File No. 300.115/11231
Accordingly the president decided that large quantities of goods
purchased in Germany by American firms, and detained while being
shipped from Germany to the United States, were enemy property, as
well as of enemy origin, and he ordered their detention until the
conclusion of peace, with liberty to the Crown to apply for an order
for their sale, and the detention of the proceeds.
I understand that an effort will be made by some of the claimants to
appeal to the Privy Council.
[Enclosure—Extract]
Judgment of Prize Court in the case of the
“United States,” printed in “Lloyd’s List” December 18, 1916
The President, in giving judgment said: The Crown claims an order
for the detention or sale of certain goods seized on a voyage
from Copenhagen to the United States on the double ground (a)
that the goods were of enemy origin, and (b) that they were
enemy property.
[Page 495]
The application is made under Article IV, of the Reprisals Order
in Council of March 11, 1915.
It is disputed that the goods were of enemy origin. But the
claimants contended that they were neutral property, on the
ground that before seizure the property had passed from the
respective vendors in Germany to the respective purchasers in
America.
The goods were despatched by the parcel mail on the United States, a Danish vessel.
They were goods of multifarious kinds, and not such as would be
sent by mail in times of peace. It is well known in this Court
that since the war the mails have been used for the clandestine
transmission of contraband and other goods and merchandise from
foreign countries to Germany, and of goods and merchandise of
various kinds from Germany to foreign countries. . . .
The Reprisals Order in Council deals with maritime commerce
between belligerents (and of necessary consequence with that
commerce in relation to neutrals also) in a state of war.
As I have pointed out before, it does not add to the articles
which are confiscable and subject to condemnation as maritime
prize of war. In that respect it deals more tenderly and
generously with neutral commerce than was done under the old and
existing law of strict blockade. Under the latter, ships and
cargoes were condemned out and out as prize on breach or
attempted breach of blockade.
Under the Reprisals Order in Council the ships are released, and
the cargoes or their proceeds, if sale is ordered, are only
detained until the conclusion of peace.
But although there is this important distinction between the
results of the working of the Order, and of the strict
application of the law of blockade, it is obvious that the Order
deals with maritime commerce during war upon the analogy of the
law of prize. Indeed, it is under the international law of prize
that the Order, as one of Reprisal, derives its validity.
It is essential, therefore, to see how the question of the
passing of property was regarded by the International Law of
Prize.
Stating the rule quite shortly it is this: Where goods are sent
by sea, captors, rights cannot be defeated by a mere transfer of
legal ownership, by documents, without actual delivery of the
goods themselves; such rights cannot be defeated unless and
until the actual possession of the goods, as well as the
property in them, has been changed before the seizure.
Such transfers have been described as transfers in transitu. This does not mean transfers made only
while the goods are on the seas, between the shipment and the
delivery. I take some concrete cases. If goods of a contraband
nature had been bought by the enemy in America before shipment
at New York, in circumstances where the legal ownership would
remain in a neutral vendor according to the law in time of
peace, they could still be captured on the voyage to Germany to
the enemy purchaser, on the ground that they would be his on
delivery, on whatever vessel, neutral or otherwise, they might
be carried. So if goods of any kind so bought were shipped on an
enemy vessel, or on a British or Ally ship they would be
capturable. It would be no answer to say that the matter had
been so arranged that by Municipal Law the property would not
pass until the goods had safely reached the hands of the enemy.
The goods would be regarded in such cases as enemy property.
So in regard to goods shipped from the enemy country; if
purchased by neutrals during a state of war, the contract is
held invalid, and the property is deemed to continue as it was
at the time of shipment, until the actual delivery. (See
Pratt’s Story on
Prize Courts, page 64.)
Having regard to the doctrine of continuous voyage, it makes no
material difference that at the one end or the other there is a
transit by land. And just as goods from New York to Germany
intended to be delivered to the enemy are regarded as “enemy
property,” so goods from Germany to New York are also regarded
as “enemy property,” qua the rights of
the captors. . . .
