224 F. 188 | E.D.N.Y | 1915
(after stating the-facts as above). It appears from the foregoing statement that drafts given by the Austrian respondent for coal supplied before the outbreak of war by the British libelant, payable at the Laenderbank, London, were not paid when due because the respondent had not forwarded the funds to pay them. The reason given by the respondent for its failure to supply the funds was that the state of -war which had intervened made it impossible for the respondent to perform an obligation calling for payment to an alien enemy. The embargo imposed by Sir Wiíliam Plender, the controller in charge of the Laenderbank, upon the payment of funds by the bank, may be put aside. The respondent had not supplied the bank with funds.. Moreover, the-libelant is not suing upon the drafts; when the libel was filed,' only 6 of the 14 drafts’.had in fact become due. The libelant sues upon- the original debt arising out of its performance of the contract.
1 pass over various points argued by counsel to consider an issue which lies at the foundation of the case. The respondent contends that this court, as a court of a neutral nation, should not exercise its -jurisdictional power between alien belligerents to require an act prohibited alike by the municipal law of both belligerents; i. e., the transfer, by process of judgment and execution, of funds'from one alien belligerent to the other. The status of a debt due from one belligerent to another is said to be that of property in the debtor’s enemy country, and a neutral court may not disregard the state of war, and by judicial action compulsorily change that status into a payable one. In other words, to take cognizance of this case would be a breach of neutrality.
To' this argument the libelant replies that the contract made between the parties specified the place of performance, and it is necessary to consider only whether such performance by the respondent is legal according to the law of that place. And whether that place be Algiers or Rondon, it is clear that, even after the outbreak of war, it wa's lawful for the libelant to receive, and for their alien enemy debtor to pay them, there the amount due; and if jurisdiction were obtainable there over the respondent the obligation could be enforced there by legal action. Whether such performance would involve a breach of Austrian law is immaterial to this inquiry, since Austria was not the place of payment, and its law does not govern its legality. So far as neutrality is concerned, how can it be a breach of neutrality for this court to decide controversies in accordance with the settled principles of maritime law, when regularly, presented to it in accordance with recognized admiralty procedure? How can such enforcement here of legal rights between all belligerent subjects, irrespective of their enemy status abroad, be said to infringe that attitude of impartiality which lies at the foundation of neutrality?
When this libel was filed Great Britain and Austria-Hungary were at war. This fact affected materially the relations of the parties. The outbreak of war brings about ipso facto a radical change in the relations of noncombatant subjects as well as of the public armed forces of the belligerent states. Although numerous mitigations have blunted the severity of the old doctrine that a state of war placed the general population of the opposing nations in a condition of active hostility, the subjects of enemy states are still, to a very considerable extent, regarded as enemies. Noncombatants are, or usually have been, in modern'times, exempt from most of the severities of warfare; but they are by no means free to act as if no war existed.
Where, therefore, such a contract has been entered into with an alien enemy before the outbreak of war, and has been performed on his side, the war merely suspends his remedy; in other words, he cannot sue upon it during the. existence of hostilities. If, on the other hand, performance of the contract is on the side of the other party, he can enforce the contract (particularly such as require for
This is the municipal law of England. Porter v. Freundenburg, 31 Times Law Repts. 163 (Jan. 19, 1915); Robinson v. Continental Insurance Company of Mannheim, [1915] 1 K. B. 155; Ingle v. Same, 84 L. J. K. B. 491; Leader, Plunkett & Leader v. Direction der Disconto Gesellschaft, 31 Times Law Repts. 63; Continental Tyre & Rubber Co., Ltd., v. Daimler Motor Co., Ltd., Id. 178; In re Mary, Duchess of Sutherland, Id. 248; Thurn and Taxis (Princess) v. Moffitt, 84 L. J. Ch. 220; Janson v. Driefontein Consolidated Mines, Ltd., [1902] A. C. 484; Alcinois v. Nigrew, 4 E. & B. 217; Le Bret v. Papillon, 4 East, 502; The Hoop, 1 Chr. Rob. 196; Ex parte Boussmaker, 13 Vesey, Jr. 71; Albrecht v. Sussman, 2 Ves. & B. 323. It is also the law of this country. McVeigh v. United States, 11 Wall. 259, 20 L. Ed. 80; Hanger v. Abbott, 6 Wall. 532, 18 L. Ed. 939; The Julia, 8 Cranch, 181, 3 L. Ed. 528; United States v. Lane, 8 Wall. 185, 19 L. Ed. 445; Briggs v. United States, 143 U. S. 346, 12 Sup. Ct. 391, 36 L. Ed. 180; Kershaw v. Kelsey, 100 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142; Griswold v. Waddington, 15 Johns. 57; Whelan v. Cook, 29 Md. 12. And in the absence of proof of the foreign law, it may be taken to be the law of Austria-Hungary and of Prance. It is in fact the law common to all nations, since it is merely a formulation of the instinct of self-defense. The apparently contradictory provision of the Hague Convention of 1907 Concerning the Laws and Customs of War on Land, art. 23 (h), whereby it is forbidden to declare extinguished, suspended, or unenforceable in a court of law the rights and rights of action of the nationals of the adverse party, has been construed by the English Court of Appeal to mean, in accordance with its context, merely that the military commander of a belligerent force in the occupation of the enemy’s territory is forbidden to make any declaration preventing the inhabitants from using their courts to assert their civil rights. - Porter v. Ereundenburg, 31 Times Law Repts. 163. The proclamations and orders in evidence are therefore merely declaratory of the common law.
The libel is dismissed without prejudice.