Opinion Number. 583

Subject

TRADING WITH THE ENEMY
NEUTRAL VESSEL TRADING BETWEEN BELLIGERENTS: STATUS OF OCCUPIED TERRITORY: WHETHER CARGO IS ENEMY PROPERTY LIABLE TO CONDEMNATION

Key Legislation

DECLARATION OF PARIS (1856) RESPECTING MARITIME LAW, els 2, 3

Date
Client
The Comptroller-General of Customs

Authority on the effect of occupation upon the national character of territory is conflicting, and there is weighty authority that Jaluit has not even now lost its enemy character (see Pitt Cobbett, 3rd edn p. 32).

But assuming that the national character is affected, the Remonstrant shipped the goods at what was then an enemy port and is now conveying the goods to one British port and has in fact conveyed them to the British port of Sydney. This at once distinguished it from The Abby 1 Rose. P.C. 464, where the voyage began before the outbreak of war, so that there was nothing wrong in the inception of the adventure.

The case of The Trende Sostre 1 Rose. P.C. 588 is more to the point. Here, the character of contraband was held not to attach to goods where the destination had during the voyage become British. The main reason for this-that the changed conditions of the place had deprived the goods of their dangerous character-does not apply very clearly to the present circumstances.

But even if the position is as Mr Russell, on behalf of Justus Scharff, contends, we have the statement in Justus ScharfFs letter of October 4th that the cargo is the property of the Jaluit Gesellschaft, Hamburg, and that in dealing with the cargo he is the agent of this German Company. Here then is an attempt on the part of 'an enemy', as denned by the Proclamation, to trade with Great Britain and her possessions, and the property is enemy property actually brought into a British port and destined for a further British port. The Declaration of Paris does not in my opinion authorise German traders to trade with the British Dominions by means of the neutral ship and enemy property so engaged is as much liable to condemnation as before the Declaration. Further, if any person in the British Dominions makes contracts on behalf of such an enemy he is subject to the penalties against trading with the enemy.

It is I understand now suggested that the Jaluit business of the Jaluit Gesellschaft is a 'branch business' within the meaning of the Proclamation, and is therefore divested of an enemy character. We have no particular information of the relations between Hamburg and Jaluit, but there is nothing to suggest that the Jaluit house is anything more than the means whereby the main business of the Company is carried on. This would not, in my opinion, entitle it to the privilege assigned to a branch business by the Proclamation. If it appears desirable that this business should be carried on, a licence should be obtained for it.

So far then as concerns the cargo of 14184 bags copra in the Norwegian barque Remonstrant, shipped at Jaluit on October 21st last, the property of the Jaluit Gesellschaft, Hamburg, and consigned to Justus Scharff Ltd, at Sydney, agents for the Gessellschaft, I advise that it is liable to condemnation in the Prize Court.(1)

[Vol.13, p. 135]

(1)In forwarding this openion Mr. Garran,Secretary,Attorney-General's Department, stated [Vol.13,p.134]:

'This case, as will be seen from the copy of Professor Harrison Moore's further openion herewith,involves difficult questions--(1) as to the effect of the occupation of jaluit; (2) as to the meaning of "a branch" in paragraph 5(6) of the Trading with the Enemy Proclamation No.2; and 3; as to the application of the Declaration of Paris.

My own view is that, by reason of the british occupation of jaluit before the arrival of the goods in Australia, they are not obtained ot coming from "an enemy", within the meaning of paragraph 5(7) of the proclamation;and I accordingly agree with Professor Moore that they are liable to condemnation in a Prize Court.

I do not think that the papers disclose a case for proceeding against the ship, or the master, or against justus Schariff'.

See Preface.