said that there is not an enemy destination simply because some association, such as the N.O.T. Co., would do all they could to frustrate it." In the case of the Prins der Nederlanden, Lord Sterndale said as to such consignments:

"What is relied on very strongly is this, that these goods were consigned to the Netherlands Overseas Trust, and that that of itself really is enough to protect the transaction, because the precautions taken are such that goods cannot get to a wrong destination whatever the real owner of them may be, if they pass through the N.O.T. That was a contention that came before me quite recently in the case of the Noordam and I did not see my way to adopt it. I did not see my way to adopt it for this reason, that I have had several cases before me personallyand I have seen reports of other cases before the late learned President -in which parties have been heavily fined by the N.O.T. for getting goods through to Germany in breach of the contract and undertaking which those parties had given to the N.O.T. No doubt those persons were caught and they suffered for it, and they run the risk of suffering for it if they do it. But those instances are quite sufficient to show that it is no absolute guarantee. The N.O.T. will do their best, but they do not always succeed and I think it is not an unreasonable assumption that if some persons have been caught in certain cases, there are other cases in which they have not been caught. . . .'

In the case of the Oranje Nassau and Other Vessels, where Lord Sterndale was called upon to decide whether a consignment to the N.O.T. was a consignment to "named" consignees in the sense of the British Order in Council of October 29, 1914, he held that it depended upon the facts of each particular case and that if the N.O.T. received the consignments as agents for consignees or persons who bought the goods and who had the control over their ultimate destination the goods would not be liable to condemnation whatever their ultimate destination. But in this case it was held that the N.O.T. was merely receiving the consignments as agents for the consignor who was free to dispose of them as he might direct and consequently they must be regarded as having a hostile destination.

Sec. 413. Hostile Destination Presumed When Imports into Neutral Country Adjacent to Enemy Territory Largely Exceeded Pre-War Importations. The French decree of July 7, 1916, formally established the presumption of hostile destina

See also the case of the Zaanland and Other Vessels (X Lloyd 343), where Sir Samuel Evans condemned certain goods consigned to the N. O. T. for a Dutch firm which "acted only as channels through which the goods were intended by all the parties concerned to be sent to Germany and the ship's papers did not disclose the real consignees and purchasers."

IX Lloyd 189; III Br. & Col. Pr. Cas. 638.

tion in the case of absolute contraband laden on a ship destined to the ports of a neutral country adjacent to enemy territory when the imports into the neutral country were largely in excess of the normal pre-war importations and the circumstances indicated an ultimate destination to enemy country. In the case of the Tiber, the French Prize Council applied the provisions of this decree and condemned a cargo of wine and spirituous liquors shipped from Spain to Denmark, for the reason that whereas the normal pre-war importations of such commodities into Denmark and the re-exportations therefrom amounted to only 4,318 metric tons per year the importations for the year 1916 were eight times as great. But in the case of the Iberia,2 it refused to condemn a quantity of bisulphate of carbon, dried fruits, wine and oil consigned to a Swedish port, for the reason that the statistics did not show that the importations of such. goods into Sweden during the year 1916 were sufficiently in excess of the pre-war importations to justify in itself the presumption of ulterior enemy destination, especially in view of the measures taken by the Swedish revictualling commission to prevent the re-exportation of such imports.

3

While the British government did not by Order in Council formally establish the presumption of hostile destination in such cases it was in fact introduced by the Prize Court and was relied upon by the government in its reply to the complaints of neutrals. Thus in the case of the Kim and Other Vessels, Sir Samuel Evans emphasized that Denmark, the country to which the goods in this case were consigned, was a "country with a small population of less than three millions, and is, of course, an exporting country as regards foodstuffs, and not an importing country"; that its situation rendered it convenient to transport goods from its territory to German ports; and that the quantity of lard on the four vessels in question consigned to Copenhagen was thirteen times as great as the quantity which had been imported into the whole country for each of the three years prior to the war. The Court quoted similar statistics regarding the abnormal importations of lard into other Scandinavian countries since the outbreak of the war. "These facts," Sir Samuel said in conclusion, "give practical certainty to the 1 Fauchille, Jurispr. Franc. 414. 227 Rev. Gén. (1920), Jurispr. 22. See notably the communication of Sir Edward Grey to the American Ambassador at London, February 10, 1915, Supp. to 9 Amer. Jour. of Int. Law, especially pp. 68 and 81, where statistics of disproportionate importations into neutral countries adjacent to Germany were given and relied upon as evidence of hostile destination.

inference that an overwhelming portion (so overwhelming as to amount to almost the whole) of the consignments of lard in the four vessels we are dealing with, was intended for, or would find its way into Germany," though he admitted that these facts in themselves were not conclusive as to hostile destination. Similar facts were relied upon by the Prize Court in the case of the Kronprinzessin Victoria1 for the condemnation of a quantity of coffee consigned to a Swedish port. Statistics were produced to show that there had been a large increase of imports of coffee into the Scandinavian countries since the outbreak of the war and that there had been a corresponding increase of re-exportations to other countries. It was shown that the appellants in this case had multiplied their imports of coffee at least six times over since the outbreak of the war. The Judicial Committee 2 affirmed the judgment of Sir Samuel Evans that the goods had a hostile destination and that the admissibility of "statistical" evidence was entirely proper, though for other reasons the Judicial Committee held that the goods were immune from condemnation, notwithstanding their ulterior enemy destination. In the case of the Urna, Lord Sterndale condemned a quantity of dried fruit consigned by American shippers to an agent in Denmark, on the ground that the statistics produced by the Crown showed that the imports of such goods into Scandinavian countries had greatly increased during the war and were largely in excess of the needs of the population. The onus under these circumstances, he said, was on the claimants to show that the goods did not have an ultimate German destination and this burden they were unable to discharge to the satisfaction of the Court. The judgment was affirmed by the Judicial Committee, which declared that "there is ample statistical evidence to place an obligation on the appellants to show that the destination of the goods is innocent." 4

Sec. 414. Inferences Resulting from Enemy Government Control of Food Supplies. The action of the German government in assuming control through various measures of the

1 VII Lloyd 230. IX Lloyd 104.

VII Lloyd 246; III Br. & Col. Pr. Cas. 247.

'IX, ibid., 112; III Br. & Col. Pr. Cas. 595. See also to the same effect the case of the Andjik, where the Prize Court condemned a quantity of honey consigned to a Dutch port, it being shown that in the year 1914 the exports of honey from Holland being only 16 tons to Germany and 48 tons to Belgium, whereas in 1915 they amounted to 448 tons to Germany and 200 tons to Belgium. Holland, it was said, "was an entreport for the supply of honey to Germany, honey which was derived from overseas sources."

distribution of food supplies and other articles on the contraband list imported into the country was considered by the governments of Great Britain and France as having had the effect of undermining the rule which made a distinction between goods intended. for the enemy government or its armed forces and those intended for the use of the civilian population. Adverting to this situation, Sir Edward Grey, in a note to the American Ambassador at London, on Feb. 10, 1915,1 said:

"The reason for drawing a distinction between foodstuffs intended for the civil population, and those for the armed forces or enemy government disappears when the distinction between the civil population and the armed forces itself disappears. In any country in which there exists such a tremendous organisation for war as now obtains in Germany, there is no clear division between those whom the government is responsible for feeding, and those whom it is not. Experience shows that the power to requisition will be used to the fullest extent in order to make sure that the wants of the military are supplied, and however much goods may be imported for civil use it is by the military that they will be consumed if military exigencies require it, especially now that the German government have taken control of all the foodstuffs in the country."

Sir Samuel Evans in the case of the Kim, referring to this statement, added:

"It was given in evidence that about ten millions of men were either serving in 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 say that at least one-fourth would be consumed by these ten million adults. Apart altogether from the special adaptability of these cargoes for the armed forces, and the highly probable inference that they were destined for the forces, even assuming that they were indiscriminately distributed between the military and civilian population, a very large proportion would necessarily be used by the military forces."

He concluded therefore that in these peculiar circumstances where the armed forces of the enemy constituted so large a proportion of the population and where there was so little distinction between shipments on private account and on government account, it was "most reasonable" that the burden of proving innocent destination should be placed on the claimants.

1

In the case of the Esrom Lord Sterndale condemned a quantity of cocoa beans (conditional contraband) consigned to Scan

Supp. to IX Amer. Jour. of Int. Law, p. 80.

'VIII Lloyd 492.

dinavian ports, on the ground that considering the measures taken by the German government with the view to effective control over the sale and distribution of such goods it was "extremely likely" that they would find their way to the armed forces of Germany. Likewise, in the case of the Hakan' the Prize Court held that a cargo of salted herrings (conditional contraband) consigned to the German port of Lübeck, must be considered as destined for the German government or its armed forces, in consequence of the fact that certain orders had been issued by the German government providing that such commodities when imported from abroad should be delivered to a company established by the government to act under the direction of the Imperial Chancellor for the purpose of controlling the distribution of food supplies. In affirming the judgment the Judicial Committee through Lord Parker stated that it was quite certain that the persons to whom the goods were consigned were bound to hand them over to the company; the effect was therefore equivalent to requisition by the government. He admitted that possibly they would have been devoted to the feeding of civilians and it might be true that the rations of the armed forces never included salted herrings but their rations of bread and meat might well be increased by reason of the use of fish to feed the civilian population. Under these circumstances, the inference was "almost irresistible" that the goods were intended to be used for "warlike" purposes and were therefore rightly condemned.

The French Prize Council likewise in a number of cases based its conclusions wholly or in part on the fact that the government of the enemy country (Germany or Austria-Hungary) to which the goods were found to be ultimately destined, had taken measures to insure control over the distribution and use of domestic or imported food supplies."

3

Sec. 415. Proof in Rebuttal of the Presumption of Hostile Destination. German Decisions. Where a legal presumption of hostile destination exists it is of course open to the claimants to produce proof to the contrary. In a large number of cases the Prize Courts were called upon to determine in par

AV Lloyd 161; II Br. & Col. Pr. Cas. 210, 479.

2 See among others the Nieuw Amsterdam (Fauchille, Jurispr. Franc. 14), the Sibilla (ibid., 218), the Narrovian (ibid., 68), and the Oscar II (27 Rev. Gén., Jurispr., 86).

The general subject of burden of proof is discussed in Secs. 84-85; 330331; 396, supra.