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pose the substance of each case, and with great care not to attribute more weight to any particular fact than what it justly demands."
The nature and sufficiency of the evidence required to show good faith importation into a country was first considered in the case of the Polly,24 an American ship seized while on the voyage from the neutral port of Marblehead to a belligerent port of Spain. The goods had been brought from the port of Havana in a Spanish colony in the same vessel and on account of the same owners and had been landed at Marblehead while the ship was undergoing repairs. The duties had been paid to the United States but the captors contended that these facts were not sufficient to break the continuity of the voyage from Havana to Spain. To this Sir William Scott replied that an American had an undoubted right to import the produce of the Spanish colonies for his own use into his own country, and after he had imported it in good faith was at liberty to carry it on to the general commerce of Europe. Answering the contention that the landing of the goods and the payment of the duties were not sufficient evidence of good faith, the learned judge said:
If these criteria are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold that it would be sufficient that the goods should be landed and the duties paid.
The evidence was held sufficient to show bona fide the importation and the cargo and the vessel were restored to the owners.
The American merchants understood from this decision that the landing of the goods and the payment of the duties at the neutral port would be accepted by the English prize courts as conclusive evidence that the continuity of the voyage had been broken. In reliance upon this understanding they engaged largely in the trade with the Spanish and French colonies and evidently treated the proceedings in the neutral port as a mere formality which imposed expense and trouble but did not otherwise interfere with the trade. Their point of view was radically different from that of the British government. They considered the trade as legitimate and the requirement of importation into a neutral port as a restriction wrongfully imposed by Great Britain. The British, on the other hand, regarded the trade as illegal and the attempt of the American traders to engage in it as improper and in both instances fraudulent. Upon this theory the attempt to carry the products of the colonies from a colonial port to the mother country was illegal and their passage through a neutral port by compliance with the mere forms of importation was a fraudulent attempt to do by indirection what was forbidden to be done directly.
24 The Polly, 2 C. Rob. 361 (1800).
In December, 1805, the lords of appeal held in the Essex,25 that while the landing of the goods and the payment of the duties was evidence of importation it was not conclusive evidence; that the original intention of the importer to transship and export the colonial produce was the test of the continuity of the voyage and that this intention was to be ascertained from all the attending circumstances. Among these the landing of the goods and the payment of the duties had great probative value, but like other facts they might be merely colorable and designed to give a false appearance of importation where none was in fact intended. This decision struck a fatal blow at American commerce and it was freely charged that a deliberate trap had been laid into which American vessels had been induced to enter under the belief that they were protected upon compliance with the requirements of the decision rendered five years before in the case of the Polly. In the famous case of the William,20 Sir William Grant, in delivering the opinion of the court of appeals, reviewed the former cases and proceeded to show that the Americans had no just ground for assuming that the court had held that the landing of the goods and the payment of the duties would be accepted as conclusive evidence of good faith importation into the country. There is no doubt but that many American merchants had entered upon this trade in good faith reliance
25 The Essex, 5 C. Rob. 369 (1805); Duer, Mar. Ins., vol. i, p. 726.
28 The William, 5 C. Rob. 395 (1806); Scott's Cas. 848. See also the statement of the doctrine in the Thomyris, Edwards 17. The cases in which the doctrine was applied are reviewed in Wildman's Int. Law, vol. 2, p. 65, et seq. In the Bermuda, 3 Wall (U. S.),514,554, Chief Justice Chase said that Sir William Grant in the William established the rule which has never been shaken that even the landing of goods and payment of duties does not interrupt the continuity of the voyage of the cargo, unless there be an honest intention to bring them into the common stock of the country. If there be an intention formed either at the time of the original shipment or afterward to send the goods forward to an unlawful destination the continuity of the voyage will not be broken as to the cargo by any transaction at the intermediate port. See also Opinions of the Attorneys-General of the U. S., vol. i, pp. 359-362, 394-396. Atty. Gen. Wirt, while condemning the rule, approves as just in the abstract, the English principle of the continuity of voyages.
upon their consrtuction of the earlier decision. But it is clear that there was nothing in the decision which was inconsistent with the rule applied in the case of the William.
In the course of the opinion in the William, Sir William Grant said that the act of shifting the cargo from the ship to the shore and from the shore back to the ship did not necessarily amount to the termination of the voyage and the commencement of another. It might be wholly unconnected with any importation in the place where it was done. Suppose the landing to be merely for the purpose of airing or drying the goods or of repairing the ship, would any one think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process? Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading and that he lands the cargo purely and solely for the purpose to affirm that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact? Would not the real voyage still be from the place of the original shipment notwithstanding the attempt to give it the appearance of having begun from a different place? The truth may not always be discernible but when it is discovered it is according to the truth and not according to the fiction that we are to give the transaction its character and denomination. If the voyage from the place of lading be not really ended it matters not by what acts the party may have evinced his desire of making it appear to have ended. That these acts have been attended with trouble and expense cannot alter their effect. The trouble and expense may weigh as circumstances of evidence to show the purpose for which the acts were done but if the evasive purpose is admitted or proved a court can never be bound to accept as a substitute for the observance of the law the means which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended and the colorable importation which is to give it the appearance of being ended, there must necessarily be great resemblance. The acts to be done must be almost entirely the same but there is this difference between them. The landing of the cargo, the entry at the custom house and the payment of such duties as the law of the place requires, are necessary ingredients in a genuine importation; the true purpose of
the owner cannot be effected without them. But in a fictitious importation they are mere voluntary ceremonies which have no natural connection with the purpose of sending on the cargo to another market and which, therefore, would never be resorted to by a person entertaining that purpose except with the view of giving to the voyage which he had resolved to continue, the appearance of being broken by an importation which he has resolved not really to make.
As the American merchants were frequently attempting to evade the rule which forbade them to engage in this trade it was inevitable that the application of this doctrine should often result in the condemnation of their property. Reading the decisions of the English prize courts more than a century after the passions of the time have subsided, it must be conceded that the law was usually applied with reasonable fairness and judicial discrimination. But as the American merchants never admitted the validity of the rule which forbade them to engage in the trade they naturally never acquiesced in the correctness and justice of the decisions.
The theory of continuous voyages was thus developed and first applied in cases which grew out of the attempts of neutrals to engage in a trade which had been closed to them in time of peace and which was therefore forbidden in time of war. But no good reason has ever been given why the principle was not applicable to any voyage undertaken in violation of law. The theory is applicable when the object which the neutral is seeking to accomplish is forbidden. When it is attempted by resorting to several short voyages extending to the aggregate from A to C to carry goods from A to C which the law forbids to be carried from A to C, the several nominal voyages are treated in law as one continuous voyage from the port of departure to the port of ulterior destination. In the eye of the law, the entity is the chain and not one of the links of which it is composed. The different stages are fused into one voyage, the links of the chain are united and called a chain instead of a number of links. The ships were captured after they sailed from the neutral toward the belligerent port. But the British courts made the intention of the trader, when he left the initial belligerent port, manifested by the act of sailing and evidenced by the subsequent conduct, the test of the legality of the voyage. If the intention was to go to the neutral port B and there deposit the cargo so that it would be incorporated with the goods of the neutral country, well and good. But if the intention was to go to C for the market and realizing that if this fact was known the goods would be liable to capture from the time of leaving A, he went by way of B for the purpose of concealing the fact that the true destination from the first was C, the voyage was illegal from the first and the goods subject to capture notwithstanding the observance of certain formulae at the intermediate neutral port. If the doctrine itself is sound it applies to any voyage from A to C undertaken for a prohibited purpose. The early cases decided by the English courts dealt with attempts to engage in a prohibited colonial trade, but there is no reason for assuming that it would not have been applied to any other illegal trade. In fact, the case of the Eagle, decided May 10, 1803, shows that Sir William Scott regarded the doctrine as applicable to the carriage of contraband goods. In the case of the William, Sir William Grant refers to the case of the Eagle with approval. The cargo of the Eagle was brought from Bilboa to Philadelphia, where it was landed and after being reloaded in the same ship, was proceeding to Havana. The condemnation in the court below proceeded on the ground that the cargo was contraband of war.
The only question in the court of appeals was with regard to the continuity of the voyage. From Sir William Grant's comment on the case there can be no doubt that he as well as Lord Stowell regarded the doctrine of the continuity of voyages as applicable to vessels engaged in carrying contraband goods. Lord Stowell'sstatement in the Imina, 27 that a vessel carrying contraband can only be captured while "in the actual prosecution of a voyage to an enemy's port," is often cited as proof that he did not consider the doctrine of continuous voyages applicable to the carriage of contraband. But this is a matter of the meaning of words. Under the doctrine of the continuity of voyages there can be no condemnation unless it is proven that the ship is engaged in a similated voyage to the neutral and an actual voyage to a belligerent port. Professor Westlake notes that Lord Stowell is sometimes quoted as if in the case of the Imina, he had condemned the application of a corresponding principle to the carriage of contraband of war. What, however, he said, namely, that the contraband goods must be taken, “in the actual prosecution" of the voyage to the enemy's port, was said with reference to the point that the proceeds cannot be taken
The Imina, 3 C. Rob. 167; Scott's Cas. 776.