Так вот, если кому вдруг понадобится голый протокол этого суда – он и есть под катом. Сведён по текстам двух книг: одна там названа, а вторая с японским названием, что-то типа «Япония в зеркале иностранной прессы», их оригинал взят из гонконгской газеты “China Mail”.
The British Year Book of International Law
Clarendon Press, 1922
Colonial Sectetary’s Office, Victoria, Hong Kong, 21st November, 1855.
Wednesday, the fourteenth day of November, 1855.
Before the Honorable John Walter Hulme, Esq., Judge.
The Greta, Thaulow, master, Prize-Transport in the Service of the Enemy.
War having, on the 28th March, 1854, been declared by Her Most Gracious Majesty the Queen of Great Britain and Ireland against the Emperor of All the Russias — the Bremen Brig Greta, having on board two hundred and seventy Russian enemies, was, together with her cargo, on the 1st of August, 1855, off the Coast of Saghalien, in Latitude 61° (or 51°?) North, Longitude 146° East, while on a voyage from the port of Simoda in Japan, to the Russian port of Ayen, as being a Transport in the service of Enemy, and consequently a lawful prize to Her Majesty, and brought into the Vice-Admiralty Prize Court of Hong Kong to be adjudicated upon accordingly. The usual Monition having been issued, a claim to the ship was put in by Lieutenant Thaulow, the master, on behalf of Captain Laun , a Bremen subject, as owner; a claim to the cargo was also put in by Pustau and Brodersen, natural born subjects of the King of Denmark. The Acting Queen’s Advocate appeared on behalf of the Captors, Lieutenant Thaulow in support of the claim to the ship, and Mr. Green as counsel on behalf of the claimants of the cargo.
The facts, as disclosed by the principal witness, Lieutenant Thaulow, Master of the Greta, corroborated (with one or two exceptions, which will be pointed out in their proper places), by the First and Second Mates and a Seaman belonging to the Greta, coupled with the Ship's log and other documentary evidence, appear to be as follows : —
That the Greta was originally a British ship, built in Aberdeen in 1840, and at that time she went by the name of the Jane Geary — that in the year 1854 she was sold to Franz Knoop of Victoria, Melbourne — that in the same year, that is to say on the 1st November, she was resold by the said Franz Knoop in Hongkong, China, through his Attorney, Ludwig Auguste Lubeck, to one Eugen Laun, a citizen of Bremen, through his Agents, Messrs. Pustau and Brodersen — that in March of 1855 she was chartered of Pustau & Co., the Agents of the ship, by Robert P. De Silver, United States Naval Storekeeper, to take up a cargo of Naval Stores for the United States' Squadron at Hakodadi in Japan – that the said vessel, then going by the name of the Greta, sailed from the Hongkong on the 22d of April 1855 on her voyage to Hakodadi in Japan, having on board the said United States’ Naval Stores, and also a cargo of merchandize belonging to Pustau & Co.; who, in distinctly appears from the evidence of Lieut. Thaulow, the Master, had the direction and management with respect to the Greta's employment of trade, and with whom he, the Master, corresponded on the concerns of the vessel or her cargo – that she arrived at Hakodadi on the 18th May, and commenced discharging the American Stores on the 6th June, and completed the discharge on the 15th June. A small portion of Messrs. Pustau & Co.'s cargo was also discharged or bartered at this port. While at Hadodadi, in consequence of some arrangement which took place, the nature of which does not appear, the Greta, instead of making the port of Hakodadi her place of destination, proceeded on the 21st June on a voyage to Simoda, also a Japanese port, and arrived there on the 4th July — on the 7th discharged some of her cargo, and on the 9th discharged the remainder of her cargo. This appears to be the case from the Log Book, but from from the evidence of Lieut. Thaulow the remainder of the cargo was on board the Greta when she left Simoda for Ayen. While at Simoda, a Charterparty was signed for the carriage of two hundred and seventy Russian Officers and Seamen (who had been wrecked off that place in the Russian Frigate Diana) from that port, and also another Japanese port named Hada, to Ayen, a Russian port, for the purpose of enabling the said Russians to work their way home through Siberia. One copy of this charterparty was left with the Supercargo at Simoda, the other is in the possession of Lieutenant Pouschkine, the Senior Officer of the Russians: it was made on the 9th July last between the Supercargo and the Master and two of the Russians, of whom Lieut. Pouschkine was one. The ship was to receive Fifteen Hundred Pounds and Two Thousand Dollars for the service; bills on bankers in London or Amsterdam were given for these amounts, and left at Simoda (with the Supercargo, I infer.)
According to the evidence of the Master, Thaulow, all the Russian Passengers were taken on board at Hada, in which he is confirmed by the evidence of the Seaman belonging to the Greta, while the First Mate states that twelve, and the Second Mate that ten, were taken on board at Simoda; but this is of no great importance. The Greta sailed from Simoda on the 10th July under American colors, and arrived at Hada on the 11th July, from which place she sailed on her voyage to Ayen on the 14th of that month, and was captured on the 1st August by Her Majesty’s Steam Sloop Barracouta. The American colors were at the stern when the Barracouta came alongside. The Master ordered these colors to be taken down and the Bremen colors to be hoisted. According to the Master’s evidence and that of the Seaman, there were no colors on board except the Bremen and American, while the First and Second Mates state that there was also on board the color representing the German Confederation. At the time of the capture, all the Russian passengers were down below, as the master did not think that a British man-of-war would let them pass. The hatches were not closed, — a sail was thrown over them. It may be remarked , that the Log Book of the Greta is all but silent on the subject of taking Russians on board. In looking at this evidence, it seems to me impossible to arrive at any other conclusion than that the Greta was at the time of her capture a Transport in the service of the enemy-that she was guilty of fraudulent concealment, and was sailing under false colors — and that she is consequently, according to the course of Admiralty and the Law of Nations, subject to condemnation. Indeed no attempt is made by Lieut. Thaulow, the Matter, on behalf of the owner, to deny the Greta’s liability in point of strict law to confiscation; but an appeal is made to the sympathies of the Court, and it is urged that “the shipwrecked Russian Officers and Seamen became distressed Mariners on the Coast of Japan, and as such were to be looked upon, not as enemies who had lost their vessel in battle with the British or French fleet, and who had taken refuge on shore to escape becoming prisoners of war; but were to be looked upon with sympathy as a fallen foe whom we were not allowed to abandon, but to whom we were to lend a hand to help them back to their native hearth.” While entering my judical disclaimer against any such doctrine (although individually deeply regretting the sufferings which the prisoners may have undergone, and lamenting, in common with all, the miseries which have arisen out of the present unfortunate but necessary war), let me see where the sympathy of either the owner of the ship or cargo is to be discovered; and no where do I Find the sympathetic feeling so strongly developed as in securing the sums of fifteen hundred pounds and two thousand dollars for the conveyance of these unfortunate men to Ayen.
I now proceed to the concideration of the question of the claim set up to the cargo on the part of Messrs. Pustau and Company. It is urged by Mr. Green as their Counsel, that, even supposing the ship to be condemned, still the cargo, as being the property of an innocent and distinct owner, would not be liable to confiscation — and for this he cites the case of the Staadt Embden , 1 Cr. Rob 30. He also cites the cases of the Susan and the Hope, 6 Cr. Rob. 462 and 463 in notis, for the purpose of showing, that even where the owner of the ship and cargo is the same person, still, if he was ignorant of the illegal shipment by the master which renders his ship subject to condemnation his cargo (being unrepresented) would not be liable. To render these cases applicable, the innocence of Messrs. Pustau & Co. must be established. It is further urged, that the present question has been placed beyond discussion by Her Majesty's Declaration of the 28th March 1854, in which Her Majesty renounces all claims to the confiscation of neutral property found in Enemies' ships, and a fortiori in neutral ships. The observation just made with respect to the cases cited equally applies to this Order in Council. Do Messrs. Pustau and Company stand in the light of strict neutrals? I think it will be found that the the case of the Atalanta also, also reported in 6 Cr.Rob. 440, has a stronger application to the present circumstances, and which will presently be more fully noticed; but before doing so, and before enquiring into the course pursued by Messrs. Pustau & Co., it may be proper to advert to some of the general principles which govern the administration of Prize Law. One of these general principles is, that "if a native of one country resides and carries on trade in another for some time, his national character is that of his domicile, not of his birth " — the Johanna Emilia, Spinks, Eel, and Ad. Rep. 317-320. And again in the same volume of reports in the case of the Abo, 347-349, it is said " the rule of law is, that in the time of war, the person takes the national character of his residence." The same general principle will be found laid down in Pratt's "Story”, 59, where various authorities of a somewhat earlier date are cited. Again, in the same work, page 69, it is said to be a fundamental principle of Prize Law, that, "all trade with the Enemy is prohibited to all persons, whether natives, naturalised citizens, or foreigners domiciled in the country during the time of their residence, under the penalty of confiscation” ; and also, that as a general "as a general principle, no citizen or subject can be admitted to claim in a Prize Court where the transaction in which he is engaged is in violation of the municipal Law of his country"— ibid 20, 21; although this rule is not to be applied to foreign neutral properitors. ib. 52. Messrs. Pustau and Company have been domiciled and resident in the British Colony of Hong Kong carrying on trade as merchants for upwards of eleven years. Let us now see whether their conduct has been that of innocent neutrals. My own notion of neutrality is, that a party, to entitle himself to the privilege of a neutral so as to claim restitution of his cargo, should be totally free from all concert, connivance, or participation in this transaction the illegality of which leads to the condemnation of the ship. How far do Messrs. Pustau and & Co. bring themselves within this principle? It appears that on the 9th July, they, through their Supercargo and through the Master of the Greta, entered into a Charterparty for the conveyance of Russian enemies to a Russian port to enable them to find their way home. It is very Charterparty, to which Messrs. Pustau and Company are so instrumental, which converts the Greta from a state of neutrality into a state or hostility, after which they still continue their cargo on board. How then can it be said that ther conduct has been that of innocent neutrals? It appears rather that they bring themselves within those general principles of law which have already been adverted to, and they have no right to come into this Court and claim restitution of their cargo.
And now let me call attention to the case already alluded to – the Atalanta. In that case, certain Despatches from the Governor of Isle of France to the Minister of Marine at Paris were, during the time of war, taken on board the Bremenship Atalanta, a neutral vessel. by the Master and one Supercargo, and afterwards found, on her capture, concealed in the possession of a second Supercargo. It is true that in that case the owners of the ship and cargo were the same, but Lord Stowell, then Sir William Scott, in his judgment expressly disclaims condemning the cargo upon this ground alone. Having already condemned the ship, he goes on to say, “Then comes the other question, whether the penalty is not also to be extended further to the cargo, being the property of the same proprietors – not merely ‘ob continentiam delicti,’ but likewise, because the represetatives of the owners of the cargo are directly involved in the knowledge and conduct of this guilty transaction? On the circumstances of the present case I have to observe that the offence is as much the act of those who are the constituted agents of the cargo, as of the Master who is the agent of the ship. The general rule of law is that where a party has been guilty of an interposition in the war, and is taken in delicto, he is not entitled to the aid of the Court to obtain the restitution of any part of his property involved in the same transaction. It is then said that the term ‘interposition in the war’ is a very general term, and not to be loosely applied. I am of opinion that this is an aggregated case of active interposition in the service of the enemy, concerted and continued in fraud, and marked with every species of malignant conduct. In such a case I feel myself bound, not only by the general rule 'ob continentiam delicti,' but by the direct participation of guilt in the Agents of the cargo.” Both ship and cargo were accordingly condemned. These observations, for the most part, appear to me directly applicable to the present case.
I have been requested by Mr. Green. on the behalf of Messrs. Pustau & Co. that, even should I feel myself constrained to condemn both the ship and cargo, still that I will express it as my opinion, that the Greta left this port without any idea on the part of Messrs. Pustau & Co. of aiding the Enemies of Great Britain. I am perfectly willing so to do, being satisfied that, notwithstanding any irregularity in the Greta's papers or colors, up to the time of her arrival at Hakodadi, they acted with the best intentions and in the perfect good faith – but I regret that, from the time of her arrival there, every step which was taken meets with my entire disapprobation; and I cannot help feeling that Her majesty’s Government had a right to expect a different line of conduct from gentlemen who tell you upon their oaths that for upwards of eleven years they have received the protection of the British Flag and enjoyed the blessings of the British Constitution.
I must therefore pronounce both Ship and Cargo subject to condemnation.
(Signed) John Walter Hulme. Judge.
True Copy. (Signed) W. F. Bevan. Acting Judge's Clerk.
(Endorsed) Copy of Judgment of Chief Justice Hulme in the case of the Prize Brig Greta. 14th November, 1855. Enclosure in Despatch No. 172 of 1855. I certify that the foregoing is a true and authentic copy. (Signed) G. F. Handcock. Assistant Keeper of the Public Records.
10th Juli, 1911.