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§ 245.

452

ce, paree que la cour admit que le droit de propriété du chargement était resté dans le chef des expéditeurs américains; par conséquent, rantithèse entre un propriétaire ennemi et un créancier gagiste neutre (non-ennemi) ne se présenta pas ici. Cependant, la cour a discuté les principes qui régissent la matière du caractère ennemi de marchandises transportées d'outre-mer, paree qu'il n'était pas certain que le caractère de la cargaison en question düt être jugé d'après la nationahté du vendeur plutöt que d'après celle de 1'acheteur.

„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 State then at war, as purchasers, and therefore was subject to seizure on behalf of the Crown. The contention of the claimants, on the contrary, was that the cargo was their property, and therefore could not be lawfully seized.

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....

The main contest was as to the right test to apply in these circumstances of determining whether a particular property was subject to seizure or capture..'. I wül state the contention and propositions submitted by the learned Attorney-General in his own words. He said: „ „My first proposition is that the test of the right to capture and sale is the answer to the question. On whom is the risk at the moment of capture ? That is to say, Who suffers if the goods are captured ? If my main proposition is right, in a Prize Court one is not concerned with these niceties about the abstract law of property ; but the point really is, at the moment of capture, tiie goods being on the high seas, is it or not open to the consignor to compel payment by the consignée ? That is the real test. Then plainly I am entitled here to the condemnation of the goods."

The contrary contention of counsel for the claimants was that,, „the true criterion to apply where goods are shipped before war is, Whose goods are they ? In whom is the property — in the sense of a beneficial ownership of the goods — vested?""

Very düficult questions often arise at law as to when the property in goods carried by sea is transferred, or vests ; and at whose risk goods are at a particular time, or who suffers -by their loss.... [voir aussi § 248 et ss.]. . . Where goods are contracted to be sold, and are shipped during peace without any anticipation of irruninent war, and are seized or captured afloat after war has supervened, the cardinal principle is, in my opinion, that they are not subject to seizure'or capture Unless under the contract the property in the goods has by that time passed to the enemy. It may be that thé element of risk may legitimately enter into the consideration of the question whether the property had passed or Bas become transferred. But the incidence of risk of loss is not by any

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