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formly regarded by courts of admiralty as fraudulent and invalid.
In the last war between Great Britain and France, a cargo was shipped on board the ship Sally Griffiths, ostensibly on account of American merchants. Upon the examination on the capture, the master testified to his belief that the cargo, upon being unladen, would have become the property of the French government. It was obvious, therefore, that a sale had been legally completed; and the use of American names as consignees, on whose risk and account the shipment was pretended to be made, was solely to evade the result of a capture, if the cargo had been shipped avowedly as French property.
“ It has always been the rule of the prize court," says Sir P. Arden, in this case, “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 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 rule which unavoidably must take place. The bill of lading expresses for the account and risk of American merchants; but papers
alone make no proof, unless supported by the deposition 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
peace, or without
support him in this testimony. The evidentia rei is too strong to admit of further proof. Supposing it to have become the property of the enemy on delivery, capture is considered as delivery; the captors, by the right 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."
In the leading case of the packet De Bilboa, which was that of a shipment at the risk of the consignor until delivery, as having been made before the war, Lord Stowell considers the subject with his usual learning and ability. He says: “The statement of the claim sets forth that these goods have not been paid for by the Spaniard. That would go but little way; that alone would not do. There must be many cases in which British merchants suffer from capture by our own cruizers, of goods shipped for foreign account before the breaking out of hostilities. The claim goes on to state, 'that according to the custom of the trade, a credit of six, nine, or twelve months is usually given, and that it is not the custom to draw on the consignees till the arrival of the goods—that the sea risk, in peace as well as war, is on the consignor, that he insures, and has no remedy against the consignee for any accident that may happen during the voyage. Under these circumstances in whom
does the property reside? The ordinary state of commerce is, that goods ordered and delivered to the master, are considered as delivered to the consignee, whose agent the master is in this respect—but that general contract of the law may be varied by spe
The Sally Griffiths, 3 Rob., 133.
? De Bilboa, 2 Rob. 133.
cial agreement, or by a particular prevailing practice that presupposes an agreement among such a description of merchants, In time of profound peace, when there is no prospect of approaching war, there would be unquestionably nothing illegal in contracting that the whole risk should fall on the consignor till the goods came into possession of the consignee. In time of peace they may divide their risk as they please, and nobody has a right to say they shall not; it would not be at all illegal that goods not shipped in time of war, or in contemplation of war, should be at the risk of the shipper. In time of war, this cannot be permitted, for it would at once put an end to all captures at sea—the risk would, in all cases, be laid on the consignor, where it suited the purpose of protection. On every contemplation of war, this contrivance would be practised in all consignments from neutral ports to the enemy's country, to the manifest defrauding of all rights of capture. It is therefore considered to be an invalid contract in time of war, or, to express it more accurately, it is a contract which, if made in war, has this effect, that the captor has a right to seize it and convert the property to his own use; for he, having all the rights which belong to his enemy, is authorized to have his taking possession considered as equivalent to an actual delivery to his enemy, and the shipper, who put it on board during a time of war, must be pre. sumed to know the rule, and to secure himself in his agreement with the consignee against the contingency of any loss to himself that can arise from capture. In other words, he is a mere insurer against sea-risk, and he has nothing to do with the case of capture, the loss of which falls entirely on the consignee. If the consignee refuses payment and throws it upon the shipper, the shipper must be supposed to have guarded his own interest against that hazard, or he has acted improvidently and without caution. The present contract, however, is not of this sort. It stands as a lawful agreement being made whilst there was neither war nor prospect of war. The goods are sent at the risk of the shipper. If they had been lost, on whom would the loss have fallen but upon him? What surer test of property can there be than this? It is the true criterion of property, that if you are the person on whom the loss will fall, you are to be considered as the proprietor. To make the loss fall upon the shipper in such cases, would be harsh in the extreme. He ships his goods in the ordinary course of traffic by an agreement mutually understood between the parties, and in nowise injurious to the rights of any third party. An event subsequently happens which he could in no degree provide against. If he is to be the sufferer, he is a sufferer without notice, and without the means of securing himself. He was not called upon to know that the injustice of the other party would produce a war before the delivery of his goods.”
Upon the general rule of the invalidity of transfers from belligerents to neutrals made during or in contemplation of war, as affording exemption from liability to confiscation on capture, Chancellor Kent observes:
“Such agreements, if they could operate, would go to cover all belligerent property, while passing between a belligerent and neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of these relations."
And again the learned chancellor says, referring to the same subject: “These principles of the Eng. lish admiralty have been explicitly recognized and acted upon by the prize courts of the United States. The great principles of national law were held to require, that in war, enemy's property should not change its hostile character in transitu, and that no secret liens, no future election, no private contracts looking to future events, should be able to cover private property while sailing on the ocean. Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be
Kent's Com. I., 94 ; The Josephine, 4 Rob., 25; The Tobago, 5 Rob., 218; The Mariana, 6 Rob., 24; The Francis, 1 Gall., 445; 8 Cranch, 335; The Sisters, 5 Rob. 155; Vrow Catherina, 5 Rob., 161; 1 Duer on Insurance, 478.
[During the existing civil war in the United States, there seems to have prevailed among the British merchants there resident, the like misapprehension in relation to their rights, which so fatally misled American citizens resident abroad during the last war between Great Britain and Holland. They appear to have supposed themselves entitled to retain all the privileges of British subjects, with