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BRITISH PRIZE COURT DECISION IN THE

CHICAGO PACKING HOUSE CASES

In November, 1914, four vessels of Norwegian register, the Kim, the Alfred Nobel, the Bjornstjerne Bjornson, and the Fridland, bound from New York to Copenhagen, were captured on their voyage by British warships and their cargoes were seized on the ground that the foodstuffs, which constituted the bulk of the shipments, were conditional contraband suspected of being destined for the government or armed forces of Germany.

In September, 1915, the British Prize Court rendered its decision condemning as prize the shipments of foodstuffs which belonged to the Chicago Packers. An appeal was taken by the Packers to the Privy Council, but while this appeal was pending, negotiations for a settlement were entered into by the British Government with the Packers, and a settlement having been agreed upon, disposing of the questions at issue so far as they were concerned, the appeal was withdrawn.

Of all the decisions of the Prize Court affecting the rights of neutrals, this decision was perhaps the most important and most disturbing to neutrals, for, although it applied in terms only to certain particular shipments, the decision in its conclusions as to the law of contraband and the doctrine of continuous voyage in relation to conditional contraband had a general application to all neutral commerce, and not only was it exceedingly prejudicial to neutral interests, but it invoked the authority of British Orders-in-Council as superior to international law. For these reasons it would have been interesting and useful from the point of view of international law and in the interest of determining exactly what was the law to be applied by the British Prize Court to have had this decision carried to the Privy Council for review on appeal. Inasmuch, however, as that was prevented by the settlement of these particular cases, it may be of interest to examine some of the grounds upon which it was contended in the settlement negotiations that the position taken by the Prize Court in condemning these shipments was

inconsistent with and unsupported by the law of contraband applicable in such cases as previously interpreted and recognized both by the Government of Great Britain and by the Government of the United States, and particularly the ground that neutral rights under the principles and rules of international law, as hitherto established, governing neutral trade, were not subject to limitation by British Orders-inCouncil or other municipal legislation.

One of the principal objections urged against this decision was that it disregarded the essential differences between absolute and conditional contraband of war, to which both Great Britain and the United States were committed by precedent and practice, and deprived goods listed as conditional contraband of the protection to which they were entitled under international law.

Since the beginning of the war, and at the time these seizures were made, foodstuffs were listed as conditional contraband in all the contraband proclamations of the British Government, and all of the shipments of foodstuffs which were condemned in these cases stood on the basis of conditional contraband. Even the special food products which the court held might be used for the production of glycerine were entitled to treatment as conditional contraband, because, when these shipments were seized, glycerine was listed as conditional contraband.

To these shipments the Prize Court applied the doctrine of continuous voyage or transportation. This doctrine the court held had become part of the law of nations at the commencement of the present war both in relation to carriage by sea and transportation by land. As applied to the carriage of absolute contraband, the correctness of this statement of the law was not questioned, but it cannot be admitted that this doctrine has heretofore been applied to the carriage of conditional contraband, except in special circumstances, with well-defined limitations, or that such an application of this doctrine has been adopted by the consensus of nations. If it had been so adopted, it would not have been rejected in the Declaration of London.

In its application to absolute contraband when consigned to a neutral country, this doctrine imposes upon the captor the burden of proving an intention on the part of the shipper that the goods shall proceed by a continuous voyage or transportation to an enemy country

as part of a single commercial transaction, complete from its inception, without interruption by sale into the common stock in trade of the neutral country before going forward to the enemy territory.

Any extension of this doctrine to conditional contraband, therefore, must necessarily impose upon the captor the same burden of proof as in the case of absolute contraband. Moreover, conditional contraband is not liable to condemnation as contraband unless the captor proves not only that the goods were on their way to enemy territory under the conditions above defined, but also that, as part of the same transaction, they were necessarily predestined to the enemy government, or its military forces as the real consignees.

The Prize Court seems to have disregarded these requirements.

In all of these cases the ship's papers showed a neutral destination, and no positive proof to the contrary was furnished on the part of the Crown. Furthermore, in each of these cases an affidavit was furnished by the shipping companies, sworn to by a responsible officer of the company, to the effect that:

The whole of the said goods were shipped to the order of the said Agent in Copenhagen for sale in the Agent's own district as aforesaid, in the ordinary course of business. The standing instructions to the Agent that no sales were to be made outside the Agent's district were never withdrawn by the Claimants and the Agent had no authority to sell the goods except to firms established in Denmark, other Scandinavian countries, Finland, or Russia.

and

None of the said goods had in fact been sold prior to the seizure of the Steamship and they were at the date of such seizure the property of the Claimants.

The court clearly understood the meaning and effect of these affidavits, as appears from the following comment upon them in the decision:

Germany is not named; and the impression conveyed, and clearly intended to be conveyed, was that the goods were shipped and consigned for purely Scandinavian business, as if the war had not intervened.

Nevertheless, the court adopted the contention of the Crown that the shippers intended these goods to go through to Germany by con

tinuous voyage, without interruption by sale in neutral territory, although the case of the Crown rested wholly on presumptions or inferences drawn from circumstances which when impartially considered are at most no more significant of an enemy destination than of a neutral destination. Apparently the only reason for the adoption by the Prize Court of the presumption of an enemy destination was because the claimants did not undertake to disprove mere possibilities of a destination which had not been proved as a fact by the Crown.

In order to establish a presumption that shipments consigned to a neutral country were actually intended by the shippers to proceed to enemy territory, the Prize Court laid great stress upon the existence of a surplus supply of foodstuffs in the neutral country to which these shipments were consigned. The existence of a surplus supply of foodstuffs, obviously, is wholly inconclusive as proof that these particular shipments were intended to proceed by continuous transportation through the neutral country as part of the original transaction initiated by the shippers, and the objections of the Government of the United States to the presumption of enemy destination based upon evidence of greatly increased imports into neutral countries adjoining Great Britain's enemies, were made clear in the note addressed on October 21, 1915 by it to the British Government in relation to the restraints imposed by the British Government upon American commerce.

In that note it was stated that such a presumption arising from such circumstances was: too remote from the facts and offers too great opportunity for abuse by the belligerent, who could, if the rule were adopted, entirely ignore neutral rights on the high seas and prey with impunity upon neutral commerce.

and that

To such a rule of legal presumption this Government cannot accede, as it is opposed to those fundamental principles of justice which are the foundation of the jurisprudence of the United States and Great Britain.

There is no reason in law why the residents of a neutral country adjacent to an enemy of Great Britain should not export its own food products to Germany, or food products imported from another neutral

country for that purpose, and American food products shipped to the neutral country to supply a demand thus created cannot lawfully be treated as contraband.

That note further called attention to the fact that His Majesty's Government have admitted that British exports to neutral countries adjacent to Germany also have increased materially since the present war began, and pointed out that:

Thus Great Britain concededly shares in creating a condition which is relied upon as a sufficient ground to justify the interception of American goods destined to neutral European ports. If British exports to those ports should be still further increased, it is obvious that, under the rule of evidence contended for by the British Government, the presumption of enemy destination could be applied to a greater number of American cargoes, and American trade would suffer to the extent that British trade benefited by the increase. Great Britain cannot expect the United States to submit to such manifest injustice or to permit the rights of its citizens to be so seriously impaired. As further stated in that note:

Whatever may be the conjectural conclusions to be drawn from trade statistics, which, when stated by value, are of uncertain evidence as to quantity, the United States maintains the right to sell goods into the general stock of a neutral country, and denounces as illegal and unjustifiable any attempt of a belligerent to interfere with that right on the ground that it suspects that the previous supply of such goods in the neutral country, which the imports renew or replace, has been sold to an enemy. That is a matter with which the neutral vendor has no concern and which can in no way affect his rights of trade.

Another reason for challenging the validity of that presumption was furnished by the court itself, for it decided, as shown below, that the surplus supply of foodstuffs in Denmark did not raise the presumption of destination to Germany in the case of foodstuffs imported into Denmark by residents of Denmark.

In every instance in which foodstuffs seized on these vessels were shown to belong, at the time of their seizure, to residents of the neutral country to which they were consigned, the Prize Court held that they were not liable to condemnation, and ordered their release. A distinction was thus drawn in the case of foodstuffs shipped from the United States to Denmark between those owned by residents of Denmark,

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