THE CASE OF THE KIM

305 voyage was, as Sir Edward Grey had instructed the British delegates to the London Naval Conference, "whether the whole transaction was made in pursuance of a single mercantile transaction, preconceived by the consignor from the outset." The doctrine of continuous voyage, they further argued, had never been applied to a case where the goods on arrival at a neutral port had been sold there, and it could not be applied where the evidence went no farther than to show that they were sent to the neutral port in the hope of finding a market there for delivery elsewhere. This view, they affirmed, was that taken by the United States Supreme Court in the cases of the Stephen Hart, the Bermuda, the Springbok, and the Peterhof during the American Civil war. The question was also raised as to whether it was competent for the crown by order in council to alter the rules of international law in such a way as to affect the rights of neutrals, and the opinion was expressed that the order in council of October 29, 1914, had so altered the law and was not binding on the prize court.

On September 16, nearly a year after the seizure of the vessels, the prize court rendered its decision. Adverting, in the first place, to the enormous increase of exports from the United States to the Scandinavian countries since the outbreak of the war, a fact which created a strong presumption that a large portion of such exports were intended for Germany, Sir Samuel Evans called attention to the fact that Denmark, the country to which the cargoes in question were consigned, was a small State, containing less than three million inhabitants, and one which, as regards food-stuffs, was an exporting rather than an importing country, yet whose proximity to Germany rendered it a convenient territory from which goods imported from America could be transported to Hamburg, Altona, Lübeck, Stettin, and Berlin. Sir Samuel then quoted statistics to show that vast quantities of lard, meat, bacon, etc., were being imported into Denmark, far in excess of the local demand. For example, the average annual quantity of lard imported into Denmark during the years 1911 to 1913 from all sources was 1,459,000 pounds, whereas the quantity of lard consigned on the four ships in question alone amounted to 19,252,000 pounds. In short, within a period of a month these vessels had transported more than thirteen times the quantity of lard which

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had been imported annually into Denmark for each of the three years prior to the war. Armour and Company alone shipped to Copenhagen in October and November, 1914, twenty times the amount of lard exported from the United States to all Scandinavia during the corresponding period of 1913. These facts, Sir Samuel observed, "give practical certainty to the inference that an overwhelming portion, so overwhelming as to amount to almost the whole, of the consignments of lard in the four vessels being dealt with, was intended for, or would find its way into Germany." These facts were important to bear in mind, although they were not conclusive as to the liability of the goods to confiscation as prize.

The evidence showed, or seemed to show, he said, that the goods in question were shipped to Copenhagen, in part to named consignees, but for the greater part to agents of the packers or to their order, who, instead of being genuine neutral buyers, were merely persons employed by the packers on commission or sent by them from their German branch houses for the purpose of insuring the immediate transportation of the consignments to Germany. Some of these agents sent to Copenhagen from Germany established themselves in hotels; two of them organized a Danish importing company with a capital of $600 and within five weeks imported $1,400,000 worth of lard. Some agents were found to be moving about from place to place in Europe, and in one case a German agent employed the innocent name of "Davis" in his cable despatches; a special cable code was invented; hastily devised arrangements were made for payment by the establishment of large credits in Scandinavian banks, etc. In spite of these facts it was pretended that the business was bona fide neutral trade, and that the packers had no interest beyond that of selling and consigning to neutral buyers. With some minor exceptions, there were no invoices, insurance policies, checks, or other proofs of sale or payments; their affidavits were in the most general terms, and no attempt was made to explain away the damaging evidence of various letters and telegrams disclosed by the crown.

Turning to the question of continuous voyage, Sir Samuel reviewed at length the history and development of the doctrine. There was no reported case, he said, in which it had been applied by the British courts to the carriage of contraband; but it had

THE CASE OF THE KIM

307 been so applied and extended by the American courts, it had received the approval of the British government, and was defended by Lord Salisbury during the South African war in connection with the Delagoa bay cases. Finally, the doctrine, so far as absolute contraband was concerned, had received the sanction of the London Naval Conference. The refusal of the Conference to admit it in the case of conditional contraband (except where the enemy country has no seaboard) was, like most compromises, not founded on reasons of logic.

"If," he added, "it is right that a belligerent should be permitted to capture absolute contraband proceeding by various voyages or transport with an ultimate destination for the enemy territory, why should it not be allowed to capture goods which, though not absolutely contraband, become contraband by reason of a further destination to the enemy government or its armed forces? And with the facilities for transportation by sea and land which now exist, the right of a belligerent to capture conditional contraband would be of a very shadowy value if a mere consignment to a neutral port were sufficient to protect the goods. It appears also to be obvious that in these days of easy transit, if the doctrine of continuous voyage or continuous transportation is to hold at all, it must cover not only voyages from port to port at sea but also transportation by land until the real, as distinguished from the merely ostensible, destination is reached."

The contention of the claimants that the order in council of October 29 was contrary to international law and therefore not binding on the court was, he said, unfounded. Article 35 of the Declaration of London, which excluded the application of the rule of continuous voyage to the carriage of conditional contraband, was itself an innovation in international law, and the effect of the order in council was to prevent that innovation. It was, therefore, not in contravention of, but in accordance with the existing law and practice. Then adverting to the state of things in Germany in consequence of the enrolment of the whole able-bodied portion of the male population in the military forces, he quoted a passage from the note of Sir Edward Grey of February 10, 1915, to the American government, where it was said that the reason for drawing a distinction between food-stuffs intended for the civil population and for the armed forces itself disappears, which must be the case in a country where the armed forces embrace so large a portion of the population, and where the power to requisition was used on a large scale to obtain supplies for the use of the government and the army. On this point he said:

"It was given in evidence that about ten millions of men were either serving the German army or dependent upon or under the control of the military authorities of the German government out of a population of between sixty-five and seventy millions of men, women and children. Of the food required for the population it would not be extravagant to estimate that at least one-fourth would be consumed by these ten million adults." To hold, therefore, that the goods were not intended for German military and naval use "would be to allow one's eyes to be filled by the dust of theories and technicalities and to be blinded to the realities of the case." The cargoes (except certain insignificant portions) were therefore condemned.1

The owners filed a protest with the American department of state against the decision of the prize court and urged it to intervene diplomatically in their behalf, with a view to obtaining reparation for the losses which they had sustained. In their protest they alleged that "the judgment was unsupported by facts and proceeded upon inferences and presumptions." Not withstanding the condemnation of the cargo, the British government agreed to compensate the owners, and in due course the value of the goods was paid to the representatives of the owners, who expressed their appreciation of the fairness and friendly consideration with which they were treated. Many other cases involving the carriage of contraband were decided by the English prize courts, but the limits of this chapter do not permit of their examination.3

1 Trehern, Brit. and Col. Prize Cases, Vol. I, pp. 405-492.

• The London Times of September 17, 1915, commenting on the decision referred to as "one which will be memorable in the history of jurisprudence," said: "The result, if adverse to American shippers, may be said to be a compliment to American jurisprudence, as the judgment was influenced very much by the decisions of the United States courts during the Civil war and the precedents most in point were the judgments of Chief Justice Chase, and his colleagues in regard to British cargoes seized as contraband." Mr. H. R. Pyke, the author of a valuable treatise on the Law of Contraband of War, in an article in the Law Quar. Review for January, 1916 (pp. 60 ff.), on the Kim case expressed the opinion that the decision of the prize court was "fully justified as a reasonable application under modern conditions of the general principle of international law that neutral traders are bound to refrain from consigning directly or indirectly to the enemy of a belligerent who has sufficient command of the sea to prevent such consignment, any object intended to assist the enemy in his war operations." Mr. Pyke adds that the decision makes a refreshing contrast to the decision of the German prize court in the case of the Maria which sailed before the outbreak of the war. The decision however, is the subject of criticism by Mr. C. P. Anderson in 11 Amer. Jour. of Int. Law, pp. 251 ff.

Among the more important were the Sorfaren, the Lorenzo, the Alwina, the Jeanne, and the Marecaibo, all of which may be found in Trehern's collection of British and Colonial Prize Cases.

In the case of the Axel Johnson (ibid. II, 532) the British prize court condemned a cargo of wool destined from Sweden to Germany where, the claimants alleged, it was being sent to be combed after which it was to be returned to Sweden, except the waste wool and by-products which were to be retained by the German spinners as a part of their payment. In the case of the Balto (ibid. II, 398) it condemned a cargo of leather destined for Sweden on the ground that there existed an intention to convert the leather into shoes after which they were to be exported to Germany. In the case of the Bonna (ibid. III, 163) which involved the liability to condemnation of a cargo of cocoanut oil destined to Sweden for the manufacture of margarine to be sent to Germany, Sir Samuel Evans said that the doctrine of continuous voyage would be applicable if there was evidence of an intent to export the manufactured article to Germany but he added that raw materials on their way to Sweden for conversion into manufactured articles for consumption in that country were not subject to condemnation "solely on the ground that the consequences might or even would necessarily be that another article of a like kind would be exported to the enemy by other citizens of that neutral country."

§ 507. French Cases. A large number of cases involving questions of contraband were decided by the French council of prizes. In the case of the Nieuw-Amsterdam,1 which seems to have been the first French case involving a question of contraband, the council of prizes laid down a rule which it subsequently followed in many cases, namely, that in respect to conditional contraband destined to specific consignees in neutral ports, it was incumbent upon the captor to prove that the goods were intended for the use of the armed forces or governmental authorities of the enemy, but that the onus did not rest upon the captor when the consignments were "to order." 2

1 Text of the decision in the Rev. Gen. de Droit Int. Pub., Vol. 22, 1915, Jurisprudence, pp. 13 ff.

2 Cf. also the later case of the Zoodochos-Pighi, ibid., 1917, No. 2, Jurisprudence, p. 33, and the case of the Elles pontos (ibid., p. 38), where it was held that a cargo of conditional contraband for which there was no bill of lading or other papers naming a consignee, but only a manifest indicating neither weight nor destination, and which was claimed by a person in relation with a notorious supplier of contraband to the enemy and who could not establish an innocent destination, was liable to condemnation.