File No. 300.115/9045
[Enclosure—Extract]
Judgment of Prize Court in the case of the
“Joseph W. Fordney” and three other
ships, printed in “Lloyd’s List,” June 10, 1916
. . . The last case concerns the goods laden upon the
Joseph W. Fordney
. They consisted of nearly 10 million lbs. of feed
and cake, and formed the whole of the vessel’s cargo. The cargo
was consigned by the Atlantic Transport Company, of New York, to
Mr. Klingener or his assigns at Malmö. The
freight was prepaid, and was not to be returned, cargo lost or
not lost. . . .
This case has all the common features of the three already
referred to, and I draw similar inferences as to the position of
Mr. Klingener and as to the ultimate
destination of the goods; and I condemn them as good and lawful
prize.
Before concluding this judgment, I must draw attention to a
misconception of the law which runs through the claimants’
cases, and which is made prominent in this last case. They seem
to think that it is sufficient for the consignors to show that
the legal property in the goods had not passed from them at the
time of the seizure. They appear to seek to apply the decision
in the Miramichi to their cases. But the
Miramichi was a case of ante bellum shipment. I pointed out in
the judgment that it would not apply to post
bellum shipments.
The shipment in each of the cases now before the Court was after
the war. Very different principles apply in the Prize Courts
when war has intervened. In such cases it is not only the vendor
and vendee who are affected; belligerent rights have come in.
The test is no longer whether according to the rules of
commercial law under the contract between the buyer and seller
the strict legal property has or has not been divested from the
one and vested in the other. [See the decision of Lord Mansfield
and the other Lords of Appeal in the Sally (1795) 3 Ch. Rob. 300 (note); and the Packet de Bilbao (2 Ch. Rob. 133).]
If the right of capture of goods shipped during war were made to
depend upon such questions as affect the passing of the legal
property under the Sale of Goods Act, it would dwindle to
vanishing point, because nothing would be easier than for
neutral vendors and consignors so to frame the contract that the
legal property in goods contracted to be sold to, and intended
to become ultimately the property of, the enemy should remain in
the vendors until actual delivery. In such cases the law of
Prize, which has regard to the rights of belligerents, is that
capture is regarded as delivery, and the goods on their way to
the enemy are regarded and treated as his property.
I may add that the claimants have not satisfied me that the legal
property in the strict legal sense remained vested in them in
either of the cases, even if the shipments had been ante-war
shipments. That would be enough to dispose of the claims. But in
each case I am fully satisfied that the goods—conditional
contraband—were on their way to be delivered to and for the
enemy Government through the nominal consignees, who acted
merely as intermediaries. . . .
