CO129-434 - Governor Sir May - 1916 [7-8] — Page 527

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Hon: C.S.,

The statutory declaration of Heinrich Rudolph Wahlen certainly tends to show that the property had passed to the H. R. Wahlen Gesellschaft before the war, and it would probably be impossible for the Crown to rebut or upset that evidence in any proceedings in Hongkong.

2.

Assuming that the property did so pass, the

goods do not seem to be liable to seizure as they were shipped before the war and the owners are now presumably of non-enemy character on account of the conquest by Great Britain of the territory where the owners have their trade domicile. I have not found any case which actually decides this point, but that the law is as suggested above seems probable from the following quotation from the judgment of Sir William Scott in the case of The Herstelder", reported in 1 C.Rob: 113, at page 116.

"The Danckebaar Africaan was a ship that sailed before *hostilities, but was not taken till after the surrender

of the Cape, under a capitulation for the protection . of property. In that case the ship sailed before

hostilities, and if the state of Holland had been in a "clear and decided character of emity towards Great "Britain. I should have held, that the party would be entitled to restitution, and to the benefit of the "principle that the national character cannot be alter-

ad in transitū”

-

"But it is to be remembered that this was not the state "of Holland at that time. Though we speak of the declara- "tion of hostilities as issuing September the 15th, it

must be kept in mind that the state of Holland was very "ambiguous for several months. Subsequent events have

retroactively determined, that the character of Holland "during the whole of that doubtful state of affairs, is to be considered as hostile; and that the property of Dutch subjects seized under it, is to be treated as "hostile".

France had taken possession of Holland in January 1795 and the Stadtholder had left the country.

3.

I have made two assumptions in the above opinion One is that the property passed to the H. R. Wahlen Gese-al- schaft before the war. On this point there seems to be no

evidence