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cial agreement, or by a particular prevailing practice that presupposes an agreement among such a description of merchants.
In time of profound peace, when there is no prospect of approaching war, there would be unquestionably nothing illegal in contracting that the whole risk should fall on the consignor till the goods came into possession of the consignee. In time of peace they may divide their risk as they please, and nobody has a right to say they shall not; it would not be at all illegal that goods not shipped in time of war, or in contemplation of war, should be at the risk of the shipper. In time of war, this cannot be permitted, for it would at once put an end to all captures at sea--the risk would, in all cases, be laid on the con- : signor, where it suited the purpose of protection. On every contemplation of war, this contrivance would be practised in all consignments from neutral ports to the enemy's country, to the manifest defrauding of all rights of capture. It is therefore considered to be an invalid contract in time of war, or, to express it more accurately, it is a contract which, if made in war, has this effect, that the captor has a right to seize it and convert the property to his own use; for he, having all the rights which belong to his enemy, is authorized to have his taking possession considered as equivalent to an actual delivery to his enemy, and the shipper, who put it on board during a time of war, must be presumed to know the rule, and to secure himself in his agreement with the consignee against the contingency of any loss to himself that can arise from capture. In other words, he is a mere insurer against sea-risk, and he has nothing to do with the
case of capture, the loss of which falls entirely on the consignee. If the consignee refuses payment and throws it upon the shipper, the shipper must be supposed to have guarded his own interest against that hazard, or he has acted improvidently and without caution. The present contract, however, is not of this sort. It stands as a lawful agreement being made whilst there was neither war nor prospect of war. The goods are sent at the risk of the shipper. If they had been lost, on whom would the loss have fallen but upon him? What surer test of property can there be than this? It is the true criterion of property, that if you are the person on whom the loss will fall, you are to be considered as the proprietor. To make the loss fall upon the shipper in such cases, would be harsh in the extreme. He ships his goods in the ordinary course of traffic by an agreement mutually understood between the parties, and in nowise in. jurious to the rights of
any third party. An event subsequently happens which he could in no degree provide against. If he is to be the sufferer, he is a sufferer without notice, and without the means of securing himself. He was not called upon to know that the injustice of the other party would produce a war before the delivery of his goods.”
Upon the general rule of the invalidity of transfers from belligerents to neutrals made during or in contemplation of war, as affording exemption from liability to confiscation on capture, Chancellor Kent observes :
“Such agreements, if they could operate, would go to cover all belligerent property, while passing between a belligerent and neutral country, since the risk of capture would be laid alternately on the consignor or consignee, as the neutral factor should happen to stand in the one or the other of these relations."
And again the learned chancellor says, referring to the same subject: “These principles of the Eng. lish admiralty have been explicitly recognized and acted upon by the prize courts of the United States. The great principles of national law were held to require, that in war, enemy's property should not change its hostile character in transitu, and that no secret liens, no future election, no private contracts looking to 'future events, should be able to cover private property while sailing on the ocean. Captors disregard all equitable liens on enemy's property, and lay their hands on the gross tangible property, and rely on the simple title in the name and possession of the enemy. If they were to open the door to equitable claims, there would be no end to discussion and imposition, and the simplicity and celerity of proceedings in prize courts would be lost."1
Kent's Com. I., 94; The Josephine, 4 Rob., 25; The Tobago, 5 Rob., 218; The Mariana, 6 Rob., 24; The Francis, 1 Gall., 445; 8 Cranch, 335; The Sisters, 5 Rob. 155; Vrow Catherina, 5 Rob., 161; 1 Duer on Insurance, 478.
[During the existing civil war in the United States, there seems to have prevailed among the British merchants there resident, the like misappre. hension in relation to their rights, which so fatally misled American citizens resident abroad during the last war between Great Britain and Holland. They appear to have supposed themselves entitled to retain all the privileges of British subjects, with:
out regard to the fact of their residence and occupation in another country.
As this misapprehension of American citizens, Recent Ameriduring the war between England and Holland, was on the doctrine taught them to their cost, by the decisions of the of hostile char
acter by hog. courts of Great Britain (as we have seen in the tile residence cases before cited); so the same error of the British subjects residing in the southern ports of the American Union, has been in like manner corrected, by numerous recent decisions of the courts of the United States.
The brig Sarah Starr, in the month of July, The Sarah 1861, three months after the proclamation of block-States Court, ade by the executive authority of the United New York. States, was lying at Wilmington, North Carolina, one of the blockaded ports.
She was then owned by Messrs. Monroe, citizens of Rhode Island, having business connections and transactions in North Carolina. Through the agents and correspondents of Messrs. Monroe, in Charles. ton, South Carolina, a negotiation was made, by which the vessel was transferred to one Cowlan Gravely, a merchant, residing and transacting business at Charleston, but an Englishman by birth, and still owing allegiance to the British crown.
This transfer having been consummated, the British consul at Charleston supplied the vessel with a provisional register. The vessel was laden with naval stores, and, under a clearance and pass from the insurgent authorities, she left Cape Fear river on the 3d day of August, and shortly after crossing the bar, was captured by the United States steamer
Wabash, and sent to the port of New York for adjudication.
The question of the liability of the vessel to condemnation, as impressed with a hostile character, by reason of the residence of Cowlan Gravely in the country of the enemy, as his permanent business domicile, was distinctly raised in the case, and the doctrine, as well settled both in the English and American authorities, upon this subject, was recog. nized and affirmed.
At about the same time, the British consul at Charleston was employed in furnishing with provisional registers some five or six other vessels, lying at the different blockaded ports, and which had been in like manner transferred to the same Cowlan Gravely.
Several of them were captured, and the British title, which had been resorted to, was held to be no protection from condemnation. (Vide The Aig. burth—MS. Decisions of United States District
Court of New York. The Joseph H. The Joseph H. Toone, captured in October, 1861, Toone. United States Court, while attempting to violate the blockade of New
Orleans, by the United States ship South Carolina, and sent to New York for adjudication, was claimed by one Aymar, who was on board as a passenger at the time of capture. Her previous owner was a citizen of New Orleans; and the vessel left New Orleans on her preceding voyage, with Aymar on board, successfully evading the blockade, and proceeded to Havana. Previous to her departure, the New Orleans owner delivered to the master a power of attorney to sell the vessel; and, under this power, the master executed a transfer to Aymar, in Havana. Aymar being, or claiming to be, a British subject, the British consul supplied the vessel with