i
i
352
Mr. Slade-According to International Law contraband has a very limited meaning—that is what is laid down in books as the proper thing for nations to declare contraband-but it has to be taken into consideration what is the practice, and that must modify what is laid down by authorities. Usage is of the utmost importance. The actual fact is that in no less than four wars in the last hundredyears, provisions have been treated as contraband of war. The other nsions, of course, may protest, and if strong enough may force the belligerents to modify their declaration. Yet, between that time.
provisions are contraband of war. I will now continue to the second part of my contention If this ship trades to non-open ports she renders herself liable to confiscation, contrary to my friend's argument that she agreed to -take risk In the first place Mr. Arima never stated that by his instructions he understood that the ship was to be used on one of the Company's regular lines, probably between Japan and Formosa. In a letter from the Osaka Shosen Kaisha, to Messrs. Sander, Wieler & Co., nine days after the signing of the Charter Party, they communicated this for the first time.
·
His Lordship The Charterers were known to Messrs. Sander, Weiler & Co. as a firm of Japa- nese ship-owners; the ship was chartered by a Japanese firm. What would they naturally suppose that the Japanese Company chartered the ship for ?
Mr. Slade The ship might be going to America.
His Lordship-She might be going any where, but what would they suppose?
Hon. E. H. Sharp-America is excluded in the Charter Party.
Mr. Slade-Well, to ports in Asia-open ports only. I can give Your Lordship very strong reasons to show that the ship-owner did not know. In the first place the words of the Charter were open ports only."
His Lordship Is it a fact that this Company trades only in Japan?
Hon E. H. Sharp-Only Japan and Formosa Mr. Slade-Japan, Formosa, and elsewhere: they go to China.
|
!
THE HONGKONG WEEKLY PRESS AND
[November 14, 1904.
from Japan concerning the charter. Why did | forced to do so. In all the latest books it was said they not raise the question when the Charter Party was signed ?
before the ship left for Japan.
His Lordship-It was distinctly understood
interport trade the words would have been in
Mr. Slade If the Charter Party was for
serted.
His Lordship-I think so too.
non-
Mr. Slade-Messrs. Sander, Wieler and Co. replied to that letter that they took it treaty ports were open so long as the Japanese Government kept them open for foreign trade, That I submit is a very serious specific variation of the Charter Party. They had no right to agree to anything which would expose the ship to more than ordinary risks. The master of the ship is to all intents and purposes the agent of the ship-owner. If the agent agrees for the ship to enter non-treaty ports the Master must make an objection to doing so because the agent agrees to run more than or-linary risks. Without express authority from the ship-owner the agent cannot expose the ship to extraordinary risk. Authority is only given to i him for ordinary risk. It is for the other side to show that they had this authority.
His Lordship As a matter of fact, had they express authority?
The
Mr. Slade-No, my Lord, they had not, ship-owner required $3.25 extra per mensem if the ship was to be employed on the interport coast trade, carrying that which might be considered contraband of war-loading her with rice, etc. In an answer to a letter to
that effect the Osaka Shosen Kaisha said they would refer the matter to their head office.
Hon. E. H. Sharp-They said it was un-
reasonable.
His Lordship-They did not say it was unlawful, but, however, this is a fresh point.
Mr. Slade continuing said that the rule laid down in Japan was that no foreign ships were allowed to take part in the privileg ed interport trade without express per- mission. This permission given
Was neutral ships taking the place of Japanese ships employed as transports by the Japanese Government. Such neutral
identi. ships
to
1
that the doctrine was obsolete. · Besides, these" non-Treaty ports were open to an extent before the war, so they were not thrown open alto- gether. Mr. Hewett said that it was open to foreign vessols.
His Lordship-From time to time.
Hon. E. H. Sharp-More than that, My Lord.
His Lordship I think that before the war broke out it was customary in Japan to obtain permission to go to coast ports.
Hon. E. H. Sharp, continuing, said that Mr. Arima intended to charter the ship for this trade, and, as the subsequent correspondence showed, that was the agent's idea also. Messrs. Sander, Wieler & Co. must be taken to know something about what the Osaka Shosen Kaisha wanted ships for, when everyone knew war was- going to break out. It was not mentioned in the Charter Party that the ship was not to be engaged on this trade, while it was mentioned that interport Philippine Island trade was ex-
cluded. The Philippine interport trade was closed to neutrals, and if the parties under- Was that Japanese interport trade closed to neutrals it would have been inserted
stood
in the Charter Party-though, like the mention▪ of the Philippines, it would have been super- fluous. In reply to Mr. Slade's last question he held that this trade was not illegal, and did not render the ship liable to seizure.
His Lordship Has there been any parallel
case?
Mr. Slade-Yes, My Lord, the case of the German 8.8. Thea, sunk by the Russians.
His Lordship-What did the Prize Court decide in that case?
Mr. Slade That they were justified because the vessel was employed on the interport Japa- nese trade.
Hon. EH. Sharp-There is no evidence that she was not going to the forces.
with a cargo of fish manure then (Laughter):
Mr. Slade-She was going to the forces
was #
His Lordship-I should think a reasonable inference would be that the ship was required
Restraint any trade the Charterers might want her
for
for within the limits as laid down in the Charter.
Mr. Blade-Yes, My Lord, within the limits of the Charter Party--open ports. Open ports are clearly laid down. By Japanese Law, no other vessels except Japanese shall be allowed to trade to non-treaty Japanese ports, or to be put into trade between Japanese ports, except by special permission. The meaning of open ports is clearly defined.
His Lordship-If you have permission to trade to a non-open port, does that port become an open port?
Mr. Slade-No, My Lord.
His Lordship-An open port is a port not closed.
Mr. Slade There is a sharp distinction between open ports and non-Treaty ports.
Hon. E. H. Sharp-Treaty and non-Treaty, I maintain, is very different from open and
non-open.
Mr. Slade contended that the words were synonymous.
His Lordship-1 he only objection the master had was to carrying contraband.
the
Mr. Slade That was the only objection the master had, but the owners shortly afterwards telegraphed about going on coast trade. Nor was it in the minds of the Charterers at the time of signing the Charter Party The Charter Party was signed on the 10th February, and it was not till the 19th February that the Osaka Shosen Kaisha wrote a letter to Messrs. Sander, Wieler & Co. saying that they would be notified by the German Consul that Japan had opened non-treaty ports to foreign ships chartered by Japanese com- panies, and their company had permission to so employ steamers if they desired. If it had been an ordinary thing for foreign ships to go to Japanese ports, what was the use of sending such a notification? How was it that a notifica. tion had been sent to the German Consul of an alteration in Japanese Law? That letter was sent nine days after the signing of the Charter Party, as a consequence, I submit, of fresh instructions
fied themselves with the enemy's ships by entering into a trade closed to neutrals-and specially reserved to one of the belligerents so that one of the belligerents should turn their merchant ships into war-vessels.
His Lordship These ships were chartered by the Japanese Government as transports.
Mr. Slade-Yes. My Lord, a privileged trade of the enemy.
It has been suggested by my learned friend that it was a trade which might be carried on by licence for the time being. The trade was thrown more open, even by my friend's argument, at the outbreak of war. The Japa- nese made a new departure, and notified the German Consul.
Mr. Slade then quoted authority showing that a vessel sailing under the licence of a belligerent government should be treated as an enemy's vessel.
His Lordship-Does this mean licence as a war ressel?
Mr. Slade-No, My Lord. in any capacity. The fact of sending the ship on the interport trade was, even without contraband. sufficient for Russia to treat them as one of the enemy's ships.
His Lordship-They say you agreed to go there.
Hon. E. H. Sharp-We say they agreed to go to ports in fact open.
Mr. Slade said the agent had no anthority to put the ship into risk, and the ship-owner repudiated such a suggestion at the very earliest opportunity. In conclusion he asked: Could it be reasonable to suppose that the ship-owners agreed to go on a trade in which she rendered herself liable to capture, whether she carried contraband or not, when it was specifically stated that she was not to carry contraband?
Interrogated by His Lordship as to the question was this an unlawful trade?" Mr. Slade said the interport trade was not unlawful, but it rendered the ship liable to capture.
Mr. Sharp again addressed His Worship. He said that the doctrine of 1766, quoted by Mr Slade, was obsolete. It was invented for Eng- land's benefit by England during the war against France, in which France threw open closed ports to the Dutch because they were
+
Hon. E. H. Sharp observed that Mr. Slade said. the ship was to run no risk. He denied that, an argument supported by the fact that it
charter between a belligerent and neutral ship-owner. The clause Restraint of Princes formed an analogy. Every ship ran the risk of
of Princes,' when they were stopped at sea and searched- even the P. & O." (Laughter). It might be mentioned, in connection with what was in the minds of the signatories to the Charter Party, that they could not be taken to have known that Russia would declare food-stuffs contra- band. The purpose of the charter was to carry foodstuffs; Mr. Arima had said it was usual for these ships to carry rice, sugar, wine, timber and sundries. Could it be taken that they had a right to refuse the very purpose of the Charter Party?
His Lordship said the Charterer might pat on board anything that was not contraband. The question was whether the ship-owner was justified in refusing cargo having regard to Russia's declaration.
The case was adjourned.
Saturday, 12th November.
IN ORIGINAL JURISDICTION.
BEFORE SIR H, S. BERKELEY (CHIEF JUSTICE).
OSAKA SHOSEN KAISHA v. OWNERS OF 8.8.
** PROMETHEUS."
The Hon. E. H. Sharp, resuming his argu- ment for the Osaka Shosen Kaisha, submit ed that his friend Mr. Slade was wrong when he said that the agents did not understand that the ship was to be used for carrying provisions, as evidenced by a letter from Mr. Arima. In that letter, he would point out, Mr. Arima took exception to the opinions of the Captain, and said they had better get another Captain or they wou d lose a great portion of their pro. vision carrying trade, adding that none of the many other captains of the steamers chartered by the Company had raised any objection. It was clear, therefore, that Mr. Arima contem- plated the carriage of rice and sugar between Formoss and Japan. Therefore, the question they had to consider at the moment was the question of the intention of the two parties to
No comments yet.
Private notes are available after approval.