the time of sale in the prosecution of a voyage from Libau, an enemy's port, to Copenhagen, a neutral port, where she arrived and was taken possession of by the purchaser. The Privy Council held that, under these circumstances, the sale, though in transitu, was valid, as the transitus had ceased when the vessel had come into possession of the purchaser before the seizure. In this same case it was decided that, if the property of the enemy be not in transitu, imminente bello, or flagrante bello, the purchase by a neutral of such property is valid, whether the subject of it be lying in a neutral or in an enemy's port,1 provided the transfer is bonâ fide. Captors disregard all equitable liens on enemy's property, and lay their hands on the tangible property, relying on the simple title in the name and possession of the enemy. If the Courts were to open the doors to equitable claims there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in Prize Courts would be lost.2 No lien therefore claimed by a neutral upon property captured from the enemy will be allowed to prevail in a Court of Prize. "Captors," said Sir W. Scott," are supposed to lay their hands on the gross tangible property, on which there may be many just claims outstanding between other parties which can have no operation as to them. If such a rule did not exist it would be quite impossible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most 1 Ratten v. The Queen, 11 Moore, | ibid. p. 80. P. C. C. p. 271. The Johanna 2 The Francis, 1 Gallison, p. 445. Property cannot be election. 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 knowledge. It would be equally impossible for the Court which has to decide upon the question of property to admit such considerations. The doctrine of liens depends very much on the particular rules of jurisprudence which prevail in different countries. To decide judicially on such claims would require from the Court a perfect knowledge of the law of covenant, and the application of that law in different countries, under all the diversities in which that law exists. From necessity therefore the Court would be obliged to shut the door against such discussions, and to decide on the simple title of property with scarcely any exceptions."1 It is then a general principle of Maritime Law, subchanged at ject to very few exceptions, that the character of hostility impressed upon property at the outset of a voyage, cannot be altered during its continuance. The nature of the property must remain the same in transitu. The most prominent exception to the rule is when the transfer is made during a time of profound peace without reference to a contemplation of hostilities. But, for instance, if the property of an enemy is sent to a neutral or friend to be his at his election at the end of the voyage, it remains during the whole course of the voyage as regards the claims of belligerent enemies' property. It is not within the power of the neutral or friend to change by his election the character of hos 1 The Marianna, 6 Rob. p. 24. The Tobago, ibid. p. 24. Kent's Com. i. p. 94, 95. tility which attached to the property at its shipment. "During the whole voyage," to use the forcible language of Mr. Justice Story, "it must be subject to the shipper's right of stoppage in transitu; and this right by the capture becomes legally and effectively vested in the captors. I do not undertake to say how the case might stand as between the shipper and the consignee upon such election being made; it will be time enough to decide that question when the case arises. But when the interests of third persons intervene the right of election cannot defeat their right, and the laws of belligerent capture would remain a mere theoretical system if the doctrine contended for by the claimants should prevail. In my judgment the great principles of national law require that no secret liens, no future elections, no private contracts looking to future events, should cloak with the garbs of neutrality the property of an enemy while sailing on the ocean. I know not that any person could foresee the alarming extent to which the contrary doctrine might lead us. Frauds of every name and character might thicken round us and not a single bale of hostile property would swim on the ocean but it would be covered with neutral liens and secret and interminable contracts. Against the adoption of principles which would lead to this inevitable result I beg to enter my solemn dissent." transac ing their The chief exception to this rule, that property cannot Exception: be transferred in transitu on the high seas, is, as has tions havbeen observed, when the transaction had its origin bonâ fide in time of peace. To such cases the rule which arises out of a state of war, and creates new 1 The Francis, 1 Gall. p. 445. G origin in time of peace. rights in other parties, can have no application.1 And accordingly, in consideration of the fair course of mercantile speculation, Sir W. Scott allowed a transfer of title to goods to be effected by the transfer of the bills of lading when it had been done without any view of accommodation to relieve the seller from the pressure or the prospect of war. But if the contemplation of a war leads immediately to the transfer and becomes the foundation of a contract which would not otherwise have been 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 side there on his side there may be other concurrent motives, such a contract cannot be held good on the same principle that applies to invalidate a transfer in transitu in time of actual war.2 "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 is 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 animo fraudandi, and are in my opinion justly subject to the same rule." 1 The Vrow Margaretha, 1 Rob. | 121. p. 337. The Packet de Bilboa, 2 Rob. p. 133. The Rendsborg, 4 Ch. Rob. p. The Jan. Frederick, 5 Rob. p. 133. Twiss, Law of Nations, Time of War, p. 324. CHAPTER V. SHIP'S DOCUMENTS. PROPER DOCUMENTS NECESSARY TO SUPPORT CHARACTER OF NEU- pass. 1. It is indispensable that a neutral vessel should be furnished with the proper documents necessary to support her character of neutrality; and the object of the right of visit is—by Art. XVII. of the Treaty of the Pyrenees (Nov. 7, 1650), which is considered to embody the common law of nations on the subject-stated to be for the purpose of inspecting the ship's pass or sea- Ship's letter, whereby the nature of her cargo, and likewise the domicil, residence, and names of her master and owner, as well as of the vessel itself, may be ascertained.1 The most material of these documents are the register, passport or sea-letter, muster-roll, log-book, charter-party, invoice, and bill of lading; and although the want of some of these papers is strong presumptive evidence against the ship's neutrality, yet the want of any one of them is not conclusive. Si aliquid ex solemnibus deficiat cum equitas poscit subveniendum est. The concealment of papers, material for the preservation of the neutral character, justifies a capture, and 1 Twiss, Law of Nations, Time of War, p. 183. |