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certain papers relating to a former shipment, written in sympathetic ink, were found concealed in a cask on board, a mystery being in consequence thrown over the shipment, the underwriters were discharged (d). Concealment of papers, as justifying carrying into port for adjudication, has also been held by the United States Courts to amount to a breach of neutral warranty (e).

In the same country it has been held that the mixing of belligerent with neutral goods and carrying them, so disguised, as neutral, is a breach of neutral warranty, and will void the policy as to the whole of the neutral cargo (ƒ).

We will now pass on to the consideration of the consequences to neutrals of engaging in the privileged trade of the enemy.

(d) Carrere v. Union Insee. Co., 3 Har. & John. 324; 1 Phillips' Insce., No. 809.

(e) Livingston v. Maryland Insce. Co., Cranch, 536; 1 Phillips' Insce., No. 809.

(f) Phoenix Insce. Co. v. Pratt, 2 Binn. 308; Schultz v. Insce. Co. of N. Am., 3 Wash. C. C. R. 117.

CAPTURE AND CONFISCATION OF PROPERTY ENGAGED

IN THE

PRIVILEGED TRADE OF THE ENEMY; SAILING UNDER FLAG AND PASS OF THE ENEMY (9); ENGAGING IN ILLICIT TRADE.

(The "Continuous Voyage" Question.)

It was in former times common for a State to restrict to the vessels of its own subjects all carrying-trade between the mother country and its colonies, and a similar limitation was enforced as regards the national coasting trade. Thus, the coasting trade of the British Isles and possessions was, at one time, limited to British vessels, and this restriction has not been a great while abolished. (Vide 17 & 18 Vict. c. 5.) But the ancient barriers against a free carrying-trade have now been generally, if not entirely, removed in the case of over-seas trade, and probably in most cases of coasting traffic. But so long as such barriers existed, it was by the common law of nations deemed unlawful for neutrals on the outbreak of hostilities to engage in a trade closed to them in times of peace. If they did this, their property so employed was liable to seizure, as being devoted to service of the enemy. This principle is embodied in what is commonly known as the "Rule of the War of 1756." During that war the French, finding their colonial trade, owing to the British

(g) Pp. 20 et seq., supra, may be referred to for instances of fictitious transfer from hostile ownership.

maritime supremacy, entirely destroyed, removed the existing restrictions and threw the trade open to the Dutch, who were neutrals. They issued, in fact, to Dutch vessels, special licences or passes expressly authorizing them to trade between France and her colonies, while they at the same time continued the prohibition as regards all other neutrals. The British Government in consequence issued instructions ordering the seizure and condemnation of any Dutch vessels availing themselves of this privilege; the cargoes to be condemned with the ships. "It is a sound principle of the law of nations," said Sir W. Scott, in The Rendsborg (h), "that you are not to relieve the distresses of one belligerent to the prejudice of another; any advantage that you may obtain from such an act will not make it lawful. . . . . You are not, from a prospect of advantage to yourself, or from any other motive, to step in, on every outcry for help, and rescue the belligerent from the gripe of his adversary." The same principle was laid down in terms of equal clearness and force in various other cases, notably in The Immanuel (i), Wilhelmina (j), Providentia (k), Anna Catharina (1), and The Vrow Anna Catharina (m). "Vessels so engaged,” observes Wheaton, "were, in the judgments of the Courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or despatches" (n). In the British Courts this principle has been held to apply not merely in circumstances such as those giving rise to the Rule of 1756, but to all cases in which

(h) 4 Rob. 121. (i) 2 Rob. 197.

(7) 4 Rob. 107.

(j) 4 Rob. App. A. (k) 2 Rob. 150.

(m) 5 Rob. 161. Vide also The Vigilantia, 1 Rob. 1; The Alliance, Blatch. Pr. Ca. 262; The Julia, 1 Gall. 605; 8 Cranch, 181; The Aurora, ibid. 203; The Hiram, ibid. 444; The Ariadne, 2 Wheat. 100.

(n) Int. Law, 2 Eng. ed. p. 588.

neutrals engage during war in a trade not open to them in times of peace. This general application, however, has been controverted by American statesmen, and was at one time a fruitful source of contention between that country and Great Britain. As a concession to representations in this respect, indeed, modified instructions were issued by the British Government in January, 1798, in virtue of which neutral vessels were allowed to carry on a direct commerce between the colony of the enemy and their own country (0). But owing to the altered conditions now, as already mentioned, prevailing, this difference of opinion is hardly likely to be a source of difficulty in the future. The Rule was, indeed, apparently entirely over-ridden in the war of 1854 by a British Order in Council, declaring that "the subjects or citizens of any neutral or friendly state shall and may, during the present hostilities with Russia, freely trade with all ports and places wheresoever situate, which shall not be in a state of blockade."

In The Juliana (p), a neutral vessel captured by the British, on a voyage between France and Senegal, then a French colony, the Court, after much investigation, decided that France had been accustomed to leave the trade of Senegal open to foreign vessels, and therefore decreed restitution of the vessel to the neutral claimants.

In The Rebecca (9), an American ship seized for carrying cargo between Surinam and Amsterdam, the Court restored the vessel, but refused to allow freight on the cargo condemned. In The America (r), where a similar vessel, bound from Mauritius ostensibly to Hamburg, was seized for proceeding to a French port, the cargo was condemned, freight

(0) Vide The Rosalie and Betty, 2 Rob. 343.

(p) 4 Rob. 336.

(g) 2 Rob. 101.

(r) 3 Rob. 36.

being refused.

The shipowner, in claiming freight, contended that the deviation was fraudulent on the part of the master; and that it was hard that for this the shipowner should be made to suffer; but the Court held that the proof of this alleged fraudulent conduct of the master was not so clear as to warrant its acceptance in the sense claimed by the owner (m).

Continuous Voyages.-The colonial trade which a neutral may not carry on directly, he may not carry on circuitously. This was clearly laid down in The William (n), during the war which occurred between this country and Spain in 1800. The William, a neutral vessel, was bound from La Guira, a Spanish colony, to Marblehead, a port in the United States, with a cargo of sugar, &c. and cocoa, which cargo was in due course landed and entered at the custom house, and a bond was given for the payment of duties. But within ten days of the arrival at Marblehead the chief part of the cargo was reloaded and carried towards Bilboa in Spain. The vessel was captured by the British, and it was finally decided by the Court of Appeal that the mere touching at Marblehead and payment of dues there was not sufficient to establish a bond fide importation into America, and that the voyage was practically continuous from La Guira to Bilboa. Therefore that it was in violation of the Rule of the War of 1756; and the cocoa brought from La Guira was consequently condemned.

In the above case the landing and reshipping at Marblehead was found to be in pursuance of a preconceived design to evade the prohibition against engaging in the privileged trade of the enemy. But each of such cases has to be judged Thus in The Maria (0), restitution was

on its own merits.

(m) Vide pp. 120, 189, as to owners' responsibility for master's acts. (n) 5 Rob. 385, an. 1806.

(0) 5 Rob. 365.

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