Sec. 389. Contraband May Include Property Transported in the Mails. During the late war, governments and Prize Courts were, apparently for the first time, called upon to determine whether goods carried not as ordinary cargo but in the parcels mail might be seized and condemned as contraband. When in consequence of the allied measures against commerce with Germany her overseas trade had been largely destroyed, the Germans undertook to avoid the Anglo-French restrictions in respect to blockade and contraband, through resort to the postal service for procuring supplies from abroad and for exporting to overseas countries goods which they desired to sell abroad. Toward the end of the year 1915, their exploitation of the postal service had assumed such proportions that the British and French governments adopted the policy of intercepting, taking into port and examining the mails of neutral steamers proceeding to or from the ports of neutral countries adjacent to Germany. In a good many cases they found in the parcels mails large quantities of articles which if they had been carried as ordinary cargo merchandise would have been clearly condemnable as contraband. Among such articles were rubber, jewelry, chemicals, tea, cereals, coffee, meat, and other foodstuffs, soap, shoes, and even firearms. Many of them were mislabeled as "samples of no value," "reading matter" and not infrequently they were sent as first class mail on which the rates for letter postage were paid.1 In a number of instances the parcels so seized were put into the custody of the Prize Court and condemnation was demanded by the Crown. While ordinarily the term contraband is understood to embrace only goods or merchandise shipped as freight and which constitutes a part of the cargo, there is no principle of logic or reason why it should be so restricted. So far as the effect upon the belligerent is concerned it is immaterial whether contraband is carried as freight or mail. The definition of contraband given by the British government in its memorandum prepared for the International Naval Conference, namely, "neutral property on board ship on the high seas or in the territorial waters of either belligerent which is by nature capable of being able to assist in and is on its way to assist in the naval or military operations of the enemy," would undoubtedly include property carried in the mails, if so destined and capable of serving the enemy.2

See details in my International Law and the World War, Vol. II, pp. 351 ff. * Bentwich, The Declaration of London, p. 59.

2

Sec. 390. The Same. Decisions of Prize Courts. The first case involving the question was that of the Simla,1 which came before Sir Samuel Evans in May, 1915. The goods seized consisted of thirty-one packages of elephant tusks, leopard and snake skins, curios, etc., shipped on a German vessel in the parcels mail by certain colonists in German East Africa, addressed to various persons resident in Germany. No claimant appeared and the goods were condemned on the argument of The Procurator-General that Article 1 of the Eleventh Hague Convention which provides that "postal correspondence, whether of neutrals or of belligerents, and whether it is official or private, found at sea in a ship, whether neutral or enemy, is inviolable" did not apply to goods shipped by parcels post. In the case of the Tubantia, Gelria, and Hollandia,2 decided a year later, Sir Samuel condemned a quantity of rubber sent by letter mail from South American ports on three Dutch vessels, addressed to consignees in Germany. Adverting to the attempt which had been made on "a very large scale" to use the postal service to smuggle "furtively" into Germany contraband goods under the protection of Article 1 of the Eleventh Hague Convention, Sir Samuel declared that such shipments were certainly not protected by that Convention. He added that "the attempt to make use of the Article as a cloak for parcels of rubber sent by post is dishonest in the extreme; and it shows how little effect is given in time of war to those conventions which have been made in time of peace." The French Prize Council adopted the same view in a case involving the liability to seizure as contraband of a quantity of revolvers shipped by parcels post on a Spanish vessel and addressed to various merchants in Switzerland. Against such seizures various neutral governments protested and the Swedish

I Br. & Col. Pr. Cas. 287.

"V Lloyd 282.

In the case of the Noordam and Other Vessels (IX Lloyd 205; III Br. & Col. Pr. Cas. 488), Sir Samuel held that securities sent from Germany to Holland and which were to be re-forwarded to America and which were seized in the letter mails on Dutch steamships were "goods" within the meaning of the reprisals order and were not protected by the 11th Hague Convention. Some of the securities were enclosed in envelopes with letters and upon which the letter postal rate had been paid; others were made up into parcels. Sir Samuel said he did not think it made any difference how they were sent, whether by letter mail or parcels post. To the same effect see the Frederick VII (VI Lloyd 109; II Br. & Col. Pr. Cas. 395). Likewise goods sent from Germany to Copenhagen and dispatched from the latter port to the United States by parcels mail on a Dutch vessel were held to be goods of enemy origin in the sense of the reprisals order of March 11, 1915. The United States (VI Lloyd 170; II Br. & Col. Pr. Cas. 390).

The Barcelo (Fauchille, Jurispr. Franc. 84. See also the case of the Vénézuéla, 27 Rev. Gén. (1920), Jurispr. 9.

The

government even resorted to measures of retaliation.1 American government, however, stated that it was "inclined" to regard articles shipped by parcels post as being "subject to the same treatment as articles sent by express or freight in respect to belligerent search, seizure, and condemnation"; what it actually protested against was the manner in which the right of search and detention in such cases was exercised.2 The discussion of Article 1 of the Eleventh Hague Convention, the explanation of the German delegate (Herr Kriege), who proposed it, and the general understanding of those participating in the discussion leave little doubt that the protection intended by the article was limited to postal correspondence and did not include merchandise shipped either by letter mail or by parcels post.

3

II

HOSTILE DESTINATION

Sec. 391. What Constitutes Hostile Destination? In determining what constitutes hostile destination the Prize Courts were often called upon to weigh the element of intention which animated the parties, as against the actual facts. In such cases an intent to supply a belligerent with contraband goods might exist in the mind of the shipper or that of the consignee or both. On the other hand there might be no evidence of intent in the mind of either and yet the facts might show an undoubted enemy destination. Finally, both elements might coexist. And in case evidence of intent were shown, the intent might not have existed at the time of shipment although the shippers knew that the goods had an ulterior destination. In the case of the Kim and other vessels, Sir Samuel Evans after having reached the conclusion that the ultimate destination of the goods was the armed forces of the enemy, discussed the question as to whether the captor was bound to prove the existence of an original intention on the part of the shippers to send the goods to the enemy and whether the existence of such an intention was essential to condemnation. In holding that he was not so bound but that it was

1 See my International Law and the World War, Vol. II, p. 353. See the correspondence between the American and British governments, Spec. Supp. to 10 Amer. Jour. of Int. Law, pp. 404 ff.; also my work cited, Vol. II, pp. 353 ff.

Actes et Documents, la Deux. Conférence de la Paix, Vol. I, p. 266, and Vol. III, pp. 173, 861, 1122, and the summary in my work cited, pp. 355-356.

sufficient to show that the shippers knew that the real destination of the goods was the armed forces of the enemy, he observed:

"It was argued that the Crown, as captors, ought to shew that there was an original intention by the shippers to supply the goods to the enemy government or the armed forces at the inception of the voyage as one complete commercial transaction.

"If the captors had to prove such an arrangement affirmatively and absolutely in order to justify capture and condemnation, the rights of belligerents to stop articles of conditional contraband from reaching the hostile destination would become nugatory. It is not a crime to dispatch contraband to belligerents. It can be quite legitimately sent subject to the risk of capture. But the argument proceeded as if it were essential for the captors to prove the intention as strictly as would be necessary for a criminal trial, and as if all the shippers need do was to be silent, to offer no explanation, and to adopt the attitude towards the Crown, 'prove our hostile intention if you can.'

"It is, no doubt, incumbent upon the captors in the first instance to prove facts from which a reasonable inference of hostile destination can be drawn, subject to rebuttal by the claimants.

"But 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 their 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 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."

1

Sec. 392. Whose Intention Is Decisive as to Hostile Destination? View of British Prize Courts. Where the element of intention exists, whose intention is controlling, that of the shipper, the nominal consignee or any other person who may be in a position to control the final destination of the goods? In the case of the Louisiana and Other Vessels, the Judicial Committee held that hostile destination might be determined not only by the intention of the shipper but by that of any other person who was in a position to control the ultimate destination of the goods, that in fact the intention of the latter person alone was controlling. Lord Parker, speaking for the Judicial Committee, said on this point:

"In considering, on the principle of 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 V Lloyd 248; III Br. & Col. Pr. Cas. 60.

such destination which is really material. Had Klingener and Fritsch [endorsers of the bills of lading] had any real interest, it might have been their intention which mattered. Had Christensen and Schrei [selling agents for the appellants] purchased the goods, or even had they obtained possession of the bills of lading under circumstances which entitled them to dispose of the goods, notwithstanding orders to the contrary from the appellants, or some one for whom the appellants were acting, the intention of Christensen and Schrei would have been a material point. 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. It would be ridiculous to suppose that the German government were speculating in fodder stuffs for the Scandinavian markets. These stuffs were urgently needed in Germany for the purposes of the war, and the only possible inference is that the goods in question were intended to reach Germany and be utilized for war purposes."

1

In the case of the Norne and Other Vessels, the British Prize Court condemned a cargo of oranges shipped from Spain to Rotterdam and consigned to a neutral purchaser but who in the opinion of the Prize Court was never intended to have any control over them, that control being in the hands of a local agent of an enemy firm in Hamburg. The Judicial Committee in affirming the judgment declared that it was not sufficient for the appellants to establish that the Spanish shipper had no intention of sending his goods to Germany. Whether goods in any particular case are contraband by the application of the doctrine of continuous voyage was a question of fact.

As to this, Lord Parmoor said:

"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

1

In the case of the Twee Ambt (X Lloyd 174), Sir Henry Duke, referring to this passage from the judgment of the Judicial Committee, in the Louisiana, said he was bound by it but that he must interpret its meaning. There were, he said, "a variety of cases in which owners of ships and cargoes may become liable, beyond their own intention, for the conduct of their agent, the master. The most extreme case within my recollection is that in which the owners of a vessel were held liable in the condemnation of their vessel by reason that the master against his will had been compelled to engage in an unneutral undertaking of carrying enemy forces and papers." IX Lloyd 402; III Br. & Col. Pr. Cas. 977.