Scottish Court of Session Decisions

The Order of the Commissioners of Customs and Excise dated 26th April 1915 provides, section 3—“In the case of goods intended for exportation the entry shall contain particulars as to (1) the name and address of the consignor of the goods; (2) the name and address of the consignee of the goods; (3) the ultimate destination of the goods; and a declaration on the part of the person making entry that the particulars as aforesaid are correctly stated.”

The Customs (War Powers) Act 1915 (5 Geo. V, cap. 31), sec. 5 (1), is quoted supra in rubric.

The Customs (War Powers) Act 1916 (5 and 6 Geo. V, cap. 102) enacts, section 2 (2)—“In the case of proceedings taken under the said sub-section” ( i.e., 5 (1) of the 1915 Act, sup.) “an averment in the information that the defendant has failed to produce evidence to the satisfaction of the Commissioners that the goods in question have not reached a person who is an enemy or treated as an enemy, or a country which is enemy or treated as enemy, under any law for the time being in force relating to trading with the enemy, shall be sufficient unless the defendant proves to the contrary.”

The Lord Advocate, pursuer, brought an action against Johannes Jeronimus Van Weel, defender, by way of subpoena and information for the recovery of penalties.

The information set forth—“ First Count.—That of date 26th April 1915 the Commissioners of Customs and Excise made an Order under section 139 of the Customs Consolidation Act 1876 (39 and 40 Vict. cap. 36) requiring the exporter or shipper of any goods of whatever description intended for exportation to make due entry and obtain clearance of the goods before shipment, and further requiring every such entry to contain a declaration as to the ultimate destination of the goods so entered for exportation; that Johannes Jeronimus Van Weel, residing at No. 2 Darnell Road, Trinity, Leith, being about to export on board the steamship ‘Professor Buys’ certain goods, namely, 743 bags of onions, consigned or purported to be consigned to Haddas Van Reek, Nieuwehaven, Rotterdam, did, in course of making entry, pursuant to the said Order, of the said goods, declare in a specification dated 10th May 1915, and delivered by the said Johannes Jeronimus Van Weel to Herbert James Calcutt, specification officer at the custom house at the port of Hull, that the said goods would be exported to Haddas Van Reek, Nieuwehaven, Rotterdam, as their ultimate destination; that the said Johannes Jeronimus Van Weel thereupon exported the said goods without any security being given by bond in respect of the same or the exportation thereof; that

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thereafter, on or about 26th May 1915, the said Commissioners of Customs and Excise, pursuant to section 5 of the Customs (War Powers) Act 1915 (5 Geo. V, cap. 31), required the said Johannes Jeronimus Van Weel, being such exporter of the said goods, to produce evidence to the satisfaction of the said Commissioners that the said goods had not reached a destination in any territory which, under any Proclamation issued by His Majesty dealing with trading with the enemy for the time being in force, was, or was treated as, enemy country; and that the said Johannes Jeronimus Van Weel did, notwithstanding such requirement, fail to produce evidence to the satisfaction of the said Commissioners that the said goods had not reached a destination in such territory as aforesaid; contrary to the said Customs (War Powers) Act 1915, section 5; whereby the said Johannes Jeronimus Van Weel is liable in a penalty of £1551, being treble the value of the said goods, or such other sum as may be ascertained in the proceedings to follow hereon to be treble the value of the said goods, and which sum the said Commissioners of Customs and Excise have elected to sue for instead of the penalty of £100.’

The second count was exactly similar to the first except that it related to 1601 bags of onions exported on 26th May 1915 by the “Kirkham Abbey,” and the penalty claimed was £3420.

The Lord Ordinary ( Cullen) allowed a proof and appointed the defender to lead therein.

The facts established at the proof were—The defender, a Dutch subject, was employed by Van Reek to buy and forward vegetables to him to Rotterdam, where he had a factory in which the vegetables were dried and made into powder. The defender bought the onions in question for Van Reek. On 17th April 1915 he had written to Van Reek as follows:—“Mr H. Van Reek, Rotterdam. Dear Sir,—As the authorities are getting very particular who is shipping onions and carrots you might send me declarations that the onions and carrots I ship you are not destined for a country at war with England. Whenever they want that declaration I can produce same and will have no difficulty in shipping. If they want declarations before I have got yours I shall get your letter translated that the onions are getting dried in Holland and come back to here. Whereafter, I suppose, I shall have no difficulty in shipping regularly. However, send your declarations soonest.… Yours truly, J. J. Van Weel.” He received the following declarations:—“I, the undersigned H. Van Reek, declare on oath that the bags of onions bought from J. J. Van Weel at Hull are not destined for shipment to any country at war with England. H. Van Reek. Sworn at the British Consulate General, Rotterdam. This 23rd day of April 1915. Before me— Henry Tom, Vice-Consul.” “I, the undersigned H. Van Reek, declare on oath that the bags of Egyptian onions bought from Mr J. J. Van Weel at Hull are not destined for shipment to any country at war with England, but will solely be used in my factories at Breda and Schiedam. H. Van Reek. Sworn at the British Consulate General, Rotterdam. This 8th day of May 1915. Before me—J. W. Mull, British Pro-Consul.” In making entry prior to shipment the defender produced those declarations to the Customs officials, who stated that the declarations were not required, and the defender retained the declarations into which he had inserted the number 743 and 1601, being the numbers of the bags. As required by the order of the Commissioners of Customs and Excise, dated 26th April 1915, the defender entered the ultimate destination of the goods, and acting on the above declarations stated it to be Van Reek, Rotterdam. The onions were shipped to Rotterdam without any security by bond being given. On 26th May 1916 the Customs authorities served two notices upon the defender calling on him to produce evidence in terms of the Customs (War Powers) Act 1915, section 5 (1). The defender did not reply to these notices, as prior to their receipt he had written to Van Reek asking him for a final declaration that none of the onions had reached an enemy country. He received the following declaration signed by a duly authorised employee of Van Reek:—“ Rotterdam, July 19th, 1915.—I, the undersigned H. Van Reek, herewith assure on oath that all the bags of Egyptian onions arrived here from Hull, bought from Mr J. J. Van Weel of Hull, have not been exported but have been used in my own factory in Holland.—p. H. Van Reek, H. F. Bosman. Sworn at the British Consulate General, Rotterdam, this 19th day of July 1915. Before me—J. W. Mull, British Pro-Consul.” He did not consider that declaration satisfactory and wrote for a further declaration. He received the following:—“ Rotterdam, July 27th, 1915.—I, the undersigned H. Van Reek, declare on oath that all bags of onions sent from Hull this season by Mr J. J. Van Weel to my address have not reached an enemy's country but have been used in my factory. The onions are destined to be dried. Of these I have sold a good lot to the War Office, London. Remainder of the dried onions are for making onion powder, of which I sold partly to several firms in England, remainder to be stored in my warehouse awaiting further orders.— p. H. Van Reek, H. F. Bosman. [2/6d. Consular Service Stamp.] Sworn at the British Consulate General, Rotterdam, this 27th day of July 1915. Before me—G. S. MacLean, British Vice-Consul, Rotterdam.” The defender, on the Custom House officials calling upon him, submitted the whole of his correspondence with Van Reek to them, including the declarations. He thereafter did nothing further.

In the course of the proof the defender tendered evidence to show that the whole of the onions were converted into powder and were in that form sent back to this country. That line of evidence was objected to, and the Lord Ordinary sustained the objection.

No evidence was led for the pursuer.

On 30th November 1916 the Lord Ordinary

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found for the pursuer on each count and adjudged and decerned against the defender for the penalties.

Opinion.—“I think this information is well laid against the defender, and that on the facts I must hold that he has incurred the penalties sought for by the Crown. It is not necessary that there should have been any deliberate intention on the defender's part to infringe the law, and the Solicitor-General said that he did not impute any such guilty intention to him, and in particular absolved him from having consented or connived at the goods here in question having reached an enemy country. But as regards the condition which the statute says must be satisfied in order that the defender may avoid the penalties, namely, that he should have taken all reasonable steps to secure that the ultimate destination of the goods should be the destination mentioned in the declarations produced by him, it appears to me that on the evidence I must hold that the defender here did not take all such reasonable steps. It is impossible to lay down any abstract definition of what reasonable steps are to be. The question is one of fact on the circumstances of each case, and my verdict on the facts of this case is that the defender was decidedly loose and careless in the way he went about the matter of the two exportations in question and that he cannot claim to have exercised the reasonable care which the statute requires. In the first place I think he did not exercise reasonable care in his letter of 17th April 1915 asking declarations from Van Reek. To my mind that letter was written far too much as if these declarations were purely matter of form, and the consequence of his having written in that way was that he got back from Van Reek declarations which were signed by Van Reek's clerk and which themselves treated the matter as one of form, because not only were they left blank as regards the dates but they were left blank as regards the subject-matter to which the declarations in them were intended to be used. In these the defender filled in the dates, and filled in at his discretion the blank as regards the goods in each declaration, and it was upon the force of these declarations, so completed by him, that the exportations of 10th and 17th May 1915 took place.

As regards the terms of the declarations, such as they were, as to destination, I think it is impossible to say that the defender was right in being satisfied with them. The first declaration only excluded the case of ‘shipment’ of the goods to some enemy country. The second carried the matter no further because it ended up with what appears to me to be the evasive statement that the goods were to go to Van Reek's factory. Now Van Reek's factory was a factory for the purpose of converting the form of the goods merely from onions in bags into onion powder, and it was quite consistent with these declarations that the whole of the onion powder so made in his factory should have been intended for transport across the frontier into Germany. Accordingly I think the defender was not reasonably careful in being satisfied with these declarations and in making the shipments in question on the strength of them. I think corroboration of that view is to be found in the fact that before he had made these shipments and acted on the declarations he had written to Holland requesting Van Reek to send more careful declarations in the future.”

The defender reclaimed, and argued—(I) The pursuer had failed to prove his case, for he had not produced or proved the Order of the Commissioners of Customs and Excise, dated 26th April 1915. That Order did not prove itself as an Act of Parliament did, and consequently must be produced and proved— Todd v. Anderson, 1912 S.C. (J.) 105, 6 Adam 713, 49 S.L.R. 1002; Brander v. Mackenzie, 1915 S.C. (J.) 47, 7 Adam 609, 52 S.L.R. 660; Cameron v. M'Avoy, 1916, 54 S.L.R. 28. Sharp v. Leith, 1892, 20 R. (J.) 12, 3 White 351, 30 S.L.R. 34, was distinguishable, for there the Order was produced. No doubt those were decisions on statutory rules of criminal procedure, but those rules were, like the Order in question, relaxations of the common law, and the law was that only Acts of Parliament proved themselves, and an Order must be produced and proved—Dickson on Evidence, sec. 1105. Further, the present case was criminal in nature, for if imprisonment might follow in default of payment of the penalties the case was criminal— Simpson v. Glasgow Corporation, 1902, 4 F. 611, 39 S.L.R. 371. Here imprisonment was competent—Customs Consolidation Act 1876 (39 and 40 Vict. cap. 36), sec. 232. But if under the Court of Exchequer (Scotland) Act 1856 (19 and 20 Vict. cap. 56), sec. 10, the action was civil, it was not subject to the ordinary rules of procedure, for the pursuer had proceeded by subpoena and not by summons. And if the ordinary rules of procedure applied the discretion of the Court to relax the ordinary rule that such an Order must be produced before proof had to be exercised with great care— Liquidator of Universal Stock Exchange v. Howat, 1891, 19 R. 128, 29 S.L.R. 119—and should not be exercised in the present case, in which such heavy penalties were involved. (2) The Customs (War Powers) Act 1916 (5 and 6 Geo. V, cap. 102), sec. 2 (2), did not apply to the present case, as it only applied (section 2 (1)) to proceedings under the Customs (War Powers) Act 1915 (5 Geo. V, cap. 51) as amended by the Customs (War Powers) No. 2 Act 1915 (5 and 6 Geo. V, cap. 71), which was passed after the date of the alleged offence. Accordingly the pursuer's case depended solely on the Customs (War Powers) Act 1915, sec. 5 (1), but that section applied only to a case where the goods had in fact reached an enemy country. Accordingly the evidence excluded should have been accepted; it showed that the goods had not reached an enemy country. It accordingly would have established a complete defence. The interpretation placed upon that section by the pursuer was absurd, as it resulted in making the defences in section 5 (1) available to one whose goods had reached an enemy

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country, and not to one whose goods had not reached an enemy country. Further, section 2 (2) of the Act of 1916 was enacted to relieve the pursuer of the duty of proving facts which he was prior thereto bound to prove. He in this case was bound to, but had not proved those facts, so that the case failed. If, however, the Act of 1916, section 2 (2), applied, then the defender could exonerate himself by “proof to the contrary.” That meant proof that the goods had not reached an enemy destination, and that was the evidence excluded by the Lord Ordinary. “Proof to the contrary” did not mean proof that the Commissioners had been satisfied, for unless the Commissioners were not satisfied no information would ever have been brought. But in any event it was admitted that there was no consent or connivance on the part of the defender if the goods had reached an enemy destination, and the facts showed that he had taken all reasonable steps to prevent the goods reaching such a destination. Upon that point proof that the goods had not in fact reached an enemy country was very relevant. Macfarlane v. Commissioners of Inland Revenue, 1859, 22 D. 266, was distinguished, for in tendering proof that the goods had not reached an enemy country the defender was not attempting to review a matter on which there was any determination of the Commissioners.

Argued for the pursuer (respondent)—(1) There was no necessity to produce or prove the Order of 26th April 1915, for the offence charged was failure to satisfy the Commissioners in terms of section 5 (1) of the Act of 1915. Further, the case was civil in nature, and subject to the ordinary rules of civil procedure—Court of Exchequer (Scotland) Act 1856 ( cit.), sec. 10—and the defender admitted that the Order existed and applied to his goods, for he made a declaration under it. No further proof of the Order was necessary—Court of Exchequer (Scotland) Act 1856 ( cit.), sec. 7. Further, the present objection came too late, for it was not stated to the Lord Ordinary. Sharp v. Leith ( cit.) was in point, and was not cited in Todd's case ( cit.). In any event the cases cited by the defender being criminal cases decided upon statutory rules of procedure were not in point. Further, by the Customs (War Powers) Act 1916 ( cit.), sec. 2 (2), the mere averment that the Customs officers were not satisfied was sufficient for a decision against the defender unless he proved to the contrary, which he had not done. (2) The object of the Customs (War Powers) Acts was to suppress carelessness or negligence in the export of goods, and to compel the exporter to secure that the goods did not go to an enemy destination. Accordingly the Act of 1915 enacted that the exporter should be liable in penalties if he failed to convince the Customs officials that the goods had not reached an enemy destination. The defender had failed to satisfy the Commissioners as to that, and his only defences were those set forth in section 5 (1), i.e.; proof that he had not consented or connived at the goods going to an enemy destination if they did do so, and that he had taken all reasonable steps to prevent their reaching an enemy destination. Proof that they had not in fact reached an enemy destination was not a defence, because that might quite well happen though the defender was grossly careless and negligent and took no precautions at all. The Commissioners could not be reviewed by the Court on the matter entrusted to their jurisdiction— Macfarlane's case ( cit.). The Lord Ordinary was therefore right in excluding evidence as to the ultimate destination of the goods. Further, the Customs (War Powers) Act 1916 was purely a procedure Act, and evidence that the goods had returned to this country was not proof “to the contrary” in the sense of section 2 (2) thereof. The defender had failed to satisfy the Commissioners, and he had also failed to take all reasonable steps to prevent the goods reaching an enemy country, for he had not taken a bond, and the declarations which he had produced merely gave an undertaking against shipment to an enemy country and not against other modes of transport. The Lord Ordinary had rightly decided against him.