November 14, 1934.]
Russian Prize Court at Vladivostock so inter- preted the declaration in the case of the Arabia, į it would have been the duty of the Russian cruisers to seize and send to Vladivostock any ship found by them with foodstuffs for a Japanese port. The Court had to interpret the meaning of the Charter Party in accord- ance with the intention of the parties. He submitted that by the mere act of hiring a ship, apart from any special terms, a duty was imposed on the charterer-not on the ship- not to ship any goods by which the ship might be subjected to detention or forfeiture. It followed, necessarily, that it was the duty of the master not to take such goods on board. He would have to sign bills of lading under which the shipowners were liable to the shippers of the cargo, if the shipowners accepted cargo which would render the ship liable to detention. If the (aptain took on board such goods his conduce would be contributory to "Restraint of Princes." It was
therefore his duty to refuse such cargo.
His Lordship asked how Mr. Slade explained the clause saying that the Charter Party was not to be cancelled in the event of war being declared. Was not that an agreement to take risk? It seemed to him that such was an agree- ment to run the risk of retention by princes.
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Mr. Slade said that was not so. The Charter Party must be taken as a whole. The ship owners were only bound to carry all goods, whether war was declared or not, if they did not come under the heading of contraband.
His Lordship-Well, why mention war? Mr. Slade replied that it was to show that war was anticipated. It was an agreement between a Japanese charterer and a neutral ship-owner. The Charterer did not desire to conceal that war was approaching. The Charter Party was drawn up before the out- break of hostilities. -~-
Hon. E. H. Sharp-War was never declared. His Lordship-It broke out, which is the same thing.
Mr. Slade resuming his defence said that this was not an agreement to carry contraband. If the ship ran the risk of seizure by one of the belligerents, whether such seizure was legal or illegal, the ship ran the risk of Restraint of Princes."
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CHINA OVERLAND TRADE REPORT.
Mr. Slade-Yes, we never contracted to carry contraband and run all this risk, but said “If you pay us more we will do so.' Ship-owners are not sentimental. A ship is worth so much if you pay more we will run risk.
His Lordship-My view is that this clause
not to cancel the Charter Party in the event of war did not permit you to decline to carry cargo on the grond of “Restraint of Princes.
Mr. lade repeated his former argument. His Lordship-You say then If I have reason to fear Restraint of. Princes' I can
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Mr. Slade said that at the time. Russia had`a strong naval force, including many fast cruisers in the East. Russian warships and Prize Courts, would be governed by Kussian regulations. What did the ship-owner know about Interna tional Law? What was of more immediate importance to him was how to protect him- self against the Russians. It was customary for ship-owners to insure their ships. There was a usual clause in the policies, freeing the insurance companies from risk of capture. If they were to run the risk of seizure, the object of insurance would be avoided.
cancel when I like." Your argument, however: may be sound: the shipowner merely engages His Lordship-You mean to say that if the not to cancel in the event of war being declared. | ship had been captured the insurance would but refuses to carry contraband on the ground) be risked? that he would render the ship liable to seizure. Mr. Slade-Yes. What did they contract to carry?
Mr. Slade Cargo..
His Lordship-That is not contraband. If Russia were to declare that no neutral ship had got a right in Japanese ports, would that give you a right to go to Japanese ports? Is that what you say?
Mr. Blade-I do. It was made quite clear that the ship was to run no risk of any kind whatever. The question might arise as to how much risk a ship reasonably might run. In this case the ship was to run no risk.
His Lordship-What about the telegram from the ship-owners in Norway: they say to refuse rice and sugar, and "Try cancel."
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Mr. Slade said they might not have known the facts of the Charter Party when they sent that telegram. An explanation of this Try cancel telegram was that it was an answer to & wire from the Captain asking for instructions. Just before that time the Osaka Shosen Kaisha had asked tke Captain for a definition as to what was contraband of war.
His Lordship Why did they say "Try cancel"?
Mr. Slade replied that the owners not know- ing the full facts of the Charter Party wired to Try cancel." They were aware that there was a dispute regarding contraband, and thought that instructions "try cancel" might avoid litigation, into which as a matter of fact. they have been led. This telegram was dated 18th March. five weeks and three days after the signing of the Charter Party. It took 35 or 36 days for Я letter to go from Hongkong to Norway, and they did not know when the mail left. Another telegram was sent from the owners in Norway on the 26th March. It said to follow the agreements as laid down in the Charter Party, and refuse Mr. Slade said that one clause modified contraband, This telegram was sent-not like another. In the Charter Party it was agreed the former one-when the owners knew the facts that the ship should run no risks.
of the harter Party. They were quite satis- His Lordship -If he agreed to take bellige-fied, and simply said to refuse contraband. rents goods, whether he was carrying contraband or not, he was liable to detention by the other belligerent when carrying goods from one of the enemy's ports to another.
His Lordship said he was inclined to think the ship, under the circumstances, agreed to run the risk. The agreement was not to be cancelled if war was declared the ship must proceed with her cargo just the same. That is why the clause
was put in.
Mr. Slade Not to non-treaty ports: to open ports only. Read it, My Lord.
His Lordship Open ports of the enemy. What would the Russians care if the ports were open or not? They were to go from one to another of the enemy's ports.
Mr. Slade said that Russia was bound by the Declaration of Paris not to be capture neutral ships carrying Japanese goods on a neutral trade that is when they were not carrying contraband.
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His Lordship said Mr. Slade had to impress him on the point of open ports. It was not unlawful to run risk: it was only a question of £ s. d. They desired to withdraw from the Charter Party.
Mr. Slade-We have never wanted to draw out of the Charter Party
His Lordship-You refused to carry goods. Mr. Slade-We only refused to carry con- traband.
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His Lordship-Well, you must take some risk. You knew war was going to break out, and agreed not to break the Charter Party, though you chartered the ship to one of the belligerents.
Mr. Slade said that this was simply an agreement not to discontinue the Charter Party in the event of hostilities. It was agreed, though, that there was to be no risk: This clause was deliberately left in.
His Lordship Did you not say something about more money ?
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His Lordship-There are such fine points in this case that it would have been very much better if it had come before the Court in the
first instance.
Mr. Slade We wanted to, My Lord, but the other side would not do so.
Continuing Mr. Slade said that the Charter Party was never cancelled. The ship was. after her return to Hongkong, sent to Moji to load a cargo of coal for Hongkong; and was then sub-chartered to other people.
His Lordship turning to another point the circumstances the said that under ship must have reasonable apprehension of risk. Supposing that Russia had not a ship in reasonable these waters there would be no apprehension of restraint of princes. Une power may have strength enough to capture a neutral ship carrying what it called contraband, though the was not contraband according to the
cargo Law of Nations.
Mr. Slade-I say that Clause 37 was inserted to get rid of all questions as to the amount of risk. Suppose you hold rice and sugar as not contraband you hold that the Charterers had a right to ship these goods.
His Lordship-Ons follows the other. Mr. Slade-Yet the Captain would have signed the bills of lading of innocent shippers, giving the shippers power, in the event of the Fessel being captured, of coming down on the ship.
His Lordship-They could come down on the ship, though the charterers took the freight!
Mr. Slade-Yes,
His Lordship took a note of Mr. Slade's contention.
His Lordship-I do not think that at the time of signing the Charter Party it was in the minds of the parties that foodstuffs were con.
traband.
Mr. Slade-I will refer Your Lordship to & letter from the Charterets dated the 20th February, before the l'rometheus left Hongkong on her first, voyage. In this they asked the agents to discharge the captain because he objected to rice and sugar on the ground that they were contraband. This was only ten days after the signing of the Charter Party, and before the Russian Declaration_regarding con- traband.
Hoo. E. H. Sharp-And after the Insurance Companies had notified that they were contra-
band.
Mr. Slade said that there was no evidence of
that, and even if there was, inasmuch that it was in the minds of shipping insurance com- panies that Russia would put rice on the con- traband list, it was to be assumed that it was in the minds of the Charterers.
Hon. E. H. Sharp-Freights had risen because of war isks. We do not know that a special freight was not paid.
Mr Slade -The shipowners refused to run risk; the charter was nothing unusual. My Lord, would the Captain have been right not to object if rifles had been put on board?
1 is Lordship-No. I do not think 80. You say it was only right for them to
intended trade with articles not
for 2. warlike purpose, yet you give the right t› one belligerent to say that whatever they like to say is contraband of war. I put it if you once agree to take goods you have to take them, and before you can refuse to take them you must show them to be contraband according to the English way of thinking.
Mr. Slate-Take the meaning of the word contraband—
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His Lordship Yes, I know, contraband means against declaration, but that is not how we take it.
word: You must have a contract was made at Hongkong. You have, however, a very strong argument: the ship-owner may have intended to clear himself from carry- ing anything declared contraband.
Mr.
Slade The interpretation the Prize Court puts on International Law is Interna- tional Law for the time being. I submit that Your Lordship as an English Judge must follow the decision of the Russian Prize Court and it is known to Your Lordship what the interpretation of that court is.
The case was further adjourned.
Friday, 11th November,
IN ORIGINAL JURISDICTION.'.
BEFOE SIR H. SPENCER Berkeley
(Chief JustICE).
OSAKA SHOSEN KAISHA v. OWNERS OF
8.8. "PROMETHEUS. The hearing of this case was resumed. Mr. Slade-When we left off yesterday afternoon I was submitting to Your Lord- ship a point of International Law on the subject of contraband The true view to take of the definition of the word contraband is everything that is in fact contraband in the present war.
His Lordship-I was completely impressed by your argument yesterday, and find two constructions have been placed on Clause 37. is that the shipowner must be held to safeguard himself against carrying anything which would render the ship liable to detention.
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