062-NLR-NLR-V-18-THE-SS.-”-AUSTRALIA-”.pdf
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* Ik the Colonial Court of Admiralty of the Island ofCeylon in Prize.
Present; The Hon. Sir Alexander Wood Benton,
President of the Prize Court.
THE SS. ** AUSTRALIA.’*Cause No. 7.
<rcx><?4 shipped by enemy firm Jo neutral before outbreak of war—Rightto seise.
Where goods ore contracted to be sold by an enemy firm to aneutral, and are shipped daring peace without any anticipation ofimminent war, they cannot be seized or captured afloat after warhas supervened, if the property in the goods had already passed tothe neutral.
rpHE facts are set out in the judgment.
F. J. dc Hamm, for claimants.—The character of the goods on anenemy ship depends on the neutral or enemy character of the owner,t.eM the person at whose risk the goods are during transit. Thoughn German firm, the Banner Export Gesellschaft, are consignees inthe bills of lading, they have been paid the value, and the propertyiu the goods has passed to the Chinese neutral indentors, on whomthe risk of loss falls. The Banner Export Gesellschaft claim nstrustees for, or representatives of, the beneficial owners. Theenemy or neutral character of the owner is determined by thedomicil of the trade he carries on. The domicil of trade is Java.Further, property passed from the Barmer Export Gesellschaftbefore the declaration of war.
Counsel cited Tiverton, pp. 10. llt 55, 113 referring to the “ Abo," 1the “ Ariel," 2 and the “ Ida." 3,
Anton Bertram, K.G., Attorney-General, for the Crown.—TheCrown does not rake the question of the right of the enemy firm tobe heard. The materials in the affidavit are insufficient to provethat the Banner Export Gesellschaft have been entirely divestedof their interests in the goods as owners.
Cur. adv. vult.
July 2, 1915. Wood Renton C. J. and P.—
The question for decision on this motion is whether certain goodson board the steamship " Australia," claimed by the BannerExport Gesellschaft, were or were not liable, at the date of the
1 Spinks 42,2 .11 Moore P. C. 110.3 Spinks 26.
*J. X. A 99908 (8/50)
1915,
ms.
Wood
Rknton C.J.and V.
Yh6 6S.A.Mtralm ”
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capture of the *' Australia " by Commander Caulfield of IT.M.S-** Fox/' to be condemned as good and lawful prize. The “ Austra-lia " was captured on August 10, 1914, and was condemned onOctober 6, '1914. The present claim was filed on December 10, 191 i.By orders of this Court dated December 10 and 12, 1914, the goodsin question were released to the claimant on bail to the amount oftheir appraised value, viz., .£2,580. 13*. 4d. The idaimant nowmoves for a declaration that the goods were neutral property ntthe time of capture, while the Attorney-General on behalf of the.Crown prays for a declaration to the contrary effect, and for thecondemnation of the claimant and Us bail, in the appraised value,if the Court should hold that the claim has not been established.The Banner Export Gesellschaft, the consignor, is a Germancompany, cud the goods in question, which consist of an immensevanity of all kinds of mercantile articles exported from Antwerpand destined for Batavia, must be regarded as enemy properly tillthey have been shown by the claimant- not to have originallypossessed, or to have been subsequently divested of, that character.The case for the claimant is that they are really the property of a largenumber of Chinese traders in Java, who are, of course, neutrals.The course of business in accordance with which they were purchasedhas been thus described by Messrs. Van Dyk and Wvthoff, lawyers,at- the Court of Justice nt Batavia, in the certificate C, which hasbeen filed in support of the motion: —
" The Banner Export Gesellschaft has representatives at Batavia.Samarang, Sourabaya, and Medan. These representatives collectorders from the Chinese dealers and send them up to the head officein Europe. At the date of ordering, the shopkeeper pays one-thirdof the amount of the order, while two-thirds is payable after deliveryof goods against draft at a fixed time. The head office in Europecollects the ordered goods and ships them together, in order toobtain the most favourable freight. The head office sends the billof lading, one for each lot, to its representatives, who give deliverynotes to the shopkeepers, so that .these can receive their goods out-of the ship. These delivery notes are handed over to dealersagainst signed drafts."
Except by the reference which it contains to payment beingmade “ against draft at a fixed time," this certificate does notclearly show that the Banner Export Gesellschaft does not retain’through its agency in Batavia a jus dUponendi over the goods aftertheir arrival in Java. But Mr. Sydney Julius in his affidavitstates that after the purchase of the goods in Europe 1 ‘ invoicesshowing the marks and numbers are made out in the name of theindenters before the arrival of the ship in the Netherlands Indies,and the indenters sign negotiable instrument for the balancepurchase money payable on a fixed date, irrespective of the arrival
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of the ship, thus become the beneficial owners of the goods.” 1915.Mr. Julius's affidavit was amplified on this point in the argumentof Counsel for the claimant. He stated that the bills of lading had Renton C.J.been made out in the name of the Batavia branch of the Banner apdExport Gesellschaft as . consignee, to facilitate the completion of Thv ss.the transaction, in view of the numerous orders that had to be-dealt with; that on receipt of information that the goods had beenpurchased in Europe bills were drawn for payment in Europebefore shipment of the goods, and that in this way, on shipment,the goods had been paid for and were thereafter at the risk of thebeneficial owners, the Chinese indenters, for whom the Bataviabranch of the Banner Export Gesellschaft was only a trustee.
The bills of lading were with, and have been obtained from, a bankin Java. The orders with which we are here concerned are allegedin every case to have been given, the negotiable instruments fortiie full balances due by the indenters to have been signed, andshipments to have been made, prior to the declaration of war. Thenegotiable instruments have been discounted by the java bank,who still hold them, and if the present claim is rejected the ultimateloss will fall upon the indenters, as they have had to obtain possessionof their goods and are still liable on their drafts. The case forthe claimant on these points is strengthened by the productionof two documents—the invoice A dated July 18, 1914, and thepromissory note B—showing that the transaction to winch theyrelate was anterior to the war, and that the acceptance was to bemet at a fixed date, ex hypotheei irrespective of the date of1 thearrival of the goods. The document A discloses also the practiceas to the payment of one-third of the price in advance.
To these facts I have now to apply .the law. The Attorney-Generalstated in argument that he did not‘ wish the case to be disposed of•on the issue whether a locus standi in judicio has been made out onbehalf of the Banner Export Gesellschaft, and he has thereby relievedme from the necessity of considering what would have been, upon* the•evidence, a somewhat difficult question. The rule of law governingthe solution of the problem actually before us may be taken fromthe judgment of Sir Samuel Evans in the recent English case ofThe Cargo ex ** Miramicbi " 1 : “ Where all the material parts of thebusiness transaction took place bona fide during peace, and itbecomes necessary to decide questions of property, I hold that thelaw to be applied is the ordinary municipal law governing contractsfor the sale and purchase of goods. Where goods are contractedto be sold, and are shipped during peace without any anticipationof imminent war, and are seized or captured stfioat after war hassupervened, the cardinal principle is, in my opinion, that they arenot subject to seizure or capture, unless under the contract theproperty in the goods has by that time passed to the enemy, ft
i Nov. 53, 1914.
20
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RentokOhT.
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The ss.“Australia”
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may be that the element of risk may legitimately enter into theconsideration of the question whether the property has passed orhas become transferred. But the incidence of risk or loss is not byany means the determining factor of property or ownership (c./.section 20 of the Sale of Goods Act, 1893). The main determiningfactor is whether, according to .the intention of seller and buyer,the property had passed. The question which governs this case,therefore, is, Whose property were the goods at the time of seizure?This principle is consonant with good sense, and with the notion ofwhat is right in commercial dealings. It is also in accordance withthe doctrines adopted by the eminent jurists who have becomeauthorities on the law of nations, and applied in the decisions of ourPrize Court (see, e.g., “The Cousine, Mariamne,” 1 the “Ida," 2 * the“ Abo," * the “ Vraw Margaretha,” 4 and the Ariel.” 5The case for the present claimant might well have been stronger.But it is obvious from the affidavit of Mr. Julius and from the state-ments of counsel that great efforts have been made to render it so,and that these efforts have been obstructed by obstacles of anunforeseen character, such, for instance, as the alleged refusal oftne Consul-General in Java to allow any affidavits as to prize ships-to be sworn before him. On the whole, I have come to the conclusionthat the claimant has shown by evidence, sufficient in the circum-stances, that the goods here in question belonged to the indenters,and were therefore neutral property, at the date of seizure. Ideclare accordingly. The motion of the Crown for the condemnation'of the goods and of the claimant and its bail in their appraisedvalue is disallowed.
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1 Edu>. 846 and 2 Roscoe 85.
* Spinks 26 and 2 Roscoe £08.
* U Moore P. C.
Spinks 42 and 2 Roscoe 285.* L.c. Rob. 8S6, 1 Roscoe 149.119 and 2 Roscoe 600.