726456-1855-GOVERNMENT-NOTIFICATION-NO-56 — Page 2

The Mongkong Government Gazette.

port of Hakodadi her place of destination, proceeded on the 21st June on a voyage to Simoda, also a Japanese port, and arrived there on the 4th July—on the 7th discharged some of her cargo, and on the 9th discharged the remainder of her cargo. This appears to be the ease from the Log Book, but from the evidence of Lieut. Thaulow the remainder of the cargo was on board the Greta when she left Sinoda for Ayen. While at Simoda, a Charterparty was signed for the carriage of two hundred and seventy Russian Officers and Seamen (who had been wrecked off that place in the Russiau Frigate Diana) from that port, and also another Japanese port named Hada, to Ayen, a Russian port, for the purpose of enabling the said Russians to work their way home through Siberia. One copy of this char- terparty was left with the Supercargo at Simoda,—the other is in the possession of Lieutenant Pouschkine, the Senior Officer of the Russians: it was made on the 9th July last between the Supercargo and the Master and two of the Russians, of whom Lieut. Pouschkins was one. The ship was to receive Fifteen Hundred Pounds and Two Thousand Dollars for the service; bills on bankers in London or Amsterdam were given for these amounts, and left at Simoda (with the Supercargo, I infer.)

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According to the evidence of the Master, Thaulow, all the Russian passengers were taken on board at Hada, in which he is confirmed by the evidence of the Seaman belonging to the Greta, while the First Mate states that twelve, and the Second Mate that ten, were taken The Greta sailed from Simoda on the 10th July under American colors, and on board at Simoda; but this is of no great importance. arrived at Hada on the 11th July, from which place she sailed on her voyage to Ayen on the 14th of that mouth, and was captured on the The American colors were at the stern when the Barraconta came alongside. 1st August by Her Majesty's Steam Sloop Barraćouta, The Master ordered these colors to be taken down and the Bremen colors to be hoisted. According to the Master's evidence and that of the Seaman, there were no colors ou board except the Bremen and American, while the First and Second Mate state that there was also At the time of the capture, all the Russian passengers were down below, as on board the color representing the German Coufederation.

The hatches were not closed,—a sail was thrown over them. the Master did not think that a British man-of-war would let them pass. It may be remarked, that the Log Book of the Greta is all but silent on the subject of taking Russians on board.

la looking at this evidence, it seems to me impossible to arrive at any other conclusion than that the Greta was at the time of her Indeed no attempt is capture a Transport in the service of the Enemy-that she was guilty of fraudulent concealment, and was sailing under false colors-and that she is conséquently, according to the course of Admiralty and the Law of Nations, subject to condemnation. made by Lieut. Thaulow, the Master, on behalf of the owner, to deny the Greta's liability in point of strict law to confiscation; but an appeal is made to the sympathies of the Court, and it is urged that "the shipwrecked Russian Officers and Seamen became distressed Mariners on the Coast of Japan, and as such, were to be looked upon, not as enemies who had lost their vessel in battle with the British “or French fleet, and who had taken refuge on shore to escape becoming prisoners of war; but were to be looked upon with sympathy as a "fallen foe whom we were not allowed to abandon, but to whom we were to lend a hand to help them back to their native hearths." While entering my judicial disclaimer against any such doctrine, (although individually deeply regretting the sufferings which the prisoners may have undergone, and lamenting, in common with all, the miseries which have arisen out of the present unfortunate but necessary war,) let me see where the sympathy of either the owner of the ship or cargo is to be discovered? and no where do I find the sympathetic feeling so strongly developed as in securing the sums of fifteen hundred pounds and two thousand dollars for the conveyance of these unfortunate men to Ayen.

I now proceed to the consideration of the question of the claim set up to the cargo on the part of Messrs Pustau & Co. It is urged by Mr Green as their Counsel, that, even suppòsing the ship to be condemned, still the cargo, as being the property of an innocent and d'skinatawant, would not be Bable to confiscation—and for this he cites the case of the Staalt Embden, 1 Cr. Rob. 30. He also cites the cases of the Maus and the Hope, 6 Or. Roð, 462 and 438 in notis, for the purpose of showing, that even where the owner of the ship and cargo is the same person, still, if he was ignorant of the illegal shipment by the master which reuders his ship subject to condemnation, To render these cases applicable, the innocence of Messrs Pustau & Co. must be His cargo (being unrepresented) would no; be liable. established. It is further urged, that the present question has been placed beyond discussion by Her Majesty's Declaration of the 28th March 1854, in which Her Majesty renounces all claims to the confiscation of neutral property found in Enemies' ships, and a fortiori in 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. And 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 Again, in the same work, p. 69, it is said to be a fundamental principle of Prize Law, authorities of a somewhat earlier date are cited. 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" Messrs Pustan & Co, have been domiciled Let us now see whether -ibid. 20, 21; although this rule is not to be applied to foreign neutral proprietors, ib. 52. and resident in the British Colony of Hongkong, carrying on trade as merchants, for upwards of eleven years. 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 How far do Messrs Pustau & Co. bring themselves within this principle? It illegality of which leads to the condemnation of the ship. 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 further to the cargo, being the property of the same proprietors "not merely,* ob continentiam delicti, 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 gencral 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' I am of opinion that this is an aggravated case of active interposition in the "is a very general term, and not to be loosely applied.

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

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I have been requested by Mr Green, on behalf of Messrs Pustau & Co., that, even should I feel myself constrained to condemn both"}]}"being"! 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 lakodadi, they seted 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 teving that Her Majesty's Government had a right to expect a different line of conduct from gentlemen, who tell you upon their caths, 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 pronounes both Ship and Cargo subject to condemnation,

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W. F. BRYAN, Acting Judge's Clerk,

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JOHN WALTER HULME, JKEN.

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