The Imperial Prize Court in Hamburg gave judgment to the effect that the destroyed vessel and its cargo were subject to condemnation, and dismissed the claimant.

The appeal taken by the claimant from the above decision is unfounded.

The assumption of the commander of the Karlsruhe that the entire cargo of the Maria was destined for Belfast did not agree it is true with the facts, the larger part being destined for Dublin. The judge of the lower court did not enter into the question whether Dublin, too, was a place of the kind named in Sec. 33 c, d of the Prize Regulations at the time when the Maria was expected there; he declared it sufficient that the ship was to have first called at Belfast, to which place at all events those provisions of the Prize Regulations referred, and that therefore also the portions of the cargo destined for Dublin were first directed thither. Whether this holding should be concurred in need not be considered, since in the meantime an official declaration has been received from the Chief of the Admiralty Staff, according to which since the beginning of the war Dublin also has served as base of operations and supply for the English forces. Thus the legal presumption of the enemy destination of the goods is supported.

It has been repeatedly decided, and therefore needs no further argument, that the presumptions set up in the Prize Regulations shall be given effect in judicial decisions. It therefore need only be considered whether the claimant has succeeded in rebutting this presumption. The lower court decided that the proofs submitted were insufficient, since even if the original intention had been to sell the wheat to mills operating for private persons, it could not be positively established to what use the wheat would actually have been put upon arrival in Belfast and whether the English Government would not gladly have purchased it, and at a high price, especially since the bill of lading was made out simply to order. This the claimant opposes, stating that the point is, not what would possibly have become of the cargo, but whether its destination was an enemy one; if this be not acknowledged, the proof, which is allowed in rebuttal of the presumption, would become an impossibility.

This contention is not correct. It is true that if only the wording of Secs. 32 and 33 of the Prize Regulations be considered, it might appear as if all questions had to be considered as of the time of seizure. Conditional contraband is, according to those sections, liable to seizure upon

proof that it is destined for the enemy forces and such a destination is to be presumed when the facts stated in Sec. 33 are given. It must not be taken from this, however, that the presumption applies only to the time of the seizure, and that the proof in rebuttal is to be considered as sufficient when it is shown that at the time of seizure the goods did not have an enemy destination. It was proper and necessary thus to express the rule in the Prize Regulations because they are in the form of instructions to the commanders of men-of-war, who are only called upon to take into account the facts existing at the time of seizure. Pending the decision of the prize court, however, a certain time must naturally elapse, and in consequence the instructions can have only a corresponding application, as is immediately apparent when the Declaration of London is taken into consideration. It is impossible to admit that the court is bound to leave subsequent happenings out of consideration, as for instance, a sale of the cargo to the enemy forces after capture and in ignorance of the same, or to consider the consignment of the cargo to a notorious army contractor as innocent because it was proved that at the time of seizure he had not yet resold the same to the government.

Section 33 of the Prize Regulations gives as the ground for the presumption of the place of destination, the address to which the shipment was originally consigned; the content of the presumption, however, has nothing to do with the address, but refers to the real destination, the destination for the use of the enemy forces. If the place of destination exists, this is taken as proof of the real destination. Proof in rebuttal, it is true, may be offered, but it is not sufficient to prove that at the time of seizure the aforesaid disposal of the goods had not yet been made; for, just as in cases in which the legal presumption does not come into operation and the proof of the hostile destination is not confined to facts which had already occurred at the time of seizure, so the content of the presumption can likewise not be subject to such a restriction. Otherwise, it would be most easy to avoid the seizure of conditional contraband by abstaining from giving the goods in the first instance any but a purely local destination. Whether or not proof in rebuttal may be submitted can only depend on consideration of the facts of each individual case. It also depends on the kind of cargo, and how important under existing circumstances it might be for the armed forces of the state and, consequently, upon the probability that the enemy government would acquire it. In the prize cases the Alfred Hage, Havsoe,

etc., the court declared the presumption rebutted because proof was submitted which established that the cargoes, consisting of pit-wood, were actually sold on the spot where they were required and would there be used and consumed, and the court could not refrain from holding that the cargoes would have been actually used by private persons as intended. The present case is essentially different. The only actual fact is that at some time before the outbreak of the war the wheat was sold and shipped to an English importer. As to the rest, there were brought forward only assurances of the purchasers that they were not army contractors or anything of the sort, and that it was their intention to sell the wheat to mills in the neighborhood of their branches in order to meet their normal requirements. This may be taken as the literal truth, but it would still be absolutely uncertain where the wheat would in reality have gone, quite apart from the fact that after all the point is not where the corn is ground but for whom and for what the flour is intended.

That this case does not fall under Sec. 44 of the Prize Regulations was correctly decided by the judge of the lower court and not objected to by the claimant.

In view of the existing conditions it is clear, from the reasons given by the commander and repeated above, that he was entitled to destroy the captured ship, and it is unnecessary to go further into this point.

THE INDIAN PRINCE 1

Imperial Supreme Prize Court in Berlin

Decided April 15, 1916

In the name of the Empire: In the prize case of the English SS. Indian Prince, home port Newcastle, the Imperial Supreme Prize Court in Berlin, on the basis of the proceedings in its session of February 17, 1916, rendered judgment that the appeals against the judgment of the Prize Court at Hamburg of July 3, 1915, be rejected, the costs of the proceedings on appeal to be borne by the appellants.

REASONS

On September 4, 1914, the English SS. Indian Prince, laden with piece goods and en route from Santos, via Trinidad, to ports of the United 1 Translation from copy of decision furnished by the Department of State.

States of North America, was captured by H. M. S. Kronprinz Wilhelm in 7° S. and 31° W., and since it was not possible to bring the prize in, it was sunk on September 9th, after the passengers and crew had left the vessel. The steamer was the property of the Prince Line, Limited, of Newcastle.

In reply to the proclamation of the Imperial Prize Court in Hamburg, thirty parties interested in the cargo have registered claims for compensation on account of the destruction of 37 shipments. G. Amsinck & Co. (Nos. 11 and 12 of the statement in the disputed judgment) withdrew the reclamation enumerated under No. 11. A decision has not yet been passed concerning No. 37.

The court restricted the proceedings to the question whether compensation is to be paid for neutral property on board an enemy ship which was sunk with the latter, and reached the decision that the sunken ship and cargo were subject to seizure. Reclamations 1 to 10, 12 to 36, and 38 are to be rejected as unfounded. Against the judgment of the Prize Court the claimants 2 to 10, 12 to 26 and 38 prosecuted an appeal, which was rejected.

The court which pronounced judgment in the Glitra case,2 decided that if an enemy prize be legally destroyed, compensation is not due for neutral property on board the vessel and destroyed with it. This must also be maintained in regard to the counter-statements brought forward. According to general principles, a claim does not arise if the act through which the cargo was injured was not illegal, but legal, nor is any basis for a claim to compensation afforded by a positive instruction of the Prize Regulations. This also applies to Sec. 110 of the Prize Regulations in connection with Sec. 9, to which the claimants have referred. For, however correct the conclusion may be that since the captain is not entitled to take neutral property off enemy ships in order to use it he is certainly not entitled to destroy it unused, nothing is gained for the matter which is here in question. The question here is, whether the commander is compelled by international law to refrain from sinking an enemy vessel when he has a legal right to do so, because its destruction would mean the loss of the neutral goods on board, especially if it is impossible for him to bring the vessel in. After repeated examination, the court must continue to answer this question in the negative. In this respect reference can only be made to the former decision. In particular it is incorrect to say that the former decision was based on the fact that, 2 Printed supra, p. 921.

by shipping their goods in an enemy vessel, the shippers took the risk of capture and destruction, and therefore could not claim compensation. On the contrary, in taking a general view of the matter, the expression to the effect that the neutrals had the free choice whether they would entrust their goods to the enemy ship and run the risks in connection therewith, is only used in order to show that the denial of compensation is correct not only from a legal point of view, but also cannot be considered as unreasonable.

The principal reason which is decisive of the case in question lies in the actual dependence of the cargo on the fate of the ship, in consequence of which the cargo has to suffer the injury resulting from an act directed against the ship legally committed according to prize law. It cannot be seen why this principle, which is generally acknowledged and placed beyond doubt by the report of the drafting committee upon Article 64 of the Declaration of London,3 should apply only to the capture of a ship and not to its just destruction.

There remains, in consequence, only the question whether the plaintiff's claim is justified by the treaty of commerce between Prussia and the United States of North America. But this must also be answered in the negative.

Having regard to the practice which has been followed on both sides not only during the present war but also in previous cases, the principles of that treaty must also apply to the relations of the German Empire to the United States. As a matter of fact, however, this treaty contains nothing in favor of the claimants.

According to Article XII of the treaty of 1828, Articles XII and XIII of the former treaties of 1785 and 1799, and Article XII in the original form of 1785, are applicable. In this Article XII, the principle "Free ships make free goods" is agreed upon. While the treaties which the United States made at the same time with other states agreed upon the principle "enemy ships, enemy goods," an exception being made only for goods which were shipped before the outbreak of the war or within a certain period thereafter, the treaty with Prussia is silent on the question "enemy ships, enemy goods" and it appears doubtful from the treaty how this subject is to be understood. Prussia may have taken the stand that neutral property should not be subject to confiscation even on enemy ships, and this might be presumed from the fact that not long afterwards the same principle was acknowledged in common law. 3 For this report, see Supplement to this JOURNAL, Vol. 8 (1914), p. 88 at p. 139.