The Laws Of War, Affecting Commerce And Shipping Part 7

The principles on which courts act in treating licences is thus succinctly laid down by Sir William Scott.--

"I need not repeat what I have so often stated, the anxious wish of this court to relieve, as much as possible, the difficulties under which the commerce of the world now labours (November 1812,) and to apply the most favourable consideration to the construction of license cases. At the same time it is to be remembered, that the court possesses the mere power of interpretation; that it must confine itself to a reasonable explanation of the terms made use of, and cannot alter or dispense with conditions considered as essential by the Government granting the license. If the court a.s.sumes the power of extension by favourable interpretation, it does so only where there is a total absence of _bad faith_, and where unavoidable obstacles have been thrown in the way of an exact compliance with the terms prescribed. Where there has been a want of good faith, or a departure from the terms, beyond the necessity thus imposed, the court has not felt itself called upon to mitigate the penalties incurred by such a deviation."[114]

[Sidenote: The Vessel.]

It is not an essential deviation from the licence, if s.h.i.+ps of other countries than those designated in the license are employed; provided those other countries have the same political bearing towards this kingdom as those mentioned in the licence. But it is not a matter of indifference to subst.i.tute a s.h.i.+p belonging to a country at war, for a neutral or native s.h.i.+p, at the will and pleasure of the holder of the licence.[115]

Where an enemy's s.h.i.+p was represented to be neutral, and under that disguise obtained a licence and was navigated, the s.h.i.+p and freight were condemned; and the cargo would have been involved in the same fate had it been shown that the owner of the cargo was privy to the fraud.[116]

A licence to trade in neutral bottoms does not extend to British s.h.i.+ps.[117]

[Sidenote: The Cargo.]

The exportation of the produce and manufactures of this country is undoubtedly of great importance; but in time of war, it may be a matter of serious injury to the kingdom, if the commerce of the enemy is to be carried on in security under the abuse of British licences.

The Courts of Admiralty and Prize, therefore, as far as lie in their power, guard against the fraudulent application of licences.

The following are a few practical rules for the guidance of merchants:--

1. Where the goods are enumerated in the licence, the best endeavour ought to be made to follow that enumeration. It is _not_ a fatal departure from the licence to take on board non-enumerated articles, if done so by mistake, or inadvertence; but an essential and fraudulent departure from the conditions of the licence is a total defeasance of it.[118]

2. When a licence is granted to _one_ person, it cannot be made to extend to the protection of all other persons who may be permitted by that person to take advantage of it.[119]

3. Where A and B have obtained a licence to import, _as for themselves, or their agents, or the bearers of their bill of lading_, the only persons ent.i.tled to act under that licence, are A and B, as _importers_, or their agents, or persons holding their bills of lading, and claiming under bills of lading, which A and B, _after having conducted the importation from the enemy on their own account_, have transferred to them.[120]

4. Under a licence to _import_, the British merchant must not also be the _exporter_. He is not permitted under such a licence to go to the enemy's country, and there act as an enemy's merchant, carrying on the export trade of that country.[121]

5. Sometimes, in describing the property in licences, the privilege is extended to all property of a certain cla.s.s, "to whomsoever the property may appear to belong." In such cases no enquiry is ever made as to the proprietary interest in the property; but if the words are not introduced into the licence, it does not protect enemy's property.[122]

[Sidenote: The Voyage.]

In the Voyage, also, the merchant must follow the licence. It is vitiated by changing the place of s.h.i.+pment. Thus, where a licence was to bring away a cargo from Bordeaux, and the party thought proper to change the licence, and accommodate it to another port in France, it was held by the English Admiralty that the licence was vitiated, and the vessel and cargo were condemned.[123]

Enemies trading to the ports of this country must strictly comply with the conditions under which that permission is granted. No voluntary deviation from the _course_ pointed out can on any account be tolerated; except under the pressure of irresistible necessity. The character of enemy revives, when such a trader so deviates from his appointed course, even if there is no _mala fides_, and he runs all the perils of an enemy on an English coast.[124]

It is a violation of a licence to touch at an intermediate port under a licence for a direct voyage to this country, the presumption being that at the intermediate port the vessel might receive another destination, or might actually deliver her cargo in that port.[125]

[Sidenote: Time.]

Of course when the period for which a licence has been granted has expired, it no longer has any operation; yet in cases in which parties have used due diligence, but have been prevented by accident from carrying their intentions into effect within the time, it has been holden that, though their licences have expired, they are ent.i.tled to protection.[126]

A licence cannot be _ante dated_, and if granted subsequent to capture it is no protection against condemnation. It is in its very nature prospective, pointing to something which has not yet been done, and cannot be done at all without such permission. Where the act has already been done, and requires to be upheld, it must be by an express confirmation of the act itself, as by an indemnity granted to the party; but a licence necessarily looks to that which remains to be done, and can extend its influence only to future operations.[127]

Note.--It has been before pointed out, that the Queen has, by her prerogative, the power of granting licences. But the Navigation Laws could not, of course, be dispensed with by the royal prerogative.

Various acts, therefore, were pa.s.sed to alter or qualify them, according to the new condition of things which was produced in time of war. These acts expired with the several wars that suggested them; but the almost total repeal of the celebrated Navigation Laws will render the re-enactment of similar war measures almost unnecessary.

SECTION IV.

_Ransom, Recaptures, and Salvage_.

[Sidenote: Ransom.]

Sometimes circ.u.mstances will not permit property captured at sea to be sent into port; and the captor, in such cases, may either destroy it, or permit the original owner to redeem it.

It was formerly the general custom to redeem property from the hands of the enemy by Ransom, and the contract is undoubtedly valid, when munic.i.p.al regulations do not intervene. It is now but little known in the commercial law of England, for several statutes in the reign of George the Third absolutely prohibited British subjects the privilege of ransom of property captured at sea, unless in a case of extreme necessity--to be judged of by the Court of Admiralty.[128]

These contracts are generally drawn up at sea, and by virtue of them, the captain of the captor engages for the release and safe conduct of the taken s.h.i.+p, in consideration of a sum of money, which the master of the captured vessel, on behalf of himself and the owners of his s.h.i.+p and cargo, engages to pay, and for the payment of which he delivers a hostage as security. The contract is drawn up in two parts, of which the captor has one, which is called the ransom bill; the master of the captured vessel has the other, which operates as his safe conduct.

By the French law this safe conduct only protects the vessel to its own port, or its port of destination, if nearer that. In other countries the pa.s.s allows the s.h.i.+p to continue its voyage; but operates only to protect the vessel in the course prescribed, and within the time limited by the contract. It protects only against capture, unless by agreement it provides also against _total loss_ by perils of the seas.

During war, and while the character of alien enemy continues, no suit will lie in the British Courts by the enemy, in proper person, on a ransom bill, notwithstanding it is a contract arising out of the law of war. The remedy to enforce payment of the ransom bill for the benefit of the enemy captor, is by an action by the imprisoned hostage, in the courts of his own country, for the recovery of his freedom.

The hostage consists generally of one or two princ.i.p.al officers of the captured prize, more generally one only.

As the ransom is in the nature of a pledge, the ransom cannot exceed the value of the s.h.i.+p, so that the master cannot bind his owner for a larger value; and on the same principle, the captor is bound to take the vessel or its value if abandoned by the owner, or what it sells for if the owner is insolvent. He is also bound to maintain the hostage, and that is an item in the ransom bill. In estimating the ransom and expenses of the hostage as a damage or loss, they are regarded in the nature of general average, and the several persons interested in the s.h.i.+p, freight, and cargo, must all contribute towards them.[129]

[Sidenote: Recaptures.]

Although in strictness _every_ prize legally made, may be adjudged to the captor, yet there are cases where he ought to restore, wholly, or in part, that which he may legally have taken from the enemy. This is the case of recaptures.

According to the universal law of nations, the question whether the recapture ought to be restored to the first proprietor, seems to depend essentially on another, namely, whether the captor has become full proprietor of the prize, _to the total extinction_ of the rights of the first proprietor. If we admit that he may have become so, there would be no further perfect and external obligation on the _recaptor_ to restore property which has become that of the enemy; and on which the first proprietor has lost all claim. There may be a thousand reasons of equity why he should not enrich himself by the spoil of his fellow citizens or friends; but then, that rest.i.tution would not be according to the strict rule of natural law; if indeed all claim had so pa.s.sed away.

The captor has, without doubt, a right to take away the enemy's goods.

He may, without troubling himself with the proprietor's rights, detain them, with intent to appropriate to himself, in the same manner, in every respect, as he may seize _res nullius_ in the time of peace; but it does not follow from thence that the effect of these two actions is the same, when applied to objects of so different a condition, or that the right of war alone, without cession or renunciation, is a t.i.tle sufficient for a full property.

By the Laws of War the right and power _of possession_ is in the captor; the _right of property_ remains in the proprietor. This right of war, which is personal in the captor, not being capable of cession, cannot bind a third person, who acquires the prize by recapture during war; and nothing prohibits the original proprietor from prosecuting his rights against him; accordingly, without making any distinction between conquest, booty, or prize; the goods taken by the enemy, however legal that capture might be, however certain the possession of them might be, do not become his full property till the moment of peace; and that during the whole course of the war it may be claimed by the first proprietor from the hands of every third possessor. From this it follows that every recapture, made at any period of the war whatever, whether the capture may have been legal, or whether it may have been illegal; whether the recapture be made by a Sovran, or by a privateer; ought to be restored to the original owner on a just repayment of the costs and damages of every recaptor, unless the illegality of the recapture precludes the recaptor from the privilege of demanding the indemnification.[130]

[Sidenote: Salvage.]

The costs and damages paid to the recaptor are termed Salvage. It was the ancient law of this country, that a possession of twenty-four hours was a sufficient conversion of the property, and unless it was reclaimed before _sundown_, the owner was divested of his property.

Thus there was a complete obliteration of the rights of former owners.

This was the ancient law of England, and was in accordance with the ancient law of Europe.

This rule has been receded from in this country, since the increase of her commerce. During the time of the usurpation, when England was becoming commercial, an alteration was effected by the ordinance of 1649, which directed a rest.i.tution, upon salvage, to British subjects; and the same indulgent rule was continued afterwards, when this country became still more commercial.

This country, as a commercial country, has thus departed from the old law, and has made a new and peculiar law for itself, in favour of merchant property recaptured, introducing a policy not then introduced by other countries, and differing from its own ancient practice.

[Sidenote: Recaptures converted into s.h.i.+ps of War are not restored.]

There is one exception to this law. The Prize Act provides that if a recaptured s.h.i.+p, originally taken by her Majesty's enemies, shall appear to have been by them "_set forth as a s.h.i.+p or vessel of war_,"

the said s.h.i.+p or vessel shall not be restored to the former owners or proprietors; but shall, in all cases, whether retaken by any of Her Majesty's s.h.i.+ps, or by any privateer, be adjudged lawful prize for the benefit of the captors. When the former character of the vessel has been once obliterated by her conversion into a s.h.i.+p of war, the t.i.tle of the former owner, and his claim to rest.i.tution, are extinguished, and cannot be revived by any subsequent variation of the character of the vessel.

_Setting forth_ does not necessarily mean sending out of port with a regular commission. It is sufficient if she has been used as part of the _national_ force of the enemy, by those in _competent_ authority.[131]

[Sidenote: Capture a material question in cases of Recapture.]