The Laws of War, Affecting Commerce and ShippingThomson, H. Byerley (Henry Byerley)
History
The Laws of War, Affecting Commerce and Shipping
Thomson, H. Byerley (Henry Byerley)
Maritime law; War (International law); War, Maritime (International law)
An alien enemy, during war, drew upon a British subject resident in
England, and who had funds of the alien in his hands; the drawer then
indorsed the bill to an English-born subject, resident in the hostile
country; such a bill cannot be enforced even after the restoration of
peace, for otherwise it would enable alien enemies to take the benefit
of all their property in this country, by allowing them to pay debts
out of such funds, by the instrumentality of bills.[39]
The principle seems to be,--that it is not every bill that bears the
name of an alien enemy upon it that is void, but such bills only that
are instrumental in assisting in communication with an alien
enemy;--and a liberal application of this principle has been made use
of to open a way for English prisoners to make use of their property
at home for their support in the country of their captivity. Thus,
where one of two Englishmen, detained in France on the breaking out of
hostilities, drew in favour of the other, upon a subject here, it was
held that he might legally draw such a bill for his _subsistence_, and
that he might indorse it to an alien enemy, an inhabitant of the
hostile country; for he could not avail himself of the bill except by
negociation; and to whom could he negociate it, except to the
inhabitants of the country in which he resided?[40]
Bills, like other contracts, are only void by the policy of war; but
the law still recognizes some extent of obligation between the
parties, so that bills void in their concoction (as instruments of
trade with the enemy,) are not so far void that they may not
constitute the basis of a promise by which a party may bind himself on
the return of peace.[41]
[Sidenote: Contracts made before the War.]
On the very important question of the effect of a declaration on
Contracts with the subjects or the enemy, _entered into previous to
the War_, the rule is, that if the performance of the contract be
rendered unlawful by the Government of the country, the contract is
dissolved on both sides.[42]
Thus the contract of Affreightment is dissolved when the voyage
becomes unlawful, by the commencement of war, or the interdiction of
commerce;[43] and this whether the interdiction is complete as to the
ship, or partial as to the receiving of goods.
Similarly, if the voyage be broken up by Capture on the passage, so as
to cause a _complete defeat_ of the undertaking, the contract is
dissolved, notwithstanding a recapture.[44]
A Blockade of the port of destination, that renders the delivery of
the cargo impossible, and obliges the ship to return to its port of
destination, dissolves the contract.[45]
A temporary interruption of the voyage does not put an end to the
agreement. Embargoes, hostile blockades, and investments of the port
of departure are held to be temporary impediments only.[46]
Public-domain text, read in full here on John Shaqi.
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