the firm partly resided. The goods in question had been shipped from the Leipzig branch to the Danish house and by the latter re-forwarded to the American house. The claimants contended that the principle of non-transferability of property in transitu referred only to the state of the property at the time of shipment and since the goods in the present case, although they may have been of German origin, were neutral goods at the time of shipment, were not condemnable. But Sir Samuel Evans said he was unable to grasp this argument and saw no foundation for it. The goods, he thought, belonged to the Leipzig house and it mattered not who the partners were or what was their nationality or residence. Adverting to the contention of the claimants regarding the meaning of the rule in respect to transfers in transitu he said: "Shipment does not mean the place where the goods are first handed from somebody on land to a ship. For the purpose of this case the transit begins not where they were shipped at Copenhagen but when they were sent from Leipzig." They were therefore condemned as the property of an enemy.

Sec. 363. Goods Shipped by Neutral Branch of Enemy House to Neutral Consignees. Two important cases were those of the Annie Johnson and the Kronprinsessan Margareta No. 2,2 the last of about thirty-seven of the famous "Trinks" cases decided by the British Prize Court. The question here was the liability to condemnation of a quantity of coffee consigned during the war to a Swedish firm, shipped on Swedish vessels, by Trinks and Co. of Santos, Brazil, a buying branch of the house of Trinks & Co. of Hamburg. The goods were claimed by the Swedish consignees on the ground that the property passed to them on the date of shipment. They argued that the goods were shipped on a c. and f. contract at the risk of the claimants, that it was the intention of the parties that the property should pass to the claimants on shipment and that the sellers had not reserved any jus disponendi. They also emphasized that they had bought the coffee for Swedish consumption.

Sir Samuel Evans at the outset observed that the transactions in these cases were all post bellum transactions, unlike those in the Miramichi and Parchim. In a long opinion he discussed in detail the transactions and examined in turn the various contentions put forward by the claimants. Assuming, he said, that

'See below, Sec. 390.

VII Lloyd 166; III Br. & Col. Pr. Cas. 138.

the contract of sale was bona fide and that the Santos firm was a neutral house and the law to be applied in determining ownership was the municipal law (which he did not admit), he was bound to hold that the property had not passed at the date of seizure. If Trinks & Co. of Santos were to be regarded as an enemy firm the goods would have to be treated as enemy goods during transit and the claimants could not be regarded as the owners until the goods were actually delivered and in their possession, this, in consequence of the rule relative to transfers during the existence of war. On the other hand, if the Santos house were to be regarded as a neutral house and the goods were intended for the use or disposition of the Hamburg house they would have to be treated as enemy goods whether the legal property according to municipal law remained in the shippers or not.

Regarding the relationship between Trinks & Co. of Hamburg and Trinks & Co. of Santos, Sir Samuel observed that they had "interests in common, even if they are not identical." "My view is," he added, "that the Santos house was only a buying branch of the Hamburg house. The sole proprietor, who subscribed the whole of the capital for the Santos house or branch, was a partner in the Hamburg firm." Concluding, he said:

"In this case the goods at the time of shipment were the property either of the Santos house or of the Hamburg house of Trinks. In dealing with the position in the other cases, I said that 'where a person has interest in both an enemy and a neutral house of trade, and the transactions between the two are so mixed up as they are in these cases, the Court will not undertake itself to unravel the tangle. That is the duty of claimants; and if they fail in it they must suffer the consequences.'

"I think there is enough evidence in this case upon which to find that the Santos business was a mere agency or branch of the Hamburg house, and that before shipment the goods were the property of an enemy firm. The result then would be, according to the rule of Prize Courts, that they would remain enemy property during transit, and be enemy property at the seizure.

"But if they were the property of the Santos house as an entity distinct from the Hamburg firm, I should find that, having regard to the intimate connection between them, and to the share held by Peter Trinks in both, and to the whole evidence, the Santos firm and Gewalt were acting in concert and in the interests of the Hamburg firm in the purchase and shipment of the coffee; and I should, without hesitation, apply the rule referred to, or extend it if need be, and decide that what was done was in fraud of the rights of belligerents; and that the property could not pass in transitu, and therefore remained in the shippers. They have made no claim. And, in any event, the goods

would suffer under the doctrine of contagion from the presence on the ships of other condemned goods belonging to the same owners.'

Sec. 364. Claims of Mortgagees, Pledgees, Insurers, Etc. Not unfrequently other claimants than sellers or buyers appeared before the Prize Courts and the latter were obliged to determine whether the claimants had a proprietary right in the goods at the time of seizure. Such were mortgagees, pledgees and insurers. In the case of the Ningchow1 a cargo had been shipped before the war by a German firm at Hankow on a British vessel consigned to an English firm at Liverpool. The Yokahama Specie Bank had made an advance of money on the security of the shipping documents which were endorsed to the bank. After the outbreak of the war the British consignees refused to take up the goods or documents and the bankers as pledgees contracted to sell the goods to another British firm. The goods being seized the question was raised as to whether the pledgees were the owners of the goods at the time they contracted to sell them to the English firm. Sir Samuel Evans held that they were. "In my mind," he said, "the inquiry as to whether the property in the goods had so passed is irrelevant to the question which has to be determined in this case, which is, whether they belonged to enemy subjects at the time of the seizure."

It had been admitted by counsel for the Crown, he said, that the pledgees were entitled to exercise their power of sale. The right of the enemy pledgors to redeem the goods had therefore been lost to them and accordingly they ceased to be in any sense the owners of the goods when the bank contracted to sell them, apart entirely from any question which might exist, as between the sellers (the pledgors) and their purchasers, of whether according to the law of the sale of the goods, the property remained in the sellers or had passed to the purchasers. The goods were not therefore subject to condemnation as enemy property.

But in the case of the Odessa and Cape Corso 2 Sir Samuel laid it down that in such circumstances the property remained in the owners until the pledgees had actually exercised their right of sale. That is to say, the mere fact that the right to sell has accrued to the pledgees does not by itself make them the owners. Furthermore, enemy pledgors to neutral bankers do not lose their right to redeem the goods by reason of the outbreak of war, although the documents are held by British agents of the III Lloyd 156; I Br. & Col. Pr. Cas. 288.

'I Lloyd 301; I Br. & Col. Pr. Cas. 163.

bankers who are prohibited from commercial intercourse with the enemy and although the bankers are merely pledgees whose rights are unenforceable in a Prize Court. So as regards insurers, the owner of insured goods loses his proprietary right in them by abandoning them to the underwriters.1

Where a cargo shipped by a South American company on a British vessel to consignees in Hamburg was insured for 972 per cent of its value with German underwriters who after seizure paid for the total loss, it was held that the German underwriters were the owners at the time when the claim was made and consequently the proceeds must be condemned.2

Sec. 365. Transfers of Ownership After Date of Capture. Generally the Prize Courts held that goods which were nonenemy in character at the date of capture but which were transferred to enemy owners after that date must be treated as enemy goods. This question was raised in the British case of the Palm Branch, where at the time of capture the goods were admittedly the property of a neutral firm but a year later when the claim came before the Prize Court they had become the property of enemy underwriters. The claimants contended inter alia that the neutral or enemy character of goods depends solely upon their character at the date of capture or seizure and since the goods in question were admittedly of neutral ownership at the time of seizure they were not liable to condemnation by reason of the fact that their enemy insurers had subsequently paid to the neutral owners the total loss thereon. Such payment, they argued, did not convert them into enemy goods. Goods belonging to an enemy at the date of capture being liable to condemnation even though neutral insurers have after capture paid a total loss thereon, the converse proposition ought to be admitted. Sir Samuel Evans admitted that the point raised was a novel one and that there did not appear to be any reported decision governing the case but he thought the practice and forms of the Prize Court for a long time were based on the theory that property claimed by a neutral must not only have belonged to him at the time of capture but also at the time the claim was asserted in the Prize Court and would go to him in case it was restored. On these grounds he condemned the goods as enemy property but upon appeal the decision was reversed by the Judicial Com

The Rijn, VI, ibid., 181; II, ibid., 507.

The Palm Branch, VI, ibid., 1; III, ibid., 241. See also the Dirigio and Other Vessels, VIII Lloyd 395. 'VI Lloyd 1; II Br. & Col. Pr. Cas. 281.

mittee.1 The Judicial Committee reaffirmed its view in the case of the Orteric where it stated that while the date of capture was the "crucial date" for the case of the captors, at the same time "subsequent dates may affect the claimant's rights independently of any mere traverse of the captor's claim." "Thus a claimant, having succeeded in his contention that what the captors seized was then his property, may nevertheless fail to establish a right to have it released to him, if before he comes before the Court to claim as owner, it has become enemy property. He cannot then truly claim the goods as his. In order to obtain the release of the goods to himself he has to prove that the goods were his when seized and that he is still the person who, so to speak, can give a good discharge for them, if the court decrees their release to him." The German Supreme Prize Court in the case of the Eskimo adopted the same view in holding that goods which were non-enemy at the time of seizure but which became enemy property thereafter in consequence of the cession of the bill of lading must be condemned as enemy goods. All enemy merchandise, said the Court, seized on the open sea is confiscable and one cannot see why the decision relative to the question of whether if this is the case, must be transferred to another moment than that at which the decision is made. If the goods have become enemy property only after their seizure, that is sufficient to create the legal basis necessary to their confiscation previously pronounced. The Italian Prize Commission laid down the same rule."

II

TRANSFERS OF OWNERSHIP DURING OR IN EXPECTATION OF WAR

Sec. 366. Law Applied by the British Prize Courts. While, as stated above, the British Prize Courts generally applied the rules of municipal law (the civil law or commercial law) in determining the ownership of goods shipped prior to the outbreak of war, they applied the principles of prize law in the case of shipments made during the war or when the outbreak of war had already become imminent. It is one of the estab

1 VI, Ibid., 18; III, ibid., 241.

VIII Lloyd 13.

8 To the same effect see the Prinz Adalbert (Part Cargo), V Lloyd 1; the Frogner, VIII, ibid., 382; and the Zaanland, X, ibid., 343.

5

I Entsch. 383; Fauchille et De Visscher, 292.

The Moravia (Cargo). Fauchille et Basdevant, Jurispr. Ital. 103.