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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 ship 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 documents issue. But goods which have no such dependence upon the authority of the state may be differently consid- . ered."
The doctrine, that a ship sailing under the flag and documentary protection of the enemy, clothes her with a hostile character, has been recognized and applied with exceeding strictness by the fed. eral courts of the United States. Indeed the principle, as established by these decisions goes to the extent of declaring, that sailing under the license and protection of the enemy, in furtherance of his views and interests, is, without reference to the purpose of the voyage or its destination, such an illegality as subjected both ship and cargo to seizure and condemnation as lawful prize of war.
The basis of these decisions is, that the license Reason of the granted by the enemy is equivalent to a contract by the licensee, to withdraw himself entirely from the war and enjoy the repose and blessings of peace.
The illegality of such an intercourse for such a purpose is strongly condemned, and it was held, that the moment a vessel sailed on her voyage with an enemy's license on board, the offence was irrevocably committed and consummated, and that the delictum was not done away, even by the termina
tion of the voyage, but that the vessel and cargo might be seized after arrival in a port of the United States, and condemned as lawful prize.
A:tempts to evade the
persons or property.
Transfer in transitu.
Attempts have been made from time to time, ruies which and the ingenuity of merchants has been exercised impress hostility of char. to elude the application of the principle which im
presses property, whether vessel or cargo, with a hostile character, making it subject to confiscation -by reason of the actual or constructive residence of the owner, or of the peculiar character or mode or manner of its employment.
The transfer of the property while in transit has been frequently resorted to, in the hope of accom• plishing the purpose; but the rule has become set- . tled by numerous decisions, that property stamped with a hostile character at the commencement of the voyage, cannot change its character by a mere change of ownership while in transitu.
The remarks of Lord Stowell, in a case in which the transfer was held to be valid, because actually made by delivery of bill of sale, though not of the property itself, prior to the commencement of hostilities, contain a lucid statement of the rule: “The first objection that has been taken is, that the transfer is invalid, and cannot be set up in a prize court, where the property is always considered to remain in the same character in which it was shipped till the delivery. If that could be maintained, there would be an end to the question; because it has been admitted that these wines were shipped as
1 The Julia, 1 Gall., 605; 8 Cranch, 181; The Aurora, ib., 203; The Hiram, ib., 444; The Ariadne, 2 Wheat., 100.
Spanish property, and that Spanish property has now become liable to condemnation. But I
apprehend it is a position that cannot be maintained in that extent. In the ordinary course of things, in time of peace—for it is not denied that such a contract may be made and effectually made according to the usage of merchants in time of war—such a transfer in transitu might certainly be made. It has even been contended that a delivery of the bill of lading is a transfer of the property. But it might be more correctly expressed, perhaps, if said that it transfers only the right of delivery—but that a transfer of the bill of lading, with a contract of sale accompanying it, may transfer the property in the ordinary course of things, so as effectually to bind the parties and all others, cannot be doubted. When war intervenes, another rule is set up in admiralty which interferes with the ordinary practice.
“In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment till the actual delivery. This arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in the enemy's country would be protected by transfers which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property cannot be converted in transitu, and in that sense I recognize it as a rule of this court.
I But this, as I have said, arises out of a state of war,
, which creates new rights in other parties, and cannot be applied to transactions originating, like this, in a time of peace. The transfer must therefore be considered as not invulid, in point of law, at the
time of the contract—and being made before the war, it must be judged according to the ordinary rules of commerce."1
A ship sailed from Demerara for Middleburgh, in Holland, on the 30th of January, 1781, about six weeks after the commencement of hostilities between Great Britain and Holland. On the 14th of March following, Demerara surrendered to the British forces. The ship was captured at sea on the 25th of March.
In pronouncing the judgment of the court in this case, Lord Stowell says: “ 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, 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 ordered it restored ; and it was not his opinion alone. On appeal, however, the Lords were of opinion that property sailing after declaration of hostilities, and 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 Demerara had again become a Dutch colony at the time of adjudication. It was declared to be adjudged upon the same principles as if the cause had come on at the time of the capture. It was not on any of these grounds, but simply on the ground of Dutch property, that condemnation was passed. The ship sailed'as a Dutch ship,and could not change her character in transitu. This was the dictum of a great law lord then present—Lord Camden.
Many cases have arisen of colorable transfers, made under a great variety of circumstances, such as might well be expected from human ingenuity exercised for the protection of vast interests. They are interesting only as expositions of the acuteness of captors in tracking and developing the deceitful and fraudulent character of the transfer, and the ingenuity and skill of claimants in eluding investigation.
A transfer made by an enemy to a neutral during Transfers in or in contemplation of war, is illegal, because in fraud of a vested belligerent right.
Any reservation of interest in the transfer, any thing short of an absolute and unconditional sale, is held to pass no title whatever to the property, but that it remains in the enemy, subject to capture."
So, too, a reservation of risk to neutral consignors, Reservations in order to protect belligerent consignees, are uni.
· The Negotie en Zeevart, 1 Rob., 111; The Dankebaar Affrican, 1 Rob., 107; The Jan Frederick, 5 Rob., 128.
· The Anoydt Gedacht, 2 Rob., 137; The Sechs Geschwistern, 4 Rob., 100.