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UNION BRIDGE COMPANY (UNITED STATES) vs.

GREAT BRITAIN1

FACTS: By a contract in writing, contained in two tenders and acceptances, dated in January, February, and March 1899, the Union Bridge Company agreed with the Orange Free State, acting through its genera agents, Messrs! "i iam #unn $ Co!, to supp y and de i%er, &or the sum o& '(,()) and in accordance with a speci&ication, the materia &or a wrought stee road bridge! *he materia was bought &!o!b! +ew ,or- and was de i%ered in two consignments, on board the steamers Kurrachee and Clan Robertson which sai ed &rom +ew ,or- &or . goa Bay, South .&rica, on September 18th and September (/th, 1899, respecti%e y (! *he consignments were addressed as &o ows0 12n #ienst, 2nspector34enera o& 5ub ic "or-s, Orange Free State 4o%ernment, B oem&ontein, South .&rica1 6! . certi&icate o& acceptance o& the materia and o& the absence o& unnecessary de ay in the manu&acture o& the &inished materia was gi%en by Messrs! 7! "! 8unt $ Co! who were appointed &or that purpose under c auses 9 and 9 o& the genera conditions :! #uring the %oyage &rom +ew ,or- to . goa Bay, war bro-e out between 4reat Britain and the Orange Free State! *he two steamers re&erred to arri%ed at 5ort ; i<abeth on October (9th and +o%ember 1( th, 1899 respecti%e y9! *he bridge materia was un oaded at that port, and stored on depositing ground be onging to the 8arbor Board! Meanwhi e, in accordance with c ause (( o& the genera conditions o& the contract the bi s o& ading had been presented &or payment in =ondon on October (/th! 1899! to Messrs! "i iam #unn $ Co!, who re&used payment>! On May (:th! 19)), the Orange Free State was, by proc amation, anne?ed to 4reat Britain! 2n June 19)), a &irm o& agents Messrs! Mac-ie, #unn $ Co! too- steps to get into communication with the 2nspector34enera o& 5ub ic "or-s at B oem&ontein, with a %iew to se ing the bridge materia to the British authorities /! *hroughout this correspondence, the &irm in @uestion asserted the property rights o& the Union Bridge Co! in the bridge materia , by whom they are instructed to se and on whose beha & they ho d the documents o& tit e! On his side, the 2nspector o& 5ub ic "or-s, acting on beha & o& the Mi itary 4o%ernor, accepted Messrs! Mac-ie! #unn $ 4oAs statement o& the position and discussed the price to be paid &or the materia and the reductions to be made8!
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From The Reports of International Arbitral Awards, Bo ume >, pp 16831:( C8 January 19(:D, pub ished by the United +ations! ( 2d 169 6 2d : 2d 16931:) 9 2d 1:) > 2d / 2d 8 id

Fina y, on January 1)th! 19)1, an o&&er o& '6,))) was made by the 2nspector o& 5ub ic "or-s, to remain open &or acceptance ti January (8th! By a etter dated January 61st, acceptance o& this o&&er was intimated by Messrs! Mac-ie, #unn $ Co!, but was reEected on February 18th by the British authorities as being out o& time and because o& the unsett ed state o& the country 9! *o this etter Messrs! Mac-ie! #unn $ Co! rep ied on February (6rd regretting the decision came to and suggested that the matter may be reopened and another o&&er made by the British authorities at a more opportune moment1)! *he materia continued to ie at 5ort ; i<abeth ti .ugust 19)1, when, without inspection and without notice to Messrs! Mac-ie, #unn $ Co!, it was &orwarded by the order o& Mr! "! 8! 8arrison, the Store-eeper o& the Cape 4o%ernment 7ai ways at 5ort ; i<abeth, by rai to the charge o& the #istrict Store-eeper, B oem&ontein33a distance o& :)) mi es11! Mr! 8arrison purported to act upon instructions gi%en to him, short y a&ter the outbrea- o& war, when he was store-eeper at ;ast =ondon, to &orward a bridge materia intended &or the Orange Free State rai ways, to the 2mperia Mi itary 7ai ways, B oem&ontein1(! *he 2mperia 7ai way authorities were much annoyed by the arri%a o& this materia at B oem&ontein and re&used at &irst to recei%e it but it was e%entua y un oaded and stored at B oem&ontein by the rai way authorities where it ay ti September 19)916! Messrs! Mac-ie, #unn $ Co! were aware ear y in October, 19)1, that the materia had been un oaded at B oem&ontein and wou d remain there &or the present! ,et, during the eight years that it ay there, the 2mperia 7ai way authorities at B oem&ontein recei%ed &rom that &irm neither protest nor demand that it shou d be returned to 5ort ; i<abeth or sent to any other destination 1:! Fina y, in 19)/, two etters dated, respecti%e y, February 18th and June (:th were written by the 4enera Manager o& the Centra South .&rican 7ai ways to the Union Bridge Company o&&ering to return to them the materia on certain terms as to payment o& charges and indemnity, and intimating that, in de&au t o& instructions, the rai ways wou d se it by pub ic auction to de&ray the e?penses a ready incurred by them in the matter19! *hese etters were unanswered! .ccording y, the materia was put up to auction, under the by3 aws o& the rai ways on Ju y ((nd, 19)8, at B oem&ontein and bought in &or '9:9! . year ater, on .ugust :th, 19)9, the materia was so d to the Crown Mines =td! &or 1!9))! *he Union Bridge Company recei%ed nothing by way o& payment &or the materia 1>! ISSUE:

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On these &acts, the @uestion arises0 is there any iabi ity on 8is Britannic MaEestyAs 4o%ernmentF RULING: 2n our opinion, the answer to this @uestion is in the a&&irmati%e! *he consignment o& the materia to B oem&ontein was a wrong&u inter&erence with neutra property! 2t was certain y within the scope o& Mr! 8arrisonAs duty as 7ai way Store-eeper to &orward materia by rai , and he did so under instructions which &i? iabi ity on 8is Britannic MaEestyAs 4o%ernment 1/! 2n so &orwarding this materia , there&ore, he made two mista-es, inasmuch as it C1D was neutra propertyG and C(D was intended &or a road, and not a rai way bridge! *hat iabi ity is not a&&ected either by the &act that he did so under a mista-e as to the character and ownership o& the materia or that it was a time o& pressure and con&usion caused by war, or by the &act, which, on the e%idence, must be admitted, that there was no intention on the part o& the British authorities to appropriate the materia in @uestion18! *he -now edge o& Messrs! Mac-ie, #unn $ Co! in October, 19)1 that the materia was at B oem&ontein, coup ed with their &ai ure &or eight years to ma-e any protest or demand &or its return is re e%ant, in our %iew, on y to the @uestion o& @uantum o& compensation, and does not @ua i&y the intrinsic wrong&u ness o& Mr! 8arrisonAs action19! 2n this aspect o& the case, that action constitutes an internationa tort, committed in respect o& neutra property, and &a s to be decided not by re&erence to nice distinctions between tro%er, trespass and action on the case, but by re&erence to that broad and we 3recogni<ed princip e o& internationa aw which gi%es what, in a the circumstances, is &air compensation &or the wrong su&&ered by the neutra owner()! *his, and not the contract %a ue o& the materia , is, in our opinion, the true measure o& damages(1! *here is e%idence that in October, 19)/, the materia had deteriorated by reason o& rust, corrosion, and bending but this deterioration wou d ha%e resu ted, perhaps to an e%en greater degree, had the materia ain near the sea at 5ort ; i<abeth((! 2t is a reasonab e in&erence that it was because o& their inabi ity to &ind a purchaser that Messrs! Mac-ie, #unn $ Co! et the materia ie in store &or so many years! 2n other words, in our %iew, the consignment to B oem&ontein did not cause the deterioration(6! *a-ing, there&ore, 1,9)) as the %a ue o& the materia in 19)9, and deducting &rom those amounts the sums o& '(:9 and 1/!1)s &or charges at 5ort ; i<abeth and '1(6 &or marine &reight due to the Clan Robertson, which the
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Union Bridge Co! wou d ha%e to pay in any case, and ma-ing some a owance &or storage at B oem&ontein, we thin- that Eustice wi be met by an award o&H /9) without interest(:! RATIO DECIDENDI: *he *ribuna decides that 8is Britannic MaEestyAs 4o%ernment sha pay to the 4o%ernment o& the United States o& .merica the sum o& /9) ster ing!

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