British doctrine.

In this country I do not think any decided and reported case has treated the immunity of such vessels as a part or rule of the law of nations: vide the Young Jacob and Johanna and the Liesbet van den Toll."

But after the lapse of a century, I am of opinion that it has become a sufficiently settled doctrine and practice of the law of nations that fishing vessels plying their industry near or about the coast (not necessarily in territorial waters), in and by which the hardy people who man them gain their livelihood, are not properly subjects of capture in war so long as they confine themselves to the peaceful work which the industry properly involves. The foundation of the doctrine is stated by Hall as follows:

8

"It is indisputable that coasting fishery is the sole means of livelihood of a very large number of families as inoffensive as cultivators of the soil or mechanics, and that the seizure of boats, while inflicting extreme hardships on their owners, is as a measure of general application wholly ineffective against the hostile State."

The rule is formulated by Westlake (International Law, Part II, War, p. 133) in these terms:

"Coast fisheries: Immunity from capture on the ground of their being enemies or enemy property, but not from capture and condemnation on the ground of breach of blockade, is enjoyed by the men, boats, and tackle employed in coast fisheries, and their cargoes of fresh fish, including fish kept alive by contrivances on their way to market; so long as the men and boats are not engaged in any warlike employment-in which scouting, exchanging signals with the forces on their side, and carrying arms would be included-so long also as, in the opinion of the hostile Government or its naval commanders concerned, they are not likely to be engaged in any warlike employment"-and he adds: "If the opinion here referred to is only that of the naval commanders concerned, the prize court before which the captures are brought will have to release them unless the warlike intention of the captured is proved to its satisfaction; but if the captures were made in pursuance of a Government order, the prize court, in the absence of anything to the contrary in the constitution of the country, will

61 C. Rob. 20. 7(1804) 5 C. Rob. 283. International Law (6th ed.), p. 446.

be bound by such an order as emanating from the authority under which it sits."

It is obvious that in the process of naval warfare in the present day such vessels may without difficulty and with great secrecy be used in various ways to help the enemy. If they are, their immunity would disappear; and it would be open to the naval authorities under the Crown to exclude from such immunity all similar vessels if there was reason for believing that some of them were utilized for aiding the enemy. And this seems to be the sense in which the second paragraph of article 3 of The Hague convention referred to should be regarded.

As to the Berlin, I am of opinion that she is not within Decision. the category of coast fishing vessels entitled to freedom from capture; on the contrary, I hold that, by reason of her size, equipment, and voyage, she was a deep-sea fishing vessel engaged in a commercial enterprise which formed part of the trade of the enemy country, and, as such, could be and was properly captured as prize of war. I therefore decree the condemnation of the vessel and cargo, and order the sale thereof.

THE “MIRAMICHI.”

HIGH COURT OF JUSTICE.

PROBATE, DIVORCE, AND ADMIRALTY DIVISION.

ADMIRALTY.

[IN PRIZE.]

November 23, 1914.

[1914] P. 71.

case.

The subject matter of the claim in this case is a part Statement of the cargo of 16,000 bushels of wheat carried on the steamship Miramichi, which was seized or captured as enemy property on September 1, 1914, in the circumstances hereinafter mentioned.

The steamship Miramichi was a British ship. The cargo of wheat to which the claim relates was shipped at Galveston, Tex., and was stowed, with other wheat, in holds 1, 4, and 6 of the vessel. It was shipped in the month of July, 1914, before the commencement of the war, and without any anticipation of war. It was destined for the port of Rotterdam, and was intended to

be delivered, as to part, to George Fries & Co., of Colmar, as purchasers of 8,000 bushels, and, as to the other part, to Gebrueder Zimmern & Co., of Mannheim, as purchasers of 8,000 bushels. Both these firms were German firms, and at the time of seizure or capture of the cargo. were enemy subjects.

The two transactions were separate; but there is no distinction in substance, or from the legal aspect, between the two. It will therefore be sufficient to deal in this judgment with one of the cases; and I will take the first, namely, the case of the sale by Messrs. Muir & Co. to Fries & Co.

The cargo of wheat destined for Fries & Co. was, as I have said, laden on board the British steamship Miramichi. On her voyage toward Rotterdam, her owners by telegraph directed the vessel to proceed to Queenstown for orders by reason of the outbreak of war. At Queenstown the owners communicated with the British Admiralty and asked their instructions as to whether the steamship could proceed to Rotterdam, as the cargo was destined for German merchants. Permission to proceed to Rotterdam was refused, and accordingly the vessel proceeded to the port of Eastham, in the Manchester Ship Canal, as the best port for the disposal of the cargo.

A question might have arisen as to whether the cargo was captured at sea or seized in port. But that makes no material difference in this case, and it is agreed that the cargo was seized in the port of Eastham.

The seizure was on September 1, 1914. The Crown claims the cargo as prize or as droits of admiralty. The claimants, on the other hand, contend that the cargo was not subject to seizure as it did not belong to enemy subjects, but to themselves as neutrals, being citizens of the United States of America.

November 23. SIR SAMUEL EVANS, president. [After stating the facts already set out the learned president continued:] The contest between the Crown and the claimants may be shortly stated as follows:

The contention of the attorney general for the Crown was that the cargo at the time of seizure was at the risk of subjects of the German Empire, then at war, as purchasers, and therefore was subject to seizure on behalf of the Crown. The contention of the claimants, on the con

trary, was that the cargo was their property, and therefore could not be lawfully seized.

and purchase.

The facts as to the contract for sale and purchase of the Contract for sale cargo must now be stated in substance, but briefly.

I will premise that the contract, and all material transactions in relation to it up to the time of seizure of the cargo, were entered into before the war and in entire innocence of any anticipation of war. In short, all the transactions so far as concerned the claimants were carried out in times and conditions of peace. The claimants were the sellers of the goods, and their bankers who discounted the bill of exchange. They have made common cause, and no distinction need be made between them in this judgment. I will describe the claimants, Messrs. Muir & Co., as "the sellers," and Fries & Co., the German merchants, as "the buyers."

The sellers contracted to sell the cargo to the buyers on June 25 for shipment during the month of July, 1914, from a port of the United States of America direct or indirect to Rotterdam at a price to include cost, freight, and insurance; in other words, the contract was what is so well known as a c. i. f. contract. Payment (or in the American terminology "reimbursement") was to be "by check against documents." The sellers were to furnish policies of insurance, or certificates of insurance (free of war risk). A clause for settlement of disputes in London was included, which shows (apart from anything else) that any disputes were to be determined according to English law.

The sellers had bought the wheat to enable them to fulfill their contract with the buyers from C. B. Fox, a grain merchant in Galveston.

The wheat was shipped by Fox at Galveston on July 23, 1914. The bill of lading was given in favor of Fox, the shipper, and was made out unto the order of one Davis, or to his or their assigns. It was indorsed generally, and in due course the sellers paid Fox for the wheat and obtained the bill of lading. They did not indorse it in favor of the buyers, and it remained a bill of lading only indorsed generally.

The necessary insurances were effected and the certificates of insurance were obtained by the sellers on July 23. On July 28 the sellers drew a bill of exchange upon the buyers and, according to the statement of the attorney

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Capture.

general, discounted it with the bankers (the Guaranty Trust Co. of New York, who have joined them as claimants). On the same date they deposited with the bankers the bill of lading and certificates of insurance to be delivered upon payment by the buyers through a Berlin bank of the amount due on the bill of exchange for the cost and insurance, less the freight, which was credited, as it was to be paid for by the buyers on delivery.

On the same date also the original documents were forwarded to the Berlin bank for credit of the New York bank by the steamship Savoie, which sailed from New York on July 29 and arrived at Le Havre on August 5; and duplicate documents were forwarded by the steamship Carmania, which sailed from New York on July 29 and arrived at Liverpool on August 7. The buyers were duly notified of these matters, and an invoice was forwarded to them by the sellers on the same day (July 28) with all the necessary particulars of the shipment, bill of exchange, and documents.

So far as the buyers are concerned, no further information was given to the court except that the documents were tendered to them, and that on the tender they refused to accept the documents, or to pay the sum due under the bill of exchange and indorsed on the bill of lading as follows: "Refused on account of late production, nearly one month after normal due date. Colmar, September 3, 1914. Geo. Fries."

That reason was a mere excuse; the real reason, no doubt, was that war had broken out. The sellers, therefore, or their bankers, still hold the bill of lading, and the bill of exchange remains unpaid.

These, I think, are all the material facts.

The question of law, as I have stated, is, Was the cargo on September 1 subject to seizure or capture by or on behalf of the Crown as droits of admiralty or prize?

Before this question is dealt with, I desire to point out, and to emphasize, that nothing which I shall say in this case is applicable to capture or seizure at sea or in port of any property dealt with during the war, or in anticipation of the war. Questions relating to such property are on an entirely different footing from those relating to transactions initiated during the happier times of peace. The former are determined largely or mainly upon considerations of the rights of belligerents and of attempts to defeat such rights. I will refrain from dis