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(3) Not to act on behalf of an enemyin drawing,accepting,

paying, presenting for acceptance or payment, negotiating or otherwise dealing with any negotiable

instrument. (4) Not to accept, pay, or otherwise deal with any

negotiable instrument which is held by or on behalf of an enemy, provided that this prohibition shall not be deemed to be infringed by any person who has no reasonable ground for believing that the instrument is held by or on behalf of an

enemy. (5) Not to enter into any new transaction, or complete

any transaction already entered into with an enemy

in any stocks, shares, or other securities. (6) Not to make or enter into any new marine, life, fire,

or other policy or contract of insurance with or for the benefit of an enemy; nor to accept, or give effect to any insurance of, any risk arising under any policy or contract of insurance (including reinsurance) made or entered into with or for the

benefit of an enemy before the outbreak of War. (7) Not directly or indirectly to supply to or for the use

or benefit of, or obtain from, an enemy country or an enemy, any goods, wares or merchandise, nor directly or indirectly to supply to or for the use or benefit of, or obtain from any person any goods, wares or merchandise, for or by way of transmission to or from an enemy country or an enemy, nor directly or indirectly to trade in or carry any goods, wares or merchandise destined for or coming from

an enemy country or an enemy. (8) Not to permit any British ship to leave for, enter or

communicate with, any port or place in an enemy

country. (9) Not to enter into any commercial, financial or other

contract or obligation with or for the benefit of an enemy.

(10) Not to enter into any transactions with an enemy

if and when they are prohibited by an Order of Council made and published on the recommendation of a Secretary of State, even though they would otherwise be permitted by law or by this or any

other Proclamation. And we do hereby further warn all persons that whoever in contravention of the law shall commit, aid, or abet any of the aforesaid acts, is guilty of a crime and will be liable to punishment and penalties accordingly.

6. Provided always that where an enemy has a branch locally situated in British, allied, or neutral territory, not being neutral territory in Europe, transactions by or with such branch shall not be treated as transactions by or with an enemy.

7. Nothing in this Proclamation shall be deemed to prohibit payments by or on account of enemies to persons resident, carrying on business or being in Our Dominions, if such payments arise out of transactions entered into before the outbreak of War or otherwise permitted.

8. Nothing in this Proclamation shall be taken to prohibit anything which shall be expressly permitted by Our licence, or by the licence given on Our behalf by a Secretary of State, or the Board of Trade, whether such licences be especially granted to individuals or be announced as applying to classes of persons.

9. This Proclamation shall be called the Trading with the Enemy Proclamation, No. 2.

Given at Our Court at Buckingham Palace, this Ninth day

of September, in the year of our Lord one thousand nine hundred and fourteen, and in the Fifth year of Our Reign.

God Save the King.

CHAPTER VII

SOME PARTICULAR CONTRACTS (continued)

INSURANCE OF PROPERTY, LIFE INSURANCE,

PARTNERSHIP, AND SALE OF GOODS

INSURANCE OF PROPERTY. We shall now attempt, in the brief space that can be allotted to this subject, to state the effect of war (1) as the law stood before the recent war, (2) under the emergency legislation, and (3) as the law now stands after five years of war. We shall find, as is to be expected, that it is mainly the insurance of property at sea that will claim our attention.

1. Before the recent war... After some contrary decisions by Lord Mansfield it was definitely settled in 1802 in the case of Furtado v. Rogersl that an insurance of enemy property by a British subject against the effects of British capture or (Brandon v. Curling)2 of capture by our Allies is absolutely illegal and void, whether the contract is made before the war (as in Furtado v. Rogers) or a fortiori during the war. Upon principle a contract to indemnify a neutral against the consequences of the seizure of his property by British or allied forces and its condemnation in prize would be contrary to public policy and illegal and void. Further, a policy, whether effected before the war or attempted to be effected during the war, whereby an enemy is insured against loss or damage occurring during the war, whether from belligerent or ordinary risks, is void; this is clear from the statement contained in Brandon v. Curling that 'where the insurance is upon the goods generally [the underwriter being a British subject], a proviso to this effect shall in all cases be considered as engrafted thereon, viz., Provided that this insurance shall not extend to cover any loss happening during the existence of hostilities between the respective countries of the assured and assurer. Because during the existence of such hostilities, the subjects of the one country can not allowably lend their assistance to protect by insurance the property and commerce of the subjects of the other' a passage which is cited with approval by Lord Brampton in Janson's case?

1 (1802) 3 B. and P. 191. Kellner v. Le Mesurier, and Gamba v. Le Mesurier in (1803) 4 East are to the same effect.

2 (1803) 4 East, 410.

So the distinction (if it ever existed) between an insurance of enemy property against British or allied capture and an insurance against ordinary non-belligerent risks can no longer be made.

No loss or damage whatever occurring during the war of or to enemy property, can, therefore, be recovered from a British insurer either during or after the war.

Moreover, it appears to be safe to say upon the analogy of the cases of long term contracts for the sale of goods discussed in Chapter IV that although the duration of a policy upon enemy property which is current upon the outbreak of war may possibly outlive a short war, yet the policy will not revive but is completely abrogated.

Janson's case makes it clear that a loss occurring before war, though during strained relations, is recoverable by an enemy subject from a British insurer at any rate after peace is declared, and that capture by the enemy subject's own government before war is quite a properly insurable risk.

Potts v. Bella shows that insurances by a British subject upon property involved in illegal trading against any risks, belligerent or not, are illegal and void.

But insurances in respect of licensed trade are valid, whether effected by the person licensed or by his correspondents in the enemy country, for the Crown in licensing the end impliedly licenses all the ordinary means of obtaining that ends.'

1 [1902] A. C. at p. 502.
2 (1800) 8 T. R. 548.
: Usparicha v. Noble (1811) 13 East, 352.

The same principles will apply to enemy property on land", so that a fire policy effected with a British company before the war upon German property in Germany becomes valueless, so far as British courts are concerned, upon the outbreak of war in respect of claims which have not already accrued.

British or allied subjects' property on land is insurable, either before or during the war, against all belligerent risks, whether the loss or damage is caused by enemies or by British or allied forces, provided the property is not the subject of illegal trading.

We have stated that an underwriter may, apart from any provision to the contrary which may be embodied in the Treaty of Peace, pay to an enemy after the war losses which accrued before the war, though in most cases he will probably be found to have paid them during the war to the Custodian of enemy property. It is, however, worth noting that before the recent war it was the public and avowed intention of Lloyd's underwriters and also of most of the companies to waive the plea of alien enemy and hold themselves subject to an honourable obligation to pay to enemies during the war losses which accrued before or during the war. The avowal, so far as Lloyd's is concerned, is contained in a statement made by the then chairman of Lloyd's at the International Conference on maritime law at Copenhagen on the 16th May, 19132. This honourable undertaking which was made in the fullest good faith was (it is submitted) based on a misconception in the minds of the underwriters' advisers as to the nature of the plea of alien enemy and the prohibition of intercourse with enemies. These rules, now at any rate, rest on public policy and not on the protection of the British subject which he can waive at will, and it would be illegal, even apart from the

1 See also Nigel Gold Mining Co. v. Hoade (1901] 2 K. B. 849, where a Company registered in Natal had insured with the defendant its gold coming from its mine in the Transvaal against capture, detention, etc.; after war was declared, the Transvaal Government seized certain of the plaintiff's gold; held the property was not stamped with hostile character, and the plaintiff company could recover, as it had closed down its mine as soon as war was declared and so had not carried on business in an enemy country during the war.

2 Printed as an Appendix to this chapter.

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