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 of 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 entirely 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." In various cases the German Prize Court held that where contraband goods were consigned to persons in neutral territory, establishment of the fact that the neutral consignee had already sold the goods to other neutral purchasers was not regarded as sufficient proof to rebut the legal presumption. But it was admitted that where contraband goods were consigned to an enemy fortified place which was a base of supplies the presumption did not apply if the goods had been sold in advance in a place offering in itself a serious guarantee that they would not be used for hostile purposes.2 Where the legal presumption of hostile destination existed, as where a cargo of contraband laden on a vessel bound for a Dutch port and which had been captured and released by the British Naval authorities on condition that the goods be returned to London (a fortified place and a base of supplies) and put 1 Among others see the Norden (II Entsch. 35). "The Medea (I Entsch. 31). The consignment here was a cargo of oranges destined to London. The Court held that the legal presumption applied because the shippers in transferring the bills of lading deprived themselves completely of all power of control of the eventual disposition of the goods and thereby delivered them into the hands of enemy merchants who were subject to the power of the enemy government. The fact that oranges were not foodstuffs and did not constitute a part of the rations of English soldiers was not sufficient proof to rebut the legal presumption of hostile destination. Oranges were used for making marmalade which was served to English soldiers and the Court could not ignore the fact that the "taste for oranges was extremely developed among the English people." at the disposition of the English Prize Court, the German Prize Court refused to consider as proof in rebuttal suggestions as to the possible decision of the British Prize Court. It likewise considered as superfluous the fact that at the moment of seizure the captain of the vessel had, because of bad weather and the danger from mines, abandoned his intention of going on to London, in consequence of which the goods had lost their hostile destination, since he was under an engagement to deliver the goods into the custody of the British Prize Court and would be obliged ultimately to fulfill his engagement.1 But in the case of the Anvers 2 the Prize Court refused to condemn a cargo of boards (conditional contraband) destined to London to be used for the manufacture of sugar boxes. The Court accepted as proof in rebuttal of the legal presumption, declarations made under oath that the boards were to be used for pacific purposes. The argument of the Imperial Commissioner based on the supposition that the enemy government might requisition them upon arrival for war purposes was not sufficient to justify condemnation. Such use by the government must be proven in order to establish hostile destination. Similarly in the case of the Alfred Hage, the Court refused to condemn a cargo of mining timber (conditional contraband) destined to an enemy fortified place because it was not proven that it was to be used by the enemy government for belligerent purposes. The mere possibility that it might be so employed was not considered to be sufficient proof of hostile destination in view of other circumstances. In this case the contrary proof had been produced that the timber was to be employed by private individuals in connection with the exploitation of their mines. Likewise in the case of the Cocos," the Court refused to consider as having a hostile destination a cargo of conditional contraband consigned to an enemy base of supplies but which it was shown, could not in the natural course of things be resold by the last acquirers. The mere hypothesis that the enemy government might requisition it and employ it for war purposes was held to be too remote an eventuality to be taken into consideration. 6 On the other hand, in the case of the Balduin the Court refused to allow damages for the destruction of a cargo of wood (conditional contraband) intended for the boxing of preserves 'The Oostzee (I Entsch. 347). 'I, ibid., 38. To the same effect see the Modig (supra). 'I Entsch. 25; Fauchille et De Visscher 19. 'I Entsch. 141; Fauchille et De Visscher 107. I, ibid., 385; ibid., 218. German P t likewise ent of eather and Ing on to le t their bos to deser efused boxes 3 re to be ial Co Inment not sur rnment 3 to cond that it was not o in view of had be er as ha D, couds t acquies night req too reac e Court go of my í preserves 5; ibid, and vegetables because it was destined to an enemy manufacturer who was a notorious furnisher of preserves and vegetables to the enemy army and navy. In this latter respect the facts differed from those in the case of the Anvers, since there the consignee was not an important purveyor of supplies to the enemy government but a sugar refiner and sugar was less indispensable for the feeding of armies than were canned preserves and vegetables. In consequence the claimants had failed to rebut the presumption of hostile destination by contrary proof. Sec. 416. The Same. Italian Jurisprudence. The Italian Prize Commission, in the case of the Kyzicos (cargo) 1 held that the burden of proof in rebuttal of the legal presumption of hostile destination was discharged when the claimants produced bona fide documents to show that the goods were destined to a friendly government. In this case it was a question of certain locomotives shipped on a neutral vessel and consigned to the Serbian government for use on the State railways. The evidence consisted not only of declarations made by officials of the Serbian government but original copies of letters and telegrams from the company which furnished the locomotives. In the same case dealing with the ship itself 2 the Prize Commission held that the decree of June 3, 1915, relieving the captor from the burden of proving hostile destination where the papers failed to show who was the consignee, had reference not to proof of innocent destination given to the goods by the sellers but by the owners, that is, in effect by the purchasers. In other words, contrary proof could, as a general rule, be furnished only by the owners of the goods and not by the sellers. Sec. 417. The Same. British Decisions. In the case of the Constantinos, the Prize Court for Egypt was called upon to deal with a consignment of foodstuffs destined to an enemy fortified place (Smyrna) and in which therefore the legal presumption of hostile destination existed. The Prize Court, however, accepted as proof to the contrary the fact that the ship was a small one, that the cargo consisted of a number of petty consignments and the production of affidavits declaring that the goods were not intended for the enemy authorities. Furthermore, before importing the goods the consignee had obtained guarantees from the chief military authorities in Smyrna that * Ibid., 59. Fauchille et Basdevant, Jurispr. Ital. 1. 3 'II Br. & Col. Pr. Cas. 140. they would not be requisitioned. In view of these circumstances Judge Cator concluded: "The point of view of all the correspondents is that of a petty trader considering his interests in that capacity. The affidavits have not been contradicted and are scarcely challenged, and I have no difficulty whatever in finding that so far as the goods are concerned they were intended only for the civil population of the town. Moreover, it is not suggested that at the time of this capture the armed forces of Turkey had become so merged with the civil population as to be indistinguishable, so that the questions discussed in the case of the Kim (P. C. i. 405) do not arise here." In the case of the Medan,1 which involved the question whether a quantity of American money (conditional contraband) sent by mail on a neutral vessel and addressed to private individuals residing at bases of supply in Germany and AustriaHungary had a presumed enemy destination, Sir Samuel Evans held that under Articles 33 and 34 of the Declaration of London (which were in force at the time) the presumption did not arise. Adverting to those presumptions and the nature of proof in rebuttal thereof he said: "Now that means, in my view, that they may be rebutted, not necessarily by evidence, but by any circumstances or facts which can be as strong as any evidence can be. Having regard to the nature of these remittances, and the persons to whom they were sent, I cannot come to the conclusion that the presumption arises that they were destined for the armed forces of the enemy. I think they were destined for these citizens of Germany personally, and they must be regarded as not coming within the category of conditional contraband." But after having reached the conclusion that the money was not destined for the armed forces in the sense of the Declaration of London, he proceeded to apply the Reprisals Order in Council of March 11, 1915, the object of which was to prevent any and all articles from going to Germany, and held that since the money had an enemy destination and was enemy property, it must be detained until the conclusion of peace.2 Sec. 418. Neutral Embargoes Against Re-exportation Not Conclusive as to Innocent Destination. As is well known, the governments of various neutral States, particularly those of Denmark, the Netherlands, Norway, Sweden and Switzerland VII Lloyd 390. Verzijl (op. cit. 830) characterizes this opinion as a "curious" one in which the Court combats one presumption by others and where it admits and denies at the same time the existence of a presumed hostile destination. under pressure from the British and French governments, placed embargoes on the re-exportation to belligerent territory of goods which were on the British and French contraband lists. In return for these interdictions they were allowed to import such goods from over the seas. But notwithstanding the guarantees thus given against the re-exportation of contraband goods to enemy country the Prize Courts declined to recognize them as being conclusive of innocent destination. In the case of the Louisiana and Other Vessels, which involved the question of the ultimate destination of cargoes of fodderstuffs shipped from the United States to Danish and Swedish ports, Lord Parker, speaking for the Judicial Committee which affirmed the judgment of condemnation pronounced by the lower court, said: "It is true, no doubt, that the municipal laws of both Denmark and Sweden prohibit the export of fodderstuffs, but it is not clear that this prohibition includes trans-shipment at Danish or Swedish ports, or that licenses for export are not readily granted by the Danish or Swedish authorities, at any rate if the stuffs in question are not really needed for home consumption. The experience of the Prize Court during the war has made it clear that the laws referred to, however stringent, can be evaded." It was therefore held that the cargoes on two of the vessels were destined for the German government. Even where there was a formal agreement between the neutral government and the belligerent relative to the quantity of goods which the former was authorized to permit to be exported, the British Prize Court sometimes confiscated the ship and cargo. In the case of the Ranveig (1920), which involved the question of the ultimate destination of a cargo of salted herrings shipped on a Norwegian ship and which was captured in the course of transit by sea from a Norwegian port to the German port of Stettin, counsel for the shipowners invoked an agreement which had been made between the government of the United States and that of Norway, to which the allied powers assented, whereby Norway undertook not to export to the Central Powers or their allies foodstuffs of any kind, except fish and fish products not to exceed 48,000 tons per annum, and not more than 15,000 tons of which was to go to Germany and her allies in any three 'Some of these embargo lists may be found in International Law Situations for 1915, pp. 33 ff. On the Danish lists were some 250 articles; on the Dutch and Swiss lists about 200; and on those of Spain and Sweden about 500. V Lloyd 248; III Br. & Col. Pr. Cas. 60. IX Lloyd 380, 393; III Br. & Col. Pr. Cas. 740, 1013. |