CHAPTER VI. OF LICENCES. A LICENCE is a privilege granted to subjects, neutrals, or enemies, whereby their vessels and cargoes are exempted from the confiscation which would otherwise ensue from the act, which the licence permits. It is well known that by war all communication between the subjects of the belligerent countries must be suspended, and that no intercourse can legally be carried on between the subjects of hostile states, but by the special licence of their respective governments. The sovereign authority of the state is alone competent to decide on all the considerations of commercial and political expediency, by which such an exemption from the ordinary consequences of war must be controlled. Licences then being high acts of sovereignty are necessarily of strict construction, and must not be carried farther than the intention of the authority which grants them may be supposed to extend not that they are to be construed with pedantic accuracy, nor that any small deviation should be held to vitiate the fair effect of them. An excess in the quantity of goods permitted might not be considered noxious to any extent. A variation in the quality or substance of the goods might be more significant, because a liberty assumed of importing one species of goods under a licence granted to import another, might lead to dangerous abuses. The licence must be looked to for the enumeration of the goods that are to be protected by it. Another circumstance in all licences is the limitation of time, in which they are to be carried into effect. For as it is within the view of government in granting these licences to combine all commercial and political considerations, a communication with the enemy might be very proper at one time and at another very unfit and highly mischievous. Time therefore appears to be a very important ingredient and a party is not to take upon himself to extend the term of a licence. Two circumstances are required to give due effect to a licence; first, that the intention of the grantor should be pursued; and secondly, that there should be an entire bona fides on the part of the user. It is absolutely essential, that that only should be permitted which the grantor intended to permit; whatever he did not mean to permit is absolutely interdicted, and the party who uses the licence engages not only for fair intention but for an accurate interpretation and execution; not however exclusive of such a latitude as may be supposed to conform to the intentions of the grantor liberally understood (t). It is sufficient if they shew, that under the difficulties of commerce they come as near as they can to the terms of the licence. When there is no bad faith in the parties and no undue extension of the terms of the licence beyond the meaning of the grantor, any little informalities or trifling deviations shall not injure them (u). As a general rule it is to be understood, that where no fraud has been committed or meditated as far as it appears, and when the parties have been prevented from carrying the licence into literal execution by a power which they could not control, as by embargoes in foreign parts or by the fury of the elements, they shall be entitled to the benefit of its protection, though the terms have not been literally and strictly fulfilled (v). But strict performance is not excused (t) The Cosmopolite, 4 Rob. 8. (u) The Vrouw Cornelia, Edw. 349. where there has been a want of good faith, or a departure from the terms of the licence beyond the necessity imposed by unavoidable obstacles (w). Where the licence is irregular, or the parties are acting in apparent contravention of the literal terms of their licence, capture is justifiable, and the captors are entitled to their expenses though the contravention should not be such as will subject the vessel or cargo to confiscation. Thus, where the vessel, licensed to take on board a cargo in an enemy's port, did not sail from the port with her lading till her licence had expired, having been detained by an embargo, restitution was decreed on payment of the captor's expences (x). So where a vessel was exporting flour from an enemy's country by permission of the British consul, with the sanction of the British admiral, who could give no such permission except subject to ratification, and the permission was afterwards. ratified by the government (y). But where a vessel, having arrived and delivered its cargo in this country after the expiration of the licence, was, upon that ground, captured on its return voyage, it was held, that if there had been any improper delay in the earlier part of the voyage, it was effectually purged by the arrival of the ship and the delivery of its cargo, and the vessel was restored and the captor's expences refused (z). The rules for the construction of licences above laid down may be considered in respect of-first, the vessel; secondly, the cargoes; thirdly, the course of navigation to which the licence is applicable; and fourthly, the time for which it is operative. First, of the vessel to which the licence is applicable. (w) The Dankbarheit, 1 Dod. 183. (x) The Goede Hoop, Edw. 336. It is not considered an essential deviation from the terms of a licence if the ships of other countries than those designated in the licence be employed, provided the different countries have the same political bearing towards this kingdom. But where an enemy's ship was represented to be a neutral, and was navigated under the disguise of a neutral, and under a licence obtained by that misrepresentation, the ship and freight were condemned, and it was held that the cargo would be involved in the same condemnation if it could be shewn that the owner of the cargo was privy to the fraud (a). A licence for importation in a neutral vessel will not protect a British ship (b), nor an enemy's ship (c); but, in the absence of all fraud or collusion on the part of the owner of the cargo, it is sufficient if the vessel is visibly and to all appearance neutral (d). A vessel is not protected by a licence on board, where there is nothing to shew that it was intended by any of the parties to be applied to that vessel. Thus, where a vessel was captured in ballast, with a licence on board which did not appear in any manner to apply to the vessel, as it was not indorsed, and the name of the vessel did not appear in the body of it, it was held that the vessel was not protected. It might be going for the protection of another vessel, and it would be impossible to say that the mere circumstance of its being on board the vessel that conveys it shall be sufficient for her protection also. A licence must be in some specific manner applied to the vessel which it is intended to protect (e). A licence to export a cargo is sufficient for the protection of the ship returning with the same cargo, where the exportation has been defeated by the (a) The Dankbarheit, 1 Dod. 183. The Gute Hoffnung, 1 Dod. 252. elements or the act of the enemy; but to entitle himself to protection, the claimant must shew that the cargo consists of the identical goods that were carried out, and that no others were taken on board in the enemy's port (f). So it was held, that a licence to import a cargo would extend to protect a vessel on her way to the port of lading in ballast, for the express purpose specified in the licence (g). Where a licence is granted to sail under any flag except that of a particular nation, a vessel of that nation is excluded from the benefit of the licence, though not sailing under the national flag (h); but such a licence, where the parties had acted fairly under it, was held to protect a vessel though the country to which it belonged had been unexpectedly annexed to the prohibited country before capture (i). Where a licence was granted to purchase an enemy's vessel in satisfaction of a debt, such purchase was held valid, though the purchaser's agent had, without authority, given a bond for restitution at the conclusion of the war (k). But a general licence will not protect a vessel going to be sold in an enemy's port, for a licence must be intended to be granted for some benefit to the trade of the country granting it (7). Secondly, of the cargo to which the licence is applicable. A special licence will not enure to the protection of any thing beyond its specific purport. Hence a licence to British merchants by name, or their agents, or the bearers of their bills of lading, to import certain articles, will not protect such articles being the property of an enemy (m); nor will such licence protect the property of other British merchants whose (f) The Jonge Frederick, Edw. 357. (g) The Cornelia, Edw. 360. (h) The Bowrse, Edw. 370. (i) The Jonge Clara, Edw. 371. (k) The Clio, 6 Rob. 67. (1) The Beurse Van Koningsberg, 2 Rob. 169. (m) The Speculation, Edw. 34. |