CAPTURE AND CONFISCATION OF PROPERTY ENGAGED IN THE Privileged Trade of the Enemy; Sailing under Flag and Pass op the Enemy (_j/); Engaging in Illicit Trade. (The " Continuous Voyage" Question.) It was in former times common for a State to restrict to the vessels of its own subjects all carrying-trade between the mother country and its colonies, and a similar limitation was enforced as regards the national coasting trade. Thus, the coasting trade of the British Isles and possessions was, at one time, limited to British vessels, and this restriction has not been a great while abolished. {Vide 17 & 18 Vict. c. 5.) But the ancient barriers against a free carrying-trade have now been generally, if not entirely, removed in the case of over-seas trade, and probably in most cases of coasting traffic. But so long as such barriers existed, it was by the common law of nations deemed unlawful for neutrals on the out- breai; of hostilities to engage in a trade closed to them in times of peace. If they did this, their property so employed was liable to seizure, as being devoted to service of the enemy. This principle is embodied in what is commonly known as the "Rule of the War of 1756." During that war the French, finding their colonial trade, owing to the British (g) Pp. 20 et seq., supra, may te referred to for instances of fictitious transfer from hostile ownership. 234 Belligerent Eights against Neutrals, maritime supremacy, entirely destroyed, removed the exist- ing restrictions and threw the trade open to the Dutch, who were neutrals. They issued, in fact, to Dutch vessels, special licences or passes expressly authorizing them to trade between France and her colonies, while they at the same time con- tinued the prohibition as regards all other neutrals. The British Grovernment in consequence issued instructions order- ing the seizure and condemnation of any Dutch vessels availing themselves of this privilege ; the cargoes to be con- demned with the ships. " It is a sound principle of the law of nations," said Sir W. Scott, in The Rendsborg (h), "that you are not to relieve the distresses of one belligerent to the prejudice of another; any advantage that you may obtain from such an act will not make it lawful Tou are not, from a prospect of advantage to yourself, or from any other motive, to step in, on every outcry for help, and rescue the belligerent from the gripe of his adversary." The same principle was laid down in terms of equal clearness and force in various other cases, notably in The Immanuel{i), Wilhelmina (j), Promdentia {k), Anna Catharina {I), and The Vrow Anna Catharina {in) . "Vessels so engaged," observes Wheaton, " were, in the judgments of the Courts, to be con- sidered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or despatches" (»). In the British Courts this principle has been held to apply not merely in circumstances such as those giving rise to the Eule of 1756, but to all cases in which (A) 4 Eob. 121. (y) 4 Rob. App. A. (J) 2 Rob. 197. ' [k) 2 Rob. 150. {I) 4 Rob. 107. [m] 5 Rob. 161. Vide also The Vigilantia, 1 Rob. 1 ; The Alliance, Slatch. Fr. Ca. 262; The Julia, 1 Gall. 605; 8 Cranch, 181 ; The Aurora, ibid. 203; The Siram, ibid. 444 ; The Ariadne, 2 Wheat. 100. (n) Int. Law, 2 Eng. ed. p. 588. Capture : privileged and illicit trade. 235 neutrals engage during war in a trade not open to them in times of peace. This general application, however, has been controverted by American statesmen, and was at one time a fruitful source of contention between that country and Great Britain. As a concession to representations in this respect, indeed, modified instructions were issued by the British Government in January, 1798, in virtue of which neutral vessels were allowed to carry on a direct commerce between the colony of the enemy and their own country (o). But owing to the altered conditions now, as already mentioned, prevailing, this difference of opinion is hardly likely to be a source of difficulty in the future. The Eule was, indeed, apparently entirely over-ridden in the war of 1854 by a British Order in Council, declaring that "the subjects or citizens of any neutral or friendly state shall and may, during the present hostihties with Eussia, freely trade with all ports and places wheresoever situate, which shall not be in a state of blockade." In The Juliana (p), a neutral vessel captured by the British, on a voyage between France and Senegal, then a French colony, the Court, after much investigation, decided that France had been accustomed to leave the trade of Senegal open to foreign vessels, and therefore decreed resti- tution of the vessel to the neutral claimants. In The Rebecca {q), an American ship seized for carrying cargo between Surinam and Amsterdam, the Court restored the vessel, but refused to allow freight on the cargo con- demned. In The Ainerica (r), where a similar vessel, bound from Mauritius ostensibly to Hamburg, was seized for pro- ceeding to a French port, the cargo was condemned, freight (o) Vide The Rosalie and Betty, 2 Rob. 343. (p) 4 Rob. 336. (q) 2 Rob. 101. (r) 3 Rob. 36. 236 Belligeeent Eights against Neuteals. being refused. The shipowner, in claiming freight, con- tended that the deviation was fraudulent on the part of the master, and that it was hard that for this the shipowner should be made to suffer ; but the Court held that the proof of this alleged fraudulent conduct of the master was not so clear as to warrant its acceptance in the sense claimed by the owner (m). Continuous Voyages. — The colonial trade which a neutral may not carry on directly, he may not carry on circuitously. This was clearly laid down in The William (n), during the wax which occurred between this country and Spain in 1800. The William, a neutral vessel, was bound from La Gruira, a Spanish colony, to Marblehead, a port in the United States, with a cargo of sugar, &c. and cocoa, which cargo was in due coiirse landed and entered at the custom house, and a bond was given for the payment of duties. But within ten days of the arrival at Marblehead the chief part of the cargo was reloaded and carried towards Bilboa in Spain. The vessel was captured by the British, and it was finally decided by the Court of Appeal that the mere touching at Marblehead and payment of dues there was not sufficient to establish a lorn, fide importation into America, and that the voyage was practically continuous from La Guira to Bilboa. Therefore that it was in violation of the Rule of the War of 1756 ; and the cocoa brought from La Gruira was consequently con- demned. In the above case the landing and reshipping at Marble- head was found to be iu pursuance of a preconceived design to evade the prohibition against engaging in the privileged trade of the enemy. But each of such cases has to be judged on its own merits. Thus in The Maria (o), restitution was (m) Vide pp. 120, 189, as to owners' responsibility for master's acts. («) 6 Bob. 385, an. 1806. (o) 6 Rob. 365. Capture : illicit trade : continuous voyages. 237 ordered on the ground that there had heen a bona fide inten- tion to effect a sale at the intermediate port, and consequently that the voyage was not to he regarded as continuous. And Sir "W. Scott in The Folly (p), on the point as to what con- stituted a genuine importation (at an apparently intermediate port), said : " An American has undoubtedly a right to import the produce of the Spanish colonies for his own use, and after it is imported bona fide into his own country he would he at liberty to carry them on to the general commerce of Europe. .... It is not my business to say what is universally the test of a bond fide importation. It is argued that it would not be sufficient that the duties should be paid and that the cargo should be landed. If these criteria are not to be resorted to, I should be at a loss to know what should be the test ; and I am strongly disposed to hold that it would be sufficient that the goods should be landed and the duties paid. If it appears to have been landed and warehoused for a con- siderable time, it does, I think, raise a forcible presumption on that side, and it throws on the other party to show how this could be merely insidious and colourable." This, how- ever, was not the view taken by the Master of the Eolls (Sir William Grant) in the appeal case of The William, already mentioned. " If the voyage from the place of lading," said his Lordship, " be not really ended, it matters not by what acts the party may have evinced his desire of making it ap- pear to have ended. That those acts have been attended with trouble and expense cannot alter their quality or their effect. The trouble and expense may weigh as circumstances of evi- dence to show the purpose for which the acts were done, but if the evasive purpose be admitted or proved we can never be bound to accept, as a substitute for the observance of the law, the means, however operose, which have been employed to (/j) 2 Rob. 361, an. 1800. 238 Belligerent Rights against Neutrals. cover a breaoli of it. ... In a fictitious importation the acts to be done are mere voluntary ceremonies which have no natural connexion whatever with the purpose of sending on the cargo to another market, and which, therefore, would never he resorted to by a person entertaining that purpose, except with a view of giving to the voyage, which he has resolved to continue, the appearance of being broken by an importation which he has resolved not really to make." It would indeed seem evident that if the origiual intention was to make a really continuous voyage, the mere fact that cus- toms dues, &c., have been incurred at an intermediate port is altogether beside the question. For, the original estimate as to the balance of advantages would naturally include such charges on the debit side of the account, and if, notwith- standing, the final result promised to be satisfactory, the advantage of incurring the intermediate charges in order to secure it would be obvious. In 1801, the British Advocate- General, in an oiBcial report (q) on the law concerning the colonial trade, apparently quoting Sir "W. Scott's decision in The Polly, supra, declared that the High Court of Admiralty had expressly decided, and that he saw no reason to expect that the Court of Appeal would vary the rules, that landing the goods and paying the duties in the neutral country breaks the contiauity of the voyage, and is such an importation as legalizes the trade. But the Advocate-General, if in fact basing his remarks on the above judgment, would appear to have lost sight of the fact that it was qualified by a reference to the length of time during which the goods were warehoused ; and the subsequent decision in The William in 1806 certainly falsified the prediction relative to the view likely to be taken by the Court of Appeal. The Thomyris (r) (1808) is also an interesting case in this {q) Mentioned in Maritime "Warfare, p. 206. (r) 1 Edw. Ad. 17. Vide also The Jonge Pieter, p. 260, wfr.a. Capture : illicit trade : continuous voyages. 239 connexion. A Britisli order having proHbited all trade fj'om the port of one enemy to that of another, certain barilla on the American ship Thomyris was seized in respect of an alleged breach of this order, viz., in being carried from Alicante to Cherbourg. It appeared that the goods were brought from Alicante to Lisbon, where they were put on board the neutral vessel for Cherbourg. "In all cases of this description," said Sir W. Scott, "it is a clear and settled priaciple that the mere transhipment of a cargo at an intermediate port wiU not break the continuity of the voyage, which can only be effected by a previous actual importation into the common stock of the country where the transhipment takes place." The barilla was declared to have been sold at Lisbon, but it was decided that the goods having been water- borne at the time of the alleged sale, and then transhipped, no importation could be considered to have taken place. The Stephen Mart, The Springbok, and The Peterhoff, men- tioned in connexion with the subject of contraband (pp. 186 et seq., supra), provide an exposition of the view of the United States Courts relative to the continuous voyage question. The prohibitions against engaging in the enemy's privi- leged colonial trade apply also to his privileged coasting trade. " As to the coasting trade," said Sir "W. Scott in The Emanuel (s), " supposing it to be a trade not usually ojDen to foreign vessels, can there be described a more effective accommodation that can be given to an enemy during a war, than to undertake it for him during his own disability ? " In The Johanna Tholen {t), however, it was observed that whereas the penalty formerly enforced by this country against neutral vessels so engaged was confiscation, it has in later times been reduced to a forfeiture of freight. But this mitigated penalty is applicable only in cases where the trading has (s) 1 Rot. 300. (t) 6 Rob. 72. 240 Belligerent Rights against Neutrals. teen open and nndisguised. Where it has teen aggravated hj concealment or subterfuge, such as the carrying of false papers (as in this case), the stricter penalty of former times has been enforced. " Sailing under the enemy's licence is deemed, per se, an eflBcient cause of condemnation" (m). Illicit Trade. — Neutrals possess, it is true, the right to carry lawful merchandise the property of belligerents, but annexed to this right is the implied condition that such traffic shall be engaged in openly, without subterfuge. Any underhand or fraudulent conduct on the part of a neutral, with the view of evading belligerent rights, will expose both ship and cargo to condemnation. Of this, the case of Darby V. The Brig Ernstern, in the United States Courts {x) , is an exceptional but well-defined instance, the ship and cargo being both condenmed on the ground that neutral subjects cannot, consistently with neutrahty, combine with enemy subjects to wrest from their adversary advantages acquired by the rights of war, and so, in effect, take part with the enemy. During the hostilities occurring in 1782 between this country and the United States, Dominica capitulated to the latter power, which thereupon prohibited all commerce be- tween the island and Great Britain. To evade this prohibi- tion, one Mason, a British subject, arranged with an Ostend firm to ship goods from London via Ostend. This firm bought in London the brig Ernstern, which was loaded by Mason for Ostend. On arrival there the Ostend firm suppHed her with false and colourable papers, assumed the ownership of the cargo, and disguised it under neutral garb in order to (m) Story's Prize Courts, p. 70, oases cited, (x) 2 Sail. 34. CaPTUEE : ILLICIT TEADE : CONFISCATION. 241 screen it from capture. These precautions were, it would seem, quite superfluous, as an Act of Congress had abeady extended protection to enemy goods on neutral ships. The vessel was seized and detained, and ultimately, in the peculiar circumstances, condemned, the American Court de- ciding that the vessel had exceeded the rights accorded to neutral vessels. "Can such conduct," it was inquired, "consist with neutrality? Can there be a more flagrant violation of it ? Does it not aim to wrest from France and the United States the advantages they acquired hy the con- quest of Dominica ? And does it not evince a fraudulent comhination with British subjects, and a palpable partiality?" The Commercen {y) is another leading case in the American Courts in relation to unlawful trade. During the progress of hostilities between Great Britain and the United States, a Swedish vessel, whilst carrying a cargo of English oats and barley for use by the British forces in the Spanish peninsula, was captured by an American cruiser. The direct effect of this voyage, said the Court, was to aid the British hostilities against the United States ; and a vessel engaged in carrying stores for the exclusive use of the British forces must, to aU intents and purposes, be deemed a British transport. The cargo being confiscated, freight was denied to the neutral carrier — a penalty which was declared to be, in the circum- stances, a very lenient administration of justice. Confiscation. — To engage in the privileged trade of the enemy, with the necessary consequence of mitigating, so far as he is concerned, the inconveniences to which it is the right, as well as the policy, of his adversary to subject him, is an offence involving confiscation of neutral property so engaged. [y] 1 Wheat. Rep. 382. Also p. 175, supra. 242 Belligerent Rights against Neutrals. As we have seen, there is not complete unanimity touching the propriety of classifying such an objectionahle traffic as an offence against the law of nations, and the penalty of con- fiscation is not enforced with the strict severity observed in some other cases. Thus, in the leading case of The Immanuel {z),m 1799, though the ship and cargo were of the same ownership, the cargo only was condemned. The Immanuel, a Hamburg ship, whilst on a voyage from Ham- burg to St. Domingo, a French possession, shipped some goods at Bordeaux, and Sir W. Scott, in condemning these goods, intimated that, until better instructed by the judg- ment of a superior tribunal, he would hold himselE not to be authorized to restore goods, although neutral property, passing in direct voyage between the mother country of the enemy and its colonies. The Hamburg goods, on the other hand, were restored ; and also the ship, but without freight or expenses. The learned judge, in restoring the ship, remarked that if the goods had been contraband, the ship would have been liable to confiscation, but that this was a case where a neutral might more easily misapprehend his own rights, and where he acted without the notice afforded by former decisions on the subject. In The Johanna Tholen (a), however, the King's Advocate, in his reply, laid down a clear distinction between cases of open and undisguised traffic, and cases attended by concealment of purpose and falsification of documents. " In such cases, the course which this Court has pursued in various instances has been to resort to the more strict principle of former times, and to hold the vessel herself subject to confiscation." Cases on this point are The Edward {h), The Roffnung{c), The Eheneser {d), The George (2) 2 Rob. 186. [a) Supra. (J) 4 Rob. 68. («) 2 Rob. 162. Id) 6 Rob. 250. See also The Carolina, 3 Rob. 75 ; and The Mars, 6 Rob. 79. Capture : illicit trade : confiscation. — Ins. 243 Thomas {e), and The Volant {/). And application of the same principle involved, as we have just seen, the condem- nation of the brig Urmtern in the United States Courts. Insurance. The engaging in the enemy's privileged trade constitutes a breach of neutral warranty. Thus in Berens v. PMcher {g), Lord Mansfield intimated that if a neutral vessel traded to a Prench colony with all the privileges of a French vessel, it must be deemed to have been adopted and naturalized, and to be liable to con- demnation as an enemy's ship. " There can be no doubt," says Arnould (A), " that an insurance effected in this country, being at the time a belligerent power, to protect neutral trading of this exceptional character, would be treated as wholly illegal and void by our Courts, on the ground that 'trading to an enemy's colony, with all the privileges of an enemy's ship, causes a neutral vessel to be regarded as an enemy's ship, and renders her lawful prize.'" If illegal trading be carried on by the master without the authority of his owners, and the vessel be confiscated in consecLuence, the circumstances may be such that the loss may be attributed to barratry («). The last of the Belligerent Eights against Neutrals to be considered is that of Pre-emption. (e) 3 Rob. 233. (/) 4 Rob. App. ; 1 Act. 171. ig) 1 W. Black. 314. See also The Immanuel, and The Anna Catharina, supra, and The Dree Gebroeders, 4 Rob. 232. (A) Mar. Insoe. 5th ed. 701. (i) Amould's Insoe. 6th ed. 763. r2 244 Belligerent Rights against Neutrals, Pre-emption. The belligerent right to pre-empt or " requisition " the property of neutrals may be resorted to either as a modified form of the harsher right of confiscation, or on the principle that necessity knows no law, and that consequently in a moment of peril the paramount right of self-preservation justifies the appropriation of whatever comes ready to hand either as a weapon of offence or a means of defence. Under the head Contraband of War {h), the articles gene- rally subject to pre-emption in lieu of confiscation, and the circumstances in which the right is to be applied, have already been considered. It may, however, be convenient for present purposes to briefly recapitulate them. Certain articles, then, of equivocal nature, that is, equally applicable either to peace- ful or to warlike uses, have in bygone days, in lieu of the confiscation to which the latter quality condemned them, been sometimes placed on an exceptional footing. Chief amongst these articles are provisions. There seems to be no definite rule governing the circumstances in which such goods are liable to pre-emption, and the subject has from time to time been by turns hotly debated and regulated by international treaty. This will sufficiently appear on refer- ence to the subject of Contraband generally, pp. 156 — 200. Broadly stated, provisions in a made-up or manufactured state, ready for consumption and suitable for naval or military purposes, have been regarded as contraband if des- tined for a naval or military port of the enemy, or if presum- {k) Pages 173 — 179, supra. Pee-emption. 245 ably intended for warlike purposes. Foodstuffs not made up ready for consumption, such as grain and flour, and provisions generally, destined for non-military ports of the enemy not invested, have been by some held to be subject to pre- emption, on the ground that such goods, though not subject to condemnation as contraband, are nevertheless objectionable as tending to defeat the possibility of starving the enemy into submission : and that it is therefore permissible either to pre- empt them or to order them o£E from the enemy coast. Naval stores apparently intended for the enemy's warlike uses have been regarded as contraband and subject to condemnation accordingly, but pitch and tar, when the produce of the coun- try exporting them, were, in Sir W. Scott's time, subjected to the milder right of pre-emption. The reason for this relaxation of the stricter belligerent right was that these articles formed such a considerable part of the ordinary export trade of the countries producing them that their wholesale confiscation would have exposed such neutral powers to exceptional injury. The treaty of commerce arranged be- tween this country and the United States in 1796 provided, as regards provisions and other articles which, though not generally contraband, may be so regarded, that whenever these should by the existing law of nations be regarded and seized as contraband, they should not be confiscated, but the masters or owners of the vessels should be paid the full value of the articles, with a reasonable mercantile profit, plus freight and demurrage. The reason expressly given for this stipu- lation is that it is " expedient to provide against the incon- veniences and misimderstandings " likely to arise from the diflSculty of agreeing on the precise cases in which such goods become contraband. But to entitle a neutral owner to the benefit of the milder rule of pre-emption it has always been necessary that he shall have acted strictly bond fide {I). As to [1] The Sarah Christina, 1 Kob. 241. 246 Belligerent Rights against Neutrals. the price to be paid by the pre-emptors, it is to be based on the principle of reasonable compensation. Although famine prices may be prevailing at the port of the vessel's intended destination, the belligerent captor is not to be held liable to indemnify on that basis (m). The owner is to receive a reasonable indemnification and a fair profit, having regard to the original cost and expenses, and the captor is under no obligation to take these cargoes on the terms on which the enemy would be content to purchase them ; and the same principle is to be observed in awarding costs and damages against captors adjudged to have made a vreongful seizure («). In The Zacheman (o), where a cargo of tar from Sweden to Eochefort had been brought in for inquiry whether it was intended for government purposes or not, and with a view to exercise of the right of pre-emption (substituted by treaty with Sweden for that of confiscation), the British Government ultimately refused to purchase. On this the neutral owners claimed damages for the delay, and Sir "W. Scott decided that three weeks' demurrage should be paid by the government, observing that the Admiralty must understand that it was due to the owners that such matters should not be kept sub- ject to long negotiation, but that a conclusion must be come to promptly. Naval stores laden on neutral vessels before declaration of hostilities, and intended for an enemy port, are liable to be seized iu port of loading and pre-empted (p). Section No. 38, in the Naval Prize Act, 1864, deals with the subject of pre-emption as follows : — " Where a ship of a foreign nation passing the seas laden with naval or victualling stores intended to be (m) The Haabet, 2 Rob. 174. («) The Sarah Christina, stipra. (o) 5 Rob. 152. {p) The Maria Magdalena, Hay & Marriott, 250. Vide also The Vryheid, ibid, 188 ; and Mar. "Warfare, pp. 253, 254. Pee-emption. 247 carried to a port of any enemy of Her Majesty is taken and brought into a port of the United Kingdom, and the purchase for the service of Her Majesty of the stores on board the ship appears to the Lords of the Admiralty expedient without the condemnation thereof in a Prize Court, in that case the Lords of the Admi- ralty may purchase, on the account or for the service of Her Majesty, aR or any of the stores on board the ship ; and the Commissioners of Customs may permit the stores purchased to be entered and landed vdthin any port." In former times, it was no doubt, on occasion, quite within the range of possibility to bring the enemy to terms by cutting ofp his food supplies. But matters now stand on a very different footing. Well-nigh the whole of Europe is a network of railway communication, and not only is each country intersected, but the communication is carried unin- terruptedly into neighbouring states ; so that the expedient of pre-emption as a means of cutting ofE supplies from the enemy wiU presumably not be largely resorted to in the future. The above remarks relate more particularly to the pre- emption of neutral property destined for enemy uses, and seized with the primary object of preventing such use. The requisitioning of neutral property by belligerents altogether irrespective of its intended use or destination, stands on a different footiug; viz. that based on the principle of self- preservation or urgent necessity. This peculiar belligerent right, for present purposes — and perhaps not altogether incorrectly— included under the head Pre-emption, is techni- cally known by the name Droit d^angarie, jus angaricB, or Angary {q). " By virtue of urgent necessities of war," says (?) '"yyo^piv": "to press one to serve as a courier." A Roman system of impressment, in force of which the supply and maintenance of horses was compulsory on the roads of the Empire in order to secure the constant trans- mission of imperial despatches : a government postal system. 248 Belligerent Rights against Neutrals. Beawes(r), "vessels are frequently detained to serve a prince in an expedition; and, for this, liave often their lading taken out, if a sufficient number of empty ones are not procurahle to supply the state's necessity, and this without any regard to the colours they bear, or whose subjects they are ; so that it frequently happens that many of the European nations may be forcibly united in the same service at a juncture when most of their sovereigns are at peace and in amity with the nation which they are obliged to serve. Some have doubted of the legality of the thing, but it is certainly conformable to the law both of nations and nature, for a prince in distress to make use of whatever vessels he finds in his ports, that are fit for his purpose and may contribute to the successes of his enterprise ; but under this condition, that he makes them a reasonable recompense for their trouble, and does not expose either the ships or the men to any loss or damage." The right has been described as less a right than an abuse of that power which a sovereign disposes of in places within his dominion ; but, both by treaty and by special agreement, it has been recognised as a necessary incident of war. An instance in which the right was, two centuries ago, exercised by this country will be found in the footnote on p. 255, infra; but a recent and therefore more important example occurred in the Franco-Prussian War of 1870. Lying in the Seine, near Duchair, were eleven merchant vessels, and these were all seized and sunk by the Prussian troops in order to block the channel against the approach of certain French warships. Amongst the ships thus requisitioned were six English colliers, which, in accordance with permission previously obtained from the Prussians, had come up to Rouen to discharge their cargoes. This operation had, in fact, been (r) Lex Meroatoria, quoted in Mar. Warfare, p. 213. Pre-emption. 249 completed, and the vessels were about to return with a ballasting of cliff-chalk for the Tyne, when the crews were ordered ashore, the ballast-ports were enlarged, and the vessels sunk, the Prussian officer declaring that he took the vessels (for which he gave receipts) as a military requisition. On representations being made to Prince (then Count) Bismarck with respect to this arbitrary destruction of British property, he replied that the measure, however exceptional, was justi- fied on the ground of necessity. "It did not," he said, " overstep the bounds of international warlike usage, and was, so far as a neutral state was concerned, entirely a matter of indemnification for the damage done." At another stage of the negotiations, the Count had, it is true, stated that he found that the law officers held that a belligerent had a full right, in self-defence, to the seizure of neutral vessels in the rivers or inland waters of the other belligerent, and that com- pensation to the owners was due by the vanqiiished power, not by the victors ; adding, that if conquering beUigerents admitted the right of foreigners to compensation for the destruction of their property in the invaded state, they would open the door to new and inadmissible principles in warfare ; and that claims for indemnity were submitted to him daily by neutrals holding property in France, which he could never admit : but that he valued the friendship and good- will of England too highly to accept this interpretation of the law in the case which had arisen, and that he preferred to give full satisfaction to the people of England. With all respect for the opinion attributed to the German law officers, and to Count Bismarck's illustration in con- nexion with it, the case of foreigners domiciled in the conquered country, the fortunes of which they must be held to have deliberately elected to share, stands on a very difEerent footing from that of neutrals present on the waters of the belligerent state for a purely temporary purpose, 250 BELLiaEEENT RiGHTS AGAINST NeUTEALS. especially when, as in this case, the British vessels were within the belligerent dominion by express permission of the invaders. But be this as it may, the Prussian Grovemment having both frankly expressed their regret at the occurrence, and their perfect willingness to indemnify the sufferers if the British Government would accept the duty of fixing the amount of compensation, the difficulty was thus amicably arranged, the question of compensation being referred to the Board of Trade. Compensation was ultimately awarded as follows : — (1) Estimated market value of the ships as fixed by Lloyd's surveyors, less 151. net proceeds of ship's boats sold by the masters. The Prussian Government volun- tarily agreed to pay, in addition, the sum of 25 per cent, on such values as a compensation to the owners in respect of any loss to them consequent on a forced sale. The Board of Trade considered this allowance extremely liberal, and beyond the merits of the case. (2) The chalk ballast to be valued at Ss. 6d. per ton, that is, those vessels which were ah-eady ballasted to be dealt with on that basis. Vessels not loaded to be allowed 2s. 6d. per ton — the loading charges being calculated at Is. per ton. The owners claimed 10s. per ton, the famine value at Newcastle, where the price had been sent up in consequence of the non-arrival of the vessels with the expected supplies. But on the basis of the official report, the allowance was fixed at the ordinary market price there. (3) Claims for owners' loss of employment of the vessels, and for masters' and crews' loss of employment, were re- jected. As regards the second item, it was observed that the crew were presumably engaged for the voyage out and home, and that they were consequently hable to be dismissed on their return to the Tyne without right to compensation. (4) Claims for loss of effects were rejected, as it was evident that the men were allowed ample opportunity to land Pee-emption. 251 their effects. Excessive claims were put forward, in some cases for loss of watches and chains, cash, and nautical instruments, though, as it appears, the claimants, notwithstanding their alleged precipitate departure, had contrived to carry ashore with them cimibrous articles of clothing. It was, however, agreed to allow a small gratuity as against the possible value of any portion of clothes which might have been lost. (5) Expenses incurred by Her Majesty's Government in send- ing the crews home were allowed, as well as the outlay for consular fees and protests. Also travelling and subsistence money and cost of valuations. (6) Interest was allowed at 5 per cent, from 1st January, 1871 (instead of from 21st December, 1870, as claimed) to end of April, 1871. The total allowance was 7,088/. 8s. 5d. (minus the value of the boats, 161. 2s. Od.), or less than one-third of the svim for which claims were originally put forward (s). There were also, it may be mentioned, seized by the Prussians during the same war, between six and seven hundred Swiss railway carriages and some Austrian rolling stock, which were devoted to military uses throughout a considerable period of the war (/) . The seizure of the Genoese corn- ship by the Venetian war- galleys, to which reference has already been made {u), although apparently unconnected with the existence of any hostilities, is interesting as an instance of the right of pre-emption arising out of urgent necessity. " There was a famine at Corfu " — this is the history of the seizure as tersely given by Eoccus (Note lx.) — and on this fact the seizure was justified. («) state Papers, 1870-1, vol. 61, pp. 675—612. {i) Pitt Cobbett's lieading Oases, p. 254. (m) p. 39, supra. 252 Belligeeent Rights against Neutrals. Insurance. As has already been pointed out under the head " Embargo and Eeprisals " (v), a seizure of neutral property with the view not of confiscation, but of paying for or ultimately restoring it, is, within the meaning of the marine policy, to be regarded rather as an arrest than as a capture (w). The ordinary wording of the policy, it is true, admits liability for the one as much as for the other, but it would seem that the right to abandon to underwriters may, in certain cases of arrest, be less obvious than in cases of capture. The seizure of the Genoese corn-ship, men- tioned above, was held not to be a capture but an arrest, during which the captain remained in charge of his ship ; and as this arrest was, so far as the vessel herself was concerned, merely temporary, the Genoese Eota-Court decided that the shipowners were not entitled to abandon to underwriters. Arnould, re- ferring to the corn, observes that a question has been raised whether in similar cases the assured can recover as for a loss by arrest and detention ; but, he observes, " I have no doubt that in . point of strict law the assured is entitled to recover as for a total loss, deducting, however, the money paid him by the arresting government from the amount of his claim under the policy " (x). Later, referring to the ship, he says, " Of course, if the arrest creates only a temporary obstruction of the voyage, without giving rise to any permanent loss of control over the ship, it cannot give any right to abandon." Perhaps a distinction may reasonably be drawn in such a case between the ship and the cargo, for it may well be a foregone conclusion that the ship will be released — and this without unnecessary delay — and that the cargo will be retained. This being so, the reason for abandon- ment of the ship seems less obvious. But, as regards the cargo, as it has passed away from the owners for good and all, owing to the operation of a peril insured against, they are pre- sumably entitled to recover as for a total loss, after notice of abandonment. But if, before commencement of the proceedings, [v) P. 39, supra. {w) Vide Eodooanaohi v. Elliott, 28 L. T. Eep. 844. (x) fith ed. p. 765. Pee-emption — Insurance. 253 the arresting government should have paid over the value of the cargo appropriated, then the amount recoverable from under- writers would presumably ' he any deficiency as between the amount of such payment and the sum insured. Which, it may be supposed, is what Arnould intended by his above observation relative to the corn. The wages and provisions of the crew while the ship is under arrest are not chargeable against the underwriters on the ship. The shipowner is deemed to have taken into his conclusions the possibility of detention, and to have calculated his freight accord- ingly. The period of detention is considered as part of the voyage, and the shipowner cannot look to his underwriter for expenses outside the contract of insurance. Nor does the arrest break up the voyage under the charter-party, or dissolve the contract of aflFreightment. " Subject to the rights of the captor, and so long as these rights remain unestablished by a sentence of condemnation as to ship or cargo, or both, the original con- tract of affreightment is binding on both parties." (Maclachlan on Shipping, 2nd ed., p. 460 ; but vide p. 425, infra, with respect to the effect of unlivery by order of the Court.) Having now considered the rights of belligerents (1) against the enemy, and (2) against neutrals, let us proceed to dis- cuss the third class of belligerent rights, viz., Municipal (in contradistinction to International) Eights. ( 254 ) VI. BELLIGEEENT MUNICIPAL EIGHTS. PAOE Restraint, Seizure, and Destruction of Property of tte National Subjects 254 Prohibition of Trade witb tbe Enemy . . . . . 258 Issue of Special Licences to Trade with the Enemy ; Passports and Safe-Oonducts . . . . . . .277 Grant of Licence to Cartel Ships . . . . . 292 Permission or Prohibition of Hansom .... 296 Prohibition of Export of Articles subservient to Warlike Uses . 306 Resteaint, Seizure, and Destruction of Property OF THE National Subjects. It has teen seen above (a) that there is conceded to helli- gerents the right in case of pressing necessity to "requi- sition " neutral property within the belligerent dominion, subject to the condition that property so seized shall be duly paid for. There is, therefore, nothing surprising in the fact of a state resorting in case of need to similar measures as regards property of its own subjects, of whatever nature consisting. Thus it is related that Peter the Great laid (a) P. 244, sttpra. Restraint, etc. of National Property. 255 waste some eighty leagues of his own territory in order to check the advance of Charles XII. of Sweden, and in 1812 the city of Moscow was, as is commonly helieved, set on fire by the Russian authorities with a view to rendering the position of the !French invaders untenahle. Just as the Prussians sank the English colliers at Eouen in 1870 in order to prevent the French war-ships coming up the Seine, so in 1667 Charles II. sank vessels ia the Thames in order to stay the progress of the Dutch fleet towards London (b), and seized English vessels for conversion into fire ships. " Ee- ceiving," writes Pepys in his diary, "every hour almost letters from Sir "W. Coventry calling for more fire-ships ; and an order from council to enahle us to take any man's ships ; and Sir W. Coventry, in his letter to us, says he do not doubt but at this time (under an invasion as he owns it to be) the king may by law take any man's goods." Emerigon, in his Treatise on Insurances (§ XXXII.), writes: "By the Roman law the owners of vessels were obliged to furnish their vessels for the transport of com, and for other public necessities. It is the same with us. . . . Not only may the Eang take the ships of his subjects for the service of the state; he has besides authority to employ in the same (i) Pepys's Diary is instmotive reading on this point. On 14 June, 1667, he writes : — " At night come home Sir W. Batten and Mr. Pen, who can only tell me that they have placed guns at Woolwich and Deptford, and sunk some ships below Woolwich and Blackwall, and are in hopes that they will stop the enemy coming up. But strange our confusion ! that among them that are sunk they have gone and sunk without consideration the ' Franolin,' one of the King's ships, with stores to a very considerahle value that hath been long loaded for supply of the ships ; and the new ship at BristoU, and much wanted there. And nobody will own that they directed it, but do lay it on Sir W. Ryder. They speak also of another ship loaded to the value of 80,000Z. sunk with the goods in her, or at least was mightily contended for by him, and a foreign ship that had the faith of the nation for her security ; this Sir R. Ford teUs us. And it is too plain a truth that both here and^at Chatham the ships that we have sunk have many, and the first of them, been ships completely fitted for fire-ships at great charge." 256 Belligerent Municipal Rights. manner foreign vessels found in Ms ports : in wHcli the law of nations is not violated. The practice of Europe, says Vattel, conforms with this maxim. And again he remarks : Sovereigns who thus take national or foreign vessels for their service, never fail to pay them a suitahle freight." It goes, indeed, without saying, that if the ships or goods of the national subjects be utilized or destroyed by the state in protection of the nation, the subjects whose property is thus forcibly seized must be duly indemnified. Insurance. It has been indicated above, suh "Embargo and Eeprisals " (c), that seizures of which the motive is not confiscation as prize, but rather appropriation and payment of value, are to be regarded as "arrests," and not as "captures." "There appears to be no doubt," says Arnould {d), " that if a British ship be arrested or seized by the British Government, from any state necessity, or detained in port by a British-laid embargo, this is a loss for which the underwriters are liable as a detention within the meaning of the policy" (e). He observes also that(/) "an arrest takes place whenever the government of a country to which a ship belongs, or any other friendly power, with the design not to make prize (for then it would be a capture), but to restore the ship and goods, or to pay the value of them to their owners, seizes ship and goods for state purposes, either in port or at sea." And in a recent case (ff), the Court, in accepting this definition, observed that Arnould stated it "in the clearest pos- sible way." That imderwriters are liable for losses arising from such arrests was decided by the Courts in a case where a British vessel was seized by the British Government, and con- (c) p. 39, SMjom. Vide also sub "Pre-emption," p. 252. {d) Mar. Insoe., 5th ed. p. 763. (e) Dictum of Lord Alvanley in Touteug v. HubTjaid, 3 B. & P. 291, 302. Vide p. 42, supra. (/) Sth ed. p. 751. 1^) Crew, Widgery & Co. v. Gt. Western S.S. Co., T. L. R. p. 738. Eesteaint, etc. of National Pjkoperty. — Ins. 257 verted into a fire-ship {h), and in another, where a vessel was seized and taken in tow hy a British man-of-war, and damage was thereby caused to her cargo (i). In Aubert v. Gray {j ), already referred to in connexion with the subject of Embargo (p. 45, supra), it was definitely decided by the Court that the assured is not to be identified with and deemed responsible for the acts of his own government so long as peaceful relations exist between such government and the government of the underwriter. This was a case where the assured was a Spaniard who had effected insurance in England, and the loss was caused by the act of the Spanish Government. But any question whether the embargo or arrest was effected by the home or by a foreign government will, so far as concerns the underwriters, apparently be immaterial (A). In connexion with this subject, the remarks sub Embargo (pp. 39 — 48, supra) may be usefully referred to. As regards the effect of arrest, detention, or embargo on the contract of affreightment, the point has already been touched upon sub Pre-emption (p. 252), supra. Chap. XIII. — Effect of War on Contract — ^is also interesting in the same connexion. Let lis now look at the iDelligerent municipal right of prohibiting all intercourse with the national foe, — a condition which may be said to be almost necessarily attendant on the existence of hostile relations. [h) Grreen v. Toung, 2 Lord Eaym. 840 ; Salk. 444. (i) Hagedom v. "Wliitinore, 1 Stark. 157. [j) 3 B. & S. 163. (k) Amould, 5th ed. p. 754. 258 Belligerent Municipal Rights. Peohibition of Teade with the Enemy. It has been explained above (k) that when war has once been entered upon, every individual of the nations engaged is considered to be involved in it, and that the effect of this taint of hostilities is to stop all peaceable intercourse as between the subjects of the nations so opposed ; and that, as a natural consequence, all trading with the common enemy becomes at once illicit to the subjects of the belligerent state. For it is obvious that there cannot consistently exist at one and the same time a condition of open hostility between two nations at large, and a state of peaceful — that is, friendly^ — intercourse as between the subjects of such nations as indi- viduals. While the times have presumably for ever passed away when the persons and property of enemy subjects domi- ciled in the belligerent country can be seized on the outbreak of war (l), the condition remains that trade with the foe, whether by land or by water, must absolutely cease imme- diately on the close of friendly relations. In the last formal declaration of war issued by this country, viz., in 1762, against Spain (m), British subjects were thenceforth strictly forbidden to " hold any correspondence or communication with the King of Spain or his subjects." And on declaration of war against Russia ia 1854, it was ordered that "no ships or vessels belonging to any of her Majesty's subjects be permitted to enter and clear out for any of the ports of Eussia till further order." No such express declarations are, however, neces- (Jc) Vide p. 13, supra. {I) Ibid. [m) Vide Twiss's Int. Law, p. 65. Prohibition of Trade with the Enemy, 259 sary, the doctrine teing well settled by the English Courts that there cannot exist at the same time a war for arms and a peace for commerce. Por this reason all contracts made with the enemy during war are utterly void(«), and such contracts existiag prior to the outbreak of hostilities are suspended until the resumption of peaceful relations. (For further consideration of this subject, see under Effect of War on Contract, p. 412.) The prohibition of friendly intercourse covers not merely trade as generally understood, but also communications and transactions of whatever kind ; such, for example, as the negotiation of bills, or the remission of funds to the enemy's country (o). In the leading case of Willison v. Patteson the circumstances were as follows : — One Varlet, of Dunkirk, was debtor to Michelon of the same place, and in this capacity he transferred to the latter certain cambrics held by Patteson & Co. of London, the defendants, who were notified accordingly. Michelon drew against Patteson, who accepted the drafts, which Michelon had endorsed over to WHlison, a Scotchman resident at Dunkirk. During these transactions war prevailed between England and France. The defendant Patteson having failed to honour his acceptance, Willison, on restoration of peace, sued him on the drafts. The Court, in deciding against the plaintiff, observed that that cannot be done indirectly which cannot be done directly ; and that Michelon could neither during war bring an action for money had and received against the holder of his funds here, nor by drawing on his debtor produce the same effect. The bill was a con- tract ; and no contract could be enforced in a British Court which is made during the war by an alien enemy. (») Willison t>. Patteson, 7 Taunt. 439 ; Ogden v. Peele, 8 B. & E. 1 ; Bell V. Eeid, 1 M. & S. 731 ; Esposito v. Bowden, infra, p. 416, (o) Willison v. Patteson, supra. s2 260' Belligerent Municipal Rights. In Antoine v. Morshead{p), however, where a British suhject, prisoner of war in Prance, drew a bill in favour of fellow prisoners, also British subjects, on his son in England for his own subsistence whilst in captivity, and the bill was endorsed in favour of a French banker, who obtained its acceptance, it was held that this was not a trading with the enemy, and that the plaintiff, on peace being proclaimed, was entitled to sue for payment by the acceptor. An element in this case was that the bill was drawn by a British subject on a British subject. Prohibitions against commercial intercourse are not to be evaded by any artifice or device, such as by means of partner- ships with or the interposition of third parties {q). In The jtonge Pieter (r), goods purchased in England and shipped for Embden, with ultimate destination Amsterdam, an enemy port, were seized by a British cruiser as being shipped in breach of the prohibition of trade with the enemy. The goods were claimed as the property of a neutral, a merchant in America, for whose account the shipment was declared to have been made by his agent in London. The Court found that, ia the absence of sufficient evidence in support of this allegation, the ownership must be deemed to be vested in the British shipper; and, as the goods were destined for the enemy via neutral territory, judgment was given in favour of the captors. " Without the licence of government," said Sir W. Scott, "no communication, direct or indirect, can be carried on with the enemy." So also in The Samuel (s), where a British subject employed a neutral to purchase for him in the country of the enemy, the neutral was held to be merely the agent. {p) 6 Taunt. 237. iq) Kent's Int. Law, 2nd ed. p. 186. ()■) 4 Eob. 79. (s) 4 Eob. 284 ; 8 Tei-m E. 548. Prohibition op Trade with the Enemy. 261 In The JSfayade (t), England and Portugal being at war with France, a cargo shipped at Lisbon for Bordeaux was seized by a British cruiser. The property was alleged to belong to a Prussian subject resident in Lisbon, but the Court declared that there was nothing in this case to distinguish it from that of any other Portuguese merchants trading with the enemy. In another case (««) a shipment of tobacco had been made from Virginia to Bordeaux, described as the pro- perty of J. Bell, the shipper. It appeared, however, that J. Bell was a member of the firm J. & W. Bell, established both in America and in England, and the captors claimed that the shipment, so far as it belonged to W. Bell, the partner resident in England, was lawful prize. W. Bell having failed to produce satisfactory evidence in disproof of his interest in the property, the Court condemned a moiety of it as the property of a British subject trading with the enemy. In The Indian Chief (v), a cargo had been shipped at Batavia (a possession of the enemy) on behalf of a Mr. Miller, an American subject and consul in Calcutta, who protested against the captors' claim on the ground that, being resident in Calcutta, and a neutral subject, and American consul, he did not come within the law against trading with the enemy. The Court held that, being domiciled in Calcutta, which was in possession of the British, he must be held to be a British subject, and that a consul engaged in commerce derived no such special protection from his official position. In another case it was decided that the property of a British representative, resident in the enemy's country, is not protected from seizure, however beneficial to this country the {*) 4 Bob. 251. («) The FranHin, 6 Bob. 127. (ji) 3 Eob. 22. 262' • Belligerent Municipal Rights. commeroe may he {to). On the other hand, the citizen of a helligerent country, domiciled in a neutral country, may lawfully trade -with the enemy of his native country {x). The trade must not, however, be in articles contraband of war ij/). The leading case on trading with the enemy is that of The Hoop (z), a neutral vessel which, at the end of the last century, sailed mth a cargo from Rotterdam, ostensibly, in order to deceive the French cruisers, to Bergen, but really for a British port. This case affords an instance of the strict severity with which the law is administered as regards the offence now under consideration, and is, raoreover, especially instructive owing to the numerous relative precedents cited in the judgment. The British owners of the cargo had, it ap- peared, for some time traded extensively with Holland, and on the occupation of that country by the French, a special licence was granted to them to continue this trade. Being, however, subsequently officially, but erroneously, informed by the Com- missioners of Customs of Grlasgow that goods could in future, according to a recent Act of Parliament, be brought from the United Provinces without special permit, the above shipment was thereupon made without such permit, and was seized and submitted for adjudication. Sir W. Scott, in giving judgment for the captors, observed that by a general rule in the maritime jurisprudence of this country, all trading with the public enemy, unless with the permission of the sovereign, was interdicted and involved confiscation, and he cited numerous cases illustrative of the strictness with which this rule had been enforced in the past. " In my (w) Ex parte Baglehole, 18 Ves. jun. 328 ; 1 Bose, 271. (a;) The Danous, 4 Hob. 255, note. {y) The Neptimus, p. 270, infra. \z) 1 Bob. 196, Prohibition of Trade with the Enemy. 263 opinion," lie observed, " no principle ougbt to be held more sacred than that oommeroial intercourse cannot subsist on any other footing than that of the direct permission of the state." Further:— "In all cases of this kind which have come before this tribunal, they have received an uniform determination. The cases which I have produced prove that the rule has been rigidly enforced, where Acts of Parliament have, on different occasions, been made to relax the naviga- tion laws, and other Eevenue Acts, when the government has authorized, under the sanction of an Act of Parliament, a homeward trade from the enemy's possessions, but has not specifically protected an outward trade to the same, though intimately connected with that homeward trade, and almost necessary to its existence; that it has been enforced where strong claim, not merely of convenience, but almost of necessity, excused it on behalf of the individual ; that it has been enforced where cargoes have been laden before the war, but where the parties have not used all possible diligence to countermand the voyage after the first 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 had a right to notice and apply mutually to each other's subjects. Indeed, it is the less necessary to produce these cases, because it is expressly laid down by Lord Mansfield (a) that such is the maritime law of England." The Bella Guidita {b) is another instance of the rigid application of the principle under consideration. Here, goods were sent in a neutral vessel from England to Grenada, a British possession, which possession, although seized, had apparently not been definitely appropriated, by (») In Gist V. Mason, 1 Term B. 86. (J) 1 Rob. 207. 264 Belligerent Municipal Rights. the French. Special circumstances existed, moreover, in countenance of such a shipment, but, notwithstanding, the vessel was confiscated as being employed in illicit intercourse with the enemy. The case of The Ally {h) is somewhat exceptional. A British vessel sailed for a friendly port in the West Indies, but war was shortly afterwards declared against the country owning the port. On arrival off the coast the vessel was cap- tured, as being engaged in trade with the enemy. But before this occurred the port had been captured by the British, so that at the moment of capture the vessel, although her master was not aware of the fact, was trading with a British and not with a hostile possession. The Court, in ordering the release of the vessel, observed that to justify condemnation there must be the act of trading to the enemy's country, as well as the intention. If the destination, however, had been known to be hostile when the vessel sailed, such a sailing might have been a sufficient act of illegality. In The Anna Catharina (c). Sir "W. Scott laid it down that a contract existing between a person domiciled in a place which had passed by conquest into the possession of Great Britain, and a foreign government at war with Great Britain, became illegal ; but that this illegality ceased on transfer of the con- tract to a neutral. In the American Courts the rule against trading with the enemy is applied with equal strictness. This was exemplified in The Sapid {d), where an American citizen, having pur- chased goods on British territory, deposited them on an island near the frontier, within the British dominion. On the outbreak of hostilities between Great Britain and the (J) 5 Rob. 251, referred to also on p. 272, wfra, q. v. Vide also The De Bilboa, 2 Rot. 133. (c) 4 Rob. 107. [d). 8 Granch, 155. Vide also The St. Lawrence, Hid. 434. Prohibition of Trade with the Enemy. 265 Ameriean States lie sent a vessel — nearly a year after the puroliase — to the island, and removed the goods. The vessel was captured -with her cargo, and both were condemned, the Court observing that to admit a citizen to withdraw property from a hostile country a long time after the commencement of war, on the pretext of its having been purchased before the war, would lead to the most injurious consequences, and hold out temptations to every species of fraudulent and illegal traffic with the enemy. In the same country it has been held that if a belligerent vessel takes on board a cargo from an enemy's ship under pretence of ransom, this is a trading with the enemy. And the vessel may be seized on her return voyage, after having discharged her cargo (e). Also, that a vessel which is captured by the enemy, but released, and on leaving the port of the captors ships a cargo from the enemy's country, must be held to have been engaged in trade with the enemy (/). Immediately on the breaking out of hostilities, a citizen may remove to his own country, with his property () Wbeaton's Intemat. Law, 2 Eng. ed. 456—461. (pp) Vide The Ostsee, p. 325, infra. Vide also pp. 55 and 57, supra; and of. Elanagan v. Hubne, Times, 15 July, 1889. [q) Set forth at length in Story on Prize Courts, pp. 244 — 254. Adjudication : costs and damages. 325 so ascertained can be pleaded by the captors as ground for condemnation, although the particular suspicion which caused them to seize the vessel may prove to have been ill-founded. " The general rule of law is that, on all points, the evidence of the claimants alone shall be received ia the first instance. The evidence must, of course, be received with caution, and duly tested, but the rule is to take the original evidence of the claimants as conclusive, unless impeached" (r). A witness cannot, according to the general rule of prize court procedure; claim a right to modify or enlarge his testimony when once it has been completed and submitted to the Court (s). It is, however, within the rights of the Court to admit such a request (t). A prize commissioner has no right to put to a witness iuterrogatories other than the standing interrogatories, except such as may have been specially framed for the particular case by the Court (m). For a more detailed history of the rules and procedure adopted by the Courts in prize adjudication, reference may be made to Story's exhaustive treatise on the Principles and Practice of Prize Courts. The Naval Prize Act, 1864, may also be profitably studied in this connexion (see Appendix). Costs and Damages. — The principles governing the award of costs and compensation are clearly and comprehensively set forth in the learned judgment of the Privy Council in a case arising out of the hostilities against Russia, in 1854 («). The Ostsee, a neutral vessel, having been seized by IT.M.S. Alban, Captain Otter, and, on adjudication, released, the claimants prayed for compensation on the ground that the capture had (r) The Haabet, 6 Rob. 54. {«) The Peterhoff, Blatch. Fr. Ca. 345. \t) The Stephen Sart, ibid. 387. («) The Peterhoff, ibid. 463. (x) The Ostsee, Sohaot v. Otter, Spinks' Prize Cases, 1854-6. 326 Belligerent Obligations. been unjustifiable. Dr. Lusbington, in rejecting tbis claim in tbe Admiralty Court, delivered bimself thus : — " During tbe seventeen years tbat Lord Stowell (Sir W. Scott) presided in tbis Court, and administered tbe law of nations witb regard to war, I believe tbat, out of tbe many sbips and cargoes brougbt before bim, be condemned tbe captors in costs and damages in only about ten or a dozen cases — not one in a thousand. And Lord Stowell, also, as I rigbt well remember, laid it down tbat be would not condemn tbe captors in costs and damages upon evidence given before bim, without giving them the opportunity of justifying their conduct, and of stat- ing, if they thought fit, the grounds on which they made tbe capture. As far as I recollect, there are only three cases of restitution with costs and damages." In the particular cir- cumstances the Court declined to award costs and damages. From this judgment tbe claimants appealed to tbe Privy Council. The Rt. Hon. T. Pemberton Leigh, in delivering tbe judgment of the Court, said : — " It is agreed on all bands tbat the restitution of a ship and cargo may be attended, according to tbe circumstances of tbe case, witb any of tbe following consequences : — 1. The claimants may be ordered to pay to tbe captors their costs and expenses ; or 2. Tbe restitution may be, as in tbis case, simple restitution without costs or expenses, or damages to either party; or 3. Tbe captors may be ordered to pay costs and damages to tbe claimants. These provisions seem well adapted to meet the various circumstances, not ultimately affording ground of condemna- tion, under which captures may take place. (1.) A ship may, by her own misconduct, have occasioned her capture ; and in such a case it is reasonable that she Adjudication : costs and damages. 327 should indemnify the captors against the expenses which her misconduct has occasioned. Or, (2.) She may he involved, with little or no fault on her part, in such suspicion as to make it the right or even the duty of a belligerent to seize her. There may be no fault either in the captor or the captured ; or both may be in fault ; and in such oases there may be damnum absque injurid, and no groimd for anything but simple restitution. Or, (3.) There may be a third case, where not only the ship is in no fault, but she is not by any act of her own, voluntary or involuntary, open to any fair ground of suspicion. In such a case a belligerent may seize at his peril, and take the chance of something appearing on investigation to justify the capture ; but if he fails in such a case, it seems very fit that he should pay the costs and damages which he has occasioned." His lordship then proceeded to deliver an exhaustive and instructive summary of opinions of the text- writers, and of cases in precedent — some twenty in number — of which he declared the result to be, " that in order to exempt a captor from costs and damages in case of restitution, there must have been some circumstance connected with the ship or cargo affording reasonable ground for belief that one or both, or some part of the cargo, might prove, upon further inquiry, to be lawful prize." What should amount to probable cause, could not be exactly defined ; but if the Court should find in any case in favour of such grounds of capture, the captors would be justified, although the Court should acquit without ordering further proof. In order to subject captors to damages and costs, it is not necessary to prove vexatious conduct on their part, nor will honesty of mistake exempt them from hability to compensate the neutral sufferer by their action ; for costs and damages are not the pimishment of captors, but the compensation of the injured paity. 328 Belligerent Obligations. If the captors' mistake arises from the proceedings of their own Grovernment, they are none the less liahle to the captured, hut they have a claim, on their part, to be in- demnified by the Grovernment iy). In this case [The Ostsee), the vessel had been seized for a supposed breach of blockade, whereas it was clear from her papers that she had committed no such breach. If, as was alleged, there was a confusion with respect to the blockades in the Baltic, the circumstance could nevertheless afford no answer to the claim of a neutral, innocent of all fault. With respect to the captors' contention that having acted bond fide they ought to be indemnified by her Majesty's G-overnment, it was, said the Court, suffi- cient to say that in this case there appeared to be no blame whatever imputable to the Grovernment. They had in no way contributed to the capture or done anythiag to mislead the naval officers. "Whether naval officers who have acted wrongfully as regards neutrals, but without wilful mis- conduct, should be indemnified against the consequences of their acts, by the Crown authorities, was held not to be for the Court to decide. The Court had only to admiaister justice as between the claimants and the captors. Further, it was not for the Court to discuss the question of liability as between the admiral who had given general orders, and Captain Otter who had acted under them ; and public ships and privateers, it was declared, must both be held to be governed by the same principle as regards their liability to pay damages for captures effected without probable or reasonable cause. The Court, moreover, was not iu this decision laying down rules merely for the British navy ; for whatever was held in the English prize courts to excuse a British officer, would, it was observed, be held by foreign Courts to excuse captors members of such foreign nations. {y) Vide Routh v. Thompson, 11 East, 428. Adjudication : costs and damages. 329 Upon the whole, said the Court, the captors must he held liahle, — amount of damages to he fixed hy the registrar in the usual way. So far as any claim for demurrage was concerned, three weeks of the delay had to he attrihuted to the fault of the claimants in rejecting captors' offer of restitution, accom- panied hy payment of claimants' expenses. The Court ohserved, in conclusion, that judgment seemed to have passed in the Court helow without much examination of the principles and the authorities ; and that the cases in which, during the late war, restitution was attended with costs and damages, turned out to he more numerous than was supposed. (It may he added that the damages — 1,223^. as against 1,961/. claimed — were, with interest at 4 per cent., suhsequently paid by the Government.) It is very clear that where there have been reasonable grounds for carrying a vessel into port for examiaation, no claim for costs or damages will be allowed against the captors. Whether in any case the grounds are to be deemed reason- able or not will depend upon the actual circumstances (z). And where a capture has arisen from a reasonable misappre- hension or mistake, a claim for compensation will similarly be refused. Thus, in the case of the four Dutch vessels (a) seized by boats sent from a warship lying iu neutral waters, although restitution was ordered, costs were refused, as the seizure had not been made with any intention to violate neutral territory. In the United States Courts, where a vessel had been captured in consequence of her firing on her subsequent captors imder the mistake that they were pirates, the Court refused compensation, observing that no case had been cited to prove that where a capture was in itself justifi- (z) Vide Story's instances of "probable cause," Prize Courts, p. 36. Also The Iieuoade, 2 Spinks' Eo. & Ad. Rep. 229. [a) The Twee Gebroeder, p. 313, supra; The Gauntlet (1870), L. R. 4 P. C. 184. But i>ide also The Actaeon, 2 Dods. 52. 330 Belligerent Obligations. able, tlie subsequent detention for adjudication had ever been punished by damages (a). In The Glen (b), where a capture was declared to have been made without reasonable cause, costs and damages were awarded. Ajid reprehensible conduct on the part of captors will, where restoration is decreed, involve a similar award (c). The circumstance that the captured vessel has been lost or destroyed without being brought into a port of the captors will not operate as a stop against the adjudication necessary in order to obtaiu an award agaiast captors, for proceedings may be instituted notwithstanding {d). "Where property is sold at a loss, and restitution is subse- quently decreed, captors' liability will be limited to the sale proceeds (e). The prize courts wiU also award damages for all personal torts, not confining the judgment to the actual wrongdoer, but granting a decree, in the case of privateers, agaiust the owners of the vessel (/). And where the captured crew have been grossly ill-treated, a liberal recompense will be ad- judged ((/) . Owners, said the Court, in The Die Fire Darner [gg) , ought not to put their vessels in charge of persons capable of outrageous behaviour. " Whenever the captors are justified in the capture, they are considered as having a bond fide possession, and are not responsible for any subsequent losses or injuries arising to the property from mere accident or casualty ; as from stress of (a) The Marianna Flora, 11 Wheat. 1. (*) Blatch. Pr. Ca. 373. (c) The Anna, p. 312, supra; The Jane Camphell, infra. (d) Vide p. 320, sttpra. (e) The Two Susannahs, 2 Bob. 152. (/) The Anna Maria, 2 Wheat. 327. Ig) The St. Juan Baptista, 5 Rob. 33 ; The Die Eire Damer, 5 Rob. 357 ; The Jane Campbell, BlaUh. Pr. Ca. 101. (^g) 5 Bob. 357. Adjudication: costs and damages. 331 weather, recapture hj tlie enemy, shipwreck, &o. They are, however, in all cases hound for fair and safe custody, and if the property he lost from the want of proper care, they are respon- sible to the amount of the damage ; for subsequent misconduct may forfeit the fair title of a bond fide possessor, and make him a trespasser from the beginning ; therefore, if the prize be lost by the misconduct of the prize-master, or for neglect- ing to take a pilot, or to put on board a proper prize-crew, the Court will decree restitution in value against the captors. But although, in general, irregularity of conduct in captors makes them liable for damages, yet in case of a bond fide possession, the irregularity, to bind them, must be such as produces irreparable loss ; as, for instance, such as may pre- vent restitution from an enemy who recaptures the pro- perty"(A). "In cases of illegal capture, vindictive damages are not usually given, unless where the misconduct has been very gross, and left destitute of all apology. Ghreat indulgence is allowed to errors, and even improprieties of captors, where they do not appear to have acted with malignity and cruelty (i). If a captor destroys a ship of an enemy protected by the licence of his own government, he or his government is responsible for the loss occasioned by such destruction (/c) ; but when the captor acts bond fide in pursuance of his rights, in an ignorance, honest and invincible on his part, of a foreign fact not governed by his own domestic law, but dependent on transactions with which he is unavoidably unacquainted tiU actually communicated to him, he will be protected by the Court" (l). (h) Story on Prize Courts, p. 36 (with cases cited). (i) The Lively and Cargo, 1 Gall. 29 ; The Anne, 3 Wheat. 435 ; The George, 1 Mason, 24. [h) The Felicity, 2 Dod. 381 ; The Aotseon, iUd. 52 ; but see The Ostsee, mpra, re liability of G-ovemment. (/) The John, 2 Dod. 339 ; Maritime Warfare, p. 303. 332 Belligerent Obligations. Great and unnecessary delay in bringing the pri2;e to adjudication will he chargeable against the captors, as in The Madonna del Bur so {m), where Sir "W. Scott condemned them in costs and damages. But no demurrage will be allowed to the claimants in respect of any time lost owing to their own neglect or misconduct (w). In The Elize (o), where the Tessel was seized whilst in port at Leith under the erroneous belief that she had broken blockade, costs and damages were ordered against the capturing revenue officers, apparently on the ground that they could have ascertained the facts before going to the length they did. But such costs and damages were to be calculated only up to the time when the captors voluntarily tendered restitution, which the claimants had refused unless costs and damages were paid ; the Court observing that claimants should have accepted the vessel whilst reserving the question of costs and damages. In The Primus {p) (1854), where an enemy ship had been condemned and the neutral cargo released, the Court refused costs against captors, observing that " at the time the owners of the cargo put it on board there was imminent risk of war, and they must abide by the consequences of their act." The claimants had applied to have their costs paid out of the sale proceeds of the ship. If the master of a non-commissioned vessel should make a capture, and it turn out illegal, the claim will be against him personally and not against the owners, unless the wrongful act have been committed within the scope of the ordinary authority of the latter {q). {m) 4 Rot. 169. See also The San Juan Battista, and The Purissima Oonoepoion, 5 Rob. 33 ; The Gorier Maritimo, 1 Roh. 287 ; The Susanna, 6 Rob. 51 ; The Peacock, 4 Rob. 185 ; The Anna Catharma, 6 Rob. 10. (w) The Ostsee, supra; The Elize, 24 L. T. 170. (o) Jbid. (p) 24 L. T. 34. (?) Story on Prize Oourts, p. 75. Adjudication : costs and damages. 333 In The La Amistad de Eues (r), it was decided ty Story, J., that in awarding damages, claims for loss of market or protable profits cannot be considered. And ia The Alabama Case (the Geneva Award, 1872), it was unanimously held by the arbitrators that prospective earnings were to be excluded, seeing that they depended upon future and uncertain con- tingencies. Claims for indirect or consequential damages were also excluded (s). In Kulen Kemp v. Vigne (t), where sentence of condemnation had been reversed on appeal, the Court, for reasons which do not appear, ordered the expenses of reclaiming the ship and cargo to be a charge upon the cargo. During the Franco-German war two merchant vessels of the enemy were captured by a French cruiser, and as it was impracticable to carry the vessels into port, the captors burnt them. A claim was presented by English owners of cargo on board, but was rejected by the French Courts. " This decision," says a writer in the Edinburgh Review, for July 1884 (p. 263), " is important, as it ajQfirmed that the third article of the Paris Declaration did not guarantee neutrals from damages caused by the legitimate captiire of an enemy's vessel, or by the military acts which accompanied or followed the capture. This seems to be going a Kttle too far, as the captors should in justice have been held bound to com- pensate the neutrals for any damages which may have been caused. In any case, nothing but the most absolute necessity should justify the destruction of a prize." " In cases when further proof is directed," says Story (m), " costs and expenses are never allowed to the claimant. Nor where the neutrality of the property does not appear by the (r) 5 Wheat. 385. (s) Vide p. 364, infra, for further reference to this case. (i!) 1 T. K. 304. (h) Prize Courts, p. 95, with cases cited. 334 Belligerent Obligations, papers on board and the preparatory evidence ; nor where papers are spoiled or thrown overboard, unless the act he produced by the captors' misconduct, as by firing under false colours ; nor where the master or crew, upon the pre- paratory examinations, grossly prevaricate ; nor where any part of the cargo is condemned ; nor where the ship comes from a blockaded port ; nor if the ship be restored by con- sent, without reserving the question of costs and expenses. But in aU these cases it is in the discretion of the Court to allow the captors their costs and expenses ; and, in general, wherever the captors are justified in the capture, their costs and expenses are decreed to them by the Coxirt, in case of restitution of property. Therefore they are allowed where the original destination was to a blockaded port, although changed on hearing of the blockade ; where ships, even of our own country, are captured saUing under false papers ; where the nature of the cargo is ambiguous as to contraband ; and, generally, in aU cases of false papers ; and in all cases where further proof is required. In cases where the captors' expenses are allowed, the expenses intended are such as are necessarily incurred in consequence of the act of capture; such are the expenses of the captors' agent, but not insurance made by the captors, nor expenses of transmitting a cargo from a colony to the mother country. And property restored to the claimant is not to be charged with any expenses of agency, or for taking care of it, unless made a charge by the Court. And the expense of an unlivery or delivery of the property which is restored, is to be borne by the captors or releasing party, and not by the property, unless it is so directed by the Court. In general, where the property is condemned, the expenses of unlivery and warehousing, &c. fall on the captors ; and where it is restored the Court wiU apportion them in its discretion on the captors and on the cargo." Adjudication : costs and damages. 335 In The Ocean Bride (»), tlie sHp had, on the eve of the Crimean "War, teen eolourably sold to a Russian merchant at Archangel in order to prevent capture by the Russians. On her return to England she was seized, but restored ; the Court, in the special circumstances, approving the colourable sale. Costs were, however, awarded to captors. In The Hoop (y), where the cargo was condemned on the ground that it had been carried from Holland contrary to British prohibition, and vrithout licence, but in circumstances which exonerated the concerned from any charge of wilful misconduct, freight and expenses were allowed to the master, and the expenses of the claims were also ordered to be paid out of the cargo. In The Maria Powlona (s), where the claimant, after accept- ing restitution without any reserve of rights as regards damages, demanded compensation, the Court decided that he must take the inconvenience with the convenience of restitu- tion, and that he had put himself out of Court by thus accepting the offer of restitution. In The Catharine and Anna (a), where the ship and cargo, of very considerable value, had been restored on payment of cap- tors* expenses, the Court refused to include amongst the latter a sum of 270/. incurred for fire insurance. The claimants had themselves insured against fire, and the captors had incurred a similar charge without previous reference either to them or to the Court. Whilst a prize is in the custody of the Marshal of the Court, he is responsible for its safe keeping. In The Hoop (J) , a claim was made against this official for a boat and cable removed from the ship, and the Court decreed compensation and costs ; observing that the credit of the Court was con- [x] 24 L. T. 99. («/) 1 Bob. 196, and p. 262, ai^a. [z] 6 Rob. 236. («) 4 Eob. 39. (4) 4 Hob. 145. 336 Belligerent Obligations. cerned in the safe keeping of the property under its pro- tection. And in The Concordia (c), the CotLrt, the cargo having been restored, held the captors liable for a deficiency of cargo alleged to be due to their embezzlement. In The Sendsborg {d), a prize valued with her cargo at nearly 100,000/., the charges of the Marshal were objected to as being excessive, and the Court, in a judgment which criticised the items in detail, ordered them to be considerably reduced. Insurance. If an insurance be warranted free from capture and seizure, it is obvious that the underwriters will not be liable for costs consequent on capture, for it is a matter of indifference to them whether the interest insured be condemned to the captors or not. Or rather, it is to underwriters' advantage to have their liability prematurely terminated by a loss which they have not undertaken to cover ; and, this being so, the question of costs subsequent to capture is clearly no concern of theirs. Similarly, where the policy undertakes the risk of capture, but the in- surance has been invalidated by some breach of the law of nations, or of the conditions on which the policy was granted (e). But in ordinary cases, where the risk of capture is covered under the policy, expenses reasonably incurred by the assured in order to obtain restitution of his property seized by a belligerent are, on the judgment in Berens v. Rucker {/), recoverable from underwriters. In this case a neutral vessel had been seized by a British privateer, and brought into Portsmouth, on the ground of being engaged in illicit trade of the enemy. On the refusal or delay of the claimants to furnish information demanded, judgment was pronounced against them by default, and against (c) 2 Rob. 102. [d) 6 Rob. 142. («) Vide as to this mi Void Insurauoes, p. 406, infra. (/) 1 Black. 313. •Adjudication: costs: damages. — Insurance. 337 this decision they appealed to the Lords Commissioners of Prizes. But in the circumstance that considerable time would necessarily elapse before the appeal could be heard, the market also being high, and some of the cargo perishable, the claimants agreed to pay captors 800/. and costs in order to obtain a reversal of the sentence. For plaintiff's share of this payment, and for the costs of the litigation generally, action was brought against the underwriters. Lord Mansfield, in giving judgment for the plaintiff, observed that, although, as a fact, the sentence of condemnation was unjust, an appeal would have been hazardous, the delay certain, and no costs or damages would have been given which had accrued subsequent to the sentence. Por, such damages are ordinarily attributed to the fault of the judge, and not of the parties; so that even in case of a total reversal of the sentence, the costs would have sat heavy on the plaintiffs. Therefore, the question whether plaintiffs had acted bond fide and uprightly, as men acting for themselves, and upon a reasonable footing, so as to make the expenses of this com- promise attach to the insurers, was to be answered in the affirma- tive. The insurers were, therefore, in the circumstances, to be held to answer this average loss, which had been submitted to in order to avoid a total loss. IE a vessel be captured and brought in for adjudication, and the services of the master and crew be given with the object of securing restitution generally, their wages and provisions, and aU. relative charges, will have to be treated as a general average charge. But if the capture be in respect solely of the ship or solely of the cargo, the other being in no danger of confiscation, the expenses in question would then, it may be supposed, be primd facie chargeable against the interest for whose benefit they have been incurred {g). Costs adjudged against a claimant on restoration of the property would apparently be similarly recoverable, either on the reasoning that they have attached as a consequence of the operation of a pei-U insured against, viz., capture ; or that they must needs be paid in order to release the property from the captors' Hen. {g) The Hiram, 3 Rob. 180 ; Liddard v. Lopes, 10 East, 526. O. Z 338 Belligerent Obligations. Obviously, ii underwriters have undertaken the risk of loss by capture, they will be liable for expenses necessarily or reason- ably incurred in order to obtain the restoration of the property seized. Whether the expenses have or have not been reason- ably incurred will depend upon the facts ; but in these days of rapid communication, the assured will in most cases be able to learn the views of the underwriters before embarking in expenses of which the wisdom may be matter of opinion. Payment of Freight to Neuteal Carriers. 339 Payment of Freight to Neutral Carriers. (With. Considerations as to Preiglit generally.) Enemy Goods in Neutral Vessels. — It is a general rule under the law of nations, that a neutral canier of goods the property of a belligerent is entitled to be paid the freight on such goods in the event of their capture by the enemy. A belligerent has the right (iu the absence of treaty engagements to the contrary) to seize and confiscate enemy property found on board a neutral vessel, but he must take the property cum onere (A), — that is, with the usual liens upon it which would have to be discharged by the consignee before he could take delivery. This rule, however, does not apply to mere rights of action, such as bottomry bonds, &c., by which the captor is not affected (i). Neutrals are fully within their rights in carrying the goods of belligerents, and even in carrying the goods of a belligerent to the enemy of the latter, however illegal such trafiic may be as regards the subjects of the belligerents themselves (k) . And although belligerents possess on their part the co-existent right to seize and carry into port for adjudication, this right must not be so extended as to operate as a punishment to the lawful carrier. Therefore, if a belligerent seizes enemy goods which are being carried by a neutral for freight, the belligerent must pay such freight or balance of freight (so long as its amount be reasonable : as to which, see below) as would be payable to the carrier on (h) Vide p. 90, swpra. (i) See the cases cited in Hazlitt & Roche's Maritime Warfare, p. 306. \k) The Hoop, 1 Roh. 196, 219 ; The Wilhelmiiia, 2 Rob. 101, note. z2 340 Belligerent Obligations. delivery of the goods at their destination. As between the owner of the goods and the carrier, delivery to a captor is to he looked upon as a delivery under the contract of affreight- ment, although effected short of the agreed destination ; the captor heing regarded as standing, by the rights of war, in the place of the consignee (/). This is the general rule as regards captors' liability, but there are exceptions to it. Thus, if the goods seized be contraband of war, no freight will be payable to the carrier (w), for, as already observed (w), neutral masters must be made to understand that the engage- ment in a prohibited traffic is attended by the risk of depriva- tion of freight if the goods be seized. But it is reasonable to suppose that neutrals who engage in such transactions with their eyes open to its contiagencies will, in most cases, take care that the freight, or the greater part of it, shall be pay- able on shipment, and not on delivery. The neutral carrier was deprived of his freight on enemy provisions — barley and oats — in The Commercen (o) ; but in this case the goods were being conveyed for the use of the enemy's forces, and the voyage was declared to be illicit on the part of a neutral. Tor the modern tendency is, on seizure of provisions on the way to a hostile destination, to allow the master his freight. In The Neptunus (p), where the quantity of contraband goods proved to be very small, viz., a little sailcloth, the cargo being tallow, the Court allowed freight and expenses. And where part of the cargo has been condemned as contraband and the remainder ultimately restored, freight may be decreed as a charge on {!) The Copenhagen, 1 Eob. 289 ; The Hoop, Hid. 196. (m) The Merourius, 1 Eob. 288 ; The Commercen, 1 Wheat. 382. And see Story on Prize Courts, p. 93. («) P. 188, supra. (o) Vide pp. 175, 241, supra. Ip) 3 Rob. 108. Payment op Feeight to Neuteal Caeeiees. 341 the cargo restored (r). An averment on the part of the master that he was ignorant of the nature of the goods will not be entertained (»■). If goods he carried by a neutral between an enemy country and the privileged colonies of such country, no freight will be allowed by the Court of the captors («), on the ground that the neutral is devoting himself to the service of the enemy {t). So, too, if the cargo be condemned on account of the vessel being engaged in the enemy's coasting trade (m). The neutral carrier is entitled to his expenses as well as to his freight ; but if he should have been guilty of fraud or unfair dealing he forfeits all right to compensation. And in flagrant cases such conduct may involve the confiscation of his ship and even of the ianooent portion of the cargo, a result which may also ensue where the ship belongs to the owner of the contraband articles. Sailing under a false destination or with false papers is an especially heinous offence. No freight will be allowed in such eases, or where there has been a spoliation of papers («) ; or where the ship herself has been the ground of the capture (y). (For the subject of offences on the part of neutrals generally, involving confiscation, ride sub Belligerent Eights against Neutrals, scheduled on p. 144, supra.) When a decree is made that the freight shall be a charge on the cargo, application may be made to the Court for the sale of so much as is necessary for this purpose (z). In general, where a ship and cargo are restored, with a decree (r) The Oster Eisoer, 4 Eob. 199. (s) The Immanuel, p. 242, supra, (t) Vide p. 233, supra. («) The Atlas, 3 Eob. 299 ; The Johanna Tholen, 6 Eob. 72. [x) The Eising Sun, 2 Eob. 104 ; The Madonna del Burao, 4 Eob. 169, 183. Oy) The Fortuna, Edw. 56. And see the numerous citations in Kent's Int. Law, 2 Eng. ed. p. 339 not., as to forfeiture generally. («) The Vrow Margaretha, 4 Eob. 304, note. 342 Belligerent Obligations. that the freight shall he a charge on the cargo, if the proceeds of the cargo are not sufficient to pay the freight, the captors are not responsihle for the deficiency (a). "Where the cargo is adjudged lawful prize, but the ship is ordered to be restored and the freight is decreed a charge on the cargo, — if, owing to the neglect or fault of captors or their agents, the cargo be lost, captors are liable to the master for the freight (b) . Where the freight of the neutral and the expenses of the captors are both decreed to be a charge on the cargo, and the proceeds are insufficient to discharge both, priority of payment of the freight is, in ordinary cases, allowed by the Court, as a lien that takes place of all others (c). (Story on Prize Courts, p. 94.) But the freight to be paid must be reasonable in amount. If it be excessive, notwithstanding that the contract might in existing circumstances have been fair as between shipper and carrier, the captor is liable to pay only such amount as would ordinarily be due for carrying similar goods (d) . Por though, owing to the state of war and the attendant risks of carriage, an extravagant rate of freight might well be charged to the shipper, it would be unreasonable to reqtiire the captor to pay such an exceptional sum, due to the carrier as being in a great measure in the nature of an encouragement to him to use his best efforts to defeat the captor's vigilance. Where the goods have once been unlivered by order of the Court, the whole freight for the voyage is due, and the owner of the goods, even in ease of restitution, cannot require the ship to reload them and carry them to the original port of destination, for by the separation the ship is exonerated (e) ; (a) The Haabet, 4 Eob. 302. (J) The Der Mohr, ibid. 315. (c) The Bremen Flugge, ibid. 90. {d) The Twilling Riget, 5 Eob. 82. (c) The Hoffnung, 6 Rob. 231 ; The Prosper, Edw. 72. Payment of Freight to Neutral Carriers, 343 tut it would be otherwise ii there had been no unlivery (/). (Story on Prize Courts, p. 92.) Where ship and cargo are both restored, -without any authoritative unlivery of the cargo having taken place, the original contract of affreightment is not dissolved ; and the parties to that contract are again at large, after a temporary inability, to fulfil their obligations and enforce their rights (g). ( Vide Effect of "War on Contract, p. 412, infra.) To entitle the neutral carrier to freight at the hand of the captor, he must bring the goods to such port as the latter may select. And if on arrival at the port so selected the captor should find it desirable to carry the cargo to some other safe port, the neutral master, it is stated, is bound to convey it thither. For this fresh undertaking, however, a special contract must be made between captor and carrier. If the latter refuse to proceed as required, it is, according to the Consolato del Mare (§ 5), the captor's right to sink the vessel, though without causing loss of life. But this extreme measure must be resorted to only when the whole, or at least the greater part, of the cargo is enemy's property. The same ancient code contains other provisions of interest in this connexion. Insurance. So far as freight stands in a position differing, in respect of marine insurance, from that of other insurable interests liable to capture, such exceptional position has already been commented upon, pp. 46 and 70, supra. Freight is, of course, an indifferent subject for insurance against, risks of capture, seeing that aban- donment of the ship to the underwriters on the body of the vessel carries with it the right to freight being earned, thereby (/) The Copenhagen, 1 Rob. 289. {g) MaclacUan's Laws of Merchant Shipping, p. 418. 344 Belligerent Obligations. defeating any expectation of salvage to whicli the underwriters on freight might otherwise be entitled. The aboYB subject of payment of freight by belligerent captors completes the consideration of Belligerent Obligations scheduled on p. 311. Having thus gone over the obligations as well as the rights of belligerents, we will turn in the next place to consider the position occupied by neutrals during the , prevalence of hostilities. ( '^45 ) YIII. NEUTEAL EIGHTS AND OBLIGATIONS, TEEATED UNDER THE FOLLOWING HEADS, VIZ. : — Generally ... . . Mercantile — Trade -with. Belligerents, and generally Exportation and Carriage of Contraband of War Carriage of Belligerent Goods . SMpment by BeUigerent Vessels . Transport of Belligerent Troops Purchase from Belligerents Political — The " Alabama " case The Foreign Enlistment Act . Hospitality to Belligerent Warships The TVenty-four Hours Eule . Augmentation of Forces of Belligerent Vessels Assistance to BeUigerents FAQE . 345 . 348 . 350 . 355 . 357 . 359 . 360 . 364 . 372 . 375 . 379 . 380 . 381 Neutral Rights and Obligations — Generally. The scheme of neutral rights has as a broad foundation the general principle that the existence of war between certain states shall not he allowed to operate in restriction of the ordinary trade and commercial relations of nations standing 346 Neutral Rights and Obligations. aloof from the hostilities (A). On the other hand, peaceful nations, in order that their right to be regarded as neutrals may he respected, are under the obligation to preserve a strict impartiality towards the belligerents, and to studiously refrain from any action calculated to promote, directly or indirectly, the warlike purposes of the one to the detriment of the other. This does not import, for example, that a neutral power must refuse to allow a belligerent to purchase warKke stores within the neutral jurisdiction; but that a permission to effect such purchases shall be impartially granted or denied to both belligerents. It may, it is true, very likely be the case that such a permission may be value- less to one of the belligerents and all-important to the other ; but this is a matter in which the neutral state is not con- cerned. The neutral must show impartiality, and if this impartiality should benefit the one belligerent and prejudice the other, this is not the affair of the neutral. Whilst admitting the general right of neutrals to maintain friendly commercial relations with belligerents, the modem tendency would seem to be to include amongst the negative obligations- of neutrals the abstention from equivocal traffic in which, in bygone days, their right to engage was not questioned. And there is, moreover, a growing disposition to consider it the obligation of neutral governments to restrain their subjects from engaging in so-called illicit transactions ; transactions for which, as it was formerly understood, the sole penalty was the seizure and confiscation, by an aggrieved belligerent, of the articles to which, by the law of nations, exception could properly be taken. Not- withstanding that the law of nations is on this point so well established as to be practically beyond dispute, there is a sort of evolution now in progress which seems to have created an [h) Ex parte Chavasse, In re Grazebrook, 34 L. J. N. S. Bk. p. 17. Neutral Eights and Obligations — Generally. 347 appaient overlapping of rights and obligations. For now and again one nation upholds the right to do or permit that which another asserts that the doer is under obligation to refrain from or to restrain. Instances of this will appear presently in reference to the controversy which arose between this country and Germany during the Franco-Prussian war, relative to the supply, by British merchants, of contraband of war to France ; and, more especially, in the history of The Alabama claims. In such circumstances, therefore, it has been thought better, for present purposes, not to attempt to deal separately with the rights and the obligations, but to con- sider them under one and the same head. They are, indeed, so interwoven the one with the other that it is quite imprac- ticable, if not impossible, to discuss them separately without a degree of repetition inconsistent with the conciseness aimed at in this work. These rights and obligations may, moreover, be appropriately classified under two distinct heads — the mer- cantile and the political ; but while some fall clearly within the one and some clearly within the other category, others can with nearly equal propriety be ascribed to either. The difficulties which are thus presented render impracticable, therefore, any accurate classification of the rights and obHga- tions under their several heads, so that the arrangement followed below must be regarded rather as for the con- venience of the reader than as aiming at a technical accuracy which is unattainable. Let us first look at the matter from the view in which the predominant element is that of trade and commerce. 348 Neutral Rights and Obligations. Neutral Rights and Obligations — Mercantile. Trade with Belligerents, and generally. — As between them- selves neutrals have, of course, the right to carry on their ordinary trade, of whatever it may consist («), and no question of contraband of war can arise as between neutrals. Por supposing, for example, that France and Spain were mutually at war, it would obviously be absurd for either beUigerent to claim that the fact should prevent this coimtry or Germany from continuing to supply torpedo boats or guns to, say, Italy or Greece. Either belligerent would have the right to carry into port for adjudication (/) the vessels carrying these warlike materials, if there should be grounds for believing the neutral destination to be assumed, and the transit to be really intended to end within the dominions of the other belligerent; but on the papers being found in order, the vessels would be allowed to proceed to their destination without further molestation. As has appeared above {k), if the grounds for seizure were found on adjudication to be reasonable, no costs would be awarded against the captors, or the captured vessel might even be required to pay captor's costs. If, on the other hand, the seizure were found to be unjustifiable, costs, and perhaps damages, would be adjudged against the captors. And not only may neutrals carry on their ordinary trade as between themselves, but they may likewise carry the goods of one beUigerent to the enemy, and, as will be presently set forth, carry the goods of belligerents generally. (i) Vide the brief remarks in this oormexion on p. 160, mpra. (J) Vide p. 154, swpra. [Ic) Vide p. 325, siipra. Neutral Rights and Obligations — Mercantile. 349 Neutrals are under the obligation to respect the rights of belligerents as recognised by the law of nations, but these obligations need not be discussed here, seeing that they have already been reviewed from their corresponding aspect of Belligerent Eights. These obligations are as follows, viz. : — PAGE The obligation to respect blockades 104 to submit to visit and search 212 not to carry contraband 156 „ ,, belligerent despatches or troops 201 „ „ false papers, and to carry proper and usual papers . . 219 not to attempt a rescue 216 not to engage in belligerent privileged trade, or sail under belligerent flag or license 233 not to ship by armed belligerent vessels, or to sail under convoy 213, 214 On the subject of contraband generally, it may here be repeated (l) that there is nothing in itself illegal in the ship- ment of contraband to belligerents ; only, if neutrals choose to carry prohibited goods to a belligerent, they must under- stand that if these goods be seized by the adverse belligerent, the goods will be confiscated, together with any freight which may attach to their safe delivery (w>). And fraudulent con- duct on the carrier's part may involve forfeiture of the ship, in addition. This, then, is the position : If a neutral engage in trade contraband of war, he has no right to complain to his government if the goods be seized in consequence. On the other hand, belligerents have no right to complain that the subjects of a neutral government are shipping contraband to the enemy. Their remedy is against the shipper — or, (q Vide p. 160, supra. W ^^<^ P- ^88, supra. 350 Neutral Rights and Obligations. rather, against the goods — ^not against the government. It is a matter hetween the shipper or carrier and the belli- gerent; and the neutral government has a right to wash its hands of the whole matter, and to turn a deaf ear alike to the complaiut of the suhject whose goods are seized and of the belligerent who seizes them. This, at any rate, is the view, based on the law of nations, commonly taken by the neutral government, though the aggrieved belligerent is nowadays apt to look at the matter from a different Hght. Thus, the subject gave rise to a long correspondence between Great Britain and Germany during the progress of the Franco-German war, as will be seen from the following : — Exportation and Carriage of Contraband of War. — In a letter from Earl Granville to Count BemstorfE («), written from the Foreign Office, 15th September, 1870, dealing with the Prussian complaint relative to the exportation of arms to the French, Earl Granville said — " You demand that the export to France of arms, am- munition, coal, and other contraband of war should be prevented ; and you have observed that Her Majesty's Government have declared that the law empowered the Executive to take this step : There is no doubt that the Executive has, under the Customs Consolidation Act of 1853, the legal power to prohibit the export of contraband of war ; but the highest authority can be adduced to show that such exportation is not forbidden by our municipal law, and it has not been the practice to prohibit it except where the interests of this country, as ia the case of self-defence, are directly and immediately concerned in the prohibition ; and even in some of these cases, such («) State Papers, Vol. LXI. p. 764. Neuteal Rights and Obligations — Meecantile. 351 as in tlie Crimean war, considerable doubts arose duriag its continuance, wbetlier the prohibition, when actually attempted to be enforced, was as disadvan- tageous to the enemy as it was inconvenient to our- selves." One reason given against any such prohibition was that the effect of it would be that arms, &c., would be shipped with a colourable neutral destination ; and that such subter- fuges could only be detected, if at all, by interfering with the trade of neutrals. Dealing with the argument that coal should be considered contraband, it was in the above letter enquired where the line was to be drawn between coal and such equivocal goods as, for example, cloth, leather, and quinine, than which no cargoes would have been more useful to the Southern States in the American War. Moreover, as it was pointed out. Article XI. of the Treaty of Commerce between Great Britain and France expressly provided that the contracting parties should not prohibit the exportation of coal. In his reply to this letter. Count Bemstorff («) referred to a letter alleged to have been written in 1825 by the Duke of Wellington to Mr. Canning, which, it was observed, proved that England as a neutral had repeatedly prohibited the export of arms, by an Order in Council, " according," in the words of the renowned Duke, " to the usual practice." And, further, the Count quoted enactments to show that Earl Granville's declaration, that the exportation of contraband was not forbidden by British municipal law, could only mean that a positive declaration of the G-overnment was required in order to bring into force the power with which it is invested. He also pointed out that a check might be placed on colourable shipments to neutrals by the exaction of (n) State Papers, Vol. LXI. p. 828. 352 Neuteal Rights and Obligations. security on the part of the shippers. The correspondence on this subject is at great length, and may be described as an endless diplomatic chain of apparently unanswerable argu- ment on the one hand, and of equally convincing reply and counter-argument on the other. From this point of view it affords, indeed, most instructive reading, but as each argu- ment seems in turn to have been demolished by the reply, it is difficult to evolve from the correspondence any definite conclusion. As regards the allegations against Gb-eat Britain, similar complaints appear to have been called forth by the action of the United States. But on this, as on nearly every other point of the law of nations from its maritime aspect, the views of Great Britain and of the United States are in strict accord. As regards the United States, arms were exported thence on a large scale, with the avowed object of sale to the French Grovernment. The French Government being in need of this class of supplies, a refusal to permit shipment of the latter would, no doubt, have produced forcible remonstrances on the part of France, on the ground that such a prohibition was an act of partiality towards Germany. But while a neutral government is, as it is held, under no obligation to prevent its subjects from continuing to ship to belligerents goods, whether contraband of war or otherwise, which it is part of the ordinary trade of such subjects to supply (o), the neutral government should not itself be a party to the like transactions. Thus, in 1825, whilst Spain was at war with her revolted subjects in Mexico, the Swedish Government offered for sale six warships. These vessels were bought by a Swedish firm, which transferred them to a London house, the financial agents of the revolted subjects. There being no doubt as to the object of the purchase, the (o) Vide Bell v. Eeid, 1 M. & S. 727 ; De Tastet v. Taylor, 4 Taunt. 238. Neuteal Rights and Obligations— Mercantile. 353 Spanish Grovernnient made representations to the Swedish Grovernment, pointing out the disloyal act into which Sweden had heen unwittingly betrayed, and urging caneelment of the sale to the Swedish firm. Several of the European powers having supported the Spanish demand, Sweden ultimately cancelled the sale, so far as concerned three of the vessels stiU within the national jurisdiction. The original sale by the Swedish Grovernment was, no doubt, a purely commercial transaction, but on the facts becoming known to the selling government it could not, consistently with neutrality, refuse to prevent the vessels passing over to the enemy of Spain. Nor must a neutral power permit the sale of coal out of the government stores to a belligerent {p). Clearly it is within the right of neutrals, as of bellige- rents {q), to pass such municipal laws- as may be deemed generally expedient ; and the right may be exercised in respect of prohibition of export of warlike stores, either because such stores may be required by the neutral govern- ment, or because it is desired to abstain from any action likely to create ill-wiU on^ the part of either belligerent (r). But that there is, according to the view of this country, no obligation on neutrals to prohibit export of contraband, has just been demonstrated. The provisions of special treaty engagements may, however, sometimes be found to require the observance of particular rules not by the public law of Europe rendered obligatory. There is nothing in the law of nations to impose on a neutral state the obligation to prevent its subjects from send- ip) Twiss's Internat. L%w, pp. 468, 469. (j) As instanced on p. 306, supra. {r) On tlie outbreak of war between France and Germany, the sale of contraband of war to belligerents was forbidden to Peruvian subjects by the national government. 61 State Papers, 656, 657. O. A A 354 Neutral Rights and Obligations. ing to telligerents vessels specially adapted for warlike uses, any more than contraband articles of a more ordinary kind. An instance of this principle is supplied by TJio Indcpendencia del 8ud, an armed vessel sent out with a cargo of munitions of war from Baltimore for sale at Buenos Ayres to the de facto government, at that time engaged in hostilities with Spain. The vessel, subsequent to her purchase by the revolted colony, effected the capture of a Spanish vessel, and carried into the port of Yirginia certain goods taken out of this vessel. The Spanish owner of this property thereupon claimed that it should be restored to him by the United States Grovernment, on the ground that the capture had been effected in circumstances which involved a violation of the neutrality of the United States. It was pleaded by the claimant in support of this demand (1) That the capturing vessel had been originally equipped, armed, and manned as a vessel of war in the United States ; and (2) that during her cruise she had illegally augmented her force whilst in an American port. The iirst plea was at once dismissed by Justice Story, who, in delivering the judgment of the Supreme Court, declared, in effect, that the vessel was ordi- nary contraband of war, of which the neutral power was under no obligation to prevent the despatch to a belligerent. " It was a commercial adventure which no nation was bound to prohibit, and which only exposed the persons engaged in it to the penalty of confiscation." The original outfit, therefore, was in no sense illegal. "With respect to the second plea, however, the learned judge found that there had been an illegal augmentation of the vessel's force in an American port, whereby there was both an infraction of the country's municipal law and a violation of the law of nations. " It has never been held," said Justice Story, " that an augmentation of force or an illegal outfit affected any captures made after the original cruise was terminated. By analogy to other Neuteal Rights and Obligations— Mercantile. 355 cases of violation of public law, the oilence may be well deemed to be deposited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruise, the doctrine of this Court has long been established, that such Ulegal augmentation is a violation of the law of nations as well as of our own municipal laws ; and, as a \iolation of our neutrality, by analogy to other cases, it infects the captures subsequently made with the character of torts, and justifies and requires a restitution to the parties who have been injured by the misconduct. It does not lie in the mouth of wrongdoers to set up a title derived from a violation of our neutrality." So that, according to a strict interpretation of the law of nations, there would seem to be nothing more required of a neutral state, as regards the prohibition of export of armed vessels to belligerents, than in the case of any other warlike articles; but the result of The Alabama claims (s), to be referred to presently, is by no means in harmony with this principle. The position of neutral subjects engaging in the transport of contraband of war generally has already been considered under the head Belligerent Eights against Neutrals, pp. 156 —200. Carriage of Belligerent Goods. — That neutrals may in time of war carry on their ordinary trade with belligerents has already been seen, and amongst such lawful trade is included the carriage of goods the property of belligerents (^). This right exists, however, without prejudice to the countervailing belligerent right to seize goods so carried, the right of seizure being attended by the obligation to pay freight on the goods {a) Vide p. 364, infra. {t) Barker v. Blakes, 9 East, 283. A a2 356 Neuteal Rights and Obligations. seized, to the neutral carrier. Neutrals may carry belligerent goods, but they must in so doing take their chance of the attendant inconvenience of being carried into port for adjudi- cation. This is the position under the common law of nations ; but it is, of course, materially modified by the principle embodied in the Declaration of Paris, that " free ships make free goods." In The Mary Clinton (u), it was held, in the United States, that a neutral friend to both belligerents may not ship the property of the one to the use of the other ; but whether the Court intended this decision to be accepted as expressing a general principle, or only as applicable to the special circum- stances of the case under adjudication, cannot be certainly affirmed. There would seem to be no doubt, however, that a neutral is fully entitled to carry the (permissive) goods of one belligerent to the other without contravening neutral obligations, and without any regard to the fact that in so doiug he may be conducing to an illicit trade between the subjects of hostile states. If the carrier should be found guilty of conduct incon- sistent with neutrality, such as attempting to screen from law- ful capture the goods carried, or otherwise to mislead or baffle the captor, he will be held to have forfeited his right to freight, and may be further punished by the confiscation of his ship, as already explained (x). Also, neutrals must not engage in the privileged or colonial trade of belligerents, — that is, in any trade which in time of peace is limited to the belligerent subjects (y) ; nor may they sail under the licence or pass of belligerents (y). Resistance of visit and search is a breach of neutrality in- (m) Blatoh. Fr. Ca. 556. {x) Vide "Enemy Goods in Neutral Vessels," p. 88, and "Payment of IFreight to Neutrals," p. 339, supra, (y) Vicle p. 233. Neutral Eights and Obligations-— Mercantile. 35T volving confiscation (z), and the same penalty attaches to an attempt at rescue of the ship from the lawful captors (a). For the effect of blending neutral and belligerent goods, see the subject next following. Shipment by Belligerent Vessels. — Just as it is lawful for a neutral to carry the goods of belligerents, so it is permissible to him to ship his own goods by vessels the property of belligerents (b). As has been well said, " The rule that the goods of an enemy, found in the vessel of a friend, are prize of war ; and that the goods of a friend, found in the vessel of an enemy, are to be restored ; is believed to be a part of the original law of nations, as generally, perhaps universally, ■ acknowledged. This rule is founded on the simple and intelligible principle that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend" (c). But this right does not extend to permit neutrals to ship by an armed belligerent vessel, for this is held to be tantamount to a resistance of the right of visit and search (d). Nor, for the same reason, may the shipment be made under convoy (e) . As has been mentioned above (/), if a captor finds him- self unable to carry his prize into port he may destroy it, but that, before resorting to this extreme exercise of the rights of war, he should satisfy himself that the property, if taken before the Court, would be condemned. In the Franco-Prussian war two German vessels, The Ludwig and (z) Vide p. 212. (a) Vide^. 216. (}) Tide sub Declaration of Paris, p. 27, supra. [c) Marshall, 0. J., in The Nereide, 9 Crmeh, 418. (. Fletcher, 32 L. J. 0. P. 284 ; The Soblomsten, L. R. 1 A. & E. 293. The Effect of Wak on Contract. 427 or there migM he no cargo left to carry on. Full freight was awarded on the ground that the cargo was not ready to proceed. (The cargo was restored on I7th November.) In coming to this conclusion, Sir W. Scott observed that he did not say that a master was to depart in haste so soon as his ship was restored : a reasonable time was to be allowed, and if it was not allowed a proportion of the freight might be deducted. The circumstances in which the cargo was discharged are not fuUy reported, but it is to be assumed that no unlivery was ordered by the Court : for, as already indicated, in such case the ship would have been ipso /ado entitled to full freight, — at least, as the law then stood. In another case (a;), where a Danish ship bound to Lisbon had been brought in on account of the cargo, and the cargo was ultimately restored, but the ship, on account of hostilities which had meantime occurred with Denmark, was condemned, freight was ordered to be paid to the Crown on the ground that the circumstances, at the time the ship was brought in, were such as to entitle the master to receive his freight, and that the Crown, as captors, had entered upon his rights. "In this Court," said Sir W. Scott, " it is held that where neutral and innocent masters of vessels are brought into the ports of this country on account of their cargoes, and obliged to unliver them, they shall have their freight, upon the principle that a non-execution of the contract, arising from the incapacity of the cargo to proceed, ought not to operate to the disadvantage of the ship." It has been said above that unlivery by order of the Court concludes the contract and entitles the master to his freight (y). If, however, the unlivery be caused by the fault of the ship, the cargo may be discharged from the lien of freight. Thus, in The Theresa Bonita (z), a Danish vessel arrived in London during an embargo on Danish property, and the cargo, being perishable, was ordered by the Court to be unladen. By a general Order in Council, the payment of freight to Danish masters had been prohibited. Consequently the captain lost his lien on the cargo, and had to resort to such personal rights as he might have (x) The Prosper, 1 Edw. 72. (t/) But of. The Newport, supra. («) i Rob. 236. 428 The Effect of War on Conteact, under tte contract of aSreightment. And in The Weldsbor- garen {a), a Swedish vessel, bound from Philadelphia to Lisbon, had been brought in under an embargo on Swedish property, and the cargo had to be unlivered. On removal of the embargo, the master applied for freight. The Court, observing that the detention had been occasioned by the fault of the ship only, and that the cargo had been finally compelled to find another vehicle to carry it to its destination, declined to support the master's demand. In The Fortuna (b), the ship, a Dane, on a voyage to Portugal, had been brought in on account of the cargo. The cargo was restored, but the ship, owing to hostilities which had meantime broken out with Denmark, was confiscated. Freight was claimed by the Crown, standing in the right of captor. The Court, however, decided that the cargo could be charged with no freight at all, inasmuch as the voyage was to end at Portugal, and the contract (through the fault of the ship) had not been performed. And, generally, if the failure to fulfil the contract be due to the default of the ship, no freight wiU be due, and the shipowner may in some cases be liable in damages (c). Pro-rata Freight. — In the absence of special provision other- wise in the contract of affreightment, a capture or recapture of the vessel does not ipso facto operate as a dissolution of the contract, and if the voyage be thus broken up short of the desti- nation the circumstance gives no special right to freight (t^). There have been, it is true, other decisions, but more recent judg- ments involving the contract of affreightment seem to place the above principle beyond doubt. In Luke v. Zyde (1769) (e), a ship bound from Newfoundland to Lisbon with fish, after being {a) i Bob. 17. (J) 1 Edw. 56. (c) Osgood V. Groning, p. 417, supra; Atkinson v. Ritchie, ibid. {d) Moorsom v. Greaves, 2 Camp. 627; The Racehorse, supra, p. 426; Boystrom i). Mills, 3 Esp. 36 ; of. Curling v. Long, 1 B. & P. 634. And vide Carver's Carriage by Sea, p. 243, note. Vide also p. 253, supra. (e) 2 Burr. 883. Vide also Lutwidge v. Grey, Carver's Carriage by Sea, p. 656 ; Mitchell v. Darthez, 2 Bing. N. C. 555. For other cases uncon- nected with war or hostilities, vide Carver, §§ 666 — 661, The Effect of "War on Conteaot, 429 captured, was recaptured and trouglit into Bideford. The fish was transhipped to Bilboa, where there was a good market, and a claim was made for freight. Lord Mansfield ordered pro-ratA freight to be paid to Bideford. There could he no doubt, he said, that some freight was due. But whether this conclusion was based on a recognition of the principle of pro-ratd freight ; or whether, as it would rather seem, it was founded on the circumstance that the charterer had voluntarily accepted his goods from the recaptors at Bideford, the report does not clearly establish. In The Copenhagen {/), however (1799), there can be no doubt that the principle of pro-raid freight was clearly admitted by the Court. The vessel, on a voyage from Smyrna to London, had put into Milford Haven in distress, and had to discharge cargo for the purpose of her repairs. The ship and cargo were both seized as prize, but the cargo was restored and forwarded, and ultimately the ship was also released. The points for the decision of the Court were several, but it was admitted that some freight was due (though on what grounds does not appear), and Sir W. Scott awarded freight pro raid itineris to be fixed by the registrar and merchants in the usual way. But more recent decisions seem to indicate that ii pro-ratd freight is allowed at all, it will be allowed only in cases where the non-fulfilment of the voyage can be attributed io force majeure of some extraordinary kind ; or where, possibly, the non-fulfilment may be in some measure attributable to the cargo or cargo- owners. It is, however, impossible to speak with any precision on this point. That it must be regarded as open is certainly to be understood from the concluding words of the judgment in The Teutonia{g). Substituted Performance. — If the vessel be incapacitated at a port short of the destination, and the charterers so act as to support the inference that they voluntarily agree to waive full performance of the contract, such action may he deemed to raise an implied promise that they will pay freight (A). But "no (/) 1 Eob. 289. (^) Vide p. 431, infra. fh) The Soblomsten, L. E. 1 A. «fe B. 293 ; Castel v. Treohman, 1 Cab. & EU. 276. 430 The Effect of Wae on Contract. sucli inference can be drawn unless the goods, or their proceeds, have been accepted voluntarily, and in such a way as to show that the further carriage by the shipowner was intentionally dispensed with. If the merchant must either have accepted the goods where they lay, or abandoned them, no promise to pay freight can be presumed from the fact of their being given up to him. The presumption of a promise cannot, therefore, arise unless the shipowner was able and willing to carry on the goods to their destination, or might have become so within a reasonable time " («'). In Christy v. Row (k), a vessel was under contract to proceed with coals to Hamburg, but was warned off by a British naval commander, as the Trench forces were approaching the port. The consignees thereupon requested the master to proceed to Gluckstadt, where they would send him lighters. He had so discharged part of his cargo when the vessel was again ordered off, and she eventually returned to Shields without completing the discharge. The Court awarded fuU freight on the coal delivered at Gluckstadt, but on the remainder it was decided that no freight was recoverable. But, as already set forth {I), if the master be both willing and able to carry the cargo to its destination, and from so doing he be prevented by the fault of the cargo, or by the act or default of the cargo-owner, full freight will be due. The case of The Teutonia (to) stands alone. This was a Prussian vessel bound from Pisagua with nitrate of soda to Cork, Cowes, or Falmouth, for orders to discharge a,t any safe port in Great Britain or on the Continent between Havre and Hamburg, — the act of God, the Queen's enemies, and perils of navigation excepted. She received orders to discharge at Dunkirk, and whilst on the way to that pbrt the master learnt that war was on the eve of declaration between France and Germany. Thereupon he proceeded to Dovet, where he was informed that war was declared. On this he declined to proceed to Dunkirk, and tendered delivery at Dover against full freight. (») Vide Carver's Carriage by Sea, § 560. IJc) 1 Taunt. 298. (Z) P. 426, supra, and vide Carver's Carriage by Sea, { 554. (m) L. E. 3 A. & B. 394 ; L. K. 4 P. C. 171. The Effect of Wae on Contract. 431 The Court, in adjudicating on a claim for damages put forward liy tlie charterers, held that the master was justified in not exposing his vessel to the risk of confiscation at Dunkirk, and that, moreover, he could not have gone to a French port without exposing himself to penalties for trading with his country's enemies. Mellish, L. J., in delivering judgment for the ship- owner, expressed himself thus : — "Although it is true that the Court ought not to make a con- tract for the parties which they have not made themselves, yet a mercantile contract, which is usually expressed shortly, and leaves much to be understood, ought to be construed fairly and liberally for the purpose of carrying out the object of the parties ; and it would seem very unjust to hold, because the consignee has named a port at which, without any fault on the part of the shipowner, it is impossible for the cargo to be delivered, that, therefore, the consignee is entitled to the possession of the cargo at the nearest neighbouring port, which, in a charter-party framed like this, must necessarily be one of the ports named in the charter-party, without paying for the cargo any freight whatever. The ship, without any breach of contract on the part of the shipowner, has arrived at Dover, the consignee has required the master to deliver him the cargo there, and he has not rec[uired the master to proceed to any other port except Dunkirk, where it was impossible for him to go. The charter- party provides what freight is to be paid if the cargo is delivered at Dover, and how it is to be paid ; and, therefore, it appears to their Lordships that they ought to hold that the contract was not dissolved by the impossibility of delivering the cargo at Dunkirk, and that the shipowner had not lost his chartered freight, nor his lien for it, at the time when the cargo was demanded at Dover {i.e., freight-free). "Their lordships having come to the conclusion that the ship- owner had stUl a lien for the full freight, it becomes unnecessary to consider whether, if Dunkirk had been the only port of discharge, the shipowner would have been entitled to freight pro raid itineris, or to a sum by way of compensation for the carriage of the goods from Pisagua to Dover, and they wish to be under- stood as giving no opinion on these questions, which, no doubt, are questions of great difficulty and importance." 432 The Effect of War on Conteact. The judgments recorded above empliasise tlie expediency Ijoth. of a more extended provision for war emergencies in charter- parties and for m^ore precise language in expressing the same. Having regard also to the fact that such contracts are often signed some months before the anticipated inception of per- formance, it is obvious that shipowners and merchants would alike do well to see that charterparties make suitable provision for warlike contingencies which may at any time arise to inter- fere with the due performance of contracts. If the goods of an enemy be seized on board a neutral vessel, the captor must ordinarily pay fuU. freight to the neutral carrier (o). If the ship of an enemy be seized with neutral cargo on board, the captors are entitled to carry the goods to their destination a,nd to receive the freight thereon {p). If contraband of war be seized on board a neutral vessel, the prohibited goods are subject to confiscation and the carrier wiU receive no freight {q). (o) Vide p. 339, supra, [p) Vide p. 343, supra, (q) Vide p. 188, supra. ( 433 ) XIV. PIEACY. It is not within the objects of this work to enter into discussion under the above head ; but as it has sometimes occurred that a doubt has arisen whether a certain capture should be deemed to have been effected by lawful belligerents or by pirates, a brief reference to the subject may not be out of place. " Piracy," says Chancellor Kent, quoting the case of T'he United States v. Smith (a), " is robbery, or a forcible depredation on the high seas, without lawful authority, and done animo /urandi, and in the spirit and intention of universal hostility. It is the same offence at sea with robbery on land ; and all the writers on the law of nations, and on the maritime law of Europe, agree in this definition." In the case cited, the mutinous crew of a private armed vessel, commissioned by the Buenos Ayres Government, then at war with Spain, had seized a similar vessel commissioned by the Grovernment of Artigas, also at war with Spain. Having appointed officers to the vessel thus seized, the defendant Smith, without any commission, proceeded on a cruise in her, in the course of which a Spanish vessel was encountered and plundered. Eor this offence he was brought to trial in the United States, the Court finally deciding that the offence " amounted to the crime of piracy as defined by the law of nations." The point to be decided was whether the act was or was not piracy, and the notes to the case are especially valu- able as a summary of the definitions of this crime, as collected from the various writers on the law of nations. It does not in the above case appear that the prisoners had (a) 5 Wheat. 153. O. F F 434 Piracy. been animated, in the strict sense of the -words quoted, by a spirit of universal hostility ; but this seems not to be an essential condition of the oifence. For Dr. Lushington, in The Magellan Pirates (6), declared that " in the administration of our criminal law, generally speaking, all persons are held to be pirates who are found guilty of piratical acts ; and piratical acts are robbery and mm'der on the high seas. ... It was never deemed neces- sary to inquire whether the parties so connected had intended to rob or to murder on the high seas indiscriminately." As the learned judge in this case made reference to our criminal law, it should be noted that while an act may be piratical within the provisions of a country's municipal law, this circumstance will not of itself make the act piracy under the law of nations ; for neither municipal laws nor international treaties can make that an offence imder the law of nations which is in fact no such offence. Thus, Sir "W. Scott, in giving judgment in the case of The Le Louis (c), declared that slave trade was not piracy in legal consideration, nor was it a crime by the universal law of nations. The slave trade has, however, been, both by inter- national treaty and by municipal law, declared illegal and piratical so far as carried on by subjects of the states thus pre- scribing it. " An offence committed on the high seas is not piracy /wre gentium so long as the ship on which it is committed remains subject to the authority of the state to which it belongs. A chief ingredient of piracy is throwing off this authority " {d). "When an insurrection or rebeUion has broken out in any state, the rebel cruisers may be treated as pirates by the estab- lished government, if the rebel government has not been recog- nized as a belligerent by the parent state, or by foreign nations (e) ; but this right ceases to exist on the recognition of the rebels as belligerents. . . . "When rebels cannot produce a regular commission from their government, the question of [b) Shipg. and Mere. Gaz., 27 July, 1853. \c) 2 Dods. 210. [d) Wheat. Int. Law, 2 Eng. ed. p. 167, ed. note. (e) For a very recent case in connexion with the question of recognition of a de faeto government, vide The Republic of Peru v. Dreyfus Bros. & Co., 4 Times L. R. 333 (an. 1888). Piracy. 435 whether they are pirates becomes to a great extent one of inten- tion. If their acts are not done with a piratical intent, but with an honest intention to assist in the war, they cannot be treated as pirates. But it is not because they assume the character of belligerents that they can thereby protect themselves from the consequences of acts really piratical. If their acts are at first unauthorized, but are subsequently avowed by the insurgent government, this may or may not take them out of the category of pirates. A recognition of belligerency. does not imply that other acts than those of war will be recognized, and the avowal of any past proceedings is not an act of war " (/). In Ait.-Gen. for Hong-Kong v. Kiook-a-Sing (g), the following definition was accepted by the Court: — "Piracy is only a sea term for robbery, piracy being a robbery within the juris- diction of the Admiralty." But it is not every forcible and unlawful depredation on board ship which will constitute the crime of piracy (A). In The United States v. Pirates (i), the Court decided that a vessel at anchor in an open roadstead might well be found by a jury to be on the high seas. Also, that it was no objection that the vessel was within the jurisdictional limits of a foreign state, for those limits, though . neutral to war, are not neutral to crime. Some of the elements of piracy were present in the cases of The Cagliari, The Virginius, and The liuascar. The Cagliari (/c ) was a Sardinian merchant steamer which, in the Neapolitan in- surrection of 1857, was taken possession of by persons who had shipped as passengers, and who then landed at a Neapolitan island, and released persons imprisoned in a fortress there. The vessel was subsequently seized by Neapolitan warships, and two of her engineers, Englishmen, were imprisoned. They were, however, in no way in complicity with the persons who had seized the ship, and the Neapolitan Government was ultimately prevailed upon to pay the sum of 3,000^. as an indemnity for (/) Wheat. Int. Law, 2 Eng. ed. p. 169. ig) L. R. 5 P. C. 179. (h) Vide Nesbitt v. Lushington, 4 T. R. 783. (i) 5 Wheat. 200. {k) Pari. Papers, Vol. 59, 1857-8. F F 2 436 Pieacy; their imprisonment. The circumstances in this case, though interesting, are, however, not of great value in considering the subject of piracy generally. The case of The Virginius occurred in 1873. This vessel was originally registered in the United States, but subsequently, as it would seem, she lost or abandoned the right to carry the American flag. In October, 1873, she sailed from Kingston, Jamaica — where certain arms and ammunition which were on board had been confiscated under the Customs laws — ostensibly for a Costa Eican port, but really for Cuba, where an insurrection, was then raging. Whilst thus proceeding under the American flag, she was seized by a Spanish warship, and carried into Santiago de Cuba. Most of the passengers and crew were Cubans, and it appeared that their intention wa,s to assist in the insurrection. The Spanish authorities, having tried the prisoners by court- martial, shot thirty-seven of them, including sixteen British subjects, who, it appeared, had shipped under the belief that the vessel was really going to Costa Eica. Prompt action having been taken by the United States and British Governments, Spain ultimately agreed to restore The Virginius and the sur- vivors of the crew to the United States Government, and to com- pensate the families of the British subjects illegally condemned and shot. The Virginius was not a pirate. She was, no doubt, on her way to assist in an insurrection, but at the time she was captured she was on the high seas, and had not as yet com- mitted any overt acts implicating her in the revolt. Spain was entitled, perhaps, to treat her own subjects as she pleased, but the execution of foreigners found on board a foreign ship, upon the mere supposition that they were going to assist rebels, was wholly unjustifiable (Z). The third case. The Huascar, occurred in 1877 in connexion, with a revolutionary outbreak in Peru. The Huascar, a Peruvian. turret vessel, was seized at CaUao by some of her ofiicers and crew, acting in the interests of the insurgents. The vessel then cruised about the coast and stopped several British vessels, de- manding despatches destined for the Peruvian Government, and in one case appropriating, without paying for it, a quantity of coal. The British admiral, De Horsey, on the Pacific station (I) Wheat. Int. Law, 2 Eng-. ed. p. 171, ed. note. Piracy. 437 having been informed of these proceedings, called upon The Huascar to surrender, and offered to land the crew on convenient neutral territory. The demand for the surrender of the vessel having been refused, the admiral thereupon opened fire upon her from The Shah and The Amethyst, two wooden war-ships. Shortly afterwards the vessel surrendered to the Peruvian national squadron. The Peruvian Government, which had pre- viously disclaimed all responsibility for the acts of The Huascar, subsequently demanded reparation from the British Government. This, however, was refused, the law officers advising that Admiral de Horsey's proceedings were justifiable. The ship, it was stated by the Attorney-General, had committed acts which made her an enemy of Great Britain, and she was in the hands of insurgents not in a position to claim belligerent rights. The subject of Piracy is discussed at some length both in Wheaton's International Law (2 Eng. ed. 166 — 173), and Kent's International Law (2nd ed. 399—414). Pitt Oobbett's " Leading Cases," pp. 82 — 93, may also be usefully referred to in this connexion. See also p. 91, supra, sub Privateering. Insurance. The ordinary marine policy specifically undertaies the risk of "pirates, rovers . . . and all other perils," i. e. all other perils of the like kind. Therefore, although a loss may fail to come strictly within what may be considered to be the technical defini- tion of piracy, yet, if the loss be ejusdem generis with piracy, the underwriters wiU, under the above general words, be liable. In Palmer v. Naylor {m), where some coolie passengers rose and murdered the captain and seized the ship for the purpose of getting ashore. Lord Coleridge said that it was admitted that the seizure was " either a direct act of piracy, or an act so entirely ejusdem generis, that if not deduced from the general words of the policy, they are included in the general words at the foot of the peril clause." (m) 24 L. T. 83. 438 PlEACY. In NesUtt V. Lushington (n), during a famine in Ireland, a corn-laden vessel was forciMy taken possession of hj tlie mob and run upon tte rocks. The mob " recLuisitioned " the cargo, paying for it on their own terms. For the loss thus arising a claim was brought against the underwriters. The first count of plaintiffs' claim was a loss under the words in the policy — " arrests, restraints, and detainments of all . . . people." The second, a loss by " pirates." As regards the first, the Court de- cided in favour of the underwriters, on the ground that the " people " contemplated under the words relied upon must be taken to mean the riding power of the country. But on the second count defendants were held liable, the Court deciding that the loss feU within a capture by pirates. In cases where the insurance excludes the risk of capture gene- rally, an exception — perhaps in consequence of the judgment in Johnston v. Hogg (o) — is sometimes made in favour of capture by pirates. The Lloyd's F. C. & S. clause runs as follows : — "Warranted free of capture, seizure and detention, and the consequences thereof, or of any attempt thereat, piracy excepted, and also from all consequences of hostilities or warlike operations, whether before or after declaration of war "(^). («) i T. E. 783. For further minor references to the subject of Piracy generally, vide Arnould's Insurance, 5th. ed. p. 756. (o) Page 79, supra, [p) Owen's Marine Insurance Notes and Clauses, 2nd ed. p. 19. APPENDIX. NAVAL PRIZE ACT, 1864. (27 & 28 Vict. c. 25.) An Act for regulating Naval Prize of War. [23rd June, 1864.] Whereas it is expedient to enact permanently, with, amend- ments, such provisions concerning naval prize, and matters connected therewith, as have heretofore been usually passed at the beginning of a war : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as foUows : Preliminary. 1. This Act may be cited as the Naval Prize Act, 1864. Short title. 2. In this Act — Interpreta- The term "the Lords of the Admiralty" means the Lord tion of terms, High Admiral of the United Kingdom, or the commis- sioners for executing the office of Lord High Admiral : The term " the High Court of Admiralty" means the High. Court of Admiralty of England : The term "any of her Majesty's ships of war" includes any of her Majesty's vessels of war, and any hired armed ship or vessel in her Majesty's service : The term " officers and crew " includes flag officers, com- manders, and other officers, engineers, seamen, marines, soldiers, and others on board any of her Majesty's ships of war : The term " ship " includes vessel and boat, with the tackle, furniture, and apparel of th.e ship, vessel, or boat: 440 Appendix. The term "ship papers" includes all books, passes, sea/ briefs, charter parties, bills of lading, cockets, letters, and other documents and writings delivered up or found on board a captured ship : / The term "goods " includes all such things as are by tfe course of Admiralty and law of nations the subject of adjudication as prize (other than ships). ' Higli Court of Admiralty and other Courts to be Prize Courts for purposes of Act. I. — Peize Cotjrts. 3. The High Court of Admiralty, and every Court of Admiralty or of Vice-Admiralty, or other Court exercising Admiralty jurisdiction in her Majesty's dominions, for the time being authorized to take cognizance of and judicially proceed in matters of prize, shall be a Prize Court within the meaning of this Act. Every such Court, other than the High Court of Admiralty, is comprised in the term " Vice- Admiralty Prize Court," when hereafter used in this Act. High Court of Admiralty. Jurisdiction 4. The High Court of Admiralty shall have jurisdiction of High Court throughout her Majesty's dominions as a Prize Court, of Admiralty. The High Court of Admiralty as a Prize Court shall have power to enforce any order or decree of a Vice-Admiralty Prize Court, and any order or decree of the Judicial Com- mittee of the Privy Council in a prize appeal. Appeal to Queen in Council, in what cases. Jurisdiction of Judicial Appeal; Judicial Committee. 5. An appeal shall lie to her Majesty in Council from any order or decree of a Prize Court, as of right in case of a final decree, and in other cases with the leave of the Court making the order or decree. Every appeal shall be made in such manner and form and subject to such regulations (including regulations as to fees, costs, charges, and expenses) as may for the time being be directed by Order in Council, and in the absence of any such order, or so far as any such order does not extend, then in such manner and form and subject to such regulations as are for the time being prescribed or in force respecting maritime causes of appeal. 6. The Judicial Committee of the Privy Council shall have jurisdiction to hear and report on any such appeal, and may Naval Prize Act, 1864. 441 therein exercise all such powers as for the time being apper- Committee in tain to them in respect of appeals from any Court of Admi- prize appeals, ralty jurisdiction, and all such powers as are under this Act vested in the High Court of Admiralty, and all such powers as were wont to be exercised by the Commissioners of Appeal in prize causes. 7. All processes and documents required for the purposes Custody of of any such appeal shall be transmitted to and shall remain processes, in the custody of the Eegistrar of Her Majesty in Prize P^P^rs, &o. Appeals. 8 In every such appeal the usual inhibition shall be Limit of time extracted from the Eegistry of Her Majesty in Prize Appeals ^°^ appeal, ■within three months after the date of the order or decree appealed from if the appeal be from the High Court of Admiralty, and within six months after that date if it be from a Vice-Admiralty Prize Court. The Judicial Committee may, nevertheless, on sufficient cause shown, allow the inhibition to be extracted and the appeal to be prosecuted after the expiration of the respective periods aforesaid. Vice- Admiralty Prize Courts. 9. Every Vice-Admiralty Prize Court shall enforce within Enforcement its jurisdiction all orders and decrees of the Judicial Com- of ord^sof mittee in prize appeals and of the High Court of Admiralty ^S^ Court, in prize causes. 10. Her Majesty in Council may grant to the judge of any Salaries of Vice-Admiralty Prize Court a salary not exceeding five hun- judges of _ dred pounds a year, payable out of money provided by JaityPri^e' Parliament, subject to such regulations as seem meet. Courts. A judge to whom a salary is so granted shall not be entitled to any further emolument, arising from fees or other- wise in respect of prize business transacted in his Court. An account of all such fees shall be kept by the registrar of the Court, and the amount thereof shall be carried to and form part of the consolidated fund of the United Kingdom. 1 1. In accordance, as far as circumstances admit, with the Eetiring ■principles and regulations laid down in the Superannuation pensions of Act, 1859, her Majesty in Council may grant to the judge of f^l^^J^^^ any Vice-Admiralty Prize Court an annual or other allow- ^ 20. ance to take effect on the termination of his service, and to be payable out of money provided by Parliament. 442 Appendix. Returns from 12. The registrar of every Vice-Admiralty Prize Court Vioe-Admi- shall, on the first day of January and first day of July in ^^^T^Ji^e every year, make out a return (in such form as the Lords of ^" the Admiralty from time to time direct) of all cases adjudged in the Court since the last half-yearly return, and shall with all convenient speed send the same to the registrar of the High Court of Admiralty, who shall keep the same in the registry of that Court, and who shall, as soon as conveniently may be, send a copy of the returns of each half year to the Lords of the Admiralty, who shall lay the same before both Houses of Parliament. General. Generalorders 13. The Judicial Committee of the Privy Council, with the for ^Mze judge of the High Court of Admiralty, may from time to ° ^' time frame general orders for regulating (subject to the provisions of this Act) the procedure and practice of Prize Coiu'ts, and the duties and conduct of the officers thereof and of the practitioners therein, and for regulating the fees to be taken by the officers of the Courts, and the costs, charges, and expenses to be allowed to the practitioners therein. Any such general orders shall have full effect, if and when approved by her Majesty in Council, but not sooner or other- wise. Every Order in Council made under this section shall be laid before both Houses of Parliament. Every such Order in Council shall be kept exhibited in a conspicuous place in each Court to which it relates. ProHtitiou of 14. It shall not be lawful for any registrar, marshal, or officer of Prize other officer of any Prize Court, or for the Registrar of Her a "proctor °&o ^^^^ty in Prize Appeals, directly or indirectly to act or be in ' ' any manner concerned as advocate, proctor, solicitor, or agent, or otherwise, in any prize cause or appeal, on pain of dismissal or suspension from office, by order of the Court or of the Judicial Committee (as the case may require). Prohibition of 15. It shall not be lawful for any proctor or solicitor, or proctors being person practising as a proctor or solicitor, being employed by concerned for ^ party in a prize cause or appeal, to be employed or ties in a concerned, by himself or his partner, or by any other person, cause. directly or indirectly, by or on behalf of any adverse party in that cause or appeal, on pain of exclusion or suspension from practice in prize matters, by order of the Court or of the Judi- cial Committee (as the case may require). Naval Prize Act, 1864. 443 II. — Pbocedxtee in Peize Causes. Proceedings hy Captors. 16. Every ship taken as prize, and brougM into port within Custody of the jurisdiction of a Prize Court, shall forthwith, and without prize ship, bulk broken, be delivered up to the marshal of the Court. If there is no such marshal, then the ship shall be in like manner delivered up to the principal officer of customs at the port. The ship shall remain in the custody of the marshal, or of such officer, subject to the orders of the Court. 17. The captors shall, with aU practicable speed after the Bringing in of ship is brought into port, bring the ship papers into the ship papers, registry of the Court. The officer in command, or one of the chief officers of the capturing ship, or some other person who was present at the capture, and saw the ship papers delivered up or found on board, shall make oath that they are brought in as they were taken, without fraud, addition, subduction, or alteration, or else shall account on oath to the satisfaction of the Court for the absence or altered condition of the ship papers or any of them. Where no ship papers are delivered up or found on board the captured ship, the officer in command, or one of the chief officers of the capturing ship, or some other person who was present at the capture, shall make oath to that effect. 18. As soon as the affidavit as to ship papers is filed, a Issue of monition shall issue, returnable within twenty days from the monition, service thereof, citing all persons in general to show cause why the captured ship should not be condemned. 19. The captors shall, with all practicable speed after the Examinations captured ship is brought into port, bring three or four of the ?n standing principal persons belonging to the captured ship before the mterroga- judge of the Court or some person authorized in this behalf, by whom they shall be examined on oath on the standing interrogatories. The preparatory examinations on the standing interroga- tories shall, if possible, be concluded within five days from the commencement thereof. 20. After the return of the monition, the Court shall, on Adjudication production of the preparatory examinations and ship papers, by Court. proceed with all convenient speed either to condemn or to release the captured ship. 444 Appendix. Further 21. Where, on production of the preparatory examinations proof. and ship papers, it appears to the Court doubtful whether the captured ship is good prize or not, the Court may direct further proof to he adduced, either by affidavit or by exami- nation of witnesses, with or without pleadings, or by produc- tion of further documents ; and on such further proof being adduced the Court shall with all convenient speed proceed to adjudication, Custody, &c. 22. The foregoing provisions, as far as they relate to the of ships of custody of the ship, and to examination on the standing "^^^ interrogatories, shall not apply to ships of war taken as prize. Claim. Entry of 23. At any time before final decree made in the cause, any claim. person claiming an interest in the ship may enter in the registry of the Court a claim, verified on oath. Security for Witliin five days after entering the claim, the claimant shall costs. give security for costs in the sum of sixty pounds ; but the Court shall have power to enlarge the time for giving security, or to direct security to be given in a larger sum, if the circum- stances appear to require it. Power to Court to direct ap- praisement. Appraisement. 24. The Court may, if it thinks fit, at any time direct that the captured ship be appraised. Every appraisement shall be made by competent persons sworn to make the same according to the best of their skill and knowledge. Delivery on Bail. Power to 25. After appraisement, the Court may, if it thinks fit, direct Court to that the captured ship be delivered up to the claimant, on his direct delivery giving security to the satisfaction of the Court to pay to the to claimant captors the appraised value thereof in case of condemnation. Sale. Power to 26. The Court may at any time, if it thinks fit, on account Court to order of the condition of the captured ship, or on the application of 8ale. a claimant, order that the captured ship be appraised as afore- said (if not already appraised), and be sold. Sale on con- 27. On or after condemnation the Court may, if it thinks demnation. fit, order that the ship be appraised as aforesaid (if not already appraised), and be sold. Naval Peize Act, 1864. 445 28. Every sale shall be made hj or under th.e superintea- How sales to deuce of the marshal of the Court or of the officer having the l>e made, custody of the captured ship. 29. The proceeds of any sale, made either before or after Payment of condemnation, and after condemnation the appraised value of proceeds to the captured ship, in case she has been delivered up to a ^^.ymaster- claimant on bail, shall be paid under an order of the Court offidal Ao- either into the Bank of England to the credit of her Majesty's eountant. Paymaster-General, or into the hands of an official accountant (belonging to the Commissariat or some other department) appointed for this purpose by the Commissioners of her Majesty's Treasury or by the Lords of the Admiralty, subject in either case to such regulations as may from time to time be made, by Order in CouncU, as to the custody and disposal of money so paid. Small armed Ships. 30. The captors may include in one adjudication any Oneadjudioa- nujnber, not exceeding six, of armed ships not exceeding one tion as to hundred tons each, taken within three months next before several small institution of proceedings. ships. Goods. 31. The foregoing provisions relating to ships shall extend Application of and apply, m.utatis mutandis, to goods taken as prize on board foregoing pro^ ship ; and the Court may direct such goods to be unladen, ™ions to inventoried and warehoused. P"^^ ^°'^^- Monition to Captors to proceed, 32. If the captors fail to institute or to prosecute with effect Power to proceedings for adjudication, a monition shall, on the appli- Court to call cation of a claimant, issue against the captors, returnable °" captors to within six days from the service thereof, citing them to appear adju^oation and proceed to adjudication ; and on the return thereof the Court shall either forthwith proceed to adjudication or direct further proof to be adduced as aforesaid, and then proceed to adjudication. Claim on Appeal. 33. Where any person, not an original party in the cause. Person inter- intervenes on appeal, he shall enter a claim, verified on oath, feuing on and shaU give security for costs. Xll^. 446 Appendix. Jurisdiction of Prize Couri; in case of capture in land expedi- tion. III. — Special Oases of Capttjeb. Land Expeditions. 34. Where, in an expedition of any ol lier Majesty's naval or naval and military forces against a fortress or possession on land, goods belonging to the state of the enemy or to a public trading company of the enemy exercising powers of government are taken in the fortress or possession, or a ship is taken in waters defended by or belonging to the fortress or possession, a Prize Court shall have jurisdiction as to the goods or ship so taken, and any goods taken on board the ship, as in case of prize. Conjunct Capture with Ally. Jurisdiction 35. Where any ship or goods is or are taken by any of her of Prize Couri; Majesty's naval or naval and military forces while acting in iTiiV^ ^th conjunction with any forces of any of her Majesty's allies, a ally. Prize Court shall have jurisdiction as to the same as in case of prize, and shall have power, after condemnation, to appor- tion the due share of the proceeds to her Majesty's ally, the proportionate amount and the disposition of which share shall be such as may from time to time be agreed between her Majesty and her Majesty's ally. Restriction on petitions by- asserted joint captors. In case of ofEenoe by Joint Capture. 36. Before condemnation, a petition on behalf of asserted joint captors shaU not (except by special leave of the Court) be admitted, unless and until they give security to the satis- faction of the Court to contribute to the actual captors a just proportion of any costs, charges, or expenses or damages that may be incurred by or awarded against the actual captors on account of the capture and detention of the prize. After condemnation, such a petition shall not (except by special leave of the Court) be admitted unless and until the asserted joint captors pay to the actual captors a just propor- tion of the costs, charges, and expenses incurred by the actual captors in the case, and give such security as aforesaid, and show sufficient cause to the Court why their petition was not presented before condemnation. Provided, that nothing in the present section shall extend to the asserted interest of a flag officer claiming to share by virtue of his flag. Offences against Law of Prize. 37. A Prize Court, on proof of any offence against the law of nations, or against this Act, or any Act relating to naval Naval Prize Act, 1864. 447 discipline, or against any Order in Council or royal proclama- captors, prize tidn, or of any breach of her Majesty's instructions relating to be reseryed to prize, or of any act of disobedience to the orders of the ^°^ Crown. Lords of the Admiralty, or to the command of a superior officer, committed by the captors in relation to any ship or goods taken as prize, or in relation to any person on board any such ship, may, on condemnation, reserve the prize to her Majesty's disposal, notwithstanding any grant that may have been made by her Majesty in favour of captors. Pre-emption. 38. Where a ship of a foreign nation passing the seas laden Purchase by ■with naval or victualling stores intended to be carried to a Admiralty for port of any enemy of Her Majesty is taken and brought into ptiblio service a port of the United Kingdom, and the purchase for the ser- ? stores on vice of her Majesty of the stores on board the ship appears to sbitiB. the Lords of the Admiralty expedient without the condem- nation thereof in a Prize Court, in that case the Lords of the Admiralty may purchase, on the account or for the service of her Majesty, all or any of the stores on board the ship ; and the Commissioners of Customs may permit the stores pur- chased to be entered and landed within any port. Capture by Ship other than a Ship of War. 39. Any ship or goods taken as prize by any of the officers Prizes taken and crew of a ship other than a ship of war of her Majesty ^y ships other shall, on condemnation, belong to her Majesty in her office of ^^l^^^^^ °^ Admiralty. droits of Admiralty. IV. — Prize Salvage. 40. Where any ship or goods belonging to any of her Salvage to Majesty's subjects, after being taken as prize by the enemy, ^-.^^P*™^. "* is or are retaken from the enemy by any of her Majesty's ^"^oodB from ships of war, the same shall be restored by decree of a Prize enemy. Court to the owner, on his paying as prize salvage one.eighth part of the value of th« prize to be decreed and ascertained by the Court, or such sum not exceeding one eighth part of the estimated value of the prize as may be agreed on between the owner and the re-captors, and approved by order of the Court; provided, that where the re-capture is made under circumstances of special difficulty or danger, the Prize Court may, if it thinks fit, award to the re-captors as prize salvage a larger part than one eighth part, but not exceeding in any case one fourth part, of the value of the prize. 448 Appendix. Provided also, that -where a ship after being so taken is set forth or used by any of her Majesty's enemies as a ship of ■war, this provision for restitution shall not apply, and the ship shall be adjudicated on as in other cases of prize. Permission to re-oaptured ship to pro- ceed on voyage. 41. Where a ship belonging to any of her Majesty's sub- jects, after being taken as prize by the enemy, is retaken from the enemy by any of her Majesty's ships of war, she may, with the consent of the re-captors, prosecute her voyage, and it shall not be necessary for the re-captors to proceed to adjudication till her return to a port of the United Kingdom. The master or owner, or his agent, may, with the consent of the re-captors, unload and dispose of the goods on board the ship before adjudication. In case the ship does not, within six months, return to a port of the United Kingdom, the re-captors may nevertheless institute proceedings against the ship or goods in the High Court of Admiralty, and the Court may thereupon award prize salvage as aforesaid to the re-captors, and may enforce payment thereof, either by warrant of arrest against the ship or goods, or by monition and attachment against the owner. V. — Pbize Botinty. Prize bounty 42. If, in relation to any war, her Majesty is pleased to to officers and declare, by proclamation or Order in Council, her intention to crew present gj^nt prize bounty to the officers and crews of her ships of war, then such of the officers and crew of any of her Majesty's ships of war as are actually present at the taking or destroying of any armed ship of any of her Majesty's enemies shall be entitled to have distributed among them as prize bounty a sum calculated at the rate of five pounds for each person on board the enemy's ship at the beginning of the engagement. at engage- ment with an enemy. Ascertain- ment of amount of prize bounty by decree of Prize Court. 43. The number of the persons so on board the enemy's ship shall be proved in a Prize Court, either by the examina- tions on oath of the survivors of them, or of any three or more of the survivors, or if there is no survivor by the papers of the enemy's ship, or by the examinations on oath of three or more of the officers and crew of her Majesty's ship, or by such other evidence as may seem to the Court sufficient in the cir- cumstances. The Court shall make a decree declaring the title of the Naval Prize Act, 1864. 441 officers and crew of her Majesty's sMp to the prize bounty, and stating the amount thereof. The decree shall be subject to appeal as other decrees of the Court. 44. On production of an official copy of the decree, the Payment of Commissioners of her Majesty's Treasury shall, out of money prize bounty provided by Parliament, pay the amount of prize boimty ^'^^'^'i''^- decreed, in such manner as any Order in Council may from time to time direct. VI. — MiSOELLANEOtJS PeOVISIONS. Ransom. 45. Her Majesty in Council may from time to time, in rela- Power for tion to any war, make such orders as may seem expedient, regulatmg according to circumstances, for prohibiting or allowing, (^^^g^^ wholly or in certain cases, or subject to any conditions or Council, regulations or otherwise, as may from time to time seem meet, the ransoming or the entering into any contract or agreement for the ransoming of any ship or goods belonging to any of her Majesty's subjects, and taken as prize by any of her Majesty's enemies. Any contract or agreement entered into, and any bill, bond, or other security given for ransom of any ship or goods, shall be under the exclusive jurisdiction of the High Court of Admiralty as a Prize Court (subject to appeal to the Judicial Comroittee of the Privy Council), and if entered into or given in contravention of any such Order in Council shall, be deemed to have been entered into or given for an illegal consideration. If any person ransoms or enters into any contract or agree- ment for ransoming any ship or goods, in contravention of any such Order in Council, he shall for every such oifence be liable to be proceeded against in the High Court of Admiralty at the suit of her Majesty in her Office of Admiralty, and on conviction to be fined, in the discretion of the Court, any sum not exceeding five hundred pounds. Convoy. 46. If the master or other person having the command of Punishment any ship of any of her Majesty's subjects, under the convoy of masters of of any of her Majesty's ships of war, wilfully disobeys any "ggels^mder lawful signal, instruction, or command of the commander of convoy dis- 450 Appendix. obeying orders or deserting convoy. the convoy, or without leave deserts the convoy, he shall be liable to be proceeded against in the High Court of Admiralty at the suit of her Majesty in her Office of Admiralty, and upon conviction to be fined, in the discretion of the Court, any sum not exceeding five hundred pounds, and to suffer im- prisonment for such time, not exceeding one year, as the Court may adjudge. Prize ships and goods liable to duties and forfeiture. Eegulations of customs to be observed as to prize ships and goods. Customs Duties and Regulations. 47. All ships and goods taken as prize and brought into a port of the United Kingdom shall be liable to and be charged with the same rates and charges and duties of customs as under any Act relating to the customs may be chargeable on other ships and goods of the like description ; and All goods brought in as prize which would on the voluntary importation thereof be liable to forfeiture or subject to any restriction under the laws relating to the customs, shall be deemed to be so liable and subject, unless the Commissioners of Customs see fit to authorize the sale or delivery thereof for home use or exportation, unconditionally or subject to such conditions and regulations as they may direct. 48. Where any ship or goods taken as prize is or are brought into a port of the United Kingdom, the master or other person in charge or command of the ship which has been taken or in which the goods are brought shall, on arrival at such port, bring to at the proper place of discharge, and shall, when required by any officer of customs, deliver an account in writing under his hand concerning such ship and goods, giving such, particulars relating thereto as may be in his power, and shall truly answer all questions concerning such ship or goods asked by any such oificer, and in default shall forfeit a sum not exceeding one hundred pounds, such forfeiture to be enforced as forfeitures for offences against the laws relating to the customs are enforced, and every such ship shall be liable to such searches as other ships are liable to, and the officers of the customs may freely go on board such ship and bring to the Queen's warehouse any goods on board the same, subject, nevertheless, to such regulations in respect of ships of war belonging to her Majesty as shall from time to time be issued by the Commissioners of her Majesty's Treasury. Power for 49. Goods taken as prize may be sold either for home con- Treasury to sumption or for exportation ; and if in the former ease the dXesT*°"^ proceeds thereof, after payment of duties of customs, are certain cases, insufficient to satisfy the j ust and reasonable claims thereon. Naval Prize Act, 1864. 461 the Commissioners of her Majesty's Treasury may remit the ■whole or such part of the said duties as they see fit. Perjury. 50. If any person wilfully and corruptly swears, declares, Punialiment or affirms falsely in any prize cause or appeal, or in any pro- °^ persons ceeding under this Act, or in respect of any matter required f^,^ by this Act to he verified on oath, or suhorns any other person to do so, he shall be deemed guilty of perjury, or of suborna- tion of perjury (as the case may be), and shall be liable to be punished accordingly. Limitation of Actions, ^c, 51. Any action or proceeding shall not lie in any part of Actions her Majesty's dominions against any person acting under the a-gamst per- authority or in the execution or intended execution or in pur- in^^^dTnott suance of this Act for any alleged irregularity or trespass, or te brought other act or thing done or omitted by him under this Act, witliont unless notice in writing (specifying the cause of the action or notice, &c. proceeding) is given by the intending plaintiff or prosecutor to the intended defendant one month at least before the com- mencement of the action or proceeding, nor unless the action or proceeding is commenced within six months next after the act or thing complained of is done or omitted, or, in case of a continuation of damage, within six months next after the doing of such damage has ceased. In any such action the defendant may plead generally that the act or thing complained of was done or omitted by him when acting under the authority or in the execution or intended execution or in pursuance of this Act, and may give all special matter in evidence ; and the plaintiff shall not succeed if tender of sufficient amends is made by the defendant before the com- mencement of the action ; and in case no tender has been made, the defendant may, by leave of the Court in which the action is brought, at any time pay into Court such sum of money as he thinks fit, whereupon such proceeding and order shall be had and made in and by the Court as may be had and made on the payment of money into Court in an ordinary action ; and if the plaintiff does not succeed in the action, the defendant shaU. receive such full and reasonable indemnity as to all costs, charges, and expenses incurred in and about the action as may be taxed and allowed by the proper officer, subject to review; and though a verdict is given for the plaintiff in the action he shall not have costs against the defendant, unless the judge before whom the trial is had certifies his approval of the action. G G 2 453 Appendix. Any such action or proceeding against any person in her Majesty's naval service, or in the employment of the Lords of the Admiralty, shall not be brought or instituted elsewhere than in the United Kingdom. Jurisdiction of High Court of Admiralty on petitions of right in cer- tain oases, as in 23 & 24 Viet. c. 34. Petitions of Right. 52. A petition of right, under the Petitions of Eight Act, 1860, may, if the suppliant thinks fit, be intituled in the High Court of Admiralty, in case the subject-matter of the petition or any material part thereof arises out of the exercise of any belligerent right on behalf of the Crown, or would be cogniz- able in a Prize Court within her Majesty's dominions if the same were a matter in dispute between private persons. Any petition of right under the last-mentioned Act, whether intituled in the High Court of Admiralty or not, may be prose- cuted in that Court, if the Lord Chancellor thinks fit so to direct. The provisions of this Act relative to appeal, and to the framing and approval of general orders for regulating the procedure and practice of the High Court of Admiralty, shaU. extend to the case of any such petition of right intituled or directed to be prosecuted in that Court ; and, subject thereto, all the provisions of the Petitions of Eight Act, 1860, shall apply, mutatis mutandis, in the case of any such petition of right ; and for the purposes of the present section the terms "Court" and "judge" in that Act shall respectively be under- stood to include and to mean the High Court of Admiralty and the judge thereof, and other terms shall have the respective meanings given to them in that Act. Orders in Council. Power to 53. Her Majesty in Council may from time to time make make Orders such Orders in Council as seem meet for the better execution in Council. ^f this Act. Order in Council to be gazetted, &c. 54. Every Order in Council under this Act shall be published in the London Gazette, and shall be laid before both Houses of Parliament within thirty days after the making thereof, if Parliament is then sitting, and, if not, then within thirty days after the next meeting of Parliament. Not to affect rights of Crown ; effect of treaties, &c. Savings. 55. Nothing in this Act shall — (1.) give to the ofiicers and crew of any of her Majesty's ships of war any right or claim in or to any ship or goods taken as prize or the proceeds thereof, it being Naval Prize Act, 1864. 453 the intent of this Act that such officers and crews shall continue to take only such interest (if any) in the proceeds of prizes as may he from time to time granted to them by the Crown ; or (2.) affect the operation of any existing treaty or convention with any foreign power ; or (3.) take away or abridge the power of the Crown to enter into any treaty or convention with any foreign power containing any stipulation that may seem meet con- cerning any matter to which this Aet relates ; or (4.) take away, abridge, or control, further or otherwise than as expressly provided by this Act, any right, power, or prerogative of her Majesty the Queen in right of her Crown, or in right of her office of Admiralty, or any right or power of the Lord High Admiral of the United Kingdom, or of the Com- missioners for executing the Office of Lord High Admiral; or (5.) take away, abridge, or control, further or otherwise than as expressly provided by this Act, the jurisdiction or authority of a Prize Court to take cognizance of and judicially proceed upon any capture, seizure, prize, or reprisal of any ship or goods, and to hear and determine the same, and, according to the course of Admiralty and the law of nations, to adjudge and condemn any ship or goods, or any other jurisdiction or authority of or exerciseable by a Prize Court. Commencement. 56. This Act shall commence on the commencement of the Commencc- Naval Agency and Distribution Act, 1864. ment of Act. GENERAL INDEX. ABANDONMENT. IVide sub Captueb ; Embaeoo; Fbeioht; Pee- BMPTION ; &C.] ACT OP GOD, 414. ADJUDICATION. [ Vide also Condemnation ; Peizb.] Eight to carry suspected vessels into port, 154. The subject generally, 316. Court of ally of captor has no jurisdiction, 316. Prize court may sit in territory of ally, 316. Prize lyiag within territory of ally, 317. Prize cannot be condemned whOst within neutral jurisdiction, 62, 317. DiflEerence of opiaion as to this, 317. Neutral ports now closed to prizes, 317. To what port prize to be brought, 318. Peace cures defective title to prize purchased, 318. Eight to prize vested iu sovereign, 319. Prize proclamation, 130, 319, 407, 411. Adjudication by Admiralty Court, 319. Misconduct forfeits prize, 319. When prize Droit of Admiralty, 136, 319. Law of nations followed ; not municipal law, 320. May be demanded by neutrals, though prize lost or destroyed, 320, 330. Captors must proceed with, 65, 320, 332. Statute of Limitations does not apply, 321. Enemies have no locus standi, 321. Master can represent claimants, 321. Claim, how to be supported, 322. Time allowed if documents insufficient, 322. Proof lies on claimant, 322. If no proof, delay of year and day, 322. Property not changed till regular condenmation, 322. Allowance for amelioration ; defective purchase, 323. Interlocutory sale, 323. Discharge of cargo ; expenses of, 59, 323, 334. Jurisdiction of captors' court conclusive, 323, 389. Captors' liabiKty, 324. Neutrals have no complaint till adjudication, 324. Neutrals must resort to highest court of appeal, 324. The Standing Interrogatories, 116, 324. Eules as regards evidence, 325. The responsibility of captors, 57, 68, 64, 67, 330. Neutral property destroyed with belligerent ship, 333. Grounds of foreign condemnation examined by the Court, 389. Weight to be attached to foreign condemnation, SS9. Privateers must bring in prizes, 94. 456 GrENEEAL InDEX. ADJVDIOATIOTH— continued. Costs and Damages. {Vide also sub Caftueb.] The award of, 325. The Ostsee case, 325. Indenmification of captors by national government, 65, 328. Expenses aggravated by wiliulness of daimants, 329, 332. None allowed against captors if capture justifiable, 55, 329. When not allowed against captors, 329, 331, 332. When allowed, 330, 331. If prize lost or destroyed, 320, 330. Captors' liability after unjustified sale, 330. Damages for personal torts, 330. Vindictive damages, when given, 331. For unreasonable delay, 332. Against non-oomruissioned captors, 332. Indirect damages ; loss of market, &o., 333. Destruction of neutral property with beUigerent vessel, 333. When further proof required, 333. Or when misconduct on part of claimaints, 334. When not allowed to claimants, 333. When allowed to captors, 59, 334. Basis of allowance, 334. Expenses of unlivery and warehousing, 59, 323, 334. Private compromise precludes claim for damages, 335. Double charge for fire insurance, 335. Marshal responsible for safety of prize, 335. Excessive charges by marshal, 33B. Expenses payable to neutral carrier, 341 . Assessment of ; Liability for ; Interest on, 57 — 67. Payable out of Freight, 67. Damage by resisting capture, 83, 84. Costs of Discharge, &c. \_Vide sub Caeqo.] I/iabUity of privateer owners, 94. Costs when insurance F. C. and S. or invalidated, 336. Costs in ordinary cases, 336. Services of master and crew re restitution, 337. Costs adjudged against claimant, 337. Whether reasonably incurred, 338. ADMIRALTY COURT, Adjudication by, 319. Responsibility for prize, 335. ADMIRALTY, DROIT OF, 136, 319. AGENT AND PRINCIPAL, 114, 413. ALABAMA, THE Was not a privateer, 28. Case, generally, 364. [ Fii