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Shütze's order or assigns, and were indorsed generally by Shütze. They were received in due course by the claimants as security against their acceptances. The claimants then forwarded them to their agent at Hamburg to deliver up to Küpper against payment, and some of them were presented before the war. Certain collateral securities were given to the claimants by Küpper, in part by a guarantee of the Rheinische Creditbank Filiale, Karlsruhe, and in part by a deposit with the claimants. The balance of account stated by the claimants to remain due from Küpper is £6,104. The claim was formulated by the claimants as follows:
(a) (1) A declaration that the goods are their property.
(2) Release to them of the said goods.
(b) (1) A declaration that they are entitled to possession of the goods. (2) Release of the goods to the claimants for sale and retention by them out of the proceeds of sale of the amount paid by them for the bills of lading and of the amount of costs, losses and expenses (if any).
(3) Alternatively payment to them out of the proceeds of sale of the goods of the amounts referred to in (2).
It was admitted for the claimants in each case (1) that in law the property in the cargoes had been transferred to and become vested in the German purchasers and that the latter were at all material times the legal "owners" of the cargoes; and (2) that the claimants were merely pledgees of the bills of lading representing the cargoes as security for moneys advanced, or agreed to be advanced.
The questions of law now raised are whether the prize court should, nevertheless, regard the claimants as the real owners of the goods, and should therefore release the goods captured on the ground that they were not "enemy property"; or whether the court should in some way take cognizance of their claims, and direct the captors or the marshal to pay them out of the proceeds. At the outset two things must be remembered; first, that this is a court of law; and, secondly, that the law to be administered here is the law of nations, i. e., the law which is generally acknowledged to be the existing law applicable between nations by the general body of enlightened international legal opinion. The decisions of a court of law should proceed upon defined principles. Those principles have to be applied to ever varying sets of facts. In the domain of international law in particular there is room for the extension of old doctrines or the development of new principles, where there is, or is
likely to be, a general acceptance of such by civilized nations. Precedents handed down from earlier days should be treated as guides to lead and not as shackles to bind. But the guides must not be lightly deserted or cast aside. Already, in the course of the present war, I have had to deal with questions not remote from those raised in these proceedings. In the Marie Glaeser (31 The Times L. R., 8;  P. 218) the positions of owners of enemy vessels and of other persons, neutral and British subjects, claiming liens or charges upon the vessels, fell to be decided. In the Miramichi (31 The Times L. R., 72) rules for determining the "ownership" of cargoes laden in an innocent ship had to be laid down.
In the Marie Glaeser the decision was that in cases of capture no mortgages, liens, or charges on an enemy ship could be set up in this court against the captors. In the Miramichi it was held that in cases of seizure the "ownership" of or "property" in a cargo shipped during peace depends upon the municipal law governing contracts for the sale and purchase of goods. I must adhere to those decisions, unless and until they are corrected by a higher tribunal. As to charges or liens no doubt a distinct line could be drawn between ships and cargoes laden in them, if it were deemed right to make such a distinction. But it has never yet been made, I think, in any authority of the prize court of any nation. The reasons for not allowing any charges or liens against ships are set out in the Marie Glaeser and the many authorities therein cited. I will just refer to three instances-the Marianna (6 C. Rob., 24; 1 E. P. C., 518), the Ida (Spinks, 26; 2 E. P. C., 268), and the Carlos F. Roses (177 U. S. Reports, 655). It is impossible to distinguish the two last named cases from those with which I am now dealing.
In the first case now before the court (the Odessa) the vessel and the cargo are both "properties" belonging to enemy subjects. What reason of any validity, or even plausibility, can there be for barring the claims. of British or neutral subjects having liens or charges upon the vessel and at the same time allowing similar claims against the cargoes? I can see none. Accordingly, upon authority and principle, inasmuch as the claims of Schröder and Co. and Brandts and Co. are founded upon their positions as pledgees, and not legal owners, they cannot, in my judgment, be allowed.
But it is argued that, although the claimants were not the legal owners of the cargoes, they had such a beneficial interest therein that their claims should be allowed. To accede to this proposition would be to open a door for all sorts of inquiries and calculations which has been
consistently and firmly closed by my predecessors and by courts of prize. In the initial stage how would a captor, who may have had good reason to believe that the cargo seized was enemy property, know how to act if he had to consider before seizure, or knew that he might be confronted after seizure with, claims from pledgees, as moneylenders in various parts of the world, whose advances might be either 5 per cent. or 95 per cent. or any other proportion of the value of the goods, or if he might be subject to the taking of a general account as between banker, or customer, or guarantor of customer, in order to ascertain the extent of the alleged charge or lien? The claimants have rights of action against their customers for their full claims, which they can set in motion either during the war or after it. How far they might be fruitful is no concern of this court.
The only safe guiding principle is to ascertain who are the legal owners of the cargoes, and if the goods are found to be the property in law of an enemy to condemn them, or if they are the property of neutrals or British subjects to release them, as was done in the Miramichi.
There is one other matter relating to the second case. Counsel for Brandts and Co. contended that in regard to part of the cargo claimed (2,834 logs) both Küpper and his guarantors, the Rheinische Credit bank Filiale, Karlsruhe, had before the outbreak of hostilities and capture refused to take up the bills of lading, and that thereupon the pledgees could have sold. Even if the fact of refusal were established, it is clear that until the pledgees did sell the general property in the goods remained in the owners, who had at any time the right to redeem. I may further note that the facts upon this head were precisely similar in the Carlos F. Roses (177 U. S., 655)-the statement of them is to be found at page 679 of the report.
My judgment, therefore, is that in none of the forms suggested can the claims in either case be allowed; and I must condemn the cargoes in both cases as lawful prize.
Decided January 25, 1915.
(The Times Law Reports, Vol. 31, p. 180.)
In a prize court rights of the captor take precedence over claims for necessaries, even where the claimants for necessaries have arrested the vessel before she was seized as prize.
This was an Austrian steamship which was arrested at Sunderland at
the suit of claimants for necessaries, and could not or was not allowed to leave England on the outbreak of war before the days of grace allowed under the Hague convention expired. Subsequently the Crown sought the detention of the vessel, but one of the claimants for necessaries interposed a motion for judgment and execution.
Held, that the captor's rights take precedence of other claims, even such as those of bottomry bond holders or mortgages, and a fortiori, therefore, of claims for necessaries. It was true that the necessaries claimants had arrested the vessel, but that only gave them security for such sums as they would be able to establish were due in their actions. It did not prevent the Crown from seizing the vessel. The vessel was ordered detained and all further proceedings in the necessaries actions stayed until further order.
Decided February 1, 1915.
(The Times Law Reports, Vol. 31, p. 198.)
In this case the Crown claimed the condemnation of a cargo of 30,000 bags of nitrate shipped on the British vessel Cumberland in Chile and consigned to Hamburg. The cargo was condemned, and the case stood over for further argument on a claim by the ship owners for compensation whilst the ship was being detained at Liverpool. It appeared that the Cumberland put into Falmouth on November 27th when the cargo was seized as prize, but as there was no market for the nitrate, and no facilities for discharging it in Falmouth, the Admiralty marshal advised that the vessel should go on to Leith, Liverpool, or Glasgow, and the owners accordingly sent her on to Liverpool, where she arrived on December 13th. Owing to the congestion in the port of Liverpool it was found impossible to find a discharging berth, and although the cargo was sold on January 20th, it having been condemned by the prize court on the 18th, it still remained "warehoused" in the vessel until January 30th, when she was ordered to Garston, where presumably the cargo would be discharged. The shipowners submitted that by reason of utilizing the vessel as a store ship until the cargo was sold heavy warehousing expenses were being saved, and that they should be paid £10 per diem plus all port charges during the period of detention.
Held, that the shipowners are not entitled in law to compensation for the detention of the ship, but the court may authorize the Admiralty marshal to give them a reasonable sum out of the proceeds of the cargo.
War Obviated by an International Police. A series of Essays, written in various countries. The Hague: Martinus Nijhoff. 1915. pp. iv, 223.
As the war drags on, two facts become clearer and clearer: first, that competition in armaments, and therefore periodic war, will go on, unless a firm league of nations competent to prevent war by force can be created when the war ends; and secondly, that this indispensable league need not contain any large number of nations, because a moderate enlargement of the nations now fighting under the title of the Entente Powers or Allies, as, for instance, by the addition of the United States and of a group of the Balkan States, or of Belgium, Holland, and Scandinavia, would possess force enough to deal with any single nation, or probable group of nations, which might attempt aggressive warfare.
The little book published by Nijhoff at The Hague, containing a series of essays and speeches written in Holland, Finland, the United States, Austria, France, Germany, and Great Britain brings out the principles which underlie the establishment of such an International League and the creation of an international police, and shows that these principles have been under consideration by statesmen, military authorities, and professors of law for several years past, and have been discussed in seven different countries, both before and since the outbreak of the present war. No one can read this small book without being convinced that no reduction of armaments is possible without the creation of an international force which will command the confidence of each and every nation-confidence that each single nation will be safe against military aggression, and in most cases much safer than it could make itself by any military system and armaments possible for that nation alone. Again, one will be convinced by the testimony given in this book that no permanent peace can come out of international law as it is, or as it can be developed, unless an effective sanction be provided for international law, like the sanction which all experience proves is indispensable for municipal law. As Bourgeois wrote in 1910, "The security of rights is the first thing that must be organized. * Those who wish for peace must create and guarantee law between nations as between individuals."