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Spanish property, and that Spanish property has now become liable to condemnation. But I apprehend it is a position that cannot be maintained in that extent. In the ordinary course of things, in time of peace-for it is not denied that such a contract may be made and effectually made according to the usage of merchants in time of war—such a transfer in transitu might certainly be made. It has even ; been contended that a delivery of the bill of lading is a transfer of the property. But it might be more correctly expressed, perhaps, if said that it transfers only the right of delivery—but that a transfer of the bill of lading, with a contract of sale accompanying it, may transfer the property in the ordinary course of things, so as effectually to bind the parties and all others, cannot be doubted. When war intervenes, another rule is set up in admiralty . which interferes with the ordinary practice.
“In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment till the actual delivery. This arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in the enemy's country would be protected by transfers which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property cannot be converted in transitu, and in that sense I recognize it as a rule of this court. But this, as I have said, arises out of a state of war, which creates new rights in other parties, and cannot be applied to transactions originating, like this, in a time of peace. The transfer must therefore be considered as not invalid, in point of law, at the
time of the contract—and being made before the war, it must be judged according to the ordinary rules of commerce."1
A ship sailed from Demerara for Middleburgh, in Holland, on the 30th of January, 1781, about six weeks after the commencement of hostilities between Great Britain and Holland. On the 14th of March following, Demerara surrendered to the British forces. The ship was captured at sea on the 25th of March.
In pronouncing the judgment of the court in this case, Lord Stowell says: “The terms of capitulation were very favorable. The inhabitants were to take the oath of allegiance, to be permitted to ex. port their own property, and to be treated, in all , respects, like British subjects, till his majesty's pleasure could be known; and although this was in the first instance only under the proclamation of the captor, still, that being accepted, it took complete effect. These terms were afterwards confirmed by the king. There was, therefore, as strong a prom. ise of protection as could be, and recognized and confirmed by the supreme authority of the state.
“ Under these circumstances, the judge of the admiralty thought the claim so strong, that he ordered it restored ; and it was not his opinion alone. On appeal, however, the Lords were of opinion that property sailing after declaration of hostilities, and before a capitulation, and taken on the voyage, was not protected by the intermediate capitulation. It was not determined on any ground of illegal trade, nor on any surmise that, when the owners
* The Vrow Margaretha, 1 Rob., 337.
became British subjects, the trade in which the property was embarked became, ex post facto, illegal. Nor was it at all taken into consideration that Demerara had again become a Dutch colony at the time of adjudication. It was declared to be adjudged upon the same principles as if the cause had come on at the time of the capture. It was not on any of these grounds, but simply on the ground of Dutch property, that condemnation was passed. The ship sailed'as a Dutch ship, and could not change her character in transitu. This was the dictum of a great law lord then present-Lord Camden."1
Many cases have arisen of colorable transfers, made under a great variety of circumstances, such as might well be expected from human ingenuity exercised for the protection of vast interests. They are interesting only as expositions of the acuteness of captors in tracking and developing the deceitful and fraudulent character of the transfer, and the inge. nuity and skill of claimants in eluding investigation. A transfer made by an enemy to a neutral during Transfers in
.° general. or in contemplation of war, is illegal, because in fraud of a vested belligerent right.
Any reservation of interest in the transfer, any thing short of an absolute and unconditional sale, is held to pass no title whatever to the property, but that it remains in the enemy, subject to capture.? So, too, a reservation of risk to neutral consignors, Reservations
of risk. in order to protect belligerent consignees, are uni
? The Negotie en Zeevart, 1 Rob., 111; The Dankebaar Affrican, 1 Rob., 107; The Jan Frederick, 5 Rob., 128.
? The Anoydt Gedacht, 2 Rob., 137; The Sechs Geschwistern, 4 Rob., 100.
The Anoydi' come Jan Frederick In The Dankebao,
formly regarded by courts of admiralty as fraudu. lent and invalid.
In the last war between Great Britain and France, a cargo was shipped on board the ship Sally Griffiths, ostensibly on account of American merchants. Upon the examination on the capture, the. master testified to his belief that the cargo, upon being unladen, would have become the property of the French government. It was obvious, therefore, that a sale had been legally completed; and the use of American names as consignees, on whose risk and account the shipment was pretended to be made, was solely to evade the result of a capture, if the cargo had been shipped avowedly as French property.
"It has always been the rule of the prize court," says Sir P. Arden, in this case, “that property, going to be delivered in the enemy's country, and under a contract to become the property of the enemy immediately on arrival, if taken in transitu, is to be considered as enemy's property. When the contract is made in time of peace, or without any contemplation of war, no such rule exists. But, in a case like the present, where the form of the contract was framed directly for the purpose of obviating the danger apprehended from approaching hostilities, it is a rule which unavoidably must take place. The bill of lading expresses for the account and risk of American merchants; but papers alone make no proof, unless supported by the deposition of the master. Instead of supporting the contents of his papers, the master deposes, 'that on arrival, the goods would become the property of the French government;' and all the concealed papers strongly
support him in this testimony. The evidentia rei is too strong to admit of further proof. Supposing it to have become the property of the enemy on delivery, capture is considered as delivery; the captors, by the right of war, stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as of enemy's property.”
In the leading case of the packet De Bilboa, which was that of a shipment at the risk of the consignor until delivery, as having been made before the war, Lord Stowell considers the subject with his usual learning and ability. He says: “The statement of the claim sets forth that these goods have not been paid for by the Spaniard. That would go but little way; that alone would not do. There must be many cases in which British merchants suffer from capture by our own cruizers, of goods shipped for foreign account before the breaking out of hostilities. The claim goes on to state, that according to the custom of the trade, a credit of six, nine, or twelve months is usually given, and that it is not the custom to draw on the consignees till the arrival of the goods—that the sea risk, in peace as well as war, is on the consignor, that he insures, and has no remedy against the consignee for any accident that may happen during the voyage. Under these circumstances in whom does the property reside? The ordinary state of commerce is, that goods ordered and delivered to the master, are considered as delivered to the consignee, whose agent the master is in this respect—but that general contract of the law may be varied by spe
! The Sally Griffiths, 3 Rob., 133.
? De Bilboa, 2 Rob. 133.