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“Goods” are not limited to things which are of considerable bulk or weight, though indeed these securities were anything but imponderable. The documents were not mere symbols of a right or title to be transferred by the operation of other instruments. If lost, they could not be proved and given effect to by secondary evidence. They themselves were things of price, the subjects of sale and delivery, irreplaceable and unalterable. No doubt can be entertained that they are within the descriptive word "goods" as used in the order.
Next, when these securities were seized it is plain that in fact they all belonged to neutrals. The appellant contends that they ought to be deemed to be enemy property because by the law of nations belligerent rights are not to be defeated by changes of ownership, while goods are in transit. If the securities have been in Germany since the date of the order, it is said that enemy ownership ought to be presumed, and that no transfer can be effective from the moment of their despatch from somewhere in Germany until their arrival at an ultimate destination in the United States. In order to apply the old rule of prize law to the present circumstances the argument must assume that transit is not confined to sea transit or to transit in the vessel actually seized, but extends to anterior land transit, even through Germany into Holland, or through Holland to the Dutch port of departure, before the securities reach the mail steamer. It assumes the inversion of the doctrine of continuous voyage by applying this doctrine to transit away from Germany; it assumes its application to a transit in separate and discontinuous stages, and to articles which are not contraband at all; it assumes that the valid and complete transfer of property by delivery of the document at the intermediate stages may be disregarded for the present purposes. Their lordships are not to be understood to accept these assumptions as legitimate, or to express any opinion upon them, nor do they hold that the facts in the present case establish a "continuous transit" from Germany to America, in progress at the time of the seizure in the sense in which that expression is used by the appellant in this part of the argument. They think that it is not necessary to investigate these assumptions on the present occasion. There is, in any case, a broad ground on which the whole of the appellant's argument on this point fails. The Order in Council is a reprisals order—that is to say, His Majesty, in the exercise of his belligerent right, has been pleased upon just and adequate provocation to resort to measures not prescribed by the general existing rules of the law of nations. These measures are of his own selection and are defined in such manner as he thought fit to adopt in the terms of the order. It is just because neutrals are required to submit to an order, validly and justly made by way of reprisal, that they must also be held entitled to know from the terms of the order itself what is the extent and limit of their liability under it. If clear terms are used, their clear meaning must be enforced; if ambiguous terms are used the belligerent cannot ask to have them extended by construction in his own favor. It rested with those who framed the order, within the limits of the Crown's right of reprisal, to select and to state the extent of its exercise. It is the duty of a court of prize, administering the law of nations, to protect the rights of neutrals in this matter by limiting their obligation to that which the order itself states, no less than to enforce the obligations which the order duly creates and clearly declares. In the present case, in order to deter neutrals from assisting the enemy by engaging in his commerce, the order tells them that their goods, if of German origin, are exposed to detention, and, by declaring that condemnation applies to enemy property, it tells them also that, so far as the order is concerned, what belongs to them will not be condemned, though it may be detained. The words are precise. There is nothing said of “enemy character," nothing added to the words “enemy property" to make them applicable to a date antecedent to that of the diversion, nothing to show that the words are to be deemed to include something to which otherwise they would not extend. How can their lordships be asked, under the name of construing the plain and simple language of the order to declare that it condemns neutral property which has been validly acquired from Germans within a certain time and under certain circumstances, and this not by force of the order itself, but by an appeal to general rules whose inadequacy made it necessary to bring the special provisions of the order into existence to meet the enemy's provocation? It is not enough that the second proviso to Article IV contemplates the release of neutral property. This is to be done only on the application of the proper officer of the Crown and is discretionary; nor, in any case, is the argument valid that, if a misconstruction of the language leads to hardship, the hardship can be redressed by the action of the executive. Their lordships are unable to accept the argument of the ProcuratorGeneral on this point.
There remains the question of enemy origin. Origin is a quality of the goods, not of the owners or of their intentions or dealings. To decide where a chattel originates may often be difficult ; in the case of things of great durability often impossible. Origin sometimes refers to the place where raw material was produced, but ex hypothesi the Reprisals Order goes beyond the general rules applicable to the produce of enemy soil, since existing rules were found inadequate. Origin means sometimes the place of manufacture of an artincial commodity, and sometimes it is a thing undiscoverable. It is not inconsistent with the enemy origin of goods, which come from Germany, that they have previously come into being elsewhere than in Germany. After a certain lapse of time, or certain changes of circumstances, origin may be of little more than curious or antiquarian interest. This order could not be concerned, for example, with old German machinery or old German books or old German wine imported into Holland many years ago. For present purposes there is no utility in applying to "goods” ideas appropriate only to human beings, such as the effect of an individual's place of birth or race or nationality upon his subsequent rights or obligations. The best guide is the language and context of the order itself, and the purpose which it was intended to serve. In substance Article III and Article IV of the order are to the same effect, an inwards movement being dealt with in the one and an outwards movement in the other. The words "of enemy origin” in the latter must correspond to "with an enemy destination" in the former; certainly no other words do. Neither expression makes any reference to the completion of some one mercantile or financial adventure or transaction; neither is limited in any way to goods which start from, or are bound to, an enemy port. One of the purposes of the order is to prevent commodities of any kind from leaving Germany; as regards certain commodities, namely, such as are of enemy origin but are not enemy property, the means of prevention is diversion, discharge and detention till the conclusion of peace. To origin in such a connection neither the place where the securities were printed or signed or sealed is really material, nor the country in which the undertakings or the debtors, from whom the securities emanate, chance to carry on their affairs. As to the securities with which this appeal is concerned, in some cases they were bought in Germany for American buyers and received and forwarded to them by their Dutch agents; in some they were bought in Germany by Dutch dealers for the purpose of prompt resale or of delivery under sales already made in the United States. It is clear as a common characteristic that no long time before they were diverted all had formed part of the common financial stock of Germany's holding in foreign securities. What happened was that as part of the liquidation of this stock, either to support foreign exchange or to establish foreign credits or otherwise, these securities no doubt, along with many others, were separated from that common stock and despatched from a terminus a quo in Germany to a terminus ad quem overseas. Only in two cases, and those cases of collection of interest coupons, is that terminus elsewhere than in the United States, where doubtless a free market was to be found. There they became merged in the general mass of American-owned securities. In a word, these securities were part of Germany's resources, and the subject matter of these despatches had its source in Germany. Their origin does not depend on subsequent and intermediate dealings. That the transfer from the place of their origin to their new resting-place was effected by bona fide transfers in the ordinary course of financial business and physically by a series of transportations in various vehicles, not necessarily predetermined from the outset, is material to the question of enemy property but not to that of enemy origin. If it were otherwise the whole order could be made nugatory as to all classes of goods if care were taken in each case to sell to a neutral buyer and to deliver in Germany and to leave the buyer to do the rest. Their lordships are of opinion that the meaning of “enemy origin” in the order is abundantly clear and satisfies all that a neutral is entitled to require of the language of a Reprisals Order.
Lord Sumner proceeded to give a list in some detail of the parcels which under Article IV, were of enemy origin, and as such were liable to detention. In regard to one of these he said :—The mere fact that bonds bear a German revenue stamp, apparently because they were at some time issued in Germany, does not seem sufficient to prove origin, where there is no evidence as to the character of the sellers. There are other cases as to which the facts are insufficient, either by way of proof or of presumption, to establish such a connection with Germany as would bring them within the term “enemy origin,” but it is not necessary to discuss these cases in detail.
Their lordships, therefore, think that the judgment of Lord Sterndale, which was otherwise correct, should be varied by setting aside the decrees for the release of the securities, numbered and described as above, and by substituting the order for their detention, till it be otherwise ordered, which he should have made. It is not necessary to decide what constitutes “the conclusion of peace” mentioned in the first proviso to Article IV, for the objects of the Order in Council have now been satisfied, and there is no further reason why the proper officer of the Crown should not forthwith apply to the prize court for the release of the securities to the respondents. The very limited success of his appeal does not entitle the appellant to any order as to costs, which will, therefore, be borne by the respective parties. Their lordships will humbly advise His Majesty accordingly.
Judicial Committee of the Privy Council
July 29, 1920.
LORD SUMNER in delivering their lordships' judgment, said:
In this case the Dusseldorf, a German ship, was making her way from Narvik, with a cargo of iron ore, down the Norwegian coast towards the entrance to the Baltic, and so to Emden. Her object was to keep within Norwegian territorial waters, so as to baffle capture by British men-of-war. She was taken by H.M.S. Tay and Tyne, at a point off Buholmen and Grisholmen, which was, as it turned out, a little (say 200 yards) within the territorial limits. The learned president, Lord Sterndale, found that the commander of the Tay and Tyne had no intention of violating Norwegian neutrality, but that, by an error of judgment, which their lordships consider to have been very pardonable, he conceived that the three-mile line should be drawn a little further to the east than its true position. It is plain that the German ship-owners had a narrow and somewhat lucky escape, and that the sovereignty of Norway suffered the minimum of prejudice from this unintentional violation.
The present claim is made on behalf of His Majesty the King of Norway, by the appellant, Mr. Waldemar Eckell, the Royal Norwegian Consul-General in London. His claim is, firstly, for delivery up of the Dusseldorf and her cargo or its proceeds; secondly, for the
1 Times Law Reports, Vol. 36, p. 885.