which consignments reached the enemy, and the real character of whom and the nature of whose transactions were of course not revealed by the ship's papers. On the other hand, cablegrams, wireless telegraphic messages and letters were frequently intercepted or fell into the hands of the authorities of the captor state which threw light on the transactions and sometimes furnished conclusive evidence of the real destination. The activity of the British government in exploiting these sources of information is thus described by an English lawyer who was frequently counsel in cases involving such transactions:

"These communications were collected, sorted and arranged with infinite care and industry by a special department of the government appointed for that purpose, so that in the later years of the war, at any rate, there was in existence a dossier more or less complete of all the principal merchants concerned in trade with Germany. Their code words were discovered, their dealings were tabulated, and it became possible in this way either to show the enemy destination of the particular consignment seized or to infer from the transactions of the consignees during the war, even if the evidence in any particular case were not directly to the point, that captured cargoes consigned as a result of these communications were going to the enemy; an inference which consignees must displace to avoid condemnation."1

In the case of the Andjik, the British Prize Court said apropos of the activity of the government in this connection: "Some facts were derived from the expert knowledge of servants of the Crown who were engaged in the supervision of foreign trade; and (other) facts were derived from the knowledge of other servants of the Crown who were engaged in the supervision of foreign correspondence who, as I have already said in other cases, seem to have exercised an unceasing vigilance over communications by sea, by cable, by mail and by wireless, and to have derived from them a very great deal of information."

Sec. 398. The Same. Neutral Protests. Neutrals of course did not fail to protest against this new rule of prize procedure. The American government in particular, referring to the change of procedure, declared that "innocent vessels or cargoes are now seized and detained on mere suspicion while efforts are made to obtain evidence from extraneous sources to justify the detention and the commencement of prize proceedings. The effect

1 Sir Erle Richards, "British Prize Courts and the War," Br. Yr. Bk. of Int. Law, 1920-21, p. 25. As to the necessity of admitting extrinsic evidence in such cases, in order to establish the fact of hostile destination see also Roscoe, "Prize Court Procedure," ibid., 1921-22, pp. 90 ff.

of this new procedure is to subject traders to risk of loss, delay and expense so great and so burdensome as practically to destroy much of the export trade of the United States to neutral countries of Europe." 1

Criticism of the new procedure by English writers also was not entirely lacking. It would seem that if the doctrine of continuous voyage or ultimate destination is to be retained as a principle of international law the rule permitting the admission of extrinsic evidence, subject of course to the strict control of the Court will have to be recognized, otherwise the doctrine cannot be effectively applied. It seems to be the only procedure by which the real facts can be brought out. But even those who defend the new practice as necessary under modern conditions admit that it may necessitate delays in bringing cases to trial and in some cases cause injustice to claimants.

3

Sec. 399. The Same. Justification by the Prize Courts. The necessity of admitting extrinsic evidence and even of requiring the production on the part of claimants of documents. such as account and letter books and other usual commercial documents in cases involving the question of ultimate destination where goods are shipped on a neutral vessel and consigned to a neutral port was emphasized by Lord Parker, speaking for the Judicial Committee in the case of the Consul Corfitson.*

Lord Parker added that in the absence of this information the Crown would be without all means of proving that the goods in question were contraband of war.

5

In the case of the Baron Stjernblad, where it was a question of whether goods shipped on a neutral vessel and consigned to a

1 Note of the American Secretary of State to the United States Ambassa dor at London, Oct. 21, 1915, Spec. Supp. to X Amer. Jour., p. 77. The British government in reply asserted that the old practice had become obsolete and that modern conditions had made the change necessary (ibid., p. 125). The British government also contended that during the American Civil War the captor was allowed to establish enemy destination by "all the evidence at his disposal" and it cited the case of the Bermuda (3 Wall 515) in support of its contention. The American Secretary of State in turn denied that this case supported the claim of the British government to take a vessel into port, there to obtain evidence to justify it in detaining the vessel for prize proceedings (ibid., 77).

For example, Baty, Britain and Sea Law, pp. 62 ff. See also his article, Neglected Fundamentals of Prize Law, in the Yale Law Journal, Vol. 30, p. 34. But while criticizing the new procedure as improper he admitted that "the conception of continuous voyage requires captor's evidence to make it effective." Compare also Briggs, The Doctrine of Continuous Voyage, pp. 152 ff.

Roscoe, in the article cited (p. 95), SO admits.

VI Lloyd 268; III Br. & Col. Pr. Cas., p. 11. See the passage cited, Sec. 93, supra. "VI, ibid., 99; III, ibid., 19.

port in a neutral country (Sweden) into which imports of the particular commodities had enormously increased since the outbreak of the war and from which country re-exports to Germany had correspondingly increased, had an ultimate enemy destination, Lord Parker, adverting to these circumstances as creating strong suspicion and pointing out that evidence derived solely from the ship's papers would be insufficient to establish the facts, said:

"It is clear that the ultimate, as opposed to the ostensible, destination of goods would seldom, if ever, appear on the ship's papers, or be within the knowledge of the master or crew. It would have to be proved or inferred from other sources; and it could hardly be contended that, if the Crown were in possession of evidence obtained from such other sources from which an ultimate destination in an enemy country could be inferred as reasonably probable, the seizure of the goods would not be justified."

The French Prize Council, like the British Prize Courts, did not hesitate to admit extrinsic evidence in the form of wireless telegraphic communications exchanged between correspondents and agents of enemy houses, and other similar evidence.1

Sec. 400. Proof Derived from the Ship's Papers. By Article 32 of the Declaration of London the papers on board are conclusive proof as to the destination of a ship carrying absolute contraband, unless she is found to be clearly out of the course indicated by her papers and is unable to give adequate reasons to justify such deviation. The General Report accompanying the Declaration explains that this statement of the rule is "not to be interpreted too literally, since that would render fraud easy. A search of the vessel might reveal facts which show beyond doubt that the real destination is other than that indicated by the papers. The evidence contained in the papers is therefore conclusive only when the evidence is in accord with the facts."2 By Article 35 of the Declaration, the ship's papers are likewise conclusive, subject to the exception mentioned above, both as to the destination of the ship and the port of discharge of the goods, in the case of a vessel carrying conditional contraband. The

'See the cases of the Almazora (No. 3), the Pena Castillo (Nos. 1 and 2) and the Luis, 27 Rev. Gén. (1920), Jurispr. 72, 75, 77, 82. Among other cases in which wireless messages, telegrams, letters and other extrinsic evidence were relied upon in establishing hostile destination may be mentioned the Kim (supra), the Hellig Olav (VI Lloyd 163), the Kronprins Gustaf Adolf (ibid., 246), the Liv (VII, ibid., 99), the Norne (IX, ibid., 429), the Tiber (Fauchille, Jurispr. Franc. 414) and the Garibaldi (Fauchille et Basdevant, Jurispr. Ital. 248).

2

Compare Bentwich, The Declaration of London, p. 65.

interpretation of the General Report referred to above is equally applicable to this Article; that is, if the papers are fraudulent they may be disregarded. If the vessel carries no papers it may be difficult for the Prize Court to determine its destination but as ships are usually required to carry papers such cases are rare.1 Naturally, the destruction of the papers before seizure ("spoliation" of papers, as it is termed) creates a presumption of guilt if it is not actually conclusive. Thus the French Prize Council in the case of the Iro-Maru 2 declared that according to a rule of international law of which article 3 of the French naval règlement of July 26, 1778, was an application, a ship, whatever its flag, whether neutral or allied, was good prize, whenever it was established that its papers had been thrown overboard or otherwise destroyed or disposed of, without there being any need to examine into the character of the papers or as to who destroyed them. The same rule applies in the case of goods carried by the ship.3

In a number of cases the Prize Courts were called upon to determine what effect should be given to evidence contained in the ship's papers as to destination when certain facts and circumstances gave rise to suspicion or even indicated a different destination. In the case of the Twee Ambt, condemnation was sought of a Dutch vessel (and its cargo) which was captured while carrying a cargo of coffee from Java to Holland, on the ground that the master was said to have revealed at Freetown, Sierra Leone, when the ship called there, the design of taking the ship and cargo to a German port (Stettin). The ship's papers were regular and indicated Rotterdam as the port of destination. Sir Henry Duke ordered the release of the vessel and the cargo on the ground that she was at the time of capture still on her authorized voyage and that it could not be said that her destination was Stettin, because although the master had conceived the design of taking the ship and her cargo to an enemy

Such a case was the Katwijk Aan I and II (II Entsch. 292), which came before the German Prize Court in 1919. The Court declined to condemn the cargo for want of evidence that it was destined to the enemy. In the case of the Ellispontos (Fauchille 319) the lack of a bill of lading was considered to be proof of hostile destination in the case of a consignment "to order" to a neutral port. To the same effect see the Atlas (ibid., 39), the Nicolaos Canellopoulos (ibid., 339), the Panelinion (ibid., 407), the Thesalia (ibid., 453), the Eryssos (ibid., 472).

Fauchille, Jurispr. Franc. 323.

Sir Samuel Evans, in the case of the Ophelia (I Br. & Col. Pr. Cas. 222), discussed the point as to how "seriously the Prize Courts have regarded the destruction of documents," such as ships' papers and documents relating to cargoes. See Secs. 90, 179, supra.

X Lloyd 165; III Br. & Col. Pr. Cas. 730.

port, his crew refused to support him, in consequence of which he was unable to carry out his design; and that therefore there was no overt act which would subject the ship and cargo to condemnation. Adverting to the fact that the owners of the ship and cargo were neutrals engaged in a commercial enterprise with the approval of the British government and that if their ship and goods were condemned it would have to be done because of acts which they did not authorize, Sir Henry said:

"It is quite true that in some prize cases you find passages in which it is said that although the act done is an act of barratry, nevertheless the ship and the cargo must pay the penalty. But in every case, so far as I am aware, the penalty was incurred only by the act done. The design of the master, however criminal it might have been, was never carried into practical effect. There is no overt act on the part of the ship which warrants my saying that this ship had been brought into the prosecution of an unneutral undertaking. She was on her authorised voyage, and she was subjected, in due course, to the control which the British authority had provided for her. In my opinion, there is no evidence which would warrant me in saying that at Freetown the master entertained the design at all costs of going to Stettin; I think it was in contemplation and was not a design definitely adopted; and I am satisfied, as a matter of fact, upon the proofs before me, that the master never could have carried the crew with him in any undertaking of that kind; and so, in point of fact, I say that whatever the criminal design or the criminal wishes of the master, and however unneutral the mind of the master, he never, in fact, began to carry them into execution, and he never could have carried them into execution."

In the case of the Zoodochos-Pighi1 the French Prize Council condemned a cargo of coal laden on a neutral vessel (Greek) captured in the Chio canal at a less distance from the Turkish island of Koumouthi than from the canal occupied by the Greeks, and which was consequently in Turkish waters. The ground of condemnation was that at the time of capture the ship, whose apparent destination was Salonika, was outside the course indicated by its papers and was unable to give satisfactory reasons for its deviation, in accordance with Article 35 of the Declaration of London.2

3

In the case of the Hugo Hamilton the German Prize Court refused to condemn the contraband cargo of a Swedish vessel

1 Fauchille, Jurispr. Franc. 313.

See also the similar case of the Adelphotis (ibid., 383), where a Greek vessel (and its cargo) captured in the Chio canal were condemned because the vessel at the time of capture was about 100 miles out of its normal course and the master could give no satisfactory explanation of his deviation.

II Entsch. 102.