Proof of enemy destination

Trade statistics

of London, because the enemy had established a supply depot for submarines there.

The Angelike; The Athènes (May 2, 1918), Fauchille, Jurisprudence française en matière de prises maritimes (1916) 427, 428, 429.

In connection with an order for discovery in proceedings to condemn hides and tanning materials seized on a Swedish vessel bound from South America for Sweden, Lord Parker said:

The goods having been shipped in a neutral vessel, and ostensibly destined for a neutral port, can only be contraband of war if, on the principle of continuous voyage, and according to the real intention of the parties concerned in the transaction, they had a further or ultimate destination in an enemy country. Intention is rarely the subject of direct evidence. As a rule it has to be inferred from surrounding circumstances, and every circumstance which could, either alone or in connection with other circumstances, give rise to an inference as to the intention of the parties concerned in a transaction both relates and is relevant to the question what that intention really was.

The Consul Corfitzon [1917] A.C. 550, 554, VI Ll. Pr. Cas. 268, 274.

In reply to the protest of the United States against the stoppage of cargoes of conditional contraband en route from the United States to neutral European countries, the British Foreign Office, in notes of January 7, 1915 and February 10, 1915, set forth trade statistics. and, in the latter note, stated the conclusion that "The inference may fairly be drawn from these figures ... that not only has the trade of the United States with the neutral countries in Europe been maintained as compared with previous years, but also that a substantial part of this trade was, in fact, trade intended for the enemy countries going through neutral ports by routes to which it was previously unaccustomed."

In its note of October 21, 1915 the Department of State said:

(14) When goods are clearly intended to become incorporated in the mass of merchandise for sale in a neutral country, it is an unwarranted and inquisitorial proceeding to detain shipments for examination as to whether those goods are ultimately destined for the enemy's country or use. Whatever may be the conjectural conclusions to be drawn from trade statistics, which, when stated by value, are of uncertain evidence as to quantity, the United States maintains the right to sell goods into the general stock of a neutral country, and denounces as illegal and unjustifiable any attempt of a belligerent to interfere with that right on the ground that it suspects that the previous supply of such goods in the neutral country, which the imports renew or replace, has been sold to an enemy. That is a matter with which the neutral vendor has no concern and which can in no way affect his rights of trade. Moreover, even if goods listed

as conditional contraband are destined to an enemy country through a neutral country, that fact is not in itself sufficient to justify their seizure.

The Ambassador to Great Britain (Page) to the Secretary of State (Lansing), telegrams 1434, of Jan. 7, 1915, and 1627 (undated; received Feb. 12, 1915), MS. Department of State, file 763.72112/589, /716; Mr. Lansing to Mr. Page, Oct. 21, 1915, ibid. /1861a; 1915 For. Rel. Supp. 299, 324, 578, 582.

To the foregoing statement the British Government replied that "the mere fact that goods, no matter of what description or in what quantities, are ostensibly destined to form part of the common stock of a neutral country, can not be regarded as sufficient evidence to prove their innocence or to justify the assertion that any attempt to raise questions as to their ulterior destination is unwarranted and inquisitorial", and that "The question whether goods despatched to a neutral port were intended to become part of the mass of merchandise for sale in that country is one of fact." After setting forth some instances of goods which were consigned to neutral ports while their real destinations were in an enemy country, the note continued:

23. In the presence of facts such as those indicated above, the United States Government will, it is believed, agree with His Majesty's Government that no belligerent could in modern times submit to be bound by a rule that no goods could be seized unless they were accompanied by papers which established their destination to an enemy country, and that all detentions of ships and goods must uniformly be based on proofs obtained at the time of seizure. To press any such theory is tantamount to asking that all trade between neutral ports shall be free, and would thus render nugatory the exercise of sea power and destroy the pressure which the command of the sea enables the Allies to impose upon their enemy.

Hostile destination being a question of fact, the court should take all the relevant circumstances into consideration in arriving at its decision, and there seems to be no reason in principle for limiting the facts at which the court is entitled to look in a case of this kind.

The British Ambassador (Spring Rice) to the Secretary of State (Lansing), Apr. 24, 1916 (enclosure), MS. Department of State, file 763.72112/2461; 1916 For. Rel. Supp. 368, 373, 374, 376.

The Judicial Committee of the Privy Council, in 1920, dismissed the appeal of the shippers from a decree condemning a cargo of dried fruits, Lord Parmoor saying:

The President has found that the statistical evidence establishes a case which throws upon the appellants the onus of

showing that the goods were not going to Germany. Their Lordships concur in this opinion. There is ample statistical evidence to place an obligation on the appellants to show that the destination of the goods is innocent. The President further finds that it is impossible for him to say that the appellants have discharged the onus thrown upon them, and their Lordships concur in this finding.

The Urna, [1920] A.C. 899, 901, IX L1. Pr. Cas. 104, 114.

“The average annual quantity of lard imported into Denmark during the three years 1911-1913 from all sources was 1,459,000 lbs. The quantity of lard consigned to Copenhagen on these four ships alone was 19,252,000 lbs. Comparing these quantities, the result is that these vessels were carrying towards Copenhagen within less than a month more than thirteen times the quantity of lard which had been imported annually to Denmark for each of the three years before the war.

"To illustrate further the change effected by the war, it was given in evidence that the imports of lard from the United States of America to Scandinavia (or, more accurately, to parts of Europe other than the United Kingdom, France, Belgium, Germany, the Netherlands, and Italy) during the months of October and November, 1914, amounted to 50,647,849 lbs. as compared with 854,856 lbs. for the same months in 1913-showing an increase for the two months of 49,792,993 !bs.; or in other words the imports during those two months in 1914 were nearly sixty times those for the corresponding months of 1913.

"... In the five months August-December, 1913, the exports of lard from the United States of America to Germany were 68,664,975 lbs. During the same five months in 1914 they had fallen to a mere nominal quantity, 23,800 lbs. On the other hand, during those periods, similar exports from the United States of America to Scandinavian countries (including Malta and Gibraltar, which would not materially affect the comparison rose from 2,125,579 lbs. to 59,694,447 lbs. These facts give practical certainty to the inference that an overwhelming proportion (so overwhelming as to amount to almost the whole) of the consignments of lard in the four vessels we are dealing with was intended for, or would find its way into, Germany. These, however, are general considerations, important to bear in mind in their appropriate place; but not in any sense conclusive upon the serious questions of consecutive voyages, of hostile quality, and of hostile destination, which are involved before it can be determined whether the goods seized are confiscable as prize."

The Kim; The Alfred Nobel; The Bjornsterjne Bjornson; The Fridland, [1915] P. 215, 223–224, III Ll. Pr. Cas. 167, 294–295 (condemning as conditional contraband destined for Germany foodstuffs shipped by American firms on Scandinavian vessels from New York to Copenhagen). See also The Kronprinsessan Victoria, [1919] A.C. 261, VII LI. Pr. Cas. 230, 246; The Oranje Nassau and Other Ships, [1919] P. 346, IX Ll. Pr. Cas. 189, 201. A French decree of July 7, 1916 established the presumption of hostile destination in the case of absolute contraband on a ship destined to the ports of a neutral country adjacent to enemy territory when the imports into the neutral country were largely in excess of the normal pre-war importations. The French Prize Council applied this decree in condemning a cargo of wine and spirits sent from Spain to Denmark on a Danish vessel, when it was shown that the normal peacetime importation of wines and spirits amounted to 4,318 metric tons, while the

1916 importations amounted to 35,832 metric tons. The Tiber (Apr. 15, 1918), Fauchille, Jurisprudence française en matière de prises maritimes (1919) 414.

Sacks described in the bill of lading and manifest as containing Concealment coffee, but which were in fact filled with a mixture of coffee and rubber (the latter being absolute contraband), on a Norwegian vessel bound from New York to Norway, were condemned as absolute contraband on the grounds of concealment. There was no appearance or claim. The German destination was inferred from the fact of concealment.

The Lyngenfjord, VI Ll. Pr. Cas. 115 (1916).

In affirming the decision of the Prize Court in The Norne (post, Intention pp. 61-62), Lord Parmoor, speaking for the Judicial Committee of the Privy Council, said:

It is not sufficient for the appellants to establish that Enrique Rubio was a Spanish fruit exporter, who had no intention of sending his goods either to an enemy government or to an enemy base of supply. The voyage is not limited to that which a shipper of goods sets in motion. Whether goods in any particular instance are contraband, by application of the doctrine of continuous voyage, is a question of fact. Under the terms of the Order in Council the appellants must discharge the burden of proving that the destination, if the voyage had not been interrupted, would have been innocent. When an exporter ships goods under such conditions that he does not retain control of their disposal after arrival at the port of delivery, and the control, but for their interception and seizure, would have passed into the hands of some other persons, who had the intention either to sell them to an enemy government or to send them to an enemy base of supply, then the doctrine of continuous voyage becomes applicable, and the goods on capture are liable to condemnation as contraband.

The Norne and Other Vessels, [1921] 1 A.C. 765, 767-768, IX L1, Pr. Cas. 402, 427.

In upholding the condemnation of a cargo of conditional contraband consigned from the United States to named individuals carrying on business in Sweden, evidence having made it appear that the German Government was interested in the transactions, the Judicial Committee of the Privy Council, speaking through Lord Parker, said:

"In considering, on the principle of the continuous voyage, what is the ultimate destination of goods which are in their nature conditional contraband, it is the intention of the person who is in a position to control such destination which is really material. . . . Had the appellants been dealing with their own goods on their own behalf, their intention might have been the determining factor. But if, as their Lordships find, the appellants were acting by the direction of an agent of the German Government, it is the intention of the German Government which

must be looked for." The Louisiana and Other Ships, [1918] A.C. 461, 468-469, V Ll. Pr. Cas. 230, 257.

In a case involving cotton goods shipped from the United States to a Netherlands firm, the British Prize Court, after considering evidence as to the intention of the purchaser to send the goods to an enemy country, said: "It was argued, however, on behalf of the claimants, that whatever De Vries' intention may have been was immaterial because, in order to bring in the doctrine of what is called 'continuous voyage,' and therefore to affect these goods by the enemy destination, it must be shown that the shippers were parties to it . . . I do not think the enemy destinationwhich is a fact-can depend upon the intention of the shipper when he puts the goods on board." The Noordam, [1919] P. 57, 61-62, VIII LL Pr. Cas. 337, 342.

In a decision holding liable to condemnation certain cargoes of foodstuffs (primarily pork products) shipped by American firms on Scandinavian vessels to Copenhagen in 1914 and seized by British naval authorities, Sir Samuel Evans said:

"In the first place, it may be observed that it is not necessary that an intention at the commencement of the voyage should be established by the captors either absolutely or by inference.

"So far as it is necessary to establish intention on the part of the shippers, it appears to me to be beyond question that it can be shown by inferences from surrounding circumstances relating to the shipment of and dealings with the goods.

"... it need not be an 'intention' proved strictly to have existed at the beginning of the voyage, or as an obligation under a definite commercial bargain.

"If at the time of the seizure the goods were in fact on their way to the enemy Government or its forces as their real ultimate destination, by the action of the shippers, whenever the project was conceived, or however it was to be carried out; if, in truth, it is reasonably certain that the shippers must have known that that was the real ultimate destination of the goods (apart of course from any genuine sale to be made at some intermediate place), the belligerent had a right to stop the goods on their way, and to seize them as confiscable goods."

The Kim; The Alfred Nobel; The Bjornsterjne Bjornson; The Fridland, [1915] P. 215, 283-284, III Ll. Pr. Cas. 167, 368, 369, 370.

Absolute contraband, on a Danish vessel bound from Copenhagen for Liverpool, which on a prior voyage had been seized by the British while en route to Denmark and Germany and released on condition that the owners return the goods to England and put them at the disposition of the Prize Court, was condemned by the German Imperial Supreme Prize Court on the ground that it had an enemy destination. The fact that it was being sent to England against the wishes of the shippers was said to make no difference. The Kiew No. 3 (Feb. 9, 1917), I Entscheidungen des Oberprisengerichts in Berlin (1918) 241; Fauchille and de Visscher, Jurisprudence allemande en matière de prises maritimes (1924) 183; Garner, Prize Law During the World War (1927) 538.

The French Prize Council condemned as contraband a shipment of mineral oil sent from New York to Marseille on an English vessel and seized while in warehouses at the Marseille docks. The oil was consigned to the S.S.S. (the Société Suisse de Surveillance Economique, an organiza