Certain copper was shipped at New York by an American company on board a Norwegian vessel and was consigned to Sweden, and was bought afloat by Swedish subjects under a contract guaranteeing that it was for consumption in Norway and /or Sweden. While the vessel was at sea, copper was declared absolute contraband, and the copper in question afterwards was seized at sea and brought to Liverpool, and the Crown issued a writ in prize claiming that the goods were liable to confiscation. Subsequently an order was made ex parte by the registrar instructing the marshal to release the copper to the Lords of the Admiralty, who wished to requisition it. On an application to discharge the order Held, that though there was sufficient doubt as to whether the goods were entitled to be released to prevent the order from being bad on the ground that there was reason to believe that they were so entitled, yet as they were neutral property it was impossible for the Crown to requisition them, and therefore the order must be discharged. THE OPHELIA British Prize Court Decided May 21, 1915 (The Times Law Reports, Volume 31, page 452) This was a German vessel captured by a British warship and taken into port and detained as prize. A claim for her release was made on behalf of the Government of Germany on the ground that the vessel was a military hospital ship belonging to that government, and was therefore exempt from capture under the provisions of Article I of the Hague Convention of 1907 for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention.1 The Crown admitted that the formal requirements of the convention necessary to bring a vessel within the exempted class had been complied with, and stated that it 1 The pertinent part of this article reads as follows: "Military hospital ships, that is to say, ships constructed or assigned by states specially and solely with a view to assisting the wounded, sick, and shipwrecked, the names of which have been communicated to the belligerent Powers at the commencement or during the course of hostilities, and in any case before they are employed, shall be respected, and cannot be captured while hostilities last." desired that full effect be given to the principles of the convention. It was claimed, however, that the Ophelia, though ostensibly a hospital ship, was actually used as a scouting or signalling vessel of the German navy and, therefore, under Article 4 of the Hague Convention 2 was not entitled to immunity from capture. The court's investigation of the facts developed that, at the time of capture on October 18, 1914, the Ophelia was encountered in the vicinity of a recent naval engagement during which several German torpedo boats had been sunk; that upon the approach of the boarding party from the British cruiser, the commander of the Ophelia threw overboard a number of secret documents, including a code, a list of wireless stations, mine areas, etc., and a wireless log. The vagueness of the orders under which the vessel was operating and the hesitancy of the commander in answering questions as to his movements created the suspicion that the vessel was engaged in transmitting intelligence to the enemy. It was also developed that the Ophelia had been encountered by a British submarine about ten days previous to her capture and had fled in order to escape search. The court found that on that occasion the vessel, while claiming to be in search of survivors from a sunken German submarine, had taken 48 hours to cover a distance of 60 miles which she could have covered in less than six hours, and that there was "no explanation of this lamentable and possibly fatal delay on the part of a hospital ship, which is said to have been on a mission to try to rescue survivors. She saw no survivors and no corpses in her search, which was not only belated, but which was very short and inadequate. There was an entire absence of the care, deliberation, thoroughness, and completeness to be expected in such a search." The commander of the Ophelia admitted that on the previous occasion referred to, he left the vicinity shortly after sighting the British submarine, but denied that he fled from it, upon which the court commented: Upon the disputed question which the account given by the commander raises, one naturally asks why, as the hospital ship saw the submarine more than once, she did not speed towards it rather than away from it, in order to try to get some information about the locus of the accident or the saving of the seamen or the possibility of rescuing survivors? Those in command of a genuine hospital ship on a humane quest would not fear any harm or ill-treatment from a British submarine or any other war vessel. 2 Paragraph 2 of Article 4 reads as follows: "The governments undertake not to use these ships for any military purpose." Incidentally it was established that the Ophelia had never rendered any hospital service since she was commissioned. * * The construction and equipment of the vessel was also relied upon as evidence of the use to which she was put. An examination of her construction and equipment showed that the vessel was unsuitable for service as a hospital ship according to the requirements of the British Admiralty, but it was contended that the Ophelia was merely an auxiliary ship used for transporting the sick and wounded to land hospitals, and the court found that as "there is no standard of suitability either of construction or equipment for a hospital ship * * * I am not prepared to say * that the ship was not, in fact, adapted, albeit, inadequately and imperfectly, for the proper purposes of a hospital ship." The apparatus and appliances suitable for signalling which were found upon the ship, raised a strong doubt in the mind of the court as to whether the vessel was constructed and adapted solely for hospital purposes. An exceptionally large number of lights of different colors were found upon the vessel and British naval experts testified that she was undoubtedly fitted and intended for signalling purposes. The evidence as to what quantity of these lights and signalling appliances had been used and as to the times and purposes for which they were used was unsatisfactory and, furthermore, the records which would give this information had been burned surreptitiously after the capture of the ship and while she was in custody awaiting trial. The court gave decisive weight to the spoliation of these documents and condemned the vessel in the following language: The cases have usually dealt with the spoliation of documents like ship's papers and documents relating to cargoes; hospital ships were little known in former days, but in my opinion the principles apply equally forcibly, to say the least, to documents which would throw light upon the way in which a ship purporting to be solely a hospital ship had been employed. There is a useful summary of the effect of the cases in the judgment of Dr. Lushington in the Johanna Emilie (Spinks at p. 20). I take out the following passages: I must say a word as to the spoliation of papers generally. I do not know that there is to be found in any of Lord Stowell's judgments any direct definition of the word "spoliation." I am of opinion that the mere destruction of papers is not, under all circumstances, to be considered a spoliation; I say under all circumstances, because the principle might be carried to a very absurd length. I apprehend it might be said, if at any time during a long voyage the master destroyed papers that had no relevancy to it, relating to a former voyage, the matter would not be put in issue. To say that was a spoliation of papers, would be going the length of saying that nothing in the nature even of a private letter was to be destroyed after the vessel had left her port. I am not, however, disposed to relax the practical effect of the rules laid down by Lord Stowell, because they are consistent with good sense, and with justice to all parties; but they must not be pressed beyond his true intention with reference to all the facts of the case. Now, let me say a word on this, as to the time at which the papers are destroyed. I pray that my meaning may not be understood beyond the words I use. I hold time to be of great importance. If papers are destroyed when the capturing vessel is in sight, or there is a chance of capture, it is the strongest proof that these papers contain some matter which would inure to condemnation; so it is if they are destroyed at the time of capture, and if they are destroyed clandestinely after capture, but if the papers are destroyed a long time antecedently, before there is any probability that they were destroyed for fraudulent purposes, and there is no evidence that it was for fraudulent purposes, then, though there is spoliation, and though, no doubt, the inference of law is against the act during war, yet the case is of a less stringent nature. Upon this important subject I will also cite what Chancellor Kent says in his well-known Commentaries: The concealment of papers material for the preservation of the neutral character justifies a capture, and carrying into port for adjudication, though it does not absolutely require a condemnation. It is good ground to refuse costs and damages on restitution, or to refuse further proof to relieve the obscurity of the case, where the cause labored under heavy doubts, and there was prima facie grounds for condemnation independent of the concealment. The spoliation of papers is a still more aggravated and inflamed circumstance of suspicion. That fact may exclude further proof, and be sufficient to infer guilt; but it does not, in England, as it does by the maritime law of other countries, create an absolute presumptio juris et de jure; and yet a case that escapes with such a brand upon it is saved so as by fire. The Supreme Court of the United States has followed the less rigorous English rule, and held that the spoliation of papers was not, of itself, sufficient ground for condemnation, and that it was a circumstance open for explanation, for it may have arisen from accident, necessity, or superior force. If the explanation be not prompt and frank, or be weak and futile, if the cause labors under heavy suspicions, or there be a vehement presumption of bad faith or gross prevarication, it is good cause for the denial of further proof, and the condemnation ensues from defects in the evidence, which the party is not permitted to supply (p. 158 of Vol. 1, 12th edition). These are sound and salutary doctrines. In my judgment they are in a special sense applicable to ships claiming to be hospital ships. In proportion to the immunity and protection which every belligerent Power actuated by feelings of humanity would desire to extend to ships engaged in aiding and rescuing those who suffer in maritime war, the conduct of those ships should be beyond suspicion. About the innocence of hospital ships from engaging in warlike services there ought to be no question. Their records should be clean. If they are, their preservation would be an additional safeguard against capture. If they are not preserved, but destroyed, the inference, that, if produced, they would be silent but eloquent witnesses of guilty practices would be strong. As to some of the documents on board, such as the secret codes for wireless telegraphy, the Law Officers of the Crown did not complain of their destruction. In my view even documents like these ought not to be destroyed. They might be required to test the accuracy of the versions given of messages sent and received. They could quite appropriately be sealed up, if that were deemed advisable; and, so sealed, they would not be opened except under the strict superintendence of the court; and the belligerents might rest assured that no disclosure would be made or allowed which would in any way affect the belligerent. But whatever might be said in justification or palliation of the destruction of documents of this nature by reason of the orders of those in high command or otherwise, some of the other documents which were destroyed should certainly have been preserved and given up. Books recording messages transmitted or received by wireless telegraphy, or by any form of signals, directing the operations of the ship, ought to be kept. If such messages related to the legitimate work of hospital ships they would not harm those in charge or prejudicially affect the ship itself. If they are destroyed on the eve of capture, no one could reasonably complain if unfavorable inferences were drawn. For the burning in November (some fortnight or more after the ship was captured) of the records of the various signalling lights which had been supplied, and which had been used upon the ship since she set cut as a hospital ship, I see no justification whatsoever. By the express terms of the convention, the right of search of hospital ships is given to belligerents. If those in charge of such ships can with impunity destroy all the documents and records of the ship immediately before a searching officer boards her, the right of search becomes to a great extent nugatory. The conclusions to which the evidence compelled me to come are that the Ophelia was not constructed, adapted, or used for the special and sole purpose of affording aid and relief to the wounded, sick, and ship |