THE SS. ”DANDOLO” AND THE SS. ”CABOTO”

035-NLR-NLR-V-19-THE-SS.-”DANDOLO”-AND-THE-SS.-”CABOTO”.pdf


( 161 )
In the Colonial Coubt of Admiralty of the Island191«.
of Ceylon in Prize.—
Present; The Hon. Mr. W. S. Shaw (A.C.J.),
President of the Prize Court.
THE SS. “ DANDOIiO ” AND THE SB. “ CABOTO. "
Cause No. 8.
Enemy goods brought by neutral ships—Seizure as, prize in Customswarehouse.
Enemy goods were broughtinto the portof Colombo bytwo
neutral ships, and were seized as prizes in a bonded warehouse inthe port.
Held, that the seizure wasgood,althoughthegoodswerenot
seized afloat but after landing.
Held, further, that the protection of the neutral flag can onlyextend to enemy goods when actually under that flag, and if theyhave been freely parted withby theneutralship,andare after*
wards seized, either. afloat orashore,on thehighseasor inan
English port, they are liable to condemnation as prize.
fJIBDE facts are fully set out in the judgment.
Hayley, for the claimants.
Bertram, K.G., A. Q. (with him Akbar and Femando for theCrown.
Cur. adv. vult.
October 11, 1916. Shaw A.C.J. and P.
The Attorney-General, on behalf of the Crown, asks for the con-demnation as prize of certain cases of towels, alleged to be enemy',property, brought into the port of Colombo by two neutral ships,the “ Dandolo ” and the “ Cabobo, ’ ’ and seized in a bonded ware-house in the port, after having been transhipped from the vesselsinto lighters and landed placed in the warehouse.
The initial question for my determination is one of fact, namely,whether or no the goods are enemy property. The claimants,
Messrs. Brandon & Co., a firm of merchants carrying on business inAmsterdam, allege, that the goods are their property, bought froman Italian firm of Lubbe & Hasche, and shipped to Colombo invoicedto a firm of K. R. M. T. T. Arunachalam Chetty & Bros., to bedelivered to them on their meeting – drafts for the price.
The Chetty firm had, for some time before the outbreak of warbetween England and Germany, been placing considerable ordersfor goods with Job. Jantzen and E. G. Kistonmaaker & Co., twoGerman firms carrying on business at Hamburg.
1016.
Shaw A.C.J.and P.
The ss.
“ Dandolo ’ *nnd the 88.•* f.aboto ”
( 162 )
At vthe time war broke out they had several orders outstandingwith these firms, including indents 133-189 with Joh. Jantzen for1,500 dozen towels and indents 031-044 and 067-071 with E. G.Kistonmaaker for camboys and sarongs.
In the autumn of 1914 the following letter addressed to the Ghettyfirm from Brandon & Co., was stopped by the Censor: —
“ Messrs. K. B. M. T. T. Arunachalam Chetty & Bros.,
36 and 37, Sea street, . Colombo.
" Amsterdam, October 22, 1914.
“ Dear Sirs,—Our mutual Hamburg friends, Messrs. E. G. K. & Co.,have made arrangements with us that we are handling now theirbusiness in neutral goods only to English colonies. We have there-fore obtained knowledge of your following indents: 031-044 sarongsand camboys, and Dutch make 067-074 sarongs and camboys, which,owing to the outbreak of the European war, could not be made readyfor shipment in time as contracted. This you will very well under-stand. Our mutual forenamed friends are very anxious now to findways and possibilities in order that you may at least get some ofthe goods, if not all, as very soon as possible. Perhaps it can bemanaged that some quantities can be shipped by neutral steamers,but in any case we would have to insure the goods against war risk,■for which the premium rate wquld at least be 4 per cent. We requestyou to let us know whether we shall ship such goods which we canget hold of, and by first available steamer. We would not shiplarger quantities at one time than those stipulated against eachseparate indent. Although there are increased rates of freight atpresent, we would not charge you for this difference. However,as regards the premium for. war risk, this we would be compelled tocharge in the invoice' in case of shipment.
’ * Please cable us in case you agree to the aforesaid the word ‘ agree ’to our address ‘ Andon, ' Amsterdam, or if you are not allowed tomake use of this address indicator, then you may use the address‘ Brandon,' Keizersgracht, 197, Amsterdam, and the best in yourinterest will then be done.
‘ ‘ We may still point out to you that this business will entirely .behandled in our name, i.e., L. J. Brandon & Co., so that it is a Dutchbusiness now in neutral goods, and not a German business. Wecould invoice you the goods; documents to be handed to you byour bank against payment, this being the only way possible underthe circumstances.
“ Awaiting your good news,
“ We remain, &c.,
" (Signed) pp. L. J. Brandon & Co. ” (illegible).
This letter does not relate to the goods ordered from Jantzen,which are the subject of the present suit, and I refer to it only as
( 103 )
showing the kind of work being undertaken by Brandon & Co. forthe German merchants.
This was followed by smother letter of November 26, 1914, from'
Brandon & Co. to the Chetty firm, likewise stopped by the Censor: —
" B. J. Brandon & Co., Amsterdam, Soerabaya, Manchester, .toMessrs. K. B. M. T. T. Arunaohalam Chetty & Bros., Colombo.
'" Amsterdam, November 26, 1914.
" Bear Sirs,—We beg to inform you that we have arranged withour mutual friend, Mr. J. J., for the shipments of your indentsNos. 133-139 for Italian made ‘ cotton towels The first lot of8 cases has already gone forward, and we have much pleasurein sending you herewith our invoice for the goods shipped perss. 4 Tranquebar ’ from Genoa to Colombo.
“ Documents will be handed to you, through the Ned. Ind. Com-mercial Bank, against payment of amount of invoice. Interest atbank rate from now till date of settlement here to he added.
„ " Mr. J. J. takes, of course, the full responsibility, and guaranteesfor this shipment as well as for the others.
“ The insurance has been covered with ‘ la federale ’ in Zurich,including war risk. The premium for war risk is 3£ per cent.,which has not been charged in the invoice, as Mr. J. J. wishes tosettle that with you later on.
'' Shipment samples have been sent .you by registered sample post.
'■ With regard to the further lots of these indents for towels ofneutral make, we would like to have your distinct authorization toeffect the shipments to you, which, of course, would be done likewiseunder J. J.’s full responsibility. But kindly note that the premiumfor war risk, ranging from about 3/5 per cent., would have to becharged in the invoice.
" To avoid delay we beg you to cable us your authorization atonce as per following code words: —
** * Ship soonest. ’ You may ship the total balance still undeli-vered in one or more lots, but not later than end of January.
" ‘ Ship towels. * You may ship the total Balance still undelivered
' in one or more lots, but not later than middle of February.
" ‘ Ship February. * You may ship the total balance still un-delivered in one or more lots, l>ut not later than end of February.
“ In case the shipments should not be veiy urgent, of course youmay send us your instruction by letter.
* ‘ In case you have to send any. fresh orders for Holland or Italiangoods, Mr. J. J. asks you to send such orders to our care, and thesame would have immediate careful attention. Likewise under fullresponsibility and guarantee of our mutual friend. Meanwhile,
,p We remain, &c.,
“ {Signed) pp. L. J. Brandon & Co. (two illegible signatures).
“ Invoice enclosed. Bef. samples separate registered. ”
1916.
Shaw A.C.J.and P.
The as.
“Dandolo”and the 88.“ Cabbto ”
1910.
Shaw A.C. J.and P.
The ea,
“ ikmdeito ”and Ae m.
44 Cabato ”•
( )It will be noticed that this letter, like the previous one referringto goods ordered from E. G. Kistonmaaker & Co., contains no sugges-tion that Brandon & Co. have taken over, or desire to take over, thecontract between the vendors and the Chetty firm. Jantzen remainsliable under the contract, and it is he who has to settle with theChetty firm, “ later on, " as to the premium for war risk, and it is 'to Jantzen to whom future orders are to be sent to the care ofBrandon & Co., and it is he who is to undertake full responsibilityfor and to guarantee any further orders. It is impossible, in my .view, to read this letter except as intending to convey to the Chettyfirm that Brandon & Co. are merely acting as agents for the vendorJantzen, and, as in the case of the goods Ordered from E. X3-. Kiston-maaker & Co., they were only “ handling now their business inneutral goods ’* under the name of Brandon & Co., to avoid troublein respect of enemy trading.
These letters, having been stopped by the Censor, were not received 'by the Chetty firm, consequently no reply was sent to Brandon &Co. Notwithstanding this, the first consignment of the towelsordered from Jantzen were despatched, and arrived in Ceylon by thess. " Tranquebar, ” and. on January 4, .1915, the National Bankof India wrote informing the Chetty firm of the arrival of the ship-ping documents, which they would be glad to deliver to the Chettyfirm against payment of the amount of the invoice enclosed.
•This invoice is for part of the towels ordered from Jantzen on in-dents 133-139, and purports to come from L. J. Brandon & Co.,Amsterdam. This invoice was the first intimation that the Chetty firmhad received that Brandon & Co. had anything to do with the goods.
The Chetty firm paid the amount to the bank and obtaineddelivery of the goods, and on January 8 wrote to Brandon & Co.requesting them to keep on shipping the goods and to draw for theirvalue through the Mercantile Bank. The Chetty firm evidentlythought at the time that Brandon & Co. were the manufacturersfrom whom Jantzen had ordered the goods, as they ask at the endof their letter whether they were the makers of the goods orderedfrom Jantzen on certain other indents, ‘ ‘ and if sp, to please ship thegoods of those indents also immediately. ”'
This letter was answered by Brandon & Co. by letter of February19, In this letter again Brandon & Co. give no explanation oftheir position in the transaction, but state with regard to the otherindents that the Chetty firm had inquired about, “ we are not themakers of these goods, but we hear from Mr. J. J. that these areEnglish goods, and he has already a long time ago sent instructionsto the maker to supply the goods direct to you. ” The letter againcontains no intimation that they had taken over Jantzen’s contract,and they evidently meant the Chetty firm to assume that they werethe makers of the goods sent, from whom Jantzen had ordered them,and that they were merely being handled in their name.
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On May 12, August 13, and September 10 further consignmentof the towels arrived by ss. “ Dandolo ” and “ Caboto," and werelanded and placed in the Customs warehouse. Bach shipment wasordered by the Customs to be detained immediately it was landed,and on October 18, when still in the Customs, the goods wereformally seized as prize.
The invoices for these consignments sent through the MercantileBank are in similar form to that for the consignment cleared by theChetty firm. They purport to be from Brandon & Co., and to befor the goods ordered by indents 133—139, and the shipping documentsshow that the goods were shipped at Venice by Brandon & Co., fortransport to Colombo, deliverable to their order, and that the goodswere of Italian origin.
Up to this point the facts and documents appear to me to raise anoverwhelming presumption that the goods were still the property ofJoh. Jantzen, from whom the Chetty firm had ordered them, andwith whom alone they had any contract.
A claim to the goods is, however,'set up by Brandon & Co., andcertain correspondence has been sent out and produced throughthe Dutch Consul which passed ‘between Joh, Jantzen of Hamburg,Brandon Co. of Amsterdam, and Lubbe & Hasche of Milan,which is said to show that, in fact, Jantzen had ordered the goodsfrom Lubbe & Hasche, and had transferred his contracts withthem and with the Chetty firm in Colombo to Brandon & Co., who,thus, had become the owners of the goods. This correspondence issupplemented by an affidavit of one J. D. Westenburg, who purportsto be the ‘ ‘ procurator ’ ’ of the firm of Brandon & Co., who had aloneconducted the transaction on their behalf.
The correspondence commences with a letter from Jantzen toBrandon & Co., of September 18, 1914: —
“ Messrs. L. J. Brandon & Co., Amsterdam.
“ Hamburg, September 18, 1914.
" With to-day’s opportunity I beg to make you the following offer: —
“ I have still from the time before the war a contract runningwith the firm of K. R. M. T. T. Arunaehalam Chetty, Colombo, fortowels of Italian origin (manufactured).
" As under present circumstances it is not possible for me tocarry out this contract, I beg to inquire whether you would beinclined to take over the contract for me. Sellers of the goods arethe firm of Lubbe & Hasche, Milan, and the buyer is mentioned above.
“ In case you are inclined to agree to my proposal, I wouldrequest you to approach my suppliers, Lubbe & Hasche, and toagree terms with them.
“ I hope you will agree to my proposal, and sign,
“ Yours, &c.,
" Joh. Jantzen.”
1916.
Shaw A.C. J.and P.
The aa.
“ Dandolo ”and the ea.“ Caboto"
1916.
Shaw A.C.J.and P.
The 98.Dandolo”and the as.** Ooboto "
( 166 )
For the Crownit wascontendedthat the ..words “ieh habeaus
der zeit vor demKriegenoch einenkontrakt ” used in the second
paragraph of thelettershould betranslated “ I have fromthe
time before the war another contract," showing that there had beensome previous correspondence with regard to Brandon & Co.carrying out J ant zero's contracts. In view, however, of the evidence-given by Mr. Weber and Mr. Frei, commercial gentlemen with verygreat experienceof German correspondence, I must acceptthe
translation as set out above as substantially correct. I do not,however, attach very much importance to the translation of thewords, because I think that however they are to be construed theremust have been some previous correspondence as to the. terms onwhich Brandon & Co. were to carry out Jantzen’s contracts. Itis hardly likely that Jantzen would make a proposal to a neutralmerchant in a foreign country such as is contained in the letterwithout giving him further details, if it was really intended that heshould altogether take over the contract with its attendant liabilities.
The further correspondence is to the effect that Brandon & Co.are to take over the contract between Jantzen and Lubbe & Hascheand the contract between Jantzen and the Chetty firm. Lubbe &Hasche agree to send the first consignment to Colombo on the termsthat they are to be paid by Brandon & Co. if and when the Chettyfirm pays, and the other parcels are for Brandon & Co.'s account,
" if ", as expressed in Brandon & Co.'s letter to Lubbe & Hasche ofOctober 13, 1914, " Colombo consents to our taking over the con-tract Jantzen agrees to guarantee .to the Chetty firm the correctexecution of the order, and the increased premium in respect ofwar risks appears to have been left over for arrangements betweenJantzen and the Chetty firm.
The method of payment to Lubbe & Hasche for the goods issomewhat illuminative. Had this been a bona fide purchase. ofgoods by a Dutch firm from an Italian firm, one would have expecteda draft to have been sent from Holland payable in Italy, whereaswe find that payment was by a .transfer in German money at theDeutche Bank in Berlin. From what account the transfer wasmade does not clearly appear in the correspondence before theCourt.
I am not satisfied by the correspondence and the affidavit ofJ. D. Westenburg that there was ever any bone, fide transfer of thecontracts or of the ownerships of the goods from Jantzen to Brandon& Co., and I believe that it was merely an arrangement betweenthe German firm in Hamburg and the two firms of German mer-chants established in neutral countries, whereby Brandon A Co.were " handling Jantzen’s business in their name ” for the purposeof avoiding the appearance of enemy trading.
I find that the goods are the property of Jantzen, and are enemygoods.
( 1OT )
The other question^* that arise in the case are questions of law.It is contended on behalf of the claimants that the goods nothaving been seized afloat they cannot be condemned as prize; andthat even if goods can be followed and seized on shore, the ■ goodsin the present case were still under the protection of the neutralflag of the ships that brought them to the port., Both these pointsI flnd against the claimants.
So soon as these goods were landed and placed in the warehouse,orders were given by the Customs for their detention. It doesnot appear that this was expressed to be a seizure as prize, but theCustoms is the proper authority to seize and detain, with a view toits condemnation as prize, any enemy property found in the. port,and the orders for detention were clearly made on the ground thatthe goods were enemy property. This point, however, seems to beof no importance, as the goods were formally seized as prize onOctober 18, before their removal from the warehouse.
In the case of the “ Roumanian petroleum, the property of aGerman Company, was shipped in an English vessel at a neutralport, before the outbreak of hostilities, bound for Hamburg. Thevessel was diverted by her owners, after the declaration of war,into an English port, and the oil was pumped by them intotanks on shore which were under the control of the Customs,it was then placed under detention by the Customs, and finallyformally seized as prize. The Privy Council held that the oil wasproperly seized as prize, although not afloat at the time of seizure.The case is not on all fours with the present, because the oil inthat case was brought into port by an English ship, and had atall times on the voyage been liable to seizure as prize, and it wason that ground that the Privy Council actually decided the case.The case, however, shows that the mere fact that the goods seizedwere not afloat at the time of seizure does not prevent the PrizeCourt having jurisdiction to condemn the goods as prize so longas they are still within an English port, and their Lordships statedin their judgment that they saw no reason to dissent from the judg-ment of the President of the Admiralty Division to the effect thatthe tanks constituted part of the port of London for the purpose ofapplying the rule relating to the liability to seizure of enemy's goodsin the ports and harbours of the realm.
This case was followed by the President of the Admiralty Divisionin England in the case of the “ Eden Hall ” 2 In that case enemygoods had. prior to outbreak of war, been landed in an English portand placed in a Customs warehouse in the port, and were seized inthe warehouse after war broke out. The goods were held liable toseizure upon the ground that they were in port in a warehousebelonging to the port, and were therefore the proper subject ofmaritime prize.
1 (J9J6) A. r. 124.2 2 Br. S Col., Prize Cases. Pi. 6. f. */.
1916.
Shaw A.C.J.and F.
The 88.
“ Dandolo ”and the 88.“ Caboto ”
( 168 )
1916. On the strength of these authorities, I hold that the goods in theShaw A.C.J. present case had not become immune from seizure because theyhad been landed and placed in the Customs warehouse in the portThe as. of Colombo.
"Dandolo ” With regard to the second point. Prior to the Declaration offf&S.-?: Paris, England had always asserted the right to seize enemy goodson the seas wherever 'they were found, and whether in neutral shipsor not. By the Convention England gave up part of the right shehad formally insisted on, and agreed that in the future the neutralflag should cover enemy’s goods, with the exception of contraband.This was a concession, not to the enemy, but to neutrals, and thepreamble to the Declaration shows that it was for the purpose ofinternational comity, and for the purpose of avoiding disputesbetween the belligerents and neutral states that the rule was made.The protection of the neutral flag, in my opinion, can only extendto protect enemy goods when actually under that flag, and if theyhave been freely parted with by the neutral ship and are afterwardsseized, either afloat or ashore, on the high seas or in an English port,they are liable to condemnation as prize. In the present case theymight have been seized as soon as they were transhipped into theEnglish lighters, and they remained liable to seizure as long as theyremained in the Customs warehouse in port.
The goods being, in my opinion, enemy’s goods, and lawfully seizedas prize, must be condemned. I order accordingly.
[His Lordship made an order for the sale of the goods pendingappeal. The Attorney-General offered to deposit the money in•Court.]