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and on such appeal the order for condemnation was discharged, not on the merits but, in the words of the Privy Council Journals, on the ground that: “The High Court of Admiralty in England, the court appealed from, had not a jurisdiction over the goods seized and proceeded against in this cause."
The records of the Privy Council do not contain any note of the reasons which led to this decision. It would appear, however, from the case of The Two Friends (1 C. Rob., 271), that Lord Stowell had before him some note of these reasons, for he represents Lord Thurlow as saying that: "Those goods had never been taken on the high seas, they had only passed in the way of civil bailment, on delivery into civil hands; and were afterwards arrested on shore as prize."
If this be correct it may mean that in the opinion of the Lords Commissioners it is the local situation of the goods seized as prize, and not the seizure as prize which determines the jurisdiction of the prize court, a decision diametrically opposed to the judgment of Lord Mansfield in Lindo v. Rodney (supra), which had been pronounced only three years previously. On the other hand, it may mean that the goods were not liable to seizure as prize because they were not on the high seas but on land, in which case Lord Thurlow was deciding the very point which he held the Court of Admiralty had no jurisdiction to decide, and he ought to have ordered the restitution of the goods to the master instead of leaving that somewhat hardly-used individual to his remedies at common law, in the assertion of which he would have in some way or other to get over Lord Mansfield's judgment to the effect that the question of prize or no prize could only be determined in a prize court.
Moreover, it is almost impossible to suppose, in the then state of the authorities, that Lord Thurlow thought that to constitute lawful prize the seizure must have been on the high seas. It was already well settled that enemy ships and goods in the ports or harbors of the realm were the subject of maritime prize. It was equally well settled that enemy goods on enemy territory seized by the maritime forces of the Crown, or persons having letters of marque, could properly be condemned as prize. If, therefore, he used the expressions attributed to him by Lord Stowell some other explanation must be found.
In their Lordships' opinion a reasonable explanation of the case and of Lord Thurlow's words may be found in the following consideration. It appears that the Court of the Cinque Ports in its capacity as an admiralty court had taken possession of the goods at the instance of the
Lord Warden. There was, therefore, a matter pending in the Cinque Ports which, so far as their Lordships can discover, was not a court of prize. The effect of the monition was to remove this matter to the High Court of Admiralty for trial there. In so trying it the High Court would be exercising an admiralty and not a prize jurisdiction. As appears by Lord Mansfield's judgment in Lindo v. Rodney (supra), in order to found an admiralty jurisdiction the complaint must be made of something done on the high seas. This explanation would fully account for the words used by Lord Thurlow, though it must be admitted that Lord Stowell took a different view as to what he meant.
In any event their Lordships do not consider that The Ooster Eems (supra) has any value as an authority. It has never been followed,
. • and, apparently, has been cited twice only, and in each case distin
guished. It is so cited and distinguished in The Two Friends (supra) and also in The Progress (Edwards's Admiralty Reports, 210).
In the last mentioned case certain British ships with their cargoes had been captured by the French. It is not clear whether they were captured at sea and taken into Oporto after the French occupation, or whether the French found them in the harbor of Oporto when they took possession of it. The French appear to have landed part of the cargoes which was warehoused on shore at the time when the military forces of the Crown took Oporto. It was, however, held upon the facts that there had been a capture by the French and a recapture by the military forces of the Crown of both ships and cargoes.
Lord Stowell allowed a claim for salvage on the part of the military authorities in respect of that portion of the cargoes which had been landed as well as of the ships and that portion of the cargoes remaining on board. He distinguished The Ooster Eems (supra) on the ground, as their Lordships understand the decision, that the master of The Ooster Eems, in landing the goods, was acting within his authority derived from the owners of the goods, whereas the landing in the case he was considering had been effected by persons acting without authority from and contrary to the interests of the owners. The same ground of distinction would appear to be applicable to the case their Lordships are considering. The petroleum was not warehoused pursuant to any authority given by the owners, but in breach of the contract for its carriage to Hamburg, and so far as the owners were concerned this was as much a hostile act as the landing of the goods by the enemy captors in the case of The Progress (supra). In neither case, to use Lord Stowell's expression, was the continuity of the character of the goods landed as cargo in any way interrupted.
There are only two other cases which need to be referred to in this connection. The first is that of The Marie Anne, cited in Rotherby's Prize Droits at p. 126.
In this case, at the outbreak of the war with France on May 16, 1803, The Marie Anne, a French ship, was under repair at Ramsgate, and certain parts of her cargo had been landed and were warehoused. Both the ship and the goods so landed were seized as prize, and in due course condemned as such. There is no record of the reasons which influenced the court. It may be that the warehouses in which the goods were deposited were considered as part of a harbor or port of the realm, so as to bring the case within the ordinary definition of goods liable to seizure as prize. It may be that the goods, having been temporarily landed while the vessel was repaired, were still considered as part of the cargo though not actually on board. The case, however, is clearly inconsistent with the proposition that goods seized on land cannot be lawful prize. The same may be said of the case of The Berlin Johannes (Rothery, p. 125), if, as would appear to be the case, the goods already landed were seized and condemned as prize.
If these decisions turned on the question whether the goods though landed were still in port they are authorities against the appellants, for no valid distinction can be suggested between a warehouse for the receipt of goods brought into harbor by sea and the tanks in which, in the present case, the petroleum was stored.
Their Lordships, therefore, have come to the conclusion that the petroleum on board the Roumanian, having from the time of the declaration of the war onwards been liable to seizure as prize, did not cease to be so liable merely because the owners of the vessel, not being able to fulfil their contract for delivery at Hamburg, pumped it into the tanks of the British Petroleum Company for safe custody, and that therefore its seizure as prize was lawful. They see no reason to dissent from the judgment of the president to the effect that these tanks constituted part of the Port of London for the purpose of applying the rule relating to the liability to seizure of enemy's goods in the ports and harbors of the realm, but it is unnecessary to decide this point.
For the reasons hereinbefore appearing their Lordships are of opinion that the appeal should be dismissed, and they will humbly advise his Majesty accordingly.
THE ODESSA (CARGO EX). THE WOOLSTON (CARGO EX)
Judicial Committee of the Privy Council. (Lord Mersey, Lord Parker of
Waddington, Lord Sumner, Lord Parmoor, and Sir Edmund Barton)
These were appeals from decrees of the President of the Admiralty Division of the High Court in Prize delivered on December 21, 1914, and March 16, 1915. The President's decision in The Odessa (Cargo Ex) is reported in 31 The Times L. R. 148; (1915) p. 52.1
Sir Robert Finlay, K. C., Mr. F. D. MacKinnon, K. C., and Mr. C.R. Dunlop appeared for the appellants; Sir Edward Carson, K. C., Mr. Maurice Hill, K. C., Mr. Theobald Mathew, and Mr. T. H. T. Case for the Crown.
LORD MERSEY in delivering judgment said: There is very much in common in the points arising in both cases, but as the facts and arguments are not identical it is desirable to consider each case separately.
THE CARGO EX ODESSA The facts in this case are: The appellants, Messrs. J. H. Schröder and Co., are bankers carrying on business in London. The partners are Baron Bruno von Schröder, a naturalized British subject, and Frank Tiarks, a natural born British subject. In the ordinary course of their business the appellants had in March, 1914, agreed with a German company in Hamburg called the Rhederei Actien Gesellschaft von 1896 to accept the drafts of Weber and Co., a firm in Chile, for the price of a quantity of nitrate of soda to be sold and shipped by Weber and Co. to the German company. The drafts were to be drawn at 90 days' sight, and the appellants, upon acceptance of them, were to receive by way of security the bill of lading for the cargo, together with a policy of marine insurance. The consideration for this accommodation was to be a commission of one-quarter per cent. payable by the German company to the appellants. In due course Weber and Co. shipped a cargo of nitrate on board a sailing ship called the Odessa, belonging to
1 Printed in this JOURNAL for July, 1915, p. 754.
the German company, and took from the captain a bill of lading dated May 8, 1914, in which the voyage was described as from Mejillones (the port of shipment in Chile) to the “Channel for orders,” and by which the cargo was made deliverable to the appellants or their assigns. This bill of lading incorporated the terms of a charter-party (of which there is no copy), and made the chartered freight payable by the consignees upon delivery of the cargo.
Drafts for a total amount of £41,153 ls. 5d. (said to be the full price of the cargo) were drawn by Weber and Co. upon the appellants, and accepted by them on June 9, 1914, in exchange for the bill of lading. War broke out between Great Britain and Germany on August 4, 1914, the Odessa being then on her voyage to the Channel. On the 19th the ship was captured on the high seas by H. M. S. Caronia and brought into Bantry Bay, and on the 31st a writ was issued against ship and cargo at the suit of the Procurator-General claiming condemnation of both as lawful prize.
On September 10 the drafts of Weber and Co. fell due, and were paid by the appellants. The ship was duly condemned, and no question arises with reference to her condemnation, but in respect of the cargo the appellants intervened, and by their claim alleged it to be their property as holders for full value of the bill of lading therefor and as British property not liable to condemnation. The learned president condemned the cargo on the ground that the general property was in the German company at the date of the seizure, and that the appellants were merely pledgees, and as such not entitled to any precedence over the Crown.
Their Lordships are of opinion that the learned president was right in the inferences which he drew from the facts—namely, that the general property in the cargo was in the German company, and that the appellants were merely pledgees of it at the date of the seizure. This indeed is hardly disputable, having regard to the case of Sewell v. Burdick (1 The Times L. R. 128; 10 App. Cas. 74). The property vested in the company upon the ascertainment of the goods at Mejillones, and the pledge was perfected when the appellants accepted the drafts and received the bill of lading. The appellants indeed did not dispute the correctness of these inferences, but what they say is that, though correct, they do not justify a decree which has the effect of forfeiting their rights as pledgees. Thus the question in the appeal is whether in case of a pledge such as existed here a court of prize ought to condemn the