Statutes, by which certain judicial authority was conferred upon United States ministers and consuls in certain countries, including China, which jurisdiction embraced all controversies between citizens of the United States or others, provided for by its treaties.

The treaty with China bearing upon the present question was that of June 18th, 1858 (12 Stats. Lg., p. 1029), and conferred upon the United States the right to appoint consuls in various parts of China. Its XXVII Article is as follows:

All questions in regard to rights, whether of property or person, arising between citizens of the United States in China, shall be subject to the jurisdiction and regulated by the authorities of their own government; and all controversies occurring in China between citizens of the United States and the subjects of any other government shall be regulated by the treaties existing between the United States and such governments, respectively, without interference on the part of China.

It is the contention of the plaintiff in error that the words "in China" in the foregoing Article qualify the word "citizens" and not the word "arising"; in other words, that a residence of the parties in China is essential to the existence of any jurisdiction in the court. We think it obvious that such a construction of the provision is wholly inadmissible, for the subject-matter thereby dealt with is controversies arising in China. The first clause of the provision relates to controversies in regard to rights, whether of property or person, there arising between citizens of the United States, and declares that they shall be subject to the jurisdiction and be regulated by the authorities of their own government; and by its second clause it is declared that all such controversies there arising between citizens of the United States and the subjects of any other government, shall be regulated by the treaties existing between the United States and such governments, respectively-in each instance without interference on the part of China. We regard it as clear that this is the very plain meaning of the article in question. As said by counsel for the defendant in error, the bare reading of its second clause is all that is necessary to show that the words "in China" there used, fixes, as the basis of the jurisdiction of the court, the place of the origin of the controversy, and not the residence of the parties thereto. No sound reason is suggested why a like construction should not be placed upon the first clause. To adopt the view urged by the plaintiff in error would be, in effect, to hold a consular court in China

vested with jurisdiction of a controversy between American citizens arising in the United States if they happened to be residents of China.

Upon the merits we think the case equally clear.

It does not admit of doubt that a common carrier, with certain well-established exceptions, is under legal obligation to carry the goods of any member of the public who may tender them for carriage. That such a carrier subject to such legal obligation may show that it was prevented from performing it by act of God or a public enemy, or by some other cause over which it had no control, is readily conceded, but in all such cases the defense is an affirmative one, and the burden is upon the carrier to both plead and prove it. 1 Michie on Carriers, Sec. 381; Chicago, etc. R. R. Co. v. Wolcott, 39 N. E. Rep. 451.

At the time of the occurrences in question, England and Germany were at war, but the United States was not; on the contrary, this country was then observing strict neutrality between those belligerents. How, then, can it be properly held that the performance of the clear legal duty of an American carrier to receive and transport goods tendered for carriage, by an American citizen, is excused on the ground that the British Government had forbidden its citizens and corporations, one of which happened to be the agent of the American carrier, from receiving the tendered freight and providing for its transportation? Such is not the law as we understand it. See, Richards & Co., Inc. v. Wrechsner, 156 N. Y. Supp. 1054, and the numerous cases there cited.

It is contended on behalf of the carrier that there was no evidence to show that it knew that its agent at Shanghai was inhibited by the British Government from shipping the goods of the plaintiff in time to have employed an agent not under such disability. Whether or not the carrier knew of the inhibition at all, or was apprised of it in time to have employed another agent, the fact remains that the agent it did appoint, acting within the scope of his employment, deprived the plaintiff of his legal right. For that wrong we think the carrier was properly adjudged liable, even assuming that it was ignorant of its agent's disability. See Chesapeake & Ohio R. Co. v. Francisco, 149 Ky. 307.

The judgment is affirmed.

THE STIGSTAD

Judicial Committee of the Privy Council. (Lord Sumner, Lord Parmoor, Lord Wrenbury, Lord Sterndale, and Sir

Arthur Channell)

December 16, 1918

Appeal by neutrals from a judgment of the High Court of Admiralty (in prize) against their claim for damages for detention. of vessel.

Lord Sumner, in moving that the appeal be dismissed, said: The appellants in this case were claimants below. They are a Norwegian company which manages the steamship Stigstad for her owners, the Klaveness Dampskibsaktieselskab, a Norwegian corporation. While on a voyage, begun on April 10, 1915, from Kirkenes, Sydvaranger, in Norway, to Rotterdam, with iron-ore briquettes, the property of neutrals, she was stopped in lat. 56 deg. 9 min. N. and long. 6 deg. 6 min. E., about a day's sail from Rotterdam, by H.M.S. Inconstant, and was ordered to Leith and thence to Middlesborough to discharge. Their claim for "(1) freight, (2) detention, and (3) expenses consequent upon" this seizure and the discharge at Middlesborough afterward. The detention was measured by the number of days which elapsed between the expected date of completing discharge at Rotterdam and the actual date of completing discharge at Middlesborough, calculated at the chartered rate for detention, viz., £130 per day; and as to the expenses, while willing to treat port dues and expenses at Middlesborough as the equivalent of those which would have been incurred at Rotterdam, the owners claimed some port dues and expenses at Leith and a few guineas for special agency expenses at Middlesborough. Eventually the cargo was sold by consent, and a sum, the amount of which was agreed between the parties, was ordered to be paid out of the proceeds to the claimants for freight; but the late Sir Samuel Evans dismissed the claims for detention and for the special expenses. It is against his decree that the claimants have now appealed. They have admitted throughout that, in fact, the cargo of iron-ore briquettes was to be discharged into Rhine barges at Rotterdam in order to be conveyed into Germany.

The cargo was shipped by the Aktieselskab Sydvaranger, of

Kirkenes, and was to be delivered to V. V. W. Van Drich and Stoomboot en Transport on der Nemingen, both neutrals, but it is contended that Section 3 of the Order in Council, dated March 11, 1915, warranted interference with the ship and her cargo by his Majesty's Navy on the voyage to Rotterdam. The President's directions as to freight were that "the fair freight must be paid to them, having regard to the work which they did," the principle which he had laid down in the Juno (1 Trehern 151) being, in his opinion, applicable. The claim for detention is in truth a claim for damages for interfering with the completion of the chartered voyage, for it is admitted that delivery was taken at Middlesborough with reasonable dispatch. That part of the claim which relates to the ship's being ordered to call at Leith, and the claim for expenses incurred there, are claims for damages for putting in force the above-named Order in Council, for it is not suggested that the order to call at Leith and thence to proceed to Middlesborough was in itself an unreasonable way of exercising the powers given by the Order. The small claim for fees at Middlesborough seems to relate to an outlay incident to the earning of the freight which has been paid, and was covered by it, but, if it is anything else, it also is a claim for damages of the same kind. "Damages" is the word used by the President in his judgment, and, although it was avoided and deprecated in argument before their Lordships, there can be no doubt that it and no other word is the right word to describe the nature of the claims under appeal.

It is impossible to find in the express words of the Order any language which directs that such damages should be allowed, nor are the principles applicable which have been followed in the Anna Catharina (6 Ch. Rob. 10) and elsewhere as to allowance of freight and expenses to neutral ships, whatever be the exact scope and application of those cases. Again, with the fullest recognition of the rights of neutral ships, it is impossible to say that owners of such ships can claim damages from a belligerent for putting into force such an Order in Council as that of March 11, 1915, if the order be valid. The neutral exercising his trading rights on the high seas and the belligerent exercising on the high seas rights given him by Order in Council or equivalent procedure, are each in the enjoyment and exercise of equal rights, and, without an express provision in the order to that effect, the belligerent does not exercise his rights

subject to overriding right in the neutral. The claimant's real contention is, and is only, that the Order in Council is contrary to international law and is invalid.

Upon this subject two passages in the Zamora (1916 2 A. C., 77) are in point. The first is at page 95, and relates to Sir William Scott's decision in the Fox (Edw., 311):

The decision proceeded upon the principle that, where there is just cause for retaliation, neutrals may by the law of nations be required to submit to inconvenience from the act of a belligerent Power greater in degree than would be justified had no just cause for retaliation arisen, a principle which had already been laid down in the Lucy.

Further, at page 98, are the words:

An order authorizing reprisals will be conclusive as to the facts which are recited as showing that a case for reprisals exists, and will have due weight as showing what, in the opinion of his Majesty's advisers, are the best or only means of meeting the emergency; but this will not preclude the right of any party aggrieved to contend, or the right of the Court to hold that these means are unlawful as entailing on neutrals a degree of inconvenience unreasonable, considering all the circumstances of the case.

It is true that in the Zamora the validity of a retaliatory Order in Council was not directly in question, but those passages were carefully considered and advisedly introduced as cogent illustrations of the principle, which was the matter then in hand. Without ascribing to them the binding force of a prior decision on the same point, their Lordships must attach to them the greatest weight and, before thinking it right to depart from them, or even necessary to criticize them to any great length, they would at least expect it to be shown either that there are authoritative decisions to the contrary, or that they conflict with general principles of Prize Law or with the rules of common right in international affairs.

What is here in question is not the right of the belligerent to retaliate upon his enemy the same measure as has been meted out to him, or the propriety of justifying in one belligerent some departure from the regular rules of war on the ground of necessity arising from prior departures on the part of the other, but it is the claim of neutrals to be saved harmless under such circumstances from inconvenience or damage thereout arising. If the statement above quoted from the Zamora be correct, the recitals in the Order in