accordance with the principles of recognized legal decisions, and with the view of the great body of modern jurists, and also with the practice of nations in recent maritime warfare. The result is that the Court is not restricted in its vision to the primary consignments of the goods in these cases to the neutral port of Copenhagen; but is entitled, and bound, to take a more extended outlook in order to ascertain whether this neutral destination was merely ostensible and, if so, what the real ultimate destination was. The Kim; The Alfred Nobel; The Bjornsterjne Bjornson; The Fridland, [1915] P. 215, 272–275, III Ll. Pr. Cas. 167, 355-359. For further discussion of the distinction between absolute and conditional contraband, see ante, pp. 15-18. After a settlement reached between the British Government and American meat packers on July 3, 1916, the Judicial Committee made a formal order for the withdrawal of the appeals which had been entered by the packing companies. III LI. Pr. Cas. 378. Cf. Chandler P. Anderson, "British Prize Court Decision in the Chicago Packing House Cases", 11 A.J.I.L. (1917) 251. The United States has made earnest representations to Great Britain in regard to the seizure and detention by the British authorities of all American ships or cargoes bona fide destined to neutral ports, on the ground that such seizures and detentions were contrary to the existing rules of international law. It will be recalled, however, that American courts have established various rules bearing on these matters. The rule of "continuous voyage" has been not only asserted by American tribunals but extended by them. They have exercised the right to determine from the circumstances whether the ostensible was the real destination. They have held that the shipment of articles of contraband to a neutral port "to order," from which, as a matter of fact, cargoes had been transshipped to the enemy, is corroborative evidence that the cargo is really destined to the enemy instead of to the neutral port of delivery. It is thus seen that some of the doctrines which appear to bear harshly upon neutrals at the present time are analogous to or outgrowths from policies adopted by the United States when it was a belligerent. The Government therefore can not consistently protest against the application of rules which it has followed in the past, unless they have not been practiced as heretofore. Secretary Bryan to Senator Stone, Jan. 20, 1915, MS. Department of State, file 763.72111/1435; 1914 For. Rel. Supp. ix. In concluding that goods had an ultimate destination in enemy territory, Sir Samuel Evans in the case of the Kim said: As to the real destination of a cargo, one of the chief tests is "Common whether it was consigned to the neutral port to be there delivered stock" for the purpose of being imported into the common stock of the country. Goods processed in enemy territory Processing in neutral country I have no hesitation in stating my conclusion that the cargoes (other than the small portions acquired by persons in Scandinavia whose claims are allowed) were not destined for consumption or use in Denmark or intended to be incorporated into the general stock of that country by sale or otherwise; that Copenhagen was not the real bona fide place of delivery; but that the cargoes were on their way at the time of capture to German territory as their actual and real destination. The Kim; The Alfred Nobel; The Bjornsterjne Bjornson; The Fridland, [1915] P. 215, 275, 277, III Ll. Pr. Cas. 167, 359, 362. In the Kronprinsessan Victoria, although the goods were shown to have been sold in a neutral country, Sir Samuel Evans concluded "that the coffee seized was not bought by them for the purpose of consumption in Sweden, or in order to become part of the common stock of that country, or for the purpose of resale to any neutral country, but was shipped to and received by them to be forwarded through Sundsvall to Hamburg". VII LI. Pr. Cas. 230, 244-245 (1917). See also the Maracas, VI idem 257, 262, 266 (1917). Wool (absolute contraband) on a Swedish vessel bound for Sweden, intended to be combed in Germany and returned to Sweden (although by-products might be retained in Germany), was condemned as contraband with an enemy destination. Sir Samuel Evans said: If absolute contraband is once traced and captured on its way to enemy territory, a Court of Prize will not embark upon inquiries as to what will-or to speak more strictly-what may ultimately become of it. An appeal by the claimant was dismissed by the Judicial Committee of the Privy Council. The Axel Johnson and Drottning Sophia, [1917] P. 234, 242, VI LI. Pr. Cas. 379, 389; [1921] 1 A.C. 473, 476, X Ll. Pr. Cas. 189, 193. Leather on a Norwegian vessel bound from the United States to Sweden and seized as prize by the British was proceeded against as contraband. The owners claimed that the leather was destined solely for use in Sweden. The Crown sought discovery with respect to the books of the consignee-claimant concerning its transactions in boots as well as in leather. Sir Samuel Evans granted discovery, saying: The objection for the claimant is that the leather cannot in any circumstances be seized as prize, if it was intended to be manufactured into boots in Sweden, although the boots were to be sent to the forces of the enemy. Is the claimant's contention, that contraband goods cannot be seized on a continuous voyage, unless they were on their way to a final enemy destination in the same condition as they were One of the tests applied [in the Kim case] was whether the goods imported were intended to become part of the common stock of the neutral country into which they were first brought. In my view the notion that leather, imported to a neutral country for the express purpose of being at once turned into boots for the enemy forces, becomes incorporated in the common stock of the neutral country, is illusory. Instances can be given and multiplied which appear to reduce to an absurdity the argument that if work is done in the neutral country upon goods which are intended ultimately for the enemy, that circumstance of necessity puts an end to their contraband character, and prevents their being confiscable according to the doctrine of continuous voyage. Suppose coffee beans and cocoa beans were imported into a neutral country with the object of their being converted into coffee or cocoa to be sent on to the enemy, would the fact that the coffee beans were ground into coffee, or the cocoa beans were ground and mixed with sugar to make cocoa in the neutral country, be enough to render those goods immune from capture, if they would be capturable as coffee or cocoa foodstuffs when afloat? If a field gun was imported, would it be protected from seizure because it would, in fact, be mounted upon its appropriate carriage before being exported from a neutral country to the enemy's front? The Court could not give affirmative answers to such questions as these unless it cut itself adrift from the safe anchor of common sense. The Balto, [1917] P. 79, 82-84, VI LI. Pr. Cas. 141, 147-149. In The Norden, decided Mar. 7, 1918, a presumption of enemy destination arising from the fact that a shipment of conditional contraband from Rotterdam to Norway was consigned "to order" was held to be not overcome by the fact that the goods were to be processed in a neutral country. A further showing was required that the product would not be of use to the enemy. Condemnation was upheld by the German Supreme Prize Court. II Entscheidungen des Oberprisengerichts in Berlin (1921) 35. See Garner, Prize Law During the World War (1927) 573. Swedish-owned cocoanut oil (conditional contraband) on a Norwegian vessel was destined to Sweden for use in making margarine to be consumed in Sweden. The Crown contended that it was liable Substituto capture on the ground that, to the knowledge of the manufacturer, tion of the margarine was to be consumed in Sweden in substitution for Swedish butter which in turn would be shipped to Germany. The British Prize Court held that the oil was not liable to condemnation goods Intervening belligerent port as conditional contraband destined for German military use, Sir Samuel Evans stating: Statistics were given in evidence to show the increase of the importation into Sweden of raw materials for margarine and of the production and sale of margarine, and to show the simultaneous increase of the export of butter from Sweden to Germany. They were interesting, and beyond doubt they proved that the more margarine was made for the Swedes the more butter was supplied by them to the Germans; and that when by reason of the naval activity of this country the imports for margarine production became diminished, the Swedish butter was kept for consumption within Sweden itself and ceased to be sent to the enemy. I should go even further and hold that, if it were shown that in a neutral country particular manufacturers of margarine were acting in combination with particular producers or venders of butter, and that the intention and object of their combination was to produce the margarine in order to send the butter to the enemy, the same doctrine would be applicable with the same results [condemnation]. I do not consider that it would be in accordance with international law to hold that raw materials on their way to citizens of a neutral country to be converted into a manufactured article. for consumption in that country were subject to condemnation on the ground that the consequence might, or even would, necessarily be that another article of a like kind, and adapted for a like use, would be exported by other citizens of the neutral country to the enemy. The Bonna, [1918] P. 123, 127–129, VII LI. Pr. Cas. 367, 376–378. A Danish vessel bound from Copenhagen to the then neutral port of Boston, carrying goods absolute contraband under the German rules, was seized and condemned with its cargo for carriage of contraband on the ground that it was to stop en route at an enemy British port for coal. The German Imperial Supreme Prize Court said: It must be admitted, in effect, that the enemy destination of the goods is proven, since before reaching Boston the ship had to touch at the port of Newcastle. It matters little that it was to touch there only for the purpose of coaling. This interpretation follows even from the text of the disposition (Art. 30, par. 1b of the German prize ordinance), and it is confirmed by Article 30 of the Declaration of London and by the commentary thereon contained in the General Report. If the ship touches at an enemy port, says the commentary, there will be a strong temptation for the master to disembark the contraband which he could probably sell at a high price and there would be an equal tempta tion for the local authorities to requisition it. It may be remarked at the same time that the claimants are not allowed to prove that there was a really neutral destination and that this was the intention of the owners. The Alexandra (Nov. 30, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 430; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 326; Garner, Prize Law During the World War (1927) 536-537. In 1939 the Hamburg Prize Court found that a cargo of Estonian woodpulp (held to be absolute contraband, ante, pp. 27-28) destined to the United States had, in fact, an "enemy destination", in as much as the master considered stopping at a Scottish port for coal. The court said: On account of the existing possibility of interference on the part of the enemy as well as the absence of any reliable control in cases of this nature, it has for long been an accepted principle of international legislation to presume enemy destination for absolute contraband, as contained in Article 23 (3) of the Prize Law. Neutral countries suffering under this necessary and justifiable assumption, therefore, are not confronted by any surprising and consequently unfair novelty but by an old, frequently practised custom of international law, which they must be supposed to know and take into account. A vessel carrying absolute contraband, the captain of which seriously contemplates a choice between two possibilities open to him including touching at an enemy port of call, must be treated under Prize Law as a vessel, the master of which has already decided to touch at an enemy port. It must, therefore, be sufficient under the law that calling at such a port was at the time of capture still conditional but could at any moment lose its alternative character and by the captain's final decision become direct steering for and touching at the enemy port. For obvious reasons it cannot possibly be expected of a belligerent country in such cases to submit to the risk of immediate enemy interference and to permit a vessel laden with absolute contraband to proceed unmolested on its way. (Vide the Hugo Hamilton case, containing similar route, alternatives; Vol. II, 107, of Berlin Prize Court Decisions). The Minna, enclosure 3 in despatch 778 from the Consul General at Hamburg (Keblinger) to the Secretary of State (Hull), Jan. 30, 1940, MS. Department of State, file 740.00112 European War 1939 /1110. In 1915 the French Prize Council, in two cases, ordered the condemnation of cargoes of oil destined to the Greek (neutral) island of Crete, documented "to order" and without certificates guaranteeing neutral destination. The oil, designated as absolute contraband, was deemed to have a hostile destination under article 30 of the Declaration |