"iF ^^^ 3^ • u T-^^ Cornell University Library JX 5261.G78S7S (Reports of cases decided during the pres 3 1924 017 620 653 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 7620653 REPORTS OF CASES DECIDED DURING THE PEESENT WAR JN THE ADMIRALTY PRIZE COURT AND THE COURT OF APPEAL. ■«** PUBLISHED POR THE REGMRT OF THE HIGH 0OURT OE ADglRALTYj. AND EDITED M THOMA& SPiNKgi, D.C.L., OF DOCTORS COMMONS, ADVOCATE. . » . .()» ii O gO I i ^ i- e - PRINTED BI GEORGE E. EYRE AND WILLIAM SPOTTISWOODE, pamTBRS TO THE QCEEN's MOST EXCEttENT MAJESTT J PUBLISHED AT THE QUEEFS PRINTING OFFICE, 9, EAST HABPINO STREET, LONDON. PRIZE CASES.--FAHT 11. TABLE OF CONTENTS. ■*■■ Page Aina (The), Ni/strom. — Navy Agents. — Eemu- neration. — Pro opere et labore - - 242 AUne and Fanny {The), Hildebrandt. — Practice. — ^Further Proof. — Captors' Evidence. — Generally inadmissible - ., . 822 B. Baltica (The), Fyyehttom.— Transfer. — FroHi Father to Son. — Imminente bello. — Eules. — Continuing Interest. — Condemnation - 264 Benedict (The). — Transfer. — Father to Son. — Bona-fide. — Valid. — Domicile - - 314 C. Caroline (The), Kraft. — Prussian Vessel. — Fic- titious Transfer to Russian. — Probable Cause for Seizure. — Simple Eestitu;ion - 252 Ohriss)/.^ ( The), Moraiti. — Blockade. — Vessel out of her Course Further Proof. — De- clined. — Condemnaliou - - - 343 F. foriima ( The), Andemon. — Blockade. — Legal Destination in Ship-Papers.. — No Ground for Seizure. — Captors condemned in Costs and Damages - . ■ - 307 Francisha ( The), Mechehen. — Blockade. — Knowledge thereof — Notoriety. — Inference therefrom. — Legality of Notice. — Too ex- tensive. — Restitution.— (Privy Council) - 287 Pagf Johanna Maria ( 7 he'). — Breach of Blockade Egress. — Condemnation, — (Privy Council) 307 M. Maria (The), Petit— TSo Bill of Sale.— Master ignorant of Owner. — Further Proof neces- sary. — Plea and Proof. — Opened to Captors 32' N. Neptune (The), Keetley. — Russian Ship. — Ordei in Council. — Sold in British Port to British Merchant. — Sale illegal. — Itestored by Lords of Admiralty. — Claimant condemned in Costa - - - - . 28I' Nina (The), Stipanovich. — Claimant not sole Owner. — Suppression of Papers. — Prevari- cation of Master. — ^Further Proof refused - Ditto ditto (Privy Council) O. Otto andpiaf( 7'Ae).~Leaving blockaded Port. — Liable to Seizure. — Claim at variance with Ship-Papers — Further Proof neces- sary - . . , . 2,57' P. Panaja Drapaniotim ( The), Harzaliako. —Prac- tice — Affidavit and Claim. — Kesidence must be stated.— Practice asto further Proof ^i C A S E S DECIDED IN THE ADMIRALTY PRIZE COURT, AND THE COURT OF APPEAL. 1854. June 21. A vessel be- " FENIX," otherwise " PHCENIX," Silandee. i. HIS was the first prize cause in the present war. The cir- cumstances of the capture were as follows ; — longing to The " Fenix," otherwise " Phcenix," was a barque belonging j-Snd "sailed to Anton Bjomeborg, Isaac Carstrom, and Carl Martin, of fromHartie- Bjorneborg, in the Grand Duchy of Finland, In December hagen^wuifa"' 1853 she was in London, and had an advantageous charter- cargo of coals, party for Lisbon, but, owing to the unsettled state of affairs ^eredis-^ between England and Russia, she was ordered home to Bjorne- charged, for borg. The charterparty to Lisbon wasy.therefore, given up at British flee\ ^ some sacrifice ; and the London agent, in order, to some extent, prior to the to compensate the owners, directed the master to take a cargo ^^r -which of coals, and leave them at Copenhagen in passing, it being, ^°°\ P'^ce on at such time, impossible to enter Bjomeborg on account of March. She the ice. ^^ unable to The " Phoenix," thereforei left Gravesend for Hartlepool on borg immedi- the 3l8t December 1853; took on board a cargo of coals, and ately after her ' , °' . cargo -was dis- sailed from Hartlepool on the 15th February 1854 ; put into charged, by Copenhagen on the 20th of the same month, and delivered her [ge^^tuf Jn^ coals for the use of the English fleet. The discharge was com- the lotb of pleted on the 19th March, but at such time, the ice still Copenhagen, preventing her entering Bjomeborg, she was compelled to bound for that remain at Copenhagen. ' ' faTt!'and lis War was declared on the 29th of March, on which day also captured on an Order in Council (a) was published, " allowing Russian Held, she was merchant vessels, in any ports or places within her Majesty's w the°oSers dominions, until the 10th of May, six weieks from the date in Council. thereof, for loading their cargoes, and departing from such ports Statement. or places.'' This order appears to have been misunderstood, for the opinion prevailed at Copenhagen that Finland ships mighfr proceed to their own ports unmolested up to the 10th of («) Vide Appendix, p. iii. A PRIZE CASES. 1854. Statement, Argument, May. Accordingly, as soon as information arrived that the ice was broken up sufficiently to allow a vessel to enter Bjorneborg, the " Phoenix " prepared to sail, and the Russian consul, in his official capacity, sent fifty-seven sailors, the crews of vessels which had been sold, on board the " Phcenix," to be conveyed home to Bjorneboi"g. She sailed from Copenhagen on the 10th of April in ballast, and, it appears, passed the English fleet unmolested ; but upon the 12th she was captured, near Gothland, by her Majesty's ship " Tribune," and sent to London for condemnation. The master, mate, and an able seaman were examined upon the standing interrogatories (a), and the case now came on for hearing, upon their evidence and the ship's papers. A claim was made for the vessel by John Gabriel Alcenius, of St. Bennet's Place,' Gracechurch Street, London, ship agent, who made an affidavit " That he was duly authorized to claim the vessel on behalf of Anton Bjorneborg, Isaac Carstrom, and Carl Martin, respectively residing at Bjorneborg, in the Grand Duchy of Finland, the true, lawful, and sole owners and proprietors thereof at the time when the same was taken and seized by her Britannic Majesty's screw steam-frigate " Tribune," Carnegie, Esquire, commander, whilst in the prosecution of a voyage from Hartlepool, in the county of Durham, by way of Copenhagen, to Bjorneborg, and brought to the port of London ; that the claim thereunto annexed was a just and true claim ; and that he should be able to^^make due proof and specification." The Queen's Advocate (Sir J. D. Harding) and Dr. Jenner appeared for the captors ; Dr. Addams and Dr. Twiss for the claimants. The Queen^s Advocate took a preliminary objection to the form of the affidavit of claim. Though it might not be of any great importance in the present, it might be in future cases. Neither the affidavit nor the claim annexed stated any ground whatever upon which the claim was made. He certainly could not speak from any experience of his own, but he had availed himself of that of the learned Advocate pf the Admiralty (6), who in- formed him that when a claim was made by an enemy it was always necessary to set forth on what ground the claim was made, whether under a licence, under an Order in Council, or on what other ground. Unless such course were adopted, it would be impossible for the counsel for the Crown to know against what they had to contend. Dr. Addams contended it was quite unnecessary. There could be no doubt in the present case upon what ground the (a) Vide Appendix, p. xiii. (6) Dr. PhiUimore, THE "PHGENIX." claim was made; but, if the Court thoughf it necessary, another affidavit could be brought in. Per Curiam. In the last war the principle and practice was, that in the case of enemy claimants it was always necessary to state something to show that they had a locus standi. The same course must be followed in the present war ; but, in the present case, instead of having a further affidavit, setting forth the ground of claim, let us assume that it has been made, and proceed to the argument. The Queevls Advocate, having stated the history of the ship's proceedings, submitted that it was clear from the ship's papers and the evidence, that she was a Russian vessel, belonging to enemies ; that having been captured after the declaration of war she was clearly, by the Law of Nations, lawful prize, unless she was in any way exempted from the operation of that law. It would, perhaps, be contended that her voyage was continuous from Hartlepool to Bjorneborg ; if it were so that would not protect her ; but the evidence proves completion of voyage at Copenhagen. Her charterparty was for Copenhagen, and her cargo was destined for that place, and there discharged. From Copenhagen she sailed on a fresh voyage for Bjorneborg, after having received on board fifty-seven passengers. He could not conjecture on what ground, or under what Order in Council, the claim could be supported, until he had heard the counsel for the claimants, when he would reply. Dr. Jenner followed on the same side. Dr. Addams, contra. It does not much affect the question, whether the voyage was continuous or not ; but the tenor of the evidence on the interrogatories is, that it was a continuous voyage. The master was directed to take the vessel home to Finland, where her owners resided, by way of Copenhagen. She sails from Hartlepool and arrives at Copenhagen before war was declared. She was detained there until after the declaration of war, by the ice not permitting entrance into Bjorneborg. She sailed from Copenhagen on the 10th of April, and by the, true construction of the Order in Council of the 29th of March, she should have been protected in her voyage home until the 10th of May. The true construction of that order is the question for the consideration of the Court. That document must be taken in connection with the others issued by the same authority about the same time, and must be construed with the utmost liberality. The language of all the documents is so loose that no strict interpretation can fairly be put upon them. If this vessel is not protected by the strict letter of the Order in Council of the a2 PRIZE CASES. 1854. " , ' Argument. 29th of March, it is by its spirit. By its spirit it must be con- strued, otherwise this absurdity is the result — those Russian vessels which are in our ports, and therefore in our power, we are to let go ,• but those which are not, we are to search for, and capture as lawful prize. By the strict letter of the order, a vessel in Plymouth on the 29th of March, and sailing subse- quently, would be protected, while a vessel sailing from the same port on the 28th might be captured and brought back into the port as lawful prize on the 31st. Such an interpretation would make the Order in Council a mere trap for Russian merchant- vessels, for such a construction could never have been anticipated. From whatever port they sailed, they were entitled to protection until the 10th of May. Dr. Twiss followed on the same side. The Queen's Advocate, in reply. Liberality of construction cannot be carried to the length of considering vessels out ofhev Majesty's dominions as in her Majesty's dominions. The exemption specifies, " Russian merchant-vessels in any ports or places within her Majesty's dominions," and the vessel now claimed was at such time in Copenhagen, and cannot by any liberality of construction be brought within that exemption. Judgment. The circum- stances of the case. Two questions arise out of these facts : — 1st, Does the "Phoenix" come fairly ■within the meaning of the Order in Coun- cil, soas to be Dr. Lushington'. It is very probable that this may not be the only case under similar circumstances brought under the cognizance of this Court ; but whether it is the only case or not it is my duty, as it is the first brought under consideration, to state the grounds upon which my judgment will be founded. I will first address myself to the facts of the case. It is ad- mitted on both sides that this is a Russian vessel ; that she was lying in the port of London for the purpose of taking a cargo for Lisbon, when, in consequence of the unsettled state of aflairs, her destination was changed, and she sailed in December 1853 to Hartlepool, to take in a cargo of coals ; that in the middle of February she sailed from Hartlepool to Copenhagen. All these facts took place prior to the declaration of hostilities to which I must presently advert. She discharged her cargo at Copen- hagen about the middle of March, sailed from Copenhagen on the 10th of April, and was captured on the 12th on her voyage to the port of Bjorneborg, in Finland. These being the facts 5f the case, two questions appear to have arisen with respect to the Order in Council, to which of course reference must be made : first, whether the " Phoenix," comes fairly within the meaning- of that order ; and secondly, whether the voyage in which she was engaged was a continuous voyage or not. THE "PHOENIX." 5 Now the order for general reprisals having been issued on the 1854. 28th of March, and the declaration of war upon the day follow- exempted from ins:, it is quite clear that unless something has passed under the capture ? °' . ^ „ , „ PI 11 T. • 2nd. Was the authority of the Government to exempt any ot them, all Kussian voyage from vessels would be liable to detention on the high seas, and to con- S-^'j^^?""^ *° demnation in the Court of Admiralty. But it appears that her via Copen- Majesty's Government have thought it right to introduce certain tinuou'g"yoy°ge modifications of the belligerent rights which her Majesty is or not f entitled to exercise. These modifications are to be found in the War declared various Orders in Council, to which allusion has been made in therefore the argument.; _ _ X^fTpS^ I agree in thinking, that all these documents are to be con- lawful, unless strued fairly together— that if there be any doubt as to the emption*'can''be interpretation to be put upon one, it must be construed with shown. reference to others issued on the same subject, in order, if The different ., , ,. , . • r> 1 /-( , • documents possible, to discover the true intention or the (iovernment m emanating issuing it : but I cannot agree with the argument, that in docu- ^™™ ** Cro- , , ^ vemment must ments of this kind we should expect to find a statement of the be construed reasons which actuated the Government in the modification of together, so as to elucidate the belligerent rights to which it has seemed proper to resort, one another. It is not according to the custom of former times to set forth the I* ^s not usual facts and circumstances which induced the Sovereign to adopt sons in such measures of this description. Indeed, very great inconvenience documents. might arise from the adoption of such a course of proceeding. We must judge of the document by itself alone. Much of the argument in the present case has turned upon Documents that document which bears date the 29th of March last, and jn council re- which immediately succeeds an Order in Council for preventing 'axing the , . . severity of vessels clearing out for Russia, and ordering, as is customary belligerent in all wars, a general embargo or stoppage of enemies' vessels, psl^ts, are to , . . , T- no _ be construed Now, upon what principle am I to put a construction upon this liberally document? I am perfectly free to confess that I think it to be *^^*o^6^" I „ ^ . whose favour quite clear, that whenever the Government of Great Britain or they were of any other country by a public document in the nature of an '"^"^" Order in Council relaxes the severity of belligerent rights, it ought to be taken in favour of the party for whom it is intended, and that a liberal construction should be put upon it. If it were necessary to confirm my opinion by authority, I could resort without difficulty to that of Lord Stowell. .. However, it is perfectly clear, that that is the true- principle. When dis- Butinterpre- cussion arises with regard to the intention of those from whom confinedTo the the document emanates, we can only look for that intention to 'words of the the words in which they express it. The principle being, to not travel he- put upon the words the most extensive interpretation which is y°°^'t- consistent with them, I take it for granted there must be words 1864. Judgment. Examination of the Order in Council, dated the 29th of March. The Queen of England has supreme power, with the advice of her Council, to relax her bel- ligerent rights, and so far to make law for the Prize Courts. The order spe- cifies Russian -vessels in her Majesty's domi- nions at the date of such order, and can- not be ex- tended to ves- sels which had left prior to that date. PRIZE CASES. in the document sufficient to justify that interpretation. I am not at liberty to travel out of the document. If the words of the document are capable of two constructions, then I am clearly of opinion that the one most favourable to the belligerent party in whose favour the document is issued ought to be adopted ; but the Court must bear in mind, that its province is not jus dare, but jus dicere ; and I must again refer to the principle which I have often enunciated in this Court verbis plane expressis omnino standum est. I must now refer to the document in question ; it is an Order in Council for exempting from capture enemies' vessels under special circumstances ; it is in these words, " Her Majesty being compelled to declare war against his Imperial Majesty the Emperor of all the Eussias, and being desirous to lessen as much as possible the evils thereof;" — much might be said upon the precise meaning of these words, whether it was intended to lessen the evils suffered by British subjects engaged in com^ merce with Russia, or by the subjects of Russia ; at all events, it appears to me that it would not be correct to take the words as only operating in favour of the latter, though no doubt one part of the document is intended to confer great favour upon them — "is pleased to order that Russian merchant-vessels in any ports or places within her Majesty's dominions " — we must recollect that we are speaking of a matter over which the Queen of England is supreme ; with the advice of her constitutional advisers she may make any relaxations she pleases of the rights of war against belligerents ; and whatever she may declare in relaxation of her own belligerent rights, becomes the law of these Courts,— -"shall be allowed until the 10th day of May next, for loading their cargoes, and departing from such port or places." Now, the first division I find is, that this order applies to vessels in certain ports and places within her Majesty's dominions. Then I am to consider whether I can by any latitude of construction apply this to a vessel which, on the 29th of March, was lying at Copenhagen. The only ground upon which that could be contended for would be either that the words had no real meaning, and were perfectly superfluous, or that it might be said that having been once in her Majesty's dominions she was to be considered in the same position, with respeet to the protection, as a vessel remaining there on the 29th of March. What would be the effect of either of these constructions ? Take the first : it would have the effect of protecting the whole of the Russian merchant navy wherever they had sailed from all over the world at any period anterior to the 29th of March ; and the THE "PHOENIX." argument, which was addressed to the Court, went the length of saying that I might put that construction on the words. Take the other construction, and see whether, by any latitude of interpretation, it can come within the meaning of the words. If I were to consider that a vessel which sailed from Hartlepool in February, and proceeded to Copenhagen, was included, then any Russian vessel that had taken a cargo out of Great Britain, or, rather, out of any of the dominions of her Majesty, at any time prior to the Order in Council, would be entitled to pro- tection. I cannot possibly give this effect to the words. I confess I cannot get over the limitation of the time by reference to the words of this or of any other Order in Council. But besides this limitation of the time of six weeks from the 4.^"!'^^'^.^P^" 29th of March, there is another, viz.. the loading their cargoes, loading of their There is a limitation of sis weeks for loading their cargoes, and ^^'"go^s. not the least reference to a cargo taken on board in February. It goes on to say, " and that such Russian merchant-vessels," — what is the meaning of " such " ? It means Russian vessels which, having been in her Majesty's dominions on the 29th of March, had loaded their cargoes and departed prior to the 10th of May ; that is the meaning of the word " such " — it is a word of limitation and qualification ; and it is these vessels which shall be permitted to continue their voyage. The Order in Council goes on to say, "And it is hereby further '^^ ?^**6r part ordered by her Majesty, &c., that any Russian merchant-vessel shows that the which, prior to the date of this order, shall have sailed from "^^1°'^ ^^ , TBfBTQTlCB to tflS any foreign port, bound for any port or place in her Majesty's trade of her dominions, shall be permitted to enter such port or place, and to ^'V.'^^i'^ ^<>- lit tflZUJtSm discharge her cargo, and afterwards forthwith depart without molestation; and that any such vessel, if met at sea by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded." What is the meaning of this ? It clearly has reference to trade with her Majesty's dominions. The vessel, to be entitled to protection, must have sailed from some foreign port bound for a port in her Majesty's dominions. It is there the trade is to be brought. If I were to put the construction on this Order in Council which has been prayed, and apply it to all Russian vessels which sailed with cargoes antecedent to the 29th of March, must not the order have been expressed in totally different words ? Then, again, with reference to the further order (a), dated the This view is 7th of April, respecting the East Indies and the colonies, it is referemfe to^ of precisely the same character. It allows Russian vessels which ^^^ °'''i^^ °^ may be in any of the Indian or colonial ports, at the time of April respect- / s T7-J i J- • ™S Russian (a) Vide Appendi-Y, p. iv. PRIZE CASES. 1864. vessels lying in or bound for ports in the East Indian or colonial pos- sessions of her Majesty. Not necessary to consider ■whether the yoyage was continuous or not Vessel con- demned. the pubUcation of the order there, thirty days for taklflg their cargoes on board and departing ; and it further allows Russian vessels, which had sailed from any foreign port prior to the declaration of war, bound for any port or place in any of her Majesty's Indian territories, or foreign or colonial possessions, to enter such port or place, and , to discharge her cargo, and forthwith to depart without molestation. For all these reasons, looking at the first head, the Court can have no hesitation in pronouncing this vessel liable to con- demnation. With regard to the second point, whether this was a con- tinuous voyage or not, I do not think the Court -is called upon to decide it ; I shall, therefore,' give no opinion upon it, but leave it unprejudiced. I am bound to condemn this vessel, as being enemy's pro- perty, and as not being within those exceptions which her Majesty has been pleased to make. June 21. A claim for one third of the proceeds of the ship founded on a mortgage deed, on hehEjf of a citizen of JLuheck resident at Helsingfors, in Finland, as Consul of the King of the Netherlands, disallowed. A neutral, re- sident as mer- chant and con- sul in the enemy's country, loses his neutral character during such 'residence. Foreigners cannot set up a mortgage deed on the ship against cap- tors, though, under certain circumstances, the lien of British mer chants may be allowed. THE « AINA," Nysteom. IHIS was a Russian vessel captured by her Majesty's steam- ship "Alban," on the 21st of April, in the Cattegat, sailing under Danish colours, on a voyage from Lisbon to Elsinore. A claim was made by Messrs. Sieveking, of Sise Lane, London, as the agents and on behalf of " Carl Frederick De- gener, a citizen of the Free Hanse Town of Lubeck, and Consul of his Majesty the King of the Netherlands, at Helsingfors, in Finland, the true, lawful, and sole mortgagee of one third part or share of the above-named vessel." In the affidavit of Mr. Sieveking, accompanying the claim, it was stated, that " by a certain instrument, bearing date the 2nd day of January 1854 Eric Nils Sundman, the lawful owner of one third part of the said ship, mortgaged his said one third part thereof to the said C. F. Degener, as a security for repayment of 7,200 silver roubles, lent by him to Eric Nils Sundman as therein men- tioned ; that at the time of the capture of the said ship, as he verily believed, no part of the said mortgage debt had been paid, but that the whole tljereof was due and outstanding and unsatisfied ; that the said C. F. Degener was, at the time of the said capture and now is, a citizen of the Free Hanse Town of Lubeck, and thai no person being a subject or subjects of Russia, nor their factors or agents, nor any other enemies of the Crown of Great Britain, had at the time of the said capture THE "AINA." or now have, directly or indirectly, any right, title, or interest in the said mortgage debt, or any part thereof." The case came on for hearing on the evicjence upon the standing interrogatories and this affidavit. The QueerCs Advocate, for the captor. The evidence leaves no doubt as to the ship being enemy's property, and no witness seems to know anything of this mort- gage. There is nothing but the affidavit of Mr. Sieveking. That ' is a singular one. It states that the claimant is residing in the enemy's country, and does not say he is not a Russian subject. He is clearly adhering to the enemy, and, therefore, cannot sustain this claim. But if there were no objection to the claimant, the claim could not be sustained. Captors take without reference to such lien, supposing this mortgage was perfectly regular and duly executed, of which not a syllable appears in the evidence or the ship's papers. Dr. Deane, on the same side. It appears that the claimant was residing in the enemy's country for the purposes of trade, and though bom in a country now neutral, he has lost his neutral character. His being consul for the Netherlands does not protect him. In the " In- dian Chief" (a), Lord Stowell said, it was a point fully esta- blished in these Courts, that the character of consul does not protect that of merchant united in the same person. Dr. Addams, for the claimant. It is objected that there is no evidence of this mortgage, and that we have withheld informa- tion we might have given. That was not the practice of the Court. At the present stage we have no right to give evidence; we can only state what we can prove, if allowed further proof. We can prove the due execution of this mortgage deed, and on that we claim one third of the proceeds of this ship. The prin- ciple adopted by the Court respecting these liens is laid down by Lord Stowell, in the " Belvidere " (b) ; it rejects the claim on secret liens, but admits them where the claimant has some specific security. Here the ' claimant is in possession of such specific security, and is entitled to the third part of this vessel. Dr. Twiss, on the same side. The Court may have discouraged secret liens, but there are many cases where bond fide claims of this nature have been admitted.. [Per Curiam. Were not all those cases where the claimants were British subjects, and the vessel had been seized in a British port? Can you show me any case at all similar to the present where the claim has been 1854. Statement, Argument. (a) 3 C. Rob. 27. (b) ] Dods. 356. 10 PRIZE CASES. allowed?] The principle of those cases may be extended. Lord Stoiuell regarded bottomree-bonds "with favour : " Con- stantia Harlessmn.''^ (a) A mortgage may be put at least on an equal footing. The Queen's Advocate, in reply. No attempt has been made to answer the objection that the claimant does not state that he is not an enemy. He must know whether he is a E-ussian subject or not, and he has suppressed the information. This is no case for further proof. The question of the lien seems disposed of by the judgment of Lord Stowell, in the " Marianna.'" (5) [Dr. Addams. The remarks of the Judge in that case were directed against secret hens.] Two ques- tions: — 1st. The na- tional character of the claimant? 2nd. The nature of the claim? A neutral con- tinuing to re- side in the enemy's country during war loses neu- tral privileges. Dr. Lushington. Two questions have arisen with respect to the present claim : first, as to the national character of the claimant, whether he is to be considered an enemy or a neutral ; and, secondly, whether supposing him to be neutral, he would be entitled to come to this Court, and claim one third of his ship by virtue of an alleged mortgage executed prior to the declaration of hostilities. Now, with reference to the first question, it is stated that " he is a citizen of the Free Hanse Town of Lubeck, and Consul of his Majesty the King of the Netherlands at Hel- singfors in Finland." Upon this I can put but one construc- tion, that he is resident in Finland, and carrying on his business there. I take it to be a point beyond controversy, that where a neutralj after the commencement of war, continues to reside in the enemy's country for the purposes of trade, he is considered as adhering to the enemy, and as disqualified for claiming as a neutral altogether. (a) Edw. 234. (6) C C. Rob. 25. Lord Stowell says, " This ship appears to have been originally an American vessel, sold to a Spanish merchant at Buenos Ayres, and seized on a voyage to this country, documented as belonging to a Spanish merchant, and sailing under the flag and pass of Spain. A claim is given on behalf of the former American proprietor, in virtue of a lien which he is said to have retained on the property for the pay- ment of the purchase money; but such an interest cannot, I conceive, be deemed sufficient to support a claim of property in a Court of Prize. Captors are supposed to lay hands on the gross tangible property, on which there may be many just claims outstanding between other parties, which can have no opera- tion as to them. If such a rule did not exist, it would be quite impos- sible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most credible documents, declaring the property to belong to the enemy, would only serve to mislead them if such documents were liable to be overruled by liens which could not in any manner come to their know- ledge. It would be equally impos- sible for the Court which has to de- cide upon the question of property to admit such considerations." THE "AINA." 11 But, with regard to the claim on the mortgage, I asked ^^''^^ whether there was any case where such a claim had been allowed Judgment. to any but British merchants, and counsel were unable to There is no furnish me with any. The case of the " Belvidere " (a) was of claim of lien quite a different character. That was an American vessel which ™ behalf of . . aliens has been was seized m the river Thames under an embargo which pre- allowed ceded the declaration of hostilities between Great Britain and '^s^"^' =^P'°''^' the United States. A claim was made by some British mer- circumstances, chants for advances made by them for the use of the ship, and ^nch a claim n 11 1 1 • 1 1 1 • 1 • 1 1 "^"^ behalf of it was alleged, that the ship had been put into their hands as a British mer- security for the debt so contracted. In that case there was chants may be ,,.. .1 11- 11 allowed. a bare claim without any evidence ; the claim was not allowed, and it is only on certain words which fell from Lord Stowell, that any argument can be founded in support of the present claim. Alluding to certain cases where the claim of lien had been allowed, he says, " They had either a positive lien upon the ship, or were in possession of a bottomree-bond, or some specific security ;" but it so happens that, on referring to the case, we find the distinction to which I alluded; for Lord Stowell there says, " It was thought by the Court and by the Government also, that it would be a harsh measure to make British merchants sustain the loss of money so expended." (b) But it is a very different question whether lenity should be shown to British merchants when the captured vessel has been lying in a British port, where they have had transactions in the way of business with it ; and whether, as in cases of this kind, the Court should allow an alien to put in a claim to defeat the right of the captors. If I am to do it in the present case, in- The allowance numerable questions would arise, and the Court might be called o^ such a claim . . 1- T ^ 1 would lead to upon to inquire into the validity of the mortgage, and be com- innumerable pelled to determine that validity, not by the law of England, 'l'*^'^'^*^^^; but by the law of the country where it was executed. I accede with regarrto to the argument of Dr. Addams, that in the first instance, they clainis is, in the would only state the fact of the mortgage without entering into to state what any particulars or proof. That would be done if further proof '^^ ^^ proved, J . , , J -r, , . Ill . not to enter were aamitted. Urn. having no doubt whatever m my own mind upon the proof. that the case fails on both grounds, viz. the national character of the claimant and the nature of the claim, I cannot admit further proof. The vessel must be condemned. («) 1 Dods. 356. (S) 1 Dods. 358. 12 PEIZE CASES. 1854. The Court cannot restore property to an enemy master without the consent of the captors. THE "AINA," Nystrom. JJr. add am S moved the Court to decree the restoration to the master of two casks of red wine, and three smaller casks of white wine, together of the value of about 13Z., which he had purchased at Lisbon on his own private adventure. Dr. LusHiNGTON. No doubt the Court has power, and has continued to exercise it, of restoring property to neutral masters, but I have no authority to restore to an enemy master except by consent of the captors. The Queen's Advocate. We have no objection. The Court. "Well, then, it may be given up ; but I wish it to be understood that I have no authority, as far as I can discover, to restore to an enemy master without the consent of the crown. June 29 & 30. A vessel built in Hanover in 1853, saUei in ballast to Riga, with a crew of Hanoverians. She then sailed, under Russian colours, to Havre, thence to Newcastle, thence to Lisbon. There she took in a cargo, and sailed for London on the 4th of April, under Hano- verian colours. Shortly after her arrival in the London Docks she was seized by a Custom House officer. She was claimed on the ground, that while lying at New- castle she had been, under a power of attor- ney given ty the owner to the master, sold, and trans- ferred to an Hanoverian. THE "JOHANNA EMILIE," otherwise "EMILIA," Ontjes. X HIS schooner was seized in the London Docks early in May last by Mr. Cox, Acting Landing Surveyor of the Cus- toms, who had received information that, though sailing under Hanoverian colours, she was really a Russian vessel. ■ The master, mate, and cook were examined on the standing interrogatories, and a claim was given in by Theodor Schlutow, of Mincing Lane, London, who made an aflSdavit " that he was authorized to make the claim on behalf of Georg Schwers, of Leer, in the kingdom of Hanover, merchant and shipowner, a subject of the King of Hanover, sole owner and proprietor of the said schooner at the time of her seizure in the London Docks." The facts of the case, as stated in the evidence, were these : — The schooner was built last year at Leer, in the kingdom of Hanover, and sailed thence on the 20th of October, entirely manned with Hanoverians. She first sailed to Riga in ballast, thence to Havre, and on the 3rd of January to Newcastle, where she took in a cargo of coals for Lisbon, where she ar- rived on the 1 6th of February ; and having delivered her cargo, took in another for London. She sailed from Lisbon on the 4th of April, and arrived in the London Docks on the 1st of May. A few days afterwards she was seized. The master stated that for some reason or other, which he could not set forth, the schooner, from first leaving Leer until her arrival at THE "JOHANNA EMHilE." 13 Lisbon, was navigated under the Russian flag ; that while at IS54. Newcastle, he received a power of attorney from Mr. Rucker, Further proof her then owner, the Hanoverian Consul General at Riga, au- ^1}°'"!^'^* , 1 • ■ 1 ■ n 1 • f. 1 • 1 1 11 ^^^ legal con- thorizing nim to sell her, m consequeijce or which he proceeded sequences of to Leer, and transferred her to Mr. Schwers, the present destruction or ' r spoliation oi claimant ; that on completing the transfer, he returned to New- papers depend castle, and proceeded with her to Lisbon, where he received Jlrt uD^°the instructions from Mr. Schwers to give up the Russian papers circumstances and colours, which he did, to the Russian consul ; after which she sailed under Hanoverian colours and papers. The purchase money was stated to have been 8,000 dollars, which were re- ceived by a notary at Leer, and remitted to Mr. Rucker. The Queen^s Advocate, and The Admiralty A dvocate, for the Argument. Crown. The evidence shows the vessel to have been a Russian, not an Hanoverian. The alleged transfer from Mr. Rucker to Mr. Schwers was a sham sale, to defeat our belligerent rights. No money passed at the time of the alleged sale, and after that time the vessel sailed from Newcastle to Lisbon under Russian colours without any Hanoverian colours on board, and in the same trade as before. The "Omnibus." (a) There has been a distinct spoliation of papers by the master on the outward voyage to Lisbon, at Lisbon, and on the home- ward voyage from Lisbon to London. That is a sufficient ground for condemnation, or at least a bar to restitution with- out further proof. The " Hunter " (b), " Two Brothers " (c), " Rising Sun " (d), " Folly." (e) Dr. Addams and Dr. Twiss, for the claimant. The seizure of this vessel was made in violation of the Orders in Council. Revenue officers have no right whatever to seize vessels and proceed against them as prizes. This schooner was built in Hanover, belonged to an Hanoverian subject, not a Russian. The transfer was a bond Jide transaction between one Hanoverian and another, previous to a declaration of war. There is no law to prevent a neutral from purchasing a ship from an enemy. As to there being no entry of the sale in the log-book, that cannot affect the sale; there is a regular bill of sale transferring the vessel according to the forms used in Hanover. There has been no spoliation of papers to affect this ship. When it is alleged to have taken place, the master could not have known that war had been declared ; it was not therefore a spoliation in the proper sense of the term. There was no ground {a) 6 C. Rob. 71. {d) 2 C. Rob. 106. {b) I Dods. 486. (e) Ibid. 366. (c) 1 C. Rob. 133. 14 PRIZE CASES. 1854. Argument. Judgment. It is perfectly legal for any of her Ma- jesty's subjects, whether com- missioned or not, to seize an enemy's ship ; but it does not become the prize of the seizor. Of late years it has not been usual in war to seize on land any property belonging to subjects of the enemy. whatever for the seizure, and the Court must therefore, not only restore the vessel, but condemn the seizor in costs. The Queen's Advocate and Admiralty Advocate, in reply. It is objected that the Custom-house officers, having no com- mission, had no right to seize this vessel; and that this Court has no jurisdiction to try such a case. But in "La Rosine" (a), seizure was made by an officer in the Fife Dragoons. It is common for captures to be made by non-commissioned persons. The capture is equally good, but it belongs to the Queen in her office of Admiralty : " The Rebeckah." (b) Dr. Lushington. I will address myself in the first in- stance, to the observations which have been made on behalf of the claimant with regard to the course of proceeding which has been adopted on the present occasion ; and, perhaps, I ought to take some little blame to myself for having elicited some of those observations in consequence of what had dropped from me in reference to the embargo which is placed on Russian ves- sels, — vessels bearing the Russian flag at the time they entered these ports. It had no reference to the case of vessels seized under other colours, but which subsequently turned out to be Russian. With regard to an enemy's property coming to any part of the kingdom, or being found there, being seizable, I con- fess I am astonished that a doubt could exist on the subject. I apprehend the law has been this, that it is competent for any person to take possession of such property, unless it had any protection by licence, or by some declaration emanating by the authority of the Crown, and to assist the Crown to proceed against it to adjudication. There are many instances in which a cap- ture has been made in port by non-commissioned captors, and the usual form has been for the proceedings to be conducted under the authority of the Proctor for the Admiralty, and con- demnation has passed to her Majesty in her office of Admiralty. If the property was on land, according to the ancient law, it was also seizable : and certainly during the American war there were not wanting instances in which such property was seized and condemned by law, — not by the authority of this Court, but of another. That rigour was afterwards relaxed. I believe no such instance has occurred from the time of the American war to the present day — no instance in which property inland was subject to search or seizure, but no doubt it would be competent to the authority of the Crown if it thought fit. The Queen's Advocate. Recently, during the present war, ships on land have been seized, I believe. . (o) 2 C. Rob. 373. (6) 1 C. Rob. 227. THE "JOHANNA EMILIE." 15 The Court. That was under peculiar circumstances. ^^^'^■ The Queen's Advocate. Not in this Court, but by inquisition judgment, in rem. The Coukt. But that was property belonging to the Em- peror of Russia, and not to a subject. The munitions of war fall under different rules. I am not aware that it has pleased her Majesty to take measures to seize property which might be lying in a merchant's hands in the city of London or elsewhere. I believe that the proceedings to which you allude are of a different character. I cannot entertain a doubt that these proceedings have been duly instituted, and they have been sanctioned by those who advise her Majesty in her office of Admiralty, as well as by her Majesty's Advocate. Then the only question, or rather the great question which The question remains for me to decide is, whether the claim for the ship ought ''' ^^°'i'"^ ^^^ . ' _ fa vessel be con- to DC admitted, whether further proof is necessary, or whether demned, or it ought to be condemned. Now, the facts of this case are some- proof'lf wo-^'' what peculiar. The fact of the vessel having been seized while perty be lying in the London Docks does to some extent account for her not having the usual papers on board, because it is customary stances of the for them, while the ship is lying in port, to be in the hands of ''^^^• the consul acting for the state to which the ship alleges itself to belong. Therefore I am not surprised myself that no further papers have been found than those attached to the affidavit of Mr. Cox, the seizing officer. There are papers to which I will presently advert, but these are not the papers of primary im- portance in this case. The general features of the case are as follows : — This vessel was built in the kingdom of Hanover in 1853 ; her master throughout the whole period was an Hano- verian, and so were the whole of the crew, and, as appears from certain parts of Ms evidence, the present claimant is the individual who, to a certain extent, had the direction of her commercial transactions. The claim on the present occasion is entirely founded on her transfer, and it is ludicrous to contend that the property of the ship was not, immediately after her building, in Mr. Rucker, who was resident at Riga, because the claim is founded on the ship having been bought of Mr. Rucker ; therefore, so far as the Prize Court is concerned, that must be taken to be an admitted fact. She was the pro- perty of Mr. Rucker, and she sailed under Russian colours from the time she was built up to the period of sailing from the port of Lisbon. Now, Mr. Rucker is a gentleman who, according to the if a native of evidence, is an Hanoverian subject, acting as the Hanoverian resides and Consul, resident at Riga, a Russian port. He has been domi- carries on 16 PRIZE CASES. 1854. trade in another for some time, his national cha- racter is that of his domicile, not of his birth. Is there suffi- cient proof of a valid sale and transfer of this vessel ? The sale pro- bable under the circum- stances, but suspicious. Such sale is undoubtedly legal. The evidence as to the sale is deficient. ciled there for many years, and must therefore, in consequence of his domicile, in all that relates to his national character be taken to be a Russian, not an Hanoverian. There is no prin- ciple, I apprehend, so well laid down, — no principle so generally followed as this, that whatever country a gentleman may belong to, if he is resident in and carries on trade for a period of time in another country, he must be taken, for the purposes of trade, to belong to that other country, and not to his original domicile. With regard to the possibility of there being a locus penitenticB, that argument might have been addressed to the Court, supposing the claim had been on behalf of Mr. Kucker, but it can have no bearing when the claim is on behalf of another person. What I have to see, therefore, is, whether there is sufficient proof of a valid transfer from the Russian owner of the ship to the present claimant, who is an Hanoverian subject. That proof may be wholly insufficient, or it may be sufficient, coupled with other evidence, to call on the Court for the admission of further proof, or it may be so mixed up with transactions re- flecting on the bona fides of the proceeding, that the Court may be called upon to condemn the vessel. Looking at the state of public affiiirs at the latter end of 185.3 and the beginning of 1854, it is perfectly consistent with probability that every person possessed of a Russian vessel would be desirous of sell- ing it, though at a considerable sacrifice ; and I have no doubt that many Russian vessels have been sold, or attempted to be sold, during that period. I say, such a sale is probable, but is also suspicious; it is suspicious for the obvious reason that a sale made under these circumstances, — particularly to a person in the situation of the present claimant, — is undoubtedly questionable, because it is well known that there is a mode of carrying on trade without being the actual owner of the vessel, namely, by transferring her to a pretended purchaser. Cer- tainly, when a transaction of this kind is done under pressure, there always exists a certain degree of suspicion that it is not bond fide. With regard to the legality of the sale, assuming it to be bona fide, it is not denied that it is competent to neu- trals to purchase the property of enemies to another country, whether consisting of ships or anything else ; they have a per- fect right to do so, and no belligerent right can override it. The present inquiry, therefore, is limited to whether there has been a bond fide transfer or not. Looking at this case on legal principles, I must consider what is the evidence which has been given on deposition, and also what is to be found in the ship's papers ; both those THE "JOHANNA EMILIE." attached to Mi\ Cox's affidavit and those annexed to the depositions^ and subsequently brought in by Mr. Currey, tlie Examiner on the present occasion. With regard to the facts of the case, the evidence of the master is by far the most Important, and I must advert to that somewhat In detail. The account which, upon the third interrogatory, the master gives is, that " The schooner sailed on her voyage from Leer on the 20th of October 1853, under Russian colours," — if I under- stand him rightly, this is the commencement of the only voyage he undertook — " Why she did so, is a thing belonging to the owners. I never knew, or asked to know. She had no other colours then on board." In my judgment, not the least sus- picion arises from this evidence — none whatever. It was in October 1853, that these colours were hoisted, and undoubtedly Russian colours could not then have been hoisted to interfere with the rights of England and France. Russian colours might be used for the purpose of taking advantage of sailing into Russian ports, where Russian flags were entitled to enter ; but, supposing that was the case, — supposing they were used for the purpose of practising fraud on Russian ports, that is a matter of which this Court can take no cognizance whatever, for there is no maxim better laid down than that the Court of Prize never takes cognizance of any practices to which ships may resort to obtain advantages in other states. Then, assuming it to be true, it Is consistent with probability that Russian colours were used for the purpose stated, and it does not in any degree derogate from the good faith of the present transaction. I must confess I was astonished at the argument of counsel on that point, for I cannot see how using Russian colours in Oc- tober 1853, could possibly have any effect on our belligerent rights at the present time. With regard to the subsequent change of colours, the facts of the case appear to have been these : that the master, when lying in the port of Newcastle, received a letter, according to his statement, from Mr. Rucker, in which was enclosed, as stated In answer to the 11th inter- rogatory, a power of attorney to sell the vessel. Of course, up to this time she had sailed under Russian colours, and his account is this : " When I was In Newcastle in January last, I received a power of attorney to sell the said ship from the said Mr. Rucker, referred to in my 8th answer. This power was sent from Riga, where Mr. Rucker lives, to my house at Leer, and was sent on thence to me at Newcastle by my wife. The said Mr. Rucker also sent me a letter to Newcastle desiring me to sell the schooner to whomsoever. Mr. Rucker is the Hano- verian consul," and so on. He says, " I believe Mr. Rucker is B 18 PRIZE CASES. ^. ''^ • . a Hanoverian subject. I have known him personally for ten Jmlyment. years, and he has been consul-general as aforesaid all that time, and I know he is a German. I was thunderstruck to receive the said power, for I was always under the impression, up to that time, that the schooner belonged to the said George Schwers," i. e., to the present claimant. Now, this has been open to a great deal of observation, and, at first I confess, I was myself struck with this part of his evidence ; but, upon consideration, my surprise has ceased. It appears, from another part of his evidence, that he was appointed to the command of the schooner in 1853, by Mr. Schwers, and that he corre- sponded with this gentleman chiefly, though occasionally with Mr. Eucker; tlierefore I am not at all surprised that lie laboured under the Impression that, though sailing under Russian colours, the property was In reality Mr. Schwers'. I may observe, that It Is a matter at which no one ought to be much surprised, because It is perfectly notorious that the mer- chants of Great Britain have repeatedly, at various times, been owners of foreign vessels sailing under foreign flags, — a pri^i- lege of which they would be very sorry to be deprived, — a privilege which, though it may subject them to difBculty in case of war, they are entitled to exercise, except so far as the rights of war may Interfere with It. He then goes on to say, " Mr. Eucker's name appeared on the Russian sea-pass," — now he is accounting for this, — " which I then had (and of which I shall depose hereafter), but I thought that was only a pretext." He was under the impression, not an vxnnatural one, that it was for pretence that the name of Mr. Rucker was inserted in the sea- pass. Then It appears, that tipon receiving this power of attorney, he goes over immediately to Hanover for the purpose of actino- upon It; and he says that, by virtue of the said power, he transferred the schooner to Mr. Schwers. It appears that he was there on the 22nd of January, that Is the date of the sale and ho came back to Newcastle, having accomplished his voyage with as mucii expedition as he could, and thence sailed to Lisbon on the 28th. Now, with regard to the power of attorney under which he acted, no doubt it Is not bindino- in the same manner In which such a document would be framed in England. It begins by appointing him master, he havino- stated that he derived his appointment before from the present claimant; It then requires him to keep an account, and to recnniponse himpolf for all the services he might perform ; but the clear gist of the whole is, that It fully empowers him to sell the ship, and receive the purchase money. Accordingly, this THE "JOHANNA EMILIE." bill of sale is executed, and it fairly states that the vessel was at that tune voyaging under Russian colours, and lying in the harbour of Newcastle-on-Tyne, with all her appurtenances. That appears a fact in favour of the present claimant ; there was no concealment of the circumstance, — none whatever, — at the time the sale took place. The exhibition of this document, supposing it to be shown to the captors, would undoubtedly have given information with regard to the proceedings of the vessel herself. Now, in section 4. of the bill of sale is the following important statement : " The purchase money for the sold ship, with her appurtenances, is fixed at the sum of 8,000 rix-doUara, which have already been carried into account between the contracting parties before the signing of these presents." Here I must say this is a very unsatisfactory mode of effecting Payment by a sale, though I do not mean to say it is unusual ; I do not p„ro'haS mean to say that It was not effectual, but the mode of payment money to an by merely carrying the purchase money to an account, which not viewed of course is hidden from the view of any Court having to inves- favourably by the IPrize tigate the transaction, produces in a matter of this kind a court, considerable degree of doubt. The effect on my mind of this mode of paying the purchase money is not favourable to the proceeding with regard to the transfer of the ship. The bill of sale bears date on the 23d of January, and there has been a great deal of conflict as to the master sailing from Newcastle itnder Kussian colours after this date ; and it does appear to me to be a fact requiring explanation why, after the transfer of this vessel on the 23rd of January, Hanoverian colours were not hoisted, and the Russian colours put on one side ; why the vessel should not have sailed from the port of Newcastle under Hanoverian colours, having then become Hanoverian. I do not know that I have a satisfactory account of it, except in this way, by supposing that a certain time must elapse before it was possible for the master to acquire Hanove- rian colours and papers, namely, the sea-pass, &c.; and, there- fore, he was compelled, for the present, to continue his Russian colours. He does continue the Russian colours till he proceeds from the port of Lisbon. An observation was made in argument with respect to the paper No. 2., which is the account of the master respecting the payment made to the Russian consul at Newcastle. I see little in that, inasmuch as the master stated that when they give up the Russian papers, they make a payment, as well as on receiving them. I see nothing of importance in that ; besides, at that time the vessel continued under Russian colours. b2 20 PRIZE CASES. " Spoliation of papers" has not been accu- rately defined t the destruction of papers varies with the cir- cumstances Now, as to the sea-pass. I presume all the Russian papers were on board at the tune ; but the sea-pass is a very remark- able document. It bears date the 29th of November 1853, and it is not to come into force till the 4th of February 1854, and is to last till 1855. No explanation of this is given in the evidence. Undoubtedly,' so it stands. Assuming it to be, as it was argued on behalf of the captor, that the application was made on the 29th of November 1853, it would be a circum- stance tending very strongly to impeach the integrity of all these proceedings, because the power of attorney is not dated till the 14th of December. But presuming this pass to have been utterly blank, and afterwards filled up — of the probability of which I say nothing — then the matter would be capable of some further explanation ; for it would appear the pass was given to operate on the ship from a given time, namely, I presume, from about the time she would arrive at Aurich. It stands thus : the captain is bound to produce this sea-pass at every foreign port where a royal Hanoverian consul or vice- consul is appointed. Then it seems to be exhibited at Lisbon on the 3rd of April, and in London on the 29th of April, upon his return. It had been issued at Hanover on the 29th of November 1853, and was delivered at Aurich on the 4th of February 1854 — I apprehend, by the officer, whose business and duty it was to have the care of matters of that kind — to come into force at that period. There are certainly circum- stances attending this part of the transaction which are not altogether satisfactory on the face, of the papers. I am not aware that there are any other papers to which it is necessary to advert. Upon the vessel arriving at Lisbon, I think it is of very little importance whether the papers were laid before the consul on one day or the other. Then on the return voyage the master sailed under Hanoverian colours ; I apprehend for this reason, — he sailed then, and not before, because he was not in possession of the sea-pass, and not in possession of the right to use Hanoverian colours at all. But several objections have been taken to the evidence in sup- port of this claim. It has been said that the master is entirely discredited by various circumstances ; and the fact principally relied upon is the circumstance of his having denied that there was any spoliation of papers. Now, in truth and verity, there was a spoliation of papers. I must say a word as to the spolia- tion of papers generally before I address myself to this fact. I do not know that there is to be found in any of Lord StoioeWs judgments any direct definition of the word " spoliation." I am of opinion that the mere destruction of papers is not, under sometimes not. THE "JOHANNA EMILIE." 21 all circumstances, to be considered a spoliation ; I say under all 1854. circumstances, because the principle might be carried to a very ,' "7"^ 1 n IT 1 T • 1 1 -1 •(• • 1 • "ncler which absurd length, i apprehend it might be said, it at any tune during they are de- a long voyage the master destroyed papers that had no relevancy ^troyed; o ./ o J I c J amountmg to it, relating to a former voyage, the matter would not be put sometimes to in issue. To say that was a spoliation of papers, would be ^jcaiiy^eaUcd going the length of saying that nothing in the nature even of a " spoliation," private letter was to be destroyed after the vessel had left her port. I am not, however, disposed to relax the practical effect of the rules laid down by Lord Stotoell, because they are con- sistent with good sense, and with justice to all parties ; but they must not be pressed beyond his true intention with refer- ence to all the facts of the case, because there is not one of the cases cited to me yesterday, when I came to examine them, which I have done with a great deal of care, in which I do not find that, to form an accurate judgment of the(n, you must be acquainted with the whole facts of the case. To pick out a single sentence, would give no accurate idea of Lord StowelVs opinion on the rules which he intended to prescribe to himself in matters of that kind. The case of the " Hunter " (a) was a case of a very peculiar The case of kind. There the mate was caught in the act of spoliation ^as peculiar after the voyage was begun. Neither the master nor the super- i" i's circum- stances. cargo were produced, but they had been allowed by mutual consent to quit the vessel and go away, so that the best evidence, either for the captor or the claimant, was wholly wanting. But notwithstanding the fact of this spoliation of papers — and a grave spoliation it was, no doubt — further proof had been allowed in that case ; and the question which was there dis- cussed was, whether still further proof should be allowed, the further proof being insufficient. The spoliation of papers clearly appeared on the face of the depositions, and yet further proof was allowed under these circumstances; therefore it cannot be contended that the spoliation of papers uniformly and always shuts out a right to further proof That proposition is negatived by the facts of this case, to which I have now adverted. That was a case under peculiar circumstances; I find, upon looking at my note-book, that it was appealed, and afterwards compromised. The " Two Brothers" {b) is another case which has been The "Two cited. That has but a very slight bearing on the question of a very slight spoliation at all ; because, on looking at the case, it will be seen hearing on the that Lord Stoioell thus expresses himself: he says that he (a) 1 Doila 480, (6) 1 C, Rob. 131, 22 PEIZE CASES. The doctrine in tlie "Rising Sun" is, that spoliation does not inure to condemnation; but, with other suspicious cir- cumstances, may shut the door against further proof. In considering the question of spoliation of papers, the time when they "were destroyed is of the greatest importance. The doctrine derived from the "Polly" is, that where there has been spoliation, restitution can- not take jilace without further proof. decided it on the ground that the claimant did not appear to have any interest in the question. To be sure, that was quite a sufficient ground, without resorting to Avhat would be the effect of the spoliation of papers, Now, it is true, in that case the fact of destroying papers is commented upon by Lord Stowell, and he states the effect on his mind ; but it does not appear how the spoliation took place, so as to form any direct guide to my judgment. It is stated that the master burnt some papers before the capture — when, how long before, or Avhat, there is no information. But I need not rely on that case, or advert to it more, because it is quite clear that it did not turn on the spoliation of papers, but on a defect of proof on the part of the claimant. In the " Rising Sun " (a) Lord Stowell lays down the doctrine that spoliation does not inure to condemnation ; with other suspicious circumstances it shuts the door against further proof To that doctrine I entirely assent ; where there has been spoliation, in some cases we may allow further proof, in other cases which you cannot describe, if the circumstances are full of strong suspicion, then, to use his own expression, the door is shut against further proof. In that case the spoliation was strong indeed, because the papers were destroyed on the appear- ance of the chasing vessel. Now, let me say a word on this, as to the time at which the papers are destroyed. I pray that my meaning may not be understood beyond the words I use. I hold time to be of great importance. If papers are destroyed when the capturing vessel is in sight, or there is a chance of capture, it is the strongest proof that these papers contain some matter which would inure to condemnation ; so it is if they are destroyed at the time of capture, and if they are destroyed clandestinely after capture ; but if the papers are destroyed a long time antecedently, before there is any probability that they were destroyed for fraudulent purposes, and there is no evidence that it was for fraudulent purposes, then, though there is spoliation, and though, no doubt, the inference of law is against the act during war, yet the case is of a less stringent nature. The case of the " Polhf was also cited (i) ; that is a very important case. There it is said that the spoliation makes a case for further proof ; not that the spoliation of papers is a reason why no further proof should be granted, but it makes a case for further proof. (fl) 2 C. Rob. 104. (i)i2C. Rob, 361. THE "JOHANNA EMILIE." The Queen's Advocate. It cannot be released without further 18oi. Judgment. proof. The Coukt. Yes; it cannot be released without further proof. The Queen's Advocate. Though the reason is clear. The Court. That is the doctrine laid down there, and the doctrine is perfectly true. So far as appears, the spoliation In that case was at the time of capture or afterwards, but in that case the property was restored, as you see at the end of the " Pollj/ " ; so that spoliation, on that occasion, did not extend to iiaure to condemnation. The Queen's Advocate. Upon further proof. Dr. Twiss. Lord Stoivell says it is impossible for the Court to relax the rule; where there has been suppression of papers there must be further proof. The Court. He uses the word "suppression"; these are the words I am using. Now, to come to the fact of the suppression of papers in this With regard , , . AT ■ 1 '° *"^ suppres- case, ana see to what extent it goes. An observation was made sion in this by Dr. Addams which induced me immediately to send for the ''^^^ '^'^'J^'i'^^ standing interrogatories, and the l7th is in these words: does not neces- "WJiat papers, charterparties, bills of lading, invoices, letters, htJjJto^e^ or other writings were on board the ship at the time she took guilty of per- her departure from the last clearing port, before she was taken ''"'^" as prize ? Were any, and, if yea, which of them burned, torn, or thrown overboard ? " I apprehend Dr. Addams Avas right in his observation thus far ; what may have taken place on a pre- vious voyage does not directly come within the purport of that interrogatory. I in no degree blame the Examiner for taking The Examiner down the evidence, for it is better that the Examiner should taking down^ take it down, and that it should be expunged, than that it answers which should be suppressed, and the Court know nothing about it. I diately within apprehend, strictly speaking, that interrogatory is intended to ^"^ ?''°P'^ "^ apply to the destruction of papers after the last clearing port, tory, it being the effect of which would be here that it would exclude that courtlhouid^ part of the evidence given by the mate as to the destruction of subsequently papers upon the voyage from Newcastle to Lisbon. The cook t^a^„™|\JJo, swears positively to the destruction of certain papers after the getber igno- departure from Lisbon, and upon the way on the voyage home. I must first see what is said by the mate. He states that the papers were destroyed on the passage from Nwoastle, and were papers obtained from Riga. I leave that out of consideration. He states the nature of these papers ; and then lie goes on and says, " I also saw the captain burn some papers, I do not know what, whilst -we were rant of it. 24 • PKIZE CASES. 185-4. lying at Lisbon ;'' that would run very nearly, I should say, y^idg^t. within the line, but what lollows, it would be safer, if I were not to consider it as evidence, because it does not appear to relate to the same transaction.. The cook says, in answer to the 17tli interrogatory, "I know notliing whatever respecting any of the ship's papers, for I never saw any of them to read them. On one occasion during our last voyage from Lisbon to London, the captain brought to me, when I was in my cooking place on the deck, a handful of papers, and directed me to burn them, which I did in my fire, being alone at the time. "What they Avere, or what were their contents, or whether they were written or printed, I cannot say, for I did not read or Jock at them." Now, this is positive evidence, in ray judgment, as to the destruction of some papers on this voyage ; and though I am of opinion that the destruction of papers antecedent to a known declaration of war does not operate with the same force and effect that- it operates during the time of war, yet, at the same time, I think that it is of very The destruction considerable importance. The distinction I take is this : I do ccdeSTo waHs ^°* think that the destruction of papers antecedent to war not visited with draws iipon it the same penal consequences which it does cons^equejfees'' during war ; but I think it gives rise to very strong suspicion, as during war, which suspicion must be removed, or it will be fatal to the rise to sus- case. There are cases of destruction of papers, which in them- picion. selves draw immediate penal consequences, and call upon the Court for immediate condemnation. The captain, on the 17th interrogatory, says, " There were no papers or documents relating to the said schooner or cargo inany way burned, torn, thrown overboard, destroyed, altered, cancelled, concealed, or attempted to \)q concealed, either during her last or previous voyage, or at any time whatever." Notwithstand. \ conccive that with regard to the fact, I must relv unon ing the denial i.i r. , inii .'1 of the captain, the evidence 01 the cook, and that there were papers destroyed ; the'evfdencro'f ^^^ whether it follows from the fact being so, that this the cook, that captain has wilfully perjured himself, is another and a very destroyldT^ different consideration, for we know not what the nature of thougii per- these papers was ; and the answer is in these words : " No papers papers ma^^^ or documents relating to the said schooner or cargo were in any have had no way burned, torn, thrown overboard, or destroyed." It may be, schooner. — fo^ 1* 13 a conjecture which I will not much rely upon,— it may be, that the papers which were so destroyed were papers which had no reference to the schooner or cargo at all, and so far the captain may be relieved from the charge of having sworn falsely; and yet at the same time the Court must deal with the fact as THE "JOHANNA EMILIE." 25 a fact. With regavd to its operation in this case, I am not under tlie necessity, from any consequences that will follow, of going the length of saying that the Master has been wilfully perjured. Then this case, in my iudgment, stands thus : there has been I" ''"^ '^^^^ tliere lias been what the law terms tlie spoliation of i)apers, and in addition to a spoliation of tliat, I am not satisfied on two points, — I am not satisfied as P^pci's; and . . '^ . the circum- to the payment for the ship, and I am not satisfied exactly as to stances of the the manner in which the sea-pass was obtained. It appears to gg^^^^g l^i^ me, under these circumstances, that it is a case for further not satisfactory. proof. I do not think the spoliation of these papers connected J' '^ ^ '^^^ ^'i^ with circumstances of such grave suspicion as would justify me in condemnation. I think the party is entitled to the benefit of further proof; I shall, therefore, admit further proof Her Majesty's Advocate asked if I would direct evidence to be taken by plea and proof, and open the case to the captors. That is most untTsual ; so unusual, that in the course of my It is very recollection I hardly remember its being done. I would rather "hiproof "to Ae refer to the memory of the learned Advocate for the Admiralty, captors by and ask if he remembers that there were cases by plea and and proof, proof open to the captors ? Dr; Phillimore. No, Sir. The Court. I cannot charge my memory with more than one or two. There is the case of the " Magnus." (a) The effect of opening the case to further proof on the part of the claimants is not to open it to the captors. All I shall do is, to require Stringent proof further proof, and to state of what that must, independently of "ature of "thif ''^ other things, consist, I must be satisfied that the sum given for transaction -will the vessel was an adequate amount under all the circumstances ; ^ ieq"«"e . I must be satisfied that that money was hand Jide paid; I must have all the correspondence produced which passed between the master and the gentleman resident at Kiga ; and I must have evidence from the claimant himself of all the facts and circum- stances within his knowledge. Vv'^ith less than that the Court will not feel itself satisfied, and at liberty to restore the ship. ( a ) 1 C. Rob. 31 . where Lord spect to plea and proof, this is true ; Siowell observes, "Plea and proof but I do not know that in proof by is an awakening thing'; it admonishes affidavits, this Court or the Lords of the parties of the dif&culties of their Appeal have ever laid down such a situation, and calls for all the proof rule. I understand the rule to be, that tlieir case can supply." In the that further proof "by affidavits to be " Adriana " (1 0. Rob. 313,) on far- Bxhibited on the part of the captor ther proof being brought in, it was is only admissible under the special attempted to introduce affidavits on direction of the Court. It is not tlie part of the captors to contradict to be exercised except on special it, on a suggestion that farther proof grounds, and only with the leave of opened the case to both parties ; on the Court." which Lord Stovoell said, " With re- PRIZE CASES. The Queens Advocate. We are not to bring in any further l^roof. The Court. No, I follow the course of Lord Stowell. The Queen^s Advocate. I am instructed that we have it. June 29. The claim of a neutral mer- chant for 2,650 bags of coffee consigned to him on the credit of ad- vances made by him, dis- allowed. The claim is that of lien, which cannot be upheld against captors. Further proof cannot be allowed when there has been an attempt to deceive the Court by simu • lated papers. Statement. THE "IDA," Steen. jLHIS vessel, a brig of 174 tons burthen, under Eussian colours, sailed from Rio de Janeiro on the 15th of January 1854, with a cargo of 2,850 bags of coffee, bound to Helsing- fors, in Finland, but on her voyage put into Elsinore, whence she sailed on the 11th of April. On the 17th she was captured off Dagerort, in the Gulf of Finland, by her Majesty's ship " Gorgon." The master and cook were examined in preparatory on the standing interrogatories ; and a claim Avas given in by Mr. Henry Sharpe, of Broad Street Buildings, London, merchant, on behalf of Messrs. Behrens and Sons, of Hamburgh, for 2,650 bags of coffee, laden on board this ship. He made oath that he was duly authorized to make the claim for them, " the consignees, and as such the true and lawful owners and proprietors " of the said bags of coffee. And he further made oath that " he is informed, and believes, that the said bags of coffee were so shipped in the month of January last past, at Kio dc Janeiro, and consigned to the said Messrs. L. Behrens and Sons, on the credit of advances made by them, and by means of their acceptances, to the amount of marks banco 102431 . 12, for the securing of the payment of which advances bills of lading of the said 2,650 bags of coffee, whereof the exhibit hereto annexed, marked A., is a counterpart, were made to them or their assigns ; and that the said advances have not been repaid to the said Messrs. Behrens, but that the said con- signment remains their only security. That until the said Messrs. Behrens shall be repaid, or otherwise indemnified for the said advances, neither the Emperor of Russia, nor any person being a subject of, or inhabiting within any of the dominions or territories of the Emperor of Russia, hath, directly or indirectly, any right, title to, or interest in the said goods." Annexed to the affidavit and claim was a bill of lading for 2,650 bags of Coffee, stated to be shipped by G. and W. Hey- man, on board this vessel, and bound to Elsinore, for orders, to be delivered at such port of destination unto Messrs. Behrens and SonS; of Hamburgh, or to their assigns, paying freight for THE "IDA." the same as per charterparty, dated Rio de Janeiro, 14 th of December 1853, the bill of lading being dated 4th of January 1854. At the hearing a further affidavit of Mr. Sharpe was tendered and allowed by the Queen's Advocate, to be received as evidence. He made oath that since filing the claim, Messrs, Behrens had transmitted to him three original letters, in the German language, marked A., B., and C, and six bills of lading, inclosed in the said letter, marked B. ; that the said letters and inclosures were received by Messrs. Behrens, in due course of post, from Messrs. G. and W. Heyman, of E,io de Janeiro, merchants, the shippers of 2,650 bags of coffee aforesaid, and are (save the bill of lading, No. 6.) true and genuine, and in no manner false or colourable. That the said bill of lading, No. 6., is, as mentioned in the said letter marked B., a colourable bill of lading, but that the de- ponent, at the time of giving in the claim aforesaid, had no knowledge of the same, or the counterpart annexed by him to the said claim, being other than a true and genuine document, for the deponent at such time was not informed of, nor in pos- session of any other bill or bills of lading of a different term ; and he vei'ily believes that the bill of lading annexed to his said claim was sent to him for the mere purpose of specifying the property to be claimed. And he further made oath, that the hereunto annexed bills of lading, marked 1, 2, 3, 4, and 5, trans- mitted to the said Messrs. Behrens as aforesaid, are indorsed according to the custom of merchants, and have the effect, until indorsed over by the aforesaid Messrs. Behrens, of constituting them, on their order, the lawful consignees of the several parcels of goods in the said bills of lading mentioned ; and that the said bills of lading are still held by the said Messrs. Behrens, as security for the advances made by them in respect of the said cargo, the whole of which advances are still due and owing to them save a very small sum, &c. The contents of these exhibits are fully set forth in the judg- ment. Tlie Queens Advocate, for the captors* This is a claim for a portion of the cargo. It scCms to be a claim of lien for advances for this coffee. The whole transaction is a disgraceful fraud ; but, if not, the Court would disregard sueh lien. In the case " Aina " (a) the Court held that a mortgage could not be sustained against captors. Pie should ask the Court to condemn the claimant in the costs for the fraud , An affi- davit baa been brought in this morning on behalf of Messrs. 27 1854. Statement. ArguMnti (a) Ante, p. 8. 1 Ecc. & Adm. 313. 28 PRIZE CASES. 185-1. Behrensj with certain letters and documents annexed. From A^^^i^t. these it appears that by desire of the captain simulated papers were put on board this vessel. There has been clearly an attempt to impose upon the Court, and to defeat our belligerent rights. The legal consequence is condemnation, without the privilege of further proof: Oswell v, Vigne (a), the " Eenrom." (b) It cannot be said that Messrs. Behrens are not responsible for the fraud. They are bound by the acts of their agents : the " Eenrom " (c), the " Calypso.'' (d) The present case is quite analogous; the Messrs. Hey man were the agents of the claimant, who must be bound by their acts. In such a case the Court must condemn the claimant in costs. Dr. R. Phillimore, on the same side. Two questions arise respecting this cargo : 1st. The indorse- ment of the bills of lading; 2nd. The fraud respecting the papers. With regard to the first question, it is, in fact, a claim of lien, of which the Court will not take cognizance. This lien, too, would be revocable : and, therefore, least favourable. Besides, the indorsement is not an indorsement over to Messrs. Behrens, for whom the claim is made. As to the second question, it is a direct instance of fraud, when compared with the evidence of the captain that no simulated papers were on board. Dr. Deane, for the claimant. This is not a case of lien, but of ownership. Certain Fin- landers sent a ship to Brazil for coffee, but, having no credit there, the coffee was shipped on account of Behrens and Com- pany, neutrals, residing at Hamburgh. On B. & Co. the shippers drcAv bills, and to them, by the bills of lading, con- signed the property. B. & Co. are the consignees in Europe. The bills of lading found on board the ship, and annexed to the ship's papers, are not indorsed, and the master could not pass the property described in them ; but the bills of lading sent to B. and Co. are indorsed, and thereby they become entitled as owners to the property. This is the true meaning and effect of the indorsed bills of lading: Smith's Mercantile Laic, (e) Consequently the ultimate loss, if the'property be condemned, Avill fall on B. and Co.; and the ultimate loss is the true test of ownership in the Court of Prize, according to Lord Stowell, in the " Packet de Bilboa." (J) It is said there ^vas a fraudulent intention on the part of Messrs. Heyraan and Company, the consignors in Brazil, to furnish the master with double sets of papers, the one true and (a) 15 East, 76. {d) 2 C. Rob. ICO. (b) 2 C. Rob. 15. (e) 3rd edit. p. 2/2 (c) 2 C. Rob. 8. (/) 2 C. Rob. 135. 29 THE <'IDA." the other colourable : the true, the charterparty, as well as bills 1864. of lading, in the names of several Finlanders ; the simulated, or "^ ^"^ colourable, in the names of B. and Co. But there is no evidence of this, and the expression in the letter of Messrs. Heyman does not bear the argument out to that extent. At all events, it must have been a mere intention, never carried into effect ; for only one set of papers in the name of B. and Co. were found on board, and there is no charge against the master of spoliation of papers. There is no case of condemnation on the ground of an intention to sail under false papers. That would be carrying the case of Oswell v. Vigne (a) to an extravagant length. The Helsingfors charterparty will be brought in as soon as it can be procured, if the Court will allow further proof, to which the neutral owners of this cargo are, it is submitted, entitled. The property was made over to B. & Co. by the indorsed bills of lading ; it remains in them until such time as they are paid the amount advanced. As to the alleged fraud, they must have been ignorant of that ; or, if informed of it, they had no time to countermand the orders. Dr. Twiss, on the same side. There is one question only, viz., in whom is the property? It is not in any way a question of simulated papers. It must be borne in mind that it was a neutral shipper, not an enemy shipper. The bills of lading on board, not being indorsed, convey no property: Abbot on Shipjnng. (b) In this case the property remains in the neutral shipper. \_The Queen's Ad- vocate. There is no claim on his behalf; the claim is for the alleged consignee.] As to the indorsement, cases abound at Common Law ; and the law of the Prize Court as to ownership is the same. \_Per Curiam. If you can establish that the Com- The Common mon Law and the law of the Prize Court as to property or l^w of tlie ownership are identical, you will prove wonders. If this were ^"^'^ Comt , . « , IT 1 11 1 J ji as to owner- m the time ot peace there would be no doubt whatever that ship differ. the bill of lading indorsed by the consignors to the consignee would vest the property, but in the time of war the law is very different.] Mr. Justice Start/ seems to speak of the Law being the same in these Courts as at Common Law, in the " San Jose Indiana" and Cargo (c); and Lord Stowell states the principle of effectual transfer of property in the " Cousine Marianne." (d) There is no ground for refusing the claimant the privilege of farther proof. There was no fraudulent intention with regard to the ship's papers ; besides, the whole of those circumstances were antecedent to the declaration of war. (a) 15 East, 75. (c) 2 Gallison (Amer.), 225. (6) 7th edit. p. 330. {d) Edwards, 347. 30 PEIZE CASES. 1854. The Queen's Advocate^ in reply. ^Z^^i The principle is clearly kid down in the Jan Frederick (a), that transactions in contemplation of war are judged by the same rules as during actual hostilities, These papers were simulated in the immediate contemplation of war, and for the express purpose of defeating the rights of one of the belligerents. The property Would be, therefore, liable to condemnation. But it is not a question of ownership, but one of lien. These bills of lading were intended merely as securities for advances. The claim of lien will not avail in this Court. Dr. R. Phillimore. In the case of the " San Jose Indiana" whatever may appear to be the opinions of Mr. Justice Story, they are founded entirely on English cases to which he refers. Judgment. The established rule of the Court is in the first instance to look to the ship's papers and the evidence of the master. The circum- stances of the case. Dr. LxjSHiNGTOK. There are three courses open to the Court on the present occasioc, either to condemn the property, to restore it, or to direct fut?ther proof. The course which the Court will adopt must depend on a consideration of the facts of the case, and the law .ipplicable to them. In the first instance, I look to what is found on board the ship, and to the examinations which have taken place upon the standing interrogatories. It is the cardinal rule of this Court that, prima facie, the evidence upon which the Court must form its judgment is the ship's papers, and the evidence of the master. It is very easy to set forth the contents of the examination of the master. It appears that this was a Russian ship, and that she sailed under a charterparty from Finland to Eio de Janeiro ; that there was to be purchased a cargo of coffee, which was to be brought back, and delivered in Finland, on account and at the risk of Finnish merchants. That is his representation. As far as lie is concerned, he has no knowledge of the property now claimed belonging to neutrals ; he believes it all to be Finnish property. With regard to the papers found on board, there is neither a Finnish charterparty, nor any other — a circumstance which appears to me a little surprising. But there are certain bills of lading to which it is necessary to advert. There are six of them, but it will be necessary to consider one only ; it is as follows : " Shipped by G. and W. Plcyman, in the ship ' Ida,' bound to Elsinore for ordei-s;" then they state the quantity of coffee, the marks and numbers, " to be delivered at the port of destination unto order or to assigns;" nothing more being said, {a) 5 C, Rob, 140. THE "IDA." 31 except that the freight is to be paid as per charterparty, which is not forthcoming. This bill of lading is signed by the master, and I find in the margin the following words : " To be cleared at Elsinore, at Messrs. A. Geadman and Gloerfeldt." Now, the master, I apprehend, could have hardly had any alter- native, but to have delivered these goods according to the bill of lading — to some order. What that order was intended to be Is left in perfect obscurity. There is no indorsement on this bill of lading, so there is no Information given to the master how to act when he arrived at Elsinore. This being the state of things, there is no evidence whatever of any portion of the cargo belonging to a neutral. I now come to the claim preferred for the purpose of con- sidering whether the parties are entitled to immediate restitu- tion, or to give in further proof. The original claim is given in by Mr. Sharpe, a merchant of this town, who states that he is duly authorized to make the present claim on behalf of Behrens and Sons, who are neutral merchants ; and he states them to be the consignees, and as such, the true and lawful owners and proprietors of 2,fi50 bags of coffee. Then he goes on to state, that they were shipped in the month of January last, and consigned to Behrens and Company, on the credit of advances made by them. This appears to be a very clear statement with respect to The claim is this claim, which is founded on two things, — on Behrens and things— on Company being the consignees, and on the cargo having been Messrs.Behrens purchased on the credit of advances made by them. He then signuesofthe states that the bills of lading were made for securing the pay- c"rgo, and on TIT 1 . , the cargo ment of such advances, and the advances have not been repaid, having been lie further says, that he verily believes that until Behrens and P"'''=l'^sed on •' . •' . . _ the creuit ot Company should be repaid, or otherwise indemnified for the advances made advances, no subject of the Emperor of Kussia is entitled to the •'' ' '^™' property. The bill of lading was annexed to the original claim, and The papers are ,1 1 ,, r2, 52 PRIZE CASES. 1854. Aug. 4 & 15. The Order in Council of 29th March 1854 exempts from capture Rus- sian Tesgels which, prior to the 29th of March, shall have sailed from any foreign port bound for any port in her Majesty's dominions, A vessel under a charterparty for a voyage from Havan- nah or Ma- tanzas to Cork, sailed from Havan- nah in ballast prior to such date, took in her cargo at Matanzas, and sailed thence subsequently thereto. — Held, that it was a continuous voyage ; that it commenced at Havannah, where the charterparty was entered into, and that the ship must be restored under the Order. in Council. Aug. 15. Judgment. Documents relaxing belligerent rights should receive as THE « ARGO," Stenman. 1 HIS vessel, belonging to a Kussian owner, and sailing under Russian colours, bound on a voyage from Havannah and Ma- tanzas to Cork, for orders, was captured on the 6 th of May last off Cork harbour, by her Majesty's revenue cruizer " Eliza." By permission of the Lords of the Admiralty, she sub- sequently proceeded from Cork to Liverpool, where she dis- charged her cargo. A claim was made by Mr. Henry Sharpe, of 26, Broad Street Buildings, London, merchant, on behalf of Gustaf Bergborn, of Uleaborg, in the Grand Duchy of Finland, the sole owner of the vessel. This claim was ordered to be amended ; and Mr. Sharpe made a further affidavit, " That he is advised and believes that the ship 'Argo,' although the property of a Russian subject, was, at the time and under the circumstances of her seizure by her Majesty's revenue cutter ' Eliza,' on the 5th day of May last, within the protection of her Majesty's Order in Council (issued expressly for the purpose of lessening the evils of war) of the 29th of March last, exempting from capture or detention Russian vessels under special circumstances, and as so being, ought to be restored to her Russian owner." The special circumstances are stated in the judgment. The Queen's Advocate and the Admiralty/ Advocate, appeared for the captor. Dr. Addams and Dr. Twiss, for the claimant. Dr. Lushington. This is a Russian vessel, captured on May 6th. She left Cuba on April 2nd, with a cargo belonging to Kirkland and Company, Glasgow ; she reached Queenstown on May 6th, and was there seized by a revenue cutter. The cargo was restored, and a claim is now made for the ship and freight. The ship, being enemy's property, must be con- demned unless she is protected by some act of the British Government ; and it is alleged that she is so protected by the Order in Council of March 29th. With regard to the construction of that Order, I have already stated in a former case the principles which will guide my judg- ment (a), and to which I intend to adhere till better informed by a higher tribunal. I am of opinion that all relaxation of belligerent rights ema- nating from the Government of this country, and declared in authentic documents, should receive a liberal construction, — as (a) " The Phmnix," anti, p. 6, 1 Eco. & Adm. Rep, 310. THE "ARGO." 53 liberal a construction as the terms of those documents will ^854. admit of; but in so doing I must be governed and restricted by uberalacon- the words which are used, and abstain from giving an interpre- struction as is , . , T , 11- , consistent -with tation which cannot be borne out by tne instrument to be the terms construed. *^«^^°^- First, then, what are the facts of the case ? In the month of Special cir- February this vessel was lying in the port of Havannah, whence ^yg ^^g^_ she had come from the port of Antwerp, with a cargo landed at Havannah ; whilst at Havannah she took in ballast, then sailed for Matanzas, and there shipped her cargo. Matanzas was the last clearing port, and she left it on April 2nd. According to the evidence of the master on the 9th interrogatory, the cargo was begun to be put on board on February 28 th, and completed on March 30th. This vessel sailed under a charterparty bearing date February She sailed the 7th, at the Havannah, and by the charterparty it was . sti- "harterpartv pulated that the vessel should load at Havannah and or (a) dated Feb. 7. Matanzas ; forty-two running days were to be allowed ; at the end of which demurrage was to be paid. Should the vessel be ordered to Matanzas, sufficient cargo or ballast should be given at Havannah to keep her safe. I must here observe that the contract, beyond all doubt, was The contract made at the Havannah, and, as I understand it, the charterers ^T '^°'f';f^ ' ' ' into and its had the option to load at the Havannah or at Matanzas, or fulfilment was partly at one or partly at the other ; and not only was the con- HOTannah ^* tract entered into at the Havannah, but it began to be executed there, first, by taking in the ballast as mentioned in the charter- party, and secondly, by the running of the lay days as appears by the indorsement of the charterparty itself. Such being the facts, I now turn to the Order in Council. It Clearly not has been contended that this vessel ought to be released within Exemption of the terms of the first part of the Order, which directs that tlie first part Russian vessels within her Majesty's dominions shall be allowed jn Council.^ till May 10th for loading and departing. Now, this vessel, at the date of that Order, was clearly not within her Majesty's dominions, and in my judgment was neither within the words nor the spirit of the first part of this Order. The next branch of this Order (b) directs that any Russian But this merchant vessel, which prior to this Order shall have sailed from laUed'fiom"^ any foreign port bound for any port or place in the Queen's Havannah dominions, shall be permitted to enter and depart without moles- to Engiand^^'' tation. This vessel did sail from the Havannah prior to the date P™"" '" *^ of the Order ; she sailed from Matanzas subsequently to the Order, is (o) In the charterpartjr it waa so expressed : " and— or Matanzas.'^ the latter part (6) Vide Appendix, p. iii. of jj._ ^ 54 PRIZE CASES. 1854. Judgment. Ship restored. date of the Order, When she left the Havannah she was in ballast, bound for Cork, according to the charterparty. It has been contended that this Order in Council contemplated that the Russian vessel should have been laden at the date of the Order ; but I find no words in the Order that would justify my putting so strict a construction upon it ; neither do I think that there are any words which impose the necessity of not touching at or taking a cargo at some other port than that where the voyage commenced. For instance, I apprehend that a vessel might have taken in a part of her cargo from one foreign port, having left that port prior to the 29th of March, and taken in another part of the cargo at another foreign port subsequently. The real meaning of the Order in Council, according to my view of it, is, that the vessel shall have sailed prior to the 29th of March, on a voyage to end in Great Britain, and I am clearly of opinion that this was one continuous voyage, the commence- ment of which was at the Havannah, and that the sailing from the Havannah prior to March the 29th is a substantial com- pliance with the terms of the Order. I must therefore restore this vessel. Aug. 15. A vessel under Bussian colours, with a Hussian pass, and whose papers disclosed only- Russian owners, being captured, a claim was made by the master as being a neu- tral, and the lawful owner of one fourth part thereof. Held, that the claim could not be SOS' tained, as the enemy's flag and pass imprinted a hostile cha- racter on the whole. THE "INDUSTRIE," Fuhl. i HIS vessel, a Russian ship, left Hull with a cargo of salt, bound to Riga, on the 18th of December 1853, and after meeting various mischances, was captured off Memel on the 26th of April. Three fourths of the ship, having been admitted to belong to Russian merchants, was condemned, but a claim was made for one fourth by Jens Neilson Fuhl, the master, who was, as alleged, a subject of Denmark. The Queen's Advocate and Dr. B. PMllimore, for the captor, cited the " Vrow Elizabeth!' {a) and the " Primus." (b) Dr. Addams and Dr. Twiss, for the claimant, cited " The Fortuna" (c), " Donna Marianna" {d), " Success" (e), « Anna Catharina" (/), " Onderneeming" (cf), " Diana" (h), " Cal- ma" (i), and the " San Francisco Antonius." (A) (a) 6 C. Rob. 4. (J) i4ni^,p.48;lEoc.&Adni.Rep.363. (c) 1 Dods. 86. (d) Ibid. 92. (e) Ibid. 131. (/) 4 C. Rob. 107. [g) 6C. Rob. 7.»o* - irom the ffc- When the vessel is sailing under a neutral flag, the captors may neral principle. show that all the property is not neutral, but that part of it in the case of belongs to any enemy, and in that case you divide it, and con- neutral"flag demn the part which is hostile, and not the part which is captors may , , , ... 1 -, prove that all neutral ; but the converse proposition is not true, that where the property a vessel is sailing under a hostile flag;, you can claim, on behalf j^ "°* neutral, • ° a' J > l,m that part of a neutral, any part of the property under such flag. belongs to the From the cases cited from Sir Leoiine Jenhins and Sir James J^^™y '< ■'"' •^ _ _ the converse Jlf arnoff,. I cannot draw deductions contrary to the principles of the pro- to which I have adverted. "What would become of belligerent f^ng''"" '^ °° rights, if, when you search vessels under hostile colours, you are to be told, " This is not a Russian vessel ; it is neutral, or nine tenths is neutral. You are quite mistaken ; it is entitled to restitution at the hands of the Court." It is manifest iftheprin- that the right of search, under these circumstances, would be cipie were not iT.i 1111 -\ f -1 maintained, destroyed. It is clear that the whole trade of an enemy might the right of be carried on with perfect impunity, and all the naval force of search Tvould '- , . ^ .he destroyed. France and Great Britain would never be able to carry into execution those rights which they are undoubtedly justified in The vessel exercising by the Law of Nations. I entertain no doubt in this ™"*' \ ''°"' " •' demned. case, and I condemn the vessel. THE "POLKA." ^„^.i5. IhE commanders of her Majesty's ships " Amphion" and Under ;)cc?i/!ar ClTCUTIlStClTlCCS " Conflict" having received information that a number of the Court will Russian merchant-vessels were lying in the port of Libau, .condemn a . .< o 1 3 prize ■which anchored within gunshot of the town on the 17 th of May last, has been taken and summoned the governor to surrender the said vessels within |°'° neutraf three hours. At half-past three p.m. of the same day an answer port and allow was received from the authorities, to the effect that they were there, without the means of defence, and would readily send the vessels out but could not possibly do it within the time specified. Whereupon the captains of the " Amphion " and " Conflict " caused the ships' boats to be manned and armed; and they pro- 58 PRIZE CASES. Judgment. ceeded with them to the port. Having had the Eussian vessels, — seven schooners and one brigantine, — pointed out, they took possession of them, brought them out into the roads, and find- ing them not to be in a condition to perform a voyage to England, took them to the port of Memel, where they remained to await the decision of the Court. At the time of their capture the vessels were found all dis- mantled, their sails unbent, and some of them aground. Two of them were scuttled, the whole of them deserted by their crews, and no papers whatever were found on board, neither could the captors obtain any information whatever respecting them, but believed they had been taken away by the masters when they deserted the vessels. The above circumstances were fully .verified by affidavits, and The Queen^s Advocate moved the Court to condemn the vessels and decree their sale in the port of Memel, stating that an intimation had been received from the Prussian Government, that no objection would be made to such a course, provided they were sold by private contract, without being advertised or put up to auction. Dk. Lushinuton. The circumstances under which the pre- sent application is made, are quite peculiar, and form an ex- ception to the general principle upon which this Court proceeds. Though there is no direct evidence that the vessels are Russian, yet there is no claim, and the Court entertains no doubt upon the subject. I have no hesitation in condemning them ; and, looking at the fact deposed to, that they are not in a fit state to be brought to England, and the consent of the Prussian Govern- ment to their sale at Memel, the Court will allow that course in the present case, but with the proviso that the wishes of the Prussian Government shall be fully observed with respect to the sale. I wish it, moreover, to be expressly understood, that this case is decided upon its own peculiar circumstances, and is not to be considered as a precedent for the condemnation of a prize while lying in a neutral port. The rule is that the prize shall be brought into a port belonging to the captors' country, and the Court must guard itself against allowing a precedent to the contrary to be established. THE "PRIMUS." 59 1854. THE "PRIMUS," MuLLEK. — ^- Oct. 6. JxLOTION. The Court condemned this vessel as enemy's pro- Motion that perty ; but restored the neutral cargo without further proof, of the owners The vessel was sold by the Marshal of the Admiralty, and pro- "^ ^ neutral J J iU ^^^KKf^^ J r cargo shipped duced the sum 01 1,5506. on board an Dr. Addams, on behalf of the owners of the cargo, now stated 6"^™y ship ' ° \ ■which was the circumstances of the case, that the cargo was entirely owned condemned, by neutrals, and had been shipped prior to the commencement flayed out of of hostilities ; and moved the Court to decree to them, out of the proceeds of the proceeds of the ship, the expenses which they had incurred ship, rejected, in consequence of her capture. with costs. The QueerHs Advocate opposed the motion. De. Ltjshington. This is a question arising under the fol- Ju^^^ent. lowing circumstances : — This vessel was a Russian barque, which sailed early in March last with a cargo of salt, " for a voyage from St. Ubes to a port in the Baltic, calling at Elsinore for orders." On arriving at Elsinore her master received orders to proceed to any Russian or Finnish port for further orders. He sailed for Abo, which he was unable to reach by reason of the ice, but put into Maarsund to avoid capture ; and there, on his own responsibility, unshipped and delivered into small boats about one half of the salt. With the remainder of the cargo he sailed on the 7th of May, but was captured on the following day by her Majesty's ships Valorous and Vulture. She was brought to England, and has been condemned by the Court as lawful prize, but at the 'same time the Court restored the cargo to its neutral owners without requiring any further proof. («) The vessel having been sold and the proceeds paid to the Naval Prize account, application is now made on behalf of the owners of the cargo, that they may be indemnified for the expenses which they have incurred out of the proceeds of the ship. I am at a loss to understand upon what ground this applica- tion is made. No instance has been cited, and I certainly cannot call to my recollection any one, in which the owners of a cargo under similar circumstances have been held to be entitled to their expenses. It is quite clear that at the time of shipment of this cargo war between this country and Russia was immi- nent. This was notorious to Europe ; yet, notwithstanding, the owners of this cargo think proper to put it on board a Russian (a) An% p. 48 ; 1 Eoc. & Adm. Rep. 353, 60 PRIZE CASES. vessel, and send it to the Baltic. Accordingly, they must be held to have done so at their own risk. They must be bound moreover by the conduct of the master. What was that, accord- ing to his own account ? He sailed for Abo, but being unable to reach it, he broke bulk and discharged a large portion of his cargo into small boats to be conveyed to Abo, and subsequently ran his ship ashore in Saggo Bay to avoid capture. Certainly no blame attaches to this master for his endeavours to save his ship, but undoubtedly the neutral owners must suffer for his act. This motion is in my opinion without precedent and without justification, and must be rejected, with costs. October 13. A ship sailing under neutral colours and ■veith neutral papers from a Kussian to a British port with a cargo, within the time granted to Russian vessels hy the Order in Council, •was seized by the Custom House officers, and claimed by the master as the bona fide purchaser and a neutral. Held, on further proof, that, 1st, the neutral cha- racter was not established ; 2nd, the transfer to the master was merely colour- able ; 3rd, the Court could not restore the ship as Kussian, but protected by the Order in Council, wheri THE " JOHANN CHRISTOPH," Bohss. J. HIS vessel, sailing under Danish colours, was seized by the Custom House officers at Grimsby. The circumstances of the case were these : — Mr. Christiansen, a native of Denmark, who for six years had been carrying on business as a merchant at Leith, on the 4th of April wrote to Lord Clarendon, informing him of some pur- chases he had made at Llbau, of Mr. H. Sorensen, the Danish Consul at that place, and inquiring " whether, in the event of his goods being shipped on board neutral vessels, they would be subject to seizure and condemnation either by and at the in- stance of the commanders of her Majesty's cruisers, or by her Majesty's officers of Customs on the arrival of the vessels in the ports of this country." On the 22nd of April, a letter was sent from the Foreign Office to Mr. Christiansen, "referring him, in reply to his inquiry, to her Majesty's Order in Council of the 15th of April, which permits the importation of the goods in question in neutral vessels." Mr. Sorensen chartered the " Johann Christoph," and, about the 4th or 5th of May, put the cargo, consisting chiefly of railway sleepers, on board, con- signed to Mr. Christiansen. The ship sailed from Libau on the 9th of May, arrived at Grimsby, and delivered her cargo. She was then seized by the Custom House officers on the 18th of June on suspicion of being a Russian vessel, and her papers were taken away. On the 25th she was liberated, and her papers restored. She prepared to take her departure in ballast. THE « JOHANN CHRISTOPH." 61 and on the 28tli received from the Custom House authorities 1854. at Grimsby her clearance certificate (a), but upon the following statement. day she was again seized by the officers of the Custonis. u imd been pre- A claim was given in by Mr. A. H. Lindgren, of Crown mmsly claimed ^ ■> ° ' _ as neutral. Courtj Old Broad Street, on behalf on "Johann Gottlieb Bohss, of Altona, master mariner, a subject of the King of Denmark, the true, lawful, and sole owner and proprietor of the said ship." The master, mate, and carpenter were examined on the standing interrogatories. The evidence of the master with respect to his own national character Avas to the effect " that he Avas born at sea in the Baltic, and christened at Libau ; that during the seven years last past, up to February last, he has lived at Riga ; that since February last he has lived at Altona, which he considers his present home when he is not at sea ; that he is now a subject of the King of Denmark; that in 1840 he became a Russian subject, but ceased to be so in February last; that he has taken an oath of allegiance to the Emperor of Russia in 1840, and another to the King of Denmark on the 8 th of April, 1854; that he obtained a certificate of being a subject of the Emperor of Russia in 1840 ; that on becoming a Danish subject he obtained a certificate of being a subject of the King of Denmark ; that he has been admitted a burgher of the city of Altona, and was so admitted by taking an oath of allegiance before the magistrates, which he did on the 8th of April, in the usual manner; that he has resided there ever since, except when on board ship ; that he paid about 200 Danish dollars for his admission ; that he is married ; that his wife and family have hitherto resided in Riga, but that his wife was with him on his last voyage before he left Libau ; that she left him at Libau with the intention of returning to Riga, and selling off all their property there, and then joining her own family, who reside near Copenhagen, but that he has not yet heard what has become of th em ." On the admission of the claim the Court intimated its opinion that it was a case for further proof, and that it should expect some more satisfactory evidence of the national character of the claimant, and stringent proof that the sale was bond fide, and not merely a colourable transfer. The case now came on for hearing on the further proof. The Queen's Advocate and the Admiralty Advocate for the seizor, (a) " This is to certify that the House for Copenhagen, is free to de- ship ' Johann Christoph' (Bohss, part from this port, and to proceed master), which has this day been on her voyage without any stop or cleared outwarda at this Custom impediment whatever." 62 1854. Judgment. Two questions raised— 1st, the national cha- racter of the claimant; 2ncl, the bona fides of the pur- chase of the vessel. The Court has no power to restore under the Order in Council, when the claim is rested on a dif- ferent ground. PEIZE CASES. cited, on the question of the national character of the master, the " Endraught " (a), the " Eleanora Wilhelmina" (b), and the " Graf Bernstorff." (c) Dr. Twiss and Dr. Spinks appeared for the claimant. De. Lushington. In this case, when it originally came hefore the Court, two questions were raised : first, what is the national character of the claimant ? and, secondly, whether the purchase of the vessel by the claimant was a bond fide purchase, or not ? The Court directed that further proof should be ad- duced upon both these points, and intimated at the same time that it should expect clear and positive evidence of the actual payment of the purchase money. I have now to decide whether the evidence produced is sufficient to justify me in restoring this vessel. Of course it must be sufficient to satisfy my mind upon both the questions at issue, or she must be condemned ; because, if the claimant fails to prove the purchase, he is not entitled to restitution ; and, where a person claims as a Danish subject, notwithstanding the ingenious argument of the learned counsel, 1 have no power to restore to him in any other cha- racter, or tinder the Order in Council, whereby it is directed that a Russian owner coming before the Court shall, under certain circumstances, have his vessel restored, (d) I will first address myself to the question of the national character of Mr. Bohss ; and I would observe, that with respect to national character, it has been over and over asain laid down, that the application of the general principle must depend on the circumstances of each individual case. Now what are the circumstances of this case, according to Mr. Bohss's own repre- sentation ? His father, he says, was a Dutchman, and he was born at sea, somewhere in the Baltic ; he seems to have been (a) 1 C. Rob. 24., where Lord Stowell observes, "The master I must consider a Dutchman, for al- though he was by birth a Dane, and although he may have a wife and family resident in a neutral country, yet his own personal occupation has always been in the Dutch trade ; and therefore, under the general rule that mariners are to he characterised by the country in whose service they are employed, I must consider him as a Dutchman." Again, in the "Eleanora Wilhelmina," " I shall hold that the national character of a man who has only just quitted the Prussian navi- gation, and has his wife and family still resident at PiUau, cannot fairly be considered 'as of the people of (b) 6 C. Rob. 335. (c) 3 C. Rob. 115. (d) Order in Council, April 15, 1854. {Vide Appendix, p. vi.) It was contended that if the Court were satisfied of the bond fide cha- racter of the sale, but thought the neutral character of the claimant was not established, it must give him the benefit of the Order in Council and allow him to claim as a Russian, because the claimant attempted no fraud but was guilty only of igno- rance of what the law required to effect a change of national character; and had therefore committed a venial error in calling himself a Dane instead of a Russian. THE " JOHANN CHRISTOPH." 63 christened at Libau, but that circumstance would not affect his native character as a Dutchman. In that character, he followed the vocation of a seaman until the year 1840, when, for the purpose of obtaining certain advantages in his profession, he took the oath of allegiance to the Emperor of Kussia, became a "Russian subject, and subsequently resided with his family at Riga for seven years up to February last. So that there can be no doubt that, at the commencement of the year 1854, there was impressed upon him the quality of a Russian subject ; and the question for the Court now to decide is, whether anything occurred between February 1854, and the purchase of this vessel on the 12th of April following, which could divest him of that quality, and convert him into a Danish subject, in which character he now claims restitution. He left Russia, according to his statement, in February last; and on the 8th of April took the oath of allegiance to the King of Denmark, and was admitted as a burgher of the city of Altona. But I am clearly of opinion, that that circumstance alone never could confer upon him a national character. I apprehend that five minutes' notice and the payment of so many dollars might entitle him at any time to exercise all the rights of a Dane within the dominions of Denmark : but I must pro- Takmg the T T • 1 n 1 .11 oatn of allegi- test against the argument that he is therefore to be considered ance to a neu- in the Prize Courts of belligerent nations as having changed his *'"^] sovereign => , _ . ^^^ ODtaining national character. To enable him to do this, the Law of Nations, a burgher- by which these Courts are governed, requires several other no?of"Ssel7' things to concur. He must have actually abandoned his pre- divest a person vious national character, — not be merely in the course of aban- character ™nd donment ; he must have taken up his abode with his wife and niake him family, with the intention of remaining in the country of which he claimed to be a subject. Do the circumstances answer these requirements? Mr. Bohss, according to his own representa- tion, having heard, in January 1854, that this' ship was adver- tised for sale, conversed with its owners at Libau with respect to it ; and it then entered into his head, that as the ship was likely to be sold, he would make himself a Danish subject, and purchase her ; and that he should be able to navigate her under the Danish flag. What does he do ? He goes to Altona, and after a residence of a few days, without having taken any house or given any proof of his intention to fix his domicile there, on the 12th of April he purchases the ship. He does not even pretend that his wife and family were about to join him at Altona. On the contrary, he expressly states that when he parted from her at Libau, she repaired to Riga to sell off their goods, with the intention' of proceeding immediately to reside 64 PEIZE CASES. 1854. The assump- ion of the neutral charac' ter was a mere fiction. The circum- stances of the transfer of the ship. The British Vice-Consul's certificate is worthless. with her relations at Copenhagen. This might certainly be evidence of an intention to abandon Russia, but it is no evidence of an intention to become the subjects of Denmark. But whether even this intention has been carried into effect, we have no certain information. I am clearly of opinion, that the assumption of the national character of a Dane is a fiction from the beginning to the end ; and further, that even if the facts stated are true, there is not sufficient to effect any change in the national character of Mr. Bohss. After living at Riga, and having become to all intents and purposes a Russian subject, the mere proceeding to Den- mark, and going through a few formalities, would not enable him to lose his national character and to become a Dane at once ; he must actually have quitted his former domicile. I do not mean to say that a character assumed for the purposes of trade may not be changed with greater facility than under other circumstances ; but I do say it must be a real and not merely a nominal change, as I hold it to have been in the present case. The Court being of this opinion with respect to the national character of the claimant, the determination of the second ques- tion becomes of minor importance. I will, however, give my opinion upon it, that there may be no doubt as to the grounds of the Court's decision. The circumstances of the purchase of the ship are stated to be the following :— Mr. Bohss, having been in command of the ship, and become attached to her, was anxious, when he heard she was advertised for sale, to become the purchaser from the former owners, and for that purpose proceeded to Hamburg. Now it does appear to me a little curious, if this was intended to be a bond fide sale, that he should have heard of the sale by an advertisement in Hamburg, and that he should not have communicated with the owners upon it when he was at Libau, instead of proceeding to Hamburg, and purchasing it of Messrs. Merck and Co., by virtue of a power of attorney which they had from the owners for that purpose. These are circumstances of suspicion which naturally induce the Court to look more closely into the evidence of the purchase, and, above all, of the actual payment of the money. But of what does that evidence consist ? A certificate from the British Vice-Consul at Libau has been produced ; it is in these words — " I, the undersigned, do hereby declare and certify that the former Russian bark, 'Johann Christoph,' has been sold to the Danish subject, Johann Gottlieb Bohss, Esq., of Altona ; and that the sale has taken place at THE " JOHANN CHRISTOPH." 65 Altona on the 12th of April, at the price of 45,000 marc Ham- burg banco. I further declare and certify, that the bill of emption of the bark, Johann Christoph, has been delivered by the magistrate of Altona, and produced to me this day, the 15/27th of April. Given under my hand and seal of office. — Libau, April 15/27th, 1854." And it is signed by her Majesty's Vice-Consul. Now what is the value of this document as evidence ? The Vice-Consul could not be cognizant of the facts to which he certifies, except from documents shown to him, or from the statements of others ; and yet it would appear that he was certifying to something within his own knowledge. The certificate comes to nothing, — the facts could not be within the knowledge or grasp of this gentleman at all. It is, moreover, not a little extraordinary that ho certifies the sale to have taken place at Altona, whereas the copy of the bill of sale expressly states the transaction to have taken place at Hamburg. That copy, — for the original has not been produced, — is There is no 111 rm ■ /■T-voi IT n proof whateyer attached to the alndavit ot a Dr. bcliram, a notary public of that the pur- Hamburg, who appears to carry on what, no doubt, will chase-money shortly become a very lucrative business, in assisting at and paid, attesting the conversion of Russians into Danes, and the fictitious transfer of the enemy's property. He does not, how- ever, in this case, depose to the payment of the purchase money for the ship ; and here lies the gist of the whole matter. He merely says, " that the receipt of the consideration money for the said ship, to wit, the sum of 45,000 marcs Hamburg banco, was acknowledged by Justus Carl Wilhelm Riiperti, one of the firm of H. J. Merck and Company, the sellers, in his presence." From Mr. Ruperti or Messrs. Merck no evidence whatever is produced ; for some reason or other, they have made no affidavit. Now I have stated before, and I repeat it again, that in all purchases of this kind, made under similar circum- stances, proof of actual payment of the money is most stringently required ; but in this case I have nothing but a declaration, — even the appearance of a receipt is not produced, and there is no evidence whatever, from the agent of the vendors ; and yet I am asked to believe that this master mariner has been the bondjide purchaser of this vessel at the price of 45,000 marcs banco. I do not believe in the truthfulness of the whole trans- action, but am of opinion that the sale to Mr. Bohss was merely colourable. The vessel, therefore, must be condemned on both grounds, — the national character of the claimant, and the want of proof of the sale. E 66 PRIZE CASES. 1854. Oct. 6 & 13. A British ship fictitiously transferred to Kussian mer- chants to prevent her seizure hy the Bussian autho- rities, while lying ice-bound in a Russian port at the outbreak, of the war, but seized as Bussian property by the officers of the Customs on her arrival at Leith, restored to the British owners on payment of the seizor's ex- penses. THE " OCEAN BRIDE," A. Smith. 1 HIS vessel, a British built ship, sailed from this country for Archangel in September 1853, was there frozen in, and de- tained by the ice until some time after the outbreak of the war. She sailed in the beginning of June, and arrived at Leith about the 10th of July, when she was seized with her cargo by the Custom House officers as a Russian prize. On the 29th of July the cargo was restored by consent on payment of costs and freight ; and on the 2nd of August a claim for the ship was given in by a Mr. Clark on behalf of the asserted owners, Messrs. Stewart and Smith. The admission of the claim was argued on the 14th of August, when the Court directed that further proof should be given on both sides, {a) The case of the claimants was, that this vessel was a British ship, duly registered in 1853 at the port of Dundee, but that being detained by the ice at Archangel at the outbreak of the war, her owners, Messrs. Stewart and Smith, of Dundee, became alarmed lest she should be seized in Russia as the property of British subjects, and, in order to protect her, assigned her by vendition, or bill of sale, dated 11th March 1854, to Messrs. William Brandt and Sons, of Archangel and London ; that such bill of sale was granted by the owners to Messrs. Brandt with- out any sale taking place, or anj' price paid, and truly that they might hold the vessel in trust for behoof of the owners, and that she might appear to the Russian authorities as the property of Messrs. Brandt and Sons of Archangel ; that the transaction was explained to Mr. Wrongham, merchant of Dun- dee, the agent of Messrs. Brandt, and to Mr. Kerr, the solicitor employed, before the bill of sale was signed ; that the owners transmitted this bill of sale to Mr. Wrongham on the 14th of March, with a letter stating the object thereof, and Mr. Wrongham transmitted the bill of sale to Messrs. Brandt and Son of London, who immediately returned it with the request that the signatures might be attested by the Russian consul ; and that when this was done it was again transmitted to Messrs. Brandt. That, on the 8th of April following, Messrs. Brandt of London transmitted to Mr. Wrongham a letter from Captain Smith, the master of the vessel, and a draft by him upon Mr, Stewart, one of the owners, for 137/. 16a, the amount of advances of money he had received at Archangel for the (o) The Court allowed further proof to the seizors in this case from ' the peculiar nature of its circum- stances, but said it was a privilege and not a right, as the usual practice was to allow further proof to the claimant only. THE " OCEAN BRIDE." use of the vessel, that Mr. Wrongham might obtain payment from the owners ; and Mr. Brandt further required a sum of 270/. to defray the necessary expense of repairing and placing the vessel in safety from the ice. That the said sum of 137Z. \Qs., with interest, was paid to Mr. Wrongham, and transmitted hy him to Mr. Brandt of London, who acknowledged its receipt on the 28th of April, and after stating that his Arch- angel friends would not allow the vessel to leave before the deposit they required was made, the vendition or bill of sale being of no use to them, suggested that the owners should give a bond on the vessel. That on the 1st of May Mr. Wrongham wrote Mr. Brandt of London, recommending that the captain of the vessel should grant a bottomry bond for any advances he might receive at Archangel; whereupon Mr. Brandt, in reply, requested Mr. Wrongham also to procure from the owners a bond for the advances to be made in his own name as a collateral security. That accordingly on the lOth of May the owners executed a bond and vendition ia security, conveying the vessel, in further security of such advances, to Mr. Wrongham. That on the 8th of July Messrs. Brandt and Sons, by vendition or bill of sale, conveyed the vessel to Mr. Wrongham, who presented this bill of sale for registration at the Custom House, Dundee, on the 10th of July. That the vessel is bond fide the property of Messrs. Stewart and Smith, and that the transfer of her to Messrs. Brandt and Sons was truly made for the purpose of preventing her being seized by the Russian authorities, and that Messrs. Brandt and Mr. Wrongham are ready to transfer and reconvey the vessel to the owners on payment of their advances. Ttie Queen's Advocate and The Admiralty Advocate appeared for the seizor ; Dr. Addams and Dr. Twiss for the claimant. 6? 1854. Statements De. Lushingtojt. This case undoubtedly presents many Judgment. very considerable difficulties, which the Court is bound to con- The case is sider, and to pronounce a judgment upon. I should take more ^grable'diffi' time to determine what that judgment should be, had it not culty. happened that since this case was partly heard, I have had the opportunity of reading the whole of the evidence over again, and going through, I think carefully and cautiously, every part of it, paying at the same time due attention to the question of law raised on the one side, and controverted on the other. It appears to me, therefore, that no good could be attained, that I am not likely to arrive at a greater certainty as to the judgment I am about to pronounce, by further delay. E 2 68 PRIZE CASES. The circum-" stances of the case. Bill of sale, dated lUh March 1854. Another in- strument, dated 10th May. The persons principally concerned in this transaction are Messrs. Stewart and Smith, merchants of Dundee ; Messrs. Brandt and Co. who are merchants at Archangel ; Mr. Wrong- ham, their agent at Dundee, and the house of Brandt and Co., of London. These may be called the dramatis persoruB in this case. I will endeavour to ascertain what the facts of the case are by a reference to the evidence. I cannot avoid, I fear, making a statement somewhat in detail, because it is very important to satisfy my mind, and to show how my mind was satisfied as to the real facts of this case. This ship was in the year 1853 the property of Mr. Stewart and Mr. C. Smith, British subjects resident at Dundee. She sailed under British colours, and she never changed those colours. In September 1853 she went in ballast to Archangel. In November she took on board her cargo, sailed from Archangel, was compelled by stress of weather to put back, wintered in that port, sailed again June 6th, reached Leith either on the 8th or 9th of July, was seized by the Custom-house authorities on the 10th or 11th of July, and has now been proceeded against by the Admiralty Proctor. A claim was subsequently given for the cargo, which was restored by consent. On the 2nd of August a claim was given by Mr. Clark of this town for the ship and freight as the property of Messrs. Stewart and Smith. On the 15th further proof was directed to be given hy both parties, and now the cause comes on to be heard, and I must finally determine whether the ship and freight ought to be condemned or restored, and if condemned, in what form such condemnation should pass. Now the first inquiry must necessarily be, to ascertain, as far as is practicable, what is the true state of the facts; and having done this to the best of my power, I shall then consider the law as applicable to such state of facts. On the 11th of March 1854, a bill of sale of the vessel was granted by the claimants in Scotland to Messrs. Brandt of Archangel; they were the shippers of the cargo, and the agents of the ship at Archangel, and this bill of sale was registered at the Custom House, at Dundee. This is the first instrument. The second instrument bears date on the 10th of May 1854, whereby the claimants transfer the ship to Mr. Wrongham, the agent of Brandt and Co. at Dundee, by way of security for any advances which might have been made by Brandt and Co. at Archangel. It does not appear that the deed was registered anywhere at all, though, according to the THE « OCEAN BRIDE." 6Q form in use In Scotland, the parties undertake that it shall be 1854. registered. ^ 'jk^^t. The last Instrument bears date on the 8th of July, and by A third, dated that Brandt and Co., described therein as merchants of Arch- ' ^' angel and London, conveyed the vessel to Mr. Wrongham, who caused such bill of sale to be offered for registry, or, I should say, offered It to be registered at the Custom House at Dundee, on the 10th of July 1854. Now the real character of these documents must be ascer- tained, not merely from the contents, but from the measures adopted, and from all the other evidence which has reference to them. Messrs. Stewart and Smith allege that the transfer of the The claimants 1 1th of March, and everything done thereupon, was colourable transfer under and fictitious: that such deed of sale was not intended to t^ebiUofsale of the nth convey the vessel or any right In her whatever, but was for the March was sole pm-pose of protecting her from capture by the Russian ^^e*^ to protect government, which was deemed probable, as she was detained her from cap- at Archangel by the Ice. Russi'ans?'^ Now, certainly, looking at the state of public affairs at that The position time, It cannot be denied that there was every prospect of an of affairs at iiTT the time ren- immediate war, and therefore it was natural that Messrs. ders such a Stewart and Smith should be anxious to protect their property, Ij^^f'^/'"'^ though whether the means employed for such purpose were legitimate or not, Is a distinct and subsequent question. It is therefore probable that this sale was intended to be But the qnes- merely colourable, but there would still remain another Inquiry : ^^"th^rd' whether, thougli colourable In the view of the vendors, it was sale was ficti- so considered altogether by the vendees, or their agent. I do ^gwofthe not mean to say that that point has been very distinctly raised, vendees as It has been very fairly argued by her JMajesty's advocate, that vendors, there was an intention on the part of these parties that the vessel should be conveyed to cover the advances which neces- sarily must have been made and were made by Brandt and Co. of Archangel. With regard to the instrument Itself, it takes no notice of any advances whatsoever, and to that perhaps I must again advert. The deed of the 10th of May appears to supply strong corro- The fictitious- boratlve proof, that the sale of March 11th was Intended to be "s^'art?^^ '^** colourable only; for If the deed of March 11th was a real transfer, proved by the what possible right, or pretence of right, could Messrs. Stewart transaction of and Smith have to mortgage a ship already sold by them? theiothMay. But all the cori-espondence, and all the res gestce, and all the evidence, show that the deed of the 11th of May was a bond fide mortgage, was intended for the purpose of giving to 70 PRIZE CASES. Quaere as to the validity of the deed cou- veyiug a right to an enemy. The mortgage deed of May 10th. The deed of the 10th May is important with respect to the intention of the parties. The affidavit of the Bussian vice-consul is strongly cor- roborative of the statement Mr. "Wrongham a power over that ship, by a regular Scotch mortgage deed, to protect his correspondents and principals, the house of Brandt and Co. of Archangel and London (for they are mixed up together), for any advances which might have been made. The validity of the deed as conveying a right to an enemy is quite another and distinct consideration, but this deed appears to me to be perfectly incompatible with the fact that the deed of March 1 1th was a bondjide transfer. I cannot reconcile it to my mind, and suppose that, if the deed of the 11th of March was bondjide for any purpose, the deed of the 10th of May could have been executed at all. If it was to transfer the ship, it being colourable in part and bondjide in part, to secure advances, what could be the purpose of taking the deed of the 10th of May again from the same parties who had con- veyed the ship by the deed of the 11th of March, for the purpose of securing these same advances ? These are manifestly incompatible the one with the other. The deed of the 10th of May is in these words : " Although the said vendition," that is, the vendition of the 11th of March, it is called now, — " bears to be ex facie absolute, yet the same was granted by us truly in trust for our behalf, and for the purpose of securing the safety of the said ship or vessel while she then lay in or near the har- bour of Archangel, and while she might be in the Russian waters." Now there is not a word about that in the deed of the 11th of March, — there is not a word there reciting it was for such purpose ; but it goes on here to state : " And also con- sidering that William Wrongham, Esquire, merchant in Dundee, has on our account, and at our request, agreed to recommend his correspondents," — -this is a subsequent transaction, — "to make advances of money to the master of the said vessel, and others, on account of the said vessel, upon our granting for his and their security, and more sure payment of the said advances, these presents in manner under written." Then it woes on to secure any advance which may have been made in consequence of this agreement with Mr. Wrongham on account of the ship. I must say that this instrument appears to me of great im- portance to ascertain the bonajides of this case, and what the real intention of these parties was at the time. The whole of the correspondence also shows that the parties considered that no actual transference of the vessel had taken place. Many comments have been made with respect to other parts of this evidence, namely, the evidence of several persons that they were cognizant of the transaction, and believed it to be colourable. I think that some of the comments were very THE « OCEAN BRIDE." 71 properly made, and I think I am not ''entitled to place on all 1854. these affidavits any implicit reliance ; for it must be admitted that the trans- that they are loosely worded — that they have no distinct refe- ferofthe nth rence to the time when the declarations were made, or the colourable, periods when the facts were asserted ; but perhaps they are not though little 1 1 (> 1 11 !• -I • mi ■ 1 reliance can be to be left wholly out or consideration, ihere is, however, one placed oni he of great importance; that is, the affidavit of the Russian other affidaTits. vice-consul, marked G. I consider that entitled to great weight ; because he states in that affidavit, before the transfer of the vessel on the 11th of March 1849, he was advised with by Messrs. Stewart and Smith, as to whether the scheme they at the time thought of putting into execution for the protection of the property was advisable ; and that he declined to give them any advice, — and very properly, considering the position in which he was then placed. This appears strongly to cor- roborate the statement made on behalf of the claimant ; for, according to that, the Russian vice-consul was well aware that the intention was to make a colourable transfer, and nothing more. I must further observe, that the very nature of this trans- There is no evidence "wliftt* action, from all that appears before the Court, favours the conclu- ever that the sion that the sale was colourable only; for it must be recollected alleged vendee . •' . was any party that in the sale of a ship there must be two parties, — there must to the trausac- be a vendor, and there must be a purchaser ; and that the house *'™' of Brandt and Co., either by themselves or their agent, Mr. Wrongham, purchased this vessel, there is not a scintilla of evidence. Surely the Court would expect there would be something in the nature of evidence, if they performed the part of purchasers. All that was done was this: — Brandt and Co., of London, returned the bill of sale of the 11th of March to be certified by the Russian consul. This was a proceeding which I apprehend was absolutely necessary, if the intended deception on the Russian authorities was to be carried into effect at all. Again, when I look to the alleged consideration for the sale. The alleged what is the consideration as set forth in the instrument of the f™ the^sale°is 11th of March? It is a settlement of account, and no more, merely a set- 1 T T i • . tlement of — a very unusual proceeding, according to my experience m account. hon&Jide transfers. It must be recollected that I am now endeavouring; to ascer- '^^ yi^o\^ circumstSiiice tain facts only, and not the law, and that at present I have not leads to the considered the bill of sale of July 8th. Then, laying out of t^esalfof th^* consideration for the present the last-mentioned bill of sale, I nth March am disposed to come to the conclusion, upon considering all the TOlourable^to other evidence, that the bill of sale of the 11th of March was, protect the as represented by the claimants, a colourable transfer, for the demnatiM^by' 72 PRIZE CASES. 1854. the ^Russian government. The Court is not informed of the reasons •which induced the execution of the bill of sale of the 8th of July. The instru- ment of the 8th of July purports to be a conveyance by Brandt and Co. of Arch- angel and London to Mr. Wrong- ham, their own agent. It seems that this instrument was presented for registration, but not regis- tered. The effect of these docu- ments appears to be, that the legal title to the ship vras in Brandt and Co., and the equitable in Messrs. Stew- art and Smith. Quaere, could a British sub- ject support an equitable title to a ship of which an enemy had the legal title ? purpose of protecting the ship from condemnation by the Russian government if war ensued. I now come to the bill of sale of July 18.54, Here I must say I think that the Court has some right to complain of the neglect to furnish any information about this bill of sale. I have no explanation why or wherefore, or under what circum- stances, the bill of sale of July 1854 was executed.- What motives stimulated the parties to adopt those measures at all ? Upon what reasons this measure was founded I am left entirely to conjecture, for I have not. the slightest idea of what governed them in this transaction. The instrument purport's to be a conveyance by Brandt and Son of Archangel and London ; and it purports to be to Mr. Wrongham, their own agent, and for a price said to be settled with him for this vessel, then stated to be on her voyage from Archangel to Leith. The instrument then refers to the sale by Stewart and Smith, of the 11th of March, registered in the Custom House on the 13th of March, namely, to the bill of sale, which is alleged to be fictitious and colourable. I asked whether this bill of sale of the 8th of July was regis- tered. All I find is, that it was presented for registration on the 10th of July. It does appear somewhat singular that this transfer was made to Mr. Wrongham, if truly this bill of sale was colourable only. If all these documents yvere colourable only, and such second transfer necessary for Custom House purposes to invest the property in Messrs. Stewart and Smith, the natural course would have been to reconvey the property to them, and not to convey it to Mr. \^'rongham. It is stated in the memorial that Brandt and Wrongham are ready to reconvey upon being paid their advances. Confining my consideration for the moment to those facts, I think that the ;;iecessary inference would be, that Brandt and Co., by virtue of the conveyance of March 11th, had this ship validly conveyed to them to the extent of covering their advances, not- withstanding that, ea- facie, it was an absolute corf^eyance for a price settled. The effect of this would be, that the legal title would be in Brandt and Co.; the equitable title, subject to payment of advances, would be in Stewart and Smith ; and then in cases which occurred in former wars under ordinary circumstances, not under special circumstances, — would arise the question, whether a British subject could support an equitable title to a vessel, when an enemy possessed the legal title. That would have been the case in former wars, — whether in this, I need not say. THE " OCEAN BRIDE." 73 If this vessel had been sailing under the colours of an enemy, 1854. I should say this was a claim that could not be sustainable ; but judgment. here she remains navigated under British colours, — and that If the vessel prevents a difficulty which would have been insuperable,— for ing under Hus- if the vessel had been under Russian colours, that would have siau colours, it ■would have been conclusive against all the world, for reasons I need not heen conclu- refer to, as it is a well-known principle. thTwd!" ''^ However, the fact of this vessel beinji under British colours The continu- .■*■". f til is of impprtance, because it shows that Brandt and Co. of Arch- ^"jj^^ colours angel, — and these are the enemy merchants, — did not adopt the shows that the transfer of the 11th of ilarch; for the letter containing the re- not adopt the presentations made to the Custom House states, amongst other transfer of the fi • 11 1 (. T 1 ■ 11 f> 11th March, thmgs, as well as the tacts i am advertmg to, that that transter was of no use to them, — I think that is the expression, — that transfer would be of no use to them. Now, assuming that Brandt and Co. and Mr. Wrongham do not claim a lien for advances on account of the ship, and are willing to transfer only on condition of being paid such advances, it does not appear to me to follow, — necessarily at least, — that under these documents their claim would be a legal claim. It must be recollected that neither their opinion nor their conduct will make such claim legal if it be not so by law. They cannot engraft a claim on such a deed unless there is, legally speaking, something that would justify them. I am of opinion, that the- sale of the 11th of March was The sale of the 1 11 -, r- ■ • 11- 1 -1 • 1 11th March colourable and fictitious, and that it conveyed no right nor title was fictitious, of any kind to Messrs. Brandt. I am of opinion, furthermore, no'titl"ur^^* that Brandt and Co. could by no possibility engraft a lien Messrs. Brandt, upon that which was a nullity in itself. I perfectly well ^° lieu could understand that Messrs. Brandt and Co., and Mr. Wrongham, he engrafted as their agent, having got the deed, and not having got the money, are disposed to hold the vessel till they get the money back. Whether they are entitled to do so depends on legal considerations. There are other facts which I think will throw more light on the subject. I must coriie back to the deed of the 10th May. This is a The deed of mortgage deed to the agent of the enemy merchant, because *^ ^°* ^^ -niTiiiii '^ '^ mort- Mr. Brandt had changed his character between the period of gage to the granting the first deed and granting the second. He had been enemyf ^'^ j a friend, a neutral, — and had become an enemy in the interval, and it was granted to cover advances made, and to be made, on a British ship detained by the ice in the enemy's port. Accord- Quairc as to its ing to ordinary prizeJaw, I apprehend this instrument might J'wenerS^^'^ have been of no validity, though a Jo«(i_/?e claimants, ... . . . Messrs. Stew- off'ered as a security, gives a title to those in whose favour it is art and Smith. registered against any person whatever. But there is no such case here ; there is no one claims under the registry, because the persons who claim are neither more nor less than Stewart and Smith, the vendors. Here arise several questions ; whether I shall be successful The Court is in disposing of them 1 do not know, but at any rate I must p°e™1th the^^" have the courage to meet them. Nothing, in my opinion, is several diffi- more undesirable than to put the case vaguely. If the Court ^ch"aris«?^ ' is unable to come to a right conclusion, its judgment may be afterwards corrected ; but if the Court gives a judgment, and that appears easy, and the difficulty is never noticed, it leads to a supposition that the real point of the case never did arise. Now I will endeavour not to avoid the difficulties ; I grant that they are not small. First, how far is it the duty of this Court to take cogni- zance of the municipal law of this country, sitting as a Court of Prize ? And this head, I am sorry to say, may be again divided : first, as to a breach of the municipal law ; and secondly, as to pronouncing a decision which may be incom- patible with it. As to t£e first point, it is settled by various cases, that pro- it is settled perty claimed by British merchants cannot be restored, if at the '*^' ^^tP"^": . . T-> • • 1 P6i"ty claimed time of capture the trade is contrary to British statute law. hy British This is expressly laid down in the " Walsingham Packet;' (a) "^^^ot^te're- and the cases there cited, and in the " Etrusco." (h) stored if at the This rule of law cannot, I think, apply to the present case, the'trade^s'"'^'^ for I am not aware that it has ever been contended that this contrary to , . -11 11 1 • i J Ti I 1 British statute. ship was illegally engaged in trade. lo whomsoever she ™^ belonged she might lawfully bring this cargo to Great Britain. iUegaiity of trade in the {a) 2 C. Rob. 77. in consequence of the inadmissibiUty Present case. (6) 4 C. Rob. 262. n. " In the of such a claim is to be condemned, case of ihsEtmsco, Lords, 11th Aug., not to the individual captor, but to the 1803, it was decided, after long de- king." liberation, that property condemned 76 PEIZE CASES. 1854. Judgment, The protection of British pro- perty from hostile confis- cation is lawful and praise- worthy. There is no instance in ■which, on a British ship being claimed in the Prize Court, any question has heen raised as to the British registers agreeing with the bill of sale. J Quare, could the register alone bind a Court of Prize ? The Court of Prize decides, not upon the formality of a document, but upon its hona fide character. It is also fit to observe, that I deem the protection of British property from hostile confiscation a lawful and praiseworthy- object, and that this circumstance renders this case wholly- different from those I have cited. The principle of the '•' Walsingham Packet " is, — that you are not merely violating the law of the country in name and appearance, but doing an act held by the statute law to be injurious to Great Britain. You are endeavouring to obtain for yourself, for your own commercial purposes, the advantage of a trade prohibited by that statute law; therefore, as Lord Stowell very properly said, it was a great moral and legal prin- ciple. Stronger words I need not use, and the whole of that judgment proceeds on that ground. The " Etrusco" was a similar case. There the claimants of the "■Etrusco" were carrying on a trade prohibited liy the law. Now the second point is undoubtedly one of great difficulty, and of no ordinary magnitude, namely, that a decree of restitu- tion would convey the ship to claimants not on the register, and that this ship is a British ship. Upon this I will observe, I do not recollect, and I do not believe, that there has been any case of a British ship being claimed in which any inquiry or question has arisen in the Prize Court as to the British registry, or as to a compliance with all our navigation laws. Such formalities have not been entered upon, and, unless it was my bounden duty to do so, I should be reluctant to embarrass the Court with such questions, perhaps less embarrassing and perplexing now than they were in those days, but still quite sufficiently difficult not to induce the Court to volunteer to go into them unless it was distinctly a part of its duty. Again, it is a serious question how far the register alone would be binding in a Court of Prize. Could I, for instance, condemn this ship as the property of Brandt and Co. merely because she was registered in their names, when I am of opinion that there was no transfer, and that the proceeding was merely colourable ? I apprehend I could not. I might condemn her for another reason, but I could not on the ground that she was the property of Brandt and Co., because the Court of Prize never goes on a mere formal instrument. Over and over again Lord Stowell has said, it is not the documents themselves which the Court goes upon,— they must be true, they must be bona fide,— It never goes on formalities. This is a broad distinction, which I consider not only indispensable to prize law, but to be one of the most honourable distinctions which exist between a prize and a municipal court; that a Prize Court looks to that THE «' OCEAN BRIDE." 77 "which is bond fide true, while a Court of la\T is some- times bound by formality, which prevents real justice being done in the case. But supposing this colourable bill of sale, and consequent Neither does registry, to be made to a neutral merchant, could I restore to -pnze decide him, on the ground that no one else had a legal or equitable "^ *» ^ vessel's title? Now, what would be the effect of a decree of restitution Britisli resis- in the Court of Prize ? The po-ssession of the vessel would be ter, nor as to 1 1 • m • /-I • Its forfeiture given to the claimant. \ his Court does not decide that the under a parti- vessel is entitled to a British register,— it has nothing to do olar statute. with that question. It does not say whether there has been a forfeiture according to statute law or not ; that is the province of another Court. It is silent, as it ought to be, as to penalties. The vessel may have been forfeited twice over by municipal law, but the Court would act exactly as if no such thing had taken place. Might there not be cases in which a Prize Court would restore, Tliere miglit , -111- • 1 T^ • • 1 occur cases in whatever might be the circumstances with respect to a British which the register? There are no such cases on record ; no such cases have po"rt -would => _ be bound to occurred, as I believe ; I know of none. But let us suppose one. restore, -n-ith Suppose a British vessel sold abroad to a neutral subject. I rega^d'^to^thc''' apprehend a neutral subject might acquire a title which this British Court must recognize, whatever was the state of the register. I ° apprehend that, although, perhaps, it might give no title to a British subject, it would convey a good title to a neutral, which I should be bound to respect ; for this Court restores, — not with any reference to the national character of the ship, — but simply as a ship bond fide sold. I should not generally inquire by what law a vessel has been sold. See what the conse- quence would be if I did. If I were bound, in case a vessel was The inquiry- claimed by a subject of any one of the states at present neutral, J^'^^*^ which a to ascertain precisely what was their l;iw, whether he had ac- vessel -was sold, quired a good title by their law, I should bo under the necessity very gi-eat of becoming, — what I am sure I never shall be, — master of diificulties. the navigation laws of all these countries. Supposing I could, by possibility, get a glimpse of them, I never could ascertain whether there had been a fraudulent use made of it, if they had a register answering to something like our own, or whether all the formalities had been strictly complied with. Sometimes, certainly, the Court does make the inquiry. But Though it why ? For the purpose of ascertaining if the sale was bond fide, times* beTm- For that purpose I confess it might be considered important. But P""^"* ^" rpisrcncc to supposing you take the case of a neutral subject claiming a ship, the bonafvie and supposing the neutral in possession of the ship, and I was th™f ^' °^ 78' PRIZE CASES. The title not being con- tested by any other claimant, the Court is at liberty to restore the ship to the present claim- ant, without any inquiry respecting the British register. The claim should have been made by the owners themselves, and not by their agent. The Court cannot, when it restores the ship, condemn the alleged enemy's in- terest therein, viz., the bot- tomry bond. satisfied that the possession was a bona Jide possession, I cer- tainly should not inquire if he had obtained his title through all the formalities of the country, both of the vendor and the vendee, because both would be necessary to be inquired into. I should not enter into that inquiry, provided I was satisfied that he was the bond fide owner. I am well aware, with respect to English Laws, that the ob- ligation upon this Court may in some respects be different; but still, I think, according to the best of my judgment, it does not go to the extent of requiring me minutely to examine the title not contested by any other claimant. I am of opinion, therefore, that I am at liberty to make a decree restoring this vessel to the claimants not as a British ship entitled to a British register, for of that I do not judge, nor do I say, I repeat it again, that there has not been a forfeiture or penalty incurred. With that I have nothing to do. Before I come to a conclusion, I must consider what are the other objections so properly raised, and so very ably supported, on the present occasion. One, I think, I may dispose of, though not unimportant, in few words. It was argued, in opposition to the bona fides of this transaction, that the claim was made by an agent, and ought to have been made by the parties. I entirely agree with the truth of that observation, and think it was a circum- stance of some suspicion; but I cannot say it was really anything more. I cannot consider, as it is the commencement of the war, that the parties who are concerned in this matter, or their advisers in Scotland, ought to have been so well ware of the ordinary practice of this Court, that their adoption of this course of proceeding cannot be considered a venial error ; though at the same time, it would he of importance, unless the other facts removed the suspicion that arose from this circumstance. It is said, secondly, I might restore the ship, and condemn the enemy's interest in it, if he has one. Now what is that in- terest ? A bottomry bond is admitted in the memorial. That fact never was kept back. As to the master not having men- tioned the circumstance of a bottomry bond, I was originally struck with the argument as to his silence ; but I have had reference to the interrogatories, and I do not see tiiat the inter- rogatories pointed to a bottomry bond at all. I do not see that there was an intentional concealment, and it comes out from the mate. I do not see that the interrogatories distinctly, or indeed at all, required the master to allude to it. THE « OCEAN BRIDE." '^g I may here observe that it is not improbable^ — though I think ^854. I might have had more information on the subject, had some of j^^dgment. the parties thought proper to give it, — that Messrs. Brandt and The conscious- Company having a bottomry bond, and knowing or believing ^ot^*^^' bond they could not enforce it here, for that reason, among others, would not be oflFered to restore the ship on condition of their advances being mfy^ave'^^''^' paid. They say, first, we have got a mortgage deed of doubtful induced the validity ; and again, we have got a bottomry bond of still more to reconvey the doubtful validity; we cannot enforce it, but we will not transfer ship on pay- , , , . .11 1 . , ment of their the ship ; we will not be active unless we get our money advances. back again. That I believe to be the real condition of the deed of the 8th of July. But how can I follow the course suggested of condemning a bottomry this interest ? If the bond be considered as given to an enemy, ^"""^ Si">'ei *» . . . . . . . . ■'an enemy it IS a nullity, it could not be enforced ; if it is not given to an would be null enemy, then I could not condemn such interest. Again, it is ^" ^°^ ' wholly contrary to the usage of this Court to take notice of either a mortgage or bottomry bond. I believe there is no in- stance in which it has been done ; and all the cases, principles, and decisions are to the contrary. I should be very unwilling so to do in the present state of the law with reference to mere declarations and Orders in Council. If I do not restore this vessel to the claimants, I have no If the ship be . 1/^ iTin-xT ''°* restored tO' alternative but to condemn her to the Crown. And how .'^ JNotas the claimants, taken by a non-commissioned captor, but I must condemn her as ■" ™"** ''^, •' ...... condemned to the "Etrusco" was condemned, — for a violation of British law,— the Crown for to the Crown. This, I think, I could not do ; first, because I have no proof of a violation of British law, which, by British law, would entail such consequences as condemnation ; secondly, ground'suffi- because there has been no intention to commit a mala fide act cent to mduce- m violation of British law ; lastly, because the whole transaction adopt that is a deception on the British Customs for the purpose of pro- '^°^''^^- tecting British property, —not for the purpose of deceiving British authorities, not with the intention of violating British law, but for rescuing property supposed to be in the grasp of the enemy. I do not say that this course of proceeding, even for a laudable purpose, is quite correct ; but I think it ought not to stay my h%nd in pronouncing a decree, restoring the ship. I trust, in coming to this conclusion, whether Avell founded or not, I have at least fairly stated and met all the difficulties of the case. dMcuHy ships* This inquiry has been most properly instituted. Neither the should not be officers of the Customs, nor the officers of the Crown, would in Tvjthout the my opinion have been iustified in releasing; this vessel without judgment of , . , ,. 1 • /-I Till 1 I tlie c;ourt. the judgment of this Court. It has had to steer through many the violation of British law. There is not 1854. SO PEIZE CASES. difficulties of a perfectly novel character ; and where there are great difficulties, according to my view of the case, a ship never ought to be restored except by a competent jurisdiction. The judgment of the Court will be, to restore the ship on pay-, ment of the expenses which have been incurred by the Crown. October 18. A purchase purporting to be made just antecedent to the war by the master, who had before sailed in the ship as a Kussian subject, can only be upheld by in- disputable proof that the transfer was bona fide, that the money was paid, and that the purchaser was a neutral subject. THE«EAPID," Hansen. This vessel, under Danish colours, arrived from Archangel at Hull with a cargo on the 19th of August, and on the 21st was seized as Russian property. The cargo, belonging to British subjects, was restored. A claim for the ship was given on behalf of Mr. Hansen, her master, as her sole owner and a Danish subject. The vessel was built at Libau in 1853, and purchased by Messrs. Brandt and Sons, of Riga, who appointed Mr. Hansen, master. He alleged himself to have become the purchaser of the vessel on the 13th of April last, subsequently to which he made a voyage from Riga to London witii a cargo, whence he preceded in ballast to Archangel, where he took on board the cargo v. ith which he arrived at Hull. The Queen's Advocate and the Admiralty Advocate appeared for the seizor, Dr. Deane for the claimant. Judgment. The transac- tion requires indisputable proof. De. Lushington. It has been contended, on behalf of the captors in this case, that the ship is liable to condemnation on two grounds : either on the ground that the transfer was colour- able and fictitious ; or that, if bond fide, the master who pur- chased the vessel was a Russian subject, and consequently that the ship is Russian property. I will consider in the first instance whether there was a honcb fide transfer of the ship. It is necessary to state that this was a purchase purporting to be made just antecedent to the war by the master who had commanded her before, and who had sailed in her as a Russian subject. This, according to all the rules and principles laid down and established in the Prize Court, has been always considered as a transaction that cannot be upheld, unless it be indisputably clear that the transfer was hand fide, that the money agreed to be paid was paid, and that the person to whom the vessel was transferred was a neutral subject. The case has been very fully discussed, and all the documents have been brought under the notice of the Court ; and thouo-h I must, in justification of the opinion wliich I am about to give THE " RAPID." 81 refer to some of them, yet I shall refer more briefly to them 1854. than I should otherwise have done in consequence of my judgment. adopting the arguments which I have heard on one side and on the other. I will first read the answer of the master to the 8th inter- The evidence of rogatory for the purpose of seeing how far that evidence is * ^ ^^^^^' borne out and supported by the documents which have been produced in this case. He swears that "on the 18th of March he was told by the Kussian Consul at Lubeck that the vessel was sold." Therefore the information which he received from the Russian Consul was, that on the 18th of March that sale had actually taken place. "-That he then went over to Hamburg," I suppose I must understand from that, without any delay in consequence of hearing that report ; "where he learnt," — that is, for the first time information was given him, — " that Messrs. "Wagner and Enet had bought the vessel, and he thereupon called upon them and offered to buy it." He concludes by saying, that he has had no correspondence with any one upon the ship since the purchase. The ship had been originally built by Buckhoff in 1853, and was sold by him to Brandt and Co., merchants, carrying on a trade at Kiga. It is stated in the papers that they were mer- chants at Archangel. It is a matter of no consequence, because it is clear, from previous cases, that the house of Brandt and Co. at Archangel and Eiga are connected, to a certain extent, Avith the house in London. I may here observe, because it may be of use in other cases. In Prize Cases, that it is the custom of the Court where information has been ^^^ "^"""^ "^^^ m one case ■ acquired in one case to use it in pthers. Lord Stoioell over and information over again states, " I do not forget the information which I have other c^ses™ derived from other cases." Soon after the month of April it appears, according to a previous part of the master's evidence, that the vessel went from Lubeck to Riga in ballast, from Riga to London with a cargo of hemp, from London to Archangel in ballast, and from Archangel to Hull with a cargo of linseed, and there she was seized. This is the history of the vessel, according to the statement of the master. Let us now see whether the documents are conformable The evidence to the evidence; whether it is consistent with probability that iL not con-" he received the information which he alleged he received from distent with the Russian Consul at Lubeck as to the vessel being sold, and in the case. whether in consequence of that information he did go to Ham- burg and purchase her on his own account. Now the alleged account is, that Brandt and Co., of Riga, being determined to The Master has deposed falsely ; the transfer was colourable, and the ship must be con- demned. PRIZE CASES. get rid of the vessel, in consequence of the impending war, authorized "Wagner and Co. to dispose of her, A strange circum- stance then took place. Those who had the power of attorney to sell the vessel, sold it to one of themselves ; and it was almost immediately afterwards transferred to the master, — a still more striking circumstance. [The learned judge then referred to several of the documents, with a view of testing the truth of these statements, and said :] It appears to me that the master has deposed falsely and untruly ; therefore I have not the least hesitation in saying that the transfer of the property was merely colourable, and I con- demn the vessel. With regard to the very important argu- ment respecting the national character of the master, it is of no use for me to enter into it, because I entertain no doubt that the other ground is a very suiEcient one for condemning the vessel. THE " CHEISTINE," Schwartz. 1 HIS vessel having arrived at Liverpool, from Memel, under Lubeck colours, on the 31st of July, was seized by the Custom- house officers on the 11th of August. She was claimed by Mr. Schwartz, her master, on the ground that he was a neutral, being a citizen of Lubeck, and had pur- chased her of Russian ownere. He admitted, however, that he had not paid any part of the purchase -money, nor given any security beyond his own personal engagement, but stated that his property at Lubeck was liable to satisfy|the claim against him for that purchase. The Queen's Advocate (with whom was the Admiralty Advo- cate) contended to the same effect as the judgment. Dr. Addams (with whom was Dr. Twiss) contended that there had been a bond Jide transfer of the ship from the Russian owners to the master, and that the property being absolutely divested, the non-payment of the money would not invalidate the transfer. The case was, at the worst, merely one of sus- picion, which suspicion might be cleared away if the Court allowed further proof. " The Marianna' («), " The Bernon (b), and " The Jemmy " (c), were cited. Judgment. De. Lushingtok. For the purpose of the judgment I am about to deliver, I will assume that the master is entitled to the October 18. A purchase shortly before the war by the master of the ship, which continues in the same trade, is of the most suspicious cha- racter, and would require stringent proof of the actual pay- ment of the money. When it appears that the money has not been paid, and that there was no bill of sale on board, fiirther proof cannot be al- lowed. (o) 6 a Rob. 24. (4) 1 C. Rob. 102. , (c) 4 C. Rob. 31. THE "CHRISTINE." 83 neutral character which he claims as a citizen of Lubeck, and confine my observations to the circumstances of the purchase of this vessel. According to the master's own statement, this purchase was Contract sus- 1 r •! 1 1 • II' 1 1 piciousas made at Libau, by a contract between himselt and the owner, being imme- executed at Libau in February or March 1854, he having been "^'j'^'Tf^th previously master of the vessel from June 1853, and sailing -war, and being under Russian colours. This contract is a very suspicious one, tjig'^j^aster ^ not only on the ground that it was immediately antecedent to the war, but also on the ground that it was a purchase by the master. I very much doubt, if all the records of this Court were examined, during the last war, whether there would be found a single instance in which restitution passed to a master, who was master of the vessel at the time of the sale and who afterwards continued master, the vessel being still employed in the same or an analogous trade. Be that as it may, and not In such cases considering it to be a fatal objection, yet it is abundantly clear netfessary tii^ that a party coming forward under such circumstances, and satisfactory- claiming a ship in a neutral character as a burgess of Lubeck, is should be on bound, not only to produce, but to have on board sufficient ^''°'^- documents to satisfy the Court that he possesses a bond fide title. I do not say that the Court would bind him down to the production, in the first instance, of all the papers which it might ultimately deem necessary, to induce it to pronounce for a restitution ; but I do say it ought to be a contract of that nature in itself, supported by such documents found on board, as would give the Court good reason to suppose that, if the op- portunity of producing further proof was allowed, it Avould give him a title to restitution ; otherwise further proof is a mockery. Now in the present case there are two capital .defects. The There are twa master's answer to the thirty-first interrogatory is in substance in^the case : * this: that he, the party who now claims as the purchaser of the ist-thenon- 11 i •! • 1 1 -ii- n , 1 payment of the vessel, has not paid one smgle shilling of the purchase-money, purchase- 4000 roubles ; that he has given no securitv for it, but that he mo^^y^hich ° - ' IS of vital im- believes his property at Lubeck would be liable to pay for it, portance in and perhaps the ship, if it went back, would be also liable. He ^tT„l,°^^"^' then goes on to say, that after the payment of expenses he should remit the earnings of the ship to liquidate the interest, and reduce the principal. I am of opinion, looking at all the decisions which have taiken place in this Court, that the case is felo de se, on the statement of the master. It has been laid down, not in one, but in half a dozen cases, that there must be proof of payment in all cases where any suspicion arises as to the validity of the contract at the time of sale. It is. quite vain to say, " Mine is a f2 84 PRIZE CASES. 2nd. The ab- sence of the bill of sale, ■which, being the title-deed to the ship, should be on board. bond Jide valid contract." The money must have been paid before the master assumes the command, or ventures out on the high seas during war ; otherwise the ship would be liable to be condemned. I have been asked, in the course of the argument, whether it is necessary that the money should be paid in all cases ; whether a bill of exchange would not do ? That ques- tion I will answer when such a case comes before me for my decision. But I will say this, that if in any case it appeared to me that one ship had been exchanged against another, or that some equivalent had been actually paid over, that would, in my* opinion, be a totally diiFerent case from the one now under dis- cussion. All that is now stated by the master is, that he had agreed to purchase the ship, but had not paid one farthing. That is a title of which no Prize Court can take cognizance. That, however, is not the only defect in the case ; the title on which the master claims, the bill of sale, is not here. Now this may be a bond Jide claim ; I do not decide whether it is or not ; but I decide that it is not legal, according to the usage and practice of the Court, and the laws which regulate the Court in matters of prize. If this important paper, which is the sole title-deed, is not produced, what satisfaction can the Court have ? The title-deed to the ship should be on board the ship. If further proof were allowed in this particular case, could the Court feel satisfied that it would receive a genuine document ? The case is teeming with suspicion throughout. Is there any one document whatever produced that can satisfy the Court that the transaction was bond Jide, independently of all the cir- cumstances I have mentioned ? Certainly, there is one docu- ment, marked No. 5., to this effect : — " "We, the Senate of the Free Hanseatic town of Lubeck, do hereby make known and declare, that before the senator, H. C. Dettmer, by us specially hereunto appointed, hath in our Chancery personally appeared the local ships' clearer, J. C. F. Schutt, of the firm of Schutt and Company, as lawfully authorized by the local burgher, and Captain Johann Frederick Schwartz, by his power of attorney, dated Libau, the 12th of February 1854, a burgher of this town, and deposed, and upon corporeal oath affirmed, that the aforesaid ship ' Christine •" commanded by the local burgher and captain J. F. Schwartz, doth solely and bond Jide to the last- mentioned belong, and that none other, whether directly or indirectly, bath any share or interest therein." So that this gentleman makes oath, by virtue of a power of attorney from Captain Schwartz, which power of attorney is not produced. I have simply this document, which in no degree corroborates the claim. No case could be produced THE « CHRISTINE." 85 which would alter my impression of the present one. The " Marianna" (a) was a totally different case; that was an enemy's ship, and the question before the Court was the title of property in some goods and in the freight, for which a claim was made by the former owner of the vessel, on the ground that he had a lieu on the property for the purchase-money, which had not been paid. Lord StowelVs remark, that the fact of the purchase-money not having been paid could have little weight, since it was a matter solely for the consideration of the person who sells to judge what mode of payment he will accept, applied (and 1 perfectly agree with him) to the circumstances of that and similar cases ; but not to a case where the question in dis- pute is the bona fides of the sale, for in such cases it has always been held that proof of actual payment was essential. I cannot allow further proof, and have no hesitation whatever in condemning; this vessel. THE "FIDENTIA," Serlachius. ^Vb^. u. On the 21st of July the Court allowed further proof in this ^ ^in"'' case as to the cargo. {IS) The proof not being brought in within proof the the time allowed, an application was now made for further the«irKo'''wheri time. the asserted Dr. Addams appeared in support of the application ; the madfe no Queen's Advocate, contra. affidavit and produced no correspond- De. Lushington. The present question is, whether the Court euce, refused, ought to allow more time for the purpose of giving in the ^"n^ ^ned^" further proof which was ordered when the case came before it on Judgment. the 21st of July List. Before I proceed to the circumstances An application pf this case, it is very expedient that I should remark, that such ^m^^ time an application for the extension of time, made in so informal a granted for manner, will not again be entertained by the Court, because it further proof is necessary in all such cases that the application should be ™"^',^t n 1 T /v»i» . founded on an founded on an affidavit which should be delivered to the Court, affidavit together with the papers in the cause, in due time before the motion comes on to be heard. As observed by Dr. Addams, the main question before the Court is, whether it should allow further time or not ; yet it is not irrelevant in many cases to refer not only to the papers and to the facts adduced, in order to induce it to give further time, but also to the evidence in the original cause. I do not think it necessary upon the present occasion that I (b) 6 C. Rob. 24. (6) Anti, p. 39, 86 1854. Judgment. The case is one in which the Court In order to restore would require strong proof. The facts of the case. The «!ase is suspicious at the outset. The nettral on whose behalf the claim is made has not taken any part in the pro- ceedings. PEIZE CASES. should comment upon the evidence in the original cause. It appeared to me perfectly clear at the hearing,, that the Court would not restore the property, under the circumstances of the case, unless perfect and adequate proof were given. The facts of the case are, that this was a Finnish vessel, and that she was proceeding with a cargo to a Finnish port. She sailed, so far as I recollect, towards the latter end of March, and was captured on the 9th of April. A claim was given on tlie 27th of May, according to a statement in an affidavit made by a gentleman who appears to be a merchant resident in this town, and connected he must be, by inference, with a house in Finland. He says, " I received a letter from Elias Unonius, of Lovisa, in Finland, dated the 12th of May, enclosing a power of attorney from himself and A. Sundman, authorizing me to claim the above- named barque ' Fidentia,' as their property," — it was claimed as Russian property ; that claim was rejected and the ship con- demned, — " and the cargo as the property of Johan Duncan Shaw, of Cadiz." I must say this case does not set out under very favourable auspices, because the claim is made on behalf of Mr. Shaw, who, though a British subject, yet in, fact is entitled on the present occasion to no other character than that of a neutral merchant resident in Cadiz ; and the claim comes, not from any authority from him, but from the authority of consignees, who are the enemy merchants in an enemy's country. ^ It does not appear that even up to the 2 1 st of July, according to the statement of this letter, this gentleman had interfered in this case. The affidavit then goes on, " On ascertaining from my proctor that the judge had directed the claim on behalf of the said Johan Duncan Shaw to stand over for further proof as to its being his property, I, on the 27th of July last, transmitted, per post, to the said Johan Duncan Shaw, at Cadiz, a sketch of an affidavit to be sworn to by him In further proof of the said cargo being his bona fide property, with directions to him to annex to such affidavit as exhibits copies' of the letters which had been addressed and sent by him to the said Elias Unonius and A. Sundman, transmitting to them the bills of lading of the respective portions of the cargo consigned to them by the said Johan Duncan Shaw, and containing his directions as to the disposal thereof." Now this letter was sent, and the form of an affidavit. So far as the Court can collect from the brief statement contained in this affidavit, if correct and true, the affidavit forwarded to Mr. Shaw must have been to the effect that the property belonged to him, and the letter required "On the 19th of August him to transmit the correspondence. THE " FIDteNTIA." 87 fdllowing, I received a letter dated the 8th of that month," — I do not see that there was any delay in this, — " frorii Mr. Shaw, returning the said affidavit for amendment, by reason that he \yas unable to furnish copies of the letters so sent to the said Elias Unonius and A. Sundman, inasmuch as by some accident they had not been entered in his letter-book." Hovr it will be observed, that in this letter, whatever else might have been its contents, there is not only no proof that no letters w^ere written on such occasion, but there is proof by necessary inference that there were letters accompanying the bill of lading, and their not being annexed is attributed to the accident that they had not been entered in the letter-book. It is rather, I confess, to me a startling circumstance, that a merchant making a consignment at that period, especially under the circumstances of this case, who wrote letters representing what was to be done with the cargo when it arrived in Finknd, should by some unaccountable accident not have entered them in the letter-book. Mr. Unonius says, on the 29th of August, having conferred with his proctor, he sent a letter to IMr. Shaw, stating that he feared it would be useless again to apply to the Court for the restitution of the goods, unless the original letters were pro- duced. On the 29th of September, he received a further letter from Mr. Shaw, dated the 20th of that month, informing him that he was unable to furnish him with copies, as he he had also stated in his former letter, but suggesting that h& (Mr. Unonius) should claim the original's which had been sent to Finland. I must say, I am a little surprised that at If the party the time the correspondence took place Mr. Shaw did not cargo is make an affidavit stating that the property claimed did belono; <=liii«>«'i ^"^ . °. T , 1 ™a T mi • • • 1 • • n needing, held JJe. JUushington. Ihis IS a question as to the restitution of entitled to the cargo, the Court having on a former day restored the ship, f^™^ff^ ?°'^ with costs and damages. This vessel and cargo having been of giving in seized as prize, I conceive it to be a proposition perfectly evi- * ^" '^ ^'™" dent in law, that the sole and exclusive jurisdiction of the whole The sole juris- matter belongs to the High Court of Admiralty, under the ^^|°° '^^J^\ commission that has been issued by Her Majesty in prize dom in all matters, and that no other Court whatsoever within the United, ™^"?Jgp°j°g Kingdom is entitled to exercise any jurisdiction at all. Sup- is vested in the posing that an action had been brought in any other Court for Admiralty. costs and damages, it would be a good and sufficient defence to say that this was a matter of prize. That was a lesson which I learned early in life, and I believe I was correctly taught. The Court has already expressed its opinion that there was no More leniency- sufficient ground for this seizure, and that it ought never to have ^g tim?**'^ been made. The seizure took place on the 11th of October, but of entering the claim for the cargo was not made till the 16th of November, shown to a The Court is disposed to make a distinction between the claim- foreigner than „, ,,,. PIT- I- -to a British ants or the cargo and the claimants ot the ship on this ground : subject, resi- the ship was Danish property, and it appeared consistent with dent in this equity, and the ordinary practice of the Court, that more time should be allowed to a foreign claimant to prefer his claim than to a British subject resident on the spot who had every oppor- tunity to acquire a knowledge of the course to be pursued. Now it appears that the present claimants of the cargo were "^^^ claimant ., ■ • n -, T n T T-11 mistook his eitner misinformed as to the course ot proceedings which they proper course ought to adopt, or were in utter iscnorance of it; and it appears of Pfoeeeding, , , ^ 1 ^"'^ must him- to me that whichever was the case, it would not be just for self bear the the Court to lay the burden on the party who originally made ^"^fs'^^rror** the seizure. I cannot, therefore, direct the costs and damages to begin before the claim was made, viz. on the 16th of No- vember. With respect to their continuance, it appears that on notice being given of a motion for restitution, with costs and damages, the claimants were informed that the restitution would not be opposed. They might, therefore, have taken possession of their property on the 22nd of November. Where it is in- tended to prefer a claim for costs and damages, restitution should be accepted, praying that the question of costs and damages G PRIZE CASES. may be reserved. If restitution were declined until the ques- tion of costs and damages was discussed, great delay might take place, and very large expenses be unnecessarily incurred. The parties in this case are fairly entitled to restitution with damages from the 16th to the 22nd of November, and costs, (a) Nov. 22, 25. Dec. 1, 6. Sale of enemy's ship shortly before the war. The onus of giving com- plete and satisfactory- proof thereof lies on the claimant ; without it the Court cannot restore. The Court is not called upon to pro- noraice affirm- atively that the transfer was fictitious or fraudulent. Dec. 6. Judgment. The facts of the case. The persons concerned. THE " ERNST MERCK," Kkugeb. i HIS vessel sailed from Pillau to England under Mecklen- burg colours, and was seized in Hull on the 1st of June 1854, by the Custom-house oflScers. She had a cargo of wheat and hemp on board, which was restored. On the 11th of August a claim was given in by Mr. Gustav Menkow, of Schwerin, in the Grand Duchy of Mecklenburg Schwerin, on behalf of himself and Mr. Frederic Albrecht, of the same place, as the sole owners and proprietors of the said ship. On the 30th of August, the Court ordered further proof, which being brought in, the case came on for hearing. The QueerCs Advocate and the Admiralty Advocate appeared for the seizors ; Dr. Haggard and Dr. Bay ford for the claimants. De. Lxjshington. In order to state clearly the opinion which I have formed upon this case, it will be necessary to specify the alleged facts with more than ordinary minuteness, and with equal care to notice the evidence by which such facts are supported. The principal persons concerned in these transactions are, — first, the house of Knock and Company, Russian subjects, resi- dent at Riga, the alleged vendors of the vessel claimed; secondly, Messrs. Albrecht and Menkow, subjects of the Duke of Mecklenburg, and resident at Schwerin, said to be the purchasers; thirdly, Kriiger, the master, a Prussian bom, afterwards having the national character of a Russian, and now alleged to have the national character of an inhabitant of Meck- lenburg ; fourthly, Mr. Charles Bolsche, described in the docu- ment marked 2 A. as of Riga, merchant, the undoubted agent of Knock and Company of Riga, and the asserted agent of Albrecht and Menkow, for certain purposes; fifthly, the house of Merck and Company, of Hamburg, bankers, who are {a) On a reference to the registrar chants, to which no objection was and merchants to assess the damages, taken, reduced the amount to 40/. a claim for 129Z. 12s. Ad. was made on No claim was made on behalf of the behalf of the owner of the sliip ; but owner of the cargo, the report of the registrar and mer- THE " ERNST MERCK." 99 stated to have been bankers both to Albrecht and to Knock 1854. and Company, and through whom It is alleged certain payments Judgment. were made. The' ultimate decision of this case will depend principally upon what has been said and done by these parties, taken in connexion with the documents herein produced. The history of the voyage is as follows : this vessel sailed The voyage from Pillau to England under Mecklenburg colours, and was P^'^cediiig the . o » ' seizure. seized in the port of Hull, on the 1st of June last, by the Custom-house ofi&cers. She had a cargo of wheat and hemp on board, which has been restored. On the 11th of August 1854, a claim was given for this ship by Mr. Menkow, whereby he claimed her as the property of himself and Mr. Albrecht, of Schwerin. On the 30th of August the Court ordered further proof to be given in support of this claim ; that further proof has now been brought in and fully discussed. It is now necessary for the Court carefully to inquire what Antecedent is really and truly the history of this ship antecedent to the g^-^^^ ° ^ voyage. First, she was built at Libau, in 1853 ; and she was built for the joint account of Knock and Company, and Kriiger, the master. It has been argued that by the law of Russia, the Alleged Hen master had a peculiar right with respect to this vessel, which by*the™aw^of did not entitle him to be what we call in this country a regis- Russia. tered owner, but that he was placed in this peculiar position, that he had a right to have some given share in the profits of the vessel, and was subject to any losses arising to the concerns of the vessel, and could sell such right, but that Knock, the principal owner, could transfer the vessel without Kriiger's consent. It is sworn that such right exists by custom both in Russia and Germany. How, in such case, Kriiger was to be paid for his interest in the vessel when sold, whether by the purchaser, or by Knock, the vendor, is left wholly in the dark ; in some way or other, of course, he was to be indemnified, either by retaining his proportionate share, or by payment from some one. I can well understand how such a right as I have now described may exist, but I cannot so well comprehend how a transfer can be made of this vessel without some distinct pro- vision for the securing such a master's interest. I can easily conceive that there may be a share in a brewery and not in the premises, or in a newspaper, and not in the house where it is printed and sold ; but it appears to me that a perpetual share in the profits and loss of a ship cannot be separated from the ship, though a share in the profits and loss of a voyage may. The case put by Dr. Haggard, viz., that of a whaling voyage, in which the master shares the profits, is entirely different ; it is g2 100 1854. Judgment. History of the claim, and the alleged ownership. The Court cannot restore to claimants except as the sole legal owners. Though the Court, in condemning an enemy's ship, cannot recog- nize a lien as against the captor, yet the Court cannot restore to claimants when it appears that others who have not claimed have a lien or interest in the ship. A neutral merchant, engaging for the sake of extraordinary profit in such PRIZE CASES. coufined to the voyage, and is not, as in this case, a perpetual lien remaining on the ship. Now, the claim is, as I have said, for the ship, as the pro- perty of Albrecht and Menkow. It is exceedingly important that no doubt or obscurity should be allowed to hang about the law as administered in the Courts of Prize with respect to such claims. First, I apprehend that I cannot restore the ship to the claimants unless they show that they are the sole legal owners ; and secondly, that though in the case of an enemy's ship, or a ship condemned by the Court of Prize, I cannot take notice of any lien or interest, yet, in the case of a claim and restitution asked for, I cannot restore, if there be any interest in the ship belonging to any one else, for which no claim has been given. This proposition, perhaps, requires some elucidation. If A. B. claims a ship as his property, and it should turn out that he is a trustee for shares in that ship be- longing to another person, I cannot restore that ship to A. B. — I will not say in no case, — but certainly not unless the cestui que trust is himself entitled to restitution. There ought in such cases to be a claim for a person equitably interested. This will render it necessary for me presently to examine and determine whether the master has any, and what interest, in the ship. For the present I will proceed with what I will call the history of the claim. The representation on the part of the claimants is, that Bolsche, by virtue of a power of attorney, which was general and not special, as the agent of Messrs. Knock and Company, did, on March the 13th of the present year, transfer to Mr. Albrecht, his father-in-law, all his right, interest, and title to this vessel ; and it is represented that at such time Mr. Albrecht had one tenth, Mr. Menkow another one tenth, the master, Kriiger, an undefined right to four tenths, and the remaining four tenths belonged to Mr. Knock, — I say the remaining four tenths, because such would be the whole interest remaining in Mr. Knock, supposing the agreement with the master has been fully carried out. It is, then, an indisputable proposition, that as this vessel sailed under Eussian colours up to the 13th of March, and was to all intents and purposes a Russian vessel, if she had been seized before that date, whatever had been the right of Albrecht, Menkow, and Kriiger, it would have been condemnable as Russian property. This being a sale by a merchant, now become an enemy, very shortly before the war, is a transaction requiring to be very narrowly investigated, and respecting which the Court must exercise great vigilance lest the property of the enemy should THE "ERNST MERCK." 101 be sheltered under a fictitious sale. A real lond fide sale Is, no 1854. doubt, within the bounds of lawful comnierce, — of commerce j^gmmt. lawful to the neutral ; but if a neutral merchant chooses to suspicions engage for the purpose of extraordinary profit in dangerous specu- asThe "piwchase lations of this kind, he must be bound to satisfy the Court of of an enemy's the fairness of the transaction by the clearest evidence, complete before the -war in all legal form, and not only in legal form, but in truth and is bound to give reality. If he does not produce such proof, or produces it in ^roq/" of the part only, when the res gestcB show that better proof might bona fides oi have been adduced, he must not expect restitution upon such ^, , . ..^^ incomplete evidence. proof must he [The learned judge then examined with great minuteness the ^ "^"^^ ' evidence of the transfer, and the master's alleged interest, and having pointed out numerous discrepancies and deficiencies, continued.] I now come to the payment ; we all know that one of the Proof of actual most important matters to be established by a claimant is payment is i _ •'_ _ absolutely undoubted proof of payment. It is alleged and it is argued that necessary. 8000 dollars have been paid to Mr. Knock, through the house of Merck and Company, of Hamburg ; and it is said that this money was paid in the following manner : that Knock and Com- pany drew bills upon Albrecht for larger sums, which included this 8000 dollars ; that Albrecht accepted those bills, and sent them to Merck and Company to be placed to the credit of Knock and Company, and which they promised to do by their letters, " after recovery." I was very anxious to get some solution of these words, " after recovery ; " it is to be observed that this 'transaction is by bill of exchange, i. e., a promise to pay, but not a bill made payable at their house. What, then, is the meaning of " after recovery ? " If we look at the German, we find that what is translated " after recovery," is literally " after receipt," or " after payment." I apprehend that they retained the bills for the benefit of Knock and Company, and that when put in cash for the amount of the bills, they would place the amount to Knock's account. It is singular that Mr. Albrecht does not swear to this payment at all ; Mr. Menkow, indeed, swears that the payment was made by drafts, dated the 30th of March and the 6th of April; but is this payment, according to the established rules of this Court, satisfactorily made out? First, there is no proof whatever that these bills peficiencies -, p 1 1 f ™^ *^ prooi 01 were ever paid, or the proceeds transferred to the account or payment. Knock and Company. This might easily have been given by extracts from the books of Merck and Company. Secondly, there is not a syllable coming from Knock and Company as to the receipt of payment. 102 1854. Judgment. Absence of correspondence respecting the transfer. National charaeter of the master. National character by occupation may be more easUy changed than that by birth ; but the change must be honajide, and cannot be effected by a mere money payment. National character of the ship. False papers. PEIZE GASES. It appears to me that tliere are deficiencies in this case which can scarcely be accounted for ; there must have been some cor- respondence between Knock and Albrecht antecedent to the sale, and subsequent also ; but only one letter is produced, and that not from Knock, but from Albrecht. The master says he received a letter from Knock informing him of the sale, — that is not produced. There is no affidavit from Bolsche, none from Knock, nor is there any attempt to explain the want of a proof so manifestly necessary in a transaction of so suspicious a nature. But to proceed with the facts of the case. I will consider the acquisition of the national character of the master, and also the obtaining for the ship the rights of the Mecklenburg flag together. With respect to the national character of the master, — a Prussian by birth, a Russian by national character up to the 4th of April 1854, — it may be as weU to say a few words on the doctrine so strongly insisted on by the learned counsel for the claimants, and which I think is founded on sound principles. It is this, — that a national character, acquired by occupation only, may be changed with greater facility than a national character arising from birth or from long domicile ; but though I admit this to be true, yet I hold that it is also true that a national character, acquired by occupation, must remain until another is bond fide acquired. How has such domicile been acquired in the present case? By a residence of two days afterwards, and the payment of a few dollars. It must be observed, moreover, that this was not a return to the national character of origin, but the acquisition of a new national cha- racter in a state to which the master was altogether a stranger. The master is said to have been naturalized on the 4th of April, to have been made a burgher on the 5th of April, and to have had four shares transferred to him on the 6th of April, on which day, also, the passport is dated ; he admits that he was resident in Schwerin for two days, not before, but afterwards ; he acquired, therefore, his right, if indeed he acquired any, to a citizenship at Mecklenburg by purchase, and not by residence.' If this be a legitimate mode of changing a national character, then such change may take place in twenty-four hours. But is this new acquisition of national character of the master connected with change of character of the vessel, and how was this effected? First, there is a paper. No. 6., admitted to be false, that the vessel was built at Bostock ; secondly, there is a pass equally false, permitting the vessel to sail from Rostock, where she had never been. What, then, is the necessary inference from these THE "EENST MEECK." 103 facts ? Either that the Mecklenburg government was deceived 1854. by false representations as to this vessel, or that the govern- judqment ment granted Mecklenburg papers, knowing that they were granted upon false grounds. The Court is disposed, as it is its duty, to protect the just The Court .,,„ ^, j^i • f •■! cannot allow rights ol neutrals and the proper exercise ot municipal powers the rights of by independent States within their own dominions ; but if for belligerents . ^ ... . . , . p to he defeated its own advantage, any btate will sanction, either in torm or hy neutral realitv, such measures as these, it is also the Court's bounden States issuing T , T . . i^'s^ papers, duty to take care that they do not operate as an infringement on the just rights of belligerents. Let us now see what was the course followed with respect The vessel to the employment of this vessel. Who was the agent em- tinning her ployed to have the conduct of, and the control over her? Mr. ft"'™er trade. Bolsche, the agent of Knock and Company. Whither was she going had not accident prevented it ? To Riga, to resume her former trade, — Riga, the residence of Knock and Company. Under these circumstances, can it be seriously contended that the national character of the master was changed, and that the ship became a bond fide Mecklenburg ship ? There are other facts, however, in this case which the Court There has is bound to notice. There has been a suppression of important suppression papers in no degree accounted for by the master, though he has "f Papers. had ample opportunity of so doing. There are grave defi- ciencies in this case. The law requires, where a vessel has been purchased shortly before the commencement of the war or during the war, clear and satisfactory proof of the right and title of the neutral claimant, and of the entire divestment of all right and interest in the enemy vendor. The onus is upon the The onus is claimant to produce this proof; if he does not do so, the Court claimantto cannot restore. The Court is not called upon to say that the produce satis- T 1 f -I 1 ■ ■ . ■, factory proof transaction is proved to be fraudulent ; it is not required that of his claim ; the Court should declare affirmativelj'- that the enemy's interest J^^^°^^ "^^"^ remains ; it is sufficient to bar restitution if the neutral claim cannot restore. is not unequivocally sustained by the evidence. This being the j^^ofcau'd law, how then does this case stand ? First, a purchase, where "Po" *« pro- what was bought, and what was sold, and what was the interest "rmsaotion of the master, is wrapped in- impenetrable mystery, and this fraudulent. even if the alleged custom as to the interest of the master rp, „ „„„„ . should be admitted to be true ; — a custom not argued to °o' discharged. extend to Germany, though it is sworn so to extend in the affidavits. Secondly, no previous correspondence between Knock and Albrecht, though the papers point to it ; the bill of sale and the letter of Albrecht being inconsistent with each other, inasmuch as the bill of sale declares the transfer to have 104 PEIZE CASES. The vessel must be con- demned. taken place at the desire of Albrecht and Menkow, whereas the letter states it to have been at the desire of Knock. This, letter is the only one produced, and proves nothing, though it is evidently one of a correspondence which might have proved all. Thirdly, no satisfactory proof of the payment. Fourthly, no evidence from Knock or from Bolsche, and no correspond- ence after the sale. Fifthly, the acquisition of Mecklenburg papers upon false grounds. Sixthly, the suppression of papers. Seventhly, the continued employment of the vessel nnder the agency of Bolsche, and the intended destination to Riga. Under these circumstances, having carefully weighed all the arguments so industriously urged on behalf of the claimants, I have no hesitation in saying that, according to my understand- ing of the law and practice of the Prize Court, restitution cannot take place, and I therefore condemn the vessel. Dec. 6. Parties know- ingly making a fraudulent claim con- demned in the costs of the proceedings. THE " ATLANTIC." 1 HIS vessel was seized by the Custom-house officers at Leith, on suspicion of being Russian property. A claim was given in for her by a firm in Liverpool, who made an affidavit that no enemy had any direct or indirect interest in her. The claim, however, was withdrawn before the hearing. The Court, being of opinion that there had been an attempt to practise a great fraud upon the Court, not only condemned the ship, but condemned the claimants in the costs cf the proceedings. Dec. 16. ?i- 29. A vessel belonging to a Kusslan, said to have been transferred by virtue of a power of attorney to a Dane at Messina, then resold by virtue of another power of attorney to her master while at Copenhagen in the course of her voyage, THE « SOGLASIE," Fischeu. i HIS vessel sailed from Cronstadt with a cargo of wheat, on the 17 th of May, 1854, ; bound to the port of Leith, where she arrived on the 22d of June, and was there seized by the Customs officers. A claim was given in on the 1st of August by Johann Fischer, the master (who described himself as of Copenhagen), as the sole owner. On the 11th he made an affidavit to the effect, " That on the 14th of May last (a) he took on board a cargo of wheat at Cronstadt, and cleared out on the said day ; and that the said vessel was towed out to the roads at Cronstadt, (a) This affidavit seems to have been intended to bring the vessel within the protection of the Order in Council of the 15th of April, upon which point see the remarks of the leai-ned Judge, p. 110. THE « SOGLASIE." 105 but that owing to adverse winds she was not able to sail until ^854. the 17th of the said month." c 1 1 T "^^'^ bona 11th interrogatory was, triat he was master of the vessel, and fide\x3,ns- in October 1853, when in St. Petersburg, received from the ^^■"''^'l- owner, Mr. Elize Jeff, a power of attorney to sell the schooner j^g^g rather to whomsoever — a general power of attorney ; that, in virtue for tl>e natural thereof, he sold her to Johann Saraow, a Danish merchant, transaction, residing and trading at Messina in Sicily, when he was there ^^''^ ^ corre- with the vessel in February 1854, for 26,000 francs ; that he than for formal then assumed the Danish flag ; that on the 7th of June, when ■ 1 1 , - • 1.1 no reason to measure or warfare against iiussia, the question is, whether complain of neutral nations have a right to complain thereof? In what this mode of respects are they aggrieved more by a blockade of this kind enemy's ports. than by one where the blockading force is stationed more immediately off the coast or town blockaded ? 118 PEIZE CASES. Its legality is not affected by the distance of the blockading force from the place block- aded. This doctrine is supported by authority. Chancellor Kent. Lord Stowell. The Lords of Appeal. Lord Ten- terden. Blockade of Buenos Ayres. It is not a question of efficiency, for it is obvious that such a blockade as this of the Gvilf of Eiga, may be more completely maintained than that of many other towns or coasts, because the distance to be guarded is limited to a breadth of three miles. Then, what is the distinction ? Why, that the blockading force, though performing its office with equal efficacy, is stationed at a greater distance from the place blockaded. I confess that I do not perceive how any ingenuity of reasoning can conjure up a grievance to neutrals from a blockade of this description. Can the grievance depend upon the comparative distance whichj in different cases, the blockading force may be stationed from the place blockaded ? If so, at what distance would the blockade be valid, and at what not? Where is the arbitrary limit, and why should an arbitrary limit be fixed at all ? To me it is abundantly manifest that the true criterion whereby the legality of a blockade shall be established is, not the place where the blockading force is stationed, nor its distance from the place blockaded, but the capability of the force, wherever stationed, adequately to maintain the blockade. I will now examine whether there is any authority on this question, remembering always the terms of the proposition, that the whole of the coast purported to be blockaded is part of the dominions of the enemy. What are the words of Chancellor Kent? — " The squadron allotted for the execution of the blockade must be competent to cut off all communication with the interdicted place or. ports." (a) This, I agree, is the true test, and not the distance of the blockading squadron. All Lord StovielVs definitions are the same in substance. He tells us that a blockade, to be legal, must be efficient ; and if efficient, it is enough. No authority to the contrary has been or can be cited. This, too, is the doctrine to be collected from the case of the " Nancy '' (b), already cited. The inquiry of the Lords of Appeal was, not whether the place blockaded was an island, or a port, or a gulf, nor at what distance the ships were stationed, but whether the force employed was completely adequate to the services to be performed. There is another case which came under the consideration of Lord Tenferden, when Lord Chief Justice of the King's Bench. It was the case of Naylor and others v. Taylor (c), and related to the blockade of Buenos Ayres. It was contended by the present Lord Campbell, then counsel in the cause, that no breach (a) 1 Kent's Com. 146. (i) 1 Acton, 64. ; vide also the " Frederick Molke," 1 Rob. 86. (c) 1 Moo. & M. 207. THE "FEANCISKA." II9 was proved. " It does not appear," he said, " that there was any port to which the notified blockade applied nearer than Buenos Ayres itself, which was one hundred miles distant and more from the place of capture. A blockade cannot properly exist at such a distance ; or at least vessels cannot understand that it does so, and are not guilty of a breach of blockade." Lord Tenterden, in deliverina; iudgment, said : — " The dis- The blockad- ° "^ ° '< ^ mg lorce may tance of the blockading fleet from the ports declared in block- be at any dis- ade is certainly considerable; but I know no precise limit of ^^jent fo" Ihut- distance which can be fixed. I should say, as at present ad- ting up the vised, that the blockading fleet may be at any distance conve- ^ "^ oc a e . nient for shutting up the port blockaded, not obstructing any other," — that is, a neutral port, — " and that was the case here ; for Monte Video was open, and we do not learn that there were any ports not in a state of blockade higher up the river. I think, therefore, that the blockading fleet might lawfully be stationed off Monte Video." Therefore, compare the distance between Buenos Ayres and the point where the capture was effected in that case with the distance between the blockaded port and the blockading squadron in the present case, and compare the river Plate, the breadth of that river, with the passage, off Lyser Ort, of not more than three miles, and see whether the case to which I have now adverted is not an authority of the strongest kind. In the course of the argument reference was very properly Blockade of made, as I think, to the blockade imposed by Great Britain on Holland. the coasts of Holland in 1799. That blockade was deemed just and legitimate, though many of the squadron maintaining the blockade were necessarily stationed at great distances from the ports intended to be affected by the blockade, and large spaces of sea intervened between them. I am satisfied, both on principle and authority, that the Two requisites requisites to a blockade are only two : 1st, that the ports to be ist, that ports' blockaded shall be hostile territory (a) ; 2nd, that the blockadins: Woekaded be „ n rr ■ 1 ■ ■ ■ -r>,, hostile ; 2d, force could so act as eraciently to mamtam it. Both these that the force requisites existed in the present case, and therefore I sav that *%i™t'y -, I , T I n -n- !•• maintain it. the blockade of Riga was legitimate. I next proceed to consider what was done to constitute the w^as the block- blockade, and whether the blockade was maintained with that ade'inaintained strictness which is necessary tor its legal maintenance. For cessary strict- ness ? (a) Since this judgment was deli- but the Court has in each case ex- vered, many vessels which had been pressly stated the ground of condem- captured off the Sulina mouth of the nation to be, that no claim had been Danube, for breach of the blockade given in on their behalf. of that river, have been condemned ; 120 PRIZE CASES. 3855. Judgment. The presump- tion is that the officers dis- charged their duty. Sir C. Napier's evidence. Capt. Dou- glas's evidence. Capt. Heath- cote's evidence. Capt. Cum- ming's evi- dence. Capt. Key's evidence. this purpose I shall consider the evidence, both affirmative and negative; premising, however, that I reserve for subsequent investigation the whole question of notice. I will first observe that, assuming the force deputed to per- form the duty was competent, a point already disposed of, some presumption fairly follows that the officers did discharge the duty entrusted to them, unless, indeed, it should appear that they either misconceived their duty or neglected it. Sir Charles Napier deposes that on the 17th of April he placed the coast of Courland under blockade, and he mentions the four ships appointed to that duty. On the 9th of May the " Amphion " was added to the squadron. The " Desperate " may have been withdrawn. As none of the ships now brought before me for adjudication were captured before the 21st of May, it does not appear to me necessary at this moment to endeavour to fix the precise day before that time when the blockade might actually have commenced ; but I will examine the evidence as to the actual maintenance of the blockade. Captain Douglas, one of the first who joined the blockading squadron, deposes that he is the commander of the " Cruizer," and joined the squadron then blockading the coast of Courland on the 15 th of Aprih He remained on that station till the 25th of August, but with very considerable absences, — no less than about 38 days. Where the " Cruizer " was during that interval, I have no means of knowing. Captain Douglas then deposes that during all the time he was on the station he rigorously maintained the blockade, and he subjoins a list of 69 vessels which he boarded. Captain Heathcote, commander of the " Archer," joined the squadron on the 9 th of May, and he deposes to having assisted in maintaining the blockade from that period till the 12th of September, also with certain intermissions, amounting only to 14 days, or thereabouts; during that period he examined 41 vessels. Captain Cumming, who succeeded Captain Foote in the command of the " Confliot," performed a similar duty from the 11th of May to the 14th of September. He was absent during 33 days. He examined 42 ships. Captain Key, in the " Amphion," had the command of this squadron, which he assumed on the 9th of May. He states that two of the squadron were stationed off Lyser Ort, two be- tween Windau and Memel, and that they so remained until the 11th of July, " with such intermissions only as were necessary for coaling, watering, or other exigencies of the service." THE "FRANCISKA." 121 What were the positions of the blockading ships after the 1 1th of July does not so distinctly appear from this affidavit ; but Captain Key swears that the blockade was maintained up to the 19th of September, the date of the affidavit. To this affidavit is attached a list, not of all the vessels boarded by the " Amphion," but of those bound to Russian ports, nearly all to Uiga, being eighteen in number. Without attempting with any accuracy to ascertain the whole number of vessels so searched, it appears from this statement that they greatly exceeded 1 50 searched ; —some proof that the squadron were not wholly negligent of their duty. But there is a much more competent judge than I can pretend Sir C. Napier to be, who has had under his consideration all the logs and all {j^g oncers did the official despatches of the officers employed in this service, tl^^ir duty, and Oir Charles JSi apier deposes on his oath, " that he has trom tmie ade was effi- to time, in the course of their public duty, received from the "i^itly main- officers in command of the said ships the logs of the proceedings of such ships, and has been officially informed by the said officers, and fully believes, that from the said 17th of April up to the present time, to wit, the 9th day of September 1854, the said blockade has been strictly maintained." If Sir Charles Napier, with this evidence before him, with his means of forming a correct judgment, has come to the conclu- sion that the blockade was duly maintained, I think that a Judge sitting in this chair would, in the absence of conflicting testimony upon such evidence, feel himself compelled to come to a similar conclusion ; and I think so also, more especially because if Sir fV. Grant deemed the opinion of a commander- in-chief adequate evidence of the competency of a squadron to execute a blockade, a fortiori, multum a fortiori, such opinion would be of force when the question was of its actual main- tenance, and when the evidence from which the conclusion was to be drawn consisted of logs and other statements, upon which none but a nautical person can form a very satisfactory judgment. I am of opinion, therefore, judging only from the evidence Prima facie, at present referred to, and the opinion of Sir Charles Napier, l^proyed to^ that I must, primd facie, consider the blockade to have been l"?^^ ^^^ «ffi- adequately maintained. taineZ ™^"^' But this is a primd facie opinion only. I must now examine Wliat evidence the opposing evidence in these cases, to see whether any facts conto?y*° *^ or circumstances are proved which ought to lead to the con- clusion that those officers are mistaken in their notions of the maintenance of a blockade, or that in truth the blockade was not adequately enforced. 122 PRIZE CASES. 1855. Judgment. Objection, — that ships were allowed to go in and out. Blockade hav- ing been es- tablished, it is not legally competent to the squadron to allow in- gress or egress at pleasure. Neutrals may come out with a cargo laden before the blockade, or in ballast. It is difficult to know when a cargo was laden. A blockading officer is not bound to de- tain every vessel ap- proaching the blockaded port ; in some cases he should only warn oflF. There is af- firmative proof that the block- ading squadron Many objections of this kind have been raised. I will notice them in order. First, it has been said that many ships were allowed to go in and some to come out of the port of Kiga, with the consent of the blockading squadron, or one of them. What is the law, and what is the proof of the fact ? I appre- liend the law to be, that when a blockade has been established by notification, or de facto, for so long a space of time that aU neutral nations must be taken to be cognizant thereof, it is not legally competent to the blockading squadron to allow ingress or egress at their pleasure ; and that if they do so, — though the blockade is not wholly invalidated, as I will presently show from authority, — yet if it be carried to too great an extent, then the blockade cannot in justice be enforced against other neutral vessels. But when a blockade, de facto, has been recently con- stituted, then it is the privilege of the neutral trader to come out of the port blockaded with a cargo laden before the blockade was imposed, and the duty of the blockading ships to allow such vessel to pass. The officers of the blockading vessels must, from a consideration of time or other circumstances, form the best judgment they can as to whether the cargo was taken in before the blockade commenced or not. They have no very satisfactory means of investigating such questions, because all they can do when they examine a vessel coming out of a blockaded port is to make inquiry of the master, who is clearly a person greatly interested in making a representation to his own advantage. Should the commander of any such blockading ship occasionally miscarry in his judgment, it could not be seriously contended that the blockade was thereby invalidated. Of course, neutral vessels in ballast might leave the port. Then as to ingress. To allow any vessel to enter would clearly be a breach of duty and an illegal relaxation of the blockade ; but it by no means follows that because a cruizer may not allow a vessel to enter that he is therefore bound to detain her. On the contrary, it is his duty, if he has reasonable ground to believe that the master had no knowledge of the blockade, to warn her off, and not detain her. Very true, it may happen and frequently does happen that a vessel is warned off, and that, upon being so warned off, the master of such vessel, instead of pursuing the line of conduct most consistent with a just regard to the interests of the belligerent, avails himself of the very first opportunity to slip into the port by night. Such then being the law, what are the facts ? Is there the slightest proof that the vessels composing the blockading squadrons at any time voluntarily relaxed the blockade by THE "FRANCISKA." 123 permitting egress or ingress contrary to the law regulating such , ' , questions? That no such neglect of duty or omission to Judgment. perform it took place, the affidavits of all the officers com- never illegally manding all the cruizers fully prove. They state, one and all, g^gss or that no vessel was allowed to come out except in ballast, or egress. because they had adequate reason to believe that the cargo was taken on board before the blockade took place ; that no ingress was allowed to any vessel whatever ; but that they did as they were bound to do, — warn off every vessel intending to enter which they conceived might be approaching the blockaded ports in possible ignorance of the blockade, detaining only those which from circumstances they deemed knowingly and wilfully to be attempting to violate the blockade. The Court listened with the attention justly due to the many Claimants' able arguments which were advanced on the part of the claim- ^^^^ ^^^ ^^^^ ants, but 1 confess I marvelled much that so little notice was important evi- 1 oi •! Ti . o -I • ij. oence for the taken oithe evidence i have just reterred to — most important Crown. evidence on the part of the Crown — most important, because if neither discredited nor contradicted, it established the great leading fact of all, viz., that there was maintained a blockade de facto. But what evidence is there to the contrary ? Direct evidence There is no of neglect of duty, or of inefficiency to perform it, there is evidencrmon none. There is no evidence of any ships being allowed to go the point, in or to come out virith the permission of the squadron, — mark the words with the permission of the squadron, — contrary to law. There is, however, evidence brought in on the part of the claimants, showing that a certain number of ships did enter the port of Riga notwithstanding the blockade. Assuming the fact to be so, such fact furnishes no evidence against the affidavits of the captors, that they permitted no violation of the blockade ; it is not even said or contended in any part of the evidence, that a single one of those ships which entered Riga did so with the consent or by the connivance of the captors. Then to what point can this evidence tend? To one only; it The claimants' is legitimate evidence, not to prove but to tend.to prove, that te^ndsto^^ove^ the blockading force was not adequate to the full discharge of the inadequacy the duty entrusted to it ; and this brings me to the consideration ading force, of the question, whether, seeing what was done and what was Qiestlon,— not, the Court ought to hold that the blockade was adequately ade of the port maintained, or that the port of Riga was so insufficientlv invested °^ ^'P ^^?" ,. ., 1, .1 ., , •' qualely main- that ingress might take place without evident danger. tained ? This Is a mixed question of law and fact. To decide it properly, the v^hole evidence on both sides must be weighed and contrasted, and not only the evidence as to facts showing 124 Blockade is efficient •when ingress and egress are attended witli evident danger of capture. It is a question of degree. No force could prevent vessels entering a port sometimes by night ; in fogs or during adverse winds. Efficiency of a blockade must not be judged alone by the numbers -suhich evaded the blockading force. The blockade ■would be in- validated if it were proved that the force ■was unjusti- fiably absent from the locality. PRIZE CASES. the number of vessels which entered the port, and the number prevented, warned off, or captured, but all the peculiar circum- stances of the blockaded port must be borne in mind. "What, then, is an efficient blockade, and how has it been defined, if, indeed, the term definition can be applied to such a subject? The one definition mentioned is, that ingress or egress shall be attended with evident danger ; another, that of Chancellor Kent (a), is, that it shall be apparently dan- gerous, (h) All these definitions are and must be, from the nature of blockades, loose and uncertain ; the maintenance of a blockade must always be a question of degree, — of the degree of danger attending ships going into or leaving a blockaded port. Nothing is further from my intention, nor, indeed, more opposed to my notions of the Law of Nations, than any relaxation of the rule that a blockade must be efficiently maintained ; but it is per- fectly obvious that no force could to absolute certainty bar the entrance; that vessels may get in and get out during the night, or fogs, or the prevalence of violent winds, and those fogs or those winds may occur more or less according to the latitude and longitude of the place where the blockade is maintained. It is most difficult to judge from numbers alone. Hence, I believe, — and I have made search to ascertain the fact, — that in every case the inquiry has been whether the force was competent and present, and if so, the performance of the duty was presumed ; and I think I may safely assert, that in no [case was a blockade held to be void, when the blockading force was on the spot or near thereto, on the ground of vessels entering into or escaping from the port, where such ingress or egress did not take place with the consent of the blockading squadron. I asked if there was such a case ; none has been produced. A very elaborate argument was addressed to the Court to prove that the blockading force was not, at certain periods, upon the station, or. rather, was not off Lyser Ort ; and most certainly, if the fact could be established, that from incom- petency or neglect of duty that force was not present in its proper place at times and seasons when there was no legal excuse to justify its absence, the validity of this blockade could not be sustained. But what was the evidence resorted (a) 1 Kent's Com. 146. (i) In the convention between Great Britain and Russia, on the 17th of June 1801, a blockaded port was declared to be " that where there is, by the disposition of the power which attacks it with ships stationary or sufficiently near, an e'vident dan- ger in entering." THE "FEANCISKA." 125 to for the purpose of establishing so important a position ? , looo. ^ Reference was made in some detail to entries in the logs Judgment. of the cruizers ; for many reasons I consider myself incom- This is not petent to form any such sweeping conclusion from the entries T^^°^^ in the logs. First, the logs, at times, contain expressions Entries in logs wholly unintelligible to me, and, I apprehend, to all who are not factory evi- possessed of nautical experience. Secondly, I do not know at denee. what particular part of the coast, how far off Lyser Ort, or how close to Filsund, would be the best station to maintain the blockade. Thirdly, I apprehend that, according to circum- stances, places at a considerable distance from each other may be selected, and that winds and currents may have much to do with the selection. Fourthly, there must be winds which prevent at one time ingress, at another egress, to sailing- vessels, and the position of the blockading force will be altered accordingly. These are circumstances upon which I am Incompetent to form any conclusive judgment. I fully admit, however, that the fact of vessels entering the blockaded port is evidence always to be considered ; but that question I have already examined. For these reasons, I think that any judgment I could form from such data would not be warranted by former practice, and would be most liable to error. To this I may add that I should act against authority in entirely overthrowing the evidence of those persons who were on the spot and are possessed of nau- tical knowledge ; and I will also observe that the opinion given by Sir Charles Napier has been also adopted and notified through the act of the Admiralty; thereby showing that, in their judgment, the force was competent for the purpose. Again, take the list which is found on the one side and on The lists pro- the other. Assuming the list produced by the claimants to be strongly to a correct list, I find that according to that, from May 22nd to ^how the effi- C16I1CV of tllC June 13th, seventeen vessels entered KIga; from May 22nd squadron. to July 26th, nine vessels went out of Eiga, of which several were captured. Now, take the other list ; from April 15 th to May 31st, not less than 103 vessels were examined, that is, during a period of about six weeks, — a fact I shall hereafter advert to again. Now, it does appear to me to be very difficult to say, even from these statements, that egress from and ingress to this port, was not a matter of evident danger. But allowing for a reasonable number of these vessels escap- The violation ing by night or during fogs, which would not, in the slightest against the degree, affect the validity of the blockade, how many came out M°t°d°^*^^ in broad daylight and were not exposed to examination? There force, cannot invalidate it. 126 Objection, — ■ that the Ga- zettes limit the time when a blockade could legally exist The subse- quent publica- tion of the Gazette cannot affect the le- gality of a blockade de facto pre- viously esta- blished. PEIZE CASES. is not one iota of proof that a single vessel did so come out, and perhaps when I come to another part of the case I may be able to show that it was very improbable that any would make such an attempt ; but assuming that a third of the number did so come out, can it reasonably be contended, looking at the number boarded, that there was no danger to such vessels in effecting their egress? Is a mere violation of a blockade, against the consent of the blockading force, to invalidate it ? Is there any case or authority for such a position ? In the case of the blockade of the coasts of Holland, in 1799, can it be supposed that many, very many, vessels did not evade that blockade? "When we see the cases which came before the Court of Admiralty in that day, does it not almost follow as a matter of certainty that there were numerous cases in which that blockade was broken ? If such a doctrine as this could be maintained, the right of a belligerent to establish a blockade would become a nonentity. No port could be hermetically sealed. I am then of opinion that I have ample evidence that the blockading force was adequate to the duty to be performed; satisfactory proof that all the officers of the squadron did their duty; and nothing to oppose it but the escape of some ships, all of which might be accidental, and none of which unques- tionably did take place with the consent or by permission of the blockading squadron. I cannot think that this blockade is invalidated by reason of any of the circumstances I have just investigated. I will now consider the argument that the blockade could not have a legal existence until after stated periods; and I wish, so far as may be, not to mix up this part of the case with another most important division of the subject, viz., whether and when it became, to use a short expression, a matter of notoriety. It has been contended that this blockade could not, by reason of the dates of the publication in the Gazette, be in existence before a particular time. [The learned Judge then stated the contents of the three Gazettes, (a)] What are the inferences to be drawn from these facts? First, it is clear that any blockade constituted by Sir C. Napier would acquire no legal validity in addition to what it originally possessed, or by way of confirmation and approbation of the exercise of the authority given to him, before the actual publi- cation in the Gazette; or, in other words, the Gazette cannot (a) Vide Appendix, p. xix. THE "FRANCISKA." 127 convert a blockade de facto into a blockade by notification from 1856. the State itself before such notification be published. Up to Judgment, the date of such notification, a blockade de facto must depend on its own legality, and be subject to all the rules attending a blockade de facto, as distinguished from a blockade by notifi- cation ; but I am at a loss to comprehend on what reasoning it can be maintained that a blockade de facto is, either as to the time it commenced or its validity, dependent upon the period of its notification by the Government. If a commander-in-chief imposes a legal blockade de facto, -^ Wockade de and maintains it, does the law require that it should be affirmed notification. "'^ or confirmed or notified by his Government at all, at any time whatsoever ? I am not aware that any such proposition was ever advanced before the hearing of this case, or that any authority can be found for it. No doubt it is much more convenient that every Though it may blockade de facto should be communicated as soon as possible ven^nt^thaUts to the Home Government, and by the Government be duly establishment notified ; and for obvious reasons. Such blockade immediately municated a^' becomes a blockade by notification, and obtains also the advan- s°°° ^^ known, tage of such a blockade over a blockade de facto. But suppose a blockade de facto is not notified at all, is it less a legal blockade ? Is there any authority for contending that a blockade de facto, of however long continuance, must of neces- sity, and, to maintain its vitality, be notified by the Home Government at all ? And have there not been many blockades de facto never notified by the Home Government, and that ex confesso, from all the authorities ? Lord Stowell said, in the " Vrow Judith," (a) that though a This is the formal public notification would always be most desirable, yet ^m™SmDell it is sometimes omitted in practice ; and he added, that it might ™ *s " Vrom commence de facto, and went on to state some of the requisites " '*'' of such a blockade. If, then, it be not necessary to have any such notification If notification from the Home Government at all, how can a late notification ^^ °°i°Tf ' have any retrospective efiect to invalidate a blockade with thereof cannot respect to neutrals? If a blockade de facto, with all its pro- uockade!*''^ visions for the protection of neutrals, be valid, how can they be injured by the delay or absence of notification ? I really doubt if it has been intended to argue that such delay of notification is a proof that there was not a blockade de facto actually imposed before ; but if such was the drift of the argu- ment, the answer is, the fact itself proved by the affidavits of (a) 1 Rob. 162. 128 PRIZE CASES. 1855. Judgment, A neutral has no right what- ever to com- plain of such delay. Though early- notification is desirable, it is notessential to the validity of a blocliade Je facto. Sir Charles Napier and the other evidence to which I have referred. Even supposing that Sir C. Napier omitted to make due communication, or that the Home Grovernment thought fit to delay the publication of the notification, or, if you please, neglected it, — I cannot rationally put the proposition stronger, — what right has a neutral subject to complain of this ? Has he a right to say, Why did you not sooner convert a blockade de facto into a blockade by notification ? Is not a blockade de facto fenced, for the protection of neutrals, by stringent and more rigid rules, to prevent injustice being done ? and can it be averred that he is more sorely pressed by a blockade de facto than by one by notification from home ? In how many cases can there be no such notification, such as in the China Seas, the Pacific, and even on the coast of the Brazils ? In how many cases nearer home may the communication be delayed from a variety of circumstances ? — from misapprehension, as supposing Sir C. Napier thought that the communication of his intention imme- diately to blockade was sufiacient, or delayed to do so till his other measures were more advanced, or for any other reason ? Suppose all this or any other similar reason, would not a blockade de facto be valid from the commencement, and would it be rendered null because the commander did not communicate the fact, and cause it thereby to be notified ? If this were so, a blockade de facto would not depend on the authority to insti- tute or its maintenance, but on the fact of communication, — a proposition hitherto unknown and totally without foundation in law or justice, for it proceeds on the erroneous supposition that a blockade de facto is not just as lawful as a blockade by notification, or is more onerous to neutrals ; whereas it is a fact that in a blockade de facto, a severe operation upon neu- trals is guarded against by regulations so stringent that it cannot affect them even to the same extent as a blockade by notification. The same reasoning applies supposing that the Home Go- vernment, for causes by it deemed sufficient, or if you please by accident, should for a time delay notification, or omit it altogether. Let me, however, not be misunderstood. I consider that it is, for the sake of greater certainty and the observance of strict regularity, advisable that the Home Government should, at a due season, make a notification ; but that it is not incumbent upon it to do so at any particular time, and that such notification is not essential to the validity of a blockade de facto, in all other respects duly established. THE "FRANCISKA." 129 I proceed to an argument which has been urged with great 1855. force, and which presents considerations of serious importance. Judgment. By the Order in Council of the 15th of April (a), any Eus- objection,— sian merchant-vessels which, prior to the 15th of May 1854, *f^^g^^^grTn shall have sailedyrow a7ii/ port of Russia in the Baltic or White Council of Sea, bound for any port in her Majesty's dominions, shall be ^loekade'is * * permitted to enter, discharge her cargo, and go to any port invalidated. not blockaded. It is then argued that the true construction of this order is ■to permit any Kussian vessel to leave, until the 15th of May, any blockaded Kussian port, and consequently the port of Eiga, and therefore to allow the trade to be carried on from a - port prohibited to the neutral. If this be so, the alleged inference in law is said to be that the blockade is invalidated, because, it is contended to be con- trary to the Law of Nations for one belligerent to permit to another a trade from which neutrals are excluded. ■ Three questions arise hereupon. First, the 'construction of Tliree ques- the order of April 15th. Secondly, what is the law ? Thirdly, i^^^'^^s'^et- will the validity of the blockade be affected, and if so, how and tion of the 1 " order ; 2d, when? ^ the law J 3d, On the part of the Crown, the construction put on^this order- its effect on . , . T ^ i a the blockade. IS denied. I will first observe that this order of April 15th is an ex- Order in tension of the order of March 29th, with certain alterations, ^pril isth By the order of March 29th, all Eussian merchant-vessels considered. which had sailed from uny foreign port prior to the date of that order bound for any port in her Majesty's dominions were pro- tected. The order of the 15th of April made great alterations; it limited the place, from which Eussian vessels might sail, to the Baltic and White Seas, and extended the time from the 29th of March to the 15th of May. The reason of the extension was manifestly to give time to leave the Eussian ports after they were free from the ice. It is apparent that at the date of issuing the order of March 29th, there could not possibly be any reference to blockade, or egress from a blockaded port, for that order is cotemporary with the declaration of hostilities. Although her Majesty by another order specially reserves the right of blockade, yet it is in no degree adverted to in the order to which I am referring, and which applies to a period when there could have been no blockade ; ' but with respect to the return voyage, there was no exception of blockaded ports. (a) Vide Appendix, p. v. I The Court must consider ■what the Government has expressed in the order, not what it may have intended to express. The most liberal inter- pretation should be given to terms used in de- claring a re" laxation of the rights of war between belligerents. The permis- sion given to Bussian ves- sels to leave Russian ports cannot be restricted to ports not blockaded. PRIZE CASES. When the order of April 15th was issued, the Government could not have known of any blockade, for none could have been imposed and made known to them at that period ; but they did know what instructions had been given to Sir C. Napier, and they might have conjectured that some of the Russian ports would be blockaded before the loth of May. Then the q[ues- tion is this, whether the original order not having purported or probably intended to allow Russian vessels to sail from blockaded ports, such permission is conferred by the Order of April 15 th. Now that order makes no exception whatever ; in form it applies to all'Russian ports in the White Sea and the Baltic. Am I at liberty to engraft an exception upon it ? It was urged that the British Government never could have intended to cripple its right over the power of blockade ; to have granted an indul- gence to the enemy, though also for its own advantage, which might possibly invalidate a blockade as to neutrals. It appears to me that this is a strong argument to prove that the British Government never intended to allow Russian ships to come out of a blockaded port, but I think that that is not the true question ; the Order in Council of the 15th of April gives in certain words a privilege to Russian ships, and the question is, not what the Government intended, but what is expressed by the words which they have used. In cases of great doubt and diflSculty it is true that surrounding circumstances may be re- sorted to, to ascertain the meaning of given words ; but if the words themselves contain a clear and definite meaning, it is exceedingly dangerous to resort to circumstances dehors the instrument ; and not only is this so, but it must be recollected that in a concession given by one belligerent to another, relaxing the strict rights of war, it is a principle sanctioned by high authority, and in my judgment to be sacredly maintained, that the most liberal interpretation should be given to the terms in which such relaxation is declared. I am, therefore, of opinion that no restriction can be engrafted upon the words giving permission to Russian vessels to quit Russian ports ; that even if doubt there were, that doubt ought to be decided in favour of the hostile power ; and that, conse- quently, if any question were to arise as to any Russian vessel coming out of Riga prior to the 15th of May, that port being blockaded, such Russian vessel ought not to be subjected to condemnation. Again, if I am right in this conclusion, the .subjects of neutral powers would be justified in contending in this Court, that so far as their interests could be concerned, such was the true construction of the Order in Council of the 15th of April THE "FRANCISKA." 131 For these reasons I am disposed to give to all the claimants 1855, in this Court the benefit they can be justly entitled to derive j^gment. from such a construction ; but it remains to be considered to Neutrals are ■what benefit they could justly make a claim, and to what extent ^^'fn^ge ^^^ and in what way the consequences of a blockade would be derivable from affected. This statement, I am well aware, opens a very wide tio^ of°he"°' and all-important theme for discussion, and requires the Court Order, to go back to the first principles by which the rights of bellige- rents and of neutrals shall be governed. The argument stands thus : bv the I^aw of Nations a belli- ^' '^ argued gerent shall not concede to another belligerent, or take for gerent cannot iimself, the right of carrying on commercial intercourse prohi- ^""t^g^or bited to neutral nations ; and, therefore, that no blockade can assume to be legitimate that admits to either belligerent a freedom of pjf^t^of com. commerce denied to the subjects of States not engaged in the merce pro- war. The foundation of this principle is clear, and rooted in neutrals, justice ; for interference with neutral commerce at all is only This principle justified by the right which war confers of molesting the j^t;^^*'^"' enemy, — all relations in the nature of trade being by war itself suspended. To this principle I entirely accede ; and I should There is no , ,.,.„ ,. 11, -IP 1 authority for regret to think it any authority could be cited trom the a contrary decisions of any British Court administering the Law of "ioctrme . 1.1111 • 1 .. among English Nations, which could be with truth asserted to maintain a decisions. contrary doctrine. One authority was mentioned, the case of the " i^ox." (a) The"J'ar"is 3.11 cntirclv" That case is most essentially distinguished from the present ; it different case. refers solely to blockades, if so they may be called, established on the principle of notification only. The observations which have been cited from the judgment in that case were called forth by an argument that even the blockades of those days might be vitiated by a grant of licences. In answer to such arguments Lord Stowell asserted a fact, but he did not maintain a principle ; he said, with great truth, that it had never been considered that the validity of blockades was vitiated by the grant of licences; but to give just weight to his words, we must bear in mind the circumstances of the case that he was then discussing. Ijord Stowell was not speaking of blockades according to the ordinary custom of nations ; he was discussing another and a very different question. He had to decide whether Great Britain was justified, in consequence of the celebrated Berlin and Milan decrees. In imposing, by declaration only, blockades against a very large portion of the coasts and towns of Europe, — blockades which it was never intended, and whichj indeed, it was impossible for the naval forces of Great (a) Edw. 311. I2 132 PRIZE CASES. 1855. Judgment The relaxation of the Order in Council is quite distinct from the grant of licences to individuals. Though the grant of licences has never been held to vitiate a blockade, yet, senible, that such an indiscriminate grant as might throw a trade into the hands of the power imposing the blockade ■would be unjust to neutrals, and might inva- lidate such blockade. Neutrals may, under the Order in Council, leave Russian ports up to May 15. But this privilege can- not affect the Britain to maintain according to the ancient laws. These were called paper blockades, and their justification depended wholly and entirely upon reasoning foreign to the present case. With regard to the observation of that learned Judge, that the grants of licences had never been held to invalidate a blockade, I must observe, first, that the relaxation contained in the Order of* the 15th of April is not merely a grant of licences to indi- viduals, but, though limited to a class, is a permission to the whole of the Eussian mercantile navy destined upon voyages to Great Britain to complete such voyages, and I think that this fact alone forms a distinction between the present case and the grant of licences. And secondly, with respect to the grant of licences, I concur with Lord Stowell as to the fact (though I believe the question was never raised), that the grant of licences had never been held to vitiate a blockade ; and I am of opinion that where such licences were granted upon peculiar and special occasions, and for such only, the doctrine is true, and for this reason, because special occasions might arise, which might call for the grant of such licences, and be productive of no perceptible injury to the subjects of neutral States or their commerce ; but I think it my duty to declare that, if in the case of blockades, according to the accustomed Law of Nations, licences should be granted indiscriminately and "with such pro- fusion, with liberty to violate that blockade, as to throw the whole trade into the power of the belligerent State imposing the blockade, and thereby excluding neutral commerce,,! am not prepared to say that such a blockade under such circum- stances could be justly enforced against neutral States with a due regard to the principles of the Law of Nations. I think that if the relaxation of a blockade be; as to belligerents, entire, the blockade cannot lawfully subsist ; if it be partial, and such as to exceed special occasion, that, to the extent of such partial relaxation, neutrals are entitled to a similar benefit. To a certain extent this also was the course of reasoning adopted by Lord Stowell in the " Fox," upon the fact that licences had been granted as numerously to neutrals as to British subjects. With respect to the present question, I therefore have come to the conclusion, that as Eussian vessels might have left the ports of Courland up to the 15th of May, the subjects of neutral States ought to be entitled to the same advantage ; and if there be any vessel so circumstanced, I should hold her entitled to restitution. I think the remedy should be commensurate with the grievance. A question then arises whether any and what further con- sequences could result xith regard, to this blockade ; upon THE "FEANCISKA." 133 what principle could it reasonably be maintained that after ^_^_> the 15th of May, when the privilege of Russian Tossels had blockade sub- ceased, neutral subjects could claim a right to be emancipated t^^^^ate" from the ordinary law of blockade. At that period all the reasons which a neutral might justly urge on account of the advantage conferred upon the enemy, or the benefit given to British commerce, had vanished ; and how can it be fairly contended that the effect shall continue, when the cause has disappeared ? To> me it seems that I have conceded to the utmost limit all that can be justly demanded on the part of a neutral nation, I must now briefly refer to another matter: in the course of the Objection, argument, the letters which have been written by the officers ^f tj,g ijjock- commanding different ships composing the squadron were ad- admg officers verted to, and it was contended that the legal operation of a period of legal blockade could not be maintained at times earlier than those blockade. mentioned in the letters. Though I am prepared to admit that, '^'^ ^^!^ °^ ^ ,. „ 7, . .,,,.«. T subordinate SO far as relates to the interest of any individual ship affected officer cannot by the letters or actions of the commander of one of her Ma- ^p°' *"® „ _ •' _ _ _ character of jesty's ships of war, the claimant would be entitled to the full the blockade, benefit of any results fairly emanating therefrom, yet, I think jn^j^j^iu^ it right to guard myself against the supposition that the acts or claimant in conduct of such an officer can be held to alter the character of cumstances such a blockade, such officer at the time being under the com- might plead ^-^ such. 3.cts 21S mand of a superior. To elucidate \\'hat I mean, I will refer to his own justi- the case of the " Henrick and Maria." (a) There the officer fixation. commanding the capturing vessel erroneously stated to the ^ogt^rjjj ^f t^e master of the neutral ship that the blockade was of greater ex- " Henrick tent than in reality it was, and this Court decreed restitution ; and most just was such an administration of the law in protect- ing the party misled ; but it would have been a most extrava- gant conclusion to have administered a remedy wholly beyond the disease, and to have held that the character of the blockade was changed, and its efficiency impaired with respect to other vessels, where there was no misleading, and no mistake. This, also, was precisely the course pursued in the three cases reported in the notes to the " Juffrow Maria Schraderi'' {!>) In the case of the " Vrow Barbara," the vessel was taken on -^""^ °^ ^^^ " Vrmo Bar- her voyage from Havre to Hamburgh ; she had been stopped hara" the and examined in going to Havre, and had been informed, in " ^^'^'"■icus,'-' . and the effect, that she might do so. The master knew of the blockade, " Venscab.'- and understood that it had been relaxed. Lord Stoioell restored the vessel, and very properly, because she was permitted to go in. So in the case of the " Henricus," the Court held that the {a) 1 Rob. 146. (6) 3 Rob. 158. 134 PRIZE CASES. The Court entirely adopts the doctrine. The general law of block- ades de facto. The word notification is not- clearly- defined, and not accurately applied. permission to go in with a cargo, included the permission to that ship to come out with a cargo. So in the " Venscab ;" hut mark what Lord Stowell said, — " I beg it may be understood that I hold that the blockade existed generally, though in- dividual ships, in some few instances, are entitled to exemption from the penalty, in consequence of the Irregular indulgence shown to them by the blockading force. It has never been held by the Court that no blockade existed from November 1798 to September 1799." And such, in fact, was also the case of the " Juffrow Maria Schroeder." I apply that doctrine to the present case; and it is on that doctrine I undoubtedly shall act. Wherever any neutral vessel, in reliance on the Order in Council of the 15th of April, has gone in, I shall give to every such vessel coming out of Riga at the period so named, i. e., up to the 15th of May, the benefit of restoration. If it can be shown that any vessel has been permitted improperly to enter, or come out, I shall confer the same benefit on such vessel; and even if there were any vessel that had been permitted so to do, I should still hold with Lord Stoicell, that such an unfor- tunate relaxation of the blockade by negligence does not at all impair its general validity. I must now examine the law attending blockades generally, and especially blockades de facto ; I do not mean to state the authorities ; we all know where they are to be found. If these doctrines do not rest upon the decisions of Lord Stoioell, and the books referred to, they have no firm foundation. "We all know that there are blockades by notification, and blockades de facto ; we must bear-ln mind the attributes belonging to each, and the distinctions between them. And first let me observe with respect to the word notification, I am not sure that that word, as applied to this subject, has ever received any clear definition ; indeed, I believe that the cases show that even Lord Stowell is reported to have used these expressions in a very lax sense ; to have used the expressions notify and notification without its being possible to affix to them their peculiar strict meaning ; I refer particularly to the case of the " Rolla." (a) Notification in its strict sense was, I think, well defined by Dr. Twiss, when he stated that it was a com- munication of a blockade by .the Government of a belligerent to the representatives of foreign courts in a belligerent country,' or by the ministers of the belligerent country resident abroad to the respective Governments to which they were accredited. Thus far is clear; but I am inclined to think that a similar (a) 6 Rob. 364. THE « FRANCISKA." I35 effect has been ascribed to similar cominunications made by 1856. commanders-in-chief even to a hostile Government. The case VT' i Judgment. of the " Rolla " appears to me to exemplify this proposition. It will not, however, be necessary for me to determine whether It is not ne- any promulgation short of a State communication will carry jonslder'the with it the consequences belonging to a notification strictly so consequences called. The legal attributes belonging to a blockade by a gatiou'^a™" ' notification, have been so clearly defined, I need not expend distinct from . ,. . ,, notification, time va. discussmg them. The questions which I am about to discuss relate principally In blockades to a blockade de facto. All authorities, as well as common justice, to neutrals is require that the subjects of neutral States should not be in- indispensably juriously affected by such a blockade, without previous intimation of its constitution. Notice, therefore, is indispensably requisite ; but it is another and a different question what shall constitute but, qucere notice. It is, indeed, incapable of accurate definition. Lord ■^|^'>t<=o°- ^ . . stitutes notice. Stowell («) thus expresses himself : " All that is necessary lq^^ Stowell to make a notification, " — whether we take notice or notification says, irhatever will not signify, — " effectual and valid is, that it shall be com- credibly to municated in a credible manner : because, though one mode Ac knowledge . . of the party is may be more formal than another, yet any communication which sufficient. brings it to the knowledge of the party, in a way which could leave no doubt in his mind as to the authenticity of the in- formation, would be that which ought to govern his conduct, and will be binding upon him." It is clear, therefore, that to answer its end and purposes the Unless the notice must be, of whatever it may consist, adequate to convey ^ notorious a knowledge to all concerned of the danger of approaching a t'^^t know- blockaded port. Notice to each individual vessel or to each must have merchant concerned is impossible ; but unless the notoriety of reached those the blockade be so great that, according to the ordinary course port, indi- of human affairs, the knowledge thereof mast have reached all yitr\vf°'"^ ^ ^ ^ ^ is requisite. . engaging in the trade to the ports so blockaded, a warning is indispensably requisite ; and we shall presently see what dis- tinctions in this respect necessarily exist with respect to egress and ingress. I concur with Lord Stowell in thinking that, by lapse of time -^ blockade . 1 1 1 1 7 /• 1 ™ay become and other circumstances, a blockade de jacto may become so so notorious notorious, that -knowledge must be generally presumed. In that know- some cases the notoriety may be _ so great as to amount to a presumed, or presumptio juris et de jure, in others it may only throw the ^ tcTthrow^'^ onus of proving ignorance on the claimant. If there be room the onus of for reasonable doubt, the subjects of neutral states are entitled raniruponThe to the benefit of it. neutral. (a) The « Holla," 6 Rob, 367. 136 PRIZE CASES. 1855. Notoriety cannot be defined, though it may be explained. Three con- stitnents of notoriety. 1st, facts belonging to the blockade itself. 2nd, commu- nications how- soever made, of the esta- blishment of the blockade. 3rd, the circumstances peculiar to the case. Though the term notoriety may not be precisely the expres- sion of all I wish to convey, yet upon the whole it is the best I can use for the purpose of declaring my views upon this subject. What shall constitute notoriety, I repeat, is incapabler of definition, but we may make some approach by giving that term its due effect, by seeing what materials necessarily must exist to form notoriety. I apprehend that they are the following : first, a state of circumstances arising out of the blockade itself ; secondly, communications, howsoever made, of the blockade having been established ; and thirdly, all the circumstances peculiar to the case. Under the first head, the continuance for a time more or less long of a blockading squadron off the port blockaded, the prevention of vessels entering and departing, the indorsement upon the papers of vessels turned back and the fact of capture, must necessarily tend to constitute notoriety ; for these are facts so deeply affecting the Interests of the commercial world, that it would be contrary to all human experience to suppose that they are not circulated at least with the ordinary rapidity with which mercantile communications are made. Under the second head will be comprised all verbal or written communications made by officers or other persons in authority to persons engaged or likely to be engaged in commercial trans- actions connected with the blockaded ports. These will have their weight towards establishing the requisite publicity accord- ing to the clearness with which, and the times when they occurred, and the number and condition of persons who were made cognizant thereof. Thirdly must be taken into consideration the whole circum- stances which may be said to be component parts of the history of the transaction ; for Instance, the locality of the places blockaded, the probability, — a probability known to the public, — of the blockade being imposed, the facility of communica- tion of the fact of the blockade to all persons accustomed to trade with the port blockaded ; and especially due considera- tion must be given, according to these facts, to the time that has elapsed between the establishment of the blockade and any attempt to trade with that port. Nor must we forget that the residence of the parties who may embark their property in such commercial undertakings may require In justice to be duly considered ; for it is obvious to all, that intelligence which must become known to countries in the neighbourhood of blockaded ports, may be utterly unknown to the inhabitants of distant States, where all communications of facts must occupy a lono-er THE "FRANCISKA." space of time, and in some instances be less likely to take place at all. Hence the well-known distinction in favour of the United States of America and of the Brazils. Let me now, before proceeding to the evidence on the point, When com- say a word as to the consequences of complete notoriety when onceexist™'^ once proved to exist. In such a case I apprehend that every all vessels vessel seeking to trade in whatever way with the blockaded port trade°with the must be taken to be cognizant of the blockade, and tliat, gene- blockaded ,, , . , , . '' port must be rally speakmg, under such circumstances, no vessel is per- presumed to mitted to go to the mouth of the blockaded port itself on any ^! ^"^^l^^^' pretence whatever ; that the sailing with intent to enter such ade, and a port is itself a breach of blockade ; and that warning off is ^"nobnger only necessary when there does not exist a notification or such necessary. a notoriety as I have endeavoured to describe. This I appre- -f* ^^ *f „ '^ '■ knowledge of hend to be the law, and in both cases to be founded upon the the blockade same principle, viz., that what is necessary to justify a block- ^^^'oh justifies ading force in making a capture, is that the captured had, or the mode in might have had, a knowledge of the blockade. And whether knowiedse this knowledge be acquired through the medium of notification "was conveyed. or notoriety, is one and the same thing ; it is the knowledge that affects the party, and not the mode in which that knowledge was conveyed. Having endeavoured, with as much perspicuity as the nature of the subject admits, and is within my limited power, to notice what constitutes notoriety, I will now examine the evidence in the case. With regard to the evidence to be produced in the Admiralty The practice Courts with respect to blockades, and Indeed I may say all of t^e Prize other questions of prize, I believe the practice to have been, always been not to entertain objections to the admissibility of the evidence *° ^^'^''''"^ . >' _ _ •' every species offered, but to receive all that might be tendered; and cer- of evidence, tainly we have in this case the licence of evidence of every kind restrahied'^bv^ and description which could well be offered to the consideration A^ municipal /. . 1 /-^ , law of evi- of the Court. ^^^^_ I apprehend that this, so far as I know, the universal practice Because, 1st, of the Court, was adopted for several reasons. First, because "^j/^'not^"^^ the Prize Court being, not a municipal court, but a court for municipal the administration oi public law, was not restrained, with regard ^^" to evidence, by those rules which are applicable to questions of municipal law. Secondly, it would be most difficult, even if possible, to have 2nd, it would . laid down any rules of evidence ; because this Court, having to possible to^a concern itself with the transactions of various nations, could down rules of never construct a code in conformity with all their various rules, ^oulTbe just and consequently injustice might be done by excluding, in to all nations. 138 PEIZE CASES. 1865. Judgment. 3rd, it would be difficult to obtain the best evidence. 4tli, tiie Court, though it receives all, exercises its disiiretion in attributing weight to the different kinds. 5th, in appeal, the error of admission may be more easily corrected than the error of exclusion. From April 15 four vessels were stationed off the coast of Courland, and in six weeks boarded and iodorsed the papers of 103 vessels bound to the blockaded ports. It is impossible to believe that these circum- stances were not published by the masters of these vessels. Numerous other facts were notorious to the world. transactions in which they v,'ere interested, proofs recognized by themselves. Thirdly, because of the extreme diflSculty of procuring what we are accustomed to call the best evidence, when such evidence is to be obtained from distant countries. Fourthly, because, though the Court may receive all, it will form its own iudsment according to the circumstances of the case, of the weight to be attributed to each species of evidence, and is not supposed to be liable to the error of giving undue importance to any evidence, merely because it does not ex- clude it. Lastly, though not least, because as all its judgments may be exposed to the test of an appeal, the superior Court may, with greater facility, correct any error arising from too great force being attributed to any species of testimony, than it could remedy an evil arising from exclusion. Now, then, as to the facts of this blockade, it is beyond all doubt true that from the 15th day of April there were four vessels of war stationed on or about the coast of Courland ; and at least this may be said without the risk of contradiction, that these vessels did, during that period, perform some of the duties, if not all, of a blockading squadron. We have a list of 103 vessels, bound to Russian ports, boarded or spoken to by these vessels during a period of six weeks ; and every one or nearly every one of these vessels had her papers indorsed with a notice of the blockade. Beyond all possibility of doubt these facts must have been known in the blockaded ports, and in their vicinity ; for can it be imagined that the masters of all these vessels did not make known, wherever they went, the circumstance of their having been boarded, and of notice of the blockade havins: been ffiven to them? It would be contrary to the course of human nature if it were otherwise. The interests of the masters and their employers would induce them to make these facts as public as possible. To suppose publicity was not given would be to raise a conjecture in defiance of all probability. There were other facts, too, of which the whole world was immediately cognizant ; the unfortunate death of Captain Foote in April, then in command of the squadron ; the attack and capture of the vessels at Libau ; the presence of Sir C. Napier in the Baltic, with the largest fleet that ever had been de- spatched to those seas, and where for years a British man-of-war had not appeared. All these and many other facts must have given rise to inquiry, and must have produced knowledo-e. Indeed, it is not too much to say that the eyes of all Europe THE "FEANCISKA." 139 were fixed upon the proceedings in the Baltic ; and least of all is it to be supposed that the eagle sight of commercial men was blinded upon an occasion so deeply affecting their interests. Leaving, then, the consideration of the facts which tended to render the blockade notorious, let me now advert to the commu- nications, to use as appropriate a term as I can, distinct from the notification of the blockade itself in the strictest sense of that term. Sir C. Napier deposes that on the 11th of April he requested besides, there '^ , ^ . ^ 111 were special her Majesty's Ministers at Berlin, Copenhagen, Stockholm, communica- and Hamburg, to give notice to the British Consuls and Vice- siTc/Napier Consuls that he intended immediately to place the whole of the to the differenj Russian ports in the Baltic and the Gulf of Finland and Bothnia under blockade. What was done thereupon ? Lord Bloomfield deposes that The English -1 • • f c- Minister at on the 14th of April he received such communication from bir Berlin also C. Napier; that on the 15th he communicated it to the British ™aclecom- 1^ _ ' _ _ _ munications Consuls in the various parts of Prussia — Memel and Stettin — to the Prus- desiring them to give publicity to such information ; that he for'iroreiffn "^ communicated the same intelligence to the Prussian Minister Affairs, and for Foreign Affairs, and he subjoins a copy of that Minister's consuls in answer. Prussia. That answer is dated the 28th of April, and it encloses a copy of an oflScial declaration to the merchants of Prussia annexed to it, — a document of no small importance with respect to the question now under consideration. It bears date the 21st of April. It informs the merchants that Sir C. Napier was about to take measures for establishing the blockade in question, and it apprises them that confiscation is the penalty attending a breach of blockade, and that the Prussian Govern- ment will not be able to intercede in consequence of any vessel being captured for attempting a breach of blockade. That is the notice given by the Prussian Government to their own subjects. Lord Bloomfield concludes his affidavit by deposing; that the ^l'^ also says , ° the blockade blockade, of Lib au, Windau, and the Gulf of Kiga, was matter was notorious of public Notoriety, referred to in all the newspapers, and a j st^o?Mav° *" matter of general conversation in political and commercial circles, in Berlin as early as the 1st of May. Mr. Buchanan, her Ma,jesty's Minister at the Court of The English Penmark, deposes that on the 12 th of April he received from Copenhagen Sir Charles Napier the following despatch : — g'^?s similar , '■ o i testimony as " Duke of WellinfTton, in Kioge Bay, April 11, 1854. " Sir, — I have the honour to acquaint your Excellency, for the information of the foreign ministers, consuls, vice-consuls, and consular agents residing in the kingdom of. Denmark, that her Britannic Majesty's fleet will sail this to Denmark. 140 PRIZE CASES. Communi- cations were also made to the Govem- ments of Lubeck, Ham- burg, and Brunswick. "What is the effect of these communica- tions ? There was legal noto- riety of the intention to impose the blockade. Such notoriety must have induced mer- chants to make inquiry as to the actual ex- istence of the blockade. day for the Gulf of Finland, to place in a state of blockade the whole of the Russian ports in the Baltic, and in the Gulfs of Finland and Bothnia." Upon receiving this notice Mr. Buchanan immediately ad- dressed a note to the Minister for Foreign Affairs to the Court to which he was accredited, giving him information thereof, and he received a letter acknowledging the receipt of that communication. Mr. Buchanan further deposes that, having ascertained that Sir C. Napier had sailed with the fleet on the 12th of April, he made an express communication of that particular circumstance to the Danish Minister for Foreign Affairs by a note, a copy of which is annexed, and to all the foreign ministers, and other foreign diplomatic and consular agents at Copenhagen. On the 14th of April a notice of such information was made in a public journal. Mr. Hodges swears that on the 14th of April he made similar communications to the Governments of Lubeck, Hamburg, and Brunswick. It is true these are not notifications by Sir C. Napier himself of an actual blockade having been established or to be esta- blished on a given day, but these communications do make known to foreign Governments the intention to constitute this blockade immediately. It is, therefore, a fact, proved beyond all shadow of doubt, that Prussia, Denmark, and the Hanse Towns were apprised of what was about to take place ; and the public notice taken shows their sense of such communica- tions, their conviction that as soon as practicable the intention of Sir C. Napier would be carried into effect, and that their Governments, — the Prussian more especially, — duly apprised their subjects of what would be the consequence of violating the blockade. Now, of the perfect notoriety, and, I will add, the legal notoriety, of such intention to blockade, no human being can entertain a doubt. The least that can be said is, that the sub- jects of these neutral States knew what was about instantly to be done. What, then, is the legal effect of such an authorized commu- nication ? I admit that it is not the publication of a notice of an actual blockade, or that it will be imposed on a certain day. Had a day or time been fixed, such a communication would in effect have been a notification. The communication, however, is as nearly as possible an approach to such notification,— was so received by the Prussian Government, and was treated as such by them In the documents which they published to the mercantile classes. What was the consequence ? The atten- THE "FRANCISKA." 141 tion of all mercantile classes was roused to the subject ; their 1855. most important interests were at stake ; and it is inconceivable judmnrnt. that they did not from that time use every endeavour in their power to obtain information on the subject, and avail themselves of every channel of knowleda;e to ascertain when the blockade was actually imposed. It was not only their interest but their bounden duty to '''W '^«™ 1 p •, 1 11 ijT bound to make pursue such measures, tor it never can be reasonably contended inquiry, and that, having received such information, the subiects of neutral cannot avail oii.i 11. • • themselves of States had a right to shut their eyes and to stop their ears against the plea of the reception of that knowledge which such a state of circum- ^i^^^uj^ stances would naturally generate. They had no right to say, ha,ve heen because this is not a notification of a blockade at a particular time or hour, present or to come, we will consider this intimation of what is about to take place of no consequence, and we will contend that we are entitled to be placed in the same situation as if no such knowledge had been conveyed to us; — or, in other words, we will contend, when the blockade is imposed on Riga, it is the same as if all had been kept secret from us ; and we will assert that, as a matter of right, in justice and common sense we are entitled to the same notice at 'the ports blockaded as if no communications of Sir Charles Napier's intention had been made, and he had not quitted for the very purpose of carrying it out. I am, therefore, of opinion that these communications The inference ., ,. , . p , . from these are strong evidence tending to prove the notoriety ot this communica- blockade ; for if, as I have already said, the blockade was esta- *!°°?/*'v'^^* blished in fact, these circumstances must have led to inquiry, became noto- and inquiry to information. "°'^- I will now make a short reference to the evidence of Lieu- tenant Hall, Mr. Hertslet, and Mr. Lousada. Lieutenant Hall was lieutenant on board the " Conflict." He The evidence swears that on April 15th the blockade was established, and on jiali'*"^"^"* that day the Dutch galliot, the "Joan Geeling," was boarded and warned off, and her papers indorsed ; that the day after she went into the port of Memel, — not for the purpose of keeping that circumstance a secret, I apprehend ; that on the 17th he, Lieutenant Hall, Avent to Memel ; that he informed Mr. Hertslet, the Yice-Consul, that the coast of Courland was blockaded; that he remained on shore for three days, conversed with many of the merchants at the principal hotel, and the fact of the blockade was perfectly well known. Mr. Hertslet deposes that on the 1 7th of April he received Of Mr.Hertslet. a letter from Lord Bloomfield, stating that Sir Charles Napier would immediately place the whole of the Russian ports under ]42 PRIZE CASES. 1855. Judgment. Captain Key's letter to Mr. Hertslet. blockade, and that he was desired to give publicity to that intelligence. Accordingly on the same day, April 17th, he gave notice to the following effect, — that Admiral Sir Charles Napier has placed the whole of the Russian ports in the East Sea in a state of blockade. Now it is perfectly true that this notice so given does not strictly correspond with the instructions of Lord Bloomfield j the instructions speak of intention, the notice states the fact; but if the fact were true as relates to Riga, to Libau, and to Windau, how can it be a matter of any possible importance that there was such a difference as I have mentioned between the instructions and the notice ? Did Mr. Hertslet know the fact, or did he not ? Mr. Hertslet was apprised by Captain Foote and by Lieutenant Hall on the same day that the blockade had commenced ; and the day before, a Dutch vessel had come into the port of Memel, having been warned off. He had ample knowledge of the fact of the blockade ; and although a strict compliance with form might have required that he should have given the notice in the terms of Lord Bloomfield's letter, and have added to it that the blockade had actually commenced, yet what difference could this possibly make to the neutral merchant, when the only question that appertained to him was, the knowledge of the blockade ? The notice to which I have referred was posted by the authority of the corporation of merchants on the Memel Exchange on the 18th, 19th, and 20th days of April. If so, it would be very difficult indeed to say that the mer- chants of Memel especially were not perfectly cognizant of the fact of the blockade, as well as of the previous intention to impose it. Mr. Hertslet annexes to his affidavit a letter from Captain Key, dated the 1 2th May, and in this letter he is desired to, inform the Consuls at the ports of Libau, "Windau, and Eio-ay that these ports were strictly blockaded, and that any vessel leaving them after the 15th of May with a cargo will be detained. This letter was communicated to all the Consuls of the neutral States, and they were requested to inform their colleagues at the Russian ports. Much comment has been made upon this letter. I know not the particular motives which induced Captain Key to write it, or to fix the date of the 15th of May. Whether he did so because he had received information of the Order in Council of the 15th of April, fixing that as the last day Russian vessels should leave the port, or for some othei reason, I know not ; but whatever view he took of it, I can in no respect concur THE « FRANCISKA." 143 with some of the arguments which have been attempted to be 1^^^- drawn from it. Such a letter could in no degree whatever j^ment. impair the validity of the blockade previously established. Captain Key had no authority so to do ; the utmost extent to which that letter could go would be, to protect vessels coming out of the blockaded ports prior to the 15th of May, — a point which I have already considered. Mr. Lousada's affidavit is dated Dec. 6th ; and if the contents The evidence of this affidavit be true, they are of the very greatest impor- °^^^- l'0»sa''a- tance, for they prove to demonstration that on the 19th of April the most extensive publicity was given at E.iga to the fact of the blockade being established. Mr. Lousada at that time filled the office of her Majesty's Consul at Riga, and the measures which he has sworn he did adopt were measures which it was his bounden duty to take. His character and veracity have been strongly impugned, and I must say, in my judgment, without a shadow of cause, or without any reason being stated which I deem worthy of notice ; and I am bound in justice to that gentleman to say that I think the disparagement attempted to be thrown upon him and his evidence is wholly without foundation. He deposes : That the blockade was well known at Riga on the 17th of April, the very day it was established, to all the Consuls, merchants, &c. ; that communications were made of the proceedings of the squadron by telegraph, especially from Dome Ness, and that frequently, and at all hours of the day, and were posted up on the Bourse and at the club-house ; that Mr. Hertslet's notification Avas known on the 18 th of April at Riga, and a copy thereof was posted up at the Bourse and his consular offices ; that he made known the Order in Council of April 15th to all the foreign Consuls at Riga, and pointed out to them the extent to which he apprehended it caused an exemption from the blockade ; and that all the Consuls, Danish and Swedish included, acted upon his suggestions, and made declarations before him which necessarily admitted the exist- ence of the blockade, and sought the benefit of the exemption which Mr. Lousada thought the Order in Council of April 15th gave. Assuredly this is evidence which, if credited, is perfectly conclusive that this blockade was known at Riga. I will not dwell further upon it at the present moment. There is some other evidence to which I wUl very briefly advert, for it would answer no good purpose for me to travel more deeply into details in this case. 144 1865. Judgment. Mr. Flint's letter. Accounts relative to a blockade coming from the blockaded port must be receired with great distrust. Mr. Bird's evidence. The facts of the blockade must have circulated. The evidence on behalf of the claimants. PRIZE CASES. Mr. Flint's letter annexed to Captain Key's affidavit esta- blishes the fact that the blockade was known at Lubeck long before the 10th of May. All the numerous documents annexed to the affidavits prove that formal notification was made about the middle of April of Sir Charles Xapier's declaration that he was about immediately to establish the blockade, and also of his having actually sailed on the 12th of April for such purpose. Accounts relative to the fact of blockade appear in the public papers, more or less distinctly announcing the fact, as would probably be the case in such compilations ; and moreover, in a few instances, the accounts from Riga in some respects deny the existence of the blockade; on which species of evidence Lord Stowell, with his accustomed wisdom and acuteness, observes that it must be listened to with great distrust, as the inhabitants of a port blockaded have a great interest in makino- the commercial world believe the contrary. Mr. Sloman and Mr. Bischof deposed that this blockade was known at Hamburgh as early as the end of April. Mr. Bird's affidavit aftbrds an instructive specimen how facts of this description circulate. The " Jagerine" was warned on the 18th of April from entering Eiga. She went to MemeL Mr. Bird deposes that, at Elensburg, to which port this vessel belonged, the fact that the " Jagerine" had been examined and searched by one of the blockading squadron — a fact conclusive of the actual exercise of the blockading power — was known soon after the 18 th of April. I apprehend that such information of the search and warning of this vessel, having reached Flensburo- did not remain buried at Flensburg, but in all probability it must have circulated through some part of the Danish dominions. A similar circulation of the fticts must have taken place with respect to all the other vessels warned, and whose papers were endorsed, and there were above one hundred in number. The same facts, the same motives, the same inducements, would produce the same results. I have now stated, as succinctly as I can, the leading parts of the evidence tending to establish the notoriety of this blockade in the Baltic. Before I attemjrt to draw any conclusions upon this question, it is meet that I should weigh and con- sider the evidence that has been adduced on the part of the claimants, not so much with reference to any particular instance of ignorance, as to the absence of general notoriety, and the disproof of evidence produced on behalf of the Crown.— This will not be a very long task. THE « FEANCISKA." 145 It is established by this evidence, that on the 19th of May 1865. Mr. Andersen, part owner of the " Steen Bille" inquired of judgment. Mr. Larlham, the British Vice-Consul at Elsinore, if the Russian Evidence in the ' , , " Steen Bilk. ports m the Baltic were blockaded, and that he answered that the British Vicc-Consul here had not received any official report to that effect. Now there can be no doubt as to this fact, and the claimant is entitled to the full benefit of it, whatever that may be. I have, however, already expressed my opinion that in the case of a blockade de facto, Tienixal subjects have no right to break that blockade merely because there has been no oflficial notification. I must observe that if Mr. Larlham, at the time when .that inquiry was made of him, had deposed that he had no official account of the blockade, and he did not believe it existed, it would have been strong evidence to disprove notoriety ; but it stands on the simple fact, which is not disputed, namely, that there had not been official notification. In the further proof in the " Nornen" there is an affidavit 1° *^,^ " ^°''' from Mr. Sharp, annexing a letter of Captain Key's, of which letter I am unable to see the importance. It appears to me to be merely a repetition of what had been written before, stating the consequences of the blockade being broken. Captain Heath- cote's letter has no effect upon the question we are considering. The further proof produced in the case of the " Steen Bille" requires more attention. I will first advert to the certificate Certificate from certain persons at Elsinore. After having spoken of an ^t Elsinore. official communication received at Elsinore on June the 6th, the subscribers, who were no doubt persons of great respectability, state that it was not known to them that any persons had received notice of any effectual blockade being established. Without stopping to remark that this certificate is not upon oath, I cannot but observe that it is expressed in language cal- culated to raise much doubt. It is not a statement of facts, but an expression of opinion very much depending upon the meaning to be attached to the word " effectual." Had these gentlemen deposed that within their knowledge no ships had been stopped and warned off, and all vessels allowed to come out of Riga, their evidence as to these facts, if they could have so deposed, would have been infinitely more to the purpose. The Minister for Foreign Affairs of Denmark has given an 5°*^ 'fJ^^- ° , ° , DanishMinister argumentative note upon the present occasion, upon which I for Foreign do not think it necessary particularly to comment. It bears ^'^^* date " Copenhagen, August 31st." It admits the receipt of Sir Charles Napier's letter, under date of April 12th; but unfortunately it wholly omits to notice the only point in K 146 PRIZE CASES. 1855. Judgment. Certificate from the Merchant Society of Copenhagen. Unworthy of credit. Evidence in the " Annechina Jantina." Certificate of the shippers of the cargo of the Annechina eTantina. question, viz., whether that government had a knowledge of the blockade de facto. In fact all the papers annexed to the affi- davit of Mr. May base themselves upon the absence of a formal notification, and that only. If they can stand on that foundation, well ; if not, there is an end to the discussion. If I am wrong in the law, they may be right in their construction ; if they are wrong in their construction, and I am right in the law, all the evidence which has been brought to prove there was no official communication is rather an unnecessary work. There is one paper which I cannot refrain from noticing. It is a paper emanating from the Merchant Society of Copen- hagen, dated the 25th of September 1854. It has indeed been already strongly commented upon, but I think not more strongly than it richly deserves. Those gentlemen have thought fit to state, not to swear, that having had great interest in observing anything connected with that blockade, they had never heard, even as a loose rumour, that it had been carried into execution until June 3rd. I hardly know how to treat this paper; it certainly requires considerable self-command. Truth requires me openly to declare my opinion that this statement is utterly unworthy of credit. I do not stop to notice their argmnents, which in this same paper follow up this representation ; for they are about upon a par with the credibility of the statements. The next set of further proofs, to which I will advert, relate to the case of the " Annechina Jantina." These proofs afibrd very little occasion for comment ; they merely allude to a formal notification, and present an accumulation of formal docu- ments to prove what no one denied, and what was not the true issue in the cause. There is, however, one document which I will shortly notice; and that is, a statement of Messrs. Wohkman and Sons, the shippers of the cargo. They certify that, at the time of the shipment of the cargo (that is, about the middle of May), no blockade de facto existed. Certainly if none such existed, the fact could not be notorious ; but whether it did exist or not depends upon other evidence besides that of these gentlemen. I should like to have known whether they were aware of the publications made by Mr. Lousada or the proceedings of Captain Key. I should like to know whether, at the time they signed that certificate, they knew anything of these captures, or of the numerous vessels which had been warned offl Looking at the communication between Libau and Riga, and Windau and Eiga, should like to know whether these gentlemen could have been in total ignorance of that fact, with which the whole commercial world must have been acquainted. THE "FEANCISKA." 147 In the case of the " Union," there is a certificate from mer- 1866. chants, that, according to their full conviction, it is impossible judgment. for the captain of a ship leaving Flensburg on May 14th to Evidence in the have arrived at a certainty whether and when the blockade of the Russian ports had taken place. There is also a certificate from the Custom-house to the same effect. The further proof, in the " Vrouw Alida," principally relates The " Vrouw to the peculiar circumstances of that case. ' "' It now becomes my duty, from a consideration of this con- flicting evidence, to draw svich conclusions as I think the law and the facts of the case require. Can I believe that, after the evidence that I have recapitu- Upon due con- lated as to the fact of the blockade itself, as to the visiting so ti^ evidence many vessels, and indorsing their papers, — after all the com- *^ Court con- . . , , , ° . . ^ r ' eludes that the mumcations made by the ministers, the consuls, the omcers, fact of the the publications at Memel and at Eisa, — considerino; the facility hlockade was „ . . 11 1 • sufficiently no- of communication between all the ports of the Baltic, the earnest torious to throw desire which self-interest would prompt to acquire the best, the ^^ °™\°5 earliest information ; — can I believe, on a comparison of this ignorance evidence, that the fact of this blockade was not known, at t^e'^eutral'" least, at a very early period in the month of May ? Lord merchant in Bloomfield says it was known prior to the J st of May. Sup- g^se. ^^' ^ " posing it was not known before in other places, how long would the news be travelling from Berlin ? I will not attempt to fix the day, because it is obvious that knowledge may have reached various ports at different times. I cannot in my conscience entertain any rational doubt that the fact was so ; and I hold myself bound, therefore, to pro- nounce that this blockade, by the period I have stated, was matter of public notoriety. But I wish to proceed with all the care and all the caution which an earnest desire to protect the subjects of neutral States can possibly dictate ; and if there be a rational doubt, however small, I wish to give them the full benefit of it. I shall therefore limit my conclusion by stating, that I consider this blockade to have been, at the time men- tioned, a matter of notoriety, yet not of such notoriety as to bind the neutral merchant absolutely and without power of redemption, but suflScient to throw upon him, — and I am well warranted by authority in taking this position, — the onus of proving, if it should be in liis power to do so, that he was pursuing his avocation in ignorance of that measure which bad generally become so publicly known. By these conclusions I shall be guided in determining the cases brought before me with respect to a breach of the blockade K 2 148 1855. Judgment. Two questions : — 1st, Is the 16th article of the treaty with Denmark of 1670 ia force ? 2nd, If so, what is its construc- tion ? So also re- specting the 11th article of the treaty with Sweden of 1661. The treaties having been binding, the onus of proving them now to be inoperative lies on those asserting the proposition. PRIZE CASES. of the coast of Courland, and, I hope, with a just regard to the circumstances of each particular case. I am happy to say I have arrived at the last part of this case which requires a separate discussion. The branch of inquiry on which I am now entering involves two questions : First, whether the 16th article (a) of the treaty of Great Britain with Denmark, 1670, be now in force, and if so, what is the construction to be put upon it ? Similar questions arise with respect to the 1 1th article ib) of the treaty of 1661 with Sweden. It is admitted that these treaties were made at the time they purport to bear date, and consequently were engagements binding upon the contracting powers. To prove, therefore, that the treaties themselves, or any part of them, are not operative at the present time, must be an onus on those who assert such position. The question of revocation of treaties is, I believe, almost novel in these Courts. I must therefore state what are the {a) XVI. Alterutri Confoedera- torum ejusque Subditis Populove cum alterius hostibus Commercium habere, atque Merces quascumque (prohibitis solummodo quas Contra- bandas vocant exceptis) advehere et subministrare absque ullo impedi- mento licebit, nisi in Portubus lo- cisque ah altera obsessis, quod sifece- rint, liberum taraen ipsis erit, vel obsidentibus bona sua divendere, vol ad alium quemvis Portum, locumve non obsessum sese conferre. (') (&) XL Quamvis superioribus Artioulis hujus Foederis ac Amici- tise Legibus prohibitum sit, ut neuter Confoederatonim alterutrius Hosti- bus auxilium atque subsidium pra3- stet, subintelligi tamen nullo modo debet, Commercia et Navigationera illi Confoederato, ejusque Subditis ac Incolis, qui Belle non est immix- tus, cum Hostibus illius Fcederati, qui in Bello versatur, omnino dene- ■gata esse. Cautum tantummodo sit interim ne ISIerces uUse vocatse con- trabandce et specialiter nee pecunia nee commeatus, neo Anna, Bom- bardse cum suis Igniariis et aliis ad eas pertinentibus, ignes missiles Pulvis tormentarius, fomites alias Lunten,Globi,Cuspides> Enses, Lan- cse, Hastse, Bipennes, Tormenta, Tubi Catapultarii, Aijlgo Mortaria, Induotiles Sclopi, vulgo Petardae, Glandes Igniarise missiles, vulgo Granadse, Furcae sclopetarise, Ban- daliers, Salpetrse, Sclopeti, Globuli, seu Pil« quae Sclopetis jaculantur, Cassides, GaleEe, Thoraces loricatse, vulgo Cuirasses, et similia Arma- turse genera, Milites, Equi, omnia ad instruendos Equos necessaria, Sclo- pethecae, Balthei et qusecunque alia bellica Instrumenta uti nee Naves Bellicse et Praesidiarije Hostibus suppeditandse devehantur ad alterius Hostes, sine periculo, si ab alterb Confosderatorura deprehendantur, quod predae cedant absque spe resti- tutionis. Neque Confoederatonim alteruter sinat ut suorum cujusquam opera Hostes aut perduelles alterius ittantur, Navesque vendantur, com- modentur, uUove modo usui sint al- terutrius Hostibus aut perduellibus ad, ejus incommodum aut detrimen- tum; Alterutri autem Confosderato- rum ejusve Populo Subditisve cum alterius Hostibus Commercium ha- bere, iisque Meroes quascunque (de quibus supra exceptum non est) ad- vehere licebit, idque sine ullo impe- dimento, nisi Us in Portubus, locisqve, qui ab altera obsidentur: Quod si ac- ciderit, vel Obsessoribus Bona sua divendere, vel ad alium quemra Portum non obsessum libere se con- ferre permissum erit. (') (') Dumont's Corps Diplomatique, vol. vii. p. 128- (') Ibid. vol. vi. p. 385. THE " FEANCISKA." 149 principles, which I presume ought to govern the Court in , ^^^^' , so important an inquiry. In one respect, States contracting Judgment. with each other in forming treaties, dissolving treaties, or Independent , altering treaties, stand in a very different position from indi- ^ouna^^"" viduals. Independent Governments are not bound by any forms pre- particular form, either in making contracts, or changing, or viduals with annulling them. Forms are indeed in use, but as to contracts respect to con- tr&ctSa affecting only the mutual interests of the contracting parties, they are not, I apprehend, bound to observe them. Thoii2:h some arguments were addressed to the Court, the Q^^f^i c^u „,.,.!, . , treaties fall into aun of which might be to prove that those articles were desuetude ? obsolete, yet without entering into the question whether treaties can so fall into desu.etude, I think the whole history of these treaties, and the discussion respecting them so late as 1793, demonstrate that such a position cannot in this case be maintainable. The only question which has been substantially raised for ^tf^igg^ar*^'^ my decision is, if I understand it rightly, whether the Danish admitted to and Swedish treaties before mentioned have been as to jjar- up^o^t^econ- ticular articles revoked by the convention of 1801. The terms ventionof in which such a proposition is stated admit their existence up to that period. If one written statement is to be revoked or altered by Kevocation another, there are only two means by which such effect can be J^nferred when wrought, — direct revocation or necessary implication. Direct theinstru- . . , n IT T . , • . , • 1 ments cannot revocation is not alleged. In order to constitute revocation by reasonably co- implication, the inference must be free from doubt ; it must be *^'^*- proved that the provisions contained in the latter instrument are such as to be wholly irreconcileable with those of the former ; that the two cannot reasonably co-exist together. The presump- "^^^ presump- , . , . „ , . tion IS against tion is against such a revocation, because, it the contracting such inference. parties intend to alter a subsisting article, they would naturally so express themselves ; they would use revocatory terms. Now the articles to which 1 must more particularly address '^^^ articles in Question* my attention are the 16th of the Danish, and the 11th of the Swedish treaty, which preceded it somewhere about nine or ten years. The 16th article is in these words, — " It shall be lawful for either of the confederates, and their subjects or people, to trade with the enemies of the other, and to carry to them or furnish them with any merchandise, (prohibited only, which they call con- traband, excepted,) without any impediment, unless in ports and places besieged by the other ; which, nevertheless, if they shall so do, it shall be free to them either to sell their goods to the besiegers, or to betake them- selves to any other port or place not besieged." (a) This treaty, I should observe, was originally in Latin. (a) Hertslet, vol, i, p. 191. 150 1855. Judgment. Convention of 1801. It is said that the convention of 1801 re- vokes the 16th article of the Danish treaty by necessary implication. PEIZE CASES. The convention of June 1801, is between Great Britain and Russia, but Denmark and Sweden afterwards became parties to it. (a) It is mentioned that the intention was that all the former treaties should be renewed by this convention, when Denmark and Sweden acceded to it ; for they say, " save and except the differences which result from the nature of the treaties and engagements antecedently subsisting between England and Denmark, of which the continuance and renewal are secured by the aforesaid convention." I take it, therefore, that the convention of 1801 generally confirmed, revived, and brought into existence, the same as if there were no war, all the treaties previously subsisting between Denmark and England, and, amongst others, this identical treaty. That confines the consideration to the simple question whether anything is to be found in the convention of 1801 which will annul directly or indirectly the article in question. I hardly know where to fix my attention in this case. Per- haps it is better to begin by observing, that beyond all doubt there are no revocatory clauses, and that the question is one of necessary implication ; — whether, in fact, it was the intention of these parties, without stating it, to substitute the provisions in the treaty of 1801 for the 16th article of the Danish treaty, and the 11th article of the Swedish treaty. I am not quite sure whether I am correct, but I understood the argument of Her Majesty's Advocate to be founded upon the 3rd article of this treaty, and especially upon the division of it marked No. 4. : " That in order to determine what charac- terizes a blockaded port, that denomination is given only to a port where there is, by the dispositions of the power which attacks it, with ships stationary or sufficiently near, an evident danger in entering." I have looked through the whole of this treaty very carefully, and have paid due attention to the argument of Her Majesty's Advocate, as I understand it, that because the convention of 1780 has been embodied in this, almost word for word, — with the single exception of the two articles which were most objection- able to Great Britain, viz., that free ships made free goods, and the article of search, of notice, and of blockaded ports, — there- fore, by reason of the omission on the occasion in question, this treaty must be considered a substitution for, or rather a revo- cation of, the 16th article of the treaty of Denmark of 1670. On this point I would first observe that, beyond all doubt whatever, there are no revocatory words, and I must sav that (a) Hertslet, vol. i. p. 205. (i) Ibid. p. 215. THE "FRANCISKA." 151 I cannot discover any terms in this treaty which I am justified ^ 1855. In construing to be a revocation by implication, nor any intention Judgment. to substitute this treaty, or any part of it, for the stipulations con- 1° tte conven- tained in the 16th article ; and I must add that I do not perceive there are no the slightest inconsistency in the 16th article of the Danish revocatory treaty and this treaty of 1801 subsisting together. I will add terms which to this, that with regard to the Swedish treaty in 1803, that J/stify the in- . , , . , . , . . IT fereuceofre- article which contamed a provision as to contraband was vocation ; altered, and no notice was taken of the remainder. I see no reason for supposing that it has been in any way set aside. In the documents themselves, I see no reason to pronounce a Though there . ■,......„ „ ^. rn, . are extraneous judicial opinion in favour ot a revocation, ihere are circum- circumstances stances, however, which, if I am correctly informed, tend to '^^^'^^^ induce , ' . . 1 , . the beUef that show that some conception was entertained that a revocation a conception was intended. I advert to the fact that the reservations as to J^^s existed , . . . that such re- Sweden and Denmark, inserted in the instructions from the Ad- vocation was miralty in 1793, (a) were not inserted in any instructions issued ^'^t^^'^^'^- in the war commencing in 1803 ; and also, what appears still more extraordinary, I cannot find any trace of the articles in question becoming the subject of discussion in these Courts. But if all I have now stated be correct, I do not perceive how ^"t ^^ Court such circumstances ought to influence my present judgment, judgment for the omission to which I have alluded may possibly have without refer- GT1C6 to SUCll been unintentional, or even, if intentional, it was the act of one circumstances. of the contracting parties only. I am at a loss, indeed, to con- ceive how it happened that, when so many Danish and Swedish vessels were captured, these articles were not brought into controversy ; but the omission to seek a remedy cannot alter a contract. For these reasons I feel myself bound to come to the con- "J^^^ '^°^^^ , elusion that the 16 th article or the treaty with Denmark of article of the 1670, and the 11th article of the treaty with Sweden of 1661, fi^^'^f't^"*^ are unrevoked and in full vigour. Swedish trea- The most difficult task remains ; for, admitting these articles fJ^'yjVour'" to be in force, what is their true meaning, and how are they to be construed? I apprehend that I must first look to the articles themselves, "^^^ 9°"''* , .i , . . T T , T . 1 T must look to and it the meaning intended to be expressed is clear, I am not the articles at liberty to go further. themselves for •' ° , , their intention. If there be doubt, I should in an ordinary course seek eluci- The Court has dation by reference to the circumstances under which the treaties ^° extraneous were concluded. I have used my best endeavours to obtain these articles. information, but I must candidly acknowledge that I am unable (a) Vide Appendix, p. xxvi. 152 Two kinds of modem expo- sition. The construc- tion of treaties belongs to the Court of Admi- ralty; their variation to the Government. It is said these treaties must have been in- tended to con ■ fer special privileges on Denmark and Sweden. A treaty may be merely de- claratory of the Law of Nations as understood between the contracting parties. PEIZE CASES. to refer to any auxiliary information of this description. I cannot find any information as to the peculiar circumstances attending the country at the time these treaties were made which would throw any light upon the present question. Cotemporary exposition would be the next resource ; I have none, and I have not heard that there was any cotemporary exposition. In the very able argument addressed to the Court I was not apprised, and I do not know, whether these articles were carried into execution, and if yea, how, during any war prior to 1793, or if so, to what extent. Again, with regard to modern exposition, this may be of two kinds. First, an explanation solemnly agreed between the two States reconcileable with the terms of the articles. An interpretation of this kind, though it might not be quite in unison with my own opinion, I should hold myself bound to accept. Secondly, an interpretation which the words of the article do not admit. Such an interpretation might be more properly called a substitute for the original meaning, but a substitute agreed to by both the contracting powers. Assuming this to happen, I must have the authority of the Government under which I sit that such an agreed interpretation has taken place. I should then receive it, not as a construction, but as an agreed settlement'of a difficulty. I must always remember the limits within which, as a court of justice, I can act. It is quite right that the Court of Admiralty should decide whether one treaty has been revoked or altered by another; it is equally within its province to construe the meaning of a treaty ; but if any change has taken place by diplomatic arrangements only as relates either to the subsistence and continuing effect of the treaty, or as to any alteration in its meaning, such is matter for tlie Governments, and not fit for a judicial tribunal. It has been contended that these treaties must have been intended to confer some peculiar privileges on Denmark and Sweden, otherwise why should such articles be framed ? or, to express the same idea in other words, that in case of war, Den- mark and Sweden should, as neutrals, have some advantage over other neutral countries. First, I will observe that it may be not altogether unusual for a treaty to be made merely declaratory of the law, not giving any peculiar advantage to either of the contracting powers ; and such is the opinion expressed by Mr. Wheaton. With regard to the treaty with America in 1794, he says, " The stipulation in the treaty intended to be enforced by this THE "FRANCISKA." 153 instruction seems to be a correct exposition of the Law of Nations, and is admitted by the contracting parties to be a correct exposition of that law, or to constitute a rule between themselves in place of it." (a) Without any reference to these particular treaties, I must A treaty con- express my serious doubt whether the' principle involved in neutr^ a rigjit such proposition can be maintained, — whether it was quite to trade -with ..,,_ r>-»T- n 1 blockaded consistent with the L/aw oi JN ations to corner on one neutral ports denied rights as to blockades which did not belong to others similarly *" f*'^^'" °?"' .° ...... trals, would be Circumstanced. The true principle is, that the evils arising to inconsistent neutral nations from war, and especially the exercise of the ^' jjations.^^ right of blockade, are evils which ought to fall on all according to the same rule ; that it would be wholly contrary to law and justice to allow one neutral to trade with a blockaded port, and exclude others. So, in a less degree, but still equally in principle, it could not be consistent with justice to relax the precaution or diminish the safeguards against entering a blockaded port in favour of one or two neutral States, to the prejudice of others ; because so doing would be giving them facilities and inducements which others did not possess, and so confer upon them a special commercial advantage not war- ranted by other distinguishing circumstances ; and moreover, Eestrictions as that such a measure might justly be complained of on another are only jus- ground, viz., that all restrictions with regard to blockades are 'i^ed by neces- ,..„,, , ,, -, sity, and that only justma Die to the extent that they are necessary to ettect necessity ap- their object : and that if a restriction is not necessary to be P''^^ *" ^^ - „ . . , neutrals imposed on one neutral State, it is equally unnecessary to be equally. applied to another. I will illustrate the foregoing reasoning by reference to the Belligerents 1- P 1 -1 TLT 11 1 1 1 • cannot aUowto subject 01 contraband. JNow, we all know that there is con- one neutral a traband by the general law, contraband by special treaty, and P^'^ilege to •/ o ' . . import contra- articles excepted from contraband for special reasons, particu- band to the larly as being the growth and produce of a country. Suppose ^"Xnies it to France and E-ussia to be at war, and Belgium and Great another neutral. Britain to be neutral countries; what would be said of a treaty whereby France agreed to allow the manufactures of Liege, being of the nature of general contraband, to go without let or hindrance to Russia ? Would not Great Britain have a right to say, " The whole law of contraband depends upon the right of self-protection ; if necessary at all, it is equally neces- sary against all ; and you have no right to keep the burden upon me, and relieve another to my disadvantage" ? For these reasons, without saying to what construction I may be com- (a) Wheaton's " International Law," vol. ii. p. 238. 154 The law of blockade at the date of the treaties is un- known, and it is probable that the pro- visions of the treaties were declarations of the future law on the subject — of the law ■which now prevails. The Admiralty- orders of 1793 seem based upon these treaties. Admiralty- instructions of 1793. PEIZE CASES. pelled to come, I think strong objections in principle lie to the proposition contended for by Dr. Twiss, that the articles must confer some privilege beyond -what is allowed to other States. To carry this matter a little further. When I am told that by these treaties extraordinary rights were conferred on Sweden and Denmark, I should have liked to know what was the law governing blockades such as the present in those days when the treaties were framed, and in what particulars these treaties differed from that law. It would, perhaps, not be easy to show what the law was. It is within the bounds of possibility, looking at the unsettled state of the law at that period, that the alterations supposed to have been made by those treaties were only an exemplieation of the present law, — a declaration of what should be taken to be the law. On the other hand, however, it must be admitted that the circumstances of the exception from the Admiralty orders of 1793, and Mr. Keene's negotiations about the same period, show that, in the opinion of the British Government at that period, there was some peculiar privilege reserved by these treaties to Sweden and Denmark. That privilege was con- strued to be a right to warning. These instructions are very short, and we must recollect that, upon the occasion when they were issued. Great Britain and other European countries conceived that such was the state of warfare with France, that it was lawful to resort to the most extraordinary measures for the purpose of crushing the French nation, even to the attempt of endeavouring to starve them. The first object of these instructions is contained in article 1 ; all neutral vessels laden with corn, «Sz;c. bound to any French port or to any port occupied by the French troops were to be detained, and the right of pre-emption exercised ; and to the best of my recollection they received ten per cent, in excess. The second article was, — " It shall he lawful for the commanders of his Majesty's ships of war, and privateers that have or may have letters of marque against France, to seize all ships, whatever be their cargoes, that shall be found attempting to enter any blockaded port, and to send the same for condemnation, together with their cargoes, except the ships of Denmark and Sweden, which shall only ie prevented from enterinff on the first attempt, hut on the second shall be sent in for condemnation." Now, It is perfectly clear to my mind, and no person can deny, that it must have been intended by these instructions to have referred to treaties which were in existence, and that in conse- quence of these treaties this privilege was given to Denmark and Sweden. When we go to the third article, I must con- THE " FEANCISKA." 155 fess, that when one comes to construe the treaty itself, it does 1855. leave a court of justice in a great difficulty indeed. The jiJ2j^^ third article, supposing that I vmderstood it rightly, and that pains were taken in framing these articles, relates to blockade by declaration, in which case Danish and Swedish ships are all put on the same footing as others, and there is no exception at all. I must not call that a construction of the treaty, because that would be wrong ; this was the step taken by his Majesty's Government at that time in consequence of the treaties between Denmark and Sweden. There are several reasons which render it very doubtful com-TtaT"** whether I can take these instructions as my guide. these instrnc- Flrst, I can hardly consider them as a construction of the g^deT ^*^ words of the articles, for I can find no words in the articles to bear them out. They can be made to bear them out only by putting words into the articles which appear neither expressly nor by implication. There is not a word as to warning off the first time to be found in any one of the articles, nor anything approaching to it. Secondly, as an exposition of the articles, the)'' are loose and unsatisfactory; for the great question of all will still remain unsolved, viz., whether a Danish vessel would be entitled to a warning if she proceeded with a knowledge of the blockade de facto, and made an attempt to break it ; that is not solved by these instructions nor by anything else. Thirdly, this exposition, if such it may be called, or agreed construction, was temporary only, and, so far as I know, its duration ended with that war. Fourthly, Mr. Keene's despatch justifies me in saying that this was not an exposition of the articles, but a substitution for them ; and T apprehend that where such a substitute for expla- nation is agreed upon, I am not at liberty to engraft it into judicial proceedings, except under the authority of the Govern- ment under which I sit, and no such authority I have. Let us see what Mr. Keene says. Addressing the minister of Sweden he says : — " The minister of Sweden will no doubt observe that the rules prescribed in these orders are more favourable to Sweden than those stipulated in the treaty exist- ing between the two Courts, as in the treaty all transports of provisions to an enemy are declared contraband and subject to confiscation." This may be peculiar to Sweden, because the two articles differ as to contraband, but the next passage cannot. " The exception in favour of Sweden, in the article of these regulations concerning blocked-up ports, is founded upon the same treaty, the principles of which are perfectly consistent The articles give no general right to go to blockaded ports. Obsessum em- braces siege and blockade. A general right to go to blockaded ports ■would be repugnant to the rights of other neutral nations. PRIZE CASES. with the prescriptions given to the commanders of his Majesty's armed vessels." These are the regulations which the Govern- ment for the time being chose to enact, founded on the treaty. Then he goes on, " It can certainly not be imagined that the object of this treaty has been to permit to the vessels belonging to neutral powers to renew their attempts of entering into blocked-up ports as many times till they succeed in throwing provisions into them; they have only been exempted from the punishment of confiscation upon the first attempt.'' (a) Now I repeat my opinion that these instructions are not a construction or interpretation of the treaty. If, then, I am not authorized to take these instructions as the arrangement made between the two Governments, and as a permanent settlement, I must put upon those articles that interpretation which I think the words in which they are expressed require, and which they were intended to bear at the time of the contract ; that is, if we can, with our little means of judging, say what the contracting parties intended in 1661 and 1670. First, it is, I conceive, perfectly clear that these articles do not give any general right or liberty to go to blockaded ports. The words of the 16th article are: they shall have freedom of course, to go anywhere they please without impediment, " unless in ports and places besieged by the other." Therefore, construing, as I believe I must, obsessum to be commensurate with the siege or blockade, or both, it was intended that Den- mark and Sweden should not convey merchandise to blockaded places. "With regard to what follows, I must enter into some nice disquisitions with respect to the two treaties, because the treaty of Sweden, which perhaps I may call the mother treaty of the tw'O, is in these words, " t/uod si accident" which is construed to mean, " if they happen to go to blockaded ports." The words are, " quod si acciderit,^^ the meaning may be, " unintentionally approaching them ;" the words in the Danish treaty are, " quod sifecerint;" these words are equally left without auxiliary ex- planation. They must, I grant, looking at the whole context, necessarily mean this— if they should in some way or other, but how nobody can tell, approach blockaded ports. My opinion is, therefore, that there was no general right to go to blockaded ports, and that such a stipulation would not only have militated against the right of blockade, but would have been repugnant to the just rights of other neutral nations. (a) Annual Register, 1793; State Papers, p. 174. THE « FEANCISKA." 157 In what cases, then, were these' articles to apply ? There ^855. are insuperable difficulties to any literal interpretation of the Judgment. words of the articles, arising most probably from our igno- The anicles ranee of the circumstances for which they were intended to ^"""^ diiBcult to ■' construe. provide. It is my belief, though a belief I cannot act upon, that there Probably they was some particular commercial intercourse, a regard to which soj^rtiarticnlar dictated these compacts, such as a supply of provisions, or some commercial similar commodity; for it is almost an absurdity to suppose that -which we are these articles applied to cargoes of every description. Observe '^°'^ ignorant. the alternative, — you may take it, according to one construction, to a blockaded port, the blockading squadron must buy it, or you must take it to another port. Now, could it be supposed that a Danish or Swedish vessel could carry a cargo of silks and satins, or pig iron, to the blockading fleet, and say, Buy my cargo, or send me to an enemy's port not blockaded ? It must have been intended that the commodity offered to the squadron must have been a commodity possible to be bought ; there can be no other meaning to that part of the treaty. I incline to think that the only mode of arriving at a safe conclusion is, to determine what is not the meaning, or what is sometimes called the process of exhaustion. It is agreed then first, that this article does not destroy the '^^^ article .,„,,,- ,, _, . , _ ,.% does not stipu- right 01 blockade generally. Does it mean that a Swedish or late for wam- Danish vessel may, with a perfect knowledjje of the blockade, *?? °ff^^^^^ J ' r o 'all circum- sail with a cargo for that blockaded port, get in if she can stances, without being stopped by the cruizers, and if stopped say, "True, I was going to the blockaded port, but you have caught me ; buy my cargo, or send me to another port not blockaded"? "Would that be a rational exposition ? What would be the consequence ? All Swedish and Danish vessels might sail for any of the blockaded ports, for Riga ; get in if they could ,• if turned back, sail along the blockaded coast, slip into Windau or Libau, or^ if stopped by another cruizer, say, " I have been warned ; I am in my course to some port not blockaded." If this be the sort of warning claimed for a ship intending to violate the blockade, I say that such a construction is not only not to be found within the four corners of the treaty, but is repugnant to the spirit of it; destructive of all just rights belonging both to belligerents and other neutral States. But there is another possible interpretation which I will put If a Danish to the test. A Danish vessel, cognizant of the blockade, but zant o'f'th?''' without any intention to violate it, sails straight for the block- Cockade, were ading squadron, says, " Buy my cargo, or let me go to an for the block- 158 1855. ading squadron, and say, " Bay my cargo," the Court ■would restore. Ignorance, for ■which the neutral's Go- vernment is ans-werable, is no excuse. Supposing a ■blockade de facto gene- nerally known and a case of particular ignorance, the Court ■would give Danish and Swedish vessels the benefit of the treaty, and not press against them the usual pre- sumption of kno-wledge. In a case of reasonable doubt as to the continu- ance of the blockade, and of a vessel directing her course to the blockading squadron to make inquiries, the Court ■would give her the benefit of the treaty. Denmark and S^weden have no ground of complaint. PEIZE CASES. unblockaded port." I think this might be one of the meanings, and if such a case should occur, I ■would restore the vessel. Take another state of things. A Danish vessel proceeding for a blockaded port in ignorance of the blockade. By the ordi- nary law of blockade she -will not be condemned, unless the blockade had been notified to Denmark, or unless the blockade had become so notorious that kno^wledge must be presumed. Does the treaty make any difference in such a case ? In the case first supposed, of notification to Denmark, it could not be argued that ignorance could be any excuse, when that igrnorance arose from the fault of the Danish Government, in not informing her subjects, as Lord Stowell held it was the duty of every Government so receiving a notification to do. Then consider the case of ignorance of a blockade de facto. There might be a case of general notoriety, and yet of particular ignorance; a case where, unless there was some stipulation by treaty, the presumption of knowledge ought to prevail against the fact of ignorance. Does this treaty provide for such a con- tingency ? Possibly it might have been intended so to do. It is possible that, as this treaty is universal in its terms, and not confined to the Baltic, and as Denmark and Sweden were in those times difiicult of access, this might have been the intention of the contracting parties. Be it so, then, though circumstances have wholly changed ; yet if such a case occur, Danish ships and property shall be protected. Is there any other possible state of things in which Denmark or Sweden (I speak of them indiscriminately) could reasonably claim a benefit under this treaty ? I will exercise my ingenuity to find a case. Say a case of doubt as to the continuance of a blockade — of justifiable doubt. What is the extent of any reasonable demand on the part of the merchant-vessels in such a case? Liberty to approach the blockading squadron and make inquiries. Produce the case of reasonable doubt, and of directing the course of the vessel to the blockading squadron for such purpose ; I will release her. , Now, what cause of complaint has Denmark or Sweden? I have provided for every case that I can even imagine for the protection of their merchant vessels, if their commerce be con- ducted with integrity and due regard to the rights of the belli- gerent. If there be any other state of things which could require a similar remedy, I would provide for that also ; but do not tell me that I have given to Denmark and Sweden no more than other nations could justly claim, until you have proved to me what the state of the law was prior to 1661 — until you THE "FRANCISKA." have shown me that, either this treaty was not declaratory of that law, or, if it were not, that the Law of Nations, since 1661, has not grown up to the same proportions. Show me, in short, that my construction is not consistent with justice, or with the fair import of the words of the treaty, and I will abandon it ; but if no complaint can fairly be raised, and no grievance pointed out, I will adhere to my own interpretation, and not adopt that which the convenience of the moment or the incuria of states- men might have induced them to resort to, for the sake of temporary acquiescence. Having now stated the various conclusions to which I have come with regard to this blockade and the treaties, I proceed to adjudicate upon this case of the " Franciska," in conformity with those conclusions, and, I hope, also with the true result of the evidence. The present consideration is confined to the ship only, (a) The The facts of vessel is a Danish vessel, and, in the month of April, left Spain JJ'p'^*^^°/*''f with a mixed cargo, destined for the Baltic, and bound to Elsinore for orders. Mr. Arboe, the owner of the vessel, was resident at Copenhagen. What were the precise orders the master received, I have no means of knowing with accuracy. She left Elsinore on the 14th of May, and I must seek for his destination in the evidence of the master, the papers in general terms describing the voyage to be to the Baltic. The master's account on the 18th interrogatory is, that his The master's owner's orders were to proceed to Memel, but, he says, " If there '^'^^'l^'""^- was no blockade, and if the English ships of war would permit, I was ordered to proceed to Riga, and I was sailing to ascerr tain this from the English when captured. The voyage was to have ended at Riga if not blockaded, and if permitted to go in and out." It is of the last importance in this case to try the credit of the master : to examine whether his evidence be consistent and true, or whether, having placed himself in a difficulty, he has adopted such a statement as he, believed might rescue him from the consequences without regard to the real truth of the case, and it may be without having very definitely determined upon the line he should adopt in his evidence. First, then, he has sworn that his orders were to go to Memel, a neutral port, to which he was entitled to go, and so far well ; he doe.s not say he was to go to Memel to make inquiries there as to the blockade, but omitting all mention of what was to be (o) On a subsequent day the cargo was also condemned. 160 PEIZE CASES. 1855. Judgment. The master is unworthy of credit. done at Memel, lie goes on to state that he was ordered to pro- ceed to Riga if not blockaded. ■ On the 13th interrogatory he states the consignees of the cargo in Memel were Frederick Schoeller: the Riga consignees he does not know. His evidence on the 3rd interrogatory is " The place of capture was ten miles to the west of Lyser Ort; the day was the 22nd of May ; the distance from the place of capture to Memel would be about 130 miles to the north of Memel, and beyond it." I cannot easily reconcile this statement with his assertion that his orders were to proceed to Memel ; but on the 30th interrogatory there is a further statement that the '" Franciska " was steering her course towards Memel before the capture. Here, then, is a vessel with a fair wind said to be proceeding to jNIemel, when she has already proceeded 130 miles beyond it towards the Gulf of Riga, and is sailing in a direction, according to the log, E.N.E and N. by E. ; that, I confess, is a nau- tical question which I cannot solve with any advantage to the present claimant. But is there a word of truth in this statement ? Was this vessel sailing towards Memel at the time of capture, or shortly before? Let us look at the log : on the 21st of May, at 3 A.M., Libau was in sight E. by N. : the course during the whole of that day was E.KE. and N. by E. On the 22nd she had advanced so as to get Windau in sight, and she steered N.N.E. and E. by N., therefore she was never steering towards Memel at all, and this part of the statement is utterly false; it is not true that her course was altered to approach the cruizer when she descried her. In answer to this same interro- gatory this master equivocates, and plunges still deeper into difficulty. He says her course was at all times when the weather would permit directed to the place for which she appears destined by the ship's papers. This is mere equi- vocation, because he knew that the clearance was for the Baltic generally, and it is utterly false to say that she vras going to Mernel at any time whatever. The real truth is, that the master was going to Riga ; that he was aware that the so doing might subject him to detention by a British cruizer ; that he was embarrassed by the place of cap- ture, that he could not determine what was the best course to take : so that at one time he swears he was goino- to Memel, which was not true, and at another that he was seekino; a British cruizer for the purpose of making inquiries, which was equally false. I entertain no doubt whatever that this master was cognizant of the blockade, was seeking to violate it, and has THE « FRANCISKA." 16 1 invented a tissue of inconsistent falsehoods for the chance of , °°' escape. * Judgment. There is nothing more to comment upon. The papers afford no information nor does the further proof. It was strongly urged by Hei- Majesty's Advocate that Mr. Arboe, the owner, had not made an affidavit deposing to his ignorance of the fact of the blockade. Perhaps that may be some confirmatory proof of the inferences I must draw from the evidence of the master and the log; but I respect Mr. Arboe for his abstinence, for sure I am from this evidence, as well as from the whole testimony regarding the blockade, that he could not have asserted his ignorance without sacrificing his conscience to his interest. I condemn this ship, first, because I hold that the blockade Vessel con- was notorious at Elsinore on the 14th of May, the day this tecause^ 1st, vessel sailed. blockade no- 1 /. 1 1 1 torious when Secondly, because the master has deposed falsely, and was the vessel proceeding to violate the blockade with a full knowledge ^^^^^ 1 r. TT 1 1 • 1 -I • 1 ^ 2nd, the thereor. Under such circumstances he can derive no benent master has from the treaty with Denmark. ^"''"f J ,''^- _„. , , 1 . -1 posed falsely, With respect to the other cases, I must postpone my judg- and can derive ment till I have had time to examine the peculiar circumstances f°^™^g' belonging to each. treaty. I am afraid it may be said with some truth that this judg- ment in parts may be difi"use, in others I may have been guilty of repetition ; but when it is considered that I have had, in the space of one week, to make some inquiries, as far as my means extended, into the history of the treaties, to weigh and digest all this evidence, and to come to my conclusion, I think it would not be expected that I should be as concise or as accurate in my expressions as I otherwise might have wished to be. But I felt, from the great interest taken in these cases, and knowing what mischief must accrue by delay, that it was better to pronounce my judgment, the substance of which I believe right, than, by taking further time, to prejudice the parties interested, (a) THE " STEEN BILLE," Beck. Peb. s. i HIS was also a Danish vessel, which left Elsinore with a cargo of coals and tar on the 18 th of May, and was captured, on the 25th, about 45 miles off the coast between Memel and Libau. She was claimed on behalf of some Danish merchants, (a) This case was appealed, and the decree' of the Court below reversed, November 30, 1855, 162 PRIZE CASES. The circum- stances of the] The place of capture was in the course to Biga as well as to Stockholm. The com- parison of the master's evi- dence with the log proves the vessel to have been sailing for Biga. The master is discredited by his own log. resident at Elslnore. The defence was, that she was hound for and was on her voyage to Stockhohn. De. LushingTON. It is not my intention, in delivering my judgment upon the remaining cases arising out of the blockade of the coast of Courland, to repeat any of the observations which I made in the leading case, — the Franciska ; but merely to apply to the particular and individual circumstances of each case, as it comes before me, the principles which I then laid down, and the conclusions to which I then arrived. The " Steen BiUe '' sailed from Elsinore with a cargo of coals and tar on the 18 th of May, and the master swears that the voyage was to have ended at Stockholm. Adhering to the opinion I have already expressed, I must hold that the owners resident at Elsinore and the master were cognizant of the blockade, unless, indeed, it were possible to show a case of entire and not wilful ignorance. But if this vessel was really going to Stockholm, there was no breach of the blockade, and a knowledge of the blockade matters not. The master states the place of capture to have been about forty or forty-five miles off the coast between Memel and Libau ; and also, that on the day before her latitude was 56° 8' N., and her longitude 19° 59' E. He says that he should guess, but that he could not say with any certainty, that at the time of seizure they had varied about 16' to the north; " I am sure," he added, " we were further to the westward than the day before." Much evidence has been adduced to show that the place of capture was in the proper course to Stockholm. I am not con- vinced by this evidence, but do not mean to decide as if I wholly discredited it. This is abundantly clear, that, though it might be a proper course for Stockholm, it was also a proper course for Riga. How, then, am I to be satisfied as to which place the master was really conducting the course of his vessel ? I must look to the whole of the evidence, and see whether it is true and consistent, — whether the master is deserving of credit or not. [The learned Judge, having minutely compared the master's evidence with the log of th© vessel,- IS an extreme measure, and should be adopted only where justice imperatively demands it. ^ .-,,^ PRIZE CASES,,, ^ C- y -^^z^/^t. ^'-/oi /jx/ THE "OSTSEE," Voss. 1 HIS vessel, under Mecklenburg colours, and having a Mecklenburg master, and a crew consisting of four Mecklen- burgers, three Swedes, one Prussian, one Dane, and one Russian, took a cargo of wheat on board at Cronstadt, and sailed therefrom on the 28th of May 1854, bound to Elsinore for orders. On the 30th she was met in the Gulf of Finland by her Majesty's ,ship of war " Dauntless," and boarded by an officer, who, having inspected her papers and found them regular, allowed her to proceed. On the 1st of June, she was met in the Gulf of Finland, off Hango Head, by her Majesty's ship of war " Alban," was boarded, and, after her papers had been inspected, was detained as prize for having broken the blockade of Cronstadt, and was sent to England for adjudication. The blockade, it seems, was not imposed upon Cronstadt until some time subsequent to the capture; and consequently the Queen's Proctor, having submitted the ship's papers to the Queen's Advocate, offered on the 2d of August to restore the ship and cargo upon the payment of the captor's expenses. To this no answer was returned until the 1 0th of August, when the offer was not accepted by the proctor for the owners, who claimed restitution with costs and damages. The Queen's Advocate and Dr. Deane for the captors; Dr. Addams and Dr. Twiss for the owners. Dk. Lushington. During the seventeen years that Lord Stowell presided in this court and administered the Law of Nations with regard to war, I believe that, out of the many ships and cargoes brought before him, he condemned the captors in costs and damages in only about ten or a dozen cases, — not one in a thousand; and Lord Stowell also, as I right well remember, laid it down that he would not condemn the captors in costs and damages upon evidence given before him, without giving them the opportunity of justifying their conduct, and of stating, if they thought fit, the grounds on which they made the capture. As far as I recollect, there are only three cases of restitution with costs and damages. I am well aware that, where a seizure has been made without ostensible cause or reason, justice requires that the persons making the seizure should make good to the party the loss that may have been occasioned by the capture. At the same time I am of opinion that this is the extremity of the Law of Nations, which ought not to be adopted except in cases which . impera- tively call upon the Court so to do. THE « OSTSEE." 175 Without ventixring any opinion as to what may be the duty 1855. of the Court in cases that may come before it, but looking at ji^dament the confufcion that has arisen respecting this blockade, and the difficulty which commanders of her Majesty's vessels have in forming their own opinion, and seeing that consent has been . given for the restitution of this ship and cargo, I think I should be going too far in condemning the captors in costs and damages, and I decline to do so. From this judgment the claimants appealed to the Privy Feb.2a. Council. Dr. Jddams and Dr. Twiss appeared for the appellants ; the The Judicial Queen's Advocate and Dr. JBayford for the respondents. the Peitt The Right Honourable Thomas Pemberton Leigh COCNCIL. delivered the judgment of the Court, (a) March 29. On the 1st of June 1854, the ship '' Ostsee," sailing under the Mecklenburg flag, on her voyage from Cronstadt to Elsi- nore, was seized by her Majesty's ship " Alban," under the command of Captain Otter, and sent to London for adjudication as prize. Upon the ship's papers, and the examination of the master, the mate, and another of the crew, on the usual interrogatories, there appeared to be no ground for condemnation ; and with the consent of the captors, on the 19th of August 1854, an interlocutory decree was pronounced, by which the ship and cargo were restored to the claimants, but without costs and damages. From so much of the decree as refuses costs and damages to the claimants, the present appeal is brought. It is agreed on aU hands that the restitution of a ship and Restitution cargo may be attended, according to the circumstances of the ^^^g j^ ^^^^ case, with any one of the following consequences : — 'ways. 1. The claimants may be ordered to pay to the captors their costs and expenses ; or, 2. The restitution may be, as in this case, simple restitution, without costs, or expenses, or damages to either party ; or, 3. The captors may be ordered to pay costs and damages to the claimants. These provisions seem well adapted to meet the various cir- cumstances, not ultimately aifording ground of condemnation, under which captures may take place. (a) The Court consisted of the Edward Ryan, the Right Hon. Sir 'Right Hon. the Lord President of John Patteson, and the Right Hon. the Council, the Right Hon. T. Pem- Sir John Dodson. berton Leigh, the Right Hon. Sir PRIZE CASES. A ship may, by her own misconduct, have occasioned her Pkivy capture ; and in such a case it is very reasonable that she should Council. indemnify the captors against the expenses which her misconduct Judgment. , . , ^ ° ^ 1. On payment has occasioned. of captors' • Or, she may be involved, with little or no fault on her part, expenses. j^ ^^^j^ suspicion as to make it the right or even the duty of a costs on either belligerent to seize her. There may be no fault either in the *'^*- captor or the captured, or both may be in fault ; and in such cases there may be damnum absque injurid, and no ground for anything but simple restitution. 3. On captors Or there may be a third case, where not only the ship is in and'damage's, HO fault, but she is not by any act of her own, voluntary or involuntary, open to any fair ground of suspicion. In such a case a belligerent may seize at his peril, and take the chance of something appearing on investigation to justify the capture ; but if he fails in such a case, it seems very fit that he should pay the costs and damages which he has occasioned. The appellants insist that the circumstances of this case bring it within the last of these rules. General prm- ^pj^g general principles applicable to this point are stated with ciples on o 1 jr 1 r \. ^ which captors great clearness in a document of the very highest authority, — l^^^Zl^ the report made to King George II., in 1753, by the then damages. Judge of the Admiralty Court and the Law Officers of the Crown, one of whom was Mr. Murray (afterwards Lord Mans- field), and they are laid down in these terms (a) : — " The Law of Nations allows, according to the different degrees of misbehaviour or suspicion arising from the fault of the ship taken, and other circumstances of the case, costs to be paid or not to be received by the claimant in case of acquittal and restitution. On the other hand, if a seizure is made with- out probable cause, the captor is adjudged to pay costs and damages." This passage (with others) is cited by Lord Stowell (then Sir W. Scott) and Sir John Nickol, in their letter to the American Minister in 1794, as containing an accurate statement of the law of maritime capture. These rules have been recognized and acted upon by all the chief maritime powers. In France, a very early ordonnance provides, that when a seizure is made " sans cause raisonnable, notre dit Amiral fera duinent restituer le dommage." (/>) The " Pegou." The same rule is laid down by M. Portalis in two cases which came before the French Conseil des Prises in 1799. In one, (a) Pratt's Stoiy, 4. (6) Ibid. 35. 1855. PKivr COUNCIL, Judgment, THE " OSTSEE." the "Pegou," where a neutral ship (an American) had been cap- tured by two French frigates, the rule was stated and applied, it may be thought with some severity, to the particular case. An English translation of a rather imperfect report of the judgment is to be found in the notes in the case of the " Charm- ing Betsy" (a), but the judgment is set out at length in a Fi-ench work, published during the present year, with which Mr. Kothery has been good enough to furnish us, entitled, Traite des Prises Maritimes. After stating that in general a man is bound, as well by natural as by civil law, to make good the damage which he has occasioned, and that error on his part cannot relieve him from this reparation, the Judge proceeds in these terms: — " En matiere de prises I'imprudence des captures, leur negli- gence dans I'observation de certaines formes, des procedcs equi- Toques, peuvent souvent compromettre leur surete, et faire suspecter leur bonne foi. II peut arriver alors qu'en examinaut I'ensemble des faits on reconnalsse qu'une prise est invalide. Mais on peut reconnaitre aussi que les captures par leur con- duite out donue lieu ti la meprlse des capteiirs. Dans ce cas il seralt injuste de rendre ceux-ci responsables d'une erreur que Ton ne peut raisonnablement regardcr comme leur ouvrage. "Mais quand I'injustice des capteurs ne peut etre excusee, les captures out incontestablement droit h. une adjudication de dommages-interets." (h) In that case there would appear to have been some colour for the capture, for the Tribunal of First Instance had decreed restitution ; that order had been reversed by a Superior Court at Morbihan, which decreed condemnation of the ship and cargo, and this sentence was again reversed by the Conseil des Prises, which decreed restitution, with costs and damages. The same doctrine is laid down by the same eminent autho- rity, about the same period, in the case of the " Stalira." (c) The cases in the American Courts fully bear out the state- ment of the law by Mr. Justice Story in the Treatise already Mr. Justice referred to, which is in these terms {d): — " Every capture, whether made by commissioned or non- commissioned ships, is at the peril of the captors. If they 177 The "Statira: Story's Treatise. (a) 2 Cranch, 98. (6) Vol. ii. p. 55. His Lordship appears not quite correct in citing the passage as a part of the judgment of the Court. Monsieur Portahs, although after^vards President of the Cour de Cassation, was at that time only Commissaire du Gouvernement, or public prosecutor, and the passage is taken from the " conclusions " or arguments delivered in by him to the Court. Thej' are important as being the deliberate opinion of so eminent a lawyer, but they can hardly be con- sidered to have the full authority of a judicial decision. (c) 2 Cranch, 93. (d) Pratt's Story, 35. H 178 PRIZE CASES. 1855. Pkivt Council. Judgment. " Maria Schrceder.' " Triton." " William." " Actceon." " Elizabeth: capture property without reasonable or justifiable cause, they are liable to a suit for restitution, and may also be mulcted in costs and damages. If the vessel and cargo, or any part thereof be good prize, they are completely justified ; and although the whole property may. upon a hearing, be restored^ yet, if there was probable cause of capture, they are not responsible in damages." It may be observed that there is a misprint in this passage in Pratfs Edition of Story, p. 35, where the words " possible cause " are substituted for " probable cause." On referring to> the Appendix to 2 Wheat. Rep. 8., from which this part of the treatise is copied, the mistake appears, and indeed, it is obvious- from the context. Mr. Justice f^tori/ then proceeds to enumerate a great variety of circumstances which have been held to constitute probable cause, but all of a character to throw suspicion on the ship or cargo, and all attributable, in a greater or less degree, to some act or omission on the part of the owners. At p. 39, he lays it down generally : — " If the capture is made without probable cause, the captors are liable for damages, costs, and expenses, to the claimants." In the case of the ''Maria Schrceder" (a), in 1800, Lord Stowell says, " It is not necessary that the captor should have assigned any cause at the time of the capture ; he takes at his own peril, and on his own responsibility, to answer in costs and damages for any wrongful exercise of the rights of capture." In the case of the " Triton" (6), in 1801, the same learned Judge expresses himself thus : " This being the case of a voyage between two neutral ports, without any doubt on the destina- tion, and without any sufficient ground of seizure, I think the claimants are entitled to costs and damages." In the case of the " William "(c), the same learned Judge states : " When a capture is not justifiable, the captor is answer- able for every damage." And the same law is laid down in the case of the " ActcEon" {d), which we shall presently have occasion to state more fully. In the case of the " Elizabeth " (e), before the Lords of Appeal in 1809, Sir William Grant, — an authority upon such subjects, second only, if second, to Lord Stowell, — is reported to say : " We order the vessel to be restored, and, as we are of opinion there appears scarcely any ground for justifyino- the detention of the vessel, condemn the captor m costs." {a) 3 Rob. 152. (h) 4 Rob. 79. (c) 6 Rob. 316 id) 2 Dods. 51. (e) 1 Acton, 13. THE "OSTSEE." There appears in that case to have been, in the opinion of the Court, some, though but little, ground for the seizure, and the decree is for restitution without damages ; but the CJiptor, who Council. had obtained a decree in the Court below, is condemned in the costs of the appeal. We have referred to the original Order in To exempt the Minute Book, the case being loosely stated in the Report, ^sts and°™ The result of these authorities is, that in order to exempt a damages there „ , , . „ . . , must have captor trom costs and damages in case or restitution, there must been reason- have been some circumstances connected with the ship or cargo j'''^, S]^"™? ^ ° for hehef that aifording reasonable ground for belief that one or both, or some the ship or part of the cargo, might prove, upon further inquiry, to be prove laWnl lawful prize. P"2!e. What shall amount to probable cause, so as to justify a capture, cannot be defined by any exact terms. The question was discussed before Mr. Justice Story in the case of the ^ «-< „ , . Ill- T Quaere, Tfhat George (aj, when it was contended that, m order to exempt amounts to captors from costs and damages, the case against the ship at the prooahle cause, time of seizure must be such as primd facie to warrant con- ireorge. demnation, or at all events that restitution by a Court of Prize without further proof is conclusive evidence of a defect of probable cause. Mr. Justice Stori/ expresses his dissent from these propositions, in which we agree with him ; and he then expresses himself in these terms : — " If, therefore, there be a reasonable suspicion of illegal traffic, or a reasonable doubt as to the proprietary interest, the national character, or the legality of the conduct of the parties,, it is proper to submit the cause for adjudication before the proper Prize Tribunal ; and the captors will be justified although the Court should acquit without the formality of ordering further proof." In this case there was abundant ground of suspicion, and the demand of damages was rejected. Neither in the texts, nor in the decided cases to which we It is not ne- have thus referred, do we find it stated that, in order to sub- °!,!f,!f^!° ject captors to condemnation in costs and damages, vexatious tious conduct conduct on their part must be proved (except as some degree j^e captors. ° of vexation is necessarily implied in the detention of a vessel without reasonable cause after she has been searched) ; or that honest mistake, though occasioned by the act of the Government Honest mis- of which they are subjects, can relieve them from their liabilitv ^^^^ will not , T ^ . , . exempt them to make good to a foreigner and neutral, — and with this case from their alone we are dealing, — the damage which by their conduct he compensate has sustained. the neutral. Nor is it easy to perceive upon what grounds of reason or justice such excuses could rest. (a) 1 Mason, 26. (5) Edw. 50. M 2 180 1855. Peivt CouKcn,. Judgment. Costs and damages are not the punish- ment of the captors, but the compensa- tion of the injured party. The " Ne- mesis." If the captor's error arises from the pro- ceedings of his own Go- vernment, he is still respon- sible to the captured ; but should be indemnified by his oim GoTernment. The " Ac- PRIZE CASES. If costs and damages were inflicted as a punishment on cap- tors, honest intention would be a consideration of the greatest weight ; but the principle on which they are awarded is that of affording compensation to a party who has been injured. Vexatious conduct on the part of the captors has in some causes been alluded to as removing all reluctance on the part of the Judge to award costs and damages, as in the " Nemesis" (Jj); or as forming a ground for what are termed vindictive damages; or for subjecting the captors to costs and damages, or depriving them of their expenses, when, but for such conduct, they might have been entitled to their expenses against the claimants, as in the cases of the "Speculation" (a), and the " Washington" (Jb), and several others ; but no case was cited to us at the bar, nor have we been able to find any, in which wilful misconduct on the part of the captors has been stated to be a necessary ingredient in an ordinary condemnation in costs and damages. So as to error occasioned by the proceedings of their own Government. The captors act as the agents of the State of which they are citizens, and which must ultimately be responsible for their acts. Prize Courts afford the remedy as between the Individuals, which otherwise must be sought by the Govern- ment of the claimants against the Government of the captors ; but the mode of proceeding cannot affect the right to redress, and if the State could not urge its own mistakes as a justification of its own wrong, neither, it should seem, should individual citizens be permitted to do so. The Law of Nations upon these points appears to us to be settled by decisions both in the American and European Courts. In the case of the '■ Charming Betsey", in 1804 (c), the captain of an American ship of war had seized, in America, a vessel which was held upon the evidence to have become Danish pro- perty. The Court was of opinion that the orders issued by the American Government were such as might well have misled the captor ; but it was decided (the judgment being delivered by a most eminent lawyer, Chief Justice Marshall) that the claimants were entitled to costs and damages against the captors (though not vindictive damages, which had been awarded in the Court below), and that the officer, if he had acted in obedience to orders, or had been misled by his Government, must be in- demnified by the State. Precisely the same doctrine, though without reference to this decision, was laid down some years afterwards by Lord Stoicell in the case of the " Actaon." {d) There an American ship, sailing under a British licence, had been captured by one of his Majesty's frigates, under the com- (fl) 2 Rob. 254. (J) Ibid. 275. (c) 2 Crancb, 123. (rf) 2 Dods. THE«OSTSEE." 181 mand of Captain Capel, who, being unable to spare men to take ^^^^• charge of her, had destroyed the vessel and cargo. It was a p case, therefore, in which all possible suspicion of selfish or im- Cocncil. proper motives for the capture were out of the question ; yet jJd^ent Lord Stiiwell decreed restitution, with costs and damages, and laid down the principles of his decision in these terms : — " This question arises on the act of destruction of a valuable ship and cargo by one of his Majesty's cruizers. On the part of the claimants restitution has been demanded, and there can be no doubt they are entitled to receive it; indeed, I understand that it is not now opposed by the captor himself, but it remains to be settled what is to be the measure of restitution, and how far it is to be carried. The natural rule is, that, if a party be unjustly deprived of his property, he ought to be put as nearly as pos- sible in the same state as he was before the deprivation took place, — technically speaking, he is entitled to restitution, with costs and damages. This is the general rule upon the subject, but, like all other general rules, must be subject to modification. If, for instance, any circumstances appear which show that the suffering party has himself furnished occasion for the capture, — if he has by his own conduct in some degree contributed to the loss, — then he is entitled to a somewhat less degree of compensation, — to what is technically called simple restitution. " This is the general rule of law applicable to cases of this description, and the modification to which it is subject; neither does it make any difference whether the party inflicting the injury has acted from improper motives or otherwise. If the captor has been guilty of no wilful misconduct, but has acted from error and mistake only, the suffering party is still entitled to full compensation, provided, as I before observed, he has not by any conduct of his own contributed to the loss." His Lordship then, after observing that the act of Captain Capel in destroying the vessel might have been a very meri- torious act as regarded his own Government, and that he was not chargeable with any corrupt or malicious motives, but acted in all probability in obedience to orders, concludes his judgment in these words : — " But this vvill not affect the right of the American claimant, whom I must pronounce to be entitled to restitution, with costs and damages ; and I beg it may be understood that I do so without meaning in the slightest degree to throw any imputa- tion on the conduct or character of Captain Capel, but merely for the purpose of giving a due measure of restitution to the claimant." This judgment was pronounced by Sir William Scott in the month of April 1815, almost at the very close of the war, and it is 182 PRIZE CASES. 1865. Pbivy Council. Judgment. The"i?M/Ms." In the Cape Nicola Mole cases, the captors were condemned in costs and damages, but were after- wards indem- nified at the expense of the public. in perfect conformity with the rules laid down at its commence- ment, — in the paper already referred to, — in the year 1794. The same decision, on the same grounds, was pronounced by the same learned Judge immediately afterwards, in the case of the « Rufus." (a) It is needless to refer to all the other cases which were cited at the bar, but there is one large class whJch so strongly illustrates the principle, that it may be proper to advert to it. We allude to what are called the Cape Nicola Mole cases. In the early part of the last war a number of French and Dutch vessels and cargoes were captured by British ships, and sent in for adjudication to the Court of Admiralty of St. Do- mingo. Several of the ships and cargoes were condemned, and the proceeds of the captures distributed, in the years 1797 and 1798. It was afterwards discovered that, although the Court of St. Domingo was properly constituted as a Civil Court of Admiralty, and his Majesty's instructions had been addressed to it as a Prize Court, yet by mistake no warrant had been issued to give it a prize jurisdiction against France or Holland, although there had been a prize warrant against Spain. Some time afterwards some of the owners of the captured property, having discovered this error, the effect of which was that the Court had no jurisdiction, instituted proceedings in the High Court of Admiralty, calling upon the captors to proceed to adjudication. These proceedings were instituted nearly two years after the sentence, when the property had been distributed, the crews dispersed, the papers probably lost or destroyed, and when it was scarcely possible that the truth of the cases could be made to appear on the part of the captors. In one of these cases {b) Lord Stowell, in 1801, overruled the protest of the captors against the proceedings ; and in 1804, in determining a question upon the Registrar's report, he speaks of it "as one of that unfortunate class of cases in which this Court has felt itself under the necessity of decreeing restitution, with costs and damages." (c) In all these cases where restitution was ordered, we believe that, on reference to the Registrar's books, it will be found that the captors were condemned in the costs of the proceedings in the Court at Cape Nicola Mole. Surely if the absence of misconduct on the part of the captors; if honest error, occasioned by the blunders of the Government ; or the consideration of hardship upon individual (a) 2 Dods, 55. (6) The " Huldah," 3 Rob. 236. (c) The "Driver," 5 Rob. 145. THE "OSTSEE." officers acting in discharge of their duties, could in any case afford a protection against the claims of a neutral, such protection would have been afforded by the circumstances of these cases. Council. Yet the captors were held liable by the Court of Admiralty, ^ "; — and were afterwards, we understand, indemnified at the expense of the public. To apply, then, these rules to the facts of this case. Application of It appears that the ship was captured on the ground of some to^th"fects of supposed breach of blockade. The mate, on his examination, the case. says : " I did not hear of any port or place being blockaded until the 1st of June 1854, when we were taken. When they came on board they told us there was a blockade, and asked us if we did not know it." The master says : " I did not know of any blockade whatever ; I did not hear of any blockade. It is true I heard from Sir C. Napier, after the capture, that I had broken the blockade, but I did not knowingly enter or leave any blockaded port, place, river, or coast. I did not hear of it except from Sir C. Napier, on the morning following the day of capture. He sent a boat for me, and I was taken on board the Admiral's ship, and he told me of it." This is all that appears upon the evidence with respect to the The ship's grounds of seizure ; but the papers on board the ship distinctly ?w '^h^''°a*d^ showed the port from which she had sailed, and that to which from Cron- she was addressed ; and it may not be immaterial to observe f^^ Elsinore that, although some of these documents were in languages of which English seamen might well be supposed ignorant, yet the material facts are stated in an English certificate, signed by the British Vice-Consul at Eostock. From these papers it appeared that she had sailed from Cronstadt, and was bound for Elsinore for orders. We took it for granted, therefore, that it was for a She was seized supposed breach of blockade in sailing from Cronstadt that she t°each"of °th^ was seized, and this is the only ground upon which the case was blockade of rested on the argument before us. Now in order to iustify a ^ . ' ci ir.1111 7- 1 Constituents condemnation for breach or blockade, three thmgs must be of hreach of proved: first, the existence of an actual blockade ; secondly, the ''Cockade. knowledge of the party ; thirdly, some act of violation either by going in or coming out with a cargo laden after the commence- ment of the blockade, (a) The instructions to her Majesty's commanders upon this Instructions subject for the present war are, that if any vessel shall be jesty'scom- found coming out of any blockaded port which she shall have manders. previously entered in breach of such blockade, or if she shall have any goods on board, laden after knowledge of the (a) The "Betsey," 1 Rob. 93. 184 1855. Pkivy CousciL. Judgment. "Was there reasonable ground for seizure ? It appeared distinctly from her papers that she had committed no hreach of blockade. There Tvas no colour of reason for seizing the vessel. Confusion as to the block- ades created by the acts of her Majesty's officers is no answer to the claim of an innocent neutral. •PRIZE CASES. blockade, such ship and goods shall be seized and sent in foi" adjudication (Article X.) Now, when the ship was seized, was there any reasonable ground for suspicion that she was liable to seizure under these instructions ? It appeared distinctly upon her papers, as the facts upon inquiry turn out to be, that on the 25th of March 1854, before the declaration of war against Bussia, this ship was on her voyage from Leith to Cronstadt ; that she was on that day chartered for a voyage with a cargo of wheat from Cronstadt to England, or countries in alliance or amity with England, according to orders which she might receive at Elsinore ; that on the 10th of May the shipment of her cargo had been com- pleted ; that by the 16th she had complied with all the formalities required to enable her to leave Cronstadt ; and that when she was taken she was on her direct course from that port to Elsinore. Cronstadt was not blockaded at the time she entered that port; nor at the time when she took her cargo on board; nor at the time when she left Cronstadt; nor even at the time when she was captured ; nor for more than three weeks afterwards ; and no blockade of Cronstadt had been proclaimed, either by the British Government or by the Admiral. It is said that the Admiral had, on the 16th of April, in Kioge Bay, proclaimed an intention of blockading all Russian ports, and that certain ports in the Grulf of Finland were actually blockaded on the 28th of May, and perhaps at an earlier period; but there was not the slightest ground for suspecting that this ship had left any other port than Cronstadt, or had any intention of entering any other Russian port. What colour of reason, then, could there be for seizing, under such circumstances, this vessel, which did not fall under any one of the conditions which are required by the instructions to concur in order to justify sending in the ship for adjudication? It is said that there was a confusion with respect to the blockades in the Baltic, and the several Gulfs of Finland, Riga, and Bothnia. But, in the first place, with respect to the port of Cronstadt, we find no trace in the evidence of any confusion or doubt as to the period when the blockade commenced; and if there had been, it was a confusion created only by the acts and in the minds of her Majesty's officers, and could not therefore, according to the principles which we have collected from the authorities, have afforded any answer to a neutral perfectly innocent of all fault, and not by any act or neglect of his, voluntary or involuntaiy, exposed to any suspicion. THE "OSTSEE." • 185 But, it is said, that although there might be no ground for IS&5. suspecting this ship of breach of blockade, yet a captor is not „ confined to the case upon which the seizure was made, and that Conxcit. a vessel sent in for adjudication upon one ground may, if the ^ 2 facts warrant it, be subjected to condemnation on another. Objection that Of this rule there is no doubt. Whether, when a ship is sent *^ captor is n T T . 1 1 T 1 1 not confined m lor adjudication as a neutral, and there appears to be no to the case reasonable cause for having; sent her in as such, a captor can °". '"^^'^^ *^ Ti . seizure was excuse himself from costs and damages by alleging irregularities made. in her papers, which might have led, but did not in fact lead, him to doubt her neutrality, is a question which it will be time enough to consider when it arises. This question, as regards non-commissioned captors, is discussed, and, in our opinion, most properly decided, by the learned .Judge of the Admiralty ™ „ .. in the case of the sloop " Wilhelmina." (a) Wilhelmina." In this case it is not open to doubt, upon the evidence, that Objection that the "Ostsee"was in truth a neutral ship, and nothing sus- nother'sea- picious is found on board her. But it is said that she ought to P^^s on board, have had on board a sea-pass from the Mecklenburg Govern- ment, describing and identifying her, and that no such pass is amongst the documents produced. It is very true that no such document is found there ; but, unfortunately, in this as well as in other respects, there has been some irregularity on the part of the captors. By the Act of 17 Vict. c. 18. it is enacted, and i7 Vict. c. is. by her Majesty's instructions in conformity with the Act it is jg ^ Mne^^in ordered (Art. II.), that the captor shall bring into Court all and verify by books, papers, passes, sea-briefs, and other documents and ship's papers, writings whatsoever, as shall be delivered up or found on board any cajptured vessels ; and the captor, or one of his chief officers, or some other person who was present at the capture, and saw the said papers and writings delivered up, or otherwise, on board at the time of the capture, shall make oath that the said papers and writings are brought in as they were received and taken without any fraud, addition, subduction, alteration, or embezzlement whatsoever, or otherwise shall account for the same upon oath to the satisfaction of the Court. It is obvious that unless the papers are verified in the manner pointed out by these instructions, that is, by the oath of some person who saw them taken, there can be no security that the papers brought in are all the papers on board the ship. Now, in this case, neither the captor, nor any person present Here there at the capture, nor any person who can have any personal davit rcqufred' knowledge whatever on the subject, has made the affidavit. It T'y the Statute, appears that a gentleman named Huxham, one of the oflScers (a) Ana, p. 95, 2 Eccl. & Adm. Rep. 31. 186 1855. Privy Council. Judgment, No weight, therefore, can he attributed to the ahsence of the sea- Unless the Tule of law itself be qualified, its stringency is not affected by the circum- stance that it may not always have been applied where it might appear ap- plicable. The " Betsij." T^he"Luita." PRIZE CASES. on board of the "Duke of Wellington," the flag-ship, was sent home in charge of this vessel, and he brings in certain papers, which he swears were all that were delivered to him by Captain Otter, with certain exceptions, which he specifies and accounts for. On the other hand, the master, Voss, in his answer to the 7th interrogatory, states that the ship had a sea-pass on board from the Mecklenburg Government ; and in his answer to the 28th interrogatory he says, it was on board when he took the com- mand of the ship, and previously thereto. Now, when it is remembered that, from the nature of the case, Mr. Huxham's affidavit offers no contradiction to this statement, and that the supposed absence of this paper appears to have excited no remark at the time of the capture, and to have occasioned no doubt as to the ship's neutrality, it is impossible to attribute any weight to this circumstance. We will now advert to the principal cases cited for the respondents, by which it was argued that the rules which we have above stated were modified, or exceptions engrafted upon them which are sufficient to protect the captors ; but in doing so we must premise, that unless the rule itself be qualified, its strin- gency is not affected by the circumstance that it may not always have been applied by the Judge who lays it down, to cases in which those who are bound by its authority may consider that it was applicable. The application, of course, must depend upon the opinion of the Judge in each particular case. The first case relied on was " The Betsy." (a) There an American ship was found in the harbour of Guadaloupe, at the time when the island was captured by the British forces; there were circumstances which, in the opinion of Lord Stowell, threw great doubt upon the point whether she was neutral or enemy's property, and made a seizure justifiable for the purpose of further inquiry. The learned Judge, it is true, remarks that the question, whether there was or not a blockade in existence when the ship entered the port, was one of nicety, which had only been recently decided by the Lords of Appeal, and required more legal discrimination than could be required from military persons ; but he does not appear to have rested his judgment upon that ground. The next case relied on was " The Luna" (b), which is no doubt a strong decision ; for in the case of a capture made from a neutral, under a mistaken construction by the captors of a British Order in Council, the learned Judge not only (a) 1 Rob. 93. (6) Edw. 190. THE "OSTSEE." relieved the captors from costs and damages, but gave them their expenses out of the captured property. p It must be admitted that the mistake of the captors was not Council. an unnatural one ; they thought that an Order in Council of judmient the 26th of April 1809, which declared a strict blockade " of all ports and places under the Government of France, together with the colonies, plantations, and settlements in the possession of that Government," extended to St. Sebastian, in Spain, which was then, and had been for two years, in the possession of the French. The facts of the case are not stated in the report so fully as to enable us to form an accurate judgment of the degree of suspicion which might really attach to the ship. The question of expenses does not seem to have been argued, and Lord Stowell probably felt that he was going to the very verge of the law, for he declares that he will not allow the same indulgence in future cases. This judgment was pronounced in the year 1810, during the The "Ac- conflict between the French, Berlin, and Milan Decrees on the ^-^yeZT one hand, and the retaliatory British Orders in Council on the afterwards, other. Whatever may be thought of the particular decision, the general rule with its modifications is laid down five years afterwards, in the case of the " Actcson," by the same learned Judge in the terms which we have stated. If, however, these cases be held to establish the principle that The present there may be questions of so much nicety in the construction of turn upon the public documents, or the determination of unsettled points of ™^^ construc- 1 (> 1 1 T T -1 1 1 tionofdocu- law, as to exonerate captors from what would ordinarily be the ments. consequence of their mistake, they will not much assist the argument of the respondents here, where no questions of law of any kind appear to have existed. The other authorities mainly relied on by the respondents do The other not relate to disputes between belligerents and neutrals. They the^respond-^ are either cases in which the rights of belligerents only were e"ts did not involved, as where captures had been made by one belligerent gerents and from another in ignorance that peace had been restored, or neutrals. where no belligerent rights at all were involved, as in the captures of ships engaged in the Slave Trade. The rules laid down in these cases may have an indirect, but only an indirect, application to questions between belligerents and neutrals. The case of the " John " (a) was of the former class. The ''John." There, a capture of an American vessel had been made by a British cruizer in ignorance that war between Great Britain (a) 2 Dods. 336. 188 PRIZE CASES. 1855. Privy Council. Judgment The '■ Menttyr." The doctrines in these cases afford no pro- tection to the present cap- tors. Argument that the cap- tors ought to be indemnified by the Go- vernment. The " Zache- man," the " St. Juan Ne- pomuceno." and America had ceased ; and the prize having been lost by unavoidable accident, the captor was called upon for restitution. The case was one which, as the learned judge intimates, might be provided for by the Treaty of Peace between tbe two nations, and on which, as between them, there might or might not be a claim against the British Government according to its terms, and according as the British Government had or had not taken due means for giving notice of the peace to its officer; and he lays it down that the officer, being under invin- cible ignorance, and being in possession bond Jide, was not responsible for the loss which had occurred. In another case of the same kind, the " Mentor " (a). Lord Stowell seems to have thought that when an act of mischief was done by the King's officers, though through ignorance, it would not necessarily follow that they would be protected from civil responsibility, but that the party injured might resort to a Court of Prize, and that the officer must look to his own Government for reimbursement. Whether all the doctrines laid down in these two cases are quite consistent with each other may, perhaps, admit of some doubt ; but they belong, as we have already observed, to a different class of cases from that which we have to decide ; and if all the doctrines found in the " JoAra " were applied to a case between neutrals and belhge-. rents, they would affisrd no protection to the captors here, where there was no invincible ignorance, where everything depended on the Admiral's own acts whether he had or had not established a blockade of Cronstadt. It was then urged that the captors, having acted bond Jide, ought to be indemnified by her Majesty's Government ; and that there are cases in which the Court of Admiralty has either made an order against the Government, or has refused to make ^n order against the captor unless the Government would undertake to indemnify him. The cases relied on for this purpose are the " Zacheman " (b), and the " St. Juan Nepomuceno.'''' (c) In the former the Crown, having by treaty the right of pre- emption of certain goods seized as contraband, had improperly delayed to exercise such right. In the latter, the slaves, the value of which was sought to be recovered, had been liberated by the Crown. In both these cases the Crown either had taken, or had the right to take, the property, the value of which was demanded from the (a) 1 Rob. 153. (J) 5 Rob. 153. (c) 1 Hagg. Adm. 265. THE "OSTSEE." IgQ captors. In neither was any order made against the Government, 1855. nor is it easy to see ho\y any could have been made. ^"^^ But it is sufficient to say that, in the case before us, no blame Council. of any kind appears to be imputable to the Government. They j Z had contributed by no act or default of theirs to the capture. STo blame is They had not at the time when it took place proclaimed any ^^^^ imputable 1 1 1 1 p /-I 1 1 , • • , ■, , •' to the Go- blockade or Cronstadt, nor done anythmg to mislead the naval vernment. officers in that respect. Whether in any case where her Majesty's naval officers may The indemni- have acted wrongfully as regards neutrals, but are liable to no naTaTofficers imputation of wilful misconduct, it may or may not be expe- against the dient, with a view to the efficiency of the navy and the interest of their acts of the public service, to indemnify such officers at the public "f ^ '^l'^ *^ expense against the legal consequences of their acts, must be not with left to the consideration of those who are entrusted with the 9""'-'' °^ Justice. executive authority of the Crown. Sitting here judicially, wo can only administer the law as we find it between the claimants and the captors. It is then said that in this case the sending in the ship must The Court be treated as the act of the Admiral, and not of Captain Otter. s^r°the''°" When a subordinate officer does an act under the immediate question of order of his superior, it may well be that the superior officer T,etween the should be responsible for it. The principles applicable to this subordinate subject are discussed and explained in the " .Mentor " (a), already the admiral. referred to, and the " Eleanor " (b) before the American Courts, in 1817. But here we are dealing with the actual captor, who demands adjudication of the ship and cargo, and who, for all purposes of this suit, must be treated as the party responsible to the claimant. With any rights or liabilities as between Captain Otter and Sir C. Napier, we have here nothing to do. It is then said that, if the captors had been admitted to prove In the Prize the circumstances of the capture, the case might have worn a g^g" ;g ^^?^^^ different aspect. But the principle of the Prize Court is, that ja tlie first .._-. . 1 , • 1 ■ 1 • instance on the case is in the first instance to be tried on evidence coming evidence from the captured ; and if upon such evidence no doubt arises, coming from , 1 ■ ^ .the captured ; the property is to be restored instantly ; to use the expression and other of Lord Mansfield in Lindo v. Rodneij (c), velis levatis. The ^1';°^^^ to the liberty to enter into proof on the part of the captors is rarely captors, granted, and is attended with great inconvenience, as is well explained by Lord Stowell in the case of the " Haabet.'^ {d) No This demands doubt the circumstance that the case is decided exclusively 00^*1'°°,!,"^ upon evidence proceediug from the claimants is deseirving of captors in great attention when it is sougnt to condemn captors in costs damages. (n) 1 Rob. 153. (c) 2 Doug. 614. (5) 2 Wheaton, 357. {d) 6 Rob. 54. 190 1856. Pkivt CoiraaiL. Judgment. Here there is no ground for Tjelieving that any evidence could alter the complexion of the case. If it could, an application to he allowed proof is now too late. Objection that there is a distinction hetween her Majesty's offi- cers and privateers. The autho- rities apply the rale as to costs and damages to public and private ships indifferently. The " Lively." When a par- ticular case is clearly brought within a par- ticular rule, the discretion of the Judge seems at an end. PRIZE CASES. and damages, and makes it fit that the Court should look with great jealousy at the evidence, with a view to see whether there might not be reasonable ground of seizure, before it pronounces such a decree. But we can see in the case before us nothing to excite any suspicion, or to induce us to think that, if an application for liberty to give evidence on the part of the captors had been made in proper time, it ought to have been complied with, or, if complied with, would have altered the complexion of the case. However that may be, we do not mean in any degree to affect the rules of law upon this point as they now exist. In the present case the captor was aware, before the cause came on, of the question which alone was to be discussed ; if he thought his case could be bettered by further proof, and that he was entitled to give it, he should have applied for such liberty before the case was heard, and he cannot reasonably make such an application after the hearing. It is then said that there is a distinction to be made in these cases between officers of Her Majesty's navy and privateers ; that the Court has a large discretion in such subjects, and ought not to press with severity upon men who are acting in the discharge of a difficult and important duty. That for many purposes there is a clear distinction to be made between public and private ships of war, and that there are the strongest reasons for making such distinction, can admit of no doubt; but as regards the particular rule in question, that a capture without probable or reasonable cause exposes the captors to condemnation in costs and damages, we find it laid down in the text-books and the decided cases, both foreign and domestic, as applicable to captors generally, to public and private ships indifferently. In the case of the " Lively " (a), Mr. Justice Story states distinctly, "Public and private ships must be governed by the same principle." Again, as to the discretion to be exercised by the Court. When the application of a rule depends on the absence or existence of misconduct in both or either of the litigants, the greater or less degree of that misconduct, the existence or absence of suspicion attaching to a particular ship or cargo, the greater or less degree of it, and the causes to which it is in whole or in part to be attributed, it is obvious that there must necessarily be a very large discretion left to the Judge, for scarcely any two cases can in all such respects be precisely the (a) 1 Gallison, 327. THE "OSTSEE." IQl same. But when once, in the opinion of the Judge wifh whom ^856. the decision rests, a particular case is brought clearly within Privt a particular rule, it should seem that his discretion is at Council. an end. It is not a question merely of costs of suit, but of Judgment. reparation for a wrong, which, when an accidental loss has afterwards occurred, may extend to the whole value of the ship and cargo. Nor, if we were at liberty to relax settled rules upon our Whatever is own notions of justice and policy, are we quite prepared to say ^^g^gj^ p^^e that we should do so in this instauce. The law which we are Courts to to lay down cannot be confined to the British navy ; the rule ■s^\^is\^ officer, must be applied to cantors of all nations. No country can will be held • 1 1 1 • 1 • 1 T • • D ^y foreign be permitted to establish an exceptional rule m its own tavour. Courts to or in favour of particular classes of its own subiects. On the excuse the /. -.-r . . . . . captors of Law of Nations, foreign decisions are entitled to the same their own weight as those of the country in which the tribunal sits. "^*'°"- America has adopted almost all her principles of prize law from the decisions of English Courts ; and, whatever may have been the case in former times, no authorities are now cited in English Courts, in cases to which they are applicable, with greater respect than those of the distinguished jurists of France and America. Whatever is held in England to justify or excuse an officer of the British navy, will be held by the tribunals of every country, both on this and the other side of the Atlantic, to justify or excuse the captors of their own nation. By the usage of all countries, captors have a great interest The induce- in increasing the number of prizes. The temptation to send in ^!,°„res Se ^ ships for adjudication is sufficiently strong. Is it too much to already suffi- say that, where no ground of suspicion can be shown, and all "^° ^ °^' that the captor can allege is, that he did wrong under a mistake, he should make good in temperate damages the injury which he has occasioned ? Ought a captor to be permitted to say to the captured, " True, nothing suspicious appeared in your case at the time of seizure ; but upon further inquiry, something might have been discovered. I had a right to take my chance ; you have nothing to complain of. I subjected you to no unnecessary inconvenience ; go about your business, and be thankful for your escape." We cannot think that this would, be deemed a satisfactory answer to a British neutral seized by a foreign belligerent. Upon the whole, therefore, after the most anxious considera- The captors in tion, having sought in vain for any circumstances which could ^ux^mpted affijrd in this case a probable cause for capture, we cannot hold from respon- the captors exempted from all responsibility, though the damage ^' ' "^" will, in all probability, prove to be but small. The amount 192 1855. Pkity Council. Judgment. But there are various cir- cumstances ■which miti- gate the' damages. Appellants to have the costs in the Court below, but not of the appeal. PRIZE CASES. must be referred to the Registrar in the usual way, hut we shall advert to some circumstances which ought to be attended to in making the computation. No complaint' is made of any vexatious conduct on the part of the captors, or of any undue delay in sending home the vessel. London appears to have been one of the ports to which the charterparty provided that she might be sent. For any delay which may be attributable to the claimants them- selves, the captors of course cannot be held responsible. The exact time of the ship's arrival in London does not appear. It was stated at the bar to have been on the 26th of June. On the 3d of July a monition was taken out, and the ship's papers were brought in ; on the 6th the monition was posted up at the Koyal Exchange ; and on the 7th of July the exami- nation of the witnesses in prcBparatorw was completed. It seems probable that as the ship had previously traded with this country, and one of her contemplated destinations was the east coast of England, the owners, or at all events Brockelman, the part owner of the ship and the sole owner of the cargo, had agents in this countiy. On the 10th of July, at all events, the present claimant came forward and gave bail ; but his claim was not consistent with the fact, for he alleged Brockelman to be the sole owner, both of the ship and cargo, omitting the other part-owners of the ship, and no affidavit accompanied the claim ; an amended claim and affidavit were afterwards brought in, but not till the 31st of July. On the 2d of August an offer was made by the captors to restore, on payment of their expenses, and no answer was returned to this till the 10th, when the claimants rejected it, expressing their hope of obtaining 2,000/. for damages. On the 19th of August the case was heard, and restitution took place. We think that three weeks at least of the delay in this case must be Imputed to the claimants, and that in respect of this period no damage or demurrage must be allowed to the ship or cargo. We shall recommend that the claimants have their costs In the Court below, but that no costs should be given of this appeal. We have thought it fit to enter so fully into the grounds of our decision, not only on account of the great importance of the general principles which have been brought into discussion, but out of the deference which we must always feel for any opinion of the learned Judge from whom we are compelled to THE "OSTSEE." I93 differ, and to whose deliberate judgment, if it were consistent 1855. with our duty to do so, we should willingly surrender our own. pkivt But this case seems to have passed without much discussion in Council. the Court below; certainly without that full examination of judament the principles and the authorities, both in this and foreign xhe ease had countries, for which we are indebted to the able arguments °?' ^^'^^ ^''^'^ addressed to us from the bar. The cases in which, during the the Court late war, restitution was attended with costs and damages, turn ^^'o'''- out upon inquiry to be more numerous than was supposed. We have been guided to the conclusion at which we have arrived by what we consider to be established principles. They appear to us to be founded both in justice and convenience, reconciling as far as possible (what it is very difficult to recon- cile) the conflicting rights of belligerents and neutrals. We have adopted them, however, not upon any views of our own, but because we consider them to have been recognized and acted upon by the general consent of nations, (a) THE IONIAN SHIPS. TFeh.W. WO sliips, the "Leucade" and "San Spiridione," under the March5,7. flas of the Ionian states, were captured in the Black Sea bv ^'^* **^'"^ "^ n 1 AT • ) • 11 1 ■ p T T ■ the Ionian some ot her iVlajesty s cruizer.-, and brouglit m tor adjudication, islands, and on the ground that, the lonlans being British subjects, they their relation were illegally trading with the enemy. On the first case, the Britain, are "Leucade," coming on for hearing, the Queen s Advocate s^h- gxcSvel bv mitted that it was a case for further proof; but the Court was the Treaty of opinion that it would be useless to order further proof until nov^5%815. the preliminai-y question was decided, tohether the inhabitants That constitutes of the Ionian Islands icere to he considered as British subjects or independent not. That question was, thei-efore, elaborately argued. state, under the 6xcliisi'vc Dro— Tlie Queen's Advocate, The Admiralty Advocate, smA Dr. tection of G. B. Bayford appeared for the captors ; Dr. Addams and Dr. Tmiss, '^^^ protecting J.^ I i i ' ' sovereign has for the claimants. the right of making peace or war for them. De. Ltjshixgton. It must be distinctly understood that Buttheinten- all I am about to say on the present occasion applies only to thein*in a state the general question, and not to the particular circumstances of of -war must he . T . 1 1 " clearly ex- any individual case. pressed, as they (a) The claimants laid their da- annum ftom the 19th August 1854, ^°^°l^ce7^^t mages at 1,961Z. 15«. 6d., which upon until paid- The amount was sub- from a g*' " "^ a reference to the registrar and mer- sequently paid by her Majesty's ^eing at -war chants was reduced to 1,223?. 19s. 6c?- Government. G.B. hasnot with interest at 4 per cent, per declared -war for N 194 1855. them against Kussia. Their trade, therefore, Tvith Bnssia is not illegal, because they are neither British subjects nor allies in the war, nor enemies of Bussia. Judgment. April IS. Qucere, should not the ques- tion of the status of the Ionian Islands have been referred to the executive Government, rather than to a Court of Prize ? Comment upon the authorities citecl respect - ing the con - stitution of states is un- necessary, the Court having only to decide upon the construction of a particular treaty. The vessel is an Ionian vessel trading to a port of the enemy of Great Britain ; the question is, did such trading per se subject her to confiscation ? PEIZE CASES. Before I enter upon the consideration of the question which has arisen in this case, — a question of great difficulty and per- fectly novel in its character, — I must express to the counsel on both sides my sense of the great industry, talent, and research which they have shown in the discharge of the duties entrusted to them. The Court has every reason to be satisfied with all they have done. I wish I could feel equal confidence in the result of my own labours ; but I have seldom met with a case in which I have had to overcome greater obstacles. It may be an easy task to state the propositions to be deter- mined, and yet it is almost self-evident that very anomalous' consequences must follow from my decision. I have had many misgivings in my mind whether this was a case for the solution of a Court of Justice at all ; wliether the question did not more properly belong to the executive Government; but however that may be, the task has devolved on me, and I must not shrink, from it. Having had the advantage of consulting the authorities which have been cited, and it is a great advantage, for which I am in- debted to counsel, I shall not enter upon the task of commenting upon them. I find it would be a task of almost endless labour,, and, as it appears to me, most unsatisfactory in its result. So many distinctions may be drawn as to many minute points- of difference existing, that I should be afraid to enter upon such an undertaking. General principles in the constitution of states, however just and true in themselves, bear but remotely when the question is the construction of a treaty, and upon the due construction of such solemn engagements I have satisfied my mind that the question I have to determine mainly depends. For the means of obtaining a true construction I must depend on principles too notorious to require particular statement. Now, what are the facts necessary to constitute the proposi- tions for the consideration of tlie Court ? They are few indeed. The vessel proceeded against is an Ionian vessel, under the Ionian flag, destined, for the purpose of the present inquiry at least, to Taganrog, a Russian port. The captors say that such a voyage by an Ionian ship subjects her to condemnation. The claimants say that neither by the Law of Nations, nor any other law, are they liable to condemnation ; that the Russian port of Taganrog was not blockaded; that they did not carry contraband; that the expedition in which they were engaged was lawful, and that they are entitled to restitution. Such is merely a general statement of the averment of each party. I must now endeavour to set foith, as clearly as I can, the reasons and principles on which the prayers for condemnation and restitution are founded. THE IONIAN SHIPS. 195 The counsel for the captors allege that all Ionian vessels are 1855. to be considered as British vessels ; that as British vessels are Judgment. prohibited from trading with Russia during the war, so for the It was argued same reason are Ionian vessels ; in other words, the British and Vessels arTto Ionian vessels are to be placed in the same category ; that as ^e considered regards a power hostile to Great Britain, the Ionian isliyiders ves^els'as stand in the same position as British subjects. regards a If this proposition be true, it necessarily follows, as a corol- with GreaT lary from it, that all trade with the enemies of Great Britain ^"ta™ ; not allowed to British subjects is prohibited to the inhabitants thCTefore of the Ionian Islands. There is no doubt that a British vessel their trading could not trade with this port of Taganrog; therefore, if British luchPower°^ and Ionian vessels are in eddem conditione, this vessel could not subjects them lawfully prosecute her enterprise, and the cargo must be con- demnation. demned. The claimants deny all these propositions; they say they were The claimants- not British subiects, they are not at war with Russia, and they ^™'' *^^® .,-r,. ,, propositions. have a right to carry on with Russia any trade that the subjects The claimant of a neutral nation could lawfully be engaged in. ™t^th"t°th' Before I proceed further, let me consider what constitutes propertj- the title of a captor to condemnation according to the view tohim^- Lord Stowell took of this matter, for I neither can nor ought ^^^^ *^' ^^ to trust myself with any notions of my own not based on his claim in the decisions. During war, a British ship of war captures a ship on character he flssuintis * the high seas subject always to the risk of costs and damages, — 3rd, that'he is- a question I need not now discuss, — but is on the other hand °ot ■^lo'atmg ^_ . . the ordinary entitled to demand condemnation if the captured vessel does not laws of war. make out its title to restitution. I think I do not put the case The ease of more strongly than all tlie decided cases justify, when I say that \s, that they the claimant must establish his title to restitution in the first ^^^ suhjects of . the Ionian instance, ihat is, he must show that the property belongs to states, and him; that he is entitled to claim in the character he assumes ; *atiio_war ' _ _ _ _ ' having heen that he is not violating the ordinary laws of war. Such a claim, declared by indeed, may be barred by showing a violation of blockade, or against Russia, otherwise ; that is a totally different matter. they are at I have mentioned these matters for this reason, that it may \^\y. trade be a subject of inquiry on whom the onus probandi rests in this i^ lawful. case, though I do not think, in any view I may take of the case, that such question will, in any material degree, affect the result. I will assume for the present that the onus jjrobandi lies on the claimant. His case is this : I am a subject of the Ionian states; no war has been declared by them against Russia, or by any competent authority on their behalf; we are at peace, and the trade is lawful. n2 196 PEIZE CASES. 1855. Judgment. The onus probandi is, therefore, thrown upon the captors. The publica- tion by the Ionian Go- vernment of Great Britain's declaration of war against Russia does not amount to a declara- tion of war by that Go- vernment. In the absence of any such declaration, — and none has been produced, — I think that the claimants are entitled so to rest their title, and to throw upon the captors the onus of proof. But before I proceed further, I must notice the declaration of the Ionian Government making known the Queen's decla- ration of war. The senate publishes, for general information, a proclamation by her Majesty the Sovereign Protectress of those states, dated London, March 28th, containing a declaration of war against his Imperial Majesty the Emperor of all the Hussias. The senate warns all protected subjects of her Majesty belonging to those states to be guided by the above royal declarations. I think I may safely say that in this declaration of the 28th of March itself, there is not a word to be found which can by any ingenuity be construed directly or indirectly to place the Ionian states in the condition of warfare with Russia. The Ionian states are not by that declaration directed to do or to abstain from doing anything. Then what does the senate mean by directing all protected subjects to be guided by it ? I have some doubt whether they knew themselves, — Avhether they had any clear or distinct idea upon the subject ; for if they had, I conceive it is hardly possible that they could, on so important a matter, have expressed themselves in terms so unsatisfactory and so ambiguous. I cannot venture to say what the meaning is, but this I think, that it cannot safely be held that this pro- clamation is equivalent to a declaration of hostilities against the Russian Government, or an annunciation that such had been made on behalf of the Ionian islands by the protecting power, or by any other authority. I think so for several reasons. First, 'because I believe that so solemn an act as a declaration that the Ionian states were at war ought never to have been expressed in terms so doubtful as these. Secondly, because the terms in which the proclamation is couched are quite consistent with the simple notification that hostilities existed between Great Britain and Russia, and that the subjects of the Ionian Islands must submit to the conse- quences which such a state of things would necessarily entail ; in fact, the construction might be, as was argued on behalf of the claimants, that it was merely such a proclamation as a neutral Government might have made, exactly in the same way as the Ionian authorities issued their proclamation. And lastly, because, if the argument of the counsel for the Crown be well founded, it was not competent to that Govern- ment to declare war at all. So far, therefore, as the proclama- tion making known to the Queen's subjects the declaration of THE IONIAN SHIPS. 197 war of the 28tli of March is concerned, I consider the question , io55. ^ to be res Integra. Judgment. But the question I have to decide assumes this shape, not The question whether Great Britain has power to declare the Ionian states in i^'gv°t^blv hostility with Russia, but whether. Great Britain being at war follow, from with Russia, it follows, as an inevitable consequence, that the Q^eai Britain Ionian states are placed at war with Russia also. l>ei°g a* '"'ar These are two very different propositions. I have not been that the Ionian told on behalf of the Crown, and officers of the Crown ought ^'^^^^ ^™ ?■' to have received the information if there had been any such to also ? be had, that Great Britain has done any act whatever to place the Ionian states in hostility with Russia. So far as my own knowledge goes, I know of none. Therefore, and for the reasons I have now stated, I have only If so, they to consider the last proposition, whether Great Britain, being be^placed in at war with Russia, the Ionian states are, ex necessitate, at war a state of -war also, exactly in the same way as Jersey, Guernsey, Jamaica, Britain's de- and Canada would be placed in hostility by a declaration of war ''•aration of T. . . 1 1 rni • ^ar against against Great Britam by any other power. This view of the any other case opens a very wide question ; for if I should hold that the P"^^'- delaration of war by Great Britain against Russia would at once place the Ionian Islands in a state of war with Russia, then it follows, as it appears to me, as an inevitable consequence, that if war be declared by Great Britain against China, against the United States of America, against any other power, the subjects of the Ionian states must be constituted, ipso facto, enemies of such nation, for it has not been and cannot be con- tended that the empire of Russia stands in any peculiar relation, so as to make war with her an exception. The political history of these islands was traced from an early '^^^ Court ■ 1 ■ 1 11 1 1 1 • 1 ..,,'' assumes that period with great care by the counsel on both sides ; it will not, all the Ionian in my view of the case, be necessary for ine to recapitulate it. ^^'^""^^^^'^ I proceed upon the assumption which I believe to be accurate. Great Britain for it matters not if it be not precisely accurate in all its parti- g„^in| i„^ ^^^ culars, but to this effect that all these islands were conquered by 1815. Great Britain during the war ending 1815. I proceed on that assumption ; — whether Corfu surrendered at that time, or some other, I need not inquire. I proceed on the assumption that Great Britain dealt with them as conquered. Had they con- tinued after the peace in the same state, they would have been a part of the dominions of Great Britain, governed, as other conquered territories were governed, by the Crown and Acts of Parliament. Great Britain, however, did not retain these islands in the ^'^* CCeat ,. ~ ill • 1 • 1 Britain un- ordmary course ot conquest;, but she exercised a right reservedly 198 1855. abandoned her rights ac- quired by conquest, and has now no rights what- ever over those islands beyond those conferred npon her by the Treaty of Paris of Nov. 5, 1815. The 1st article of the treaty declares that these islands shall form a free and in- dependent state. This proposi- tion, howcT er, must be inter- preted •with reference to the intention of the con- tracting parties as gathered from the whole instrument. The 2nd art that this state shall be placed under the im- mediate and exclusive pro- tection of the King of Great Britain. Whence follows this right of making peace and war for this state ? PEIZE CASES. indisputably beloBging to her of making, in conjunction with other powers, a new and different status for these islands. , Great Britain ceded her original rights, and merged them in the new settlement. I am of opinion that no right remained in Great Britain after the treaty to which I am about to refer, except the rights conferred by that treaty; that, from the nature of that transaction and from the terms of the treaty itself. Great Britain can at this period exercise no rights whatever that are not to be found within the four corners of that treaty ; that there does not remain a scintilla of the original right of con- quest ; that, for reasons with which I have no concern. Great Britain laid at the feet of the contracting parties, as she had a right to do, the power and authority she had previously acquired. Henceforward the treaty is the sole guide ; from this document must be derived all the rights of the contracting parties, and all the rights and the obligations of the Ionian states. The treaty of Paris of the 5th of November 1815 (a) was made between Great Britain, Austria, Russia, and Prussia. I apprehend it is a mere truism to say it was equally binding upon all and each of them. The first article declares that these islands shall form a free and independent state. My province is simply that of con- struction—of ascertaining to the l)est of my ability what the contracting powers intended by the contract into which they entered, and that with reference in the first instance to the words of the contract itself; but I must look to the whole of the instrument and not to a part. Terms, however strong and clear in themselves, whatever meaning may be attributed, — necessarily attributed, — to them standing alone, may be modified by other parts of the same instrument. The construction, therefore, I put on the first article is, that the Ionian Islands shall form a single free and independent state, according to the plain meaning of those terms, subject to and liable to be controlled by the rest of the treaty ; the whole treaty creates one obligation. The second article is one of great importance — the declara- tion that this state shall be placed under the immediate and exclusive protection of the King of Great Britain. I am strongly inclined to think that the necessary and inevitable consequence of such a condition is, that the King of Great Britain has the right of making war and peace ; indeed, such a power is inseparable from protection ; for how could the duty of protection be fulfilled without such a right? and how could the Ionian Islands be secured from aggression but by the exercise of that power ? and how could their tranquillity be (a) Hertslet's Treaties, vol. i. p. 44. Vide Appendix xxiii. THE IONIAN SHIPS. 199 secured afterwards, save by the power to conclude peace, with ^ IS55. ^ all its concomitants ? Judgment. But it is another and wholly different question whether, in But it is a consequence of this protectorate right, the Ionian states become tion whether^' ipso facto the enemies of all or any power or powers with this state be- which Great Britain may happen to be at war ; and it is also jacbi a'/war another and different question whether, if Great Britain were, ■*"* any „ _ . . T . power with On account or Ionian grievances alone, to adopt measures tor which Great their protection against any other state, the Kingdom of Great Sntaia is at Britain would necessarily be at war with such state. This is a question which I must consider when hereafter I have further discussed the provisions of this treaty. The concluding part of this article is not unimportant. The The other con- other contracting powers renounce every right or pretension p^g^grg^re- which they might have had with regard to the Ionian Islands nounce all tind guarantee, — guarantee, — all the dispositions of the treaty. g°.j ^^ (jj;^ It is obvious that this clause entirely removes from me the state, and gva- necessity of looking into any part of the antecedent history, dispositions of because, whatever might have been the claims of any of the *^^ treaty. contracting powers, they have so completely ceded and merged them by this treaty, that it were perfectly vain to look back to them to obtain any information which can by possibility be of use on the present occasion. It is important, however, to bear in mind that all the contracting powers guarantee the position of these states. This guarantee, it appears to me, opens another view of this T^*^ contract- ■case. Did Russia, Austria, or Prussia intend to guarantee so could not have intimate a dependence on Great Britain, that if one of such intended to 1 • 1 /->! T> • • T ?Ma''anfe« such guaranteeing powers became at war with Great Britain, — I a dependence must use the same expression over again, of necessity the Ionian ^.^T**^* states must take part in that war ? It would, I think, be a sin- would involve gular guarantee, a state of warfare against themselves, and in ^iXthi.'TstSe which the Ionian Islands miglit not have the remotest interest, hy the mere Take the case of a war between Great Britain and Prussia, — ^^^^^^ at war some dispute having arisen in the Baltic from the affairs of with Great Denmark, or any other cause; and would it not be extraordi- nary if Austria or Prussia herself was to guarantee, as a matter of necessity, a war against herself, and in cases that might be supposed most injurious to the interests of the Ionian people ? I mention these instances, not as decisive of the question before me, but as elucidating some of the very gross anomalies which might very possibly arise from some constructions of the treaty. "Whether they were in any degree foreseen or intended by the high contracting powers, is a question upon which I am not called on to speculate. 200 PRIZE CASES. 1855. Judgment. The 3rd art. provides that the Ionian states should regulate their internal or- ganization with the approbation of Great Britain. The 4th, that there should he a con- stitutional charter, to be ratified by the ISng of Great firitain. The 5 th, that the Britannic Majesty may occupy the fortresses, &g. The 6th, that the main- tenance of the forces, &c. in the time of peace, be regulated by a particular convention. By the 7th art., the trading flag of the Ionian Islands was acknowledged as the flag of a free and independent state. The treaty, not the charter, governs the status of the Ionian states relatively to the contracting powers. The position of this state abounds with anomalies. Some of the secondary propositions of this treaty. I may omit to notice. By the third article the united Ionian states were, with the approbation of Great Britain, to regulate their internal organi- zation. By the fourth there is to be a legislative assembly and a new constitutional charter, also to be ratified by the King of Great Britain. Until such charter was ratified no alteration was to be made in the existing constitution save by the King in Council. Until that period, therefore, as to internal concerns, these islands remained nearly, though not altogether, in the possession of conquered islands belonging to the crown of Great Britain. The fifth article declares that the Britannic Majesty shall have a right to occupy the fortresses of the islands, to maintain garrisons, and have the control of the Ionian forces. By the sixth, a particular convention is to regulate the main- tenance of the forces, payment of the garrisons, and the number of men in time of peace. This is a remarkable limitation, because it evidently leads to the conclusion that in time of war, non constat what war, Great Britain was not to be subject to any such restriction. The seventh article is one deserving great attention. The trading flag of the Ionian Islands was acknowledged by all the contracting parties as the flag of a free and independent state. The effect of this provision, I apprehend, is that, if war existed between Russia and Austria, Great Britain having no part in it, the Ionian flag would be respected as the flag of a neutral power. In one respect, and one only, therefore, the neutral character would clearly belong to the subjects of these islands. The description of the flag to be carried I need not enlarge upon. I must also observe that the whole diplomatic power is lodged in Great Britain by virtue of this treaty. The constitutional charter does not, in my opinion, essentially influence any view I may take of the question on which I am unfortunately called to pronounce my opinion. The status of the subjects of the Ionian states must be governed by the treaty, not by the charter, so far as any question may arise aff'ecting the right or interest of the powers, parties to that treaty. I will now make a short summary of this treaty, it will show some of its anomalies. A single free and independent state, having the flag of a free and independent state, — the military, naval, and diplomatic power all vested in the protecting state, — the protected not the subjects of the protector, — not British subjects, for that is perfectly clear. I apprehend that I must THE IONIAN SHIPS. 201 endeavour to give eiFect to all these main provisions of this treaty. I must maintain the quality of independence, save as modified by the treaty Itself, and, by parity of reasoning, the independence of the flag, or rather the rights and attributes of The property the flag of an independent state. f ° ^«/°°: TT- IT 1 If 1 • aemned only Having carefully addressed myself to these considerations, I as the property come to the question of whether I ought to condemn the ship Wte'tr^ne^' and cargo proceeded against as the property of British subjects with the trading with the enemy, as the property of allies trading with ^i^^rading the enemy, or as the property of subjects of the Ionian states ^'^^^ *^ being at war with Russia. There is no other state of things lonian'sub- in which I conceive it to be possible to pronounce a decree of J^°'^ ^?V^S ^* . ^ ^ war with condemnation. Russia. With respect to the first ground of condemnation, I am of The lonians, opinion that this property cannot be condemned, for, according B^itih sub-"^ to all the authorities and all the principles on which the autho- jects nor allies. rities are founded, no property can be condemned on that fa^catwaT**'" ground, unless it belong to British subjects, in the proper sense '"'ith Eussia, of the term, — which the lonians are not. As to the second is not liable to ground, I am of opinion I cannot condemn, because the lonians condemnation 11- • I -iwr 1 /-IT. for trading are not allies m the war. JNo act whatsoever or the Ionian -with Russia. Government or of the protecting power has brought them within the fair meaning of that term. On the third ground I am of opinion that it does not follow of necessity that the Ionian sub- jects arc at once, by a declaration of war by the Crown of Great Britain, — confined to a declaration of war by Great Britain only against another power — comprised within that declaration, and constituted enemies of that power. This being so, I know of no act of the protecting power to place the lonians in that pre- dicament. Great Britain may have authority to do so, as the protecting power is possessed of all the rights of treating with foreign nations, and of the right to place them in the category of enemies ; but she has not thought proper to do so. This observation, I think, is entitled to more weight from a Convention consideration of the manner in which Great Brityin has exer- Queen of cised the great powers secured to her by the treaty. I refer to Great Britain 1 .TIT •, o -« 1 1 ^ - , and the King the convention dated January 18o2 between the Queen and the of the Nether- King of the Netherlands, (a) The terms of that treaty are : '^"'^^• " The Inhabitants and vessels of the Ionian Islands shall enjoy in the dominion of his Majesty the King of the Netherlands all the advantages which are guaranteed by the treaty of the 27 th of October 1837 between Great Britain and the Netherlands, and by the convention additional to that treaty, signed in March (a) Cited by Dr. Twiss from the Ionian Government Gazette of June 5, 1852. 202 PKIZE GASES. Hence, 1st, the Queen assumes the right of making treaties for the Ionian states. 2nd, no treaty between Great Britain and other powers includes the Ionian states, unless spe- cially named. 3rd, the power of the Crown as to treaties is limited with respect to the Ionian states, as it is with respect to the British Parliament. Treaty of Dec. 30, 1854, with the Grand Duke of Tuscany. 1851, SO soon and for as long as the Government of the Ionian islands shall grant to the inhabitants and vessels of the Nether- lands the same advantages which were granted in these islands to the inhabitants and vessels of Great Britain." The commencement, too, of that treaty is not unworthy of observation. The Queen negotiates on behalf of the Ionian states as perfectly separate and distinct from the dominions of the Crown of Great Britain. It commences, — " Her Majesty the Queen of the United Kingdom of Great Britain and Ireland on the one part, and his Majesty the King of the Netherlands on the other part, being desirous of promoting the relations of commerce and navigation existing between the United States of the Ionian Islands, which are under the protection of her Britannic Majesty, and the Kingdom of the Netherlands, have agreed to conclude a convention for that purpose, and have named as their respective plenipotentiaries," &c. — Nothing can be more manifest than this i)reamble to show that the Queen of Great Britain has negotiated for the Ionian Islands as an entirely separate and distinct state. Certain conclusions, therefore, appear to me to follow from a consideration of this treaty. First, it is evident that her Majesty ascribes to herself the right of making treaties on behalf of the Ionian states. Secondly, that no treaty between Great Britain with another state does include the Ionian Islands, except spe- cially named. I think that is perfectly evident, because other- wise there is no necessity for this treaty if it was included in the former. Thirdly, that this power, vested in the Crown of Great Britain, is limited as to the Ionian states in the same way that the power is limited with respect to the British terri- tories themselves, namely, the Crown may contract, but as to all internal legislation necessary to carry such contracts into execution, it rests with the Government of the Ionian states to adopt the required measures as it would so in similar cases rest with the British Parliament. Now there is another very recent treaty with the Grand Duke of Tuscany, bearing date the 30th of December 1854. By the second article of that treaty it is stipulated that the subjects of the Ionian Islands and their vessels shall enjoy the same privileges as the British ships in the Tuscan domi- nions, subject to the condition that the Government of the Ionian Islands shall grant reciprocal rights. There, again, it is perfectly manifest that there must be a distinct contract to include the Ionian Islands, and that no obligation or contract with Great Britain or for a part of her own dominions would otherwise include the states. THE IONIAN SHIPS. 203 If, then, for purposes of a secondary character, or commercial K55. purposes of comparatively small importance, it be necessary for judment Great Britain specially by name to include the Ionian states, a fortiori, and if in such matters the powers conferred upon her are exer- measures of i J . . , „ , , . peace and war •Cised in so special a lorm and manner, does it not seem to must be ex- follow that when Great Britain, in the exercise of the powers of Passed in a J 1 f 1 T • T 1 T • 1 formal and peace and war, as the protector ot the Ionian islands, intends a definite shape measure of infinitely greater consequence, as affecting their ^^ tf^*" welfare, such an intention should be expressed in a formal and lationofthe definite shape, that all the subjects of those states may be ^tTeT *° "*'"''' aware of their changed condition, of the new duties and obligations which await them in consequence of their being placed in a state of hostility with a great continental power ? To me, I confess, it appears clear that what was deemed proper and necessary for minor changes must, d. fortiori, be expected where the inhabitants of a state called free and inde- pendent, and guaranteed to be so, not by Great Britain alone, but by other powers, are converted into enemies of one of the guaranteeing powers themselves. But confining myself to the consideration of the question it is not ineon- whether, by the terms of the treaty, the subjects of the Ionian ^'stent with states, as a necessary consequence ot the provisions of that the Ionian treaty, became the enemies of the enemies of the protecting ^'^'5^ should power, at least I ought, to consider from what cause such peace until necessity springs. Again I must repeat the terras of the pro- Xred^in their position, to prevent mistake. I am not putting, or attempting behalf by Great to put, bound to the authority of Great Britain under this treaty. I am considering the import of the treaty only where Great Britain has not declared the exercise of her power. In this view of the case, is it at all immaterial, at all inconsistent with the powers of the treaty, at all injurious to the subjects of the protected states themselves, that whatever might be the relations of Great Britain towards Hussia or any other country, peace with the Ionian states should continue, at least until war was declared on their part by Great Britain ? Are there not many instances in which Great Britain herself might wish not to involve the Ionian states in a warfare in which she herself is ■engaged, but in which they have no interest ? But above all, I must repeat what I have so often said before in substance, — could it have been the intention of the contracting powers, evinced by the terms of the treaty, that a state of warfare should necessarily follow upon hostilities breaking out between themselves and others without giving, in the terms of the pro- position, even an option to the protecting powers to leave the tonian states at peace ? To make the extension of all wars to 204 PRIZE CASES. 1855. It is not a sub- stantial objec- tion to the in- terpretation of the treaty that anomalies arise therefrom. Neither could such anoma- lies be detri- mental to the protecting power. Order in Coun- cil, April 15th, 1854. the Ionian states inevitable would be to deprive the protecting power of her discretion to leave them at peace. Now, I am told that anomalous consequences must follow, if the Ionian states are allowed to maintain a neutral character. I admit it must be so. But will such consequences be more repugnant to the treaty, than to hold that a guaranteed free and independent state is involved necessarily in war by the act of another state, contrary to their own interests, and without the least regard to them ? and that not by the act, the deliberate act, of the protecting power, but merely by an inevitable infer- ence ? But again, are anomalous consequences resulting from a treaty a reason for abrogating its main provisions ? For con- struing such provisions, if possible, so as not to produce such consequences, no doubt there is a very strong reason ; for abro- gating them, none. Though all contracting powers may be bound by what they have done, yet surely it would be difficult to contend that such a construction as this must be taken as actually foreseen, and intentionally provided for too, by the stipulations of the treaty to the effect of entailing on the Ionian states any war In which Great Britain may be involved. But to this I ought to add that if anomalous consequences, or such as can be deemed so, could dissolve treaties, I fear there would be little security for compacts amongst states. It often happens, unfortunately, that from want of care and caution, treaties are so framed, that when they come to be put in practice, conse- quences wholly unforeseen by the contracting parties may arise. But in this case are the anomalies so fearful, and are the consequences so detrimental to the protecting power as have been supposed ? Trade by the enemy to the Ionian Islands there can be none, without the consent of the protecting power; for Great Britain is in possession of all the fortresses, and all the ports. What trade can be carried on by Ionian vessels ? Every vessel under the Ionian flag must be provided with a pass, signed by the Lord High Admiral, or she will not be considered as navigating according' to law. The protecting power. If It chooses to exercise it, has ample means of preventing any injurious consequences arising to Itself, and that without resorting to any violent construction of the treaty. I have not hitherto adverted to the Order In Council of the 15th of April. I will now consider what bearing it has on the question before me. By this Order in Council it is declared aU the subjects of her Majesty, all the subjects of any friendly or neutral state may, notwithstanding the present hostilities, freely trade with any THE IONIAN SHIPS. 205 ports or places not in a state of blockade, contraband and 1^^^- carrying despatches excepted. Nothing can be clearer or more Judgment. comprehensive than this declaration. There is only one excep- tion, viz., "Except that no British vessel shall, under any circumstances whatsoever, either under or by virtue of this order, or otherwise, be permitted to enter any port or place in the possession or occupation of her Majesty's enemies." The single question on this occasion is, whether a vessel under the Ionian flag is a British vessel within the meaning of this declaration. Whether this was a casus omissus, or what were the intentions of her Majesty's Government, save as expressed in this declaration, I am not called upon to inquire. Then what is the definition or true meaning of the words What is the " British vessels?" First, all vessels properly so called according British to our municipal law. Secondly, all vessels under the British ^'^ssels ? flag, though perhaps not strictly entitled thereto, because, by the Law of Nations, the carrying the British flag stamps on them, as to other nations, the British national character. And thirdly, such words may mean, though this is a much more doubtful point, vessels under neutral flags but owned by British subjects. I can affix no other meaning to these particular words. Ion"™ vessels Within which of these three meanings can I place an Ionian eluded under vessel? Not in the first or second, clearly, without utterly ^^j^jj^'*'"" disregarding and discarding the plainest expression of the vessels, treaty. I never can call the Ionian flag the British flag. The words of the treaty are the acknowledgment of the flag of the Ionian islands as the flag of a free and independent state. If words have any meaning, these words do not mean British flag. Then, lastly, can I say that this vessel under the Ionian flag, and owned by the inhabitants of those states, was owned by British subjects ? I am of opinion that by no rational mode of con- struction can I come to such a conclusion. I think this Order in Council, judging from its terms, does not contemplate the case of the inhabitants of the Ionian Islands at all. I think they are not strictly British subjects either in the strict sense of the terms, or any other within the purview of this order. I have, therefore, come to the conclusion that an Ionian vessel is not by virtue of this order prohibited from entering a And are, Russian port not blockaded. prohibited by There is, however, another question behind. Though the order ^^^ Order in , ,„.-., -i 1 • T • 1 Council from does not prohibit, does it permit and sanction an Ionian vessel entering a ffoiuff to aEussian port? The solution of this question will Kussianport; =>" .,. TT'i 1 ''■"*' * question depend on other considerations, is an Ionian vessel a vessel arises -whether under a neutral or friendly flag ? Is an Ionian a subject of a ^^^^^ 206 PRIZE CASES. 1855. expressly permitted so to do. The vessel must be restored, — 1st, because it is not the property of a British subject illegally engaged in trade Tvith Bussia. The " Hoop." Bynkershoek. neutral or a friendly state ? If these questions can lie answered in the affirmative, then the Order in Council would operate in this case; if not, then I apprehend, according to the view I have already taken, the case must be governed by the law, independently of the Order in Council. I have brought forward this proposition because I am not willing to pass by any matter of importance discussed at the bar ; but if I should be of opinion that the claimants are en- titled to restitution independently of this Order in Council, it would not be necessary to determine whether they were in- cluded in the provisions of it ; and it may be that the very grounds on which I hold the claimants entitled to restitution would bring them within the operations of the Order in Council. I shall, if there be no other merits affecting the question, and if the case is to depend solely on the point argued before me, restore this ship on the following grounds : — First, because it is not the property of British subjects in any sense of the term, consequently it cannot be, as the pro- perty of a British subject, illegally engaged in trade with B,ussia on the ground of the war with E.ussia. Now, it may be, as to this head, not unimportant to consider on what ground the property of a British merchant trading with the enemy of Great Britain during war is condemned. We have all the law in the case of the " Hoop" (a), and in the " Nelly," cited in the " Hoop." It is upon the ground that such property is taken adhering to the enemy ; and, therefore, the property being bound not so to adhere, is considered, pro hac vice, committing an illegal act. Such property belonging to a neutral, is not adhering to the enemy in the sense which is meant in this judgment, for he has no enemies to adhere to. The prohibition is to British subjects only, or to allies in the war. Now, Lord Stowell, in the case of the " Hoop," especially relied on the authority of Bynkershoek, and upon a greater authority he could not have placed his dependence ; and every word in the passages quoted, and in the whole treatise, relates to suhditi, to subjects, and to subjects only. That is the expression used in Bynkershoek, — to subjects and subjects only. So in the numerous cases cited by Lord Stowell, the whole inquiry is whether the property claimed was the property of British subjects — the subjects of Great Britain in the sense in which the term is used in Courts of Prize, namely, persons carrying on trade in territories subject to the British Crown, and, consequently, owing at least a temporary allegiance to the Crown of Great Britain. (a) 1 C. Rob. 196. THE IONIAN SHIPS. 207 Do, then, the subjects of the Ionian states stand in eddem con- \Sb5. ditione ? It is admitted on all hands that they are not British judgment. subjects in the proper sense of the term ; that they have not their domicile in British territories ; for to make such an averment would set the whole treaty at naught ; it would be to make a mockery of the most stringent stipulations contained in that treaty. Diplomatic authorities may do so — a Court of Justice cannot. Again, tlie Ionian subjects do not participate with British subjects in the advantages of commercial intercourse in virtue of this treaty. Are they to suffer the inconveniences and have none of the benefits ? Do they owe any allegiance to the Crown of Great Britain which they violate by such a trade ? Perhaps this is the nicest and most difficult point, but I am of opinion that allegiance, in the proper sense of the term, undoubtedly they do not owe ; because allegiance exists only between the Sovereign and his subjects, properly so called, which they are^ not. A limited obedience, according to the treaty, they do owe, and that by the terms of the treaty itself, as a sort of equivalent for protection ; and there may be cases in which it might be competent to Great Britain to declare that abstinence from trade with her enemy is due for such protection. But is it to be enforced without such a declaration ? I think not. But again, is this presumed illegality of trade a principle to be enforced beyond all precedent, — for precedent I can find none, — beyond what it has hitherto been carried by any Court in any country, at any time, in any decided case ? On what ground is it to be based? Not of advantage to the Ionian islands, for they have no interest in the quarrel, while, without a possibility of benefit to themselves, they may be deprived of a lucrative trade, and that, too, without any formal act done by the protecting power. I have mentioned, at least, some of the reasons which have induced me to come to that conclusion. I shall restore, because the property is not the property of ^^^ ^* '^ "1°' allies in the war, for neither by the treaty nor by the Law of of allies in the Nations can I impose on the subjects of the Ionian states that ^^^' character. Again, I shall restore, because if Great Britain had the right 3rd, because by treaty of declaring war between the Ionian islands and had not Eussia, she has not done it ; and because, in the absence of all declared war such declaration or solemn act, in whatever form, I am of Ionian states opinion that the Ionian subjects are not placed in a state of war. ^^^, Kussia, -r, Till- 1.11 /• r^ n • 'WltllOUt whlch Because 1 hold it to be the duty oi every Court professing the Ionian to administer the Law of .Nations to carry into effect and ope- ^"■^J^'^'^ ^^^ 208 1855. not placed in a state of war. 4th, because the Court is bound to carry out the treaty, not- withstanding anomalies. PRIZE CASES. ration the plainest terms of a treaty, thougli the consequences may not have been perceived. Various anomalous results may follow, but they are infinitely less Important in their con- sequences than if a Court of Justice should take upon itself to disregard a solemn compact carefully expressed. I hardly need go further. If, therefore, the only question as to this ship and cargo should be the title of subjects of the Ionian states to claim ships and cargoes, their property, engaged in trade with Russia, I must hold myself bound to restore. I wish to add that this judgment is founded on the conviction that I am bound to give effect to the treaty of Paris, and that notwithstanding the con- sequences I have stated, I am equally bound to carry out its leading provisions. This only goes to the general question. In a case of the great importance of this, I think it would be desirable. Queen's Advocate, to give an opportunity for considering it. The Queen's Advocate. If the Court pleases. Dk. Lushington. Because It may be thought right to take it to the Superior Court. Dr. Addams. I submit to the Court that the claimant is en- titled to costs and damages, on the authority of the " Ostsee." (a) The Court. I cannot give the costs at this stage of the proceedings. When I have heard the whole case out, if you claim costs, I shall hear your argument, and then, of course, I shall be governed by that decision, — in the Privy Council, — by the principles there laid down. That must be my guide in future ; but I beg it to be understood that I shall expect an argument on the point of the application of tlie principles of that case to the present. Ma>/ 12. A ship under neutral colours sailed from a foreign port hound with a cargo to Hull within the time gi-anted to Bussian vessels to sail, was seized on her arrival at Hull on suspicion of being Bussian, THE "ODESSA," WicKLUND. X HIS vessel, laden with linseed, sailed from Odessa under the Tuscan flag, on the 28th February 1854, bound to Hull, where she arrived on the 18th of June, and was immediately seized by the officers of the Customs, on suspicion of being Eussian property. Proceedings were commenced before the standing Commission at that place, but on its having been ascertained that the vessel had sailed from Odessa before the 29th March, bound for Hull, and upon the case being referred to the Proctor for the Admiralty, he gave directions for her release, on the ground that she was, if Russian property, pro- Co) Ante, p. 174. THE « ODESSA." 209 tected by the Order In Council (a) of the 29th March, and ^^^5. he reported accordingly to the Admiralty. T^as immedi- No return had been made to the Court of the proceedinss *"^'y released J i TT 11 1 ••II- 1 ° as protected commenced at rlull, and no monition had issued. by the Order The cargo was discharged on the 6th of July, but the ship, j-em °i™d ''t instead of "departing forthwith," as permitted by the Order in Hull six Council, still remained at Hull. This circumstance having been JhrtecharKe reported to the Admiralty by the officers of the Customs, the of her cargo, Admiralty Proctor was instructed in the month of December to agairseized" take proceedings against her. The vessel was then again seized, Held,~ut, the 1,1 ... , i 1 first seizure not and the examination in preparatory taken. having been On the 29th of January, a claim was given in by S. W. Ji^'licially I'scorclcd. wEis Bowden, of Hull, merchant, on behalf of Andrea Wicklund no bar to the and others, of Gamla Carleby, .in Finland, subjects of the enem^'ento-ir Emperor of Russia, as the owners. In the affidavit accom- a British port, panying the claim, Mr. Bowden deposed, that the vessel sailed ^^g protection from Odessa on the 28th of February 1854, laden with a pf ^e Order cargo of linseed, the property of British owners, bound to the must enter port of Hull, and arrived there on the 18th of June ; that by under enemy, Virtue or a certain Order in Oouncil or her Majesty, made on colours. 3rd, the 29th of March 1854, Russian vessels which shall have *e protection of the Order sailed prior to the date of the said order from any foreign port, in Council bound for any port or place in her Majesty's dominions, are fj'g^g'J^'^ extend exempt from capture or detention on entering such port or vessels beyond place ; that prior to sailing from the port of Odessa, and with timTfor the^ a view to protect the said vessel and cargo from capture by the discharge of forces of the Ottoman Porte, then at war with the Emperor of and for their Russia, a bill of sale of the said ship " Odessa" to Pietro departure. Augusto Adami, of Leghorn, merchant, a subject of the Grand Duke of Tuscany, was executed by Henric Wicklund, the then master of the said vessel ; that the said vessel passed through the Turkish waters and the Dardanelles on her said voyage to Hull under the Tuscan flag ; that on her entering the said port under the Tuscan flag, the said vessel was seized by the- Collector of her Britannic Majesty's Customs, but, on a repre- sentation of the circumstances being made^ to her Majesty's authorities after inspecting the said ship's papers, was released as being Russian property, and protected by the said Order in Council. The case now came on for hearing on the admission of the claim. The Queen's Advocate and The Admiralty Advocate appeared for the Crown ; Dr. Bayford for .the claimant. (a) Appendix, p. iii. O 210 PEIZE CASES. 1855. Judgment. Two alleged grounds for condemnation: 1st, the incon- sistency of the claim with the ship's papers. 2dn, the pro tection of the Order in Council heing forfeited. Two grounds of defence : 1st, that this vessel has been previously seized and released. 2nd, that she is within the protection of the Order in Council. The circum- stances of the first seizure. Eestitution not having heen judicially recorded, the seizors were at liberty to make a second seizure, but at the peril of cnsts and damages. De. Lushington. The Court has been called upon to condemn this vessel upon two grounds : first, that the claim is contrary to the depositions and to the ship's papers, and therefore cannot be entertained ; — secondly, that, supposing the Court to enter into the facts of the case, it cannot be proved to its satisfaction that this vessel was protected by the Order in Council of the 29th of March ; that in fact she does not fall within the terms of that order, that she has violated that order, and on that ground also ought to be condemned. On the other hand, on behalf of the claimants, it is urged, first, that this is a second seizure ; and though it is not pressed as an absolute bar to the proceedings of the Court, yet it is alleged that in equity the Court ought to look with great suspicion upon the case, if not to rejectit altogether; — secondly, ^ that, if the Court goes into the merits of the case, it will appear that this vessel, although entering a British port under Tuscan colours, is entitled to be restored as a ^Russian vessel under the Order in Council. I will first dispose of that part of this defence which relates to the second seizure. So far as I am acquainted with the facts of the first seizure, I think they are these, — that some suspicion arose whether the vessel was not entitled to pro- tection under the Order in Council. She was seized by one of the Custom-house oflScers at Hull, the depositions were taken in part ; then, by an order of the Lords of the Admiralty, the vessel was released ; she remained at Hull till the month of January, and then she was again seized by the officers of the Customs. Now in order to make a bar to the proceedings under the second seizure two things are requisite : first, it is necessary that there should have been a restitution by consent or other- wise in this Court, judicially recorded ; and, secondly, it must be shown that there were no circumstances, — no noviter perventa •of importance, — which would call on the Court to adjudicate on the merits of the case. There is no such restitution here, there has been no decree of restitution of the Court, and therefore, I apprehend it was competent to the seizors to make a second seizure ; but, wherever a second seizure is made, it is always at the peril of costs and damages. Again, it was pressed upon the Court, that though there was no regular restitution, yet it was done by order of the Lords of the Admiralty ; that it emanated from high authority, and ought to operate in favour of the claimants. But if I am not wholly mistaken, the present proceeding has been conducted with the approbation of the Lords of the Adiairalty, other- The occur- THE "ODESSA." 211 wise the proceeding could not take place at all ; therefore, the Lords of the Admiralty, on a reconsideration of the circum- stances of the case, having determined to sanction the investi- gation, it is clearly not for the Court to refuse to entertain the case. I am also of opinion, that the circumstances which rences subse- occurred after the first restitution are such as fully justify the Sutio^also proceedings being commenced. I refer to the fact of the vessel justified the remaining in port, and to the fact of the attempted sale of the ^^'^''^ '^'''"^' vessel. I will now proceed with the history of this case, and con- "^^ history of aider the facts. *'^*''^'- This ship is claimed, on behalf of an asserted Russian owner, as a Russian vessel protected by the Order in Council of the 29th of March 1854. By the admission of the claimant, therefore, she is subject to condemnation, unless protected by that Order in Council. The facts of the case are these: — she was and is a Russian vessel; she left Gloucester in 1853, bound to Odessa to bring from thence a cargo to England ; she quitted Odessa at the end of February 1854 ; reached this country about the 18th of June, was seized on the 20th, but released again on the 27th of that month ; the cargo was discharged in the course of the month of July, but she remained in the port of Hull until the month of January in the present year, when she was again seized. It further appears, that a fictitious sale took place at Odessa from the Russian owner to an Italian merchant at Leghorn, I call it a fictitious sale, because the present claim is founded on the fact of its being a fictitious sale, and because, from an examination of all the papers, there is no reason to suppose that any interest vests in any one but the Russian owner. Whether or not the whole of the proceedings have been con- ducted with fairness and integrity, whether there has not been an attempt to deceive through the medium of the papers, is quite a different consideration, to which I shall presently direct my attention. The fact is, she assumed Tuscan colours at Odessa, and obtained more formal papers at Leghorn, where she touched on her voyage to England ; and that under the same Tuscan colours she sailed from Leghorn and entered the British port as a Tuscan vessel. I must observe, that when the vessel quitted Odessa, on the There is 28th of February, she could by no possible means have had in "^^^-^^^^^ contemplation the Order in Council dated the 29 th of March ; protection of indeed, I am not satisfied that this vessel ever had the benefit counca was of the Order in Council in view at all. She left Leghorn some ever contem- ° plated. o2 212 PRIZE CASES. The reason assigned for the fictitious sale is not home out hy her suhsequeht conduct. This case is distinguished from the " Soglasie." 'ITie assump- tion of Tuscan colours in order to escape the Turiss, before Great Britain was at war, was not an illegal act as far as regards Great Britain. But the colours were continued after the reason day in April, but I haYe no reliable evidence to show either the precise date of her departure, or whether she was then apprised of the Order in Council. If she was apprised of the Order in Council, it is somewhat surprising that at Leghorn, where there was an opportunity of abandoning the Tuscan and resuming the Russian character, she did not avail herself of it. Let us now see what is the reason assigned for this fictitious sale. The reason, and the only reason, according to the affi- davit of claim and the evidence of the master, is stated to have been to enable this ship to prosecute her voyage with safety, notwithstanding the war between Eussia and Turkey. I will here advert to the distinction which prevails between this case and the " Sofflasie."(^d) In that case, the master claimed the ship as a Danish vessel on behalf of himself, the owner, as a Danish subject ; when it appeared that this claim could not be sustained, an attempt was made to ask for restitution on behalf of the real owner, a Russian subject, which the Court rejected. In the present case, the Italian title is ab initio abandoned, and the claim is preferred on the part of the Russian owner as protected by the order. There is no attempt therefore by the claimant to deceive the Court, and he is free from all culpability on that ground. I now consider the alleged cause for assuming Tuscan colours, bearing in mind that it is sworn that there was no other object in view. It is true that Great Britain did not become an ally in the war between Turkey and Russia till the end of March 1854 ; and though the excuse of escaping from the power of the Turks at that time cannot be viewed in a yery favourable light, yet I will not venture to say, whatever I may think, as to the fact of assuming Tuscan colours, that the alleged reason for so doing imported any legal culpability. I do not think it did. I thiuk that, in the absence of war between Great Britain and Russia, the fictitious assumption of neutral colours, for the purpose of avoid- ing capture by the Turks and passing the Bosphorus, is not an offence of which the Law of Nations can take coa;nizance. It appears, however, in this case, that the disguise continued long after the reason for its assumption was at an end ; because as soon as this vessel had escaped the Dardanelles, there was then no reason to be afraid of Turkish intervention and Turkish capture. It so happens that this simulation — Dr. Bayford. I may mention she had no Russian papers at that time. (ft) Ante, p. 104. 2 Eccl. & Adm. 101, THE " ODESSA." 213 The CotFRT. I am perfectly aware she had no Russian 1855. papers, but she had a Russian flag on board ; the Russian Judgment papers were left at Odessa, that is one of the facts of the case. But I must consider a little the necessity, not only of continuing the flag at Leghorn, but the necessity of sailing and entering here under that flag. I say the necessity for the assumption or continuance of the Tuscan flag, so far as relates to the reason assigned, entirely ceased when this vessel came out of those waters. But she enters here, as I have stated, under the Tuscan flag, without giving, so far as I know, or as appears from the papers or from the depositions, the least intimation that she was not bondjide entitled to that flag. Now with regard to vessels entering a British port, there is a -^^ enemy very wide difference between one which bond fide belongs to a a British port, neutral and enters under a neutral flag, and one which, ™d claiming . ^11 -1 1 '°^ protection being an enemy s vessel, has no title to enter that port except of the Order in under peculiar protection ; and how far it is justifiable in an °™"^' ""!■ enemy intending to claim protection from the Order in Council as an enemy, to assume a neutral status entirely at variance with her evidence guised under and her real character, must be the subject of the present neutral colours, investigation. I will look at once to the Order In Council, upon the con- struction of which the Court's final determination must depend. The words are, " Any Russian merchant vessel which prior to the date of this order shall have sailed." Now Is this vessel entitled to be considered in any sense of the word a Russian merchant vessel ? What was the intention, — the fair intention, — of those who framed the Order in Council at the time, is to be collected from the terms of the order itself ; because out of the order itself, of course, I cannot presume to go. It has been said, and said with great truth, repeating indeed Documents only the sentimc nt to which the Court gave utterance on a former beU^erent occasion, that wherever there is any relaxation of the rights "ghts must of war extended to any belligerent, that the document which but at the ' confers such privileges ought to receive a liberal construction ; ^^™® *™^ * but though that be true, a rational and natural construction struction. must be put on the instrument. Now can this order mean anything else than a Russian vessel under Russian colours, coming in avowedly for the purpose of claiming the protec- tion of the Order in Council ? Let us see what the consequence would be if I were to yield to the construction which has been put upon the order by the counsel for the claimants. It would be this : — any number of vessels coming under any flags what- 214 PRIZE CASES. The " Success" is an authority directly in point. Cases might oc- cur in which the assumption of a neutral flag by one belligerent acting under a licence from the other, would be allowable. ever, being Russian owned, would be entitled to the protection of this order ; and not only entitled to the protection of this order, but, having once come to a British port, and having been received as neutrals, would remain and trade, — for who could prevent it ? — in whatever way seemed most conducive to the interests of those concerned. She might take a cargo, and she would be protected under the assumed character ; and not only take a cargo, but she might become the subject of sale and transfer, and to all intents and purposes would be treated as a neutral vessel. It is clearly my opinion that the only construc- tion to be put on the Order in Council is, that it extends protection, as in the case of the " Success,^' (a) only to those who come within the fair meaning of the terms; that is, vessels under the Russian flag, exclusively owned by Russian merchants. The case of the " Success," which was cited by the Advo- cate for the Admiralty, I well remember, for I argued it myself That case laid down two propositions ; the one was a repetition of what the Court had said in another case, namely, that the flag and pass bind the parties. It went further ; it stated at length the opinion of the Court, that if any inconvenience arose from the assumption of such flag and pass, it must fall on those who thought fit to assume that character. That was one of the points decided in that case. The other was that, though the vessel was Swedish to all appear- ance, though she carried the Swedish flag and would have been protected if Swedish property; yet, part, and part only, not being Swedish property, the Court held she was not protected by the words of that proclamation — a proclamation which was intended to protect vessels which were bond fide Swedish vessels. I think this is a very strong authority, and has been properly cited by Dr. Phillimore to satisfy the Court what ought to be the fair construction put on this Order in Council. But I must take care not to be misunderstood ; I do not say there might not occur a case of that peculiar description, where, for instance, a belligerent avails himself of a British licence authorizing a ship under any flag, and for the purpose of carrying out that licence, and acting bond fide in the matter, assumes a flag in order to escape the enemy ; and I do not say that such an assumption would be a simulation that would be visited with punishment ; on the contrary, there were such cases in the last war, arising from various causes, especially from the manner in which licences were granted, when it was deemed desirable on the part of this country to extend the system of (o) 1 Dods. 131. THE « ODESSA." 215 licences ; and, instead of licensing a neutral by name, to give ^^^^• authority to bring a cargo in a vessel under any colour, by M^ii^t. whomsoever owned. There the terms of the commission granted permitted the assumption of the colours of the enemy, without regard to the real national character of the vessel. Now let me follow this up a little. This vessel comes here. The construo- and what does the vessel do then ? Does she comply with the q°^ °^.*® terms of the Order in Council, either as to the time or as to Council, anything else ? The words are, " shall forthwith depart without molestation ; and that any such vessel, if met at sea by any of Her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded." I am of opinion that the words " any port not blockaded " include every port whatsoever, and that the words " not blockaded" are especially added for the purpose of giving a liberty to go as well to a neutral port as to the enemy's port ; and I think the worA forthwith ought not to be pressed with toc^ much severity against a vessel so circumstanced. I think so for this reason : circumstances might intervene which would render it difficult, perhaps impossible, to discharge the cargo with great expedition, or to leave the port. She might have had to make repairs, or something of the kind. But the argument is, that the vessel might remain here for any length of time whatever, because the argument on the other side is founded on the assump- tion that all Russian ports are blockaded, or will be blockaded as soon as the ice allows the navigation to be opened. If that were so, not only might she be allowed to remain during the late blockade, but even during the present blockade ; and there would be no end. It is difficult to satisfy my mind that that is the proper construction of this order. It is true that ports in the Baltic are blockaded ; it is not true that all Russian ports are blockaded. I apprehend, when the instrument was framed, those who framed it must have considered the probability of a blockade in the Baltic, but still there would be Russian ports open for a considerable time to which a vessel might resort. It is obvious that the vessel might have gone to Memel, in the immediate neighbourhood of Russian ports, had she been minded so to do. I am of opinion, therefore, she was not protected by the The vessel Order in Council from that period when she might fairly have perfy p'rotected quitted this country. at the time But there is another matter which strikes me with still f^jriy hare"^ greater force, — this vessel is advertised for sale. Has it been quitted this count rv contended to-day, or could it be contended for a single instant, „, ' , The V6SScl that it was intended by this Order in Council to allow a iiavingbeen 216 PRIZE CASES. 1855. advertised for s ale has for- feited all claim to protection. The consent of the autho- rities of the Custom-house could not legalize such a sale, which is contrary to the laws and policy of this country. .The evidence is not candid. There is an evident design to deceive the British authorities. Russian vessel to come to a British port and discharge her cargo forthwith, and then to remain to be the subject of barter and sale ? 1 was astonished to hear that that could be within the view of British policy at all. What are the views of British policy? To place the whole of the enemy's navy in that position in which they can be of no value whatever to the owners. But if you allow them to remain under the Order in Council, and permanently to remain, you are defeating your own intentions, and conferring upon them that which is the greatest benefit to a commercial nation, — namely, the oppor- tunity of competing with yourselves in the best market to which their wares can possibly be brought. Upon that ground alone, I should hold this vessel liable to condemnation, as not being protected by the Order in Council in so lying here. I am not speaking of the gentleman who makes the claim, Mr. Bowden. I am not saying whether he was right or wrong In signing this document which advertises the ship for sale. I do not attribute any blame to him as a merchant carrying on his business. The vessel was imder Tuscan colours, he may have consulted the Custom-house authorities; but if the Custom-house officers, with the know- ledge they possessed in Hull, knowing she was a Russian vessel, sanctioned the sale as a Tuscan vessel, they were guilty of a double fault ; first, for countenancing a fraud, and secondly, for countenancing a sale contrary to the laws of the country. But their ignorance or disregard of the law cannot protect from condemnation the property of those who are enemies to Great Britain, and have no protection from the authorities of this country. It appears to me, therefore, that I really am under the necessity of condemning this ship for many reasons. There is still another reason besides those I have mentioned; I think there has been an attempt, and a very clear attempt, to deceive the authorities of this country. I refer to the evidence given on the 10th Interrogatory by all the three witnesses. Henric Wicklund, the master, swears boldly and straightforward, that Mr. Adami is the owner of this vessel. It is not till he is pressed on the 31st Interrogatory, that his conscience a little pricks him, and he endeavours to show that he was the owner in law, but that, in reality, the gentleman who resides in the Russian dominions is the true owner. This is the real fact. Let us see what the papers say. They go to a late period, sub sequent even to the first arrest. There was a letter from Mr. P Augustius Adami to the master, enclosing important documents, THE « ODESSA." proving Mr. Adami's ownership of the " Odessa," previous to the declaration of war, namely : " a declaration from the Tuscan mariners, which will be very useful." I should like t3 know for what. — " Copy of a deed of his ownership of the sliip 'Odessa';" and finally, "a copy of a passport from tlie Tuscan Consulate at Odessa." These papers are to he u^ed when and where necessary. There is a latitude given fcr the use of these papers, within the British dominions, a fiaudulent use, of course, if they knew the sale to be fictitious. The letter further states that another vessel of his, the " Orio,' has been seized by a French steamer and not yet released ; and that both ships, the " Odessa " and " Orio, " were pur- ctased by him prior to the declaration of war. Nevertheless he says, " You will be cautious to consider well before leaving ths port where you now are. Tell me whether the documents I trjinsmit you are sufficient." Dated, " Leghorn 22d July 1854." So that there is a perseverance in that which is now admitted to be a false and fictitious character from the beginning to the end, and false and fictitious Avith the very view of deceiving those in this country who might make an investigation. But it is not these documents alone ; there are others, and several of them too, in which the same thing appears. Nos. 211 and 212, for instance ; they are documents in the form of an agreement, the first between Captain Wicklund and the super- carg), and the second an agreement of Captain "Wicklund with Captain Patron, all for the purpose of withholding all the testiiaony that could be withheld— if it was known that there was the Order in Council — in defiance of that order, because it cainot be said that they could rationally intend to send the vessel under Tuscan colours to avail themselves of that Order in Council. It appears to me, on all these grounds, that I am bDund to condemn this vessel, though I do not attribute the sEghtest blame to the gentleman who appears on behalf of the Russian merchant, for he acted, as he was bound to do, for the interests of those whom he represented. He has stated the truth, yet I think it falls short. I am bound to condemn this vessel. THE "LEUCADE," Areonis. April 3o. TMay 21. HIS vessel, under Ionian colours, sailed from Santa Maura ^j^^ ^^^^^^ ^^ with a cargo of olive oil, bound for Taganrogr, in the sea of Ae loniaa . . o oi states re- Azoff ; and having put in by reason of stress of weather, first latiyely to 218 PRIZE CASES. 1855. Great Britain being of so doubtful a character, and depending upon the nice construction of public documents, a commissioned captor, seizing an Ionian vessel on the ground of ille- gal trade with Sussia, though that trade is, in fact, legal, is not liable to condemnation in costs and damages, as having cap- tured her ■vrithout pro- bable cause. Statement. at Syra, and then at Mytilene, reached Constantinople, where, in consequence of the war she was refused her clearance for Taganrog. The master, therefore, changed her destination for Trebizond, for which place, nominally, she sailed on the 1st of May 1854, still having on board her bill of lading for tLe cargo, stated to be " shipped by Messrs. Pietro and Alexandra Stamatopulo, Brothers, Ionian subjects, for their own accouni; consigned to Taganrog, to order, on payment of freight »s therein mentioned." After her departure, her Majesty's acting Consul-General at Constantinople sent a letter to Viscount Stratford de Redcliffe, informing him of the circumstances, and intimating a suspicion of the master's intention still to sail for the Sea of Azoff. Tliis letter his Excellency officially transmitted to Vice-Admiial Dundas, who immediately despatched from off Sebastopol ier Majesty's steam frigate " Firebrand," in the suspected track of the said vessel. On the 14th of May the " Firebrand" fell in with her about forty-eight miles from the Straits of Kertch, steering to :he E.N.E., with the wind from the S.S.E., in the proper cottse for the Sea of Azoff, and, as it was stated, not for Trebizond. On being boarded, it seems, her master persisted that he was bound to Trebizond, and that he was in the direct course for that port ; but a person on board, who called himself the owner, contended that the Ionian flag, under which she was navigated, being a neutral one, she was at full liberty to enter a Russian port. She was captured, and brought in for adjudication. A claim was given in by Alexandre Stamatopulo foi the ship and cargo, as the property of himself and Pietro Stanato- pulo, both of Santa Maura, and Ionian subjects. The Court having decided that trade with Russia was not prohibited to Ionian subjects, the question whether the claimants were entitled to restitution with costs and damages now came on for hearing. The Queen's Advocate and The Admiralty Advocate appeared for the captor ; Dr. Addams and Dr. Tvnss for the claimant. Judgment. May 21. It is desirable fully to con- sider the doc- Db. Lushington. In this case, on behalf of the claimants, the Court has been prayed to decree restitution, with costs and damages ; on the part of the captors that prayer is opposed, and they have asked, if the Court is not satisfied, that it would allow them the benefit of giving explanatory evidence. Questions of very great difiiculty have been mooted in the case, of which some are likely to occur frequently; it is. THE "LEUCADE." 219 therefore, for the interest of all concerned, or who may be so in l^^S. future, that the Court should, to the best of its ability, fully trine and consider the points which have been discussed, and declare practice of the what, according to its conception, the doctrine and practice of this Court has been, and the course which on similar questions, where there are no distinguishing circumstances, it will pursue. The questions which so present themselves are, first, the Two questions : question of costs and damages, when they ought to be decreed ^gtsand^" to the claimants ; secondly, the question of allowing captors to damages give explanatory evidence — whether it ought to be allowed at decreed to all, and under what circumstances. Before I enter on this claimants; T Ml ■ • 1 111 1 • 1 T 1 2ndly, -whether discussion, i will state the principles and rules by which i have and -whfen been, and am anxious to be, governed, in all my judgments, ^'j''^'^*/ ?™°^ and which I deem to be binding on the Court, whatever its allowed to own individual opinion may be in any particular case. captors. This Court is, I conceive, bound to adhere without deviation The Court to a course of precedents adopted by its predecessors, though '^^1'°"°^ '° not to a single decision; where that course has also been course of pre- sanctioned by the Court of Appeal, this Court has no discretion especiSly"when at all ; its sole duty is to obey. If I am able to discover what sanctioned by that course has been, to it I must adhere, until either it be shown Appeal, that I have mistaken it, or that the Judicial Committee have made any change therein. Until this has happened, I should not, from any notions of my own, or by reference to general principles or strong dicta, in particular cases, where there was no doubt as to the application of the general principles, or from the judgments of foreign authorities, consider myself at liberty to depart from the established practice of the Court. Indeed, it would appear to me that such practice would but show to what extent, and within what limits, according to the judgments of my predecessors and the Court of Appeal, the general prin- ciples should be carried out, and would prove under what modifications they ought to be enforced. Such is my notion of the duty of a Court, subject to a Court The Privy of Appeal. The Privy Council stands in a very different bound by the situation ; they have infinitely larger powers, are at liberty to ^"^^ ^^ff' ^"* exercise a much wider discretion, the limits whereof it is not for discretion. me to attempt to define. Whenever that Court may have given a clear explanation of When the the principles which ought to be adopted, or of the manner in hS^earl™*"^ which they ought to be brought to bear in practice, or of the laid down any extent to which they ought to be carried, whether such rSesttHs""^ exnlanation be consistent with former practice or not, it Court is hound ,1 c ^ • r\ • ^ ■^' t- • iniphcitly to becomes the duty oi this Uourt, without any^regard j to its adopt and own opinion, or any notion of itg own, to regulate aU its foUowthem. 220 PKIZE CASES. The principles adopted by Lord Stowell govern the Court until otherwise directed by the Court of Appeal. The published Reports afford but little information as to the practice of the Prize Court. In the Prize Court ordinary costs, i. e. law costs, were seldom or never given to captors or claimants. Costs were sometimes, though seldom, given in the Court of Appeal. Qiicere, if the absence of probable cause of de- tention upon the ship's papers and proceedings by the judgment of that .superior tribunal ; and, to the best of its ability, without regard to any other consideration, to give the fullest force and effect to the expressed directions of the superior authority. If I fail in so doing in this or any other case, such failure will arise from inability ou my part, and not from want of inclination, for no duty can be more imperative than strictly to follow out the decrees of the superior Court. If this were not done, all would be uncertainty and confusion. In this great inquiry, therefore, as in all other matters, my first guide will be the principles adopted by Lord Stowell, as modified by him, in constant usage and every day practice ; and I shall not depart from them, save as I may be admonished to do by the Court of Appeal. I now approach the question of costs and damages. That is an expression very familiar to our ears, but still it requires some explanation, and my apology for entering into some detail is, that as there have been no prize proceedings for nearly forty years, it is impossible for the present advocates and proctors to be intimately acquainted with the practice of the Prize Court. Valuable as our Reports are, admirably calculated to give a knowledge of general principles, they were not intended and are not calculated to give full information as to matters of every day practice, — matters seldom made the subject of any Reports. Costs alone, independently of damages, — I mean law costs, in the common acceptation of the term, — were very seldom, if ever, given in the Prize Court of the Admiralty to either the captors or the claimants. I hardly remember a single instance. I did in this war, in one case (a), under very peculiar circum- stances, condemn a British merchant in costs where the claim was abandoned ; but I doubt if I could have found a precedent for such a decree where the claim was given by or on behalf of a neutral merchant. In this, as in many other respects, the practice of the Prize Court wholly differs from the practice in Courts of Equity and Common Law. Costs, however, in the Court of Appeal were sometimes given, but not very frequently ; and still more seldom was it that such decree extended to the costs in the Court below, and, as I believe, such rare cases were confined to the decrees of Vice- Admiralty Courts. Captors' expenses include law costs and all other expenses fairly incurred in bringing the case before the Court ; but as this matter is not immediately connected with the question I am now to decide, and as this judgment will, I regret to say, (o) The "Atlantic," anti p. 104, 2 Eccl. & Adm. 93. THE "LEUCADE." 221 be of some length, I need not now enter upon it, save to ob- ^855. serve, that if the absence of what is termed probable cause depositions be appearing on the ship's papers and depositions is alone a ground ^ ground for for condemnation in costs and damages, a question which I tion in costs dare not attempt to solve must arise, and it is this : if upon ^° uldToiffte the depositions and ship's papers, there is probable cause for presence detention and bringing to adjudication, is not such a case a ^o^^for^ case for captors' expenses ? How, under such circumstances, giving captors the intermediate line is to be drawn, I have not the slightest eir expenses conception, if that should be the established principle. Costs and damages may be best expressed by the term resti- A decree for tutio in zw^e^rMTH,— complete indemnity for the capture. damages is a It is now my object to show what was the course of pomplete proceeding in these matters during Lord StowelTs time ; but it the capture. will tend to make this inquiry clearer if I first state generally the different circumstances under which costs and damages may be decreed. We must bear in mind the wide difference between the ^^stinction must be drawn detention of a vessel under the colours of the enemy, or under between the "e-tral flags. _ _ _ ^'^y'L The destruction of a vessel under hostile colours is a matter neutral yesseL of duty ; the Court may condemn on proof which would be The destruction inadmissible or wholly irregular in the instance of a neutral vessel may be vessel. It may be iustifiable or even praiseworthy in the praiseworthy, captors to destroy an enemy's vessel. Indeed, the bringing to has a right to adjudication at all of an enemy's vessel is not called for by Y brought m ■' •' . •'lor adjuQica- any respect to the right of the enemy proprietor, where there tion. is no neutral property on board. But for totally different con- siderations, which I need not now enter upon, where a vessel under neutral colours is detained, she has the right to be brought to adjudication, according to the regular course of proceeding in the Prize Court ; and it is the very first duty of the captor to bring it in if it be practicable. From the performance of this duty the captor can be exone- Captors are rated only by showing that he was a bond fide possessor, and fTOm^bringing that it was impossible for him to discharge it. No excuse for a neutral in him as to inconvenience or difficulty can be admitted as between tion only by captors and claimants. If the ship be lost, that fact alone Is no absolute ne- answer ; the captor must show a valid cause for the detention as well as the loss. If the ship be destroyed for reasons of policy The destruc alone, a;s to maintain a blockade or otherwise, the claimant is ^^^ incurs entitled to costs and damages. I'he general rule, therefore, *<* "sis: of costs and is, that if a ship under neutral colours be not brought to a damages. competent Court for adjudication, the claimants are, as against the captor, entitled to costs and damages. Indeed, if the captor 222 PRIZE CASES. So also its unwarrantable detention. The mode of proceeding. The Cape Nicola Mole cases. doubt his power to bring a neutral vessel to adjudication, it is his duty, under ordinary circumstances, to release her. These observations will be found hereafter to have a bearing on some of the decided cases which have been referred to in the case of the " Ostsee." (a) Again, costs and damages were given where neutral vessels were brought to adjudication duly, but the detention was deemed to be unwarrantable. This will be the chief matter for investigation at present. The materials for inquiry into the practice of the Prize Court of Admiralty of England are not of very great extent. The E-eports of Sir Christopher Rohinson, of Dr. Edwards, of Sir John Dodson, and Mr. Acton, are our principal sources of infor- mation. The Appeal Cases will furnish some further means of knowledge, and so will the records of the Court itself ; but to examine them requires much time and the expenditure of great labour. After all, as I have already observed, the usage of the Court, the every day practice, can only be known thorougUy by those who have had opportunity of observing it daily. I am sorry to say very few survive who can speak from their own personal experience. Then what proof of the course of proceeding adopted is to be extracted from these materials, namely, the Reports I have referred to ? The cases are very few in number. First, the Cape Nicola Mole cases, and the "J.cteow,"and others falling under the same category, must be considered. It may be well to state the mode of proceeding in these cases. The captors were called upon by monition to proceed to adju- dication ; they were unable to do so in most of the cases, — the ships and crews being gone ; and in the case of the "Actaon " (J) the ship was destroyed and the papers were destroyed also. The captors appeared under protest, the object of the protest being to show that the capture and destruction of the ship was warranted, and that the not proceeding to adjudication was justified by circumstances, as in the case of a captured vessel justly detained, but accidentally destroyed by a storm. The onus probandi lay entirely on the captor, and, of course, captor's evidence was admitted, for there could be no other. The Court then pronounced for or against the protest. If for the protest, there was an end of the case ; if against it, the captors appeared absolutely, and, according to the circumstances of the case, were condemned in costs and damages for not proceeding to adjudication, or to restitution in value. It is not always in the Reports that these proceedings are \a) Anti, p. 174, 2 Eocl. & Adm. 170. (J) 2 Dods. 51. THE "LEUCADE." 223 reported distinctly, but in one of the Cape Nicola Mole cases \^55- it will appear what was done ; that is in the case of the judament " Huldah." (a) I need not enter into the particulars of that -pj^g « fiuldah." case, because my only object is to show what was done, and the conclusion of it. The protest was overruled, an absolute appearance given for the captors, and the cause heard on the merits ; when the Court decreed restitution of the principal part of the cargo belonging to the owner of the ship. I point this out because there was a distinction taken in the Cape Nicola Mole cases ; in some there was restitution with costs , and damages, in some restitution of the cargo only. This distinction does not seem to be adverted to. Now these cases were distinguished from others in many The question rni • • 1 . • 1 I'll" t^ose cases important respects. Ine principal question was, thougb mixed was, whether up with others, whether the not proceeding; to adiudication was ^^^^°^ pro- ...T 1 .7 . .. eeeding to justifiable, not whether the original detention was justifiable, adjudication though that was thrown in in the case of the " Actoeon." ivas justifiable. . The " Actaon." That case I perfectly well remember having argued, and I have had recourse to the original papers to see whether my memory failed me or not. That was a case under a licence, where Captain Capel acted under the express order of the Commander-in-Chief on the station; for I find, on looking to the proceedings, that was the state of the case. There was no The rule of doubt as to his being indemnified by Government ; but it should mgnt was not be known that the invariable rule of the Government was not *° indemnify to pay or undertake to pay on behalf of the captors one single had been sixpence till the case had been heard and decided by the Court ^^ard in the of Admiralty ; and for this purpose, and this purpose only, the Admiralty. action was brought before the Court, and all the circumstances stated, though I must say with very considerable irregularity, with a view to save the Government, not Captain Capel, who would have been broken if he had disobeyed the orders of his superior. It is clear that the destruction of this vessel, and consequent The Actaon. thereon the not proceeding to adjudication, was the ground of that decree. Lord Stowell (b) says : " Why, it is said ia the first place that Captain Capel found that the transfer of these licences from one vessel to another rendered such cases suspicious, and made it necessary for him to use great vigilance in detecting them ; but that does not at all impose upon him a necessity of destroying the vessels which were furnished with them.'" I do not dwell further on these cases because they are cases in which the captor was condemned in costs and damages, not on account of there being no probable cause of seizure, which is (a) 3 C. Rob. 235. (J) 2 Dods. 63. 224 PRIZE CASES. 1855. Judgment. The present case is different. Cases of costs and damages for seizure with- out probable cause. Lord Stowell never con- demned cap- tors in costs and damages on the ground that the papers and depo- sitions dis- closed no probable cause of capture. the case I have particularly under my consideration, but for not bringing the captured vessel to a proper Court for adjudication, and for destroying the vessel. This explanation is necessary in order to give due weight to such cases. I should also observe that there was a right • secured in many instances by treaty, and always given at the commencement of every war, namely, a right of appeal to the superior tribunal, and that in the Cape Nicola Mole cases the captors had taken the ship to a Court having no jurisdiction, and consequently the claimants had no power to appeal from the condemnation which took place ; whether such condemnation was weU- founded or not had nothing to do with the question ; in fact, the condemnation was erroneous ; the condemnation took place for a breach of blockade which did not exist. That was the real ground of condemnation in the Cape Nicola Mole cases, and that is perfectly evident from what was said. Under circumstances like these, when captors could not perform their first duty to bring the prize before a competent Court for adjudication, and that for want of the ship herself, the papers and witnesses being gone, a condemnation for omitting so to do was called for by the evident demands of justice, as well as by the rules which govern prize proceedings. The next class of precedents are those which may bear on the principal questions before me— seizure without probable cause. It is manifest that this class must be subdivided. First, cases where it appears that the captors were guilty of misconduct or vexation. They are to be found upon the records and in our books. I believe there were some fourteen to eighteen cases. Secondly, cases of a totally different kind, — cases where, upon the production of the depositions and ship's papers alone, no probable cause was disclosed. I believe that all the precedents which have been produced are cases which fall under the first of these divisions. I have dedicated a considerable portion of all the time I could spare to search on this question. All the cases which have been cited in the " Ostsee " were cases of this description, — for I have examined them, — aU cases of improper conduct on behalf of the captors. I say, then, that I verily believe that not one case will be found where Lord Stowell condemned the captors in costs and damages upon the production of the ship's papers and depositions upon the ground that they did not disclose a probable cause of capture. I will state the ground of this belief There were hundreds of cases, — not scores, — but hundreds, — in which costs and damages must have been decreed, had such been the rule. There is not Holme THE "LEUCADE." 225 a single one In which they were decreed, though restitution had ^^^''■ been constantly passing every day, and, sometimes many in a judgment. day. There are cases where captors' expenses had been refused on the ground that the seizure was not justifiable, but costs and damages were not given, and they are some of them to be found in Sir C. Robinson!s Reports. My own notes, for I have gone through them all, furnish but very meagre Information, and, for the best of all possible reasons, — that such questions were not discussed, — the practice was known to all who practised here. I will state, however, what I have found. I am now about to read, word for word, the whole of my notes in two cases: " On the 4th of December 1809, in the case of the 'Hannah Holmes^ an American ship, the ques- The "Hannah tlon was whether she was going to France ; — professed to be bound to Tonnlngen; — all the papers so purport; — positively sworn to ; — aided in this case by general probability ; — It Is not likely that an American ship should be going to France ; — the Court is not Inclined to believe that the ship was going to Calais ; — very Improbable ; — great numbers of British cruizers watching at Calais ; — Inconsistencies of the log are explained ; — better a few ships should escape than the principles of justice be relaxed In so dangerous a way. N. B. Captors wanted to Introduce affidavits. Ship and cargo restored. Adams asked for expenses for claimants, on the ground of the loss they had suffered by losing their voyage to Tonnlngen. The Court refused expenses." The " Frau Aletta" on the 27th of November: "Vessel 'The"Frau lying In Pappenburg ; — a licence for this vessel by name, from Ems to London, to take colonial produce. First difficulty to obtain leave from Dutch Government ; — partly between two fires ; — ship lay at Embden ; — then comes an embargo ; — he slips from Embden In the night and comes to Cape Bury, to take protection of British cruizers ; — was stopped for want of his papers ; — papers delivered up to commissioners ;— papers support his account ; — taken In the western passage ; — licence permits him to do It ; — this permission took off the blockade. The passage In the licence does not keep on the restriction on the western passage ; perhaps Inserted unin- tentionally, being a common clause. Not a capture that ought to have been made. Vessel restored without costs and damages." Now, having adverted to the precedents. It may be well to look at the principle, and see some of the reasons which governed Lord StowelTs mind, though, of course, It Is not in my power to state all. We shall thereby see with how many serious difficulties this subject is environed, P Alelia.' 226 1855, Judgment. The decisions of Lord Stowell on the point -were governed by hroad prin- ciples without regard to the hardships of particular cases. The balance of advantages in favour of neutrals. The " Dili- gentia," It would be unjust to mulct a captor in costs and damages, ■without giving him the opportunity to prove that he had pro- bable ground of seizure. TJpon what evidence must the Court decide as to the probable cause of capture. PRIZE CASES. and it may perhaps enable us the bettei* to overcome them in future. Lord Stowell administered the Prize Law on great and com- prehensive principles ; his object •was that on the whole equal justice should be done to the rights of the belligerent, and the just claims of neutral nations, but he did not seek in each particular case to do the most perfect justice. Many passages in his judgments might be cited to show this, whereby he declared that, though there might be hardships in particular cases, both to captors and especially to neutrals, yet, on the whole, the balance was in favour of the neutral rather than against him. Lord Stowell used to say though blockade was a hardship on a neutral, and the right of search was a hardship on a neutral, yet it was to be recollected that the whole trade was always open to them, — the carrying trade in time of war. He used always to say, and rely greatly on that rule of law, that in the first instance, the case should be heard on the evidence of the claimants themselves, namely the ship-papers and depositions. And on the other hand, in the case of the " Diligentia" (a), where the captors complained of what Lord Stowell was about to do. Lord Stowell made the same answer ; he told them that though they might complain in particular instances, yet he must adhere to the general principle, even if the consequences might press hard upon them. Now, no person more readily acknow- ledged the truth of the principle that a claimant should be indemnified for a capture made without probable cause than Lord Stowell; but he held it to be equally contrary to common justice that a captor should be mulcted in costs and damages where he has faithfully performed his duty, and had in truth adequate cause for the seizure. Yet this cause of seizure might not appear on the face of the depositions and ship's papers. So it might be in blockade cases, and in numerous others which might be stated. Then the question arises, how is the truth to be got at ? By what evidence are the facts whether probable cause existed or did not exist to be ascertained ? Justice will say by evidence from both of the litigant .parties ; — that no one ought to be condemned upon ex parte evidence. But for reasons which I need not enter into, the great rule, — the established rule of the Prize Court of Great Britain, and of most others, save France for some time, was to hear the case in the first instance, on the depositions of the master and crew of the captured ship, excludino- all evidence from the captors. If such evidence was satisfactory, restitution always followed as a matter of course, whatever might be the truth of the transaction. (a) 1 Dods. 404. THE "LEUCADE." If, then, on such ex parte evidence, a prayer for condemna- tion with costs and damages was founded, what was to be done in that case ? In the case of the " Elise" {,(), I stated that when such a The«^Kse," state of things once occurred, and once only in my knowledge, "*^S'Vt7- Lord Stowell observed that though restitution followed, no Mmine." probable cause appearing on the face of the depositions, or in the ship's papers, whatever might be the true merits of the case, no further inquiry would be allowed; but that if costs and damages were demanded, they could not be decreed without receiving evidence from the captors. I have not, I regret to say, been able to find the name of that ^° case to te case, but I have a perfect recollection of the fact within my own ex^'Janator^ knowledge, — I was present at the time. Nothing further was evidence on done in that case, and it is most remarkable, but I believe it to captors has be true, that no case could be found, though I do not say so posi- ''^™ received. tively, in which such explanatory evidence was actually received, with respect to costs and damages. How is this to be accounted for ? In this way, first, that "^^^ '"''"* P^ the claimants, knowing that the captors' evidence might pos- accounted for sibly be received, in many cases would not press their demand. ^7 '^'anous CI renin stR-Ticfis Secondly, that the production of captors' evidence was attended with many difficulties, and surrounded with embarrassment. Captures were made on the high seas in all parts of the world. Captors, from the nature of their occupation, were constantly moving from place to place. Generally it would be a matter of great difficulty to procure the evidence of any one present at the capture ; but if, after much delay, such evidence was procured, — if it disclosed new facts, as it must almost necessarily have done, — then the claimants must have had an opportunity to reply, and such evidence must also have been procured from abroad, and frequently from distant countries. Now, when we consider what were the limited means of Theproduc- ,. . ,, ^ ,. 1 f T r tion of captors' communication in those days, some notion may be formed ot evidence the delay and expense which would have been attendant on ""^'oives m- ,,..!,. . superable such proceedings in allowing captors to give explanatory difficulties. evidence to excuse themselves from costs and damages. Suppose, however, the evidence was produced, there would not be an end of the difficulty. Though it may be true that no such case has occurred, yet in a case nearly analogous to it, Lord Stowell pointed out the embari-assments which would necessarily present themselves. I allude to the case of the " Haabet " (a), in which The " Haabet." (a) Anti, p. 92, 2 Eccl. & Adra. 39. P2 228 PEIZE CASES, Seasons upon which the practice of the Prize Court is founded. Lord Stowett's decisions were Beldom or never reversed, though the Appeal Court was con- stituted of the highest authorities. captors' evidence was produced I'or a diiFerent purpose— with a view to the decree of condemnation. In endeavouring to account for the prevalence of this usage, if so I may call it, reference may be had to the nature of prize itself, and the incidents which necessarily attach to it. Ships and cargoes are not only perishable commodities, but the care necessary to preserve them, even for a short time, is attended with much expense. Hence all claimants were desirous of obtaining restitution as speedily as possible ; and, looking at the consequences of asking for more, simple restitution by consent took place in hundreds of cases, frequently on the payment of captors' expenses. Lord Stowell commenced with an arrear of nearly 800 cases ; fresh captures were coming in daily. To have investigated one-twentieth part of the cases of restitution with one-tenth part of the time and pains bestowed on the " Ostsee" would, I think, have been deemed by all more than a Herculean task. The records of the Court of Appeal, so far as they extend, show that that high tribunal did not repudiate the course followed by Lord Stowell; indeed, it is most remarkable that scarcely one of his judgments on any question of great importance was ever reversed, — not one in a thousand. In one case only of moment, an appeal from a Vice- Admiralty Court, was there a serious difference between Lord Stowell and Sir William Grant ; and in that case, I am rather ashamed to say, no final judgment was ever pronounced. After remaining five years for judgment, it finally was com- promised. That was a class of cases involving property to an enormous amount. I may add that the sanction of Lord StoweWs proceedings was not confined to the very high authority of Sir William Grant. I agree with an expression in the " Ostsee," that it is scarcely possible to call in a higher authority. Sir William Wynne was a constant attendant at the sittings of the Privy Council; he had been King's Advocate ; he had had the experience of the two wars before the war of 1793. No man had a greater knowledge of his profession, no one was more dedicated to the performance of its duties, and no man was more conscientious, or more independent in his opinions. To Sir William Wynne I must add the name of Sir Jolin Nicholl, also King's Advocate, whose knowledge, experience, and accuracy, are known to us all. A board more distinguished for talent, ability, and knowledge was never constituted. Constant opportunities occurred where, had they differed from Lord Stowell on the question I have (a) 6 C Rob. 54. THE "LEUCADE." been discussing, they must and would have expressed that opinion. Much more might be said, but I abstain from further obser- vation, because my object is only to prove the course of practice prevailing in this Court on the subject of costs and damages, and in some degree to account for it. It is no part of my duty now to maintain and defend it- In the case of the " Ostsee," I had not the advantage of in the absence hearing the very elaborate argument which appears to have ofaUpre- been addressed to the Lords of Appeal, on the part of the contrary, the claimants. There was very little discussion before me, and Court ■w-ould 1 expressed my opmion upon the question briefly, and same opinion assigned no reasons in detail, and I did so because what had °fthe^..^OiteM" occurred in former days on this subject was fresh in my memory had been as and present to my mind. But I avow that, had I had an argued before opportunity of hearing all that has since been urged on the it ^ « Ae subject, I should have given the same judgment ; and for this ^ simple reason, that I should have considered myself not at liberty to exercise any discretion upon the subject; that as a subordinate Judge, I should have deemed myself absolutely bound to follow the rule as to costs and damages as carried into execution according to the uniform practice of this Court, sanctioned by those whose names I have mentioned. I should have asked, as I have in this case, for any one precedent to jus- tify my acceding to the motion ; failing the production of such precedent, — andnone I believe has or can be produced, — Ishould have refused the prayer. I do not find that Sir John Dodson, who had much experience during the late war, and who formed one of the Judicial Committee, referred to any such precedent ; yet if such a precedent was known to him, he must undoubtedly have given their Lordships the benefit of it. Failing the production of all precedent to the contrary, I should have thought it presumption on my part to have questioned the propriety or justice of a course so long pursued. My duty was to obey. The Judicial Committee stands in a very different position But the Jndi- from me. It is their iirivilege not merely to ascertain what has f''^ Committee , 1 . .,.„.,.., has the power been done in past times, but ii m their judgment such a course to modify or of practice is not consistent with justice, they have power to '^^^^^^^ alter and reform it. That Court is at liberty to -take into consideration any alteration which may have occurred in the relative situation of the belligerent and neutral states, and to act upon much wider views than I should dare to do. It remains then to examine the judgment of their Lordships to ascertain what are the principles and rules they intend to 230 The " Ostsee." Capture with- out probable cause is at the risk of costs and damages. Probable tause is in- capable of definition. Slight irre- gularities in ship-papers ■would not be deemed prob- able cause. PRIZE CASES. prescribe, — what alteration there ought to be in the course hitherto followed ; and it is my duty to discover how far that judgment affects the case of the " Leucade," and other similar cases, for I hope and trust that this examination will not only assist me in pronouncing a just judgment in the case of the " Leucade," but afford light to guide us in future. It is a fearful state of the law when the administration of justice in each particular case depends, not on the application of some general principles, but upon the dissection of minute particulars. The first rule which I extract from their Lordships' decision Is founded upon the following passage: "The result of these authorities is, that in order to exempt a captor from costs and damages in case of restitution, there must have been some cir- cumstances connected with the ship and cargo affording reason- able ground for belief that one, or both, or some part of the cargo might prove, upon future inquiry, to be lawful prize." (a) This rule I apprehend to be that, in the case of all ships and cargoes brought in for adjudication, if it should appear from the depositions and ship-papers that the seizure was made Avithout probable cause, a condemnation in costs and damages will follow ; or in other words, such decree shall be passed when the depositions and ship-papers do not show probable cause. That must be the meaning of the expression, for I agree with the argument of counsel. I do not think it is the most fortunate expression that could be made use of; it is not the expression of their Lordships, but the authority they cited. It may be that probable cause existed, though no such probable cause existed on the face of the papers. Now their Lordships most truly stated that probable cause Is Incapable of definition ; that probable cause must be probable In the opinion of the Judge, not probable cause in the opinion of the captor, who, unfortunately, in the discharge of his duty has to determine whether to detain or not, with little time for deliberation, and very often from a bundle of papers in a foreign language, and in the midst of a crew speaking the same. In each individual case, then, such task must now fall upon the Judge. But perhaps some light tnay be thrown upon this Important inquiry, thougli we cannot define what probable cause is, by considering what Is not probable cause Avithin the meaning which the Court of Appeal has afSxed to the term In the passage I have cited. I apprehend that slight Irregularity in the ship- papers, or petty variations in the depositions, would not be (a) Ante, p. 178. 2 Eccl. & Adm. 174. THE "LEUCADE." 231 deemed probable cause; for were it otherwise, in what case 1855. could it be said with truth that there was no probable cause ? TT" ' T 1 J. I • T 1 • Judgmsnt. in almost every case there is some little irregularity or omis- sion. So to construe their Lordships' declaration would be little less than a mockery and a snare. I apprehend that the ground on which a seizure could now be justified must be real and substantial. The judgment has, however, touched upon another question Quare, must which I must not pass unnoticed; it is this,— whether the cause^ave'*' probable cause must have arisen from the fault or defect of the arisen from captured vessel, or whether a captor will be relieved from the the defect'of liability to costs and damages for other reasons. I do not ttecaptm-ed apprehend that their Lordships intended to express any decided opinion whatever upon those points at all. I will only observe that there is a very wide distinction between the cases which have occurred and may possibly occur again. I must again refer to the " Actaon." The act of destruction The "Actaon." of the ship by Captain Capel was in itself illegal, even if the vessel was liable to condemnation ; it could only be justified on the grounds of public policy, and for illegal acts done for such a reason responsibility must attach. The same in the Cape Nicola Mole cases. Very different is the case where the Government gives a lawful order, and the captor from circumstances has difEculty in applying it. In the case of an absolute order to seize a particular ship. Lord Stowell expressed his opinion that the captor would be indemnified ; that is the case of the " Diligen- tia" (a). That is the expression used by Lord Stowell. Perhaps The ''DiU- it may be somewhat ambiguous, but, looking at the context, ff^"^'"-" I think that in that case it meant he would not be liable to condemnation in costs and damages in a Prize Court. Except so far as the necessity of the case now under consideration may compel me, I shall certainly abstain from considering this branch of the subject, finding the law in the state I have mentioned. There is another matter intimately connected with the q ues- Captors' eyi- tion, to which I must advert. 1 refer to the production of sible into three captors' evidence, on which I have already touched for another J^^ctg ^q*' ^* purpose. We must bear in mind certain distinctions if we procure con- desire to comprehend this head of evidence. First, the produc- 2nd,To'escape tion of evidence as to the facts of actual capture as contra- condemnation distinguished from other evidence, which the case may call for damages; to clear up difficulties which may arise, — and this for the 3r;-93-appU- '■ . , cable to cap- matter of considerable importance. It is not to be presumed ture in the ne^T that the section was an unnecessary enactment ; and I think ^"" that it strongly supports me in the view that I have taken that the 54 Geo. 3. c. 93. was not applicable to prizes taken in subsequent wars, or in wars subsequent to the period when the 54 Geo. 3. c. 93. passed. It is true that the Act of the 55 Geo. 3. c. 160., with some exceptions, was a temporary Act. It was confined to the existing war, but this fact does not affect the conclusions to be drawn from its contents, for if in the case of the war of 1815, it was necessary to pass a new Act to make the 54 Geo. 3. applicable to that new war, so by parity of reasoning in the case of a war subsequent to 1815, a statute would be equally necessary for the same purpose. The 76th section limits the continuance of this Act to the Section 76. then present war ; it has some exceptions, but none of them appear to me to afl^ect the present question. The next statute in order is the 58 Geo. 3. c. 64. I am of ^s Geo. s. c. 64. opinion that that statute operates only upon prize included in the 54 Geo. 3. c. 93., and in the 54 Geo. 3. c. 160. It applies, I think, to both those Acts, but to no other. The 59 Geo. 3. c. 56., is the statute which follows. I enter- 59 Geo. 3. . c. 56. tain some doubt, and very considerable doubt, both as relates to this and to the preceding statute, whether they were not passed upon the supposition, or rather drawn upon the sup- position, that the 54 Geo. 3. c. 93., did extend to all prizes in subsequent wars. I am strongly inclined to think that that was unfortunately so ; but however this may be, I am of •opinion that I need not cite this statute, which also does not affect prizes in a subsequent war, so far at least as it applies to the point which I am now considering, namely, the agency 246 1865. Judgment, 11 Geo. 4. c. 20. Section 79. Applies to future as well as past cap- tures. 17 &.18 Vict, u. 18. Section 28. 17 & 18 Vict. i;. 19. o. 13. PRIZE GASES. due to agents. I am not at pi'esent considering how payments of prize are to be made to petty officers. Then comes the 11 Geo. 4. c. 20., which is entitled " An Act to amend and consolidate the laws relating to the pay of the Royal Navy," and is principally confined to that subject. The 79th section, however, applies to the commission charge- able by a certain class of agents. The 79th section is, " Be it further enacted, that no agent or other person who shall be employed in the receipt of any wages, pay, prize money, pension, or allowances payable In respect of the services of any officer, seaman, marine, or other person in the Royal Navy, shall be entitled to take or retain more than sixpence in the pound, &c." Looking at the period when the statute was passed, namely, in the year 1830, 15 years after the termination of the war, and to the whole contents of this section as well as to the rest of the statute, I can put upon it no other construction than that it extends to all prizes, past, present, and future. This statute is not connected with the 54 Geo. 3. c. 93. There are some 28 or 30 statutes adverted to at the commencement of the Act, but the statute of the 54 Geo. 3. c. 93., is not amongst them, and this statute, the 11 Geo. 4. c. 20., in no degree depends on the limitations contained in the statute of the 54 Geo. 3. c. 93. Now I have thought it my duty to go through all these statutes, but I must observe whatever may be the efiect of the statute of George the 4th, it has but a very remote bearing upon the main question which I have to determine. Bearing in mind what I already stated, it now becomes neces- sary to examine the Act of the 17 & 18 Vict. c. 18., which takes efiect from the 1st of June 1854. It directs that aU ships and goods to be proceeded against in the Court of Admiralty, shall be delivered up into the custody of the marshal ; it also enacts that the vessel and goods shall be sold by the officer of the Court and the proceeds be paid to the Paymaster-General. The 28th section gives the Court the power to direct pay- ments of all costs and so forth, out of the proceeds so paid to the Paymaster-General. I must refer to this section again presently ; it is I believe the only section of the Act in which the term agent occurs. The last statute is the 17 & 18 Victoria, c. 19. This Act, section 13, enables the Lords of the Admiralty to make orders for the distribution of such prize proceeds, notwith* standing any provision to the contrary in the 11 Geo. 4 c. 20, and the 54 Geo. 3. c. 93., or in any other Act THE "AINA." 247 whatsoever. I must here observe that this statute of Queen Victoria relates to many matters besides prize. It does not, therefore, follow that the prize of this war was included in the two recited statutes. Now, it is obvious that these two recent statutes affect These statutes navy agents, such as navy agents were in former wars, not agenteS- direotly, for they are not mentioned, but indirectly, in con- rectly. sequence of the provisions of the statute giving the custody of all captures to the marshal, the direction of the sale to the Court, ordering the payment of the proceeds to the Paymaster-General, and causing the distribution of the proceeds to be made under the direction of the Lords of the Admiralty. In other respects, by the statutes, at least, navy agents are not affected. In the course of the argument, and when a discussion took place as to the duty of navy agents, it was very truly observed that though they may be superseded in the performance of some duties under this statute, yet, that other onerous and important duties might devolve upon them, as for instance, if prizes were carried to the port of Constantinople, or carried into a neutral port. Now, I do not think it would be convenient to mix up with the present question the consideration of these facts. They may be matters of some difficulty in themselves, but it will not tend to elucidate the matter now to be decided by mixino- them up with questions of that nature. I am further of opinion, that there is nothing to be found in former statutes ,. 1 • 1 • 1 • ^ do "ot affect any of the precedmg statutes which either govern or assist my the question. judgment, and that I must piincipally, at least, look to the statutes 17 & IS Victoria, cc. 18, 19, to govern me on this ojuestion. It has been said, however, in argument, that Independent of When not re- all statutes the Court has in matters of prize, by virtue of its gtltX^he ™^ commission, a iurisdiction in rem, and several cases have been Trize Court cited in support by that position. The general jurisdiction of jurisdiction the Prize Court over prizes is very accurately described by °^^J^ P"^^^' Lord Stowell in his argument, when King's advocate in relating Smart v. Wolff, (a) He states it, as I think, with perfect hereto, fairness. He says, " although the Prize Court of the Admi- ralty acts principally in rem, yet it possesses a complete and orio'inal power over the persons of the captors, and those who by their acts become possessed of the proceeds of a prize. By the capture, the thing is acquired not to the individual but to the state ; and though it Is now usually put into the hands of the captors it remains, in contemplation of law, in the custody I «} 3 Term Rep. 329. 248- PRIZE CASES. But that juris- diction is now limited by statute. The only ques- tion for the Court is the etfect of the statutes 17&18 Vict, cc. 18, 19. of the public. Formerly it actually did remain in their custody, as is still the case in all foreign countries. It is merely for the convenience of the captors that the English Admiralty permits them to take possession of the property ; but it must be; remembered that it is so held by them as agents of the Court, !ind not in right of 'property ; and, therefore, their possession may be devested by the Act of the Court either ex officio or on the application of the parties interested, showing good cause for taking it out of their hands. Now, if the captor himself be compellable to bring in the proceeds of the prize, his agent must be equally so, since they are both the agents of the public." Nothing can be more clearly expressed than that opinion, though it was an argument and not a judgment, delivered by Lord Stoiocll; and I have no hesitation in adding that it is the true doctrine of this Court in all respects whatsoever. In all matters of prize then, where the Court is not restrained to some special course of proceeding marked out by statute, I believe it to be true, that this Court has a wide discretionary jurisdiction over the whole subject of prize. I think that if no statute interfered, and the Crown did not exercise its rights, the Court might have taken possession of any prize, or might have left it in the hands of the captors or their agents, and might have adjudicated thereon, and on all matters relating and appertaining thereto. But assuming such position to be true in all respects, that is not the present question. The present Prize Act has taken the possession of, and control over, prize of all kinds out of the hands of the captors, and their agents, and out of the hands of the Court itself. In lieu of the former power which the Court might have exercised, and in lieu of the former power which the captors possessed, the Act of Parliament has given to the Court, (after payment to the Paymaster-General), authority to allow certain demands — authority, however, strictly limited. The Court may enforce provisions of the Act of Parliament, but it cannot exceed them. It has absolutely no jurisdiction over the pro- ceeds, save what is given by this statute, for, as I have said, it no longer proceeds in rem, the proceeds being taken out of its control. I think, then, as I have thought from the beginning, that my duty is confined to the single consideration of the effect of the statutes 17 & 18 Vict. cc. 18. 19, upon the question before me, and here it is expedient to state, as accurately as I can, what the question is which I am now about to determine. THE -AINA." The bhip was captured in April 1854, and brought to the port of London, where she was taken possession of by the judgment. marshal, and having been condemned on the 21st of June, was Thecircum- sold by the marshal under the present statute, and the pro- stances of the '^ ^ present case. ceeds paid to the Paymaster-General. Then, according to the statute, and 7iot before, the Court might direct payment out of such proceeds of all costs and expenses, charges which may be chargeable against the same, or which may have been incurred by the captor, his attorney or agent. The agents brought before the Registrar their accounts, and The Kegistrar they claimed, in virtue of an agreement made between them per-centage and the captors, two and a half per cent, as agency. The claimed by the Registrar disallowed such charge, and allotted ten guineas as allotted a ve- a proper remuneration, pro opere et lahore, in this particular muneration case. labore. The question comes before me on objection to that report, The fact of the and I am prayed to refer it back to the Registrar for the pur- ^^ed to^^'°^ pose of having the two and a half per cent, allowed. I assume, allow the per- for the purpose of the argument, that the agreement was signed „o° affe'cuhe by all the officers and the whole crew. It has not been con- question before tended that I can allow this agency merely on account of an agreement, and it could not have been so contended with any prospect of success. There is not a word in the Act of Parlia- ment which gives captors a power to make such agreement, or the Court a power to allow it. An agreement cannot be classed under the head of costs, charges, and expenses. I think it clearly contrary to the intention of the Act, that the captors should have power to cause deductions to be made from the proceeds according to their own judgment prior to the distribution, — deductions, I say, at their own will and pleasure. The claim was then put on anotlier ground, namely, that ^' ^"^ "1°"" ... • J 1 1 tended that agency was, as it certainly is to be considered, a charge on the the Court proceeds within the power of the Court ; that two and a half 'J^'^^^'^'X « per cent, was a fair and reasonable amount, and therefore the of 24 per cent., Court ought to allow it. and reafonable I think it was very candidly stated by one of the counsel at remuneration, least for Messrs. Ommaney, that, taking one prize with another, °f sCTeraT''^* it was a fair rate of remuneration. It was not argued that jo?'0 '^'^^^■ opere et lahore in this particular case, it was the appropriate sum. Then, assuming that with reference to the present trifling services of navy agents as compared with their services under the system which existed in former Avars, two and a half per cent, would be, taking an average of cases, a fair remuneration. 250 PKIZE CASES. But by s. 28. of the statute, the Court is re- strained from considering the fairness of such an average. The Court must therefore overrule the objection to the registrar's report with respect to the agency. am I at liberty to act on that principle, or do the provisions of this statute restrict me from so doing ? First, let me consider what would be the effect of a doctrine of that kind. I apprehend that on that point there can be no dispute. The remuneration is to be the same in all cases ; the proposition is grounded upon the assumption, not that the labour bestowed and the time expended would be the same in all cases, because it is most manifest, that they must differ in almost each individual case, but upon the presumption, that, taking one case with another, two and a half per cent, would be a fair remuneration, or in other words, that in the case of one capture, the pains expended might deserve four or five per cent., in another one or two per cent., but two and a half per cent, is the proper average. Now, I say, assuming this to be a correct estimate, and that no difficulty arises from the officers and crew not being always identical in the capture, am I at liberty to act upon it ? The present statute is wholly silent as to navy agents,-^it; directs no scale of payment, it makes no mention of the subject at all, save what I have set forth. Then I am confined to the construction of the 28th section. The words of that section are, " costs, charges, and expenses which may be chargeable against the same." Now, consider how this proposition will work. A prize worth 20,000/. is taken, brought in, and a common condemnation takes place with very little trouble or exertion on the part of the agent. He claims 500Z., not because his services in that particular case demand that amount of remuneration, but because other prizes of small value, in which he is agent for the same captor's ship, require the expenditure of more time, labour, and attention, which could not be compensated by two and a half per cent. I think that the Act of Parliament actually prohibits me from entertaining such a proposition : it has tied up my hands. I can allow nothing but what is a proper charge in each particular case, and am not at liberty to state an average. I must say what costs, what charges, what expenses are fairly to be claimed. How then can I say that a fixed scale of agency is a proper charge against these particular proceeds? It is obvious that, according to circumstances, it would be too much or too little. I am in the performance of a duty. I have no power to take a broad view of what would be most convenient and advisable, but I must carry out the direction of the statute of the Legis- lature ; I therefore feel that I mii bound to overrule the objection to the registrar's report, because it is not shown to me that such report is erroneous, and because I have no powei' THE "AINA." 251 to do that which I have been desired to do, namely, to allow a l'^^'*- per-centage instead of a remuneration fro opere et labore. Judgment. Now as to minor points, first, the charge for the notarial The other certificate as to there being no appeal. Looking at the doubt ■^J'^S^? ^ th^^ which might reasonably arise in the first proceeding after a long but in no future peace, and under changed and novel circumstances, I shall allow '*^^^" the charge in this first instance, but in future no such charge must be made, for I do not think it necessary. The Lords of the Admiralty, after the time for appealing has elapsed, must make distribution ; they mu.st adopt, and I have no doubt they have taken, the proper measures to be apprised of any appeal that may be prosecuted. Indeed this duty is necessarily cast upon them by the Act. (a) Then secondly, as to passing the accounts and obtaining the order for payment, I shall in this case allow the charge of two guineas. I think one half that charge would be sufiicient, and in future shall allow no more, but, for the reasons already stated, being the commencement of the war, I shall restore it. Lastly, I now come to the questions on which I understand ^^lid payment the Lords of the Admiralty have desired my opinion ; I do not to the parties know that I very distinctly comprehend those questions, though ^?I*^':'^ "J ,*," I took some pains to do so. The 17 & 18 Vict. c. 18. s. 28., constituted directs the proceeds to be distributed amongst the persons representatives. entitled thereto. The first question is, what would be the law if. no other statute had any operation on the point? The answer, I presume is easy enough, — payment to the person entitled when he appears ; payment to his lawfully constituted authority, his agent ; payment in the case of death to the legal representative. In either of these three modes, payment may be made with perfect security. This being so, I apprehend if there be no other statute in operation, good and valid payment might be made to Messrs. Ommaney of all prize money due to those who have signed the power of attorney, but not to any one who has not signed it. Then the inquiry must be confined to this question, whether any Act of Parliament applies to this point. I think, as I have already said, that the Act of the 54 Geo. 3. c. 93. does not apply to prize taken in the present war by any of its own pro- visions; but I cannot deny that, by the 11 Geo. 4. c. 20. s. 66., it has in some respects at least been treated as a subsisting Act; (though this is really a question of difiiculty) — subsisting however only as to prizes preceding the war of 1815, that is (a) The Lords of the Admiralty of all Prizes adjudicated upon, receive from the Registrar of the whether in the Court of Admiralty Court of Admiralty a monthly return or in the Court of Appeal. 252 PRIZE CASES. Such dliEcuUies arise in the construction of those statutes that a declara- tory statute is desirable. The agents ATere justified in hringing the question before the Court, and are entitled to their costs out of the pro- ceeds. prizes under the limitation I have before stated ; 1 think this must be the legal construction of the Act, though, as I have said, I am strongly inclined to believe that those who formed the Act of Geo. 4. considered the statute of the 54 Geo. 3. c. 93. as operating upon all prizes to be taken in wars declared at any time after its passing. With respect to the 1 1 Geo. 4. c. 20. I think, generally speaking, that that statute is alto- gether prospective, and that its provisions do extend to prizes taken in the present war, especially the 79th section, as to commission to certain agents. I have now delivered my judgment, so far as I am able to do it, on all these points. I must at the same time state, I think it is desirable as to the latter points that further investigation should take place as to what statutes are in force, and a declaratory statute should be passed. It may happen if this is not done, that persons may get into difficulty, however anxious they may be to conduct themselves according to law. I really think it is impossible for any person to go through the statutes I have done, without seeing that the strongest degree of doubt surrounds them all. There is one matter only which remains, and that is the question of costs ; I think that, considering all that has taken place, considering the total change made in the condition of agents, it was not an unfair proceeding on the part of Mr. Ommaney to bring these matters under the consideration of the Court, and that it is but just that he should be allowed his costs out of the proceeds. June 12. A Prussian vessel, during the war be- tween Denmark and Prussia, ■was fictitiously sold to a Kussian and assumed Rus- sian colours, which she con- tinued until the war between Great Bi-itain and Russia was imminent. Her seizure, on suspicion of her being Russian, was not withovt THE " CAROLINE," Kraft. X HIS vessel was seized in London, on the 29th of March last, under the Prussian flag. She was claimed by the Prussian owner, and the Court was prayed to condemn the seizor in costs and damages. It appeared from the ship-papers and depositions that she was Prussian built, and sailed under Prussian colours until the war between Denmark and Prussia, when it was thought advisable to assume Russian colours, which she did while in St. Petersburg in the year 1849 or 1850. At this time there was a fictitious sale of the vessel to a Russian. It seems she continued to carry the Russian flag long after the war between Denmark and Prussia was terminated and until February 1854, when she resumed her Prussian flag. THE "CAROLINE." 253 The Queen's Advocate and Admiralty/ Advocate for the seizor, 'iS55. contended that it was a case of such suspicion that the Court ^T^ could not restore without requiring further proof. and cannot Dr. Addams and Dr. Twiss, for the claimant, contended 'that seizorto'^costs there was no ground whatever for the seizure, and that they and damages. were entitled to a decree not only of restitution but of costs and damages. De. Lushington. During the last war it was a matter of Judgment. every-day's experience, that when vessels were brought in and The practice the case came on to be heard before the Court, the counsel -ivar. for the captors, according to the peculiar circumstances of each case, either prayed for condemnation or asked for further proof If they prayed for condemnation, of course it was open to the counsel for the claimants either to pray immediate restitution or that they might be permitted to give further proof; and the Court decided according to its own opinion of what was justice on a consideration of the whole facts of the case. But there was frequently a whole class of cases in which it was perfectly known by the practitioners that they were cases for further proof without further discussion. They were a class of cases in which the master not being able to speak to the property, or the bills of lading not having been produced in terms sufficiently clear, these circumstances were matters for further proof, which was granted in the ordinary course. Such was the practice. With respect to persons making seizures of vessels, not upon '^^^ ^°"''' . ^ adheres to its the high seas, and not entitled by their commission so to do, distinction be- I adhere entirely to the observations I made in the case of the ty^^^" commis- •' . sioned and non- " Elise Wilhelmine " (a), at the same time what I then observed commissioned must not be carried to an extent which I think the words did <=^P*°''*- not convey, and which the Court did not certainly intend. It But it is the is one thing for an officer of the customs, or a revenue officer to^jg officers, to make a seizure of a vessel in a port and come and claim *<' prevent an 1 p • 1 • (• 1 T p enemy tradmg condemnation on the ground ot a violation ot the L/aw or to British ports Nations, either by a breach of blockade or in any other way ™'^^'' "<^"t''^l ' •' .... . colours. as in the case of the " Elise Wilhelmine ' ; it is another thing where a Custom-house officer seizes a vessel believed to be an enemy's, carrying on any trade in the port of Great Britain. I apprehend it to be a part of the duty of a Custom-house officer to take due care and exercise due diligence that vessels are not admitted as neutral vessels to carry on a trade, if in reality they are the property of an enemy disguised under a (a) AnU, p. 92. 2 Ecc. and Adm. 35. 254 PRIZE CASES. 1855. Judgment. The circum- stances of the present case. There is not such a defi- ciency in the ship-papers as to afford just ground of suspicion. The fictitious assumption of the Russian flag was natural under the cir- cumstances. neutral flag. Then it is for the officer to make the seizure, and afterwards, if the Lords of the Admiral-ty give their sanction, to follow that up by a suit ; I apprehend without that sanction this Court would not entertain the suit. Now what are the facts of this case ? It appears that this was a yessel under Prussian colours, and, as I collect from the whole of the proceedings, she had been accustomed, if not always, yet frequently to trade from ports in the Baltic to British ports, and, being under Prussian colours, she reached this country at the close of last year, or the beginning of the present. The cargo then brought was unladen and a fresh cargo laden; and on the 29th of March, in the present year, she was seized by the Custom-house officers and these pro- ceedings were instituted. She has been claimed on behalf of the present owners, and it appears that the master is greatly interested, so much so, that he has about twenty-seven parts out of sixty. It is alleged, by the counsel for the captors, that there is such a deficiency of proof that the Court ought not to be satisfied without directing further proof of the facts alleged in the claim. Many observations have been made by her Majesty's Advocate as to the defect of the papers, but with regard to some of these observations I must confess I cannot at all concur ; for instance, much has been said about the log ; I now hold it in my hand ; it is said to be a mutilated instrmuent, but I am at a loss to know where. In the year 1855, when a vessel has been performing voyages almost without number, is it to be expected that you would find a perfect log of the years 1849 and 1850 ? I am at a loss to conceive how the tearing out of this leaf or that leaf, or as many as you please in that log, can have framed a just cause of suspicion. I am still more at a loss to conceive why, looking at the transaction, the transfer to the Russian flag should ever appear in the log, provided the vessel was intending to carry on a trade under a colourable character. I dismiss that from my consideration, and I dismiss also the muster-roll, for I do not apprehend that, under circumstances like these, the Court is in the habit of requiring that nice investigation of instruments of that character if there be others more important to be considered. Now the statement of the master is, that the ship was built in 1846 in a Prussian port. At one time, and indeed for a great many years, she carried on her trade under the Prussian flag; but when the war broke out between Denmark and Prussia, it being no longer safe to sail'under that flag, because THE "CAROLINE/ 265 she might be intercepted in her passage through the Sound, she 185^- assumed Russian colours. It is stated, and stated fairly, that j , the colours were assumed at St. Petersburg or Cronstadt — it matters nothing at which port they were assumed, — and she continued under these assumed colours to carry on her trade till the month of February 1854. It is perfectly apparent that But the con- the avowed object for which the Russian colours were assumed, R°"si^n^oolours namely, in consequence of the war betweenPrussia and Denmark, after the termi- had for nearly three years entirely ceased, and therefore that the ^^r bet-ween continuance to have Russian colours is not accounted for by the Denmark and statement which the master has made, inasmuch as the reason picious. has entirely failed. I must say, that when I see the change from Russian colours to Prussian just when the war was immi- nent, it is a circumstance of very considerable suspicion, and not of less suspicion because it is a matter of perfect notoriety that every possible attempt has been made in the present war to cover Russian property by transfer to neutral merchants. I must, therefore, look to the other documents, and see The Court whether, notwithstanding this, the Court is satisfied as to the comizance property in this vessel. I may observe by the way that it is of frauds prae- quite true that this Court does not take cognizance of frauds nations. practised upon other nations; for instance, this Court never takes cognizance of any attempt which may have been made by the disguise of colours, or in other ways, to avoid navigation or other laws of foreign countries. It is no offence in the eye of the Prize Court when such an attempt is made, it is only an offence where it is made in violation of British law. Let us look how the facts stand here. The first instrument '-The bill of sale. of great importance referred to in the argument, is what is called the grand bill of sale. It appears that the vessel had, when originally built, an instrument on board, — call it by what name you will, — a bielbrief, or a grand bill of sale. Now the usual appellation which is bestowed upon the document which a ship possesses when she is built, is a bielbrief, but I am by no means disposed to say that a similar meaning may not attach when the instrument which emanates from the ship builder, or from those who employ him, is called a grand bill of sale, and I apprehend that either the one or the other, — whether bielbrief or grand bill of sale, — is meant to be the foundation of the title of those to whom it is granted. This document, on careful examination, appears to me to be a sub- stitution for a former document of the same description which was lost, and which appears, from the correspondence, to have been 'what I should have been more inclined to denominate a bielbrief It has been lost, and this was a substitution thereof. 256 PRIZE CASES. The absence of a sea-pass is a snspicious cir- cumstance, for that is one of the documents ■which the Court always requires to be produced. What is the result of the evidence ? The corres- pondence corro- borates the master. The Court is satisfied as to the property of but I cannot in justice to the claimants say that this is a docu- ment to which, because it bears a different name from that which would be given to the original instrument, the Court ought not to pay attention. I think I am bound to consider this instrument as a proof of the title of the claimants to the same extent as I should the original bielbrief if it had been produced ; there is therefore one document of very great im- portance produced on the present occasion. There are other documents certainly wanting, one of which I certainly confess I did look for and do not find, namely, a sea pass. Now, according to the doctrine which 1 believe has been maintained by my predecessors in this chair, it has always been considered, I will not say a matter of absolute and indispen- sable necessity, but of the greatest moment, that a neutral vessel sailing the seas in time of war should be provided with an instrument called a sea-j)ass, or something tantamount thereto. There is no such document to be found here. The master accounts for its absence by saying he believes it was left behind at Elsinore. It must be remembered, this is a document of first-rate importance, for this is the docu- ment which entitles him to sail under the flag and pass of the nation to which he belongs, and I hope and trust, whatever may be the result of this case, that in future it will be understood that this is one of the documents which the Court will require to be produced ; it will require it to be produced, or a satisfactory reason assigned for its nonproduction. Now, how stands the result of the evidence in this case ? The master is unsupported by the testimony of the mate, and though I do not expect from the mate many particulars relating to the transactions of the ship, because it is not usual and customary for persons of that description to give the Court such detail, yet it is certainly somewhat surprising that he has not stated in his evidence a fact which must have been well known to him, namely, that his vessel carried Russian colours till February 1854, he having come on board in the month of October 1853. "With respect to the correspondence, it appears to 'me to be greatly corroborative of the evidence of the master. The whole of the correspondence tends to show that a gentleman of the name of Gradener, with whom he was in the habit of cor- responding, had property in the ship. I see nothing in the documents or any part of the evidence that points to Eussian interest. The first question, therefore, is whether I am to order further proof or direct immediate restitution ? I am, I must say, THE "CAROLINE." 257 satisfied that the ship is Prussian property ; and I am of opinion 1855. that I ought on this evidence to direct her to be restored, not tjjg .^ggggj that there is no irregularity in the proceeding, but because, ■without further upon the whole, I am clearly convinced in my own mind that ^ the property is proved to be Prussian. The only question that remains is that of costs and damages ; There was and to them I am equally clear that the claimants are not of seizure, and entitled. It is utterly impossible to hold that this was a the claimants . , 1 1 / • are therefore seizure without probable cause, or, to use an expression em- not entitled ployed by Mr. Justice Stoni, where there is no reasonable *° ""^'^ ^'^^ J , T , . , , 1 • T-. • damages. doubt. I think that where a vessel was carrying Russian colours up to the commencement of the war, and where she was divested of them only at the breaking out of the war, that one ground is a justification for seizing the vessel. When I look further at the circumstances of the case, that the master is not corroborated, that the grand bill of sale was procured under circumstances which, though they now are explained, were prima, facie not clear, and when I see no sea-pass on board, I am satisfied that the justice of the case does not require me to condemn the seizor in costs. I shall therefore simply restore. The Admiralty Advocate. Upon the payment of the captors' costs and expenses, or without. The Court. jS'o, simple restitution. Dr. Addams applied on behalf of the owners of the cargo in •^""^ 2"- this case for restitution with costs and damages, and submitted that, whatever cause there might have been for detaining the ship, there could be no pretence whatever for seizing the cargo. The Court said : That when a ship was seized, it was quite impossible to do otherwise than arrest the cargo. That was an universal rule. He would simply restore the cargo and make no order as to costs. THE " OTTO AND OLAF." My vi. IhIS ship under Danish colours sailed from Copenhagen J^''"»«.^,"«. with a cargo of coals, for Riga, after the blockade of the year leaving a 1854 had been raised. Having arrived there and discharged ^\°^''r^eltgo°" her cargo, she took on board a cargo of wheat, &c., and is liable to attempted to prosecute her return voyage, but in consequence out the risk of of the ice, she was compelled to put into Bolderaa, and remain costs and E 258 PRIZE CASES. 1855. AVhere the claim and pre- paratory evi- dence is at variance with the docu- mentary, the Court is bound to require further proof. Judgment, The adventure ■was between the termination of one blockade and the im- position of another, to import one cargo into, and export another from, Biga, Not. illegal. there for some time. Ou leaving that port in the month of April, she was found to be too deeply laden to cross the bar, and was compelled to unload a part of her cargo Into lighters, from which she again reshipped it after having passed the bar. In the meantime (on the 19th of April) the blockade had been again imposed upon the Gulf of Eiga. On the 8th of May, she was captured by her Majesty's ships " Archer" and " Geyser," was released on the 15th, and upon the same day was again seized by them, and sent here for adjudication on the ground of breach of the blockade. The cargo having been restored, a claim was made for costs and damages. A claim was also given in on behalf of four Danish subjects, as the ownersi for restitution of the ship with costs and damages. The Queen's Advocate and Dr. Deane appeared for the captors ; Dr. Addams and Dr. Twiss, for the claimants. De. LtrsHiNGTON. There are two questions to be disposed of in this case : the one relating to the claim for the cargo, the other to the claim for the ship. With respect to the circum- stances of the case, some of them are common to both questions which the Court will have to decide ; and some will be more applicable to the cargo, and some to the ship. The general nature of the adventure was this: assuming for a moment that the ship was duly transferred to Danish subjects, that they were the owners at the time of the capture, she being a Danish vessel lying at Copenhagen, and it being perfectly notorious when the Baltic was covered with ice that the British fleet would withdraw, and the ports which w^ere blockaded would of necessity be left open ; it was determined by the owners of the vessel to embark in an adventure for the purpose of carrying a cargo of coals from Copenhagen to Eiga, and of bringing back another cargo to some other port, which was to be named when the vessel arrived at Kiel. No doubt it was in the contemplation of the parties, that if they were unable to get the cargo on board at the time, and before the ice set in so as to render it impossible to get out, they would be detained until the approaching spring ; that, if they stayed, the British Government would reimpose the blockade, and that they would be shut up there ; and then they well knew and relied upon the rule of law, that a vessel taking on board a cargo antecedent to the blockade was entitled to come out. I am of opinion that this was a perfectly lawful undertaking ; that the owners had a right to enter as they did into the charterparty with Messrs. Suse and Co., namely, to take a cargo out in the first instance, and then to bring back another, if they THE "OTTO AND OLAF." 259 chose to run the risk of being detained by the ice, knowing ,_^^^ that a blockade would be imposed, and then to assert their Judgment. rights to carry out the cargo by reason of its having beeir laden antecedent to the blockade. I know of no illegality in this, and no blame is to be attributed to them, provided they carry out their intentions ionafide. It appears then that the vessel reaches Riga, discharges her The unshipping cargo of coals, and takes on board a cargo of wheat and Ughters and other articles of that description. It appears that such cargo reloading it mto 11^, Y 1 r» T ° the ship after was taken on board before the end of the month oi January, she had passed but that the vessel was unable to quit the port in consequence *^ ^^' "^ of the ice, — one of those contingencies which was anticipated. She remained there; the cargo was too heavy, and the ship was too deep to get over the bar. In the month of April part of the cargo was transferred to a lighter to enable the vessel to get over the bar, and was subsequently put on board again. The blockade was imposed on the 19th of April, and I think the 8th of May was the day of capture ; and I am of opinion that the unshipping of the cargo into the lighter was not an illegal act, provided that the Court was satisfied that the identical cargo, which had been originally shipped in the January preceding and no other, was again put on board. These are the general facts of the case, and common both to the ship and cargo. I apprehend that when this vessel came out of the Gulf of Prima facie, Riga, or before she came out of the Gulf of Riga, she was leavmg a block- liable to detention by any of her Majesty's cruizers who were ^^^ P°^ '^'^^ maintaining the blockade established on the 19th of April; and UaUeto it becomes, under circumstances like these, the duty of the 'l^tsntion. claimant to establish his title to restitution. Prima fade, every vessel whatsoever laden with a cargo, quitting a blockaded port, is liable to condemnation on that account, and must satisfactorily establish her exception to the general rule. I apprehend further, that when a laden vessel coming out of "^^bk cause a blockaded port has been taken by a ship of war, it never for detention. could be contended or maintained that such vessel was detained without probable cause. The very fact of coming out of a blockaded port with a cargo is probable cause for detention, (a) (a)Onthe3rdof August, theMeck- unless they were satisfied that they lenburg and four other ships, seized formed exceptions to the rule, that a under similar circumstances to the vessel leaving a blockaded port with present, were restored upon payment a cargo was liable to condemnation, of captors' expenses ; the Court ob- At first appeals were entered on behalf serving that the principle applied by of the claimants against these judg- LordSfoujeMtosuchcases was, that it ments, but they were afterwards was the duty of captors to bring such abandoned, vessels to the Court for adjudication, r2 260 PRIZE CASES. 1855. Judgment. The detention of the cargo is consequence of the detention of the ship. Ab to the cargo, the captors are entitled to their expenses: 1st, on general principles ; 2d, on the par< ticular circum- stances of the case. It is most im- portant that the Court should not restore except to the rightful and legal owners. The Court -will inquire into the municipal laws of other coun- tries only so far as may be It is clear that the cargo could not have been restored without the ship. If it had been contended on the part of the cargo that the cargo was not to blame, that it ought to have been restored immediately, then the answer is this : the cargo must participate in the lot and fate of the ship. If there was good ground to bring the ship to this country, then also there was good ground to bring the cargo. That follows as a matter of necessity ; consequently it is utterly vain to contend for costs and damages in cases of that description. The cargo has been already restored, and I am very clearly of opinion, that the claim or costs and damages has no shadow of foundation whatever. This will appear more clearly when I discuss the case of the ship, but, as far as I have gone, I am clearly of opinion that there is no pi*etence for such a claim ; and the question now is, whether I ought to decree payment of the captors' expenses. I am of opinion that I ought to do so. First, I ought to do it on the general ground that this was a vessel coming out of a blockaded port ; and that, availing herself of an exception to general principles, she was bound to prove that she came within it. It will never do to argue that you have no right to seize a vessel, and no right to detain her. It is impossible for the capturing vessel to ascertain what the case really is ; she has no opportunity of examining the documents, and no opportunity to enable her to pronounce a decided opinion on the subject. But I think the captors are entitled to their expenses on another ground, viz., that the cargo was partly unladen, and was after the establishment of the blockade again taken on board. This is another feature in the case ; and I am perfectly satisfied that these captors were justified in bringing the cargo in for adjudication, though the officers of the Crown did right in releasing it, and they are therefore entitled to their costs and expenses. With regard to the ship, independent of the cargo, very many objections have been raised to the restitution of the vessel, some of which I do not think it will be necessary to dwell upon at any length. She is sailing under Danish colours, and it is my duty to see that she is the property, strictly the property, of those who claim her ; for I know nothing more important in the discharge of the duties of a Prize Court than to take care it does not restore the property brought in by cruizers except to those wh:; are the rightful and legal owners. But other arguments have been addressed to the Court with regard to the Danish character in another sense of the tenn. A vessel may have, and in one sense be entitled to, a Danish character, because she is the property of Danish subjects, and THE ■■■ OTTO ANT) OLAF." 261 because she sails under the Danish flag ; and yet she may violate 1855- all the municipal laws of Denmark, Now, in a simple case „„„_„■ r ' r necessary, m depending upon the Law of Nations, and not depending upon order to see the peculiar construction of any treaty between Denmark and property Ve"- England, I am of opinion that it is no part of my duty to longs bonafide . ^ • . .^ ••11 i-T\ 1 Ti to the claimant, examme mmutely into the municipal law ot JUenmark, 1 have no right to look and see whether Denmark has been fraudulently treated by the parties who procured these instruments. The only purpose for which I can look into that question is to see whether the property bond fide belongs to Danish subjects. I have no right to penetrate into the mysteries of their institu- tions, or to see whether their directions have been substantially or at all complied with. I wish this distinctly to be understood, because a contrary doctrine would be most serious. In the case of the capture of any neutral vc-sel, which was bearing the neutral flag throughout the civilized world, I should have to examine into the pass, perhaps, of the kingdom of Hanover, of Mecklenburg, of the United States of America, or of the South American States, in order to ascertain whether the vessel that carried the flag of that particular state had complied with its particular municipal institutions. I never will enter on such a discussion, except for the purpose of considering whether the property is bonafide the property of the claimant. But the most serious objection ou the present occasion is ^'j^g^^g'^/^^g that which I am about to state. The claim is made on behalf master are in- of four persons, viz., of Jensen, Salomonsen, Hansen, and t^°']og°4rn-'' Dirck Carlsen Jans, who are all respectively subjects of tary evidence, Denmark; and certainly the evidence of the master does support the claim, for he says the owners are Carl Jensen, H. S, Hansen, Mr. Salomen, and Captain Jans ; therefore his evidence is in conformity with the claim. But I am bound to look at the documentary evidence, and see whether that supports the statements made in the claim, and supports the evidence of the master ; for I take it to be quite clear that if the claim and the evidence in preparatory differ from the evidence to be found in the documents, that is just the case in which the Court is bound, as common and ordinary practice, to require further proof. Of course the first document to which I look is the bill of The Ml of sale, sale, and that differs from the evidence given by the master, and also differs from the claim ; for the bill of sale, which bears date the 30th day of May 1854, states the vessel to have been sold to Mr. P. Brown, in connexion with these other gentlemen. There is, therefore, a difference from the claim ; and if I were to restore on this evidence I should restore on the affidavit of 262 PRIZE CASES. The admeasure- ment bill. The certificate of the surveyor. The sale is alleged to have taken place shortly after the commence- ment of the ■war from Bussian to Danish owners. The Court can look only to the evidence hefore it, and cannot sanction any attempt to introduce evidence irre- gularly. the claimant, and upon tlie evidence of the master, and not admit the title conferred on another individual by the bill of sale. But not merely the bill of sale, but all the other docu- ments in this case are equally in discordance with the claim and the master's evidence ; for instance, the admeasurement bill states her to belong to Messrs. Brown and Co., the owners, resident in Copenhagen ; in fact, setting them forth as having the greatest interest, if not the exclusive interest, certainly as the continuing owners, and as entitled to be considered in that light. That is one document; there is another document of exactly the same kind and character, I allude to what is called the certificate of the Captain Surveyor. He certifies the ship to belong to Carl Jensen, of Copenhagen, as if it had been the exclusive property of that individual. There is also a fourth document, in which the same person's name is given as being the owner. Upon this state of facts then, I should have no hesitation in ordering further proof; but there is additional reason for so doing, namely, that this sale, alleged to have taken place in June 1854, was a sale from Russian owners to Danish owners very shortly after the commencement of the war, and the Court, according to its ordinary rules, looks with great jealousy upon the sale of a vessel to a neutral subject at the commence- ment of war ; that would be an additional ground for further proof. But I am told on the present occasion that all this might be reconciled by bringing in the transfer, alleged to have taken place, from Brown to Salomonsen ; that the bill of sale has been shown to the Queen's Proctor, and, therefore, that the Court must take it into consideration. Now I neither can nor will do any such thing. It is utterly irregular to attempt to introduce into the case evidence not properly before the Court ; the evidence before the Court is that by which I must be guided. If there be such a bill of sale as that mentioned, it will be necessary to produce it if further proof is required. I agree that the very circumstance of handing over the bill of sale to the Queen's Proctor might induce him to restore, on the payment of captors' expenses, with which the Court has nothing to do ; but if it is brought under the cognizance of the Court, it is the strongest reason for doing that which I should have done without, namely, for directing further proof in this case. I do not think it necessary to travel into the circumstances as to the pass : whether the pass be, as has been argued on behalf of the claimant, a pass delivered in blank, and afterwards THE "OTTO AND OLAF." 263 on a certificate being obtained, filled up with an earlier date, ^ ^^^^' , and, consequently, with a date anterior to that of the transfer Judgment. itself, is a matter with which I do not think it necessary to trouble myself in this case, nor in any other, except for the purpose of ascertaining whether it is a bond fide document, where there is a doubt of the validity of the transfer. I restore the cargo on payment of captors' expenses, and I decree further proof as to the ship. It is quite in the power of the Court to direct further proof Fui'ther proof generally, or in any shape it thinks fit. On the present ^rti^o^aUeged occasion it will direct further proof generally ; and will require transfers, to be satisfied with respect to both the original and the second transfer. There is one observation I omitted to make, and it may be T^i^e " Soghsie." convenient to make it at once. On sevei-al occasions my time has'dapsed judgment in the " Soc/lasie," (a) has been quoted with respect to Court does not what I consider to be requisite and necessary after a purchase production of by a neutral of an enemv's ship, namely, the correspondence correspondence - J- , ' , so indispensable which preceded, the correspondence which attended, and the as in case of a correspondence which succeeded the transfer. Now I in no ''^''^°* transfer. degree whatsoever depart from what I said on that occasion, but it must be taken with an understanding of what were the facts of that case. In the case of the " Soglasie,'^ where I made those observations, the vessel was on a voyage immediately after the transfer ; but where it turns out that many voyages have taken place, and much time has elapsed, the Court will not expect in such case that there will be that correspondence attending the original transfer which might fairly be looked for when the vessel has only been lately purchased. The Queen's Advocate. — That would be the correspondence on board ; that would not depend on further proof. The Court. — That would depend on circumstances. Where ■^™™ '=°°" ,,, ., ... tmuance m a a vessel has been purchased by a neutral, and continued in a lawful trade, lawful trade for a considerable length of time, the presumption *}iepresump- P . . tic arises in arises in favour of the neutral, which would not exist provided favour of the it had been the first voyage. (6) "^°'''*'- (a) Ante, p. 106. (b) Further proof having been of November restored the ship upon brought in, the Court on the 27th payment of captors' expenses. 264 PRIZE CASES. 1855. Feb. 8,9, 21, and Aug. 6. Several vessels sold by a father, an enemy, to his son, a neutral, imme- diately before the Tvar, and only paid for in part, the reraamder to be paid out of the future earnings thereof, con- demned on the ground of a continuance of the enemy's interest. Transactions in contemplation of war must be considered in the same light and governed by the same rules as transactions flagrante bello. A neutral residing in an enemy's p, country as the^ neutral consul, but also trading as a merchant, must be regarded as an enemy. ^I^ THE " BALTICA," (a) Pygelstkom. This ship, under Danish colours, sailed from Copenhagen with a cargo of linseed, on the 21st of May 1854, arrived at Leith on the 29th, and was seized on the 31st of that month by the officers of the Customs on suspicion of being a Eussian vessel. At the commencement of the year 1854 the ship belonged to Mr. Sorensen, senior, a Dane by birth, but long resident at Libau as a merchant and Danish Consul. At the beginning of March, and antecedent to the declaration of war, it was said to have been transferred to Mr. Herman Alexander Soren- sen, his son, a Danish subject, said to be resident at Altona, on whose behalf as sole owner a claim was given in. The admission of the claim was argued on the 15th of August 1854, when the Court directed further proof with reference especially; 1st, to the date of the vessel's sailing from Libau to Copenhagen ; 2d, to the bill of sale, and the circumstance of the purchase ; and 3d, to the residence and national character of the claimant. On further proof being brought in, it appeared that there was no evidence as to the date when the ship sailed from Libau to Copenhagen, that the log commenced on the 19th of May, only two days before she sailed from Copenhagen; that the claimant in the month of February 1854, had been resident and carrying on business in London for two years previously, that on the 22d of that month he received in London a tele- graphic message from his father immediately to proceed to Hamburgh to meet him ; that he immediately proceeded thither and entered into negotiations with his father for the purchase of this and other vessels ; that he agreed to pay part of the purchase money with a sum of about 2,4201. which he then had in his father's hands, and to pay the remainder partly from the proceeds of the winding up of his London business, and partly from the earnings of the ships ; that some time in March he took a counting-house in Altona, and a place of residence in Hamburgh, and otherwise formally clothed himself with the Danish character; that the bill of sale, which purported to (ft) This was the first of several vessels seizerl in different British jiorts, and claimed by Mr. H. A. Sorensen, as a Dane and the sole owner. The Court decided to hear the arguments in all the cases before delivering judgment in any. The (Eolus was arsfued Feb. 21 and 22, the Amelie Feb. 22, the John Feb. 26, the Ariel June 13, the Ceres and the Industrie June IC. Though the circumstances of some of these cases varied, yet the principles involved were the same, and their condemna- tion followed that of the Baltiea. THE "BALTICA." transfer the vessel then lying at Libau to him, bore date the 5th of March; and thatM^r. SorenseUj senior, died on the 17th of May. The case was argued on the 8th, 9th, and 21st of February. The Queen's Advocate, ihc Admiralty Advocate, and Dr. Bay- ford appeared for the Crown ; Dr. Addams and Dr. Twiss for the claimant. Dr. Lushington. Before considering the facts of this and ^"3- ^^ the other cases, nearly similarly circumstanced, and the various " ^'""' ' points of law which may arise thereon, it may be well to state certain dates which have an important bearing on all these questions. The Russian ambassador left this country on the 8 th of War was February, and war was declared on the 29th of March 1854. jj^e ^f jj^g Looking at all the circumstances attending the political state alleged sale. of Europe, I think that it may in truth be said that, from the commencement of the year 1854, war was imminent in the sense in which Lord Stowell uses that and similar expressions, or in other words war was highly probable. The bill of sale in the case of the "Baltica' bears date the The bill of sale 5th of March in that year 1854. The bill of sale, therefore, March 5, 1S54. which is the conveyance of the vessel, took place after the war had become imminent, and before the actual declaration. The vendor was Mr. Sorensen, the elder, who died on the '^^ history of 17th of May following. His national character for the purpose of this transaction is beyond all doubt Russian ; more doubt arises as to the national character of Mr. Sorensen, the son, who was the purchaser of this vessel. At the period when these transactions originated in the month of February, Mr. Sorensen, junior, was carrying on a mercantile business In London, and, whatever was his origin, he must be as to trade considered a British merchant at that particular period. It appeared to Mr. Sorensen, the elder, and to other mer- chants at Libau, owners of vessels under the Russian flag, that, as war between Great Britain and Russia was probable, the preponderance of the naval forces of Great Britain was such as would seriously embarrass. If not wholly prevent, the profitable employment of vessels sailing under the Russian flag, and that, therefore, it was expedient to sell their vessels, though at a considerable sacrifice. Actuated by these considerations, Mr. Sorensen, senior, framed a plan for the transfer of his property. He appointed his son, then resident in England, to meet him at Hamburgh, and it appears that either on the 23d or 24th of February they met, and then came to an agreement. 266 The national character of the vendee. Originally Russian. Subsequently British. Did he divest himself of that character and hecome bond fide a Dane ? There is no doubt of his intention to do so. I'KIZE CASES. that he, Mr. Sorensen, junior, should become a merchant at Altona, and be the purchaser of the ships, or some of the ships, in question. With respect to the payment for these vessels, it ■will be a question requiring, presently, the attention of the Court. Mr. Sorensen, junior, assented to this arrangement, and then, or shortly after, — the precise time matters not, — Mr- Soren- sen undertook to be the purchaser of all the vessels, the fate of which is now under the consideration of the Court, and in pursuance of that plan, he, in the beginning of March, took a counting-house at Altona, on the 8th of March was admitted a burgher of that place, and subsequently resided at Hamburgh, in the manner deposed to in the evidence in this case. I shall now address myself to the question, which has been much discussed at the bar, namely, what was the national character of Mr. Sorensen, junior, at the time when these contracts were entered into and completed ? Much has been said as to the domicile of origin of Mr. Sorensen, junior. I wiU briefly advert to it, though I do not think it has any strong bearing on the case, for the question before me is that of mercantile national character, which is governed by rules and by authorities particularly applicable to it alone. I think I should only confuse the case by following it up in reference to other cases of domicile, therefore, I shall abstain from so doing. Mr. Sorensen, senior, was a Dane by birth, and Danish Consul at Libau, but long settled at that place as a merchant. His son was born at Libau, and until his son acquired another mercantile national character, he mtist, being resident at Libau, have inherited that of his father, at least so long as he continued to reside there. I am of opinion therefore, that Mr. Sorensen, junior, remained a Russian until he came to England, but that he did acquire a British mercantile national character, and at the commencement of this transaction he was to be considered a British merchant. When then, and how, did he become divested of that national character, and become entitled to call himself a Dane ? This question appears to me to turn upon divers considerations. It was no doubt fully competent to Mr. Sorensen, junior, bond fide to abandon his British character and assume the Danish. Did he do so animo et facto is the question. As to his intention, it appears to me that the probability was in favour of his becoming a Dane, and for obvious reasons. The very object of the purchase of these vessels was to carry on trade as a neutral merchant, and this object, of course, could not be effected if his national character was cither Russian or British, and if he desired to be invested with a neutral character it is most THE "BALTICA." 267 probable that he would select a Danish donaicile, — most probable 1865. because it was the domicile of origin of his father, and was judgment. best calculated to further his mercantile pursuits. I see no reason to doubt the bondjide intention of Mr. Sorensen, junior, to assume that character. Then, as to the fact, it appears to me that '^^'^^^ is, too, Mr. Sorensen did, as speedily as was couTenient, carry that inten- of Wstovrng" tion into effect, he did proceed to wind up his affairs in England, carried that IT 1,1 .•! .1.-.- intention into he did take a countmg-house at Altona m March, and he did effect. take lodgings at Hamburgh, and upon the authority of the case of the " Conferensrath "(a), I am of opinion that the residence at Hamburgh must be taken as equivalent to a residence at Altona. I have come to the conclusion, therefore, that Mr. Sorensen, junior, at the time when he made this claim was not in error in ascribing to himself a Danish national character, but at what particular time he became entitled thereto might, if it was neces- sary narrowly to investigate it, be a matter, not only of some but of very great diflSculty. I have considered all the autho- ^ merchant ,,. !•, iTi-ii n • 1. .1 obtains a new nties on this subject, and i think the fair result is, with respect national charac- to a mercantile national character, that the party becomes ter when he first ' . takes steps clothed With a new character from the period when he first animo removendi takes steps animo removendi to abandon his former domicile, and form™ domicUe animo manendi to acquire a new one; and I think the claimant andoMmo is fairly entitled to a liberal consideration in this respect. At acq^e a^new the same time, I place very little reliance upon the mere °"c. formality of becoming an Altona burgher. Such common form proceedings are little more than nominal, and obtainable at the expense of a few dollars. I have now arrived at the following state of facts, that at the The initiatory interview between the father and the son when the contract was this' transfer first entered into, Mr. Sorensen, junior, was to be considered were taken "whon. tli6 a British merchant ; that is, on the 23rd or 24th of February, vendee was From that time he purposed to become a merchant of Altona, ^ British , , , , . merchant. and from the period of his taking his counting-house and beginning to reside at Hamburgh he became an Altona merchant. It is necessary to bear these dates strictly in recollection in order to pronounce anything like a clear opinion upon these transactions. The interview with the father was at the end of February, vs^hen Mr. Sorensen, junior, was undoubtedly a British merchant, according to his national character; at the time of the completion of this transaction The final when , , , , T-. he was a Dane, he had become a Dane. Now on this state of facts, the first question which arises Q«'"ied the where payment is made of the purchase money, the title of the m transitu or vendor divested, and no interest remains in him of any kind ; Z,^^^°'^^^'^^^ 270 PRIZE CASES. 1856. and it matters not generally speaking where the ship was lying Judgment, ^t the period of such a sale, provided she was not in transitu, nor lying in a blockaded port. The principle upon which such a law is founded, I conceive to be this, that such a course of trade is the ordinary course of commerce during peace, and that, therefore, the neutral merchant is entitled to carry it out during war, when no special belligerent right intervenes to prevent him. This is the law aa laid down by Lord Stowell in the "Seeks Geschwistern" ,{a), and so far as this law is in favour of a neutral, it must be at least equally operative where the purchase of a vessel takes place before the commencement of hostilities, but where they are imminent. ^'ttirprraent^ "^^^^ being so, there appear to me to be only two circum- caseisthenum- stances requiring consideration with reference to this and the included in the Other cases. These two circumstances are, first, the completion same purcliase. of the purchase by payment ; and, secondly, the number of vessels bought by the same purchaser under similar circum- The payment stances. That complete payment has not been made is an ■was to be com- i • n <> , • n i i i ■ • i ■ pletedoutofthe admitted tact in all these cases; that there is a stipulation to earnings of the complete the payment out of the earnings of the vessel is vessel. . . also an admitted fact. Does the right to demand the appropria- tion of the freight for this purpose constitute an interest in the ship within the meaning of the expression used by Lord Stowell ? The great principle by which I am to be guided in this inquiry is whether this is a transaction such as would accord with the ordinary course of neutral trade, by which I mean, not the purchase of this particular ship per se, for no one can doubt that this ship would not have been sold, and certainly not for the price, save from apprehension of the war ; but whether, independently of that motive, the transaction itself, the mode of sale and of payment, was accordant with the ordinary custom of merchants during peace. I say so for this reason, that the general rule, subject to exceptional belligerent rights, is, that the neutral subject shall be allowed during war to carry out the same commercial transactions which he was entitled to carry out during peace, but that he is not permitted in war, to the disadvantage of one belligerent, to engage in commercial concerns which were not open to him in peace. When I use the expression not open to him during peace, I must not be understood to mean prohibited by any lawful authority, but concerns into which, from the state of trade, there was no opportunity, or temptation, or occasion to enter. I do not (a) 4 C. Rob. 100. THE "BALTICA." 271 mean transactions at all times lawful in themselves, but foir 1855. which during peace there was no temptation or occasion. Judgment Now, first, I will consider the question of such a purchase The doctrine during war, and here I have the inestimable advantage of Lord Lord SfoLcKm iSfoioe/Z's judgment in the "■ Sechs Geschwisterri" (a), the question the "5'ecAs as to the purchase of a ship, lying in the enemy's country, of thattheeuemy's an enemy, — for that is the case rather, — by a neutral merchant, interest in the was greatly discussed. In that case Lord Stowell said, that must be totally property so transferred voMsthe bond fide, and absolutely trans- '■i^ested. ferred, and that there must be a sale divesting the enemy of all further interest in it ; — I use his own expressions, — that any- thing tending to continue his interest vitiates a contract of this description altogether. Again, the enemy's title must be absolutely and completely divested. He said further in that case, there is an agreement by which the purchaser mortgages the brig, deducting the sum paid on account. Under such cir- cumstances, he said, the ship would stand bound for the whole amount, and it could not be said that the interest of the former owner was divested. From these rules arise two propositions, first, whether these rules which were laid down for a transfer during war are applicable to the transfer of a ship, war being imminent, but not declared ; secondly, the true meaning and efiect of the rules themselves and their applicability to the transfer in question. I will take his propositions in their order. I have stated In this case the that, as to the fact, there is no doubt that these transfers were transfer is ^ made when war was imminent, and that the object, for it is admitted to admitted on all hands, was to rescue the property of those who rescue the became enemies from the effects of that war ; in truth, all the enemy's pro- . perty irom the bargains were solicited and made, not at the instance of the perils of war. purchaser, but by the authority and influence and urgency of the seller. The principal authority cited to maintain the position that ^i^fJanFre- • J . derick it was the transfer of this ship was illegal on account of the war being held that a sale imminent was the " Jan Frederick:' (b) In that case a contract ■j"gg"i"^'"^eif made in contemplation of war for the transfer of property on the approach in transitu -viSiS held illegal, and it was held illegal upon the ^J^rasdunng ground that such a transfer in transitu during war was clearly illegal by the Law of Nations ; being illegal during war, it was held to be illegal during the approach of war. Lord Stowell was of opinion, that in the case of a war being imminent, the (a) 4 C. Rob. 100. in argument by the Admiralty Ad- (J) 6 C. Rob. 128. Strongly pressed vocate. PRIZE CASES. same fraud was committed against the belligerent as in the case Judgment. o^ ^"^ actual war. The present Is this authority then properly applicable to the present case, ^at'different. ^^ ^^'^ i^esQ not facts on which that judgment was grounded which do not apply to the case under consideration ? There are some differences. In the case of the " Jan Frederick," first, the property was in transitu, and, secondly, it was perfectly clear in that case that a transfer similar in terms The "Samuel" during war would have been illegal. In the case I am con- sidering, a transfer during war from an enemy to a neutral, would, on the authority of the " Samuel," (a) cited by Dr. Twiss, if everything else were correct, be legal, even although the ship might be lying in another port. But I must observe, that the " Samuel" was a case of the transfer of an enemy's ship not in transitu, but lying in an enemy's port. I am of opinion, therefore, that in some respects the two cases differ, and that the case of the " Jan Frederick" so far as it relates to a transfer in transitu, does not support the proposition intended to be maintained by it. The result of Isasv as the Case of the " Danehebaar Africaan " (b) is merely the several eases ,^,.™, ,i pi is that a trans- the foundation of the ^'Jan Frederick" and does not go further, wouM be'^meo-al "'■ ^^^^ °°* advert to it. But though I discard the "Jan during war is Frederick" as any authority for the purpose of placing this in contempfa- ®^^P ''^ precisely the same position as the property condemned tionofwar. was In the case of the "Jan Frederick," yet I conceive it to be an authority and of the very highest weight for another and Infinitely more Important purpose. I consider it to be an authority to this effect, that when war is imminent, the transfer by an enemy to a neutral of a ship belonging to the enemy should be governed by the same rules which apply to a similar transfer during actual war ; that as far as a transfer during actual war would be legal, so would it be when war was Imminent, but not otherwise, or further ; and that if this trans- action was Illegal during war, it would be Illegal in contemplation of war. I conceive that Lord Stowell intended to lay down as a principle to be acted upon, that In all transactions coming within the cognizance of a Prize Court, the attempt to elude a belligerent right either present or expected would not be permitted. The question for the consideration of the Court being whether the facts are sufficient to establish the attempt to elude a belligerent right, I think that in these respects the "Jan Frederick" and the present case agree. The transfer in the " Jan Frederick " was formed for the purpose of preventing capture if war should break (a) 4 C. Rob. 284 note. (6) 1 C. Rob. 112. THE "BALTICA." 273 out during the intended voyage. The sale of these vessels ^^^5- was intended to attain a similar result, namely, to place the Judgment. property by such sale out of the reach of capture by the belligerent. The same principle must be applied to both cases, but in a Hence the different degree. In the case o?i\\Q "Jan Frederick;' t\i& transac- rJgSnga tion during the war would have been wholly illegal, therefore, transaction taking place just before the commencement of a war it was held durin^^^ar^ to be equally illegal. In this case the sale during war would ™"^* be applied not have been absolutely unlawful but must have been fenced transaction in by certain regulations, and therefore I hold that taking place of"^^"!"'^**"" when war was Imminent it must be fenced by similar rules. In order to ascertain what these rules really are, we must again refer to the judgment of JjovAStowell in the "Sechs Gesch- tcistern." (a) Unfortunately that case is mixed up with facts having no reference to the present, which renders it somewhat more difficult to ascertain the precise effect of Lord StowelVs observations. I am inclined to hold that the present sale was bondjide, but This transfer whether it was a sale divesting the enemy of all further interest i,een bona Me in the ship is another and a different question. Lord Stowell but the enemy has added, that anything tending to continue the enemy's interest in the interest would vitiate a contract of this description altogether, ship, in so far as _^ til6 r6Slull6 of Then if payment has been made for this ship in part only, and the purchase there is a stipulation that the remaining part shall be paid for ™ouey ^as to out of the freight, and that the freight shall be appropriated her earnings. to such purpose, can it be truly said that the enemy vendor has ceased to have any interest in this ship? Clearly he has an interest in the earnings of the ship. What is the meaning of "interest in the ship" according to the sense in which Lord Stowell intended to express himself? All who are con- versant with Lord StowelVs judgments, must be aware that he was not in the habit of using technical expressions in the same manner in which they are most properly employed in Courts of Common Law. His language was generally so framed as to convey an intelligible idea, even to the most unlearned, and when he used the word interest, I have no doubt that he did not mean what would be called in municipal law any legal title to the whole or part of the property, but rather, — howso- ever effected, — what would give the enemy vendor a pecuniary claim to or against the ship itself, or anything connected with the ship, either directly or indirectly. Directly there is no claim against the ship, save what arises from the nonpayment of the whole of the purchase money. (o) 4 C. Rob. 100. S PRIZE GASES. How, then, does this affect, the validity of the transaction ? Jvd ent Let us trace the claim as far as it is possible to do so to the Does such a end. It may be that it does not give the vendor any direct remaining qI^Ij^. against the ship itself, though of course the vpndor will theshipUaWeto have a right to sue the purchaser for the price unpaid. It may condemnation? ^^^ indeed, that in some countries and before some tribunals, the authority of the law would, in such a state of things, attach the ship itself. If the ship had been mortgaged for the sum due, no doubt the ship might have been seized. Is this the sort of interest contemplated by Lord Stowell ? Having, I say, weighed these matters with repeated and pamful consideration, I have asked myself the question again and again, whether I put the matter fairly in asking whether this is the sort of interest understood by Lord Stowell. But I put it in another shape, and perhaps in a more proper shape, for I think the more proper mode of putting the question is, suppose this question had arisen bello flagrante, would the transfer, where the payment was made as in this case, have, sufficed to protect the property from condemnation ; supposing the purchase to have been made bond fide, would it have been sufficient ? trnquestionably jJqw I am of Opinion that I should, without doubt on hesita- it would nave . '^ . , done so, if the tion, have condemned property so circumstanced, and on several transfer had grounds. First, because the enemy's interest was not wholly flagrante bello. divested ; secondly, because if part payment were allowed to suffice it would be difficult, nay, it would be wholly impossible, to fix the proportion, and admitting part payment to be suffi- cient, would of necessity increase the facility of protecting the shipping of the enemy from the effects of the war, for no man could say that if two thirds would be sufficient as a payment for the vessel, why one third should not, or even a less pro- portion ; thirdly, I am of opinion that in such a class of cases as this, the very number would take them out of the ordinary course of trade. ^e*principleof Then, if these vessels would have been liable to condemna- the" Seeks tion if transferred during war, are not the same principles to be the sale having ^.pplied to a Similar transaction on the very eve of a war ? I am taken place of opinion that the "Seeks Geschwistern" is a direct authority for imminente bello .1 a^ ,• n .1 • the remaining t"e ainrmative 01 this proposition. enemy interest But what after all is really the true character of all these fiscable. transactions ? Not the fair and ordinary employment of neutral The peculiar capital in commercial transactions, but, war being on the very thStransaction P°^°* °^ breaking out between Great Britain and Russia, do not entitle it Certain Russian shipowners, anxious to withdraw their property^ to any favour. Jq gjjjpg fj.^^ ^}jg ^^^^^ power of Great Britain, should war, as THE "BALTICA." was expected, take place, or in other words, — to use the very expression of Lord Stoicell in the "Jan Frederick" (a), — to protect the property "from the danger of capture when it should occur," devise a scheme whereby all these ships should be trans- ferred—to whom? To the son of a gentleman, the owner of four other ships at least, who, to all intents and purposes, was a Russian merchant — to a o-entleman who at that time o had a British national character, and who had little or no capital, certainly not sufficient capital to pay for them ; for it is an admitted fact, that the purchase was to be carried out in some cases by a stipulation as to the freight, and in some cases by the personal credit of Mr. Sorensen, senior ; and further, for the very purpose of completing this transaction, Mr. So- rensen, junior, is to abandon his British character and to 275 1855. (h) 5 C. Rob. 132. Lord Stowell says, " That a transfer may take place in transitu has been decided in two or three cases where there had been no actual war, nor any prospect of ■war mixing itself with the transac- tion of the parties. But in time of war this is prohibited as a vicious contract ; being a ftaud on belligerent rights not only in the particular transaction, but in the great facility which it would necessarily introduce, of evading those rights beyond the possibihty of detection. It is a road ihat in the time of war must be fhut up ; for although honest men might be induced to travel it with very innocent intentions, the far greater proportion of those who passed would use it only for sinister purposes, and with views of fraud on the rights of the belligerent. This however is not a contract made in time of war ; and therefore an im- iportant question is raised whether the contemplation of war would have the same effect in vitiating these contracts as actual war ? It cannot be said that all engagements in the . proximity of war, into which the speculation of war might enter, as, for instance, with regard to the price, would therefore Le invalid. The contemplation of war is undoubtedly "to be taken in a more restricted sense. But if the contemplation of war leads immediately to the transfer and becomes the foundation of a contract that would not otherwise be entered into on the part of the "seller, and this is known to be so done in the understanding of the purchaser, though on his part there may be other concurrent motives, as in the case of the " Rendsborg," such a contract cannot be held good on the same principle that applies to in- validate a transfer in transitu in time of actual war. The motive may indeed be difficult to be proved, but that will be the difficulty of particular cases. Supposing the fact to be established that it is false under an admitted necessity arising from a certain expectation of war, that it is a sale of goods not in the possession of the seller, and in a state where they could not during war be legally transferred on account of the fraud on belUgerent rights, I cannot but think that the same fraud is com- mitted against the beUigerent, not indeed as an actual belligerent, but as one who was in the clear expecta- tion of both the contracting parties hkely to become a beUigerent before the arrival of the property which is made the subject of their agreement. The nature of both contracts is identically the same, — being equally to protect the property from capture of war, — not indeed in either case from capture at the present moment when the contract is made, but from the danger of capture when it was likely to occur. The object is the same in both instances, to afford a guarantee against the same crisis. In other words, both are done for the purpose of eluding a belligerent right either present or expected. Both contracts are framed with the same animo fraudandi, and are in my opinion justly subject to the same rule." S2 276- 1855. Judgment. The transfer •was an inge- nious scheme to defeat the just helligerent rights of Great Britain. ITeutral nations have no right to lend their flag to protect the shipping of the enemy. All the vessels claimed by Mr. Sorensen are in ea^em conditione And must be condemned. PRIZE CASES. become instanter a Dane, and Danish colours are to be hoisted on board all the ships. Now I think it must be admitted that this has been a most ingenious scheme to rescue the property belonging to those who became hostile from the risk of captui-e by British ships. We all know that one of the most efficacious means in the posses- sion of Great Britain to carry on this war, and that which is universally allowed by the Law of Nations, was the capture of the mercantile navy of the enemy. Tlie present scheme was a crafty device intended to defeat that right when it should arise. I am, therefore, of opinion, that on the authority of the "Jan Frederick^' and also in full accordance with the principle of the Law of Nations, this property is liable to condemnation. I feel fully assured that no neutral state is entitled to complain of what the Court has done, for I am clear that it is not the honest employment of neutral capital in any ordinary sense of the word ; nor is it an ordinary and accustomed course of trade, nor is it to be expected that, any neutral state will be prepared to maintain that their national character and their national flag should be assumed for the avowed purpose of withdrawing the shipping of the enemies of Great Britain from her just right of capture. I am of opinion that according to the principle by which I must be guided, all these vessels claimed by Mr. Sorensen stand in eddem conditione, and must be condemned. They all fall within the application of the same principles, and cannot be favourably distinguished. Some of the cases indeed, as the " Ceres " are open to further objections, but I do not think it necessary to notice them, I decide the case on broad grounds. I decide it on the ground that the whole was a scheme to defeat the right of British capture, a scheme not permitted by the Law of Nations, and one which I, on the authority of the cases cited, am bound to visit with condemnation. August 11. The Court can- not restore to a person who claims as sole owner, when others appear to have an in- terest in the property; and it cannot allow further proof THE « NINA," Stipanovich. 1 HIS vessel arrived at Ipswich on the 14th of May 1855, under Austrian colours, and upon the 4th of June, after her cargo had been discharged, was seized by the officers of the Customs on suspicion of being Russian property. A claim was made on behalf of " Martino Gherdacovich, of Costrena, near Fiumd, in Austria, shipowner, a subject of the Emperor of Austria, as the sole owner thereof." THE "NINA." 277 The master, mate, and two seamen having been examined on , 1855. ^ the standing interrogatories, the case now came on for hearing ^jj^^ jj jg on the admission of the claim. satisfied that no The Queeti's Advocate and the Admiralty Advocate for the proof could seizor contended to the effect of the judgment of the Court; alter the com- Dr. Addams and Dr. Bayford for the claimant submitted that case. it was a case for further proof, that the documents before the The suppres- Court might be explained, and the seeming discrepancies in the p°" "g ^^^ ^^ evidence reconciled by further proof, and that no injury could prevarication 1, , ,1 . , ,1 T 1 of the master result to the seizor by the delay. also afford grounds for . refusing further Dk. Lushington. It is admitted on behalf of the claimant proof. that he cannot ask for anything more than further proof, in judgment. order to clear away the difficulties which, it is asserted and indeed not denied on the part of any one, exist in this case. Having read all the papers before I came into Court, and The Court having attended to all the observations of counsel on both doubt on the sides, I think it wholly unnecessary to delay my decision, case ^m not being perfectly satisfied that I should never alter my view decision. of this case, though, perhaps, if I occupied further time before I delivered my judgment, I might make it a little clearer, or carry it to greater length. The claim is made on behalf of a person of the name of It has heen Gherdacovich, of Costrena in Austria, and it was stated that \^^ originally originally it was the intention of Baron Eothschild to have the intention of made the claim as Consul-General for Austria, and so it appears neral of Austria uDon the face of this claim. Now really that has nothing to to claim the . i-iT \ 3 • 3 p ^ 1 ship, out that do with the question which i am about to decide, tor whether would have the claim is preferred by one individual or by another, the ^^^fi^t^e*^"' Court abides by its general rules and principles, without any decision of the regard to persons or individuals. No doubt it was exceedingly SlTnl' to^d^- proper in this vessel's master to take the advice of the Consul- nister the Law General of the state to which he claimed to be a subject, and without°TCspect for auo-ht I know, he might have applied also to the Ambas- to persons. sador ; but even if that were the fact, it would not make on the mind of the Court even the very slightest impression, for I am neither to be influenced nor in the slightest degree governed by the opinion of any person, nor by anything except what I deem to be the Law of Nations as administered in this Court. If the master did make application to the Consul-General in due time, it was unfortunate that from some cause or other he did not receive that advice which would have enabled him, I trust, to have conducted himself with greater propriety than he has done towards the officers of the Customs. Instead of aflfording every facility for bringing in the papers, and for the 278 PRIZE CASES. examination of himself and his crew, he folded his arms, arid if not actively engaged in preventing the inspection of those' papers, rendered no aid, and certainly prevented the examination of himself and of those on board; but I do not attribute that to the advice of his Consul ; I should be exceedingly sorry so to do, because, undoubtedly, if that was so, whether it emanated from consular or any other authority, it would tend to indispose the Court from giving due consideration to persons filling those , high offices, ^e fects of Now what are the facts of this case ? The ship was originally a British, then a Russian vessel, but as represented became Austrian in the year 1853, at what particular time is uncertain from these papers, in which, although the vessel was represented , to be an Austrian vessel in the month of July 1853, yet she did not become so till the month of November in the same year. Now at that period I have no hesitation in saying, that if a Russian owner was desirous of changing her character by sale, it was competent for him so to do, and equally competent to the Austrian subject to buy it, provided only the transaction was fair, and the Russian interest was divested, and the Austrian flag properly assumed under the authority of that country, that country not being deceived by any false repre- sentation, and the owner being entitled to a national Austrian character. The Court can Such being the facts in the case, the vessel has been claimed any claimant, ^7 ^^- Gherdacovich as the sole owner of the property, and unless the pro- -tJje Court can decree restitution to this claimant on no other perty oelong to iii. u-.i .-,■■ him hma fide, ground than that he himselt is the person solely entitled to it. and no other Even if the case should be made out bv further proof, which person has any , . , . r ' interest therein, appeared to me to be a little inadvertently suggested to the Court, namely, that he had the legal title in this property, but in reality other persons in conjunction with him were interested in the ship, be they who they may, unquestionably I could never restore on this claim. The Court will never restore on any claim, unless it is satisfied that the property is bond fide the property of the individual who claims it, and if it finds any other interest lurking out in any shape it is quite sufficient for me to pronounce against that claim. There are two points then which arise for the consideration of the Court in this case independently of the many questions and the many doctrines which have been ably discussed at the bar. The national The first question is one that might be a matter for further; character of p^Qof, viz:— Whether Mr. Gherdacovich was of Costrena, or THE "NINA." not? What do I find in the evidence? I find the master swearing in no very credible or satisfactory manner, first, that ^^ , • he had been resident at Costrena 16 or 17 years, and then very doubtful. that he was resident at Odessa, but when and where he knew not, though it appears beyond all doubt and question, that this Mr. Gherdacovich put him in possession of the ship in 1851, at Odessa. He might have had, 1 think, the means of giving us a little more satisfactory information of the residence of Mr. Gherdacovich at Odessa. But what do I find besides ? Without entering minutely into the particulars of this case, I find Mr. Gherdacovich in 1854 resident at Odessa, both in the month of April, and also of November. Now these circumstances excite very great suspicion as to whether Mr. Gherdacovich is really entitled to be considered an Austrian subject, according to the sense in which the words must be understood in this Court. It does not follow, as seems to -A. merchant be imagined, that, because this gentleman might have been born tional character of Austrian parents, might have been resident at Costrena, and ^'■°™ *^* <=°""- • 1 1 1 -11 I- 1 ^■/> 1 trywherehe might have gone there occasionally or frequently (it he was carries on his carrying on trade and business at Odessa), therefore he would '*™*'*' be entitled to come before the Court and claim restitution in an Austrian character. He must be bound by the character of that place where he was resident, and carrying on his trade, and to which the transaction properly belongs. I men- tion this, because at the commencement of the transaction, when Austrian colours were assumed, matters appear through- out the papers, which are explained in a very unsatisfactory manner to the Court. It seems to have been thought by the parties, that they were at liberty to change the national character of the vessel without the slightest regard to the reality of the transaction, on the mere representation that they wished to obtain, first, Austrian colours, and then any other that might suit the purposes of trade. If that be so, — I do not say it is in the case of Austria, as I regret to say it has been in other cases, — the grant of the national flag has been made without a just regard to the rights of the belligerent. Supposing I got over that, what is the next point ? I have I' is said that already said I can restore to nobody but Mr. Gherdacovich, .^ould aiter°the as sole owner. What then is the state of the papers ? I am complexion of told, — very cautiously, certainly, for counsel abstained from stating the mode and manner in which they would effect their object, — that, if I will but shut my eyes and open my ears they will find the means of proving Mr. Gherdacovich to be the sole owner. . Notwithstanding the documents under my eyes, they will find the means, whereby in reading them, I 28a Further proof could only lead to a falsification of the papers. Besides there has heen a suppression of papers ; and the evi- dence of the master is in the highest degree unsatisfactory. PEIZE CASES. shall be enabled to put on them a construction totally and -wholly incompatable with that sense which they bear upon the face of them. How, I ask, is this to be done? I again refer to those words, which I read before in the course of the argument, " I know you would be pleased to proceed on your voyage to the Adriatic, I would consent to it, but you know well that I am not the sole owner, and must execute the orders of my partners." (a) Now, if it were to be proved by any evidence produced in the case that this gentleman was sole owner, it would, as the learned Queen's Advocate has said, be in direct contradiction to the construction which any man of common sense must put on the words to which I have referred. But does the case rest here ? Not only would it be in direct defiance of that meaning, but in direct contradiction of the whole of the correspondence, because there are letters upon letters in which Signor Cossio is represented as having an interest in this vessel, in which Anatra, living at Odessa, is represented as having an interest in the vessel; and when I see that the construction I put on these words, — and no man living can put another, — is in direct accordance with all the other documentary evidence, can I, under these circumstances, allow further proof, the very object of which would be to falsify the whole of the papers ? I am of opinion that upon this ground alone, I must not allow further proof; but there are in this case a variety of other reasons which fortify my opinion, and which seem to demand from the Court that determination which I have now expressed. I will make every possible excuse for this man being a foreigner, every possible excuse for his not understanding what is meant by a suppression of papers, but it is clear that he, through an agent, was concealing papers from the seizors, and preventing them obtaining possession of the papers which by the Law of Nations this Court is entitled to require. Nor is this all, more unsatisfactory evidence the Court never had occasion to read. Can I believe that this person, who was appointed by the owners in 1851, and had been master ever since that time, was so ignorant of the ownership of this vessel that if the claim were such as it is represented to be, viz., a sale or transfer in November 1853 to the present claimant, he could not have given the Court some rational exposition of the (a) Cited from a letter of the claimant to the master, dated "Trieste, 6th June 1855." THE "NINA." 281 subject? The paper marked No. 101, (a) shows that in 1851 1855. Cossio and Co. were the owners, and the master must have judqmen't known, what was obvious to every man of common sense, that there was a transfer, — I do not say a culpable transfer, — for the purpose of getting rid of the Russian national character and taking the Austrian national character. He must have known who the Russian owners were who executed the conveyance, and he must have known something of the consideration which passed if it was an honest and just transaction. I condemn this vessel, and I regret that in the first case of Condemnation, a vessel coming before this Court iinder the Austrian flag, it is my duty to pronounce that sentence. I shall always be ready to give that flag as indulgent a consideration as the Law of Nations will permit ; but, at the same time, I trust that the Austrian Government will take care not to allow its flag to be prostituted for the purpose o^^rotecting the property of an enemy from the just rights of a belligerent. (5) THE " NEPTUNE," Keetley. Nov. 20. This ship arrived at Hull under the Russian flag on the A Russian ship. ^ , . ° _ coming mto a 29th May 1854, with a cargo from Kertch, in the Crimea. British port Having left that place on the 26th March, she was protected ^"timof the°' by the Order in Council of the 29th March (c), but after Orders in she had discharged her cargo on the 29th of June, instead of discharging departing forthwith, she was removed the next day to Great ^^^ cargo, ^ . , , , , . . , instead of Grimsby, where she has ever since remained. departingforth- It appeared, from documents and affidavits produced, that in ■«fitli was sold the early part of June 1854, negociations were entered into subject and between Mr. Robert Keetley, of Great Grimsby, and Jacob B^li^^^^port ^ Ljoberg the Russian master, who had a power of attorney She -was seized, authorizing him to sell her, for her purchase. An application taken^ao^lnst? was then made by the Russian master to the Customs autho- her, but before rities for information whether he might sell her instead of admission of departing, and whether a British register would be granted to claim, the , . , , , r ,1 1- • 1 -.T . , Admiralty her. A letter was sent by one 01 the solicitors to her Majesty s proctor, by- Board of Customs in London to the Customs authorities at direction of the ' (a) The description in the abstract 1851. Signed Martino Gherda- is, as follows : " An inventory of the covich." barque Nina, under the Russian flag, (6) This judgment was appealed the property of Messrs. Bartolomeo against, but was affirmed with costs, Cossio and Co., commanded by Cap- Feb. 11, 1856. Vide post, p. 345. tain Martino Stipanovich. Dated (c) Vide Appendix iii. Gavano di Odessa. 7/19, September 282: PEIZE CASES. 1865.' Lords of the Admiralty, declared " that he proceeded no further, but reserved the question of costs and Held, 1st, the declaration does not neces- sarily entitle the claimant to costs, it being always in the power of the Crown to stay theproceedings for condemna- tion. 2d. The purchase of the ship by a British subject was a trading with the enemy not specially permitted by the Orders in Council, and, therefore, illegal. 3d. Tor these reasons, and also for illegal opposition to those who seized the ship, under the authority of the Court, the claimant must be condemned in the costs. Grimsby, who thereupon Informed, the Russian master that 'if his vessel was sold bond fide a British register would be granted. It appeared that application had also been made on behalf of the alleged purchaser to the Commmlssloners of Customs in London, and that one of their solicitors had expressed his opinion to the feffect that the sale would be legal, and that, if proved to be bond fide, the ship might have a British register granted. Accordingly, Mr. Robert Keetley, In the month of June 1854, purchased the ship for 2,800Z. He afterwards had her 1 • ^y ^ belligerent reserved to himself or granted to his enemy. But their Lord- in his own ships have great difficulty in assenting to this proposition. In ^^^"""^ ^ ^°*the the first place, the particular relaxation, which may be of the allo-wance of greatest value to the belligerent may be of little or no value ^uVence tothe to the neutral. In the instance now before the Court it may neutral, have been of the utmost importance to Great Britain that there should be brought into her ports cargoes which, at the institu- tion of the blockade, were in Kiga ; and it may have been for her advantage, with that view, to relax the blockade. But a relaxation of the blockade to that extent, and a permission to neutrals to bring such cargoes to British ports, may have been of little or no value to neutrals. The counsel ou both sides at their Lordships' bar understood that the learned Judge in this case intended thus to limit the rights of neutrals, and to place neutral vessels only in the same situation as Russians, under the Order in Council. Their Lordships would be inclined to give a more liberal interpre- tation to the language of the judgment ; yet if this be done, the allowance of a general freedom of commerce, by way of export, to all vessels and to all places from a blockaded port, seems hardly consistent with the existence of any block- ade at all. Attain, it is not easy to answer the objections which a neutral Sembk, that might make, that the condition of things which alone autho- "Jg^^'J^oes rizes any interference with his commerce does not exist, \\z., the conditiro- (a) 6 Rob. 372. (6) 1 Dods. 13^. 296 PEIZE CASES. 1?55. ■which alone justifies any interf^n-ence ■svitli the cora- utercc of a neutral does not exist. The ambiguity of the Order in Council affords a strong argument against the ■validity of the Wockade. If a modified hlockade is to be enforced, neutrals hare a right to be fully apprized of the nature of such modi- fication. A neutral can- not be obliged to speculate on the probability of the establish- ment of a legal blockade de facto, ■when he is not permitted to speculate on the chance of its discon- tinuance. tKe necessity of interdicting all communication by way of commerce with the place in question ; that a belligerent, if he- inflicts upon neutrals the inconvenience of exclusion from commerce with such place, must submit to the same inconve- nience himself; and that if he is to be at liberty to select par- ticular points in which it suits his purpose that the blockade should be violated with impunity, each neutral, in order to be placed on equal terms with the belligerent, should be at liberty to make such selection for himself. But the ambiguity in which all these questions are left by the Order in Council of the 15th April; the doubt whether the liberty accorded to enemies' vessels extends to neutrals, and if so, whether such liberty is subject to the same restrictions, or to any other and what restrictions, affords, in the opinion of their Lordships, another strong argument against the legality of the blockade in this case. If a partial modified blockade is to be enforced against neutrals, justice seems to require that the modifications intended to be introduced should be notified to neutral states, and that they should be fully apprized what acts their subjects may or may not do. They cannot reasonably be exposed to the hardship of either abstaining from all com- merce with a place in such a state of uncertain blockade, or of having their ships seized and sent to the country of the belligerent, in order to learn there from the decision of its Court of Admiralty whether the conduct they have pursued is or is not protected by an equitable interpretation of an instrument in which they are not expressly included. If these views of the law be correct, this ship cannot be considered to have had notice of any blockade of Eiga at the time when she sailed for that port; for, in truth, no legal blockade was then in existence, and it would be hard to require a neutral to speculate on the probability, however great, of a legal blockade de facto being established at a future time, when he is not permitted to speculate on the chance of its discontinuance after he has once had notice of its existence. Their Lordships have considered the objections to the blockade only as it is affected by the orders of the 15th April, which relate to egress from Russian ports; and to this view of the case the argument at the bar was confined, both before the Judge below and before their Lordships. But it may not be imma- terial to advert to the position in which Russian vessels at this time stood with respect to ingress into the Baltic ports, and to consider whether a certain class of such vessels, viz., those which at the breaking out of the war were in British or THE "FRANCISKA" AND THE "JOHANNA MARIA." Frencli ports, were not at liberty to sail with their cargoes for the ports to ^^■hich they were bound, although such ports mi^ht Vmw be blockaded. Codkcil. By the Order in Council of the 29 th March, already referred •^'"'3'""'- to, it was ordered « that Russian merchant vessels in any ports wh'ch auhf'^ or places of her Majesty's dominions should be allowed until outbreak of the tiie 10th day of May then next, six weeks from the date of BHtish oV" the order, for loading their cargoes and departino- ii-oui such l>ench ports , J 1 T , , , 1 • ,. were permitted ports ana places; and that such merchant vessels, if met at sea to sail with by any of her Majesty's ships, should be permitted to continue *'^'^'^ cargoes their voyage, if upon examining their papers it should appear destination that their cargoes were taken on board before the expiration of ^"^j oTnot '^^ ■the above term. Provided that nothing therein contained should extend or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any dispatch of or to the Russian Government." There is here an enumeration of the several particulars which are to except a vessel from the order, and to leave her of course subject to capture as enemies' property. But the attempt to enter a blockaded port is not amongst the exceptions, nor is there any prohibition against entering such port. An enemy's ship commits no offence against the Law of Nations by attempting to elude a hostile squadron, and enter a blockaded port; she has a perfect right to do so if she can. She is already subject to seizure in another character, but does not incur any penalty by breach of blockade. If, therefore, her liability to seizure as an enemy is to be removed, but her liberty to sail in security to her port of destination is to be restricted to such ports as may not be in a state of blockade, it should seem that such restriction ought to be specified. Accordingly, iu the next paragraph of this order, which applies to a different class of vessels, the restriction is specified. Russian merchant ships which at the date of the order are on their voyage from foreign to British ports, are to be permitted to unload their cargoes and forthwith to depart and continue their voyage to any port not blockaded. By the corresponding ordinance of the French Government of the 27th March, permission is granted to Russian vessels in French ports for six weeks, " dc se rendre directement au port de destination sans qu'ils soient d:ins I'intervalle siisceptibles d'etre captures." There is no exception of blockaded ports. By subsequent orders of both Governments, the period for leavlno- certain distant ports was extended to six weeks after promulgation of the order. The same observation which has ^"^ ">? tacit been made with respect to the cases of egress may bo repeated bTockado'd°ports 298 1855, would be in- consistent witli good faith towards the enemy. Ships of one helligerent power at the outhreali of war in the ports of another, have strong claims to in- dulgence ; and licence to such vessels to enter a hlockaded port might perhaps not invalidate the blockade. The present is a different question. Question — assuming 1he legality of the blockade, was the notice thereof received Ijy this ship such as to subject her to confiscation for disregarding it. Knowledge of the blocltade is the essence of the offence of breach of blockade, 'i'he source of the knowledge is immaterial. PEIZE CASES. Avith respect to ingress, viz., that if all the Russian ports were to be blockaded, and if a permission to a Russian vessel to sail to her port of destination was to be subject to a tacit exception of blockaded ports, such permission would be delusive, and hardly consistent with good faith towards the enemy. No doubt, ships of one belligerent, at the outbreak of war, found in the ports of another, into which they have entered for peaceful purposes, with the expectation of the continuance of peace, form an exceptional class which has a strong claim to an indulgent exercise of the right of capture ; and an express permission to such ships to enter their port of destination, though blockaded, might, perhaps, not affect the validity of the blockade. It might fall within the class of cases alluded to by the learned Judge below of licence granted in particular cases upon special grounds. Such a case is very distinguishable from one where a belligerent with a view to the interests of his own commerce permits enemies' ships to bring to him cargoes from their own ports, though he at the same time insists on a blockade of such ports against neutrals. Supposing, however, the blockade in this case to be open to no objections in point of law during the interval between the 15th of April and ;the 15th of May, it remains to be inquired whether the notice which this ship received of its existence was of such a character as to subject her to the penalty of confisca- tion for disregarding it. Notice has been imputed to the claimant in the Court below from the alleged notoriety of tlie blockade on the 14th May at Elsinore, where the ship touched, and at Copenhagen, where the owner resided. It is contended by the appellant that in a case of ingress of a port subject to a blockade only rfefac^o of which there has not been any official notification, guilty knowledge cannot be inferred in an Individual from general notoriety, and that a ship is always entitled vmder such circumstances to warning from the blockading squadron before she is exposed to seizure. To this proposition their Lordships are unable to accede. If a blockade de facto be good in law without notification, and a wilful violation of a known legal blockade be punishable with confiscation, — propositions which are free from doubt, — the mode in which the knowledge has been acquired by the offender, if it be clearly proved to exist, cannot be of Import- ance. Nor does there seem for this purpose to be much difference between ingress, in which a warning is said to 1)0 indispensable, and egress, in Avhich it is admitted to be unnecessary. The fact of knowledge is capable of much easier proof in the one case than In the other; but when once the fact i.« THE "FRANCISKA" AND THE "JOHANNA MARIA." 209 clearly proved the consequences must be the same. The rea- 1855. soning of Dr. Lushington in this case, and the language of PmvY Lord Stowell in the " Adelaide,^' reported in the notes to the Cotooh,. « Neptunus," (a), and the " Hurtiffe Hane," (b), are conclusive •^«'^J"»«»'- upon this point. But while their Lordships are quite prepared to hold that Though per- , , . , , o 1 T 1 1 1 n T sonal know- tne existence and extent or a blockade may be so well and so ledge may be generally known, that knowledge of it in an individual may presumed from ? 1 • 1 T . r. n 1 general noto- be presumed, without distinct proof of personal knowledge, and riety, yet the that knowledge so acquired may supply the place of a direct ^rbe^knoTm communication from the blockading squadron ; yet the fact must be one with notice of which the individual is so to be fixed, must be ^ ^^ reason- one which admits of no reasonable doubt. " The communica- able doubt, tions which bring it to his knowledge,'' to use the language of Lord Stowell in the " Rolla," (c), "must have reached him in a way which could leave no doubt in his mind as to the authen- ticity of the information." Again, the notice to be inferred The notice to from general notoriety, must be of such a character that if ^^f ™'^"^'^ conveyed by distinct intimation from a competent authority it notoriety, or would have been binding ; the notice cannot be more effectual ^jeiuTerent " because its existence is presumed, than it would be if it were must be such directly established in evidence. The notice to be inferred ^een legal if from the acts of a belligerent, which is to supply the place of a gi^en as a public notification or of a particular warning, must be such as, earning. if given in the form of a public notification or of a particular warning, would have been legal and effectual. For this purpose the notice of the blockade must not be Therefore the more extensive than the blockade itself. A belligerent cannot "^ft^ee of the ° , blockade must be allowed to proclaim that he has instituted a blockade of not be more several ports of the enemy, when in truth he has only blockaded t^e™iockade^" one ; such a course would introduce all the evils of what is itself. termed a paper blockade, and would be attended with the grossest injustice to the commerce of neutrals. Accordingly a neutral is at liberty to disregard such a notice, and is not liable to the penalties attending a breach of blockade for afterwards attempting to enter the port which really is blockaded. This was distinctly laid down by Lord Stowell in the case « jjeinrich and of the " Heinrich and Maria," (c?) where an officer of the Maria." blockading squadron had informed a neutral that all the Dutch ports were in a state of blockade, whereas the blockade was confined to Amsterdam. The ship was afterwards captured for an alleged attempt to enter Amsterdam, and Lord Stoioell, in decreeing restitution, observed : o (o) 2 Rob. 111. (fi) 3 Rob. 324. (c'' 6 Rob. 364. {d) 1 Rob. 148. 300 PRIZE CASES. 1855. Pkivv Council,. Juilgment. It is clear that in this case, the master and owner knew all that ivas pub- licly known at Copenhagen on the 14th May, on the subject of the blockade. It is argued that the im- pression there, by reason of the acts of the helligerent, must have been that all the Russian ports in the Baltic were blockaded, which was not the fact. " The notice is, I think, in point of authority, illegal. At the time when it was given there was no blockade which extended to all Dutch ports. A declaration of blockade is a high act of sovereignty, and a commander of a King's ship is not to extend it. " The notice is also, I think, as illegal in effect as in authority. It cannot be said that such a notice, though bad for other ports, is good for Amsterdam. It takes from the neutral all power of election as to what other port of Holland he should go to when he found the port of his destination under blockade. A commander of a ship must not reduce a neutral to this kind of distress ; and I am of opinion that, if the neutral had contravened the notice, he would not have been subject to condemnation." The authority of this case is fully recognized by Dr. Lusliington in the present case, who observes that such an administration of the law in protecting the party misled, was most just. Applying these principles to the evidence before them, their Lordships can have no doubt that the master and owner in this case are to be fixed with notice of all that was publicly known at Copenhagen on the 14th of May on the subject of the blockade ; that it was known there tliat merchant vessels had been turned back from ports on the coast of Courland, and tnat a general impression prevailed that vessels seeking to enter Russian ports ran great risk of seizure; and that the owner in this case shared that impression, and that to this cause are to be attributed the want of proper ship's papers, which has been already alluded to, and the absence, on the further proof, of any affidavit on the part of the owner denying knowledge of the blockade. But it is contended by the appellant that the impression which thus prevailed at Copenhagen (if, in fact, there existed any general impression) on the 14th of May was, and of necessity from the acts of the belligerent powers must have been, not that the ports of Libau, Windau, and the Gulf of Eiga were blockaded (which they really were), but that all the Russian ports in the Baltic were blockaded, which they certainly were not ; and that a notice to be gathered from such erroneous impressions was, on the principles already referred to, of no effect. In order to determine the question of fact upon this point, it is necessary to examine with some minuteness the details of the evidence as it applies to Copenhagen at the time when this ship left that city. THE "FRANCISKA" AND THE "JOHANNA MARIA." 301 On the nth of April 1854, the admiral made the fol- 1855. lowing communication to Mr. Buchanan, her Majesty's Envoy ^~^wt^ Extraordinary at the Court of Denmark, Council. /. -cir IT 5 • T7- Ti Judgment "'Dukeof Wellmgton, m Kioge Bay, gh- C/m,Z«. "Sir, '* April 11, 1854. Napier's cosa- " I have the honour to acquaint your Excellency, for the ^i^^Buchanan information of the Foreign Ministers, Consuls, Vice-Consuls, April ii,i854. and Consular Agents residing in the kingdom of Denmark, that her Britannic Majesty's fleet will sail this day for the Gulf of Finland, to place in a state of blockade the whole of the Kussian ports in the Baltic and in the Gulfs of Finland and Bothnia. " I have, &c. (signed) " Chas. Napiee, " Vice- Admiral and Commander-in-chief" " His Excellency Andrew Buchanan, Her Britannic Majesty's Envoy Extraordinary." On the following day, the 12th of April, Mr. Buchanan tAt. Buchanan's published the following circular at Copenhagen : — T*^"[^[', " To Ministers, Charges d' Affaires, and Consuls of all Nations — " The undersigned, her Britannic Majesty's Envoy Extra- ordinary and Minister Plenipotentiary at the Court of Den- mark, has the honour to inform you that her Majesty's fleet, under the command of Vice- Admiral Sir Charles Napier, sailed this morning from Kioge Bay to take measures for placing in a state of blockade all the Russian ports in the Baltic and in the Gulfs of Finland and Bothnia. (signed) " Andrew Buchanan." On the 15th April a notification of the official communi- Official notifi- cations thus received was published by the Danish Government '^^ ""^ in the public newspapers. A letter in the same terms with that to Mr. Buchanan was Sir C.Napier's Istters to ths at the same time sent by the admiral to her Majesty's Ministers British Minis- at Berlin and Stockholm, and the Hanse Towns. ters at Berlin . Stocliholm, and Tne effect of this letter was communicated on the 14th April the Hanse by Mr. Lloyd Hodges, her jNIajesty's Charge d' Affaires to the '^°^'°^- Hanse Towns, to the Governments of Hamburg, Lubeck, and Bremen, and by the Minister at Stockholm to the Swedish Government. On the 1 5th April, Lord Bloomfield, the British Minister at Lord Bhom- Berlin, made a similar communication to her Majesty's Consuls -^^^'^'? '^°!^- „ . ^ . -rr . , -Kw , -^..11 T r, • niumeation to at Dantzic, Stettin, Jvonigsberg, Memel, Pillau, and Svvme- the different J British Consuls, "'W^^^' April 15, 302 PRIZE CASES. 1855. Pkity COUNCII.. Judgment. Mr. Hertslet's announcement differed from the communi- cation he had received. There was no public correc- tion of the The admiral and his officers considered a general block- ade established and notified. The impression derived from these proceed- ings must have been that the blockade ex- tended to all the Russian ports in the Baltic. The effect of these communications was, that the admiral had sailed with the British fleet up the Baltic for the purpose of immediately placing in a state of blockade all the Russian ports in that sea, not that he had actually blockaded any. But, by a most unfortunate mistake, Mr. Hertslet, the British Vice-Consul at Memel, announced, not merely that such a blockade had been actually instituted, but that he was ordered by the British Minister at Berlin to make such an announce- ment. On the 17th April he published at Memel, in the German language, a notice to the following effect : " Memel, April 17, 1854. " I hereby most respectfully inform the Honourable Cor- poration of Merchants at this place, that I am ordered by the Royal British Ambassador at Berlin to make known — " That Admiral Sir C. Napier has placed the whole of the Russian ports in the East Sea in a state of blockade. " "W. J. Hertslet, " Her Britannic Majesty's Vice-Consul." On the 18th of April this notice was posted by the authority of the Corporation of Merchants at Memel, on the Royal Exchange of that city, and remained there the two following days. There is nowhere to be found any public correction or quali- fication of this most important error. Indeed it does not appear by anybody to have been considered an error as regarded the fact of the blockade. The admiral himself seems to have considered that he had both established and notified a general blockade. The officers of his fleet might naturally share the impression. Captain Foote and Lieutenant Hale, as is observed in the judgment below, had been in communication with Mr. Hertslet, and he probably made public the impression which he had received from them. There is not the least reason for imputing to him any inten- tional misrepresentation. But the important point for consideration is, what impres- sion would these proceedings create on the public mind, and what reports on the subject would be likely in consequence of them to circulate through the ports of the Baltic. The belief which they would occasion, as it appears to their Lordships, must necessarily be that, whatever the blockade might be, it was general, and extended to all the Russian ports in the Baltic, and was not confined to a few ports, or to a particular division of the coast. THE "FRANCISKA" AND THE "JOHANNA MARIA." 303 There is evidence that this actually was the belief created. 185 5. On the 21st April the Lubeck newspapers contained the p^^ITT' following notice : Council. " The closing of the Russian ports, which has now taken Judgment. place through the blockade of them ordered by the English J^^^^? '' P™°^ Government, cannot fail to exercise great influence on the Lutggk news- value of Russian produce." papers, On the same day the Gottenburgh newspaper contained the J"" ' following notice : newspaper, "Stockholm, April 21. — It has already been made known ^P"l2i. at the different places by the official paper of last Tuesday's post, that the British fleet has proceeded up the Gulf of Finland, and that all Russian and Finland ports have been declared in a state of blockade." Nothing appears to have taken place which could have been jjot^^^J'jj^. known at Copenhagen on the ] 4th of May calculated to correct at Copenhagen this impression. That ships had been warned off from Libau, ^ jj^ ^-^^^^ "VVindau, and the Gulf of Riga, would in no degree tend to raise could correct a belief that the blockade Avas confined to those ports, unless the masters of the vessels had been informed that they might proceed to other Russian ports, which does not appear to have been the case. One ship, indeed, the " Frithiof," appears by Captain Ker/'s affidavit to have been permitted on the 1st May " to proceed on her voyage to the Gulf of Bothnia, because that gulf was not then blockaded;" but the ship could not have returned from her voyage, or have made that fact public at Copenhagen by the 14th. That ships coming out of the blockaded ports were warned of the existence of the blockade was quite consistent with the existence of a blockade of other ports. The earliest document in point of date which refers to the blockade of the particular ports as distinct from the supposed general blockade, is Captain Key's letter of the 12th of May to Mr. Hertslet, at Memel; but that letter, if its con- tents had been more material than they are to the point now under consideration, could not have been generally known at Copenhagen on the 14th, the communication between those places, as appears by Mr. Hertslet s affidavit, occupying five days. But there is conclusive evidence that long after this period the individual at Copenhagen who might be supposed to be best acquainted with the blockade, and whose authority must carry the greatest weight at that place, viz., the British Minister, supposed the blockade to extend to all the Russian ports in the Baltic, and a letter of Sir C. Napier, of the 304 1855. Peivy CODNCII.. Judgment. Sir C. Napier's letter to Mr. HuchanaHj May 2 7. Mr. Buchanan's to the Danish minister, June 3d. " Gazette," August 14. 'Die only notices ■which the master of the ship could have received, was PRIZE CASES. 27th May 1854, seems to show that he was under the same impression. On the 27th May, the admiral addressed from Hango Bay the following letter to Mr. Buchanan : " Sir, " Many Danish and Swedish vessels have been warned off the coast of Courland attempting to enter the blockaded ports, pretending that no blockade has been notified. "^My letter notifying the blockade was addressed to her Majesty's Ministers at Copenhagen, Berlin, Hamburgh, and Charge d' Affaires at Stockholm." (It does not appear that any such notification had been made by the admiral except by his letter of the 11th April.) " I have therefore to request that you will take steps to make it known that all vessels in future will be seized attempt- ing to break blockade.'" On the receipt of tliis letter, Mr. Buchanan, on the 3d June, addressed the following note to the Danish Minister for Foreign Affairs : " M. le Ministre, " Copenhagen, June 3, 1854. " I have the honour to acquaint you, with respect to my note to your Excellency of the 12 th of April last, that Sir C. Napier, the Commander-in-chief of her Majesty's naval forces in the Baltic, having established a blockade of all the ports of Russia in that Sea and the Gulfs of Finland and Bothnia, has reported to me that ho has already had occasion to warn off Danish vessels attempting to proceed to some of these ports, and that his Excellency has notified to mc, for the information of the subjects of his Majesty the King of Denmark, that vessels attempting in future to violate the blockade which he has established will be seized by her Majesty's cruizers." Yet, from the ''Gazette" of the 14th August, (a) it appears that the blockade of the coast of Courland commenced on the 17t April, that of Helslngfors and some other ports on the 26th April, that of Revel and other ports on the 20th May, and that of Cronstadt and others in the Gulf of Finland on the 26th June, above three weeks after the date of Mr. Buchanan's letter. It is clear, therefore, that the real state of the blockade could not have been known at Copenhagen on the 14th May, and that the only notice which the master could receive at that (a) Appendix, p. xxi. THE "FRANCISKA" AND THE "JOHANNA MARIA." 305 port at that time would be that he must not sail for any of the I'^S^- Russian ports ; a notice which, if he had received it from a Privy. British ofScer, he could not, on the principles already stated, be ConNcn,. punished for disregarding. _ TsSed to If this view had been presented to the Judge in the argument disregai-d. in the Court below, it is probable that it would have com- This point was manded his assent, since he entirely approves of the principles the attention of on which it is founded. But unfortunately fhe argument ^J^® ^°'^'^ before him took a different direction. The contention then appears rather to have been that there had been no blockade of any Russian ports which could have been known at Copen- hagen on the 14th May; and that if any knowledge, however accurate, had been acquired by the master, through the channel of notoriety, it would not have formed a legal ground of con- demnation for an attempt to enter a blockaded port. At all events their Lordships have the satisfaction of believing that the conclusion at which they have arrived upon this point is not opposed to the authority of the eminent Judge whose decision they have to review. But further, although the Government and commercial classes Various cir- of Denmark could hardly have been ignorant on the 14th May ?us^i|^^°^g„ that the commerce of neutrals had been subject to interruption, trals in doubt- and that captains of British ships of war had interfered with ^^ blockade their vessels on the allegation of a blockade of Russian ports, had heen ,, , ,• • i 1 • 1 • I.J. 1.1 established -with there were not wantmg circumstances which might reasonably sufficient autho- excite grave doubts whether any. such blockade had been "ty, or would established with sufficient authority, or would ultimately be by the British recognized by the British Government. Government. In the first place, the intention to blockade had been duly notified to the Danish Government, and they might naturally expect that as the British Government on the one side, and the admiral on the other, had means of easy and rapid communication with Copenhagen, any measure so seriously affecting their trade as the actual blockade of any of the Russian ports, would be forthwith intimated to them in the same authentic manner. It now appears why this was not done, viz., that the admiral considered the notification of the 11th April as equivalent to notice of actual blockade, but of this of course the Danish Government could not have been apprised. Besides this, they would see that, by the British Order in Council, and the French ordinances of the 15th April, issued subsequently to the notification by the admiral of the Intended blockade, a certain degree of commerce— which, if the ports were blockaded, would expose neutrals to confiscation— was u 306 1855. Pkivt CotmciL. Judgment. These doubts as to the establishment of the block- ade by a com- petent autho- rity, tend to explain the testimony produced. Kestitution without costs on either side. PEIZE CASES. permitted to Kussian ships up to the 15th May ; they would observe that no such permission was given to neutrals ; and they would not unreasonably infer that such permission was not granted only because it was not required; that the permission was granted to Russians because they would be liablie to capture, whether the ports were blockaded or not ; that it was not extended to neutrals, because, there being no blockade, there would on their part be no risk ; and this impression would be confirmed by observing that, in the permission to Russian ships in the ports of the allies to proceed on their voyages, no reference is made to blockaded ports as either included in or excluded from the permission. Again, it might be known at Copenhagen that the rumours of blockade which prevailed were, to a certain extent at all events, so far unfounded that many of the ports which were said to be closed were in truth open ; that as to the coast of Courland itself, there had been for two days no ships of war upon the blockading station, and that on those days and the day following a very large number of ships were reported at least, whether truly or not, to have entered Riga. Their Lordships cannot but think that these considerations might with great justice affect the credit of any reports in circulation at Copenhagen, and create a not unreasonable doubt whether any blockade of Russian ports had yet been estab- lished by a competent authority ; and they go far to explain much of the testimony which might otherwise be fairly open to severe animadversion. There have been much confusion and perplexity with respect to this blockade ; there are, as usually happens in such cases, some inaccuracies and errors in the evidence on both sides, but their Lordships are not inclined to attribute to the statements of the witnesses, or the certificate of the merchants, which have been produced on the further proof, any wilful distortion or concealment of the truth. The view which their Lordships have taken of this part of the case makes it unnecessary for them to advert to the many other important points which were argued at their bar. They must advise a restitution of the ship (or rather of the proceeds, for it appears to have been sold), and of the freight, but cer- tainly without any costs or damages to the claimant. There will be simple restitution, without costs or expenses to either party. THE "JOHANNA MARIA." 307 THE " JOHANNA MAMA." 1855. This vessel entered Riga on the 20th of May, after all privt difficulty arising from the Order in Council of the 15th of Council. April had been removed. She came out again on the 24th of Judgment. May, having taken on board a cargo, with a full knowledge of ™e out' of a the existence of the blockade at the time of loading, and in blockaded port the expectation, as it is said, that the worst that could happen tnowledee of would be that she would be sent back by the British ships the blockade. forming the blockade to unload her cargo. The only ground on which she could ask to be relieved from There is no condemnation would be that the letter of Sir C. Napier of the exempt her 27th of May, and the subsequent announcement by the British from the •* penalties tor Government in the "London Gazette " of the 14th of August,(a) breach of would be sufficient to annul all that had previously taken ^loo^'^de. place, and, on the principles laid down by Lord Stowell in the " Bolla " (h), to postpone all penalties for breach of blockade till after the 28th of May. Their Lordships, however, are of opinion that such ajudg- Such exemption ment would carry the doctrine referred to further than either mg the doctrine the decision itself or sound principle would warrant. In that of the "i?offa" case Lord Stowell observed that the blockade had been very lax, that several vessels had been permitted by the blockading squadron to enter ; and the observations relied on must be understood with regard to the circumstances out of which they arose. In this case from the 5th of May there had been an uninterrupted blockade ; no single instance has been produced in which any vessel had been permitted by any of the block- ading ships to enter the port ; nor had any been permitted to come out after the 15th of May with cargoes subsequently loaded. There is clear proof of a de facto blockade, fuU knowledge of it by the master, and nothing which could mis- lead him as to. its extent or eflfect. The usual consequences Ship condemned must therefore follow, and the sentence below be affirmed, but ^^If ^Se* ^ without costs of the appeal. appeal. THE "FORTUNA," Andeeson. Aug.n,Nov.6, This vessel, under Norwegian colours, sailed from New- _d^. 4. castle on the 7th of May 1855, with a cargo of coals, bound ^captorhaTing for Stockholm. On the 29th she was captured by her Majesty's seized a vessel ship " Conflict" for an alleged attempt to break the blockade holffor'Tdju- of Riga, and was sent to England for adjudication. dication on (a) Appendix, p. xxi. (6) Rob. 6. 368. U2 308 PRIZE CASES. 1855. On the 11th of August the case was argued on the ad- T^ mission of the claim, and the Court expressed a strong opinion mere suspicion ' i j i iT of her intention that the ship-papers and the evidence showed that she was Wooka^^rf proceeding to Stockholm. As, however, the counsel for the Eiga, -whentlie Crown contended that the place of capture indicated an in- ckarlymSed tention to enter Eiga, the Court, considering that to be a Stockholm as nautical question, offered to defer its decision for the atten- condemned in"' dance of Trinity Masters if the counsel for the Crown requested costs and \^ . T^^^ ^^ ^i^g game time intimated Its intention to inform the When the ship- Trinity Masters that both the depositions and ship-papers papers and clearly pointed to Stockholm as the destination of the vessel, clTarly'point to ^"^^ Stated that it would put the claimants in the same a legal distinc- position as if it immediately restored the vessel, unless the will' not, from Trinity Masters expressed a decided opinion that, from the the locality of locality of the capture, she could not have been proceeding to lD.6 CEipturSy - ^ infer an illegal that place. one.without the Subsequently the Crown consented to restitution ; the ques- assistance of . „ ^ -^ . ^ i TrinityMasters. tion of captor's expenses and claimant's costs and damages being reserved. That question was argued upon the 6 th of November. The Queen's Advocate and the Admiralty Advocate appeared for the Crown ; Dr. Addams and Dr. Twiss for the claimants. Dec. 4. De. LuSHINGTON. In this case restitution of the ship and Judgment. cargo has already been decreed, with the consent of the cargo having captors. Subsequently thereto, the Court heard counsel on been restored, the question reserved, namely, whether the claimants were merely aslo^ entitled to costs and damages, or whether, if that prayer was costs and refused, the captors are entitled to have their expenses paid. Of course the Court might, if it thought fit, refuse both prayers, and then, as it is technically called, it would be a case of simple restitution. The law IS ijij,g -^^j^ole law upon these questions is now" to be taken from now laid down -, • ■ p i -r t • ■, /-, in the "Oitocc." the decision ot the Judicial Committee in the case of the " Ostsee." (a) Having ascertained, to the best of my ability, the true meaning and intention of that judgment, the only question is, M'hether the circumstances of the present case bring it within the pale of that decision ; whether according to that decision I am to decree to the claimants costs and damages, or, refusing that prayer, direct that the captor's costs and expenses be paid or decree restitution simply. In the case of the "Leucade"{V) I did most carefully, to the utmost of my power at least, examine the judgment in the case of the " Ostsee." I then (a) AnU, p. 174, (6) Anti, 217- 2 Ecc. & Adm. 228, THE "FORTUNA." stated what I believe to be its true import, and I have no occasion to attempt that task ao;ain. , j ^ ^ ° Judgment. 1 apprehend the general result of that decision in the " Ostsee" if no probable has in the course of the argument been truly stated by the '^^^^ *"'" «=*?- counsel for the claimants, viz.: — if no probable cause for capture thrdeposMons appear on the depositions and ship-papers, the claimants are or ship-papers . , J . . 11 m t"^ claimants entitled to restitution with costs and damages. Therefore the are entitled to present case is simply an inquiry whether probable cause for the •'institution with seizure is shown on the face of the depositions and ship-papers, damages. The captors allege that the capture was justifiable because Captors justify- there was good ground to believe that the ship was attempting saying there ^ to break the blockade of Riga. The existence of that blockade '^^? ground for , J- , n • T . , T !• 1-1 believing the was not aisputed in this case, nor have i anything to do with ship was a knowledge of the blockade, for no such question arises. bre^tiie^ *° This was a Norwegian vessel according to the papers bound blockade of from Newcastle, with coals, to Stockholm. There is a bill of ■^'^^' lading in English to that effect and also a sound pass, and a which are ' charterparty in English marked No. 8, whereby this vessel ^'''^f^, '" was chartered by Messrs. Dickson and Co., London, to go to point to' Stockholm and bring back a cargo of wood to England. No. Stockholm as , „ ° & her destination. 9, is a letter from Sewell and Neck, dated Elsinore, 14 May 1855, directing the master, after discharging the outward cargo at Stockholm, to proceed to Holmsund in order to. load for London. I need not enumerate the other ship-papers ; suffice it to say, that all the ship-papers strongly evidence a voyage to Stock- holm, and no one paper gives rise to the slightest suspicion of any other destination ; and moreover nearly all the papers are in English, and consequently their contents might be easily known by the captors when they examined the vessel. All the witnesses examined depose, in conformity with the '^^^ witnesses papers, that the destination was Stockholm. Against this weight same effect. of evidence it has been argued, on the part of the captors in the it is said that first instance, that the vessel ought to be condemned for breach capture indi- of blockade, by reason that she was detained in a locality which cates inten- proved that she was about to break that blockade, and was not the blockade of going to Stockholm ; and latterly restitution having passed by -^'s*- consent, it was argued on the same ground that the capture and detention were justified. With respect to the place of capture, until I am directed to "f^^ ^•"'■' ™°''* , T 1 • 1 P 1 1 . . 1 1 '^^rn the place the contrary, i must take it also trom the depositions, log, and of capture from ship-papers. As to the deduction to be drawn from the place d^pos^^^^g^tut of capture when once fixed by the evidence to which I have re- would hesitate to ferred, except in a very glaring case indeed, the Court would 1"£ an™ ' ' never take upon itself to pronounce an opinion without the intended 310 1856. breach of blockade with- out the aid of Trinity Masters. The Court would put to the Trinity- Masters purely nautical questions. The captors having declined the aid of Trinity Masters the Court must draw its own. conclusions from the depo- sitions. The evidence is to the effect that the vessel was seized " at PRIZE CASES. assistance of Trinity Masters. It is obvious that it could not not safely do so, because so many nautical matters, such as courses, winds, and currents, must be taken into consideration, that none but persons of nautical science could safely draw any conclusion. For these reasons, when this question was raised, I offered to the captors, if they desired it, to request the attendance of Trinity Masters, but I added, as I think I was in justice bound to do, that I should tell the Trinity Masters that all the evidence, except that which may be strictly called nautical, was in favour of a destination to Stockholm, — that as to nautical evidence they must form their own opinion; and I fiirther observed, what I apprehend is indisputably true, that unless they were clearly of opinion from the nautical evidence that the ship was not going to Stockholm, but to break the blockade, I must restore it. According to the shorthand writer's notes of what I said on that occasion, which I doubt not are perfectly accurate, I added that if the Trinity Masters did not give a clear judgment that the vessel was on her way to a blockaded port, I should put the claimants in the same situation as if the restitution had taken place at the first hearing, and that to all expenses of the future hearing, and to all expenses from that day thenceforward the captors would be liable. These observations applied to the question then raised, namely, the question of restitution or condemnation the main issue in the cause, and I apprehend that if the captors asked for TrinityMasters to obtain condemnation and failed, these obser- vations were not unfounded in justice. I certainly should not have thought myself at liberty to ask the Trinity Masters whether there was probable ground of seizure or detention, because that is not a simple nautical question, but one mixed up with legal considerations ; but I should have availed myself of their presence to obtain all nautical information which could bear on the question of costs and damages ; but such a question as that I have mentioned, I should never have put to them. However, the captors declined to solicit the ordeal of Trinity Masters, and consented to the restitution of ship and cargo. Under these circiunstances, my duty is to declare what deduction my imassisted judgment will enable me to draw, from the depo- sitions and logs, as to the place of capture. The master, on the the third interrogatory, deposes, that the vessel was seized in the open sea off Gothland. " From recollection, I cannot state the latitude and longitude, but I had it on board recorded on a elate at the time by the mate, and with a view to the entry in THE "FORTUNA." thfe log in the evening." It appears to me, this evidence does not, in the slightest degree, assist the captors, but is, to a certain extent, detrimental to their case. It is impossible to contend Goftlaud°" that, because a vessel is in the open sea off Gothland, that she The Court was therefore going to commit a breach of blockade, because a th™efrom?ii vessel going to Stockholm might, with perfect innocence, take intention to that course. Again as to the slate and the completion of the ^•'^ak blockade. log there is not the least reason to suppose that the slate was improperly concealed, or kept back, and I cannot proceed upon surmises unsupported by evidence. I attribute no blame to either party for not bringing in the slate, but I can draw no inference from its absence. Then as to the mate's evidence ; " the ship was taken off Gothland," he says ; " the longitude was about 20° 52', I cannot recollect the latitude." If the mere fact of being in that longitude was proof of intention to break the blockade, it was an inference which could be drawn by persons conversant with these matters only ; certainly I could draw no such inference without the assistance of gentlemen experienced in these matters. From the mere statement of the longitude in which the vessel was, I never would undertake to draw any inference whatever. The third witness gives no information. I may here intro- It is the duty duce a remark ;,which I trust will be duly attended to by the "g^g \^ tak™^" Examiners. They do not and cannot know upon what answer precise and to a particular interrogatory a case may turn ; but this and answers to all other cases show the absolute necessity of obtaining from the interroga- , . , . , . tones, it being the witnesses the most precise answers to the questions put to impossible to them. I do not undertake to say on the present occasion, that anticipate upon •'. Ill 1 which answer a any care on the part of the Examiner could have extracted case may turn. more accurate testimony from the witnesses ; clear it is, the evidence wliich has been obtained is of a loose and unsatisfac- tory character. I now come to the log. Again I say, unless the case was J^^ Coavt can ° ?. •' . draw from the very clear 1 should wholly distrust my own judgment m log no inference forming an opinion on a document of that description, and I favourable to will not venture any very minute remarks. It appears to me, looking at the log, that on the 27th of May. the vessel was close to the Island of Gothland, and that upon the 29th she had the wind adverse for a course to Stockholm. I cannot say how far it was necessary, under circumstances like these, that she should bear to the eastward and southward ; it is impossible for me to form an opinion on that point. Then the result of the examination of the log is, that I can draw no satisfactory conclusion at sill, and certainly cannot 312 PEIZE CASES. None of the evidence shows the destination not to have been Stockholm. The probahle consequences to captors or to the right of block- ade cannot induce the. Court to depart from Lord Stowell's practice of excluding captor's, evidence. The Court is now bound ab- solutely by the decision in the " Ostsee." conclude that it proves what the captors insist on, that the vessel when taken was, from her position, about to proceed to Riga, Libau, or Windau ; and to this I must add, that vessels have a right to take their course to Stockholm southward of the Island of Gothland, and that they frequently do so. That is the information which I have derived, I believe, from a trust- worthy source, in the course of the investigations which previously to this have come imder my consideration; and with regard to a vessel taking such course, I am of opinion, that no one but a person conversant with the peculiar naviga- tion of the Baltic, and also equally acquainted with the course that a vessel ought to steer, could in any ordinary case say from the depositions and the log whether such a vessel was, considering the winds and currents, so far to the southward and eastward of the Island of Gothland, as with justice to fix on her the oifence of intending to break the blockade. The case therefore is thus circumstanced ; all the evidence, except that which is called purely nautical, most strongly tends to prove a destination to Stockholm, — the nautical evidence does not contradict it in my judgment. If this be so, what is the probable ground of seizure as re- quired by the authority of the judgment in the " Ostsee?" (a) I am told that the officer commanding the ships constituting the blockading force will be left at the mercy of the claimants, who will make what statements they think best for their own safety, as the captors will not be permitted to contradict it ; and that captors will be compelled to pay costs and damages, though, in truth and reality, they have only fulfilled their duty, and cap- tured vessels justly liable to the suspicion of breaking the blockade. And further, I am told that such an administration of the law will tend to weaken and impair the exercise of one most important belligerent right, — the right of blockade. To this my answer is, that, looking at all the consequences of admitting captor's evidence on such questions — to all that was said by Lord Stowell on that subject, I never will admit it till authorized by superior authority. I know, indeed, that the whole question of costs and damages was then in practice dif- ferently treated ; but this circumstance will not justify me in altering the practice of excluding captor's evidence. As to any further consequences which may result, it is no part of my duty to consider them. No doubt they have been weighed in the balance by higher authority ; by that authority I am bound, and I wish to be distinctly understood in these (a) AnU, p, 174. THE "FORTUNA." 313 cases of costs and damages, that I will not again be tempted to 1^^^- consider what were the principles applied, or what practice Judgment. prevailed in former wars. I may, indeed, on this question have much to learn, and perhaps more to unlearn ; but my own task now is to understand and apply the judgment of the Privy Council in the " Ostsee " to the best of my skill and ability, as I did in the case of the " LeucadeP (a) Upon the best consideration, therefore, of all the circum- The original - . . evidence all in- stances or this case, lymg as it does withm a very narrow dicating Stock- compass, the result is what I have already stated, that the destination th original evidence of destination to Stockholm is not question- captors seizing able. I further must observe, that with regard to that original their own °" evidence the captors ha(^ the most ample opportunity of unsupported making themselves acquainted with and considering it, for it intention to was not, as frequently happens in the case of foreign vessels, fommit a , ^ ,, . , . „. ., , , hreachofhlock- that the papers were all m a language unintelligible to those ade, must he who examined the vessel, but the most important papers coniemned in ' r r r costs and with regard to destination, — all those papers which strongly damages. pointed out a probable destination to Stockholm, — were in a language accessible to the captors, and capable of being under- stood by them. The papers which exist in this case are very strong evidence of original intention. I may add to this, that Lord Stowell expressed it as his opinion in more cases than one that with regard to the destination of a vessel the evidence of the master, unless it was fairly discredited, was the most important evidence to decide the question, and is conclusive on that point. Now against this current of evidence, therefore, there is nothing but an alleged suspicion of the captors arising from the place where she was seized. This suspicion is in my opinion unsupported by anything in the cause. There is no evidence, according to my judgment, which invests it with any degree of probability. I am therefore compelled to say, that this is a seizure without probable cause on the face of the depositions and ship-papers. This being so, 1 have no alternative but to obey the rule laid down for my governance in the " Ostsee" (jb) and according to my construction of it, I am bound to decree costs and damages. (a) Ante, p. 217. 2 Ecc. & Adm. 228. (i) Ant4, p. 174. 2 Ecc. & Adm. 170. 314 PRIZE CASES. 1855. Dec. 4. The voluntary- transfer of a ship by a father, an enemy, to his son, a neutral, as an advance of a portion of his inheritance, is valid if made bona fide. Education in a foreign country, fol- lowed hy a continued residence after the completion of the educa^ tion, tends strongly to establish the foreign domicile. Judgment. History of the proceedings. The case of the claimant. THE "BENEDICT." 1 HIS ship was originally captured and sent home for adjudi- cation as for breach of the blockade of Eiga, but at the hearing on the admission of claim, on the 13th of August, that ground was abandoned, and the argument turned on the national character of the vessel. She had been transferred to Hans Friedrich Philipsen (on whose behalf as a Dane and sole owner the claim was made) by his father, a Russian subject ; the Court allowed further proof, which was now brought in. The facts are fully stated in the Judgment. The Queen's Advocate and Admiralty Advocate appeared for the captors ; Dr, Addams and Dr. Twiss for the claimant. De. Lushington. This vessel, under Danish colours, was captured near Riga, on the 8th of May, in the year 1855. Claims were given for the ship, the freight, and the cargo, — parts of the cargo were upon several occasions restored by consent. On the 13th of August the admission of the claim for ship and freight were debated. The claim was admitted, but further proof ordered as to the property in the said ship and freight. Such are the terms of the minute of August 13th. The further proof having been brought in, this case has been lately argued at length, it being contended on the part of the Crown that the vessel is liable to condemnation, not on acccount of the breach of blockade, which was the original ground of seizure, but on various other grounds which I must presently speak of more in detail. I think the most convenient course I can pursue will be first to state, as fairly as I can, the case of the claimant, and then, without reference in the first instance to its credibility, inquire whether, assuming it to be true, the claimant would under such given circumstances be entitled to restitution. If I should ultimately be of opinion that the facts, if proved, would justify me in restoring the property to him, then I must also consider whether the proof of the facts is satisfactory. The claim is given on behalf of Hans Friedrich Philipsen, of Altona, and the statement contained in the further proof is to the following effect, — not in detail but in effect : that he was the youngest son of Niss Hansen Philipsen, a merchant carrying on business at Riga ; that his father was by birth a Dane, settled for very many years within the Russian domi- nions ; that his two brothers were in partnership with his father; that'm. 1852 he himself was sent to Denmark for the purpose of learning the art of ship-building, and of acquiring other knowledge to fit him to carry on the business of a ship-builder THE "BENEDICT." 315 and ship-owner in Denmark; that he continued to prosecute \^^^- his studies till the month of August 1853, when, hearing Judgment. that his father was about to visit Hamburg, he went thither to meet him; that upon that occasion his father promised to advance him a part of that share in the property which would devolve to him as his portion, — the sum so agreed to be advanced being fixed at the amount of 24,000 roubles; that it was at the same time arranged between the father and son that the ship, the " Benedict," should be valued at 4,000 roubles, and be transferred from the father to the son in part payment of the 24,000 roubles ; that the claimant became of age on the 25th of December in that year, and took up his residence at Altona, — towards the end, as it would appear, of the month of February 1854 ; that on the 6th of March, I believe the 18th, according to our time, in the same year, the ship, which was then lying at Lubeck, was transferred to him by bill of sale, — the whole arrangement as to the advance of the 24,000 roubles, and the transference of this ship, having been approved of by his mother and brothers and sisters, as appears by an instrument produced in this cause ; that the claimant, having taken possession of this vessel in the year 1854, employed her in various voyages; that she brought a cargo of wheat to Scotland, went to Memel, to Malaga, and finally to Riga at the end of 1854, when the blockade was withdrawn. Upon this statement of facts, assuming them true, several Objection- objections have been raised on the part of the captors. First, precedent fo"" it has been contended that this Court cannot recognise a title the Court re- by donation and voluntary conveyance without a valuable de^ed°from' ^ consideration, or rather, as we should call it, pecuniary con- a voluntary sideration ; and that there is no precedent for the Court sane- M-ithout any tioning such a claim, for that so doing might lead to great pecuniary , =• & & & consideration. abuse. I certainly am not aware of any precedent, and it is equally Though the true, that without great care and caution a voluntary transfer examine°suoh might be resorted to for fraudulent purposes ; but if the title a title with be such as this Court ought to recognise, I should not be dis- ^^ouM^otbe mayed from so doing simply by the absence of an example, deterred by the neither should I be deterred by the probability of abuse, for I dent from think that the Court, provided it exercised due diligence, might j^^"^"'^'^^'*' protect itself from any reasonable chance of fraud. I approach at once, then, the question, whether a title by The distinctions donation, if sufficiently proved, ought to be received by this panaw^bX^en Court or universally rejected. I am well aware how many conveyances distinctione are made in the administration of municipal law witfmt'peai- 316 1855. nia'ry considera- tion, should not be introduced into Prize Law. The Court of Prize should look only to the bona fides of a transaction, without regard to forms. The Court is not inclined to hold a mode of acquiring property, ■which is perfectly legal in time of peace, to be prohibited to neutrals in time of war. A bona fide donation con- fers a legal title; and an advance by a parent to a child of a portion of his inheritance, stands even more favour- ably. Though a minor, sent into a foreign country for education, does not acquire the national character of that country. PRIZE cases: between voluntary conveyances and titles for a valuable^ lor rather a pecuniary, consideration. But these are distinctions which I should be very reluctant to introduce into the adminis- tration of Prize Law, for I think that, sitting as a Court of the Law of Nations, I ought as far as practicable to look at what has really and truly been done, — to reject on the one hand any transaction however perfect in form if not sound in its foun- dations, and on the other hand to admit, notwithstanding technical considerations, whatever has been truly and bond fide done. I know not indeed by what authority I should be justified in saying to the subjects of neutral states, that I would stop them during the time of war from acquiring property by a title which would be unassailable in time of peace ; in saying, " You may take a vessel by way of legacy, but you shall never acquire a ship from a father or other relation by way of donation ;" in saying, moreover, that I will interrupt, or rather make void, all the consequences of the natural relation of father and son or other relations. Were I so to do, I think I should sin against a great principle of Prize Law, by prohibiting to neutrals a transference of . property perfectly lawful in time of peace. I am not disposed to establish so harsh a rule ; but, before I gave any claimant the benefits of a more lenient principle, I should undoubtedly require very satisfactory proof of all the circumstances which had led to the transaction under consideration, and more especially in a case where it might happen that the person so conveying the property was clothed with a hostile character. If, therefore, the history of this case be correct, I should not refuse restitution to the claimant on the ground that his title was acquired by donation ; at the same time I must observe, that I very greatly doubt whether the advance of a portion by persons who live in countries where the property must in great part be divided amongst the children at the time of the death of their parents, can with strict propriety be termed a donation. Many cases might be put where, in the exercise of a power, persons advance during their own lifetime money which is not strictly due till after their deaths, and I doubt whether such advances can be truly characterized as pure donations. I must now address myself to other objections. It has been contended that the claimant, at the period of the arrangement with his father in August 1853, and of the transfer of this vessel in March 1854, was to be considered as a subject of Eussia. To a certain extent I am disposed to assent to some of the reasons on which this argument is founded. It is quite true THE "BENEDICT." 317 that a son under age sent for his education to another 1865. country would not thereby acquire the national character of , , , 1 . . „ , 1 yet such educa- tnat country ; but it is not equally correct to say that the tion, followed circumstance of such education, accompanied with other facts, ''^ ?. <=ont'°>ied , '^ , , . residence there would not be of importance in ascertaining the national after majority, character, for if the original project of sending for education J°e"acquir^-^'^ was coupled with an intention when that education was com- mentof such pleted to settle in the same country, it would render great facility to the immediate acquirement of such national character when the residence was continued after majority, and the educa- tion was complete. I do not, however, deem it necessary to ^ ^heUier'°t enter further into this consideration for the obvious reason, that at the time of the question is, whether, when this ship was captured in 1855, the claimheing and the claim given in in the month of June in that year, the made, the claimant was then a Dane ; for if he was, he would be entitled a Dane, to the benefit of that character. I am of opinion that the con- tinued residence at Altona has, were it necessary to press the matter so far, a retroactive effect upon all that was done at the time of this transfer ; and perhaps I might even go further and say, that if in March 1854 the claimant was not justly entitled to be considered a Dane, yet he has certainly acquired that title since; and" moreover, I am not aware that a person whose A claimant may ..,..,, T have had a character was hostile may not change his domicile between the hostile national period of the transfer and the time of the claim. Suppose that ^^g jf^g^^f the Mr. Philipsen senior, undoubtedly a Russian in March 1854, transfer, and had removed himself and his vessel to Denmark at that a M*utral'"'^'^'^ period; can any one contend that if such vessel were captured domicile before in May 1855, and he had been settled in Denmark during the and "the claim. intermediate period, he would not be entitled to restitution ? Another obiection has been raised which regards the national 4 e'ainiant's r'fflit to rcstitu— character of the master. He was by birth a subject of Meek- tion would not lenburg ; he navigated this ship for several years under Russian ^^^^^^^^^ colours, Russian owned; therefore no doubt at the time of the of his having transfer he was to be considered a Russian subject. He after- g^g^^y'lSter wards assumed the Danish character in the month of April 1854, in command of according to means which that country affords, with extra- '^ ^ '^ ' ordinary facility and expedition. Now what effect is to be attributed to this state of things ? I am yet to be informed that the single circumstance of having a master of a hostile character to command a vessel will destroy a claimant's right to restitution, if he be otherwise so entitled ; and looking at the rapidity with which national character is allowed to be changed as rewards neutrals, I shall be very reluctant to come to such a conclusion. I grant however, when a case is viewed in a though that different aspect, the fact that the masters, character is that of is suspicious. 318 PRIZE CASES. 1855. an enemy may afford a strong ground of suspicion. As to Judgment. ^^Y Supposed fraud upon the Danish government, I lay that wholly out of consideration, for I see nothing on the face of the facts to lead me to suppose that there was any ; familiar as the Court is with their mode of transmuting a Russian master into a Danish master, the whole transaction passes in ordinary form, and gives rise to no suspicion whatever. Even if it were otherwise, I disclaim entering into an examination of what the law of Denmark does require to enable any one to command a vessel under Danish colours. WTien a sliip Qn this occasion it has been said, that this vessel is not belongs de facto • t ■, • ^ i t-..i i-i -ji-i to a neutral provided With those Damsh papers which are required by law. state, the Court jf |j„ jg^^ jg meant the treaty with Denmark, I know of no ■will not inquire ... i • i i • /-i -n • • into its compii- provision in that treaty which authorizes Great Britain to con- municM ** demn a Danish vessel, because the municipal law of Denmark regulations may not have been strictly complied with. If reference.be t ereo , made to the Law of Nations simply, I am not aware that when a vessel has de facto by the authority of a neutral government been incorporated into the marine of that state, this Court has inquired narrowly, if at all, into the law of that state, or how far its municipal regulations have been strictly complied with ; and I am of opinion that such an inquiry would be attended with great inconvenience, and could not be prosecuted with reasonable facility or with the probability o doing justice. Every state differs with respect to the regulations of their mercantile marine ; the Court is not disposed to enter upon an investigation of systems of jurisprudence in foreign states, which it is not competent thoroughly to understand, nor whether a Upon the present occasion, an objection is raised as to the practised upon pass, — that it is dated at one period and Issued at another. I that state. know no reason why the Danish government may not adopt any regulation it pleases upon that subject. It is said that the vessel was not lying in the port where it was represented to be when some of the papers were granted, that a fraud has been practised on the Danish government. This is an investigation which I will not enter upon. The Danish government is quite powerful enough to protect itself against fraudulent attempts to obtain for vessels the national character of Denmark; I do not know about its having the will, but I have no doubt about its power. It may be, for aught I know, quite con- sistent with their practice, or it may be visited with some penalties unknown to me, quite beside the confiscation of the vessel ; but I repeat, I will not, for such a purpose as the present, make any attempt to dive into the maritime law of Denmark and their usages, any further than I would present to Denmark THE "BENEDICT." a copy of our Merchant Shipping Act for the edification of its judicial tribunals. I doubt indeed, if I were inclined to make such offer, whether I should not be under the necessity of sending also some learned expounder of all that is contained in that lengthy document. I, perhaps, might have no difficulty in selecting from the Court one quite capable of so doing, and who would be very acceptable to the Danish government. It is sufficient for me to find that by the sanction of Danish The Court authority this vessel has been received into the Danish mer- '^°^^^ there™' cantile marine ; and if I am so satisfied, and that she is also the has been a property of a Danish subject, it is my duty to restore her, bemgeS provided that there has been no fraud on any belligerent rights. rights. I believe that 1 have now disposed of all the objections that The claimant's have been raised in this case on the assumption that the state- the'tMMfe?o° ment of the claimant is founded in truth. Inquiry into this t^is ship is not latter question wiU not occupy the Court long, for I do not ™^'^° ^ *" think it necessary to enter into great detail. I am of opinion that the statement so made by the claimant is not repugnant to probability, and, though the consideration of impending hostilities might be an ingredient prompting the completion of this transaction, yet that it would not on that account be invalid, because, if I am right in the conclusion I have drawn as to the national character of the claimant, his father would His father had have a right, when war was either imminent or declared, to transfer a ship transfer his vessel to him, and there is nothing in this pro- tohun, teing position at all opposed to the decision in the " Baltica"{d) The neutral, even " Balticd!' went mainly on the ground of a continuing enemy's ^^'^tl'f. , , T 1 T T 11 1 declaration 01 interest, though I also adverted to the attempt to sell by -war. wholesale ships the property of the enemy to one individual. The present transaction commenced in August 1853, and at Negotiations that period, beyond all doubt, the parties were fully competent, commenced without being liable to suspicion, to enter into the engage- long antecedent ments which are said to have been made. I think also that the were comp'ieted arrangement of August 1853 was carried into execution with g^g°™f^ as much expedition as could reasonably be expected, con- allowed. sidering that the claimant did not come of age till the 25th of December 1853 ; and I think also it is proved, that as soon as that agreement was completed by the execution of the bill of sale, and from that time till the period of capture, the present claimant exercised all the rights of owner. There is an abundance of correspondence demonstrating it. It is true that remittances to complete the sum of 24,000 The transfer roubles were continued in 1854; but what possible effect can cannot be («)- AttU, p. 264. 320 PRIZE CASES. J;^^^' that have upon the transaction which I have to discuss. It affected by appears quite consistent with probability and quite consistent any other mer- also with law, that the father should make such remittances, Sons between"" ^^^> i^ ^^ should have happened that in addition to them there the father and -was a transfer of other property or remittances to the son to be held on his own account or on the account of the father, provided there was no fraud as to this particular ship, it was no more than the ordinary course of trade, and no infringe- ment of any belligerent right. In 1854 Mr. Philipsen, as a merchant, had a right, subject to any chances, to remit any property he thought fit, to be held either on the son's account or on his own ; it is nothing more than the ordinary course ariserfrom°rtie ^^ trade. I will notice one or two other objections. I think non-production it was stated, that it is very improbable that the master the transfer' of should have lost the letter of March 1854, addressed to him letters written by ]vf igg Hansen Philipsen and directing him to give up the at the time ■', , ^,. -, ^ , ip, thereof. vessel to the present claimant, and one oi the counsel tor the captors expressed a wish to see that document, on the supposi- tion, I conceive, that it might impeach the genuineness of this transaction. It does not appear to me at all improbable that in May 1855, when the son had been in the possession and in the government of this vessel for fourteen months, that such a document should not be forthcoming, especially out of the custody of a ship master ; indeed, I think it would have been much more unusual if it had been forthcoming, when the father had, for fourteen months, with the full knowledge of the master, himself treated the vessel as the property of the son, to whom he was directed to give up possession. But as for the contents of this letter, I apprehend that counsel would find no great difficulty in satisfying their curiosity, for there is a copy annexed to the affidavit of Mr. Philipsen, senior. It is the letter dated March 17th, and gives in correct detail instructions for the delivery of this ship to the present claimant, and in fact it is a copy of that very letter which the master himself has lost. The observations in that letter with respect to the employment of the master are, in my opinion, strong evidence of the genuineness of the letter and the truth of the transaction. The father desires the master if he can to effect arrangements with the son for the purpose of continuing master ; supposing that could not be done, then he says, if you come here, I will do the best for you considering you have been in my service. There is With regard to the claimant's letter of March 23d, I do not sistenHn'thT' think that the true construction of it is inconsistent with the correspondence other statement. The surprise in that letter is expressed not produced ; i. t THE "BENEDICT." at the act being done at all, but that the whole promise of his father should be carried into effect so speedily. The surprise is at that expedition, not at the thing done. The whole corres- pondence with the master is annexed, and I think it would be difficult to find in it anything inconsistent or incongruous. I think it was said also, that though the agreement, if so it and nothing can be called, took place between the father and the son in f"^pi«i°»s ™„ ^ .. the absence of August 1853, yet that there was no writing of any kind any written written in that year to verify that transaction. Now this bftwe™n°the objection would be entitled to great weight if this transaction father and the had been a contract between two parties intended to be legally binding ; but what passed on that occasion between the father and son was of a totally different nature. It was a promise on the part of the father to confer certain benefits on the son, benefits which could not be conferred till after he was of age. I confess I should have been surprised had there been a written agreement to any such effect. There was no obligation on the father to make this promise, or to carry it into effect when made, save his own parental kindness and his own sense of honour. Such obligations are not put in writing. On the whole I am satisfied that I ought to give credit to the proofs adduced on the behalf of the claimant. Of course this is a case, looking to the further proof, where destitution the captor is entitled to his expenses. of cSot^s" . expenses. THE « MARIA," F. M. Petit. __, December 12. 1 HIS vessel, under Belgian colours, bound from Eio Janeiro The absence of to a port of Great Britain, with directions to call at Cork for ^d™ ignl'-'^ orders, was captured on the 27th of October 1855 off Cork, by ranee of the the revenue cutter "Eliza," on suspicion of being Eussian ^nership*both property. necessitate fur- The claim was given in on behalf of " G. F. E. Huger and „^^ ^'^°°.* T T TT TT r 1 • p A 1 If thc Claimant J. I. H. Huger, or the city ot Antwerp, merchants and ship- elects to proceed owners, trading under the firm of Messrs. Huger and Co., subjects ^Jggf'^^'^'! ^ of the King of the Belgians, as sole owners." The examinations is open to on the interrogatories having been taken, the case now came o"thrpart°of on for hearing on admission of the claim. the captors. The QueerHs Advocate and Admiralty Advocate for the seizor , Dr. Addams and Dr. Twiss for the claimants contended, that there could be no possible doubt as to the neutrality of the vessel, and that she ought to be restored without further proof The rule that the absence of the bill of sals was a ground for X 322 1865. PRIZE CASES. further proof was not of universal application, but must be qualified by the circumstances of the case. The absence the bill of sale is a ground for fui'ther proof. The master is bound to know who are the the owners. Further proof opened to captors and claimants. Dr. LusHiNGTON. The bill of sale not having been pro- duced, this would clearly be a case for further proof on that ground alone. There is, however, another, equally strong ; the claim is given in on behalf of two persons, the Messrs. Huger ; but the master in his evidence describes the ship as belonging to other parties. The explanation which has been given of that circumstance may or may not be true, but that explanation can only be received by the Court on further proof. It is an Imperative rule of the Prize Court that the master must be acquainted with the ship-papers, and be able to state without doubt or hesitation who are the owners. Further proof must be given. The Queens Advocate. I must ask the Court in this case to allow the captors to give further proof, as I am instructed that we have proof of the most important character as to the true ownership of this vessel. The Proctor for the claimant thereupon prayed the Court to allow him to bring in a special allegation. The Court. In that case all difficulty is removed ; I should have hesitated to open the case to further proof on the part of the captors, but if the claimant elects to proceed by plea and proof, that of course will open the case to both parties. 1836. Jam. 18 and 30. The practice is for captor or claimant, in asking for further proof, to state what he proposes to prove. The judicial opinion of Lord Stowell was expressed strongly against the admission of captors' evidence. When no suspicion of intention to break a blockade arises on the ship- papers, or the primary depositions, THE « ALINE AND FANNY," Hildebrandt. rn 1 HIS vessel, under Lubeck colours, sailed from Lubeck with a general cargo of sugar, coffee, tobacco, &c., bound, according to the ship-papers, for Haparanda, in Sweden. On the I4th of November last she was captured by Her Majesty's ships " Tartar" and " Dragon" for an alleged attempt to break the blockade of Jacobstadt. A claim for the ship and cargo was given in by the master on behalf of the respective owners, citizens of Lubeck. The master in his deposition swore that he was captured between the 63 and 64 degrees north latitude, about 20 miles from the land, and only just within sight of the coast of Finland- On behalf of the captors a certificate or statement was brought in to the following eifect : — " "William Fitzherbert Ruxton, lieutenant, and "William Belford Stubbs, lieutenant, have deposed before me that they were on the deck of Her THE "ALINE AND FANNY." 323 Majesty's steam ship-of-wur, the " Dragon," when at anchor inside the 1856. Island of Maskar, off the town of Jacobstadt, on the coast of Finland ; that "^ " ' on the morning of the 14th day of November 1865, and at about half-past '^^ Court, 8 o'clock, a.m., they saw a schooner apparently running for the anchorage fh°"'st' hfished off Jacobstadt, about three or four miles off, and that they reported this practice, cannot circumstance to me ; also, that on opening the point of the Island of receive captors' Maskar, which would give a fuU view of Her Majesty's ships-of-war evidence to "Tartar" and " Dragon" at the anchorage, this schooner set her boom those depo- mainsail, and hauled out on the port tack, which proceeding they also sitions with reported to me ; and that this schooner was consequently kept in view respect to the until she was detained by Her Majesty's ship-of-war " Tartar," about seven gatt„j,g miles N.N.W. of Jacobstadt. Though hard- " I certify that the foregoing reports were made to me, and also that I ship may myself saw the schooner running for the anchorage off Jacobstadt, and ^''■s'" from the ri T 1 1 1 , practice, any afterwards haul out on the port tack. deviation " Dated on board Her Majesty's steam ship-of-war the " Dragon," and therefrom must signed by us in the harbour of Hernosand, in Sweden, this 18th day c"ianate from of November 1855. Court " William FtTZHERBERT RuxTON, f On board Her Lieutenant,] Majesty's steam " William Belford Stubbs, ] ship-of-war. Lieutenant, L the " Dragon." " William W. Stewart, " Signed in my presence, " Captain of Her Majesty's steam ship- of-war, the " Dragon." When the case came on for hearing the counsel for the claimant protested against this irregular attempt to introduce captors' evidence, and the Court remarked that the statement certainly could not at that stage of the proceedings be received as evidence, but that, to the best of its recollection, the practice in former times was, when either captor or claimant prayed to be allowed to bring in further proof, for him to state what he proposed to prove. The Court also said that the counsel must argus the case, before it could come to any decision upon it. The Queen's Advocate, for the captors. The present is a Argument. case in which the Court will scarcely refuse to allow the captors to bring in further proof as to the place of capture. Even from the depositions there is so much doubt about the " Aline and Fanny," that, under the 22nd section of the " Prize Act, Russia, 1854," the Court would be justified in admitting further proof. The destination is said to have been Haparanda, lying at the head of the Gulf of Bothnia, so that the vessel was oflF the enemy's coast the whole of the way, and was under considerable temptation to enter the port of the enemy. Wherever she entered she would have had no difficulty with regard to her bills of lading. It appears from the depo- sitions that in the course of her voyage she had, without any assignable reason, put into two Swedish ports situated in the X 2 324 PRIZE CASES. 1856. narrowest parts of the Gulf of Bothnia, though at the time the '' wind was favourable for her alleged destination. The inference from such conduct was, that she had put in there to obtain information respecting the blockading squadron, in order to slip into an enemy's port if she had the opportunity of so doing. Though the master swore that he was captured 20 miles from the enemy's coast, yet the captors stated that he was captured about seven miles from Jacobstadt, and they prayed the Court to allow them to bring in further proof to that effect. Authorities are not wanting for such a course — the " Borneo^' (a), the " Charlotte Christine." (b) The reasons for adopting such a course are far stronger now than formerly, inasmuch as captors are now liable to condemnation in costs and damages, unless there appear to be probable cause of seizure. The officers of the navy are in this predicament ; — if they do not seize vessels apparently attempting to break the blockade, they are liable to be tried by a court martial ; if they do seize them, they are liable to be condemned in costs and damages if the ship-papers disclose no ground of sus- picion, and the master boldly swears he was captured many miles away from the enemy's coast. Nothing can be easier than to have the ship-papers correct for a legal destination, and to have a story all ready prepared in case a British man- of-war should happen to fall in with them. The Court can hardly leave her Majesty's officers in such a predicament, and refuse to allow them to give proof of the actual place of capture. Dr. Beane, on the same side, referred to the Court's remarks on the " Haabet" (c), in the case of the " Leucade" (d) , and contended that there must be some mistake, as the decision in the " Charlotte Christine " (e), in which Lord Stowell admitted captors' evidence, was subsequent to that of the " Haabet," in which he expressed his opinion strongly against such evidence. He also cited, from the MS. notes of the late Dr. Burnaby, the judgment of Lord Stowell in the case of the " Friede." (/) Dr. Addams, for the claimant, contended to the effect of the judgment as to the admission of captors' evidence, and cited the " Haahef"{g), "Charlotte Christine" {h), and the " Fortuna" {{). He also contended that as there was nothing whatever in the ship-papers to raise any suspicion that the vessel was not going to any other port than her alleged destination, she ought to be restored with costs and damages. (a) 6 C. Rob. 351. {d) Anti, p. 232. (g) 6 C. Rob. 54. (4) 6 C. Rob. 101. (e) 6 C. Rob. 101. (h) 6 Rob. 101. (c) C C. Rob. 64. (/) Post, p. 330, n. (i) Ant^, p. 307. THE " ALINE AND FANNY." 325 The QueeiUs Advocate having replied, , ^^^ , The Court reserved its decision, and directed both parties to furnish him with their respective prayers. Dr. Lushington. This is a Lubeck vessel, laden with a Jan. 30. general cargo. She sailed from Lubeck, and according to the Judgment. evidence of the master, was bound to Haparanda, in Sweden, T^^ P.°"^' *' -^ 1SS116 IS} a destination admitted to be lawful. She was captured on the whether the 14th of November, in the past year, 1855, and the alleged attempting to ground of her seizure and detention is, that she was attempting break the to break the blockade of the coast of Finland. The existence ^]^^ poast of of the blockade and its legality is not disputed, the point inland, at issue, or sought to be put in issue, is, the breach of the blockade. The Court, according to its ordinary practice — a practice The unqnes- affirmed and sanctioned by all the highest authorities of the of the Court Law of Nations — looks primarily to the ship-papers and the is to look depositions. With regard to the ship-papers, one single the ship-papers observation will suffice. As far as the bills of lading and and depositions, documents of that description can tend to prove the destination, p^n^ers tend they all point, as strongly as such documents can do, to a strongly to destination to Haparanda. destmation; I then come to the depositions. The master, on the 3rd and are not interrogatory says, " The ship was seized between 63 and 64 '°^h°the de o- degrees of north latitude, about 20 English mUes from land; sitions; we could just see the coast of Finland, and I suppose we were seized for being too near the Finland coast, so the captain of the ' Tartar' told me." On the 8th interrogatory, he says, " that the schooner put into Oregrund, in Sweden, and afterwards into Umea, also in Sweden, and the next day she was taken." On the 30th interrogatory, he deposes " when I left Umea, the day before the schooner was seized, 1 had to steer south-east, and when we made the light-house, on the little island of Gadden, we steered east-north-east to get off the Swedish coast, on which we should have been driven, had the wind blown hard. My proper course was never altered save to keep free from the Swedish coast. When the wind is from the north-east it is very dangerous, and we are obliged to keep well off the land." Again, he says, " we were then 20 miles about from the coast of Finland." On the 35th interrogatory, he denies all attempts to break the blockade. The evidence of the other two witnesses is not material. It does not contradict, but, so far as it goes, supports the testimony of the master. It has been argued that there is an inconsistency in the evidence, as to the cause of putting into Oregrund and Umea. 326' PRIZE CASES. nor with the log. The whole evideDce show- ing a legal destination, the Court can- not ask for further proof, and must, therefore, either restore or receive captors' evidence. Now, even if this were so, and I confess I can see very little difference between distress of weather and contrary winds, I do not perceive how such difference could effect the decision of this case. It was perfectly competent for this vessel to go into any Swedish port she pleased, and for any reason she thought fit, and I am really at a loss to understand how entering a Swedish port would affect the question of blockade, how so doing could render a breach of blockade more probable, or tend to prove a breach of blockade. Reference has been made to the log, and various deductions attempted to be drawn from the entries therein. It has been said that the ship went to Abordso, and not to Umea, Umea being situated much higher up, but it appears to me that this objection is open to a similar answer, what possible criminal motive can with any logical deduction be ascribed to such a misdescription, even if it be one '{ And is it not most probable, that the misunderstanding arose from the want of knowledge of the locality, and that Abordso may be the entrance to Umea, and is confounded with the town itself ? I apprehend that, nautically speaking, it is not unusual to describe tlie entrance to a place as the place itself, for instance, in calling at Cork for orders, it must frequently happen that the vessel never attempts to enter the harbour at all, — merely calls at the mouth of the river. I have no right, nar is it consistent with justice, to assume guilt from a statement that is not clearly intelligible to me, and which does not furnish some rational and probable ground for imputing an unlawful intention. Then how does this case stand ? The captors have not asked for Trinity masters; they have not contended that on the evidence, as it now appears before the Court, condemnation could be decreed, — that is to say, upon the ship-papers, the depositions, and log, — the primary evidence in the case. I apprehend therefore, upon the present evidence, it is impossible for me to say that a breach of blockade has been committed, — the only ground upon which condemnation is prayed, — that I cannot require the claimants to produce further proof when already the papers point to a lawful destination, and when all tlie evidence in preparatory is to the same effect, and the onus is on the captors; and that consequently I must either restore or receive captor's evidence. I consider this to be a case in which the depositions, ship-papers, and loo-, do not afford any ground ior suspecting,— any reasonable ground for supposing,— that tliis ship was committing a breach of blockade. THE '< ALINE AND FANNY." At the risk of occupying more time than I would wish, I state these facts in detail, because I think it will presently . , . . . „ Judgment. appear that inconvenience has arisen from some reports (xhe reports furnished at previous times, from an attempt to render those of cases are reports too short and too succinct, and they have left the Court, succinct as to and every person whose duty it is to study such reports, in a g'^^ "''se to considerable state of doubt and difficulty in such cases. difficulty.) Now, in the present case, certain certificates were brought The regular in on behalf of the captors. They could only be offered as Srthafbeen, statements of what the captors alleged they were desirous of to hear state- proving, if they were permitted so to do by the Court. The captors and Covirt could not regularly receive them as evidence in the first claimants of instance, even if they had been presented in the most formal proposed to shape, for the Court is bound, as I think, when a case comes ^'■""f' if. after before it, to hear it upon the original and proper evidence in the cause on the case, — the depositions and ship-papers. But though the Court ^^^"^^ ^]^^ could not in that stage receive the certificates as evidence, yet the Court according to my recollection, the practice of the Court has ^em further always been to permit both the captors and claimants to state proof, at the hearing any facts they may deem conducive to their interest, and to pray leave to prove them, and for the Court after hearing the case on the primary evidence to deal with such application as it may think fit. I cannot deny that on some occasions the strict rules of pe'^iations •' 1 1 <• 111 from the strict practice have in such cases been departed from, and that the rule of practice Court in former times has been induced, when statements have ocJur^e™-*'*""''^ been made founded upon affidavits or other documents, to look at them even when first offered in an irregular shape, but still only with a view of more formal proof, if such statements should be admitted to proof at all. Such distinctions may not always have been adverted to in the reports. My meaning is, and the Court that a statement has been offered, in the shape either of a certi- ^t the first ficate or affidavit from the captors, and the Court has taken into hearing taken consideration the facts stated in that certificate, or that affidavit of the affidavit, without admitting the further proof at all, but merely, ^^P^;^g^°;^„^ if I may use the expression, de bene esse, has discussed the but not to question at the time without determining whether the evidence ^^^^^^^1°^^ was admissible or inadmissible, and has decided against the induce a captors, saying, « I will give you the benefit of presuming that igtf^'the such evidence has been given in a formal shape." I am afraid claimants. that that has occurred more than once in. former days, and I will presently set forth the reasons why I think so. Under these circumstances, the. prayer of the captors is, that In this case I should receive further proof to the effect that this ship was propoTe'tr running for Jacobstadt, a blockaded port, that on seeing two of prove that the 328 1866.- vessel was running for a blockaded port, but that on seeing two ships of war altered her course, was chased, and captured seven miles from such port. The evidence is tendered in contradiction of the original evidence in the cause, and ■would compel the Court to decide upon the respective credit of the parties. Can the Court receive such evidence when otherwise upon the original evidence immediate restitution ■would be decreed ? The difficulty of the question is increased by- captors being now liable to costs and damages. The question is, ■«'hether Lord Stowell has expressed a judicial opinion against the admission of captors' evidence in cases similar to the present. PEIZE CASES. her Majesty's ships of war, she altered her course, was chased, and was captured 7 miles to the north-north-west of Jacobstadt. The claimants pray that I should reject that proof and decree restitution with costs and damages. Before I approach the main question, I will observe that the evidence offered on behalf of the captors, is not as to any collateral point, but for the purpose of contradicting and disproving the original evidence in the cause, and that even if it were admitted, and no further proof were oflFered by the claimants, the Court would be placed in the predicament so forcibly described by Lord Stowell, — the predicament of having to determine the case without any satisfactory means of deciding upon the credit due to the respective parties. But, passing this by, I come to the main question. The case, as it stands, being according to my opinion a case for immediate restitution, ought the Court to receive evidence to contradict the depositions and the ship-papers, and to prove a breach of blockade? I have already, in other cases, expressed my opinion, that the Court ought not to receive such evidence, and I have stated my reasons, and I have no intention to repeat them. I refer especially to the " Leucade." {a) But as some cases have been cited by the counsel for the captors, which have not, on former occasions, beea brought under the consideration of the Court, I deem it to be my duty, in a matter of so much importance, to consider these cases, and to inquire whether they ought to induce the Court to depart from its former opinion. These questions were at all times replete with difficulty ; and that difficulty is now greatly aug- mented when the consequences may be, not simple restitution to the claimant, but condemnation of the captors in costs and damages, a consequence which formerly would not have followed. It is therefore both my duty and inclination to see if any fresh light can be thrown on this subject. The question then which I propose to myself is this, whether Lord Stowell has or has not expressed his judicial opinion against the admission of captors' evidence in cases similar to the present? That is the question I have to determine, and I pray that these words may be remembered, for there are many distinctions which may arise in cases similar to the present. It appears to me that the case of the " Haabet" (b) decided on the 20th of June 1805, and the case of the « Glierhtigheit;'(c) decided on the 25th of July 1805, furnish (a) Ante, p. 231. (6) 6 C. Rob. 65. (c) 6 C. Rob. 58 n. THE "ALESTE AND FANNY." 329 conclusive evidence of the judicial opinion of Lord Stowell on ^^^^• this question, and that he had supported such opinion by very judgment, powerful reasoning. Of course I do not mean to go over the case of the " Haabet" The "Haabet." again, but I may refer to one single observation there. After having stated certain facts, he says, " The general rule of law notwithstanding, is, that on all points the evidence of the claimants alone shall be received in the first instance ; and if no doubt arise upon that view of the case, the Court is bound, by the general law, as well as by the act of the British legisla- ture, to take those points as fully demonstrated." It is upon that exposition of the law that the Court has hitherto acted, and founded all its previous judgments. Now, it will be desirable to see whether Lord Stowell, sub- Did Lord sequently to the case of the " Haabet," in any degree departed ^'<™'/" subse- '' . . 7 J a r ^ quently depart from the opinion so strongly and so forcibly expressed by him ; from the and, I may add, not only forcibly expressed in the very passage 5o"n?n the I have read, but in the whole reasoning he has set forth in Haabet? giving judgment in that case. In the course of the argument reference was made to what fell The Leucade. from the Court in the case of the " Leucade." (a) I repeat what I said in that case, and 1 am not inclined, till further advised, to depart from one single syllable that I uttered there as being my conviction of what is the law and practice of this Court. I believe I never did say, and I certainly did not mean to say, that, antecedent to this case, captors' evidence had never been admitted in cases similar to the " Haabet" and the " Glierktigheit." I could not well have thought so, and if I said so it must have been a mere slip of the tongue, and for obvious and plain rea- sons because these two cases themselves furnish proof that the evidence of captors in like cases had been admitted, and the effect of these cases is, that Lord Stoioell held the former instance of the admission of such evidence to be mala praxis, and expressed his opinion that it would not be expedient to follow it in future. They furnish, in fact, evidence that such practice would not be unusual in these Courts. What I said was this, " Now, to the best of my knowledge and belief the practice of this Court was as follows; I speak of general rules, to which there may be few, and very few exceptions, as in the case of the " Haabet." Captors' evidence as to the fact attending the actual capture, for the purpose of procuring condemnation, was almost universally excluded," — almost — "I might say, with few exceptions, such as the case of the " Haabet," and the other (c) Ante, p. 231. 330 PEIZE CASES. 1866. Judgment. Der Friede. case cited. Those are the only two cases on record,'' — I mean in the reports, of course, — "and Lord Stowell shows in his judg- ment, and it also appears in a note to the " Haabet, " that he was determined not to admit that practice in future.'' I really am not sensible that there is any error in the statement of the law on the part of the reporter, but if there be an error, the error is with me and not with the reporter. Now, examples of what has been done prior to the case of the " Haabet" and the " Glierktigheit" would be, I think, of little or rather no weight, because they are acknowledged by Lord Stowell and are repudiated by him. The true question would be, did Lord Stowell depart from the principles he laid down in the " Haabet" and in the " Glierktigheit." Now, though this question could not be affected by former practice, still 1 deem it right to notice the case cited by Dr. Deane from Dr. Burnaby's notes to the case of the " Der Friede "(a) 1 have gone through that case. That case commenced on the 14th of February 1803. I have that case here, but I really do not know that I should be justified in reading through the whole of it. On the 3rd interrogatory, in that case, the master sweai-s that "the ship was seized in the river "Weser, lying close to the Mellen buoy, lying just above the Red Sand, in the month of August 1803, by reason of his bringing his ship to anchor in the river after having been desired by the captors to proceed to sea." I had better perhaps state what the general fact was. The master entered the river Weser, ignorant of the blockade which had taken place, and he was warned by one of his Majesty's ships of war, and was desired to go elsewhere. Instead of going elsewhere he anchored his vessel in the immediate neighbourhood of his Majesty's ship of war, and the officer commanding that ship being of opinion that he intended to break the blockade, ordered him away. He refused to proceed unless he could get a pilot, and a pilot he said he could get cheaper in the river than by going to Ider, whither the commanding officer desired him to go. In consequence of this the vessel was seized and detained, and brought here for adjudication. [a) In the possession of Dr- Pratt, who has kindly favoured the editor with a copy. " Captors' affidavits admissible in cases of blockade. Friede, Mehrtens, October 6, 1803. Question whether party has been guilty of breach of blockade. I do not feel that indisposition to affidavits of captors ; — generally true that evi- dence that Court proceeds on, is that afforded by claimants. But circum- stances occurring at moment of cap- ture are open to both — standing or. equal footing as to knowledge and nearly so as to interest, objection therefore to evidence from captors not so strong. In other cases there are documents as well as parole evidence, but evidence at moment of seizure in blockade must be parole. Lay down no general rule as to affidavits from captors." THE "ALINE AND FANNY." 331 I must observe, that in this case there was the most l^^^- extraordinary irregularity I ever saw in any case. Two of judgment. the captors' witnesses were persons from on board his own There was ship, not from the ship captured. There was an affidavit P"'^™^ bringing in the ship-papers sworn by a person who never throughout saw the ship-papers in his life ; in short, there was a mass of *f*^ j^r^^^ irregularity such as I never remember to have occurred in any Friede. case during my practice. This was long before I was con- versant with these Courts. Now I have looked at the minutes of this case which I now The minutes hold in my hand, and I will state what they were: — On the mention of 6th of October the claimants' proctor brought in a protest of any prayer on the master, mate, and mariner, and a further attestation of the captors to be ^ master, and prayed the ship to be restored. In the minutes allowed to there is nothing said as to any prayer on the part of the evidence, captors, — nothing at all, — to be allowed to give evidence in the case. The Queen's Proctor merely prayed condemnation on the evidence brought in on the part of the captors. Whether it was received or not I cannot say, because the case was appealed, and there the captors' affidavit was exhibited, but whether or not that affidavit was ever received by Lord Stowell the minutes make no mention of. What, then, was the result of the case ? Lord Stowell in that case delivered his iudgment, which was read by Dr. Deane from a ^^^ Stowell, "L _ "^ . . giving the short note by Dr. Burnaby. Lord Stowell, taking the evidence captors the of the captors into consideration, was of opinion that the their own seizure was premature, and he restored the vessel. That was evidence, the state of the case ; but he does not say he admitted the vessel, on the evidence as captors' evidence ; but I presume he had admitted ground that all the facts, and even upon the captors' own evidence he premature. restored the vessel. Upon this state of things the case went His judgment up on appeal, and the consequence was, that the judgment was ^fjj^™* affirmed with costs. Their Lordships were not much in the though the habit of giving costs, but they did it on that occasion. So sefdom gavT much for this state of the case. I cannot undertake to say <=osts. exactly what was done because the minutes do not afford me that satisfactory information which I should have expected ; but this is quite clear, among the papers printed there is tlie affidavit of Captain Kosenhagen and others, namely, the affidavits of the captors, dated September 23d, 1S03, and there is also the affidavit of a seaman as to the capture, dated September 12, 1803. ' Now, if I am to form a conjecture, and it Is really no more The Court than ;i conjeclure, from such imperfect materials, I should say taken the ^^* that the Court heard the statement of the captors, and came to captors' 332 1856. evidence into consideration so far as to say that, if admitted, it could not have procured con - demnation. liXioriStawell himself in 1803 as he is said to have done, Om'^Haabet" shows his opinion to have been changed in 1805. The "Romeo." The reasons of that case are not applicable to the present. The Court cannot assent to the reason- ing of Lord Stowell therein, In everything relating to the ship, the decision of PEIZE CASES. the conclusion that even if it had been admitted it could not have worked the effect of condemnation. However, I do not lose sight of the observations which Dr. Burnaby reports as coming from the mouth of Lord Stowell. I mean the obser- vations respecting the reception of evidence as to the place of capture, which, if correctly reported, — which there is no reason to doubt, — are very strongly in favour of receiving captors' evidence under the circumstances. I do not lose sight of those observations, but I think the answer to them is the judgment in the " Haabet" which goes exactly to the point as to the place of capture itself. If Lord Stowell, in 1803, did express himself in the terms which the note of Dr. Burnabifs states he did, then the answer is, that two years afterwards, in 1805, he changed his opinion on that point — the point of receiving evidence from the captors as to the place of capture. There were two other cases cited by Her Majesty's Advocate; to both of them I have referred, and it will be well to make an observation upon them. One was the case of the " Romeo" (a). I think that the question then under the consideration of the Court, — viz., the admission of a document from another ship, — depends upon reasons so wholly different from the present, that it cannot be made applicable with any stringency to the case now under consideration. With regard, however, to the general reasoning attributed to Lord Stowell in that case I am compelled to say, with all my respect for that great Judge, I cannot concur in it. Lord Stowell is said to have expressed himself thus (6) — " The Act of Parliament ordains, that if any doubts arise the Court may direct further proof; but it has not limited the cause of doubt to evidence actually on board, nor could it with propriety have imposed any such restrictions." Now this is the passage from which I am compelled to dissent — " The Court itself might possess information that would com- pletely falsify the claim. Could it be said in such a case that, because the depositions and the formal papers were consistent, there should be no means of extracting the real truth of the facts ? Could it be expected that the Court should proceed to judgment on the mere formal evidence, in opposition to its own private conviction that the whole of what was there stated was false ? It would be impossible to maintain that proposition to the utmost extent." I must say I conceive that the Court, as to facts, — as to all that relates to the ship, and its destination and employment, — ought to know nothing but the evidence before it. As to the (a) 6 C.Rob. 351. (6) C. Rob. 355. THE ^ ALINE AND FANNY." 333 law and the fact of blockade of course the case is wholly and ^1856. entirely different, and here the Court would avail itself of any ^^^ ^^^^^ ^^^^ information which came within its reach or power. I am, be governed therefore, bound to declare, that I wholly discard the notion "J^fj^nle brought that the Court may act on any information not judicially judicially to its brought before it. I do not think it necessary to go further into that case, because the question of admitting evidence from on board another ship really is governed on principles entirely different from this. I now come to the case of the " Charlotte Christine " (a), which "^e " Charlotte '^ Chrtsttne, was also cited. That case was decided on the 1st of August 1805, and after the case of the " Haabet" ; but it is to be 'Rie admission , .,. of the captors remarked that the captors evidence was received prior to the evidence in decision in the " Haabet," as appears by the minutes of the *^ " (^harhtie proceedings in that case. preceded the This fact alone would prevent the case of the " Charlotte ^^^Haabet- Christine" from being an authority over-ruling the " Haabet" and the Court's even if there were no distinguishing circumstances ; but it is ^^cision was ° ° . founded on the most remarkable that the judgment throughout is founded upon claimants' the claimants' evidence, and not upon the captors' ; and if any "°* ?" *^^ ' , ^ , '' captors conclusion is to be drawn from it at all, it would rather appear evidence. that Lord Stowell, having admitted the captors' evidence prior to the case of the " Hadbet," was reluctant, after having given his judgment in that case, to make any use of the captors' evidence in the case of the " Charlotte Christine." I wiU not read the whole of that judgment in order to make I^rd Stowell good my words, because I think that would be wholly un- avoided the necessary, but I will read merely the conclusion of it. After diffipi'ty having referred to the evidence of the claimants throughout, his admission Lord Stowell says — " On a full consideration of all the circum- ofcfpto^s' •' evidence in the stances of the case, and on the representation of the party "Charlotte himself, I am bound to pronounce that this ship and cargo were ^i^^ubsequenf sailing in breach of the blockade.'' expression of Now I commend to persons the whole of that judgment, and "^Haabet" if any one wishes to understand this subject accurately and against such • • 6vid6iicG b6ing minutely, he will there see a specimen of Lord StowelTs skill — received. he will see how he was enabled to pronounce that judgment, as he did pronounce it, without reference to the captors' evidence (though he had admitted it), and as it appears to me clearly avoiding that evidence, in accordance with the opinion which he had expressed in the case of the "Haabet." But this gives rise to another observation when one looks J'<"' other , T 1 p ^ • • 1 reasons, also, into it minutely. In the report or this case it appears that on the " Charlotte (a) 6 C. Rob. 101. 334 PEIZE CASES. 1856. Christine" forms no pre- cedent for the admission of captors' evi- dence in cases similar to the present The Rapid: Captors' evidence was there admitted, hut ybr what reason the Court cannot discover, as no report exists respecting that point. the original depositions the master had made certain statements. Now what follows in the report ? It does not appear that it js the evidence, but it is, in fact, a statement of the learned reporter, and a mixture of what did appear in the original depositions, and in the captors' evidence. Now that should be borne in mind if this case is to he understood ; and then there is another fact that must be noted here, viz.— that this was a case where there was suspicion on the original evidence— a clear cause of suspicion, the vessel being within a mile and a half of the French coast, of which the greater part was blockaded, in the immediate neighbourhood of Havre. Therefore in all these points of view the " Charlotte Christine " would not operate as a precedent. There is another . case not reported, for the discovery of which I am indebted to the Registrar — that is the " iJopirf " (Fleming). I mention this because my object is to lay before counsel and the public the whole that can be said on the question, whether it makes in favour of my opinion or not. That case no one can well understand until he has taken the trouble of going into the original papers, and seeing what actually did occur. The " Rapid " (Fleming), as reported in Dr. Edwards^ Admiralty Reports (a), is merely a case which was decided on the question of carrying despatches. Dr. Edwards states, that the question of destination Iiaving been abandoned by the captors, the case was argued only on the point of carrying despatches. The case was carried up to the Court of Appeal ; and I find, — here are the papers now before me, — that one of the principal reasons stated on behalf of the captors' counsel for carrying up that appeal Is, that the vessel was going to a blockaded port. Now there the captors' evidence was admitted by Lord Stowell, and admitted after the case of the " Haabet." (b) I think it right to state that. But I am bound to say. after having looked at this case with some care, I cannot venture to pronounce an opinion how, why, or wherefore, captors' evidence was admitted on that occasion. There is no report of it that I am aware of anywhere beyond what I have stated above. The case occurred within my own time, but I have no (a) Edw. 228. (b) Minutes in the case of the " Rapid." " 1810. Feb. 6. The cause came on for hearing, when the Judge directed the same to stand over, and reseiTed the consideration of the effect of carrying the despatches. Feb. 16. The cause again came on for hearing, when the Judge took time to deliberate whether he should permit the captors to exhibit affi- davits. March 6. The Judge, having maturely deliberated, gave permission to the captors to bring in attesta- tions." THE " ALINE AND FANNY." 335 recollection of it, nor any note of it that I can find. I think, i ' . however, there is a circumstance in that case which accounts Judgment. for the admission of captors' evidence without infringing on the general principle. That circumstance is this — there was an admitted confusion in the log. It was admitted that one of the days on which the log ought to have been entered up had been omitted, and that the entry of the subsequent day applied to the preceding. There was a cause of suspicion on the primary evidence which might, or might not, for I do not know, be the reason why captors' evidence was admitted. I have only to observe, that I have mentioned this case because I am anxious to disclose all that I know upon the question ; and if the present case should be carried to the Court of Appeal, I hope this case and others will be made available, and that their Lordships will be in possession of all the infor- mation which I, at least, can throw on the subject. These are all the cases, so far as I can find, — though I will ^o «ases as not say what the investigation of the printed volumes might Lpugn'the^* produce, — having any application to the " Haahet," or to the doctrine of the . iP-r ,,, ." Haabet." question now before me. it appears to me that they do not in any degree whatsoever impugn the authority of that deliberate judgment, nor leave to me any lawful and just cause for depart- ing from it. Sure I am that the reasoning in the " Haabet" and the " Glierktiffheit" cannot in any degree be refuted, and the consequences likely to arise from a contrary doctrine cannot be denied. It is true, however, as has been forcibly argued by Her The liability Majesty's Advocate, that circumstances have been somewhat a-davs to* costs' changed, and that the captors run greater danger of being and damages condemned in costs and damages than they did formerly. But J^g Cmirrin^ however this may be, and for aught I say to the contrary, It departing from tllfi fills 9Ji may be a reason for the Judicial Committee to depart from the to the non- authority of the " Haabet,'' yet I do not think it is competent reception of to me to adopt such a course. Were the admission of captors evidence an Indisputable corollary to the case of the " Ostsee,"(a) it would be both my duty and my inclination to acknowledge it ; but I do not think that such a consequence can be fairly predicted to follow from that judgment, and I think so both from the terms of the judgment itself, and from the fearful consequences which. In the opinion of Lord Stowell and of myself, would necessarily follow from the alteration of the practice. If, therefore, the practice Is to be altered in this Such deviation particular, and If captors' evidence Is to be received, it must be biished practice (a) Ante, p. 174. 336 PRIZE CASES. 1856. must emanate from the Superior Court. The ship must he restored, but without costs and damages. Cases might occur where captors' evidence as to the place of capture might possibly be received. In the present case no serious doubt arises upon the depo- sitions and ship-papers. Simple restitu- tion. the act of a higher authority than mine — it must emanate from the Judicial Committee. . For these reasons my decree will be as follows: — In the present case I must reject the prayer of the captors for the admission of the evidence stated. I must restore the ship and cargo, but without costs and damages, because I think that the place of capture, as originally described by the master himself, proves that the seizure and detention were not without justifiable cause. To prevent mistakes hereafter I must add one other obser- vation. I do not mean to say, nor, as I apprehend, did Lord Stowetl, that there were not cases, even as to the place of capture, where captors' evidence might be received. I can conceive cases in which it might appear from the original evidence and the depositions that there were doubts respecting which it might be just and consistent with principle to admit captors' evidence, but these would be exceptional cases, and not, in my judgment, resembling the present, and would have to be determined upon their special circumstances whenever they might arise. My decree is founded upon the conviction that no serious doubt arises on the primary evidence in this case, — the depositions and ship-papers,. — that this ship was, according to the evidence, taken 20 miles from the coast of Finland. If that can be constituted into a cause for detention, and to justify the production of captors' evidence, it does appear to me that any vessel navigating the gulf, which is about 60 miles wide, might be detained on a similar presumption. The decree is, therefore, simple restitution. Jan. 30 & Feb. 6. The afadavit accompanying the claim must state the residence of the claimant. A prayer for further proof must be foun- ded on a statement of THE « PANAJA DRAPANIOTISA," {a) H-4EZALIAKO. 1 HIS vessel sailed out of Odessa in ballast, under Greek colours, on the 30th of May 1855. On sailing out of the harbour her master sent to her Majesty's ship « Niger,'' which was then blockading Odessa, to inquire whether he might pass out for the Danube, and was informed that, if unladen, he might do so, but must first come alongside the " Niger " to have his papers examined. (a) The case of the "Hariklia," similar, and the judgment of the heard on the same day, was precisely Court applied to both. |THE "PANAJA DRAPANIOTISA." 337 The examination of the ship-papers and other suspicious 1856. circumstances led to her being seized as prize and sent to . , . -_ ,, , , . ,. T , , , what IS intended Malta, where the exammations m preparatory were taken. ^ beproved. An affidavit and claim were given in by Michael Zarifi, of The omissioa Leadenhall Street, on behalf of " Paul Iraclidi, merchant and j^e^t renders a shipowner, a subject of his Majesty, Otho, King of Greece, claimant liable the true, lawful, and sole owner and proprietor of the said ship." When the case came on for hearing, the Queen's Adbocate Argument, (with whom was Dr. Deane) for the captors, took a preliminary objection to the claim and affidavit accompanying it, that the place of residence of the person in whose behalf the claim was made, and also the usual denial that any interest in the property remained in any one "inhabiting within the country, territories, or dominions " of the enemy, were omitted, and that consequently it did not appear that the claimant had any locus standi in the Court. The Court said it would give no decision upon the point until it had heard the counsel for the claimant. Dr. Addams, for the claimant, stated that this and other vessels had entered Odessa under Servian colours, and had been detained by the Eussian government, but subsequently released ; that certain expenses had been incurred, which the owners were unable to defray, and that this vessel had been sold to Mr. Iraclidi, a Greek merchant, then residing at Odessa, but a subject of the King of Greece, and that he in- tended to dispatch her, and, in fact, did dispatch her, to Odessa. He said, that if Mr. Iraclidi had continued to trade with the ship from Odessa, she would, though under Greek colours, certainly be liable to condemnation, but that it might appear that Mr. Iraclidi had a house in Greece as well as in Kussia, and that the vessel was intended to trade exclusively for that Greek house as a Greek vessel ; and that it might also appear that Mr. Iraclidi was at Odessa for a temporary purpose, and that he was about to quit it. He therefore prayed the Court, under the circumstances, to admit further proof in explanation of the real facts of the case, and cited the " Jonge Klassina," (a) and the " Herman." (b) The Queen's Advocate opposed the prayer, and contended for immediate condemnation, on the ground that there was no claim before the Court, as it clearly appeared that Mr. Iraclidi was a merchant resident at Odessa, and therefore totally exlcx, {a) 5 C. Rob. 297. (6) 4 C. Rob. 228, 338 PRIZE CASES. 1856. and had no persona standi in judicio. The " Hoop." (a) He said '^i^^^l^t. *^^* t^6 claimant's counsel did not appear instructed to state what could be proved, if further proof were allowed, that the Court refused, in the " Nina," {b) to open a case to further proof, without information as to what could be proved, and when further proof could only lead to false evidence, and that no proof could possibly get rid of the master's evidence, that Mr. Iraclidi was a merchant resident at Odessa, (n) Dr. Deane followed on the same side. Judgment. The Court has caused search to be made as to the practice in former wars with regard to claims and the affidavits in support there- of. De. Lushington. I reserved my judgment in these two cases, — not because I entertained the slightest doubt what must be my decision, but for the purpose of considering ; first, what was the practice with respect to claims and the affidavits in support thereof, and the prayers hoth of the captors and claimants ; and secondly, what must be the description of the statement, upon which the Court would decree further proof. Now, speaking to the best of my recollection, and so far as I have been able to refresh my conviction by search as to matters with which I have not been directly conversant for so many years, and which involve only questions of practice and not prin- ciple, and consequently take less hold of the memory. With respect to the claim offered in this case, and the affidavit in support thereof, I have caused a search to be made as to the practice both in the former and present war, and I am glad to find that the principle and the practice, with a few unimportant exceptions, entirely concur. (a) 1 C. Roh. 200, where Lord Stowell says, — " In the law of almost every country, the character of alien enemy carries with it a disability to sue or to sustain, in the language of the civilians, a persona standi in judicio. The peculiar law of our own country applies this principle with great rigour. The same principle is received in our Courts of the Law of Nations; they are so far British Courts, that no man can sue therein who is a subject of the enemy, unless under particular circumstances, that pro hdc vice discharge him from the character of an enemy ; such as his coming under a flag of truce, a cartel, a pass, or some other act of public .authority, that puts him in the King's peace pro hdc vice." (6) Ant^, p. 279. (c) In answer to the 4th interro- gatory, the master deposed : " I was uj'pointed to the command of the vessel by Mr. Paoios Iraclidi, the owner, of Odessa, whereat he per- sonally delivered up to me the pos- session, on or about the 22d day of the month of May last. I left him at Odessa, where I believe him still to be, for he is established as a mer- chant thereat, and I believe it is his fixed place of abode, though I am not quite certain on this point. I know not how long he has resided at Odessa, nor where he was born, but I know him to be a subject, like my- self, of the King of Greece." And in answer to the 8th interrogatory : " Whilst at Odessa, she was under the direction and management, in respect to her employment or trade, of the owner on the spot, Mr. Paolos Iraclidi, the party I have already named, with whom I should have had to correspond, when away from Odessa." THE "PANAJA DRAPANIOTISA." The principle is this, that to support a claim in the Prize Court the individual asserting his claim must first show that Judgment. he is entitled to a locus standi. No person to whom the character The claimant of enemy attaches can have such claim, save by the express Xt he^°s"'en- *' authority of the Crown ; therefore to prevent deception, which t't^e^ *" ^ might arise from the use of ambiguous terms, and to stop and*is*not"' claims which might be preferred In one sense by the subjects of tainted with friendly or neutral states resident in the enemy's country and of enemy. carrying on a trade there, it has always been deemed necessary He must there- that the claimant should describe, both affirmatively and nega- affirmatively tively, the character in which he claims. *e character He must describe the place to which he belongs, and he must claims. negative all enemy's Interest in a form specially framed for that He must state purpose, and intended to apply, to all Intents, to any person whiKe be- resident within the territories of the enemy, to whatever country longs and he may happen to owe allegiance, (a) rnteresrattach- The excepted cases are where an enemy merchant claims ""gtoanyper- j /^ J • /-^l •! T -i 1 n • son resident in under an Urder m Council, or licence, and then, of necessity, the territory of the form is altered and the ground of the special claim inserted. *'' enemy. The form of the affidavit has been altered from time to time, -was TarieYto according to the States with which Great Britain was at war. ?"■* the chang- Origlnally It excluded only persons resident In France ; as the stances of the war became extended, it was altered to affect the subjects of ^"• other countries declared to be at war with Great Britain. Now, it appears from the search that has been made, that In This is kno^rn the war previous to this,— that of 1798,— the address of the yr^etilehyln^ persons for whom the claim Is given has always been Inserted, examination In the long list which I now hold in my hand, there Is not a of cases. (a) The following is the visual form lately Men therein, and which ship of claim and affidavit: — or vessel was seized, to wit, by the Admiralty Prize Court. officers of her Majesty's Customs for The S^ip 1 the port of , on the Master. J day of . And the 185 Appearer further made oath, that he Appeared personally verily believes that neither the Em- of peror of all the Russias, nor any of in the Kingdom of Sweden, master his subjects or others inhabiting within mariner, and made oath that he is a any of his countries, territories, or subject of his Majesty the King of dominions, their factors or agents, Sweden and Norway, and is duly au- nor any others enemies of the Crown thorized to make the claim hereunto of Great Britain and Ireland, had at annexed as agent, and on behalf of the time of the seizure thereof, as and aforesaid, or now have, directly or all of indirectly, any right, title, or interest in the kingdom of Sweden, merchants, in or to the said ship or freight, but and shipowners, and subjects of his that the same were at the time of Majesty the King of Sweden and the seizure thereof, and still are, and Norway, the true lawful and only when restored wiE still be, the pro- owners and proprietors of the above- perty of the said named ship or vessel , and of the freight due for the only, neutral subjects ; and lastly transportation of the cargo now or that the claim hereto annexed, is (as y2 340 Exceptions to the rule are invariably attributable to the peculiar circumstances ofthe particular •cases. The-same practice has been almost uniformly followed in the present war. PRIZE CASES. single exception, — the address of the persons always being insei-ted — ^by the address I mean the particular place to which he is described as belonging. Then, with regard to the clause in the affidavit beginning thus, " inhabiting within any of the countries, territories, or dominions of so and so," there are certain exceptions. Out of 30 or 40 there are three or four cases in which this clause is omitted, but these are special instances, and are entirely accounted for by the circum- stances of each individual case. Such, for instance, is the case of the " Le Sparch" — it was necessary that the claim or affidavit should be special, because there were very special circum- stances attending that case. The claim, for instance, was of this kind. The island from which the property had been shipped had at one time been in possession of the Crown of Great Britain, afterwards had been restored to France, and again re-conquered by Great Britain ; the property had been shipped during the time when it was under French dominion, but, before the capture, the country had again become subject to G'reat Britain ; the affidavit of claim was therefore subject to the alteration which was necessarily called for by such peculiar circumstances. Such was the case of the " Le Sparch,'' It is not necessary to mention the other cases ; but wherever the exception has been inserted, it is fully warranted, and indeed required, by the facts of the case. It may, therefore, now be taken with regard to the practice in the prior war, that it was what I have stated. With respect to this war it appearSj with regard to the address, that in every case except one or two, — I am not prepared to say whether this did not happen from inadvertence, — the address has uniformly been inserted, till the case under consideration. he verily believes), a true and just claim, and that he shall be able to make due proof and specification thereof. On the day of the said was duly sworn to the truth of this affidavit._ Before me Admiralty Prize Court. The Ship 1 Master. J The claim of of in the Kingdom of Sweden, master mariner, a subject of his Majesty the King of Sweden and Norway, on behalf of and all of in the Kingdom of Sweden, mer- chants and shipowners, and subjects of his Majesty the King of Sweden and Norway, the true, lawful, and only owners and proprietors of the above named ship or vessel and of the freight due for the trans- portation of the cargo now or lately laden therein, and which ship or ves- sel was seized, to vnt, by the officers of her Majesty's customs for the port of , on the day of for the said ship or vessel and freight, as the true, lawful, and sole property of the said and neutral subjects, and fop all such losses, costs, charges, damages, de- murrages, and expenses as have arisen, or which shall or may arise, from or by reason of the said seizure. THE "PANAJA DEAPANIOTISA." 341' There have been some cases in which the clause " inhabitina within any of his territories," has been omitted, because the claims have been made by Kussians alleging themselves to be protected by an express Order in Council. There are two or three other cases in which, in consequence, I presume, of no notice having been taken, and the objections not having been brought before the Court, the clause has been omitted. I conceive this examination shows what the practice is, and The claim and as it is conformable to principle we must adhere to it in future, present' cas*^ Having said so much with respect to the claim and affidavit are defective j which would clearly prove the claim and affidavit in these niento/thf" cases to be entirely defective, it is not necessary for me to enter Court is not into that question, because my judgment will be founded on that deficiency. other circumstances. I now proceed to consider the case in the other alternative, The practice as that is, the effect of further proof proof. It was customary when the ships were brought in, for the The captors' proctor for the captors to file what some may have called a prize ubef merely* libel. This libel or allegation contained no special facts — it was a praying con- matter of mere form, and, in my opinion, of unnecessary form. cfaimantT' *° It concluded with a prayer for condemnation — that was the only brought in prayer given in. With respect to the claimants, a claim, in the mg resti- form now in use, was brought in, and they claimed originally tatw. 'with - . . . , -I -I IT , <=°sts and tor restitution with costs and damages, and 1 am not aware that damages. before the hearing any other prayer was ever made — either brought into the Registry or offered to the Court. When the cause came on for hearing, the counsel for the cap- 4* '^® Clearing, , , . , , „ , . , the captor s tors opened his case and prayed tor condemnation, or argued that counsel argued it was a case for further proof, according to his own judgment, ^ 'f thought ^ ' . , ° J "' fit, hut could but he had not, as a matter of right, any power to call on the not, of right, claimant's counsel to state what would be his particular prayer, jj'aimanfs' The claimant's counsel then argued for simple restitution, counsel to restitution with costs and damages, or further proof, as he particiiar deemed most advisable. Of course if the captor's counsel prayer. asked only for further proof, and the claimant's counsel knew The claimant's that further proof was the utmost he could obtain, he at once a°™ed for^" acquiesced, and then there was no argument. In practice, restitution or cases for further proof were for the most part very quickly acMrdingTo ^disposed of; the great majority of such cases arose from the the cu-cum- proof of the property, belonging as claimed, not being sufficient, case. as, for instance, where the master could not speak to it in Cases for his deposition, or where the ship-papers did not describe to ^^^^^gj^™"^ whom the property belonged. argued, heing The rules of the Court applying to such questions were so p°r*geS'ly well known that little or no dispute arose. Both parties knew understood. 342 PRIZE CASES. Neither party was compelled at the opening to make any specific prayer, though in fact it was every day practice for counsel to state what they asked for. In tlje case of the " Chrissys " the Court asked for the prayer in consequence of what had previously fallen from counsel ex- pecting the smaE value of the property. In the present case restitution could not he granted without fiirther proof. From the evi- dence of the master it ap- what must be a case for farther proof, and it was ordered by the Court without any discussion. Such was the general practice in cases of that description, but of course there were many cases where the sole question was condemnation or restitution, and some where the captors contended that no further proof ought to be allowed, and others where the claimants contended that no further proof was necessary. The result of the whole was that each party was entitled to take his own course, and neither would be compelled at the opening to make any specific prayer. The counsel for the captors could not ask the claimants whether they asked for restitution or further proof, neither could the counsel for the claimants ask the captors whether they prayed condemnation or would consent to further proof, — I mean as a matter of right, — de facto it was done almost every day, or I may say almost every hour. The court was not fettered by any restriction, but at any time it might ask either party what was his prayer. This power, however, could avail but little, for the captors might answer, as in fact they often did, in the alternative — condemnation, or, if that be refused, further proof, and 80 the claimants might answer restitution or further proof. Now I deemed it might be convenient to those who practise in Prize proceedings that I should state what, to the best of my recollection, was the practice of the Court. I will only add the reason why in the case of the " Chrissys^ I asked Dr. Addams what was his prayer. I did so, — not with the slightest intention of fettering his discretion in offering any prayer in the alter- native or otherwise as he might think fit, — but because it had been mentioned by him in argument that on account of the small value it might not be expedient to ask for further proof, or to take it if the Court were disposed to grant it Had I not put the question I might — I do not say I should — have been under the necessity of ordering further proof when such order would have been nugatory, when the owners would not accept it, and when the only consequence would have been delay and the deterioration of the property to no possible advantage whatever to any party. With respect to the present cases I mean to make a few ob- servations. It is admitted that these are not cases in which restitution could be claimed upon the evidence before the Court, indeed I think the true description is that primd facie these are cases for immediate condemnation. The masters state that these vessels are the property of a Greek subject carrying on trade at Odessa. If that be the true THE "PANAJA DEAPANIOTISA." 343 description, then, beyond all doubt, the ships are subject to ^856. condemnation as enemy's property, T\ J y, "it 1-1 /. •• pears a case Dr. Addams very properly decJined to argue for restitution, for condemna- but begged that the Court might admit further proof, but he *^'"'- had no instructions which enabled him to state the facts that ^m instructed further proof would establish, nor upon what ground further *<> state what proof could found a claim to restitution. proved if fur- Now the Court has never bound itself to require that further *'^'" ^^°°^ proof should be asked for in any particular form ; frequently it might happen that want of time and opportunity to advise with the owners might prevent such prayer from being accompanied by any affidavits or documents. But what the Court always requires is, that whether the re- ^""^ " ^t^**- «/.! ni I- -I t 1 f 1 ™6nt IS always quest ot iurther proof be rounded on the statements ot counsel required before or affidavits or other documents, such a case should be presented *" Court can _ . . . . allow further as might, if it were proved, entitle the claimant to restitution, proof. Then, according to the circumstances, the Court would allow further time to substantiate the statements made by counsel, or it would decree further proof at once. In the present instance the counsel are not instructed even to say what the description of case might be, which they pro- pose to establish by further proof. They, and of course their proctors, are in total ignorance. _ case°ajrly?r ' I must say that the prayer for further proof, under such cir- for further cumstances, is not only unprecedented, but I think without any a'stat'ement*'of justification, and I trust that such a prayer as this will not be ^'lat is to be repeated, lest I should be under the necessity, if such a prayer subject' the were repeated, of condemning the claimant in costs. claunant to I condemn these two ships. Condemnation. THE » CHEISSYS," G. K Mokaiti. jan. is §• so. X HIS vessel, under Greek colours, took on board at Foki, in A vessel cap- the Gulf of Smyrna, a cargo of salt, and sailed therewith, mHesoutTfits bound, according to the master's statement, for Tultsha, on course, and in the Danube. On the 22d of May 1855, she was captured by hoodo'fa"^" her Majesty's ship " Niger," about 25 miles to the southward blockaded port, of Cape Fontana, whereon the Odessa light stands, and was restored loiMout sent in for adjudication on the ground of an intention to break /«'t*«'"P™?/ of •> ° Its destination, the blockade of Odessa. A claim was given in on behalf of Mr. Constantino John If the claimant Bolanachi, of thelsland of Syra, a subject of the King of Greece. Jro^the^'""" The master stated in his evidence that he was proceeding to Court is bound Tultsha, and that on reaching Constantinople he deemed it the'^property. 344 PEIZE CASES. ^ ^^^^- necessary, in consequence of information he received as to the depth of water at the Sulina mouth of the Danube, to lighten the vessel, by disposing of a portion of the cargo, and that on the 19th of May he sailed with the remainder for Tultsha, where he expected to meet his owner. He also stated that he was the shipper of the cargo, and would have been the consignee if she had arrived at her destination. He accounted for the fact of his being far out of his course by saying, that he did not know where he was. Argument. The Queen's Advocate and Admiralty Advocate for the captors. As there is nothing on the ship-papers to corroborate the master as to the destination of the vessel, the document on board resembling a cargo-paper for the salt, and no log, and as the vessel was captured 70 miles out of her course, for which the only excuse given is, that the master did not know where he was, the inference is that she intended to break the blockade. The absence of the log leads to the inference that it has been destroyed. If the Court thinks it cannot condemn, it is clearly a case in which it can allow the captors to give evidence as to the place of capture. Dr. Addams for the claimant. The value of the ship and cargo is considerably below 500/., and the master is the shipper, and would have been the con- signee of the cargo if the vessel had reached her destination. This accounts for there being no cargo-paper. As to the log, these small foreign vessels frequently have none, and no infer- ence of criminal intention can fairly be drawn from its absence. What are the probabihties of the case ? If the master intended to go to Odessa, what necessity existed for his unloading any portion of the cargo at Constantinople ? He would only have done that for the reason which he assigns, viz., that he could not otherwise have entered the Danube. Besides, the master must have known that Odessa was blockaded, and that it was 100 chances to 1 against his getting in there, and 1,000 to 1 against his getting out again. Whatever may have been the reason of this vessel being out of her course, there is nothing to discredit the master's assertion that he was going to Tultsha. The value of The learned counsel expressed a hope that the Court would being'Suhe restore the vessel, but that if it would not do that, it would claimant condemn it, inasmuch as the value of the property was so small, proof. ™^t " further proof were ordered the whole proceeds would be absorbed in costs. The counsel ,for the captors having replied, the Court reserved its decision, and directed the parties to furnish it with their respective prayers. THE "CHRISSYS." Dr. Lushington. I shall dispose of this case in a very few words. This is a case in which, if further proof had been asked on behalf of the claimants, I should not have hesitated in allowing them to bring it in. But, as the case stands, I have only to decide between restitution and condemnation. It appears, according to the evidence of the master himself, and the circumstances set forth, that he was 60 or 70 miles out of his course, away from his proper destination. The port, into the neighbourhood of which she had got, was an enemy's port. I apprehend it to be quite clear, under such circum- tances, that, according to law, there must be further proof to entitle the claimant to restitution. I desired that a prayer might be made with reference to the decision of the Court, that the case might be disposed of according to what the claimants thought most for their advantage. The prayer is for restitution, not further proof I am under the necessity, as no further proof is asked for, of condemning the ship. Dr. Addams. The Court is aware of the reason. The Court. The smallness of the property. I have given the best consideration to the case. If I could, I would have restored, on payment of captor's expenses. It is a case for proof, I am bound by the law to say so, and if the parties will not accept further proof, I must condemn the property. 345. 1866. Jan. 30. Judgment. The only ques- tion in this case is restitution or condemnation. The circum- stances of the case are such as to preclude the Court from re- storing without further proof. As the claimant declines further proof, the Court has no alternative but to condemn the vessel. Under the cir- cumstances the Court would have restored, if possible, on payment of the captor's expenses. « THE NINA," Stipanovich. 1 HIS was an appeal from a judgment of the Admiralty Prize Court condemning this ship, and refusing to allow the claimant to bring in further proof. The facts of the case have been already reported at p. 276. Dr. Addams and Dr. Ttmss appeared for the appellant ; the Queen's Advocate and the Admiralty Advocate for the respon- dent, (a) (a) One document. No. 13, was strongly relied upon, as showing that Mr. Gherdacovich, the claimant, was not the sole owner. It was the copy of a letter from the master to his principal at Odessa, in which he ex- pressed a hope that after having served him for the long period of four years, he would he allowed the 5 per cent, upon the remittances; and stated that the " Nina" had not heen so profitable, but reminded the principal that he did not remit for the expenses as in past times, as the Feb. 7^ n. Judicial commiitee of THE PeITY Council. The judgment of the Court below simply afiBrmed with costs. former captains had not only received this 5 per cent., but also presents in addition. He hoped his demand would be complied with. This letter was dated " Glubok, 16th December ■ 1854," and in a postcript the master begged an answer to his demand to be addressed to Constantinople, for which place he was bound. It concluded with these words — " Com- municate this to Mr. Martina Gher- dacovich," thereby showing that the principal to whom the letter was addressed was not the claimant. 346 1856. Peitt CODNOJX. Judgment, Their Lord- ships concur with the Court helow both as to the facts and the law. PRIZE CASES. The Court consisted of the Right Honourables SiK Edwakd Eyan, Thomas PEMBEETOisr Leigh, Sir John Patteson, Sir John Dodson, Sir William Henry Maule. The Right Hon. Thomas Pemberton Leigh delivered the judgment of their Lordships. The learned Judge in the Court below appears to their Lord- ships to have fallen into a little inaccuracy with respect to the period at which the claimant quitted Odessa. He appears to have considered that he remained tiU November 1854; the result of the evidence, in the opinion of their Lordships, is that he quitted Odessa soon after midsummer in that year, but it makes no difference in the conclusion at which the learned Judge has arrived. With that single exception, their Lordships entirely concur in opinion with the learned Judge, both as to the facts and the law of the case ; they think that he has exercised a perfectly sound discretion in refusing further proof, and they must recommend to her Majesty to affirm the sentence, with costs. APPENDIX. A. Declaration of hee Majesty with reference to Neuteals and 28th Mar 1854 Letters of Maeqtje. L Her Majesty the Queen of the United Kingdom of Great Britain ueclSon''''* and Ireland, having been compelled to take up arms in support of ^.j^j^ reference an ally, is desirous of rendering the war as little onerous as possible to neutrals and to the powers with whom she remains at peace. letters of To preserve the commerce of neutrals from all unnecessary ob- ™arque. struction, her Majesty is willing, for the present, to waive a part of *"~~~ the belligerent rights appertaining to her by the Law of Nations. It is impossible for her Majesty to forego the exercise of her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's despatches, and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade which may be established with an adequate force against the enemy's forts, harbours, or coasts. But her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war. It is not her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemy's ships; and her Majesty further declares, that being anxious to lesseil as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue Letters of Marque for the commissioning of privateers. Westminster, March 28, 1854. B. At the Court at Buckingham Palace, the 29th day of March 1854. Present, The Queen's most Excellent Majesty in Council. Her Majesty having determined to afford active assistance to her 29th Mar. 1854. ally, his Highness the Sultan of the Ottoman Empire, for the pro- "": — tection of his dominions against the encroachments and unprovoked y™*"^ ^. Conn- aggression of his Imperial Majesty the Emperor of all the Kussias, genera" '"^ her Majesty therefore is pleased, by and with the advice of her Privy reprisals Council, to order, and it is hereby ordered, that general reprisals be against Russia. granted against the ships, vessels, and goods of the Emperor of all the Kussias, and of his subjects or others inhabiting within any of his countries, territories, or dominions, so that her Majesty's fleets and ships shall and may lawfully seize all ships, vessels, and goods belonging to the Emperor of all the Kussias, or his subjects;^ or a ii APPENDIX. others inhabiting within any of his countries, territories, or do- minions, and bring the same to judgment in such Courts of Admiralty within her Majesty's dominions, possessions, or colonies as shall be duly commissionated to take cognizance thereof. And to that end her Majesty's Advocate General, with the Advocate of her Majesty in her Office of Admiralty, are forthwith to prepare the draft of a Com- mission, and present the same to her Majesty at this board, autho- rizing the Commissioners for executing the office of Lord High Admiral to will and require the High Court of Admiralty of England, and the Lieutenant and Judge of the said Court, his Sur- rogate or Surrogates, as also the several Courts of Admiralty within her Majesty's dominions which shall be duly commissionated, to take cognizance of, and judicially proceed upon, all and all manner of captures, seizures, prizes, and reprisals of all ships, vessels, and goods that are or shall be taken, and to hear and determine the same ; and according to the course of Admiralty, and the Law of Nations, to adjudge and condemn all such ships, vessels, and goods, as shall belong to the Emperor of all the Eussias, or his subjects, or to any others inhabiting within any of his countries, territories, or dominions ; and they are likewise to prepare and lay before her Majesty, at this board, a draft of such instructions as may be proper to be sent to the said several Courts of Admiralty in her Majesty's dominions, possessions, and colonies, for their guidance herein. From the Court at Buckingham Palace, this twenty-ninth day of March, one thousand eight hundred and fifty-four. Ceanworth, C. G-RANVILLE, p. Aegyll, C. p. S. Newcastle. Beeadalbane. Lansdovtne. Abercoen. Aberdeen. Clarendon. Drumlanrig. Mdlgeave. J. Russell. Ernest Beuce. Sidney Herbert. J. R. G. Graham. Stephen Lushington. W. E. Gladstone. William Moleswoeth. At the Court at Buckingham Palace, the 29th day of March 1854. Present, The Queen's most Excellent Majesty in Council. 2ythMar. 1854. It is this day ordered by her Majesty, by and with the advice of Orderln" ^^^ Privy Council, that no ships or vessels belonging to any of her . Council for Majesty's subjects be permitted to enter and clear out for any of the preventing ports of Russia, until further order ; and her Majesty is further vessels clearing pleased to order, that a general embargo or stop be made of all- out for Kussia, Russian ships and vessels whatsoever, now within or which shall and ordering APPENDIX. iii hereafter come into any of the ports, harbours, or roads within any a general em- of her Majesty's dominions, together with all persons and effects on ^^^S<^ oy stop board the said ships or vessels : Provided always, that nothing °^ ^'''jssian herein contained shall extend to any ships or vessels specified or " comprised in a certain Order of her Majesty in Council, dated this twenty-ninth day of March, for exempting from capture or detention Russian vessels under special circumstances ; and her Majesty is pleased further to order, and it is hereby ordered, that the utmost care be taken for the preservation of all and every part of the cargoes on board any of the said ships or vessels, so that no damage or embezzlement whatever be sustained. And the right honourable the Lords Commissioners of her Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Lord Warden of the Cinque Ports, are to give the necessary directions herein as to them may respectively appertain. C. C. Greville. D. At the Court at Buckingham Palace, the 29th day of March 1854. Present, The Queen's most Excellent Majesty in Council. Heb Majesty, being compelled to declare war against his Imperial 29th Mar. 1854. Majesty the Emperor of all the Russias, and being desirous to lessen q , ~. as much as possible the evils thereof, is pleased, by and with the Council for advice of her Privy Council, to order, and it is hereby ordered, that exempting Russian merchant vessels, in any ports or places within her Majesty's from capture dominions, shall be allowed until the tenth day of May next, six ^ detention weeks from the date hereof, for loading their cargoes and departing u^ig'^f^^^^l from such ports or places ; and that such Russian merchant vessels, circumstances. if met at sea by any of her Majesty's ships, shall be permitted to continue their voyage, if on examination of their papers it shall appear that their cargoes were taken on board before the expiration of the above term : Provided, that nothing herein contained shall extend or be taken to extend to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian Government. And it is hereby further ordered by her Majesty, by and with the advice of her Privy Council as aforesaid, that any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port bound for any port or place in her Majesty's dominions, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation ; and that any such vessel, if met at sea by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded. And the right honourable the Lords Commissioners of her Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Lord Warden of the Cinque Ports, are to give the necessary directions herein as to them mayrespectively appertain. C. C. Geevtlle. a2 APPENDIX. 7th April 1854. Order in Coun- cil extending to India and the Colonies the indulgence granted to Bussian vessels hy her Ma- jesty's order in Council of 29th March 1854. E. At the Court at Buckingham Palace, the 7th day of April 1854. Present, The Queen's most Excellent Majesty in Council. Her Majesty, being compelled to declare war against his Imperial Majesty the Emperor of all the Russias, and being desirous to lessen as much as possible the evils thereof, is pleased, by and with the advice of her Privy Council, to order, and it is hereby ordered, that Russian merchant vessels which, at the time of the publication of this order, shall be in any ports or places in her Majesty's Indian territories under the Government of the East India Company, or within any of her Majesty's foreign or colonial possessions, shall be allowed thirty days from the time of the publication of this order in such Indian territories, or foreign or colonial possessions, for loading their cargoes and departing from such ports or places ; and that such Russian merchant vessels, if met at sea by any of her Majesty's ships, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term ; provided that nothing herein contained shall extend, or be taken to extend, to Russian vessels having on board any officer in the military or naval service of the enemy, or any article prohibited or contraband of war, or any despatch of or to the Russian Government. And it is hereby further ordered by her Majesty, by and with the advice of her Privy Council as aforesaid, that any Russian merchant vessel which prior to the twenty-ninth day of March now last past shall have sailed from any foreign port, bound for any port or place in any of her Majesty's Indian territories or foreign or colonial possessions, shall be permitted to enter such port or place, and to discharge her cargo, and afterwards forthwith to depart without inolestation ; and that any such vessel, if met at sea by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded. And the right honourable the Lords Commissioners of her Majesty's Treasury, the Lords Commissioners of the Admiralty, and her Majesty's Principal Secretary of State for War and the Colonies, the right honourable the Commissioners for the Affairs of India, and all governors, officers, and authorities whom it may concern, in her Majesty's East Indian, foreign, and colonial possessions, are to give the necessary directions herein as to them may respectively appertain. C. C. Gkeyille. F. At the Court at Buckingham Palace, the 7th day of April 1854. Present, The Queen's most Excellent Majesty in Council. 7th April 1854. It is this day ordered by her Majesty, by and with the advice of her Privy Council, that no ships or vessels belonging to any of her Majesty's subjects be permitted to enter and clear out for any of the preventine ports of Russia until further order ; and her Majesty is further pleased vessels clearing to order, that a general embargo or stop be made of all Russian ships Order in Council for Isle of Man. APPENDIX. V and vessels whatsoever now within or which shall hereafter come into out for Russia, any of the ports, harbours, or roads, within her Majesty's islands of ^^^ ordering a Jersey, Guernsey, Alderney, and Sark, and the Isle of Man, together general em- with all persons and effects on board the said ships or vessels : of EussLn ^ Provided always, that nothing herein contained shall extend to any ships in the ships or vessels specified or comprised in a certain order of her Channel Majesty in Council, dated the twenty-ninth day of March last, for Islands and the exempting irom capture or detention iiussian vessels under special circumstances ; and her Majesty is pleased further to order, and it is hereby ordered, that the utmost care be taken for the preservation of all and every part of the cargoes on board any of the said ships or vessels, so that no damage or embezzlement, whatever be sustained. And the Lieutenant-Governors of her Majesty's islands of Jersey, Guernsey, Alderney, and Sark, and of the Isle of Man, for the time being, are to give the necessary directions herein as to them may respectively appertain, and to return an account of their proceedings to this board. C. C. Gkeville. G. At the Court at Windsor, the 15th day of April 1854. Present, The Queen's most Excellent Majesty in Council, Whereas her Majesty was graciously pleased, on the twenty-eighth l5thAprill854. day of March last, to issue her Royal declaration in the following Terms : CounciHn " Her Majesty the Queen of the United Kingdom of Great Britain furtherance of " and Ireland, having been compelled to take up arms in support of her Majesty's " an ally, is desirous of rendering the war as little onerous as possible declaration of " to the powers with whom she remains at peace. the 28th March " To preserve the commerce of neutrals from all unnecessary i^'^* respecting " obstruction, her Majesty is willing, for the present, to waive a neutrals and "part of the belligerent rights appertaining to her by the Law of British subjects. " Nations. " It is impossible for her Majesty to forego the exercise of her " right of seizing articles contraband of war, and of preventing neu- " trals from bearing the enemy's despatches, and she must maintain " the right of a belligerent to prevent neutrals from breaking any " effective blockade which may be established with an adequate force " against the enemy's forts, harbours, or coasts. " But her Majesty will waive the right of seizing enemy's property " laden on board a neutral vessel unless it be contraband of war. " It is not her Majesty's intention to claim the confiscation of " neutral property, not being contraband of war, found on board " enemy's ships ; and her Majesty further declares, that being anxious " to lessen as much as possible the evils of war, and to restrict its " operations to the regularly organized forces of the country, it is not " her present intention to issue letters of marque for the commis- " sioning of privateers." Now it is this day ordered, by and with the advice of her Privy Council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in her Majesty's dominions all goods and merchandise whatsoever, to whomsoever the same may belong ; and to export vi APPENDIX. from any port or place in her Majesty's dominions to any port not blockaded any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong. And her Majesty is further pleased, by and with the advice of her Privy Council, to order, and it is hereby further ordered, that, save and except only as aforesaid, all the subjects of her Majesty and the subjects or citizens of any neutral or friendly state shall and may, during and notwithstanding the present hostilities with Kussia, freely trade with all ports and places wheresoever situate which shall not be in a state of blockade, save and except that no British vessel shall under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of her Majesty's enemies. And the right honourable the Lords Commissioners of her Majesty's Treasury, the Lords Commissioners of the Admiralty, the Lord Warden of the Cinque Ports, and her Majesty's principal Secretary of State for War and the Colonies, are to give the necessary direc- tions herein as to them may respectively appertain. C. C. Geeville. H. At the Court at Windsor, the 15 th day April 1854.. Present, The Queen's most Excellent Majesty in Council. iSthApril 1854. WHEREAS by an order of her Majesty in Council of the twenty-ninth ": — of March last, it was amongst other things ordered, " that any Russian Order in Conn- « merchant vessel which prior to the date of this order shall have cil to extend to„., ,„ r ■ ^ i t e ^ i -i. the 15th May sailed trom any loreign port, bound tor any port or place m her 1854 the indul- " Majesty's dominions, shall be permitted to enter such port or place gence granted " and to discharge her cargo, and afterwards forthwith to depart to Russian " without molestation ; and that any such vessel, if met at sea by any ^haU h ^'^''^'^ " of her Majesty's ships, shall be permitted to continue her voyage sailed from a " ^ ^ny port not blockaded :" _ a Russian port And whereas her Majesty, by and with the advice of her said in the Baltic or Council, is now pleased to alter and extend such part of the said White Sea order: It is hereby ordered, by and with such advice as aforesaid, as th'^'t'rt T follows ; that is to say, — That any Eussian merchant vessel which, J prior to the fifteenth day of May one thousand eight hundred and fifty-four, shall have sailed from any port of Russia, situated either in or upon the shores or coasts of the Baltic Sea or of the White Sea, bound for any port or place in her Majesty's dominions, shall be permitted to enter such last-mentioned port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation ; and that any such vessel, if met at sea by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded. And her Majesty is pleased, by and with the advice aforesaid, further to order, and it is hereby further ordered, that in all other respects her Majesty's aforesaid Order in Council of the twenty- ninth day of March last shall be and remain in full force, efiect, and operation. And the right honourable the Lords Commissioners of her Majesty's Treasury, the Lords Commissioners of the Admiralty, and the Lord Warden of the Cinque Ports, are to give the necessary directions herein as to them may respectively appertain. C. C. Geeville. APPENDIX. I. Instructions for the Commanders of Her Majesty's Ships and Vessels of War, as to the Disposal of captured Vessels. Article I. The commanders of her Majesty's ships and vessels of war shall send all ships, vessels, and goods which they shall seize and take into such port within her Majesty's dominions, as shall be most con- venient for them, in order to have the same legally adjudged in the High Court of Admiralty of England, or in some other Admiralty •Court lawfully authorized to take cognizance of matters of prize. Aeticle II. After such ships, vessels, and goods (save as to ships of war) shall have been taken into any such port, the captor or one of his chief officers, or some other person present at the capture, shall bring or send, as soon as possibly may be, three or four of the principal per- sons belonging to the captured ship or vessel (two of whom shall always, if possible, be either the master, supercargo, mate, or boat- swain,) before the Judge of the High Court of Admiralty of England, or his Surrogate, or before the Judge of some other Admiralty Court within the British dominions, lawfully authorized as aforesaid, or such person as shall be lawfully commissioned in that behalf, to be sworn and examined upon such interrogatories as shall tend to the discovery of the truth concerning the interest or property of such ship or ships, vessel or vessels, and of the goods, wares, merchandise, and other effects found therein ; and the captor shall also at the time of producing the aforesaid persons to be examined, and before any monition shall be issued, bring and deliver into the hands of the Judge of the High Court of Admiralty of England, his Surrogate, or the Judge of some other Admiralty Court within the British domi- nions lawfully authorized, or others commissioned for that purpose as aforesaid, all such books, papers, passes, sea-briefs, charterparties, bills of lading, cockets, letters, and other documents and writings whatsoever as shall be delivered up, or found on board any such ship or vessel ; and the captor or one of his chief officers, or some other person who was present at the capture, and saw the said papers and writings delivered up or otherwise found on board at the time of the capture, shall make oath that the said papers and writings are brought and delivered in as they were received and taken, without any fraud, addition, subduction, alteration, or embezzlement what- ever^ or otherwi^fe shall account for the same upon oath to the satis- faction of the Court. Article III. All ships, vessels, goods, wares, merchandises, and other effects (save as to ships of war) so captured as aforesaid shall, immediately upon being brought into port, be delivered over into the custody of the Marshal or other duly qualified officer of the High Court of Admi- ralty of England, or other Court of Admiralty commissioned as aforesaid, or in the absence of any such officer into the custody of the collector, comptroller, or other principal officer of the Customs or navigation laws, and such ships, vessels, goods, wares, merchandises, and effects shall be kept and preserved, and no part thereof shall be ■sold, spoiled, wasted, or diminished, and the bulk thereof shall not be broken (save only in case of urgent necessity, or by decree of the Court) until final judgment shall have been given in the said Court of Admiralty touching and concerning the same. viii APPENDIX, Article IV. If any ships or vessels belonging to her Majesty, or her subjects, or to any of her allies, or their subjects, shall be found in distress by being in fight, set upon, or paptured by the enemy, or by reason of any other accident, the commanders of her Majesty's ships and vessels of war shall use their best endeavours, and give aid and succour, and to the utmost of their power labour to re-capture and free the same from the enemy, or such other distress. Article V. The commanders of her Majesty's ships and vessels of war shall not ransom, or agree to ransom, or quit or set at liberty, any ship or vessel, goods, or wares, merchandises, or other effects belonging to the enemy, which shall have been seized and taken by them, save only in case of urgent necessity. Article VI. The commanders of her Majesty's ships and vessels of war shall carry all persons taken on board of any captured men-of-war, or other ships or vessels, to ports at which there are or shall be esta- blished depots for the reception of prisoners of war, and shall there deliver them over to such persons as shall be duly authorized to receive and take charge of them ; and no such commander or other officer shall presume, upon any pretence whatever, to land, release, or deliver over any such persons at any other place, to any other person, or in any other manner than as aforesaid. Article VII. The commanders of her Majesty's ships and vessels of war shall not, until further orders, capture, detain, or molest any ship or vessel belonging to any subject or citizen of any state in amity with her Majesty, solely by reason of enemy's goods being laden on board her, nor shall they, until further orders, capture, detain, or molest any goods, wares, merchandises, and effects laden on board the same, sqlely by reason of their belonging to the enemy. Article VIII. The commanders of her Majesty's ships and vessels of war shall seize, detain, and capture all ships and vessels laden wholly or in part with arms, ammunition, naval or military stores, officers, troops, seamen, or despatches, or any other contraband of war, which is destined for the use of the enemy, and shall send such ships or vessels, and contraband, (except as herein-after mentioned,) into some port within her Mnjesty's dominions, for adjudication before the High Court of Admiralty of England, or some other Court of Admiralty duly authorized to take cognizance thereof; provided, that if any such ships, vessels, or contraband be owned by subjects of France, the same shall be taken into some port of France for adjudication. Article IX. The commanders of her Majesty's ships and vessels of war shall seize all ships or vessels, and the goods, merchandise, and effects laden therein, to whomsoever belonging, that shall be found attempting to violate any blockade of the ports, harbours, or coasts of the enemy, and shall send them (except as herein-after excepted) into some port within her Majesty's dominions, for adjudication before the High Court of Admiralty duly commissioned to take cognizance thereof; provided, that if such ships or vessels be owned APPENDIX. ix by subjects of France the same shall be taken into some port of France for adjudication. Article X. In case her Mnjesty shall declare any ports, harbours, or coasts to be in a state of blockade, the commanders of her Majesty's ships and vessels of war are hereby enjoined to stop all neutral vessels, which they shall meet at sea, destined to the said ports, harbours or coasts, and if they shall appear to be ignorant of the existence of the said blockade, and have no contraband of war on board, they shall turn them away, apprising them that tlie said ports, harbours, or coasts are in a state of blockade, and shall write a notice to that effect upon one or more of the principal ship's papers ; and if any neutral ship or vessel, which shall appear to have been so warned, or to have been otherwise informed of the existence of the blockade, or to have sailed from her last port after it may reasonably be supposed that notification of the blockade had been made public there, shall yet be found attempting or intending to violate such blockade, such vessel shall be seized, and sent into some port within her Majesty's dominions, for legal adjudication before the High Court of Admiralty of England, or some other Court of Admiralty duly commissioned to take cognizance tliereof ; provided, that if such ship or vessel be owned by subjects of France the .same shall be taken into some port of France for adjudication. And if any neutral ship or vessel be found coming out of any blockaded port, which she shall previously have entered in breach of such blockade, or if she shall have any goods or merchandise on board laden after knowledge of the blockade, such ship or vessel, and the goods, wares, merchandises, and other effects on board the same shall in like manner be seized, and sent in for adjudication ; provided that, if such ship or vessel be owned by subjects of France, she shall be taken into some port of France for adjudication. But any neutral ship or vessel coming out of any such blockaded port, in ballast, or having only goods or merchandise on board laden before the know- ledge of the blockade, shall be suffered to pass, except tliere be other grounds for detaining her, and a notice and warning shall be written upon one or more of her principal ship's papers, prohibiting sucli vessel from again attempting to enter such port during the existence of the blockade. Convention between Her Majesty and the Empekok op the Fkench, relative to Joint Captures, signed at London, May 10, 1854. \_Ratifications exchanged at London May 20, 1854.] Hee Majesty the Queen of the United Kingdom of Great Britain and Ireland, and his Majesty the Emperor of the French, being desirous to determine the jurisdiction to which the adjudication of joint captures which may be made during the course of the present war by the' naval forces of the two nations, shall belong, or of captures which may be made of merchant vessels belonging to subjects of either of the two countries by the cruizers of tlie other, and being desirous to regulate at the same time the mode of distribution of the proceeds of joint captures, have named as their plenipotentiaries for that purpose, that is to say : X- APPENDIX. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, the Eight Honourable George William Frederick, Earl of Clarendon, Baron Hyde of Hindon, a Peer of the United Kingdom, a Member of her Britannic Majesty's most Honourable Privy Council, Knight of the Most Noble Order of the Garter, Knight Grand Cross of the Most Honourable Order of the Bath, her Britannic Majesty's Principal Secretary of State for Foreign Affairs ; And his Majesty the Emperor of the French, the Sieur Alexander Colonna, Count Walewski, Grand Officer of the Imperial Order of the Legion of Honour, Grand Cross of the Order of St. Januarius of the Two Sicilies, Grand Cross of the Order of Danebrog of Denmark, Grand Cross of the Order of Merit of St. Joseph of Tuscany, &c., &c., his Ambassador to her Britannic Majesty ; Who, after having exchanged their full powers, found in due form, have agreed upon the following articles : Article I. When a joint capture shall be made by the naval forces of the two countries, the adjudication thereof shall belong to the jurisdic- tion of the country whose flag shall have been borne by the officer having the superior command in the action. Aeticlb II. When a capture shall be made by a cruizer of either of the two allied nations in the presence and in the sight of a cruizer of the other, such cruizer having thus contributed to the intimidation of the enemy and encouragement of the captor, the adjudication thereof shall belong to the jurisdiction of the actual captor. Article III. In case of the capture of a merchant vessel of one of the two countries, the adjudication of such capture shall always belong to the jurisdiction of the country of the captured vessel ; the cargo shall be dealt with, as to the jurisdiction, in the same manner as the vessel. Article IV. In case of condemnation under the circumstances described in the preceding articles : 1. If the capture shall have been made by vessels of the two nations whilst acting in conjunction, the net proceeds of the prize, after deducting the necessary expenses, shall be divided into as many shares as there were men on board the capturing vessels, -without reference to rank, and the shares belonging to the men on board the vessels of the ally shall be paid and delivered to such person as may be duly authorized on behalf of the allied Govern- ment to receive the same ; and the distribution of the amount belonging to each vessel shall be made by each Government according to the laws and regulations of the country. 2. If the capture shall have been made by cruizers of either of the two allied nations in the presence and in sight of a cruizer of the other, the division, the payment, and the distribution of the net proceeds of the prize, after deducting the necessary expenses, shall likewise be made in the manner above mentioned. 3. If a capture, made by a cruizer of one of the two countries, shall have been adjudicated by the Courts of the other, the net proceeds of the prize, after deducting the necessary expenses, shall be made over in the same manner to the Government of the captor, to be distributed according to its laws and regulations. APPENDIX. xi Akticle V. The commanders of the vessels of war of their Majesties shall, "With regard to the sending in and delivering up of prizes, conform to the instructions annexed to the pi-esent Convention, and which the two Governments reserve to themselves to modify by common con- sent, if it should become necessary. Article VI. When, in the execution of the present Convention, the valuation of a captured vessel of war shall be in question, the calculation shall be according to the real value of the same ; and the allied Government shall be entitled to delegate one or more competent officers to concur in the valuation. In case of disagreement, it shall be decided by lot which officer shall have the casting voice. Akticle VII. The crews of the captured vessels shall be dealt with according to the laws and regulations of the country to which the present Con- vention attributes the adjudication of the prize. Article VIII. The present Convention shall be ratified, and the ratifications shall be exchanged at London within ten days from this date, or sooner if possible. In witness whereof, the respective plenipotentiaries have signed the present Convention, and have affixed thereto the seals of their arms. Done at London, the tenth day of the month of May, in the year of our Lord one thousand eight hundred and fifty-four. (l.s.) Clarendon, (l.s.) a. Walewski. Annex to the Convention between Great Britain and France, signed at London, May 10, 1854. Instructions to the Commanders of Ships of War belonging to Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and to His Majesty the Emperor of the French. You will find inclosed a copy of a Convention which was signed on the 10th instant between her Majesty the Queen of the United Eingdom of Great Britain and Ireland, and his Majesty the Emperor of the French, regulating the jurisdiction to which shall ■belong the adjudication of the joint captures made by the allied naval forces, or of the captures of merchant vessels belonging to the subjects of either of the two countries which shall be made by the cruizers of the other, as likewise the mode of distribution of the proceeds of such joint captures. In order to ensure the execution of this Convention, you will .conform yourself to the following instructions ; Article I. "Whenever, in consequence of a joint action, you are required to ■draw up the report or proces-verbal of a capture, you will take care to specify exactly the names of the ships of war present during the action, as well as the names of their commanding officers, and, as far as possible, the number of men embarked on board those ships at the 'commencement of the action, without distinction of rank. xii APPENDIX. You will deliver a copy of that report or proces-verbal to the offic^ of the allied power who shall have had the superior cominand during the action, and you will conform yourself to the instructions of that officer as far as relates to the measures to be taken for the conduct and the adjudication of the joint captures so made under his command. If the action has been commanded by an officer of your nation, you will conform yourself to the regulations of your own country, and you will confine yourself to handing over to the highest officer in rank of the allied power who was present during the action, a certified copy of the report or of the proces-verbal which you shall have drawn up. Article II. When you shall have effected a capture in presence of, and in sight of, an allied ship of war, you will mention exactly, in the report which you will draw up when the capture is a ship of war, and in the report or proces-verbal of the capture when the prize is a mer- chant vessel, the number of men on board your ship at the commence- ment of the action, without distinction of rank, as well as the name of the allied ship of war which happened to be in sight, and, if possible, the number of men embarked on board that ship, likewise without distinction of rank. You will deliver a certified copy of your report or proces-verbal to the commander of that ship. Aeticle III. Whenever, in the case of a violation of a blockade, of the transport of contraband articles, of land or sea troops of the enemy, or of official despatches from or for the enemy, you find yourself under the necessity of stopping and seizing a merchant vessel of the allied nation, you will take care to : 1. Draw up a report (pv proces-verbal), stating the place, the date, and the motive of the arrest, the name of the vessel, that of the captain, the number of the crew ; and containing besides an exact description of the state of the vessel, and of her cargo. 2. Collect and place in a sealed packet, after having made an inventory of them, all the ship's papers, such as registers, passports, charterparties, bills of lading, invoices, and other documents calculated to prove the nature and the ownership of the vessel and of her cargo, 3. Place seals upon the hatches. 4. Place on board an officer, with such number of men as you may deem advisable, to take charge of the vessel, and to ensure its safe conduct. 5. Send the vessel to the nearest port belonging to the power whose flag it carried. 6. Deliver up the vessel to the authorities of the port to which you shall have taken her, together with a duplicate of the report (or proces-verbal), and of the inventory above-mentioned, and with the sealed packet containing the ship's papers. Article IV. The officer who conducts the captured vessel will procure a receipt proving his having delivered up the vessel, as well as his having delivered the sealed packet, and the duplicate of the report (or prods-verbal) and of the inventory above-mentioned. Article V. In case of distress, if the captured vessel is not in a fit state to continue its voyage, the officer charged to conduct to a port of the APPENDIX. xiii allied power a prize made on the merchant service of that power, may enter a port of his own country or a neutral port ; and he will deliver his prize to the local authority if he enters a port of his own country, and to the consul of the allied nation if he enters a neutral port, without prejudice to the ulterior measures to be taken for the adjudication of the prize. He will take care, in that case, that the report or proces-verbal, and the inventory which he shall have drawn up, as well as the sealed packet containing the ship's papers, be sent exactly to the proper Court of adjudication. Article VI. You are not to consider as prisoners of war, and you will give free permission to land, to all women, children, and persons not belonging to the military or maritime profession who shall be found on board the captured vessels. With this exception, and those which your own security may suggest, you will not permit any person to be removed from on board the vessel ; and in all cases you will retain the master, super- cargo, and others whose evidence may be essential to the adjudication of the prize. You will treat as prisoners of war all persons whatever who may be found on board the enemy's vessels, with the exceptions above mentioned in § 1. You will place no other restriction on the liberty of allied or neutral subjects found on board allied or neutral vessels, than such as may be necessary for the security of the vessel. With respect to your own countrymen, you will treat them accord- ing to the general instructions you have received, and you will, in no case, deliver them up to a foreign jurisdiction. The persons who may have been exceptionally removed from the captured vessels shall afterwards be sent back to their own country, if they belong to the allied nation; if they are neutrals or enemies, they shall be treated as if they had been found on board vessels captured by you separately. (l.s.) Clarendon, (ls.) a. Walewski. K. Standing Interrogatories to be administered on behalf of our Sovereign Lady Victoria, by the Grace of God of Great Britain and Ireland Queen, Defender of the Faith. To all commanders, masters, officers, mariners, and other persons "found on board any ship or vessel which hath been or shall be seized or taken as prize by any of her Majesty's ships or vessels of war, concerning such captured ships or vessels, or any goods, wares, or merchandise on board the same, examined as witnesses in preparatory during the present hostilities. Let each witness be asked the following questions, and let his answer to each question be written down distinctly and separately. 1. What are your true names ? Where were you born ? In what place or places have you lived during the seven years last past ? Where do you now live, and how long have you lived in that place ? To what prince, state, or power are you now, or have you at any previous time, and when, been a subject ? or said or represented that you were a subject ? Have you ever, and when, taken any and what oath of allegiance, and to whom ? or obtained, or received, or applied for any xiv .APPENDIX, and what certificate of your being a citizen or subject of, or entitled to the protection of, any and what state or country ? Of what cities or towns have you ever been admitted a burgher or freeman ? And when and in what manner were you so admitted ? How long- have you resided there since you were so admitted ? Where have you since resided ? What did you pay for your aforesaid admis- sion ? Are you married ? If yea, where do your wife and family reside ? 2. Were you present at the time of the taking and seizing of the ship or her lading, or any of the goods or merchandises concerning^ which you are now examined ? Had the ship concerning which you are now examined, any and what commission or letters of marque ? If she had, what was that commission or letters of marque, and by whom, when, and where was it granted ? 3. In what port or place, by latitude and longitude, bearing and distance, and in what year, month, and day were the ship and goods, concerning which you are now examined, taken and seized ? Upon ■what pretence, and for what reasons, were they, or any, and what part thereof, so seized ? Into what port or place were they carried ? Under what colours did the said ship sail first on her voyage? What colours had she hoisted or flying when seized or captured ? What other colours had she on board, and for what reason had she such other colours ? Did she ever, and when, hoist the same, or any, and which of them ? Was any resistance made at the time the said ship was taken? and, if yea, what sort of resistance, and by whom? Were any and what description of firearms, or cannon, or muskets, or any other and what kind of weapons used in such resistance ? By whom, or by what ship or ships were you taken ? Was such vessel a ship of war, or a vessel acting without any commission, as you believe ? Were any other, and, if yea, what ships in sight at the time of the capture ? 4. What is the name of the master or commander of the captured ship concerning which you are now examined ? How long have you known the said master ? Who appointed him to command the said ship ? Where and when did he first take possession of her, and at what time ? and who by name delivered the possession of her to him ? Where is such person ? and where is the master now ? Where is the fixed place of abode of each of them ? If the witness replies that either has no fixed place of abode, then ask him where was the last place of abode of such person ? And where did he generally reside ? How long has he lived there ? Where was he born, and of what state is he now a subject ? Is he married ? If yea, where do his wife and family .reside ? 5. Of what tonnage or burthen is the ship concerning which you are now examined ? What was the number of mariners on board her when you joined her ? And at the time of her capture 'or seizure ? And of what country was each of the said mariners ? Did all such mariners come on board at the same port ? And, if nay, at what ports did they severally come on board ? Who shipped or hired each of them, and when and where were they so shipped or hired ? and for, or upon, what voyage ? 6. Had you, or any, and which of the officers or mariners belong- ing to the ship concerning which you are now examined any, and if yea, what part, share, or interest in the said ship or her lading ? Set forth who among the said officers or mariners are so interested, and to what extent you or they are so interested ? Did you belong to the ship at the time she was seized and taken ? If yea, in what capacity ? How long have you known the said ship ? When and where did you first see her ? Where was she built ? APPENDIX, XV 7. What is the name of the said ship ? How long has she been so called ? Do you know of any other name or names, by which she has ever and when been called ? If yea, set forth such names, and when and why, and for how long she was called by each or any of such names ? Had she any passport or sea-brief on board ? and if yea, from whom ? 8. To what ports and places did she sail during the said voyage before she was taken ? Where did the voyage on which she was taken begin ? and where was it to have ended ? Set forth the nature of every voyage the said ship has sailed upon, and the quality of every cargo the said ship has carried from the time you have known her up to the time of her capture, and state at what port each of such cargoes has been delivered. From what ports and at what time, particularly from the last clearing port, did the said ship sail previously to the capture ? Under whose direction and management has she usually been with respect to her employment or trade ? With whom do you correspond on the concerns of the vessel or her cargo ? 9. What lading did the said ship carry at the time of her setting sail in her last voyage, and what particular sort of lading and good& had she on board at the time she was taken ? In what year, month, and place, was the same put on board her ? Set forth the dilierent species of the lading, specifying the quantity of each species. 10. Who were the owners of the ship, concerning which you are now examined, at the time when she was seized ? How do you know that such persons were the owners at such time ? Of what nation or country are such owners by birth ? Where do they reside? and where do their wives and families reside ? How long have they resided there ? Where did they reside before, to the best of your knowledge ? Of what princes, states, or powers are they subjects or citizens ? 11. Was any bill of sale, or any and what similar document of transfer made ? — and, if yea, by whom ? — to the aforesaid owners of the said ship ? — If any was made, in what month, year, where and before what witnesses was such bill of sale or similar document of transfer made ? Where did you last see it, and what has become of, it ? Was any, and what, engagement entered into concerning the purchase further than what appears upon the bill of sale ? If yea, was it verbal, or in writing ? If in writing, where did you last see- such writing, and what has become of it ? 12. Was the said lading put on board in one port, and at one time,- or in several ports, and at several times ; and in what ports by name, and at what times particularly ? Set forth what quantities oT each sort of goods were shipped at each port ? 13. What are the names of the . respective laders, or owners, or consignees of the said goods ?■ What counti-ymen are they ? Where- do they now live and carry on their business or trade ? How long have they resided there ? Where did they reside before, to the best of your knowledge ? And where were the said goods to be delivered, and for whose real account, risk, or benefit ? Have any of the said consignees or laders any, and what interest in the said goods ? If yea, whereon do you found your belief that they have such interest ? Can you take upon yourself to swear that you believe that at the time of the lading the cargo, and at the present time, and also if the said goods shall be restored and unladen at the destined ports, the goods did, do, and will belong to the same persons, and to none others ? 14. How many bills of lading were signed for the goods seized on board the said ship ? Were any of those bills of lading false or xvi APPENDIX. colourable, or were any bills of lading signed which were different in any respect froni those which were on board the ship at the time she was taken ? What wei-e the contents of su(5h other bills of lading, and what became of them ? 15. Ai-e there anywhere in Great Britain, and where particularly, any bills of lading, invoices, letters, or instruments relative to the ship and goods concerning which you are now examined ? If yea, set forth where they are, and in whose possession, and what is the purport thereof, and when they were brought or sent there. ,16. Was there any charterparty signed for the voyage in which the. ship concerning which you are now exiimined was seized and taken ? What became thereof ? When, where, and between whom, was such charterparty made ? What were the contents of it? 17. What papers, charterparties, bills of lading, invoice-s, letters, or other writings were on board the ship at the time she took her departure from the last clearing port, before she was taken as prize? Were any, and, if yea, which of them burned, torn, thrown overboard, destroyed, altered, or cancelled, or concealed, or attempted to be concealed, and when, and by whom, and in whose presence ? 18. Has the ship concerning which you are now examined ever been, and if yea, when, seized as prize, and condemned aa such ? If yea, set forth by whom, when, and where, she was seized and into what port she was carried, and by whom and by what autho- rity, and on what account she was so condemned. 19. Have you sustained any loss, and what, by the seizing and taking of tlio ship or goods' concerning ■which you are examined ? If yea how do you compute such loss ? Have you hitherto received any indemnity, satisfaction, or promise of satisfaction, for any part of the loss" or damage which you have sustained, or may sustain by this capture and detention ? And if yea, when, and from whom ? 20. Are the said ship and goods, or is any, and what part thereof, insured ? If yea, for what voyage, and against what risks was such insurance made ? And at what premium ? And when and by what persons and in what country ? 21. In case you had arrived at your destined port, would your cargo or any part thereof, on being unladen, have immediately become the property of the consignees or any other person and -whom ? Or was the lader to take the chance of the market for the sale of his goods ? 22. State in respect to the lading of the ship concerning which you are now examined and each part thereof, in what country the same was grown and produced and manufactured respectively. 23. When the said cargo was originally put on board,, was all the said cargo, or any, and what, part thereof, and when taken from the shore and quay, or removed or transhipped from one boat, barque, vessel, or ship to another ? From what, and to what, shore, quay, boat, barque, vessel, or ship, and when and where was the same so taken, removed, or transhipped ? 24. Are there in any country besides Great Britain, and where, particularly, or on board any and what ship or vessel, other than the ship concerning which you are now examined, any letters, instru- ments, papers, dopuments relative to the said ship or goods as you know, believe, or have heard ? And of what nature are such letters, instruments, papers, or documents ? And what are their contents as you know, believe, or have heard ? In whose possession are they, and do they differ from any of the papers on board ? And, if yea, in what particular ? APPENDIX. jcvii 25. Were any papel-s delivered out of the said, sliip or vessel, and carried away in any manner whatsoever ? And if yea, when, and by whom, and to whcira ? And in whose q^tody, possession, or power do you believe the same now to be ? '** 26. Was bulk broken during the voyagOi^in which you were taken, or since the said ship was captured ? And if yea, when, where, and by whom ? By whose orders, for what purpose, and' in what wanner ? 27. Were there any passengers on board the aforesaid ship during any, and what, part of the voyage on which she was captured ? If yea, how many, and who were such passengers by name ? Of what nation, rank, profession, or occupation was each of them ? Did any,' and which of thera, hold any, and what, commission ? And from whom- and for what purpose ? Were any, and which, of such pas- sengers secreted at the time of the capture, and why ? At what place, and when, was each of them taken on board ? To what place was each of them destined, or said or supposed to be destiaed, and upon what business ? or for what real purpose or design was he destined there ? Did they pay, or agree to pay, anything, aild what, for their passage, and to whom ? Had»any, and which, of such pas- sengers any, and what, property, or concern, or authority, directly or indirectly, regarding the ship or cargo ? Were there at any time during the voyage in which the said ship was captured any officers, soldiers, or mariners secreted on board her ? and if yea, for what reason were they so secreted ? Were any of her Britannic Majesty's subjects on board, or secreted or confined, during the said voyage or at the time of the capture ? If yea, how long had they been so secreted, or confined, and for ■^(rhat reason ? 28. Were, and are, all the passports, sea-briefs, charterparties, bills of sale or lading, invoices, and papers found on board the said ship, and referring to the ownership thereof or to the cargo, true and fair, or are any, and which, of them false and colourable ? Do you know of any matter or circumstance to affect their credit ? By, and from, whom were the passports and sea-briefs obtained ? Were they obtained for this ship only, and upon the oath or affirmation of the persons therein described ? or were they delivered to, or on behalf of, the person or persons who appear to have been sworn, or to have affirmed thereto without their having ever, in fact, made any such oath or affirmation? How long a time were they to last ? Was any duty or fee payable, and paid for the same ? And is there any duty or fee payable and paid for the same ? And is there any duty or fee to be paid on the renewal thereof ? Have such passports been renewed, and how often, and has the duty or fee been paid for such renewal ? Was the ship in a port in the country where the passports and sea-briefs were granted ? And if not, where was the ship at the time ? Had any person on board any let-pass or letters of safe conduct ? If yea, from whom, and for what business ? 29. If it should appear that there are in anv place or country besides Great Britain any bills of lading, invoices, instruments or papers relative to the ship concerning which the witness is now examined, ask him, how did the same come to be in such place or country ? Were you ever in such place or country ? and if yea, when, and on what account ? In whose possession are such instru- , ments or papers? Do -they differ? and if yea, in what particulars, from any of the papers on board or in Great Britain, or from any other papers referring to the same ship in any other place ? Have you written or signed any letters or papers concerning the said ship or her cargo ? If yea, set forth their purport. To whom were such papers written and sent, and what has become of them ? b xyiii APPENDIX. 30. Towards what port or place was the ship steering her course at the time of her being first pursued and taken ? Was her course' altered upon or after tlie appearance of the vessel by whom she was taken, and how altered, and with what object or purpose ? Was her course at all times when the weather would permit directed to the place or port for which she appears to have been destined by the ship's papers ? Was tlie ship before, or at the time of, her capture sailing beyond or wide of the said place or port to which she was so destined by the said ship's papers ? At what distance was she therefrom ? Was her course altered at any and what time, and to or towards any, and what other port or place, and for what reason ? Did she make any and what attempt to escape the said ship by which she was captured ? When did she first see that ship, and at what distance? Did she thereupon make or shorten sail, or slacken, or increase her speed, and how ? When and by what means was she stopped, brought to, or boarded ? 31. By whom and to whom, has the said ship ever been sold and transferred, and how often and at what time and place, and for what sum or consideration ? Has such sum or consideration been paid or satisfied ? Was such sum a fair equivalent for her ? If such sum has not been paid, what security or securities have been givea for the payment of the same and by whom ? And where do the persons who have given such security now live ? Do you know or believe in your conscience, such sale or transfer to have been truly made, and not for the purpose of covering or concealing the real property or interest in the ship ? Do you verily believe, that if the ship be restored, she will belong to the persons now asserted to be her owners, and no others .'' Are there any, and if yea, what, private agreements for the return of the ship to her former owners, at the conclusion of the war, or at any and what other period ? 32. What guns were mounted on board the said ship, and of what calibre were they ? and what arms, and ammunition were there belonging to her ? Why was she so armed ? Were there on board any other guns, mortars, howitzers, balls, shells, rockets, hand grenades, rifles, muskets, carabines, pistols, fuzees, halberts, spon- toons, swords, bayonets, locks for muskets, flints, ramrods, belts, cartridges, cartridge boxes, pouches, gunpowder, percussion caps, saltpetre, nitre, camp equipage, military tools, uniforms, soldiers' clothing, or accoutrements, or any sort of warlike and naval stores, or steam engines or machinery, or parts thereof ? W^re any of such warlike, or naval, stores or things thrown overboard, at or before the time of the capture ? And were, and are, any such warlike or other stores before described concealed on board under the names of merchandise, or any other colourable appellation, in the ship's papers ? If yea, what are the marks of the casks, bales, and pack- ages, in which the same are concealed ? Were any of the before- named articles, and which, intended for the use of any fortress or garrison in the port or place to which such ship was bound ? If nay, to whose use, and for what' place, were the same, or any and which of them, really destined or intended ? Do you know, or have you heard of, any ordinance, notice, or law, existing in the kingdom or state from which the voyage began, or where they were shipped, forbidding the exportation of the same by private persons ? Were Buch warlike or naval stores put on board by any, and what, public authority ? When, and where, and by whom, were they put on board ? 33. What is the whole which you know or believe regarding the real and true property and destination at the time of the capture of the ship and cargo concerning which you are now examined ? APPENDIX. xix 34. Did tho said ship on the voyage in whicli she was captured, or during any, and what former voyage, sail under the convoy of any and what ship or ships of war, and other armed vessel or ves- sels ? And if yea, for what reason did she sail under such convoy ? Of what force was or were such convoying ship or ships ? And to what state did they belong ? What instructions or directions did you receive on each and every such voyage, when under convoy, respecting your sailing or keeping in company with such armed or convoying ship or ships ? and from whom did you receive such instructions or directions ? And from whom did you receive any instructions for resisting, or endeavouring to avoid, or escape from capture ; or for destroying, or concealing, or refusing to deliver up your ship's documents or papers, or any and what other papers that might be, or had been put on board your vessel ? If you had any such instructions, state their tenor and all particulars relating thereto. Ask the witness if he is in possession of such instructions or copies thereef; and if he be, direct him to leave the same with the examiner, to be annexed to his deposition. 35. Did the said ship during the voyage in which she was cap- tured, or on, or during any, and what former voyage, sail to, or attempt to enter or leave, any port, place, i-iver or coast which was under blockade by the arms or forces of any, and which of the belligerent powers ? If yea, when, where, and how did you first hear of such port, place, river, or coast being so blockaded ? And were you at any, and what, time ; and if yea, by whom, and where, warned not to proceed to, or not to attempt to enter, or to leave such blockaded port, place, river, or coast ? What conversation or other communication passed between you and your informant, in respect thereto ? And what course did you pursue upon and after such warning. 36. What instructions did you or did any, and what other, person on board receive, and from whom, and when, with res^pect to any and what blockade which there was, or might thereafter be, established ? Or will you swear that you never received and do not know or believe that any other person on board received, any instructions whatsoever in respect to any blockade which was, or might be, established of any port, place, or coast ? Numb. 21562. 1855. "The London Gazette." — Published by Authority. Friday, June 16, 1854. Foreign Office, June 16, 1854. 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