as soon as made out on his accepting the draft to be tendered with it for his acceptance. If the clause as to part loading, which is in the present case, had been in that contract, the purchaser would have had both property and risk in the part on board. In cases such as that was, and such as this is, as soon as a full cargo has been shipped, the particular bags on board become ipso facto the cargo of the ship, and thereby become the subject-matter which has been agreed to be sold. The seller's representatives here were clearly authorised to select the particular bags of the description in the contract which were to go on board. No question arises here of the description and quality, as the certificates and analysis, when tendered, were accepted, a small rebate being made in respect of a slight variation which appears to have been justified. by the contract; at any rate, it was not objected to. The shipment, under such circumstances, seems such an unqualified and decisive appropriation that it would require something very clear and express in the way of a reservation to make the appropriation a conditional one. The English cases, however, on which the Sale of Goods Act, 1893, was founded, seem to shew that the appropriation would not be such as to pass the property if it appears or can be inferred that there was no actual intention to pass it. If the seller takes the bill of lading to his own order, and parts with it to a third person, not the buyer, and that third person, by possession of the bill of lading, gets the goods, the buyer is held not to have the property so as to enable him to recover from the third party, notwithstanding that the act of the seller was a clear breach of the contract-WAIT v. BAKER [1848] (17 L. J. Ex. 307; 2 Ex. 1) and GABARRON V. KREEFT [1875] (44 L. J. Ex. 238; L. R. 10 Ex. 274). This seems to be because the seller's conduct is inconsistent with any intention to pass the property to the buyer by means of the contract followed by the appropriation. On the other hand, if the seller deals with the bill of lading only to secure the contract price, and not with the intention of withdrawing the goods from the contract, he does nothing inconsistent with an intention to pass the property, and therefore the property may pass either forthwith subject to the seller's lien or conditionally on performance by the buyer of his part of the contract—MIRABITA v. IMPERIAL OTTOMAN BANK [1878] (47 L. J. Q. B. 418; 3 Ex. D. 164), VAN CASTEELL v. BOOKER [1848] (18 L. J. Ex. 9; 2 Ex. 691), Browne v. HARE [1858] (27 L. J. 32

P.C.C.

Ex. 372; 3 H. & N. 484), and JOYCE V. SWANN [1864] (17 C. B. (N.s.) 84). The prima facie presumption in such a case appears to be that the property is to pass only on the performance by the buyer of his part of the contract, and not forthwith subject to the seller's lien. Inasmuch, however, as the object to be attained-—namely, securing the contract price-may be attained by the seller merely reserving a lien, the inference that the property is to pass on the performance of a condition only is necessarily somewhat weak, and may be rebutted by the other circumstances of the case.

Having regard to the doctrine that the master of a ship who gives to the shipper of goods a bill of lading becomes bailee of the goods for the person indicated by the bill of lading, a seller holding a bill of lading to his order would have a sufficient possession of the goods to maintain his lien, even if he had on shipment parted with the property. The seller in such a case. makes the ship, even if it belongs to the buyer or is chartered by him, his warehouse, so far as these goods are concerned; and the case, as pointed out by Chief Baron Pollock in BROWNE v. HARE (27 L. J. Ex. 372; 3 H. & N. 484), is to be governed by the same rules as that of a person contracting to buy goods in a warehouse of the seller, where they are to remain until paid for, so that the seller retains a lien. They may or may not become the buyer's property before he pays for them, according to the terms of the contract. The question whether, assuming the appropriation by shipment of the cargo to be unconditional, the property passed then, or only on notification of the appropriation, to the buyers is not material in the present case, as on September 9 by the bills of lading, and on October 19 by the invoice, there was before the capture clear notification. The learned President, in his judgment, put out of consideration the events of September 9 and October 19 on the ground that they took place after the outbreak of war; but in so doing he seems to have overlooked his own decision in THE SOUTHFIELD [1914] (1 P. Cas. 332; 85 L. J. P. 78; [1917] A. C. 390n.), and that of this Board, to which he was a party, in THE DAKSA [1917] (ante, p. 358; 86 L. J. P. C. 130; [1917] A. C. 386), to the effect that acts done after the outbreak of war are not invalidated when done in pursuance of obligations incurred before the war.

Their Lordships have come to the conclusion, after carefully considering all the facts, that it was the intention of the parties

to the contract that the property in the cargo should pass to the buyer upon shipment, but that the buyer was not intended to have possession of the cargo, or of the bills of lading which represented the cargo, until actual payment at due date of the purchase price. With the exception of the form of the bills of lading, everything points to this conclusion. The contract is for the sale of the whole cargo of a named ship. On shipment, or, at any rate, on notification of shipment, the cargo is at the risk of the buyer, who has to pay for it, whether it arrives or not. The cargo is to be insured for buyer's account and benefit, and insured at its arrived value, including profit, which the buyer alone could make. The buyer takes over the charterparty, and names the port of discharge. The only matter which seems to point to an intention not to pass the property on shipment is the form in which the bills of lading were taken. But this form was determined by the seller's agent without knowledge of the contract, and, although it may have been determined on general instructions from his principal, without particular instructions given in view of the particular contract. The way in which the seller subsequently deals with the bills of lading points rather to a desire to support his lien than to a desire to retain the property, or any jus disponendi incident to the property. As soon as the bills of lading arrive in Europe, he places them at the buyer's disposal, subject only to payment of the purchase price at due date. As soon as this is done, he loses the possibility of withdrawing them from the contract, even if otherwise he could have done so. Under these circumstances the form of the bills of lading is, in their Lordships' opinion, quite insufficient to displace the strong inference of an intention to pass the property on shipment arising from the terms of the contract and the other facts.

It remains only to deal with the question of insurance, as to which a point was rather hinted at than seriously pressed in the argument. The appellants no doubt consented to take the risk which they did on this contract, because they were to be insured against (inter alia) war risks. The appellants may have been entitled to recover on the policy; but as the policy itself is not in evidence, but only the contract for it, their Lordships cannot be certain of this. It may be that the appellants have been paid by the underwriters, who are said to have been Germans; but there is no proof of the payment. No question was asked about it of the

witness who gave evidence for the appellant at the trial. Possibly counsel considered that Prize Courts are not concerned with questions of insurance, because insurances are collateral contracts not affecting the property in goods.

It may be that, had it been proved in fact that the appellants had been paid by the insurers, and that the appeal was being prosecuted for the benefit of the insurers, who were enemies, a further question would have arisen; but there is no such proof, and their Lordships express no opinion on this point.

Their Lordships will therefore humbly advise His Majesty that this appeal should be allowed with costs, and that the cargo be released to the appellants.

Appeal allowed.

Solicitors-Stokes & Stokes, for appellants; Treasury Solicitor, for

respondent.

[Reported by C. E. Malden, Esq., Barrister-at-Law.

[ADMIRALTY. IN PRIZE.]

SIR SAMUEL EVANS (THE PRESIDENT).

April 17. May 7, 8. June 6, 1917.

THE RIJN.

Cargo-Conditional Contraband-Transhipment from Enemy into Neutral Vessel after War-Named Neutral Consignee-Enemy Ultimate Destination-Declaration of London Order in Council, No. 2, of October 29, 1914-Declaration of London, 1909, arts. 35, 43.

Prior to the war a neutral firm in Ecuador shipped a cargo of cocoa beans on board the German steamship "Assuan" for delivery in Germany. On the outbreak of hostilities the “Assuan" took refuge at Las Palmas, where, after considerable delay, the cargo was transhipped to the Dutch steamship “Rijn,” and, according to the bills of lading then made out, consigned to a neutral firm in Holland. On March 23, 1915, at about 4 P.M.. the "Rijn" sailed from Las Palmas for the Hook of Holland for orders; and on April 6, the ship having been intercepted and sent into Portsmouth by a British cruiser, the cargo was there seized as contraband destined for an enemy base of supply. Foodstuffs were declared conditional contraband by a Proclamation of August 4, 1914, but in November, 1914, the Government at the Hague were given by the British Foreign Office a list of foodstuffs. which would be dealt with as conditional contraband. This list, which did not include cocoa beans, was not, however, sent to Spain; and about March 22, 1915, the British Government informed the Dutch authorities that Great Britain would give the Proclamation of August 4, 1914, its full effect as regards foodstuffs. The cocoa beans were claimed by the consignees in Holland, who contended that the goods were not in the circumstances contraband; that the facts did not shew the destination of the goods to be Germany; and that as the goods were consigned to named consignees in a neutral port, they were within the protection of clause 1 (iii.) of the Order in Council, No. 2, of October 29, 1914, modifying the Declaration of London, and could only be condemned, if at all, on payment of compensation :—Held,