3n tbe Ibigb Court of Justice.
PROBATE, DIVORCE, & ADMIRALTY DIVISION.
ADMIRALTY.
(In Prize.)
THE KIM.
THE ALFRED NOBEL.
THE BJORNSTERJNE BJORNSON.
THE FRIDLAND.
BEING THE ARGUMENTS IN THE ABOVE CASES
AND
THE JUDGMENT
OF
SIR SAMUEL EVANS.
Reprinted from the English Law Reports
[1915J P. 215
FOR
tlht Itiwrporaiii Counril at lata H^porting for (Inglantr anb MaUs,
By BRADBURY, AGNEW, & CO. Limited, op 10, BOUVERIE STREET,
LONDON, B.C.
Walter Clinton Jackson Library
The University of North Carolina at Greensboro
Special Collections & Rare Books
World War 1 Pamphlet Collection
With the Oow.fliraents
of
Sir Gilbert Parker,
together with the real belief that the
case will stand all scrutiny.
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England.
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p.
PEOBATE DIVISION.
IN THE HIGH COURT OF JUSTICE.
PEOBATE, DIVOECE, AND ADMIEALTY DIVISION.
ADMIEALTY.
[In Prize.]
THE KIM.
THE ALFRED NOBEL.
THE BJORNSTERJNE BJORNSON.
THE FRIDLAND.
[1914 Nos. 405, 395, 342, 384.]
Prize Court — Evidence in Prize Cases — Contraband, Absolute and Conditional
— Continuous Voyage — Ultimate Hostile Destination — Orders in Council
of August 20 and October 29, 1914.
In prize proceedings the Court is not governed or limited by the
strict rules of evidence v^hich bind our municipal courts, as it has
always been deemed right to recognize well-known facts which have
come to light in other cases or as matters of public reputation : see per
Lord Stowell in The Rosalie and Betty (1800) 2 C. Eob. 343, and the
judgment in an American authority. The Stephen Hart (1863) Blatch.
Prize Cases, 387, at p. 403; but when any presumptions or infer-
ences have to be considered, any concealment or misdescription, or
device calculated and intended by neutrals to deceive and to hamper
belligerents in their undoubted right of search for contraband, will press
heavily against those adopting such courses. Neutrals are expected to
conduct their neutral trade during war not only without having recourse
to fraud or false papers, but with candour and straightforwardness, that
is to say (in the words of the American Supreme Court), "Belligerents
are entitled to require of neutrals a frank and bona fide conduct."
Hence the Court came to the conclusion that the use of the word
" gum," in the papers of one of the above ships, was not an accurate
commercial description, and its use in the manifest instead of the appro-
priate commei'cial description of " rubber," or various qualities of rubber
by their commercial names, was adopted in order to avoid the incon-
venience or difficulties which would result from a search and possible
capture. The Court further found that the charterers of the vessel
were responsible for the misdescription and that the sale of the goods
in question to one consignee and the purchase and payment for them
by him were honest business transactions ; but, in respect of another
parcel, the Coiut held that the alleged purchaser had not made out his
claim to be the owner of the goods, that he knew of the description
" gum " being applied to them, that the rubber was on its way to enemy
P. 1915. B
1915
Julii 12, 15,
16, 20,21,22,
23,26,27,28,
2S), 30 ;
Aug. 2, 3 ;
Sept. 16.
1915
The Kim.
The Alfred
Nobel.
The Bjokn-
STEhJNE
Bjornsox.
The
Fhidland.
PROBATE DIVISION.
[1315]
territory through the German Consul at Landskrona in Sweden, and
that rubber having been declared absolute contraband the parcel in
question was confiscable.
The doctrine of continuous voyage or transportation, both in relation
to carriage by sea and to carriage over land, became part of the law of
nations prior to the commencement of the present war, and, in applying
the principles of international law to the doctrine, regard must be had
to the circumstances of the times, including " the circumstances arising
out of the particular situation of the war, or the condition of the
parties engaged in it": see I'he Jomje Margaretha (1799) 1 C. Rob.
189. Accordingly the Court, in respect of the present cases before it,
was not restricted in its vision to the primary consignment of goods
from New York to the neutral port of Copenhagen, but was entitled and
bound, when the doctrine was applied to the carriage of contraband, to
take a more extended outlook in order to ascertain whether this neutral
destination was merely ostensible, and, if so, what the real ultimate
destination was: see The William (1806) 5 C. Rob. 385; The Bermuda
(1865) 3 Wall. 514; for according to the view of Bluntschli, "If the
ships or goods are sent to the destination of a neutral port only the
better to come to the aid of the enemy, there will be contraband of
war, and confiscation will be justified."
The consignment to "order or assigns," without naming any con-
signee, is a circumstance which has been regarded as important in time
of war in determining the real or ostensible destination at the neutral
port.
Guided by the above considerations, the President (Sir Samuel Evans)
held that tlie cargoes of the four vessels before the Court (other than
the portions acquired by persons in Scandinavia whose claims were
allowed) were not destined fur cousumption or use in Denmark or
intended to be incorporated into the general stock of that country by
sale or otherwise ; that Copenhagen was not the real bona fide place of
delivery, but that the cargoes were, by the intention of the shippers, on
their way, at the time of capture, to German territory as their actual
and real destination, and that, in the circumstances, the cargoes must
be condemned as lawful prize : for, from the facts proved, and the
reasonable inferences from them, it was to be presumed (whether either
or both the Orders in Council of August 20 and October 29, 1914, were
deemed effective and binding, or not) that these goods were destined for
the use of the German Government or its naval or military forces, and,
further, that if the conclusions ari'ived at were only accurate as to a
substantial proportion of the goods the whole would be affected,
because contraband articles are said to be of an infectious nature, and
contaminate the whole cargo belonging to the same owners.
The above named four vessels, of which the first three were
Norwegian, and the fourth Swedish, were, when captured by
British forces, under time charters to an American corporation,
p. PROBATE DIVISION.
the Gans Steamship Line, of which company the president, iin/
John H. Gans, was a German, and the general agent of the ^he Kim.
company in Europe was also a German. The four vessels started The Alfred
within a period of three weeks in October and November, 1914 ^^^^ bjorn-
(the last three on October 20, 27, and 28 respectively, the first stekjne
Bjornson.
on November 11), oq voyages from New York to Copenhagen, r^,^^
with very large cargoes of lard, hog and meat products, oil Fridland.
stocks, wheat and other foodstuffs. Two of them (the Fridland
and the Kim) were in part laden with rubber, and one of them
(the Kim) with hides. The total cargoes of the four vessels
amounted to 73,237,790 lbs. in weight, and the claims covered
32,312,479 lbs., exclusive of the rubber and hides. The vessels
were captured on the voyage (the Alfred Nohel on November 5,
the Fridland on November 10, the Bjornsterjne Bjornson on
November 11, and the Kim on November 28, 1914), and their
carg03s were seized on the ground that they were conditional
contraband, with the exception of one parcel of rubber on the Kim
■which under the Order in Council of October 29, 1914, was
seized as absolute contraband.
The questions before the Court related only to the cargoes.
Questions as to the capture and confiscation of the ships were
reserved for argument hereafter.
An Order in Council adopting with modifications the provisions
of the instrument known as the " Declaration of London " was
promulgated on August 20, 1914, and another on October 29.
Proclamations as to contraband, absolute and conditional, were
issued on August 4, September 21, and October 29, 1914. By
the Proclamation of August 4 all the goods now claimed
(other than rubber and hides) were declared to be conditional
contraband.
The Attorney-General {Sir Edward Carson), the Solicitor-
General {Sir F. E. Smith), Cave, K.C., R. A. Wright, Pearce
Higgins, and J. Wylie, for the Crown.
Sir Robert Finlay, K.C., Laing, K.C., and W. N. Raeburn, for
Armour & Co.
Sir Robert Finlay, K.C., Leslie Scott, K.C., and \V. N. Raeburn,
for various Danish consignees.
B 2
PROBATE DIVISION. [1915]
1915 Leslie Scott, K.C., and C. li. Diinlop, for American shippers,
The Kim. Morris & Co. and Stern & Co.
The Alfred Leslie Scott, K.C., and R. H. Balloch, for the owners of the
Nobel.
The Bjobn- FricUand.
STEKJNE Maurice Hill, K.C., and A. Xeilson, for Sulzberger & Co.
The Maurice Hill, K.C., and J. B. Aspinall, for the Cudahy
FRiDLAND. Packing Company.
Ernest Pollock, K.C., and C. F. Lowentlial, for Swift & Co.
and Hammond k Co.
F. D. MacKinnon, K.C., and W. N. Raelmrn, for Fearon, Brown
& Co.
A.D.Bateson, K.C., and J>. Stephens, for Fearon, Brown et Co.
(wheat cargo).
Adair Roche, K.C., and R. H. Balloch, for the owners of the
Kim, the Alfred Nobel, and the Bjornsterjne Bjornson.
Dawson Miller, K.C., and A. Neilson, for Ullman lI' Co.
(consignees of rubber).
E. W. Brightntan, for claimants of rubber on the Kiui.
Douglas Hogg, for W. T. Baird.
H. C. S. Dumas, for the Guaranty Trust Company of New
York and other shippers of grain, and for various consignees.
The Attorney-General for the Procurator-General on behalf of
the Crown, in the case of the Kim, suggested that it would be
convenient if the cases of the Alfred Xohel, the Bjornsterjne
Bjornson, and the Fridland were dealt with at the same time,
as with some minor distinctions the main points at issue, as
regards the claimants, the nature of the cargoes, and their
destination, were practically the same, and in fact there were
some thirty-eight ships whose cargoes involved similar points
to be decided.
The Court assented to the suggestion, and in opening all four
cases the Attorney -General pointed out that an explanation of
the situation was derived from the consideration that, on the wa^'
breaking out, Copenhagen was turned into a depot for the feeding
of the enemy's troops and garrisons all along the coast, as the
Germans were unable to carry on their trade, in the wa}' it had
been done, from Hamburg or from Stettin, and, that trade being
p. PEOBATE DIVISION. 5
stopped, it was diverted to Copenhagen with a view to regard, i9io
and to use, that port as being — as it was in fact — a neutral port, the Kim.
and that there were neutral subjects in America deaHng with Thk Alfred
this neutral port in neutral ships. The arguments of the
^ _ ^ _ ° _ The Bjorx-
Attorney-General based upon this assumption and applied to steu.tnk
the details of each parcel of goods will be found fully stated
in the judgment. FRiorAND.
As to the claimants, the facts as to their cases may be shortly
summarized thus :
Four large American firms were consignors of goods on each
of the four vessels, and a fifth on two of them, the total amount
of lard and meat products being 23,274,584 lbs. These
five claimants, as shippers and consignors of the goods, alleged
that the goods had remained their property, and based their
claims upon ownership at the time of seizure. The other
claimants were persons or firms chiefly in Denmark. They
claimed that they had become the purchasers of goods (lard,
cotton oil, beef casings, oleo stock, fat backs, smoked bacon and
beef tongues) laden on the various vessels. A firm of Ullman &
Co. claimed rubber on the Fridland and the Kim alleged to have
been bought from a firm of E. Maurer & Co. W. T. Baird
claimed rubber on the Kim amounting to 29,771 lbs. A firm of
Marcus & Co. claimed hides on the Kim amounting to 18,968 lbs.
The Guaranty Trust Company of New York claimed wheat and
flour on the Bjornsterjne Bjornson and the Fridland. Armour
& Co.'s direct claim was to nearly eight million lbs. of food-
stufis, chiefly lard, and adding the amounts of their alleged
vendee's claims, the total was over 9^ million lbs. This large
quantity was consigned to their agent at Copenhagen within one
month, being about twenty times the quantity of lard exported
from the United States to all Scandinavia in the corresponding
period of the previous year, and Armour & Co.'s shipments to
Copenhagen of hog products from October to December, 1914, were
approximately equivalent to their total shipments to Copenhagen
during the whole preceding eight years. The claim of Armour &
Co. was based on the ground that the goods were their property
as neutrals, shipped on neutral vessels, and consigned to neutrals
at a neutral port, and that the goods were not intended for sale
6 PROBATE DIVISION [1915]
1915
The Kim ^^ ^^~ ^^^^ ^^^' ^^' ^^^ belialf of an enemy government or the armed
The ALFRED forces of an enemy, the aflfidavit filed in support of the
claim stating that " the whole of the said goods were shipped to
The Bjorn- *= . *=" . '■ \
PTERJXE the order of the agent in Copenhagen for sale in the agent's own
district in the ordinary course of business." The portion of the
The _ _ •' _ , ^ _
Fridland. shipments consisting of canned beef in tins was not suitable for
civilian markets, and could only have been intended for the use
of troops in the field.
As to the claims of Cudahy & Co. in respect of 176,559 lbs.
of lard and beef casings shipped (before ihe Order in Council
of October 29) on the Alfred Nohel and the Fridland, the
Court came to the conclusion that these goods were on their
way to Denmark as their real and bona fide destination, and
were intended to be imported on their arrival into the common
stock of the country. Further details in respect of each separate
parcel of goods will be found fully set out in the judgment.
Cwr. adv. vtilt.
Sept. 16. The President (Sir Samuel Evans). The cargoes
which have been seized, and which are claimed in these pro-
ceedings, were laden on four steamships belonging to neutral
owners, and were under time charters to an American corporation,
the Gans Steamship Line. John H. Gans, the president of the
company, is a German. He has resided in America for some
years ; but he has not been naturalized. The general agent of
the company in Europe was one Wolenburg of Hamburg.
The four ships were the Alfred Xohel (Norwegian), the Bjorn-
sterjne Bjornson (Norwegian), the Fridland (Swedish), and the
Kim (Norwegian). They all started within a period of three
weeks in October and November, 1914, on voyages from New
York to Copenhagen with very large cargoes of lard, hog and
meat products, oil stocks, wheat and other foodstuffs ; two of
them had cargoes of rubber, and one of hides. They were
captured on the high seas, and their cargoes were seized on the
ground that they were conditional contraband, alleged to be con-
fiscable in the circumstances, with the exception of one cargo of
rubber which was seized as absolute contraband.
p. PROBATE DIVISION. 7
The Court is now asked to deal only with the cargoes. All ques- 1915
tions relating to the capture and confiscability of the ships are tue Kim.
left over to be argued and dealt with hereafter, the Alfred
It is necessary to note the various dates of sailing and capture- , '
They are as follows : — ^tkrjne
Date of sailing. Date of capture. ' ,^/j^
Alfred Nohel October 20, 1914 November 5, 1914 Kp.idi.and.
B. BjornSOn „ 27, „ ,, 11, ,, The Piesideat.
Fridland „ 28, „ „ 10, ,,
Kim November 11, ,, ,, 28, ,,
Upon some of these dates may depend questions touching what
Orders ia Council are applicable. One Order in Council adopting
with modifications the provisions of the Convention known as
the " Declaration of London " was promulgated on August 20,
1914, and another on October 29, 1914. Proclamations as to
contraband, absolute and conditional, were issued on August 4,
September 21, and October 29, 1914.
It is useful to note here, in order to avoid any possible miscon-
ception or confusion, that the later Order in Council of March 11,
1915 (somtimes called the Reprisals Order), does not affect the
present cases in any way.
Before proceeding to state the result of the examination of the
facts relative to tbe respective cargoes and claims, a general
review may be made of the situation which led up to the dispatch
of the four ships with their cargoes to a Danish port.
Notwithstanding the state of war, there was no difficulty in
the way of neutral ships trading to German ports in the North
Sea, other than the perils which Germany herself had created
by the indiscriminate laying and scattering of mines of all
description, unanchored and floating outside territorial waters
in the open sea in the way of the routes of maritime trade, in
defiance of international law and the rules of conduct of naval
warfare, and in flagrant violation of the Hague Convention to
which Germany was a party. Apart from these dangers neutral
vessels could have, in the exercise of their international right,
voyaged with their goods to and from Hamburg, Bremen, Emden,
and any other ports of the German Empire. There was no
blockade involving risk of confiscation of vessels rutming or
8 PROBATE DIVISION. [1915]
1915 attempting to run it. Neutral vessels might have carried condi-
The Kim. tional and absolute contraband into those ports, acting again
The Alfred within their rights under international law, subject only to the risk
Nobel. , . ., i • r- ii • i • n-
Thf Bjorn- °* capture by vigilant warships or this country and its allies.
STERJNE But the trade of neutrals — other than the Scandinavian
BjORNSON. 1 • /-(
The countries and Holland — with German ports in the North Sea
Fridland. having been rendered so difficult as to become to all intents
The President, impossible, it is not surprising that a great part of it should
be deflected to Scandinavian ports from which access to the
German ports in the Baltic and to inland Germany by over-
land routes was available, and that this deflection resulted, the
facts universally known strongly testify. The neutral trade
concerned in the present cases is that of the United States of
America; and the transactions which have to be scrutinized
arose from a trading, either real and bona fide, or pretended
and ostensible only, with Denmark, in the course of which
these vessels' sea voyages were made between New York and
Copenhagen.
Denmark is a country with a small population of less than
three millions ; and is, of course, as regards foodstuffs, an
exporting, and not an importing, country. Its situation, how-
ever, renders it convenient to transport goods from its territory
to German ports and places like Hamburg, Altona, Liibeck,
Stettin, and Berlin.
The total cargoes in the four captured ships bound for Copen-
hagen within about three weeks amounted to 73,237,796 lbs. in
weight. (These weights and other weights which will be given
are gross weights according to the ships' manifests.) Portions
of these cargoes have been released, and other portions remain
unclaimed. The quantity of goods claimed in these proceedings
is very large. Altogether the claims cover 32,312,479 lbs. (exclu-
sive of the rubber and hides). The claimants did not supply any
information as to the quantities of similar products which they
had supplied or consigned to Denmark previous to the war.
Some illustrative statistics were given by the Crown, with
regard to lard of various qualities, which are not without signifi-
cance, and which form a fair criterion of the imports of these and
like substances into Denmark before the war ; aud they give a
p. PROBATE DIVISION.
measure for comparison with the imports of lard consigned to 1915
Copenhagen after the outbreak of war upon the four vessels now xhe Kim.
before the Court. The Alfred
Nobel
The average annual quantity of lard imported into Denmark ,^^^ bjorx-
during the three years 1911 — 1913 from all sources was ster.jnk
^ . -, ^ 1 Bjornsox.
1,459,000 lbs. The quantity of lard consigned to Copenhagen on ,y^^
these four ships alone was 19,252,000 lbs. Comparing these Fridland.
quantities, the result is that these vessels were carrying towards The President.
Copenhagen within less than a month more than thirteen times
the quantity of lard which had been imported annually to
Denmark for each of the three years before the war.
To illustrate further the change effected by the war, it was given
in evidence that the imports of lard from the United States of
America to Scandinavia (or, more accurately, to parts of Europe
other than the United Kingdom, France, Belgium, Germany,
the Netherlands, and Italy) during the months of October and
November, 1914, amounted to 50,647,849 lbs. as compared with
854,856 lbs. for the same m.onths in 1913 — showing an increase
for the two months of 49,792,993 lbs.; or in other words the
imports during those two months in 1914 were nearly sixty
times those for the corresponding months of 1913.
One more illustration may be given from statistics which were
given in evidence for one of the claimants (Hammond & Co. and
Swift & Co.) : In the five months August — December, 1913, the
exports of lard from the United States of America to Germany
were 68,664,975 lbs. During the same five months in 1914
they had fallen to a mere nominal quantity, 23,800 lbs. On
the other hand, during those periods, similar exports from the
United States of America to Scandinavian countries (including
Malta and Gibraltar, which would not materially affect the
comparison) rose from 2,125,579 lbs. to 59,694,447 lbs. These
facts give practical certainty to the inference that an over-
whelming proportion (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. These, however, are general considerations, important
to bear in mind in their appropriate place ; but not in any sense
conclusive upon the serious questions of consecutive voyages
10 PEOBATE DIVISION. [1915]
11)15 of hostile quality, and of hostile destination, which are involved
The Kim. before it can be determined whether the goods seized are
TiiK Alfred confiscable as prize.
,„ * „ ' ' The dates of sailing and capture have been given with an
I HE BJOIIN- . .
STERJNE intimation that they may have a bearing upon the law applicable
Bjornsox.
rj,^^ to the cases.
Fridland. The Alfred Nohel, the Bjornsterjne Bjornson, and the Fridland
The President, started on their voyages in the interval between the making of
the two Orders in Council of August 20 and October 29. The Kim
commenced her voyage after the latter Order came into force.
By the Proclamation of August 4 all the goods now claimed
(other than the rubber and the hides) were declared to be con-
ditional contraband. The cargoes of rubber seized were laden
on the Fridland and the Kim. Rubber was declared conditional
contraband on September 21, 1914, and absolute contraband
on October 29. Accordingly the rubber on the Fridland was
conditional contraband ; and that on the Kim was absolute
contraband.
The hides were laden on the Kim. Hides were declared
conditional contraband on September 21, 1914. No contention
was made on behalf of the claimants that the goods were not to
be regarded as conditional or absolute contraband, in accordance
with the respective Proclamations affecting them, that is to say,
it was admitted that the goods partook of the character of
conditional or absolute contraband under the said Proclamations,
and were to be dealt with accordingly.
The law can best be discussed and can only be applied after
ascertaining the facts. The details relating to the ships and
their cargoes which it has been necessary to examine are very
voluminous. I must try to summarize them for the purposes of
this judgment, in order to make it intelligible in principle, and
in the results. To attempt to give even a moderate proportion
of the details would tend to bewildering confusion.
The number of separate bills of lading covering the cargoes
on the four vessels is about 625.
Four large American firms were consignors of goods on each
of the four vessels ; and a fifth on two of them.
iVccording to the figures given to the Court, those five American
PROBATE DIVISION.
11
The Kim.
Lbs.
The Alfred
9,677,978
Nobel
6,868,213
The Bjorn-
STERJNE
3,397,005
Bjoknson.
2,602,009
The
Fridland.
729,379
The President
23,274,584
firms were consignors of lard and meat products to the following
extent : —
Armour & Co. .....
Morris & Co. (with Stern & Co.)
Hammond & Co. (with Swift & Co.) .
Sulzberger and Sons Co. .
Cudahy & Co. .....
This makes up a total of
These figures I accept as substantially correct. They were
given by the law officers of the Crown. The other figures in my
judgment I am responsible for.
Those portions of the cargoes which have been released, and
those which have not been claimed, will be dealt with in a
separate judgment. There is some overlapping, as some parts of
the cargoes have been claimed by the consignors, and also by
some alleged vendees. For these and other reasons some correc-
tions in the figures which follow may become necessary ; but
they are substantially correct as they stand in the various
documents, and as they were dealt with at the hearing ; and
certainly sufficiently accurate for the purpose of determining all
questions relating to the rights of the Crown to condemnation,
or of the various claimants to release.
An analysis of the claims shows the following results : —
I'.n
I. — MoKRis & Co. (with Stern & Co.).
Direct claims by these companies to goods laden
on the four ships amounting to ....
Other sub-claims by claimants who allege that
they had bought and had become owners of goods
consigned by the above companies : —
(1.) Pay & Co.—
Goods on the A. Nobel and the Lbs.
B. Bjornson . . . 411,660
(2.) Christensen and Thoegersen —
Goods on the A. Nobel and
the B. Bjornson . . . 110,428
Lbs.
5,176,327
12
PEOBATE DIVISION.
[1915]
1915
(3.)
Brodr Levy —
Goods on the A. Nuhel, the B.
Lbs.
The Kim.
Lbs.
The Alfred
Nobel.
Thil Bjorn:-
bTEIiJJSE
BffORjcsox.
The
(4.)
Bjornson, and the Kim
J. 0. Hansen —
Goods on the B. Bjornson, Frid-
land, and Kim
132,036
196,873
Fridland.
(5.)
Segelcke —
Till." Pre.sident.
(6.)
(7.)
(8.)
(9.)
(10.)
Goods on the B. Bjornson and
the Kim ....
Pedersen —
Goods on the B. Bjornson
Henriques and Zoydner —
Goods on the B. Bjornson
Korsor Margarin Fabrik —
Goods on the Fridland and the
Ki)n .....
Margarin Fabrik Dania —
Goods on the Fridland . _
Erik Valeur —
Goods on the Kim .
■ Total
275,297
45,219
81,096
26,639
9,004
106,155
1,394,407
, ,
6,570,734
II. — Armouk & Co.
Direct claims by this company to goods laden on Lbs.
the four ships amounting to .... . 7,819,003
Other sub-claims by claimants who allege that they
bought and became owners of goods consigned by
Armour & Co. as follows : —
(1.) Provision Import Company —
Goods on the ^4. \ohel and the Lbs.
Fridland .... 1,176,050
(2.) Christensen and Thoegersen —
Goods on the Fridland . . 244,000
(3.) Brodr Levy —
Goods on the Kim . . . 281,391
PEOBATE DIVISION.
13
(4.) J. 0. Hansen —
Goods on the Kim .
(5.) Frigast —
Goods on the B. BJornson
Lbs.
203,752
15,750
Lbs.
1<)15
Total
in. — Swift & Co. and Hammond & Co.
Direct claims by these companies to goods laden
on the four ships .......
Other sub-claims by claimants who allege that they
had bought and had become the owners of goods
consigned by the above companies: —
(1.) Buch & Co.—
Goods on the B. BJornson, the
Fridland, and the Kim
(2.) Bunchs Fedevare Forretning —
Goods on the Fridland
Lbs.
752,908
3,371
The Kim.
The Alfred
Nobel.
The Bjorx-
1,870,943 STER.J.NE
BjOKNSON.
The
9,689,946 Fkidland.
Lbs.
2,512,912
The President.
756,279
IV. — Sulzberger and Sons Company.
Direct claims by this company to goods laden on
the four ships . . . . . . . • .
Other sub-claims by claimants who allege that they
had bought and had become the owners of goods
consigned by the above company : —
(1.) Pay & Co.— Lbs.
Goods on the four ships . . 845,783
(2.) V. Elwarth—
Goods on the A. Nohel . . 88,618
3,269,191
Lbs.
1,700,281
934,401
2,634,682
14 PEOBATE DIVISION. [1915]
191 n V. CUDAHY & Co.
TuE Kim. Direct claims by this company to goods laden on Lbs.
'^^\^^''^^^ the A. Nohel and the Fridland .... 176,559
iSOBEL.
The Bjorx- Other sub-claims by claimants who allege that they
bJornsox ^^^ bought and had become the owners of goods
The consigned by the above company : —
Fkidland. ^j^ ^^ Christensen and Thoegersen^
The President. Goods on the A. Nohc'l and the Lbs.
Fridland .... 594,682
(2.) Y. Elwarth—
Goods on the A. Nohel . . 61,000
655,682
832,241
These five claimants were the shippers and consignors of the
goods ; tbey allege that the goods had remained their property,
and base their claims upon ownership at the time of seizure.
The other claimants are persons or firms chiefly in Denmark,
who claim that they had become the purchasers of goods laden
on the various vessels. They are as follows : —
A. — Pay & Co. claim goods laden on the four Lbs.
vessels amounting to ...... 1,710,868
They claim as having bought from : —
(1.) Morris & Co.
(2.) Sulzberger and Sons Co., and
(3.) The South Cotton Oil Co.
1,710,868
Tlie goods these claimants say they bought were : —
Lard, cotton oil, beef casings, and oleo stock.
B. — The Provision Liiport Company claim goods Lbs.
on the A. Nobel and the Fridland amounting to . 1,176,050
They claim as having bought from Armour & Co.
The goods consist of : —
Lard and oleo stock.
C. — Christensen and Thoegersen claim goods on
the A. Nobel, the B, Bjornson, and the Fridland
amounting to . . . . . . . . 9 19,110
The Kim.
The Ali'-keo
Nobel.
The PjJor:;-
STEUJNK
BjOliNSON.
The
Lbs.
Fridland.
363,427
Til.. Prtisiiiunt..
P. PROBATE DIVISION. 15
They claim as having bought from : — 1»15
(1.) Morris & Co.
(2.) Cudahy & Co., and
(3.) Armour & Co.
The goods consist of : —
Lard and casings.
D. — Brodr Levy claim goods on the A. Nohel, the
B. Bjornson, and the Kim amounting to .
They claim as having bought from. —
(1.) Morris & Co. and
(2.) Armour & Co.
The goods consist of : —
Lard and fat backs.
E. — Vilhelm Elwarth claims goods on the A. Nobel
amounting to ....... . 141), 618
He claims as having bought from : —
(1.) The Consolidated Eendering Co. and
(2.) Cudahy & Co.
The goods consist of : —
Lard and oleo stock.
F. — Buch & Co. claim goods on the B. Bjornson, the
Fridland, and the Kim amounting to . . . 752,908
They claim as having bought from Hammond & Co.
The goods consist of : —
Lard, fat backs, and smoked bacon.
G. — J. 0. Hansen claims goods on the B. Bjornnon,
the Fridland, and the Kim amounting to . . . 400,625
He claims as having bought from : —
(1.) Morris & Co. and
(2.) Armour & Co.
The goods consist of: —
Lard and fat backs.
H. — Segelcke claims goods on the B. Bjornson
and the Kim amounting to .... . 275,297
He claims as having bought fiom Morris Ov Co.
The goods consist of : —
Lard and fat backs.
16 PEOBATE DIVISION. [1915]
1915 J. — Pedersen claims (for the Faellesforingen Com- Lbs.
The Kim. pa-i^j) goods on the B. Bjornson amounting to . . 45,219
The Alfred He claims as having bought from Morris & Co.
„ " D ' The goods consist of : —
The Bjokn- ^
sTEii.TXE Lard.
Bjornson.
The K. — Henriques and Zoydner claim goods on the
FRIDLAND. ti 7T i •
B. Bjornson amounting to ..... 81,096
They claim as having bought from Morris & Co.
The goods consist of : —
Lard.
L.— Frigast claims goods on the B. Bjornson
amounting to ....... . 15,750
He claims as having bought from Armour & Co.
The goods consist of : —
Lard.
M. — Korsor Margarin Fabrik claim goods on the
Fridland and the Kim amounting to . . . . 26,639
They claim as having bought from Morris & Co.
The goods consist of : —
Oleo stock.
N. — The Margarin Fabrik Dania claim goods
shipped on the Fridland amounting to . . . 9,004
They claim as having bought from Morris & Co.
The goods consist of : —
Lard.
0. — Bunchs Fed. claim goods on the Fridland
amounting to ....... . 3,371
They claim as having bought from Christensen and
Thoegersen goods shipped by Hammond & Co.
The goods consist of : —
Beef tongues.
P. — Erik Valeur claims goods on the Kim amount-
ing to 106,155
He claims as having bought from Morris & Co.
The goods are : —
Oleo stock.
p.
PEOBATE DIVISION.
17
Q. — Christian Loehr claims goods on the A. N'ohel Lbs.
amounting to ....... .
He claims as having bought from the Provision
Import Compan}- goods shipped by Eumsay ^: Co.
The goods consist of : —
Lard.
E. — J. Ullman & Co. claim rubber on the Fridland
a,nd the Kim amounting to .... .
They claim as having bought the rubber from E.
Maurer & Co.
S. — W. T. Baird claims rubber on the Kim amount-
ing to ........ .
He claims the rubber which he himself had con-
signed to Fritsch, of Landskrona.
T. — Marcus & Co. claim hides ontheA'?"/« amount-
ing to 18,968
They claim as having bought the hides from
Amsinck & Co. or, through them, from Goldtree and
Liebes, of Santa Ana.
U. — The Guaranty Trust Company of New York
claim (with Newman) goods on the A. Nohel, and
(with Morris & Co.) goods on the B. Bjornson, and
the Fridland, amounting to • . . . . . 8,795,108
They claim as consignors of goods which consist
of:—
Wheat and flour.
191.-
41,952 The Kim.
The Alfred
Nobel.
The Bjorn-
STEBJNE
Bjornson.
The
Fridland.
137,637 Tl-e ricsident.
29,771
The lirst steamship which sailed was the Alfred Nohel. The
chief shippers on this vessel were : —
(1.) Morris & Co. ; and
(2.) Armour & Co.
The direct claims of these two companies in respect of goods
laden by them on this vessel are : —
Morris & Co 1,574,091 lbs.
and
Armour & Co 1,537,913 „
It will be convenient to investigate the cases of these shippers
first in this order, both as regards the Alfred Nohel and the
P. 1915. C
18
PEOBATE DIVISION.
[19153
1915
other three steamers, upon all of \Yhieh these two companies
The Kim. Were heavy consignors.
As TO Morris & Co.'s Claim.
The Alfred
Nobel,
The Bjoen- n ru • t -xt tr i , , i
STERJNE This meat packing company oi Chicago and JNew lork at the
Bjornson
The
beginning of the war had a large business with Germany, which
FiiiBLAND. they carried on, at the Europe end, at Hamburg. They had in
The President, their omploy at Hamburg two persons named McCann and Fry.
Fry was their manager. They appear to have had an agent also
at Copenhagen of the name of Conrad Bang, The transactions-
relating to their shipments of between six-and-a-half and seven
million lbs. of products on the four vessels were carried through
by McCann and Fry, and not by Bang. Not long after the war
began McCann and Fry left Hamburg and took up their quarters
at Copenhagen. McCann was named in hundreds of the bills of
lading in which Morris & Co. were the shippers^ as the '' party
to be notified." He was so named in all, with a few exceptions
which are insignificant.
He had no business at Copenhagen or in Denmark before the
war. He had apparently no office in Copenhagen. His address
was " the Bristol Hotel."
The instructions to him from Morris & Co. as to the change
from Hamburg to Copenhagen, and as to the initiation and pro-
gress of the business transactions carried on either at or through
Copenhagen, must have been in writing unless he visited America,
or some one from America visited him. No such instructions
vrere produced in evidence and no explanation was given of them.
Not a single letter passing between Morris & Co. and McCann or
Fry was produced. A few telegrams were in evidence, but thafc
was due to their having been intercepted by the British Censor^
and they were put before the Court by the Procurator-General.
McCann did not even make an affidavit in explanation of his
own part of the transactions. Nor did Fry. Affidavits from
them, if they comprised a complete and truthful statement of
the facts within their knowledge, would have been of value and
assistance to the Court.
On November 28 McCann and Fry together formed a company
in Copenhagen • under the name of the " Dansk Fed. Import
p. PROBATE DIVISION. I9.
Kompagnie." Its capital was only about 120L (2000 kronen) ; 1915
but it imported lard and meat by the end of the year (i.e., in the Kim.
about five weeks) to the value of about 280,000/. (5,000,000 Thio alvred
kronen). Later on, McCann is cabling from Copenhaejen to ^, _„ *
, ^ *=• 1. to Xhe Bjorn-
Morris & Co. in New York, " Don't ship any lard Copenhagen? stekjne
, 1 -1 -J. 1 )) Bjornson.
export prohibited.
Afterwards, goods like lard and fat backs were consigned by Fridland.
Morris & Co. to G"enoa — Italy had not then joined in the war. The President.
The evidence put forward in support of the direct claim of
Morris & Co. was an affidavit of Mr. Harry A. Timmins which
was sworn in Chicago on May 27, 1915. Mr. Timmins is the
assistant secretary and treasurer of the company. The case
which he there makes is that the goods had been sent to
Copenhagen in the ordinary course of the business of the
company in Denmark itself.
It is advisable to set out the main paragraphs verbatim : —
" 2. The claimant (Morris & Co.) has for many years shipped
considerable quantities of its products to Denmark, both directly
to Copenhagen and through adjacent branch houses. The sale
of such products for several years was made either through
the Morris Packing Company, a corporation of Norway, or
an individual salaried employee of the claimant. Said Morris-
Packing Company or said salaried individual employee of
claimant always had strict instructions from the claimant ta
confine sales to Denmark, Scandinavian countries, and Piussia,.
and not to sell to any other countries owing to the fact that
the claimant has agents in other countries, and it is essential
that said agent's operations be strictly confined to his own
district.
" 4. In the month of October, 1914, the claimant shipped on
board the Norwegian steamship Alfred Nohel [the paragraphs in
the affidavits relating to the other three steamships are identical^
the goods particulars of which are set out in the schedule to this
affidavit. The whole of said goods was shipped 'to order' Morris-
& Company, notify claimant's agent in Copenhagen (said agent-
being a native born citizen of the United States of America) for
sale on consignment in the agent's own district in the ordinary
course of business. The standing instructions to the agent that.
C 2
20 PEOBATE DIVISION. [1915]
1915 no sales were to be made outside the agent's district were never
"thetKim withdrawn by the claimant."
The Alfred The deponent refrains from giving any particulars or even
Nobel. gunimaries of the " considerable " quantities of the company's
The Bjorn- ^ i -tn
steejne products shipped to Copenhagen or Denmark for the years
Bjornso. ^gjQj,g ^Yie war ; he does not even say what the " products "
The
Fridland. shipped were ; but the impression clearly intended to be pro-
The President, duced was that the goods on the four ships in question were
sent in the Denmark business, and were not to be sold by the
"salaried employee" or "agent" in other countries "outside
the agent's district."
There is no reference to any German market to be supplied
from Denmark. Germany is not even mentioned.
The " ag( nt " in Copenhagen is carefully described as " a
native born citizen of the United States of America," but other-
wise he is left shrouded in anonymity. Mr. McCann was his
name. His collaborator, Fry, is not mentioned. Nor is the
company (the Dansk Fed. Kompagnie) which they formed in
November, 1914, disclosed. For aught the affidavit says or
suggests, the business attentions of Mr. McCann might have
been confined for many years before the war to the compara-
tively humble and quiet Danish or Scandinavian district of the
claimant's business. His and Fry's real business activity up
to October, 1914, (we now know) was in the great centre of
Hamburg.
The solicitors for the claimants had been instructed soon after
the seizure to put forward the same kind of case, although more
limited, because the authority was then said to be to sell only in
Denmark to the exclusion of the rest of Scandinavia and Russia ;
for in a letter to the Procurator-General in December, 1914, they
^vrote : " The duty of the consignor's representative in Copenhagen
was to sell only for delivery in Copenhagen against cash (except
as to 800 tierces of lard shown in the table set out in our letter
to you of the 11th inst. which were going to Christiania) and it
■was never the intention of the consignor's agent, nor had he any
authority, to reship the goods from Copenhagen to another port."
When Mr. Timmins swore his affidavit, that of the Procurator-
Oeneral had not been filed, and j\[r. Timmins had probabl}^ little
p. PEOBATE DIVISION. 21
or no idea of the information which had been gleaned for the 1915
Crown by the intercepted telegrams, letters, and otherwise. No the Kim.
further affidavit has been made by Mr. Timmins or any one else Thk Alfred
on behalf of these claimants, and no attempt has been made to ,„
. . . . . ^^^ Bjorn-
deal with the materials which raise suspicion, or to elucidate sterjne
circumstances involving doubt, in relation to the bona fides of " "" " '
the transactions and claim. Not a single original book of Fridlakd.
account, letter book, or any other of the usual commercial The President.
documents which must have been kept by or for Mr. McCann in
Copenhagen has been produced.
This Court has on various occasions during the present war
pointed out the importance of producing original documents
fully and promptly when a claim is made, and particularly where
the bona fides of the claim is put in question. In the circum-
stances I say without hesitation that the bare account given
of the transactions in Mr. Timmins's affidavit is not only wholly
insufficient, but is also disingenuous and misleading. The picture
exhibited of the ordinary regular Danish trade carried on by
Morris & Co., through Mr. McCann, is marred when alongside of
it is seen the shipment and transport towards Copenhagen by
this company of lard and meat products in less than a month more
than quadrupling the annual quantity imported into Denmark
from all sources for a year on the average of three years before
the war.
In a letter dated November 25 in the " Ascher " correspondence
(hereinafter referred to in connection with the claim of Cudah}^
& Co.), a firm of dealers in Hamburg well acquainted with the
trade wrote from Hamburg : " We met Mr. McCann of the
Morris Provision Company on 'Change to-day [that was at
Hamburg] back from Copenhagen. He was very sceptical with
regard to the Alfred Nobel affair, and rather inclined to the
opinion that the provisions on board of that steamer would never
be allowed to reach Copenhagen, because it was too open-faced a
case of the lard being intended for Germany to expect any other
result." This was disclosed to the claimants a couple of months
before the conclusion of the trial, but they did not deem it
necessary, or perhaps expedient, to trouble themselves to con-
tradict or explain the statement. The only way it was dealt
22
PEOBATE DIVISION.
[1915]
1915
with at the trial was by their counsel submitting that the letter
The Kim~ W'^is iiot evidence. I will deal with this question later, when the
The Alfred correspondence will be more fully referred to.
OBEL. Pi-om other parts of the case it is shown that one Erik Valeur
The Bjorn- ^ • ^ -rx i i
STERJNE also claimed to be an agent of Morris it Co. for .Denmark, and to
have acted as such in the sale of considerable quantities of the
Friblajsd. goods shipped on these vessels by Morris & Co. I will for con-
Die President, venieuce deal with this subject when I come to Yaleur's claim.
I note this, because the facts which will be there referred to have
a bearing also upon the claim of Morris & Co., and also on their
statement that their sole agent in Denmark was Mr. McCann.
I have already referred to a cablegram dispatched by McCann
from Copenhagen to Morris & Co., at New York, on January 24,
1915. " Don't ship any lard Copenhagen, export prohibited."
The export had been prohibited by the Danish Government on
January 11.
This cablegram was of course subsequent in date to the seizure
of the cargoes in these cases. Nevertheless it is neither
immaterial nor unimportant. It testifies clearly to two things :
that lard was not required by or for Denmark, and that the
previous importation into Copenhagen was in the main, at
any rate, a mere stage in its passage into Germany.
In connection with the prohibition against exportation of
foodstuff's it is well known, as a matter of public reputation, that
in order to avoid international difficulties the Scandinavian
countries as neutrals, from good political motives, issued orders
from time to time, prohibiting the export from the respective
countries of goods like lard, smoked meat, and other foodstuffs,
oleo stock, hides, and rubber. For details of such prohibitions
reference may be made to the affidavit of Mr. Henry Eonntain,
of the British Board of Trade, sworn on June 1, 1915.
These are matters also which tend to throw light upon the
question of the real destination of the goods nominally consigned
to Copenhagen ; and the Court is entitled to take them into
consideration and to place them in the scales when weighing all
the evidence.
In the course of the trial, upon the facts which had then been
<^iven in evidence, I addressed some questions to Mr. Leslie Scott,
p. PEOBATE DIVISION. 23
■coimsel for Morris & Co. I asked him whether in respect of the 1915
foodstuffs which Morris & Co. consigned to their own order, or to the Kim.
that of their agent at Copenhagen, and not to any independent The Alfred
•consignee, he contended that they were " intended for a Danish ,,
'^ ' "^ The Bjorn-
market or for the German market." steujxe
His answer was : " My submission is that there is no evidence ^j,
iis to which they were intended for in regard to any specific Fridland.
consignment, but that it was expected that the great bulk would tiip Presi.ieut.
iind its way to German}^ ultimately is obvious." And that it
was so expected b}' his clients, he said, was obvious.
Then I observed, " In other words, those goods would not
have been sent to Denmark if the Germans were not close by ? "
and Mr. Scott answered, " That is obvious."
I then asked for information as to any merchant or person in
Germany with whom Morris & Co. were in communication with
reference to the shipments in question, which they expected
would find their way into Germany.
The answer of their counsel was as follows. I will give the
exact words, because there was some discussion as to what was
said : —
" It must depend upon the facts, as to which I have no
instructions or evidence. The position seems a fairly clear one
— that before the war, Hamburg, of course, was the great centre
of importation, not only for Germany, but for Denmark, and also
probably largely for Norway and Sweden. Hamburg is the great
free port of Northern Europe, and the bulk of the American
foodstuffs went there, as your Lordship sees from the figures
which were given in consequence of your question. After
the war, and importation with that port stopping, two
results happened — one was that the German demand for the
civil population as before the war has to be met, and
the neutral country, the United States, in the ordinary course
of business, sets out to supply that demand. The second point is
that the supply of Denmark and the other Scandinavian countries
has to be met ; but the particular importing ports of Germany
being closed, the difference is that the great stream of produce
going to Germany and the three Scandinavian countries goes to
Scandinavian ports. Before the war, in the case of Morris l^t
24 PEOBATE DIVISION. [1915]
1915 Co., they had agents in Germany. On the war breaking out.
The Kim. i^ is no use the agents remaining in Germany, but they go to
The Alfred Denmark, Mr. McCann goes to Denmark, and there is no ques-
The Bjorn ^^°^ about that. They receive the consignments. That they
STKRJNE should not be in communication at all with Germany and
Bjornson. ^1 T , . . .
The German buyers under those circumstances is obviously a ridicu-
Fridlaxd. lous idea. No one would imagine it, and I do not suppose, apart
The Pip.sidfnt. altogether from any evidence in the case, that your Lordship,
dealing with inferences of fact, would come to the conclusion that
the representatives of Morris in Denmark were not in communi-
cation with any one in German3\ I am not here to put forward
that suggestion."
At a later stage the learned counsel said, " It may be perfectly
true that [the shippers] may have thought that the whole was
intended — we know that the whole was not intended — for German
consumption. I have never disputed it. I have always said the
market through Copenhagen was Germany."
In connection with these statements, it is important to empha-
size the point, which has already been adverted to, that the
claimants, and McCann their representative, did not give tlie
Court any information — all of which was within their power to
give — as to the arrangements made for sending the "great bulk,"
or the " greater part," of the cargoes to Germany ; as to who were
the consignees, or the intended consignees ; or as to what ports
or places in Germany the cargoes were intended or expected to
be sent.
In the course of a discussion at the trial (more particularly to
be referred to in Armour's case) counsel for Morris lI- Co.
expressed his readiness to produce evidence as to the amount
of lard, bacon, and other products of the kind in question
which Morris & Co. had supplied to Germany during the two or
three years before the war.
No such evidence has since been produced, although any
necessary adjournment for the purpose was offered.
Before concluding the statement of facts as to Morris ci: Co.,
two other matters have to be mentiojipd.
The first is that Stern & Co., in whose name certain goods
were shii3ped, is a subsidiary company of Morris & Co., and
p. PEOBATE DIVISION. 25
the case of Stern & Co., by the request of counsel, was taken 191.5
with Morris's claim, and treated as identical with it. The xhe Kim.
second is that the claims of ten claimants to certain parcels The Alfred
of goods shipped by Morris & Co. who allege they were owners „, "
of such goods as purchasers from the shippers will have to be sterjne
dealt with ; and that facts affecting Morris & Co.'s position
relating to those sub-claims must be taken as supplemental to Fridland.
those already adverted to in dealing with their direct claim. xue President.
The legal questions which arise with regard to the real desti-
nation of the goods claimed by Morris & Co. are identical with
those arising in other claims.
I will deal with these legal questions after the examination of
the facts in all the cases.
As TO Akmuur & Co.'s Claim.
This American company had before the war a subsidiary
company — Armour & Co., Aktieselskab — at Copenhagen acting
as agents, These agents (it is said) had always had strict
instructions from the claimants to confine their sales to Den-
mark, other Scandinavian countries, Finland and Russia, and
not to sell to any other countries, as the claimants had agents in
other countries and the operations of each agent were to be
strictly confined to his particular district.
The Copenhagen otBce was a small one; the staff consisted of
a manager, clerk, offtce boy, and typist, according to the evidence
of the Procurator-General ; or of a manager, assistant salesman,
chief accountant, assistant accountant, and office boy, according
to the affidavit of Mr. Urion.
Before the war, the claimants' principal branch was at Frank-
fort, where their German business was carried on.
No information was given by the claimants as to what became
of, or as to what was done at, this branch after the war.
As to the Copenhagen office, not even the name of the manager
was given to the Court. No one from Copenhagen favoured the
Court with any evidence as to the extensive transactions involved
in the shipments by these claimants.
Armour & Co.'s- direct claim is to nearly eight milHon lbs. of
foodstuffs. "When the amounts of their alleged vendees' claims
26
PEOBATE DIA^ISION.
[1915]
1915 are added, the total is over nine and a half million lbs. This
The Kim eijormous quantity was consigned to their agents at Copenhagen
How came it to be sent ? What were the
instructions of the anonymous manager at the Copenhagen office
The Alfred within one month.
Nobel.
The Bjorn-
sTERjxE with regard to its disposal ? With the exception of comparatively
small quantities of casings, canned beef, and fat backs, it was all
Frtdland. lard of various qualities. The average monthly quantity of lard
The President, exported from the United States to all Scandinavia in October
and November, 1913, was 427,428 lbs. ; a year later, in about
three weeks (from October 20 to November 11, 1914), it is shown
that this one company was shipping to Copenhagen alone con-
siderably over twenty times that quantity.
It was deposed by the Procurator-General that Armour &
Co.'s shipments to Copenhagen of hog products from October to
December, 1914, were approximately equivalent to their total
shipments to Copenhagen during the whole preceding eight
_ years. These figures were not contradicted or contested. In
the course of the hearing an opportunity was given to the
claimants to deal with these facts, and to produce evidence of
what the imports into Germany by or through Armour & Co.
of similar products were during the two or three years before
the war. The Crown did not oppose any adjournment which
might be necessarj^ for this purpose. Sir Eobert Finlay, as
counsel for Armour & Co., said : " We will get that statement
without delay as to the amount of those articles (namely, lard,
bacon and other foodstuffs) exported in three years before the
war into Germany by Messrs. Armour & Co." No such state-
ment was produced ; and therefore (as I intimated during the
discussion) I have to decide upon the materials which had
been placed before me at the conclusion of the hearing. The
claim of Messrs. Armour & Co. (dated April 21, 1915) was
made on the ground that the goods were their property as
neutrals shipped on neutral vessels, and consigned to neutrals
at a neutral port ; and that the goods were not intended for
sale to or use by or on behalf of an enemy Government, or
the armed forces of an enemy. The main evidence in support
of the claim was an affidavit sw^orn May 27, 1915, by Mr. Meeker,
one of the vice-presidents and managers of Armour <!• Co, It is
p. PROBATE DIVISION. 27
practically in the same terms as the affidavit sworn in support 1915
■of the claim of Morris & Co. It is indeed a " common form " the Kim.
affidavit. The pith of it is that "the whole of the said goods the Alfred
^ , J, 1 Nohel.
were shipped to the order of the agent m Copennagen for sale ,^^^ bjorn-
in the agent's own district in the ordinary course of business, steujne
The standing instructions to the agent that no sales were to be r^^^
made outside the agent's district were never withdrawn by the yi^ioLANP.
claimants, and the agent had no authority to sell the goods xue President.
except to firms established in Denmark, other Scandinavian
countries, Finland, or Russia."
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.
As to the shipment on the Kim, however, there was this
additional paragraph :
" The s.s. Kim sailed from the port of New York on Novem-
ber 10, and up to that time the claimants had no knowledge
whatever of the Order in Council of the British Government of
October 29, 1914, which was not received by the State Department
at Washington until after the said vessel had sailed."
That is not in accordance with the facts ; for the Order in
Council had been notified to the American Ambassador on
October 30, and was published in New York on November 2.
Further affidavits were filed.
One was by Mr. Finney, which is wholly immaterial. Another
was by Mr. Garside, dealing only with that part of the shipment
which consisted of canned beef; to which reference will be made
hereafter.
The last was by Mr. A. R. Urion, and was sworn about a week
after the hearing in Court had commenced.
Mr. Urion deals with various matters before the war, but as
to transactions after the outbreak of war he deposes as
follows :
" Par. 0. None of the goods shipped by Armour l*c Co. to the
Copenhagen Company subsequent to the outbreak of war were
sold to the armed forces or to any Government department
of Germany or to any contractor for such armed forces or
28 PROBATE DIYISION. [1915}
1915 Government department. About ninety per cent, of the goods
The Kim "were sold to firms who had been customers of the company and
The Alfred established in Denmark and Scandinavia for many years. These
°^^^' sales were all genuine sales, and payment was made against
STEKJNE documents in the ordinary way, and on delivery Armour & Co.'s
Bjornson. jj-^i-gyggj^ in the goods absolutely ceased."
Fkidland. It is to be observed that he does not specify what the goods
The rresident. Were, or to whom or when they were sold. The statement about
the genuine sales of 90 per cent, cannot refer to the goods in the
four ships in question. Such a statement as to those goods
would be wholly untrue ; and when he talks about payment and
delivery of the goods, that must refer to some other goods,
because those now in question never were delivered. It is
significant that in this last affidavit filed for the claimants Mr.
Urion avoids altogether any explanation of the shipment, or
sale, of the goods which his company now claim.
Part of the shipments consisted of canned beef in tins. The
quantity Vv'as 5600 dozen tins of 24 oz. each net, equal to
100,800 lbs. There was evidence before me, on behalf of the
Crow'n, that cases of this size were not usual for civilian markets ;
that large quantities of this particular brand of tinned meat in
tins of that size had been offered for use in the British Army ;,
and that these packages could only have been intended for the
use of troops in the field.
Evidence was given for the claimants to the contrary. But it
is important to observe that no evidence was given that a single
tin of that kind had ever been sent by Armour & Co. into
Denmark before the war ; nor, indeed, that any had been sent
• theretofore to Germany for the civilian population.
I do not say that it was proved that none were so sent. But
it was not proved that any had been sent. Mr. Garside's
affidavit, dealing with this matter, is vague, and supplies no
evidence that a single pound of canned meat in these tins had
ever been sent before the war to Denmark or to Germany. This,
was pointed out to Sir Eobert Finlay during the argument, and,
in consequence, the promise (already mentioned) to supply a
statement as to this was made.
Although the claim, which had formally been put forward upon
p. PEOBATE DIVISION. 2^
the affidavits, was that the goods shipped by Armour & Co. were 1915
sent in the ordinary course of the Danish or Scandinavian the Kim.
business, it is significant that at the hearing the ground adopted The Alfred
by Sir Eobert Finlay was not the same. I will not paraphrase ^^^ bjop'n
his statement of this ground, but will give his exact words : sterjnb
" My case is not that they were all to be consumed in Denmark ,p^^
or Norway ; my case is that they were not consigned to the i^'ridland.
German forces, and it was almost certain there was no continuous The Piesiaent.
voyage."
Upon this the Solicitor-General intervened and said :
" I think I heard my learned friend say a moment ago that his
case was not that these goods were destined for Danish consump-
tion but for German civilian consumption."
Then Sir Robert Finlay answered :
" No ; I said that our case was not that the goods were
intended for consumption in Denmark, but that the persons to
whom they were consigned sold them to Germany."
But as will be seen from the figures already given of the goods
shipped by Armour & Co., less than one-fifth were said to have
been sold to consignees ; and the undisputed fact is that more
than four-fifths had not been sold ; and these are in fact claimed
by Armour & Co. as having remained th'eir property.
There are several references to Armour & Co. in the Ascher
correspondence, but one passage refers to them alone and
specially, and some explanation of it might have been expected.
It relates to another vessel; but it illustrates the nature of
Armour's business with countries contiguous to Germany in
November, 1914.
On November HE. Ascher writes to Cudahy & Co. :
" Mr. Boerenbrink had a conversation with the representative
of Armour & Co., in Rotterdam, who assured him that his
principals had booked several parcels of stuff intended for
German buyers on the steamship Maartensdyk without being
compelled to sign a declaration ; and if this is according to fact,
we cannot explain why Messrs. Armour & Co. should be in a
position to accomplish what you cannot."
More facts relating to the shipments of Armour & Co. will be
stated when I deal with the claims of their alleged vendees,
30 PEOBATE DIVISION. [1915J
1915 namely, the Provision Import Company, Christensen and
~the Kim. Thoegersen, Brodr Levy, Hansen, and Frigast ; and the present
The Alfred statements as to their direct claim must be supplemented by
Nobel. . . ii j
The bjoen- ^^^ material facts emerging from the consideration of the
STERJNE sub- claims.
BJORSSUN. 1 1 1 •
j,^^ rmally, I note that the claimants did not produce any letter,.
Fridland. telegram, contract, or any other document passing bet^Yeen them
riiePresidiiit. and their agents in Copenhagen touching any part of the
enormous quantities of goods shipped ; and not one single book
of account, or commercial document of any kind kept by their
agents in Copenhagen, dealing with the goods claimed, was
disclosed.
As TO THE Claim of Swift & Co. and Hammond & Co.
These two firms are connected, and their claims were taken as
one. Together, the goods they shipped amounted to over 3J
million lbs. ; Swift & Co. consigning over two million, and
Hammond & Co. over one million lbs. In all cases the consign-
ments were to their own order. No part of Swift's two million lbs.
had been sold, or contracted to be sold, to any one at the time of
seizure. (It had been alleged and sworn by Mr. Edward Swift
that a portion had been sold to one Dreyer of Aarhuus ; but at the
hearing this was not relied on.) But it was alleged that a.
considerable part of Hammond's goods had been sold to two
firms, Buch & Co. and Bunchs Fed., whose sub-claims will be^
dealt with hereafter.
The affidavit in support of the claim was in the same commort
and perfunctory form as those in the last two cases.
The unnamed " salaried employee " and " agent," and th&
standing " instructions " to the agent to confine his sales to his-
district (in this case "Denmark"); the consignment "for sal&
in Denmark," and " only to firms established in Denmark,'"
have become stereotyped. At the hearing it transpired that the
person to whom the two companies entrusted the transaction of
the business was one Peterman, their manager at Hamburg.
After the war began an intercepted cablegram showed that on
September 1, 1914, Swift instructed their agents at Rotterdam to
ask their Hamburg office if it recommended consignments of meats
p. PROBATE DIVISION. 31
and lards to a bank at Copenhagen, and if so what quantities, 1915
and who would sell, and what percentage of invoice value they tue Km^
could draw. The Court was not informed what answer was given The Alfred
by Peterman. At an early date, September 16, 1914, Peterman ^^"^^e^-
-,..,, . T. . TheBjorn-
advised the companies to discontinue consigning their products, sterjne
nevertheless later it is found that they cabled to Peterman to -^"^^^o^-
make sure to arrange proper storage at Copenhagen for their FiaDLAtJo,
consignments, in view of the possible large number of consign- The President.
ments by other parties.
Again Peterman is asked if he can insure against war risk
by other than German companies ; and if not, to give name and
financial standing. of German companies, and to get assurance
that losses would be promptly paid without complications. Before
the war, a person of the name of Stilling Andersen of Copen-
hagen seems to have been entrusted with whatever business the
claimants had in Denmark. After the seizure of the first three
vessels, and after the sailing of the fourth. Swift & Co. write
to Lane & Co. (who represented them in London) a letter
(November 17) in which they say : " If it is necessary for you to
obtain proofs of our ownership, will you kindly apply to Mr. H.
Peterman, Copenhagen, at which point we have opened an office,
in order to facilitate the handling of our business in Denmark,
under the existing disadvantageous conditions. For your
guidance, it might be well for us to mention that our business
in Denmark for many years past has been carried on under the
jurisdiction of our Hamburg office, Mr. Peterman there having
charge of same."
Neither Mr. Peterman, nor any one acting for Swift & Co. or
Hammond & Co., in Copenhagen, nor any one from their
Copenhagen bankers made any affidavit, or gave any evidence
relating to the business in which the large shipments in question
were made.
The situation was described by counsel for Swift\l' Co. as
follows :
"It comes to this, Stilling Andersen was the agent in Copen-
hagen. He was under the control of Peterman in Hamburg.
The business that was done in Denmark was handled from
Hamburg, Stilling Andersen being the local agent. Then when
32 PROBATE DIVISION. [1915]
1915 Peterman came across to Copenhagen Peterman would be the
The Kim. person s(ill in control, although I daresa}^ Stillmg Andersen
The Alfred would still he the agent, though probahl}^ under the control of
Nobel. _, , ,,
Peterman.
The Bjorn-
STEEJNE Later on (but before December 10) Peterman's name was
^ "j" '' ' entirely dropped out ; and in the cablegrams relating to the
Fkidland. business the name of "Davis" was used for Peterman. No
The President, evidencc was givon to explain why this " alias " of Peterman was
adopted and used ; nor was any evidence produced to show how
the " alias " had been communicated to the Copenhagen or
Hamburg offices.
No book of account, or correspondence or document of any
kind kept by Peterman or any other agent of the claimants at
Copenhagen relating jO the business, was disclosed.
Thus was the ease of Swift & Co. and Hammond & Co. left.
As TO THE Claim of Sulzbeegee & Sons Company.
This company's direct claim relates to close on If million of
lbs. Their goods were shipped on all the vessels. There is a
sub-claim by Pay & Co. for over 800,000 lbs. The consignments,
Sulzbergers claim, were all to their own order — Leopold Gyth, of
Copenhagen, being the party to be notified. It was said that
Gyth was since August 1, 1914, the agent of thecompan}' for the
sale of its products in Denmark. For some years before that
Pay & Co. were the agents ; and there was a controversy as to
whether their agency had really ceased at the time of the
seizure.
In a letter written by Pay & Co. to Sulzbergers on July 20,
1914 (about a fortnight before the war), they explain that the
sales for the company had been retrograding owing to the
manufacture of vegetable margarine having become predominant
in Denmark, 80 per cent, of the produce being vegetable. In
these circumstances it is strange that no evidence was forth-
coming from Gyth, or any one else, to explain these large
shipments.
It was put forward in the affidavit that the bills of lading had
been dispatched through a bank to Copenhagen — I assume to
a bank there — and that they had been returned. No corre-
p. PEOBATE DIVISION. 33
spondence was produced as to this ; nor was there any evidence rjis
from any Copenhagen bank. The Kim.
There is very little trace of anything which Gyth, the alleged The Alfred
agent, really did. I think there is only one cablegram to him .^ b •
at Copenhagen in 1914 amongst those intercepted. That was sterjne
sent on October 16. „^
Other people connected formerly, and probably at the time, Fkidland.
with Sulzbergers' Hamburg office were much more active. Th€ The President.
earliest record of the Sulzberger transactions after the war began
which was produced to the Court was a letter of September 21,
written by Sulzbergers from Hamburg to Pay & Co. It is an
important letter, showing what Sulzbergers' business projects at
the time were, and to what devices they were wdlling to descend
in order to get goods into Germany. It is best to set it out
verbatim : —
" Hamburg, September 21, 1914.
" Messrs. Pay & Co., Copenhagen.
" Dear Sirs,
" We acknowledge receipt of your esteemed favour of 17th
instant, contents of which duly noted.
" It is possible for us to buy great quantities of oleo and lard,
&c., from America c.i.f. Stettin.
" We beg to ask you whether it is possible to send the goods
from America, via Copenhagen to Stettin, if the bill of lading
bears the following inscription, ' Party to be notified, Order Pay
& Co.,' so that you stand quasi as consignee. You had then to
transmit the goods for us to Stettin, for which w^e are willing to
pay 3^ou a small allowance. We await your kind news as to this
point.
" Concerning Mr. Leopold Gyth is at present nothing to be
done with this gentleman, which is not astonishing under the
critical circumstances prevailing.
" Very truly yours,
" Sulzberger & Sons Co."
Here are the claimants, through their Hamburg office,
scheming to do what the Crown contend they intended to do in
relation to the goods seized. Pay & Co. declined to comply.
Whether Pay & Co., or Gyth, afterwards did what they were
P. 1915. D
34 PROBATE DIVISION. [1915]
1915 asked to do is another matter. But Gyth is afterwards named
The Kim. '^^ ^^^ the bills of lading as the party to be notified. No explana-
The Alfred tion of this circumstance was vouchsafed.
Two German representatives of Sulzbergers, namelj^ Chris-
J. HE JjJORN"
STERJNE tiensen and Saemann, are afterwards at a Copenhagen hotel and
are active over the cables. One of them shows that Christiensen,
The
fridland. and not Gyth, was dealing with the war risk of the FrvUand.
The Piesident. Saemann in another (his twentieth) cable suggests the discon-
tinuance of selling until cargoes seized should be released ; and
again he cables that he could ship to Sweden, " but that guarantee
was required," which of course meant guarantee against
exportation.
In connection with this it may be noted that Saemann cabled,
again from Copenhagen, in January, that exportation of lard,
casings, and fat backs from Norway had been prohibited ; and
Pay & Co. also cabled to them " Don't ship any lard Copenhagen "
(after exportation from Denmark had been prohibited) ; in what
capacity, whether as agents or not, was not explained.
It is interesting to note that Sulzbergers of Liverpool, in
reference to these prize proceedings, ask the claimants over the
ca.ble, " Will it be convenient call witnesses from port destina-
tion show goods not intended enemy use ? "
Whether there was an answer to that question I do not know,
but the practical answer at the hearing was that it could not have
been deemed convenient, as no witness from Copenhagen gave
evidence either verbally or by affidavit.
In November, a cablegram shows that Sulzbergers had also
supplied, or offered to supply, their corned beef to the French
Government.
This they had a perfect right to do, subject to any risk of
capture by enemy ships. It would be strange if they had been
unwilling to do the same for Germany. The risk of capture of
goods sent to France was very small compared with the risk of
goods consigned to Germany. Dealings with the French
Government could accordingly be had direct with practical
safety. If there were to be transactions with the German
Government, a much more indirect and involved plan may well
have been deemed expedient.
p. PROBATE DIVISION. 35
No particulars were given of any business carried on by the 1915
claimants at Copenhagen before the war. As in other cases, no the Kim.
books of account or any documents from the Europe end were The alfked
disclosed ; nor indeed any documents except the bills of lading ,j,^^ bjorn-
and insurances. sterjne
Bjornson.
No evidence was given by Sulzbergers touching the goods -^^^^
alleged to have been sold to Pay & Co. fridlakd.
Further facts relating to the claimants will be given in dealing tiw President.
with the claim of Pay & Co.
As TO THE Claim of Cudahy & Co.
The direct claim of this company is in respect of 176,559 lbs.
of lard and beef casings shipped on the Alfred Nohel and the
Fridland, to their own order — party to be notified Schaub & Co.
The shipments were before the Order in Council of October 29.
The grounds of their claim are that they had sold the goods to
Schaub & Co., for the Danish business of their firm at Esbjerg ;
that they had drawn upon them for the price, but that the
drafts were not accepted by reason of the seizure ; and that the
goods remained the property of the claimants.
The claimants were dealing with the French Government (see
Exhibit J.P.M. 2, pp. 1 and 8) ; and they were in close com-
munication with E. Ascher & Co. of Hamburg, with reference
to their trade with Germany, as the Ascher correspondence
(J.P.M. 10) so clearly shows.
The claimants were quite open to carry on a trade in contra-
band with the enemy, as the facts clearly show ; but the question
as to the goods they now claim is whether they steered clear of
dangers by a bona fide sale to Schaub & Co. of Copenhagen for
use in Denmark. It was said that as to the lard (which was the
chief consignment) it was to go through a refining process at
Esbjerg. Whether afterwards the refined lard would have been
sent to Germany is immaterial upon the question now before
the Court, if it was at the time of seizure on its way to Denmark
to a purchaser who intended to put it through a manufacturing
process there.
The documents in this case were put fairly before the
Court ; and — although there are circumstances of suspicion — the
1) 2
36 PHOBATE DIVISION. [1915]
1915 conclusion to which I have come is that there were bona fide
The Kim. contracts of sale of the particular goods claimed by Cudahy & Co.
The Alfred to Schaub & Co. of Copenhagen, and that these goods were on
their way to Denmark as their real and bona fide destination,
The Bjorn- -^ . • i .
STERJNE and were intended to be imported on their arrival into the
joRNsoN. pQjjj^Qj-^ stock of the country. The larger proportion of
The
Fridland. Cudahy's shipments is the subject of claims by Christen^en
The President, and Thoegersen, and Elwarth, which will be dealt with in their
appropriate places.
I have now stated the separate facts affecting the cases of the
American shippers, and before proceeding to the cases of the
alleged Scandinavian purchasers, I will refer shortly to what I
have called the " Asclier " correspondence, which will be found in
Exhibit J. P.M. 10 to the affidavit of the Procurator-General.
This was a series of intercepted letters written from Hamburg by
Ascher & Co. to the last-named claimants — Cudahy & Co. — some
before the seizures, and others afterwards.
I read them for general information as to the circumstances in
which it was known the trade in conditional contraband was
carried on ; and I find in them cogent corroboration of many
facts and inferences already I think sufficiently established
without them.
They sound almost like a talk between merchants " on 'Change "
relating to a trade rendered interesting through the commercial
risks which its manipulation involved. If the correspondence
could have been completed by the inclusion of the letters from
America in reply, it would have been still more elucidating.
The letters show an intimate knowledge of what was being
done by the various shippers in reference to consignments of
foodstuffs to Copenhagen ; of the difficulty of exportation from
Denmark to Germany ; and of the probable fate of some of the
cargoes now before the Court.
It was objected that they could not be evidence against any
persons other than Ascher & Co. and Cudahy & Co., and that
they ought not to be read in any of the other cases. If they
stood alone, I should not act upon them as affecting those cases.
But it must be remembered that Prize Courts are not governed
or limited by the strict rules of evidence which bind, and some-
p. PROBATE DIVISION. 87
times unduly fetter, our municipal courts. Such strict evidence 1915
would often be very difficult to obtain, and to require it in many the Kim
cases would be to defeat the legitimate rights of beUigerents. The Alfred
Prize Courts have always deemed it right to recognize well- " ^^^^"
. . 'i'Hi;; Bjorn-
known facts which have come to light in other cases, or as matters sterjne
e \ I- i i- Bjornson.
01 public reputation.
In the case of The Rosalie and Betty (1) Lord Stowell dis- Fridland.
cussed the subject generally, and said : " In considering this case Ti.e president.
I am told that I am to set off without any prejudice against the
parties, from anything that may have appeared in former cases ;
that I am not to consider former cases, but to consider every
case a true one, until the fraud is actually apparent. This is
undoubtedly the duty in a general sense of all who are in a
judicial situation ; but at the same time they are not to shut
their eyes to what is generally passing in the world." Then he
refers to well-known facts and expedients relating to illegal
trading and fraudulent practices during war, and adds : " Not
to know these facts as matters of frequent and not unfamiliar
occurrence would l;e not to know the general nature of the subject
upon which the Court is to decide ; not to consider them at all
would not be to do justice."
I will pause only to give one illustration from the American
authorities. In the judgment in Tlte Stephen Hart (2) the Court
read from a statement by the Solicitor-General (Sir Roundell
Palmer) in the House of Commons relating to the contraband
trade between England and America by way of Nassau in the
following passage : —
" The then Solicitor-General of England (Sir Roundell Palmer)
stated in the House of Commons on June 29 last, referring to the
cases of The Dolpliin and The Pearl, decided by the District
Court for Florida .... that it was well known to everybody
that there was a large contraband trade between England and
America by way of Nassau ; that it was absurd to pretend to shut
their eyes to it ; and that the trade with Nassau and Mataraoras
had become what it was in consequence of the war"; and the
learned judge in the same case in another passage said:
" The cases of The Stephen Hart, The Springbok, The Peterhqff
(1) (1800) 2 C. Rob. M'i. (2) (1863) Blatch. Pr. Cas. 387, at pp. 40!, 404.
38 PROBATE DIVISION. [1915]
1915 and The Gertrude illustrate a course of trade which has
The Kim. sprung up during the present war, and of which this Court
The Alfred will take judicial cognizance, as it appears from its own records
,, ' and those of other Courts of the United States, as well as from
The Bjorn-
STKRJKE public reputation."
^" "' The " Ascher " letters having been written to one of the big
The *= '^
Fridland. shippers about, and with intimate knowledge of, this trading
The President, and being obviouslj genuine, and indeed never intended to see
the hght in this Court, I consider that on general principles the
Court was entitled to read them and so to inform itself as to
this trade generally, without, of course, allowing any statements
in them to injuriously affect any claimant, especially if there
was no opportunity for him to deal with them. It is right to
add, that if I had not been made acquainted with their contents,
my decision in every case would have been the same ; but they
do give a sense of mental satisfaction in regard to inferences
which have been drawn.
I will now proceed with the cases of the alleged purchaser
claimants.
As TO THE Claim of Pay & Co.
This firm claims goods to the extent of 1,710,818 lbs., shipped
on the four vessels.
The shippers were Sulzberger & Sons Company, Morris & Co.,
and the South Cotton Oil Company.
The consignments were to the order of the shippers, and in
the case of Sulzberger & Co., the parties to be notified were
Pay & Co. ; in the case of Morris & Co., the parties to be notified
were Morris & Co. of Christiania ; and in the case of the South
Cotton Oil Company no parties to be notified were named.
The substantial question in this case is whether Pay & Co.
were merely agents of the consignors, or independent purchasers.
Pay & Co. say they were for many years before the war, and
remained after the war, agents for Sulzbergers.
There is a conflict between their statement and that of Sulz-
bergers as to the agency. The latter say the agency of Pay &
Co. ceased after August 1, 1914. No contracts for the purchase
of the goods claimed by Pay & Co. were produced ; but certain
p. PEOBATE DIVISION. 39
invoices were sent by them to the Procurator-General; and they 1915
allege that they paid for the goods. Except as to a small portion the Kim,
of the goods shipped by Sulzbergers on the B. Bjornson, and of The Alfred
the goods shipped by the Southern Cotton Oil Company on the „^^ ^^
Fridland (of the alleged sub-sales of which no particulars or sterjne
satisfactory evidence were given), the goods they claim were not ^j^^^
sold before the seizure, but were, according to their account, Fridland.
bought for the purpose of adding to their stock to be sold and Tiie president.
consumed in Scandinavian countries.
In the affidavits filed on behalf of the claimants it was deposed
that the " drafts for all the goods were duly paid " by them.
None of the drafts were produced.
At the hearing certain letters from the bankers were produced
in order to establish that payments had been made.
These documents referred to some arrangements made after
the seizure. They do not show what, if any, sums were paid,
but refer to certain arrangements to debit, which were only book
entries. I saw none of the books.
No evidence has been adduced from the bankers themselves,
nor was any explanation given of the communications from
Pay & Co. which led to the bankers writing the letters
referred to.
It ought to have been easy for the claimants to show by
documents when and how, and at what j)rice and on what
terms, they purchased the goods, if they really were purchasers
on their own account, and to prove, if that was the fact, that
payment was made as alleged.
The claimants aver that when the war broke out they received
letters from the American slaughtering firms asking them to
assist the American houses in sending goods to German buj^ers,
but that they refused to entertain the proposition.
They do not say whether the request came from the shippers
of any of the goods they now claim. They ought to have done .
so. The not unnatural inference is that it did.
No evidence whatever has been given by any of the consignors
in regard to the goods claimed by Pay & Co.
After a careful consideration of all the circumstances, I have
come to the conclusion that the claimants have not shown that
40 PROBATE DIVISION. [1915]
1915 the goods were sent to them as purchasers, but that they were
The Kim. sent to them as agents for the consignors. Even if they had .
The Alfred intended to purchase the goods for themselves, they have
The Bjoen ^^^^'I'^^J failed to satisfy me that they had become the owners
sTEEj>jE of the goods.
Bjornson.
The
Feidland. ^^ ^o T^E Claim of The Peovision Import Company.
The President. This is a Danish company carrying on business in Copenhagen
as importers and dealers in lard stock, &c.
Their direct claim is to 1,176,050 lbs. of lard and oleo stock
shipped on the A. Xobel and the Fridlaud. The shippers were
Armour it Co. — the consignees Armour & Co. of Copenhagen
— and the parties to be notified were the Provision Import
Company.
The case for the claimants is that they bought and paid for
the goods from the shippers through their agents at Copenhagen
in the ordinary course of business, and that the goods were
intended to and would have been disposed of in their business
in Scandinavia if they had been delivered. They give particulars
of sub-sales in Denmark and Sweden to margarine manufacturers
before the seizure. These sub-sales comprise over 200,000 lbs.
of the goods — the other portion, over 900,000 lbs., they say had
not been sold at the time of seizure.
The Crown's case was that the sales were not real sales, but
that the Provision Import Company were merely to deal with
these goods as agents for the shippers.
There is evidence that before the war they bought goods from
Armours ; there is no evidence that they were ever agents for
them. In the affidavit of the Procurator-General tbe Provision
Import Company were said to be the representatives of Hammond
& Co. in Copenhagen ; but they are not in these cases involved
in any of the Hammond shipment transactions. I only find
them once mentioned in the intercepted Armour cablegrams.
That is on October 29, a date subsequent to those given for the
. purchases of the goods in question, but anterior to any seizures.
That cablegram is consistent, and I think only consistent, with
their being the purchasers in the case it refers to.
The documents were fairly completely produced to the Court
p. PEOBATE DIVISION. 41
by the claimants. In my opinion the right conclusion is that liii.o
the Provision Import Company were bona fide purchasers of the the Kim.
goods they claim. The Alfred
Nobel.
K n n. m The Rjokn-
As TO THE Claim of Christensen and Thoegersen. stekjxk
This claim is in respect of goods shipped by Morris & Co. on ,^^^
the A. Nohel and the B. Bjornson ; by Cudahy & Co. on the Fkidlakd.
A. Nubel and the Fridland; and by Armour & Co. on the Frid- xue President.
land. The shipments were all, therefore, before the Order in
Council of October 29, 1914.
The main question as to these goods is whether they were sent
to the claimants as selling agents for the shippers, or as pur-
chasers on their own account.
The affidavits of Mr. Thoegersen, the sole proprietor of the
firm, acknowledge that they sometimes acted as agents, but say
that these particular goods were sold to, and bought by, them as
purchasers, and that as to the greater part of the goods, the
claimants had sold them to their own customers in Denmark,
Sweden, and Norway, some before the sea voyage commenced, and
others during transit. Particulars of these sub-sales were given.
The A.scher correspondence throws some light on the situation
as between Christensen and Thoegersen and Cudahy & Co.
I am now going to refer to the Ascher correspondence as being
helpful to some of the claimants
In a letter dated November 25, 1914, Ascher writes: "We are
glad you have been able to do so heavy a business with Messrs.
Christensen and Thoegersen, and of a portion of it they have
already reaped the benefit, for we have been informed that heavy
lines of lard of your brand have been already distributed amongst
German buyers, particularly in the east by way of Stettin. How
they will fare with subsequent shipments is problematical, for
the fate of the s.s. A. Nohcl is still quite uncertain."
And in a later letter (January 6 last) : " As for Christensen and
Thoegersen they are said to have made so much money out of
the war, that even a big loss would not be greatly felt by them,
if the Nohel should be permanently lost. This, however, we
think is out of the question so far as neutral owners of the
cargo are concerned."
42 PROBATE DIVISION. [1915]
1915 I cannot doubt that Christensen and Thoegersen did sell large
The Kim. quantities to Germany of goods imported from the American
The Alfred meat packers.
The Bjorn- ^^ ^^ sworn that the drafts which appear by the documents to
sterjne have been drawn by the shippers on the claimants were duly
^^^ ■ paid. I should have desired better evidence upon this point ;
Fridland. but the dispute really is not whether the title to the ownership
The President, of the goods had passed, but whether in these particular trans-
actions the claimants were acting merely as agents, or inter-
mediaries for the consignors, or were purchasers. The passages
I have read from the Ascher letters are more consistent with
their being purchasers ; and upon the whole the conclusion to
which I have come is that the goods claimed were shipped to
them as bona fide purchasers, and not as agents.
As TO THE Claim of Brodk Levy.
This firm of merchants (" dealers in herrings, codfish, and
provisions ") claims lard and fat backs, shipped by Morris & Co.
to their own order respectively.
The proofs in this case are not satisfactory. The goods
comprised in bill of lading 11 on the Kim are also claimed by
Morris & Co. ; and those in bill of lading 62 on the Kim are
also claimed by Armour & Co. The goods claimed from the
A. Nohel are said to have been bought from Conrad Bang, an
agent for Morris & Co. at Copenhagen, and from Backstrom,
their agent at Stockholm.
An alleged copy of invoice, dated October 26, 1914, was ex-
hibited, which says the goods were intended for the A. Nohel
(which had sailed six days before), and that they had been war-
insured at Copenhagen. In relation to all the goods claimed
there is a bare statement that payment was made without any
dates, amounts, or particulars whatsoever. The claimants did
not produce any of the shipping documents. No affidavits were
made by Bang or Backstrom or by any one from Armour's
Copenhagen office. The claimants do not say whether they had
dealt in lard or fat backs before or not. No dates appear on the
invoices. The shippers who are said to have been paid also lay
claim to close on half of the goods. Altogether the proofs are
p. PEOBATE DIVISION. 43
deficient, and I am not satisfied that the goods claimed were sold 1915
to the claimants, or that they had paid for the goods, or become xhb Kim.
the owners thereof ; and the claim fails. the Alfred
Nobel.
As to the goods also comprised in the claims of Morris & Co. ^,
fc> '^ The P).jor.n-
and Armour & Co., they must be treated, therefore, as having sterjne
been shipped by the shippers to their own order, and remaining ^^^
their property at the time of seizure. Fridland.
The President.
As TO THE Claims of Vilhelm Elwarth.
Mr. Elwarth has put forward two claims : (I.) one dated
April 10, 1915, to 61,000 lbs. of lard shipped by Cudahy & Co.
on the A. Nohel — to their own order — party to be notified,
Ernst Ascher & Co. of Eotterdam ; and (2.) the other dated
June 1, 1915, to 88,618 lbs. of oleo oil, shipped on the same
vessel by the Consolidated Rendering Company, of Brightwood,
Massachusetts — to their own order — with the same party to be
notified.
It is necessary to investigate closely the position of Vilhelm
Elwarth. He was described in the affidavit of the Procurator-
General as the agent in Copenhagen of E. Ascher & Co. of
Hamburg. In his affidavit in reply he does not deny that,
although he denies agency qua the particular transaction. In
his affidavit of May 15, in support of the first claim, he said he
carried on business in Copenhagen as a provision merchant with a
large number of retail dealers as customers. In that of June 14,
in support of the second claim, he has become an import
merchant frequently importing into Denmark, among other
things, oleo oil. His case is that he bought both the lard and
the oleo oil at different times from Ernst Ascher & Co. of
Eotterdam. The latter are agents for E. Ascher & Co. of
Hamburg. He alleges that he bought the lard verbally on
September 26 on a personal visit of some one to him at Copen-
hagen ; that payment was to be by draft against documents ;
and that "in due course" he paid for the said goods and took
up the documents. The draft was not produced and no dates or
further particulars of payment are given. The oleo oil he says
he bought verbally at Rotterdam on July 25 and 28, 1914 ; and
that payment was to be by net cash. The documents purporting
44 PEOBATE DIVISION. [1915]
1915 to be invoices for all the goods bear date November 3. No
The Kim. explanation was given of how the claim to the goods comprised
The Alfred in the earlier contract was not made till a couple of months
^ ■ after the claim to the goods the subiect-matter of the later
The Bjorj^- ° ''
STERJNK contract.
The Ascher letters, written by his principals, throw light upon
Fridland. the lard transaction, and upon the rest of Elwarth's claim. It
The President, will be remembered that evidence was given, and not contradicted,
that he was Ascher's agent at Copenhagen. In a letter to
Cudahy of November 7, Ascher & Co., of Hamburg, appear to treat
the lard as having been their property. They say, " Nor are we
sure that the war-risk on the 500 half-barrels of pure lard on
board the steamship Alfred Nohel had been taken out by your
good selves, not having received a debit note of the charge up to
tlie present." Later, in the same letter, they say that it had been
sold by their Rotterdam office " to a Danish firm." These were
the consignments of lard claimed by Elwarth.
Elwarth is not named, although he was well known ; and it is
doubtful whether he was the person referred to, as he does not
appear to be a member of any " firm."
After the capture of the A. Nohel they write (November 20)
that they were interested both in the lard and oleo oil : " We are
watching the development with much interest, although we our-
selves are interested only with those 500 half-barrels of lard of
yours, and a couple of hundred tierces of oleo, both of which we
are happy to say are fully covered against war risk, so that in the
worst of cases we cannot lose much." Those were all the goods
claimed by Elwarth. They had in the meantime also suggested
that consignments to them should be made ostensibly to Elwarth.
They wrote : " We suppose if Rotterdam were to cable you ' Ship
sales Elwarth,' you would understand that this meant a request
to have our purchases forwarded to Copenhagen either to the
address of our agent at that city, Mr. Yilhelm Elwarth, or to
your order, party to be notified, Vilhelm Elwarth, Copen-
hagen. Ifc might be right also in that case for you to invoice
the goods to Mr. Elwarth, handing on a copy of the invoice
simultaneously."
The correspondence refers frequently to Elwarth, and it
p. PROBATE DIVISION. 45
contains a testimonial to his assiduity and fidelity as an instru- 1915
ment of Ascher & Co., Hainburg, since the beginning of the war the Kim.
in these words : The Alfred
Nobel.
" We repeat that we consider ourselves responsible for any bjorn
shipments you may be making to Mr. Elwarth during this period, sterjne
; . . ,1 -,,• 1. -7 , ,, • Bjornson,
and we are glad to say he has proved himself entirely reliable m ^^^
all transactions which we had to let go through his hands since Fridland.
the beginning of the war." The President.
1 have come to the conclusion that the claim made by Elwarth
is not a bona fide claim on his own behalf. He was not a
purchaser from Ascher & Co. of Rotterdam, or of Hamburg.
He was merely a nominee of theirs. The goods are not claimed
by any person entitled to them, and therefore they stand to be
treated as goods unclaimed.
As TO THE Claim of Petek Buck & Co.
A claim was put in on behalf of this firm to goods covered by
bills of lading on throe of the vessels, as follows :
On the B. Bjornson, BB/L. 178 to 186, and 188 ;
On the Fridland, BB/L. 62 to 65, and 78 ; and
On the Kim, BB/L. 95 to 97, and 128—131.
The total quantity of the goods thus claimed was 752,908 lbs.
They were all shipped by Hammond & Co. to their own order.
Although the claim was entered, no evidence whatsoever was
adduced, nor was any document produced in support of it.
Counsel appeared for some underwriters in the names of Buch
& Co., but had not been supplied with any documents or
materials. (It should be noted that when Mr. Cave referred to
an affidavit relating to goods on the Fridland (B/L. 61) as if it
was one by the present claimants, there is a confusion : that
affidavit related to another claim by C. Bunchs, Fedevare-
forretning.)
The evidence for the Crown was that Peter Buch & Co., of
Copenhagen, were very large exporters of provisions to Germany,
and were a branch of the firm of that name in Hamburg. The
shippers gave no evidence as to these shi[)ments.
As no evidence was adduced in support of tlie claim, it neces-
sarily fails.
46 PROBATE DIVISION. [1915]
1915 As TO THE Claim of J. 0. Hansen.
The Kim. The subject-matter of this claim is a quantity of lard and fafc
^^No^Er^'^ backs amounting to 400,625 lbs. Mr. Hansen says he is a
The Bjorn- Danish dealer in such goods.
Bjornson. -^® claims four parcels of goods— one parcel each on the
The B. Bjornson, Frklland, and Kim, consigned by Morris & Co. to
■ their own order ; and another parcel on the Kim consigned by
The President. ^ymouT & Co. to their owu order.
The goods shipped by Morris he alleges he bought from Erik
Yaleur ; those by Armours from their Copenhagen office. He
adds a schedule purporting to give a list of his alleged purchases
and resales ; but he did not produce a single document relating
to any of the transactions ; no contract, invoice, bill of lading, '
draft, receipt, account, or anything else. No explanation or
excuse was made for this. Erik Valeur was the representative
in Copenhagen of Morris & Co. He made an affidavit in support
of his own claim, to which reference may be made by way of
criticism of this claim. He alleged that he bought some goods
for Morris on his own account, and sold others as agent. How
he came to decide which was which he did not explain. The
goods claimed by Hansen on the B. Bjornson, Valeur says, he
bought on his own account. The sale to Hansen, he says, was
on September 30 — although Valeur himself says he only
bought on October 6.
Hansen has entirely failed to show that he was the purchaser
or owner of any of the goods. His claim is quite unsupported,
and I cannot accept it.
As TO THE Claim of Segelcke & Co.
Mr. Eilert Segelcke, the sole proprietor of this firm of whole-
sale dealers in lard and bacon in Copenhagen, claims 275,297 lbs.
of lard and fat backs shipped by Morris & Co. on the B. Bjornson
and the Kivi to their own order. The claimants say they bought
the goods partly through Valeur, and partly through Conrad
Bang (agents for Morris & Co.).
According to the affidavit of Eilert Sagelcke sworn May 18,
1915, the various goods were paid for at .different times.
I am prepared to accept the account given by Segelcke as
47
P. PROBATE DIVISION.
accurate. Accordingly I find that his firm were bona fide I9i5
purchasers of the goods they claim. ~THE~KrM
The alfked
As TO THE Claim of Pbdeksbn for the Faellbsforeningen Nobel.
FOR DeNMARKS BrUGSFORBNINGER. ^STKKJNE^"
This is a claim to 45,219 lbs. of neutral lard shipped on the ^"''^^'^J,'^'''
B. Bjornson by Morris & Co. to their own order. Fridland.
The goods are also claimed by Morris & Co. themselves. The President.
In the affidavit of Pedersen of March 19 it is deposed that the
goods were bought for the purpose of keeping up the stock so
that the firm could comply with orders for margarine " from the
members."
No document is produced. The deponent does not even state
from whom the goods were bought, or what the date of the
alleged purchase was ; and he does not allege that any payment
was made. In a subsequent formal claim (April 9, 1915) the
grounds of claim state that the goods were bought from Erik
Valeur, who in the first instance had himself bought the goods
at an agreed price, c.i.f. Copenhagen, and had taken up the docu-
ments and paid for the goods. On looking at Valeur's own account
in his affidavit the statement is, not that he had bought or paid
for the goods, but that he sold them to Pedersen's firm as agent
for Morris & Co.
In these circumstances the claimant's proof is quite unsatis-
factory ; and accordingly, particularly as Morris & Co. themselves
also claim the goods, I decide that Pedersen's firm have failed
to establish their claim. So far as they are comprised in the
claim of Morris & Co. they fall to be treated as goods which
remain unsold.
As TO THE Claim of Henriques and Zoydner.
This firm claims 81,096 lbs. of lard shipped on the B. Bjorn-
son by Morris & Co. to their own order. The affidavit in support of
the claim contains the bare statement that this lot was purchased
for the purpose of keeping up the firm's stock. There is no
statement as to the persons from whom the purchase was made,
what its terms were, what the purchase price was, or that the
price, whatever it was, was ever paid. In a subsequent formal
48 PROBATE DIVISION. [1915]
r.)io claim (unsworn) the grounds of claim state that the goods were
The Kim. purchased from Mr. Erik Valeur ; that Valeur had in the first
The Alfred instance purchased the goods at an agreed price, c.i.f. Copenhagen,
and that the documents therefor had been previously taken up
STERJXE and paid for by him. This statement is in direct contradiction
The ^^ *'^^^ ^^ Valeur himself (in the affidavit already referred to),
Fridland. where he says he sold these goods merely as agent for Morris
The President. & Co.
My conclusion is that the claim of this firm has not been
established.
As TO THE Claim of Feigast.
This is a claim to 15,750 lbs. of lard shipped by Armour & Co.
on the B. Bjornson, and consigned to their own order. Mr.
Frigast is a provision merchant at Copenhagen, and claims the
goods under purchase through Armour & Co., of Copenhagen, on
November 19 for the purpose of his business. He produced
satisfactory documents, and I accept his account of the trans-
action as a real and bona fide transaction of purchase, and find
that lie had become the owner of the goods, and that he pur-
chased them to be used in his own business.
As TO THE Claim of the Korsor Maegarin Fabrik. A/S.
This firm claims one lot of thirty tierces of oleo stock laden
on the Fridland, and another lot of thirty tierces of oleo oil
laden on the Kim.- The shippers were Morris & Co. to their own
order at Christiania. They themselves also claim the first lot.
The claimants say the goods were first bought by Erik Valeur,
at an agi'eed price c.i.f. Copenhagen, and that they in turn bought
from Valeur. They do not say when they bought, what the
price was, or that any payment has been made. Valeur himself
does not say he purchased the goods and resold them, but that
he sold as agent for Morris & Co. A declaration of the claimants
of March 19, 1915, that the goods would be consumed in Denmark
states that they were purchased from Morris & Co. through Erik
Valeur. The evidence in support of the claim is quite unsatis-
factory, and I find the claim ha? not been established. The
)-esult is that the goods on the Fridland which are also claimed
p. PEOBATE DIVISION. .19
by Morris &Co. must be treated as goods of Morris & Co. unsold ; 1915
and the goods on the Kim as goods unclaimed by any person ^he Kim.
entitled as owner. The Alfred-
Nobel.
The Bjorn-
As TO THE Claim of the Margarinefabkik Dania. stekjxe
Bjornson.
This is a small claim to 9004 lbs. of lard on the Fridland, -j.jjg
shipped by Morris & Co. and consigned to their own order at Fbiplanp.
Christiania. The goods are also claimed by Morris & Co. them- The President.
selves.
The case is to all intents identical with the Korsor claim just
dealt with, except that in this case Valeur states he bought them
first on his own account and sold them on the same day. They
were invoiced after the seizure.
I find that the claim has not been established.
The Claim of C. Bunchs Fed.
The claimants are a Danish company. The claim is to a
parcel of beef tongues (3371 lbs.), shipped on the Fridland by
Hammond & Co., consigned to their own order, naming
Christensen and Thoegersen as the " parties to be notified."
The company say they bought the goods from Christensen
and Thoegersen. They produced the bill of lading and priced
invoice from Christensen and Thoegersen, and it is sworn they
took up the documents. The invoice was sent two days after*
the seizure. Whether when it was sent the seizure was known
does not appear.
On the whole I have come to the conclusion that this is a
bona fide claim to goods bought to be dealt with in Denmark ;
and the claim is therefore allowed. -
As TO THE Claim of Erik Valeur.
This is a claim to 106,155 lbs. of oleo stock laden on the
Kim.
The shipment was by Morris & Co. to their own order at
Copenhagen — the parties to be notified being the Morris Packing
Company of Christiania.
Mr. Valeur was the representative of Morris & Co. at Copeiir
hagen. He said his agency comprehended Denmark only. He
P. 1915. E
PEOBATE DIVISION. [1915
1915 alleges that certain of the consignments by Morris (many of
The Kim. which have already been referred to) were sent to him for sale
The Alfred as agent, in Denmark ; and that if he wished to sell goods to
Nobel.
The Bjoen- Grermany, or German buyers, he would have to buy them for his
STEEJNE own account. The goods he now claims he says he bought on his
Bjornson. - ^ ^ , ^ o .
rp^j^ own account, and 1 suppose they were therefore goods he intended
Feidland. to send to Germany. I am not satisfied that they were. They
The President, were Said to have been invoiced to him some days after the
capture of the last of the first three vessels.
I find that he has no ground whatever for his allegation that
he was the owner of the goods.
The Claim of Christian Loehr.
This claim is for 41,952 lbs. of lard alleged to have been
bought from the Provision Import Company. This parcel was
shipped on the Alfred Nohel and consigned by Rumsay & Co. to
their own order, the Provision Import Company being the
parties to be notified. In dealing with the direct claim of the
latter I mentioned that certain goods shipped for them had been
resold.
Mr. Loehr is a Dane, and is the British Vice-Consul in
Denmark. He produced his documents, and I see no reason to
doubt the bona fides or the reality of his purchase as one made
for the purposes of his business in Denmark.
As TO THE Claim of J. Ullman & Co.
The subject-matter of this claim consists of certain rubber of
various kinds. 347 cases (133,209 lbs.) were shipped on the
Fridland, and 218 cases (44,428 lbs.) on the Kim. The con-
signors were Edward Maurer & Co.; and the consignees " J.
Ullman & Co., Copenhagen."
Piubber was declared conditional contraband on September 21,
and absolute contraband on October 29, 1914.
At the time of the shipment on the Fridland, therefore, rubber
was conditional contraband, and at that on the Kim it was
absolute.
Exportation of rubber of this kind from Denmark was
p. PROBATE DIVISION. 51
prohibited on October 22, before either of the shipments. 1915
Jacques Ullman had up to the time of the war carried on business the Kim.
as a merchant in rubber and other articles at Hamburg. ^he Alfred
° . Nobel.
It was stated for the Crown that he was a German ; but this -^^jj^ bjorn-
was a mistake, as it was established that he was born a Swiss ster.jne
Bjornson.
and had remained a Swiss subject. After the war he gave up j,^^
his Hamburg business and began trading in Denmark. He, Fridland,
with his wife, formed a Danish company, " J. Ullman & Co.," on The Pre.sident.
October 24, 1914.
The transactions relating to the goods claimed were attacked
by the Crown on the ground that the rubber was falsely
described in the ship's papers as " gum " with the object of
misleading, and on the ground that the Fridland shipment was
confiscable as conditional contraband because it was destined for
the enemy country and for the use of the enemy Government -
and the Kim shipment as absolute contraband on the ground of
destination for the enemy country.
The goods were invoiced as rubber. Much evidence was
given on both sides upon the question whether " gum " was an
accurate or a false description of the goods. After weighing
the evidence I have come to the conclusion that it was not an
accurate commercial description, and that its use in the manifest
instead of the appropriate commercial description of "rubber,"
or various qualities of rubber by their commercial names, was
adopted in order to avoid the inconvenience or difficulties which
would result from a search and possible capture.
Any concealment or misdescription, or device calculated and
intended by neutrals to deceive and to hamper belligerents in
their undoubted right of search for contraband, will, while I
sit in this Court, weigh heavily against those adopting such
courses when any presumptions or inferences have to be con-
sidered. Neutrals are expected to conduct their neutral trade
during the war not only without having recourse to fraud, or
false papers, but with candour and straightforwardness. As
has been said by the American Supreme Court, " Belligerents
are entitled to require of neutrals a frank and bona fide
conduct." It will not be found against their interest to
23ursue such conduct ; but in investigating attempts to
E 2
52 PROBATE DIVISION. [1915]
1915 mislead by misdescription or otherwise, care must be taken
The Kim. ^^ ascertain who have taken part in such attempts, and to
The Alfred what extent
'NJ/*\T> p J"
In the present case I find upon the facts that the mis-
The Bjorn- '- , . , .
sTERj.xE descrij)tion of the rubber as " gum ' ni the manifest was due in-
■ the main to Gans & Co. — the charterers of the vessels. Copies
Fridland. of the invoices with the correct description of rubber were given
The President, to Gans & Co. for the purjjose of the manifest which was to be
made out by them. Maurer & Co. no doubt acquiesced in this
because otherwise they would probably have lost the benefit of
the freight contract which they had made early in October ; but
I do not find that the claimants, the consignees, ever suggested
or took any part in this. I do not find that they were aware of
the description used until after the Fridland sailed. There was
read against them a passage in a cablegram of October 31,
"Expect you informed Bruno (the insurer) everything shipped
as glim." The explanation of Ullman that this was because of
a cablegram he received on October 28 is, I think, suflicient.
Similarly I do not find that they were responsible for the
misdescription of their cargo on the Kim.
I have examined the commercial documents, and considered
very carefully the cablegrams set out in Exhibit J.P.M. 1 (many
of which, however, do not affect the claimants), and the letters
and cablegrams exhibited to Ullman's second affidavit — and
even if they are approached in an attitude of suspicion created
by some of the surrounding circumstances, I cannot arrive
at the inference that the rubber was on its way to an enemy
destination when it was seized ; on the contrarj^ my conclusion
from the evidence is that the sale to Ullman, and the purchase
and payment by him, were honest business transactions, and"
that he intended to add the rubber to his stock in his Denmark
business, and to dispose of it in Scandinavia in the very
profitable market described in his letters, which was created
greatly by the stoppage to Scandinavia of all exports of rubber
from or through Germany.
A very full and strict undertaking was given on the part of
Ullman & Co. in the course of these proceedings. That must be
adhered to. I need not trouble further about other undertakings
Fridland.
Tlie Presidont.
P. PEOBATE DIVISION. 53
given in the course of this case, except to say that they must be rji5
adhered to. "the Kim.
The Claim of W. T. Baird. The ALruEo
Nobel.
This relates to 39 cases (29,771 lbs.) of rubber shipped on the the Bjokn-
Kiin on November 11 (about a fortnight after rubber was declared ejobnson
absolute contraband) by Baird, and consigned to Fritsch. The
It stands upon a different footing from the last, as the claimant
is the shipper. There are three people concerned : Baird, and
Frankfurter, in America, and Fritsch at Landskrona in Sweden.
Fritsch was the German Vice-Consul at Sweden, and a
forwarding agent. Baird claims as the owner.
The transaction is not made as clear as it could and should
have been. Counsel at the hearing stated it thus :
" Mr. Baird sold these 39 cases of rubber to Mr. Frankfurter,
who was also a rubber broker in New York, and he in turn sold
it to Mr. Fritsch."
The claimant, Baird, deposed that the contract for the sale of
the said goods was made between Frankfurter and the Rubber
Trading Company, of which Baird was president ; and that, at
the time of such sale, he was requested by Frankfurter to make
the shipment to W. Fritsch, " who (he says) was the principal
for whom Frankfurter was acting." Frankfurter exhibits an
order which he received from Fritsch — pursuant to this order
{according to his affidavit) he entered into a contract with Baird
^'for the purchase of the rubber." No contract or invoice has
been produced ; the only documents placed before the Court are
the letter from Fritsch to Frankfurter, and a copy of the bill of
lading. Two bills of lading were given — both of these were sent
to Fritsch, according to Baird' s statement. He does not say by
■whom they were sent. Whether Fritsch dealt with them, or
what has become of them, the Court was not informed. Baird
does not say that any right to dispose of the goods was reserved
on the sale to Frankfurter, or to Fritsch, or when the two original
bills of lading were sent. Frankfurter throws no light upon
this ; and Fritsch has not given any evidence or made any
deposition.
I am not satisfied that Baird has made out his claim to be
owner of the goods, or that any property remained in him after
54
PEOBATE DIVISION.
[1915]
1915 the shipment. There are, moreover, some other matters to
The Kim. which I must advert in connection with the claim. As to the
The Alfred description of the rubber as "gum," he gave no explanation in
his affidavit ; but he allowed it to be understood as having been
J. HE oJORN-
STERJXE done in the ordinary course of business, for all he says about it
BJORNSON. . ,.,. TIT
The ^^' nsive been engaged m buying and selling rubber for forty
Fridland. years in the city of New York, and I have always understood the
Th President, terms * gum ' and * rubber ' to be interchangeable terms in the
trade, and have frequently known of rubber being described as
' gum.' "
In a letter of January 28 he wrote that he could not give any '
instance of crude rubber having been shipped under the name of
" gum."
Later on the Rubber Club of New York, of which he was a
member, appears to have asked Mr. Baird to give them an
explanation of the transaction. His answer took the form of a
statement made and certified before a notary public on March 24,
1915. There he said the contract was entered into on October 29,
1914, with Frankfurter, and the goods were sold to him. Fritsch
of Landskrona is not mentioned. Frankfurter is said to have
given assurance that the rubber was for Danish consumj)tion.
Fritsch was a merchant in Sweden, and that is not the assurance
he is said to have given. As to the way in which the rubber was
described, he said that the instruction to his shipping clerk to
ship it as " gum " was given by Frankfurter, and that he had
since been told by Frankfurter that the Gans Line suggested
that denomination. Frankfurter does not deal with any of this
in his affidavit made two months later. Baird was therefore a
party to this misleading description.
Taking the whole circumstances into consideration, I am
justified in drawing the inference that the rubber was on its way
to enemy territory through Fritsch, the German Consul ; and
even if the claimant had made out his claim to be the owner, I
find that the rubber was confiscable as absolute contraband.
As TO THE Claim of Marcus & Co.
This claim refers to 99 bales of hides t;i8,968 lbs.) shipped on
the Kim on November 11.
p. PEOBATE DIVISION. 55
Hides were declared conditional contraband on September 21, 1915
1914. The Kim.
The consignors were Amsinck & Co., of New York ; and the The Alfred
consignees Marcus" & Co., of Copenhagen. The latter are hide ,^,^^^ bjoun
merchants dealing largely with Hamburg. The claim alleges stekjne
that the goods were purchased from Goldtree, Liebes & Co., of ^,^^^
Santa Ana, El Salvador, on terms c.i.f. Copenhagen, cash to be Fridland.
paid on receipt of goods. It was also alleged that the goods had The Prciident.
been paid for by the claimants. No proof of payment was given ;
and it would be strange if the goods were paid for before
seizure, when payment was only due on receipt of the goods.
Goldtree, Liebes & Co. were also merchants at Hamburg.
The goods were insured by Hamburg offices. On reference
to the exhibit set out in J. P.M. 11, it will be seen that the
claimants were a firm having active dealings, after the war,
with Hamburg.
Amsinck & Co., the consignors, were shown to have sent under
cover to a bank in Christiania a lot of letters to be sent on to
Germany, addressed to various people in Hamburg and Berlin,
which were to have been reposted as if they had been sent
from Christiania. Among such letters, which were intercepted,
was one to Goldtree, Liebes & Co., of Hamburg, of June 5, 1915,
relating to this very parcel of hides, in which they express the
hope that the goods have arrived, and refer to Goldtree's
" friends in Copenhagen," meaning, without doubt, Marcus
& Co., the claimants.
No evidence was given as to what was done with the bill of
lading.
As the goods were consigned c.i.f. to Copenhagen and were to
be paid for on receipt of the goods, and as the goods were never
received by the consignees, and no satisfactory evidence was
given of the alleged payment, I am not satisfied that the goods
ever were the property of the claimants as alleged. Besides, the
proper inference from such evidence as was adduced is, in my
opinion, that Marcus & Co. in Copenhagen were merely inter-
mediaries between Goldtree, Liebes & Co. of Santa Ana, and
Goldtree, Liebes & Co. of Hamburg, to whom the goods were
really destined at the time of seizure.
56
PROBATE DIVISION.
[1915]
1915
STEEJNE
iBjORNSON.
The
Pridland.
The President.
The Claims of the Guaranty Trust CoivirANY of New York.
The Kim. These are the last claims I have to deal with. They relate to
^^xT^^™™ wheat and flour on the A. Nohel, the B. Bjornson, and the
Nobel. ' -^ '
The Bjorn- Fridland.
In the first, the Trust Companj^ are associated with Newman
& Co. ; in the second, with Norris & Co. ; and in the third,
partly v/ith Norris & Co.
The facts in these cases were not sufficiently placed before the
Court ; and there was no argument upon them on behalf of the
Crown.
They must be further dealt with by the Crown and the
claimants before the Court can dispose of them.
I must accordingly adjourn them for further argument.
The details of all the claims have now been set out. I am
very sorry it has taken so long, but it must be remembered that
I had to deal with, not one case, but, I think, twenty-five cases.
With regard to the general character of the cargoes, evidence
was given by persons of experience that all the foodstuffs were
suitable for the use of troops in the field ; that some, e.g., the
smoked meat or smoked bacon, were similar in kind, wrapping,
and packing to what was supplied in large quantities to the
British troops, and were not ordinarily supplied for civilian
use ; that others, e.g., canned or boiled beef in tins, were of the
same brand and class as had been offered by Armour & Co. for
the use of the British forces in the field ; and that the packages
sent by these ships could only have been made up for the use of
troops in the field. As against this, there was evidence that
goods of the same class had been ordinarily supplied to and for
■civilians.'
As to the lard, proof was given that glycerine (which is in
great demand for the manufacture of nitro-glycerine for high
explosives) is readily obtainable from lard. Although this use
is possible, there was no evidence before me that any lard had
been so used in Germany ; and I am of opinion that the lard
comprised ought to be treated upon the footing of foodstuff's
only. It is largely used in German army rations.
As to the fat backs (of which large quantities were shipped),
p. PEOBATE DIVISION. 57-
there was also proof that they could be used for the production 1915
of glycerine. Mr. Perkin, in his affidavit in answer to that of Mr. ^^j^ktm""
George Stubbs, of the British Government Laboratory (which the Alfred
dealt with lard and fat backs as materials out of which glycerine ,, ^^'^^'^'^•
was producible), confines his observations to lard ; and passes sterjne
by entirely what had been deposed as to fat backs. In fact no "^^j^^^^^^-
evidence as against that of Mr. Stubbs was offered for the Fridland.
shippers of fat backs. Mr. Nuttall, a deponent for one of them, tuc- iv^.ient.
Sulzberger &. Sons Co., says the fat backs shipped by them were
not in a condition which was suitable for eating ; but he may
have meant only that they required further treatment before
they become edible.
There was no market for these fat backs in Denmark. The
Procurator-General deposed as a result of inquiries that the
Germans were very anxious to obtain fat backs merely for the
glycerine they contain. In these circumstances it is not by any
means clear that fat backs should be regarded merely as food-
stuffs in these cases, and in the absence of evidence to the
contrary, it is fair to treat them as materials which might either
be required as food, or for the production of glycerine.
The convenience of Copenhagen for transporting goods to
Germany need hardly be mentioned. It is in evidence that the
chief trade between Copenhagen and Germany since the war was
through Liibeck, Stettin, and Hamburg.
The sea-borne trade of Liibeck has increased very largely since
the war. It was also sworn in evidence that Liibeck was a
German naval base. Stettin is a garrison town, and is the head-
quarters of army corps. It has also shij)building yards where
warships are constructed and repaired. It is Berlin's nearest
seaport. It will be remembered that one of the big shipping
companies asked a Danish firm to become nominal consignees
for goods destined for Stettin. Hamburg and Altona had ceased
to be the commercial ports dealing with commerce coming
through the North Sea. They w^ere headquarters of various
regiments. Copenhagen is also a convenient port for communi-
cation with the German naval arsenal and fortress of Kiel and
its canal, and for all places reached through the canal. These
ports may properly be regarded, in my opinion, as bases of
58
PEOBATE DIVISION.
[1915J
1915 siiiDi^ly for the enemy, and the cargoes destined for these might
The Kim. on that short ground be condemned as prize ; but I prefer,
The Alfked especially as no particular cargo can definitely be said to be going
The Bjorn- ^^ ^ particular port, to deal with the cases upon broader grounds,
sterjne Before stating the inferences and conclusions of fact, it will
Bjorxson. , , '
-Pjjg be convenient to investigate and ascertain the legal principles
fridland. ^rjjie]^ are to be applied according to international law, in view
Til? President, of the state of things as they were in the year 1914.
While the guiding principles of the law must be followed, it is
a truism to say that international law, in order to be adequate,
as well as just, must have regard to the circumstances of the
times, including " the circumstances arising out of the particular
situation of the war, or the condition of the jDarties engaged in
" : vide Tlie Jonge Margaretlia. (1)
Two important doctrines familiar to international law come
prominently forward for consideration : the one is embodied in
the rule as to "continuous voyage," or continuous "transporta-
tion " ; the other relates to the ultimate hostile destination of
conditional and absolute contraband respectively.
The doctrine of " continuous voyage " was first applied by the
English Prize Courts to unlawful trading. There is no reported
case in our Courts where the doctrine is applied in terms to the
carriage of contraband ; but it was so applied and extended by
the United States Courts against this country in the time of the
American Civil War ; and its application was acceded to by the .
British Government of the day ; and was, moreover, acted upon
by the International Commission which sat under the Treaty
between this country and America, made at Washington on
May 8, 1871, when the commission, composed of an Italian, an
American and a British delegate, unanimously disallowed the
claims in The Peter](of(2), which was the leading case upon the-
subject of continuous transportation in relation to contraband
goods. (The other well known American cases — e.g.. The Stephen
Hart{S), The Be)inuda (4:), and The SjJringhok {5) — considered
(1) (1799) 1 C. Rob. 189; aucl (2) (1866) 5 Wall. 2S-.
f'hancellor Kent's Commentariei?, (3) Blatch. Pi". Cas. 387.
p. 139. (4) (1865) 3 Wall. 514.
(5) (1866) 5 Wall. 1.
p. PROBATE DIVISION. 59
and applied the doctrine in relation to attempted breaches of the 1915
blockade.) ^ THE Kim.
I am not going through the history of it, but the doctrine was The Alfred
asserted by Lord Salisbury at the time of the South African war with ^^^^'■^'■
The Bjorn-
reference to German vessels carrying goods to Delagoa Bay, and steiune
as he was dealing with Germany, he fortified himself by referring ' .,,
to the view of Bluntschli as the true view as follows : " If the Fridland.
ships or goods are sent to the destination of a neutral port only The President.
the better to come to the aid of the enemy, there will be contra-
band of war, and confiscation will be justified."
It is essential to appreciate that the foundation of the
law of contraband, and the reason for the doctrine of con-
tinuous voyage which has been grafted into it, is the right of a
belligerent to prevent certain goods from reaching the country of
the enemy for his military use.
Neutral traders, in their own interest, set limits to the exercise
of this right as far as they can. These conflicting interests of
neutrals and belligerents are the causes of the contests which
have taken place upon the subject of contraband and continuous
voyages.
A compromise was attempted by the London Conference in the
unratified Declaration of London. The doctrine of continuous
voyage or continuous transportation was conceded to the full by
the conference in the case of absolute contraband, and it was
expressly declared that " it is immaterial whether the carriage of
the goods is direct, or entails transhipment, or a subsequent
transj^ort by land."
As to conditional contraband, the attempted compromise was
that the doctrine was excluded in the case of conditional contra-
band, except where the enemy country had no seaboard. As is
usual in compromises, there seems to be an absence of logical
reason for the exclusion. If 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 he not be allowed to capture
goods which, though not absolutely contraband, become contra-
band by reason of a further destination to the enemy Govern-
ment or its armed forces? And with the facilities of
60 PEOBATE DIVISION. [1915]
1915 transportation by sea and by land which now exist the right
The Kim. 0^ ^ beUigerent to capture conditional contraband would be of a
The Alfred very shadowy value if a mere consignment to a neutral port
were sufficient to protect the goods. It appears also to be obvious
STEKJKE that in these days of easy transit, if the doctrine of continuous
voyage or continuous transportation is to hold at all, it must
Fridland. cover not only voyages from port to port at sea, but also
The President, transport by land until the real, as distinguished from the
merely ostensible, destination of the goods is reached.
In connection with this subject, note may be taken of the
communication of January 20, 1915, from Mr. Bryan, as
Secretary of State for the United States Government, to
Mr. Stone, of the Foreign Eelations Committee of the Senate.
It is, indeed, a State document. In it the Secretary of State,
dealing with absolute and conditional contraband, puts on record
the following as the views of the United States Government : —
" The rights and interests of belligerents and neutrals are
opposed in respect to contraband articles and trade The
record of the United States in the past is not free from criticism.
When neutral, this Government has stood for a restricted list
of absolute and conditional contraband. As a belligerent, we
have contended for a liberal list, according to our conception of
the necessities of the case.
" The United States has made earnest representations to
Great Britain in regard to the seizure and detention of all
American ships or cargoes bona fide destined to neutral ports.
.... It will be recalled, however, that American Courts have
established various rules bearing on these matters. The rule
of ' continuous voyage ' has been not only asserted by American
■ tribunals, but extended by them. They have exercised the right
to determine from the circumstances whether the ostensible was
the real destination. They have held that the shipment of
articles of contraband to a neutral port ' to order ' (this was of
course before the Order in Council of October 29), from which,
as a matter of fact, cargoes had been transhipped to the enemy,
is corroborative evidence that the cargo is really destined to the
enemy instead of to the neutral port of delivery. It is thus seen
that some of the doctrines which appear to bear harshly upon
p. PROBATE DIVISION. 61
neutrals at the present time are analogous to or outgrowths from loio
policies adopted by the United States when it was a belligerent, xhe Kim.
The Government, therefore, cannot consistently protest against The Alfred
the application of rules which it has followed in the past, unless ,,, , „
they have not been practised as heretofore The fact that stkiwne
. .. B.TORNSON.
the commerce of the United btates is interrupted by Great r^^^
Britain is consequent upon the superiority of her navy on the Fridland
high seas. History shows that whenever a country has possessed The President,
the superiority our trade has been interrupted, and that few
articles essential to the prosecution of the war have been allowed
to reach its enemy from this country."
It is not necessary to dilate further upon the history of the
doctrine in question.
I have no hesitation in pronouncing that, in my view, the
doctrine of continuous voyage, or transportation, both in relation
to carriage by sea and to carriage over land, had become part of
the law of nations at the commencement of the present war, in
accordance with the principles of recognized legal decisions, and
with the view of the great body of modern jurists, and also with
the practice of nations in recent maritime warfare.
The result is that the Court is not restricted in its vision to
the primary consignments of the goods in these cases to the
neutral port of Copenhagen ; but is entitled, and bound, to take
a more extended outlook in order to ascertain whether this
neutral destination was merely ostensible and, if so, what the
real ultimate destination was.
As to the real destination of a cargo, one of the chief tests
is whether it was consigned to the neutral port to be there
delivered for the purpose of being imported into the common
stock of the country. This test was applied over a centuiy ago
by Sir William Grant in the Court of Appeal in prize cases
in the case of The William. (1) It was adopted by the United
States Supreme Court in their unanimous judgment in Tlic
Bermuda (2), where Chase C.J., in delivering the judgment,
said : " Neutrals may convey in neutral ships, from one neutral
port to another, any goods, whether contraband of war or not,
(1) (1806) 5 C. Eob. 385. (2) ;J Wall. 514.
G2 PEOBATE DIVISION. [1915]
1915 if intended for actual delivery at the port of destination,
The Kim ^^^ ^" become iiart of the common stock of the country or of the
The Alfred jJo;t."
Another circumstance which has been re^rarded as important
The Bjorn- .,,,..
STEEJNE in determining the question of real or ostensible destination at
the neutral port was the consignment " to order or assigns "
Fridland. without naming any consignee.
The President. In the Celebrated case of The Springhoh (1) the Supreme
Court of the United States acted upon inferences as to destina-
tion (in the case of blockade) on this very ground. The part of
the judgment dealing with the matter is as follows : —
" That some other destination than Nassau was intended tuq^j
be inferred from the fact that the consignment, shown by the
bills of lading, and the manifest was to order or assigns. Under
the circumstances of this trade, such a consignment must be
taken as a negation that any such sale was intended to be made
there ; for had such sale been intended it is most likely that the
goods would have been consigned for that purpose to some
established house named in the bills of lading."
The same circumstance was also similarly dealt with in The
Bermuda (2) and in The Peterhof. (3)
I am not unmindful of the argument that consignment " to
order" is common in these days. But a similar argument
was used in The Siwinghok (1), supported by the testimony of
some of the principal brokers in London, to the effect that a
consignment " to order or assign " was the usual and regular
form of consignment to an agent for sale at such a port as
Nassau. The British Government was petitioned to intervene
for the shippers ; but upon this point the British Foreign Office
said that " no doubt the form was usual in the time of peace, but
that a practice which might be perfectly regular in time of
peace under the municipal regulations of a particular State,
would not always satisfy the law of nations in time of war, more
particularly when the voyage might expose the ship to the visit
of belligerent cruisers " ; and added that, " having regard to the
very doubtful character of all trade ostensibly carried on at
(1) 0 Wall. 1. (3) 5 Wall, at p. 25; and see
(2) 3 Wall. 514. Blatch. Pr. Cas. 463, at p. 540.
\\
p. PROBATE DIVISION. 63
Nassau during the war in the United States, and to many other 1915
circumstances of suspicion before the Court, Her Majesty's '^-he ^im.
Oovernment are not disposed to consider the argument of the The Alfred
€ourt upon this point as otherwise tlian tenable." Nobel.
. The B.jorn-
The argument still remains good, that if shippers, after the stekjne
outbreak of war, consign goods of the nature of contraband to ■^*;^^^^^'^^-
their own order without naming a consignee, it may be a Fridland.
circumstance of suspicion in considering the question whether The pi^.ient.
the goods were really intended for the neutral destination, and
to become part of the common stock of the neutral country, or
whether they had another ultimate destination. Of course, it is
not conclusive. The suspicion arising from this form of consign-
ment during war might be dispelled by evidence produced by
the shippers. It may be here observed that some point was
made that in many of the consignments the bills of lading were
not made out " to order" simpliciter, but to branches or agents
of the shippers. That circumstance does not, in my opinion,
make any material difference.
Other matters relating to destination will be discussed upon
the second branch of the case, namely, whether the goods were
destined for Government or military use. Wherever destination
comes in question, certainty as to it is seldom possible in such
cases as these ; " highly probable destination " is enough in the
absence of satisfactory evidence for the shippers : see per Lord
Stowell in The Jonge Margarctha. (1)
Upon this branch of the case — for reasons which have been
given when dealing with the consignments generally, and when
stating the circumstances with respect to each claim — I have no
hesitation in stating my conclusion that the cargoes (other than
the small portions acquired by persons in Scandinavia whose
claims are allowed) were not destined for consumption or use in
Denmark or intended to be incorporated into the general stock
of that country by sale or otherwise ; that Copenhagen was not
the real bona fide place of delivery ; but that the cargoes were on
their way at the time of capture to German territory as their
actual and real destination.
The second branch of the case raises the question whether the
(1) 1 C. Bob. 189, at p. 192.
64 PEOBATE DIVISION. [1915 J
1915 goods, which I have decided were on their way to German
The Kim. territory, were destined further for the use of the German
The Alfred Government or departments or for mihtary use by the troops, or
T B oRx other persons actually engaged in warlike oi)erations, or should
STERJNE be presumed to be so destined in the circumstances.
J, ' As a preliminary, it becomes necessary to consider the two
Fkidlakd. Orders in Council of August 20 and October 29, 1914.
The President. It was Contended for the claimants that before the seizure
of the cargoes on the first three vessels, and while the}' were
still on their respective voyages, the Order in Council of
August 20 (even if it was binding on the Court) had been
rendered inoperative by the repeal contained in the Order of
October 29.
It was further contended that the two Orders in Council pur-
porting to give effect with certain additions and modifications ta
the unratified " Declaration of London " had no binding eft'ecfe
upon this Court and ought to be disregarded.
As to the first of these two contentions, no doubt if the firsfe
Order had affected the substantive rights of the neutral, e.g., if ife
had declared an article as absolute contraband, which by the
repealing Order had been removed from the list of contraband
before capture, it could not be said that the Order had remained
operative so as to justify the seizure of the article ; but in reality
the only change (material to these cases) which the Order pur-
ported to make was in the nature of alteration of practice as to-
evidence — namely, by adding certain presumptions to those con-
tained in art. 34 of the Declaration of London ; and all these
presumptions, whether set up in the interest of the captor or
against him, are rebuttable (see M. Kenault's Eeport on the
Declaration). The Order had proclaimed to the neutral owners
of the cargoes before the voyages commenced how in practice as
matter of evidence and proof cargoes seized would be dealt with,,
and it might fairly be argued that they could not complain if
their cases were treated in accordance with the Order ; but it is-
not necessary for me to pronounce any decision upon the pointv
I will, for the purposes of this case, assume that the Order of
August 20 had ceased to have any effect upon the promulgation
of the subsequent Order. The result is that cases relating to>
\
p. PROBATE DIVISION. 65
the A. Nobel, B. Bjornson, and the Fridland must be decided in 1915
accordance with the rules of international law. The Kim.
The Order of October 29 applies, however, to all the cargoes The Alfred
Nobel.
on the Rim. ^^^ 3^^^^^^.
As to the contention that the Order is not binding on this steujne
. Bjornson.
Court, I expressed my views on the general question of the r^,^^
binding character of Orders in Council upon the Prize Court in Fridland
the case of TJie Zamora. (1) I do not wish to detract anything The President
from what I then said ; nor do I deem it necessary at present to
add anything as to the general principles ; but as to this Order,
so far as it affects questions arising in these proceedings, it is
right to point out that no provision in it can possibly be said to
be in violation of any rule or principle of international law. It
is true that in a matter of real substance it alters the proposed
compromise incorporated in art. 35 of the Declaration of
London, whereby, if the declaration had been ratified, the
doctrine of continuous voyage would have been excluded for
conditional contraband.
The provision in art. 35 was described by Sir Robert Finlay
(counsel for several of the claimants) as " an innovation in
international law as hitherto recognized in the United States and
'by Great Britain and other States, introducing an innovation of
the first importance by excluding the doctrine of continuous
voyage in the case of conditional contraband."
What the Order in Council did, therefore, was to prevent the
innovation. In this regard it therefore proceeded, not in violation
of, but upon the basis of, the existing international law upon
the subject.
It may be well to note, and to record, that at the London
Conference which produced the Declaration all the Allied Powers
engaged in this war, and also the United States, had been in
favour of continuing to apply the doctrine of continuous voyage
or continuous transportation to conditional as well as to absolute
contraband, a doctrine which, as we have seen, was nurtured and
specially favoured by the Courts of the United States.
As to the modifications regarding presumptions and onus of
(1) June 21, 1915, 31 Times L. E. Committee of the Privy Council.
513. Under appeal to the Judicial
P. 1915, F
66 PROBATE DIVISION. [1915]
1915 proof, as, for instance, where goods are consigned " to order "
The Kim. without naming a consignee, these are matters really affecting
The Alfred rules of evidence and methods of proof in this Court, and I fail
^ ^ ' to see how it is possible to contend that they are violations of
STERJNE any rule of international law.
rpjjj. ' The effect of the Order in Council is that, in addition to the
Fkidland. presumptions laid down in art. 34 of the " Declaration of
The President. London," a presumption of enemy destination as defined by
art. 33 shall be presumed to exist if the goods are consigned
to or for an agent of the enemy State, or to a person in the
enemy territory, or if they are consigned " to order," or if the
ship's papers do not show who the consignee is ; but in the latter
cases the owners may, if they are able, prove that the destination
is innocent.
All the goods claimed by the shippers on the Kim were con-
signed to their own order, or to the order of their agents (which
is the same thing), and not to any independent consignee ; and
they have all entirely failed to discharge the onus which lies
upon them to prove that their destination was innocent.
There was some suggestion that liability to capture in the
Declaration of London and Order in Council did not mean
liability to confiscation or condemnation. On reference to the
various provisions as to absolute and conditional contraband, it
is clear that it is used in that sense.
I am of opinion that under the Order in Council the goods
claimed by all the shippers on the Kim were confiscable as
lawful prize.
I now proceed to consider the confiscability of the cargoes on
all the four vessels, apart entirely from the operation of the
Order in Council upon the Kim cargoes.
Having decided that the cargoes, though ostensibly destined
for Copenhagen, were in reality destined for Germany, the
question remains whether their real ultimate destination was for
the use of the German Government or its naval or military forces.
If the goods were destined for Germany, what are the facts
and the law bearing upon the question whether they had the
further hostile destination for the German Government for
military use?
p. PROBATE DIVISION. 67
In the first place, as has already been pointed out, they were 1915
goods adapted for such use ; and further, in part, adapted for ^he kim.
immediate warlike purposes in the sense that some of them the Alfred
could be employed for the production of explosives. They were ^^^^ bjokn-
destined, too, for some of the nearest German ports like stekjne
Bjounson.
Hamburg, Liibeck, and Stettin, where some of the forces were ^^^^
quartered, and whose connection with the operations of war has Fridland.
been stated. It is by no means necessary that the Court should The President.
be able to fix the exact port : see Tlie Dolphin{\)\ The Pearl (2) ;
The Peterhof. (3)
Regard must also be had to the state of things in Germany
during this war in relation to the military forces, and to the civil
population, and to the method described in evidence which was
adopted by the Government in order to procure supplies for the
forces.
The general situation was described by the British Foreign
Secretary in his Note to the American Government on Feb-
ruary 10, 1915, as follows : —
" The reason for drawing a distinction between foodstufi's
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 food-
stuffs in the country." — I am not saying that the last sentence is
applicable to the circumstances of this case. — ....
" In the peculiar circumstances of the present struggle where
the forces of the enemy comprise so large a proportion of the
population, and where there is so little evidence of shipments on
(1) Ante, p. 251. (2) (1866) 5 Wall. 574.
(3) 5 Wall. 28, at p. 69.
68 PfiOBATE DiViSION. [1915]
1915 private as distinguished from Government account, it is most
Thb Kim. reasonable that the burden of proof should rest upon claimants."
The Alfred It was given in evidence that about ten millions of men were
The Bjorn ^i*'^®^ serving in the German army, or dependent upon or under
STEUJNE the control of the military authorities of the German Govern-
Bjoenson. . . .
,j,^g ment, out of a population of between 65 and 70 millions of men,
Fridland. women, and children. Of the food required for the population,
The President, it would not be oxtravagant to estimate that at least one-fourth
would be consumed by these 10 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.
So much as to the probable ultimate destination in fact of the
cargoes.
Now as to the question of the proof of intention on the part of
the shippers of the cargoes.
It was argued that the Crown as captors ought to show that
there was an original intention by the shippers to supply the
goods to the enemy Government or the armed forces at the
inception of the voyage as one complete commercial transaction,
evidenced by a contract of sale or something equivalent to it.
It is obvious from a consideration of the whole scheme of con-
duct of the shippers that if they had expressly arranged to consign
the cargoes to the German Government for the armed forces, this
would have been done in such a way as to make it as difficult as
possible for belligerents to detect it.
If the captors had to prove such an arrangement affirmatively
and absolutely, in order to justify capture and condemnation,
the rights of belligerents to stop articles of conditional con-
traband from reaching the hostile destination would become
nugatory.
It is not a crime to dispatch contraband to belligerents. It can
be quite legitimately sent subject to the risk of capture ; but the
argument proceeded as if it were essential for the captors to prove
the intention as strictly as would be necessary in a criminal trial ;
p. PROBATE DIVISION. 69
and as if all the shippers need do was to be silent, to offer no 1916
explanation, and to adopt the attitude towards the Crown, the Kim.
" Prove our hostile intention if you can." The Alfred
In the first place, it may be observed that it is not necessary [^^^ "
that an intention at the commencement of the voyage should be sterjne
established by the captors either absolutely or by inference. ' |
In The Bermuda (1) the Chief Justice of the Supreme Court of Fuidland.
the United States, in referring to the decision of Sir William Tue President.
Grant in The William (2), said : —
" If there be an intention, either formed at the time of the
original shipment, or afterwards, to send the goods forward to
an unlawful destination, the continuity of the voyage will not be
broken, as to the cargo, by any transactions at the inter-
mediate port."
It is, no doubt, incumbent upon the captors in the first instance
to prove facts from which a reasonable inference of hostile desti-
nation can be drawn, subject to rebuttal by the claimants.
Lord Granville as Foreign Secretary in 1885, in a Note to
M. Waddington (the French Ambassador) which had reference to
the question of rice being declared contraband by the French
Government in relation to China, said : —
" There must be circumstances relative to any particular cargo,
or its destination, to displace the presumption that articles of
food are intended for the ordinary use of life, and to show, prima
facie at all events, that they are destined for military use, before
they could be treated as contraband."
And Lord Lansdowne as Foreign Secretary in 1904, in a Note
to the British Ambassador at St. Petersburg, stated the British
view thus : —
" The true test appears to be whether there are circumstances
relating to any particular cargo to show that it is destined for
military or naval use."
These statements, so qualified, it will be noted, were made when
this country was making representations against the action of
foreign Governments concerning conditional contraband. There-
fore they were put as high, I assume, as it was thought they
properly could be put.
(1) 3 Wall. 514. (2) 5 C. Eob. 385.
70 PEOBATE DIYISION. [1915]
1915 So far as it is necessary to establish intention on the part of
The Kim. ^^^ shippers, it appears to me to be beyond question that it can
The Alfred be shown by inferences from surrounding circumstances relating
„, „ ■ to the shipment of and dealings with the goods.
The Bjorn- ...
STERJNE Cargoes are inanimate things, and they must be sent on their
way by persons. If that is all that was meant by counsel for
Fridland. the claimants, when they argued that " intention " must be
The President, proved, their contention may be conceded. But it need not be
an " intention " proved strictly to have existed at the beginning
of the voyage, or as an obligation under a definite commercial
bargain.
If at the time of the seizure the goods were in fact on their
way to the enemy Government or its forces as their real ultimate
destination, by the action of the shippers, whenever the project
was conceived, or however it was to be carried out ; if, in truth,
it is reasonably certain that the shippers must have known that
that was the real ultimate destination of the goods (apart of
course from any genuine sale to be made at some inter-
mediate place), the belligerent had a right to stop the goods on
their way, and to seize them as confiscable goods.
In the circumstances of these cases, especially in view of the
opportunity given to the claimants, who possess the best and
fullest knowledge of the facts, to answer the cases made against
them, any fair tribunal, like a jury, or an arbitrator, whose duty
it was to judge facts, not only might but almost certainly would
come to the conclusion that at the time of the seizure the goods
which remained the property of the shippers were, if not as to
the whole, at any rate as to a substantial proportion of them at
the time of seizure on their way to the enemy for its hostile
uses. The facts in these cases, in my opinion, more than amply
satisfy the " highly probable destination " spoken of by Lord
Stowell.
Before I conclude I will make reference to an opinion expressed,
towards the end of last year, by a body of men eminent as
students and expositors of international law in America, in the
editorial comment in the American Journal of International
Laic, to which my attention was called by the law officers.
Amongst them I need only name Mr. Chandler Anderson, Mr.
p. PROBATE DIVISION. 71
Robert Lansing, Mr. John Bassett Moore, Mr. Theodore Woolsey, 1915
and Mr. James Brown Scott. rr„„ c^,.
It is as follows : — The Alfred
"In a war in which the nation is in arms, where every able- " o^eu
. - . .,• 1 The Bjorn-
bodied man is under arms and is performing military duty, and sterjne
where the non-combatant population is organised so as to sup- , ' ' '
port the soldiers in the field, it seems likely that belligerents will Fridland.
be inclined to consider destination to the enemy country as The President.
sufficient, even in the case of conditional contraband, especially
if the Government of the enemy possesses and exercises the
right of confiscating or appropriating to naval or military uses
the property of its citizens or subjects of service to the armies
in the field."
I cite this, not of course as any authority, but as showing
how these eminent American jurists acknowledge that inter-
national law must have regard to the actual circumstances of
the times.
I have not in this judgment followed the course thus indicated
by them as a likely and reasonable one in the present state of
affairs. I have preferred to proceed on the lines of the old
recognized authorities.
I wish also to note the opinion recently expressed by the
Hamburg Prize Court in the case of The Maria, decided in April
last, where goods consigned from the United States to Irish ports
were laden upon a Dutch vessel.
I refer to it, not because I look upon it as profitable or helpful
(on the contrary, I agree with Sir R. Finlay that it should rather
be regarded as "a shocking example"), but because it is not
uninteresting as an example of the ease with which a Prize
Court in Germany "hacks its way through" bona fide com-
mercial transactions when dealing with foodstuffs carried by
neutral vessels.
Be it remembered, too, that the Court was dealing with wheat
which was shipped from America before the war, and which had
also before the war been sold in the ordinary course of business
to well-known British merchants, R. & H. Hall, Limited.
This is what the Hamburg Court said : —
" There is no means of ascertaining with the least certainty
72 PEOBATE DIVISION. [1915]
1915 what use the wheat would have been put to at the arrival of the
The Kim vessel in Belfast, and whether the British Government would
The Alfred not have come upon the scene as purchaser, even at a very high
OBEL. r)i-[QQ ai^(j in this connection it must also be borne in mind that
The Bjorn-
STERJNE the bills of lading were made out to order, which greatly facili-
joRNsoN. |.g^^g^| |.j-jg j^.gg clisposal of the cargo. That at the time of the
The ^ .
Fridland. conclusion of the contract concerning the acquisition of the wheat
The President, on the part of R. & H. Hall, Limited, the possibility of using
the same for war purposes had, perhaps, not been contemplated,
does not affect the question what actual use would have been
made of the cargo of wheat after the outbreak of war in October,
1914."
For the many reasons which I have given in the course of
this judgment and which do not require recapitulation, or even
summary, I have come to the clear conclusion from the facts
proved, and the reasonable and, indeed, irresistible inferences
from them, that the cargoes claimed by the shippers as belonging
to them at the time of seizure were not on their way to Denmark
to be incorporated into the common stock of that country by
consumption, or bona fide sale, or otherwise ; but, on the con-
trary, that they were on their way not only to German territory,
but also to the German Government and their forces for naval
and military use as their real ultimate destination.
To hold the contrary 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.
Even if this conclusion were only accurate as to a substantial
proportion of the goods, the whole would be affected ; because
" Contraband articles are said to be of an infectious nature,
and they contaminate the whole cargo belonging to the same
owners. The innocence of any particular article is not usually
admitted to exempt it from the general confiscation." (Kent's
Commentaries, 12th ed., by Holmes J., p. 142.) (See to the same
effect The Springbok (1) and The Peterhoff. (2) )
The Declaration of London (art. 42) is to the same effect ; and
M. Eenault's report on it is : —
" The owner of the contraband is punished in the first place
(1) (1863) Blatch. Pr. Cas. 434, at p. 451. (2) (1866) 5 Wall. 28, at p. 59.
p. PROBATE DIVISION. 73
by the condemnation of his contraband property, and in the 1915
second by that of the goods, even if innocent, which he may the Ktm.
possess on board the same vessel." The Alfred
It only remains, to conclude these loner and troublesome cases, ^
, . The Bjorn-
to state the results as applied to each of the claims : — sterjne
H TOTIN^SON
I disallow the claims of Morris & Co., Armour & Co., Hammond
' The
&Co. (with Swift & Co.), Sulzberger & Sons Company, Pay & Co., Fridland.
Brodr Levy, Elwarth, Buch & Co., Hansen, Pedersen, Henriques The President.
and Zoydner, Korsor Fabrik, Dania Fabrik, Valeur, Baird, and
Marcus & Co., and pronounce condemnation as prize of the goods
comprised in them or of their proceeds, if sold.
I allow the claims of Cudahy & Co., the Provision Import
Company, Christensen and Thoegersen, Segelcke, Frigast,
Bunchs Fed., Loehr, and Ullman & Co., and order the goods
comprised in them or the net proceeds thereof, if sold, to be
released to the respective claimants.
Stay pending appeal ivithin six weeks in respect of
claims disallowecl. Costs to he secured to the
extent of 5000Z. to he allocated hettveen the
various appellants. The cases of the ships
themselves to stand over.
Solicitor for the Crown : The Treasury Solicitor.
Solicitors for claimants : William A. Crump <£• Son; Botterell
d Roche ; Rawle, Johnstone d: Co. ; Pritchard d: Sons, for Also2),
Stevens, Crooks d; Co., Liverpool ; Windyhank, Samuell d Laicrence,
for Luya d Williams, Liverpool ; Batesons, JVarr d- Wimshurst,
Liverpool ; Parker, Garrett d- Co. ; CrosUy d Burn ; Thomas
Cooper d Co.
T. L. M.
P. 1915. G
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