326
41
K
And
neutral ships. The observation just made with respect to the cases cited equally applies to this Order in Council. Do Messrs Pustau & Co. stand in the light of strict neutrals? I think it will be found that the case of the Atalanta, also reported in 6 Cr. Rob. 440, has a stronger application to the present circumstances, and which will presently be more fully noticed; but before doing so, and before enquiring into the course pursued by Messrs Pustau & Co., it may be proper to advert to some of the general principles which govern the administration of Prize Law. One of these general principles is, that if a native of one country resides and carries on trade in another for some time, his national character is that of his domicile, not of his birth—the Johanna Emilia, Spinks, Ecl. and Ad. Rep. 317-320. again in the same volume of reports in the case of the Abo, 347-349, it is said, "the rule of law is, that in time of war, the person takes "the national character of his residence." The same general principle will be found laid down in Pratt's "Story," 59, where various authorities of a somewhat earlier date are cited. Again, in the same work, p. 69, it is said to be a fundamental principle of Prize Law, that "all trade with the Enemy is prohibited to all persons, whether natives, naturalized citizens, or foreigners, domiciled in the country, during the time of their residence, under the penalty of confiscation"; and also, that "as a general principle, no citizen or subject can "be admitted to claim in a Prize Court where the transaction in which he is engaged is in violation of the municipal Law of his country"—ibid. 20, 21; although this rule is not to be applied to foreign neutral proprietors, ib. 52. Messrs Pustau & Co. have been domiciled and resident in the British Colony of Hongkong, carrying on trade as merchants, for upwards of eleven years. Let us now see whether their conduct has been that of innocent neutrals.
My own notion of neutrality is, that a party, to entitle himself to the privilege of a neutral so as to claim restitution of his cargo, should be totally free from all concert, connivance, or participation in, that transaction the illegality of which leads to the condemnation of the ship. How far do Messrs Pustau & Co. bring themselves within this principle? It appears that on the 9th July, they, through their Supercargo and through the Master of the Greta, entered into a Charterparty for the conveyance of Russian enemies to a Russian port to enable them to find their way home. It is this very Charterparty, to which Messrs Pustau & Co. are so instrumental, which converts the Greta from a state of neutrality into a state of hostility, after which they still continue their cargo on board. How then can it be said that their conduct has been that of innocent neutrals? It appears rather that they bring themselves within those general principles of law which have already been adverted to, and they have no right to come into this Court and claim restitution of their cargo.
And now let me call attention to the case already alluded to—the Atalanta. In that case, certain Despatches from the Governor of the Isle of France to the Minister of Marine at Paris were, during the time of war, taken on board the Bremen ship Atalanta, a neutral vessel, by the Master and one Supercargo, and afterwards found, on her capture, concealed in the possession of a second Supercargo. It is true that in that case the owners of the ship and cargo were the same, but Lord Stowell, then Sir William Scott, in his judgment expressly disclaims condemning the cargo upon this ground alone. Having already condemned the ship, he goes on to say, “Then comes "the other question, whether the penalty is not also to be extended farther to the cargo, being the property of the same proprietors—"not merely ob continentium delicti, but likewise, because the representatives of the owners of the cargo are directly involved in the knowledge and conduct of this guilty transaction ? On the circumstances of the present case I have to observe, that the offence is as much the "act of those who are the constituted agents of the cargo, as of the Master who is the agent of the ship. The general rule of law is, that where a party has been guilty of an interposition in the war, and is taken in delicto, he is not entitled to the aid of the Court to obtain "the restitution of any part of his property involved in the same transaction. It is then said that the term interposition in the war is a very general term, and not to be loosely applied. I am of opinion that this is an aggravated case of active interposition in the "service of the enemy, concerted and continued in fraud, and marked with every species of malignant conduct. In such a case I feel "myself bound, not only by the general rule 'ob continentiam delicti', but by the direct participation of guilt in the Agents of the cargo. Both ship and cargo were accordingly condemned. These observations, for the most part, appear to me directly applicable to the present case.
I have been requested by Mr Green, on behalf of Messrs Pustau & Co., that, even should I feel myself constrained to condemn both the ship and cargo, still that I will express it as my opinion, that the Greta left this port without any idea on the part of Messrs. Pustau & Co. of aiding the Enemies of Great Britain. I am perfectly willing so to do, being satisfied that, notwithstanding any irregularity in the Greta's papers or colors, up to the time of her arrival at Hakodadi, they acted with the best intentions and in perfect good faith—but I regret that, from the time of her arrival there, every step which was taken meets with my entire disapprobation; and I cannot help feeling that Her Majesty's Government had a right to expect a different line of conduct from gentlemen, who tell you upon their oaths, that for upwards of eleven years they have received the protection of the British Flag and enjoyed the blessings of the British Constitution.
I must therefore pronounce both Ship and Cargo subject to condemnation
True Copy,
W. F. BEVAN,
Acting Judge's Clerk.
(Signed,)
JOHN WALTER HULME, Judge.
..
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Page 331
No 172 of 1855.-
Inclosure in Despatch
326
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And
neutral ships. The observation just made with respect to the cases cited equally applies to this Order in Council. Do Messrs Pustau & Co. stand in the light of strict neutrals? I think it will be found that the case of the Atalanta, also reported in 6 Cr. Rob. 440, has a stronger application to the present circumstances, and which will presently be more fully noticed; but before doing so, and before enquiring into the course pursued by Messrs Pustau & Co., it may be proper to advert to some of the general principles which govern the adminis- tration of Prize Law. One of these general principles is, that if a native of one country resides and carries on trade in another for some
time, his national character is that of his domicile, not of his birth "--the Johanna Emilia, Spinks, Ecl. and Ad. Rep. 317-320. again in the same volume of reports in the case of the Abo, 347-349, it is said, "the rule of law is, that in time of war, the person takes "the national character of his residence." The same general principle will be found laid down in Pratt's "Story," 59, where various authorities of a somewhat earlier date are cited. Again, in the same work, p. 69, it is said to be a fundamental principle of Prize Law, that "all trade with the Enemy is prohibited to all persons, whether natives, naturalized citizens, or foreigners, domiciled in the country, during the time of their residence, under the penalty of confiscation"; and also, that "as a general principle, no citizen or subject can "be admitted to claim in a Prize Court where the transaction in which he is engaged is in violation of the municipal Law of his country" -ibid. 20, 21; although this rule is not to be applied to foreign neutral proprietors, ib. 52. Messrs Pustan & Co. have been domiciled and resident in the British Colony of Hongkong, carrying on trade as merchants, for upwards of eleven years. Let us now see whether their conduct has been that of innocent neutrals. My own notion of neutrality is, that a party, to entitle himself to the privilege of a neutral so as to claim restitution of his cargo, should be totally free from all concert, connivance, or participation in, that transaction the illegality of which leads to the condemnation of the ship. How far do Messrs Pustau & Co. bring themselves within this principle? It appears that on the 9th July, they, through their Supercargo aud through the Master of the Greta, entered into a Charterparty for the conveyance of Russian enemies to a Russian port to enable them to find their way home. It is this very Charterparty, to which Messrs Pustau & Co. are so instrumental, which converts the Greta from a state of neutrality into a state of hostility, after which they still continue their cargo on board. How then can it be said that their conduct has been that of innocent neutrals? It appears rather that they bring themselves within those general principles of law which have already been adverted to, and they have no right to come into this Court and claim restitution of their cargo.
And now let me call attention to the case already alluded to-the Atalanta. In that case, certain Despatches from the Governor of the Isle of France to the Minister of Marine at Paris were, during the time of war, taken on board the Bremen ship Atalanta, a neutral vessel, by the Master and one Supercargo, and afterwards found, on her capture, concealed in the possession of a second Supercargo. It is true that in that case the owners of the ship and cargo were the same, but Lord Stowell, then Sir William Scott, in his judgment expressly disclaims coudemning the cargo upon this ground alone. Having already condemned the ship, he goes on to say, “Then comes "the other question, whether the penalty is not also to be extended farther to the cargo, being the property of the same proprietors- "not merely ob continentium delicli, but likewise, because the representatives of the owners of the cargo are directly involved in the know- "ledge and conduct of this guilty transaction ? On the circumstances of the present case I have to observe, that the offence is as much the "act of those who are the constituted agents of the cargo, as of the Master who is the agent of the ship. The general rule of law is, that where a party has been guilty of an interposition in the war, and is taken in delicto, he is not entitled to the aid of the Court to obtain "the restitution of any part of his property involved in the same transaction. It is then said that the term inter position in the war is a very general term, and not to be loosely applied. I am of opinion that this is an aggravated case of active interposition in the "service of the enemy, concerted and continued in fraud, and marked with every species of malignant conduct. In such a case I feel "myself bound, not only by the general rule 'ob continentiam delicts, but by the direct participation of guilt in the Agents of the cargo. Both ship and cargo were accordingly condemned. These observations, for the most part, appear to me directly applicable to the present
case.
I have been requested by Mr Green, on behalf of Messrs Pustau & Co., that, even should I feel myself constrained to condemn both the ship and cargo, still that I will express it as my opinion, that the Greta left this port without any idea on the part of Messrs. Pustau & Co. of aiding the Enemies of Great Britain. I am perfectly willing so to do, being satisfied that, notwithstanding any irregularity in the Greta's papers or colors, up to the time of her arrival at Hakodadi, they acted with the best intentions and in perfect good faith- but I regret that, from the time of her arrival there, every step which was taken meets with my entire disapprobation; and I cannot help feeling that Her Majesty's Government had a right to expect a different line of conduct from gentlemen, who tell you upon their oaths, that for upwards of eleven years they have received the protection of the British Flag and enjoyed the blessings of the British Constitution.
I must therefore pronounce both Ship and Cargo subject to condemnation
True Copy,
W. F. BEVAN,
Acting Judge's Clerk.
(Signed,)
JOHN WALTER HULME, Judge.
..
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No 172 of 1855.-
Inclosure in Despatch
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