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legal quay, or sufferance wharf, either in the port at which the steamer had arrived or in some other safe port, and warehoused subject to shipowners' and other charges until sale or disposal could be arranged for. If sold, the proceeds should be held for subsequent distribution to those entitled to the cargo, subject to shipowners' and other charges which might at law have priority to the claims of the persons entitled to the cargo or its proceeds. Obviously, if the cargo were liable to seizure as prize, seizure followed by condemnation in the Prize Court would entitle the Crown either to the cargo itself or the proceeds thereof, subject to such shipowners' or other charges as might, by law, take precedence of the Crown's interest.
On August 20 the Roumanian proceeded to London, arriving at Purfleet at noon on August 21. Before her arrival arrangements had been made to warehouse the petroleum in the tanks of the British Petroleum Company (Limited), and permission had been obtained from the custom house authorities for its discharge into these tanks. When so discharged the petroleum would be in the custody of the custom house authorities in the sense that it could not be removed without their sanction. The work of discharge accordingly began at 12.15 p. m. on August 21, the petroleum being pumped into the tanks, which were situated some 100 to 150 yards from the wharf at which the vessel lay. Meanwhile the custom house authorities took samples in order to test the specific gravity of the oil and ascertain whether it was dutiable.
About 7 p. m. on August 22 a letter from the custom house at Gravesend was delivered on board the Roumanian, addressed to the master, stating that the cargo of petroleum was placed under detention. This letter was not received by the master till 11 p. m. Roughly speaking, about 1,140 tons of oil remained undischarged at 7 p. m. and 570 tons at 11 p. m. on August 22. Notwithstanding the letter the work of discharging the oil continued. It was completed long before the writ in these proceedings, which did not issue until September 19, and was served by affixing it to the tanks in which the petroleum was then warehoused.
It will be observed that the letter giving notice of the detention of the cargo did not refer to its detention as prize, and it was argued on behalf of the appellants that there was no effectual seizure as prize until the writ was affixed to the tanks. It is clear, however, that the custom house is the proper authority to seize or detain, with a view to its condemnation as prize, any enemy property found in a British port.
It is equally clear that the letter was intended to operate, and must have been understood by all concerned as intended to operate, as such a seizure. No other possible intention was suggested. In these circumstances their Lordships are of opinion that the cargo was effectually seized as prize upon the delivery of the letter. The point, however, is of little importance in the view which their Lordships take of the points of law, for if there was no seizure by delivery of the letter, there was admittedly a good seizure when the writ was served.
In these circumstances three points were raised by counsel for the appellants. They contended:
First, that so far as the petroleum was not afloat at the date of seizure, the Prize Court had no jurisdiction;
Secondly, that even if the Prize Court had jurisdiction, it ought not to have condemned the petroleum so far as at the date of seizure it was warehoused in the tanks of the British Petroleum Company, and no longer on board the Roumanian; and,
Thirdly, that enemy goods in British ships at the beginning of hostilities either never were or, at any rate, have long ceased to be liable to seizure at all. Obviously, if the last point is correct, it is unnecessary to decide the first two points. Their Lordships, therefore, think it desirable to deal with it at once.
The contention that enemy goods in British ships at the beginning of hostilities are not the subject of maritime prize was not argued before the president in the present case. It had already been decided by him in The Miramichi (31 The Times L. R., 72;  P., 71). Their Lordships have carefully considered the judgment of the president in that case and they entirely agree with it. The appellants' counsel based their contention on three arguments. First, they relied on the dearth of reported cases in which enemy goods in British ships at the beginning of hostilities have been condemned as prize, emphasizing the fact that in the case of The Juno (31 The Times L. R., 131) 3 no authority could be found for the right of the master of a British ship in which enemy goods were seized as prize to compensation in lieu of freight, though if such goods were properly the subject of prize, the question must constantly have arisen. Secondly, they laid stress on certain general statements contained in text-books on international law as to what enemy goods can now be seized as prize. Thirdly, they called 2 Printed in this JOURNAL for July, 1915, p. 739.
3 Ibid., p. 754.
in aid that part of the Declaration of Paris which affords protection to enemy goods other than contraband in neutral ships and the principle underlying or supposed to underlie such Declaration.
With regard to the dearth of reported decisions, it is to be observed that the plainer a proposition of law, the more difficult it sometimes is to find a decision actually in point. Counsel are not in the habit of advancing arguments which they think untenable nor as a general rule do cases in which no point of law is raised and decided find their way into law reports. If, on the one hand, it be difficult to find a case in which enemy goods in British ships at the beginning of hostilities have been condemned as prize, it is, on the other hand, quite certain that no case can be found in which such goods have been held immune from seizure. Further, inasmuch as by international comity British prize courts have in general extended to neutrals the privileges enjoyed by British subjects, we should, if this contention be correct, expect to find that enemy goods in neutral ships at the beginning of hostilities were alike immune from seizure. Their Lordships have been unable to find any authority which gives color to this suggestion. There appears, indeed, to be no case in which for this purpose any distinction has been drawn between goods on board a neutral vessel at the outbreak of hostilities and goods embarked in a neutral vessel during the course of a
Their Lordships, therefore, are not impressed by the argument based on the dearth of actual decisions on the point. Moreover, the decisions, such as they are, certainly do not support but, indeed, contradict the appellants' contention. It is clear from the cases cited in The Miramichi (supra), that enemy goods embarked in British ships during the hostilities are the subject of prize. See, in particular, The Conqueror (2 C. Rob., 303). In these cases the sole question decided has been the enemy character of the goods, and no stress has been laid on the time at which they were embarked, or on whether any person concerned had or had not been guilty of the common law offence of trading with the enemy. Further, there is the case of The Venus, referred to in Rothery's Prize Droits at p. 129.
Their Lordships have examined the papers preserved in the Record Office in connection with this case: The Venus was a British ship which at the outbreak of hostilities was on a voyage to Hamburg. Its cargo had been shipped at Genoa, Ancona, and Mentone. The master, hearing of the outbreak of war and desiring to avoid the risk of capture of
his ship by the enemy, put into Plymouth. The receiver of admiralty droits at Plymouth, suspecting on information given by the master that part of the cargo belonged to enemy subjects, seized both ship and cargo. The shipowners put in a claim for the release of the ship on the ground that it was British and also for freight expenses and demurrage. The ship was ordered to be released. The claim for freight and expenses was allowed, there being a reference to the proctor to ascertain the proper amount, which was declared a charge on the cargo. The claim for demurrage was disallowed. The amount to be allowed for freight and expenses was in due course certified by the proctor, and apparently paid out of the proceeds of the cargo which had been appraised and sold under the direction of the court. Parts of the cargo or its proceeds were subsequently claimed by and released in favor of neutrals. The residue of the cargo was condemned as the property of enemy subjects.
The case of The Venus (supra) appears therefore to be an authority against the appellants' contention. They say, truly, that the point does not seem to have been raised, but it is far more likely that the point was not raised because it was thought to be untenable than that the court overlooked what, according to the appellants' contention, must have been a well-known principle of prize law. Further, The Venus (supra) is certainly an authority in support of the president's decision in The Juno (supra). Curiously enough, the master of the Venus, though a British subject, is in the proctor's report in the last-mentioned case referred to as the "neutral master," a fact which is only consistent with the practice of the court in allowing freight being the same whether the enemy goods were seized in neutral or in British ships.
With regard to the general statements contained in text-books on international law, none of those cited in support of the appellants' contention appears to have been based on any discussion of the point in issue. They are for the most part based on a discussion of the effect of the Declaration of Paris. Their Lordships do not think that any useful purpose would be served by examining these statements in detail. They will take one example only, that cited from Westlake's International Law, Part II, p. 145. The author has been discussing the effect of the Declaration of Paris, and sums up as follows:
We may therefore conclude that enemy ships and enemy goods on board them are now by international law the only enemy property which as such is capturable at sea.
In their Lordships' opinion the meaning of such statements must be judged by the context. They cannot be taken apart from the context as intended to be an exhaustive definition of what is or is not now the subject of maritime prize. It might just as well be argued that because the writer in the present case uses the expression "capturable at sea," he must have thought that enemy goods in neutral ships lying in British ports or harbors were, notwithstanding the Declaration of Paris, still subject to capture.
Such statements are in any case more than counterbalanced by statements contained in other well-recognized authorities. Thus, in addition to the passages quoted in The Miramichi (supra), from Dana's edition of Wheaton's International Law, it will be found that Halleck (International Law, Vol. III, p. 126) states that whatever bears the character of enemy property (with a few exceptions not material for the purpose of this case), if found upon the ocean or afloat in port, is liable to capture as a lawful prize by the opposite belligerent. It is the enemy character of the goods and not the nationality of the ship in which they are embarked or the date of embarkation which is the criterion of lawful prize. This is in full accordance with Lord Stowell's statement in The Rebeckah (1 C. Rob., 227), of the manner in which the order of 1665 defining admiralty droits has been construed by usage.
Passing to the appellants' third argument, that based on the Declaration of Paris or the principle supposed to underlie such Declaration, it may be stated more fully as follows: Enemy goods on neutral territory were never the legitimate subject of maritime prize. Such goods could not be seized without an infringement of the rights of neutrals. The rights of neutrals are similarly infringed if enemy goods be seized in neutral ships, but the law of prize having for the most part been formulated and laid down by nations capable of exercising and able to exercise the pressure of sea power, the rights of neutrals have been ignored to this extent, that the capture of enemy goods in neutral vessels on the high seas or in ports or harbors of the realm has been deemed lawful capture.
The Declaration of Paris is in fuller accordance with principle; it recognizes that no distinction can be drawn between neutral territory and neutral ships. To use Westlake's expression (p. 145, Int. Law, Part II), it assimilates neutral ships to neutral territory, recognizing that in both the authority of the neutral state ought (except possibly in the case of contraband) to be exclusive. So far, the argument pro