WHEAT SHIPS

Dominion, Volume 11, Issue 80, 28 December 1917, Page 10

WHEAT SHIPS

ACTION AGAINST COMMON- • ; ' ~ WEALTH. An important point relating to the powers of the Commonwealth as to thu detention of ships of a friendly country in time of war was decided in tho Federal High Court last week. The matter arose, over the refusal of the Federal Customs'to'give a clearance to a ship, whose port of entry was Nystad, Finland,. and whose owners were Russian subject's. An embargo was placed on the vessel against tho clearance unless she took a cargo of wheat from Australia. The High Court was asked to answer , various questions of law, including whether the Commonwealth was responsible for tha acts and omissions of the Comptroller-General of Customs, and whether the plaintiffs (the owners oittve were entitled to maintain their action against tho Commonweatth, although w> formal application was made for a certificate of clearance. ,

Mr. Justice Isaacs, reading the judgments of Mr. Justice Barton, Mr. Justice Rich, and himself, said that the problem raised hy the question waH whether the Commonwealth had the right in time of war, and> as an expedient to send food to the United Kingdom and France, t« refuse a clearance under the municipal statu- < tory hw of the Customs Act to a f ov,e\g,n sliip voluntarily arriving in time 1 ol war, \mhss tie master agreed to carry a cargo of wheat for the Government from Australia to the United Kingdom. The requirement of the Commonwealth was that alien should themsolves engage in the service of the Commonwealth as well as permit their property to be used. To some extent this appeared to be recognised and permissible. But in the authorities to which they had been referred there was not any statement showing that the, mero fact of war supported an attempt to compel aliens to personally enter the King's service outside the territory and on the open sea, and while there to risk capture or death at the hands of the enemy. Any such Act, if justifiable at law, must he justified by emergency under the war power specially pleaded. n , , , After giving reasons, the Uurt decided that the plaintiffs are entitled to maintain an notion against, the _ Commonwealth unless the facts admissiblci and proved under paragraph 12 of defence established a justification under j the war power; and that the Comp-troller-General of Customs is an olticer of the Commonwealth which is responsible for his actions. |