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SECTION 2.-PERMISSIBLE INTERCOURSE

THE GOEDE HOOP.

(High Court of Admiralty, 1809. Edwards, 327.)

This was a leading case, and became of importance, as it furnished the court with an opportunity of stating generally the principles by which its decisions would be governed, in questions arising on the capture of vessels sailing under British licenses.

Sir W. SCOTT.12 This was the case of a vessel under Oldenburg colors, which was captured in the prosecution of a voyage from Rochelle to Hull, and brought to Plymouth. There was a license on board granted to Henry Nodin, on behalf of himself and other British merchants, for four vessels under particular colors, which are enumerated to proceed with cargoes of brandies from Charente, Bordeaux, or any port of France not blockaded, to any port of Great Britain, and permitting the masters to receive their freights, and depart with their vessels and crews. The license is dated 15th November, 1808, and is to remain in force six months from that period. Now the ship was taken the 29th of June last, and, therefore, according to the literal construction of the license, after the time had expired ḍuring which it was to continue in operation.

This question has led to some discussion on the rules of interpretation to be applied to licenses generally; and as those rules will, of necessity, embrace a great variety of cases, it is extremely desirable that they should be settled now, as far as this can be done by the authority of this court. These licenses owe their origin to the general prohibition, which declares it to be unlawful for the subjects of this country to trade with the enemies of the king, without his permission; for a state of war is a state of interdiction of communication. That is a law which is not peculiar to this country, but one which obtains very generally among the states of Europe. In former wars this prohibition was attended with very little inconvenience, as the greater part of the countries in the neighborhood remained neutral, and presented to the belligerents various channels of communications, through which they obtained from each other such commodities as they stood in need of. While the world, therefore, continued in that state, of course licenses would be granted only in very special cases, where it appeared that there was a necessity to have a direct communication with the enemy; and, being matter of special indulgence, the application of them was strictissimi juris. At the same time, when I so describe them, I do not mean to say that there ever was a period in which a

12 The statement of facts is abridged and parts of the opinion are omitted.

rational exposition, allowing a fair and liberal construction of the intention of the grantor, would not have been received.

But it has happened that, in consequence of the extraordinary and unprecedented course of public events, these licenses have, in a certain degree, changed their character, and are no longer to be considered exactly in the same light. It is notorious that the enemy has in this war directed his attacks more immediately against the commerce of this country than in former wars; and a circumstance of still greater weight is, that he has possessed himself of all those places that in former wars remained in a state of neutrality. To what part of the continent can we now look for a country which is not either under the actual dominion of France, or in that state of subjection to it which operates with all the effect of dominion? It is a state of things in which it has become impossible for England to carry on its foreign commerce, without placing it on a very different footing from what its convenience required in former wars. To say you shall have no trade with the enemy, would be, in effect, to say that you shall not trade at all; because that commerce which is essential to the prosperity of the country cannot be carried on in those small and obscure nooks and corners of Europe, if any such can be found, which are still independent. The question, then, comes, to this, how is the foreign commerce of the country to be maintained? It must be either by relaxing the ancient principle entirely, and permitting an unlimited intercourse with the ports of the enemy, and when the ports of other nations are put under blockade (as they are by the orders in council) for other reasons than those of a direct hostile character, they become liable to be considered and treated in like manner, so far as the purposes of blockade require; or it must be by giving a greater extension to the grant of licenses.

As to the relaxation of the general principle, by which an open and general intercourse with the enemy would be allowed, the consent of both parties is requisite to make that effectual; and even if the enemy permitted it, the legislature would probably not think proper to proceed to that length, and for reasons, I presume, connected with the public safety. It has, therefore, tolerated a resort to the other mode, of permitting a trade by licenses; which, though they are so denominated, are likewise, in effect, expedients adopted by this country to support its trade, in defiance of all those obstacles which are interposed by the enemy. They are not mere matters of special and rare indulgence, but are granted with great liberality to all merchants of good character, and are expressed in very general terms, requiring, therefore, an enlarged and liberal interpretation. At the same time, they are not free from control. Restrictions, dictated by prudent caution, are annexed; and, where they are so annexed, those restrictions must be supposed to have an operative meaning. It is not, therefore, in the power of this court to apply such an interpretation to a license as would be in direct contradiction to its express terms, or to say that

effect should be given to one part and not to another. If the permission is for a ship to go in ballast, it would be impossible for the court to say that it shall go with a cargo; for that would not be an interpretation, but a contravention, of the license. But where it is evident that the parties have acted with perfect good faith, and with an anxious wish to conform to the terms of the license, I presume that I am only carrying into effect the intention of the grantor, when I have recourse to the utmost liberality of construction which it is in the power of this court to apply. As a general rule, therefore, it is to be understood that, where no fraud has been committed, where no fraud has been. meditated, as far as appears, and where the parties have been prevented from carrying the license into literal execution by a power which they could not control, they shall be entitled to the benefit of its protection, although the terms may not have been literally and strictly fulfilled. If I assume too much in laying down this rule, it must be rectified in the superior court.

But looking to the intentions of the government, not only to what they are, but to what I am led to suppose they must be; looking to the extreme difficulty of carrying on the commerce of the country in the struggle which it has to maintain, not only against the power but against the craft of the enemy; looking to the frequency and the suddenness with which he lays on or takes off his embargoes, according to the exigency of the moment; looking to the various obstructions. that present themselves in obtaining vessels, in consequence of the small remainder that there is of neutral navigation in Europe; looking, also, to this circumstance, that all this intercourse must be carried on by the subjects of the enemy, that it must be a confidential transaction, to be conducted by an enemy shipper at great risk and hazard to himself; looking to the total change which has taken place in the nature and character of these licenses, if that denomination is to be continued; I say, looking to all these considerations, where there is clearly an absence of all fraud and of all discoverable inducement to fraud, I must go to the utmost length of protection that fair judicial discretion will warrant, though there may, under such circumstances, have been a considerable failure in the literal execution of the terms of the license. There may be great inconvenience in the whole system of licenses, as indeed it is scarce possible, in the present state of the world, that there should not be great practical inconvenience in any mode of conducting its commerce. That is a question of policy, with which this court has nothing to do. It has only to enforce the just execution of legitimate orders, issued by competent authority.

Having laid it down, therefore, as a general principle, that where there is clear bona fides in the holder, this court, though it certainly will not contravene the terms of a license, will give it the most liberal construction, I come now to apply that rule to the case before me. The principle ground of objection is, the delay which took place in the sailing of the vessel; but I must observe, that having called on the

counsel for the captors to point out what particular fraud could have been intended by this procrastination, I have only been answered by a sort of general suggestion, that such an extension of the period allowed might afford an opportunity of bringing the license into use a second time. But that any such use was made, or intended to be made, of the license, in the present instance, has not been suggested, and therefore, it is to be taken as a case clear of that act or intention of fraud. * *

Now the whole labor of the argument has been employed to show, that some fraud or other must be presumed, from the length of time which elapsed after the expiration of the license. But what is the natural presumption in this case? why, that the party would not countenance an unnecessary delay, which must be contrary to his own direct interest. This furnishes a very strong ground to suppose that it was by accident that the ship was prevented from completing her voyage within the time expressed in the license. If it could be shown that the license had been used before, and that the delay in the present instance arose from its previous use, or that there was any other fraudulent purpose to be answered, most certainly I should then call for more particular explanations; but as no fraudulent motive has been. pointed out, I must suppose that the party was not dilatory in furthering the completion of his own mercantile adventure. The only thing suggested is the fact that the time limited by the license had expired. That has been accounted for by the intervention of an alleged embargo. Shall I, under these circumstances, order the fact of the embargo to be established by further proof, when it is so probable in itself, and load this table with French decrees and ordinances, which would, after long delay, in all probability, lead to the same conclusion at last? Looking to the local circumstances of the country in which the transaction originated, and to the conduct of the French government at that particular period, I think it my duty to stand upon the presumption that the embargo did exist, and to hold the parties entitled to restitution, paying the captors their expenses, which I cannot refuse, where the parties are acting in apparent contravention of the literal terms of their license. In such cases his Majesty's officers have a right to be satisfied, and they are entitled, in justice, to be protected in their expenses. It is an inconvenience not arising from capture, but from the present state of affairs, and from which the court cannot relieve the claimants, however it may regret that they should be subjected to it. The license, I observe, is only to bring a cargo of brandy, and as there are other goods on board, those goods must be condemned, as the permission is limited to the brandy.

USPARICHA v. NOBLE.

(King's Bench, 1811. 13 East, 332.)

This was an action on a policy of insurance on fish on board the Prussian ship Carlota, at and from Poole to St. Andero and Bilboa, both, or either, subscribed by the defendant for £150., on the 29th Feb., 1808, a copy of which policy was annexed to this case.

* * *

At the trial at the sittings after last Michaelmas term at Guildhall before Lord Ellenborough, C. J., a verdict was found for the plaintiff, for £137. 10s., subject to the opinion of the court upon the following

case:

* * *

The plaintiff is a Spaniard by birth, but has been domiciled as a merchant in this country for the last eight years. In February, 1808, the plaintiff purchased 13 5,400 quintals of fish, and shipped the same in the Prussian ship the Carlota for St. Andero, in consequence of orders from the agent of Mr. Lemona Uria, a merchant resident in Bilboa, and Mr. Uriarte, a Spanish gentleman resident at Vera Cruz in Spanish America, but who was in England at the time of the purchase and shipment, upon a temporary occasion. On the 21st of December, 1807, the British government granted a license for the ship Carlota with her said cargo to proceed on the voyage in question. By the decrees of the French and Spanish governments at the commencement of the war with Great Britain, all ships and goods coming from England were declared lawful prize. The Carlota sailed from Poole on the 28th of February, 1808; and while in prosecution of her voyage, was captured (without the limits of the ports of St. Andero or Bilboa) by two French privateers belonging to Bayonne, and was carried into Castro, a port of Spain, where the ship and cargo were condemned and sold by the sentence of a French consular court, held in Spain, on the 8th of June, 1808. At the time of the capture and condemnation France and Spain were co-belligerent allies at war with this country. The question was, whether the plaintiff were entitled to recover? If he were so entitled, the verdict was to stand: if not, then the verdict was to be set aside and a nonsuit entered. The policy referred to was in the common printed form, and was stated to be made by the plaintiff, as well in his own name, as for and in the name and names of all and every other person or persons to whom the same did, should or might, appertain, for himself and them and every of them, at 10 guineas per cent.; and liberty was reserved for the ship "to have any clearances and carry any simulated papers"; and also it was "lawful for the said ship in the voyage to proceed and sail to, and touch and stay at any ports or places whatsoever and wheresoever to load, unload, and reload goods, without being deemed a deviation." *

18 It was agreed in the course of the argument that the goods were purchased and shipped by the plaintiff, on account of his correspondents, and not on his own account.

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