TIS CONTRABANDI
THE OSAKA SHOSEN KAISHA 2. THE OWNERS
--> [OF THE '9.2" PROMETHEUS,"
WOMEN THE JUDGMENT,
IN
|
|
THE HONGKONG TELEGRAPH SATURDAY DECEMBER 3, 1904.
The Treaty of Paris, to which Russia is a party, and to which she still adheres, commen- ces with the following preamble Consider ing that maritime law in time of war has long been the subject of deplorable disputes that uncertainty of the law and of the duties in such a matter gives rise to differences of opinion be tween neutrals and belligerents which may occasion serious difficulties, and even conflicts; that it is consequently advantageous to estab lish a uniforma doctrine on so important a point; that the planipotentiaries assemble in Congress at Paris cannot better respond to the intention by which their Governments are animated than by seeking to introduce into international rela. tions fixed principles in this respect" Then immediately follows this declaration"The above-mentioned plenipotentiaries being duly authorised resolved to concert among them selves as to the means of attaining this object; and having come to an agreement have, adopt ed the following solemn declaration
(1) Privateering" is, and remains abol fished.
(2) The Nentral flag covers enemy's goods, with the exception of "contraband of war."
(3) Neutral goods, with the exception of con- traband of war, are not liable to capture under the enemy's flag.
a
QUBSTIUN OF TITLE IN THE
NEW TERRITORIES,
MOTION TO BRING FURTHER EVIDENCE.
28th ult
Mr. Slide regretted to say that he had to esk for an adjournment, the fact being that the case, originally fixed for last Thursday, was adjourned until Friday, and then at the request. of his learned friend further until this morning by consent. This morning had been filed an. affidavit to which was attached a letter from the British Consul General at Canton, retting lorth certain facts, and he asked for time, to answer certain questions. At least one of the witnesses be required was in Canton. Fa
His Lordship thought Codusel, had better deal with the whole question now as 10.
Mr. Slade remarked that as, Mr. Bowley. gave him to understand that no opposition would be made to the adjournment he did not come prepared to argue the motion for ad Journment. He had been very hard driven to time all along, and His Lordship could have no idea of what a mass of translating hid to be performed.
His Lordship thought the application
Mr. Slade said he wanted to put in documente which were not in his possession before. He did not want to put in, aby evidence of opinion, but simply, evidence of facts. He wanted to put in acertain document which he believed to be of vital importance to this case. The document they did not know existed; it had all along been kept in the cus- tady of the Provincial Treasurer of Kwangiang, who had promised to send him a verified copy, The original documebt of course could spot leave the Yamen, Counsel further contended that a certain document, which had been trans- fated and put in by the other side, turned but to be mest inaccurate.
The Chief Justice thought that if this up- plication was granted the other side would come forward with a similar application and they would never know where they were.
Mr. Slade said he asked to bring evidence absolutely impartial and simply for what it was worth. The document was written in the most difficult Official Chipese, and the Court trans
With the latar could not possibly do it. Consular Officials in China, this however was not the case, for they were 'especially trained in this official language, men ve fault
The Chlef Justice said the: Daöd all belonged to the Crown, and if the · Land Court has decided that the map sought to be entitled to have the; jand, according to the laws of China, he must get a paper. By the Ordinance, the Colonial Government was bound, and was required to give a title where equitably the man should receives sitia, In this case the Land Court has advised the Government not to allow a title and therefore the man was a trespasser.
That clause is as follows-lu care of war ↑ themselves at the date, theatoned, pamely, I which, in my opinion, that expression Lens law may be established and become later steamer not to be directed loviny blockaded seven days or so after the signing of the char- on a trae construction of the Declaration national, that is to say, binding upon all nation, port nor to carry any contraband of war." In the tar party, evidence thereof to affect the con- of the Plenipotentiaries who signed the Treaty by the agreement of such nations to be bound London Gatitis of the March, 1904, a noti-struction to be placed upon the language used of Paris of 1856. That is, in my opinion, the thereby, although it may be impossible to en fication from His Majesty's Secretary of State in the charter party must have been rejected sense in which the parties to the charter of the force, obedience thereto by any given nation for Foreign Affairs, dated 29th February, 1904, when construing the charter party on the ship' Prometkams kiust be taken to have under party to the agreement. The resistance of a nation tó a law to which it has agreed does not appeared, the material portion of which la as. principle that the oral evidence cannot be stood the expression "Contraband of War
At the Supreme Court this morning, before follows His Majesty's Secretary of State received to vary or add to the terms of a written when they agreed by Clause 37, that the ship derogate from the authority of the law because
the Chief Justice (Sir Henry S. Berkeley), and Following is the judgment in the above, for Foreign Affaire has, received the following agreement. The expression contraband of "Promillikt was not to "carry any Contraband that resistance cannot perhaps, be overcome. action as revised by the Chief Justice (Sirtelegram from His Majesty's Ambassador at war as used in the agreement between the of War To construe that expression as mean- Such resistance merely makes the resisting the Puise Judge (Mr. T. Sercombe Smith), a Henry S. Berkeley).
St. Petersburg Regulation affecting neutrals Osaka Shosen Kaisha and, the owners of the Inghatever might at any time, that is, to say nation ta breaker of the law to which it has motion for leave to adduce further evidence in His Lordship said-This is a special case to be applied by Russia during war with Japan, rometheus, must, therefore, be given the from time to time, be declared by Russia to given its adherence, but it leaves the law, toply to that filed by the respondents, in the stated for the opinion of this Court by the pablished to-day, Declared Contraband pf primary sense attached thereto at the time of be contraband, as the learned Counsel for the the establishment of which the resisting nationmatter of the claim of Tang Tax U, in the New arbitrator, acting under a submission to arbi- War: Here follows a detailed statement of the signing of the charter party, and not any owners contended I should, would be to import was a pany, still subsisting. Could it be superritories, being claim C. A. turvay district tration contained in a certain charter party specific articles, which are to be considered other and particular meaning which it might into the contract between the parties an element cessfully contended that because any given No. 4, and in the matter of the New Terri- made at Hongkong on the toth of February, usconditional contraband of war, and the suit, either party in the light of subsequent of uncertainty where none need existe person or body of persons possess for the time ories Land Court Ordinances, 1900 to 1903
Mr.-M. W. Slade (instructed by Mesars." 1904, between Masers. Sander, Wieler & Co. leclaration concludes as follows: Generally events to attach thereto; for I cannot see any contract was made in Hongkong, and therefore being power to resist an established municipal law such law had no existence? The answer agents for the steamship Prometheus,' under ull objects intended for war by ses or landhing in the document itself which would in the absence of evidence to the contrary
wens and Harston) was for the appellant, and Norwegian colours," on the one part, and "The including rice, provisions, horses, etc." This justify me in depriving that expression, of its which I could act upon the "parties must be to such a contention would be that the law stills Attorney General (Bon. E. H. Sharp, KC,) Osaka Shosen Kaisha, Osaka, by their Hong extract from the London Gazette of the 1st of primary meaning. The expression "contraband taken to have used the expression "Contraband existed, though it might nor for the time being and Mr. H.E. Follock, K.C. (instructed by kong Office, Charterers "on the other part, by March, 1904, was published in Hongkong in aof war only appears once in the charter party, of War" in the sense in which it is understood he possible to enforce obedience to it. My Messts, Dennys and Bowley) were for res which that ship was chartered to the Osaka Government Notification, No. 253, dated at the and its meaning is in no way affected by any in British courts of law, which is its sense in answer to the first question put to me by the pondents. Shosen Kaisha for six months subject 10, inter Colonial Secretary's Office, 8th April 1904 - thing in the, context. What then is the international law. It cannot be successfully arbitrator must therefore, for the reasons I have alla, a special stipulation that she was not fe There had previously appeared in the Go- meaning of the expression "contraband of contended that provisions would be regarded given, be (1) that the cargo intended to be carry any contraband of war. The charter party wernmani Gasstis of the 9th March, the follow.war" in its primary sense? Mr.Wharton, in by British courts of law as unconditional loaded by the charterers on the steamship is signed "Sander, Wieler and Co., agents ing Notification, No. 165, dated at the Colonial his "Law Lexcon" defines contraband, of war contraband of war, or that there is any likeli Prometheus was not contraband of war within for the captain and owners of the Norwegian secretary's Office, gih March, 1904The meaning in its primary sense that which, hood that they, will ever take that view. Had the meaning of the charter party; (2) that the
Russian declaration constituting provisions up 6.5. Prometheus". "Osaka' Shosen Kaisha., T. following telegrant from the Seceretary of State according to international law, cannot be sup- this court been asked at any time between the Arima, Managet.”
for the Colonies is published for general in plied to a hostile belligerent except at the risk signing of the charter party on the 10th conditional contraband was not binding upon The facts out of which arise the questions formation Russian declaration, as to con of seizure and condemnation by the ng-February.rgaand the issuing of the Russian neutrals who were no party thereto, and con- submitted by the special case for the opinion traband states as follows"En géneral tour grieved belligerent. That seems to me declaration to construe the meaning of the sequently has no bearing upon the construction of this court are, so far as material, as follows :- 'es objets destinée a in guerre, sur mer ou sur
a sound definition if you understand the words "contraband of war" it cannot be doubt of the charter party between the Osaka Shosen The charter party was signed at Hongkong en terre, de même, que le riz, les, vivres, et les
word "risk" to mean that risk which is ed that it would have excluded provisions from Kaisha and the owners of the ship Prometheus the 10th of February, 1904, subsequent to the chevaux, bftes de sommes, et autres pouvant contemplated and recognised by the law of the category of unconditional contraband. It is The remaining questions, the second and outbreak of hostilities between Russia and servir dans un but de, guerre et si elles sont nations. Broadly stated then contraband of contended, however, that the court ought to place | third, put to me by the Arbitrator, present no Japan. The fact that Russia and Japan were transportér pour le compte ou a destination de war is that which laso considered by the law different meaning on that expression, after, and difficulty. With respect to the second ques-whether he was entitled to have leave to at war was unknown to the parties at the time l'ennemi."
of nations. The question which naturally in view of the terms of the Russian declaration, in my opinion the engagement of the get further evidence. If the Court thought they signed the charter party, but the chatter The first declaration, by, Russia respecting follows is What do you mean by the law of tlon, inasmidch as Russia being a sovereign in | Prometheus by the Osaka Shosen Kaisha for he was, then such time would be granted party was made in anticipation of war, and the contraband of war was made at St. Petersburg on nations?" I answer that the law of cations is perdent Power has a prerogative right to de-employment in the Japanese coasting trade, to call the evidence. It was a year since the fact that war had broken out became known to the 14th of February, 1904, and was consequently that system of rules respecting belligerent and clare whatever she pleases to be contraband of that is to say, in the interport trade of Japan, case was before the Land Court, and by how the parties immediately after the charter party hade subsequent to the signing of the charter neutral rights established by consent among the war in any war in which she may be engaged, was in no sense illegal. The propriety of such he ought to have been, able to obtain all the had been signed. The owners of the Frome party by the charterers, and the agents for the civilised and commercial nations of the world, and that the effect of the Russian declaration voyaging was never questioned by anyone until evidence he required... theas are 'Norwegians, subjects of, a Power owners of the ship Prometheus; Leaving for partly written and partly arising out of custom may be to make provisions unconditionally the solicitors for the owners took the point neutral in the war between Kussia and Japan. the moment the question whether the effect of and rendered stable by judicial decisions from contraband, the Master of the ship Pro- before the Arbitrator that the interport trade The charterers, the Osaka Shosen Kaisba, ja the declaration by Russia was or was not to time to time.
metheus was excused from loading them on his of Japan was a privileged one; and that con- Japanese Steamship Co., are subjects of Japan, make rice, sugar, and other provisions-uncon-
To my opinion, the expression "contraband of ship. In this contention I am unable to consequently it was illegal for the neutral ship one of the belligerent power. The Osaka Shosen ditional contraband of war, it is important war" has a well-known and accepted meaning cur. In the view which I take of the effect of Prometheus to engage therein during the Kaisha is a well-known company engaged prior when considering the true construction to be among the civilised commercial powers of the the Declaration ander the Treaty of Paris of existence of hostilities. In other words, that to the outbreak of war in running a regular placed upon the expression contraband of world. If that were not so we should not, as 1856, and of the undertaking by the several such trading came by analogy within the prin- line of steamers carrying cargo and passen war as used in the charter party and to the we do, find that expression used without defini- Powers signatory thereto, given in the Protocol ciple of what is known as the rule of the war gers from Japan to Formosa and back, determination of the question what was in tion in solemn treaties between the powers. No. 24. not to. depart from the principles of 1756 rendering the ship liable to be captured calling at fapanese interports each way, the minds of the parties at the time of the The expression "contraband of war" is used enunciated in the Declaration, I think that and taken to a Russian Prize Court for ad- and carrying ordinarily and regularly as part execution of that document, to remember that without any definition of its meaning in the Russia was not at liberty to declare provisions judication! It is not necessary to consider of such cargo sugar, rice, and foodstuffs gep the charter party was signed on the toth Treaty of faris of the 16th April, 1855. The unconditional contraband of war, and that her whether the rule of the war of 1756 is obsolete, erally. That fact was known to Messrs. Sander, February at a time when though warwas expect. inference from that fact is, to my mind, irresis. declaration in that respect could not affect the as contended by Mr. Sharp, or not; for in my Wieler & Co. at the time of the negotiations for ed, the fact that it had actually broken out was tible that there was no definition needed, be contract between the parties to this charter opinion even if it were in full force and effect the charter of the Prometheus, and the Prome not known to the parties: that the Russian cause the expression had the same definite party, even supposing it could be held that it would have no application to the facts of thews was chartered for the express purpose of declaration was not issued in Russia until the meaning in the minds of all the plenipotentiar contraband of war means, as used in the char. this case. To have made that rule apply, the being employed in that line, so running between 14th February, 1904-four days after the charter ies of the Powers parties to that treaty, ter party, whatever Russia may consider as ports traded must have been totally closed Japan and Formoso, to replace certain steamers party had been signed; that it was not publish-
such; for Russia having been a party to the before the war to all but. Japanese subjects; regularly theretofore 80 employed which had ed in the London Gasttie until the 1st of March,
solemn declaration of "fixed principles" under and must only have been opened to others after been taken up by the Japanese Government some twenty days after the signing of the
the Treaty of Paris was not at liberty to disregard the war, and because of the pressure and neces: The charter commenced on the 22nd February charter party and that it was not notified in
those principles and was therefore bound to sity of the war due to the preponderating naval and the Prometheus left Hongkong on the ficogkong, where the contract of the chatter
recognise, and act upon, the generally accept supremacy of the belligerent enemy. In point of following day under her charter for Takao, a was made, until the 9th March-29 days after
ed rule of international law that provisions fact no such pressure and necessity has existed in this war on the part of Japan. Owing to the port in Formosa. She there loaded a cargo of the signing of the charter party. The Arbitra-
are not unconditional contraband. In this sugar and rice and proceeded to Anping, tor, after citing the treaties which provide for
view 1 am supported by the decision in the fortunes of war the naval forces of Japan have another port in Formosa, where she again loaded equality of treatment for foreigner and Japan-
case of Pollard. Bell, 8 Term Reports 424, from the outset of the war gained an ascen- Bugar and rice for Yokohama and Kobe-ports eso, so far at the treaty port trade is con-
| where was laid down that it is not com dancy securing immunity to her ports from the in Japan. The Prometheus arrived at Yoko- cerned, finds as a fact, the following: "Bath
petent to one nation to add to the law of naval force of the enemy. It is found at a fact hama on the gh March and at Kobs on the under existing treaties and prior to the signing
nations by its own arbitrary ordinances without by the Arbitrator that since a time prior to 17th of that month. The cargo loaded in. of the British treaty of 1894, foreign vessels,
the concurrence of other nations 1 Against the 894, that is to say for a period of ten years Formosa was duly discharged and the loading that is to say non-Japanese vessels, were freely
view which I hold, vis, that provisions are by previous to the charter of the Prometheus of the ship for her return voyage from Kobe to allowed to trade with certain other ports in
the law of nations only conditional contraband, foreign vessels, meaning thereby vessels other Formosa commenced. On the 19th of March Japan under special permits, and this privilege
and that they were so regarded by the signa than Japanese, have been allowed to trade the master of the Prometheus received at Koba is extended to foreign vessels to the present
tories to the Treaty of Paris, 1896, it was urged freely under treaty with certain ports ordin a telegram from his owners directing him to day irrespective of whether Japan is at peace
that notwithstanding that treaty the French arily known as Treaty Ports, and under special "decline rice and provisions between Japanese or war. This finding is borne out by the
when engaged in hostilities against China in licence with certain other ports known as ports," and further directing him to try evidence, and the fact so found has a material
1885 intended to treat as contraband all ship non-treaty, ports; and it appears as a further cancel the charter party. The direction to bearing upon the argument addressed to me
ments of rice destined to the open ports north fact that the Osaka Shosen Kaisha had per- decline to load rice and provisions was com on behalf of the owners of the Prometheus 10
of Canton. That fact, however, only amounts mission from the Japanese Government before municated by the Master to the Osaka Shosen the effect that the Master of the Prometheus
to this: that on that occasion France proposed the outbreak of war to employ foreign ships in Kaisha. A correspondence ensued between the was not bound under the terms of the charter
to act is a manner which, had she been called trading to non-treaty ports. The Arbitrator Chatterers, and the Master, in which the Char-which was for "lawful voyages" only to continue
upon to defend, she would have found difficulty adds that this privilege was extended by Japan teren denied and the Master asserted that rice, voyages to the interports of Japan, inasmuch
in justifying, in the face of the declaration to foreign vessels irrespective of the question of sugar and provisions generally were contraband as it was illegal to do so, that is to say that it
under the Treaty of Paris to which she was a paace or war. I entirely concur in this finding, of war, ending by the Master declining to load was unlawful for him, as master of a foreign
party, Fortunately praliminozies of peace
which is supported by clear - documentary were settled before any seizures were in fact evidence. In my opinion, trading under the "rice, sugar and provisions", for carriage owned neutral ship, to engage her in time of between Japane e ports usless an increased war in the Japanese interport trade, that
made by the French, and so the intended licence of one belligerent given under such amount was paid for the h're of the ship, alleg is to say in the coasting trade of Japan. It
action of France Lannot properly be drawn into circumstances does not render a neutral ship
Hon. E. . Sharp, K., in opposing the mo ing as the ground for this refusal that provisions was proved before the arbitrator that the Master
a precedent against the principle enunciated liable to capture by the other belligerent. My in Pollard v. Bell. It is, moreover, to be re- answer to the second question is that the line tion, said that when the case came on in the were contraband of war, which, by an express of the Prometheus had received from the Caaks term of the chailer party, was not to be loaded Shosen Kaisha a letter dated 27th April, 1974,
marked in connection with this intended action on which the Osaka Shosen Kaisha intended Land Court, it was given an unusually thorough to employ the Prometheus was not a privileg hearing. The case lasted longer-than soy on his ship..
by which it appears that they had ordered him
on the part of France in 1885 that her right to
ed' one; and that, at the time when the Master claim which had then beep before the In consequence of this refusal of the Master to go to the following Japanese interports,
make provisions unconditional contraband way to load rice, sugar and provisions, for the reason which include ports known as non-treaty poris,
at the time denied by Great Britain. In of that ship refused to load provisions for a Land Court-nearly five months. Then on stated, the cargo of the Prometheus which was viz, Yokohama, Kobe, Kagashima, Okinawa.
Pollard v. Bell, decided in 1800, a French Prize voyage to fapanese ports between Kobe and appeal the claimant had a second chance to then in course of being loaded was completely Keeling, Anping, and Takno." Iren.ion this
Court, France then being at war with Great Formosa, it was lawful for that neutral ship to meet his case, and he was allowed to put in discharged at Kobe and the ship. left in now because the fact has'a direct bearing upon
Britain, and Denmark being neutral, coa- engage in that trade.
further evidence in reply to the Crown asse. ballast for Nagasaki, Subsequently she was a portion of the case for the owners of the ship
demned a Danish ship on the ground that she Coming now to the answer to be given to the He was further allowed additional time, and employed elsewhere than on the line between Prometheus. It is on the above briefly-sum
was at the time of capture carrying a Scotch. third question put by the Arbitrator. It is con enabled to call additional evidence. He main Kobe and Formosa for which she had been marised facts that the arbitrator has addressed
man a supercargo in violation of an ordinance tended as behalf of the owners that whatever tained that the plaintiff was not allowed to call specially chartered. In consequence of the
At the same sitting of the plenip tentiaries by which it was declared that all ships should may be the true meaning of "Contraband of further evidence, which should have been call refusal of the Master to load this cargo follows:-Firstly, whether under the terms the following resolution was adopted (Protocol be confiscated "wherever there shall be found War," and whatever may be the proper view toed at the trial to the Land Court. He should the whole purpose of the charter party was of Russia's declaration the cargo intended for No. 24): "On the proposition of Count Wal-on board a supercargo, merchant, commissary, take with respect to the validity or otherwise have put in whatever expert evidence hatre- frustrated. The intended voyage for which the shipment from Yokohama and Kobe to Kago- ewski, and recognising that it is for the or chief officer being an enemy. Is dealing of the Russian Declaration making provisions quired, at that time. It was clear that the Prometheus was load ng at the time was on the shima, Okinawa, Anping and Takac by the general interest to maintain the indivisibility with the ground assigned by the French unconditional contraband, yet as Russia had as Crown in the matter of this forther evidence regular line between Kobe and Farmers, and Prometheus was contraband? If so, whether of the four principles mentioned in the declara Court condemning the ship Chief Justice Lord a fact, whether rightly or wrongly, declared pro had done more than they were obliged to do, the ports to which it was proposed to send the the Russian declaration in this respect is bind- tion signed this day, the plenipotentiaries agree Kenyon said "this is one of the numberless visions unconditional contraband, and as the by allowing the claimant to call further Prometheus were not ports of military or naval ing upon neutrals, or whether, it is ultra vires? that the powers which shall have signed it, or questions that have arisen in consequence of Prometheus would as a fact, rightly or wrong evidence to bolster up his case. The letter equipment, but prdinary commercial ports. The
Secondly, whether the line on which the Osaka which shall have acceded to it, cannot hereafter the extraordinary sentences of condemnation have been captured if found by a Russian signed by H.M.S. Consul General at Canton zates of chartering had increased enomously Shosen Kaisha wished to employ the Proanter into any arrangement in regard to the passed by the courts of Admiralty in France driver carrying provisions, and have been could not be used on either side, inasmuch between the 10th of February, the date of the metheus is a "privileged" line, and if so was application of the right of neutrals in time of during this war. To a question asked taken to a Russian Price Court for adjudica- as it wan an expression of opinion, on Charter of the Prometheus, and the 26th of therefore unlawful for a neutral ship to engage war, which does not, at the same time, rest on in the course of the argument, what are the tion, it was, in view of the exception in clause Chinese Law, but it was not sworn to, fand March, the date of the discharging of the cargo in such a trade?
the four principles which are the object of the rules on which the Courts of Admiralty profess one of the charter party with respect to "arrest | quite inadmissible. He did not appose the which that ship was then in the course of load.
said declaration."
to proceed, I answer, the law of nations, and and restraint of Princes, Rulers, and peoples" admission of the Chinese document, which was ing at, Kobe. This fact is of importance in
It will be observed that by this Protocol the such treatles as particular States have agreed the duty of the charterers to refrain from load a very ancient one, and it was clear that considering what the parties had in their mind
plenipotentiaries of Russia bind that Fower upt shall be engrafied on that law, It was said by ing on the Prometheus anything that would or it could not have been fabricated for the pur when, as will appear hereafter, they used the
thereafter lo adopt any attitude towards neutrals the defendant's Counsel that an ordinance has might render such ship liable to be captured poses of this case. The real reason of that word "contraband" in clause 37 of the charter
in time of war which does not rest upon the the same force as a treaty, but without stopping and taken in for adjudication; and that if the application was that the claimant's expert evi party for it is suggested by the charterers
four principles enunciated in the declaration, to enlarge on the difference between them it is charterer in disregard of that alleged duty deace had been to some extent discredited, that the objection of the owners to carry pro
This Protocol has an important bearing upon sufficient to say that the one is a contract made offered cargo the carriage of which would ren and he wanted to have further evidence.; In visions was not made bona fide, but was made
the contention at the Bar that Russia as an by the contracting parties and that the other der the ship liable to such restraint, it was the the affidavit it was contended that the respond. with the object of obtaining. if possible a fresh
independent sovereign State possesses, as a is an ex-parte ordinance made by one nation right and the duty of the Master to decline to
ents were attempting to set up a new case... As charter at the higher rates then ruling. The
concomitant to the right to make war, the right only, to which no other State is a party; and I receive and load, and if already loaded, to un-
a matter of fact they scrupulously avoided first clause of the charter party "rovides that
to declare what shall or shall not be considered concur with Lord Mansfield in the opinion that load such cargo. It may be conceded that where starting a new case. Their case was identical the ship Prometheus shall be placed at the
it is not competent to one nation to add to the there is as a fact a risk of capture, such risk with that in the Land Coum, in conciasjon, Bole disposal of the charterers or their agents
Idwell here upon the fact that the expres law of nations by its own arbitrary ordinances would amount to a "restraint of Princes" within Counsel stated that if this leave was given to carry cargo and passengers for lawful voy
sion "contraband of war" occurs twice in the without the concurrence of other nations." the exception in clause one of the charter party, there would be no finality, for it would bone. Ages to all parts of the world, open ports only,
declaration in the Treaty of Paris; that the Continuing, his Lordship said "let us see what whether the capture would or would not be cessary for the Crown in that event to wall at the same time expressly declaring that
expressions "Privateering" and "Blockade" was the foundation of the condemnation in the lawfully made, .,, made in accordance with further evidence. poris in America, Europe, Australia, and
occur each once; and that there is in that de- French courts. It is stated that by their international law; but to entitle the owners of
Mr. H. E. Pollack, C., then read an
a number Affies, and in the Amur district are excluded
claration no definition of the meaning of any of ordinance all ships are to be confiscated the Prometheus to the benefit of that exception of extracts from legal authorities dealing with from the operation of the chanter and also
those expressions. Why was there this omis. whensoever on board those ships shall be the risk apprehended must have been so direct motions of a similar character. interport trading in the Philippines." The
sion to define these expressions?
found a supercargo, merchant, commissary or and imminent as to render capturé almost cer The Chief Justice, in giving judgment, sald Was it not because they each had in the chief officer being an enemy, but I say they tain. The cases do not go beyond this, that the application must be refused, there being first clause alag contains the exception with
minds of the plenipotentiaries of the Powers a had no right by making such an ordinance to the Master of the Prometheus might have anno precedant cited that a Court of Appeal respect to "arrest and restraint of Princess, Külars, and People” which is commonly insert It therefore becomes necessary at the outsetto recognised meaning at the time when the treaty bind other nations," What was the ratio loaded as he did at Kobe had he had a reason.
should grant such leave. This case among ed in a charter party. I make reference at this determine the meaning of those words as used was signed? And because the expression decidendi in this case? The decision was able apprehension of his ship being captured others came before the Land Court, which was had he attempted to sail from Kobe with the established under the Ordinance 1900, with the stage, to this exception because an argument, in the charter party. It is the general rule of Contraband of War" no more needed defial. based on the ground that the Franch courts Based upon its presence in the charter party, construction of documents that words and ex. tion than the expressions "Blockade" or had, in accordance with a Franch ordinance goods on board There was, however, at the definite object of sottiling tiles to land in the was addressed to me by Mr. Slade in justifica pressions should be given their primary sense "Privateering" did. What then was the which was opposed to international law, decid. Time he unloaded and refused to carry provi New Territory, Under that Ordinance the Alan of the act of the Master in unloading the unless there be something in the context which meaning which it must fairly be assumeded that a ship was liable to be condemned siens no cause for such apprehensions on the Land Court had is allow or disallow & claim, hip at Kobe, with which i will deal later. The points out, that in the particular document in the Flenipotentiaries attached to the expres merely because she carried on board an officer part of the Master, Japan had at that time in this particular case, the claimants were re second clause of the charter party limits the which the words or expressions appear, suchsion "Contraband of War" as used by them whose nationality was that of the enemy. Such sacured a naval superiority which must have or presented by a solicitor. They knew of course. duration of the charter to six calendar months, words or expressions. must, in order to give in the Treaty of Paris? It seems to me then was the view expressed by Lord Kenyon should have freed the Master from any such what the Court before whom they were proceed. and concludes with the following typewritten effect to the immediate intention of the parties that the Plenipotentiaries had in their as to the value and affect of a French ord apprehension.
fag had the power to do. They knew it had the words : “this agreement not to be cancelled in using them, be given some other and peculiar minds the meaning which at that time at nance which, departing from the recognized There were at that time practically no Rus power, to allow or disallow a claim, and they the event of war being declared." I may say meaning and be understood in sense other tached to the expression "Contraband of custom of Estions, decreed that a ship sing ships available for making captures, and knew that if the Court allowed their claim, then say at once that the insertion of this provision than their primary sense.
War resulting from the decisions of the might be condemned merely because she none had as a fact ever been made on the trade they was required to report to the Governor,
route which the Master was directed to follow.
in order that a title might be issued. “The aw makes it in my opinion manifest that when this Now, bearing that rule in mind I proceed courts of law of the nations of Europe and carried an officer of the nationality of the
The case of the Nobel Explosive Company appellants had already had two opportunities charter party was entered into, both parties ez-, to determine what is the primary sense of the America; principally indeed the decisions in enemy. Applying the principle of that case to pected that there would be war between Ras expression "contraband of war, and to in the English Courts on cases arising during the the presest case, i say that the Russian de.. Jenkins and Company does not apply, for in of bringing further evidence, and they had not
la and Japan before the expiration of the quire whether there is anything in the charter Napoleonic War. What than is the result of clamation including provisions among the list that case there was, at the time that the Master taken advantage of them
ar charter by effluxion of time. There is nothing party to warrant me in setting aside the primary those decisions? What meaning has been of articles absolutely contraband and so depart refused to sail with the plaintiff's goods on their being seized inlany other clause bearing upon the case until meaning of that expression, and is attaching a thereby attached to the expression "Contrabanding from the recognised customs of nations had board, a serious danger theth by which the amount to be paid for peculiar meaning thereto, Reference was of War?". The result has been to attach to that no binding effect spop other nations, and con- and confiscated by the war ships of the bellir the use and bire" of the steamer is fixed atmade, in the course of the argument to some expression the following twofold meaning (1) sequently could not excuse the non-perform gerent enemy then lying,le and around the ...the rate of $6,750 per month payable half thing that had been said by the Master of the Absolute contraband of war-which includes ance of the contract under the charter pasty Port at which he landed such goods. He wa
n monthly in advance. With respect to this it Promiseur expressive of his dissatisfaction and everything useful for war only 1 (2. That bich between the Osaka Shopen, Kaiths and the therefore under ach conditions justified in land will be sufficient to remark la passing that this disapproval, when, on his arrival at Hongkong, is conditional contraband of war which la owners of the ts. Prometheus. It was coning the goods and is refusing to carry them.
TH the case just quoted the Master had a rest sumi is stated to be a moderate charge for the he found that his ship had been chartered to thecludes all things which though useful for both tended on behalf of the owner of the
se and alre of this steamer, and that the arbite Oaks Shosen Kaisha, and that he would be peace and war becoine contraband if destined Premalhaus that the term law as applied to sonable and well-founded bellef that the vessel rator has found as a fact that the rates af chart required to load rice, sugar, and other provi for the purposes of war, excluding from the this recognised system of principles and rules if she sailed with the plaintiffs goods on board sering bad enormously increased between the signs for Japanese portsj. but the Master had meaning of contraband of war such things as known as international law is an ipcxact ex would be stopped and the good confiscated, are useful for the purposes of peace only, pression, that there is, in other words, no such whereas in the present case the Mailer of the soth of February, when the charter party con nothing to do with the agreement to charter talking the clause was signed, and the 26th of the Prometheus. In that regard the agents, Provisions, consequently, come within the thing as International law that there can be Frometheus had no ground for entertaining any March hen the Master refused to load the Messrs. Sander Wieler & Co. represented the definition of conditional contraband only if no such law binding upon all nations inasmuch such belief, and as a matter of facit did not en cargo tendered by the charterer. Of the reowners, and as a fact the Master did not reach and when destined for the enemy's forces as there is no sanction for such law, that is to certain any such belief. The special case will mating chuses of the charter party the 37th Hongkong until seven days or so after the otherwise they are excluded from the defini say, that there is no means by which obedience now be remitted to the Arbitrator, who will only seems to beat upon the matters in disputa ship had bean chartered, Moreover, even had tion. That is in my opinion the true means to such law can be imposed upon any given guide himself in making his award by the between the charterers and the owners of the the views attributed to the Master been exing to be attached to the expression Copustion refuting obedience thereto. I do not answers which I have given to the questions
pressed by the agents, Sandary:Wieler & Co. | traband of War," "and" that be the "vento | "congur so that contention. In my opinion ■ I put by him to me.
to me his questions, three in number, as
Thirdly, whether in view of all the evidence brought forward, the Osaka Shosen Kaisha al- tempted to violate, or alter, the terms of the charter party as a whole, but particularly with reference to clause 37, by instructing the com- mander to load a cargo of food-stuffs and timber and to proceed to the ports named in their letter of 27th April, 1904?
In order to arrive at the true answers to the above questions the firstthing to be done is to determine what is the true interpretation of the charter party as a whole.
3
Both the learned king's counsel, Mr. Sharp, who appeared for the Osaka Shoten Kaisha, and Mr. Slade, who appeared for the owners of the ship Prometheus, are agreed that the charter party is to be read as a whole, and that effect should be given to the real intention of the parties, but so far as relates to what the inten. ition of the parties was when inserting the words contraband of war" in the 37th clause they hold completely divergent vizws,
(4) Blockades, in order to be binding, must be effective, that is to say maintained by a force sufficient really 10 prevent access to the coast of the enemy."
I draw special attention to the fact that the expression "contraband of war" is twice used in this declaration without being in any way fiened. his declaration was designed to give effect to the opinion of the plenipotentiaries expressed in the preamble, viz., that it was to the advantage of the civilised world to establish a uniform doctrine on the subject of marit time law in time of war, and with that objer in view to introduce certain "fixed principles."
contraband of war.
Mr. Justice Smith concurred, and remarked that there was no precedent to show that leave to bring farther evidence a second time could be granted an
The Chief Justice said the motion was dis missed with costs.
Mr. Slade asked that the costs might be made costs of the cause, but the Court refused to change the order made
VICEROY Hee Liang of Srechuen has telp graphically informed the Government that he will remit Tis. 500,000 to Paking dating this moon, in fulfilment of his guarantee to pay a part of the amount accrued from diference of the indemnity according to the gold faillard, and that the rest of the Tis 200,000 will be vast spin due time)