carrying on business elsewhere including enemy territory in friendly occupation1.

(b) The complement to the definition of enemy is that the Proclamation of 9th September, 1914, professes to warn 'all persons resident, carrying on business, or being in Our Dominions' (again a territorial scope) not to trade with the enemy, so that, for instance, an alien enemy resident here or a neutral subject temporarily visiting this country is 'within the mischief' of the proclamation.

(c) In addition to the special provisions dealing with insurance, sale of goods, negotiable instruments, shipping, etc., there are one or two omnibus provisions to be noted. We are forbidden 'to pay any sum of money to or for the benefit of an enemy,' which revokes the Treasury announcement of the 21st August, 19142, permitting such payments in respect of certain pre-war transactions, but, per contra, 'payments by or on account of enemies to persons resident, carrying on business or being in Our Dominions' in respect of pre-war transactions are for a very obvious reason not prohibited3. (This is a case where it is more blessed to receive than to give.)

(d) Again, we are forbidden 'to enter into any commercial, financial, or other contract or obligation with or for the benefit of an enemy.'

(e) The right of the Crown to revive the old practice of issuing Licences to Trade is preserved by a provision excluding from the scope of the prohibition any licensed transactions, 'whether such licences be especially granted to individuals or be announced as applying to classes of persons.'

Punishment for the offence of 'trading with the enemy' may take the form of penal servitude for three to seven years, imprisonment for any period not exceeding two years with or

1 See note on p. 104 of this book. See also a footnote on p. 401 of the Fourth (red) Supplement to the (red) Manual, and also the Trading with the Enemy (Enemy Subjects interned in Neutral Countries) Proclamation of November 27, 1917, and the Statutory Lists issued under the Trading with the Enemy (Extension of Powers) Act, 1915.

2 Times Newspaper, 22nd August, 1914.

& Halsey v.

Löwenfeld [1916] 2 K. B. 707 (C. A.) affords a good illustration.

without hard labour, and (or) a fine, and the Court may order the forfeiture of any goods or money involved in the commission of the offence. No prosecutions may be instituted for the principal offence of 'trading with the enemy' without the Attorney-General's consent, but an arrest can take place without such consent. Search warrants may be granted by justices of the peace or, in urgent cases, by a Secretary of State or the Board of Trade, and the inspection of the books and documents of persons, firms and companies with alien enemy connexions or constituents or of any persons, firms or companies suspected of the offence may be granted by the Board of Trade. The offence includes attempting or directly or indirectly offering or proposing or agreeing to 'trade with the enemy,' and of course aiding and abetting.

No useful purpose within the scope of this book would be served by an attempt to estimate the decisions upon prosecutions under these statutes and proclamations.

SOME PARTICULAR CONTRACTS.

AFFREIGHTMENT.

Scrutton L.J. has reminded us1 that 'trading with the enemy was at first committed principally in relation to ships, their cargoes, and the insurances thereon,' and in the remaining pages of this book we shall have a good deal to say upon these matters. (1) If one party to a contract of affreightment becomes an enemy by the outbreak of war, the contract becomes illegal and is dissolved, whether it takes the form of a bill of lading2 or voyage charter-party, or of a time charter-party the natural duration of which might outlast the war. It is clear from the Rio Tinto Co.'s cases discussed in Chapter IV that it would be contrary to public policy for the law merely to hold the contractual relation created by a time charter in suspense during the war and so ensure to the enemy on the declaration

1 [1917] 2 Ch. at p. 170.

2 Arnhold Karberg & Co. v. Blythe, Green, Jourdain & Co. [1916] 1 K. B. at pp. 505 and 506.

of peace either the services of a British vessel or employment for his own shipping.

Again, when neither party becomes an enemy, there are cases of charter-parties in existence at the outbreak of war under which it becomes either illegal for the cargo-owner to load or deliver cargo at the specified port because qua him it has become an enemy port, or illegal for the shipowner to allow his vessel to call at the specified port because qua him it has become an enemy port; in either case, at any rate if the illegality arises from English law, it is submitted that the contract is at once dissolved and that either party if sued can' plead the outbreak of war. It is not necessary that it should be illegal for both parties to carry out the contract. An instance is found in a case already referred to more than once, Esposito v. Bowden1, where the shipowner was a neutral and the charterer a British subject, and the charter-party, involving loading at Odessa (which became illegal for the latter), was dissolved by the outbreak of war. An English Court will not give judgment against a man who refuses to do an act which the law of England condemns as illegal.

The shipowner who is under a pre-war contract to deliver cargo at a port which becomes an enemy port upon the outbreak of war, and then diverts his vessel to a port which is not in enemy territory will probably find, apart from any special provisions in his charter-party or bill of lading, that he is entitled neither to full freight or freight pro rata itineris and can be compelled to hand over the cargo to the owners without compensation for his services2. It has been argued, and indeed held by the Court of Appeal, that the same result will occur if the master and crew have through stress of enemy violence, for instance, by submarine attack, abandoned the ship and cargo; that this amounts to an abandonment by the shipowner of the further performance of the contract of affreightment, and the indorsee of the bill of lading is entitled to the cargo free from freight. But the House of Lords (Lord Sumner

1 Supra.

2 St Enoch Shipping Co. v. Phosphate Mining Co. [1916] 2 K. B. 624.

dissenting) rejected this view of the case, and held that it was impossible in the circumstances of the case to impute to the master and crew who only yielded to force in quitting the ship, an intention not to return so as to constitute her a derelict1.

(2) The doctrine of frustration of the venture, and (if one takes the view that a distinction can still be drawn between them) the principles regulating the effect of supervening impossibility of performance, have been discussed at some length in relation to charter-parties in Chapter V. Few topics have been so prolific of litigation during the recent war, but it is doubtful whether anything can be usefully added to what has already been said in that chapter upon Tamplin's case2. The doctrine of frustration or supervening impossibility has been frequently applied to voyage charterparties, but the question whether it could ever operate to discharge a voyage charterparty was left open in Tamplin's case. Bailhache J. in Admiral Shipping Co. v. Weidner, Hopkins & Co. and Sankey J. in Scottish Navigation Co. v. Souter & Co. answered this question in the negative, but the Court of Appeal in reversing these decisions applied the doctrine to time charter-parties. In both cases the parties contemplated a definite commercial venture, namely a 'Baltic round,' so that the charter-parties, though for time, bore a resemblance to voyage charter-parties. The point has however now been settled in Bank Line v. Arthur Capel & Co., where the House of Lords applied the doctrine to a charter-party, which was definitely for time and could not be said to contemplate any particular adventure.

The principle expounded in Tamplin's case that a mere interruption in a time charter may not be such as to put an end to it, must however not be applied to the case of a time charter to which one party is an enemy or under which there is an obligation to render services for the benefit of the enemy. Rowlatt J. had to consider a case of a British steamship time

1 Bradley v. H. Newsom, Sons & Co. [1919] A. C. 16.

2 [1916] 2 A. C. 397.

3 [1916] 1 K. B. 429.

5 [1919] A. C. 435.

[1916] 1 K. B. 675.

• Clapham Steamship Co.'s case [1917] 2 K. B. 639.

chartered to a company who were, if not enemies, at any rate agents for enemies, where both on the principle of Tamplin's case and on the strength of an express suspension clause in the charter-party it was argued by the charterers that they were entitled to the use of the steamship after the war. This contention was however rejected, the learned judge pointing out that the effect of maintaining the charter in a state of suspension secured shipping facilities to the enemy upon the conclusion of peace and thus fortified his commercial position during the war, while hampering the British shipowner in the disposal of his tonnage. These grounds were enough to avoid the contract in toto, and whether the fact that a contrary decision would benefit the enemy after the war as well as during its continuance also had the same vitiating effect upon the contract the learned judge did not consider it necessary to decide. We now know from the Rio Tinto Co.'s cases1 that it would.

'I do not base my decision,' said Rowlatt J.2, ‘on the ground that the maintenance of the charterparty in a state of suspension during the war will benefit the enemy after the war. That may or may not of itself make it illegal. What I say is that it supports the enemy during the war.'

The ground of this conclusion is that

'if at the moment when war breaks out the enemy is entitled to retain his assurance of tonnage to be available at the end of the war his commercial position is fortified even during the war. He is enabled, by the prospect of shipping facilities which he has, to keep together his connection with neutral or enemy merchants overseas, and even (if he likes to speculate on the war being short or if he can obtain contracts with conditions protecting him if it should be long) to enter de praesenti into new contracts to be performed when peace arrives3.'

The value of this passage is that it points out clearly the reason why, at any rate in the case of a pre-war commercial contract which crosses the line of war or otherwise benefits the 'enemy resident,' we must expect to find its fate to be abrogation and not merely suspension.

1 [1918] A. C. 260.

2

[1917] 2 K. B. at p. 646. [1917] 2 K. B. at p. 645.