mines. The appellants filed a series of affidavits, stating in identical terms that in proceeding to a British port of call vessels would incur very great risk of attack by submarines, especially if unaccompanied by an armed escort. Of the possibility of obtaining an armed escort or other similar protection they say nothing, apparently because they never had any intention of complying with the Order in Council, and therefore were not concerned to ascertain how much danger, or how little, their compliance would really involve. Proof of the amount of danger involved in crossing the mine field in itself is singularly lacking, but the fact is plain that after a voyage of no extraordinary character the Leonora did reach Harwich in safety.

Under these circumstances their Lordships see no sufficient reason why, on a question of fact, as this question is, they should differ from the considered conclusion of the President. He was satisfied that the Order in Council did not involve greater hazard or prejudice to the neutral trade in question than was commensurate with the gravity of the enemy outrages and the common need for their repression, and their Lordships are not minded to disturb his finding. The appeals accordingly fail. Their Lordships will humbly advise His Majesty that they should be dismissed with costs.*

4 See the instructive and balanced article by Sir Erle Richards. on "British Prize Courts and the War," in the British Year Book of International Law, 1920-21, pp. 11-34. In the course of this article, he says:

"Decisions of British Prize Courts in this war have established the right of one belligerent to disregard the limits of International Law and to retaliate against neutral commerce, if the other belligerent has infringed neutral rights of trade to the detriment of the first belligerent; and the courts have given effect to that right by their decrees. The Stigstad, L. R. [1919] A. C. 219. In fact, British courts were bound so to hold, since it was found that the highest tribunal in prize in this country had settled the point in the Napoleonic wars. It was known that Lord Stowell had upheld the Retaliatory Orders in the Napoleonic wars and that Napoleon had claimed the right to retaliate in his decrees. But for some reason or other both the British Orders in Council and the French Decrees were treated by jurists as turning on the right of blockade. Moreover, the United States had gone to war in 1812 because of the British claim to enforce these orders, amongst other causes. That nation had therefore declined at that time to admit the validity of retaliation, and that in the most emphatic way. The right claimed is obviously one of extreme importance, for it enables belligerents to override the whole of the protection which the common law of nations and treaties have given to neutral trade, and yet if retaliation be a legal right, neutrals can have no cause of complaint. The whole matter is certain to be the subject of discussion at any future conference at which the laws of war at sea are under revision; and the right of retaliation will have behind it the usage of England and of France in their wars a century ago, and of Great Britain and Germany (and to some extent of France) in the late war; against it the action of the United States in 1812." Pages 29, 30, 33.

*

CHAPTER XIV

NATIONALITY OF PROPERTY IN AND DURING
TRANSIT

THE SALLY.

(Lords, 1795. 3 C. Rob. 300, note.)

The Sally, Griffiths, was a case of a cargo of corn shipped March, 1793, by Steward and Plunket, of Baltimore, ostensibly for the account and risk of Conyngham, Nesbit & Co., of Philadelphia, and consigned to them or their assigns. By an endorsement on the bill of lading, it was further agreed that the ship should proceed to Havre de Grace, and there wait such time as might be necessary, the orders of the consignee of the said cargo (the mayor of Havre) either to deliver the same at the port of Havre, or proceed therewith to any one port without the Mediterranean, on freight at the rate of 5s. per barrel on delivery at Havre, and 5s. 6d. at a second port, the freight to be settled by the shippers in America according to agreement.

Amongst the papers was a concealed letter from Jean Ternant, the minister of the French Republic to the United States, in which he informs the minister of foreign affairs in France: "The house of Conyngham & Co., already known to the ministers, by their former operations for France, is charged by me to procure without delay, a consignment of 22,000 bushels of wheat, 8,000 barrels of fine flour, 900 barrels of salted beef from New England. The conditions stipulated are the same as those of the contract of 2d November, 1792, with the American citizens, Swan & Co., for a like supply to be made to the Antilles, namely, that the grain, flour, and beef are to be paid at the current price of the markets at the time of their being shipped; that the freights shall be at the lowest course in the ports; that an insurance should be on the whole; and that a commission of five per cent. shall be allowed for all the merchants' expenses and fees. It has been moreover agreed, considering the actual reports of war, that the whole shall be sent as American property to Havre and to Nantes, with power to our government of sending the ships to other ports conditional on the usual freight. As you have not signified to me to whom these cargoes ought to be delivered in our ports, I shall provide each captain with a letter to the mayor of the place."

There was also a letter from J. Ternant to the mayor of the municipality of Havre. "Our government having ordered me to send supplies of provisions to your port, I inform you that the bearer of this, commanding the American ship, the Sally, is laden with a cargo of wheat, of which he will deliver you the bill of lading.”

To the twelfth and twentieth interrogatories the master deposed, “that he believes the flour was the property of the French government, and on being unladen, would have immediately become the property of the French government."

In the argument it was insisted, on the part of the claimants, that the cargo was to be considered as the property of the American merchants; that it had been ordered of them, to be supplied and delivered at a certain place; and that under the general principle of law, property was not considered to be divested between the vendor and vendee till actual delivery.1

It was contended, that the contract remained executory till the completion by delivery in Europe; that the payment was contingent on the completion of the contract in this form, and that no money had passed, nor any compensation or agreement had intervened to produce an absolute conversion of the property; and it was prayed that the court would admit farther proof to ascertain that circumstance.

On the part of the captors it was replied, that the general rule of law subsisting between vendor and vendee in a commercial transaction, referring only to the contracting parties, and not affecting the rights of third persons, could not apply to contracts made in time of war, or in contemplation of war, where the rights of a belligerent nation intervened; that the effect of such a contract as the present would be to protect the trade of the contracting belligerent from his enemy; and that if it could be allowed, it would put an end to all capture. It was said to be a known principle of the prize court, that neutral property must be proved to be neutral at all periods from the time of shipment, without intermission, to the arrival and subsequent sale in the port of the enemy; that the twelfth and twentieth interrogatories were framed with this view to inquire, "whether on its arrival, etc., it shall and will belong to the same owner and no other, etc.," and a reference was made to the case of the Charles Havenerswerth in 1741, in which the form of attestation was directed to be prepared by the whole bar, and was established in the present form to ascertain the property at the several periods of shipment, and arrival in the enemy's ports; in cases where affidavits were to be received to supply the defects of the original evidence, in the place of plea and proof.

THE COURT said: It has always been the rule of the prize courts, that property going to be delivered in the enemy's country, and under a contract to become the property of the enemy immediately on arrival, if taken in transitu, is to be considered as enemy's property. When the contract is made in time of peace or without any contemplation of war, no such rule exists. But in a case like the present, where the form of the contract was framed directly for the purpose of obviating the danger apprehended from approaching hostilities, it is a

1 Snee v. Trescot, 1 Atk. 245 (1743); Mason v. Lickbarrow, 1 H. Black. 357 (1790); Hunter v. Beal, 3 T. Rep. 466 (1785).

rule which unavoidably must take place. The bill of lading expresses account and risk of the American merchants; but papers alone make no proof, unless supported by the depositions of the master. Instead of supporting the contents of his papers, the master deposes, "that on arrival the goods would become the property of the French government," and all the concealed papers strongly support him in this testimony. The evidentia rei is too strong to admit farther proof. Supposing that it was to become the property of the enemy on delivery, capture is considered as delivery. The captors, by the rights of war, stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as of enemy's property. On every principle on which prize courts can proceed, this cargo must be considered as enemy's property. Condemned.2

THE DANCKEBAAR AFRICAAN.

(High Court of Admiralty, 1798. 1 C. Rob. 107.)

This was a case of a Dutch ship, bound from Batavia to Holland, and taken on the 6th of November, 1795, about seven leagues to the southward of the Cape of Good Hope. On coming to the Cape of Good Hope, a claim was given on the part of Goetz and Vos, inhabitants of the Cape, and then become subjects of the crown of Great

2 In the case of The Anna Catharina, 4 C. Rob. 107, 115, 118 (1802), the vessel was taken on a voyage from Hamburg to La Guayra, and the cargo, it appeared, was going under "a special agreement and contract with the Spanish government of the Caracas." It was alleged in the first place that the vessel and cargo were taking "the chance of the market," and that in any event, the Spanish government might refuse to take the goods.

On this state of affairs, Sir William Scott, following the law laid down in The Sally, held that goods shipped under contract to a belligerent port "become, in itinere, the property of the enemy," and that "the legal consequence of condemnation would on that ground alone attach upon it."

In the case of the ship Francis and Cargo, 1 Gall. 445, Fed. Cas. No. 5032 (1813), approved by the Supreme Court, 8 Cranch 354, 3 L. Ed. 587 (1814), a shipment made by an enemy shipper to his correspondent in America to belong to the latter at his election, in twenty-four hours after the arrival thereof, was held liable to condemnation as hostile property.

In war, property cannot change its character in transitu; and in this case, an election during the transit would not merge the hostile character of the property.

The law on the subject is shortly stated by Mr. Justice Story in The Ann Green, 1 Gall. 274, Fed. Cas. 958, 964, No. 414 (1812), who, in delivering the opinion of the court, said:

"The cases are, as I think, settled upon just principles, that decide that in time of war, property shall not be permitted to change character in its transit; nor shall property consigned, to become the property of the enemy on arrival, be protected by the neutrality of the shipper. Such contracts, however valid in time of peace, are considered, if made in war or in contemplation of war, as infringements of belligerent rights, and calculated to introduce the grossest frauds. In fact, if they could prevail, not a single bale of enemy's goods would ever be found upon the ocean." Vrow Margaretha, 1 C. Rob. 336 (1799); Carl Walter, 4 C. Rob. 207 (1802); Jan Frederick, 5 C. Rob. 128 (1804); The Constantia, 6 C. Rob. 321 (1807); The Atlas, 3 C. Rob. 299 (1801); The Anna Catharina, 4 C. Rob. 107 (1802); Packet De Bilboa, 2 C. Rob. 133 (1799).

Britain. The cargo had been delivered to them on bail to answer adjudication. * * *

Sir W. SCOTT. I am of opinion that this is a decided case on the authority of the Supreme Court in The Negotie en Zeevaart. I remember that case well, having been junior counsel in it, and having attended much to it, as there was much difference of opinion respecting it in the court below.

It was a case of a ship sailing from Demarara to Middlebourg, in Holland, on the 30th of January, 1781, about six weeks after the declaration of hostilities against Holland. Demarara surrendered to the British forces on the 14th of March; and the capture was made on the 25th. The terms of capitulation were very favorable: "The inhabitants were to take the oath of allegiance; to be permitted to export their own property, and to be treated in all respects like British subjects, till his majesty's pleasure could be known;" and although this was in the first instance only under the proclamation of the captor, still that being accepted, it took complete effect. These terms were afterwards confirmed by the king. There was, therefore, in that case as strong a promise of protection as could be; and recognized and confirmed by the supreme authority of the state.

Under these circumstances, the judge of the admiralty thought the claim so strong, that he actually restored; and it was not his opinion alone. On appeal, however, the Lords were of opinion, that property sailing after declaration of hostilities, but before a capitulation, and taken on the voyage, was not protected by the intermediate capitulation. It was not determined on any ground of illegal trade, nor on any surmise, that when the owners became British subjects, the trade in which the property was embarked, became, ex post facto, illegal; nor was it at all taken into consideration, that Demarara had again become a Dutch colony at the time of adjudication. It was declared to be adjudged on the same principles as if the cause had come on at the time of capture. It was not on any of these grounds, but simply on the ground of Dutch property, that condemnation passed in that case. I remember a dictum of a great law lord then present, Lord Cambden, "that the ship sailed as a Dutch ship, and could not change her character in transitu."

This decision of the Supreme Court must be binding on me, unless there are in the present case any distinctions that take it out of the law of that decision. The distinctions made, are, 1st, that the colony in this case was not hostile; and, 2dly, that the ship was not going into the hands of the enemy, but that she was coming first to the Cape into the hands of the owners, now become British subjects; and that they would have altered the ulterior destination to Holland.

On the first point, that Holland was not hostile, it is enough that hostilities have since followed, and with a retrospective operation. The state of affairs was at that time at best but very doubtful; and all property taken during that doubtful state of things has been since.