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insurance; in other words, the contract was what is so well known as a c. i. f. contract. Payment (or in the American terminology "reimbursement") was to be "by check against documents." The sellers were to furnish policies of insurance, or certificates of insurance (free) of war risk). A clause for settlement of disputes in London was included, which shows (apart from anything else) that any disputes were to be determined according to English law.

The sellers had bought the wheat to enable them to fulfill their contract with the buyers from C. B. Fox, a grain merchant in Galveston. The wheat was shipped by Fox at Galveston on July 23, 1914. The bill of lading was given in favour of Fox, the shipper, and was made out unto the order of one Davis, or to his or their assigns. It was indorsed generally, and in due course the sellers paid Fox for the wheat and obtained the bill of lading. They did not indorse it in favour of the buyers, and it remained a bill of lading only indorsed generally. The necessary insurances were effected and the certificates of insurance were obtained by the sellers on July 23.

On July 28 the sellers drew a bill of exchange upon the buyers, and, according to the statement of the Attorney General, discounted it with the bankers (the Guaranty Trust Company of New York, who have joined them as claimants). On the same date they deposited with the bankers the bill of lading and certificates of insurance to be delivered up on payment by the buyers through a Berlin bank of the amount due on the bill of exchange for the cost and insurance, less the freight, which was credited, as it was to be paid for by the buyers on delivery. On the same date also the original documents were forwarded to the Berlin bank for credit of the New York bank, by the steamship Savoie, which sailed from New York on July 29 and arrived at Le Havre on August 5; and duplicate documents were forwarded by the steamship Carmania, which sailed from New York on July 29 and arrived at Liverpool on August 7. The buyers were duly notified of these matters, and an invoice was forwarded to them by the sellers on the same day (July 28) with all the necessary particulars of the shipment bill of exchange, and documents.

So far as the buyers are concerned, no further information was given to the Court except that the documents were tendered to them, and that on the tender they refused to accept the documents, or to pay the sum due under the bill of exchange and indorsed on the bill of lading as follows: "Refused on account of late production, nearly one month. after normal due date. Colmar, September 3, 1914. Geo. Fries."

That reason was a mere excuse; the real reason, no doubt, was that war had broken out. The sellers, therefore, or their bankers, still hold the bill of lading, and the bill of exchange remains unpaid. These, I think, are all the material facts.

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Very difficult questions often arise at law as to when the property in goods carried by sea is transferred, or vests; and at whose risk goods are at a particular time, or who suffers by their loss.

These are the kind of questions which are often brushed aside in the Prize Court when the transactions in which they are involved take place during war or were embarked in when war was imminent or anticipated.

But where, as in the present case, all the material parts of the business transaction took place bona fide during peace, and it becomes necessary to decide questions of property, I hold that the law to be applied is the ordinary municipal law governing contracts for the sale and purchase of goods.

Where goods are contracted to be sold and are shipped during peace without any anticipation of imminent war, and are seized or captured afloat after war has supervened, the cardinal principle is, in my opinion, that they are not subject to seizure or capture unless under the contract the property in the goods has by that time passed to the enemy.

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In my opinion the result of the many decisions from Wait v. Baker (1848) 2 Ex. 1, up to Ogg v. Shuter (1875) 1 C. P. D. 47, Mirabita v. Ottoman Bank (1878) 3 Ex. D. 164, and thence up to the Sale of Goods. Act, 1893; and of the provisions of the Sale of Goods Act, 1893, itself, following closely on these matters the judgment of Cotton, L. J., in Mirabita v. Ottoman Bank [1878] 3 Ex. D. 164; and of the decisions subsequent to the act, e. g., Dupont v. British South Africa Co. [1901] 18 Times L. R. 24, Ryan v. Ridley [1902] 8 Com. Cas. 105, and Biddell v. E. Clemens Horst [1911] 1 K. B. 214, 934, [1912] A. C. 18, is that, in the circumstances of the present case, the goods had not at the time of seizure passed to the buyers; but that the sellers had reserved a right of disposal or a jus disponendi over them, and that the goods still remained their property, and would so remain until the shipping documents had been tendered to and taken over by the buyers, and the bill of exchange for the price had been paid.

It follows that the goods seized were the property of the American claimants, and were not subject to seizure; the court decrees accordingly, and orders the goods to be released to the claimants.

THE SALLY MAGEE.

(Supreme Court of the United States, 1865. 3 Wall. 451, 18 L. Ed. 197.) Appeal from a decree of the District Court for the Southern District of New York, condemning as enemy's property the bark Sally Magee and her cargo, captured during the late rebellion; the question. before this court being, however, only as to the cargo; the condemnation of the vessel not being appealed from.

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All the goods were to be delivered at Richmond. The vessel sailed from Rio for Richmond on the 12th of May, 1861. When forty-five days out from Rio, and before any intelligence of the war had reached

her, she was captured as prize, and sent to New York, where both the vessel and cargo were libelled in the District Court. Upon the return of the monition, on the 23d of July, 1861, two claims, both made by Fry, Price & Co., of New York, were interposed relative to the cargo. In July, 1863-two years after the proceedings on prize were instituted-both the vessel and cargo were condemned, the latter having been appraised at the considerable sum of $69,000. * *

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Mr. Justice SWAYNE delivered the opinion of the court." When a vessel is liable to confiscation, the first presumption is that the cargo is in the same situation. The bills of lading in the case are in evidence. The goods were consigned to parties living in Richmond. This vested the ownership in them. Such is the legal effect of a bill of lading as regards the consignee, unless the contrary is shown by the bill of lading itself or by extrinsic evidence. Upon the proofs there was clearly a prima facie case for the condemnation of the entire cargo.

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The ownership of property in such cases cannot be changed while it is in transitu. The capture clothes the captors with all the rights of the owner which subsisted at the commencement of the voyage, and 'anything done thereafter, designed to incumber the property, or change its ownership, is a nullity. No lien created at any time by the secret convention of the parties is recognized. Sound public policy and the right administration of justice forbid it. This rule is rigidly enforced by all prize tribunals. The property was shipped to the enemy. It was diverted from its course by the capture. The allegation of a lien wears the appearance of an afterthought. It strikes us as a scheme devised under pressure, to save, if possible, something from the vortex which it was foreseen inevitably awaited the vessel and cargo.

Decree affirmed.10

• Part of the statement of facts and part of the opinion are omitted.

Nelson, J., not having sat; having been indisposed.

8 Wheaton, Appendix, 24.

Laurence v. Minturn, 17 How. 100, 15 L. Ed. 58 (1854).

10 In the San José Indiano, 2 Gall. 268, 21 Fed. Cas. 389, 398, No. 12,322 (1814), Mr. Justice Story, sitting at Circuit, said:

"The single question presented in this claim is, in whom the property vested during its transit; if in Mr. Lizaur, then it is to be restored; if in the shippers, then it is to be condemned. It is contended on behalf of the claimant, that the goods, having been purchased by order of Mr. Lizaur, the property vested in him immediately by the purchase, and the contract being executed by the sale, no delivery was necessary to perfect the legal title; that nothing was reserved to the shippers, but a mere right of stoppage in transitu, and that if they had been burnt before the shipment, or lost during the voyage, the loss must have fallen on Mr. Lizaur. As to the doctrine of stoppage in transitu, I do not conceive it can apply to this case. That right exists in the single case of insolvency, and presupposes, not only that the property in the goods has passed to the consignee, but that the possession is in a third person in their transit to the consignee. It cannot, therefore, touch a case, where the actual or constructive possession still remains in the shipper or his exclusive agents."

CHAPTER XV

BELLIGERENT USE OF NEUTRAL TERRITORY

SECTION 1.-BASE OF HOSTILE OPERATIONS

THE SALVADOR.

(Privy Council, 1870. L. R. 1870, 3 Privy Council, 218.)

For the material portion of The Salvador, in so far as this reference is concerned, see The Three Friends, post, p. 838.

THE SANTISSIMA TRINIDAD.

THE ST. ANDRE.

(Supreme Court of the United States, 1822. 7 Wheat. 283, 5 L. Ed. 454`

Appeal from the Circuit Court of Virginia.

This was a libel filed by the consul of Spain, in the District Court of Virginia, in April, 1817, against eighty nine bales of cochineal, two bales of jalap, and one box of vanilla, originally constituting part of the cargoes of the Spanish ships Santissima Trinidad and St. Andre, and alleged, to be unlawfully and piratically taken out of those vessels on the high seas by a squadron consisting of two armed vessels called the Independencia del Sud and the Altravida, and manned and commanded by persons assuming themselves to be citizens of the United Provinces of the Rio de la Plata. The libel was filed, in behalf of the original Spanish owners, by Don Pablo Chacon, consul of his Catholic Majesty for the port of Norfolk; and as amended, it insisted upon restitution principally for three reasons: (1) That the commanders of the capturing vessels, the Independencia and the Altravida, were native citizens of the United States, and were prohibited by our treaty with Spain of 1795, from taking commissions to cruize against that power. (2) That the said capturing vessels were owned in the United States, and were originally equipped, fitted out, armed and manned in the United States, contrary to law. (3) That their force and armament had been illegally augmented within the United States.

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The District Court, upon the hearing of the cause, decreed restitution to the original Spanish owners. That sentence was affirmed in the Circuit Court, and from the decree of the latter the cause was brought by appeal to this court.

Mr. Justice STORY delivered the opinion of the court.1 Upon the argument at the bar several questions have arisen, which have been deliberately considered by the court; and its judgment will now be pronounced. The first in the order, in which we think it most. convenient to consider the cause, is, whether the Independencia is in point of fact a public ship, belonging to the government of Buenos Ayres. The history of this vessel, so far as is necessary for the disposal of this point, is briefly this: She was originally built and equipped at Baltimore as a privateer during the late war with Great Britain, and was then rigged as a schooner, and called the Mammoth, and cruized against the enemy. After the peace she was rigged as a brig, and sold by her original owners. In January, 1816, she was loaded. with a cargo of munitions of war, by her new owners, (who are inhabitants of Baltimore), and being armed with twelve guns, constituting a part of her original armament, she was despatched from that port, under the command of the claimant, on a voyage, ostensibly to the Northwest Coast, but in reality to Buenos Ayres. By the written instructions given to the supercargo on this voyage, he was authorized to sell the vessel to the government of Buenos Ayres, if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag, during the voyage. At Buenos Ayres the vessel was sold to Captain Chaytor and two other persons; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres; and Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres; and had received a commission to command the vessel as a national ship; and invited the crew to enlist in the service; and the greater part of them accordingly enlisted. From this period, which was in May, 1816, the public functionaries of our own and other foreign governments at that port, considered the vessel as a public ship of war, and such was her avowed character and reputation. No bill of sale of the vessel to the government of Buenos Ayres is produced, and a question has been made principally from this defect in the evidence, whether her character as a public ship is established. It is not understood that any doubt is expressed as to the genuineness of Captain Chaytor's commission, nor as to the competency of the other proofs in the cause introduced, to corroborate it. The only point is, whether supposing them true, they afford satisfactory evidence of her public character. We are of opinion that they do. In general the commission of a public ship, signed by the proper authorities of the nation to which she belongs, is complete proof of her national character. A bill of sale is not necessary to be produced. Nor will the courts of a foreign country inquire into the means by which the title to the property has been acquired. It

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

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