doctrine of continuous voyage becomes applicable, and the goods on capture are liable to condemnation as contraband."

In short, it is the intention of the person who has the real control of the ultimate destination of the goods and not that of the shipper or the nominal consignee, which determines whether the destination is hostile or innocent.

Sec. 393. The Same. View of the German Prize Court. The German Supreme Prize Court had occasion to consider the element of intention in several cases. In the case of the Maria,1 it condemned a cargo of wheat (conditional contraband) destined to Belfast and Dublin. The claimants contended that the wheat was intended to be sold to mills operating for private purposes and not for the use of the British government or its armed forces. The Prize Court held, however, that such intention, even if established, was insufficient, since "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 "to order." Thus it was not the intention of the shipper which determined the destination but the possible ultimate use to which the goods might be put. Sir Samuel Evans in the case of the Kim referred to this decision as a "shocking example of the ease with which a Prize Court in Germany hacks its way through bona fide commercial transactions when dealing with foodstuffs carried by neutral vessels." Except for the fact, however, that the wheat was shipped before the war and had been sold to British merchants, the decision hardly seems less harsh than that of the British Prize Court in a number of cases, for example, that in the case of the Norne and Other Vessels cited above.2

3

In the case of the Norden, the German Prize Court condemned a cargo of conditional contraband destined from Rotterdam to Norwegian ports. The claimants alleged that it was their intention to use the goods for the manufacture of other articles and not to export the products thereof from Norway during the war. Regarding the element of intention the Court declared that the intention of the claimants was not decisive. The notion of hostile destination in the sense of the prize ordi

I Entsch. 45; Fauchille et De Visscher, Jurispr. All. 34; Eng. trans. X Amer. Jour. 927.

* See the criticism of the decision in the case of the Maria, by Verzijl, who thinks Sir Samuel Evans' characterization of it was justified. Grotius Ann. Int., 1917, p. 105. II Entsch. 35.

nance was purely objective in nature and not a subjective matter of intention, that is, it was a question of fact and not dependent upon the will of the parties.

Sec. 394. The Date at Which Hostile Destination Must Exist. To justify condemnation, at what moment must the enemy destination exist: the date of the loading of the goods on board, the date of the commencement of the voyage or the date of capture? The rule generally followed by the Prize Courts was that the hostile destination must exist at the time of the seizure of the goods, although account was taken of facts occurring subsequent to the date of seizure. Thus in the case of the Maria (supra), the German Prize Court, adverting to Articles 32 and 33 of the prize ordinance which establish the liability of conditional contraband to seizure and which lay down certain presumptions of hostile destination, added that "it must not be taken from this, however, that the presumption applies only to the time of 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 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 merely because it was proved that at the time of seizure he had not yet resold the same to the government." In the case of the Medea,1 where the German Prize Court pronounced a cargo of oranges destined from a Spanish port to a British port to be contraband, the claimants contended that at the moment of seizure no disposition had been taken relative to the use to which they were to be put and that it was the intention of the shippers to sell them in the public market sooner or later after arrival, according to the local usage. The Prize Court, however, referring to the cases of the Maria (supra) and the Modig, said it had already been decided and fully demonstrated that in determining whether goods were contraband, account could not be taken exclusively of the situation at the moment of seizure. There was a legal presumption of hostile destination when in virtue of the transfer of the bills of lading the shippers were in reality deprived of all power of decision in respect to the use of the goods which became subject to the

1 Entsch. 131; Fauchille et De Visscher, Jurispr. All. 111. 'I Entsch. 41.

requisition and control of the enemy government. Even if the fact of hostile destination did not exist at the time of seizure there was a possibility of ultimate hostile use by the enemy government and this possibility was decisive.

Sec. 395. The Same (Continued). View of the French Prize Council. The French Prize Council adopted a less rigorous view. In the case of the Oranje Nassau,1 it refused to treat as contraband a quantity of coffee and honey shipped before the war on a neutral vessel and consigned to a merchant in Hamburg, on the ground, inter alia, that the mere possibility of an intention on the part of the receiver of the goods to sell them to an enemy government did not constitute proof that at the moment of seizure the goods were destined to such government. Likewise in the case of the Grao," the Council refused to condemn certain goods laden on a neutral vessel and consigned to the city of Zurich, on the ground that nothing in the dossier justified it in considering the goods as having had, at the time of seizure, a destination other than that indicated by the bills of lading. But in the case of the Kirkoswald, the Council condemned a quantity of mineral oil consigned to the Swiss Société de Surveillance Economique, because it was not denied that the destination of the oil was the Swiss branch of a German house, which branch was located only 500 meters from the German frontier and was engaged in clandestine trade with Germany. The Council added that it mattered little that the Swiss Société had, subsequent to the seizure, proposed to substitute in the place of the branch house other consignees who were acceptable to the French authorities. This fact could not influence the decision of the Council, since the legality of the capture must be determined by the fact of destination at the moment of the seizure.

Sec. 396. Proof of Hostile Destination. Burden of Proof. In theory the burden of proof rests upon the captor to establish the fact of hostile destination in the case of contraband but in practice this principle was not strictly adhered to.*

It often happened in practice that instead of requiring the captor to prove the fact of hostile destination the Prize Court relied upon inferences drawn from the surrounding circumstances or upon the presumptions of hostile destination laid down by the Declaration of London or by national prize regulations which placed, or were interpreted as placing, the burden of contrary 1 Fauchille, Jurispr. Franc. 77. 2 Fauchille, Jurispr. Franc. 77.

* Ibid., 441.

As to the burden of proof see also Secs. 84, 331-335, supra.

proof upon the claimant. Not infrequently also the conclusions reached were based on presumptions invented by the Prize Courts themselves.1 Sir Samuel Evans, in the case of the Kim, discussed the matter at some length. Regarding the degree of proof necessary to establish hostile destination he quoted Lord Stowell in the Jonge Margaretha (1 C. Rob. at p. 194) as authority for the view that "certainty" was seldom possible in such cases and that "highly probable destination" was sufficient, in the absence of proof to the contrary furnished by the shippers. It was, he said, 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 was not necessary for them to prove "affirmatively and absolutely" an original intention on the part of the shippers to supply the goods to the enemy government or its armed forces, since if that were necessary it would be impossible for a belligerent to prevent the transportation of contraband to the enemy. And he added: "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. Cargoes are inanimate things, and they must be sent

1 Sir Erle Richards in an article entitled "British Prize Courts and the War" (Brit. Yr. Bk. of Int. Law, 1920-21, pp. 25 ff.), after having detailed the methods by which the British authorities obtained extrinsic evidence for the purpose of establishing hostile destination (see Sec. 86, supra), stated that in cases where this mode of proof was not possible "other evidence was admitted to shift the onus on to the claimants of showing that the ultimate destination of the goods was neutral." Thus in a case (the Hilleröd) where the consignee was a Swedish lawyer with a small salary and no experience in trade he became the purchaser of a cargo of oil at a price of 40,000 crowns and the charterer of a ship for which he paid cash in advance to the amount of 16,500, the Court put upon him the onus of proving that his residence was a genuine one and that he was a bona fide trader. On the other hand, where the consignee had been engaged in trade in the neutral country before the war and had never been the agent of a German house, the onus of proving that he was a "dummy" consignee or agent for the German government, was shifted to the captor. But if it was shown that there had been a marked increase of his imports of commodities on the contraband list, inferences of an intention to re-export them to Germany were drawn against him and the onus of proving the contrary was shifted back to his shoulders. Likewise where the trade statistics of a neutral country showed an enormous increase of imports of particular commodities over the pre-war scale the onus was placed upon the consignee of such article to show an absence of intention to re-export them to enemy country.

See a criticism of the new British policy of inventing "presumptions against shippers drawn from mere possibilities" and of shifting the burden of proof from the captor to neutral shipper, by Mr. C. P. Anderson in an article on the "Chicago Packing House Cases," XI, Amer. Jour., pp. 259 and 264. See also the observations of Verzijl (Grotius Ann. Int., 1917, p. 81), who criticizes the "abuse" by the Prize Courts of their power in respect to the onus of proof for the purpose of condemning innocent cargoes con signed to neutral ports.

on their way by persons. If that is all that was meant by counsel for the claimants when they argued that 'intention' must be proved, their contention may be conceded."

The French Prize Council admitted that, in principle, it was incumbent upon the captor in the case of conditional contraband to establish the fact of destination to the government or armed forces but that when the consignments were "to order" the captor had no means of doing so and could not be required to do it and that in such cases it rested with the Prize Council to endeavor to discover from the attendant circumstances the real destination.1

Sec. 397. The Same (Continued). Admission of Extrinsic Evidence. The old rule of procedure that captors must prove their case from the ship's papers and from the "standing interrogatories" addressed to the crew-that a ship must be condemned "out of her own mouth," as Sir J. Marriott put it-was not followed by the Prize Courts during the late war, particularly in cases involving the doctrine of continuous voyage. In fact the old practice was modified by the British Prize Court Rules of 1914, which permit with the consent of the Court the introduction of any extrinsic evidence, oral or documentary, which is material to the issue.2 The old practice was not unreasonable in the eighteenth century when it was introduced, when the destination of the goods was usually that of the ship and when the papers indicated fairly enough the real destination of both. But when as a result of the development of the means of land communication this ceased to be true in respect to the destination of the goods and the doctrine of continuous voyage came to be applied to the carriage of contraband, it became necessary to rely on other evidence than that coming from the ship, otherwise it would often have been impossible for captors to establish the fact of ultimate enemy destination of goods in the case of ships destined to neutral ports. In such cases the ship's papers never reveal the ultimate destination of the goods, nor in most cases would the testimony derived from the standing interrogatories do so. In many cases involving ultimate destination which came before the Prize Courts during the late war the goods were consigned to enemy agents in neutral ports, who were mere "dummy consignees," or "conduit pipes," through

1 See, among numerous cases, the Nieuw Amsterdam, Fauchille, Jurispr. Franc. 14, and the Banda, ibid., 90.

See further as to this, Secs. 85-86, supra.