THE ”AUSTRALIA”(CARGO ex)

002-NLR-NLR-V-19-THE-”AUSTRALIA”(CARGO-ex).pdf


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The Colonial Court of Admiralty in Prize.
Present : Wood Benton C.J. and P.
THE “ AUSTBALIA *' (CABGO ex).
Cause No. 7
In the case of all claims to cargo on an enemy ship, the burden'of proof lies on the claimant.
Where an enemy shipper pledges goods with a bank on terms-that the documents are to be delivered to the consignee . againstpayment or acceptance, and the bank posts the document directto. the consignee without taking measures to secure paymentor acceptance, the property does not pass, on the posting of thedocuments.
The bank, in such a case, is the bailee of the documents, and hasso authority to transmit the documents, or to dispose of the goodswhich they represent, except in accordance with the contract ' ofbailment, and any special arrangement, course of business betweenthe bank and the consignee, to which the shipper is not a party,does not affect the passing of the property.
The effect of contracts f.o.b. and ' c.i.f., and the legal position ofcommission agents in a foreign country, considered and explained.
. The captor's right to freight is not affected by any privatearrangement between the owners of . the ship and the -consignees,as -agents of the owners, by virtue of which amounts due in respectof freight are to be credited in an account current.
rp HE ■ facts are set out in the judgment.
Elliott, instructed by Tonics and Alvis, for the respectiveclaimants.
Attorney-General (Sir Anton Bertram, Ki., K.C.), Fernando, C.C.,
with him, for the Crown.
6- ’
1916.
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1916. March 20, 1916. Wood Renton C.J. and P.—
“Australia'’ The steamship Australia, a vessel belonging to the Deutsche(Cargo ex) Austrnlische Dampfschiffs Gesellschaft, which sailed from Germanyprior to, but reached Colombo after, the outbreak of the presentwar, was seized by His Majesty’s ship Fojc on August 10, and wascondemned as good and lawful prize by an order of this Court onOctober 5,1914. The questions that now await adjudication
arise out of—
(1) Claims made by Messrs. Ford, Rhodes, Thornton, &Company, who, by an order of the District Court ofColombo dated October 24,1914, and an amending
order of March 22, 1915, were appointed controllers ofthe business of Messrs. Freudenberg & Company, aGerman firm, the members of which were, subsequentlyto the commencement of war, interned as alien enemies,and were enabled to institute, carry on, or defend anylegal proceedings on their behalf, to the proceeds whichhad been deposited in Court, of the sale of certainportions of the cargo; (2) several independent claims;and (3) a motion by the Crown that a sum of Rs. 4,165.31,deposited in Court by Messrs.. Freudenberg & Com-pany’s solicitors on September 28, 1914, to abide theorder of this Court, should be declared freight due forthe transportation of the steamship Australia’s cargo.
As ini Mirabita v. Imperial Ottoman Bank,* both sides agreed thatthe case must be disposed of “ on the footing that the law of Englandor a like law is applicable.” The translations from the originalGerman of the various documents that were put in evidence werealso accepted as substantially correct. I have, however, had theseoriginals before me, and have looked at them myself whenever itseemed necessary to do so.
The first point that has to be decided is the question whether,so far as the claims are concerned, the burden of proof rests on thecontrollers or on the Crown. The answer to this question must,in my opinion, be that the onus probandi lies upon the former.I should have come to this conclusion, apart from authority, on theground that the condemnation of the steamship Australia as goodand lawful prize attached a primd facie enemy character to hercargo. But this view is, I think, supported by the ruling of SirSamuel Evans in the case of The Boland.2 In that case the Germanvessel Roland sailed from New Orleans for German ports with acargo of tobacco prior to the declaration of war by Great Britainupon Germany. She was captured after the war began, broughtinto Plymouth, and condemned as prize. Appearances were
1 (1878) L. R. 8, Bxch. Die. 164. See at page 168.
2 (1915) British and Colonial Prize Cases, Part 2, page 188.
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entered by Wessels, Kulenkampff & Company of New Yprk, Trinidad,and Jamaica, claiming to be the neutral owners, of three hundredany forty*two hogsheads of' the tobacco. The commercial domicilof thin firm was American. One partner was a British subjectresident in Jamaica, and taking charge of the business transactedthere. The others, although they resided in New York, wereGerman subjects. It was argued for the Crown that, in the absenceof proof of the neutral character of goods found in an enemy vessel,the presumption was that they were enemy goods. In support ofthis contention reference was made to Article 59 of the Declarationof London, that <( in the absence of proof of a neutral character ofgoods found on board an enemy vessel they are presumed to beenemy goods." For the claimants it was urged that the presump-tion that goods on an enemy ship were enemy property appliedonly to goods shipped after the outbreak of war. Sir SamuelEvans disposed of the point under consideration in the followingterms:—"I think it is abundantly clear, according to Prize law,that property upon an enemy ship consigned to an enemy port isprimd facie enemy properly, and it is for the claimants, who allegethat the property belongs to them as neutrals, to make out theircase, and to make it out clearly. No authority is required for that,though several authorities have been referred to in the course ofthe arguments. I am content to say that that is, and ought to be,the presumption in cases of this description."
Counsel for the controllers argued that the ruling was inapplicableto the present case, inasmuch as here the cargo was not consignedto an enemy port. I do not think, however, that Sir Samuel Evansintended to engraft any such limitation upon the principle thathe was affirming. He was merely touching upon a circumstancedisclosed by the particular facts with which he had at the momentto deal. The. arguments of counsel on both sides in the case ofThe Boland 1 support this view, which is corroborated also by thecommentary of the International Naval Conference on Article 59of the Declaration of London:—" Article 59 gives expression to thetraditional rule according to which goods found on board an enemyvessel are, failing proof to the contrary, presumed to be enemygoods; this is merely a simple presumption, which leaves to theclaimant the right, but at the same time the onus, of proving histitle."
* I proceed now to ascertain, in the first place, the facts as to eachof the heads of the controllers’ claims, and, in the next place, tjielaw applicable to the subject.
We begin with a claim relating to twenty cases of laundry blue(A). On October 30, 1913, Messrs. Freudenberg & Company wroteto the Deutsche Bank, Berlin,, wnose agents in Colombo they werestated by counsel at the argument in have been, opening a series
1 {1915) British and Colonial Prize Cases, Part 2. page 188m.
1916.
Voo»
Rkxton C.J.and F.
“Atwtralia”(Cargo ex)i
1016.
Wood
Bsvhtom C.J.and PI
“ Australia ' ’(Cargo ex)
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oi credit accounts which were to be in force for the following year.
“ The credits described as current,” they stipulated. *‘ are to beunderstood in such a .way that our labilities to you with regardto the respective firms do not at any time exceed the amountsmentioned. ” One of the firms so mentioned was the VereinigteUItramarinfabriken Aktien GeseUsehaft, Cologne, and the amountof the credit was £500.
On February 6, 1918, Messrs. Freudenberg & Company had giventhis German company an indent for twenty cases of their laundry blue, to be shipped every four weeks until countermanded. OnJulie 20,. 1914, the German company forwarded to Messrs. Freuden-berg & Company an advice note of the shipping f.o.b. ofNthe laundryblue by the steamship Australia. This was the sixteenth deliveryunder the order of February 6, 1913. The advice note containedthe following conditions:—“Value against our thirty days' sightdraft. Delivery of documents through the Deutsche Bank, Berlin,against acceptance of draft.”
On July 21, 1914, the Vereinigte Ultramarin Company drew abill of exchange at. thirty days after sight on Messrs. Freudenberg& Company, payable to the order of the Deutsche Bank. Theamount due on this bill was paid to the Vereinigte UltramarinCompany by the Deutsche Bank, under the credit of October 30,1913, and on July 22 the bank forwarded the draft to Messrs.Freudenberg & Company, including the bills of lading in duplicate,an insurance policy, and an invoice. In their letter of July 22 thebank stated that they “ await the favour ” of Messrs. Freudenberg.& Company's ” remittances. ” The bill of lading was endorsed tothe order of the shippers, the Vereinigte Ultramarin Company.The steamship Australia sailed from Hamburg in July, 1914, andwas captured after the outbreak of the war. The transaction wascompleted in accordance with a practice explained in the affidavitsof Mr. Cramer, the wharf clerk of the import department of Messrs.Freudenberg & Company, of Mr. Schulsze, an assistant in the firm,and of Mr. Tonks, the proctor for the controllers.
As the case for the controllers in regard to all their heads ofclaim depends to a considerable extent on the tenor of this practice,it may be desirable to set out the material portions of these affidavitsin.extenso at this point: —
” In the course of my duties,” says Mr. Cramer, ” I have to clearat the Customs all goods for the import department arriving for thesaid firm, and in connection with this work the bills of lading andinvoices are handed over to me. I then make up my import entryand proceed to the Customs, and hand the same to the Customsauthorities, together with the bills of lading. I then pay theamount due to the Customs and obtain a delivery order for thegoods, and clear and take possession of the same, and they .are theneither handed over to the indentors or taken to the firm's stores*
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1 carry out the above work directly the steamer bringing the goodsarrives in’Colombo.”
“ As regards the various bills,” says Mr. Sehulsze, ” made out bythe banking department to the import department, the customfollowed by the said firm in connection with goods imported is asfollows:—Directly the said firm receive the bills of exchange andshipping papers from Europe they are handed over to the bankingdepartment. The banking department thereupon hand over allthe shipping papers and the bill of exchange to the import depart-ment to check the amount of the draft with the invoices, and, ifcorrect, the import department initials the draft and returns it tothe banking department. The import department then forthwithclears the goods and takes delivery of the same, and either hand thegoods over to the indentors or has them sent to the firm’s godowns.When the banking department receives back the draft, duly initialledby the import department, the former department makes out a billfor the amount of the said import, calculating at the ruling rate ofexchange, and forwards it to the import department, who makethe necessary entries in their books.”
*' From information I have been able to obtain. ” says Mr. Tonks..“ from the staff of Messrs. Freudenberg & Company, under thecontrol of Messrs. Ford, Rhodes, Thornton, & Company, controllers,to the best of my knowledge, information, and belief, the methodsof business adopted by Messrs. Freudenberg & Company in connec-tion with the. said goods obtained from Europe is as follows:—Eachyear Messrs. Freudenberg & Company arrange with various hanksin Europe for credits for the current year, to be operated on bycertain named firms and individuals acting as their agents. Fromtime to time, when they, require goods, they forward indents to theagents, who purchase the goods on their orders. The agents obtainall the shipping papers, attend to the insurance, and ship the goods'They then draw a bill of exchange on Messrs. Freudenberg & Com-pany in favour of the bank. The bank negotiates the bill, and theagents thereupon hand the shipping papers, draft, invoice, andinsurance papers to the bank, and with the proceeds pay for thegoods. The bank then forwards all the said papers, includingbills of lading and draft, to Messrs. Freudenberg & Company directin Colombo, who clear and take delivery of the said goods. Messrs 1Freudenberg & Company then draw a cheque on the Xiondon branchof the said bank, to avoid difference of exchange for the amountof the bill of exchange, and forward it to the bank in question.Besides this import business, Messrs. Freudenberg & Companycarried on a large export business, and were in the habit of forward-ing to the various banks drafts in their (Messrs. Freudenberg &Company’s) favour, and all shipping papers in connection withthe said exports, to be collected and dealt with by the said banks–in Europe. The proceeds of these export drafts were credited tc
1916.
Wood
Rknton C.J.and F.
“ A u gtralin' ’(<■ 'argo ex)
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1916.
Woor>
Ricnton O.J.and P.
Australia ”(Cargo ex)
Messrs. Freudenberg & Company’s account by the said banks,and set against the value of the import bills of exchange forwardedby them (the banks) to Messrs. Freudenberg & Company.
“ To the best of my knowledge, information, and belief norestriction or lien was placed on the said import goods by the banks,and there was no question of acceptance by Messrs. Freudenberg& Company of the said bills of exchange before they could deal withthe said goods, and they always cleared and took possession of thegoods as soon as possible after the receipt of the necessary shippingpapers.”
Mr. Tonks's affidavit is corroborated by the evidence of Mr. E. H.Lawrence, the manager of the National Bank of India, Colombo,with whose company Messrs. Freudenberg & Company transacteda great deal of business, that when goods were imported by thefirm in large quantities, while there may have been rare cases inwhich bills of exchange were sent to the bank, the general practicehad been to send the shipping documents direct to Messrs. Freuden-berg & Company with drafts. Messrs. Freudenberg & Company,in fact, paid the value of the draft in connection with/the laundryblue order by a cheque on the London branch of the DeutscheBank on August 27, 1914.
On these facts the question arises whether the property in thecargo, with which we are here concerned, passed from the VereinigteUltramarin Company to Messrs. Freudenberg & Company onshipment, or on the negotiation of the draft of July 21, 1914; orwhether it was still in the shippers on the outbreak of war betweenGreat Britain and Germany. The answer to this question must,l think, be that the property was still in the shippers when thewar began.
There is no need now to refer to the earlier authorities as to thegeneral position of bankers who negotiate drafts of the characterwith which we have here to do. The point is settled by the recentdecision of the Privy Council in the case of The Cargo ex Odessa.'The material facts in that case were as follows:—Messrs. Schroder &Company, a firm of bankers carrying on business in London, hadin March, 1914, agreed with a German company in Hamburg(the Rhederei Aktien Gesellschaft) to accept the drafts of Weber &Company, a firm carrying on its business in Chili, for the price of aquantity of nitrate of soda, to be sold and shipped by Weber &■Company to the German company. The drafts were to be drawnat ninety days’ sight, and Schroder & Company, upon acceptanceof them, were to receive by way of security the bill of lading forthe cargo, together with a policy of marine insurance. For thisaccommodation the German company was to pay to Schroder &Company a commission of a quarter per cent. Weber & Companyshipped a cargo of nitrate on board the Odessa, a sailing vessel
1 November 11, 1915.
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belonging to the German company, and took from the captain a bill1916.
of lading, dated March 8, 1914, in which the voyage was describedyv'ood
as from Mejillones—the port of shipment in Chili—to ‘' the channel Renton c.J.for orders,’’ and by which the cargo was made deliverable to Schroder ftnd& Company or-their assigns. Under the bill of lading the freight “ Australia ”was payable upon delivery of the cargo. Drafts for the full price ^arff° ex)of the cargo were drawn by Weber & Company upon Schroder &
Company, and accepted by the latter on June 9, 1914, in exchangefor the bill of lading. On the outbreak of the war the Odessa was onher way to the Channel. On August 19, 1914, .she was captured pnthe high seas, and brought into Bantry Bay. On September 10the drafts of Weber & Company fell due, and were paid by Schroder& Company. The Odessa was duly condemned, and no questionarose as to the propriety of her condemnation. But Schroder &
Company intervened in respect of the cargo, setting up title to it asholders for full value of the bill of lading, and alleging that, asBritish property, it- was not liable to condemnation. Sir SamuelEvans condemned the cargo on the ground that the general propertywas in the German company at the date of the seizure, and thatSchroder & Company were merely pledges, and, as such, were notentitled to any preference over the Crown. Schroder & Companyappealed to the Privy Council. The appeal was dismissed. ” TheirLordships,” said Lord Mersey, who delivered the judgment of theBoard, “ are of opinion that the President was right in the inferenceswhich he drew from the facts, namely, that the general property inthe cargo was in the German company, and. that the appellant weremerely pledgees thereof at the date of seizure. This, indeed, ishardly disputable, having regard to the case of Sewell v. Burdick.1The property vested in the company upon the ascertainment of thegoods at Mejillones, and the pledge was perfected when the appellantsaccepted the drafts and received the bill" of lading.” With thefurther important questioninvolvedin TheCargoex Odessa,a
as to whether the rights of Schroder & Company as pledgees werenot entitled torecognitionin the Prize Court, weare not here
concerned. Thedecision ofthe PrivyCouncilmakesit clear that
no title to the subject-matter of the head of claim now underconsideration, other than the rights of pledgees, was vested in theDeutsche Bank by reason of their negotiation of the VereinigteUltramarin Company's draft. How, then, does the matter standas between the German company on the one hand and Messrs.
Freudenberg &Companyon theother?Theaffidavits of
Mr. McCallum, the Manager of the Hong Kong and ShanghaiBanking Corporation, and of Mr. MacVicar, the manager of theChartered Bank of India, Australia, and China, in Colombo, and theevidence- of Mr. Lawrence, clearly show that up to a certain pointthe transaction in regard to the purchase of the laundry blue was of1 (1884) 10 Appeal Gases 74.3 November 11, 1915.
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1916.
Wood
Rbnton C.Jand P.
Australia *(Cargo ex)
an ordinary commercial character. The opening of a credit with''the bank for the negotiation of the drafts of certain specified traders,
and the negotiation of such drafts from time to time by the bank,are indidents in business of this description with which every one
’ is familiar.
The general practice of bankers in regard to the negotiation otdrafts admittedly is as follows:—When a shipper of goods draws onthe consignee for the value, and negotiates the draft through a bank,and it is stated on the face of the draft that it is drawn against thegoods, and that the documents are attached against payment, the
bank is not entitled to deliver the documents to the consignee exceptupon payment of the draft. The effect is the same where it issimply stated that the draft is drawn against the goods, and that thedocuments are attached, unless the shipper instructs the bank thatthe documents are to be delivered against acceptance, in whichcase the bank is^ not entitled to deliver the documents to the con-signees save upon acceptance of the draft. If no instructions arecontained on the face of the draft, the terms on which the bank takesthe documents depend upon the instructions otherwise receivedfrom the drawer. If there are no such instructions, the documentsare to be considered as being received to be delivered on payment.A statement on the invoice that the documents were to be deliveredon acceptance would not of itself be acted upon without confirmation.But the points that have to be considered here are, in the first place,whether the shipment of the cargo f.o.b. passed title at once from the ,Vereinigte lUtrarparin Company to Messrs. Freudenberg & Company;and. in the next place, where the manner in which the Germancompany's draft was dealt with by the Deutsche Bank and Messrs.Freudenberg Company shows that it was the intention of allparties to the transaction, including the shippers, that the goodsshould become the property of Messrs. Freudenberg & Companyon shipment or on the negotiation of the draft.
The effect of the shipment of goods f.o.b. is undoubtedly, as ageneral rule, to transfer the risk of the loss of the property from thebuyer to the purchaser, and to put an end to the right of stoppagein transitu1 But such a shipment is not in all cases conclusive ofthe question whether the goods had become the purchaser’s property.In Cowasje v. Thompson,1 Lord Brougham, who delivered thedecision of the Privy Council, pointed out that in every such casethe issue had to be determined whether anything remained to bedone between the buyer and the seller. In Brown v. Hare,1 PollockC.B., who delivered the judgment of the majority of the Court,indicated that, in spite of the presence of an f.o.b. clause, the shippersmight have intended to continue their ownership of the cargo, andmight have taken the bill of lading in terms which would enable
1 Gowasjee v. Thompson, (1845) 5 Moore P. C. 165; Brown v'. Hare, (1858) 27L. J., Exchequer 372; and Inglis b. Stock, (^1885) 10 A. C. 26B.
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them to do bo. The Court of Exchequer Chamber adopted the 1916.same line of reasoning on appeal.1 “ The real question/* said woodErie J., " has been on the intention with which the bill of lading was Bhnton^C. J.
taken in this form: whether the consignor shipped the goods in
performance of his eofftract to place them free on hoard, or for “ Australia"the purpose of retaining control over them and continuing owner (Car9° "tcontrary to the contract.” In Inglis v. Stock 3 the question was ‘whether, after a shipment f.o.b., the purchaser had an insurableinterest in the property which would support a policy of marineinsurance. There is a passage in the judgment of Lord Blackburnwhich supports the view that a shipment f.o.b. ,may not be con-clusive of the question of title to the property:—** I have no doubtthat in order to recover against an underwriter the assured mustshow that he suffers loss in respect of the thing insured. In case ofan insurance on goods, if he shows that he had at the time of the. lossthe whole legal property in the goods which were, lost he undoubtedlydoes show it. Bu*t I do not agree that this is the only way in whichhe can show an insurable interest in goods, or that any relation togoods, such that if the goods perish on the voyage the person willlose the whole, and if they arrive safe will have all or part of thegoods, will not give an interest which may be aptly described asinsurable.”
It appears to me that in the present case the Vereinigte UltramarinCompany did intend to retain dominion over the cases of laundryblue. Under the bill of lading the cargo was deliverable to theirorder. In their advice note of June 20, 1914, to Messrs. Freudenberg& Company they distinctly stated that the delivery of the documentswould be made against acceptance of their draft. For reasons whichmaj' be more appropriately stated when I come to deal immediatelywith the second argument in support of the controllers’ claim to theproceeds of the sale of the laundry blue, I do not think that the titleof the German company to the property was divested, or in any■way prejudicially affected, by the course of business between the
1 Deutsche Bank and Messrs. Freudenberg & Company in Colombo.
The point made by counsel for the controllers in this connectionwas that the Deutsche Bank were really the purchasers of theVereinigte Ultramarin Company's draft, and that it was the inten-tion of all parties that the property in the laundry blue shouldpass to Messrs. Freudenberg & Company whenever that draft wasso purchased. There is, however, nothing in the documentaryevidence before me to show that the Vereinigte Ultramarin Companyhad ever sanctioned, or were even aware of, the course of businessbetween the Deutsche Bank and Messrs. Freudenberg & Companyin relations to. the shipping documents. The Deutsche Bank, asI have already pointed out, were merely the pledgees of the shippingdocuments. Their instructions from the shippers were that the1 (1859) 29 L. J. Ex. 6.2 (1885) 10 A. C. 263.
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1916. documents were to be delivered against “ acceptance of the draft,’'Wood instructions which, as Mr. Lawrence stated in his evidence, indicatedtooKCJ,,that they at least expected that the draft would be accepted before
’ the shipping documents were delivered over. Their omission to
>l Australia” comply with the requirements of the draft itself may well have' been due to the fact that Messrs. Freudenberg & Company appearto have been their own agents, and were admittedly a firm of veryhigh financial repute; that Messrs. Freudenberg & Company hadin their business a banking department as well as an import depart-~ ment; and that the payment of the amount due on the draft waseffected between those two departments, just ' as if the formerhad been an independent bank dealing with the latter ns ordinaryconsignees of cargo shipped under a bill of lading. I am by no meanssatisfied that, however lax their practice in this matter may havebeen, the Deutsche Bank did intend that the property in the goodsshould pass to Messrs. Freudenberg & Company until the amounton the face of the draft had been met. It will be observed that intheir letter to Messrs. Freudenberg & Company of July 22, 1914,enclosing the Vereinigte Ultramarin Company’s draft and theshipping documents, they state that they are awaiting the favourof Messrs. Freudenberg & Company's remittances. But' even ifthe fact had been otherwise, the Deutsche Bank were, quoad theVereinigte Ultramavin Company, merely the bailees of the property,and they had no right to part with the property in the goods onterms which their own authority from the bailors must be takento have prohibited. No letter from . the Vereinigte UltramarinCompany forwarding their draft to the Deutsche Bank has been putin evidence. But the draft itself has appended to it a note thatit is " payable at the current rate of exchange for bankers’ demanddrafts on London, in addition to six per cent, interest from date ofbill of exchange until the approximate date of arrival of remittanceon Europe,” a clause which distinctly contemplates the completionof the transaction in the ordinary business way; and the Germancompany^ in their letter of July 21, 1914, to Messrs. Freudenberg& Company, are careful to state, as we have already seen, that thedelivery of the shipping documents is to be against acceptance ofthe draft.
The controllers’ claim under head (A) must be dismissed, andthe cargo to which it relates condemned as having been good andlawful prize.
The next head (B) of the controllers’ claim consists of consign-ments of twenty-five, fifty, and one hundred cases of biscuits,respectively. The transaction was carried out under a letter ofcredit dated November 6,1913, from Messrs. Freudenberg &
Company to the Dresdner Bank, similar in terms to that of October30, 1913, in favour of the Deutsche Bank, under which the sale of
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the laundry blue was effected. One of the traders specified in thestatement enclosed in the letter of credit was Dietrich Hermsen, WoodHamburg. The amount of the credit opened in his favour was
£5,000. The biscuits in question were ordered under three separate
indents. The consignment of twenty-five cases was included in b ‘AuffTroKaindent No. 9,567, dated February 19, 1914. The consignment of ar0° **one hundred cases was covered by indent No. 9,704, dated March26, 1914, for nine hundred cases. The consignment of fifty caseswas made under indent No. 9,837, dated April 23, 1914, for twohundred and fifty cases. These goods were shipped by the steam-ship Australia on July 18, 1914. In the bills of lading the DeutscheAustralische Dampfschiffs Gesellschaft are described as shippers;the consignments are made deliverable to their order, and the billsare duly endorsed by them. No explanation of this procedure isfurnished by the evidence. Counsel for the controllers suggestedthat it was probably due to considerations of rebate. But thepoint is really immaterial, because Hermsen, in his advice notedated July 22, 1914, to Messrs. Freudenberg & Company, discloseshimself as shipper, and he endorsed the bills of Jading immediatelybelow the endorsement of the German steamship company. In hisbooking particulars of even date as to this transaction, Hermsenstates that the documents are deliverable through the DresdnerBank, and debits Messrs. Freudenberg & Company with his owncommission on the sales. Hermsen drew in Hamburg on July 18,
1914, a bill of exchange to the order of the Dresdner Bank for thefull amount due by Messrs. Freudenberg & Company in respect ofthe consignments. No letter accompanying this draft has beenproduced. But the draft purports to be payable at the drawingrate for demand drafts on London, with interest at six per cent,per annum from its date to the approximate due date of arrival ofthe remittances in London, against the shipments in question, andthe documents are said to be attached. The Dresdner Bank paidthe amount of the draft under Messrs. Freudenberg & Company’sletter of credit, and on July 20, 1914, forwarded the draft, withthe accompanying shipping documents, to Messrs. Freudenberg &
Company in Colombo. At the close of their covering letter theysay “ Please send us the value of the draft, as usual/’ The drafthad been endorsed by the Dresdner Bank to their own order andthat of Messrs. Freudenberg & Company. The transaction was, onAugust 27, 1914, completed by Messrs. Freudenberg & Companyin accordance with the practice explained above.
On these facts counsel for the controllers contended that Hermsenwas merely an agent for Messrs. Freudenberg & Company; thatneither the original sellers of the goods to him, nor Hermsen himself,nor the Dresdner Bank had retained any right of disposition overthe property, and that by the course of business between theDresdner Bank and Messrs. Freudenberg & Company no delivery of
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1916.
WoodRenton C. J.andP.
Australia?*(Cargo e.r.)
the shipping documents to the latter only against an acceptance ofHexmsen's draft was required. In my opinion these argumentsare not entitled to prevail. There is no indication in the corre-spondence that Messrs. Freudenberg & Company were at any stagebrought into direct contact with the sellers to Hermsen. He was, •I think, in this transaction, merely a commission merchant pur-chasing goods for Messrs. Freudenberg & Company from othermerchants, between whom and his own vendees in Colombo noprivity of contract existed. The case appears to me to come withinthe well-known rule laid down by Lord Blackburn in Ireland v.Livingston*.:—“ The persons who supply goods to .a commissionmerchant sell them to him, and not to his unknown foreign corre-spondent, and the commission merchant has no authority to pledgethe credit of his correspondent for them. There is no more privitybetween the persons supplying the goods to the commission merchantand the foreign correspondent than there is between the brickmakerwho supplies bricks to a person building a house and'.lhe owner ofthat house. The property in the bricks passes from the brickmakerto the builder, and when they are built into the wall, to the ownerof that wall; and just so does the property in the goods pass from
the country producer to the commission merchant The legal
affect of the transaction between the commission merchant andconsignee, who has given him ownership, is a contract of salepassing the property from the one to the other, and consequentlythe commission merchant is a vendor, and has the right of one asto stoppage in transitu.”
In the same connection I may refer to the cases of Armstrong v.Stokes;2 Cassaboglou v. Gilpb,* Ex parte Miles,*• and Ex parte Banner,5In the case of Flinn & Co. v. Hoyle,6 to which counsel for the .con-trollers referred me, the general rule as to the position of commissionmerchants and their foreign principals was’ recognized, but washeld to be inapplicable, because the facts showed that the foreignprincipals had contracted directly with the correspondents of thecommission merchants. If this reasoning be sound, Hermsen hada jus disponendi over the tins of biscuits as commission merchant.That right was not displaced by the shipment f.o.b. if the evidenceproved that, in spite of that shipment, he intended to retain it.That he had this intention is, I think, established both by theterms of his bill of exchange, and in particular by the insertiontherein of the words ‘ ‘ documents attached, * ’ and by the similarclause ‘ ‘ documents through the Dresdner Bank * ’ in the shippingparticulars forwarded by him to Messrs. Freudenberg & Company.
1 (1872) L. R. 5 Eng. <6 Irr. App. 395, at page 408.
a (1872) 41 L. J. Q. B. 253.
3 (1883) 11 Q. B. D. 797, at page 804.
* (1885) 15 Q. B. D. 39, at pages 42 and 43.
3 (1876) 2 Chancery Division 278, at page 287.
« (1893) 63 L. J. Q. B. 1. .
( 17 )
There is nothing to show that Hermsen was aware oi any course of1916.
business between the Dresdner Bank and Messrs. Freudenberg &wood
Company, by which the former would part with the shipping docu- Renton C.J.ments to the latter otherwise than upon an acceptance of the bill andof exchange. The Dresdner Bank had no title to the property. “Australia”In their relation to Hermsen they were merely bailees of shippingdocuments, and had no right to part with them except on theterms indicated in Hermsen's draft. From their own standpointof having negotiated that draft, they were pledgees of the shippingdocuments, and for reasons similar to those that I have alreadyg:ven in the case of the Deutsche Bank, and particularly from therequest Please send us the value of the draft, as usual," in theirletter of July 20, 1914, to Messrs. Freudenberg & Company, I amnot disposed to think that, in spite of their failure to require anacceptance of the draft, they had any intention of abandoning theirrights in that capacity. But the point is immaterial, inasmuch asthe real issue is whether the property had passed from Hermsen toMessrs. Freudenberg & Company.
The controllers’ claim under head (B) must be dismissed, and theoargo to which it relates condemned as having been good and lawfulprize.
The next head of claim consists of a large number of bundles ofsteel and iron bars (C). This transaction was carried out under thesame letter of credit (November 6, 1913) from Messrs. Freudenberg& Company to the Dresdner Bank, Berlin, in favour of Hermsen,as that under which the consignments of the cases of biscuits (B)were effected. On July 24, 1914, Hermsen writes to Messrs.Freudenberg & Company that he had shipped the goods in questionby the steamship Australia, and that the invoices of the shipment,which had been made out bv the Deutsche Australische Dampf-schifis Gesellschaft, were being forwarded to them with the bookingstatements. On July 22 Hermsen had drawn a bill of exchangeto the order of the Dresdner Bank on Messrs. Freudenberg &
Company, in Colombo, for the price of the cargo. By the terms ofthe bill the amount was payable at the drawing rate for demanddrafts on London, with interest at six per cent, per annum, fromthe date thereof to the approximate due date of the arrival of theremittance in London, against the shipment of the cargo, and withdocuments attached. The Dresdner Bank endorsed this bill to theirown order and that of Messrs. Freudenberg & Company. No copyof any letter sent by them to Messrs. Freudenberg & Company withthe bill of exchange and the shipping; documents .has been produced.
But the bill, as I have just stated, was endorsed by the DresdnerBank, and it may be presumed that the covering letter has merelygone amis sing. In the bills of lading the .German shipping companyagain appear as shippers, the goods are made out deliverable to
1916.
( 18 )
Wood
Renton C.J.and P.
“ Australia "(Cargo ex)
their order, and the bills of lading are duly endorsed by them. Ineed not repeat in detail what has already been said in regard to thisaspect of the transaction. Hermsen, in his letter of July 24, 1914,to Messrs. Freudenberg & Company, speaks of himself as theshipper of the cargo, although he mentions that the invoices havebeen made out in the shipping company’s name. He endorsed thebill of lading immediately below the endorsement, of the shippingcompany, and, although there is no reference to. the mode of pay-ment in his letter itself, the booking statement to which it refersshows that the transaction was to be completed through the DresdnerBank. As in the case of the other consignments which have so farbeen considered, the matter was settled by Messrs. Freudenburg &Company on August 27, 1914.
For the reasons given above under head (B), I am of opinion thatthe property in the consignments here in question had not passedfrom Hermsen to Messrs. Freudenberg & Company prior to theoutbreak of war between Great Britain and 'Germany. The control-lers’ claim under this head must be rejected, and the cargo to whichit relates condemned as having been good and lawful prize.
Under head (D) the controllers claim 1,500 kegs of gunpowdersupplied by Hermsen under the credit for £5,000 opened by Messrs.Freudenberg & Company in his favour in their letter of November6, 1913, to the Dresdner Bank in Berlin. The consignment wasmade under two indents dated May 21, 1914: one, No. 9,969 for900, and the other, No. 9,970 for 600 kegs of gunpowder. OnJuly 22, 1914, Hermsen writes to Messrs. Freudenberg & Companyadvising them of the shipment of the gunpowder by the steamshipAustralia <on July 17. On the latter date he had drawn theusual bill of exchange on Messrs. Freudenberg & Company Tor theprice, to the order of the Dresdner Bank, against the shipment ofcargo, with documents attached. On July 13 the Dresdner Banksend on to Messrs. Freudenberg & Company Hermsen’s draft, whichhad been negotiated by their branch in Hamburg, with the shippingdocuments, and conclude the letter with the following request: —“Please send us the value of the draft, as usual.” Hermsen’sdraft on Messrs. Freudenberg & Company was, as before, endorsedby the .Dresdner Bank. The bill of lading was taken out in thename of the Deutsche Australische Dampfschiffs Gesellschaft, andendorsed first by them and afterwards by Hermsen himself.
For the reasons that I have given in dealing with claims (B) and(C), I hold that the property in the gunpowder had not passed fromHermsen. to Messrs. Freudenberg & Company at the date of theoutbreak of the present war, that the controllers’ claim to thisportion of the cargo of the steamship Australia must be dismissed,and that the gunpowder must be declared to have been good andlawful prize.
( 39 )
The next head of claim (hi) relates to two cases of motor omnibuses*91&
and three cases of motor lorries. The transaction commences withWood
a letter dated November 0, 1913, in which Messrs. Freudenberg
& Company request the Direction der Disconto Gesellsohaft, Berlin, .*
to instruct the Norddeutsche Bank in Hamburg to buy Hermsen’s “Australia'1
°*"(Cargo ex)
thirty days* sight drafts on them during the year 1914 to the amountof 115,000 on their account. The Direction der Disconto (resell*schaft replied, in their letter dated November 26, 1913, that therequisite instruction to the Norddeutsche Bank to negotiate thedrafts had been given. On March 5 and April 23, 1914 Messrs.Freudenberg & Company forwarded to Hermsen indents Nos. 9,646and 9,842, for the motor omnibuses and lorries in question, respec-tively. On July 24 Hermsen advises – Messrs. Freudenberg &
Company of the shipment of the cargo from Antwerp, and promisesparticulars by the following mail. On July 27 he drew a bill onMessrs. Freudenberg & Company to the order of the Direction derDisconto Gesellschaft for the value of the consignment, againstshipment per steamship Australia, and with " documents attachedagainst payment.” On July 28 the Direction der DiscontoGesellschaft wrote to Messrs. Freudenberg & Company that theNorddeutsche Bank in Hamburg had negotiated Hermsen’s draftsagainst the shipping documents. On September 8 Hermsen writesto Messrs. Freudenberg & Company that his mail of July 31 hadbeen returned by the post office, and that it contained some inform-ation about various shipments. He proceeds to refer to the indentsfor the motor omnibuses and the lorries, and notes the shipments ashaving in each ease been made c.i.f. This transaction was notdealt with by Messrs. Freudenberg &. Company till, the followingOctober.
Counsel for the controllers felt the difficulty created in regard tothis head of claim by the express provision in the bill of exchangethat the documents were attached against payment, and appliedfor a postponement of the hearing in regard to it for at least twomonths, in order that he might communicate with one or other ofthe partners in the firm of Messrs. Freudenberg & Company, whowere interned as alien enemies in Australia. The Attorney-Generalopposed this application, and I disallowed it. All the documentsin relation to this transaction have been in the hands of Messrs.Freudenberg & Company or their legal advisers from the very com-mencement of the war. They must have known, and, in any event,they -ought to have known, that, in so far as their claim to this por-tion of the cargo of the Australia was concerned, the Crown would •rely in support of its title on the language of the bill of exchange,and no good reason was shown for their failure to furnish themselveswith any explanation of that language which the firm of Messrs.Freudenberg & Company might. be in a position to offer. Theobservations which I have already made in dealing with the previous
( 20 )
■claims by the controllers are applicable here with even greater
Woodforce. It remains only to say a word as to the. effect of the shipment
Renton C.J. 0f carg3 e.i.f. The leading authority on this question is now
.* the decision of the House of Iiords in the case of Biddel Bros. v.
“ Australia'’ jgj ciemans Horst Co.,1 in which the judgment of the majority of4 g eX) the Court of Appeal2 was set aside, and the dissenting judgmentof Kennedy L.J. was accepted as a complete and accurate statementof the law. After pointing out that by a shipment e.i.f. the goodsare appropriated by the vendor to the fulfilment of the contractunder section 18 of the Sale of Goods Act, 1893, and that, by virtueof section 32 of the same statute, the delivery of the goods to the, carrier, whether named by the purchaser or not, is primd facie to bedeemed to be a delivery of the goods to the purchaser, the learnedLord Justice proceeded as follows:—" Two further legal results ariseout of the shipment. The goods are at the risk of the purchaser,against which he has protected himself by the stipulation in hise.i.f. contract that the vendor shall, at his own cost, provide himwith a proper policy of marine insurance intended to protect thebuyer’s interest, and available lor his use if the goods are lost intransit; and the property in the goods has passed to the purchaser,'either conditionally or unconditionally. It passes conditionallywhere the bill of lading for the goods, for the purpose of bettersecuring payment of the price, is made out in favour of the vendoror his agent or representative (see the judgments of Bramwell L.J.and Cotton L.J. in Mirabita v. Imperial Ottoman Bank s). Itpasses unconditionally where the bill of lading is made out in favourof the purchaser or his agent or representative as.consignees.”
In the present case the bills of lading, although, made out in thename of the German shipping company, were, as we have alreadyseen, so made out only for some incidental purpose, and were reallyat the disposal of Hermsen. The language of his draft snowsbeyond all doubt that no unconditional transfer of the propertyfrom himself to Messrs. Freudenberg & Company under the e.i.f.contract was intended.
I am of opinion that the contollers’ claim fails under this headalso, and that the property to which it relates must be declared tohave been good and lawful prize.
The last item in this group of claims is one case of motor trailers(F). The transaction differs in one respect from those which havealready been discussed. Except in the case of the order for thelaundry blue (A), Messrs. Freudenberg & Company have' not, sofar, been brought into any kind of direct contact with the actualsellers. In their indents for the biscuits (B), they indicate themanufactory from which the purchase is to be made, but the
1 (1912) A. G. 18.3 (1878) L. B. 8, Exch. Div. 164.
* (1911) 1 K. B. 934.See at page 168.
( 21 )
invoices cure made out by the sellers to the German shipping*9*3.
•company, who, as we have seen, were the nominal shippers, and thewood
wdole transaction is completed by Hermsen and the Dresdner Bank.
In the case of the steel and iron ban (C), the indents indicate that *
ihe purchases are to be made from-“any good supplier," and 3the “**
invoices are made out by the German shipping company. In the
orders for the gunpowder (D) and the motor lorries (13), the names
of the suppliers are mentioned, but in the case of the former order
the invoice is made out by the German shipping company, while -in
that of the latter no invoice, either by the actual sellers or the
German shipping company, has been produced. In the Consignment,
however, with which we are now concerned, (F), not only are the
names of the suppliers mentioned in the indent, but the invoice is
made out by them in the name of Messrs. Freudenberg & Company.
At the fobt of this invoice we find the words " payment against-delivery of documents." It appears to me that the mere circum-stance ' of the invoice for this consignment having been drawn' upby the sellers to Hermsen in the name of Messrs. Freudenberg &
Company is not sufficient to displace the fact that the biil of exchangeis drawn by Hermsen on Messrs. Freudenberg & Company to theorder of the Direction der Disconto Gesellschaft against the ship-ment, and with " documents attached against payment," and thatthe bill of lading is made payable to the order of the Germanshipping company, and is endorsed first by that company, and, asusual, by Hermsen himself. Moreover, even if this were a directtransaction between the original sellers in Germany and Messrs.Freudenberg & Company in Colombo, the controllers would havethe same difficulty to face, namely, that the shipping documentsi were to be delivered only against payment.
I- am, therefore, of opinion that this head of claim fails also, and, that the cargo in question must be declared to have been good andlawful prize.
We come now to a group of independent claims in respect ofcertain consignments of chemicals, namely, 1,500 bags of sulphateof potash, 650 bags of superphosphate, and 600 bags of sulphate ofammonia. The Attorney-General has admitted the first ‘of theseclaims on the grounds that it was a direct transaction betweeni Messrs. Freudenberg & Company and the German sellers, Messrs.
:Mendelssohn & Company, Berlin; that the former not merelyopened a credit account in favour of the latter, but sent them ajcheque to the credit of that account; that the consignment was paid-,for by Messrs. Mendelssohn & Company; that they forwarded the.shipping documents to Messrs. Freudenberg & -Company withoutany draft; and that the ciroumstances, therefore, disclose an out-and-out sale, in which the property passed at once to the purchasers,piis claim must therefore be upheld.
T*1
( 22 )
me.
Wood
Renton C.J.and P.
“ Australia ”{Cargo ex)
The transaction as to the 650 bags of superphosphate and the600 bags of sulphate of ammonia were carried out under the letterof credit dated November 6, 1918, by Messrs. Freudenberg &Company to the Dresdner Bank in favour of Hermsen up to theamount of £5,000. The course of business is explained by Mr.Schulsze in his affidavit, and is similar to that already described inconnection with the other claims. On July 17 Hermsen writes toMessrs. Freudenberg & Company enclosing the seller’s invoice for650 bags of superphosphate shipped by the Australia, and adds “ to
balance this transaction I have drawn a draft on Dresdner
Bank, which please honour on presentation.” On July 16 theDresdner Bank had written to Messrs. Freudenberg & Companyt enclosing Hermsen’s draft, which had been negotiated by theirbranch in Hamburg, ‘‘with documents attached in exchange.”*' Please send us,” they say, ‘‘ the value in the usual manner.” Thehill of lading was made out to the order of the sellers to Hermsen asshippers, and was endorsed first by them and afterwards by Hermsenhimself. There is nothing to show that there was any privityof contract between ■ Messrs. Freudenberg & Company and thesellers.
On these facts I am not prepared to hold that the claim has beenestablished. Hermsen’s letter of July 17 shows that he expectedhi,s draft to be presented and honoured on presentation, and theletter from the Dresdner Bank themselves indicates that deliverywas contemplated against the documents attached. Even if thecase were one of a direct contract between the German sellers endMessrs. Freudenberg & Company, it has not been shown that theformer intended the property to pass upon any other condition.-This claim must be rejected, and the consignment of 650 bags ofsuperphosphate declared to have been good and lawful prize.
The purchase of. the 600 bags of sulphate of ammonia was equallyeffected under the' letter of credit of November 6, 1913. On July 24,1914, Hermsen writes to Messrs. Freudenberg & Company enclosingthe invoices for this consignment, and stating, as before, ” to
balance this transaction I have drawn a draft on the Dresd-
nerBank, which please honour on presentation.” The letter of theDresdner Bank forwarding Hermsen’s draft is not forthcoming,but we have the bill of lading made out, as in some of the formercases, in the name of the German shipping company, by whom also,as Hermsen stated in his letter of July 24, the invoice had beenprepared. The bill of lading is made out to the order of the Germanshipping company, and is endorsed first by them and afterwards byHermsen.
In my opinion this claim must be disallowed. There is nothingto show, and, indeed, the available evidence points in a contrarydirection, that either the sellers to Hermsen, if they are to be
(23 )
regarded as contracting parties so far as Messrs. Freudenberg &1916.
Company were concerned, or Hermsen himself, ever intended that wood
the properly in the bags, of sulphate of ammonia should pass to
Messrs. Freudenberg & Company otherwise than in the ordinary
course of business. In this connection it may be convenient to ‘' Australia *’
*(Cargo ex)
notice an argument on which counsel in support of the claims placedsome reliance, namely, that the fact that in the printed particularsin Messrs. Freudenberg & Company’s indents Hermsen was describedas “ agents ” shows his real position in this transaction. A cicum-stance of this kind is, no doubt, entitled to consideration, but it isvery far from being conclusive (see Kronprinzessin Cecilie1), and inthe present case it is, I think, entirely outweighed by the facts takenas a whole. The bags in question must be declared to have beengood and lawful prize.
The motion of the Crown for the freight due by Messrs. Freuden-berg & Company to the owners of the steamship Australia rests upona well-known yule of Prize law, which was recently stated by SirSamuel Evans in The Roland2 in these term.s:—"Whenever acaptor brought goods to the port of actual destination according tothe intent of the contracting parties, he was held entitled to thefreight, on the ground that the contract has been fulfilled, but in allother cases he was held not entitled to freight, although the shipmight have performed a very large part of her intended voyage. ”
In the present case the Australia was brought on capture to herport of destination, namely, Colombo, and, primd facie, the claim tofreight is good. The owners of the steamship Australia themselves,in their correspondence with Messrs. Freudenberg & Company,asked the latter, firm to credit them with the freight, whichMi*. Schulsze in his affidavit admits "had accordingly to be paidby Messrs. Freudenberg & Company in Colombo.” Counsel for thecontrollers contended, however, that they are entitled to set up, asagainst the claim of the captors for the freight so due, a runningaccount between the steamship company and Messrs. Freudenberg& Company, not as consignees, but as the shipping company’sColombo agents. The freight, he argued, would ordinarily havebeen paid at Hamburg. According to the terms, however, of therunning account, Messrs. Freudenberg & Company merely placedamounts due by way of freight to the company’s credit. Noauthority was cited for the proposition thaji a captor’s right tofreight can be effected by any private arrangement of this kindbetween shipping owners and .the consignees in the capacity of theshipping owners” agents, and in the absence of such authority I amnot prepared to accept it. The motion of the Crown must beallowed.
i (1915) 23 Times L. R. 139.
3 (1915) British and.Colonial Prize Cases, Part 2, v. 188.
C 24 )
ieie.
Wood
Renton C.J.and P.
“ Australia ”{Cargo ex)
I have carefully considered the question whether the Crown isentitled to costs. With the exception of the claim for 1,500 bags ofsulphate of potash, as to which there was no contest, all the claimsthat I have had to deal with have been rejected. The Crown hassucceeded also on the question of freight. The case of the steam-ship Australia was disposed of under the old Prize Buies, 1898. Thesubject of costs is dealt with by Buie 221, according to which “ thecosts of and incident to all prize proceedings shall be in the discretionof the. Judge; provided that a captor shall not be' condemned incosts unless the captor was made without probable cause, or tbe-captirs have- been guilty of misconduct in relation to the ship orgoods captured, or in relation to any person or thing on board orbelonging to the captured ship.”
Under Order 18, Buie 1, of the Prize Court Rules, 1914, it isprovided that “ the costs of and incident to all prize proceedingsshall, except when otherwise provided by any agreement, or bystatute, be in the discretion of the Judge.” The proviso in Buie 221of the Rules of 1898, as to the circumstances in which a captor mayhot be cast in costs, is omitted from the new rule. I have gonecarefully through the official shorthand reports, which have beenforwarded to this Court from London, of the prize cases in England,with a view to seeing the course now adopted by the AdmiraltyDivision in its. Prize jurisdiction in this matter. The question wasraised in the case of The Marie Glaeser,1 and Sir Samuel Evansobserved that all questions of costs were left to the Prize Courtunder the new Rules, but he did not order any of the claimants topay costs. .In the subsequent case of The Cargo ex Miramichi*after citing Order 18, Rule 1. the learned President said that” assuming that he had power to order the captors to pay the costs,he would not exercise it on the facts before him,” and went on toobserve that, if there were an appeal to the Privy Council, he shouldbe very glad to have ■' the assistance of that tribunal upon thequestion. The Attorney-General replied that, on the hearing of theappeal, he would take the opportunity of inviting the attention ofthe Privy Council to the point. In the cases of The SteamshipsAntares, Norheim, Francisco Toronto, and Idaho,3 Sir Samuel Evansindicated that he would not give costs against the Crown, and theAttorney-General interposed with the interlocutory observation,” We never get them against the subject.” I have found no reportof an appeal, if there was one, to the Privy Council in The Cargo exMiramichi,2 but in the case of The Cargo ex Roumanian4 the JudicialCommittee said that they had carefully considered the judgment ofthe President of the Admiralty Division in The Cargo ex Miramichi 2and entirely agreed with it. I am struck with the fact, however,that neither in The Cargo ex Roumanian,* nor in The Cargo exi September 16, 1914.3 March 8, 1916.
» November 23, 1914.4 November 10, 1915
( 25 )
Odessa 1 nor in The Cargo ex Woolston, did the Privy Council I918*
award costs to the Crown, although in each case the decision of theWood
Prize Court upholding the title of the captors was affirmed. Nor
have I found in any of the available records any case in which costs- ’
have been given either to or against the Crown. It is unnecessary“ Australia,^ ”
for me, however, to decide the question as to the right- of the Prize
Court of-this Colony in this matter under Buie 221 of the Prize Buies
of 1896. The Attorney-General, at the commencement of the
argument, stated that counsel and the prActor for the controllers
and' the controllers themselves had done everything in their power
to facilitate a satisfactory decision on the claims now put forward.
In these circumstances, .1 should not be prepared to award costs tothe Crown, even if I had the power to do so.
I direct decree to be entered up, rejecting all the claims withwhich I have dealt, except the claim admitted by the Crown for the1,500 bags of sulphate of potash, which is accordingly allowed,declaring the proceeds of the sale of all the property, the claims towhich have been so dismissed, to be good and lawful prize, andallowing the motion of the Crown for freight. There will be noorder as to costs.
♦