Insurance.

As has already been pointed out under the head "Embargo and Reprisals" (v), a seizure of neutral property with the view not of confiscation, but of paying for or ultimately restoring it, is, within the meaning of the marine policy, to be regarded rather as an arrest than as a capture (w). The ordinary wording of the policy, it is true, admits liability for the one as much as for the other, but it would seem that the right to abandon to underwriters may, in certain cases of arrest, be less obvious than in cases of capture. The seizure of the Genoese corn-ship, mentioned above, was held not to be a capture but an arrest, during which the captain remained in charge of his ship; and as this arrest was, so far as the vessel herself was concerned, merely temporary, the Genoese Rota-Court decided that the shipowners were not entitled to abandon to underwriters. Arnould, referring to the corn, observes that a question has been raised whether in similar cases the assured can recover as for a loss by arrest and detention; but, he observes, "I have no doubt that in point of strict law the assured is entitled to recover as for a total loss, deducting, however, the money paid him by the arresting government from the amount of his claim under the policy" (x). Later, referring to the ship, he says, "Of course, if the arrest creates only a temporary obstruction of the voyage, without giving rise to any permanent loss of control over the ship, it cannot give any right to abandon." Perhaps a distinction may reasonably be drawn in such a case between the ship and the cargo, for it may well be a foregone conclusion that the ship will be released-and this without unnecessary delay-and that the cargo will be retained. This being so, the reason for abandonment of the ship seems less obvious. But, as regards the cargo, as it has passed away from the owners for good and all, owing to the operation of a peril insured against, they are presumably entitled to recover as for a total loss, after notice of abandonment. But if, before commencement of the proceedings,

(v) P. 39, supra.

(w) Vide Rodocanachi v. Elliott, 28 L. T. Rep. 844.
(x) 5th ed. p. 755.

the arresting government should have paid over the value of the cargo appropriated, then the amount recoverable from underwriters would presumably be any deficiency as between the amount of such payment and the sum insured. Which, it may be supposed, is what Arnould intended by his above observation relative to the corn.

The wages and provisions of the crew while the ship is under arrest are not chargeable against the underwriters on the ship. The shipowner is deemed to have taken into his conclusions the possibility of detention, and to have calculated his freight accordingly. The period of detention is considered as part of the voyage, and the shipowner cannot look to his underwriter for expenses outside the contract of insurance. Nor does the arrest break up the voyage under the charter-party, or dissolve the contract of affreightment. "Subject to the rights of the captor, and so long as these rights remain unestablished by a sentence of condemnation as to ship or cargo, or both, the original contract of affreightment is binding on both parties." (Maclachlan on Shipping, 2nd ed., p. 460; but vide p. 425, infra, with respect to the effect of unlivery by order of the Court.)

Having now considered the rights of belligerents (1) against the enemy, and (2) against neutrals, let us proceed to discuss the third class of belligerent rights, viz., Municipal (in contradistinction to International) Rights.

VI.

BELLIGERENT MUNICIPAL RIGHTS.

Restraint, Seizure, and Destruction of Property of the National

Issue of Special Licences to Trade with the Enemy; Passports and

Grant of Licence to Cartel Ships

Permission or Prohibition of Ransom

Prohibition of Export of Articles subservient to Warlike Uses

PAGE

254

. 258

RESTRAINT, SEIZURE, AND DESTRUCTION OF PROPERTY OF THE NATIONAL SUBJECTS.

Ir has been seen above (a) that there is conceded to belligerents the right in case of pressing necessity to "requisition " neutral property within the belligerent dominion, subject to the condition that property so seized shall be duly paid for. There is, therefore, nothing surprising in the fact of a state resorting in case of need to similar measures as regards property of its own subjects, of whatever nature consisting. Thus it is related that Peter the Great laid

(a) P. 244, supra.

waste some eighty leagues of his own territory in order to check the advance of Charles XII. of Sweden, and in 1812 the city of Moscow was, as is commonly believed, set on fire by the Russian authorities with a view to rendering the position of the French invaders untenable. Just as the Prussians sank the English colliers at Rouen in 1870 in order to prevent the French war-ships coming up the Seine, so in 1667 Charles II. sank vessels in the Thames in order to stay the progress of the Dutch fleet towards London (b), and seized English vessels for conversion into fire ships. "Receiving," writes Pepys in his diary, "every hour almost letters from Sir W. Coventry calling for more fire-ships; and an order from council to enable us to take any man's ships; and Sir W. Coventry, in his letter to us, says he do not doubt but at this time (under an invasion as he owns it to be) the king may by law take any man's goods." Emerigon, in his Treatise on Insurances (§ XXXII.), writes: "By the Roman law the owners of vessels were obliged to furnish. their vessels for the transport of corn, and for other public necessities. It is the same with us. Not only may the

King take the ships of his subjects for the service of the state; he has besides authority to employ in the same

(6) Pepys's Diary is instructive reading on this point. On 14 June, 1667, he writes:-"At night come home Sir W. Batten and Mr. Pen, who can only tell me that they have placed guns at Woolwich and Deptford, and sunk some ships below Woolwich and Blackwall, and are in hopes that they will stop the enemy coming up. But strange our confusion! that among them that are sunk they have gone and sunk without consideration the 'Franclin,' one of the King's ships, with stores to a very considerable value that hath been long loaded for supply of the ships; and the new ship at Bristoll, and much wanted there. And nobody will own that they directed it, but do lay it on Sir W. Ryder. They speak also of another ship loaded to the value of 80,0001. sunk with the goods in her, or at least was mightily contended for by him, and a foreign ship that had the faith of the nation for her security; this Sir R. Ford tells us. And it is too plain a truth that both here and at Chatham the ships that we have sunk have many, and the first of them, been ships completely fitted for fire-ships at great charge."

manner foreign vessels found in his ports: in which the law. of nations is not violated. The practice of Europe, says Vattel, conforms with this maxim. And again he remarks: Sovereigns who thus take national or foreign vessels for their service, never fail to pay them a suitable freight." It goes, indeed, without saying, that if the ships or goods of the national subjects be utilized or destroyed by the state in protection of the nation, the subjects whose property is thus forcibly seized must be duly indemnified.

Insurance.

66

It has been indicated above, sub "Embargo and Reprisals" (c), that seizures of which the motive is not confiscation as prize, but rather appropriation and payment of value, are to be regarded as "arrests," and not as captures." "There appears to be no doubt," says Arnould (d), "that if a British ship be arrested or seized by the British Government, from any state necessity, or detained in port by a British-laid embargo, this is a loss for which the underwriters are liable as a detention within the

meaning of the policy" (e). He observes also that (f) "an arrest takes place whenever the government of a country to which a ship belongs, or any other friendly power, with the design not to make prize (for then it would be a capture), but to restore the ship and goods, or to pay the value of them to their owners, seizes ship and goods for state purposes, either in port or at sea.' And in a recent case (g), the Court, in accepting this definition, observed that Arnould stated it "in the clearest possible way." That underwriters are liable for losses arising from such arrests was decided by the Courts in a case where a British vessel was seized by the British Government, and con

(c) P. 39, supra. Vide also sub "Pre-emption," p. 252.

(d) Mar. Insce., 5th ed. p. 753.

(e) Dictum of Lord Alvanley in Touteng v. Hubbard, 3 B. & P. 291, 302. Vide p. 42, supra.

(f) 5th ed. p. 751.

(9) Crew, Widgery & Co. v. Gt. Western S.S. Co., T. L. R. p. 738.