tations of grantee

war, or by reasons of general and permanent application. It is evident, however, that it is only rules of a permanent character that can be justly said to form a part of the existing law, and that it would be useless to state those that were, in truth, occasional exceptions, arising from a state of things so extraordinary that it is highly improbable it will ever again occur.1

Represen- § 6. The validity of a license depends not only on the sufficiency of the authority by which it is granted, but also on the good faith of the party to whom it is issued. Like every other grant, although issued in due form, and by the proper authority, a license may be vitiated by fraudulent conduct in obtaining it. The misrepresentation or suppression of material facts-of facts that, if known, would probably have influenced the discretion of the grantor-renders the license a nullity, and exposes the property it is invoked to protect to certain condemnation. Nor is it necessary, in order to invalidate the license, that such misrepresentations or suppressions of material fact should, in all cases, involve an imputation or suspicion of fraud. Thus, where the agent who procured the license was described as a merchant of London, but it appeared on trial that, when the license was granted, he was, in fact, a resident of a foreign country, the error was held to invalidate the license. So, where a license was granted to a person by name, describing him as a British merchant, and it was found that he, in person, visited Holland, at that time an enemy's country, mixed and incorporated himself, when there, in the national commerce, and exported the goods as a Dutch merchant, instead of importing them as an English merchant, the license was regarded as invalidated and his property confiscated.2

Intentions

§ 7. Although a license may have been issued by compeof grantor tent authority, and on the good faith of the party obtaining it, in order to render it available for the protection of the property to which it relates, the intentions of the grantor, as expressed in the license, must be pursued in its mode of execution, and there must be an entire good faith on the

2

1 The 'Goede Hoop,' 1 Edw. R., 328; the Juno,' 2 Rob., 117; Morgan v. Oswald, 3 Taunt. R., 555; Flindt v. Scott, 5 Taunt. R., 693. The 'Clio, 6 Rob., 69; the Jonge Klassina,' 5 Rob., 269; Klingender v. Bond, 14 East., 484, in which case the objection is said to have been considered immaterial at the licensing office in England.

part of the user in executing it. And although, as before remarked, licenses are not to be construed with a literal and pedantic accuracy, yet no greater latitude of interpretation is permitted than corresponds with the intentions of the grantor, fairly understood; no other or greater deviation is allowed, than it may be justly presumed the grantor, with a knowledge of the circumstances, would himself have sanctioned. It is a mistake,' says Duer, 'to suppose that the rights of the user may not be prejudiced by a construction of the grant that is merely erroneous. It is absolutely essential, that the will of the grantor shall be observed; so that, that only shall be done which he intended to permit; whatever he did not mean to permit is absolutely interdicted. Hence, the party who uses the license engages, not only for fair intentions, but for an accurate interpretation and execution of the grant.''

entitled

§ 8. The first material circumstance to be considered in Persons the execution of a license, with respect to the intentions of to use a the grantor and the good faith of the user, is, the persons license entitled to use it. A license is not a subject of transfer or assignment, and however general may be the terms in which the grantees are described, those who claim for their property its protection must show that the application on which it was issued was made in their behalf, and that the applicant named in the license was, in truth, their agent. But if granted to a particular person by name, in behalf of himself and others, it is not necessary that the person named should have any share or interest in the property to which the license relates; it is sufficient if he acted as agent of those to whom its exclusive use is appropriated. If the license is, by express words, made negotiable, or if no mention whatever is made of the persons upon whose application it is granted, or by whom it is to be used, it is a legitimate subject of transfer and sale, and the purchaser is as fully protected as if it had been granted to him on his personal application.2

1 Duer, On Insurance, vol. i. pp. 598, 599; the 'Jonge Johannes,' 4 Rob., 263; the 'Vriendschap,' 4 Rob., 96.

2 Warin v. Scott, 4 Taunt. R., 605; Robinson v. Morris, 5 Taunt. R., 725; Barlow v. M'Intosh, 12 East., 311; Busk v. Bell, 16 East., 3; Rawlinson v. Janson, 12 East., 223; the 'Acteon,' 2 Dod. R., 48; the Louise Charlotte,' 1 Dod. R., 308; Fenton v. Pearson, 15 East., 419.

A license from the king to a particular person to import commo

Where the

grantee acts as

agent for

others

Character of vessel

§ 9. But where the license is not made negotiable, and the persons named in the license obtained it in their own names and not as the representatives and agents of others— the license being for themselves, their agents, or holders of their bills of lading-it cannot protect the property of others for whom the grantees act as agents, and in which they are not interested. Thus, a license to B. and S. and their agents will not protect the property of others for whom B. and S. may see fit to act as agents. But where a license is issued to B., S., and Co., meaning under that denomination to include persons who had agreed to take part in the shipment made under such license, such persons are held to be protected.'

§ 10. The second point to be considered, in determining upon the proper execution of a license, is the character of the vessel. The national character of the ship, as described in the license, is, in most cases, a condition necessary to be fulfilled. Where the license directs the employment of a neutral vessel belonging to a particular nation, the substitution of a neutral

dities of a certain description, being the property of the person specified, cannot be assigned so as to authorise the importation of goods which are the property of the assignee. (Fleize v. Thompson, 1 Taunt., 121.) So, where the goods licensed were, by the terms of the license, to be 'the property of J. B. and Sons, as specified in their bills of lading,' it was considered that the goods were not protected by a general bill of lading consigned to B., who possessed not even a qualified property; the absolute bill of lading being transmitted to other persons as the particular consignees. (Fleize v. Walters, 2 Taunt., 248.) A native Spaniard, domiciled in Great Britain in time of war, between that country and Spain, having been licensed in general terms by the king to ship goods in a neutral vessel from thence to certain parts of Spain, was held competent to effect an insurance on goods embarked in the protected commerce, and to sue in his own name on such insurance, as well in respect of his own interest as for the benefit of his correspondents abroad. (Usparecha v. Noble, 13 East., 332.) Where a license contains the words 'to whom the property may appear to belong' all enquiry into the proprietary interest in the cargo is excluded; so that even goods of the enemy are protected and restored under such a clause. But the Court never restores hostile property found on board a licensed ship, unless the words in question occur in the license. (The 'Cousine Marianne, Edw., 346.) In Lemche v. Vaughan (1 Bing., 473) the party obtaining the license was a foreign merchant who was therein described as 'of London.' At the time of the issue of the license he intended to reside in London, but had not actually come; and the Court of Common Pleas held that this misdescription did not vitiate the license, Lord Gifford, C.J., stating that these instruments were entitled to receive a liberal construction, as the object of them was to legalise the adventure, rather than to qualify the party applying.

The Jonge Johannes,' 4 Rob. R., 263; the Christina Sophia,' 4 Rob., 267.

ship of a different State, standing in the same political relations to the belligerent powers, would, probably, not be regarded as prejudicial. The same may be said of the employment of two ships, when the terms of the license refer only to one, if both vessels bear the same national character, and there be no variation in the quantity or quality of the goods described in the license. But, in both these changes, a good and satisfactory cause must be shown. If a neutral ship is mentioned in the license, the employment of a ship of the State issuing the license is considered an essential deviation, which will lead to a condemnation. So the employment of a ship belonging to the enemy, when not authorised by the license, is in all cases noxious and fatal. When the license authorises the importation of goods from an enemy's country, in an enemy's ship, although confined, in terms, to the goods, by the just construction of law, it is extended to the vessel also. For the necessary effect of such a license is to legalise the voyage as described, in all its incidents, and hence the ship is just as much a legitimate object of protection as the cargo which is to be brought in it.'

of a par

§ 11. When the license authorises the transportation of Exception goods by any ship or ships except those under the flag of a ticular particular nation, the exception refers to the fact of the flag nationality of the ship, not merely to the external signs. Although the vessel may be documented as belonging to, and actually bear the flag of, another State, if it be shown that she really belonged to the excepted nation, she will not be protected by the license and the flag. The reason of this rule is, that vessels of the excepted nation might otherwise engage in the prohibited navigation, by substituting a foreign flag for their own. But the unauthorised employment of

1 Kensington v. Inglis, 9 East., 273; the 'Dankbaarheit,' 1 Dod. R., 183; the 'Vrow Cornelia,' 1 Edw. R., 340; the 'Jonge Arend,' 5 Rob., 14; the 'Goede Hoffnung,' I Dod. R., 257; the Bourse,' 1 Edw. R., 369; the 'Speculation,' 1 Edw. R., 344; the Hoffnung,' 2 Rob., 162. A privilege given by Act of Parliament to ships belonging to any State in amity with Great Britain and manned with foreigners, to import merchandise, otherwise prohibited, does not extend to foreign-built ships, British owned. (Attorney-General v. Wilson, 3 Price, 431.)

A ship, foreign-built (American), belonging wholly to a British subject, and manned with foreign seamen (with an English mate), was not within the 43 Geo. III., c. 153, entitled to import flax seed from Russia. (AttorneyGeneral v. Wilson, 3 Price, 431.)

Change of

character

during voyage

such excepted vessels is not permitted to affect the goods of shippers who were not privy to the deception, or cognisant of the fact. Where there is no ground for imputing to them a voluntary departure from the conditions of the license in this respect, their property, if embraced by its terms, retains its protection. The vessel itself is condemned.'

§ 12. Again, if the vessel was, in fact, not of the excepted national nation when she sailed, but became so during the voyage, by some unexpected change of circumstances, as the conquest or annexation of the country to which she belongs, by the excepted State, such change of political relations will not deprive her of the protection of the license, where the parties have acted fairly under it. Thus, where the license was for a ship bearing any other flag than that of France, and the owners had become French subjects during the voyage by the sudden annexation to France of the port and territory in which they resided, it was held by Sir William Scott, that the ship continued under the protection of the license, notwithstanding this change of national character."

Protection

before and after voyage

§ 13. A license to a vessel to import a particular cargo is held to protect a vessel, in ballast, on her way to the port of lading, for the express purpose specified in the license. So, also, a license to export a cargo to an enemy's port covers the ship, in ballast, on her return. In each of these cases the voyage to which the license is extended by implication has a necessary connection with that to which it expressly relates. But the protection extends no further than is necessarily implied in the license; the taking of any part of a cargo on board in the outward voyage in the case of importation, or in the return voyage in the case of exportation, subjects both ship and goods to confiscation.3

§14. The third point to be considered in the execution of

'The Bourse,' 1 Edw. R., 370; the 'Dankbaarheit,' 1 Dod. R., 183. But a license granted to a vessel to sail in ballast from London to Holland, which country was at that time in a state of hostility, notwithstanding anything contained in the British Order in Council of April 20, 1809, was held not to protect a ship which was the property of an alien enemy, and the insurance on the vessel was determined to be void. (Gregg v. Scott, 4 Campb., 339.) In this case the license appears to be only a dispensation with the Order in Council, and was not intended as a remission of the belligerent rights of the Crown.

2 Duer, On Insurance, vol. i. pp. 599, 612.

3 Le Cheminant 7. Pearson, 4 Taunt. R., 367; the 'Freindschaft,' Dod. R, 316.