Imágenes de páginas
PDF
EPUB

duration. These articles were signed on May 21, 1914. An allotment note was issued in favour of the present plaintiff for a monthly payment of £4. 15s.

In my view the first question to be decided is whether or not, and at what date, the performance of this contract of service became impossible, which means impracticable in a commercial sense. It was at first possible that she might be released in accordance with a practice which has been common in former wars and is recommended, though not required, by the Hague Convention.

But the removal of the crew from their ship and their imprisonment elsewhere, and the lapse of time, made it clear that whatever hope there may have been of restoration could no longer be entertained. Looking back upon what happened, we may think that there never was any hope. Or we may think that there was a period of suspense during which it was not determined whether there should be, in accordance with common practice, a release on both sides of ships so situated. There is hardly anything to help us, except the fact that the men were detained on their own ship till November 2. On the whole it seems to me that there was a period of suspense, and, judging as best I can, I take November 2 as the date. It is a surmise, but the opposite view also is a surmise on what is a question of fact.

Assuming this to be so, does that impossibility of performance dissolve the contract of service and disentitle the seaman to wage from that time onwards? The law, both as it is found in the statute book and as it has been administered in Admiralty Courts, has always been in some respects peculiarly tender and benevolent towards seamen in regard to their contracts of service, though in earlier days with a notable exception embodied in the maxim that freight is the mother of wages. That was a cruel exception, which has been removed now by Act of Parliament. Yet it has always to be remembered in scrutinizing the older decisions, because what prevented freight from being earned might prevent wages from being recoverable.

Is there, then, either in any Act of Parliament or in admiralty law, any rule which prescribes the effect of such a detention by the enemy as makes the performance of a contract of service impossible? There is no proof of condemnation by a Court.

We were referred to section 158 of the Merchant Shipping Act. That section tells us what is to be done in regard to wages if there is a wreck or loss of the ship. In my opinion these words refer to physical loss. It is true that a ship is lost to her owner in a real sense when she has been captured and condemned by a competent Court. It was argued that she may be actually lost to her owner by a prolonged detention. But if I am right in thinking that both the words used in this section, namely, "wreck" and "loss," refer to the ship herself and to her physical condition, then they have no bearing on this case. I will merely add that the Court of Appeal in The Olympic, [1913] P. 92, did not decide anything inconsistent with this view. They merely used the frustration of the voyage as a test by which to

MIL.L.-21

determine whether or not the physical injury inflicted amounted to "wreck."

Coming to the law as administered in admiralty, three cases were cited with a view of showing that prolonged detention of a ship and its crew by a foreign Power did not dissolve a seaman's contract of service. Two of these authorities are in 4 East, namely, Beale v. Thompson, 4 East, 546, 1 Dow, 299, and Pratt v. Cuff, 4 East, 43, the former of which was affirmed in this House more than a hundred years ago, but there is no record to show on what grounds. The third is a case at nisi prius, Delamainer v. Winteringham, 4 Camp. 186. They are cases in which ships and crews were confined for a long time but were ultimately released, and the interrupted voyage completed so as to earn freight and therefore wages. It was held that wages continued to be payable throughout. This could be supported, and was supported in the judgments, on the ground that both employers and employed treated the service as not terminated by the temporary interruption, though there are passages in the judgments which admit of a broader interpretation. There is no distinct authority for the proposition that if a seaman is willing to fulfil his contract he is still entitled to wages, though the performance of it has been made impracticable on both sides by a prolonged captivity. Accordingly neither statute nor admiralty law provides special guidance, and I must recur to the common law. The contract was for service on a ship for a voyage within a period of two years. Both ship and crew were forcibly detained; the contemplated service became impracticable, so far as I can judge, on November 2, 1914. Had the ship and crew been released on November 2, I do not think common law would have treated the contract of service as ended, and I do not think the chance of her release was ended before November 2.

In my opinion, neither party was any longer bound by that contract from that date. If they were bound, it must mean that wages were to be paid, without any service in return, for the entire duraton of this war, or, in the present case, till the expiry of two years from the commencement of the service. The Napoleonic war after the rupture of the Peace of Amiens lasted for eleven years. I think it was an implied term of this service, subject to any special law affecting seaman, that it should be practicable for the ship to sail on this voyage, in that sense which disregards minor interruptions and takes notice only of what substantially ends the possibility of the service contemplated being fulfilled. Both employer and employed made their bargain on the footing that, whatever temporary interruption might supervene, the ship and crew would be available to carry out the adventure.

Accordingly I think that the appeal should be allowed in respect of the period after November 2. I learned with satisfaction that provision is to be made for cases of this kind from public funds. It cannot, of course, affect the decision of a court of law, but it is in accordance with the spirit which has always influenced both courts of law and the Legislature in dealing with a deserving class of men. The shipowners in this case have brought it before the Courts in

order to settle the law, which has been in doubt, and are not open to any reflection.

* * *

[Additional opinions were rendered by Lords ATKINSON, SHAW, PARMOOR and WRENBURY.]

7. TINGLEY v. MÜLLER.

(Court of Appeals. [1917] 2 Ch. 144.)

The defendant, a German by birth but for many years resident in England, although never naturalized, being about to proceed to Germany, executed a power of attorney on May 20, 1915, by which he appointed his solicitor his attorney to sell his leasehold house and to execute such transfers and deeds as were necessary. The power of attorney was made irrevocable for twelve months. On May 26 the defendant obtained a Government permit from the police to travel to Tilbury with the object of embarking for Germany by way of Flushing, and started on that day. On June 2, 1915, the leasehold premises were sold to the plaintiff by public auction, and a deposit was paid and an agreement signed by him.

* * *

There was no evidence as to the date when the defendant reached Germany, but it was on some date between May 26 and June 11, 1915. At this latter date it appeared from letters received by his solicitors that he was then resident in Hamburg.

On the plaintiff learning from the answers to requisitions on title. that the defendant was a German by birth, and then (as the plaintiff alleged) voluntarily resident in Germany, he refused to proceed with the contract of sale on the ground that it was a transaction prohibited by the Trading with the Enemy Acts, 1914, and at common law. He further claimed a return of the deposit of £100. and the costs of investigating the title.

The defendant by his defence pleaded that the sale was binding on the plaintiff, that he had been ordered by the British Government. to leave England, and did not admit that at the date of the agreement. he had been, or now was, voluntarily or otherwise resident in Germany, or an alien enemy. He expressed his willingness that the moneys payable to him under the agreement should be paid to and received by the Public Trustee as custodian under the Trading with the Enemy Acts, 1914 to 1916, or otherwise dealt with as the Court might direct. The defendant also thereby offered to consent to any order under the Trustee Act, 1893, or otherwise, vesting the premises in the plaintiff which might be necessary or advisable for the purpose of carrying the agreement into effect.

The action was tried before Eve, J., on January 17, 1917, who held that it failed and must be dismissed with costs. His Lordship said that on the facts he could not draw the inference desired by the plaintiff, and that his claim was quite misconceived. The plaintiff had not established the fact that the defendant was an alien enemy. The defendant was not an alien enemy merely by reason of his being a German by birth; it was necessary to prove that he was resident in Germany at the date of the agreement for sale. According to Por

ter v. Freudenberg, [1915] 1 K. B. 857, the true test of a person being an alien enemy was the place where he resided or carried on business. It might be that the defendant could not claim specific performance of the agreement, but in the present proceedings the plaintiff had failed to discharge the onus of proof which was upon him.

The plaintiff appealed. The appeal was heard before the full Court of Appeal on March 23, 26, 1917.

* * *

Lord COZENS-HARDY M. R. (after stating the facts). In these circumstances the purchaser claims the return of his deposit on several grounds. He contends that Müller was an alien enemy on June 2, and that therefore the contract was illegal. Eve, J., held that this fact had not been proved, and, this being the sole point raised before him, he dismissed the action. I cannot agree with this view. I think there is a presumption of fact that a man who left Tilbury on the evening of May 26 for Flushing reached Germany before June 2, and that in the absence of any other evidence a jury would be justified in finding that he did reach Germany before June 2. He was not an alien enemy while he was in England. He did not become such the noment he left our shores.

The meaning of "alien enemy" has from time to time varied. "Nationality" and "domicil" have both been treated as the critical test. The question was elaborately discussed in the full Court of Appeal in Porter v. Freudenberg, [1915] 1 K. B. 857, and it was held that neither domicil nor nationality is the true test. That decision is final so far as this Court is concerned. Residence in Germany, not merely crossing the German frontier from Holland, made him an alien enemy. Intention to reside is not sufficient. Residence implies a certain lapse of time. But, having regard to the abandonment of his British residence and to the fact that he was resident in Hamburg at least from August, if not earlier, I think it is right to hold that on June 2 Müller had become an alien enemy. The point taken before Eve J. cannot, in my opinion, be supported. This, however, by not means disposes of the case. (I only mention residence because there is no suggestion of carrying on business apart from residence.)

I attach great weight to the power of attorney of May 20. At that date it is beyond dispute that Müller was not an alien enemy. The authority conferred upon White was complete and irrevocable. Νο further "intercourse" with Müller was needed. White could not be interfered with in reference to the sale. White's position was, having regard to the provisions of the Conveyancing Acts, practically the same as if Müller had conveyed the property to White upon trust for sale. Lord Parker, in the passage to which I shall refer lower down, seems to me to assert that a trust for sale may be executed although the sole beneficiary is an alien enemy. The transaction is not a trading with the enemy within the mischief of the common law, or within the mischief of the Proclamation of September 9, 1914. Par. 3 adopts the rule in Porter v. Freudenberg, [1915] 1 K. B. 857, by stating it in a positive and also in a negative form. The expression "enemy" means any person resident or carrying on business in an enemy country, but does not include persons of enemy nationality who are neither resident nor carrying on business in the enemy country. Par. 5 (1) applies only to a payment during the continu

ance of the war. Par. 5 (9) has no application if, as I hold, the power of attorney was the only contract or obligation with or for the benefit of Müller.

But can it be said that the power of attorney was necessarily revoked when Müller became an alien enemy? I think not. It is true that most agencies, involving as they do continuous intercourse with an alien enemy, are revoked, or at least suspended. But such considerations have no bearing upon a special agency of this nature. Mr. Galbraith called our attention to a case decided in 1897 in the Supreme Court of the United States. Williams v. Paine, 169 U. S. 55, 18 Sup. Ct. 279, 42 L. Ed. 658. A power of attorney granted by an officer and his wife resident in Pennsylvania to convey land in the city of Washington was held not to be revoked by the war, in which the grantors of the power took an active part with the Confederates, but to be well executed notwithstanding the war.

It must not be forgotten that a contract for sale of land stands in a peculiar position. It is for many purposes to be regarded as an equitable conveyance. The objection taken by the purchaser is not really as to title, but only as to conveyance. Time was not of the essence of the contract. The legal estate if not got in by a deed, executed by Mr. White, as I think it might be, could probably be got in by an application under the Trustee Acts, and certainly by an appiication under the Trading with the Enemy Amendment Act, 1916, § 4. If an order were made under that section all difficulty would be removed.

The recent case in the House of Lords of Daimler Co. v. Continental Tyre and Rubber Co. (Great Britian), [1916] 2 A. C. 307, is not a direct decision upon the points raised in the present case. But I have derived great assistance from the observations of Lord Parker, [1916] 2 A. C. 347. He points out: "I see no reason why a company should not trade, merely because enemy shareholders may after the war become entitled to their proper share of the profits of such trading. I see no reason why the trustee of an English business with enemy cestuis que trust should not during the war continue to carry on the business although after the war the profits may go to persons who are now enemies, or why moneys belonging to an enemy but in the hands of a trustee in this country should not be paid into Court and invested in Government stock or other securities for the benefit of the persons entitled after the war. The contention appears to me to extend the principle on which trading with the enemy is forbidden far beyond what reason can approve or the law can warrant. In early days the King's prerogative probably extended to seizing enemy property on land as well as on sea. As to property on land, this prerogrative has long fallen into disuse. Subject to any legislation to the contrary or anything to the contrary contained in the treaty of peace when peace comes, enemy property in this country will be restored to its owners after the war just as property in enemy countries belonging to His Majesty's subjects will or ought to be restored to them after the war. In the meantime it would be lamentable if the trade of this country were fettered, businesses shut down, or money allowed to remain idle in order to prevent any possible benefit accruing thereby to enemies after peace. The prohibition against doing

« AnteriorContinuar »