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and alleged that the consignees named in the bills of lading were so named for convenience only and that no property passed to them. Here the claimants are the named consignees and, upon the case made in the Prize Court, they were consignees to whom the property had passed before seizure-in fact, the day before. Not only so, but they were consignees to whom the consignors had parted with the real control of the goods. Their intention, however, was to give the goods an ulterior enemy destination. Does this intention prevent them from being persons the insertion of whose names in the bill of lading causes the ship's papers to "show who is the consignee of the goods"? On principle their Lordships think not. If the seizure had been two days earlier and the claims had been made by Nordskog and Co., the language employed in The Louisiana (supra) would have applied. The present is a different case, and whether the date of the passing of the property be or be not crucial, it cannot be said on the present facts that the appellants were not the consignees. It is not even shown that they had an arrangement with Nordskog and Co. or with some other parties under which they had engaged to forward the coffee to Germany, though what difference that would have made, being a personal obligation only, need not be decided. All that is shown is that they had an intention. This appears to be precisely the case, or one of the cases, in which under the Order in Council in question, the ship's destination and the form of the ship's papers covered the goods. To extend the qualities which may be predicated of the consignee, whom the ship's papers are to show, to qualities connected with his general trade or with particular contracts, independent of the contract of carriage, would be to protect the goods only when the ship's papers show something which in maritime practice they never do and rarely could show. The coffee was accordingly in this case immune from condemnation, its ulterior enemy destination notwithstanding.

The Order in Council of March 11, 1915, Article 3, provided for the discharge of the goods in the present case, and proceeded:

Any goods so discharged in a British port shall be placed in the custody of the marshal of the prize court, and unless they are contraband of war shall, if not requisitioned for the use of his Majesty, be restored by order of the court upon such terms as the court may in the circumstances deem to be just.

These words determine the mode in which these goods are to be dealt with after having been placed in the custody of the marshal. It

is for the President in his discretion to decide on what terms they shall be restored. Presumably they have been requisitioned or sold, and are no longer in specie; if so, the proceeds or their money value will represent the goods and be the subject of his order. The decree of condemnation must be set aside and the case must be remitted to the Prize Court, to settle the terms of restoration, but as the point on which the appeal succeeds is one which was never properly urged upon Sir Samuel Evans, there can be no costs of this appeal. Their Lordships will humbly advise his Majesty accordingly.

THE HELLIG OLAF (CARGO EX).1

Judicial Committee of the Privy Council.

December 3, 1918.

This was an appeal from a decree of the President of the Prize Court (Sir Samuel Evans) made on February 23, 1917.

Mr. R. H. Balloch and Mr. C. T. Le Quesne appeared for the appellants; the Attorney-General and Mr. R. A. Wright, K. C., for the Crown.

LORD PARMOOR, in delivering the judgment of the Board, said: The appellants, the Vendryssel Packing Company, are a Danish company carrying on business at Copenhagen in fresh and pickled salmon. They have branches in America, which, in the ordinary course of business, buy the salmon direct from the fisheries. It is only in exceptional cases that they buy from other firms. The salmon is sent to New York and shipped thence to Copenhagen, for sale mainly in Denmark, but also in other countries, including Germany. In Germany the sales were generally, though not entirely, made through branches of the appellants' firm in Berlin and Schlutup, near Lübeck. The branch in Berlin was established in 1907. The last lot of salmon, comprising eight barrels, was sent to Berlin on January 19, 1916. The branch at Schlutup, near Lübeck, was established in 1909. The last lot of salmon, comprising eight barrels, was sent to Schlutup on the 19th December, 1915. The appellants on December 22, 1915, wired 1 The Times Law Reports, Vol. 35, p. 127.

to Hansen, their representative at Seattle, to ship a carload of Columbia River salmon, and, on January 8, 1916, sent a further message, to ask whether the salmon had been shipped. On January 21, 1916, they sent a wireless message in the name of Rollo Export Company to Tyee Fisheries, asking whether the Columbia River and Alaska salmon had been shipped, and received a reply that it had been shipped by steamer on February 3. It is clear, therefore, that, when the first message was sent in reference to the shipment of the salmon in question, the last lot of salmon had only two days previously been sent to Schlutup, and that the last lot of salmon was not sent to Berlin until nearly a month later.

A consignment of 52 tierces of pickled salmon for refrigerator was shipped on the S. S. Hellig Olaf, to be carried under the terms of a bill of lading dated February 4, 1916. The appellants were the shippers and consignors, and the goods were to be delivered at Copenhagen to the appellants or their assigns. Under the terms, therefore, of the bill of lading there was no consignee as distinct from the consignors, the control of the goods remained at the disposal of the shippers and consignors, and there was no independent outside interest in any other party. In effect the bill of lading left the disposal of the goods at the order of the consignors, and the ultimate destination in their discretion. At the time of shipment the tierces of salmon had not been declared as goods for neutral consumption, and no guarantee had been obtained from the Danish Merchant Guild.

The S. S. Hellig Olaf called at Kirkwall on or about February 15, 1916, when the tierces of salmon were ordered to be detained, but allowed to proceed upon an undertaking given to H. M. Government to store the goods in Copenhagen until the close of the present war, or to return them to England for the purpose of prize proceedings. It was not until they had become aware that the seizure had been made that the appellants obtained a guarantee in the usual form from the Merchants' Guild of Copenhagen. A correspondence followed between the appellants and the British Legation at Copenhagen and the British Foreign Office, and, finally, on November 25, 1916, the sum of £2,019, representing the insured value of the tierces of salmon, was paid into the Prize Court, for the purpose of obtaining a judicial decision on the legality of the seizure. Evidence was filed on behalf of the claimants, but the respondent, the Procurator-General, filed no evidence, relying on the admissions contained in, and deductions to be

drawn from, the appellants' affidavit and documents and the correspondence between the appellants and the Procurator-General, the British Legation at Copenhagen, and the British Foreign Office. The case was heard by the learned President, who, on February 23, 1917, pronounced the tierces of salmon to be contraband of war liable to confiscation, and he condemned the same for the sum of £2,019 then in Court. It was argued on behalf of the appellants that it was not competent for the Prize Court to condemn the sum of £2,019 in place of the condemnation of the goods themselves. Their Lordships are of opinion that, having regard to the terms of the agreement made on November 25, 1916, namely, that the sum of £2,019 should be disposed of in accordance with the order of the Prize Court, this objection cannot be maintained.

The main argument urged on behalf of the appellants was that the doctrine of continuous voyage did not apply, and that the shipment of salmon was not within the terms of the modification contained in para. 1 (iii) of the Declaration of London Order in Council No. 2, 1914. This modification provides that: "Notwithstanding the provisions of Article 35 of the said Declaration, conditional contraband shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned to order, or if the ship's papers do not show who is the consignee of the goods, or if they show a consignee of the goods in territory belonging to or occupied by the enemy." The construction of this modification was considered in the case of The Louisiana (34 The Times L. R. 222; [1918] A. C., 461), and the judgment of their Lordships covers the present case. The question arose, in that case, whether the ship's papers show who is the consignee of the goods, if the shipper retains control, and can alter the destination of the goods according to his interest, and at his own discretion. It was pointed out that under these conditions the shipper would retain as full control of the goods as if the consignment had been to order, and that conditional contraband could be supplied to the enemy Government, through neutral ports, as freely as if Article 35 of the Declaration of London had been adopted without modification. The judgment proceeds: "In their Lordships' opinion the words 'the consignee of the goods,' must mean some person other than the consignor to whom the consignor parts with the real control of the goods." In the present case there is no person other than the consignor to whom the consignor parts with the real control of the goods, and it follows

that the tierces of salmon are liable to capture as conditional contraband, although on board a vessel bound for a neutral port. It is not necessary to consider the further provisions of para. 1 (iii), but their Lordships do not desire to throw any doubt on the finding of the President that the ship's papers did show a consignee of the goods in territory belonging to or occupied by the enemy. The next modification (iv) provides: "That in the cases covered by the preceding para. (iii), it shall lie upon the owners of the goods to prove that their destination was innocent." The effect of this provision is that in cases covered by para. (iii) the neutral trader has brought himself under suspicion, and that it is incumbent upon him to displace such suspicion by sufficient proof of the innocency of the destination of the goods which have been seized. The question therefore arises whether the appellants have discharged the obligation which this provision throws upon them. At the date of shipment, the tierces of salmon had not been declared as goods for neutral consumption and no guarantee had been obtained from the Danish Merchant Guild. This omission is in itself a ground for grave suspicion. Their Lordships are not satisfied that any sufficient explanation has been given consistent with the innocency of the destination of the tierces of salmon. There appears to be no valid reason why this declaration should not have been made and the guarantee given in the usual course of business. On the other hand, the appellants had undoubtedly an inducement to endeavor to import salmon which could be sent forward to Berlin or Schlutup without the risk that they would be placed on the black list. When the first message was sent to Hansen at Seattle to ship a carload of Columbia River salmon, the last lot of salmon had not been sent to Berlin, and the last lot had only been sent, a few days earlier, to Schlutup. There is no direct evidence when the branches at Berlin and Schlutup were actually closed, and the inference is that they had not been closed at the date of the shipment in the Hellig Olaf. At one time the appellants were placed on the black list, but subsequently removed on the explanation that the salmon sent to Germany had not been imported subject to declaration or guarantee. Their Lordships fully accept the accuracy of the explanation given by the appellants, but it shows the existence of a business under which salmon were imported for enemy destination when not subject to the restrictions which a declaration and a guarantee would impose. Under these circumstances, it was clearly the duty of the appellants to make a full

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