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I CORNELL 1 
.LAW LIBRARY 






R. F. HAYWARD, 

INNER TEMPLE. 



Cornell university Library 

JX 5245.H96 

1-^ J i,n!.n<.<se orize cases; being £ 

Russian and Japanese pric 




3 1924 017 521 737 



(P. J/. }icJU.>A 



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12, KINGS BFMCH WALK, 
\ TEMPLE, E.G. 4. 




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EUSSIAN MD JAPANESE PRIZE CASES 



BEING 



A COLLECTION OF 
TRANSLATIONS AND SUMMARIES OF THE 

PRINCIPAL CASES DECIDED BY THE 

RUSSIAN AND JAPANESE PRIZE COURTS 

ARISING OUT OF THE 

RUSSO-JAPANESE WAR, 1904-5. 



EDITED BY 

C.'^J.B. HURST, C.B., K.C., 

OF THE MIDDLE TEMPLE, BAEBISTHlt-AT-LAW, 
ASSISTANT LEGAL ADVISER TO THE F()ia;[(;N OFFICE, 



AND 

F. E. BRAY, 

OF THE INNER TEMPLE, BAKBLSTKil-A I'-LAW. 



VOL. 11.^ 
JAPANESE CASES. 



LONDON : 

PKINTED UNDER THE APTHOBITY OF HIS MA.IESTV'S 

STATIONERY OFFICE 

BV BYRE AND SPOTTISWOODE, LTD., EAST IlAKDI.NO Street, E.(!., 

PEINTERS TO TUB KING'S HOST EXCELLKXT .MAJESTY. 



To bR purchased, either directl.v or through any Bookseller, from 

WYMAN AND SONS, LTD., PETTEK LANE, E.G., and 54, ST. MABY Street, CARDIFF ; or 

H.M. STATIONERY OFFICE (SCOTTISH BRANCH), 23, FORTH STREET, EDINBURGH ; or 

E. PONSONBY, LTD., 116, SRAFTON Strekt, Dublin ; 

or from the Agencies in the British Colonies and Depcii'lencies, 

the United States of America, the Continent of Europe un-l Abroad of 

T. FISHER XTNWIN, LONDON, W.O. 



1913. 
Price Fifteen S/iilli/if/s. 



11 



'B/a57g3 

CONTENTS. 



Page 

The " Ekaterinoslav " - - - - - 1 

Cargo ex "Ekaterinoslav," Kunst and Ai.bbrs' Claim - lO' 

The " Mukden " - - - - - - - 12 

Cargo ex "Mukden" - - - - - -18 

BOEDDINGHAUS' ClAIM - - - - . - - 19 

Yuan-tsu-chuang's Petition - - - - - 21 

Goudereau's Claim (No. 1) - - - - - 24 

Yak Yuk Chang's Claim . . - - - 2& 

Goudereau's Claim (No. 2) - - - - - 27 

East Asiatic Co.'s Claim - - - - - 29 

Kunst and Albers' Claim - - - - - 31 

Russo-Chinesb Bank's Claim ----- 36 

Holme Ringer & Co.'s Claim - - - - - 38 

The "Rossia" ....--- 39 

"W. H. Gill & Co.'s Claim . - - - - 43 

The "Argun" -...--- 46 

The " Hermes "-.----- 50 

The " Manchuria " (No. 1) - - - - - - 52 

Cargo ex "Manchuria" (No. 1): 

Ringer's Claim ------- 57 

China Sugar Refining Co.'s Claim - - - - 59 

Kunst and Albers' Claim ----- 61 

An Huo Tai's Claim - - - - - - 65 

Frederick Huth & Co.'s Claim - - - - 69 

Schmidt's Claim ..---- 75 

The "Michael" ....--- 80 

The "Nikolai" - - - - - - - 85)!; 

The " Alexander " - - - - - - - 86 

The "Lbsnik" ....... 92 

The "Kotik" .....-- 95 

The '■ Manchuria " (No. 2) - - - - - - 100 

The ".Juliette" ...---- 103 

The " Nadeshda " - - - - - - - 105 

The "Bobrik" .-..--- 107 

The "Thalia" ..._..- 116 

The "Aggi" ..---.-- 131 

The "Hsiping" - - - - - - - 133 

Cargo ex " Hsiping " : 

Claim op the Union Insurance Society of O.vnton, Ltd. 

and others --.-..- 135 

Claim op Teng Mini? Cheng and others - ' - - 140 

Claim op Yu Sheng Chang < - - - - - 155 

The "Pehping" - - - - - - - 162 

Cargo ex "Pehping": Claim op Tbng Ming Cheng and others 164 

The "George" ....... 171 

The "Sishan" ....... 174 

The "Puping" . - . - . . . 177 

Bckardt's Claim . . . - - - 180 

The "Veteran" ....... 190 

Cargo ex " Veteran "... . . 199 

The "Nigretia" . . . - - - - 201 

Petjtion op Mitsubishi Goshi Kaisha - - - 208 

Cargo ex "Nigretia": Sbrebrenik's Claim - • - 213 



Ill 

Page 

The " King Arthur "-..... 217 

The " RosELEY "---.... 228 

XJargo ex " RoSELEY "---... 235 

The "Aphrodite" ---.-.. 240 

The " Wilhelmina '" •- - - - . . - 248 

Cargo ex " Wilhelmina '' - ' - - - - - 248 

The " Lethington " - - - - - - . 249 

The -Oakley' ....... 250 

The "Burma" ----... 250 

The " SiAM " - - - - - - . - 250 

The "Apollo" -.--... 260 

The "Silviana" - - - - - . - 251 

The " Powderham " - - - - - . - 251 

The " Severus "--.-..- 252 

The "Romulus" ....... 252 

The " Easby Abbey " - . . , . . 253 

The "Vegga" - ...... 253 

The " Venus " . . - . . - . - 254 

The " Hakbarton '" - - . . . . - 254 

The " Scotsman '' - - - . - - . 256 

The " Bawtry "....... 265 

Cargo ex "Bawtry": 

Kobritz' Claim ....... 270 

Sholton's Claim ...... 274 

Bediger's Claim ...... 281 

The "M. S. Dollar," Robert Dollar's Claim . . . 283 

The "M. S. Dollar" - . . - . - 284 

The " Wyefield " - - . - - - - 291 

Cargo ex "Wyefield" . . - - . - 297 

The " Eastry "....-.. 299 

The " Paros " - ... . . . 30X 

The "Saxon Prince ' , - . - . . . 312 

The "Tacoma" . . ... . . . 314 

Cargo ex " Tacoma "-..... 320 

The " Industrie " - . . - . . . 323 

The " Henry Bolckow " . . - . - . 331 

Cargo ex " Henry Bolckow " . . - . - 339 

The " LiNCLUDBN " - - . - - . . 341 

The " QuANGNAM " . . 1 . - . . 343 

The " Orel ' - ....... 354 

The " Lydia " ....... 359 

Cargo ex " Lydia " . . - . . . . 367 

The "Australia" - - - . -, . . 373 

The " Antiope ".----.. 339 

The " MONTARA "---.-.. 403 

Appendix A. — Prize Court Regulations - . . . 4ig 

Appendix B. — Regulations relating to Capture at Sea - - 422 

Appendix 0. — Imperial Ordinance No. 20 of 1904 as to days of grace 445 

Appendix D. — Admiralty Order No. 1 of 1904 as to contraband . 445 

Appendix E. — Admiralty Order No. 1 of 1905 as to contraband - 446 

Appendix P. — Constitution of Prize Courts . - - . 446 

Appendix G. — Organisation of Prize Courts .... 446 

Appendix H. — Imperial Ordinance as to release of ships - - 447 

Appendix I. — Closing of Prize Courts .... 447 

Appendix K. — Access to Prize Courts .... 443 

Appendix L. — Judgment of the Supreme Court at Hongkong in 

the case of the " Pi'ometheus " . . . 451 



e (12)]2750 Wt 22861 — 171 .5"(l lOlU E\S 



IV 



PEEFACE TO VOLUME II. 



The general observations as to the editing of tlie Reports 
made in the preface to Vol. I. apply to the Reports in this 
volume, the thanks of the Editors being due in this case to 
the Rt. Hon. Sir Claude MacDonald, G.C.M.G., &c., and the 
stafE of His Majesty's Embassy at Tokio. 

The Editors also desire express their gratitude to Professor 
Takahashi for the valuable permission to make use of the 
translations contained in the English edition of his work on 
International Law in the Russo-Japanese War (Stevens and 
Sons, Ltd.), and they hope that the publication of the further 
cases included in this volume will serve to enhance the value 
of Professor Takahashi's book which will always remain the 
standard work on the subject. 

Thanks are also due to the proprietors and editors of 
the Hong Kong Law Reports for permission to publish the 
Reports of the case of the "Prometheus," and to Mr. H. W. 
Malkin, whose work in connection with the text and proofs 
has again been of the greatest assistance to the Editors. 



INTRODUCTORY STATEMENT. 

The rupture of diplomatic relations between Russia and 
Japan was first evidenced by the sailing of the Japanese Fleet 
on February 6th, 1904, and the capture of the Russian steamship 
" Ekaterinoslav " at 9 a.m. on that date. The announcement of 
this rupture was made by Japan to the Russian Ambassador 
at Tokio at 2 p.m., and by the Japanese Ambassador at 
St. Petersburg to the Russian Minister for Foreign Affairs at 
4 p.m. on the same day. Formal declarations of war were 
published by both nations on February 10th. 

64 ships were captured by the Japanese Fleet and brought 
before the Prize Courts, of which 8 were released after investi- 
gations in which it was held in each case that the detention was 
justified, and 6 were released after the conclusion of peace by 
special ordinance. 15 were condemned as enemy ships, 25 for 
the carriage of contraband, 4 for breach of blockade, 4 for 
unneutral service, 1 for sailing under enemy licence to engage 
in a closed trade, and 1 as a hospital ship which had been 
employed for inilitary purposes. 

The treaty of peace was signed on September 5th, 190.'?. 



VI 



DIGEST OF CASES IN VOL. II. 



BLOCKADE. 

1. Blockade — Capture on outward voyage after breach of blockade inwards — 
Effective blockade. 

During the blockade of Port Arthur a neutral ship i-eached that port 
with a cargo of provisions. She was captured on the return voyage by the 
blockading fleet. 

Held that the fact tha,t she had succeeded in reaching Pt)rt Arthur was 
no evidence that the blockade was not effective. A vessel found to have 
broken blockade may be condemned without inquiry into other circumstances. 
Ship condemned. 

The "George," p.. I7I. . , . 

'2. Neutral skip — Capture on suspicion of intention to break blockade or ^, 
carry contraband — Such intention, if it existed, either abandoned or 
not put into execution — Failure to' produce papers-^Preserice dn board 
of supercargo with full control — Release ordered but capture justified. 

.': . A. neutral ship was captured in a neutral port with a cargo, of iive stock 
and provisions, after having made a voyage which took her clps^ to the 
blockaded coast, and having endeavoured to obtain clearance for a voyage to 
another neutral port by which she would again pass by the same coast. 
She had a supercargo on board with full authority, and her master, when 
asked foT his papers, stated that they were at the British Consulate, whereas , 
in fact they were on board. 

Held that the capture was justifiable, biit that, as any intention to 
break blockade or carry contraband on the first voyage had been abandoned, 
and any such intention On the second projected voyage had not been put 
into execution, the ship and cargo should be released.' 

. The;",Sishan,"p. 174. 

3. Blockade — Intention to break blockade — Capture in neighbourhood of 

blockaded' area — Cargo of munitions, provisions and military stores — 
Condefnnation of ship and qargo. 

A neutral ship was captured about 40 miles from Port Arthur, pro- 
ceeding towards that port and out of the course to the poi"t for which she 
was ostensibly bound, with a Russian officer on board, and with a quantity 
of paper currency, ammunition, and other stores suitable for military 
purposes. 

Held Uiat ship and cargo wei-e liable to condemnation. 

The " Fuping," p. 177. 

4. Blockade — Paper currency on board ship condemned for breach of blockade 

— Property of enemy Government in charge of a military officer — Privity 
to intended breach of blockade — Condemnation. 

Sixty-seven thousand paper roubles were found in the baggage of a 
Russian officer, Captain Eckardt, on board a neutral ship captiired in an 
obvious attempt to break the blockade of Port Arthui-. There was some 
evidence that they formed part of a large amount of Rvissian Government 
funds. 

Held that the roubles were liable to condemnation, because (1) Eckardt 
was privy to the attempt to break the blockade, and (2) they were Govern- 
ment property on board a vessel guilty of breach of blockade. 

The " Fuping," Eckardt's claim, p. 180. 



Vll 

h.'Bhckade^-Niutral ship found in the iieighbourhbdd of the hlockaAe coast— 

Gomrse directed towards the hloclcaded port and not for the port shown 

vri her papers — Evidence of intention to hredk the htpchade—^Bival 

■ doctrines as to luKat amounts to breach of blockade — Cargo belonging to 

the charterers of the ship — Condemnation. 

A neutral ship was cap'tiu-ed about 70 miles from Port Arthur ^ heading 
ior that port on a course which was 2^ points off the course for the port 
shown dn her papers. There were other circumstances 'giving grounds for 
suspicion that she intended to attempt to rxm the blockade. 

Held that the ship was liable to condenmatipn, having been found in the 
neighbourhood of the blockaded coast witt. the intention of attempting to 
reach it, and the cargo, as belonging to the charterers of the ship, who were 
aware of the intention to run the blockade. 

The " Veteran," p. 190. 

6. Blockade^ — Ship entering blockaded port-^Capture after leaving — Entry 
alleged to have been owing to capture by enemy wa/rship-^Effective 
blockade — Blockade raised after the captwre but before the hearing of 

i the case — Condem,nation. 

A neutral ship was captured after having entered and left a blockaded 
jort. She alleged that she had been bound for a neutral port, but was 
■captured by the enemy and taken into the blockaded port, but this account 
was not accepted by the Court. The effectiveness of the blockade was also 
disputed. 

Held that the fact that ships occasionally eluded the vigilance of the 
blockading fleet did not prove that the blockade was not effective, and that 
the ship was liable to condemnation. , 

'-■■■ If a ship is captured before a blockade is raised^ it is no reason for" her 
Telease that the blockade is raised before the hearing before the Prize Court. 

The " King Arthur," p. 217. 



:. oonteabanh. 

I. — Cases as to Ships. 

1. Neutral ship — Cargo of coal — Destination fov naval base—rContraband — • 

Ignorance of outbreak of hostilities — Release — papture justified. ,, , 

A neutral vessel left a Japanese port with a cargo of coal for Port 
Arthur on the day that hostilities broke out, but without being aware of the 
outbreak. On arriving off Port Arthiu- she was met by a Japanese warship 
and ordered to Nagasaki, where her capture was completed. 
1 1, 1 Held that the cargo must -be considered- as contraband, and that the 
captt^re of, the vessel was therefore justifiable, but inasmuch as she was. not 
4ware of the outbreak of hostilities when she left the Ja,panese port neither 
the ship nor her cargo was liable to condemnation. Ship and cargo 
released. 

The " Hei-mes," p. 50. 

2. Neutral ship — Cargo of coal — Capture in a port in the captors' territory — 

No evidence of hostile destination — Release — Refusal to produce papers — 
Destination not shown cm papers — Capture justified. 

A neutral ship was captured in Nagasaki harbour with a cargo of coal 
irom Shanghai. The master refused to produce his papers to the Prize 
officer, and when produced in court, they showed the destination as " Singa- 
pore or order." The master stated that he had received orders to go to 
Nagasaki. 

Held that the capture was justified, but the ship and cargo should be 
I'eleased.'' 

The:"Aggi," p. 131. 



Vlll 

3. Neutral ship — Cargo partly contraband and partly innocent — Consign- 

ment to port occupied by the enemy — Contraband cargo not belonging to 

the owners of the ship — Absence of fraud on the part of the owners— 

Release of the ship and innocent cargo not belonging to the owners of 

contraband — Capture justified. 

A. neutral ship was captured on a voyage to a port occupied by the 

Russian forces. She carried a cargo, of which the greater part was held to> 

be contraband and part innocent. The contraband cargo did not belong. 

to the owners of the ship, and no fraud was employed in connection with. 

its carriage. 

Held that the circumstances of the case justified the capture, but that 
the ship and such of the innocent cargo as did not belong to the owners ot 
contraband should be released. 
The " Hsiping," p. 133. 

4. Neutral ship — Cargo partly contraband, and partly innocent — Consign- 

ment to port occupied by the enemy — Contraband cargo not belonging 

to the owners of thi ship — Absence of fraud on the part of the owners — • 

Release of the ship and innocent cargo not belonging to the owners of 

contraband — Capture justified. 

A neutral ship was captm-ed on a voyage to a port occupied by th&. 

Russian forces. She can-ied a cargo, the greater pai-t of which was heli 

to be contraband' and part innocent. The contraband cargo did not belong: 

to the owners of the ship, and no fraud was employed in connection with, 

its carriage. 

Held that the circumstances of the case justified the capture, but that 
the ship and such of the innocent cargo as did not belong to the o^vners of. 
contraband should be released. 
The " Pehping," p. 162. 

5. Neutral ship — Capture — Carriage of contraband with false papers on cc 

previous vogage — Release — Capture justified. 

A. neutral ship having succeeded on a fonner occasion in carrying a, 
cargo of coal to Vladivostock, was subsequently captured carrying a cargo- 
of coal to Singapore. 

Held that the circumstances justified the capture, but that as she was. 
not carrying contraband at the time of capture she should be released. 

The " Eastiy," p. 299. 

6. Neutral ship — Capture on suspicion of carrying contraband — Cargo of 

railway material — Failure to stop on summons— Cargo described in, 
clearance certificate as "ballast" — jBill of lading made out to port 
already passed-— Release — Capture justified. 

A neutral ship was captured whilst on a voyage to Muroran, with a 
cargo of railway mateiial, on the suspicion that her destination was. 
Vladivostock. The bill of lading for the cargo was made out to Shanghai, 
and the clearance certificate obtained from the British Consulate at that 
port stated that the ship was in ballast. On being svtmmoned by a Japanese: 
warship, she failed to stop until fired upon. 

Held that, although the circumstances justified the captiu'e, on proof o£ 
the true facts she should be released. 

The " Saxon Prince," p. 312. 

7. Neutral ship — Capture on suspicion of carrying contraband — Contract toi 

carry fodder to naval base — Alteration of destination during the voyage. 
— Release — Capture justified. 

A neutral ship agreed to carry a cargo of grain to Vladivostock, and 
shipped the grain and started on her voyage accordingly. At an inter- 
mediate port the owners directed the master to jn-oceed to another port at 



IX 

which they had agreed to dispose of the cargo. While making for this port 
she was captured on suspicion of carrying contraband. Her papers were in 
order. 

Held that the capture was justifiable as the papers afforded no con- 
clusive proof of the change of destination, but that as the ship was not in 
fact on her way to an enemy port, the grain was not contraband and both 
ship and cargo should be released. 

The " Lincluden," p. 341. 

8. Neutral ship — Conditional contraband — Welsh coal — Destination for a 

naval and military hose of the enemy — Liability of ship carrying 
contraband und^r charter — False papers^Unusual course adopted. 

A British ship was captured carrying a cargo of Welsh coal to 
^ladivostock, with papers showing a destination for a neutral port, and 
following an unusual course. She was at the time chartered by the owner 
of the cargo. 

Held that the cargo was contraband, and that, even if the owner of 
the ship was ignorant of the intention to carry contraband, he was liable for 
acts of the master, and that the ship should be condemned, either on 
the ground that the object of the voyage was the carriage, of contraband, or 
on the ground that fraud had been employed. 

The " Roseley," p. 228. 

9. Neutral ship — Conditional contraband — Welsh coal — Destination for a 

navaZ and military base of the enemy — Liability of ship where carriage 
of contraband is object of the voyage — False papers — Vessel not taking 
direct course. 

A neutral ship was despatched to Vladivostock by her owners with 
Welsh coal deliverable to order, the shipowners being the consignors. In 
the clearance and other papers a false destination was inserted, and tha 
vessel took a roundabout course. 

Ship and cargo condemned. 

The " Aphrodite," p. 240, and see pp. 248 et seq. 

10. Neutral ship — Conditional contraband — Bice — Destination for a base of 

the enem,y forces — Owners of the ship not owners of the cargo — Evidence 
of complicity — Condemnation. 

A neutral ship was captured carrying a cargo of rice to Vladivostock, 
The owners were not owners of the cargo, which was consigned " to order." 
There was no falsification of papers, but the charter-party was not on board,, 
and, when produced, showed that the owners had the right to an ice-breaker 
free of charge. AU the ice-breakers at Vladivostock were in the service of 
the Russian Grovemment. The sum paid by the charterers was considerable,, 
and the ship was insured at a heavy premium. The course followed by the. 
ship was not the direct course to Vladivostock. 

Held that the cargo was contraband, and the complicity of the owners in 
the enterprise was a reasonable inference, and that the ship should therefore 
be condemned. 

The " Scotsman," p. 256. 

11. Neutral ship — Conditional cotitraband — Foodstuffs ■ — Beverages — 

Materials for building and fitting ships — Materials for railway con- 
struction — Destinaiion for a base of the enemy forces — Entry of false 
destination in ship's papers — Condemnation. 

A neutral ship was captured while carrying to Vladivostock a genei-al 
cargo consigned " to order," including foodstuffs, beverages, materials for 
railway construction and for building and fitting ships. The master stated 
that the consignees were the Russo-Chinese Bank. In the bills of lading 
and manifest her destination was entered as Hakodate. The charter-party- 
showed the destination as Vladivostock. 



, Held that the ship was liable to condemnation for oan-ying conditional 
contraband with false papers. .-- ...i,..- - .. 

Held also (by the Higher Prize Court) that the ship was liable to 
condemnation because the object of her voyage was the carriage of 
contraband. 

The " Bawtry," p. 265. 

12. Neutral ship — Conditional contraband — Fodder — Destination for naval 

and military base of the enemy — lAdbility of ship carrying contraband 
under charteo — False papers. 
. A neutral ship was captured carrying a cargo of fodder to Vladivostock 
with papers showing a destination to Moji ; her course was also incon'ectly 
stated in the logs. At the time of capture she was chartered by the owner 
of the cargo, Moji being the destination mentioned on the charter. 
Ship and cargo condemned. 
The " M. S. Dollar," p. 284. 

13. Neutral ship — Conditional contraband — Barley, oats, hay — Destination 

for a base of the enemy forces — Owners of the ship not owners of the , 
cargo — Falsification of papers — Condemnation. 

A neutral ship was captured carrying a cargo of barley, oats, and hay to 
Tladivostock. Although the chai-ter-party and bill& of lading which were 
on board showed that the destination was Vladivostock, no mention of that 
port was made in other papers, which gave the destination as " Moji " or 
" Moji via ports," The owners of the ship were not the owners of the 
cargo. 

Held that the ship was liable to condemnation, as the whole object of 
the voyage was the carriage of conti'aband, and deception had been used. 
, The ^'Wyefield," p. 291.: 

14. Neutral ship — Absolute contraband — Cement — Field blacksmith's tools- 

Materials for building and fitting ships- — Materials for naval ordnance 
— Conditional contraband— Provisions— Telephone wire^Ownera of 
ship not owners of the cargo— False entries in ship's i^apers — Carriage 
of contraband the sole object of the voyage — Condemnation of ship and 
cargo. 

A neutral ship was captured after passing through the Soya Straits on 
her way to Vladivostock with a cargo including (a) cement, field black- 
smith's tools, sheet iron, iron nails, asbestos sheets, white metal bearings, 
rubber, packing for machinery, solder, tin, wii-e ix)pe, linoleum, copper 
tubing, iron tubes, copper sulphate, zinc sheets, copper, copper sheets, and 
brass sheets ; and (6) telephone wire, rock salt, milk, butter, cheese, and 
wheat. The charter-party, manifest, biUs of lading, clearance certificate, 
and Mil of health and log, all showed Hongkong as the destination. It 
was admitted by the claimants that the destination was Vladivostock, and 
Hongkong only an alternative in case Vladivostock was blockaded. 

Held that the articles enumerated above in para, (a) were absolute con- 
traband, those in para, (b) conditional contraband destined for a base of the 
enemy forces, and that the remainder of the goods belonged to the owners 
of the contraband, and therefore the whole cargo was liable to condemnation. 

Held that the sole object of the voyage was the carriage of contraband, 
and that fraudulent devices had been employed, and that the ship was 
therefore liable to condemnation. 

The "Paros," p. 301. 

15. Neutral shq)— Contraband—Salt beef, steel bars, machinery fittings- 

Destination for a port used as a base by the enemy — Privity of the 
owners— Employment of fraudulent devices— False papers— Suspicious 
route — rCondemnation. 

,, A neutral ship was captured on a voyage to Vladivostock, which was. 
used as a base of supplies for the Russian forces,, with a cargo of salt berf 



XI 

steel bai-s, and machinery fittings. The owners of the ship were not the 
owners of the cargo. In some of the ship's papers a false destination was 
given, and she was captured on a route which was considered most dangerous 
at the time of year. 

Held that the cargo was contraband and that the owners of the ship 
were privy to the can-iage of the contraband and had employed fraudulent 
devices to affect it. 
1 Ship condemned. 

The " Taooma," p. 314. 



16. Neutral ship — Conditional contraband — Flour — False .papers — Con- 
signee wndisclosed — Circwitous course-r-Lights. 

A neutral vessel loaded a cargo of flour at Shanghai and obtained a 
clearapce for Hong Eong. The bills of lading and other papers gave the 
destination as KorsakofE. The cargo was alleged to be intended for the 
civil population at KorsakofE, who were on the verge of starvation. , The ship 
did not take the direct route or display the proper lights. 

Held by the Prize Court that the flour was intended for the use of the 
military forces at Korsakoff, and was, therefore, contraband ; as fraudulent 
devices were employed the ship was condemned. 

Held by the Higher Prize Court that the real destination was 
Tladivostock, and that the flour was contraband and the carriage of 
contraband was the object of the voyage. Condemnation upheld. 

The " Henry Bolckow," p. 331. 



17. Neutral ship — Cargo partly contraband — Destination to a military port of 
the enemy^— Employment of fraudulent devices — Carriage of contraband 
the object of the voyage — Temporary abandonment of voyage oioing to 
damage— Condemnation. 

A neutral ship sailed with a cargo, part of which was held to be contra- 
b^-nd, to a port which was a Russian coastal fortress and base of supplies for 
the Rtissian Army. She was chartered to one of her pare owners, and the 
consignees of the cargo were partners in the firm who were the other part 
owners. During the first part of her voyage she can'ied papers giving a 
neujtral port as her destination, but after leaving that port papers giving the 
true destination were substituted. Owing to damage to her steering-gear 
she put back, intending to go to a neutral port for repairs, but sustained 
farther damage and was compelled to put into a Japanese port, where she 
was G^ytuiBd.. 

Held that the object of her voyage was the carriage of contraband, that 
she had employed fraudulent devices to effect it, and that her original 
object had not been abandoned, 

Ship condemned. 
. The " Lydia," p. 359. 



18. Neutral ship — Conditional contraband — Semi-refined rock salt — Destina- 
tion for enemy port — Voyage with the object of carrying contraband — 
Condemnation of ship and cargo. 

A neutral ship was captured on a voyage to a Russian port on the Sea 
of Okhotsk. She carried a cargo of semi-refined American rock salt 
consigned in part to a Russian subject and in part to a Rnssian bank at the 
pprt. ' 

Held that the salt was to be iised in the preparation of salted fish for 
consumption by the enemy's forces, and was therefore a foodstuff.. 

Cargo condemned as contraband on the ground that it consisted of 
foodstuff intended for the use of the military forces of the enemy. 



xu 

Ship condemned by the Higher Prize Court (reversing the Tokosuka 
Prize Court), on the ground that the object of her voyage was the cariiage 
of contraband. 

The " Antiope," p. 389. 

n. — Cases as to Cargo. 

1. Absolute contraband — Materials for the construction of ships — Conditional 

contraband — Foodstuffs and beverages — Consignment to port occupied by 
the enemy — Non- contraband articles belonging to the owner of contraband 
— Condemnation. 

The " Hsiping " had on board a consignment of iron, screw-bolts and 
washers, and a quantity of foodstufEs and beverages, consigned to New- 
chwang. 

Held that Newchwang was a Russian base depot, and that the iron, 
screw-bolts and washers must be condemned as absolute contraband. 

Held on the facts that the foodstuffs and beverages were intended for 
the use of the enemy's forces, and must therefore be condemned as 
conditional contraband. 

Held further that innocent goods on board belonging to the same owners 
as the contraband must be condemned. 

Cargo ex " Hsiping," claim of the Union Insurance Society of Canton, 
Ltd., and others, p. 135. 

2. Absolute contraband — Lead — Zinc — Brass plates — German silver sheets — • 

Iron wheels — Iron bars — Old iron — BuLh iron — Timbei — Conditional 
contraband — Foodstuffs — Beverages — Silver coins — Consignment to port 
occupied by the enemy — Non-contraband goods — Basins — Soap — Sheet- 
ing — Thread — Cloth — Papei — Arsenic — Table-ware — Property of the 
ovmer of contraband — Different destination to that of contraband — ■ 
Condemnation — Evidence of ownership. 

The " Hsiping " had on board a quantity of lead, zinc, brass plates, 
German silver sheets, iron wheels, iron bars, old iron, bulk iron, timber, 
foodstufEs (including rice), beverages, silver coins, basins, soap, sheeting, 
thread, cloth, paper, arsenic and table-ware consigned to Newchwang, and 
also goods consigned to other Chinese ports. 

Held that Newchwang was a Russian military base depot, and that the 
lead, zinc, brass plates, German silver sheets, iron wheels, iron bars, old iron, 
bulk iron, and timber must be condemned as absolute contraband. 

Held on the facts that the foodstufEs, beverages, and silver coins were 
intended for the use of the enemy's forces, and must therefore be condemned 
as conditional contraband. 

Held that the basins, soap, sheeting, thread, cloth, paper, arsenic and 
table-wai-e, though not contraband, belonged to the same owners as the 
contraband, and m.ust therefore be condemned. 

It is immaterial that the destination of some of the non-contraband goods 
belonging to the owners of contraband'cargo is not the same as that of the 
contraband and is a port in neutral ten-itory. 

Question of the ownership of goods decided on the evidence of the bills 
of lading. 

Cargo ex " Hsiping," claim of Teng Ming Cheng and others, p. 140. 

3. Conditional contraband — Silver coins — Consignment to port occupied by 
the enemy — Condemnation. 

The "Hsiping" had on board 17 boxes of small silver coins consigned 
to Newchwang. 

Held on the facts that they were intended for the use of the enemy 
forces, and must therefore be condemned as conditional contraband. 

Cargo ex " Hsiping," claim of Yu Sheng Chang, p. 155. 



Xlll 

■4. Absolute contraband — Iron and iron-ware — Conditional contraband — 

Foodstuffs — Beverages — Silver coins — Destination for port m neutral 

territory, but occupied by the enemy — Thread— Sheeting — Cloth — 

Playing cards — Cigarettes — Property of the owners of contraband — 

Different destination to that of the contraband — Condemnatimi — Evidence 

of ownership. 

The "Pehping" had onboard a quantitity of iron, iron-ware, foodstuffs. 

beyerages, thread, sheeting, cloth, cigarettes and playing cards, consigned 

to Newchang, and also goods consigned to other Chinese ports. 

Held that Newchang was a Russian base dep6t, and that the iron and 
iron-ware shotdd be condemned as absolute contraband, the foodstuffs and 
beverages as conditional conti-aband, and the remaining goods as the property 
of ownei-s of contraband. 

Cargo ex " Pehping," claim of Teng Ming Cheng and others, p. 164. 

5. Conditional contraband — Welsh coal — Destination for naval and military 

base of the enemy — Evidence — Doctrine of Pre-emption. 

A cargo of Welsh coal was captured on a British ship bound for 
Tladivostock. 

Held that the cargo was liable to condemnation as contraband. 

Pre-emption is not a recognised rule of International Law. 

A prize court is not bound by strict rules of evidence, but may draw 
inferences from circumstances genei-ally known. 

Cargo ex " Boseley," p. 236. 

6. Conditional contraband — Cargo of coal — Destination for naval base of the 

enemy — Charter-party not on board at the time of capture — Proof of 
interest of the claimant in the cargo. 

A neutral ship was captured carrying a cargo of coal to Vladivostock. 
The cargo was claimed by a person alleging himself to be the owner of the 
cargo and charterer of the ship. He pi-oduced a charter-party which was 
not on board at the time of captiu-e, and which was dated subsequently to 
the order given to the master to load the cargo. 

Held that the claimant had not proved his interest in the cargo, and that 
the latter was contraband. 

Cargo ex " Wilhelmina," p. 248. 

7. Contraband — Foodstuffs — Beverages — Materials for railway construction 

— Shipbuilding materials — Destination to a base of the enemy forces — 
Non-contraband goods belonging to the owner of the contraband — 
Condem,nation. 

Shipbuilding materials, materials for railway construction, foodstuffs 
and beverages, forming part of the cargo of a neuti-al ship captui-ed while on a 
voyage to Vladivostock, were consigned " to order " and were stated by the 
master to be for the Busso-Chinese Bank at that port. 

Held to be contraband and condemned. Other goods belonging to the 
same claimant were condemned as belonging to the owner of the contraband. 

Cargo ex " Bawtry," Kobritz' claim, p. 270. 
„ „ Shotton's claim, p. 274. 

8. Contraband — Salt beef, steel bars, machinery fittings — Destination for a 

port used as a base by the enemy — Condemnation. 

A neutral ship was captured on a voyage to Vladivostock, which was 
used by the Bussians as a military and naval base and supply depot. Her 
cargo consisted of salt beef, steel bars, and machinery fittings. 

Held that the beef must be condemned as intended for the military use 
of the enemy, and the steel bai-s and machinery fittings as materials for 
shipbuilding consigned to enemy temtory. 

Cargo ex "Tacoma," p. 320. 



XIV 

, 9. ; Conditional cotdraband — Flour — False papers — Consignee wndisdosed — 
Qirowitoiis course — I/ights, '"■■ 

A neutral viessel loaded a cargo of flour at Shanghai. The bills of 
lading gave the destination as Korsakoff, but in some of the ship's papers 
Hong Kong was given. The floxu- was alleged to be for the civil population 
of Korsakoff, who were on the verge of starvation. The ship took a circuitous 
course and did not display the proper lights. 

Held that the flour was intended for the use of the military at Korsakoff, 
and was therefore condemned as contraband. 

Cargo ex " Henry Bolckow," p. 339. 

10. Oohtrahand — Machine oil, cylinder oil, grease, axle grease, acetic acid, 

oil-cans, washers, helting-iron, leather belting, emery powder, hemp ropes, 

table salt, salt — Destination to a military port of the enemy — Innocent 

articles belonging to the owners of the contraband — Condemnation. 

A neutral ship was captured on a voyage to a port which was a Russian 

coastal fortress and base of supplies for the Russian ai-my. Her cargo 

consisted in part of machine oil, cylinder oil, grease, axle grease, acetic 

acid, oil-cans, washers, belting-iron, leather belting, emery powder, henlp 

ropes, table salt, and salt, and in part of articles not capable of inilitary use 

belonging to the same owners as the rest of the cargo. 

Held that the table salt and salt were liable to condemnation as provi- 
sions, the other articles mentioned as materials for the building or fitting 
of ships, and the remainder of the cargo as the property of the owners 
of the contraband. 

Cargo ex " Lydia," p. 367. 

11. Non-contraband goods — Neutral ship carrying contraband with false 

papers — Ownership different from that of the contraband goods— Release. 

A neutral ship was captured carrying to Vladivostock, with false papers, 
a cargo of which a considerable past was conditional contraband. 

Held that non-contraband goods belonging to a person who was not the 
owner of the contraband should be released. 

Cargo ex " Bawtry," Bediger's claim, p. 281. 



DAMAGES. 
Sec Peacticb I. 

DETENTION. 

Ifetentioti — Release — Grounds justifying detention. 
See Blockade 2. Contraband 1, 2, 3, 4, 5, 6, 7. 

ENEMY LICENCE. 

Neutral ship — Acquisition of enemy diaractev — Ship sailing under licence 
from the enemy — Engagement in trade closed to foreign vessels in time 
of peace— Ride of the War of n66—Condemnatton— Right of prize 
courts to adjudicate after the conclusion of peace rni ships captured 
during hostilities. 

A neutral ship was chartered during the war by a Russian company, who 
acted m so doing with the permission of the Russian Government, for the 
purpose of carrying on a trade which was closed in time of peace to foreign 
vessels. ■ ^, 

Held that these facts were sufficient to constitute her a ship sailing with 
a special licence from the enemy. Ship and cargo condemned. 



XV 

Held by the Yokosuka, Prize Coiu4i tliat, in- the absence of any special 
treaty br ordinance, a prize court is entitled, after the' conclusion of peace, 
to adjudicate on ships a'nd cargoes captured during the war. 

The " Montara," p. 403. 

ENEMY PROPERTY. 

1- . ' 

1. Enemy property — Firearms carried fm- the protection of the ship — Money 

for payment of the crew — Goods in transit from one enemy port to 
another — Condemrtdtlon. 

Eire arms for the protection of the ship, money for the payment of the 
crew and goods in transit from one enemy port to another are liable to 
condemnation when captured on board an enemy ship. 

The " Ekatermoslav," p. 1. 

2. Property on hoard an enemy ship — Firm of neutral nationality having 

branches in enemy territory — Consignment from one such branph to 
another — Domicile or place of business the test of enemy character — 
Condemnation. 

A firm whose headquarters were in neutral teiTitory had branches in 
enemy territory. Goods were consigned by one branch in enemy territory 
to another branch in enemy ten-itbry and were captured on board an enemy 
ship. 

Held that the goods were enpmy goods. In the case of a merchant the 
test of enemy character is the locality of his place of business. 

Cargo ex " Ekaterinoslav," Kimst and Albers' claim, p. 10. 

3. Enemy property — Cargo consigned to neutral subjects resident in Corea — 

Cargo Consigned to subjects of the captor State — Release. 

On the 5th Eebraaiy 1904, the Russian steamship "Mukden" left 
Nagaski f or Vladivostock tjza Eusan. She was captured on. the 6th February 
in Eusari -harbour, having on board inter alia certain cargo consigned by 
neutral or Japanese subjects to neutral or Japanese subjects in Corea. 

Held that such cargo should be released. 

Cargo ex " Mukden," p, 18. 

4. Enemy property on enemy ship — Claim by consignor — Ownership of property 

in transitu — Shipment before outbreak of hostilities — Condemnation. 

Parcels of vaccine lymph and glass instruments shipped by a neutral 
subject to a consignee in enemy territory before the outbreak of war were 
captured on board the Russian steamship "Mukden," and a claim made by 
the consi^or, a German subject. 

Held that in the absence of proof to the contrary the consignee in 
the enemy territory must be presumed to be the owner and the goods con- 
demned. 

Cargo ex " Mukden," Boeddinghaus' claim, p. 19. 

5. Property on board an enem/y ship — General order of a civil court to attach 

property belonging to the owners — Petition to attach the captured property 

Japanese Prize Cowrt Regulations — No competence to entertain the 

petition — Claim for release of the property presented out of time. 
A neutral subject, who had obtained from a civil court an order to 
attach the movable property belonging to a defendant in a pending- action, 
petitioned to attach property of the defendant which had been captured on 
board an enemy ship. Subsequently, after the expira^on of the time 
allowed for presenting claims, he added a claim for the release of the 
property. 



XVI 

Held that as the Prize Court under the Japanese Regulations was not 
competent to entertain a petition for provisional attachment, and as the 
claim for the release of the property had been presented out of time, both 
applications must be refused. 

Cargo ex " Mukden," Tuan-tsu-Chuang's petition, p. 21. 

6. Property on board an enemy ship — Consignment to Commercial Agent of a 

neutral Power resident in enemy territory — Official documents — Release. 

A parcel of official documents addressed to the French Commercial Agent 
at Vladivostook was captured on board the Russian steamship " Mukden." 

Held that the documents should be released, being documents sent by a 
neutral Power to one of its officials in the enemy territory. 

Cargo ex "Mukden," Goudereau's claim (No. 1), p. 24. 

7. Enemy property on board an enemy ship — Consignment by a neutral to a 

subject c^ neutral nationality resident in enemy territory — Contract in 
' the ordinary course of business made before the outbreak of war — Owner- 
ship of property in transitu — Condemnation. 

One hundred cases of oranges were shipped by a Chinese subject resident 
in Japan to a Chinese subject resident in Yladivostock in the ordinary course 
of business before the outbreak of war, and were captured on board an 
enemy ship. 

Held that the goods were enemy property. 

Cargo ex "Mukden," ¥ak Yuk Chang's claim, p. 25. 

8. Enemy property on board an enemy ship — Commencement of a state of war 

— Capture in a part of a country belonging to neither belligerent, but 
occupied during the war by the troops of both — Status of Corea in respect 
of Japanese Ordinance as to days of grace — Liability of private property 
to capture — Authority of the rules agreed upon by the Institute of Inter- 
national Law — Ownership of property in transitu — Competence of 
Japanese Prize Courts to entertain claims for damages. 

Goods captured on board the " Mukden " in Pusan harbour consigned 
to a resident in Vladivostock were claimed by the German firm of Eunst 
and Albers, the consignors. 

Held (1) that a state of war had commenced before the date of capture ; 
(2) that Corea was not de facto neutral, but that Corean ports could not be 
regarded as ports of the Japanese Empire within the meaning of the 
Japanese Ordinance as to days of grace ; (3) that private property at sea is 
liable to capture, the rules of the Institute of International Law being only 
theoretical ; (4) that in the absence of proof to the contrary the ownership 
of property consigned to a resident in enemy territory is deemed to be 
in the consignee ; (5) that Japanese Prize Courts are not competent to 
entertain claims for damages. 

Cargo ex " Mukden," Kunst and Albers' claim, p. 31. 

9. Banking Corporation with head office and branches in Russian territory- 

Branch registered in Japan according to Japanese law — Consignment of 
specie by Japanese branch to Vladivostock branch — Captrm-e on enemy 
ship — Condemnation. 

Specie was consigned by the Nagasaki branch of the Russo-Chinese 
Bank to the Vladivostock branch of the same bank, the head office of 
which was in Russia. The bill of lading was made out for delivery at 
"Vladivostock. 

Held that the [specie was the property of the consignee branch, and 
liable to condemnation. 

Cargo ex " Mukden," claim of the Russo-Chinese Bank, p. 36. 



xvu 

10. Enemy property on hoard an enemy ship — Insurance by neutral under- 

writers — Consignor subject of a neutral State, but domiciled in enemy 
territory — Goods consigned to an official of a neutral State — Goods 
consigned to a religious body — Goods consigned to a temporary resident 
in enemy territory. 

An enemy ship was oaptui-ed making for an enemy port. 

Some of the goods on board consigned to the enemy port were insured 
by neutral undei-wiiters. 

Held that, the goods being liable to condemnation as enemy goods, the 
fact of their insurance was immaterial. 

Some of the goods were consigned by a consignor, the subject of a 
neutral State, but domiciled in enemy territory. 

Held that, even if the goods were the property of the consignor, he was 
domiciled in the enemy country, and that the goods were enemy goods. 

Goods consigned to a neutral trade commissioner, to a religious body, 
and to a person only temporarily resident in enemy territory, released. 

The " Manchuria " (No. 1), p. 62. 

11. Enem,y goods — Goods shipped by neutral consignor on the order of an 

enemy consignee — Evidence to prove oumership vested in consignor. 

Goods were ordered by a firm in the enemy country from a firm of 
shippers in neutral territory, and were shipped on board an enemy vessel 
which was subsequently captured. 

Held that the goods were enemy goods, there being no evidence to prove 
that the property had not passed to the consignee from the moment of 
dispatch in accordance with the usual rule. 

Cargo ex " Manchiu-ia " (No. 1), China Sugar Refining Company's claim, 
p. 59. 

12. Enemy goods — Branch of a neutral firm established in enemy territory — 

Domicile — Goods shipped before outbreak of war — Claim by consignee — 
Claims for freight. 

A Swedish firm shipped goods before the outbreak of war to the Port 
Arthur branch of a German firm on board an enemy vessel which was 
captured after hostilities had begun. The goods were claimed by the 
consignees as the property of neutrals. 

Held that the goods were enemy goods. Enemy goods on boai-d an 
enemy ship are liable to condemnation, whether shipped before or after the 
outbreak of war. 

Cargo ex " Manchuria " {No. 1), Kunst and Albers' claim, p. 61. 

13. Enemy goods — Goods shipped at neutral port to consignee in enemy 

country — Claim, by neutral consignor — Consignee alleged to he only 

temporarily resident in enemy territory — Evidence — Goods shipped 

before outbreak of war. 

Goods were shipped at a neutral port before the outbreak of war to a 

consignee in enemy territoiy on board an enemy ship, which was captured 

after the outbreak of war. 

Held that, as there was no evidence that the owner was a person only 
temporarily resident in enemy territory, the goods were enemy goods, and 
that it was immaterial whether they were shipped before or after the 
outbreak of war. 

Cargo ex " Manchuria " (No. 1), An Hvio Tai's claim, p. 65. 

14. Enemy goods — Claim by neutral acceptor of bill of exchange. 

Goods were shipped by a neutral firm to an enemy destination to the 
order of the consignor. The goods were shipped on an enemy vessel which 
e 12750 b 



XVIII 

was subsequently oaptui-ed. Bills" of exchange were accepted by a banker 
carrying on business in a neutral country, who claimed the release of the 
goods as neutral property. 

Held that the goods were enemy goods. 

Cargo ex " Manchuria " (No. 1), Frederick Huth & Co.'b claim, p. 69. 

IS. Enemy property captured on boa/rd an enemy ship — Condemnation. 

There is no rule of International Law extending immunity to private 
property at sea. 

The " Alexander," p. 86. 

See also other cases of enemy ships and property below. 

ENEMY SHIPS. 

] . Enemy ship — Liability to capture of private property — Commencement of 

a state of wai — Territorial waters of a country belonging to neither 

belligerent but occupied during the war by the troops of both-^Bays of 

grace — Japanese Ordinance No. 20 — Authority of rules agreed on by 

the Institute of International Law. 

On the 5th February 1904 Japan despatched a note to Russia announcing 

the termination of diplomatic negotiations, and the next day, at 9.0 a.m., the 

Japanese fleet on its way to attack the Russian fleet captured the 

" Ekaterinoslav," a steamer belonging to the Russian Volunteer Fleet 

Company and engaged at the time of capture on an ordinary mercantile 

voyage. The notification of the rupture of diplomatic negotiations was 

communicated to Count Lamsdorf in St. Petesburg at 4.0 p.m. on the 6th of 

February. Actual fighting commenced on the 8th, and a formal declaration 

of war was published on the 10th. The plape of capture was about 3 miles 

from the coast of Corea, a state nominally independent, but occupied already 

by Russian troops and subsequently also by the Japanese without objection 

by the Oorean Government ; the earlier engagements of the war took place 

on Corean territory. 

Held (1) that the ship and the cargo claimed by the owners of the 
ship were liable to condemnation as enemy property ; (2) that a state of war 
commences as soon as the intention of making war is earned out by action ; 
(3) that, whether the place of capture was or was not within Corean 
territorial waters, Corea was not de facto neutral ; (4) that the fact that the 
ship was captured while still in ignorance of the outbreak of hostilities 
afforded no ground for claiming exemption either upon general principles of 
International Law or under the special provisions of the Japanese Oi'dinance. 
The "Ekaterinoslav," p. 1. 

2. Enemy ship — Commencement of a state of war — Capture in a port of a 
country belonging to neither belligerent but occupied during the war by 
the troops of both — Days of grace — Japanese Imperial Ordinance No. 20 
— Application to property of the enemy State — Status of the Chinese 
Eastern Railway Company. 
Enemy property — Consignee carrying on business in enemy territory — 
Condemnation — Consignee a commercial agent of a neutral State— 



The " Mukden," a steamship belonging to the Chinese Eastern Railway 
Company, was captm-ed at 2.45 p.m. on February 6th, 1904, in the port 
of Fusan in Corea. The ships of the Company were included in a list, 
prepared by the Russian Department of Communications, of vessels owned 
by the Russian Government, and a claim for damage done to the property 
of the Company had on a previous occasion been put forward as a claim for 
damage done to property of the State. 

Held (1) that the ship was liable to condemnation as an enemy ship ; 
(2) that the Japanese Ordinance as to days of gi-ace did not apply, as the 
" Mukden " was not bound for a Japanese port, and also because the Chinese 



X-IX 

Eastern Railway Opmpany was not a private corpoi-ation but a State insti- 
tution; (3) that Corea was not de facto neutral, and therefoi-e the capture in 
Fusan Harbour was valid ; and (4) that a state of war had commenced before 
the time of the capture. 

The "Mukden" had on board inter alia gooAs consigned to a French 
company established in Vladivostock, and also goods consigned to the French 
Commercial Agent at Vladivostock. 

Held (1) that as the French company was established in enemy territory, 
goods consigned to it were enemy property ; and (2) that the goods consigned 
to the French Commercial Agent should be released, as his residence in 
enemy ten-itory was necessitated by the duties of his oifice. 

The " Mukden," p. 12. 

3. Enemy ship — Japanese Ordinance as to days of grace — Applicabiliiy to 

ships captured before puhlication of the Ordinance — Applicability to 
ships not carrying cargo — Limits of territorial waters — Proof of owner- 
ship of captured vessel — Persons entitled to present claims. 

A Russian merchant vessel was captured on the 7th February 1904, on a 
voyage from Dalny to Karatsu, at a point 6 miles from the coast of Corea. 
She had no cargo on board at the time. 

Held by the Sasebo Prize Court (1) that the ship was liable to condemna- 
tion as an enemy ship ; (2) that the Japanese Ordinance of 9th Febnaary 
1904 did not apply to ships captured before that date, or to ships not 
carrying cargo ; (3) that the limit of territorial waters is 3 nautical miles 
from the coast. 

Held, on appeal, by the Higher Prize Court, that the claimants had not 
proved that they were owners of the ship. 

In the absence of clear proof to the contrary, the ownership of a captured 
vessel must be concluded from the ship's papers. 

The " Rossia," p. 39. 

4. Enemy ship — Neutral subject having a lien for disbursements — Claim for 

release, declaration of preferential right, or compensation— Absolute right 
of captor — Jurisdiction of Japanese Prize Court. 
A ship which is lawful prize is not entitled to release on the ground 
that neutral persons have a claim against her. 

The rights of a captor over a prize condemned as enemy property are 
absolute and not subject to prior rights of third parties. 

A claim by such third parties for compensation by the Treasury is not 
within the jurisdiction of a prize court. 

The " Rossia," W. H. GiU & Oo.'s claim, p. 43. 

5. Enemy ship— Japanese Ordinance as to days of grace — Applicability to 

ships captured before promulgation of the Ordinance — Applicability to 
property [of the enemy Government — Status' of the Chinese Eastern 
Railway Compawy— Liability to capture of ship carrying mails. 

The ■■ Argun," a steamship belonging to the Chinese Eastern Railway 
Company, was captm-ed on Februai-y 7th, 1904, whilst on a voyage from Dalny 
to Nagasaki carrying cargo and mails. . , , , •■ 

Held by the Sasebo Prize Court (1) that the ship was hableto condemna- 
tion as an enemy ship ; (2) that the Japanese Ordinance No. 20 of the 9th 
February 1904 did not apply because the ship was captured before that 
date, and because the Chinese Eastern Railway Company was not a private 
coi-poration but a State institution; (3) that the fact that the ship was 
canTing maUs afforded no ground for her release. 

On appeal to the Higher Prize Court, appeal dismissed, but no opinion 
expi-essed as to whether Ordinance No. 20 was applicable to ships captured 
before its promulgation. 

The " Argun," p. 46. 



6. Enemy ship— Company registered in enemy territory— Majority of share- 

holders neutral— Imperial Ordinance No. 20. 

A vessel flying the enemy flag and belonging to a company registered in 
an enemy country was captured, while on a voyage from one enemy port to 
another, before the declaration of war, but after the outbreak of hostilities. 
The majority of the shareholders in the company were neutrals. 

Held that the ship was an enemy ship and liable to condemnation, and 
that Imperial Ordinance No. 20 did not apply to an enemy ship captured at 
the outbreak of war while on a voyage from one enemy port to another 
enemy port. 

The " Manchuria " (No. 1), p. 52. 

7. Ilnemy ship—Gaptwre before Declaration of Wa/r— Beep-sea fishing vessel 

— Japanese Ordinance No. 20 protecting Russian merchant vessels on a 

voyage to Japan^— Limit of territorial waters — Neutrality of Corea — 

Authority of the regulations issued by the Institute of International 

Law. 

An enemy vessel belonging to a deep-sea fishing company was captured 

on a voyage from Chosendo (Oorea) to Shanghai after the outbreak of 

hostilities, but before the Declaration of War. 

Held by the Sasebo Prize Coui-t (1) that the ship should be condemned 
as an enemy vessel captui-ed after the outbreak of hostilities ; (2) that she 
was not entitled to the privileges conferred on merchant ships by Imperial 
Ordnance No. 20 of 1904 ; (3) that the restrictions on the right of capture 
at sea contained in the rules issued by the Institute of International Law 
are not part of existing International Law ; (4) that the limits of territorial 
waters do not extend beyond 3 miles ; (6) that during the Russo-Japanese 
war Corea could not be considered as a neutral covmtiy in the ordinary 
sense ; (6) that the right of capture at sea after the outbreak of hostilities 
is not affected by the fact that no Declaration of War has been issued. 
Appeal to the Higher Prize Court dismissed. 
The " Michael," p. 80. 

8. Enem.y ship — Capture in port at the outbreak of war — Beep-sea fishing 

vessel — Ordinance granting days of grace to enemy merchant vessels — 
Authority of the regulations as to capture at sea issued by the Institute 
of International Law — Gondcmnatio^i. 

An enemy vessel belonging to a deep-sea fishing company and employed 
to carry supplies to the fishing vessels and to bring in their catch was 
captured in a Japanese port after the outbreak of hostilities but before the 
Declaration of War. 

Held that the ship should be condemned as an enemy vessel captured 
after the outbreak of hostilities ; that she was not a merchant ship within 
the meaning of Imperial Ordinance No. 20 granting days of grace to 
Russian merchant vessels in Japanese ports on the outbreak of war. 

There is no rule of International Law extending immunity to private 
property in naval war. 

Appeal to the Higher Prize Court dismissed. 

The " Alexander," p. 86. 

9. Eiiemy ship — Deep-sea fishing vessel — Imperial Ordinance granting days 

of grace to Russian merchantmen. 

A Russian deep-sea fishing vessel was captured in a Japanese port 
before the expiry of the days of grace. 

Held by the Sasebo Prize Court that she was not entitled to the benefit 
of the days of grace conf eiTed on enemy merchantmen by Imperial Ordinance 
No. 20 of 1904. 

The " Lesnik," . 92. 



XXI 

10. Enemy ship — Captwre in Jwpanese port before expiry of days of graci^'- 

Employment hy enemy authorities — Fishing vessel — Imperial Ordinance 
granting days of grace to enemy merchantmen. 

A Russian steamer was in a Japanese port when war broke out, and 
was captured before the' expiry of -the days of grace. She had been on 
occasions employed by the Russian authorities in the suppression of illicit 
fishing, and was the property of a company engaged in hunting and 
fishing. 

Held by the Tokosuka Prize Court and the Higher Prize Court that 
the fact of her employment by the Russian authorities was sufficient to 
disentitle her to the privileges as to days of grace conferred on enemy 
merchantmen by Imperial Ordinance. 

Ship condemned. 

Held by the Tokosuka Prize Court that she was a fishing vessel, and 
therefore not entitled to the piivileges conferred on merchantmen. 

The " Kotik," p. 95. 

11. Enemy ship — Vessel under repair and unfit to put to sea — Capture effected 

in harbour — Days of grace. 

A Russian vessel was undergoing repair in a Japanese dock at the time 
of the outbreak of war, and was unfit to put to sea when the days of grace 
expired. She was then captured. 

Held that she was liable to condemnation, as the Imperial Ordinance 
granting days of grace made no distinction between vessels capable of 
putting to sea and those which were not. 

The " Manchuria " (So. 2), p. 100. 

12. Enemy ship — Owner domiciled in Japan until shortly before the war — 

Withdrawal to enemy territory — Sarbour launch — Capture in Japanese 
port after expiry of days of grace — Bight of belligerent to captwre 
innocent enemy vessels. 

A small steamer, used as a launch in a Japanese harbour, failed to 
leave within the period of grace allowed, and was captui-ed on its expiry. 

She was owned by a merchant who had withdrawn from Japan to 
Russian territory before the outbreak of war. 

Held that the vessel should be condemned as an enemy ship. 

Liability to capture is not confined to ocean-going vessels. 

An enemy merchantman may be captured, although she has no contra- 
band on board and has not been guilty of any hostile act. 

The " Juliette," p. 103. 

13. Enemy ship — Merchant vessel — Failure to leave Japanese port before 

expiry of days of grace — Bight of belligerent to capture enemy 
merchantman. 

A Russian merchantman was in a Japanese port when war broke out. 
She failed to leave within the period allowed by the Japanese Ordinance 
prescribing days of grace for Russian merchantmen, and on its expiry was 
captured in the harbour. 

Ship condemned. 

The " Nadeshda," p. 105. 

14. Enemy ship — Imperial Ordinance granting days of grace to enemy 

merchantman — Capture in Japanese port after expiry of days of grace 

— Tem,pm-ary ivithd/rawal of permission to leave — Bight to capture 

enemy private property at sea — Law to be applied by Prize Courts. 

A Russian ship was in a Japanese port when war broke out on February 

6th, 1904. In accordance with the provisions of Imperial Ordinance No. 20 

of 1904, she was given notice to leave not later than February 16th. On 



XXll 

February 12tli slie was forbidden to leave till further ordei-s, but on 
February 13th this order was cancelled. She failed to leai/e within the 
prescribed period, and was captured on February 17th, 

Held that the temporary withdrawal of the permission to leave did not 
render the capture unla,wful, and that the ship should be condemned as an 
enemy ship. 

The right to capture enemy private property at sea is recognised by 
existing International Law. 

It is the duty of a Prize Court, in deciding the legality of a capture at 
sea, to follow the rules and usages of International Law, and the laws of its 
own country. 

The " Bobrik," p, 107. 

15, JEnem/y ship — Carriage on board a neutral ship prior to the owfbreah of 
war — Capture on land belonging to the captor State after the outbreak 
of war — Bielevamce of the Land War Convention of 1899 — Condemna- 
tion. 

Prior to the outbreak of war a Russian ship in need of repairs was 
brought to a Japanese port on board another ship. She was then hauled 
on shore near a dockyard for repairs, and was found in that condition after 
the outbreak of war. 

Held that she must be still regarded as an enemy ship and not as cargo 
landed from a neutral ship, that the Land War Convention had no 
application to her case and that she was liable to condemnation. 

The " Thalia," p. 116. 

FISHING VESSELS. 

Deep-sea fishing vessels — Liability to condemnation. 

The " Michael," p. 80. 
The " Alexander," p. 86. 
The " Lesnik," p. 92. 
The " Kotik," p. 95. 

HOSPITAL SHIP. 

Enemy ship — Hospital ship equipped by officially recognised relief society 
ayid -commissioned by enemy Government — Use for military purposes— 
Condemnation. 

A Russian ship was chartered and equipped by the Russian Red Cross 
Society for use as a hospital ship. She was officially commissioned by the 
Russian Government and her name was notified to the Japanese Government. 
In the course of her employment as a hospital ship she performed certain 
services to the Russian Fleet which were held to amount to use for military 
purposes. 

Ship and money on board her condemned. 

The " Orel," p. 354. 

PRACTICE. 

I. — JUEISDICTION OF THE JAPANESE PrIZB CoTJBTS. 

1. Enemy property on enemy ship^Condemnation — Competence of Japanese 
Prize Courts to entertain claims for insurance, freight and expenses. 
Parcels of vaccine lymph and glass instruments shipped by a neutral 
subject to a consignee in enemy territory before the outbreak of war were 
captured on board the Russian steamship " Mukden," and a claim made by 
the consignor, a German subject, for the release of the goods and for freight, 
insurance and expenses. 

Held that the goods were enemy property and that the claim for freight, 
insurance and expenses was not within the jurisdiction of the Prize Court. 



XXlll 

Cargo ex " Mukden," Boeddinghaus' claim, p. 19. 

(See also Cargo ex "Manchuria" (No. 1), Kunst and Albers' claim, p. 61. 

Cargo ex " Bkaterinoslav," Kunst and Albers' claim, p. 10. 

2. Property on hoa/rd an enemy ship — General order of a civil court to attach 

property belonging to the owners — Petition to attach the captured property 
■ — Japanese Prize Court Regulations — No competence to entertain the 
petition — Claim for release of the property presented out of time. 

A neutral subject, who had obtained from a civil court an order to 
attach the movable property belonging to a defendant in a pending action, 
petitioned to attach property of the defendant which had been captured on 
board an enemy ship. Subsequently, after the expiration of the time 
allowed for presenting claims, he added a claim for the release of the 
property. 

Held that as the Prize Coiirt under the Japanese Regulations was not 
competent to entei'tain a petition for provisional attachment, and as the 
claim for the release of the property had been presented out of time, both 
applications must be refused. 

Cargo ex "Mukden," Yuan-tsu-Chuang's petition, p. 21. 

3. Claim for damages — Jiirisdiction. 

A claim for damages is not within the jurisdiction of the Japanese Prize 
Courts. 

Cargo ex " Mukden," Kunst and Albers' claim, p. 31. 

4. Enemy ship — Neutral subject having a lien for dishrtrsements — Claim for 

release, declaration of preferential right, or compensation — Absolute right 
of captw — Jurisdiction of Japanese Prize Courts. 

A ship which is lawful prize is not entitled to release on the ground 
that neutral persons have a claim against her. 

The^ rights of a captor over a prize condemned as enemy property are 
absolute and not subject to prior rights of third parties! 

A claim by such third parties for compensation by the Treasury is not 
within the jurisdiction of a Prize Court. 

The "Eossia," W. H. Gill & Oo.'s claim, p. 43. 

5. Neutral ship — Carriage of contraband persons — Cotidemnation — Petition 

to establish a lien for salvage — Absolute right of captors^Jwrisdictimi 
of Japanese Prize Courts — Rejection. 

A petition was presented by certain Chinese subjects to establish a lien 
upon a ship condemned for the carriage of contraband persona. 

Held that the Japanese Prize Courts had no jurisdiction to entertain 
such a petition, the rights of the captors being absolute. 

The " Nigretia," petition of Mitsubishi Goshi Kaisha and others, 
p. 208. 

II. — Persons competent to present Claims. 
1, Property captured on board an enemy ship — Claim by the Consular repre- 
sentative of a neutral Power having no interest in the property — 
" Person interested ' ' within the meaning of the Japanese Prize Begulations 
— Claim rejected. 
A claim having been made by the French Consular OiHcer for the 
release of property in which he had no interest, upon the ground that it 
was his duty to protect the interests of French subjects — 

Held that the claim must be dismissed without going into the merits 
of the case, as the claimant was not a " party interested " in the property 
within the meaning of the Japanese Prize Regulations. 
Cargo ex " Mukden," Goudereau's claim (No. 2), p. 27. 



XXIV 

2. Practice — Property on hoard an enemy ship — Claim presented by am. attorney 

other than a Japanese advocate — Japanese Prize Court Regulations — 
Rejection of the claim. 
A claim by the owners of certain property captured on board an enemy 
ship was presented by an attorney other than a Japanese advocate. 

Held that as the claim was not presented in accordance with the 
procedure laid down in Article 17 (2) of the Japanese Prize Court 
Regulations, it must be dismissed. 

Cargo ex " Mukden," claim of the East Asiatic Company, p. 29. 

3. Practice — Enemy property on an enemy ship — Condemnation — Appeal — 

Failu/re of attorney to produce authority to appeal — Appeal dismissed. 

The Sasebo Prize Court having condemned a parcel of cargo consigned 
by a British firm to a firm carrying on business at Vladivostock, an 
appeal was presented. The attorney of the claimants failed to produce 
any document authorising him to present the appeal. 

Held that the appeal must be dismissed. 

Cargo ex "Mukden," Holme Ringer & Oo.'s claim, p. 38. 



4. Practice — Interested person — Claim by Consul on behalf of neutral owner. 

A claim was entered by the Danish Consul to certain goods on board 
an enemy ship as being neutral property. The Consul was not personally 
interested in the goods, and held no power of attorney from the parties 
concerned in the shipment of the goods. 

Held that he was not a " party interested " and was not entitled ro 
enter a claim. 

Cargo ex " Manchuria " (No. 1), Ringer's claim, p. 57. 



6. Practice — Authorisation to enter claim — Authority conveyed by telegram — 
Necessity for foi-mal power of attorney — Control of Court over its own 
procedure. 

A claim for the release of property was entered by a Japanese advocate, 
who produced a telegram as authority for his action. The Court required 
the production of a formal power of attorney within a stated period. No 
such power was produced, and the claim was rejected. 

Held by the Higher Prize Court that the claim was rightly rejected as 
no authority to enter the claim was produced according to the form and 
within the period prescribed by the Court. 

Cargo ex "Manchuria" (No. 1), Schmidt's claim, p. 75. 

See also Practice UI., 4. 



III. — PoBM AND Presentation or Claim. 

1. Practice — Claim in language other than Japanese — Japanese Prize Court 

Regulations — Rejection. 

The owners of the " M. S. Dollar' presented a claim to the Sasebo 
Prize Court in English. 

Held by the Tokosuka Court, under whose jurisdiction the ship was, 
that the claim could not be entertained. 

The " M. S. Dollar," claim of Robert Dollar, p. 283. 

2. Practice — Appeal — Language. 

An appeal not in the Japanese language cannot be entertained. 
Cargo ex " Mukden," Boeddinghaus' claim, p. 19. 



XXV 

3. Practice — Appeal — Signature of Japanese achocate. 

An appeal not signed by a Japanese advocate cannot be entertained. 
Ibid. 

4. Practice — Time prescribed for entering claims — Proof of authority of 

advocate — Form of claim — Presentation by telegram. 

The advocate for the owner entered a claim after the expiry of the 
prescribed period, having within that period announced by telegram his 
intention to do so. The claim was rejected by the Prize Court as not 
having been presented within the time prescribed. Held by the Higher 
Prize Court that as the telegram did not show the advocate's authority to 
enter the claim, it could not be considered as having been entered within 
the prescribed period. 

The " Lesnik," p. 92. 

5. Practice — Petition to attach captured property — Amended after the 

expiration of time for Tnahing claims by adding a claim for release. 
See Peactice I., 2. 

6. Practice — Claim, presented out of time — Rejection. 
The " Hsiping," p. 135. 



UNNEUTRAL SERVICE. 

1. Unneutral service — Carriage of contraband persons — Enew,y officers released 

by a neutral Power on pa/role — Privitf of the master and charterei — 
Evidence — Condemnation. 

A neutral ship was captured on a voyage to Vladivostock, having on 
board two Russian naval officers, who had formerly belonged to a destroyer 
which had taken refuge and been blown up in a Chinese harbour, and 
who had subsequently been released on parole by the Chinese Government. 
She had been chartered by a Russian subject, who arranged for the passage 
of the officers as clerks or supercargoes. The Court found that both the 
charterer and the master were aware of their true character. 

Held that the ship was liable to condemnation. 

The "Nigretia," p. 201. 

2. Unneutral service — Carriage of contraband persons — Carriage arranged 

by charterer — Cargo belonging to charterer — Condemnation. 

A Russian subject chartered a British ship, put on board a cargo of 
kerosene, and arranged for the passage of two Russian officers to 
Vladivostock. The ship was captured and condemned. 

Held that the cargo was also liable to condemnation. 

Cargo ex " Nigretia," Serebrenik's claim, p. 213. 

3. Neutral ship — Unneutral service — Ship employed to obtain intelligence 

as to the movements of one belligerent for the pwrpose of reporting to the 
othei — Condemnation. 
A neutral ship was captured after cruising for some days in the 
neighbourhood of the Japanese Fleet. She was ostensibly employed for 
collecting news for a Chinese paper, but was found by the Court to be, 
in fact, engaged in obtaining intelligence as to the Japanese fleet for the 
Russian Government. 
Ship condemned. 
The " Industrie," p. 323. 

e 12950 C 



XXVI 

4. Neutral ship— Unneutral service— Employment by tlie enemy Government 

— Government agent on hoard — Conveyance of supplies and mails to 

enemy territory — Enemy property — Condemnation — Bdght of Prize 

Courts to adjudicate after the conclusion of peace on ships captured 

during hostilities. 

A neutral sHp was captured with a cargo of provisions, textiles, and 

other goods, partly belonging to the Russian Grovemment and partly to 

Russian subjects. She had been chartered to carry this cargo, with the 

mails, to various ports on the Sea of Okhotsh and the Behring Sea. The 

cargo was intended in part for the Russian official dep6ts and in part for 

the inhabitants. A Russian official, who was charged with the duty of 

distributing the goods, had been on board during the voyage, but was not 

on board at the time of the capture, which took place before the expiry of 

the charter. 

Held on these facts that the .actual charterers were the Russian Govern- 
ment. Ship and cai'go condemned. 

In the absence of' any special treaty or Ordinance, a Prize Court is 
entitled, after the conclusion of peace, to adjudicate on ships and cargoes 
saptured during the war. 
The " Australia," p. 373. 

6. Neutral ship — Unneutral service — Employment by the enemy Government 
for reconnaissance — Condemnation — Evidence — Admissibility of 
charter-party not on hoard at the time of capture — Practice — Claim by 
charterer. 

A neutral ship was captured in a locality where information as to the 
Japanese defences might be obtained. Her movements previous to her 
capture did not suggest an ordinary mercantile voyage, and the charter- 
party was not on board. Het officers stated in their evidence that they 
suspected that she was chartered by the Russian Grovemment. 

Held upon the facts that the ship was being employed by the enemy 
Government, and was therefore liable to condemnation. 

Held by the Sasebo Prize Court that a charter-party which was not on 
board at the time of capture could not be admitted as evidence. 

Held by the Higher Prize Court that a charter-party, authenticated by 
the judge of a court before which proceedings had been brought upon it, 
was adm^issible, and was evidence that the ohai'terers had an interest sufficient 
to enable them to make a claim. 

The " Quangnam," p. 343. 



THE " EKATERINOSLAV." 

Enemy ship— Liability to capture of private property — Commencement of a 
state of war — Territorial waters of a cowntry belonging to neither belligerent 
but occupied during the war by the troops of both — Days of grace — 
Japanese Ordinance No. 20 — Authority of rules agreed on by the Institute 
of International Law. 

Enemy property — Firearms carried for the protection of the ship — Money for 
payment of the crew — Goods in transit from, one enemy port to anothei — 
Condemnation. 

• On the 5th February 1904 Japan despatched a note to Russia 
announcing the termination o£ diplomatic iiegotiations, and the next day 
at 9.0 a.m. the Japanese fleet on its way to attack the Russian fleet 
captured the "Ekaterinoslav,"a steamer belonging to the Russian Volunteer 
Fleet Company and engaged at the time of capture on an ordinary 
mercantile voyage. The notification of the rupture of diplomatic negotia- 
tions was communicated to Count Lamsdorf in St. Petersburg at 4.0 p.m. on 
the 6th of February. Actual fighting commenced on the 8th, and a formal 
declaration of war was published on the 10th. The place of capture was 
about 3 miles from the coast of Oorea, a state nominally independent, but 
occupied already by Russian troops and subsequently also by the Japanese 
without objection by the Corean Government ; the earlier engagements of 
the war took place on Corean territory. 

Held (1) that the ship and the cargo claimed by the owners of the 
ship were liable to condemnation as enemy property, (2) that a state of war 
commences as soon as the intention of making war is carried out by action, 
(3) that, whether the place of capture was or was not within Corean 
territorial waters, Corea was not defa^cto neutral, (4) that the fact that the 
ship was captured while still in ignorance of the outbreak of hostilities 
afforded no ground for claiming exemption either upon general principles 
of International Law, or under the special provisions of the Japanese 
Ordinance. 

Held, as to the property on board, that firearms for the protection of 
the ship, money for the payment of the crew, and goods in transit from one 
enemy port to another, were liable to condemnation as enemy property. 

The " Ekaterinoslav " was one of the vessels of the Russian 
volunteer fleet. She sailed from Vladivostock for Odessa on 
February 4th, 1904, two days before the rupture of diplomatic 
negotiations, and was captured on February 6th, 1904, while off 
the coast of Corea. The case came before the Prize Court at 
Sasebo, and judgment was given on May 26th, 1904, con- 
demning the ship and certain portions of the cargo, as to the 
enemy character of which there was no question. 

Decision of the Sasebo Prize Gourt^^ 

The steamship " Ekaterinoslav " and the 22 rifles, 5 pistols, 
3 boxes of ammunition, 1,600 roubles in cash, 31 pieces of 
furniture, 4 articles of clothing and bedding, 1 musical instru- 
ment, 1 article to be used in a factory, 1 smith's tool,_l piece of 
fur and 2 other articles, 1 cupboard, 2 pieces of silk fabric, 

* Published in the Official Gazette, Tokio, June 7th, 1905. 
E 12750 A 



2 The " Ekaterinoslav." 

156 copper cases and other articles, and 1 article of clothing, 
are hereby condemned. 

Facts and Reasons. 

The steamship "Ekaterinoslav" is the property of the 
Volunteer Fleet Company of Russia, flying the Russian flag 
and with Odessa as her usual home port. On the 4th of February 
1904 she left Vladivostock for Odessa with the above-mentioned 
goods on board. On the way to her destination, at about 
9 a.m. on the 6th of February, she was captured by the 
Japanese man-of-war "Saiyen," 3 mileS' north of Fusan, Corea, 
in Lat. 35° 7' N. and Long. 129° 13' E. 

The above facts are admitted by the claimants, and also 
appear from the statement and the certificate as to the money 
and valuables on board the prize submitted by Lieutenant 
N. Yoshimura, I.J.N. , the representative of the captain of 
the "Saiyen," from the invoices, certificate of registry, and 
log-book, and from the evidence of George Selikki, master, 
Vladimir Paterimonovich Kisimov, first officer, and Feodor 
Luibakov, second officer, of the " Ekaterinoslav." 

The substance of the claimants' argument was as follows : — 

(1) The ship had never been fitted out for warlike pur- 
poses, had never engaged in the carriage of contraband of 
war, and had no such goods on board. She ought, therefore 
to be exempt from capture in accordance with clause 3 of 
Article 23 of the Rules of Capture at Sea agreed upon by the 
Institute of International Law at Turin in 1882.'''' 

(2) The ship was captured 3 miles off the Corean coast. 
Corea being a country considered by Japan to be an indepen- 
dent state, and the place of capture being vsdthin the 6 miles now 
generally taken as the limit of territorial waters, the capture 
must be considered as having been made in the waters of a 
neutral country, and should be adjudged unlawful in accordance 
with the amendments resolved upon by the Institute of Inter- 
national Law at Paris in 1895,t and Articles 8 and 9 of the 
aforesaid Rules of Capture at Sea.* 

(3) The ship was on her way from Vladivostock to Colombo, 
and was first apprised of the outbreak of the war on being 
captured. She ought, therefore, to be exempt from capture 
in accordance with Article 6 of the aforesaid Rules of Capture 
at Sea.* 

Moreover, hostilities are restricted to belligerent states, and 
their subjects should not be exposed to the consequences of 
war before its declaration. A ship and cargo such as those 
under consideration, which were captured on the 6th of 
February, that is, before the declaration of war, should, there- 



* Annuaire de I'lnstitut de Droit International, 1882-3, p 213. 
t Annnaire de I'lnatitut de Droit International, 1895, p. 111. 



The " Ekaterinoslav." 3 

fore, be released. Furthermore, as the spirit of the Imperial 
Ordinance No. 20 of 1904* was to exempt from capture vessels 
unaware of the opening of the war, a ship such as this, which 
left the enemy's territory without any knowledge of the outbreak 
of hostilities and was bound to Colombo, a neutral port, should 
not be captured. 

(4) The inviolability of private property at sea as well as 
on land is advocated by modern jurists and authorities. It 
was_ resolved upon by the Institute of International Law at 
Turin in 1882,t and was also submitted to the International Peace 
Conference of The Hague in 1899. Thus it is a principle 
recognised both by states and by private persons. Inter- 
national Law consists of agreements entered into by the Powers, 
and of principles enunciated by jurists and by the Powers as 
occasion requires, and, therefore, changes with the progress 
of the world and the times. A state must, therefore, consider 
the conditions of the time and the general opinions of jurists, 
and adopt the most advanced principles. The 22 rifles, 5 
pistols, and 3 boxes of cartridges were carried by the ship 'for 
her own defence, as is usual with steamships, and it is clear 
from Article 32 of the above-mentioned Rules of Capture 
at Seat that they cannot be considered as contraband of war. 
The claimants, therefore, request that the ship with her whole 
cargo be released. 

The substance of the argument of the Procurator was as 
follows : — 

"The " Ekaterinoslav " is an enemy vessel captured after the 
outbreak of hostilities ; Corea was not a neutral country ; con- 
sequently the capture was lawful and the ship ought to be 
condemned. As to the cargo, the goods sach as furniture and 
clothing, which must be considered as personal property, should 
be released, and all the rest should be condemned. 

The conclusion of the Court is as foUows : — 
The points arising in this case are, firstly, whether the Rules 
of Capture at Sea resolved upon by the Institute of International 
Law at Turin in 1882,1 the amendments resolved upon by the 
same association at Paris in 1895, J &c., are to be applied or not ; 
secondly, whether the capture was lawful or not ; and, thirdly, 
whether the ship and the whole of her cargo are liable to 
condemnation or not. 

As to the first point, the argument of the claimants that 
International Law consists not only of agreements entered into 
by the principal Powers but of declarations made by jurists and 



* App. 0. 

t Annuaire de I'lnstitut de Droit International, 1882-3, p. 213.. 

X Annuaire de I'lnstitut de Droit International, 1894-5, p. 111. 

A 2 



4 The " Ekaterinoslav." 

by the Powers as occasion requires, is true ; but tbe declarations 
of a state and the resolutions of jurists cannot be said at once 
to become effective rules or precedents of International Law. 
The Rules of Capture at Sea resolved upon by the Institute of 
International Law at Turin in 1882,* the proposals at the 
International Peace Confereace of 1899 at The Hague, and the 
amendments proposed for discussion by the Institute at Paris in 
1894,1 cited by the claimants, are nothing more than the desires 
of jurists or expressions of intention by the Powers to consider 
the question. They cannot, therefore, be applied to the case 
under consideration, and the claimants' plea on this point is 
untenable. 

In order to make the second point clear, it is necessary to 
consider whether the capture was made before or after the- 
opening of the war. When diplomatic negotiations were 
opened between Japan and Russia in regard to the Manchurian 
and Oorean questions, the latter Power unreasonably delayed 
giving her answer to Japan. On the other hand, she landed 
her forces in Corea and collected her squadron at Port Arthur ; 
and it is a fact that Russia had shown by her warlike activities her 
determination to open hostilities against Japan. Consequently, on 
the 5th of February, 1904, Japan despatched a notice to Russia 
that all diplomatic relations with her were at an end. At the 
same time Japan made preparations for war, and on the next day, 
the 6th, at 7 a.m., her fleet left Sasebo with the object of attack- 
ing the Russian fleet. From these circumstances and from the 
conduct of the Russian and Japanese fleets, the Court infers that 
before the capture of the " Ekaterinoslav" hostilities had been 
publicly opened and that a state of war clearly existed. The 
claimants argue that a declaration of war is indispensable for 
the infoimation of the subjects of belligerent states, and that a 
capture before such declaration is unlawful. But in modern 
International Law it is generally recognised that a declaration 
is not necessary before opening hostilities, and the claimants' 
argument is groundless on this point. f As to the place of the 
capture, even if it is admitted that a place 3 miles from the 
shore is within territorial waters, the capture cannot be said to 
be unlawful, as Corea was not de facto a neutral state. Again, 
an enemy vessel is liable to capture whether she knew of the 
opening of war or not. This is recognised in International Law, 
and there is no reason why the fact that the ship was in 
ignorance of the outbreak of hostilities should make the capture 
unlawful. As to Imperial Ordinance No. 20§ of 1904, the 
privilege of exemption is granted to Russian merchant vessels 
in Japanese ports, or to those that left foreign ports for Japan 

* Annuaire de IJinstitut de Droit International, 1882-3, p. 213. 
t Annuaire de I'lnstitut de Droit International, 1894-6, p. 111. 
I See now Convention No. III. of the Second Peace Conference, Bluebook 
No. 6, MiBcellaneous, of 1908, p. 42. 
§ App. C. 



The " Ekaterinoslav." 5 

before the 16tli of Februaiy. Therefore, as this ship was 
boimd for Colombo, the Ordinance cannot be applied to her. 
Thus the capture was lawful. 

As to the third point, as it is clear from the above facts that 
the ship is an enemy vessel, the 22 rifles, 5 pistols, and 3 boxes 
of cartridges, carried for her own defence, and the 1,600 roubles 
in cash with which to pay the crew, partake of the enemy 
character and are liable to condemnation with the ship. The 
rest of the cargo mentioned in the text, being goods in transit 
from.Vladivostock to Odessa are all enemy goods and liable to 
condemnation. For these reasons judgment is given as stated 
in the text. 



The owners appealed from the above decision to the Higher 
Prize Court. The appeal was dismissed on May 30th, 1895. 

Decision of the Higher Prize Court." 

An appeal has been entered on behalf of the claimants, in 
the name of Peeln Foliv, chairman of the Board of the Russian 
Volunteer Fleet Company, against the decision of the Sasebo 
Prize Court given on the 26th of May 1904 in the case of the 
steamship " Ekaterinoslav," of the Russian Volunteer Fleet 
Company, and her cargo, captured by the Japanese man-of-war 
" Saiyen " near Fusan, Corea, on the 6th of February, 1904. 
The decision in the Prize Court condemned the ship and her 
cargo, consisting of 22 rifles, 5 pistols, 3, boxes of ammunition, 
1,60() roubles in cash, 31 pieces of furniture, 4 articles of 
clothing and bedding, 1 musical instrument, 1 article to be 
used in a factory, 1 piece of fur, 1 smith's tool and 2 other 
articles, 1 cabinet, 2 pieces of silk fabrics, copper cases and 
other articles, and 1 article of clothing. 

The substance of the claimants' appeal was as follows : — 

(1) The declarations of the Powers and the resolutions of 
jurists constitute the rules and customs of International Law 
now in force ; and the Rules of Capture at Sea agreed upon by 
the Institute of International Law at Turin in 1882|, the pro- 
posals at the International Peace Conference of 1899, and the 
amendments proposed for discussion by the Institute of Inter- 
national Law at Paris in 1894J, ought to be taken as the 
standard of such rules and customs, for International Law is 
not statute law and is not the work of legislators. Its sanction, 
and the power to amend it, rest in the declarations of the 
Powers and the opinions of jurists. When a state makes a 
declaration with regard to a certain event, it becomes a rule 
of International Law, and such declarations alter with the 

* Published in the Official Gazette, Tokio, June 7th, 1905. 

t Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. 

X Aanuaire, 1894-5, vol. 13, p. 111. 



6 The " Ekatermostdv." 

progress of the world and the change of the times. There is no 
fixed International Law for a state to observe, but any just and 
impartial practice adopted by it according to circumstances 
becomes the standard of International Law. In applying the 
rules of International Law in time of war, a state should, there- 
fore, take into consideration the spirit of the times and the 
most advanced theories of jurists, basing all its decisions upon 
the great principle of universal laenevolence. Unlike a court 
of law, a prize court is not bound by any rules. It should, 
therefore, take as its standard the most advanced principles of 
International Law, and should give decisions at its discretion on 
the cases brought before it. It is now the beginning of the 
twentieth century, and the claimants are entitled to demand 
a decision based upon the most advanced principles of Inter- 
national Law. Thus the claimants base their plea not only 
upon the theories expounded by Western scholars, but also 
upon new arguments, and insist that even enemy vessels and 
enemy goods should, according to the standard above mentioned, 
be exempt from capture, provided that they are not contraband 
of war, nor guilty of any illegal act or intention, nor imme- 
diately intended for hostile operations, and do not obstruct 
such operations. According to the modern ideas of Inter- 
national Law, a belligerent visits and searches enemy vessels ia 
order to safeguard his own interests, and captures are made 
only when required to attain this object. They are not retalia- 
tory acts. Thus not even enemy war vessels or enemy goods 
may be captured except under certain circumstances. As to the 
idea of vanquishing the enemy by destroying his shipping 
and commerce, it is not tenable in the present century when 
communications, transport, and financial activities are so highly 
developed. A captured enemy vessel should, therefore, be in- 
stantly released unless she has committed some illegal act. 
The ship under consideration was not guilty of carrying con- 
traband nor of any other illegal act ; nor is there any reason to 
suspect her of any intention to commit such acts in the future. 
She was only engaged in peaceful commerce, with no intention 
of assisting hostile operations. She should, therefore, be re- 
leased. Moreover, Japan went to war for the cause of justice, 
and no one doubts that she will uphold it to the end. Thus 
the real ideal of the Imperial Government must be the liberal 
treatment of even enemy vessels and enemy goods, considering 
them the same as neutral vessels and neutral goods so long as 
there is no guilty act or intention. Again, this war is the best 
opportunity to put into practice those enlightened principles 
of International Law that have been advanced in the last few 
decades,_ and, where necessary, to establish new precedents. 
International Law has been making gradual progress, and many 
restrictions have been made concerning the right of capture, 
and such exceptions tend to become general rules. If it be 
asked what is the best standard to adopt for the case under 



The ' ' Ekaterinoslav. ' ' 7 

consideration, nothing could be better than tlie above-mentioned 
Rules of Capture at Sea resolved upon by the Institute of Inter- 
national Law at Turin.® Articles 4, 5, 6, 8 to 10, 15, 23, 32, &c. 
are particularly applicable to this case, and should be adopted 
as representing the public opinion of the world. 

(2) According to the advanced principle of International 
Law, the private property of enemy subjects should not be con- 
demned before the declaration of war, nor, if the owner is 
ignorant of the existence of war, even though hostilities have 
begun. The proposition that a declaration is not required 
before commencing hostilities only applies to belligerent states, 
for war is a relation between states, and the people that con- 
stitute the state, as individuals, have nothing to do with it. 
Consequently their persons and property must be protected 
notwithstanding the war. 

Since Corea was a neutral country, the capture of this ship 
in the territorial waters of Corea was unlawful." The question 
whether a vessel is liable to condemnation or not depends 
according to International Law upon the violation or intention 
to violate the rules of war. Moreover, the Ordinance No. 20 of 
1904| protects vessels unaware of the opening of hostilities ; 
this Ordinance applies in the present case. 

'3) Assuming that the ship and goods under consideration 
are enemy property, they were captured on the 6th of February, 
1904, and Japan opened hostilities against Russia on the 8th of 
February, that is, on the day of the naval engagement outside 
the harbour of Chemulpo. This ship left Vladivostock on the 
4th of the same month at 12.45 p.m., and until her capture 
she did not call anywhere. She was therefore ignorant of 
the rupture between Japan and Russia. Moreover, the ship is 
a merchantman engaged in maritime commerce. She was 
never equipped for warlike purposes or employed in carrying 
contraband. She was engaged in peaceful commerce, with no 
trace of having committed any offence. According to modern 
International Law, therefore, the ship and cargo are not liable 
to condemnation, even though they may not be exempt from 
capture. The furniture belonging to Mrs. Condravich, as stated 
in the claim and the supplemental claim, is all intended for 
peaceful purposes, none of it is contraband of war, and they 
should, therefore, be released. The Prize Court decision was 
erroneous in condemning the ship and cargo as good prize 
notwithstanding the above reasons, and should be overnaled 
and the ship and cargo released. 

The substance of the, answer of the Procurator of the Sasebo 
Prize Court was as follows : — 

The petition of appeal is very long and contains many 
arguments which have no direct bearing upon the case. The 

* Annuaire de I'Institut de Droit International, 1882-3, p. 213. t App. C. 



8 The " Ekatennostav.'^ 

substance of it is that the most advanced standard of modern 
International Law is that of the Rules of Capture at Sea agreed 
to by the Institute of International Law in 1882'*' ; that the 
Court should establish new precedents by adopting the above- 
mentioned rules, or principles even more advanced ; and that 
the original judgment, which is contrary to the above-mentioned 
rules, was erroneous. But International Law is the usage 
recognised generally and observed reciprocally by the Powers. 
Rules that are nothing more than resolutions of jurists unre- 
cognised by the Powers cannot at once be adopted. As to the 
other grounds of the appeal, they were discussed in detail in the 
argument of the Procurator in charge of the case below ; and 
as nothing new has been produced, the Procurator thinks they 
require no answer. The decision of the Prize Court was right, 
and the appeal should be dismissed. 

After due consideration the conclusion of the Court is as 
follows : — 

(1) The Rules of Capture at Sea agreed to by the Institute 
of International Law at Turin* are nothing more than the 
aspirations of jurists, open to further discussion by the Powers. 
Under International Law they have no authority, and it is a 
mistake to try to decide cases of capture by them. A prize 
court has to decide cases brought before it by the regulations 
and instructions of the country and by International Law, in 
which respect it differs somewhat from a law court. But both 
are' the same in this, that they must act according to the rules 
laid down. As to the vague argument in favour of governing 
the solid business of the day by the principle of universal 
benevolence, it is inadmissible. It ignores the fact that war is 
indispensable in the present state of national intercourse, and. 
tries to deny the right of capture at sea, which is one of the 
rights under International Law enjoyed by belligerent states. 
In time of war enemy vessels and enemy goods on board are 
liable to capture irrespective of the acts or intentions of the 
owner or the crew. This is the rule of International Law, and 
it is fair. The decision in the Prize Court which applies this 
rule, is, therefore, right. 

(2) During the Russo-Japanese War, not only did Corea 
consent to the landing and passage of the Japanese army in 
her territory, but at the beginning of the war battles were 
fought there. It follows from these facts that Corea cannot be 
considered as a neutral in the ordinary sense. The contention 
that the capture was made in neutral waters and was conse- 
quently unlawful, is therefore quite wrong. As to the Imperial 
Ordinance No. 20,t it grants special immunities to enemy 
vessels only under certain circumstances, and its application 
cannot be extended beyond the scope prescribed. The ship 



* Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. f App. C. 



The " Ekaterinoslav." 9 

under consideration was captured in tlie Corean seas on her way 
from Vladivostock to Odessa, and therefore is not entitled to 
the benefit of the Ordinance. The liability of enemy vessels 
to capture, whether aware of the opening of hostilities or not, is 
a generally accepted principle of International Law, so that the 
ignorance of this ship of the outbreak of hostilities between 
Japan and Russia is no reason for exempting her from capture. 
As to the principle of the inviolability of private property, it is 
generally recognised in modern International Law as inapplic- 
able to capture at sea. Thus none of the arguments under the 
second head are tenable. 

(3) The state of war does not necessarily begin at the 
moment when the two opposing armed forces open fire upon 
each other, but rather when the intention of making .war is 
made public ; that is to say, when the intention is carried into 
action, or when a declaration of war or any such notification is 
made. When diplomatic negotiations were going 'on between 
Japan and Russia concerning the independence and territorial 
integrity of China and Corea, the unreasonableness of Russia 
put an amicable settlement beyond hope. And when it became 
obvious that Russia intended to force Japan to submission 
by force of arms, the Japanese Government ordered its diplo- 
matic agent at St. Petersburg on the 5th of February, 1904, to 
notify the Russian Government that diplomatic relations between 
the two countries were at an end. At the same time the Im- 
perial fleet made preparations for war, and left Sasebo the next 
day, the 6th, at 7 a,.m., with the object of opening hostilities. 
On that day the fleet captured this ship, which was liable to be 
used for naval purposes in time of war. The sailing of the 
fleet was the caiTying into action of the intention to make war, 
and the Russo-Japanese War must be said to have been opened 
from that moment. Thus a state of war existed on the 6th 
of February, 1904, the day on which the Japanese man-of-war 
" Saiyen " captured this ship. If so, not only was the capture 
lawful, but the ship and her cargo are lawful prize, as explained 
above. The decision condemning them was right. The appeal 
is therefore dismissed. 



10 



CARGO Ex "EKATERINOSLAV." 
KUNST AND ALBERS' CLAIM. 

Property on board an enemy ship — Firm of neutral nationality having branches 
in enemy territory — Consignment from one such branch to another — 
Domi<yile or place of business the test of enemy character — Condemnation — 
Claim for freight and expenses — Competence of Japanese Prize Courts. 

A firm whose headquarters were in neutral territory had branches in 
enemy territory. Goods were consigned by one branch in enemy territory 
to another branch in enemy territory and were captured on board an enemy 
ship. 

Held that the goods were enemy goods. In the case of a merchant the 
test of enemy character is the locality of his place of business. 

Claims for freight and expenses are not within the jurisdiction of the 
Japanese Prize. Ooxu^s. 

The " Ekaterinoslav " was a vessel of the Russian volunteer 
fleet ; she sailed from Vladivostock for Odessa with a mixed 
cargo and was captured off the coast of Corea by a Japanese 
man-of-war. The case came before the Prize Court at Sasebo, 
and the ship and part of the cargo which was not claimed to be 
neutral property were condemned.® Part of the cargo had been 
consigned by the Vladivostock branch of the German firm of 
Kunst and Albers to the Odessa branch of the same firm, and 
the release of these goods was claimed on the ground that they 
were neutral property. Arguments similar to those used in the 
case of the ship* were also employed in this case, but are 
omitted as the decision is only reported on the question of what 
constitutes the test of enemy character. The Sasebo Prize Court 
condemned the goods as enemy goods. 

Decision of the Sasebo Prise Court.'\ 

One case of musical instruments, one case of manufactured 
articles, one bellows (blacksmith's), four other cases, and one 
box carried by the steamship " Ekaterinoslav " are condemned. 

The claim in regard to freight on the above goods and 
travelling expenses is rejected. 

Facts and Reasons. 

The goods in question were consigned by the Vladivostock 
branch of Kunst and Albers, the claimants, a German firm, to 
the branch of the same firm at Odessa, and were captured with 
the Russian steamship " Ekaterinoslav " on the 6th of February, 
1904, as appears from the evidence. 

The claimants demanded the release of the goods on the 
ground that they were neutral property, and not contraband 
of war. They also claimed 64 r. 37 c, the amount of the freight 

* iSee p. 1. 

t Published in the Official Gazette, Tokio, June 26th, 1905. 



Cargo ex " Ekaterinoslav," Kunst and Alters' Claim. 11 

paid on the goods, and 50 yen, travelling expenses incurred in 
attending tlie Court. 

The Court, after hearing the Procurator's argument, dis- 
missed the claim on the following grounds :— 

Internationa] Law permits the capture in time of war of 
enemy goods carried in an enemy ship, whether they he 
contraband of war or not, and the question whether goods are 
enemy goods, or not depends, not on the nationality of their 
owner, but on his domicile, or, in the case of a merchant, the 
place of his business. These goods are, therefore, clearly enemy 
goods, being despatched from the Vladivostock branch of Kunst 
and Albers to their Odessa branch, and are liable to condemnation. 
This Prize Court has no competence to decide on claims for 
freight or travelling expenses, and therefore the claim in 
regard to them must be rejected. 

The claimants presented an appeal to the Higher Court, 
which was dismissed upon the same grounds on the 30th of 
May, 1905. 



12 



THE "MUKDEN." 

Enemy ship — Commencement of a state of wai — Capture in a port of a 
country belonging to neither belligerent but oecwpied dwring the war by 
the troops of both — Days of grace — Japanese Imperial Ordinamce No. 20 
— Application to property of the enemy State — Status of the Chinese 
Eastern Railway Company. 

Enemy property — Consignee carrying on business in enemy ' territory — Con- 
dem/nation — Consignee a commercial agent of a neutral State — Release. 

The " Mukden,'' a steamship belonging to the Chiaese Eastern Railway 
Company, was captured at 2.45 p.m. on February 6th, 1904, in the port 
of Pusan in Corea. The ships of the Company were included in a list, 
prepared by the Russian Department of Communications, of vessels owned 
by the Russian Government, and a claim for damage done to the property 
of the Company had on a previous occasion been put forward as a claim for 
damage done to property of the State. 

Held (1) that the ship was liable to condemnation as an enemy ship, 
(2) that the Japanese Ordinance as to days of grace did not apply, as the 
" Mukden " was not boand for a Japanese port, and also because the Chinese 
Eastern Railway Company was not a private corporation but a State insti- 
tution, (3) that Corea was not de facto neutral, and therefore the capture in 
Fusan Harbour was valid, and (4) that a state of war had commenced before 
the time of the capture.* 

The " Mukden " had on board inter alia goods consigned to a French 
company estabUshed in Vladivostock, and also goods consigi\ed to the French 
Commercial Agent at Vladivostock. 

Held (l)that, as the French company was estabhshed in enemy territory, 
goods consigned to it were enemy property, and (2) that the goods consigned 
to the French Commercial Agent should be released, as his residence in 
enemy territory was necessitated by the duties of his office. 

The " Mukden," a steamship owned by the Chinese Eastern 
Railway Company, was captured in Fusan Harbour at 2.45 p.m. 
on the 6th February, 1904, on a voyage from Nagasaki to Vladi- 
vostock. After certain parcels of cargo had been released at 
the instance of the Procurator,! a claim to the ship was made 
by the Chinese Eastern Railway Company. Judgment was 
given by the Prize Court on the 26th May, when certain other 
parcels of cargo were also dealt with. 

Decision of the Sasebo Prize GouTt.1l. 

The Russian steamship " Mukden " and the goods mentioned 
below are hereby condemned § ; and the other goods mentioned 
below are released. 11 



* For the facts upon this point, see the case of the " Ekaterinoslav," 
p. 1. 

t See p. 18. 

X Published in the Official Gazette, Tokio, July 15th, 1906. 

§ Those condemned were money, boxes of typewriters, dried fi-uit, zinc 
plates, &c. Separate decisions were given upon claims made in respect of 
several of these parcels and are printed below. 

II Those released were paper for books and one bundle of flags, consigned 
to the French Commercial Agent at Vladivostock (see pp. 14 and 24). 



The"MuMen." 13 

Facts and Reasons. 

The " Mukden " is the property of the Chinese Eastern 
Railway Company of Rnssia, with her home port at Dalny, 
China, in the district leased to Russia. She flies the Russian 
flag and is engaged in the carriage of passengers, goods, and 
mails between Shanghai in China, Fusan in Corea, Nagasaki in 
Japan, and Vladivostock in Russia. On the 5th of February, 
1904, she left Nagasaki for Vladivostock, and on the way she 
called at Fusan, where she was captured by the Japanese man- 
of-war " Heiyen" on the 6th February at 2.45 p.m. The goods 
on board, as mentioned in the annexed list, are all deliverable 
to residents of Vladivostock, one box of paper for record books 
and one bundle of flags being consigned to the French Com- 
mercial Agent at the same port. 

The above facts are admitted by the claimants, and also 
appear from the statement submitted by Lieutenant N. Yoshi- 
mura, I.J.N., representing the captain of the "Heiyen," from 
the evidence given by Serge Visniovski and Alexander Ivanovich 
Kanajev, first and second officers of the " Mukden," from the 
log-book, manifest, clearance from Nagasaki, certificate of 
the Nagasaki Quarantine Office, and from the statement of 
G. Gouderau, French Acting Vice-Consul at Nagasaki, men- 
tioned in the record of the hearing of the claims Nos. 6 
and 12. 

The substance of the claimants' argument was as follows : — 

(1) The Russo-Japanese War began on the 8th of February, 
1904, when the naval engagement off Port Arthur was fought, 
and not at the time when the Japanese Government notified the 
Russian Government of the rupture of diplomatic relations. 
The capture of the ship, therefore, took place before the exist- 
ence of a state of war between the two countries, and 
consequently she should be released. 

(2) Even if it be admitted that the state of war commenced 
with the notification of the rupture of diplomatic relations, the 
capture was made before the existence of the state of war, 
and the ship should be released ; because the notification was 
delivered to the Russian Foreign Minister on the 6th of 
February, 1904, at 4 p.m., and the capture took place on the 
same day at 2.45 p.m. (omitting difference of longitude). 

(3) Under the Declaration of Paris of 1856, neutral goods 
are not liable to capture. The goods mentioned in the 
advertisement in the Official Gazette under the name of To-A 
Kwaisha (the East Asiatic Company) are the property of the 
Marceron Schreter Company, a French firm at Vladivostock, so 
that they should be released. 

(4) if the ship should be released, the cargo should also be 
released. 

(5) The capture was made in the territorial waters of Corea ; 
and liie question whether Corea is to be considered neutral or 
not requires special consideration. 



14 The "Mukden." 

Moreover, tke subjects of the enemy state are only_ apprised 
of the opening of war by a declaration, and this ship, which 
was captured before the declaration, should be released. 

Furthermore, Imperial Ordinance No. 20 of 1904* is appli- 
cable to vessels at sea, which left a Japanese port before the 
commencement of the war, and the ship should be released in 
accordance with the Ordinance. 

The substance of the argument of the Procurator was as 
follows : — 

One box of paper for record books (official paper) and one 
box of flags, belonging to the French Commercial Agent, should 
be released, but the ship and all the other cargo should be 
condemned, as there is no justification for the claim. 

The conclusion of the Court is as follows : — 

When diplomatic negotiations with regard to the Manchurian 
and Corean questions were being conducted between Japan and 
Russia, the latter country unnecessarily delayed sending an 
answer to Japan. On the other hand, she showed great activity 
in relation to her army and navy, sent her land forces to 
Manchuria and Corea, collected her warships at Port Arthur, 
and thus openly showed her determination to fight Japan. 
Whereupon, on the 5th of February, 1904, Japan despatched a 
notification to Russia that all diplomatic relations were at an 
end. At the same time she made preparations for action, and 
the next day, the 6th, at 7 a.m., her .fleet left Sasebo with the 
object of attacking the Russian fleet. Judging from the conduct 
of the navies of both countries and from the state of things at 
that time, hostile operations were publicly opened prior to the 
capture of this ship. As it is therefore clear that the state of 
war had begun before the time of the ship's capture, there is 
no need to discuss whether she was captured before or after the 
declaration of war. 

As to Imperial Ordinance No. 20 of 1904,* it is a special 
provision exempting from capture Russian merchant vessels 
that were in Japanese ports on the 9th of February or had left 
foreign ports for Japan before that date ; and consequently it 
cannot be applied to a Russian ship that had left a Japanese 
port before that date and was on her way to the enemy 
country. 

As regards Corea, it is clear that she is not de facto neutral, 
and consequently any capture made in her territorial waters 
cannot be said to be unlawful. Thus the capture under con- 
sideration was lawful, and the ship is liable to condemnation. 

As to the cargo, one box of paper (official paper) and one 
box pf flags belonging to the French Commercial Agent at 
Vladivostock, who resides in the Russian territory in order to 
carry out the orders of his country, should be released. The 

*App. C. 



The"Muhden:' 15 

rest of the cargo, being all enemy goods in an enemy vessel, 
are liable to condemnation. The claimants plead that the goods 
mentioned in the advertisement in the Official Gazette under the 
name of the East Asiatic Company are not enemy goods, being 
the property of the Marceron Schreter Company, a French firm 
at Vladivostock, and consequently neutral. But the national 
character of goods is determined by the residence of the owner, 
not by his nationality. The Marceron Schreter Company may 
be of French nationality, but since it has its office at Vladi- 
vostock, Russia, and carries on business there, its property is 
enemy property and is liable to condemnation. The decision 
stated above has, therefore, been given. 



The claimants appealed against this decision. The appeal 
was dismissed on_the 3rd July, 1905. 

Decision of the Higher Prize Court/^ 

An appeal has been entered by the Chinese Eastern Railway 
Company against the decision given by the Sasebo Prize Court 
on the 26th May, 1904 in the case of the Russian steamship 
" Mukden " and her cargo, whicli were captured by the Japanese 
man-of-war " Heiyen " in the port of Fusan, Corea, on the 6th of 
Februarjr, 1904. The Sasebo Prize Court condemned the ship 
and the goods Nos. 1 to 45, Nos. 47 to 52, and Nos. 54 to 56, 
as mentioned in the list,t and released the goods No. 46 and 
No. 53. 

The reasons for the decision of this Court are as follows : — 
In paragraph 1 of the appeal the claimants argue that since 
the war between Japan and Russia began on the 8th of 
February, that is, when the naval action ofE Port Arthur was 
fought, this capture, made before that time, was unlawful. In 
paragraph 2 they argue that the capture of the ship was made 
prior to the time when the notice of the rupture of diplomatic 
relations was delivered to the Russian Foreign Minister, and 
consequently she should be released. But a state of war does 
not necessarily commence at the moment when opposing armed 
forces open fire upon each other, nor when a declaration of war 
or any such notice is given, but rather when the intention of 
going to war is carried into eifect or when such intention is 
made manifest. When, by reason of Russia's unreasonable 
behaviour, the prospect of an amicable settlement of the diplo- 
matic negotiations between Japan and Russia became utterly 
hopeless, and it became certain that Russia's intention was to' 
make preparations for war, and to compel Japan to ^bmission 
by force of arms, our Government, on the 5th of February, 1904, 
despatched instructions to the Japanese Minister accredited to 

* Published in the Official Gazette, ToKo, July 15th, 1905. 
t The character of the goods being immaterial, the list is not printed ; 
see notes on p. 12. 



16 The " MuMen." 

Russia to give notice to that State that diplomatic relations 
with her were at an end. At the same time, the Imperial fleet 
made preparation for war and left Sasebo on the following day, 
the 6th, at 7 a.m., with the intention of opening hostilities. On the 
way the Japanese fleet captured the steamship " Ekaterinoslav," 
of the Russian Volunteer Fleet Company, which was a vessel 
liable to naval service in time of war. This was nothing less 
than the carrying out of the intention of making war, and any 
capture made after that time is lawful. Moreover, the ship was 
captured after the Imperial Government had, on the 6th of 
February, at 2 p.m.,. notified the Russian Minister at Tokio 
of the rupture of diplomatic relations. Thus the first and 
second points of the appeal fail. 

In paragraphs 3 and 4 of the appeal, the claimants argue that 
the goods mentioned in the advertisement in the Official Gazette 
under the name of Eastern Asiatic Company, and the goods 
No. 31, are the property of the consignors, and ought, therefore, 
to be released. But goods shipped by a person living outside 
the enemy territory, in an enemy vessel and consigned to a 
person residing in the enemy territory, are enemy property 
and liable to condemnation. This is a rule recognised by 
international usage, and this Court considers it fair and reason- 
able. And as this rule is applicable to such goods shipped in 
an enemy vessel, no matter under what circumstances, the third 
and fourth points of the appeal fail. 

The fifth point of the appeal (viz., that, if the ship is 
released, the cargo should also be released) cannot be a reason 
for the release of the cargo, unless it is proved that the ship 
ought to be released. 

In paragraph 6 of the appeal, the claimants complain that 
the Sasebo Prize Court has not definitely ascertained the 
position of Corea according to International Law. But since 
Corea was net an ordinary neutral, a capture made in her waters 
cannot be said to be unlawful. Therefore, the decision of the 
Sasebo Court, which stated that Corea was not de facto neutral, 
is sufficient, although it does not give any further explanation 
of the position of Corea. 

In paragraph 7 of the appeal the claimants argue that the 
capture was unlawful, as it was made before the declaration of 
war. But when hostilities are once opened a belligerent can 
exercise the right of capture, no matter whether the enemy's 
subjects are apprised of the fact or not. This is recognised in 
International Law, and consequently the seventh point of the 
appeal fails. 

In paragraph 8 of the appeal, the claimants maintain that 
the ship ought to be released in accordance with Imperial 
Ordinance No. 20 of 1904.® But the ship does not come under 
the Ordinance, since she left Nagasaki on the 5th of February, 

* App. C. 



The "Mukden." 17 

and was captured wlien she called at Fusan. Moreover, the 
Ordinance gives exemption from capture only to peaceful 
private vessels, and is not applicable to a ship that must be 
considered as the property of the enemy Government. The 
Chinese Eastern Railway Company is ostensibly a private 
corporation, but according to the statistics of the vessels in 
Russian dominions in Asia, published by the Russian Depart- 
ment of Communications, all the vessels of the Company are 
included in the list of Government vessels. Again, after the 
North China Riots of 1900 the Russian Government demanded 
an indemnity fi'om China for the loss sustained by that Com- 
pany as damages sustained by the State. Thus the Russian 
Government " itself admits that the Chinese Eastern Railway 
Company is a State institxition. The object of the establish- 
ment of the Company, its organisation, &c., also furnish sufficient 
evidence to prove that the Company is not a private corpora- 
tion.* The ship must, therefore, be considered as Government 
property, and is not entitled to enjoy the benefit of Imperial 
Ordinance No. 20.t 

Regarding paragraph 9 of the appeal, the circumstances 
under which enemy goods Avere shipped in an enemy vessel 
have no effect upon a belligerent's right of capture, as is 
explained in connection with paragraph 3 of the appeal. 
Thus the ninth objection is without foundation. 

This appeal is therefore dismissed. 

* See also, for further facts iu relation to the ships of this Company, the 
case o£ the " Argun," p. 48. f App. 0. 



E 12750 



18 



CAEGO ex "MUKDEN." 

consigned to subjects of the captor State— Belease. 

On the 5th February 1904, the RussiMi steamship " M?^d|P " J*^ 
Nagasaki for Vladivostook vid Fusan. She was captured on the 6th I'ehmary 
STsan harbour, havmg on board inter alia «-t-- ^-^nSa ^ 

neutral or Japanese subjects to neutral or Japanese subjects m Oorea. 

Held, that such cargo shoiild be released. 

The " Mukden " was a Russian steamer, which, was captured 
by a Japanese warship on February 6th, 1904, at Fusan, in 
Corea, and taken before the Sasebo Prize Court for adjudication. 
The following decision was given at the instance ot tl:e 
Procurator prior to the adjudication upon any of the claims. 

Decision of the Sasebo Prize Court.- 
On the 24th February, 1904, the Prize Court, after reading 
the written opinion of the Procurator, decided that the following 
cargo should be released : — 

Description. Consignor. Consignee. 

1 iron bedstead and bed- Holme, Ringer & Co. GreniefE. 

ding. ^^ 

1 iron cash safe - Matsumoto Matsumoto. 

Umbrellas, provisions,books, Moriya - - Nishijima. 

ham, apples, bamboos, 

timber, earthenware, 

candles. 
Drugs _ - - - Mactavish, Lehmann Wakeneld. 

&Co. 

Facts and Reasons. 
The bedstead and bedding were consigned by Holme, 
Ringer & Co. of Nagasaki to Gensan in Corea; the case of 
drugs was consigned by Mactavish, Lehmann & Co. of Shanghai 
to the same place. In both cases the ship's manifest, the nature 
of the goods, &c., show that the consignees, GreniefE and Wake- 
field, are resident in Corea, and must be held to be the owners 
of the respective parcels. 

The iron cash safe consigned by Matsumoto to Matsumoto, 
and the umbrellas and other goods consigned by Moriya to 
Nishijima were shipped at Nagasaki for Gensan. In these 
cases it appears from the ship's manifest, the nature of the 
goods, &c., ■ that the goods in question belong to Japanese 
subjects resident iii Corea. 

As there is no other ground upon which these goods could 
be condemned , they must now, though their capture on board 
the ship was proper, be released at once. 

* Published in the Ojgicial Gazette, Tokio, March 12th, 1904. 



19 



CARGO ex "MQKDEN." 
BOEDDINGHAUS' CLAIM. 

Enemy property on enemy ship — Claim by consignor — Ownership of property 
in transitu — Shipment before outbreak of hostilities — Condemnation — 
Competence of Japanese Prize Courts to entertain claims for insurance, 
freight and expenses — Appeal — Documents not in the Japanese language 
nor signed by a Japanese advocate — Appeal dismissed. 

Parcels of vaccine lymph and glass instmments shipped by a neutral 
subject to a consignee in enemy territory before the outbreak of war wei'e 
captured on board the Russian steamship " Mukden," and a claim made by 
the consignor, a German subject. 

Held that (1) in the absence of proof to the contrary the consignee in 
the enemy teixitory must be presumed to be the owner, and the goods con- 
demned ; (2) the claim for freight, insurance, and expenses was not within 
the jurisdiction of the Prize Coiu-t. 

Held, further, that an appeal not in the Japanese language and not 
signed by a Japanese advocate cannot be entertained. 

Tlie " Mukden " was a Russian steamer which, was captured 
by a Japanese warship on February 6th, 1904, at Fusan, in Corea. 
Among the cargo were some cases of vaccine lymph and glass 
instruments shipped before the outbreak of war by a merchant 
in Germany of the name of Boeddinghaus. A claim for these 
goods was entered by Boeddinghaus, and he also claimed the 
freight and insurance which he had paid, and his own expenses 
in attending the Prize Court. 

The claim was dismissed by the Prize Court. 

Decision of the Saseho Prise Gourt/^ 

The vaccine lymph and 60 cases of glass instruments on 
board the " Mukden " are condemned. The claim for compen- 
sation for insurance, freight, and travelling and other expenses 
is dismissed. 

Facts and Reasons. 

The cargo in question was captured en route for Vladivostock 
on board the "Mukden" on February 6th, 1904, in the port of 
Fusan by the Japanese warship "Heiyen," as is proved by the 
evidence. 

The claimant argues that the goods in question were seized 
in the waters of Corea, a neutral country, and that the capture 
was consequently illegal, and further that the goods were 
despatched prior to the outbreak of war, and that the ownership 
is vested in the claimant. For these reasons he asks that they 

* Published La the Official Gazette, Tokio. 

B 2 



20 Cargo ex " Mukden," Boeddinghaus' Claim. 

should be released. The claimant also claims insurance and 
freight which had been paid by him, as well as his travelling 
expenses to attend the Prize Court. 

The Procurator considers that the capture was legal, and, 
therefore, the goods should not be released; and that the 
question of compensation for freight, insurance, and travelling 
expenses does not fall within the competence of the Court. 

It is recognised by International Law that when goods are 
placed on board a vessel and despatched to the address of a 
person residing in the enemy country, unless there is evidence 
to the contrary, the ownership of such goods passes to the 
consignee from the moment they are shipped. The goods in 
question were therefore clearly enemy goods. The claimant 
further argues that the capture was illegal because made in 
neutral waters, but it is clear that at the time Corea was not in 
fact a neutral country. The goods being enemy goods carried 
on an enemy ship, the question whether they were shipped in 
time of war or not does not arise. 

Judgment is therefore given as above. 

Against this decision the claimant appealed. The appeal, 
which was in the German language, and was not signed by a 
Japanese advocate, was considered by the Sasebo Prize Court and 
dismissed, without reference to the Higher Court. 

Decision of the Saseho Prize Court.^ 

The appellant, Boeddinghaus, on the 4th of June lodged 
ar. appeal against the decision given by this Court on the 
26th of May, 1904 in the case of the cargo of the Russian steam- 
ship " Mukden." But the document being in the German 
language and not being signed by a Japanese advocate of the 
Empire is in violation of paragraph 3 of Article 23 (A) of the 
Prize Court Regulations.! The appeal is, therefore, dismissed 
under paragraph 1 of Article 23 (B). 

* Published in the Official Gazette, Tokio. 
t App. A. 



21 



CARGO ex "MUKDEN." 
YUAN-TSU-CHUANG'S PETITION. 

Property on hoard an enemy ship — General order of a civil oowrt to attach 
property belonging to the owners — Petition to attach the captured property 
— Japanese Prize Court Regulations — No competence to entertain the 
petition — Claim for release of the property presented out of time. 

A neutral subject, who had obtained from a civil court an order to 
attach the moveable property belonging to a defendant in a pending action, 
petitioned to attach property of the defendant which had been captured on 
board an enemy ship. Subsequently, after the expiration of the time 
allowed for presenting claims, he added a claim for the release of the 
property. 

Held that as the Prize Court under the Japanese Regulations was not 
competent to entertain a petition for provisional attachment, and as the 
claim for the release of the property had been presented out of time, both 
applications must be refused. 

The " Mukden" was a Russian steamer wliich was captured 
by a Japanese warship, on February 6th, 1904, at Fusan, in 
Corea, and taken before the Sasebo Prize Court for adjudication. 
Among the cargo on board was a parcel of 10,000 roubles 
belonging to the Russo-Chinese bank. 

In the course of litigation before the Tokio District Court, 
Yuan-tsu-chuang obtained on the 12th of February, 1904, an 
order to attach the moveable property belonging to the Russo- 
Chinese Bank, against whom he had a counterclaim. On the 
1st March notice was given in the Official Gazette that all claims 
in respect of the "Mukden" or her cargo must be presented 
within 30 days. On the 18th March Yuan-tsu-chuang petitioned 
for the attachment of the 10,000 roubles, but presented no claim 
for the release of the roubles until the 20th of April, on which 
date he purported to make such a claim by way of supplement 
to his petition for attachment. The petition came on for hearing 
before the Prize Court on the 20th of May and was dismissed. 

Decision of the Sasebo Prize Court* 
This petition is hereby rejected. 

Facts and Reasons. 

The substance of the argument of the petitioner is as 
follows : — The Russo-Chinese Bank, a joint stock company, 
alleging that the petitioner, while officiating in the bank, had 
become indebted to the bank, brought an action on the 26th of 
June, 1903, in the Tokio District Court, claiming the repayment 
of the sum of 175,971.10 yen, and on the 25th of July brought 

* Published in the Official Gazette, Tokio, June 22nd, 1904. 



S2 Cargo ex "Mukden," Yiian-tsu-ehuang' s Petition. 

another action, demanding the repayment of the two sums of 
70,000 yen and 47,555.54 yen. The petitioner refused to pay 
the demand of the bank, and on the 10th of July commenced a 
counter-action against the bank, claiming 535,307 yen damages, 
and the lawsuit is now pending before the court. The petitioner 
having heard that the Russo-Ohinese Bank was going to shut 
its branch office and withdraw to its own country, petitioned 
for provisional attachment of the bank's moveable property 
in order to secure execution, and on the 12th of February, 
1904, the Tokio District Court made an order for attach- 
ment of the bank's moveable property up to the sum of 
359,355.90 yen. When the attachment was enforced according 
to this order at the bank, moveables not exceeding in value 
7,600 yen were found, leaving a deficit of 351,735.90 j-en. 
The Russian steamer "Mukden," which was captured by 
the Imperial man-of-war " Heiyen " on the 7lh of February 
1904, had on board 10,000 roubles belonging to the Russo- 
Chinese Bank, and if the 10,000 roubles be condemned, the 
petitioner will not be able to attach the same. He therefore 
petitions (1.) that the above-jnentioiied 10,000 roubles may be 
released as the property of the Russo-Chinese Bank ; (2) that 
when the money is released, an order may be made at the same 
time for the attachment of the property to seciire execution of 
his claim against the bank ; and (3) that even if the first 
petition be not granted, if the property be released for any other 
reason, attachment of the property be granted to secure the 
execution of his claim. To prove the above facts the petitioner 
has produced copies of the order for provisional attachment, 
the record of the attachment of the moveable property, and the 
record of the continuance of attachment of -the same. 

The substance of the argument of the Procurator is that 
the petitioner has no locus standi, as it is clear that he is 
not directly interested in the money, even from hip own state- 
ments, and even if it is admitted that his petition can be enter- 
tained, there is no reason to release the 10,000 roubles on that 
account ; and that the petition for provisional attachment is 
irregular, as a Prize Court ought not to issue an order for the 
attachment of captured goods. 

After due consideration, the conclusion of the Court is as 
follows : — According to Article 16 of the Prize Court Regulations.* 
an interested party, who desires to make a claim, must file it 
within 30 days, counting from the day after the advertisement, 
and any claim made after the lapse of this period is to be rejected. 
This Court advertised in the Official Gazette, on the 1st of March 
1904, that claims might be made in regard to the 10,000 roubles, 
and it is clear that no claim could be accepted after 30 days, 
reckoned from the day after the advertisement. It will be seen 

* App. A. 



Cargo ex ''Mukden," Yuan-tsu-chuang'' s Petition. 23 

tliat the petition filed iinder date of the 18th of March, 1904, says 
' . . . the sum of 10,000 roubles, which is part of the cargo 
' of the Russian steamship ' Mukden,' belongs to the Russo- 
' Chinese Bank, and if these 10,000 roubles be condemned 
' as prize, the petitioner will not be able to attach them as 
' moveable property under the order, and consequently his 
' interest will be injured." And under the heading of " Request," 
he asks that " the 10,000 roubles carried by the captured 
' Russian steamer ' Mukden ' may be attached as the property 
' of the Russo-Chinese Bank according to the Order for the 
' provisional attachment of moveable property. No. 36 of 1904, 
' issued by the Tokio District Court." From the facts, it 
is clear that the object of the petition under consideration 
was only a request for provisional attachment. At the time of 
the oral trial on the 20th of April 1904, the attorney of the 
petitioner presented an oral petition requesting the release of 
the 10,000 roubles, and on the same day he filed a document to 
the same effect as an additional petition. But the procedure of 
provisional attachment, being a measure for guaranteeing com- 
pulsory execiition, is of an entirely different nature from an 
order for the release of goods, and consequently it is not per- 
missible to supplement a petition for attachment \)j one for 
release. If the petition for release be considered a separate 
petition, the period allowed for making it had passed, and con- 
sequently it cannot be accepted. As to the request for attach- 
ment, it cannot be granted, as there are no provisions in the 
Prize Court Regulations from which it may be inferred that 
attachment of captured goods can be granted. For these 
reasons, decision is given as above. 



24 

CARGO ex "MUKDEN." 
GOUDEREAU'S CLAIM (No. 1). 

Property on hoard an enemy ship — Consignment to Commercial Agent of a 
neutral Power resident in enemy territory — Official documents — Release. 

A parcel of official documents addressed to the Frencli Commercial Agent 
at Vladivostock was captured on board the Russian steamship " Mukden." 

Held that the documents should be released, being documents sent by a 
neutral Power to one of its officials in the enemy territory. 

The " Mukden " was a Russian steamer which was captured 
by a Japanese warship on February 6th, 1904, at Fusan, in 
Corea. Among the cargo were some papers for the French 
Commercial Agent at Vladivostock. A claim was entered by 
the French Consular Officer at Nagasaki. 

Decision of the Sasebo Prize Courts 
The small box of official documents carried by the 
steamship "Mukden" is released. 

Facts and Reasons. 

The goods in this case wei-e shipped in the French East 
Asiatic Company's steamship " Cambodge " at Marseilles, France, 
and transhipped at Shanghai to the Chinese Eastern Railway 
Company's steamship " Mukden " ; they consisted of a small 
box marked L.P.I, despatched to the address of the French 
Commercial Agent at Vladivostock, and were seized on board 
the " Mukden " in Fusan Harbour, Corea, on February 6th, 1904, 
by the Japanese warship " Heiyen." 

The above facts appear from the claimant's statement, the 
documents put forward by him, the written statement of 
Lieutenant Yoshimura, acting for the captain of the " Heiyen," 
the minutes of the evidence of Serge Visniovski and Alexander 
Ivanovich Kanajev, first and second officers of the " Mukden," 
^,nd the manifest, bills of lading, log, &c., of the vessel. 

The substance of the claimant's argument is that these goods, 
being official documents, should be released. 

The substance of the Procurator's opinion is that the goods 
in this case, belonging to the French Commercial Agent at 
Vladivostock, ought, in consideration of their nature, to be, 
released as the claimant contends. 

This Court considers that it should be recognised as a rule 
of International Law that goods whicli a neutral Government 
sends to one of its officials residing in one of the belligerent 
countries are to be respected. It is accordingly proper to 
release the box of official documents which form the subject of 
this claim. 

Decision is therefore given as above. 

* Published in the Official Gazette, Tokio, June 23rd, 1904. 



25 

CARGO ex "MUKDEN." 
YAK YUK CHANG'S CLAIM. 

Enemy property on board an enemy ship — Consignment by a neutral to a 
subject of neutral nationality resident in enemy territory — Contract in 
the ordinary course of business made before the outbreak of wai — Owner- 
ship of property in transitu — Condemnation. 

One hundred oases of oranges were shipped by a Chinese subject resident 
in Japan to a Chinese subject resident in Vladivostock in the ordinary course 
of business before the outbreak of war, and were captured on board an 
enemy ship. 

Held that the goods were enemy property. 

The "Mukdea" was a Russian ship, and was captured by a 
Japanese warship on February 6th, 1904, at Fusan, in Corea. 
The cargo included 100 cases of oranges shipped by Yak Yuk 
Chang, a Chinese subject living in Japan, to another Chinese 
subject living at Vladivostock. The shipment was made before 
the outbreak of war. A claim for these goods was entered by 
Yak Yuk Chang. The case came before the Sasebo Prize Court 
on May 26t]i, when it was held that the goods were enemy 
goods. 

Decision of the Sasebo Prize Court." 

One hundred boxes of oranges, carried by the steamship 
"Mukden," are condemned. 

Facts and Reasons. 

The goods in this case, 100 boxes of oranges, were shipped 
in the Russian steamship "Mukden" and seized on board her 
in transitu to the Russian port of Vladivostock on Febmary 6th, 
1904, in Fusan, Corea, by the Japanese warship " Heiyen." 

The above facts are not only admitted by the claimant, but 
appear from the written statement of Lieutenant Yoshimura, 
I.J.N., acting for the captain of -the "Heiyen," the evidence 
of the first and second officers of the " Mukden," the ship's 
manifest, &c., &c. 

The substance of the argument of the claimant is that 
Japan and Russia entered into a state of war on February 5th, 
1904, so that enemy goods were jjroperly liable to capture, 
but that the goods in this case, being goods which the claimant 
was sending under a previous contract in the ordinary way of 
business to Yuan-teh-Chih, a Chinese resident in Vladivostock, 
were not enemy goods, nor were they warlike implements nbr 
articles of food suitable for soldiers. Further, since they were 
shipped in the " Mukden " before Japan and Russia had entered 

* Published in the Official Gazette, Tokio, June 23rd, 1904. 



26 Cargo ex " Mukden," Yah Yuk Changs Claim. 

into a state of war, there was no justification for their capture, 
and they should therefore be released immediately. 

The substance of the Procurator's argument is that the 
contentions of the claimant are entirely groundless, and that 
the goods in this case should be adjudged prize. 
• 

This Court considers that, according to the rules and usage 
of existing International Law, ejiemy goods in an enemy ship 
are liable to capture, irrespective of whether they are or are not 
contraband or of whether they were or were not despatched 
before the outbreak of war. The question as to whether goods 
are or are not enemy goods is determined by the domicile of 
their owner. Further, the ownership of cargo, so long as there 
is no proof to the contrary, is to be deemed to lie with the 
consignee. The goods in this case were goods shipped in an 
enemy vessel, the " Mukden," and sent to a person permanently 
residing and carrying on business at Vladivostock, in the enemy 
country ; moreover, the claimant has brought forward no proof 
to show that the ownership of the goods lay with him. They 
must therefore be condemned as enemj' goods and decision is 
accordingly given as stated above.* 

* A claim by another Chinese subject, Tan-shiu-hyong, was dismissed on 
the same day. The arguments and decision, being identical with those in 
the above case, are not printed. 



27 



CARGO ex "MUKDEN." 
GOUDEREAUVS CLAIM (No. 2). 

Property captured on hoard an enemy ship — Claim by the Consular repre- 
sentative of a neutral Power having no interest in the property — " Person 
interested " within the meaning of the Japanese Prize Regulations — Claim, 
rejected. 

A claim having teen made by the French Consular Officer for the 
release of property in which he had no interest, upon the ground that it 
was his duty to protect the interests of French subjects — 

Held that the claim must be dismissed without going into the merits of 
the case, as the claimant was not a " party interested " in the property 
within the meaning of the Japanese Prize Regulations. 

The " Mukden " was a Russian ship, and was captured by a 
Japanese warship on February 6th, la04, at Fusan, in Corea. 
The cargo comprised some parcels alleged to belong to French 
citizens. A claim for these parcels was entered by a French 
Consular Officer, not on the ground that he had any interest in 
the goods, but on the ground that it was his duty to protect the 
interests of his fellow countrymen. The case came before the 
Sasebo Prize Court on May 2t)th, 1904, when judgment was given 
dismissing the claim. 

Decision of the Saseho Prize Court.^ 
This claim is hereby rejected. 

Facts and Reasons. 

The goods under consideration, consisting of a box of incense 
and 10 other kinds of articles, were transhipped at Shanghai 
from the French steamships " Ernest Simon " and " Cambodge " 
to the steamship " Mukden," of the Chinese Eastern Eailway 
Company of Russia, for carriage to Vladivostock, Russia, and 
were captured by the Imperial man-of-war "Heiyen," at Fusan, 
on the 6th of Felaruary 1904, on board the " Mukden." 

The above facts appear from the statement of Lieutenant 
N. Yoshimura, representing the captain of the " Heiyen," 
the statements of Serge Visniovski and Alexander Ivanovich 
Kanajev, first and second officers of the " Mukden," the manifest, 
the bill of lading, log, &c. 

The substance of the claimant's argument is that the 
consignors of the goods were the Messageries Maritimes and 
the East Asiatic Company, both French companies. As the 
claimant holds an office in which it is his duty to protect the 
interests of French subjects, and as the consignee is unable to 
present a claim on account of the difficulties of communication 

* Published in the Official Gazette, Tokio, J\me 23rd, 1904. 



28 Cargo ex " Mukden," Ooudereaus Claim (No. 2). 

since the outbreak of the Russo-Japanese War, he has filed the 
claim in his capacity as Acting Vice-Oonsul, and request^s the 
release of the goods, as they are not contraband of war. 

The substance of the argument of the Procurator is that, 
although a consular officer has the duty of protecting the 
interests of the citizens of his country, he cannot be considered 
on that account to be an " interested party " within the meaning 
of the Prize Court Regulations,*' and consequently the claim 
is irregular. The goods, which are the subject of the claim, 
are enemy goods, and, therefore, they are liable to condemnation. 
One bundle of French national flags, belonging to the French 
Commercial Agent at Vladivostock, should, however, be released.! 

After due consideration, the Court concludes that, although 
a Consul's duty is to protect the interests of his countrymen 
residing in the State to which he is accredited, as is argued by 
the claimant, it is impossible to consider him on that account to 
be an " interested party " within the meaning of Article 16 of 
the Prize Court Regulations.® Moreover, neither the consignors 
nor the consignees reside in the country to which the claimant 
is accredited, and consequently this claim cannot be said to 
be regular. If a claim is irregular, it must be rejected without 
going into the merits. For these reasons, the decision has been 
given as stated above. 

* App. A. 

t This parcel was released upon a claim made by the owners of the ship. 
See p. 12. Another parcel also addressed to the French Commercial Agent 
was released upon a separate claim made by M. G-oudereati. See p. 24. 



29 



CARGO ex "MUKDEN." 
CI AIM OF THE EAST ASIATIC COMPANY. 

Property on hoard an enemy ship — Claim pi-esenied by an attorney other than 
a Japanese advocate — Japanese Prize Court Regulations — Rejection of 
the claim. 

A claim by the owners of cei-tam property captured on board an enemy 
ship was presented by an attorney other than a Japanese advocate. 

Held, that as the claim was not presented in accordance with the 
procedure laid down in Article 17 (2) of the Japanese Prize Court Regulations, 
it must be dismissed. 

The " Mukden " was a Russian ship, and was captured by a 
Japanese warship on February 6th, 1904, at Fusan, in Corea. 
She was brought before the Prize Court at Sasebo for adjudica- 
tion. A claim for certain parcels of the cargo on board was 
entered on behalf of the East Asiatic Company by means of a 
petition filed by Frederick Ringer, a British subject. Ringer 
held a power of attorney from the East Asiatic Company, but 
was not a Japanese advocate. By the Prize Court Regulations, 
the attorney for a claimant must be a Japanese advocate. The 
case came before the Prize Court on May 26th, and the claim 
was rejected without examination. 

Decision of the Saseho Prize Court/' 
The claim is hereby rejected. 

Facts and Reasons. 

These goods, consisting of paper for account-books and five 
other kinds of articles, were destined for Vladivostock, being on 
board the steamship " Mukden," of the Chinese Eastern Rail- 
way Company of Russia, and were captured by the Imperial 
man-of-war " Heiyen " in the port of Fusan, Corea, on the 6th 
of February 1904. 

The above facts appear from the statement of Lieiitenant 
N. Yoshimura, representing the captain of the "Heiyen," the 
statements of Serge Visniovski and Alexander Ivanovich Kanajev, 
first and second officers of the " Mukden," the manifest, bill of 
lading, log, &c. 

The suijstance of the claimants' argument is that as the 
goods were shipped before the outbreak of the war between 
Japan and Russia and were the property of a mercantile 
company of a neutral State, they should be released. The 
attorney of the claimants did not appear on the day of the 
hearing, though he was notified of the date. 

* Published in the Official Gazette, Tokio, June 23rd, 1904. 



30 Cargo ex " Mukden," Claim of the East Asiatic Company. 

Tte substance of the argument of the Procurator is that 
there is a defect in the qualification of the attorney ; that the 
goods, being all enemy goods, are liable to condemnation ; but 
that the paper for account-books, being of official character and 
belonging to the French Commercial Agent at Vladivostock, 
should be released.* 

After due consideration, the Court concludes that, although 
this claim has been filed by the attorney of the claimants, in 
accordance with the power of attorney given him by the repre- 
sentatives of the East Asiatic Company, Shanghai, according to 
Article 17 (2) of the -Prize Court Regulations! the attorney of 
a claimant is required to be a Japanese advocate. Consequently 
this claim cannot be said to conform to the law. And if 
the claim is not regular, it is proper to reject it without 
examining the argument of the claimants' attorney. For these 
reasons, the decision stated above has been given. 

* This parcel was released at the hearing of the claim made by the 
owners of the ship. See p. 12. t -A-pp. A. 



31 



CARGO ex "MUKDEN." 
KUNST AND ALBERS' CLAIM. 

Enemy property on hoard an enemy ship — Commencement of a state of war — 
Capture in a port of a country belonging to neither belligerent, but 
occupied during the war by the troops of both — Status of Corea in respect 
of Japanese Ordinance as to days of grace — Liability of private property 
to capture — Authority of the rules agreed upon by the Institute of Inter- 
national Law — Ownership of property in transitu — Competence of 
Japanese Prize Courts to entertain claims for damages. 

Goods captured on board the " Mukden " in Fusan Harbour consigned 
to a resident in Yladivostock were claimed by the German firm of Kunst 
and Albers, the consignors. 

Held (1) that a state of war had commenced before the date of capture ; 
(2) that Corea was not de facto neutral, but that Corean ports could not be 
regarded as ports of the Japanese Empire within the meaning of the 
Japanese Ordinance as to days of grace ; (3) that private property at sea is 
liable to capture, the rules of the Institute of International Law being only 
theoretical ; (4) that in the absence of proof to the contrary the ownership 
of property consigned to a resident in enemy territory is deemed to be in 
the consignee; (6) that Japanese Prize Courts are not competent to 
entertain claims for damages. 

TJie " Mukden" was a Russian ship, andVas captured by a 
Japanese warship, at Fusan, in Corea on February (jth, 1904. 
Among the cargo was a parcel of 10 type-writers shipped at 
Nagasaki on February 5th by the local branch of the Grerman 
firm of Kunst and Albers to a consignee domiciled at Yladi- 
vostock. A claim for the typewriters was entered by the 
consignors and was dismissed by the Sasebo Prize Court on 
May 26th, 1904. The claimants appealed to the Higher Prize 
Court. The appeal was dismissed on July 3rd, 1905. As the 
arguments and decision of the Sasebo Prize Court were similar 
to those in the proceedings on appeal, they are omitted. 

Decision of the Higher Prize Court.''' 

In the case of the capture of the cargo carried by the 
•Russian steamship "Mukden," which was captured in Fusan 
Harbour, Corea, on February 6th, 1904, by the Japanese warship 
" Heiyen," an appeal has been entered by the claimants, Kunst 
and Albers, against a decision given by the Sasebo Prize Court 
on May 26th, 1904, condemning 10 cases of typewriters carried 
by the " Mukden," and rejecting a claim for freight on the said 
goods. 

The grounds of appeal were — 

(1) The capture of the " Mukden " by the " Heiyen," with 
these goods on board, took place at 2.45 p.m. on February 6th, 
1904, while, according to the history of the diplomatic nego- 

* Published in the Official Gazette, Tokio, July 15th, 1906, 



32 Cargo ex " Mukden," Kunst and Alhers' Claim. 

tiations published by the Minister for Foreign Affairs Baron 
Komura, the -ultimatum was delivered by the Japanese Minister, 
M. Kurino, to the Russian Government at 4 p.m. on February 6th. 
That is to say, the capture was unlawful in that it took place 
prior to the existence of a state of war. Before February 6th, that 
is on February 5th, a state of war did not exist, as is clear from 
the fact that the clearance certificate for the " Mukden " was 
issued by the Nagasaki Custom House, which is a Japanese 
Government Office. 

(2) 2.45 p.m. on February 6th at Fusan corresponds to 
about 7 a.m. on February 6th in the Russian capital, from which 
it follows that unless the Prize Court found that the rupture of 
diplomatic negotiations occurred before 7 a.m. on February 6th, 
the decision condemning the goods was wrong. But the Court 
clearly could not find that this was the fact, and the original 
decision was therefore wrong. 

(3) The place of capture in this case was Fusan Harbour, 
and Corea, at least until the conclusion of the alliance between 
Japan and Corea on February 27th, 1904, Avas a neutral country. 
In the decision of the Prize Court it was merely stated that 
Corea could not be considered as a neutral in point of fact, but 
it was not shown why she was not a neutral country, or, if she 
was not a neutral country, whether she was to be regarded as an 
enemy country ; or, again, whether, as regards her position in 
the war, she was a country allied with Japan, and obliged to 
act with her. The Prize Court, therefore, did not pay sufficient 
attention to the facts, and arrived at a decision which was not 
in accordance with the evidence, and this is a reason for the 
reversal of the original decision and the release of these goods. 

(4) Even assuming that the Prize Court was right in 
deciding that Corea was not a neutral country, then the Court 
must have regarded that country during the war as an extension 
of the Japanese Empire, and the port of Fusan should be 
regarded as a harbour in the Empire, and accordingly it 
follows that these goods together with the vessel ought to 
receive the protection of Imperial Ordinance No. 20 of 1904.'" 

(5) The cargo in this ,case was shipped at Nagasaki on 
February 5th, 1904, and at the time of shipment and also the 
time of capture the claimants were completely unaware of the 
existence of the war. Further, it is plain that the cargo was not 
carried on behalf of the enemy, and that there was no intention 
to injure Japan. Consequently, according to the regulations as 
to capture at sea agreed on by the Institute of International 
Law at the Conference of 1882,f the goods now in question are 
not liable to capture. It is true that Japan never made a public 
declaration of her accession to the regulutions adopted by this 
Conference, but International Law has no written code formally 
promulgated. Upon the opinions of a majority of scholars, and 

* App C. 

t Annuaire de I'lnstitut de Droit International, 1882-83, p. 213. 



Cargo ex "Mukden," Kunst and Alhers Claim. 3;') 

the laws recognised by a majority of the Powers, are based the 
principles of International Law, and sncli regulations as tliose 
referred to ought to be fiiUy respected. :. , 

(6) War is a relation between state and state, and private 
individuals are not directly concerned. It is therefore just 
and reasonable to take as a fundamental principle the inviola- 
bility of private property at sea as well as on land, and to treat 
goods which do not in any way partake of the nature of contra- 
band as not liable to capture, even though they are the 
property of an enemy subject. Let the Japanese Empire, 
Avhile engaged in war with a notorious enemy' of humanity 
and peace, reject those confused and evil precedents, the so- 
called principles of those Powers which adjust reason to accortl 
with their individual interest. Let Japan enhance her prestige 
as a nation by leading the way to truth, and witli a broad 
mind put into practice for the first time the fundamental 
principle that private property even at sea is inviolable. 

(7) Goods in transitu become the property of the consignee 
only when deliveiy is made upon arrival at their destination. 
The consignor does not immediately lose his right of property 
upon shipment ; until the articles have reached their destina- 
tion and been delivered to the consignee, the consignor has 
both rights and liabilities. For example, where the goods 
earned are lost, he has the right to claim damages from tlie 
master, while the consignee is only liable when he has taken 
delivery of the goods, and so on. These are the provisions of 
Book III., Chapter 8, and Book V., Chapter 3 of the Japanese 
Commercial Code, and there is no reason to depart from these" 
provisions simply because the question now under considera- 
tion is one of International Law. The consignors of the goods 
in this case were a fiiTa of German nationality i-esident in 
Nagasaki, and there is no doubt that until the goods were 
delivered to the consignee they remained the property of the 
consignors. Again, the consignors, according to the system 
which adopts nationality as the test, were neutrals, and, accord- 
ing to the system which adopts domicile, were Japanese, so that 
from either point of view the goods in question ought not to be^ 
condemned as enemy property. 

(8) The actual loss of freight charges, sustained by t]i& 
claimants owing -to the. wrongful action of the State ought pro- 
perly to be made good by the State. Such matters, so long- 
as they are connected with the main case, are included in the 
Tvords "Prize Cases" in Article 1 of the Prize Court Regulations.-'^ 

The substance of the reply of the Procurator of the Sasebo 
Prize Court was as follows: — What is called "a state of 
war " in International Law begins when, as the outcome of 
the intention of a Power to open hostilities, some hostile act 

* App. A. 

E 12730 



3i Cargo ex " Miihden," Kimst and Albem'. Claim. 

occurs. From the beginning cxfr tlie xliplomatic negotiations on 
the.iCorean and .Manc]iurian;5iqujeatious,:,.Eassi;aj by; careMly 
delaying her replies, while; hastening her pjreparations for, war. 
showed her determination to comraence hoBtiiities;,! Accordingly 
on February Sth', 1904, Japan senther notifioation of the. rupture 
-of diplomatic relation s. with Russia, and her fleet sailed from 
Sas^bo at; 7,a.m: on the 6th Feln-uary to engage.thq Russian 
fleet. These were nothing less than hostile actions,: the outcome 
of . the intention to open hostilities.- And since tlie seizure, of 
the "Mukden" was subsequent theretOj. the -conclusion , of , the 
Prize Court that on.Febrnary. 6th a state, of war i already existed 
between Japan and Russia was correct. ; That- .Corea was not 
a neutral country is a fact whicJi was self-evident and. publicly 
known, inasmuch as. she was unabte to < protect herself, and 
was, in fact, the occasion of the war. ;No evidence wasiitherefore 
■I'equired to support the conclusion of the Court. . The waters in 
which capture is forbidden bj'^IntemationaL Law are only the 
.ports and territorial waters of a neutral state.. Consequently, in 
deciding the legality or otherwise of .the capture,, it isL sufficient 
to decide merely whether Corea waswon.was: not neutral, and 
superfluous to inquire whether she was an enemy or an ally. 
Therefore, the decision of, the Prize Court, which merely .declared 
that Corea was not a neutral country, is:not open to obJBCtion. 
Again, since thereis nothing in the original decision which could 
be interpreted as treating Corea as an extension, of the Japanese 
Empire, there is no need to deal with the claimants' fourth ]X)int. 
The regulations as to capture at sea,, drawn up by;. the 
Institute of International Law in 1882,® are no more than the 
private opinion of scholars, and cannot yet be regarded as 
fundamental principles of International Law. That enemy 
cargo on board an enemy ship is liable to condemnatiojij.even 
though private property, is a leading principle lof existing Inter- 
national Prize Law, and is recognised: alike by the Declaratioii 
of Paris of 1856 and by the Japanese Prize Regulations, so that 
this principle must b& applied to the ;present. case as a matter of 
course. Generally speaking, the question whether, goods are or 
are not enemy goods is decided according to the domicile of 
their owner, while the property in goods despatched to a con- 
signee in an enemy country is to be regardedj'iaithe absence of 
special proof to the contrary, as having passed to the consignee 
at the time of shipment. But the consignee of these goods 
resided at Vladivostock, in enemy territory, and the; claimants 
did not prove that at the time of capture the right of property 
therein was _ still vested in the consignors. Consequently, the 
original decision properly regarded. them as enemy good& , With 
regard to the claim for compensation, according to the Prize 
Court Regulations,! this does not fall withiifi: the jurisdietio;& 
of. a Prize Court, and; the original decision, therefore, rightly 



See note f on p. 32. f App. A. 



Cargo ex " MuMen" ^unst and Albers' Claim. 35 

rejected this claim. None of the grounds of this appeal having 
any validity, it should be dismissed; 

The reasons for the decision of the Court are as follows : — 

(The 'decision upoii' the groiinds raised 'in paragraphs 1 and 
2 of th^. appeal being identical, with those set out in the case of 
the clalip. fprtheTelease of the ship, arenot printed. - See p. 15.) 

In paragraph 3 of the appeal the appellants argue that as the 
place of capture was Fusan Harbour, and as Corea was, at any 
late prior, to the 27th February 1904, >the date of the alliance 
'between Japan and Gorea, a neutralcountry, the'gobds should be 
released. But, in relation to the Russo-Japanese' wal*, Corea from 
the outsetj assented to. the landing and transit of Japanese troops, 
and at the beginning of hostilities fighting took, place on Corean 
territory. Corea cannot,, therefore, be regarded as what is 
tisually called a neutral coimtiy. This concltision 'havirig 'been 
•reached, there is nbjustifibatioli for holding the capture unlawful 
on the ground that it took place in territorial waters, and, there- 
fore, it cannot be said that the Sasebo Prize Court was ■wtong in 
giving no further explanation of the status of Cbrea bey oriel 
showing that it was not a neutral coimtiy. The objection raised 
in paragraph 3 pf the appeal is consequently groundless. Again, 
since the fact that Corea is hot a neutral country does not imply 
that a Corean port is a jjort of the Ja'paiiese Einpire, the fourth 
^oint of the appeal also fails. Paragraph 5 of the appeal is a 
statement of a particular theory, and such theories cannot yet 
be regarded as rules of International Law. Again,paragraph 6 
•expresses nothing more than the appellants' individual hopes, 
and as it is expressly recognised by International Law that even 
private .property is subject to capture at sea, the ,fi,fth and sixth 
points of the appeal fail. Paragraph 7 of the appeal states 
that the ownership of the goods in quesiion was, vested in the 
consignors, and that they ought lidt, therefore, to he condemned 
as enemy propertj'. But the rule that goods, which a person hot 
domiciled in enemy territoiy sends in' time of war by ah enemy 
ship, addressed to a consignee in enemy territqrj', are, invested 
with a hostile character, and may accordingly be condemned, is 
recognised by international usage, arid this Court considers the 
mile to 'be conformable to reason. In paragraph 8 the appellants 
maintain that the Saisebb Prize Court Avrorigly rejected a claim 
for the repayment of freight, but' the Japanese . Prize Court 
Regulatioiis do not assign! the investigation of damages to Prize 
Courts and,' therefore;, the last point also fails. . 

' The appeal is thei'efore dismissed.* 

* An appeal against the decision of the Sasebo Prize Court upon a claim 
by Ahrens & Co. was dismissed on the same day. The arguments and 
decision a,re identical with, this case. Similar decisioas were given in the 
ease of ^slainis to parcels of cargo consigned' by the American Trading 
Company to Arthur W. Taylor and Sarah Elizabeth Smith respectively, both 
residents in Vladivostock. 

c 2 



36 



CAKGO ex "MUKDEN." 
CLAIM OF THE RUSSO-CHINESE BANK. 

Banking Corporation with head office and branches in Russian territory — 
Branch registered in Japan according to Japanese lain — Consignment of 
specie by Japanese branch to Vladivostock branch — Capture on enemy; 
ship — Condemnation. . ■•. 

Specie was consigned by the Nagasaki branch of the Busso- Chinese 
Bank to the Vladivostock branch of the same bank, the head office of which 
was in Russia. The bill of lading was made out for delivery at Vladi- 
vostock. 

Held that the specie' was the property of the consignee branch, and 
liable to condemnation. 

The "Mukden" avus a Russian ship and was captured by a 
Japanese waisliip on February 6th, 1904, at Fusan in Corea.. 
Among the cargo was some specie consigned by the Nagasaki 
branch of the Russo-Chinese bank to the Vladivostock branch. 
This specie was condemned by the Sasebo Piize Cotu-t. An 
appeal was entered by the bank, but Avas dismissed by the 
Higher Prize Court on July 3rd, 1905. The facts of the case' 
are set out in the arguments and decision of the Higher Prize 
Court. Other arguments were advanced in support of the' 
appeal, but as these and the decision upon them are identical 
with those in other cases, only the arguments and decision 
upon the point peculiar to this case are printed. 

Decision of the Higher Prise Court.'' 

The third argument of the claimants was as follows : — 
This cargo was despatched from the Nagasaki branch of the 
Russo-Chinese Bank to the branch at Vladivostock, and though 
the head office of the Russo-Chinese Bank is situated in Russia, 
the branch which claims in this case, having been, registered in 
accordance with the provisions of the Japanese Commercial 
Code, continued to carry on its business, even after the opening 
of hostilities, in the Japanese Empire, so that the cargo in 
question which belongs to the claimants ought to be released, 
although the vessel herself was liable to capture. Fm-tlier, 
although the Prize Court held that there is no evidence of the 
claimants' ownership, the bill of lading clearly proves the 
ownership, and, since the holder of the bill of lading can only 
take delivery of goods at their destination, the destination 
having not yet been reached, the captured goods clearly 
remained the property of the shipper. 

The answer of tlie Procurator of tlie Sasebo Prize Court was 
as follows : — 



* Published in the Official Gazette of July 17th, 1905. 



Cargo ex " Mukden," Claim of the Ihisno-Cliviese Bank. 37 

. . . . The cliaracter of the cargo must be determined by 
the domicile of the owner, and cargo despatched to a consignee 
in enemy territory must be regarded as having become the 
property of the consignee at the time of its despatch. The 
appellants argue that as the holder of the bill of lading can 
only take deliveiy of goods at their destination, this cargo, 
having been captured before reaching its destination, remained 
tlie property of tlie shipper, so that the bill of lading is clear 
proof of the claimants' ownership. But, where the consignee 
of cargo which is at sea in time of war is an enemy, the 
capture must be deemed to be delivery to a consignee of an 
enemy country, since the belligerent succeeds to all the rights 
of the enem3^ 



The conclusion of the Court is as follows : — 

In their third argument the claimants argue that, since the 
right of property in the cargo in qiiestion was vested in the 
clairnants until it reached its destination, it ought to be 
released. But it is recognised by international usage that 
goods despatched by a person domiciled outside an enemy 
country to a consignee in enemy territoiy Avliile on board an 
enemy ship in time of war, are invested with a hostile character, 
and accordingly may be condemned, and tliis Court considers 
this nxle to be conformable to reason. 

The appeal is therefore dismissed. 



38 



CARGO ex "MUKDEN." 
HOLME, RINGER. & CO.'S< CLAIM. 

, Enemy property m an enemy ship — Condemnation^^Appeal— ^Failure of 
attorney to produce authority to appeal — Appeal dismissed. 

The Sasebo Prize Court hating COnaemned a parcel of cargo consigned 
by a British firm to a firm carrying on business at Vladivostock, an appeal 
*afe presented.'. The attorney of the claimants failed to produce any docu-; 
mept authorising him to present the appeal. 

Held that the appeal must be dismissed. 

In this case the Sasebo Prize Court, on the 26th May 1904^" 
condemned as enemy property a parcel of goods consigned to 
a firm carrying on business in Vladivostock, the grounds for 
the decision being the same as in other cases.*- -The claimants, 
Hplme, Ringer & ,Co., appealed, but the attorney failed to 
produce documents proving hig authority. 

Decision of the Higher Prize Court. 

f'? The 'appeal in -this; case against the decision of the Sasebo 
Prize Court of the 26th May 1904, is dismissed,- as the attorney 
has not produced any documents proving- his . authority to 
appeal. 

Given in the Higher Prize Court, the 3rd July 1905. 



30 



THE "ROSSIA." 

Eneiui/ ship-~Japet}iese Ordinance as to days of grace — AppUeability to ships 
caphired hefore ^publication 'of the Ordinance — AppUcahility to ships not 
carrying cargo — Limits of territorial waters — Proof ^ ownership of 
captured vessel— -Persons entitled to present claims. 

A. Russian merchAnt vessel was captured on the 7tli February 1904, on a 
voyage from Dalny to Karatsu; at a point 6 miles from the coast of Corea. 
She had no cargo on hoard at the time. ' 

Held by the Saseboi Prize Court (1) that the ship was liable to condemna- 
tion as an enemy ship ;^2/) that the' Japanese Ordinance o£ 9th Februaiy 
1904,* did not apply to ships ca5)tured before that date, or to sliips not 
cai'rying cargo ; (3) that the limit of territorial watel's' ' is 3 nautical miles 
fi'om the coast. 

■ HeldjOn- appeal, by the Higher Prize Court, that the clkimamts had not 
proved that they were owners of the ship. 

In the absence of clear proof to the contrary, the o\vnerBhip of a 
captured vessel must be concluded from the ship's papers. 

The " Rossda,"- -a Russian mercliaiit vessel, after discharging 
a cargo of coal- at Dalny, left that port on the 5th February 
1 904, "without cargo,* i to return to Karatsu. : She was captured 
at 6.30 a.ni.'on. the 7th Februaiy, at a point 6 nautical miles 
from the coast of Gorea. On Fehi?uary 9th, 1904, the Japanese 
Government issued' an Ordinance* granting 'd^ys of grace to 
certain enemy ships, 

A claim was entered by one Seestrand;' the representative 
of I{euss & Co.; of : St. Petersburg, but according to the ship's 
papers the registered owner was one Mordovich. The Sasebo 
Prize Cou) t treated: Reuss & Co. as the owners, and condemned 
the vessel as an enemy ship. 

Decision of the Sasebo Prize Goiirt.'\ 
The steamship " Rossia " is condemned. 

Facts and Reasons. 

The "Rossia/; is a A^essel owned by Reuss & Oo^, of 
St. Petersburg, having St. Petersburg for her home port, and 
engaged in the transport of passengers and merchandise under 
the Russian merphant flag. On December 14th, 1903, the 
firm, of Kunst...and, Albers, of Vladivostock, chartered this 
vessel from the- owners' agents, and she made more than one 
voyage carrying coal from Karatsu to Dalny. On January 28th, 
1904, she left KaratSu on her third voyage ; on February 5th 

* App. C. . 

t Published in the Official Gazette, Tokio, June 7th, 1906. 



40 The " Bossia." 

she left Dalny, and, while on the return voyage to Karatsu, at 
about 6.30 a.m. on February 7th, off Kushingan, Oorea, she was 
ordered to stop by the Japanese warship "Tatsuta," and 
captured by the Japanese warship " Daiclm Maru." Slie 
carried no cargo at the time. 

- . The above facts are established by the written statement 
and certificate of the acting commander of the" Daichu Maru,'| 
the evidence of the master and second engineer of the " Hossia," 
the ship's certificate of registry, charter-party, the log, and the 
port clearance issued by the Dalny Harbour Office. 

The substance of the argument for the c]aimants| was :^ 

(1)' The vessel should be exempt from capture as enjoying 
the special privileges conferred by Article 3 of Imperial 
Ordinance No.. 20 of February 9th, IGOl,* since exemption 
from capture must include exemption from condemnation as 
prize. Though the capture of this vessel was effected prior to 
February 9th, so long as she was not yet declared to be a 
prize, she should be exempted from condemnation in accord- 
ance with the intention of the Ordinance, and, further, because 
the spirit inspiring the Ordinance is the protection of private 
property at sea, and this fundamental principle of Inter- 
national Law should be applied by the Prize Courts in cases 
of capture prior to the promulgation of the Ordinance. 

(2); The place of capture of this vessel was 5 or 6 nautical 
miles from Kushingan, Corea, as is clear fi'om the master's 
statement. Since the territorial waters of a state are held by 
recent authorities on International Law to extend 6 nautical 
miles from the coast, the capture took place in neutral territorial 
waters, and was therefore unlawful. 

J'or the above reasons the vessel should be released. 

The substance of the Procurator's argument was as 
^follows : — Imperial Ordinance No. 20'-' cannot be applied retro- 
spectively to past captures. To make it retrospective an 
express pj-ovision is requisite. Again, the 6-mile limit theory 
is not a general principle of present International Law, and, 
moj'eover, since there is no reason to regard Oorea as a neutral 
state, even assuming the capture to have taken place in her 
territorial waters, the capture was not unlawful. 

The conclusions of the Court are as follows : — 
(1) The exemption from capture granted by Imperial Ordi- 
nance No. 20* of course includes exemption from condemnation 

*^App.O., 

t It was also argued on behalf of the claimants that the capture was 
invalid On the ground that it took place before the commencement of a 
state of war. As precisely similar arguments are fully reported in the cases 
of the " Ekaterinoslav " (p. 1), and the " Mukden " (p. 12), they are omitted 
here. 



The " Rossia." 41 

as prize. But this Ordinance is only applicable to captures 
made on and after the date of its coming into force, that is,, 
from February 9th, and to take it as applying to captures 
effected before the 9th is to regard it as having retrospective 
effect -without any, express provision to that effect appearing 
in the Ordinance; vrhich is plainly a wrong interpretation, to 
say nothing of the fact that the Ordinance does not apply to 
a ship where, as in the present case, there is no cargo to 
discharge. This being the case, although the claimants argue 
that such a vessel ought from the point of view of International 
Law properly to be exempt from capture, the capture of an 
enemy ship in war time is admitted as a general principle of 
International Law ; and International Law gives no grounds 
for granting such a privilege as this, which is beyond the 
provisions of the law of an individual state. 

(2) The limit of territorial waters generally recognised by 
existing International Law is 3 nautical miles from the coast. 
Therefore the capture of this vessel at sea, 6 nautical miles 
from Kushingan, Corea, was a capture on the high seas, and 
in no way unlawful. Accordingly the claimants' contentions 
on this point also fail. 

The capture being for the above reasons lawful, the vessel 
shoixld be condemned, and judgment is accordingly given as 
above. 



The claimants appealed against this decision to the Higher 
Prize Court, which dismissed the appeal on the 30th JV^ay, 1905. 
The arguments, which relate only to the points raised in the 
Sasebo Prize Court as to which the Higher Court expressed no 
opinion, are omitted. 

Decision of the Higher Prize Court."" 

This, is an appeal by one Seestrand, the representative of 
Eeuss & Co., of St. Petersburg, against the decision of the 
Sasebo Prize Court, condemning the steamship " Rossia." 

The Court in the first place, in accordance with the powers 
vested in it, investigates the legality of this appeal, and finds 
that one Seestrand, the representative of Peuss & Co. of 
St. Petersburg, alleging that the "Rossia" belongs to that 
Company, applied to the Sasebo Prize Court for the release of 
the " Rossia," and further appealed to this Court against the 
decision of the Prize Court. 

So long as there is no clear proof to the contrary, the owner- 
ship of a captured vessel must be concluded from the ship's 



* Published in the Ofieicd Gazette, Tokio, June 7th, 1905. 



42 The " Rossia.:' 

papers on board. According to the certificate of [registry 
on board tlie ship at the time of capture, it is plain that 
nhe belonged to' 'Adolf Salirtovich Mordovich, while there is 
nothing to show that she belonged to Reuss & Co., and this 
appeal must be 'dismissed withoxit reference to'the validity of its 
grounds. 

The decision is therefore as follows : — 
This appeal is dismissed. 



43 

THE "ROS&IA." 
W. H. GILL & CO.'S CLAIM. 

Enemy ship — Neidrql sy^ject ha/ving a Uefn, for disbursements— Claim for 
release, declaration of preferential right, or compensation — Absolute right 
of captor — Jurisdiction of Japanese Prize Courts. 

A ship wJiicb is lawful prize is not entitled to release on the ground, 
that n6titrai persons have a claim against her. 

The -rights of sL captor over a prize condemned as enemy property are 
absolute and not subject to prior rights of third parties. ' ' 

'A petition by such third parties for compeiisaition by the Treasury is- 
not within the jurisdiction of a Prize Court; 

The " Rossia " was a Russian merchant ship, and was 
captured by a Japanese warship on Ffehruary 7th, 1904;, off the. 
coast' of Oprea. 

The "Rossia"* had been at Kobe from No-vember 14tk 
to December 31st, 1903. During this period Messrs. W. H, 
Gill & Co., a British firm cariying on business at Kobey 
def fayed, at the reqiiest of the ship's' Vladivostock kgeu'ts, 
certain expenses in connection with the contiriuaiice of liei- 
voyage.. These, together with the commissioh due to Gill <i Co. 
for taking charge of the vessel's afEaii's 'during lier stajr at Kobe, 
amomited to 18,116.91 yen. Gill &' Co; deceived as freiglit the 
sum of 3,043.51 yen, and accordingly contended that they had' 
a claim against the ship for 15,073.40 yen. ' ''' 

' After the capture of the " Rossiia "'Gill & Co^ eh'tered a 
claim in the' Sasebo Prize Court, asking ' (1) that the vessel 
should be released ; (2) alternatively, 'that their rights against 
her should be declared to be preferential rights ; (3) alterna- 
tively, that their claim should be paid by tlie Imperial 
Treasury. 

The case came before the Sasebo Prize Court on May 26th, 
1904,. when judgment was given dismissing the claim. 

Decision of the Sasebo Prise Court :'\' 
This claim is dismissed. 

Facts and Jieasons. 

The main points of the claimants' case were as follows : — 
The " Rossia " arrived at Kobe on November 14th last, 
and left on the 31st of the following month, and during the 
time she was at Kobe the claimants, at the request of the 
" Rossia's " agents at Vladivostock, defrayed the expenses 
necessary for the continuance of her voyage. These, -added to 

* See p. 39. 

t Published in the Official Gazette, Tokio, June 22nd, 1904. 



44 The " Rossia," W. H. Gill tt Co.'s Glaiyn. 

the commission due ior taking charge of all matters connected 
with the vessel during her stay in the port, amounted altogether 
to the sum of 18,116.91 yen. , Deducting the sum of 3,043.51 yen 
received by the claimants as freight from shippers of cargo, 
there remains the sum of 15,073.40 yen which they were 
entitled to receive from the owners. Before, however, this sum 
was received, the vessel was captured by a Japanese War- 
ship on the 7th Februarj"- last. Accordingly the claimants, in 
order to obtain payment, ask : — 

(1) That the rights of neutrals in regard to prizes of war 
m.ay be respected, and the "Rossia" released. IE this con- 
tention is not admitted, they point out that the captvire of 
the vessel was effected at 7 a.m. on the 7th of February, 1904, 
and that, although notice of the rupture of diplomatic relations 
between Japan and Russia was sent by Japan to the Russian 
Government on the 6th of that month, it is not clear at Avhat 
hour it was despatched, and that therefore if it be held, as it 
niay fairly be, that the notice was received at midnight on 
the day in question, that Iiom- at St. Petersburg would 
correspond both in Japan and Corea with 8 a.m., or later, on 
February 7th, and therefore, the vessel having been captured 
before a state of war existed, the capture was illegal, and she 
ought to be released. 

(2) That if the release of the vessel is not granted, a decision 
may be given to the effect that the claimants' rights in regard 
to the vessel in question are preferential rights in respect of 
the prize. 

(3) That if neither of the above requests is granted, a 
decision may be given to the effect that the claim must be 
satisfied by the Imperial Treasury. 

The main points of the Procurator's argument are as 
follows : — • 

The contentions advanced by the claimants in regard to 
the release of the " Rossia " are inadmissible. But if it be 
held that the claim is based on the fact of their having 
defrayed expenses necessary for the upkeep of the vessel and 
the continuance of the voyage, it might logically be held, 
when the vessel is condemned, that the claim still holds good 
against the prize. There is, however, no clear ruling on this 
point in the Japanese Prize Court Regulations,"* and therefore it 
is doubtful whether a Prize Court could give a decision to this 
effect. 

The conclusion of the Court is as follows : — 

In view of the documentary evidence furnished by the 

claimants, and the verbal evidence given by Peter Grunberg, 

the master of the " Rossia," to the Court, the existence of the 

claim is recognised. But in the first place, it is clear that the 

* App. A. 



The " Rossia," W. li. Gill & Co.'s Claim. 45 

vessel in question was captured after the situation had 
developed into a state of war between Japan and Russia, and 
therefore the claimants' contention that the capture was 
illegal, having been effected prior to the opening of hostilities, 
is inadmissible. The vessel is consequently lawful prize, and 
therefore she cannot be released because neutral persons have 
a claim against her. 

In the second place, even though the claimants' claim arises 
from Gill & Co. having defrayed expenses necessary for the 
continuance of the voyage, not only do the Japanese Prize 
Court Regulations® make no mention of preferential riglits in 
respect of a prize, but according to International Law the 
rights of the captor over a prize which is condemned as enemy 
property are absolute, and a third party lias no right to make a 
claim in respect of such property. Consequently the claimants' 
second contention falls to the ground. 

In the third place, it follows from what has been said 
already that the claimants can have no right to claim compen- 
sation from the Treasury, but the question of compensation by 
the Treasury is beyond the jurisdiction of this Court. 

Judgment is therefore given as above. 

* App. A. 



46 



THE " ARGUN." 

iBneiny shij^—iJd^anese. Ordinance as to dm)sof igraeg^Appfiei^lMyi: ta ships 
captured before promulgation of the Ordinance — ApplicahUity to property 
of the enemy Government — Status of the Chinese Eastern' jRailviayCom- 
pany — Liability to captwre of ship carrying maiU. ' ' ""' 

The " Argun/' a steamship belonging to the Chinese Eastern Railway 
Company, was oaptui-ed Oil February 7th, 1904, whilst on a voyage from fialhy 
to Nagasaki can-ying cargo and mails. - ■ ■ > ' . 

Held by the.Sasebo PrizeCourt (1) that the ship was liable to condemna- 
tion as an eneniy,3hip; (2) that the Japanepe Ordinance No. 20 of the 9th 
February 1904 did not apply because the ship was captured before that 
Sate, and because the Chinese Eastern Railway X^oinpany was not .a, private 
Corporation bulj a State institution ; ^3) that the fact that the Ship was carry- 
ing mails afforded no ground for her- release. ; '. , 

On appeal to the Higher Prize Court, appeal' dismissed, but no opinion 
expressed. as to whether Ordinance No. 20 was applicable to ships captured 
before its prpn[iulgation. 

Tlie "Argun," a steamship belonging to the Chinese Ea&tern 
Railway Company, was captured on February 7th, 1904^ whilst 
on a voyage from Dalny to Nagasaki carrying cargo and taails. 
-After certain -prope-rty on board belonging to Japanese subjects 
had been released,* the claim of the Chinese Eastern Railway 
Company came before the Sasebo Prize Court on the 25th May, 
1904. Arguments were raised that the capture was made in 
Corean territorial waters and before the outbreak or declaration 
of war, but as these, and the decision upon them, are identical 
with those in the cases previously reported, thej^ are not 
reproduced. 

Decision of the Sasebo Prize Gourt.^ 

The steamship "Argun " and 311 roubles of Russian money 
belonging to her are hereby condemned. 

Facts and Reasons. 

The "Argan" is the property of the Chinese Eastern 
Railway Company of Russia, and is a vessel employed in the 
carriage of passengers, freight, and mails. Her usual home 
port is Dalny, China, which is situated in the district leased 
to Russia. She left Dalny on the 6th of February, 1904, and 
on her way to Nagasaki, Japan, on the 7th of the same month, 
at about 4 p.m., she was captured by the Japanese man-of-war 

* Decision of the Sasebo Prize Court, dated the 24th February 1904, and, 
reported in the Official Gazette, Tokio, of the 10th March, 1904. The decision 
merely states that the goods in question belong to Japanese subjects, and 
that there is no reason for condemnation, though the original capture was 
lawful. 

t Published in the Official Gazette, Tokio, May .29th, 1904. 



The " Argun" 47 

"Adfcuma" in.-,the; neiglibouirhood Qf-'Piial-ku-pho on tlie 
south-western coast of Corea. Tlie ship was tlien delivered to 
the man-of-war " Tainan, Mam." The '311 roubles of 'Russian 
.money were on board the ship at the time of capture;' 

The above fa;cts are admitted by the' claimants' advocate, 
and appear' i^om the statement produced! by LieutenanfN. Yoshi- 
'raura, I. J.N.. -representing the captain of. the "Taiuah^lam," the 
"evidence given by .the' master of the- ship, Karl Geitner, and 
the first officer, Alexander Schebinin, the certificate of registry, 
certificate of tonnage, certificate that the ship has passed 
examination, her log-book, &c. ' '" 

The substance of the claimants' arg'umentis as follows : — 

(2) The steamship iinder consideration is a merchantman, 

and is entitled to enjoy the privilege given by 
Imperial Ordinance No. 20 of 1904.-'- 

(3) She carried mails apd ought, therefore, to be released, 

in _ accordance with the opinion of authorities on 
International Law. 



After due consideration, the conclusion o^f the Court is as 
follows:—- , .■ 



'• As to Imperial Ordinance No. 20, it took effect from the 
■day of its promtilgation, that is, from the &th of February 1904, 
and is therefore not applicable to a case that occurred beforfe its 
promulgation. Moreover, according td'tlleai'ticlesof'the mal-ine 
transportation department of the Chinese Eastern Railway 
Company, to which the^ ship belongs, all the vessels belonging 
to that department are, in time of war o'r emergency, to be 
'at the disposal of the Russian Govermrterit and army and navy. 
Thus, if she be released, she will inci-ease the enemy's force. 
How eah the Ordinance vrhich conferred'privileg'fes on inaiocent 
'lilerchant ' vessels be donstrued as applicable to vessels of this 
description? In regardto the enemy's^mail-'ships, it is recog- 
nised by International Law that they Eire- Hable to capture, 
•unless there be a special agreement between the belligerents. 
The claim has, therefore, no foundation, and the steamshii^ 
^' Argun " is lawful prize. Consequently the nlftney belonging 
to her is also liable to condemnation; ' Thereifore judgnient is 
-given as stated above, i ■ . ■ ; 



ii.. The clain^Lanjts appealed to the Higher . Prize Court, which 
dismissed the appeal on April 25th, 1905. 

* App. C. 



48 The " Argun." 

Decision of the Higher Prise Court.'* 

An appeal lias been entered by the Chinese Eastern Rail- 
way Company against the decision of the Sasebo ^rize Court, 
given on the 26th of May 1904, in the case of the Russian 
steamship " Argun," belonging to the Chinese Eastern Raihvay 
Company of St. Petersburg, Russia, which was captured by the 
Japanese man-of-war " Adzuma " near Phal-ku-pho, on the 
south-western coast of Corea, on the 7th of Februaiy 1904. The 
original decision condemned the ship and the 311 roubles 
belonging to her. 

The reasons for the decision of this Court are as follows: — 

In paragraph 2 of the appeal it is argued that tlie ship 
ought to have been exempt from capture under Imperial 
Ordinance No. 20 of 1904,1 and that the original decision was 
wrong in adjudging the capture lawful on the ground that the 
Ordinance took effect from the 9th of February, the date of itg 
promulgation, and was not applicable to a case that occurred 
prior to that date ; and on the further ground that an Ordinance 
which is applicable to innocent merchantmen cannot be applied 
to vessels, such as the one under consideration, which belong to 
the Chinese Eastern Railway Company, and which in time of 
war or emergency may be requisitioned for use by the Russian 
army and navy. 

On examining the nature of the vessels belonging to 
the Chinese Eastern Railway Company, it will be seen that 
the managers of the marine transportation department of the 
Company are naval, or other Government, officers. One of the 
managers at Vladivostock is a Ijieutenant-Commandei: in the 
Russian Navy, and another is an official of the Russian Treasury 
Department. In a book entitled " River Vessels in Russian 
Asia," published by the Russian Department of Communication 
in 1902, there are statistics of vessels afloat in the basin of the 
Amur River. Of the total number of 163 steamers and 196 
sailing vessels, those which belong to the Government are put 
down as 45 steamers and 66 sailing vessels. On examining the 
owners of these vessels, it will be found that the above number 
of Government vessels cannot be accounted for unless the 
19 steamers and 60 sailing vessels belonging to the Chinese 
Eastern Railway Company are included among them. After 
the Boxer rising of 1900, indemnity for the damages sustained 
by the Eastern Railway Company was demanded, not as 
damages suffered by Russian subjects, but as incurred by the 
Russian Government It follows from these facts that vessels 
belonging to the Chinese Eastern Railway Company, such 
as the ship under consideration, must be taken as dfficial 



* Published in the Official Gazette, Tokio, April 29th, 1905. 
t App. C. 



The " Arguti:' 49 

vessels belonging to the Russian Government. Now Imperial 
Ordinance No. 20® may seem, on first sight, to be applicable to 
all Russian merchantmen, but as the principal object of its 
promulgation was to exempt from the hardship of capture those 
Russian merchant vessels, owned by private persons, which 
could not know o£ the fact of the commencement of hostilities 
beforehand, and which were in Japanese ports or were en route 
for them, having left foreign ports before the Ordinance took 
effect, there is no doubt that Government vessels such as the 
one under consideration are not entitled to the privilege given 
by that Ordinance. Therefore, although the reason given by 
the Prize Court that the Ordinance is not applicable to cases 
that occurred before it took effect may be improper, the 
appeal fails for the reason given above. 

In paragraph (3) it is argued that at the time of her capture 
the ship had mails, on board, and she ought to be released in 
accordance with the opinion of jurists and the most advanced 
principles of International Law. But the fact of an enemy 
vessel carrying mails is not recognised in International Law as 
now in force, or in the laws of Japan, as a ground of exemption 
from capture, so that this objection is overruled. 

The decision of the Court is, therefore, as follows : — 
This appeal is dismissed, 

* App. 0. 



E 12750 



50 



THE "HERMES." 

Neutral ship — Cargo of coal-^Destination for naval base — Contrabands- 
Ignorance of outhredk. of hostilities — Melease. 

A neutral vessel left a Japanese jjort with a cargo of coal for Port Arthiu- 
on the day that hostilities broke out, btit without being aware of the out- 
break. On arriving off Port Arthur She was -met 'by a Japanesfe wai-shij) 
and ordered to Nagasaki, where her capture was completed. 

Held that the cargo must be considered as contraband, and that the 
capture of the vessel was therefore justifiable, but inasmuch as she was not 
aware of the outbreak of hostilities when She left the Japanese port neither 
the ship nor her cargo was liable to condemnation. Ship and cargo 
released'. 

The "Hermes," a Norwegian steamer belonging to Bruns- 
gaard Kjosternd & Co., was chartered by the. Moji agents of a 
Russian firm, and left that port on February 6th, 1904, with a 
cargo of coal for Port Arthur. On the same day hostilities broke 
out, but the "Hermes " was not aware of the fact when she left 
Moji. On arriving off Port Arthur on February 9th she fell in 
with a Japanese warship, by whom inquiries weie made as to 
her cargo and usual home port. The answers given agreed 
with the statements in her papers, and she was thereupon directed 
to proceed to Nagasaki. This she did, arriving at that port on 
February 13th, when she was boarded by a Japanese officer and 
the formalities of her capture completed. 

The Prize Court found that she had no knowledge of the 
outbreak of hostilities until slie met the Japanese warship off 
Port Arthur on February 9th. 

The case came before the Prize Court at Sasebo, and 
judgment was given on March 7th, 1904, releasing both ship 
and cargo. 

Decision of the Sasebo Prize Gourt."^ 

The Norwegian steamship "Hermes" and her cargo are 
hereby released. 

Facts and Reasons. 

The " Hermes " is the property of Brunsgaard Kjosternd 
& Co., of Norway, flies the Norwegian flag, and is principally 
employed in carrying coal. She is registered in Norway, 
which is a neutral country, and her master, engineers, 
officers, &c., are all Norwegians. She was chartered by the 
Uriu Company of Moji, Japan, as agents for the Ginsburg 
Company, a Russian firm ; she took in 2,100 tons of coal in two 
days, the 4th and 5th of February, 1904, and left the port of 
Moji for Port Arthur on the 6th of the same month at 10 a.m., 
being unaware that war had broken out on that day between 

* Published in the Ofl\cial Oazelte, Tokio, March LSth, 1904. 



The " Hermes:' 51 

Japan and Russia. At 2 p.m. on the 9th, she met a Japanese 
man-of-war off Port Arthur, in latitude 38° 24' N. and longitude 
121° 48' E., and being asked to state her cargo and usual home 
port answered as was stated in her papers. She was then ordered 
to proceed to Nagasaki, and obeyed the order, arriving at that 
port on the 13th of the same month at 8 a:m. Soon after lier 
arrival at Nagasaki, at 8.45 a.m., Lieutejiant Takamatsu, I.J.N., 
Divisional Commander of the Nagasaki Mining Corps, boarded 
and captured her. 

• The above facts appear from the statement of Commander 
Tsukiyama, I.J.N., commanding the Nagasaki Mining Corps, 
the report of Lieutenant Takamatsu. Divisional Commander of 
the Mining Corps, the evidejice of the master and the iirst 
officer of the " Hermes," the certificate of registry, the clearance,: 
dated the 5th of February 1904, the manifest, bill of lading, 
and extracts from the ship's log-book. 

After due consideration, the conclusion of the Court is as 
follows : — 

The coal taken in by the " Hermes," in view of its quantity, 
destination, &c., was not intended for her own use, but must be 
considered as contraband of war to be supplied to the enemy 
navy after arrival at Port Arthur. But, according to rules . 
recognised in modern International Law, a neutral ship and her 
cargo are not liable to capture, even if that cargo is contraband 
of war, if the ship is not aware of the opening of hostilities. 
This is no more than the enforcement of the principle that the 
duty of neutrality originates with the knowledge of the opening 
of hostilities. In the case of the " Hermes " there is no evidence 
that she knew, either when she left Moji on the 6th of February, 
1904, or afterwards, that Russia and Japan were at war, or 
that hostilities had begun between the two countries. She was 
first apprised of the opening of hostilities when she was ordered 
by an Imperial man-of-war off Port Arthur to steer for Nagasaki. 
Accordingly the ship under consideration and her cargo are not 
liable to condemnation. 

However, when the Japanese man-of-war seized the ship off 
Port Arthur, it was after the battles of Chemulpo and Port 
Arthur, that is, on the 9th of February, 1904. Moreover, the 
ship had been chartered by a Russian mercantile company, and 
was carrying a large quantity of coal with the intention of 
reaching a Russian naval base. Lender such circumstances, the 
capture of the ship was a proper measure. 

For these reasons the ship and her cargo are hereby released. 



D 2 



THE "MANCHURIA" (No. 1). 

Enemy ship — Company registered in enemy territory-. — Majority of sha/re- 
holders neutral — Imperial Ordinance No. 20 — Insv/rance of enemy goods- 
by neutral underwriters — Consignors subject of a neutral State, hut 
domiciled in enemy territory — Goods consigned to an official of a neutral 
State — Goods consigned to a Religious Body — Goods consigned to » 
temporary resident in enemy territory. 

A vessel flying the enemy flag and belonging to a company registered in 
an enemy country was captured while on a voyage from one enemy port to 
another, before the declaration of war, but after the outbreak of hostilities. 
The majority of the shareholders in the company were neutrals. 

Held that the ship was an enemy ship and liable to condemnation, and 
that Imperial Ordinance No. 20 did not apply to an enemy ship captured at 
the outbreak of war while on a voyage from one enemy port to another 
enemy port. 

Some of the goods on board consigned to the enemy port were insured 
by neutral underwriters. 

Held that the goods were hable to condemnation as enemy goods, the 
fact of their insurance being immaterial. 

Some of the goods were consigned by a consignor, the subject of a 
neutral State, but domiciled in enemy territory. 

Held that, even if the goods were the property of the consignor, he was 
domiciled in the enemy country, and that the goods were enemy goods. 

Goods consigned to a neutral trade commissioner, to a Religious Body, 
and to a person only temporarily resident in enemy territory released. 

The " Manclmria " was the property of the East Asiatic 
Steamship Company of St. Petersburg, a Russian Company, the 
majority of the shareholders in which were Danish subjects. 
She was on a voyage with a miscellaneous cargo from Russia 
to Port Arthur, and was captured at 9 a.m. on February 9th, 
1904, about 18 miles from Port Arthur. At the time of capture 
hostilities had broken out, but neither the Japanese nor the 
Russian Declaration of War had been issued. 

The greater part of the cargo was consigned to various 
persons at Port Arthur or Vladivostock, but some of it was 
insured by neutral underwriters, and some was claimed to be 
still the property of neutral consignors at St. Petersburg when 
the capture was effected. 

A claim was made by the Russian East Asiatic Steamship 
Company, of St. Petersburg, as owners, for the release of the 
Russian steamship " Manchuria " and the cargo carried by her.. 

The case came before the Sasebo Prize Court, and judgment, 
was delivered on May 26th, 1904. 

This claim was based on the following grounds ; — ■ 

The vessel left St. Petersburg diu-ing November 1903, bound 
for Port Arthur, and was captured at 9 a.m. on February 9th, 1904, 
b;^ the Japanese warship " Tatsuta " at a point about 18 nautical 
miles south-east of Port Arthur. But, in the first place, 
although the vessel was registered as being of Rtissian nationality 
the majority of the shareholders in the Russian Company which 



The ''Manchuria" yS'o. 1). 53 

owned her are Danish subjects, and slie should therefore be 
released. Secondly, her capture was illetjal, because it was 
effected before the Japanese Declaration of War. Thirdly, she 
should be released in accordance with the spirit of Imperial 
Ordinance No. 20 of 1904.* Fourthly, if the vessel should be 
released, so also should her cargo. Further, certain items of 
the cargo -were insured by neutrals, whose rights Avould be 
affected by their condemnation, and these items should be 
released. 

The Court dismissed the claim, condemning the ship and 
her cargo, with the exception of the goods mentioned below, on 
the following grounds : — • 

According to International Law, the fact thata large majority 
of the shares in an enemy vessel are hehl by neutrals does not 
confer upon that vessel exemption from capture. Again, 
although no Declaration of War had been made at the time of the 
capture, a state of war existed between Japan and Russia at that 
time, and both countries were at liberty to perform hostile acts. 
Accordingly, the first, second, and fourth arguments of the 
claimants fail. As regards the third argument, the provisions of 
Imperial Ordinance No. 20 of 1904® are clearly inapplicable to 
an enemy vessel proceeding from one enemy port to another. 
Furthei-more, the rights of a captor against captured enemy 
property being absolute, the fact that pait of the cargo was 
insured by neutrals constitutes no grounds for its release. 

The following items of cargo were released on the ground 
that they could not be considered to be enemy goods : — 1 case 
of railway plans consigned from the United States of America 
to the Chinese Imperial Trade Commissioner at Vladivostock ; 
2 cases of maps consigned from St. Petersburg to the Viceroy 
of Fupei at Yingkow ; and 2 cases of railway plans consigned 
from St. Petersburg to Shanghai via Port Arthur to a neutral 
individual. One case of miscellaneous goods from Copenhagen 
for the Danish Lutheran Church at Port Arthur was released, 
also two cases of bedding, books, and miscellaneous articles from 
the Danish Missionary Society at Copenhagen for a Danish 
missionary who was only temporarily staying in enemy territory. 

The remaining items were condemned as enemy goods. 



The owners appealed from the decision of the Sasebo Prize 
Court. The appeal was dismissed by the Higher Prize Court 
on Januarj-^ 17th, 1905. 

Decision of the Higher Prize CouH.'f 
The main grounds of the claimants' appeal were as follows : — ■ 
(1) Though the vessel is registered as a Russian ship, and 
is the property of the Russian East Asiatic Steamship 

* Appendix C. 

t Published in the Official Gazette, Tokiu, Janiiary 26fch, 1905. 



,54 The "Manchuria'' (No. I}. 

Company, the greater part of the shares in that 
company are held by Danish subjects, and her 
, release is therefore requested. 

(2) The vessel was captured on February 9th, 1904, before 

the Declaration of War by Japan was issued.* As 
between the two States, war exists from the moment 
of the opening of hostilities, but the subjects of the 
hostile States first become aware of the existence of 
a state of war from the publication of the Declara- 
tion of War • and therefore captures ought not to be 
effected prior to the publication of the Declaration 
of War. 

(3) This vessel ought to be released under Imperial 

Ordinance No. 20 of 1904.-^- She left St. Petersburg 
in November 1903, and was captured 18 miles S.E. 
of Port Arthur, while on her way to that port, at 
9 a.m. on February 9th, 1904, and while still at sea. 
She had, therefore, no opportunity of knowing 
whether the two nations really had or had not 
entered into a state of war during her voyage, and 
the above Impei'ial Ordinance should, it was sub- 
mitted, be applied in such a case. 

(4) The cargo should be treated the same way as the 

vessel, and should be released. 

In further support of the first argument it was urged that 
though the undoubted fact that the vessel was the property of 
the Russian East Asiatic Steamship Company might make her, 
ijrom the point of view of Civil Law, the property of a Russian 
juridical person, yet from the point of view of International Law 
the question should be decided by considering who were the 
persons whose rights were injured by the capture, and as it was 
clear that the greater portion of the shares of the Russian East 
Asiatic Steamship Company were owned by Danish subjects, 
the vessel should properly be released. 

In further support of the second argument, it was submitted 
that certain parcels of the cargo were shipped on board the 
vessel for Port Arthur by neutral merchants in St. Petersburg. 
It is evident from the papers seized at the tirne of the vessel's 
capture that this cargo was captured before it had reached its 
destination. As cargo belonging to a neutral is not to be 
considered as enemy cargo imtil it has reached its destination 
this cargo ought to be released as a matter of course. 

_ By way of supplementing the third argument it was main- 
tained that some of the parcels of cargo were insured by 
neutral subjects. If this cargo were not to be released, the 
interests of neutral subjects w-ould be injured thereby ; but 
where the fact is clear that the degree of injury suffered by a 
neutral subject would really be severe, release is the proper 

* Appendix Q. 



The "Manchuria" {No. 1). 55 

course, and the plea of the appellants should not be rejected on 
the sole ground that the rights of a captor are absolute. 

The Substance of the reply of the Procurator of the Sasebo 
Prize Court was as follows : — 

As to the point that the majority of the shares in the East 
Asiatic Steamship Company, the owners, are held by Danish 
subjects, vessels registered in an enemy country, and sailing 
under the enemy flag, are recognised as enemy vessels by the 
rules of International Law in time of war and beyond all 
dispute are liable to capture,, so that the condemnation of this 
vessel was correct. The second argument was that the capture 
took place on February 9tli, 1904, before the issue of the 
Declaration of War, and that, the subjects of the hostile States 
first become aware of the. existence of a state of hostilities 
from the publication of the Declaration of War, so that the 
capture was wrong. , Neither, the rules and practice nor the 
theories of International . Law current among civilized nations 
to-day support any such line of argument. It is hardly 
necessary to explain that an enenjy ship cannot escape capture, 
even though unaware of the fact that war exists. 

The next argument vras that the vessel ought to be released 
under Imperial Ordinance No, 20 of 1904, "■ but as this Ordinance 
makes an exception to the fundame4ital principle of International 
Law in time of war that one belligerent State may capture the 
merchant vessels of the other belligerent State, it. ought to be 
interpreted narrowly, and,mt|st not be extended beyond the strict 
letter of the text. Even supposing that the vessel was pro-, 
ceediiig on her voya.ge in ign,o;'fioce of the opening of hostilities,, 
since she was making for ^ort Arthur, which is to be regarded' 
as enemy territory, she does flot come Avithin Articles 1 and 3 
of the Ordinance, and its benefits cannot be extended to her. As- 
to the last argument, it need only be said that if enemy goods 
are carried in an enemy vessel, it is right that they should be, 
condemned, irrespective of. whether they are or are not 
contraband. 

TJie reasons for the decision of the Court in this case are as 
follows : — 

The " Manchuria " was registered as a Russian ship, and, 
at tlie time of captm'e, was flying the flag of the enemy 
merchant marine, sailed under an enemy licence, and was owned 
by the East Asiatic Steamship Company of St. Petersburg. 
There is thus no room for doubt that she was in International Law 
an enemy ship. The appellants argued that as the greater part 
of the shares in the East Asiatic Steamship Company are held by 
Danish subjects, her condemnation would injure the rights of 
Danish, that is, neutral, subjects, and therefore she should be 



* Appendix C. 



56 The "Manchuria" (No. 1).' 

released. But the fact that most of the shares in the company 
which owns the vessel belong to neutral subjects does not 
affect the enemy character of the vessel, and therefore the first 
argument cannot be sustained. The second argument is also 
groundless, because when once the fact is clearly established 
that a ship is an enemy ship, she is liable to capture, according 
to the recognized rules of International Law, so soon as a 
state of war has come into existence, even prior to the issue 
of a Declaration of War. Further, the voyage of this vessel 
does not come within the provisions of Articles 1 to 3 of 
Imperial Ordinance No. 20 of 1904.® The text of that Ordinance 
shows that it does not apply to a vessel like the "Manchuria" 
on a voyage from enemy territory to enemy territory. The third 
argument cannot, therefore, prevail. Again, in determining the 
nationality of cargo for purposes of capture, international usage 
recognizes that the principle of domicile may be followed, and 
this Court considers that the rule is in accordance with reason. 
Even assuming, therefore, that the parcels of goods referred to 
in the fourth argument are, as the appellants assert, still the 
property, of the neutral consignors at St. Petersburg Ewald 
'Tschirmans u. Compagnie, the said company being in Inter- 
national Law an enemy, the goods are enemy goods, and being in 
an enemy vessel ought properly to be captured. The second 
supplemental argument is therefore groundless. With regard 
to the goods insured by neutrals, as they are all goods shipped 
in an enemy vessel, and despatched to enemy territory, they 
are liable to capture, and even if, as the appellants assert, they 
were insured by neutrals, the existence of an insurance contract 
cannot be made a reason for the release of goods having an 
enemy character. The third supplemental argument is, therefore, 
also inadmissible. The remaining goods condemned by the 
Sasebo Prize Court were all goods shipped in an enemy vessel, 
_^nd despatched to enemy territory, so that the decision of the 
Sasebo Prize Court was correct, and the fourth argument is 
therefore groundless. 

This appeal is therefore dismissed. 

* Appendix 0. 



57 



CARGO ex "MANCHURIA" (No. 1). 
RINGER'S CLAIM. 

Praeiiee — Interested person — Claim by Consul on behalf of neutral owner. 

A claim was entered by the Danish Consul to certain goods on board an 
enemy ship as being neutral property. The Consul was not personally 
interested in the goods, and held no power of attorney from the parties 
concerned in the shipment of the goods. 

Held that he was not a " party interested " and was not entitled to enter 
a claim. 

The "Manchuria" was a vessel of the East Asiatic Steam- 
ship Company flying the Russian flag, and was captured on 
February 9th, 1904, while on a voyage from Russia to Port 
Arthur. The ship was condemned as an enemy ship by the 
Sasebo Prize Court, and a large part of her cargo was condemned 
as enemy property.® Among the goods on board were some 
miscellaneous articles sent by the Christian Society at Copen- 
hagen to the Danish Christian Society at Port Arthur. A claim 
to these goods was entered by the Danish Consul, who was not 
personally interested in the goods and held no power of attorney 
authorising him to enter a claim on behalf of the owner. The 
Prize Court at Sasebo rejected the claim. 

Decision of the Saseho Prize Gourt.'\ 
This claim is rejected. 

Facts and Reasons. 

The goods in this case consist of three boxes of bedding, 
books, and miscellaneous articles, sent by the Christian Society 
at Copenhagen, Denmark, to the Christian Society at Port Arthur 
in the steamship " Manchuria," belonging to the East Asiatic 
Steamship Company, of Russia, captured by the Imperial man-of- 
war "Tatsuta," off Port Arthur, on the 9th of February 1904. 

The above facts appear from the claim, the statement of 
Lieutenants. Kihara, representing the captain of the " Tatsuta," 
the evidence of K. Prahl. and 0. Tampio, master and first mate 
of the " Manchuria," and the manifest and log-book of the ship. 

The claimant claims as Consul of H.M. the King of Denmark, 
and argues that the goods concerned in this case are not liable 
to capture, as they are consigned to a Danish subject, and as 
they are not contraband of war nor the property of a subject of 
a belligerent state. The claimant did not appear in court on 
the day of the hearing, although he was notified of the date. 

* See above, p. 52. 

t Published in the Offimal Gazette, Tokio, June 24th, 1904. 



58 Cargo ex " Mdnehuria" {No. i), Ringers Claim. 

The substance of the argument of the Public Procurator is 
that the claimant cannot properly be considered, by virtue of his 
position as Conaiil, to be a " party interested," as mentioned in 
the Prize Court Regulations, and is therefore not entitled to 
enter a claim. As the goods are books and necessaries for the 
use of a Danish church, and are not contraband of war and are 
required for religioiis purposes, the principle of the protection 
of religion renders it proper to release them. 

After due consideration, the conclusion of the- Court is that a 
person who makes a claim must, according to the second para- 
graph of Art. 16 of the Prize Court Regulations,'" be a person 
interested- The claimant has ;ijot proved that he has any interest 
in the goods, and he has filed 3,. claina for his countryman only on 
account of his being the CQnsu,l. Nor can he be considered as 
anageint, as he has not proved that he has a power' of attorney 
from a , party interested, and furthermore, he is -disqualified 
from acting as an agent by the second paragraph of Art. 17 of 
the Prize Court Regulations.® 

; The claim, therefore, is not inade in accordance with law. 
It must, therefore, be rejected, , and the claimant's plea need not 
be discussed. 

•Judgment is given as stated above. 



* Appendix A. 



59 



CARGO ex " MANCHURIA " (No. 1). 
CHINA SUGAR REFINING COMPANY'S CLAIM. 

Enemy goods — Goods shipped by neutral consignor on the order of an enemy 
tomignee^Evidence to prove ownership vested in consignor. 

Goods were ordered by a firm ' in the enemy country from a firm of 
shippers in neutral territory, and were shipped on board an enemy vessel 
■Trhich was subsequently captured. 

■ Held that the goods were enemy goods, there being no evidence to prove 
that the property had not passed to the consignee' from the moment of 
dispatch in accordance with the usual rule. 

Messrs. Ginsburg & Co. of Port Arthur ordered 30 casks of 
mm from Jardine, Matheson & Co., of Hong Kong. The lurn 
was shipped on board the " Manchu ria." an enemy s hip, which 
was captured off Port Arthur on February 9tliand taken before 
the Sasebo Prize Court. 

A claim was entered on behalf of the China Sugar Refining 
Company by their agents, Messrs. Jardine, Matheson & Co. , of 
ISjagasaki. The Prize Court gave judgment on May 26th, 1904, 
and condemned the goods as enemy goods. 

Decision of the Sasebo Prise Court.'''' 

The 30 casks of rum, part of the cargo of the " Manchuria," 
are condemned. 

Facts and Reasons. 

'l.'hese goods were ordered by Messrs. Ginsburg & Co., a 
Russian firm, from Messrs. Jardine, Matheson & Co., a British 
finn of Hong Kong, and Avei-e shipped on the " Manchuria " on 
January 30th, 1904. They were seized with the vessel off Port 
Arthur by the Japanese warship " Tatsuta " on the morning of 
February 9th, 1904. These facts are clear from the evidence. 

The claimants aUege that although the goods were despatched 
on the order of Messrs. Ginsburg & Co., they were not to be 
paid for till they had been landed at Port Arthur, and therefore 
until they came into the hands of the consignees they were the 
property of the consignors, the China Sugar Refining Co., and 
their release is accordingly requested. 

The Procurator contends that the ownership of the goods 
cannot be held to be vested in the claimants. They therefore 
belong to the consignees, subjects of the enemy's country, and 
may rightly be adjudged a prize. 



Published in the Official Gazette, Tokio. 



60 Cargo ex "Manchuria" (No. 1); China Sugar Refining 
Company's Claim. 

The decision of the Court is as follows : — 

It is a general rule that when goods which have been ordered 
are despatched, the ownership of them vests in the consignee 
from the moment of despatch, whether they have been paid for 
or not, unless there be a special agreement to the contrary. In 
this case the 30 cases of rum were despatched on an order from 
a Russian firm, Messrs. Ginsburg & Co. of Port Arthur, an 
enemy port, and the claimants are unable to produce any 
evidence as to the time w^hen the ownership was to pass. It 
may, therefore, bq held, in accordance with the general rule, 
that at the time of capture the ownership of the goods had 
already passed to' the Russian firm. Being owned by a Russian 
firm, and on board a Russian steamer, it is clear that the goods 
were enemy goods on board an enemy ship, and were lawful 
prize, and should therefore be condemned. 

Judgment is accordingly given as stated above. 



01 



CARGO ex "MANCHURIA" (No. 1). 
KUNST AND ALBERS' CLAIM. 

Enemy goods— Branch of a neutral firm esPMished in enemy territory — 
Domicile— Goods shipped before oatbreaJc of war— Claim by consignee- 
Claims for freight. 

A Swedish firm shipped goods before the outbreak of war to the Port 
Arthur branch of a German firm on board an enemy vessel which was captured 
after hostilities had begun. The goods were claimed by the consignees as the 
property of neutrals. They also claimed compensation for freight for which 
they were Uable. 

Held that the goods were enemy goods. Enemy goods on board an 
enemy ship are liable to condemnation, whether shipped before or after the 
outbreak of war. 

Claims for freight disallowed as not within the jurisdiction of Japanese 
Prize Courts. 

The " Mekaniska Werkstad " of Stockholm shipped fourteen 
boxes of machinery to Kunst and Albers at Port Arthur, on board 
the Russian East Asiatic Company's Steamship " Manchuria," 
before the outbreak of the Russo-Japanese War. Kunst and Albers 
were a German firm with their headquarters at Hamburg and 
branch houses at many ports ; one such branch was established at 
Port Arthur in the territory leased to Russia. The " Manchuria " 
was captured by the Japanese warship " Tatsxita " on February 
9th, 1904, and came before the Sasebo Prize Court for adjudica- 
tion. The goods were claimed by Kunst and Albers as neutral 
property. 

The claim was based on the following grounds : — The goods 
had been consigned by a Stockholm firm to Kunst and Albers, 
a German firm at Port Arthur, and were seized in course of 
transit to that place. The ownership of the goods was yested 
in Kunst and Albers, the consignees, and the goods should, 
therefore, be released, as being neutral property shipped before 
the commencement of hostilities. A claim was also made for 
compensation for freight on the goods, for which the consignees 
were liable. 

The Court gave judgment on May 26th 1904, dismissing the 
claim on the following grounds : — 

In accordance with the usual practice of International Law, 
the character of the goods should be decided by the domicile of 
their owner, without regarding his nationality. In this case the 
consignees of the goods are a German firm, established and 
carrying on business at Port Arthur. This being enemy territory, 
the goods owned by the firm must be treated as enemy goods, 
and International Law, as at present existing, permits the capture 
of enemy goods carried on board an enemy vessel, whether the 
goods were shipped before the outbreak of war or not. It is not 
within the powers of a Prize Court to decide cases in regard to 



62 Cargo ex " Manehuria" [No. 1), Kunst and Alhers' Claim. 

claims for freight. The claimants' arguments therefore fail, and 
the goods are condemned. 



Kunst and Albers appealed from the above decision. The 
appeal was based on the following grounds :^- 

The goods in question'Avere consigned by a Swedish firm at 
Stockholm to a German firm at Port Arthur. The ownership of 
goods does not vest in the consignee until the moment of landing, 
and the cargo in question could Hot, therefore, be considered the 
property of the enemy. Asa proof of this may be adduced the fact 
that, in the event of cargo being lost or destroyed, the consignor 
has the right to claim damages against the shipowner, and the 
consignee is not liable for freight and other expenses until after 
the goods have been handed over to him, as is stipulated in 
Book III., Chapter 8, and Book V., Chapter 3, of the Japanese 
Commercial Code. The goods therefore remained the property 
of the Swedish firm, and the claimants .only brought their claim 
as being parties interested. The cargo, being the property of a 
neutral, and not being contraband of war, should be released in 
accordance with Article 3 of the Declaration of Paris. 

Even granting that the cargo in question was the property of 
the consignees, it was, nevertheless, cargo of a neutral character. 
The original decision was based on the domicile of the owners, and 
did not consider their nationality. If 4his be correct, a Japanese 
subject residing in Russia would be treated as an enemy, which 
is inadmissible and absurd. 

From the time of loading till the time of capture, the 
consignors had no cognizance that a state of war existed between 
.1 apan and Russia. Furthermore the goods were not intended to 
assist Russia or to injure Japan. The appellants quoted Articles 
6, 23, and 30 of the Rules relating to Capture at Sea formulated 
by the Institute of International Law in 1882."'' 

The doctrine of the inviolability of enemy private property 
should be observed at sea as well as on land, so long as siich 
property is not contraband of war. In spite of the practice of 
other countries to the contrary, Japan should observe this 
principle and set an example in the cause of justice; 

Actual loss on account of freight was incurred by the 
claimants on account of the wrongful capture of this cargo 
by Japan, and Japan should give compensation therefor. ^ To 
grant this compensation is within the powers of a Prize Court 
under Article 1 of the Prize Court Regulations.! 

The Court, after considering the answer of the Procurators 
of the Sasebo Prize Court, gave judgment dismissing the appeal- 
on January 17th, 1905. , ' . 



* Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. 
t App. A. 



Cargo ex " Mahchv'ria " {No. 1} Kunat and Alhers Claim. 63 

Decision of ilia Higher Prize Court.* 

The goods in this case were shipped, in the Russian East Asiatic 
Steamship Company's steamship " Manchuria," and despatched by 
the "Mekaniska Werkstad," Stockholm, Sweden, to the address 
of the firm of Kunst and Albers in the Russian leased territory 
of Port Arthur. They were captured in course of transit on 
February 9th, 1904, that is subsequent to the outbreak of the 
Russo-Japanese War, 18 nautical miles S.E. of Port Artliur, 
on board the said vessel, by the Imperial Japanese warship 
" Tatsuta." Goods which a person domiciled in a neutral country 
sends in time of war by an enemy ship to a consignee in enemy 
country are invested with an enemy cliaracter and are liable to 
condemnation accordingly. This is recognized by International 
usage, and, in the opinion of this Court, such usage is in 
accordance with reason. 

The first point of the appeal states that, as the goods are 
the property of the consignors, the "Mekaniska Werkstad," of 
Stocldioim, Sweden, a company in a neutral country, they are 
invested with a neutral character and are therefore not liable to 
capture ; but for the reasons given above this point is devoid of 
substance. 

The second point was that, even if the goods are held to be 
the property of Kunst and Albers, the consignees, since the 
said firm is a German partnership in Russian territory', the 
goods are invested with a neutral character, and that the 
Sasebo Prize Court was wrong in adopting domicile and not 
nationality as the test for determining the character of the 
cargo. International usage, however, recognises that the system 
of domicile may be adopted in determining the national character 
of goods, and this Court considers this to be reasonable. There 
is nothing, therefore, in the second ground of appeal. 

The third point was that the goods were shipped before the 
opening of hostilities, and the consignors, at the time of shipment, 
and, indeed, until the goods were captured, were unaware that a 
state of war between Russia and Japan had arisen or was about 
to arise ; and more than this, the shipment was not made for the 
purpose of benefiting the enemy, nor with the intention of 
harming Japan, and the goods are, therefore, not liable to capture. 
International usage does not, however, recognize as sufficient 
reason for the immunity fi-om capture of goods invested with an 
enenay character the fact that they were -shipped before the 
opening of hostilities, that the master or consignor was unaware 
of the opening of hostilities, or that the shipment was not 
made with the object of harming a belligerent or benefiting an 
enemy. Point 3 of the appeal, therefore, cannot be sustained. 

The fourth ground is but an exposition of one particular 
doctrine, which has not yet become a rule of International Law, 
for which reason the argument fails. 

* Published in the Oficial Gazette, Tokio, January 26th, 1905. 



64 Cargo ex " Manchuria " {No. 1), Kunst and Alters' Claim. 

The last point of tlie appeal was that the Sasebo Prize 
Court was wrong in rejecting a claim for freight charges, but 
the Japanese Prize Court Regulations® do not place the investi- 
gation of compensation claims under the authority of Prize 
Courts, and this point is therefore groundless. 

This appeal is therefore dismissed. 

* App. A. 



65 



CARGO ex "MANCHURIA" (No. 1). 
AN HUG TAI'S CLAIM. 

Enemy goods — Goods shipped at neutral port to consignee in enemy country — 
Claim hy neutral consignor — -Consignee alleged to be only temporarily 
resident in enemy territory — Evidence — Goods shipped before outbreak of 
war. 

Groods were shipped at a neutral port before the outbreak of war to a 
consignee in enemy territory on board an enemy ship, which was captured 
after the outbreak of war. 

Held that the goods were enemy goods, and that it was immaterial 
whether they were shipped before or after the outbreak of war. 

An Huo Tai, of Hong Kong, shipped 200 bags of rice to the 
manager of his branch store at Vladivostock, and a box of clothing 
to a firm carrying on business at Dalny, on board the Russian 
steamship " Manchuria." The " Manchuria " was captured 
while approaching Port Arthur on February 9th, 1904, by the 
Japanese warship " Tatsuta." The case came before the Sasebo 
Prize Court and a claim was entered by An Huo Tai for the 
release of these goods as neutral property. The Prize Court 
gave judgment on May 26th, 1904, condemning the goods. 

Decision of the Sasebo Prize Court f^ 

The 200 bags of Yingkuang rice and 1 box of clothing 
carried by the " Manchuria " are condemned. 

Facts and Reasons. 

The goods in this case were shipped at Hongkong in the 
Russian steamship" Manchuria," the 200 bags of rice being 
destined for the Russian port of Vladivostock, the box of 
clothing for the Russian leased territory of Dalny. They were 
captured ofE Port Arthur on the above vessel by the Japanese 
warship " Tatsuta " on February 9th, 1904. 

The above facts are admitted by the claimant, and they also 
appear from the written statement of Lieutenant Kihara, I.J.N. , 
representing the captain of the capturing warship, the minutes 
of the evidence of the master and the chief engineer of the 
" Manchuria," the log, the manifest and the bills of lading of 
the said vessel. 

The substance of the claimant's argument was : (1) Since it. 
is recognized by jurists that the principle of the immunity of 
private property ought to be observed at sea, as well as on 
land, this principle ought to be adopted and these goods 
released. (2) According to the Declaration of Paris of 1856, 

* Published in the Official Gazette, Tokio, February 20th, 1905. 
B 12750 E 



66 Cargo ex ' Manehuria " {No. 1), An Huo Tai's Claim. 

neutral cargo in an enemy ship is not liable to capture unless 
it is contraband of war. The goods in this case, being despatched 
before the opening of hostilities by a neutral subject to a neutral 
subject, are neutral goods, and they are not contraband of war. 
The rice is not used as food except by Chinese ; the clothing 
also is for the exclusive use of Chinese, and, being the property 
of a person making only a temporary sojourn in Dalny, is clearly 
not applicable by the enemy to purposes connected with the 
war. The release of these goods is therefore requested. 

The substance of the Procurator's argument was that the 
goods in question are goods despatched to persons residing in 
an enemy country, and should be regarded as their property. 
They are thus enemy goods,, and ought to be condemned. 

The decision of the Court is that, according to the rules and 
practice of current International Law, enemy goods in an enemy 
ship may be captured without inquiring whether they are 
contraband, or were shipped before the opening of hostilities, 
or whether they are applicable by the enemy to purposes 
connected with the war. Whether goods are enemy goods or 
not is determined according to the domicile of the owner, and 
not according to his nationality. Furthermore, goods despatched 
by a consignor in a neutral country to a consignee in an enemy 
coimtry are to be considered as having passed into the owner- 
ship of the consignee, and if it is desired to maintain that, this 
is not the case, it lies on the party interested to establish the 
fact. Of the goods in this case, the 200 bags of rice were 
despatched to a person domiciled in Vladivostock ; the box of 
clothing to a person domiciled in the leased territory of Dalny, 
which must be regarded as enemy territory ;. and since the 
claimant has adduced no evidence that the ownership lay with the 
consignor in the neutral country, his contention is inadmissible. 
It follows that the goods in this case are not exempt from 
capture under the Declaration of Paris of 1856, that is to say, 
they must be condemned as enemy goods in an enemy ship. 
Judgment is therefore given as stated above. 



An Huo Tai appealed from the above decision. The appeal 
came before the Higher Prize Court and was dismissed ou 
January 17, 1905. 

Decision of the B.igher Prize Court.^ 

The main grounds of the claimant's appeal were : — That 
the appellant, being unaware of the opening of hostilities 
between Japan and Russia, had shipped in the " Manchuria " 

* Published in the Official Gazette, Tokio, January 28th, 1905, 



Cargo ex "Manchuria " (No. 1), An Hue Tai's Claim. 67 

at Hongkong on February 1st, 1904, and despatched from there 
200 bags of Ying Kuang rice, intended to be sold as food 
to Chinese residents in Vladivostock by the manager of the 
appellant's branch store there, consigned to the said manager. 
A Chinese acquaintance of the appellant's, one Kuang Chiu, 
who resided in Hongkong as clerk of a Chinese firm at JDalny, 
and carried on the work of that firm there, went to Dalny ;on 
his firm's behalf, and, finding that he had to stay there for 
business reasons for a month or two, asked the appellant to go 
to his house and obtain and send him some clothing which he 
required, and the appellant, having obtained the clothing in 
question, consigned it to the address of the above firm. Subse- 
quently, after war had broken out on the 6th of February, the 
" Manchuria " was captured on the 9th of February by the 
Japanese warship "Tatsuta" ofE Port Arthur, and the rice and 
clothing were captured with her. The rice and clothing were 
neutral goods, and were not contraband of war, and as they 
were not goods destined for the Russian Army and Navy nor 
applicable to military use, there was no reason for their con- 
demnation. The decision of the Sasebo Court condemning them 
on the grounds that they were enemy goods was thus wrong, 
and an appeal had accordingly been entered. 

The substance of the reply of the Procurator was as follows : — 
The appellant, who is the shipper of the goods, states that there 
was no reason for the condemnation of these goods as he was 
unaware of the state of war, and the goods- were neutral goods 
and were not contraband, and and also were not destined for the 
Russian Navy and Army nor applicable to military use, but they 
were in fact carried in an enemy ship and despatched to enemy 
territory, viz., Dalny, while the ownership of them was clearly 
vested in a Chinaman resident and carrying on business in Dalny, 
so that they were purely enemy goods, and cannot be called neutral 
goods. As to the point that the owner of the box of clothes 
had no intention of residing there permanently, -but was only 
making a stay of a month or so, the burden of proof lies on the 
claimant, and he ought to bring evidence to that effect, whereas 
we have nothing more than the mere verbal statement of his 
attorney. This is not proof, and therefore the conclusion that 
the goods were enemy goods was right. Again, ignorance of 
the existence of a state of war is, in a case like the present, 
where enemy goods are carried in an enemy ship, no valid 
ground for exemption. The appeal should therefore be dis- 
missed. 

The reasons for the decision of the Court in this case are as 
follows : — 

The goods were shipped in the " Manchuria " by An Huo Tai, 
of Hong Kong ; the 200 bags of Ying Kuang rice to the address 
of I-tai, at Vladivostock, Russia, and the box of clothing to the 

2 



68 Cargo ex " Maneliuria " (No. 1), An Euo Tai's Claim. 

address of the Teh Wo Company in the leased teiritory of 
Dalny. They were captured with, the "Manchuria" in the 
course of the voyage by the Japanese warship " Tatsuta " at 
sea 18 nautical miles S.E. of Port Arthur after the opening of 
hostilities between Japan and Russia. 

International usage recognises that goods despatched in time 
of war by a person domiciled in a neutral country on board an 
enemy ship to a consignee in an enemy country are invested 
with an enemy character and therefore liable to condemnation, 
and this Court considers this rule to be in conformity with 
reason. There is therefore no ground for the assertion of the 
appellant that these goods are invested with a neutral character. 

The appellant also states that the box of clothing was 
addressed to Kuang Ohiu, a Chinese employee of the Teh 
Wo Company, who was only making a temporary stay in the 
Russian leased territory of Dalnj!-, and that therefore it was 
invested with a neutral character and not liable to capture. It 
is clear, however, from the manifest and the bill of lading that 
the consignee of the box was the Teh Wo Company, in the 
Russian leased territory of Dalny, and there is nothing to prove 
that the box of clothing was the property of Kuang Chiu, or 
that Kuang Chiu was only making a temporary stay in Dalny. 
The contentions of the appellant therefore on this point 
cannot be sustained. 

The appellant also maintains that the shipment of the goods 
in this case was prior to the opening of hostilities, and that 
he was unaware of 'the commencement of a state of war between 
Japan and Russia, but international usage does not regard the 
fact that shipment took place prior to the opening of hostilities 
or that the consignor was unaware of the commencement of a 
state of war as exempting from condemnation goods invested 
with an enemy character ; therefore the contentions of the 
appellant on this point also are groundless. 

The appeal in this case is dismissed. 



69 



CARGO ex "MANCHURIA" (No. 1). 
FREDERICK HUTH & CO.'S CLAIM. 

Enemy Goods — Claim by Neutral Acceptor of Bill of Exchange. 

Goods were shipped by a neutral firm to an enemy destination to tlie order 
of the consignor. The goods were shipped on an enemy vessel which was 
subsequently captured. Bills of exchange were accepted by a banker 
carrying on business in a neutral country, who claimed the release of the 
goods as neutral property. 

Held that the goods were enemy goods. 

A British, firm in Colombo, Rodewald and Heath, shipped 
596 chests of tea to Moscow via Dalny on bills of lading made 
out for delivery to the order of the consignors in Moscow. A 
bill of exchange drawn by the consignors for the account of 
M. P. Medvedjeff's Erben Tea Company was accepted by the firm 
of Frederick Huth & Co., bankers, of London. The goods were 
shipped on board a Russian vessel, the " Manchuria," belonging 
to Ihe East Asiatic Steamship Company, which was captured by 
the Japanese warship " Tatsuta " on February 9th, 1904, when 
approaching Port Arthur. 

Another parcel of 513 chests of tea for Moscow via Dalny 
was also shipped on board the "Manchuria " by the same firm, 
and a bill of exchange drawn by the consignor for the account 
of W. J. Popoff was also accepted by F. Huth & Co. 

The " Manchuria " was taken before the Sasebo Prize Court, 
and claims to these two parcels of tea were entered by Frederick 
Huth & Co. Judgment was given on May 27th, 1904, dismissing 
the claim. 

Decision of the Sasebo Prize Court.~ 

The 513 chests of tea, and 596 chests of tea, carried by the 
" Manchuria," are condemned. 

Facts and Reasons. 

These goods were despatched from Colombo, in British 
territory, for Moscow, in Russia, by the Russian East Asiatic 
Steamship Company's steamship " Manchuria," and were 
captured with that vessel while on a voyage to Port Arthur, 
on February 9tli, 1904, at about 9 a.m., while at sea off that 
port, by the Japanese warship " Tatsuta." 

The above facts appear from the claim, the written statement 
of Lieutenant Kihara, T.J.N., .acting for the captain of the 
capturing warship, the minutes of evidence of the master and 
chief engineer of the "Manchuria," the manifest, and the log 
of that vessel. 

* Published in the Official Gazette, Tokio, February 20th, 1905. 



'70 Cargo ex "Manchuria" (No. 1), Huth^s Claim. 

Tlie substance of the claimants' statement is that the goods 
were shipped in the " Manchuria" by the firm of Rodewald and 
Heath, of Colombo, on Januarj^ 11th, 1904, on bills of lading made 
out to order of the said firm, and despatched via Dalny as goods 
to be delivered to the order of consignors in Moscow. The con- 
signors could deal with the said goods as they wished, according 
as the amoimt of the bill of exchange drawn by the consignor 
was or was not paid, so that, at the time of capture, they were 
the property of the consignors, the subjects of a neutral country, 
and could not be captured as enemy goods. The claimants, 
having accepted the bill of exchange drawn against the goods 
and made payment had an interest in them, and are therefore 
entitled to their release. 

The substance of the Procurator's argument is that the 
contentions of the claimants are groundless, and the goods ought 
to be condemned. 

The judgment of the Court is as follows : — The claimants 
maintain that as the goods were deliverable to the order of the 
consignors in Moscow, and the property in the goods at the time 
of captiire was vested in the consignors, neutral subjects, they 
cannot be considered as enemy goods. But, according to the 
documentary evidence put forward by the claimants in respect 
of the 596 chests of tea, the consignors drew a bill of exchange 
for the account of the M. P. Medvedjeff's ErbenTea Company in 
Moscow, and sent one ctopy to the said company, so that the said 
company must be regarded as the consignees of the goods. The 
513 chests of tea were also sent to Moscow, addressed to the 
W. J. PopofE Company, and the documentary evidence and 
the translation of a telegram dated May 25th, 1904, from the 
claimants to their attorney show that this company were the 
consignees. The mere fact that the bills of lading were " to 
order" is not stiflicient to refute this conclusion. Enemy 
goods are in International Law liable to capture irrespective 
of whether they were shipped before or after the opening 
of hostilities, and the question whether they are or are not 
enemy goods is determined according to the domicile of the 
owner. Goods despatched by a consignor in a neutral country 
to a consignee in an enemy country, so long as there is no 
proof to the contrary, must be regarded as having become the 
property of the consignee from the moment of their despatch. 
The claimants have put forward no evidence to the contrary, 
and therefore these goods must be regarded as having at the 
time of capture already passed into the ownership of an enemy, 
that is to say, the goods are enemy goods, and the first argument 
of the claimants cannot be admitted. 

The rights of the captor against captured enemy goods are 
absolute in International Law, and once it is established that 



Gargo ex " Manchuria "' (No. 1), Hutlis Claim. 71 

the goods are enemy goods no other rights are recognised ; the 
second argument of the claimants is accordingly also groundless. 



The claimants appealed against the above decision to the 
Higher Prize Court. The appeal was dismissed on January 17th, 
1905. 

Decision of the Higher Prize Court. '^ 

The claimants' main grounds of appeal are, firstly, that the 
decision of the Prize Court misinterprets the facts as stated 
by the claimants. The claimants did not use the words, "to 
the order of the consignors in Moscow." It is beyond doubt 
from what is set forth in the claim, namely, " delivery of the 
goods to the order of this firm," that the disposal of the goods 
lay with the firm of Eodewald and Heath, subjects of a neutral 
country. These words clearly mean that " order " was the 
order of the consignors in Colombo, and the full power to 
deteimine Avho should be the consignee rested entirely with 
them. The person who orders goods in a case like tliis does 
not do business on a cash basis, but by bill of exchange in 
accordance with the usual practice, and therefore it is only with 
the acceptance of the bill and the acceptor's promise to pay 
that a relation of mutual obligation arises between consignor 
and consignee. Until the completion of the payment of the 
biU, the right to dispose of the goods and to control their 
delivery lies with the consignor. This is recognised by 
Mercantile Law, which is a part of International Law. These 
goods were seized in transitu while stiU at sea and had not 
even passed into the possession of another, so that the property 
therein must have remained, as before, with the consignors. 
The decision of the Prize Court was therefore formed on a 
misconception of important facts, and was wrong. 

In the decision appealed from it is laid down that for the 
596 chests of tea the consignors drew a bill of exchange for 
account of the M. P. MedvedjefE's Erben Tea Company, in Moscow, 
and sent them one copy, so that the company must be regarded 
as the consignees of the goods ; and, also, that the 513 chests of 
tea were sent addressed to the W. J. Popoff Company, Moscow, 
and that this company is therefore to be regarded as consignees 
of those chests. 

It is argued that this ruling takes no note of the words 
contained in certain of the documents, " deliveiy of the goods 
to the order of this firm," and disregards the well-known 
facts explained above as to present mercantile usage. The 
reason for drawing a bill of exchange against the goods was 
to prevent the property in the goods from passing to the 
consignees until the acceptance of the bill, that is, the payment 
of the amount of the bill. It was for this reason that the bills 
of lading in the present case were also made out so that 
* Published in the Official Gazette, Tokio, January 28th, 1905. 



72 Cargo ex "Manchuria" (No. 1), Huth's Glaim. 

delivery was to the order of the consignors, which is not the 
case with an ordinary bill of lading, where the consignor 
sending cargo designates the consignee. As regards the bills 
of exchange in this case, they-feid not yet been accepted by the 
two above-mentioned companies, the claimants alone having 
accepted them ; and, therefore, even if the said companies had 
received the bills of lading, they could not obtain delivery of 
the goods, but, in fact, they had not yet received them, and 
accordingly cannot be said to have acquired propertv in the 
goods. The property in the goods therefore remained vested in 
the consignors, English subjects, and the goods were not invested 
with an- enemy character. 

The judgment in the Prize Court laid down that, in the 
absence of proof by the claimants to the contrary, the goods 
must be regarded as having already passed at the time of 
capture into the ownership of an enemy. This is not good law, 
because, as is shown in the claim, both claimants and consignors 
being neutrals, the goods possessed a neutral character. More- 
over, the consignors were entitled at any time, if the person 
ordering the goods did not pay the bill of exchange drawn to 
meet the cost of the goods, or in the event of such circum- 
stances as the opening of hostilities, to stop delivery of the 
goods. This is recognised by mercantile usage, which forms 
part of public international law. 

The decision appealed from rules that, as the rights of 
a captor are absolute, the claimants' rights against these goods 
could not be admitted ; but the claimants, as explained above, 
are a neutral firm, and the acceptors of the bill drawn against 
these goods, so that they were responsible for finding the money 
in the transaction, and being, moreover, the holders of duly 
endorsed bills of lading proving the ownership of the goods, 
possessed an interest in them.* 

The substance of the Procurator's reply was as follows : — 

As to the first point, viz., that the decision appealed from 

misinterpreted the facts stated by the claimants, the statement 

of facts in the decision was the substance of the claimants' own 

contentions, and did not purport to quote the documents and 

* The appellants also argued that, according to the Japanese Regulations, 
the nationality of capture was decided by the domicile of the owner, and 
as the owner was British the goods should have been released. Article 3 of 
the Declaration of Paris, 18.56, required the release of propei-ty which was 
cleirly neutral. The goods were captured before the declaration of war, 
and were despatched long before the outbreak of hostilities. According 
to the rules agreed to by the Institute of International Law at the meeting 
at Turin, 1882, the right of captm-e only exists after the commencement 
of war and in respect of vessels whose masters were aware of the fact. 
A Prize Court differs from a court of justice. It is not bound to observe 
rigid rules, but should rather set up new precedents of International Law. 

As similar arguments are reported at length in other cases they are not 
set out here. 



Cargo ex "Manchuria" (No. 1), Hiith's Claim. 73 

statements put forward by the claimants in their entirety, so 
that, even if there was a difference in wording, so long as 
the sense did not differ, there is no foundation for the 
objection. The claimants' contention was that these were goods 
deliverable in Moscow to persons designated by the consignors, 
but this does not differ materially in meaning from the words, 
"goods deliverable to order of consignors in Moscow" in the 
decision of the Prize Court. If we assume that the appellants 
interpret these words to mean that the consignors resided in 
Moscow, then it is the appellants who have misinterpreted the 
wording of the decision. "In Moscow" refers to the consignees 
and does not refer to the consignors. 

As to the second point, viz., that the decision was wrong in 
hold ingthat the consignees of the goods were the M. P. Medvedjeff's 
Erben Tea Company and the W. J. Popoff Company, both of 
Moscow, as in so doing it disregarded the words, " delivery of 
the goods to the order of this firm " in the documentary 
evidence, and also disregarded mercantile usage, in com- 
mercial dealings it is usual to despatch goods upon order, 
and it is also usual, upon arrival of the goods, to deliver them 
in exchange for the price. Where the distance is great, it is 
also usual to draw a bill of exchange at the time of the 
shipment of goods, upon security of the bill of lading, and the 
holder of the bill of exchange receives payment of the amount 
of the bill from the consignee, that is, the purchaser. Even in 
the case of such goods, it is a general commercial rule that at the 
moment of shipment they become the property of the consignee ; 
so that, in such a transaction, cargo in transitu from a neutral 
country to a belligerent country may be regarded as enemy 
goods, and may be captured and condemned. 

Another argument was that the decision of the Prize Court 
was wrong in holding that the claimants had no interest in the 
goods ; but the decision did not determine that the claimants 
had no interest, but explained that the right of capture, being 
absolute, overrides rights of lien, mortgage, &c., consequently 
there was no error in law. 

The conclusion of the Court is that the goods in this case 
were all shipped in the Russian East Asiatic Steamship Com- 
pany's steamship " Manchuria," being despatched by Rodewald 
and Heath, of Colombo, for Moscow, and were seized in transitu 
at sea 18 miles S.E. of Port Arthur by the Japanese warship 
" Tatsuta " on February 9tli, 1904 ; that is to say, after the 
opening of hostilities between Japan and Russia. The fact 
that the appellants accepted bills of exchange drawn to the 
accounts of the Russian W. J. Popoff Company and M. P. 
Medvedjeff's Erben Tea Company goes to prove that the 
appellants had undertaken the obligation to pay the price of the 
said goods on behalf of those firms, and this, coupled with the 
fact that the goods were actually in transit to Moscow, is sufficient 



fi Cargo ex " Manchuria *' (No.. I), Huih's Gtairri. 

to establish that the goods were despatched to the address of 
the above two companies, who are domiciled in an enemy- 
country. It is recognised by international usage that goods 
which a person domiciled in a neutral country despatches in 
an enemy ship in time of war to a consignee in an enemy 
country are invested with an enemy character and accordingly 
are liable to capture ; so that capture cannot be avoided on the 
ground of the acceptance by a neutral of a bill of exchange 
drawn against the goods. International Law also recognises 
that the capture of enemy goods in an enemy ship may be 
effected after the inception of a state of hostilities irrespective 
of the fact of shipment before the opening of hostilities, or of 
the ignorance of the master or consignor of the fact of the 
opening of hostilities. 

The remaining arguments merely express a hope that this 
Court will be guided by the resolutions of conferences on Inter- 
national Law, which are not yet rules of International Law, and 
will take appropriate action without being fettered by the rules 
of International Law. They are accordingly of no value as 
grounds of appeal. 

The appeal in this case is therefore dismissed. 



75 



CARGO ex "MANCHURIA" (No. 1). 
SCHMIDT'S CLAIM. 

Practice — Authorisation to enter claim — Authority conveyed by telegram — 
Necessity for formal power of attorney — Control of Court over its own' 
procedwe. 

A claim for the release of property was entered by a Japanese advocate, 
who produced a telegram as authority for his action. The Court refquired ■ 
the production of a formal power of attorney within a stated period. No 
such power was produced, and the claim was rejected .,. ! S 

Held by the Higher Prize Court that the claim was rightly rejected as 
no authority to enter the claim was produced according to the form and 
within the period prescribed by the Court. ' ' ' • 

■■ ' ■' .' ■■ 

Henry Schmidt, of Hamburg, a German subject, was the 
owner of 375 chests of Ceylon tea on board, the " Manchuria," 
a Russian vessel belonging to the East Asiatic Steamship Com- 
pany of St. Petersburg, captured on February 9th, 1904, off 
Port Arthur by the "Tatsuta" and taken before the, Sasebo 
Prize Court. 

A claim was entered by a Japanese advocate on the authority 
of a telegram* which he had received. On May 6th, 1904, 
the Court ordered the advocate to produce a proper power of 
attorney by May 26th. As this was not done the Court on 
May 31st gave judgment declining to consider the claim on its 
merits. 

t)ecision of the Saseho Prize Court.'f 

The claim is hereby rejected. 

Facts and Reasons. 

The advocate filed a claim for the release of 375 chests of 
Ceylon tea, saying that he was deputed by the claimant to do so. 
The advocate, howeA^er, did not produce any formal document 
testifying to his power to act, but only a telegram. A telegram 
not being sufficient as a proof of such power, the Court ordered 
the advocate to replace it by a formal document. He consented 
and asked for further time, which was granted. The period 
named by the Court has passed, but no formal power of attorney 

* Professor Takashashi (International Law applied to the Russo- 
Japanese War, p. 551) mentions another case where an attempt was made 
to enter a claim by a telegram addressed to the Prize Court. The Riick 
Versicherungs Gesellschaft, of Munich, telegraphed to the Prize Court on 
March 14th, 1904 : " We beg to make a petition concerning the tea, paper, 
" and other cargo on board the ' Manchuria.' " On April 18, 1904, the 
Prize Court decided that the above telegram could not be considered to be 
a claim in due form and rejected it. {See Official Gazette, Tokio, May 27th, 
1904.) 

t Published in the Official Gazette, Tokio, February 20th, 1905. 



^6 -^,: dargo ex '^Manchuria" (Afo. 1), Schmidt's Otmm. 

lias been produced. For the claimant it was argued that as there 
is no rule in the Prize Court Regulations* prescribing the form 
of a power of attorney, authority to - act miist be considered, 
according to the principle of Ci^dl Law, as adequately conveyed 
by the expression of intention ; and the advocate requested that 
the telegram produced by him might be considered as a valid 
power of attorney and a decision given on the claim. 

The substance of the argument of the Public Procurator was 
that as the. advocate had not produced a formal power of 
attorney he had no right to act, and consequently the claim 
filed by him was invalid, and there was no need to examine it. 

After due consideration, the conclusion of the Court is that 
as Article 20 of the Prize Court Regulations® prescribes that Prize 
Courts shall, make rules governing the procedure at trials, and 
as this Court has ruled that the right to act on behalf of another 
in the matter of entering a claim can only be conferred by a 
formal document, it is clear that any person entering, a claim in 
this Court must conform to the rule. The advocate argues that 
there is nothing prescribed in the Prize Court Regulations 
concerning the form of a power of attorney ; therefore, according 
to the principle of Civil Law, an expression of intention is 
sufficient. But it cannot be said that no form is necessary to 
prove the legal relation of agency on the ground that such 
relation is established without form according to the Civil Law. 
The advocate was instructed that a formal power of attorney 
was necessary according to the rules made by this Court, and 
was given proper time to produce it ; but he did not file it in 
the period named. He has therefore no authority to represent 
the claimant in this Court. The claim filed by him is the claim 
of one not qualified to make it and is invalid. If the claim is 
invalid, it must be rejected and there is no need to go into it. 



An appeal was entered against the above decision, but was 
dismissed by the Higher Prize Court on January 17th, 1905.1 

Decision of the Higher Prize Court. 

An appeal has been filed on behalf of the claimant, Henry 
Schmidt, against the decision of the Sasebo Prize Court given 
on the 31st of May, 1904, in the case of 375 boxes of Ceylon 
tea carried by the Riissian steamship " Manchuria," which 
were captured by the Imperial man-of-war " Tatsuta " 18 miles 
south-east of Port Arthur on the 9th day of February, 1904. 
The Prize Court rejected the claim. 

* App. A. 

t Published in the Official Gaxette, Tokio, January 27th, 1905. 



Carffo ex "Manchuria " {No. 1), Sehmides maim. 11 

THe substance and the grounds of the appeal were as 
follows : — 

The document which the advocate filed at the Sasebo Prize 
Court IS a telegram certified by a Japanese authority, and 
clearly proved that the advocate had authority to appear. 
Notwithstanding this and notwithstanding that several pro- 
ceedings had taken place in connection with the case, the Court 
improperly rejected the claim. On the 6th of May, 1904, the 
Sasebo Court ordered the advocate to produce a proper power 
of attorney not later than the 26th of the same month. But 
correspondence between the advocate and the claimant requires 
at least 80 days. Had the power of attorney been sent for 
by telegraph, the document could not have reached the advocate 
in less than 40 days. It was thus impossible for the advocate 
to produce the document within the period specified. He 
therefore requested further time. The Court, however, refused 
the advocate's request, and rejected the claim because of the 
advocate's failure to comply with the order of the Court, which 
it was not possible to comply with. Article 643 of the Civil Code 
provides that agency occurs when one party deputes to the 
other party the performance of a legal act and the latter accepts 
the duty. In this case the claimant deputed the advocate by 
telegraph to apply for the release of 375 boxes of Ceylon tea. 
The advocate accepted the duty and entered a claim. So the 
power of attorney given to the advocate was complete. There is a 
rule in Article 17 of the Prize Court Regulations* as to the form 
of a claim, but nothing as to the form of the power of attorney. 
It makes no difference, therefore, whether such power be testified 
by a telegram or any other document. Furthermore, the mode 
of establishing the right to represent another is not part of the 
proceedings in the adjudication upon a capture ; but the Sasebo 
Prize Cotirt considered it to be part of such proceedings, and 
notwithstanding that there is no prescribed form for a power of 
attorney and no prohibition against conferring such power by 
telegram, has adjiidged that a regular power of attorney is 
required. It is impossible to ascertain in what form this 
regular power of attorney should be, as it is not mentioned in 
the decision. But if it means a document signed by the 
principal and sealed with his seal, the conclusion will be that 
the claimant cannot make a claim through his agent as he has 
no seal, which is unreasonable. On these grounds it is re- 
quested that the decision of the Sasebo Prize Court be reversed 
and that the 375 boxes of Ceylon tea be released. 

The substance of the argument of the Procurator of the 
Sasebo Prize Court was as follows : — 

It is true that the legal relation of agency is established 
according to the Civil Law. But if there is no form prescribed 

*iiApp. Ai 



^8 Cargo ex "Manchuria" {No. 1), Schmidt's Glaim. 

in the Civil Law as to the mode by which powers may be con- 
ferred upon another, it cannot be said that agency is perfected 
by^ mere expression of intention. The method' of giving to 
another the right to represent one in legal proceedings is a 
matter of procednre. For instance, in a civil case the civil pro- 
cedure rules must be observed and a power of attorney which 
does not conform to Article 64 of the rules of Civil Procedure is 
invalid. So, in cases before Prize Courts, the second clause of 
Article 17 of the Prize Court Regulations" provides that a claim 
may be made in writing within 30 days ; and the second clause 
of Article 17 provides that a claimant may employ as his agent a 
Japanese advocate only, and Article 20 provides that, in addition 
to the preceding Articles, rules relating to the procedure in Prize 
Court proceedings may be established by such courts. Prom 
the first the Sasebo Prize Court laid down that powers of 
attorney should be written documents, as in civil- procedure ; 
that if an advocate could not produce his regular power of 
attorney on account of the claimant living in a distant place, he 
might enter a claim under an authority given by telegraph, and 
his case woiild be heard, but that he would be required to 
deposit a regular power of attorney afterwards. AH other 
advocates have conducted their cases under this procedure. 
The counsel in this case could not procure a regular power of 
attorney within the specified period because of his own negligence, 
for sufficient time was allowed. And now he argues that 
authority by a telegram is enough, as there is no form of a 
power of attorney specified in the Prize Court Regulations.® 
His claim does not conform to the Regulations and is invahd. 
A telegram is a document in a certain sense, and authority by 
telegraph is authority by a document. But it is a general rule 
that a document must be signed or sealed with a seal. So that 
a telegram which does not bear the signature or seal cannot be 
considered as a document. There is therefore nothing wrong 
in the decision of the Prize Court rejecting the claim on the 
ground that a claim unaccompanied by a regular power of 
attorney did not conform . to the law, and the appeal should 
therefore be dismissed. 

The decision of this Court is as follows : — 

It is dear from the records that the advocate produced to 
- prove his power of attorney only a transcript of a telegram, 
certified by the Yokohama Post Office, and that he has not 
deposited the regular power of attorney ordered by the Court. 
Consequently his claim was rejected. It is a recognised 
principle that proceedings should be carried on in accordance- 
with rules laid down by the court concerned. Article 20 of the 
Prize Court Regulations""'' is nothing more than an application 
of: this principle. The Prize Court before giving a decision on 

' * App. A. 



Cargo ex "Manchuria" {No. 1), Schmidt's Claim. 79 

the claim has prescribed, according to the provision of Article 20 
of the Prize Court Regulations,® that the Court would not 
acknowledge the authority given by telegraph, and that the 
advocate must produce a regular power of attorney within a 
period specified. In order, therefore, to show that his claim 
is valid the advocate must prove that he has authority, 
according to the form and within the period prescribed by the 
Court. In directing the production of a regular power of 
attorney, the Court had authority to fix at its discretion a 
period which it considered sufficient. Such an order miist be 
punctually observed by the advocate, and no violation of it can 
be permitted. As the requirement of proving a power of 
attorney is an essential element in constituting a valid claim, 
it is clear that it is part of the procedure of the Prize Court. 
Therefore the arguments that the period prescribed by the 
Court below was nothing but an attempt to enforce an impos- 
sibility and that the telegram constituted an agency between 
the principal and the advocate are both inadmissible, and the 
original decision rejecting the claim was right. 

* App. A. 



80 



THE "MICHAEL." 

Enemy ship — Capture before Declaration of War — Deep-sea fishing vessel — 
Japanese Ordinance No. 20 protecting Russian merchant vessels on a 
voyage to Japan — Idmit of territorial waters — Neutrality of Corea — 
Authority of the Regulations issued by the Institute of International Law. 

An enemy vessel belonging to a deep-sea fishing company was captured 
on a voyage from Ohosendo (Corea) to Shanghai after the outbreak of 
hostilities, but before the Declaration of War. 

Held by the Sasebo Prize Court (1) that the ship should be condemned 
as an enemy vessel captured after the outbreak of hostilities ; (2) that she 
was not entitled to the privileges conferred on merchant ships by Imperial 
Ordinance. No. 20 of 1904; (3) that the restrictions on the right of capture 
at sea contained in the rules issued by the Institute of International Law 
are not part of existing International Law ; (4) that the limits of territorial 
waters do not extend beyond 3 miles ; (5) that during the Russo-Japanese 
war Corea could not be considered as a neutral country in the ordinaiy 
sense ; (6) that the right of capture at sea after the outbreak of hostilities 
is not affected by the fact that no Declaration of War has been issued. 

Appeal to the Higher Prize Goxart dismissed. 

The " Michael," a Russian vessel, left the Coreaii port of 
Chosendo on February 8th, 1904, on a voyage to Shanghai, and 
was captured by a Japanese warship on February 10th at a 
point 5i nautical miles from the coast of Corea. At that time 
hostilities had already commenced, but the Russian and Japanese 
Declarations of War were not issued until that day. The 
" Michael " was a deep-sea fishing steamship belon^ging to the 
Pacific Whaling and Fishing Company of St. Petersburg, and 
was employed by them in the capture of whales and the refining 
of whale products. At the time of capture she had on boai'd 
150 tons of whale oil, 500 tons of salt, 110 tons of iron bars, 
1 ton of whalebone, 200 picul of whale meat, pulverised bones, 
&c., 100 picul of whale bones, 10,000 empty bags, and 
4 whale nets. 

The case came before the Sasebo Prize Court, and on 
May 26th, 1904, judgment was given condemning both ship 
and cargo. 

Decision of the Sasebo Prize Court.^ 

The Russian steamship "Michael," and 150 tons of whale 
oil, 500 tons of salt, 110 tons of iron bars, 1 ton of whalebone, 
2O0 picul of whale meat, pulverised bones, &c., 100 picul of 
whale-bones, 10,000 empty bags, and 4 whale nets carried by 
her are condemned. 

Facts and Reasons. 

The " Michael " was one of the deep-sea fishing vessels 
owned by the Russian Pacific Whaling and Fishing Com- 

* Published in the Official Gazette, Tokio, February 24th. 1905. 



The " Michael." <S1 

pany, having her base at the Russian port of Vladivostock, 
flying the Russian flag, and engaged in the business of the 
Company, namely, the capture of whales, and the refining of 
whale products. On February 8th, 190-1, she left Chosendo, 
Corea, to proceed to Shanghai, and on February 10th, 1904, at 
2 p.m., in lat. 35° 10' N., long. 129° 20' E., that is, at a point 
o|^ nautical miles from the Corean coast, she was captured by the 
Japanese warship " Miyako." She was at the time laden with 
whale oil and the other items of cargo set forth above. 

The above facts appear from the written statement and 
certificate of valuables of Captain Fusauclii of the " Miyako," 
from the evidence of the master and engineer of the " Michael," 
and fi'om the certificate of registry, log, &c. of the vessel. 

The substance of the claimants' argument was as follows : — 

(1) The " Michael " had no warlike equipment, was not 
engaged in trafiic forbidden in time of war, and was not 
carrying contraband of war. 

(2) The capture of the vessel was effected at a point 
5^ natatical miles, i.e., less than 6 nautical miles, from the coast 
of Corea, which was at that time, from tlie point of view of 
Japan, to be regarded as a neutral country, and therefore, 
according to the rule agreed upon by the Institute of Inter- 
national Law at Paris in 1894,'''''' in neutral territorial waters. 

(3) The vessel at the time of capture was unaware that a 
state of war existed between Japan and Russia. 

(4) Private property on land is inviolable, and this principle 
should equally be applied at sea. 

(5) The vessel, though a deep-sea fishing vessel, was not 
engaged in traffic forbidden in time of war, nor was she 
carrying contraband of war, and consequently being harmless 
should be released in accordance with the intention which 
underlies the exemption from capture of small coastal fishing- 
boats. 

(6) War is confined to the relation between state and state, , 
and the subjects of those states ought not to be directly affected'' 
before the Declaration of War. This vessel 'was captured 
before the Declaration of War. 

(7) Imperial Ordinance No. 20 of 1904t was based on the 
principle of the exemption from capture of shipping unaware 
of the existence of a state of war, and it was not proper to 
capture a vessel such as this, which had commenced a voj^age 
in ignorance of the outbreak of hostilities, while proceeding 
towards a port of a neutral power. The " Michael " and 
her cargo should therefore be released. 

The first four arguments are based mainly on the Rules for 
Capture at Sea agreed upon by the Institute of International 
Law at Turin in 18824 

* Aunuaire de I'lnstitiit de Droit International, 1894-5, p. 329. 

t App. C. 

J Aunuaire de I'lnstitut de Droit International, 1882-3, p. 213. 

E 12750 F 



82 The " Michael" 

The substance of tlie Procurator's argiiment was tJiat the 
contentions of 'the claimants could not he supported, and that 
the ship and the whole of her cargo should be condemned. 

The claimants 'principally relied on the resolutions of the 
Institute of International Law, and argued that the present case 
should be decided in accordance therewith. According,: to;; the 
principles and precedents of ; existing International Law, an 
enemy ship can properly be captured in time of war, irrespective 
of whether she has or has not a warlike equipment, or is '■■ or is 
not engaged in traffic forbidden in time of war, or carries or 
does not carry contraband of. war, and without considering 
whether she is, or is not aware of the outbreak of hostilities, and 
further, whether there has or has not been a Declaration of 
War. It cannot be denied that the "Michael" was an enemy 
vessel, and that her capture took place after the commencement 
of hostilities. Further, the plaee of capture was 5|- nautical 
miles from the , Corean coast, and since International Law 
regards territorial waters as not extending beyond 3 nautical 
miles from the shore, the vessel's capture took place on the 
high seas. But, teven granted ..that it was within the territorial 
waters of Corea, it is clear that that country was at the time 
not in fact a neutra;l power. . : , , : , 

The claimants ,also argued ,that the vessel should be released 
in accordance w;ith the intention imderlying the exemption 
from capture of small coastal iishing boats,* but the usage of 
International Law by which small, coastal fishing boats are not 
captured arises mainlj'^ from the desire not to inflict distress upon 
poor people who are not connected with the war, and the 
principle cannot be, extended tQ,,a vessel like the " Michaeli" 
which was the pjfoperty of a company, and engaged in deep-sea 
fishing. 

The claimants argued finality that the vessel ought to be 
released in accordance with the ijiitention of Imperial Ordinance 
No. 20 of 1904,1 but the intention of the provisions of this 
Ordinance was to protect merchant vessels trading to ports in 
the Japanese Empire, so that is indisputable that its privileges 
cannot be extended to a fishing vessel, whose object was hot 
trade, and which, moreover, was navigating from a foreign 
port to a foreign port. 

To sum up, sinee the contentions of the claimants cannot 
be substantiated, it is held that this ship should be condemned, 
and the whale oil and the other iteriis of cargo carried by her, 
being clearly enemy goods, should likewise be condemned. ' 

JudgineiTt is accordingly given as above. 



* See now Oqnyention No. 11 o;f the Second Peace Conference 
Conventions, Convention relative to certain restrictions on the exercise of 
the right of captin*e in maritime war, Chapter II. Cd. 4175. 

t App. C. ■ ■ ■ ' ■• ■ ' ■' ■■''■ 



The " Miehaeir 83 

The owners appealed from the above decision to the Higher 
Prize Court. J augment was given on February 16th, 1905, 
dismissing the appeal, , , 



Decision of the Higher Prize Gourt^' \ 

This is an appeal against a decision of the Sasebo Prize 
Court given on May 26th, 1904, oondemning the steamship 
"Michael," together with 150 tons of whale oil, 500 tons 
of salt, 110 tons of iron bars, 1 ton of -whalebon'6', 200 picul 
of whale meat, pulverised bone, &c., 100 picul of whate bones, 
10,000 empty bags, and 4 whaling-nets, carried by her. : 

The substance of the appeal is that the decision of the 
Sasebo Prize Court was contrary to law and should be rescinded, 
and the appellants, ask for the release of the ship and cargo. 

The grounds of appeal are — 

Hi) Internatiorjal Law is not a code, and as it is not the 
■work of legisIaf^Qrs.;9,s in the case of a single country, the 
true standards mu^t, b^ sought in,. the declarations of the various 
governments and. the opinions of .jurists. The Regulations as 
to capture at spa ag^-eed upon at the, mepting of the Institute 
of International Law, at Turin in 1882,f the revision drafted 
for consideration by the Institxite! of, International Law at Paris 
in 1894, J and so on, are the standards of existing International 
Law. According to Articles 4 et seq. of the above Regulations 
this vessel and her cargo, though enemy property, are not liable 
to condemnation. A Prize Court, unlike a court of justice, 
need not be rigidly bound by the rules of International Law in 
the same way as acQurt of justice must adhere to. the, law of 
its own country, but should adapt its decisions to varying 
circumstances and create new precedents, upon lines which are 
an advance upon the rules of International Law. 

(2)' The vessel was captured i prior to the issue of the 
Declaration of War, and she was therefore unaware of the fact 
that hostilities had begun, and ought properly to be released. 
The proposition that a Declaration of War is not essential 
before commerieing hostilities only applies as between the 
combatant • states, -as the existence of a state of war is oilly a 
relation' between states, and in noway concerns the subjects 
of those states. 

(3) The vessel- was captured in the territorial waters of 
Corea,,and 'Corea being a neutral, power, such capture was 
iUegaL The decision appealed from was merely to the effect 
that Corea was npt iii, point of fact a neutral power, but as to 
the reasons for this decision no explanation whatever was given. 



* Published in the Oficial Gazette, Tokio^ February 24th, 1905. 
t Annuaire de I'Institut de Droit International, 188^-3, p. 213. 
J Annuaire de I'Institut de Droit International, 1894-5, p. 111. 

TT 9 



84 The " Michael" 

(4) The Sasebo Prize Court held that the privileges 
granted by Imperial Ordinance No. 20 of 1904* could not be 
extended to the present case, but the object of this Ordinance 
was to protect enemy vessels w^liich w^ere unaware of the 
commencement of hostilities, and it should therefore be applied 
in such a case as the present, where the vessel was unaware 
of the commencement of hostilities. 

(5) For the above reasons, this vessel and her cargo should 
not be condemned. Even granting the legality of the seizure, 
the action taken should not go beyond detaining, or employing 
her during hostilities, and releasing her after the conclusion 
of peace. 

The substance of the reply of the Procurator of the 
Sasebo Prize Court is that the appellants' argument is based 
entirely on the resolutions of the Institute of International Law, 
to the effect that a vessel, though an enemy vessel, which has 
no warlike equipment, is not engaged in forbidden maritime 
traffic, carries no contraband of wai', and is unaware of the 
fact of the opening of hostilities, is not lia ble to condemnation, 
but that it is beyond dispute that these resolutions are not part . 
of International Law in time of war, as observed at the present 
time by all civilised nations. The present appeal is entirely 
groundless, and should be dismissed. 

The following are the reasons for the decision in this 
case : — 

The "Michael" is the property of the Pacific Whaling and 
Fishing Company, Ltd., of St. Petersbiirg, Russia, having her 
base at the Russian port of Vladivostock, flying the Russian 
mercantile marine flag, and engaged in the preparation of the 
whales caught by hei'. In the course of a voyage from 
Chosendo, Corea, to Shanghai, she Avas, on February 10th, 
1904, that is, subsequent to the opening of hostilities between 
Japan and Russia, captured by the Japanese warship " Miyako," 
in lat. N. 35° 10', long. E. 129"° 20', that is, more than 5 nautical 
miles from the Corean coast. It is clear that the " Michael " 
was according to International Law an enemy vessel, and that 
the whale oil and other cargo carried by her was enemy cargo 
in an enemy vessel. The first ground of appeal is that such 
rules as .the Regulations as to capture at sea agreed iipon by 
the Institute, of International Law at Turin in 1882| are 
the standards of existing International Law, and that according 
to the above Regulations, this vessel and her cargo, though 
enemy property,, are not liable to condemnation. It was also 
argued that a Prize Court need not be rigidly bound by the 
rules of International Law in the same way as a court of 

* App. 0. ; 

t Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. 



The " Michael." 85 

justice must adhere to the law of its own counti-y, but that it 
should adapt its decisions to varying circumstances and create 
new precedents upon lines which are an advance upon the 
rules of International Law. But existing International Law 
recognises that an enemy vessel and enemy cargo carried in 
an enemy vessel may be captured, and the hopes expressed 
that action will be taken in conformity with the resolutions of 
the Institute of International Law, which have not yet become 
rules of International Law, cannot be considered as grounds 
for appeal. 

The second ground of appeal is that the seizure of the 
■"Michael" took place prior to the issue of the Declaration of 
War, that the vessel Avas accordingly unaware that hostilities 
had begun, and ought therefore to be released. The issue of a 
Declaration of War is not essential to the opening of hostilities, 
and once hostilities have begun, irrespective of whether the 
subjects of the hostile state are or are not aware thereof. Inter- 
national Law recognises that a belligerent state may exercise 
the right of capture. The second ground of this appeal is, 
therefore, devoid of substance. 

The third ground of appeal is that the capture was 
illegal, because effected witliin the territorial waters of Corea, 
a neutral state. As regards the hostilities between Japan and 
Russia, not only did Corea from the first consent to the landing 
and transit of Japanese troops, but also the fighting at the 
commencement of hostilities took place within the territory of 
that country. For this reason Corea cannot be regarded as 
a neutral state in the ordinary sense, and, therefore, the third 
ground of appeal is devoid of substance. 

The fourth ground of appeal is that since the object of the 
provisions of Imperial Ordinance No. 20 of 1904'''-' was to protect 
■enemy vessels which were unaware of the opening of hostilities, 
it should apply to such a case as the present. It is clear from 
the terms of Articles 1 to 3 that the present case is not within 
the provisions of that Ordinance. The Ordinance is not appli- 
cable to the case of a vessel, such as the " Michael," navigating 
from a port outside Japan to another port outside Japan, and 
therefore \he fourth ground of appeal also fails. 

The fifth ground of appeal is that e^en assuming that the 
capture of the ship and her cargo was lawful, the action taken 
should not go beyond detaining or employing the vessel during 
Jiostilities, and releasing her upon the conclusion of peace. 
This is nothing more than the expression of the individual 
hopes of the appellants, and cannot be considered a ground 
for appeal. 

The appeal is therefore dismissed.! 

* App. C. 

t The case of the " Nikolai," a similar vessel captured on the same date, 
as not printed, as the arguments and decision are identical with the above. 



86 



THE "ALEXANDER." 

Enemy ship — Capture in port at the outbreak of war^— Deep-sea fishing vessel 
-^Ordinwtice granting days of grace to eiiemy merohant vessels-r-Authority 
of the regulations as to capture at sea issued by the Institute, of Inter- 
national Law — Condemnation. 

Enemy property capiwed on board an enemy ship — Condemnation. 

An enemy vessel belonging to a deep-sea fishing company and employed 
to carry supplies to the fishing vessels and to bring in their catch was 
(Si^tured in a Japanese port after the outbreak of hostilities but before the 
Declaration of War. 

Held that the ship should be condemned as an enemy vessel captured 
after the outbreak of hostilities ; that she was not a merchant ship within 
the meaning of Imperial Ordinance No. 20, granting days of grace to 
Russian merchant vessels in Japanese ports on the outbreak of war ; that 
the property on board should be condemned as enemy property. 

■ There 'is no rule of International Law extending immunity to private- 
property in naval war. 

Appeal to the Higher Prize Court dismissed. 

The "Alexander," a Russian vessel, was , captiired by a 
Japanese torpedo flotilla in the port of Idzuhara in the island 
of Tsushima at 2 a.m. on February 10th, 1904. Hostilities, 
had already commenced at that time, but the Russian and 
Japanese Declarations of War were not issued until a later 
hour on the same day. The "Alexander" was a steamship 
belonging to the Pacific Whaling . and Fishing Company of 
Stv Petersburg, ^nd was employed by them in carrying supplies- 
to their deep-sea fishing vessels and in bringing their catch to 
port. At the time of capture she had on board 36 tons of 
whale blubber, 36 tons of salted whale meat, and 15 tons of 
fresh whale meat. 

The case came before the Sasebo Prize Court on Maj' 26tli, 
1904, when judgment was given condemning both ship and 
cargo. ' . V 

Decisio7i of the Sasebo Prize Oourtfi 

The steamship " Alexander," 36 tons of whale blubber, 
36 tons of salted whale meat, and 15 tons of fresh whale meat 
are oondemned, 

Facts and Reasons. 

The "Alexander" was one of a number of deep-sea fishing 
vessels, the property of the Russian Pacific Whaling and 
Fishing Company, Ltd., having the Russian port of Vladi- 
vostock for base, flying the Russian .flag, and engaged in the 
provision of supplies to, and in bringing in the catches made 
by, the other fishing vessels belonging to the , Company. On 
February 10th, 1904, at 2 a.m., she was captured while at 

* Published in the Official Gazette, Tokio, June I4th, 1905. 



■The " Alexander:' 87 

anchor in the port of Idzuliara, Tsushima, by the Japanese 
torpedo flotilla No. 17. She was at the time laden with tlie 
blubber and the other items of cargo mentioned above. 

The above facts appear from the written statement and 
certificate of valuables of the commander of the flotilla, 
Captain Kihara, I.J.N., from the evidence of the master and 
engineer of the "Alexander," and from the certificate of 
registry, the bill of sale, the log, &c. of the vessel. 

The substance of the claimants' argument was as follows : — 
, (1) The " Alexander " had no warlike" equipment, was not 
engaged in maritime traffic forbidden in time of war, and was 
not carrying contraband of war. 

(2) The vessel at the time of capture was unaware that a 
state of war existed between Japan and Russia. 

(3) The vessel, having entered a Japanese port in ignorance 
of the fact of the opening of hostilities, came within the 
exemption of Imperial Ordinance No. 20 of 1904.* 

(4) Private property on land is inviolable, and this funda- 
mental principle ought equallj' to be applied at sea. 

(5) The vessel, though a deep-sea fishing vessel, was not 
engaged in maritime traffic forbidden in time of war, and was 
not carrying contraband of war. She was thus harmless, and 
therefore should be released in accordance with the intention 
underlying the exemption from capture of small fishing vessels. 

(6) War is confined to the relation between state and state, 
and their subjects should not be directly affected thereby prior 
to the Declaration of War. But this vessel was captured prior 
to the Declaration of War, and the "Alexander" and the whole 
of her cargo should therefore be released. 

ITie first, second and fourth arguments are principally based 
on the Regulations as to capture at sea agreed upon by the 
Institute of International Law at Tvirin in 1882.1 

The substance of the argument of the Procurator was that 
none of the contentions of the claimants had any ground, and 
that the ship and cargo should be condemned. 



I'his Court considers that though the claimants adduce the 
resolutions of the Institute of International Law, and state that 
the present case should be decided in accordance therewith, an 
enemy ship can, nevertheless, according to the rules and 
precedents of existing International Law, be properly seized in 
time of war irrespective of whether she has, or has not, a warlike 
equipment, or is, or is not, engaged in maritime traffic forbidden 
in time of war, or carries, or does not carry, contraband of war, 
and, without considering whether she is, or is not, aware of the 

* App. C. 

t Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. 



88 The " Alexander" 

fact of the opening of hostilities, and whether there has or has not 
been a Declaration of War. It cannot be disputed in this case 
that the " Alexander " was an enemy vessel, and that her capture 
took place after the opening of hostilities. 

The claimants also argue that this vessel, having entered a 
Japanese port in ignorance of the opening of hostilities, came 
within the exemption of Imperial Ordinance No. 20 of 1904 ;■■•'" 
bxit the intention of the provisions of the Ordiaance is to protect 
merchant vessels tracing to ports in the Japanese Empire, and 
its privileges cannot be extended to a fishing vessel, as in the 
piesent case. 

It is also argued by the claimants that the vessel should be 
released in accordance with the intention underlying the exemp- 
tion from capture of small coastal fishing vessels,! ^^^ the 
usage of International Law by which small coastal fishing vessels 
are not captured arises mainly from the desire not to inflict 
distress on poor people who are not connected with the war, and 
clearly cannot be extended to a vessel like the " Alexander," 
the property of a company and, moreover, engaged in deep-sea 
fishing. 

Since the contentions of the claimants are all groundless, 
the ship should be condemned ; the blubber and other items of 
cargo carried by her, being clearly enemy goods, should likewise 
be condemned. 

Judgment is accordingly given as above. 



The owners appealed from the above decision to the Higher 
Prize Court. Judgment was given on June 8th, 1905, dismissing 
the appeal. 

Decision of the Higher Prize Gourt.X 

This is an appeal against a decision of the Sasebo Prize 
Court given on May 26th, 1904, condemning the Russian 
steamship "Alexander" and the 36 tons of blubber, 36 tons 
of salted whale meat, and 15 tons of fresh whale meat carried 
by her. 

The substance of the appeal was that the decision of the 
Sasebo Prize Court was contrary to law, and the appellants 
accordingly ask that it shotild be reversed, and the vessel and 
her cargo released. 

The grounds of appeal were — 

(1) International Law is not a code of law like the laws 
of individual states, as it is not the work of legislators, and 
therefore the true standards must be sought in the declarations 

* App 0. 

t See now Convention No. 11 of the Second Peace Conference 
Conventions, Convention relative to certain restrictions on the exercise 
of the right of capture in maritime war, Chapter II. Cd. 4175. 

J Published in the Official Gazette, Tokio, June 14th, 1905. 



The " Alexander." 89 

of the various goveruments and the opinions- of jurists. . The 
Regulations as to capture at sea, agreed upon at the meeting of 
the Institute of International Law held at Turin in 1882,* and 
the revision drafted for consideration by the Institute of Inter- 
national Law at Paris in 1894,t and so on, are the standards of 
existing International Law. According to Article 4 et seq. of 
the above Regulations, this vessel and her cargo, though enemy- 
property, ought not to be condemned. A Prize Court, unlike 
a court of justice, need not be rigidly bound by the rules of 
International Law in the same way as a court of justice must 
adhere to the law of its own country. It should adapt its 
decisions to varying circumstances and create new precedents 
upon lines which are an advance upon the rules of International 
Law. 

(2) The business of the " Alexander " was to act as supply 
ship to the whaling and otlier fishing vessels of the claimants, 
and to effect the sale of their catches ; she had come to Idzuhara 
to receive instructions from the claimants' Nagasaki agent. She 
Avas therefore engaged in mercantile business, and should be 
regarded as a merchant vessel, and consequently ought to enjoy 
the privileges granted by Imperial Ordinance No. 20 of 1904.J 
Even assuming that she could not be said strictly to be engaged 
in commerce, to refuse to apply the Ordinance to this vessel is 
to disregard its spirit. Again, the reasoning in the decision 
appealed from, that as the exemption from capture of small 
coastal fishing vessels chiefly arose from a desire not to inflict 
distress upon poor people unconnected with the war, it could 
not therefore be extended to a vessel like the "Alexander," 
which was engaged in deep-sea fishing, shows that the claimants' 
point had not been understood. What the claimants desired 
was that the Imperial Prize Court should, in the light of recent 
developments in International Law, not adhere to old usages, 
but create new precedents. 

(3) On the above groimds this vessel and her cargo ought 
not to be condemned. Even assuming her seizure to have been 
lawful, the action taken should not properly go beyond detaining, 
or employing, her during hostilities and releasing her upon the 
conclusion of peace. 

The substance of the reply of the Procurator of the Sasebo 
Prize Court was that the appellants' arguments disregard Inter- 
national Law. In the same way that the obligations of an 
individual are not determined by the current ideals of morality 
but by laws in force, so the duties of a nation are detennined 
by the rules of practice recognised by the nations in general. 
Beyond this, we lie under no obligations to other states, nor do 

* Annuaire de I'lustitut de Droit International, 1882-3, p. 213. 
t Annuaire de I'lnstitut de Droit International, 1894-5, p. 111. 
J App. 0. 



.90 The " Alexander." 

other states to ourselves. In the. domain of International Law, 
therefore, principles and rules which the nations have recognised 
must be conformed to in their mutual relations. At this stage 
of, the Russo-Japanese War, when the enemy's warships meeting 
our merchant vessels at sea immediately sink them, though they 
are clearly not engaged in traffic forbidden_ in wartime, or 
carrying contraband of war, or aware of the opening of hostilities,' 
what reason is there that we alone should benefit the enemy by 
exempting his ships from capture by adopting a doctrine whifch 
has never yet been practised by our adversary or even by otl^er 
Powers, and is contrary to international usage? .Belligerent 
rights, are not confined to the exchange of shots with the enemy. 
It is part of existing International Law in time of war, generally 
recognised by all civilised nations, that when enemy. territory is 
occupied, requisitions and levies of money may be made upoji the 
subjects of the enemy, and at sea enemy shipping, i.e., private 
property, may be captured.. It is for this reason that the 
appellants' contentions may be said to be arguments that dis- 
regard. International Law. The other grounds of appeal have 
already been fully dealt with and need not be discussed again 
here. ; The present appeal is groundless,, and should be. 
dismissed. 

, The following are the reasons for the decision in this case : — 
The appellants state in the first ground of appeal that as 
such rules as the Regulations as to capture at sea agreed upon 
by the Institute of International Law at Turin in 1882* ought 
to iomx the standards of existing International Law, this vessel 
and her cargo, although enemy private property, ought not, in 
Accordance with those rules, to be condemned. Ftirther, that 
• a Prize Court need not be rigidly bound by the provisions of 
International Law in the same way as a court of justice iiitist 
observe the law of its own country, but should adapt its decisions 
to varying circumstances, and create new precedents on lines 
which are an advance upon the existing rules of International 
Law. I , > . 

But International Law, as it stands to-day, recognises that 
an enemy ship and enemy cargo carried in an enemy ship may 
be captured, so that the hope expressed by the appellants that 
action may be taken in conformity with the reaolutions of the 
Institute of International Law,® which , have ; not yet become 
rules of International Law, cannot be: considered as a ground of 
appeal. . ; , . . ., 

,: The second ground of the appeal is that , the business, of this 
vessel was, to act . as supply ship to the , vessels engagqd in 
fishing on the appellants' behalf, or to effect the sale of their 
aitches ; and, being thus engaged in mercantile business,,. she 
ought to be regarded as a merchant vessel, and as such should 

* Arnuaire de I'lnsfitut de Droit International, 1882-3, p. 213. 



The " Alexander" 91 

receive the privileges of Imperial Ordinance No. 20 of 190i.''' 
The appellants also desired that a new precedent should be 
established in the light of recent developments of International 
haw by the exemption from capture of a vessel which, as in the 
present case, was engaged in deep-sea fishing. . The above 
Inip6iial Ordinance was made with the object of protecting 
commerce, and is not applicable to a deep-sea fishing vessel 
stich as this. The appellants' request that a new precedent 
should be created by the exemption from capture' of a deep-sea 
fishing vessel is nothing more than the simple expression of 
their hopes, and the second ground of the appeal is therefore 
also devoid of substance. 

The third ground of the appeal states that, even assuming 
the seizure of this vessel and her cargo to have been lawful, the 
proper action to take should only be to" detain, or to employ 
her' during hostilities, and to release her upon the conclusion of 
peace. This also is nothing more than the expression of the 
individual hopes of the appellants, and cannot be held a good 
reason for allowing the appeal. 

The appeal in this case is therefore dismissed. , 

* App. C. 



92 



THE "LESNIK." 

Unemy ship — Deep-sea fishing vessel — Imperial Ordinance granting days of 
grace to Russian merchantmen — Practice — Time prescribed for entering 
claims — Proof of authority of advocate — Form of claim — Presentation by 
telegram. 

A Russian deep-sea fishing vessel was captured in a Japanese port 
Jjefore the expiry of the days of grace. 

Held by the Sasebo Prize Court that she was not entitled to the benefit of 
"the days of grace conf en-ed on enemy merchantmen by Imperial Ordinance 
No. 20 of 1904. 

The advocate for the owner entered a claim after the expiry of the 
prescribed period, having within that period announced by telegram his 
intention to do so. The -claim was rejected by the Prize Court as not 
laving been presented within the time prescribed. Held by the Higher 
Prize Court that as the telegram did not show the advocate's authority to 
•enter the claim, it could not be considered as having been entered within 
-the prescribed period. 

Ship and cargo condemned. 

The " Lesnik," a whaler belonging to a Russian subject, 
was captured in the port of Nagasaki on February 10th, 1904. 
She had on board various articles used for salting whales. 

The monition prescribed by Article 16 of the Prize Court 
Regulations," stating that parties interested might enter a 
•claim within a period of 30 days, was published in the Official 
Gazette on March 9th, 1904. On April 6th the owner of the 
""Lesnik" telegraphed to a Japanese advocate at Tokio, 
instructing him to enter a claim. This telegram reached the 
Tokio Post Office at 4.35 p.m. on the same day, and was 
•delivered to the advocate later in the evening. Being of 
opinion that it was impossible to prepare the claim and present 
it to the Prize Court before the expiry of the prescribed period, 
iihe advocate sent a telegram to the Prize Court on April 8th, 
-announcing his intention of entering a claim, and on April 11th 
entered the claim, with the telegram instructing him to do so. 

On April 18th the case came before the Prize Court, when 
judgment was given condemning the ship and cargo. 

Decision of the Saseho Prize Court.'f 

The Russian sailing vessel " Lesnik " and her cargo, con- 
sisting of salt, canvas bags, and empty casks, are hereby 
condemned. 

Facts and Reasons. 

The " Lesnik " and the goods on board her, consisting of 
salt and other articles, were captured in the port of Nagasaki, 
on February 10th, 1904, by Sub-Lieutenant M. "ifoshii, acting 

* App. A. 

t Published in the Official Gazette, Tokio, July 5th, 1904. 



The " Lesnlk." 93 

•under the orders of Captain S. Sakamoto of the " Katsuragi." 
At that time the existence of a state of war between Japan 
and Russia was a matter of common knowledge. 

That the " Lesnik " is a Russian vessel appears from the 
certificate given by the Russian Consul then at Nagasaki. 
The evidence of the Chinese subject, Chen-Ming-Chin, who 
had charge of the vessel, proves that she is a whaler owned 
by one Easlin, a Russian subject residing at Vladivostock, and 
that the salt and other articles aboard her are the property of 
Kaslin, and used for salting whales, &c. The " Lesnik " is there- 
fore an enemy vessel, and the salt and other goods are enemy 
goods. And as she is a deep-sea fishing vessel and not a 
merchantman, she is not entitled to enjoy the privilege of 
exemption from capture conferred on merchantmen by Imperial 
Ordinance No. 20, under date of Februaiy 9th, 1904.* Her 
capture, therefore, was lawful, and the vessel and cargo must be 
condemned. 

Judgment is therefore given as above. 



On the same date the Prize Court delivered a separate 
judgment rejecting a claim by the owner upon the gi'ound that 
the claim had not been lodged within the prescribed time. 
Against this decision the claimant appealed to the Higher 
Court. Judgment dismissing the appeal was delivered on 
June 17th, 1904. 

Decision of the Higher Prize Gourt.'f 

This is an appeal against the decision given by the Sasebo 
Prize Court on April 18th, 1904, rejecting a claim made in 
connection with the capture of the Russian sailing vessel 
" Lesnik" and her cargo. 

The substance of the argument of the advocate for the 
appellant was that in accordance with a notice inserted in the 
Official Gazette of March 9th, 1904, he entered a claim in regard 
to the capture of the " Lesnik" and her cargo. The claim was 
sent by telegi'am, as the time was short. Notwithstanding the 
lawfulness of the claim it was rejected on April 18th, 1904, as 
not being in proper form. The Prize Court Regulations:]: do 
not, however, prescribe any foi'm for a claim, and it is enough 
if the intention to enter a claim is announced within the period, 
whether by telegram or post. In this case the telegram 
instructing the advocate to announce the intention to enter a 
claim was received at the Tokio Post Office at 4.35 p.m. on 
April 6th, 1904, and delivered later in the day. Thus, even if 
the claim had been sent by the train leaving Shimbashi at 
9.30 p.m. the same day, it would not have arrived at the Prize 
Court at 'Sasebo, until the afternoon of the 9th or morning of 

* App. C. 

t Published in the Official Gazette, Tokio, June 24th, 1904. 

X App. A. 



94 The"Lesmh:' 

tlie 10th. Such being the cg,se, there was »o other means of 
announ(fing the intention to claim, and the .advocate; sent first a 
telegram to express his intention to .enter a claim .and then sent 
by post an ordinary claim to make the document complete. 
Thus the case is eiuite different from one in which a claim is 
not entered within th*e proper period. The case should there- 
fore be specially treated and the original decision reversed-., . 

The reg,SQns for the, decision of the, Oouytare as follows : — 

According to Article 17 of the Prize Court Eegulations,*. not 
only must a claim specify.the grounds»,on which it is made and 
be accompanied- by ithe docuinents and articles in proof of them, 
but if it is infide-,th:f:Qugh an agent,- such , agent must be a 
Japanese advocate. So that in order to make a claina through 
an advocate, asiin the case now under consideration, the claim 
must be accompanied by a document) sufficient to prove his 
authority. On examining the record, it appears that the 
advocate of the claima,nt,, in communicating .by telegraph: his 
intention to enter a claim. on April 8.th, 190i, did not produce 
anything to.. shQW.Jiis, a,uthority, and after the lapse of the 
period allpwe(3, for entering claims, on the 11th of the same 
monthjhe for the first time deposited a claim accompanied by a 
telegrani showing his authority. The claim cannot therefore 
be said to have been,, entered within the period allowed. The 
rejection of the claim by the Prize Court, as not- having been 
presented within the time prescribed, is proper, and there is no 
ground for the ^pppal, , , , 

The decision of this Court is therefore as follows : — 

This apjjeaL is dismissed. '' 

''■ ''. ' ■'* App. A. ■ 



95 



THE "KOTIK." 

Enemy ship — -Capture in Japanese port before expiry of days of grace — 
Employment hy enemy authorities — Fishing vessel — Imperial Ordinance 
granting days of grace to enemy merchantmen. ' 

A Russian steamer was in a Japanese port when war broke out, and 
was captured before the expiry of the days of grace. She had been on 
occasions employed hy the Russian authoi-ities in the ■ isuppression of illicit 
fishing, and was th^ property of a company engaged, in hunting and fishing. 

Held by the Tgko^uka Prize Court and the Higher Prize Court that 
the fact of her employment by the Russian authorities was sufficient to 
disentitle her to the ' privileges as to days of gi-ace conferred oh enemy 
merchantmen by Imperial Ordinance. . i i , , • 

Ship condemned. ' ■;;,:;■ 

Held by the Tokosuka Prize Court that she was a fishing vessel, and 
therefore not entitled to the privileges cbnfewed. on merchantmen. 

The " Eotik," a steamer belonging to tlie Kamscliatka. Com- 
mercial and Industrial Company of St. Petersburg,, arrived at 
Yokohama on December 25th, 1903, and was still there when 
War broke out. On February 10th, 1904iand\ therefore before 
the expiry" of the days of grace granted to Russian m^chantmen 
by Imperial Ordinan'ce No. 20 of 1904,® she A^as captured in 
the harbour by the Japanese warship " Aniaki." , ::■. 

The " Kotik " had originally been the property of a Russian 
company known as the Sealskin Company, and while under 
tliat ownership had on occasions been employed by the Russian 
authorities in the' prevention of illicit fishing. Since becoming 
the property of ' the Kamschatka Commercial .and Industrial 
Company she had only once been so employed, vizj, on August 
6tli, 1902; but the Higher Prize Court- found that the two 
companies were closely^ connected, and that the " Kotik 's " 
employment in the prevention of poaching- was not affected by 
the change of ownership. According to the decision of the 
Yokosiika Prize Court, the business of the Company was 
hunting and fishing' in Kamwchatka, and the ''Kotik" -was 
employed in the carriage of fish, supplies, and fishermen for, -the 
service of the Company. >h 

The case came before the Yokosuka Prize, Court on May 
18th, 1904, when, judgment was given condemning , the vessel. 

Decision of the YokosithaPrirteOotirt.f\ .: 
The steamer "Kotik" is hereby condemned. 

' ■ I- ■■■■! ■ . ■ I |, i , ; 

Facts and Reasons.' 

The "Kotik" is the property of the Kamschatka Conv. 
mercial and Industrial Company, of St. Petersburg, which is 

* App. C. ' '' '" 

t Published in the Oficiai Ganette, Tokio, July 6th, 1905. 



96 The " Kotihr 

engaged in hunting and fishing in Kamschatka, Russia. She 
is registered at Vladivostock, has a licence to fly the Russian 
flag, and is employed by the Company to transport fish, supplies, 
and fishermen. It is also customary for her to act for the 
Russian Government authorities and to watch for vessels 
engaging in illegal fishing. She had been at Yokohama since 
the 25th December, 1903, and when war broke out between 
Japan and Russia she was captured in that port by the Japanese 
man-of-war " Amaki " on the 10th February, 1904. 

The above facts appear from the evidence of Lieutenant 
Y. Kamakura, I.J.N., representing the captain of the "Amaki," 
Commander Y. Minami, T.J.N., formerly captain of the "Amaki," 
H. Yuasa, chief of the Yokohama Water Police Station , first mate 
Ufmann, representing the master of the " Kotik," S. Moji, 
engineer of the " Kotik," T. Kawakami, second secretary of 
legation, G. Kuraoka and S. Fukai, tide-waiters of the Custom 
House, S. Shimidzii and T. Saito, from the statement submitted 
by Commander Y. Minami, the ship's papers, the statement 
produced by the above-mentioned representative of the master 
of the steamer, the decision of the Vladivostock District Court 
in the case of the sailing vessel " Kij^omasa Maru," &c. 

The substance of the petition presented by the Kamschatka 
Commercial and Industrial Company is as follows : — 

The " Kotik " is a vessel employed for commercial purposes, 
and in the eye of the law she is a merchantman. She was 
entitled, therefore, to leave the port not later than the 10th 
February. In spite of this she was captured before the days of 
grace had expired. The capture was, therefore, unlawful. In 
order to decide whether the capture was lawful or not, it is 
necessary to decide, first, whether she is a Russian merchaat- 
man or a Government vessel, and, if she was not a Government 
vessel, whether she was entrusted by the Government with the 
exercise of police authority or not. Now, in order to constitute 
a Government vessel, two things are necessary. First, that the 
vessel be under the immediate control of the Government, that 
is, that there be a superintending officer on board. Secondly, 
that she is employed for purposes of State, that is, in the exercise 
of Government authority. Even if it be admitted that the 
" Kotik " had performed police services on behalf of the Russian 
Government, it was restricted, as is shown by the evidence of 
S. Moji, to the time when there was a superintending officer on 
board. A vessel cannot be said to be a Government vessel 
when there is no superintending officer on board, even if she 
had been once so employed, for she loses her official character 
when she ceases to be employed in that capacity. The " Kotik " 
was captured after a voyage to Japan with a cargo of marine 
products, so that she had not the character of an official 
vessel. Moreover, "the police service which she is said to have 
rendered was not rendered by the master, as a deputy of the 
Russian Government, but she was hired by Russian officers for 



The " Kotik:' 97 

the purpose of exercising such autliority. In other words, 
except when she was employed on police service and hired by 
the Russian Government, she was a merchant vessel employed 
for the purposes of the mercantile company to whom she 
belonged.- She should, therefore, be released. 

The conclusion of tlie Court is that the " Kotik" is a fishing 
vessel, as stated above, employed for the transportation of 
fish, &c. Moreover, according to the evidence of G. Kuraoka 
and T. Kawakami, slie may be considered as hiaving exercised 
Government authority, even when there was no official on board. 
The evidence of S. Moji is not sufficiently strong to refute 
the allegation that it was customary for her to exercise such 
authority. If the vessel has such a character she cannot be 
said to be a merchantman, even if she were captured after a 
voyage to Japan with a cargo of marine products, and when 
not exercising any Government authority. 

For these reasons the "Kotik" cannot be considered a 
merchant vessel entitled to the privileges granted by Iniperial 
Ordinance No. 20 of 1904,® and the action of the captain of 
the " Ainaki " in capturing her was lawful. She should not, 
therefoire be released, and judgment is given as above. 



The owners appealed to the Higher Prize Court. 
Judgment was given on July 1st, 1905, dismissing the 
appeal. 

Decision of the Higher Prize GouH.'f 

This is an appeal against the decision of the Yokosuka 
Priue Court given on May 18th, 1904, condemning the "Kotik." 

The substantial arguments in support of the appeal were as 
follows : — 

The appellant company made it their object to engage in 
the purchase and sale of the skins of marine animals, the manu- 
facture and transport of tinned manure, and also the supply of 
general necessaries to the population of Kainschatka. They 
were not engaged in fishing, and the "Kotik" was a merchant 
vessel plying for the pul:pose of transporting skins purchased 
by the company and goods manufactured by them, and carry- 
ing passengers and freight. Consequently the Prize Court's 
decision in pronouncing her to be a fishing vessel was erroneous 
in fact. The circumstances relied on by the Prize Court as 
establishing the conclusion that the " Kotik " was in the habit 
of performing' official duties occurred only during the period 
when she was the property of the Sealskin Company, and since 

* App. C. 

t Published in the Official Gazette, Tokio, July 6th, 1905. 
E 127!50 



98 The"Kotik:' 

tliat time only one instance had occurred, viz., on August 
6tli, ] 902, so tliat it certainly could not be said that she was 
regularly employed in exercising functions on behalf of the 
Russian Government. Moreover, in both periods the " Kotik's " 
employment in the prevention of illicit fishing was confined to 
occasions when officials were on board. Her public character 
ceased immediately the officials left her, , and at the time of 
capture she was a genuine merchant vessel. Consequently her 
X!apture during the period of grace allowed for leaving port 
luider Imperial Ordinance No. 20'"-'' was illegal, and she should 
be released. The appellants therefore pray that the decision of 
the Yokosuka Prize Court condemning the " Kotik " should be 
reversed, and that she should be released. 

The substance of the reply of the Procurators of the 
Yokosuka Prize Court was to the effect that it was clear from 
the evidence of the representative of the master of the " Kotik," 
and fi-om the report addressed by Consul Nomura Motonobu 
to the Minister for foreign Affairs, that the Kamschatka 
Commercial and Industrial Company was engaged in the occu- 
pation of deep-sea fishing, and the evidence submitted by the 
appellants was not sufficient to prove that they were not so 
engaged. Further, the facts that at the time when the 
" Kotik " took part on August 6th, 1902, in the prevention of 
illicit fishing, a^ date when there was no entry in the log to 
indicate that she had been chartered by the local authorities, 
she purposely anchored close to a vessel under suspicion of 
being a poacher and caused her crew to accompany the local 
authorities, and assisted in the examination and arrest of the 
suspected vessel ; that at the time when the " Kotik " belonged 
to the Sealskin Company she took part on several occasions in 
the arrest of poaching vessels ; that the appellant company 
engaged in precisely the same business as the Sealskin Company, 
having in fact as their representative a director of the Sealskin 
Company ; that the business of Kamschatka was entirely in 
their hands, and that they enjoyed extraordinary influence in 
that region — all these facts together are sufficient to establish 
ihe presumption that the " Koiik " had authority to exercise 
certain police functions, and therefore as the appellants failed 
to produce evidence sufficient to. rebut this presumption, the 
original decision was correct. 

The reasons for the decision of the Court are as follows : — 

It is clear from entries iii the log, &c., that the " Kotik " 

fi-om Ihe time when she belonged to the Sealskin Company 

frequently took part in the prevention of illicit fishing and 

engaged iii the pursuit, arrest, and bringing in of poaching 

* App. C. 



The " Kotik." 99 

vessels. Althougli the appellants contend that these circum- 
stances occurred for tlie most part during the period when she 
was the property of the Sealskin Company, and are therefore 
jnsu.fficient to prove that she is so employed at the present 
time, yet as the appellant company succeeded to the Sealskin 
Company's business, and made a director of the latter 
Company their representative, and as the crew were hardly 
aware of any alteration in the state of things after the change of 
ownership, it is impossible to admit that the two companies 
-were quite distinct and iinconnected associations, ^and the 
record of the evidence of the crew forces one to the conclusion 
that there was no change during the later as compared with 
the earlier period, at least iat so far as concerns the " Kotik's " 
<;onnection with the preventioi^ of poaching. Further, although 
the appellants contend with regard to such action by the 
"" Kotik " that she was only engaged as a public vessel tempo- 
rarily, and solely wlien officials 'were on board, and lost her 
public character when they departed, the entries in the log 
show that there were occasions when she was engaged in the 
prevention of poaching without being under the orders of 
officials, and there are no entries indicating that her official 
■employment was only of a temporary nature, nor do the circum- 
stances support such a contention. Moreover, such facts as the 
■" Kotik" having, on August 6th, 1902, purposely anchored near 
a vessel suspected of being a poacher and caused her crew to 
accompanj' the local authorities and assisted in the examination 
and arrest of the vessel, are only explicable on the assumption 
that she was charged with special functions by the Russian 
■Government. In short, the " Kotik " was engaged, whenever 
occasion required, in the prevention of illicit fishing-, and was 
•charged with duties which involved enforcing the official 
authority of Russia, and she was therefore not an ordinary 
merchant vessel. Imperial Ordinance No. 20 of 1904® is only 
applicable to ordinary merchant vessels, and vessels charged 
with special duties by the enemy Government are not entitled 
to enjoy the privileges granted thereby. The decision of the 
Yokosuka Prize Court condemning the "Kotik "was correct. 
The question has been argiied whether the " Kotik '' was to be 
held a fishing vessel or not, but in view of the fact above^ stated^ 
that she was not a merchant vessel to which Imperial Ordinance 
No. 20* applies, the Court sees no necessity for giving a decision 
on this point. 

The appeal is therefore dismissed. 

* App. C. 



100 



THE "MANCHURIA" (No. 2). 

Bfienvy.sMp — Vessel undex repair and unfit to put tosea—^Gwptvre effected in 
. harbour— Days of grace. , 

■ . A.Russifiii vessel was undergoing repaii- in a Japan^e dock at the time 
of the outbreak, of war, and was unfit to put to sea when the days of, gi-ace 
expiired. She was then captured. 

' ' • Held" that she was liable to condemnatioii, as the Imperial Ordinance 
giuntlng'days of ^cace made no distinction between vessels capable of 
put^iing to sea audiihose which were not. 

'■ T^ " Manchuria," belonging to the Chinese Eastern Railway- 
Cdnipany of St. Petersburg, was under repair in the Mitsubishi 
Dockyard at Nagasaki ih February, 1904, when war bi'oke out 
between Russia and Japan. She was not in a condition to put, 
t'o'fea', and was captured by a Japanese warship as soon as the- 
dkys of gi'ace granted to Russian merchant ships in Japanese 
ports had eipir^d. The case came before the Sasebo Prize 
Cdiirt and judgment was given on May 26th, 1904. condemning 
the vessel. 

Decision of the Saseho Vrize Court.'-^ 

Thfe steamship "Manchuria "and certain liquors and provi- 
sions.,belonging to her are hereby condemned. 

Facts and Reasons. 

, The " Manchuria " is the property of the Chinese Eastern 
Railway of .Russia, and on the 17th of Februaiy, 1904, 
while under repair at the Mitsubishi Dockyard of Nagasaki 
and lying at the buoy off the --dockyard, she was captured by 
the; Japanese man-of-war " Katsuragi." The liquors and pro- 
vision^ Avere found on board at the time of capture. 

The above facts appear from the report of Lieutenant H. 
Yokoo, I.J.N,, representing the captain of the " Katsuragi," 
the, evidence of the same ofHcer and .of the caretaker of the 
"Manchuria,", Walker, an Englishman, the certificate of 
registry given by the Russian Consul then residing at Nagasaki, 
the copy of ' the order for repairs, and the statement of the 
advocate, &c. 

The substance of the claim of the Chinese Eastern Railway 
Company was that under International Law an enemy merchant 
vessel can only be captured by the belligerent in his territorial 
waters or those of an allied. Power, or on the high seas. The 
steamship " Manchuria " was in the dock of the Mitsubishi 
Dockyard at the time of her capture, and consequently the 
capture was not lawful. Even if it was conceded that sbe was 



* Published in the Official Gazette, Tokio, February 18th, 1905. 







The "Manchuria " [No. 2). 

not then in the doek, she oiight not to be captured, as she was 
still in the hands of Japanese subjects. Moreover, Imperial 
•Ordinance No. 20 of 1904,* which permitted JRussiau merchant 
vessels lying in the territorial waters of Japan at the tune when 
ihe Ordinance took effect to depart not later than the 16th of 
February, 1904, was meant for vessels in a condition to navigate 
.the seas ; and a vessel, such as this, which had no crew at the 
time of the pi-omulgation of tlie Ordinance, the hull of which 
was under repair, and which was quite unfit to put to sea,: 
-sliould not be captured merely because the days of grace had 
expired. The ship and the liquors and provisions should, 
therefore be released. 

The substance of the argument of the Procurator was that 
the claim was groundless, and that the ship and liquors and 
provisions should be condemned. 



After due consideration, the Court decides that although it 
Is argued that the ship was captur&d in dock, the facts clearly 
sbow that such was not the case. It is also argued that' the ship 
was in the possession of Japjtnese subjects, so that she was not 
liable to capture. But the qiiestion who had possession of a 
vessel when she was cgptured has nothing to do with the 
validity of the capture; Another argument is that the ship was 
not in a condition to navigate the seas, and therefore ought not 
to have been c^tured merely on the ground that the days of 
grace had expired. But the right of capturing enemy vessels 
is a general principle of International Law, and Ordinance 
No. 20 of 1904* is an exception to the ordinary rule. The: 
•capture of any vessel which does not fulfil the conditions laid 
down in the Ordinance is, therefore, lawful, whetlier she was in 
a condition to put to sea or not. In a word, the " Manchuria " 
was an enemy vessel, the place and date, and the procedure 
follotved in her capture were all proper, and the Court does not 
■see any rea^n to release her. The liquors and provisions belong, 
to;the ship, and must be considered as the property of the. 
•owner of the ship, so that they also are liable to condemnation, 
Judgment is therefore given as above. 



The owners appealed to the Higher Prize Court from the 
above decision. The appeal was dismissed on February 4th, 
1905. '' 

Decision of the Higher Prize CoM?'t.| ■■ 

An appeal has been entered in the case of the Russiac steani- 
ship " Manchuria," belonging to the Chinese Eastern Railway 

* App. C. 

t Published in tbe O^fficial Gazette, Tokio, February 8th, 1905. 



102 The " Manchuria " (No. 2). 

Company, which, was captured in the harbour of Nagasaki by 
the " Katsuragi " on February 17th, 1904, against the judgment 
of May 26th, 1904, condemning the ship and the liquors and 
provisions belonging to her. 

The arguments on behalf of the appellants were that the- 
Prize Court admitted that the vessel was captured 'while- under- 
going repairs at the Mitsubishi Dockyard in Nagasaki ; she was- 
therefore in the possession of a Japanese subject, and con- 
sequently could not be liable to capture like a vessel on the high 
seas or in territorial waters. rurtherm6:fe, at the time of the- 
issue of Imperial Ordinance No. 20 of 1904* the vessfel wa& 
quite incapable of putting to sea, and could not properly be- 
captured on the ground that the time limited for proceeding 
to sea had expired. The release of the ship and cargo waa 
therefore claimed. 

The substance of the reply of the Procurator of the Sasebo- - 
Prize Court was that none of the grounds of appeal had any 
force ; that the capture of the vessel and goods on board were- 
valid, because the conditions for rendering maritime capture 
valid were fulfilled ; and no exception whatever could be taken 
to the decision declaring their condemnation. The appeal 
should therefore be dismissed. 

The grounds for the decision in this case are as follows : — ■ 
The arguments in support of the appeal in this case are that 
the vessel at the time of capture was under repair in the- 
Mitsubishi Dockyard, and therefore in the possession of a 
Japanese subject, and consequently could not be regarded 
in the same light as, or be liable to capture like, a vessel on the- 
high seas or in territorial waters ;. and furthermore, that, at the 
time of the issue of Imperial Ordinance No. 20 of 1904-'- she was. 
quite incapable of navigation, and therefore could not properly 
be captured because the time limited for proceeding to sea had 
expired. But there is no reason why ships should lose their 
character as proper objects for capture at sea merely because 
they are under repair, nor, once it is shown that a vessel is an 
enemy vessel, does the question as to who is in possession of 
her in any way affect the validity of .the capture. Imperial 
Ordinance No. 20® is based on a usage which operates by way 
of exception, as -it exempts enemy merchant ships from capture,, 
but it operates for a fixed period only, and makes no distinction 
during that period between vessels able to put to sea and those 
unable to do so. There was consequently no reason for granting 
an extension of the period of grace to this vessel, and the 
decision of the Prize Court condemning her and the liqiiors 
and provisions belonging to her was correct. 
. The appeal is therefore dismissed. 

* App. C. 



103 



THE "JULIETTE." 

Enemy shijp — Owner domiciled in Japan until shortly before the wa/r — With- 
drawal to enemy territory — Ship entitled to fly the enemy flag — Harbour 
launch — Capture in Japanese port after expiry of days of grace — Right 
of belligerent to capture innocent enemy vessels. 

A small' steamer, used as a launch in a Japanese harbour, failed to leave 
within the period of grace allowed, and was captured on its expiry. 

She was entitled to fly the Russian flag, and was owned by a merchant 
who had been established in Japan and elsewhere, but had withdrawn to 
Russian territory before the outbreak of war. 

Held that the vessel should be condemned as an enemy ship. 

Liability to capture is not confined to ocean-going vessels. 

An enemy merchantman may be captured, although she has no con- 
traband on board, and has not been guilty of any hostile act. 

The " Juliette," a steamer belonging to a Riissian subject 
named Ginsburg, who was a contractor for the Russian army 
and navy, was used as a launch at the Japanese port of 
Nagasaki. In December, 1903, her owner, foreseeing the out- 
break of war, withdrew to Dalny, and thereafter the " Juliette " 
was in charge of a British subject named Dow, who was the 
Nagasaki manager of the firm of Ginsburg & Co. She remained 
at Nagasaki after the oiitbreak of war, and on the expiry of the 
days of grace granted by Imperial Ordinance No. 20 of 1904"'''' 
was captured in the harbour by the Japanese warship 
" Katsuragi." 

The cafie came before the Sasebo Prize Court on May 26th, 
1904, when judgment was given condemning the vessel. 

■ Decision of the Saseho Prize Court.'\ 
The steamer " Juliette " is hereby condemned. 

Facts and Reasons. 

This steamer is the property of a Russian subject named 
Ginsburg, ^he flies the Russian merchant flag, and was used as 
a launch at - Nagasaki. Her owner is a contractor for the 
Russian amiy and navy, having branch offices at various places 
in the East. In December, 1903, when he saw that war might 
break out between Japan and Russia at any moment, he with- 
drew from Nagasaki to Dalny. After that date the vessel 
was in charge of one Dow, a British subject and manager at 
Nagasaki of Ginsburg & Co. She was captured in the port of 
Nagasaki by the Imperial man-of-war "Katsuragi" on the 
17th of February, 1904, at 11 a.m. 

The above facts appear from the statement of S. Sakamoto, 
captain of the "Katsuragi"; the report and certificate of 

* App. 0. 

t Published in the Official Gazette, Tokio, June 24th, 1904. 



104 The " Juliette." 

capture produced by Sub-Lieutenant M. YosLii, representing 
the captain of the " Katsuragi " ; the. class A certificate of 
survey ; the report of the police inspector, M. Yeguchi, Chief of 
the Umegasaki police station, Nagasaki Ken ; and the evidence 
of K. Uotani, foi-merly master of the vessel,and of Sub-Lieutenant 
M. Yoshii. 

The substance of the claimant's argument was (1) that ■ the 
vessel vvas used by Ginsburg & Col for the purpose of com- 
munication, with vessels, Japanese or foreign, with which the 
company had dealings, or to embark or disembark passengers, 
and was not an ocean-going vessel ; (2) . that the vessel had 
never carried contraband of war, nor been guilty of any hostile 
act against Japan. Accordingly the vessel should be released. 

The substance of the argument of the Procurator was that 
the contentions of the claimant could not be maintained, and 
that the vessel should be condemned as lawful prize. 



After giving due consideration to the case, the Court finds 
that the owner of the vessel is a Russian subject, and had a 
residence in " the Japanese Empire for purposes of business. 
But as he withdrew from the Empire to Dalny in December 
1903^ foreseeing the outbreak of war between Japan and 
Russia, he is an enemy person in International Law, and a 
vessel owned by him is enemy property. As the vessel fleW 
the Russian merchant flag, she is an enemy vessel for this 
reason also.' And as ain enemy vessel may be lawfully captured 
in time of war at any place except within neutral waters, 
whether such vessel is a harbotir or ocean-going vessel, whether 
she carries contraband, of war or not, and whether or not she 
has been guilty of a hostile act, the capture of the vessel under 
consideration, after the commencement of war between Japan 
and Russia, is lawful, and she is' liable to condemnation. 

Judgment is therefore given as above. 



105 



THE "NADESHDA." 

Unemy ship — Merchant vessel — Faihire to leave Japanese port before expiry 
of days of grace — Bight of belligerent to capture enemy merchantmen. 

A Russian merchantman was in a Japg,nese port when war broke out. 
She failed to leave within the period allowed by the Japanese Ordinance 
pi-escribing days of grace for Russian merchantmen, and on its expiry was 
captured in the harbour. 

Ship condemaed. 

The RiTssian merchant vessel "Nadeshda" arrived at the 
Japanese port of JJakodate on November 28th, 1903, and was 
still there when, on i^ebruary 6th, 1904, war broke out. By 
Imperial Ordinance No. 20 of 1904,-'- Riissian merchantmen in 
Japanese ports were allowed to leave within 10 days of the 
outbreak of war. The "Nadeshda" was accordingly warned 
by the captain of the Japanese warship " Takao " to leave 
Hakodate on or before Febraary 16th, but she failed to do so, 
and after the expiry of the prescribed period, was captiired by 
an officer sent from the " Takao " for the purpose. 

The case came before the Yokosuka Prize Court on May 
12th, 1904, when judgment was given condemning the vessel. 

Decision of the Yohosuka Prize Court.^ 
The sailing vessel "Nadeshda" is hereby condemned. 

Facts and Beasons. 

The " Nadeshda " is the property of EJ^higehe Josephovich 
Nicolski, a Russian subject, and is a merchantman principally 
employed in transporting goods. She is registered at Vladi- 
vostock, and has permission to fly the merchant flag of the 
Russian Empire and a licence to engage in commerce or the 
transport of goods. She entered the port of Hakodate on 
November 28th, 1903, and was still there when on February 
6th, 1904, war broke out between Japan and Russia. On the 
9th' of the same month, an Imperial Ordinance® was promul- 
gated concerning the exemption of Russian merchantmen from 

capture. 

The captain of the Imperial man-of war " Takao " then 
ordered the "Nadeshda" to leave Japanese waters within the 
period during which Russian merchantmen were exempt from 
capture, that is to say, on or before February 16th, 1904. The 
vessel, however, remained in port after the expiry of^ this 
period of grace, and therefore the captain of the " Takao " sent 
Joji Tajima, one of his officers, to the " Nadeshda " to capture 

* App. C. 

t Published m the Official Gazette, Tokio. 



106 The " Nadeshda." 

her according to the Japanese Regulations relating to Capture 
at Sea.* 

The above facts appear from the statement of the captain 
of the " Takao," the report of , Joji Tajima, the navigation 
licence, the evidence of Joji Tajima and Ivangarich, the repre- 
sentative of the master of the " Nadeshda," &c. 

It is recognised both by the Japanese Regulations relating, ta 
Capture at Sea® and by the theory and practice of International 
Law, that in time of war a belligei-ent has the right to capture 
enemy merchantmen, except when he voluntarily exempts 
them. The " Nadeshda " did not leave the port within the 
period of grace prescribed in the Imperial Ordinance! conferring 
exemption on Russian merchantmen from capture, and con- 
sequently she was hable to capture. 

Judgment is therefore given as above. 

* App. B. t App. C. 



107 



THE "BOBRIK." 

lEnemy ship — Imperial Ordinance granting days of grace to enemy merchantmen 
— Capture in Japanese port after expiry of days of grace — Temporary 
withdrawal of permission to leame — Right to capture enemy private' 
property at sea — Law to he applied hy Prize Courts. 

A Russian ship was in a Japanese port when war broke out on 
February 6th, 1904. In accordance with the provisions of Imperial 
Ordinance No. 20 of 1904, she was given notice to leave not later than 
February 16th. On February 12th she was forhidden to leave tiU further 
carders, but on February 13th this order was cancelled. She failed to leave 
within the prescribed period, and was captured on February 17th. 

Held that the temporaiy withdrawal of the permission to leave did not 
render the capture unlawful, and that tl^e ship should be condemned as an 
enemy ship. 

The right to capture enemy private property at sea is recognised by 
existing International Law. 

It is the duty of a Prize Court, in deciding the legality of a capture at 
sea, to follow the rules and usages of International Law, and the laws of its 
own country. 

The "Bobrik" was a sailing vessel belonging to a Russian 
company engaged in hunting and fishing in Kamschatka, and 
was principally employed in the transport of the fish and 
animals caught, and in carrying fishermen and stores to the 
fishing grounds. On October 19th, 1903, she arrived at the 
Japanese port of Hakodate, and she was still there when war 
broke out on Febi-uary 6th, 1904. In accordance with the pro- 
visions of the Imperial Ordinance promulgated on February 9th, 
1904,* granting days of grace to Russian merchantmen in 
Japanese ports, the captain of the Japanese warship " Takao " 
ordered the "Bobrik" to leave the port not later than 
February 16th. The Hakodate agents of the " Bobrik " there- 
upon: telegraphed to the Yokohama agents asking whether a 
crew could be engaged there, and on February 11th an answer 
was received in the affirmative. Owing to the late hour at 
Avhich this telegram was received no reply was sent on that day 
instructing the Yokohama agents to engage a crew, and on 
February 12th, in consequence of a rumour that a Russian 
squadron was about to attack Hakodate, the captain of the 
"Takao" ordered the "Bobrik" not to leave port till further 
orders. The Hakodate agents accordingly telegraphed to 
Yokohama to break off the arrangements for engaging a crew. 
On February 13th the prohibition to leave was withdrawn, and 
the agents thereupon requested the captain of the " Takao " to 
extend the days of grace, but he declined to do so. Considering 
that it was in the circumstances impossible to get the " Bobrik" 
away in time, the agents took no further steps the matter, 
and on February 17th she was captured in the port by an officer 
from th e " Takao." 

* ipp, C. 



108 The "Bohrikr 

The case came before tlie Yokosuka Prize Court on May 18th, 
1904, when judgment was given condemning the vessel. 

Decision of the Yokosuka Prize GourtJ^ 
The sailing vessel " BoLrik " is hereby condemned. 

Facts and Reasons. , 

The "Bobrik " is the property of the Kamschatka Commercial 
and Industrial Company, St. Petersburg, which is engaged in 
fishing- and hunting in Kamschatka. She is registered at 
Vladivostdck, has a licence to flj' the Russian merchant flag, 
and is principally employed in transporting the fish and animals 
caught, and in carrying, stores and fishermen to the fishing 
■grounds. She entered the port o£ Hakodate on the 19th of 
October, 1903, and remained there ; and on February 6th, 1904, 
war broke out between Japan and Russia. On the 9th of 
the same month an Imperial Ordinance! was promulgated 
<;once]-ning the exemption of Russian merchantmen from capture, 
and the captain of the Imperial man-of-war " Takao " ordered 
the " Bobrik " to leave Japanese watera within the days of 
grace prescribed in that Ordinance ; that is, not later than the 
16th of February. On the 12th of February a report was 
received to the effect that part of the Russian fleet was about to 
attack Hakodate, and at 11 a.m. on the same day the captain of 
the " Takao," as a measure of naval exigency, gave orders to 
the agents of the " Bobrik " through the Hakodate Water Police, 
f^3rbidding her to leave port until further orders. Before long 
the necessity for detaining the vessel disappeared, and on the 
13th, at 9 a.m., a third order was given through the Hakodate 
Water Police cancelling the second order by which the vessel's 
departure was prohibited, and permitting lier to leave port not 
later than the 16th. When the first order enjoining the vessel's 
■departure before the 16th o£ February was received, the agents 
of the " Bobrik " telegraphed to Smith, Baker & Co., of Yokohama, 
inquiring whether a crew could be engaged to navigate the 
vessel. An answer was received in the affirmative, but then the 
vessel was, for the time, forbidden to depart, and the agents 
'Stopped negotiating for the engagement of a crew. On receiving 
the third order on the 13th permitting the vessel to leave, the 
agents requested the captain of the " Takao " to extend the 
■days of grace, but this was refused. The vessel did not leave 
Japanese territorial waters within the days of grace, and on the 
17th February, at 9.30 a.m., the captain of the " Takao " sent 
J. Tajima, an officer of the ship, to capture the " Bobrik," in 
accordance with the provisions of the Japanese Regulations 
relating to Captui-e at Sea.f 

* Published iu the Official Gazette, Tokio, May 18th, 1904. 
t App. 0. t App. B. 



The " Bohnlr:' 109 

The above facts appear from the reports of the captain of 
the " T^kao",and of J. Tajima, an officerrof the ship^ from the 
evidenceof J . Tajima and John Andrew Wilson, of Howell & Co., 
the agent for the " Bobrik," from the ' navigation licence, a 
letter from the captain of the " Takao " addressed to the 
Councillor in cjiarge of the case in answer to inquiries, and 
a letter from the above-mentioned Wilson addressed to the 
(Councillor in charge of the case. 

The, sulastance of the argument of the Kamschatka Com- 
mercial and Industrial Company was as follows : — 

The " Bobrik " is the property of a private concern estab- 
lished with the object of making profits, and is a vessel 
employed for purely, commercial purposes. She ought , o^ot, 
therefore, to be captured. It is a general principle of In|;er- 
national Law that hostile acts should be restricted to states, and 
that private individuals should not be injured. The inviolability 
of private property on land is a fundamental principle; which 
has exerted influence upon the rules of maritime warfare, and 
the practice of capturing enemy private property at sea, autho- 
rised by ancient practice, has been gradually restricted. Nor is 
this tendency only shown by the arguments of international 
lawyers, for the principle has been adopted by great Powers, 
such as Germany, Austria, Italy, and the United States. In a 
word, the unreasonableness and inconvenience of capture at sea 
is universally acknowledged, and the abolition of the practice is 
the desire of the world. The claimants therefore request the 
Court to release the " Bobrik " in accordance with justice. 
Besides, there are circumstances connected with the capture 
that must be taken into consideration. The vessel was treated 
as a merchantman, and on the ^th of February she was ordered, 
according to Imperial Ordinance No. 20 of 1904, *' to leave 
Japanese waters within a week. Before this' period had 
expired, that is, on February 12th, the second order' Avas 
received temporarily prohibiting the vessel's departure.. The 
attempt to engage a crew, which was being made at Yokohama, 
was therefore stopped, and when the third order cancelling the 
prohibition was received there were only three days left for the 
vessel to depart. It was impossible to engage a crew in that 
shoi't period, and an application was, therefore, made to the 
authorities asking for an extension of the days of grace. This 
was, however, refused, and the vessel was captured on the 
expiration of the days of grace prescribed in the Imperial 
Ordinance. The capture was therefore irregular, and for tliis 
reason also the vessel ought to bo relea;sed.. 

After due consideration the Court decides as follows : — 
The inviolability of private property, referred to in the 
claimants' argument, is recognised in modern International Law 

* App. C. 



110 The " Bohrikr 

as I'e'gards land warfare ; but at sea the principle has never 
been recognised as a rule, nor has it been adopted in the 
Japanese Regulations relating to Capture at Sea.* As regards 
the other points raised, the captain of the " Takao," for 
military reasons, temporarily forbade the vessel to ded,ve port, 
and the agents stopped arranging for the engagement of a 
crow. There was sufficient time for the vessel to make all 
preparations and leave port before the expiration of the days 
of grace. This time was not, however, -utilised, and ■ the vessel 
was at last captured. The act of the captain of the " Takao " 
in capturing the " Bobrik " was not unlawful. 

As to the character of the vessel there is some contention, 
the claimants alleging that she is a merchantman, and the 
Procurator that she is a tender for deep-sea fishing boats. 
But as she was captured on the expiration of the days of grace, 
there is no need to decide her character. 

For these reasons the " Bobrik " is liable to condemnation, 
and judgment is given as above. 



■ The owneis appealed against, this decision to the Higher 
Prize Court. Judgment was given on December 9th, 1904, 
dismissing the appeal. 

Decision of the Higher Prize Court.'\ 

This is an appeal against a decision given by the Yokosiika 
Prize Court on May 18th, 1904, condemning the sailing ship 
■" Bobrik," belonging to the Kamschatka Commercial and In- 
dustrial Company of St. Petersburg, which was captured by 
the Japanese warship "Takao" at the port of Hakodate, on 
February 17th, 1904. 

The substance of the grounds of the appeal were as follows : — 
The decision of the Yokosuka Prize Court condemning the 
■" Bobrik " was wrong, and it should therefore be reversed and 
the " Bobrik" released. 

■ The Prize Court held that, although the in\-iolability of 
«nemy private property on land is a generally accepted principle 
of existing International Law, yet it is not adopted as regards 
enemy property at sea by any univeisally recognised rule or 
us^ge of International Law. But the Italian Maritime Trade 
Law issued in 1865 provided for the exemption frona capture 
of the merchant vessels of a hostile power in cases where 
reciprocity was given, and during the A*=ar between Prussia, 
Austria and Italy in 1866 all three nations strictly observed the 
rule; and not a single anerchant vessel was captured. At the 
beginning of the war of 1870 between France and Prussia, 
Prussia adopted the principle without any reference to reciprocity, 

* App. B. 

t Published in the Official Oazette, Tokio, December 14th, 1904. 



The"Bobrik." Ill 

and in 1870, Italy and the United States agreed by a treaty to 
observe tbe nde in case of war occurring between them. It 
appears from these facts that although this rule cannot be said 
to be yet recognised by all countries, nevertheless it is inaccurate 
to say that it is not adopted as a usage. Again, it is an accepted 
principle of International Law that hostile acts should be 
confined to the belligerent states, and shotdd not be permitted 
to extend to the injury of private individuals, and the decision 
of the Prize Court clearly recognises that this rule is at present 
adopted on land. No logical reason exists why a rule already 
adopted on land should not be applied to the sea. If a principle 
be equitable, its recognition by all countries is not essential to 
its adoption in time of war by one country ; it is the natural 
duty of a civilised country to apply the principle on its own 
initiative and thus assist its progress towards general recognition. 
The Japanese Regulations relating to Capture at Sea,® relied 
on in the original decision, are not worthy of the least con- 
sideration from the Higher Prize Court, the duty of which is 
to apply the principles of International Law. 

Secondly, when, on February 9th, the "Bobrik" was first 
ordered by the commanding officer of the " Takao " to leave 
Hakodate bj^ February 16th, her Hakodate agents, Howell & 
Co., at once requested the Yokohama agents. Smith, Baker & Co., 
to engage a master and crew, and on February llth a telegram 
was received from Smith, Baker & Co. saying that they could 
engage a crew. Owing, however, to the lateness, of its arrival 
the answering telegram directing them to make the engage- 
ment was postponed till the 12th, but on the forenoon of the 
12th an embargo was suddenly laid on the vessel- by the com- 
manding officer of the " Takao," and accordingly Smith, Baker 
& Co. were instructed by telegram to break ofE the negotiations 
for engaging a crew. On the forenoon of the 13th the em- 
bargo was removed, but nothing coidd be done with only three 
and a half days left. Moreover, the 13th was a Saturday, 
and the 14th a Sunday. As stated in. the telegram of the 
10th from Smith, Baker & Co., of Yokohama, no Japanese 
coxild be engaged because of the outbreak of war, and from 
the few foreigners available, only a master and five men 
could be obtained. Even if a further telegram instructing tlie 
agents to engage a crew had been despatched on Febriiary 
13th, this object could not have been achieved till the 13th or 
14th. Moreover, at that time the journey between Yokohama 
and Hakodate occupied 48 hours, and not only was it impossible 
for the crew, even if they left Yokohama on the 14th, to reach 
Hakodate before the jnoming of the 16th, but also some 36 to 
48 hours would be necessary after the crew's arrival at Hako- 
date for setting up the rigging, loading ballast, aad getting on 
board provisions and firewood. Por these reasons it is doubtful 

* App. B. 



112 The "Rahrik." 

whether the ship conld have left Hakodate within the prescribed 
period, even if the embargo of February 12th' had, not been, 
laid on the vessel. Owing to the embargo, preparations to 
leave port were stopped, and although a second permission to 
leave port was given on. February 13th, it had become quite 
impossible to leavei by the 16th. When the second permission 
to leave port was received^ an application for a prolongation, of. 
the period, setting forth the circumstances, was at once made, 
but on February 14th orders were received from the cbnimand- 
ing ofScer of the "Takao" that the ' application would "not be 
granted. Only two days were left before the expiration of the 
period, of grace, and consequently preparations for -departure 
were entirely given up. As a matter of < fact, the advantage of 
the period of grace granted by the Ordinance to the " Bobrik " 
for leaving port was destroj^ed by the action of the commanding 
officer of the " Takao " in laying an embargo on the vessel. 
The vessel should; therefore, be released on. the ground that 
her capture on. February 17th without granting ah extension of 
the period allowed for departure was improper. 

The substance of the reply of the Procurators of the Yokosuka 
Prize Court was that a decision should be given dismissing the 
appeal. In the first place the principal reason for the serious 
restrictions which have been placed on the right to destroy or 
seize enemy property on land is that to respect enemy private 
property is an essential and effective means of controlling the 
natives of the locality, and of assisting the operations of an army 
which has invaded a hostile country. In the case of private 
property at sea, on the contrary, the destruction of the merchant 
vessels of the enemy, which are essential for carrying on a mari- 
time war, and the exposure of the enemy's trade to hindi"ances 
arid attack, not only afford a great military advantage to the 
belligerent, but also provide a most potent means of effecting 
•the object of war. Therefore, existing International Law recog- 
nises the capture of enemy private property at sea as legal and 
reasonable. The rules and principles relied on by the appellants, 
which were adopted in the Italian Maritime Trade Law, in the 
war between Prussia, Austria arid Italj', in the war between 
France and Prussia, and in the treaty between the United 
States and Italy, only apply in cases where reciprocity is assured 
by treaty or law, and go to prove that with these exceptions 
maritime capture is one of the rights of a belligerent, and a 
lisage recognised by all countries. But they cannot be adduced 
as supporting the argument that the rule as to the inviolability 
of private property of enemy subjects has been accepted as 
applying to naval warfare. From time to time, since the 
opening of hostilities between Russia and Japan, the enemy 
has, under the pretence of maritime capture, sunk our merchant 
vessels, and not only has the Japanese Government, with the 
exception of tLe special exemptions from capture granted to 



The"Bohrik." 113 

certain classes of enemy vessels by Imperial Ordinance No. 20 
of February 9tli, 1904,| showji no intention to do away witli 
jnaritime capture, but it lias actiially ordered maritime capture 
under the Imperial Regulations relating to Capture at Sea,* 
which are founded on the rules and usages of International 
Law. It is therefore proper to hold, as the Prize Court did in 
this case, that, as regards naval warfare, the principle has not 
been adopted in the rules and usages of International Law as at 
present recognised by all countries, and that the principles of 
the Imperial Prize Regulations relating to Capture at Sea* are 
in harmony with these rules and usages. 

Secondly, the evidence shows that the " Bobrik," was not a 
merchant ship engaged in commerce, but a vessel employed in 
connection with deep-sea fishing, and is not entitled to the 
benefit of the Imperial Ordinance No. 20 of 1904,t which 
granted the benefit of exemption from capture only to mer- 
chant vessels engaged in commerce. The gi-ant to this 
A'essel in the first instance by the commanding officer of the 
" Takao " of a period of grace for leaving port was due to her 
character being at the time uncertain, and it would not have 
been illegal to capture her without granting any period of 
gi-ace. Even if she had been a merchant vessel, the ship's 
agents, not knowing at what time the embargo might not be 
withdrawn, should have continued the preparations to leave, 
but they stopped the preparations themselves, and although 
there was ample time to make preparations after permission to- 
leave had been granted, they of their own accord failed to 
make them. There is no necessity in applying the law to take 
into consideration the presence or absence of a crew, the place 
of their engagement, or the state of the otliej- preparations, and 
therefore the argument of the appellants that the capture was. 
improper, because the benefit of the period of grace conferred 
by law on the "Bobrik" Avas taken away, is absolutely 
gi'oundless. 

The reasons on which the decision in tliis case is based may 
be stated as follows : — 

First, the capture by one belligerent of the merchant vessels- 
of the enemy is approved by existing International Law. Not 
onl.y does no treaty exist between Russia and Japan for mutual 
abstention from making maritime captures in time of war, but 
Ijoth Empires have prepared Prize Regulations and laid down 
principles with regard to the capture of merchant vessels and 
other private property of the enemy at sea. As regards the 
Italian Maritime Trade Law, the precedents in the war between 
Prnssia, Austria, and Italy, and the treaty between Italy and 
the United States, quoted by the appellants, it was not intended 
absolutely to abolish by law or treaty the usage of International 

* App. B. t App. C. 

E 12750 H 



114 The"Boh^ik:' 

Law permitting the capture of enemy property at sea in time of 
■ war, and there is no law or treaty which, does not demand, as the 
condition on which a country ahstains from "attacking enemy 
private property at sea, that the other party shonld also abstain, 
in the event of war between th^th, from capturing private 
property at sea. In the case of the Franco-Prussian war indeed, 
Prussia, at the beginning' of thte war, without making this 
condition, declared her intention hot to attack French private 
property at sea ; but as France- did not follow her example, but 
followed the usage of existing International Law, Prussia, after 
a short time, changed her practice, tod captured enelny private 
property at sea. The facts relied on by the appellants, fhere- 
' fore; afford no proof that the principle of the inviolability of 
enemy private property at sea is adopted as a usage of 
existing International Law recognised by all countries. It is 
the dtity of a Prize Court, in deciding the legality^of a capture 
at sea, to follow the rules and usages of International Law, and 
the laws of; its own country. Even if it be in accordance \vith 
public rectitude and the duties of man to adopt the rule of the 
inviolability of enemy private property at sea as well as on land, 
nevertheless not only has no treaty been made between the 
belligerents with regard to the^ applidatidn of this principle at 
;^ea, hoi- has it been recognised- by the world, but also there are 
provisions on the subject in the rules- and precedents of Inter- 
national Law and the laws of Japan, and it is impossible for, 
^nd contrary to the duty of, a Prize Court to follow such 
principles in deciding as to the legality of a capture at sea. 
' The'i'efore, the decision of the Yokosuka' Prize Court, declaring 
the cdpture of the " Bobrik " to be legal, on the ground that the 
rtile as to the inviolability of enemy private property is not held, 
hj the principles and usages of International Lav/ as recognised 
by all' countries, to extend to- the sea, and that this view is also 
adopted in the Imperial Regulations'-'' relating to Capture at 
Sea, was correct. 

Secondly, although grounds exist for dispute as to the 
character of the "Bobrik," yet, even if it be assumed for the 
moment that she is a merchant vessel to which Imperial Ordi- 
nance No. 20 of February 9th, 1904,1 is applicable, the decision 
•of the Prize Court was not improper. It is beyond argument that 
if .at the commencement of hostilities one of the beUigei-ents 
fixes a suitable limit of time and orders vessels of the hostile 
power to leave its ports before the expiration of this period, it is 
the duty of the parties receiving suchan order to make energetic 
preparations to leave,; and not to display the slightest careless- 
ne;ss or neglect. Even though the commanding officer of the 
"Takao" suddenly laid an erabargxj-on the vessel, there was 
no reason to stop the preparations, as the embargo might liave 
been cancelled at any time. .Moreover, although. 1 here was 

* A-pp. B. t App. 0, 



The"Bohrihr 115 

ample time between 9 a.m. on February 13th, when the com- 
manding officer of the '" Takao " cancelled the embargo, and 
the expiration of the time allowed for departure, to complete 
the necessary preparations and leave, the agents representing 
the owners of the vessel did not make those preparations. This 
was negligence on their part, aiid it was actually in consequence 
of this that the vessel was unable to leave within the stipulated 
time, and Avas therefore captured. As she was captured on 
February 17th, after the expiration of the period allowed for 
departure, the captui-e was proper, and the fact that an embargo 
Avas laid upon her for a short period prior to the expiration of 
the period allowed for departure in no way affects its;validity. 
To impugn the original decision Avithout considering the above 

facts is improper. 

The appeal is therefore dismissed. 



116 



THE " THALIA." 

Emmj ship— Carriage on hoard a neutral ship prior to the outbreak of war- 
Capture on land belonging to the captor state after the outbreak of war— 
Melevance of the Land War Convention of 189i)—Gondemnation. 

Prior to the outbreak of war a Russian ship in need of repairs was. 
brought to a Japanese port on board another ship. She was then hauled; 
on shore near a dockyard for repairs, and was found in that condition 
aiter the outbreak of war. 

Held that she must be still regarded as an enemy ship and not as cargo 
landed from a neutral ship, that the Land War Convention had no applieatiom 
to her case, and that she was liable to condemnation. 

Prior to the outbreak of war the "Thalia," a Russian ship 
belonging to the Kamschatka Commercial and Industrial 
Company, of St. Petersburg, was in such need of repairs as to^ 
be incapable of going to sea. She was brought to Hakodate 
on board the "Progress,"* and was there hauled on shore 
near the dockyard for repairs, which were commenced. After 
the outbreak of war and whilst in this condition, she was 
captured as an enemy ship by a Japanese man-of-war on 
April 4th, 1904. 

The owners made a claim for her release, and the case came 
before the Yokosuka Prize Court, which condemned the A^essel as. 
an enemy ship on August 8th, 1904. 

DeQision of the Yoliosuka Prize Gourt.\ 
The steamer "Thalia'' Is hereby condemned. 

Facts and Reasons. 

The " Thalia " is the propertj'^ of the Kamschatka Commercial 
and Industrial Company, of St. Petersburg, Russia, and is a 
seagoing vessel. She was undergoing repairs at the Hakodate' 
Dockyard by th(; order of Baron N. Bruggen, manager of the- 
Kamschatka Commercial and Industrial Company, being hauled 
up on shore by the side of the patent slip in the grounds of the 
Dockyard Company, when she was captured by Lieutenant 
J. Tajima, of the Japanese* man- of-war " Takao," under orders 
of the captain. 

The above facts appear from the report on the capture 
submitted by Lieutenant J. Tajima, the reply of S. Sonoda, 
acting manager of the Hakodate Dockyard Company, addressed 
to Captain Y. Yashiro, of the " Takao," the letter of J. A. Wilson, 
of Howell & Co., of Hakodate, and the report of the councillor 
in charge of the case. . 

* The Editors have not been able to ascertain the nationality of this ship, 
t Published in the Official Gazette, Tokio, May 6th, 1905. 



The " ThalicC 117 

The substance of tlie argument of the representatives of 
the Kamschatka Commercial and Industrial Company was as 
follows : — 

The ship is the propertj^ of the Kamschatka Commercial and 
Industrial Company, and was captured while she Avas under- 
going repairs on land, in the grounds of the Hakodate Dockyard 
Company. According to the works of Hall, Calvo, and other 
jurists, the places where maritime captures can be made are the 
high seas and the territorial waters of the belligerents ; any goods 
lying outside of such limits are inviolable. This principle seems 
to have been adopted in the Japanese Regulations relating to 
Capture at Sea." The limits of territorial waters are measured 
from the shore a certain definite distance seaward, and cannot 
include any area not coA^ered by the sea ; consequently it is 
impossible that land Avithin a dockyard should be included as 
territorial waters. Supposing that captures maj"^ be made on 
rivers and lakes which are not included in territorial waters, 
then there must exist cases Avhen steamers and other vessels are 
not governed by the rules of maritime law, because the existence 
of such cases is recognised by Art. 53 (2) of the Regulations 
appended to the Land War CouA^ention signed at The Hague in 
in 1899.t If so, those cases must be such as the present, Avhere 
the vessels are on land. In other words, vessels such as this one , 
are outside the jurisdiction of maritime law, as mentioned in 
iliat article. Moreover, property on land and property at sea are 
distinguished not by their nature and use, but by the place where 
4hey are found when captured. Any property as to Avhich there 
is a difficulty in drawing the distinction ought to be considered 
as property on land, because the tendency of International Law 
is to adopt the principle of the inviolability of enemy private 
property at sea. Furthermore, the vessel under consideration 
Avas damaged to such an extent that she could not move under 
her own steam, and Avas brought to Hakodate on board the 
" Progress." She ought, therefore, to be considered as cargo. 
In a word, this case ought not to be governed by the rules 
•of capture at sea, because the ship was captured on land, and 
3ier character was that of private property on land, and the 
^claimants, therefore, request her speedy release. 

The conclusion of the Court is as follows : — 

In order to maintain vessels in serviceable condition they 
must at certain intervals be taken into docks, and repaired or 
repainted. This is indispensable to modern vessels. Lying 
in docks or such places is, therefore, a normal condition. The 
argument that vessels hauled on shore for docking or other 
purposes lose their character of sea-going property, as is the case 

*App. B. 

t " OonTention conceming the Laws and Customs of War on Land." 
Tor text, see Pari. Paper (Misc.) No. 1 of 1899. 



118 The " ThaUa." 

witli' ordinary goods wten tliey Are landed, is inadmissible both 
froifl the tliedretical and practical points 'of view! Both in the 
laws and practice of the Powers, and in International Law, no 
distinction is made between vessels in docks, and similar places, 
and those afloat in port, and all the rights and obligations of 
vessels are held to be the sam6'in both cases.' In other words, 
since, in ordinary times, all vessels, whether in' dock or afloat, 
are considered tlie same, it follows that they are properly liable 
to captttre as if actually at sea in time of war. Moreover, 
the capture of such vessels accords with the principles of 
International Law, which authoriseis capture at sea. 

Again, the claimants cite Art. 53 (2) bf the Regulations 
appended to the Land War Convention signed at The Hague in 
1899,*' and argue that vessels on land aire riot liaible to capture. 
The Avords of that clause are : " Steamers, and other ships, apart 
from cases governed by maritime law." Thus that provision 
excludes vessels governed by maritime laAv, and consequently is 
not applicable to vessels, such as the "Thaliaj" which are at a 
place considered to be the same as the. sea, and are imder the 
rules of maritime law. It is also clear, that a: vessel, after she 
resumes her normal condition as a ship, cannot be considered as 
cargo merely becaxise she has been carried by another vesseL 
•Thus the capture cannot be said to have been made at a place 
beyond the jurisdiction of maritime law, eveii though it was on 
land by the side of the patent slip of the Hakodate Dockyard 
Company, nor can the vessel be considered as property on land. 
Fof the above reasons the capture of the "Thalia " made bj'- 
the captain of the "Takao " was lawfill, and jtidgment is given 
as stated above. ■''-■ 



From this decision the claimants appealed' to the Higher 
Prize Court. 

The appeal was dismissed on May 9th, 1905. 

Decision of tli& Highet Prize Qburt.'f 
The grounds of the appeal were as follows : — 
Firstly, in the original decision it was stated that, "lying- 
in docks or such places is, therefor^, a normal condition. 
The argument that vessels hauled on shore for docking or 
other purposes lose their character of' sea-going property, as is 
the case with ordinary goods when they are landed, is inad- 
missible both from the theoretical and practical points of 
view." This reasoning is based upon the character of the 
Thalia" as a vessel and takes, no notice of , the place where 
captures at sea can be made. It is contrary to the principle that 

* "Convention conoei-ning the Laws and Customs of War on Land." 
For text, see Pari. Paper (M^isc.) No. 1 of 1899. 

t Published in the OJkial Gazette, Tokio, May 17th, 1905. 



The " Thalia r 1 19 

captures -at sea can be made only in territorial waters, or on tlie 
lnjgli seas, and is erroneous in the following respects : 

(1) It is stated in Art. 2 of the Japanese Regulations relating 
to Capture at Sea,® that "visit, search, or capture may not take 

place in the territorial waters of a neutral Power, nor in waters 
which are by treaty clearly placed outside the area of hostile. 
" operations." The reason why nothing is said of land is that 
captures may not be made on land, and conseqbently there is no 
need to mention such an exception. The denial of the right of 
capture elsewhere than on the water is implied by the rule men- 
tioned above, and the capture under consideration is violation 
of the Japanese Law contained in the Regulations relating to 
Capture at Sea.® 

(2) In'Arts. 2o (g) and 46 of the Regulations appended 
to the Land War Convention signed at The Hague in 1899, t 
it is provided that enemy private property shall be respected, 
and that it shall not be seized nor condemned. Thus the 
principle of the inviolability of private property is adopted, 
and a,s no limitation is made as to any description of such pro- 
perty, the spirit of that provision is not to make any exception 
with regard to vessels. Moreover, in Art. 53 (2) of the same 
Regulations there occurs a phrase, " steamers and other ships, 

apart from cases governed by maritime law " ; so that vessels; 
when they lie outside the limits where the -right of capture 
at sea ■ may be exercised, must be governed by this rule. 
Furthermore, there is in the same clause another phrase, " land 
telegraphs," and as this phrase includes that part of a submarine 
cable which 'lies on land, the spirit of the rule is to give pro- 
tection to things which are normally at sea when they happen to 
be where the right of captiu-e cannot be enforced. The capture 
under consideration is, therefore, a violation of the Convention, 
to which Japan is a party. 

(3) The capture of the "Thalia" on land is against the 
rules of International Law. 

(a) In the Prize Couit decision it is said that vessels lying 
in docks or such places are still vessels and do not lose their 
character of sea-going property, and are not exempt from capture. 
Now vessels lying in neutral waters, or in waters which are by 
treaty clearly placed outside the area of hostile operations, retain 
their character of sea-going property ; but such vessels are not 
liable to capture; because by International Law the place in 
which they happen to be is inviolable. This ship, when she was 
captured, was on land near the dock ; and is not private property 
on land inviolable under International Law ? It is clear, there- 
fore, that the vessel was no more liable to capture than if she had 

been in territorial waters or other waters placed by treaty out- 

' ' t 

* App.JB 

t " Convention concerning the Laws and Customs of War on Land." 
For text, see Pari. Paper (Misc.) No. 1 of 1899. 



120 The " Thalia." 

side the area of hostile operations, unless it is held that laud 
near the docks is sea. The Prize Court took as the criterion 
the character of vessels as property afloat, but did not take into 
consideration the limits within which alone the right of capture 
can be exercised, and thus gave a decision which is not in 
accordance with the law. 

(b) The majority of international jurists agree that captures 
on land can not be made. Hall says : " Property belonging' to 
" an enemy which is found by a belligerent within his own 
" jurisdiction, except property entering territorial waters after 
the commencement of war, may be said to enjoy a practical 
" immunity from confiscation."* ]\rasse says : " Civilised 
nations which on land respect non-combatants and private 
" property as far as possible, at sea revert to barbarism, and 
capture subjects of the enemy state, their vessels, and 
merchandise."! Bivier says : " A belligerent has the right to 
'" seize enemy private property floating on the sea."f De Boeck 
saj^s : '' All enemy private property foimd under the enemy 
■" flag on the high seas or the territorial waters of the belli- 
gerents may be captured."§ In Art. 8 of the Rules of Capture 
at Sea agreed upon by the Institute of International Law in 
1882 II, which is a collection of opinions of various countries, 
captures are restricted to the sea. Thus it is not dillicult to 
gather the trend of opinions of jurists ; and if it is the almost 
undisputed opinion of jurists that the right of capture does not 
extend to land near docks, then the capture under consideration 
must be held on principle to be unlawful. 

(c) In the decision of the Prize Court it is said that the 
capture of vessels lying near docks, such as the " Thalia," 
accords with the principle of International Law, which authorises 
xaptures at sea. But not only does capture on land not accord 
with the principles of capture at sea, but it is contrary to the 
principle by which private property is differently treated 
according as it is on land or at sea. There are many reasons 
which necessitate capture at sea, and the chief of tliem are as 
follows : (1) Pradier-Fodere saj'^s : " Enemy vessels are captured 
in the territorial waters of belligerents, becaxise the laAv of 
" the country cannot be enforced, nor the right of supervision 
" exercised, nor protection given to property afloat as in the 
" case of property on land."|[ If these are the grounds upon 
which vessels are captured, then there is no reason to capture 
vessels found on land, because on land the law can be enforced 
. and the right of supervision exercised perfectly and absolutely. 

* "W. E. Hall, International Law, 4th Ed., p. 453. 

t Masse, Le Droit Commercial dans ses rappwts avec le ck-oit des qens, 
Vol. 1, p. 153. 

J Rivier, Principes de Droit des Qens. See pp. 330, 334. 

§ De^oedk, Propriete Privee Ennemie sous Pavilion Ennemie, section 154. 

II AtiTiuaire de I'lnstitut de Droit International, 1882-3, p. 213. 

^ The Editors have been nnable to rerify the quotation. 



The " Thalia." 121 

(2) Hautefeuille, in explaining th.e inviolability of private 
property on land and its liability to capture at sea, says : "In 
order to rob the enemy of tlie benefits he receives from his 
public and private proper tj% it is sufficient on land for a 
belligerent to occupy the enemy's territory ; but at sea the 
only method of injiiring the enemy is to confiscate his private 
property and to rob him of the benefits he receives from such 
property. If enemy vessels with their cargoes were released 
and allowed to proceed to their country, the benefits which 
the enemy would receive from them directly or indirectly 
might be very great. On the other hand, if they are seized 
the belligerent will enjoy the benefits which his enemy 
would have enjoyed."* According to this principle, the 
vessel under consideration, if she were required for Avarlike opera- 
tions might be reqiiisitioned as property on land under Art 53 (2) 
of the Regulations appended to the Land War Convention signed 
at The Hague in 1899, f as she was on land ; and in case any 
attempt were made to take her away, then she might be captured 
as private property at sea. If she is kept in Japan as property 
on land, there is no fear of her being of any benefit to the 
enemy nor any injury to Japan. , (3) Funck-Brentano and Sorell 
say : " The people of the hostile state keep their property in a 
belligerent state, because they rely on the law of the latter in 
the protection of propertj;- rights in ordinarj'- times. And as 
war never changes the national law, that state mu?-t respect 
and protect the enemy's private property also, as long as it 
continues to give protection to any rights of property. 
''' Otherwise the result will be that the state violates its own 
■" law.":}: If enemy private property is to be respected according 
to the standard reqiiired by this argument, then tlie condemnation 
of this vessel must be held to be a violation of the spirit of the 
-Japanese law, as she was on land. (4) Rivier, Hautefeuille, 
and other jurists maintain that, unlike goods on land, vessels 
can be armed and used as men-of-war, or may be used for 
important service, as transports, &c., and that is the I'easoii why 
captures at sea are necessary. Even according to this principle 
it is proper to release this vessel, because if she is required for 
warlike purposes she may be requisitioned under Art 53 (2) of 
the Regulations appended to the Land War Convention signed 
at The Hague in 1899,t as a vessel not coming under the rule of 
maritime law. (5) Wheaton, Rivier and other juiists argue 
that the object of land warfare is to occupy and take the enemy's 
territory, and that of maritime war is to destroy his commerce 
and navigation, and that that is the reason why the violation of 
private property is not necessary for the former, but is neces- 
sary for the latter. Thus the object of capture at sea is to 

* Hautefeuille, Questions de Droit Maritime International (1868), p. 86. 
t "Coavention concerning the Laws and Customs of War on Land." 
For text, see Pari. Paper (Misc.) No. 1 of 1899. 

J Funck-Brentano and Sorell, Precis de Droit des Gens (1877), p. 258. 



122 The " Thalia." 

injure the enemy's commerce and' to bring the war ■ to an end, 
aiid not to extend the hardship of cajiture after the close of it.: 
This vessel is, on one hand, under the supervision of the Govern-' 
ment, and, on the other hand, she cannot, go home except by 
sea. While'she remains on land she does not interfere with 
the plan of injuring the enemy's commerce, even if she is held 
inviolable as property on land, v . ,,, . 

(d) The extension of maritime captures to land even near 
docks is contrary to the fundamental notion as to who are tjie 
parties who -make war. The parties who make war are states', 
and never private persons. Rivier says ; "Those who have the 
" right of 'making war are states alone. Therefore, there is no 
" war between private persons nor between a state and 
" private persons."''' International jurists of Europe and 
America, with the exception of those of Great Britain, agree in 
this principle, and consequently , the inviolability of private 
property is recognised as a fundamental principle through- 
Cut the world. Art. 46 of the Regulations appended to the 
Land War Convention signed at The .Hague in 18991 is an 
expression of this principle, and when considered in relation 
to the practice governing captures ,at sea it is no more than 
an exception to this general rule. , In cases where there is any 
doubt as to whether goods are to be deemed to be property 
on land or at sea, as when found on land near a dock- like 
the "Thalia," and where there is any doubt as to whether 
they should be ' released or condemned, the goods ought to be 
considered as property on land and released according to tlie 
general rule that an exception must be strictly construed. Tins 
is the logical consequence of the fundamental principle that 
the parties who make war are states. alone. 

(e) In the decision of the Prize Court docks aijd land near 
them are considered to be the same as the sea. But such land 
and the waters of ports are clearly different in their character 
from the legal point of view, as ■ appears by the following 
reasoning : 

(1) Docks and land near them may be OAvned by a state or 
by private persons, but the ownership of the waters of a port by 
private persons is ncA^er allowed. K. Amani says : "If an area 
" of land includes part of the waters of a port, the ownership 
" of the water differs from that of the land in this respect, that 
" it does not give 'the owner the absolute right of disposal.":!: 
The ownership of a do.ck and of land near it is absolute, and 
the owner has the right of preventing any intruder 'who attempts 
to enter them against his will. On the other hand, the owner- 
ship of a port 'does not give the owner the right to keep away 
vessels that enter the port to take shelter from the weather or 

* Hivier, Principes de Droit des Gens, p. 202. 
- t " Convention feono^ming the Laws and Onstoms of "War on Land." 
For text, see Pari. Paper (Misc.) No. 1 of 1899. : ■. . , 
J The Editcjrte have been unable to verify the quotation. 



The " Tlialia." 123 

to escape iroiii danger. Again, the owner of land is free to give 
or refuse permission to use his land ; biit the Owner of a port, 
that is, a state, must allow the use of the port Squally to foreign 
countries. 

(2) In docks and land near them, the passage of foreign 
armed forces is absolutely forbidden, but in the case of the 
waters of a port the state must permit the passage of foreign 
men-of-war, unless it involves danger to the safety of that 
state.' 

Siicll beiiig the differences between land and water, there is 
no reason why the right of maritime capture should extend to 
land in the neighbourhood of docks. Consequently the capture 
of this vessel was unlawful. 

■ (/) In 'the decision of the Prize Court it was recognised that 
the plade of capture of the vessel was the land by the side of the 
patent slip ; but, in saying that the place was analogous to a 
dock, the Court tried to dispose of the case by reasoning Avithout 
proper discrimination as if the place was the same as the dock. 
Land by the side of a dock is not a dock. Such land is not the 
place wdiere a vessel naturally lies when under repair. Were it 
admitted that the right of inaritime capture extends to such 
land, a vessel which lies at a place 10 " ri " or 100 " ri " from 
the shore for repair might be considered as within the area 
where the right of capture can be exercised. Even if it were 
admitted that a vessel lying in dock is in her natural condition, 
and must be considered as identical with a ship, afloat in a port, 
a vessel lying on land outside the dock cannot be said to be in 
her natural condition. The patent slip and the land by its side 
may be only a step in actual distance, but in law the difference 
is very great. The place where the vessel was captured was on 
land, and as it was outside the limits within which the right of 
maritime capture can be exercised the vessel ought to be released; 

Secondly, the Prize Court, w^hich considered the vessel as 
being" in a normal state for a ship, mistook the facts : 

(1) The vessel was brought on board the "Progress" to 
Hakodate to be repaired there. The decision, which on the one 
hand recognises that the vessel was cargo while she lay on board 
the " Progress," explains on the other that " a vessel cannot be 
" considered as cargo ..... after she resumes her normal 
" condition as a ship." But since the fact of being a ship did 
not prevent this property from being at one time cargo, why 
should that fact' prevent it, wnen lan^ded, from being private 
property on land ? Tlie vessel was cargo, because she was 
carried by another vessel for the purpose of repair. She was 
hauled on shore for the same purpose, and while the same 
purpose continues, there is ho reason- why she sho'uld change her 
character. If it is argued that the vessel had resumed her 
normal condition, as she was once lowered into the water, would 
she then be property on land in case she were landed direct 
from the ship ? Such an argument is unreasonable. The vessel 



124 The " Thalia:' 

was lowered into the water for a time, just as lumber is lowered 
into the water to land it, and the process is nothing more than a 
method of transportation. 

(2) At the time of capture the repairs were not completed, 
and the vessel was not capable of navigation. This is clear from 
the report of the prize officer. And it is proper to consider a 
vessel which is incapable of navigation as goods rather than a 
vessel. 

(3) At the time of capture the vessel had no instruments of 
navigation, no flag, no ship's papers, and no crew, and lacked all 
other conditions essential for a vessel. Thus she mast be said to 
have been in a condition to be treated as goods rather than as a 
ship. The vessel is, therefore, private property on land, lying 
by the side of a dock, and ought to be released under the 
Regulations' appended to the Land War Convention signed at 
The Hague in 1899.® 

The substance of the answer of the Procurators of the 
Yokosuka Prize Court is that the capture of the ship was lawful, 
and that no objection can Ise made to her condemnation, for the 
following reasons : 

(1) As to the place where captures can be made, most 
precedents and theoretical opinions limit it negatively, and as 
yet it has not been defined positively. The reason why 
Lushington and Holland say that the right of capture " may be 
^' exercised in any waters except the territorial waters of a neutral 
■" state "t is because they would not think of sea-going property 
being commonly found anywhere except on the water. They do 
not mean that on rare occasions, when sea-going property is 
found elsewhere than on water, it is exempt from capture. Even 
if it be admitted that there are, as the claimants argue, positive 
limits to the area within which captures may be made, the 
vessel must be held to have been captured within such limits. 
It does not appear upon what authority the so-called funda- 
mental principle put forward by the claimants is based. The 
^' positive limits " to which the claimants refer are probably 
those enumerated by Phillimore as limits within which visit 
and search may be made, and by Hall as limits Avithin which 
■captures are commonly made ; that is to say, the high seas and 
territorial waters of belligerents. The word " waters " is the 
•collective name of certain geogi-aphical features, such as ports, 
gulfs, inlets, river mouths, &c., and includes, broadly speaking, 
what is called in common language the sea. Therefore "waters" 
are not necessarily always covered with water. Some part of 
them may be left dry for a time by natural phenomena, such as 
the rise and fall of tides, or by man's operations. To interpret 

* " Convention concerning tie Laws and Customs of War on Land." 
For text, see Pari. Paper (Misc.) No. 1 of 1899. 
t Naval Prize Mamial, 1888, p. L 



The " Thalia." 125 

the word "waters" in the sense of water surface is a mistake. 
A dock maybe said to form a " water " by itself ; or, considering' 
the fact that a dock only exists in connection with an anchorage 
for vessels, it may be considered as constituting, with other 
localities, a " water," such as a port or river mouth. In either 
case, captures in dock are always captures in waters. When 
the claimants say that captures are not allowable on land, they 
mean by "land" all the surface of the earth not covered by 
water ; there is no authority for such a view, which is not 
maintained even by jurists, who define positively the area 
within which captures may be made. A vessel while under 
repair in a dock may be moored to the dock side, or it maj* be 
necessary that the dock should be dried, but such a vessel 
cannot be said to lie on land on that account. 

(2) In Art. 8 of the Rules agreed upon by the Institute af 
International Law at Turin in 1882, ■■■■ cited by the claimants, it 
is stated that the right of capture may be exercised in waters 
within 3 miles from the shore of the belligerents and on the 
open sea. The phrase " water surface " is not used. Con- 
sequently no such proposition is involved as that a vessel 
beached at high, water loses protection and regains it from time 
to time, according to the rise and fall of the tides. The above 
article was not adopted in the Japanese Regulations relating to 
Capture at Sea,t because this positive definition of the limits 
within which captures may be made has not been generally 
adopted ; a;nd since the interests of the country are concerned, 
there is no necessity for Japan to impose restrictions upon 
herself without reciprocity on the part of her en amy. 

(3) The claimants say that in Art. 2 of the Regulations 
relating to Capture at Seal only the territorial waters of neutral 
countries and waters as to which there are special treatj-- 
stipulations are mentioned as limits within which capture is not 
allowed, but nothing is said of land, such as neutral territory, 
which is, of course, to be excluded from the sphere of capture. 
They argue that this proves that captures may not be made 
even in the territories of belligerents. But there is no need for 
rales relating to capture to inchxdeall other rules as well, and no 
provision was made as to land, because there Avas no need of it. 

(4) The Land War Convention of The Hague quoted by the 
claimants relates to warfare on land. This much the.y admitted. 
Why, then, do they attempt to apply it to a case of capture 
made by the Imperial Navy ? Moreover, does not the phrase 
" vessels not governed by maritime law " imply that land forces 
may also encounter vessels that are governed by maritime law ? 

(5) In order to support their argument that no capture may 
be made except on the surface of the sea, the claimants seem 
somewhat to strain the opinion of jurists. Hall only recognised 

* Annuaire de I'lnstitut de Droit Intel-national, 1882-3, p. 213. 
t App. B. 



126 The " Thaliar 

that there is. a tendency to exempt from capture enemy property 
'lying in the territory of a belligerent from a time prior to the 
opening of war* ; Masse's opinion is nothing niore than, a 
narration of common facts, and he ' never nieant to define clearly 
the limits of the rightf ; and Rivier nsed the phrase, "property 
afloat," in ,the sense of propertj'^ normallj^ at sea, and he Jieyer 
intended to make a distinction between goods actually floating 
on w^tei; and those not so floating.^ ' , . 

(6) The claimants cited several opinions of jurists eoncerning 
the reason why only property at sea is liable to capture^, and 
tri[ed to, show that the capture of this vessel does not conforip 
with any, of them. , IJut the variety of these opinions rathei 
shows that these quotations are not to the point. And whatever 
these opinions are, tliere is no reason why the vessel should be 
xeleased, when the condemnation of private property at sea is 
practised as an indispensable means of warfare. 

(7) The claimants argue, that it is the general opinion of the 
preseHit day that war is carried on only between states, and that 
capture at sea,, where private persons are considered as enemies, 
is an exception.. ,In doubtful cases, therefore, the original 
principle anust be applied. But at sea, as on land, the object 
of warfare is to injure the enem}^ state ; and the people of, the 
belligerent state inevitably suffer losses from the consequences 
of war on land as well as at sea,. Private property at sea and 
on la,nd are differently treated, simply because the rulesj of 
warfare at sea and those on land have been developed differently. 
This is recognised by the greater number of jurists. And if it 
mtist be determined wdiich is the original principle and which 
the; exception, tlien, from their historical development, the con- 
4emnation of private property must be considered rather as the 
fundamental principle. As regards the case under consideration, 
there is no. diV^bt as to whether the "Thalia" is sea-going, or 
land property. j , , 

, (3) Tlie claimants argue that there are differences between 
the land and water in public and private law, but they do not 
explain in what manner these differences affect the validity or 
invalidity of captures. Admitting such differences, there is lu) 
reason why the riglit to make captures which is freely exercised 
at sea, where territorial rights are comparatively weak, should 
be restricted on land, where such rights are stronger. Moreoyer, 
there are many cases in which an area covered by water-. is 
owned and used by private persons to the exclusion of others, 
for instance, water adjoining a pier, q^iay, &c. A dock, is 
another example, and the argument that the presence or absence 
of water makes a difference cannot be accepted. 

(9) The claimants trie^l to show that capture of the vessel 
under consideration was imlawful. by using a new phrase, 

.* See p. 120, note *. f Seep. 120, note f, 

J See p. 120, iiote +. 



The " Thalia." 127 

"capture on land." , But if the nieaiiing of the word /'land " is 
as stated, then captures on land 'are not necessarily unlawful. 
Captures on land are not commonly made, because cargo, and 
even vessels, when they are taken fi'om the sea and carried 
inland, will in most cases change their character from property 
at sea to goods not liable to capture under International Law. 
But in the.caseof a vessel in dock, or of a vessel deliberately 
hauled on shore by the owner to escape capture, such a vessel 
does not for that reason lose her character of being - sea-going 
property-, and consequently she is liable to capture. If all 
captures must be given up within the beach line, under 
any circumstances, then an insular empire, obliged to attack the 
enemy coast with its naval forces', would suffer. great dis- 
advantages from such a restriction. In a word, the capture of 
the " Thalia " accords with the spirit of the Regulations re- 
lating to Capture at Sea,* which do not positively define the 
limits within which captures are authorised ; and the decision 
of the Yokosuka Prize Court, which discussed the question 
whether: the Aressel is sea-^going property or not, but did not take 
any notice of the place where it was'found, is perfectly right. 

(10) The claimants argue that the vessel is cargo carried on 
■ board the." Progress," and landed at Hakodate, But in the 
record of the examination of T. Midsuno, an officer of the 
Hakodate Dockyard Company, it is stated : " I do not know how 
"the 'Thalia' was brought to Hakodate, but when she was 
"brought' to the dock she was afloat." There is also evidence 
that the owners' agent at Hakodate treated • her as a vessel. 
Therefore she cannot be considered identical :with lumber 
floating on the water. Even if it be 'admitted that.ther^ was a 
time when she was property on land, she regained her natOTal 
character befoie she was taken into thd dock. As to the absence 
of flags, ship's papers, &c., that does not alter the character of a 
vessel as sea-going property. On the ■ contrary, their absence 
has been in many cases a reason for capture. 

The decision of this Court is as follows : — 

'J'he claimants say that the original decision stated that 
lying in a dock, &c., was a normal condition for a ship, and, 
therefore, a ship does not lose her character of sea-going property 
merely because she happens to be on land, and that the Couj-t 
condemned the "Thalia" without taking info consideration the 
place in which captures are antliorised, but taking only her 
• character as a vessel as the criterion. For thait' reason, they 
ai-gue that the decision is contrary to the fundamental principle 
that captilres may be made oftly in territorial waters and on 
the high seas, and is unlawful in the following particulars : . 

1. The claimants ar^ue that the capture is contrary to tlie 
Japanese Regulations relating to Capture at Sea.-'' But Art. 2 

* App. B. .---.. 



128 The " Thalia." 

of those Regulations, viz., "Visit, search, or capture may not 
take place in the territorial waters of a neutral Power, nor in 
waters which are by Treaty clearly placed outside the area of 
hostile operations," is nothing more than an instruction that 
Japanese men-of-war shall never visit, search, or' capture in 
neutral waters nor in waters clearly placed by Treaty outside 
the sphere of hostilities. And as there is no dispute as to the 
fact that the capture of the vessel under consideration was not 
made in the territorial waters of a neutral nor in waters clearly 
Ijlaced by treaty stipulations outside the area of hostile opera- 
tions it is not contrary to the Regulations relating to Capture at 
Sea.* 

2. It is also argued that the capture of the " Thalia " was 
made in violation of the Convention signed at The Hague in 
1899.t But as that convention is an agreement with respect to 
the laws and customs of war on land, and not an agreement with 
respect to rules and usage of maritime war, the suggestion that 
the capture is a violation of the convention is irrelevant. 

3. The capture is also said to be a violation of the rules of 
International Law for the following reasons : 

(a) Private property on land is inviolable under International 
Law, and as the vessel was on land, by the side of a dock, her 
capture was unlawful. 

(b) The opinions of the majority of jurists as to the place 
where captures are permissible are as follows : Some say 
captures may be made on the sea ; some say in the territorial 
waters of belligerents and on the high seas ; some say that the 
subject of capture is enemy property afloat ; and the rules 
agreed upon by the Institute of International I^aw in 1882J 
provide that captures' at sea can only be made where the surface 
is covered by water. Theoretical opinion is therefore opposerl 
to the legality of this capture. 

(c) The principle upon which captures at sea are permitted 
does not apply to the case of the " Thalia." 

(d) As the parties to a war are states, the fundamental 
principle must be the inviolability of private property. The 
capture of priyate propertj"^ at sea is thus an exception, and 
where there is any doubt whether goods are to be deemed to be 
property at sea or property on land, such goods should be 
considerisd as property on land, in accordance with the general 
rule that exceptions shall be strictly construed. The " Thalia" 
ought, therefore, to be held to be property on land, and to 
fall within the principle of the inviolability of private property. 

(e) Docks and the land in their neighbourhood are quite 
different in character from the sea, and, therefore, captures there 
are unlawful. 

* App. B. 

t "Convention concerning the Laws and Customs of War on Land." 
For text, see Pai-1. Paper (Misc.) No. 1 of 1899. 

J Annuaii-e de I'lnstitnt de Droit International, 1882-3, p. 213. 



The " Thalia," 129 

(/) Even if a vessel in a dock ought to be treated in the same 
way as a vessel in a port, the capture of this vessel was unlawful, 
as it was only made on land near a dock. 

The answers to these arguments are as follows : — 

(a) Putting a vessel in dock or on the building yard of the 
dock for repairs is no more than a temporary removal from the 
water during the work with the object of restoring her to her 
proper efficiency. In such a case it must be held that the right 
of capture may be enforced upon the vessel, even if the place 
where she lies is not covered with water. The argument that 
the capture Avas unlawful, because it was made on land, cannot 
therefore, be maintained. 

(6) The normal condition of a vessel is floating on th^ 
surface of the water, and that explains why, in discussing the 
place where captures may he made, jurists use the phrases " at 
sea," " on the high seas and in the territorial waters of neutral 
countries," "property afloat," &c. Moreover, the rule agreed 
upon by the Institute of International Law at Turin,'*' that the 
right of capture should not be exercised except in the territorial 
waters of belligerent states and on the open sea, is one dealing 
only with ordinary cases, and a vessel lying in a dock or on the 
building yard of a dock must, as in the case of a vessel tempor- 
arily hauled on the beach for preservation or safe keeping, be 
treated in the same way as a ship on the water. Consequently 
the capture is not in conflict with the opinion of jurists. 

(c) The vessel was lying on the building yard of a dock, but 
as she was an enemy vessel capable of resuming her seagoing 
capacity, her capture was not contrary to the principle of 
International Ijaw, which authorises captures at sea. 

(d) The subject of the capture was a vessel lying temporarily 
on the building yard of a dock for repair. As to this there is 
no dispute. There is no case of doubt as to whether she was 
property on land or at sea, and consequently the considerations 
urged under this head do not arise. 

As to (e) and (/), it is clear from the answer given to {a) 
that the arguments have no substanee^ and consequently no 
answer is required. 

In the second branch of their case, the claimants argue 
that the vessel was brought to Hakodate for repairs on board 
another steamer, and while she remains on land for repairs she 
is cargo on land. Moreover, at the time of capture not only was 
she incapable of going to sea, the repairs not having been 
finished, but she lacked instruments ot navigation, crew, &c. 
It is therefore argued that she ought to be released as goods 
on land lying in the neighbourhood of a dock. But it is clear 
from the claimants' power of attorney, the evidence given by 
K. Nakada, of the Hakodate Custom House, and T. Midsuno, 
officer of the Hakodate Dockyard Company, and from the report 

* Ajinuarie de I'lnstitnt de Droit International, 1882-3, p. 213. 
B 12750 I 



130 The "Thalia." 

of C. Sakakiwara, Councillor of the Yokosuka Prize Court, &c., 
that the "Thalia" is a vessel of Russian nationality. It is also 
an undisputed fact that the Hakodate Dockyard Company had 
received orders to repair her as a vessel. Therefore it cannot 
be said that she was not a vessel merely because of the fact of 
her having been temporarily put on board another vessel in 
order to be brought to Hakodate. As she had the character of 
a vessel at the time of her capture, the fact that she was incapable 
of going to sea, as her repairs were not completed, has no effect 
upon the validity of the capture. Further, from the report of 
the prize officer, it cannot be inferred, that she was incapable of 
going to sea, and T. Midsuno, officer of the Hakodate Dockyard 
Company, gave evidence that her repairs were completed. It 
cannot, therefore, be said that she was not fit to go to sea. 
Again, it may be true that at the time of capture she had no 
instruments of navigation, no crew, &c., but she does not lose 
her character of a vessel on that account. The decision of the 
Yokosuka Prize Court, which treated her as a vessel, was 
therefore right, and was not a perversion of the facts. The 
appeal therefore fails on this point also. 
This appeal is dismissed. 



131 



THE "AGGI." 

Neutral ship — Cargo of coal — Capture in a port in the captors territory — ■ 
No evidence of hostile destination — -Release — Refusal to produce papers — 
Destination not shown on papers — Detention justified. 

A neutral ship was captured in Nagasaki harbour with a cargo of coal 
from Shanghai. The master refused to produce his papers to the prize 
officer, and when produced in court, they showed the destination as " Singa- 
pore or order." The master stated that he had received orders to go to 
Nagasaki. 

Held that the detention was justified, but the ship and cargo should 
be released. 

The " Aggi " was a Noi-wegiaii sMp captured with, a cargo 
of coal in Nagasaki harbour on June 7th, 1904. The facts of 
the case sufficiently appear from the judgment of the Sasebo 
Prize Court, which directed the release of ship and cargo at the 
instance of the Procurator. 

Decision of the Sasebo Prize Court^^ 

The Norwegian steamship " Aggi " and her cargo are 
released. 

Facts and Reasons. 

The '■ Aggi " is a merchantship owned by Christian, 
Michelsen & Co., registered at Bergen, Norway, and flies the 
Norwegian flag. 

She left Barry on April 1st, 1904, with a cargo of 4,021 tons 
of coal belonging to the owners of the ship, and reached 
Singapore on May 14th. In accordance with orders received 
from the owners she left that port the same day, and reached 
Shanghai on the 25th. Whilst at anchor ofE GutzlafE Island 
she received further orders from the owners, and leaving on 
June 2nd she reached Nagasaki on the 6th, where "she was 
captured on the 7th by the Japanese man-of-war " Katsuragi," 
on the ground that her papers were not in good order. 

The above facts appear from the statement of S. Sakamoto, 
Captain of the " Katsuragi," the evidence of Sub-Lieutenant 
M. Yoshii, HaLfdasi Olsen, the master, Hans Eidy, first-mate, 
and Christian Neelson, chief engineer of the " Aggi," the 
certificate of registry, bill of lading and charter-party. 

The substance of the argument of the Procurator was that 
the capture of the ship was lawful on the ground that her papers 
were not in order, but that as there was not sufficient evidence 
to show that the coal on board was intended for the use of the 



* Published in the Official Gazette, Tokio, July 1st, 1904. 

I 2 



132 The"Aggi:' 

Russian army or navy, the coal could not be held to be contra- 
band of war. The ship and cargo should, therefore, be released. 

The conclusion of the Court is as follows : — 

In the bill of lading and charter-party the destination is 
entered as " Singapore or order," and the actual destination is 
not clear. Further, although the master has produced these 
documents to the Court, he refused to produce them ito the 
FrizeOfScer. The ship carried no manifest. The action of the 
captain of the " Katsuragi " in capturing her on the ground of 
ihe irregularity of her papers, and on suspicion that she was 
carrying contraband was, therefore, lawful. But as the ship 
came to Nagasaki from Shanghai on June 4th, " 1904, in 
'pursuaince of the orders of the owner, and as there is no reason to 
suppose that she was bound for enemy territory, the coal cannot 
■be held to be intended for the enemy's army or navy, and 
iconsequently cannot be held to be contraband. 

The ship and cargo should, therefore, be released, and 
judgment has been given accordingly. 



l33 



THE "HSIPING." 

Neutral ship — Cargo partly contraband and partly innocent — Consignment to 
port occupied by the enemy — Contraband cargo not belonging to the owners 
of the ship — Absence of fraud on the part of the owners — Release of the 
ship and innocent cargo not belonging to the owners of contraband — 
Capture justified. 

A neutral ship was captured on a voyage to a port occupied by the 
Russian forces. She carried a cargo, of which the greater part was held to 
he contraband, and part innocent. The contraband cargo did not belong 
to the owners of the ship, and no fraud was employed in connection with its 
carriage. 

Held that the cu-cumstances of the case justified the capture, but that 
the ship and such of the irmocent cargo as did not belong to the owners of 
contraband should be released. 

Tlie " Hsiping," a Britisli ship, left Shanghai on July llthj 
1904, on a voyage via Chin-Huang-Tao to Newchwang, which 
was then occupied hy the Rxissian forces, and was captured on 
July 14th by a Japanese warsliip. She had on board a cargo 
consisting of goods, the greater part of which were susceptible 
of use in war, Avhile some could not be so used.* Some of the 
cargo was consigned to neutral territory. 

The case came before the Sasebo Prize Court on August 7th, 
1904, when judgment was given, releasing the ship and the 
articles contained in the following list : — 

Flannels ; samples of merchandise ; tea ; English white 
shirts ; black cotton cloth ; gray Bombay cotton yarn ; 
green tea ; wheels and miscellaneous articles ; white 
cotton thread;, gray Bombay cotton yarn; cloth; plaster 
of Paris.! 

Decision of the Saseho Prize Gourt.'^ 

The steamship "Hsiping" and such of the goods on board 
of her as are contained in the annexed list§ are hereby released. 

Facts and Heasons. 

The "Hsiping" is a merchantman belonging to the Chinese 
Engineering and Mining Company, a British joint-stock company 
with its lie'ad 'office at Tientsin, China. She flies the British 
flag, and her usual home port is Shanghai, China. She is 
employed in the carriage of passengers and freight. The 
ship left Shanghai on July 11th, 1904, with a cargo consisting 

* For lists of the various articles' on board, and the places to which they 
were consigned, see pp. 1357 T41. 

t The first two items were consigned to Newchwang, which was 
occupied by Russia, the next six to Tientsin, and the last four to Chin- 
Huang-Tao, both neutral ports. 

J Published in the Ofjicial Gazette, Toldo, August 11th, 1904. 

§ See above. 



134 The"Hsiping:' 

of lead, iroa, silver coin, provisions, beverages, &c., and on her 
way via OHn-Huang-Tao to Newc]j.wang, which was at the time 
occupied by the Russians, she was captured at 8 a.m. on 
July 14th by the Imperial man-of-war "Hongkong Maru," at 
sea, about 65- miles to the north of Kaimiu Island, off Shantung 
Promontory, China, under the suspicion that she was carrying 
contraband of war. 

The above facts appear from the statement of Captain Inoue 
of the "Hongkong Maru," the report on the visit and search of 
the " Hsiping " made by Lieutenant Y. Kamura, the evidence 
given by R. McFarlane and E. B. Hayes, respectively, master 
and first mate of the ship, the evidence of Pao-ming-chuan and 
Wu-wei-ming, officers of the ship, and the certificate of registry, 
bill of lading, and manifest. 

The substance of the argument of the Procurator was that 
as the' ship was captured on the high seas, and the greater part 
of the cargo, such as lead, iron, provisions, and beverages, being 
consigned to Newchwang, which was occupied by the Russians, 
was contraband of war, the capture was lawful, but that the 
ship and part of her cargo should be released. 

After due consideration, the Court finds that the " Hongkong 
Maru " captured the ship about 6|- miles north of Kaimin 
Island, off Shantung Promontory ; so that it is clear that the 
capture was made on the high seas. Moreover, as the greater 
part of the cargo, consisting of lead, silver coin, iron, flour, 
spirituous liquors, timber, &c., was consigned to Newchwang, 
which was occupied by the Russians, the action of the captain 
of the " Hongkong Maru " in capturing the ship, together with 
her cargo as he suspected it to be destined for the use of the 
enemy's army and navy was justifiable. 

However, inasmuch as none of the contraband goods belong 
to the owners of the ship, the Chinese Engineering and Mining 
Company, and as there is no circumstance to show that any 
fraudulent devices were eniployed in carrying the contraband, 
the ship should be released, and, as the goods mentioned in the 
annexed list* are not contraband of war fxom their nature, and 
do not belong to the owner of goods considered to be contraband, 
they also should be released. Judgment is, therefore, given as 
■above. 

* See p. 133. 



135 



CARGO Ex "HSIPINa" 

CLAIM OF THE UNION INSURANCE SOCIETY OF 
CANTON, LTD., AND OTHERS. 

Absolute contraband — Materials for the construction of ships — Conditional 
contraband — Foodstuffs and beverages — Consignment to port occupied by 
the enemy — Non-contraband articles belonging to the owner of contrahand 
— Condemnationr— Practice — Claim by insurers — Time for entering 
claims. 

The " Hsiping " liad on board a consignment of iron, screw-bolts and 
washers, and a quantity of foodstuffs and beverages, consigned to Newchwang. 

Held that Newchwang was a Russian base dep6t, aiid that the iron, sCrew- 
bolts and washers must be condemned as absolute contraband. 

Held on the facts that the foodstuffs and beverages were intended for 
the use of the enemy's forces, and must therefore be condemned as 
conditional contraband. 

Held further that innocent goods on board belonging to the same owners 
as the contiuband must be condemned. 

Claim by insurers dismissed -on the ground that no evidence was 
produced of their interest. 

Claim dismissed on the gi'ound that it was made out of time. 

The "Hsiping" was a British ship which sailed from 
Shanghai on July 11th, 1904, for Newchwang via Chin-Huang- 
Tao with a general cargo. She was captured by a Japanese 
warship on July 14th off Kaimin Island near the Shantung 
Proinontorj', on suspicion of carrying contraband. 

The case came before the Sasebo Prize Court, and on 
December 17th, 1904, the Court gave a decision in respect of 
certain cargo consigned to Newchwang on board the " Hsiping," 
condemning the articles comprised in the following list A, dis- 
missing the claims which had been made in respect of certain 
of these articles, and dismissing the claims in respect of the 
articles comprised in the following list B, on the ground that 
they were made after the time for entering claims had expired. 

The claimants appealed fi'om the decision of the Sasebo 
Court and as the reasons given by that Court were substantially 
the same as those given by the Higher Court, they are not printed. 
All the items in list A were condemned as contraband, except 
the ink, the grindstones, the scent and the candles, which were 
condemned upon the ground that they belonged to the owners 
of other contraband goods. 

List A. 

Beer ; tinned goods : salmon ; cherry cordial ; champagne 
margarine ; ink'- ; sugar ; claret ; gin ; grindstones* ; brandy 
flotir ; wines ; pineapple ; fruit ; cheese ; pickles ; tomato 
whisky ; " oriental water " (aerated water) ; rum ; scent* 

* Condemned as being the property of the owners of contraband goods. 



i36 The "Hsiping,'" Claim of the Union Insurance Society, djc. 

milk ; foreign provisions ; provisions ; candles* ; iron ; screw- 
bolts and washers. 

List B. 

Rice ; flour ; tea ; wheat ; beer ; brandy ; white sugar ; 
Chinese cloth. 

The appellants against the decision were the Union 
Insurance Society of Canton, Ltd., the Yangtse Insurance 
Company, the World Marine Insurance Company, and the China 
Traders Insurance Company, who had made contracts of 
insurance upon the goods in question. 

The case came before the Higher Prize Court on December 
'25th, 1905 when judgment was given dismissing the appeal. 

Decision of the Higher Prize Court.'f 

This is an appeal against the decision of the Sasebo Prize 
Court given on December 17th, 1904, condemning the goods 
set out in the annexed list Alf,, which formed part of the 
cargo of the " Hsiping," and dismissing the claims in respect of 
the goods in the annexed list A:]:, and the goods set out in 
list B§. 

The main points relied on in support of the appeal- are as 
follows : — 

The appellants made contracts of marine insurance upon the 
goods of Arwin Edbrant and Co., Geddes and Co., E. Chazalon 
and Co., E. Haas and Co., Caldbeck, McGregor and Co., 
E. Finckelstein, Alfred Dayson, Puramji Sorabji and Co., 
Christoph Dekke and others, and in the case of their con- 
demnation are liable to make good the loss ; therefore they have 
a large interest in the goods. Though the goods which form 
the subject of these claims are of many descriptions, the 
principal articles among them are iron, flour, sugar and other 
foodstuffs, beverages and wines, all of which are good, which come 
under Article 14 of the Japanese Regulations relating to Capture 
at Sea 1 1 ; so that they are only contraband of war incases where 
they are to be considered as destined for the enemy army or navy, 
or intended for use in the military or naval service of the enemy. 
The goods in question were entrusted by private traders to a 
forwarding agent, and were clearly not destined for the enemy 
army or navy, a fact which may also be determined by inference 
from the judgment in the case of the ship.^ Again, in con- 
sidering the question whether they were intended for use in the 
military or naval service of the enemy, it must be remembered 
that not only were the shippers and the owner of the vessel 
ordinarily engaged in the business of carrying merchandise 
to Newchwang, but, as a state of war existed at the tinae, 

* Condemned as being the property of the owners of contraband goods. 
t Published in the Official Qanette, Tokio, Tebi-uary 12th, 1906. 
J Sie p. 135. § See above. || App. B. % See p. 133. 



The " Hsi'ping,*' Claim of the Union Insurance 8.dhiety,'S&. 137 

they did not undertake the carriage of the goods in question 
until they had specially inquired of the Chinese Customs, and 
received a reply that such goods as the flour, sugar, oil, silver 
currency, &c., were not contraband of war unless intended 
for the use of a belligerent. If the shippers intended to 
supply the goods for the use of a belligerent, there was no 
reason to obtain an answer with such care. It is thus to be 
inferred that these goods were not intended for the use of 
the enemy. There is no room for doubt that the demand for 
these goods in peace-time at Newchwang is great, and that 
they are ordinarily imported from Shanghai and elsewhere. 
Since the shippers in every case had their head office at 
Newchwang, they did no more than dispatch 'the goods in the 
ordinary course of their mercantile business. In a case where 
merchants dispatch goods in the ordinary course of their 
business, and have, moreover, been shipping the same sort of 
goods for many years, the quantity, also, being not excessive, 
it is unduly harsh to treat them as intended for the use of the 
enemy. Though there are among the captured goods some 
which do not appear in the Customs Tables, such articles as 
some of the provisions, being articles used by restaurants or 
ordinary consumers, have hitherto in practice been imported 
without special mention in the tables, but under the heading 
of Miscellaneous Articles. Again, among the things forming 
the subject of these claims are some in the category of purely 
innocent articles. The Japanese Regulations relating to Capture 
at Sea* (Article 43) state that " Articles which are contraband 
" of war and that portion of the cargo which belongs to the 
" owners of the contraband shall be condemned." " The owners 
of the contraband " means the owners of absolute contraband, 
and does not include the owners of goods which are subjected 
to condemnation only under certain circumstances. For the 
condemnation of innocent articles is intended to repress the 
carriage of contraband, and, where absolute contraband is 
carried, a presumption arises that the owner intends to assist 
the belligerent, and there is a ground for extending the penalty 
to other articles ; but in the case of conditional contraband, it 
is either condemned or released according to the view of the 
facts adopted by the Court, and no presumption arises as in 
the former case, so that there is no reason for the extension of 
the penalty. 

The original decision should therefore be reversed, and 
judgment given releasing the goods. 

The substance of the feply of the Procurator of the Sasebo 
Prize Court was as follows : — 

(1) At the time when the goods in this case were shipped, 
KeWchwang, being occupied by Russian troops, was enemy 

* App. B. 



$38 The " Hsiping,'^ Claim of the Union tnsurdnce Society , dc. 

territory. This is an evident fact, and indeed is admitted by 
the appellants. There is no doubt whatever that the iron, 
screw-bolts and washers in this case are included in " materials 
" for the building and fitting of ships of war or other ships," 
mentioned in Article 13 of the Japanese Regulations relating 
to Capture at Sea,"" and are absolute contraband. The 
remaining goods, being provisions and beverages, must from 
their nature be regarded as s\iitable for use by Europeans and 
Americans, and as there were at the time a large number of 
Russian troops stationed in Newchwang but only a few non- 
combatant Europeans and Americans, and it is evident that 
Newchwang was then a commissariat depot of the Russian 
Army, there is no doubt that upon their arrival at Newchwang 
these articles would have been applied in the military service 
of the enemy. Once goods arriving in enemy territory are by 
inference determined to be intended for the use of the enemy's 
forces, they fall within the provisions of Article 14 of the 
Japanese Regulations relating to Capture at Sea,® and the Prize 
Court was right in holding these articles to be contraband of 
war, and condemning them according to the general principles 
of International Ijaw. There are thus no grounds for the appeal. 
(2) It is a general principle of International Law that, as a 
restraint upon the carriage of contraband of war, not only con- 
traband articles but also innocent articles in the same ship, 
having the same destination and belonging to the same owner 
as the contraband articles, may be condemned. This is, more- 
over, expressly provided in the Japanese Regulations relating 
to Capture at Sea,* nor is there any question as to whether the 
contraband is conditional or absolute. The condemnation in 
the circumstances of innocent articles by the Prize Court, on 
the ground that they belonged to the same o'wners as the 
contraband, was based on general principles of International 
Law, and on the Japanese Regulations relating to Capture at 
Sea,-'-' and was therefore correct. 

The reasons for the decision of the Court are as follows : — 
Although it goes without saying that Newchwang is in 
Chinese territory and not in Russia, it is clear, from the reports 
of Mr. Segawa, Consul at Newchwang, that, after the occupation 
of that place by the Russians, a Civil Administration Office was 
established there and the Civil Administration flag flown xintil 
July 25th, 1904, that on the morning of that day this flag was 
suddenly lowered and the Consular flag hoisted, and that on the 
arrival of the Japanese troops the French national flag Was 
displayed. At the time of the seizure of the articles in 
question Newchwang was practically under Russian adminis- 
tration, and not only was it a place where large numbers of 
Russian troops were stationed but it was also a military 

* App. B. 



The " Hsiping," Claim of the Union Insurance Society, <&c. 130 

base depot. Therefore, goods dispatched thither must be 
regarded as goods destined for the enemy territory. Accord- 
ingly, if the goods new in question were contraband of 
war, they must be condemned. The iron, screw-bolts and 
washers mentioned in list A"-'-, which formed the subject of the 
appellants' insurance policy, were materials suitable for the 
construction of war-ships and other vessels, and were, of course, 
contraband of war. The other articles were foodstuffs and 
beverages, principally of a nature adapted for the requirements 
of Europeans and Americans, but not only was the number of 
non-combatant Europeans and Americans then residing at 
Newchwang very small, but, as has been explained above, 
Newchwang was a Russian military base depot. Consequently 
it must be held that these goods were intended for the military 
use of the enemy immediately on their arrival at Newchwang. 

Moreover, provisions and beverages arriving in the territorj'^ 
and intended to be supplied for the military use of the enemy 
are admitted by existing International Law to be conditional 
contraband, and accordingly the original decision condemning 
these goods was right. It is, moreover, unusual for persons 
about to ship goods which may be contraband, to declare them 
openly as such, it being more usual to put on the outward 
appearance of engaging in legitimate business, and, therefore, 
even though the transport was undertaken after inquiries had 
been made at the custom-house at the time of leaving port, 
this circumstance is not sufficient to upset the judgment 
given. International Law admits that, when a person who has 
endeavoured to import contraband into the enemy's territory, 
which contraband has been seized, has other property belonging 
to him on the same ship, even though it is not contraband, such 
property may be condemned along with the contraband, and, 
therefore, for the same reason, the original decision condemning 
non-contraband goods along with the contraband was right. 

Again, there is no proof that the appellants made a policy 
of insurance on the goods in list A"''', of which they request the 
release, and in regard to which a decision dismissing the claim 
was given, and they have produced no evidence to show that 
they had any interest in the goods. 

As regards the claim with reference to the goods mentioned 
in list B,| it is proved conclusively from the records that, as 
stated in the original decision, it was made after the time for 
entering claims had expired, and consequently it cannot be 
accepted. 

The appeal is, therefore, dismissed. 

* See p, 135. t See p. 136. 



140 



CARGO Ex "HSIPING." 
CLAIM OF TENG MING CHENG AND OTHERS. 

Absolute contraband — Lead — Zinc — Brass plates — German silver sheets — 
Iron wheels — Iron ba/rs — Old iron — Bulk iron^-Tinibei — Conddtional 
contraband — Foodstuffs — Beverages — Sil/uer coins — Consignment to port 
occupied by the enemy — Non-contraband goods — Basins — Soa/p — Sheeting 
— Thread— -Cloth— -Paper — Arsenic — Table-ware — Property of the owner 
of contraband — Different destination to that of contraband — Condemnation 
— Evidence of ownership. 

The " Hsiping " had on board a quantity of lead, zinc, brass plates. 
Germali silVer sheets, iroi wheels, u'on bars, old iron, bulk iron, timber, 
foodstuffs (including rice), beverages, silver coins, basins, soap, sheeting, 
thread, cloth, paper, arsenic and table-ware consigned to Newchwang, and 
also goods consigned to other Chinese ports. 

Held that Newchwang was a Russian military base dep6t, and that the 
lead, zinc, brass plates, German silver sheets, iron wheels, iron bars, old iron, 
bulk iron and timber must be condemned as absolute contraband. 

Held on the facts that the foodstuffs, beverages, and silver coins were 
intended for the use of the enemy's forces, and must therefore be condemned 
as conditional contraband. 

Held that the basins, soap, sheeting, thread, cloth, paper, arsenic and 
table-ware, though not contraband, belonged to the same owners as the 
contfaband, and jaust therefpre be condemned. 

It is imma¥eriai that the destination of some of the non-contraband goods 
belonging to the owners of contraband cargo is not the same as that of the 
contraband and is a port in neutral territory. 

Question of the ownership of goods decided on the evidence of the bills 
of lading. 

A British ship, named the " Hsiping," sailed from Shanghai 
on July 11th, 1904, for Newchwang, via Chin-Huang-Tao, with 
a general cargo. She was captured on July 14th off Kaimin 
Island, near the Shanttmg Promontory, by a Japanese warship 
•on suspicion of carriage of contraband, and taken before the 
Sasebo Prize Court. 

On December 17th, 1904, the Sasebo Prize Court gave a 
decision in respect of part of the cargo on board the "Hsiping," 
condemning the goods set out in the annexed list A, and releasing 
those set out in the annexed list B. Of the goods condemned, 
some were consigned to Newchwang. some to Tientsin, and some 
to Chin-Huang-Tao, the two latter places being admittedly 
neutral ports. Of the goods consigned to Newchwang, some 
were condemned as contraband, and others, which were admitted 
to be innocent, as being the property of the owners of the 
contraband on board. The goods consigned to Tientsin and 
Chin-Huang-Tao were condemned as being the property of the 
owners of the contraband on board. The goods released were 
all consigned to Newchwang, and were not the property of the 
owners of the contraband. The goods which were condemned as 
being the property of the owners of contraband goods and not 



The "Hsiping," Claim of Teng Ming Cheng and Others. 141 

as being themselves contraband are indicated in tlie list by an 
asterisk. 

The decision of tlie Sasebo Pri^e Court is not printed, as 
the grounds on which it was based were substantially the same 
as those in the decision of the Higher Prize Court. 

An appeal was entered by Teng Ming Cheng, who was held 
by the Higher Prize Court, on the ev idejace of the bills of 
lading, to be the ownex of the greatfi£_part of .the cargo, but who 
alle^d himself to be only the forwarding agent^_,and 44 other 
persons, who claimed to be the owners of the condemned goods. 
The case came before the Higher Prize Court on December25th, 
1905, when judgment was given dismissing the appeal. 

Decision of the Higher Prize Gourt.^ 

This is an appeal against the decision of the Sasebo Prize 
Court of December 17th, 1904, condemning the goods set out 
in the annexed list A captured on board the " Hsiping," and 
releasing those set out in the annexed list B. 

List A. 
Goods consigned to Newehwang. 

Rice ; flour ; tea ; paper'-' ; beer ; wines ; American cheese ; 
fruit ; sardines ; pickles ; jam ; champagne ; butter ; salt 
herrings ; French asparagus ; brandy ; salt beef ; liqueurs ; 
salmon ; biscuits ; pineapple ; sliced ham ; tomatoes ; dried 
fruits ; American asparagus ; rum ; cube sugar ; pepper ; 
timber; enamelled basins'* ; green mottled soap* ; white sugar; 
zinc ; brass plates ; German silver plates ; confectionery ; lead ; 
sugar candy ; native arsenic™ ; gin ; table-ware* ; sausages ; 
cigarettes ; black tea ; old railway nails ; iron wheels ; pieces of 
iron bars ; brass bowls* ; old fishing net iron ; old bulk iron ; 
old coarse cloth bags* ; " Asahi " beer ; crystallized oranges ; 
sesame oil ; vermouth ; Mexican dollars ; small silver coins ; 
Bombay gray cotton thread* ; American gray sheeting® ; soap* ; 
biscuits ; margarine ; stout ; wheat ; Agar- Agar. 

The list of goods consigned to Tientsin and Chin-Huang-Tao 
is not printed, as, these goods being condemned only on the 
ground that they were the property of owners of contraband 
cargo, their nature is immaterial. 

List B. 

Goods consigned to Newehwang and released as not heing 
contraband. 

Enamelled basins ; green mottled soap ; American grey 
sheeting ; Bombay grey cotton thre ad ; Japanese grey cotton 
thread ; china cloth. 

t PubHsted iahhe^fidal GaneUe, Tokio, Feteuary-12th, 1SQ6 __ 

* CondemQ^d a? being the propertj of an owner of contraband goods, 



142 The " Hsiping," Claim of Teng Mmg Cheng and Others, 

The main points relied on in support of tlie appeal were as 
follows : — 

Of tlie claimants in this case, the Chinese merchant, Teng 
Ming Cheng, carries on business under the names of Hsiang 
Fa Yuan and Kai Ping Chang, as a forwarding agent, and the 
remaining 44 are all owners of goods forming the subject of 
claim. The captured goods belong to merchants other than 
Teng Ming' Cheng, and Teng Ming Cheng was only concerned 
with their forwarding ; but if the goods are condemned he will 
suffer loss, and has therefore put in a claim, together with the 
owners, and requests the release of the whole of the goods. 

The goods forming the subject of the claim are divided into 
two categories (1) goods consigned to Newchwang ; (2) goods 
consigned to Tientsin and Chin-Huang-Tao. The first category 
may be further divided into (a) articles falling under Article 13 
of the Japanese Regulations relating to Capture at Sea,'*' and 
(6) articles falling under Article 14 of the same. Of articles 
coming under (a) there is but the single item of lead, which, as 
it is only set forth in a note in brackets under " arms, ammu- 
nition, explosives, materials for making the same," in the 
Regulations, is not to be regarded as absolute contraband. 
It must be regarded as being contraband only in the case 
where it is to serve as material for arms, ammunition, &c. 
The use of lead for modern arms is extremely rare, and when it 
is employed it is only of value when mixed with other metals ; 
but for this purpose a suitable factory is requisite, so that in a 
place like Newchwang, which is not provided with such equip- 
ment, lead cannot be a material for arms. Moreover, the 
quantity, of lead imported into Newchwang in time of peace is 
large, and, according to the Statistical Tables of the Chinese 
Customs, its value reached, in 1902, 42,864 taels, and in 1903, 
20,758 taels, from which it may be inferred that the Chinese 
demand in time of peace is very great. The lead which it was 
intended to import on this occasion was not suitable for 
military use in time of war, and, therefore, there is no ground 
for condemnation. 

Again, a large number of the goods forming the subject 
of the claim are included in the second category and the most 
important of them, rice, flour, tea, sugar, timber, and silver 
currency are not contraband, except in cases where they are to 
be considered as destined for the enemy army or navy, or 
intended for the use of the army or navy. The goods in 
question were entrusted by private traders to a forwarding 
agent, or despatched to themselves as consignees, and were 
clearly not destined for the enemy army or navy ; a fact which 
may also be inferred from the judgment in the case of the ship. 

Again, it must be remembered, in considering the question 
whether they were intended for use in the military or naval 

* App._B, 



The '^Hsiping," Claim of Tcng Ming Cheng and Others. 143 

service of the enemy, that not only were the shippers and the 
owner of the vessel ordinarily engaged in the business of 
carrying such merchandise to Newchwang, but also, as a state 
of war existed at the time, they took care that there should 
be no fear of a breach of their duties as neutral citizens, and 
did not undertake the carriage of the goods in question until 
they had specially inquired of the Chinese Customs and received 
a reply that rice, flour, sugar, oil, coins, &c., were not con- 
traband -unless intended for the use of a belligerent. If the 
shippers had aneant to supply the goods for the use of a 
belligerent, there was no need to make such inquiry and obtain 
an answer. The ordinary demand for such articles at Newch- 
wang is very great, and they are imported from Shanghai and 
elsewhere to meet a general demand. Also, the shippers of the 
goods in this case all have either a head ofSoe or a branch at 
Newchwang, and they shipped the goods in the ordinary course 
of their respective mercantile businesses. It is unduly harsh to 
treat such goods as intended for the use of the enemy, when 
the shippers have been importing the same sort of articles for 
many years," and when their quantity is not excessive. 

According to the bills of lading the greater part of the goods 
appear to belong to Kai Ping Chang and Hsiang Fa Yuan, 
and the despatch of such a large quantity of goods by one and 
the same person is apt to give rise to the suspicion that the 
goods were intended for the use of the enemy. But the 
evidence shows that the head of the above two firms, Teng Ming 
Cheng, acted as a forwarding agent, and merely shipped the 
goods in his name, the real owners being other merchants. 
According to mercantile usage at Shanghai, goods which a 
merchant has to send to another port are, as a general rule^ 
given entirely into the hands of a forwarding agent, and Teng 
Ming Cheng, for instance, pays several hundred thousand taels 
to shipowners per annum in freight, having, it is stated, paid 
over 4,000,000 taels in freight in the last ten years. This fact 
also proves that the greater part of the goods in this case cannot 
properly be considered liable to condemnation as being in the 
name of Teng Ming Cheng. 

There are some articles among the captured goods which 
do not appear in the Customs Tables ; for instance, some of 
the provisions, being articles used by restaurants or ordinary 
consumers, are not specially mentioned in the Tables, but are 
included under the heading of Miscellaneous Articles. Again, 
it is true that there are some articles which do not tally with 
previous imports as to place of origin and quality, but those 
which do not are extremely few. 

With regard to the goods consigned to Tientsin and Ohin- 
Huang-Tao, these places, being of course neutral harbours, were 
unconnected with hostilities, and, therefore, goods destined for 
these places are" niSt contraband of war. ' The Prize Court was 
wrong in condemning them as "belonging to the same owners as 



144 The " Hsiping^' Glaim of Teng Ming Cheng and Others. 

contraband articles, for, in the first place, in Article 43 of the 
Regulations relating to Captui-e at Sea,* which states that 
" Articles which are contraband of war, and that portion of the 
" cargo which belongs to the owners of the contraband, shall b^ 
" condemned," the word " OAvners " signifies the owners of 
absolute contraband, and not the owners of what is called 
conditional contraband. The condemnation of innocent articles 
belonging to the owners of contraband is intended to restrain 
the carriage of contraband, and, whei'e absolute contraband is 
carried, it may be inferred that the owner intends to assist the 
belligerent ; but in the case of conditional contraband the 
que,&tipfn whether it is contraband or not depends entirely on 
the view of the facts adopted by the Court, so that the same 
inference cannot be drawn. It follows that there arises no 
reason for the application of this principle. 

In the second place, as pointed out above, Teng Ming Cheng 
claims because he was the forwarding agent, and the bills of 
lading and other documents bear his trade-names in accordance 
with mercantile usage at Shanghai, while the owners of the 
goods are different persons, as is shown by the evidence. 
J'he Prize Court nevertheless disregarded this evidence, arid 
holding Kai Ping Chang and Hsiang Fa Yuan, in whose names 
the documents were made out, to be the owners of the goods, 
lasted put the same treatment to innocent articles belonging to 
persons other than the owners of the contraband. 

■ Zinc, brass plates, German silver plates, and so on, may, it 
is true, be used as materials for the manufacture of arms or 
ammunition, or for the building or equipment of ships ; yet 
not only are there cases in which, from their form, they cannot 
serve such purposes at all, but also, as they cannot ser\''e such 
purposes until they have gone through a number of processes, 
they cannot be said to be from their nature necessarily materials 
for warlike implements. Therefore, in order to determine that 
these articles are materials for warlike implements, it must be 
shown that, from their quantity, form, &c., they are immediately 
applicable to such use. It is contended that such goods, though 
absolute contraband when from their quantity and form they 
are immediately applicable for warlike purposes, are not con- 
traband when they can only serve as materials therefor after 
various processes, and after a change of form and quality. The 
goods in this case being, as has been already shown, imported 
yearly in large quantities to supply a demand in time of peace, 
are not materials for warlike implements, nor are they in such a 
condition that they can serve as materials therefor ; so that they 
are included among innocent articles. If the Court intended 
to hold that the articles in question were in their present 
condition available as materials for warlike implements, it 
should, in condemning them, have described their actual 

• Appendix B. 



The " Hsiping," Claim of Teng Ming Cheng and Others! 145 

cliaracter and form, and explained the ground for so holding ; 
but the Court made no distinction between the goods, and held 
that all were absolute contraband. 

As to to the iron wheels, iron bars, old iron, iron ore, &c., 
though they might possibly be used in the manufacture of arnis 
or ammunition, or for building ships, they certainly cannot 
serve directly as materials therefor. The same may be said of 
such articles as timber, oil, paper, and so on, even though 
they might possibly be used for such purposes. This is the 
reason for objecting to such articles being considered as 
absolute contraband. In the decision in the Prize Court it was 
held that as the flour, wines, pineapple, and other provisions 
and beverages for Newchwang were all suitable for consumption 
by Europeans and Americans, and as there were at the time 
only a very small number of non-combatant Europeans and 
Americans resident in Newchwang, this large quantity of pro- 
visions and beverages was evidently intended for the use of 
the enemy troops. But though it is a fact beyond dispute 
that the number of Europeans aud Americans resident in 
Newchwang was small, while the Russian troops stationed 
there were numerous, flour, Avines, &c., besides being suitable 
for the requirements of Americans and Europeans, are also 
iised by Chinese, and there is a large yearly import of wines 
and even flour, as material for the manufacture of cakes. 
Rice, again, is not suitable for the requirements of Europeans 
and Americans, but is necessary for Chinese. Thus, the 
conclusion that the wheat, wines, &c. were, on one and the 
same ground, intended for the use of the enemy troops, and 
liable to condemnation, was inconsistent with the reasons given 
in support of it. 

Though it is clear that coin is a military requisite, it is not 
clear how the owner was to supply it to the Russian army ; in 
fact there was practically no way of supplying it. If the coin 
were owned by Russians, there might be some who woiild supply 
it, but it is obvious that no foreigner would specially import 
coin and present it to the Russian army ; if any one wished to 
supply it for the use of the Russian army, there is no reason 
whj'^ he should not claim a proper recompense therefor. Though 
at that time the Russian army had no means of selling goods 
to obtain currency, and the Russian army might require 
Chinese labour, there was no reason why Russians should work 
for Chinese, and therefore it is clear that there was certainly no 
condition of affairs where coin was necessaiy to the Russian 
anny. It is unreasonable to consider such things as intended 
for the use of the enemy. Again, it is not easy to see how old 
railway nails and timber could be intended for the use of the 
enemy forces. Timber might possibly be useful to them, but 
old nails can certainly not be used for railway purposes.. ,, It is 
therefore well nigh impossible to discover in what way they 
can be employed by an army. < . ■ . ,, ■ 

E 12750 Tf 



li;; The " Hsiping," Otaim of Teng Ming.Gheng and Others. 

Some of the innocent articles were condemned by the 
Prize Court on the ground that they had belonged to the 
owners of the contralDand. But, as explained above, the greater 
part of what was called contraband is not contraband, so that 
this decision was wrong. ■ ■ 

Tiie Prize Court decided that the cargo for Tientsin and 
dhin-Huang-Tao was innocent irrespective of its nature, and 
yet such of these articles as belonged to the owners of con- 
traband were condemned. But the words in Article 43 of the 
Regulations relating to Capture at Sea,"* "that poi-tion of the 
cargo which belongs to the owners of the contraband," means ■ 
articles carried in the same ship and consigned to the same 
port, and does not include cargo consigned to other ports. 
What is consigned to other ports should therefore not be 
condemned. If such articles are to be condemned, the con- 
clusion follows that articles candied in other vessels are to be 
condemned, and great damage will be inflicted upon neutral 
persons. In Article 72 of the Manual of English Prize Law,| 
it is clearly stated that, even where it may appear that cargo is : 
to be discharged in a neutral port, it must still be considered 
that its destination is enemy territory ; and again, in Article 82, 
under the heading " Penalty" it is stated as follows : — " The 
" penalty for carrying goods absolutely contraband is, in 
" general, confiscation of such goods, and also of the interest 
" which the owner of such goods may have in the rest of 
" the cargo." This is apparently not unlike the effect of the 
Prize Court's decision ; but it is an express provision of English 
law that even an intermediate neutral port is to be con- 
sidered enemy territory, while in the present case n6 such 
doctrine was laid down, nor is there any ground for laying 
down such a doctrine. Further, the condenmation of the interest 
in the remaining goods is a penalty in English law in the 
case of absolute contraband, and in the present case goods have 
been condemned which are not absolute contraband, yet it is 
proposed to apply the same rule. It has already been argued 
that Teng Ming Cheng is not the owner of the cargo, and that 
accordingly the goods for Tientsin and Chin-Huang-Tao cannot 
be said to belong to the owner of contraband goods. Even 
presuming him to be the owner of the brandy which appears 
in the list, brandy is not absolute contraband, nor even con- 
ditional contraband, as already argued, so that, from any point 
of view the goods for Tientsin and Chin-Huang-Tao are not 
liable to condemnation. 

For the above reasons it is claimed that the whole of the 
cargo condemned should be released. 

* App. B. 

t The reference is apparently to the " Manual of Nayal Prize Law,'' 1888 , 
edition, hj Professor Holland. 



The "Msiping," Claim of Teng Ming Gheng and Others. 147 

, The substance of the reply of the. Procurators. of the. Prize 
Court was as follows : — > 

. (l)'At the tune of tlie shipment of the .goods in this case 
Newchwang-was not only a place occupied by the Russian 
forces,' but an important place of supply; .so that,' since the 
provisions and beverages among these goods were all suitable 
for use by Europeans and Americans, and a large number of 
Russian troops and but few non-combatant Europeans and 
Americans were stationed in Newchwang, it is clear without 
further argument that these articles were intended on arrival 
at "Newchwang for the use of the enemy troops. As a result of 
successive defeats at sea and on land the Russian army had 
largely lost credit for their war notes current in Newchwang 
and the Manchurian district, and stood much in need of small 
Chinese silver coins to meet their every-day military require- ■ 
ments, and there is not the slightest doubt that the silver coins 
would, on arrival at Newchwang, immediately be put to the use 
of the enemy forces. Again, timber and old railway nails being 
most, necessary to the Russian army for military purposes, it 
cannot but be inferred that these also, upon arrival at Newch-' 
wang, would immediateh^ be put to the use of the enemy forces. 
The Prize Court was therefore right in holding these articles, 
to be covered by Article 14 of the Regulations relating to Capture 
^t Sea,* and in condemning them on general principles- of 
International Law and in accordance with the Japanese Regu- 
lations-.® 

(2) According to the general principles of .International Law 
and the Japanese Regulations relating to Capture at Sea,* in 
order to repress the wrongful action of carriers of. contraband, 
innocent articles' belonging to them may be condemned : (a) 
if carried in the same vessel as the contraband, and (6) to the 
same destination as the contraband. If these two conditions are 
fulfilled there is no question as to whether the contraband is 
absolute or not. The Prize Court was therefore right in con- 
demning innocent articles belonging to the same owners as the 
contraband. 

(3) Among the goods in this case, which the appellant Teng 
Ming Cheng himself states he forwarded, are many despatched 
in names other than his trade-names Kai Ping Chang and Hsian 
Fa Yuan. If goods are, according to Shanghai mercantile usage, 
despatched in the name of the forwarding agent, then all those 
forwarded by Teng Ming Cheng ought to have been despatched 
in his .name ; as this was not so, the argument about Shanghai 
mercantile usage arid so forth cannot prevail. The Prize, Court 
was right in considjering goods, despatched iiiTeng Ming Cheng's 
name and consigned to order, as, all being the property of Teng 
M\ng Cheng., 

* App. B. 

K 2 



148 The " Hsiping," Claim of Teng Ming Cheng and Others, 

(4) Though. International Law is not without precedents 
for the condemnation, with the contraband, of innocent articles 
belonging to the same owner as the contraband, such articles, 
tinlike contraband, do not by reaching an enemy country confer 
upon the enemy any special military or strategic advantage. 
Their condemnation is nothing, but a species of punishment 
for the carriage of contraband, and therefore, in carrying this, 
penalty into effect, it is a general principle to apply exceedingly 
strict conditions, it being necessary that they should (a) belong 
to the same owner as the contraband, ih) be carried in the same 
vessel as the contraband, and (c) l)e despatched for the same 
place, that is, have the same destination as the contraband. 
Applying this rule to the facts of the present case, the innocent 
articles in question belong to the same owners as the con- 
traband, and further, were carried in the " Hsiping " with the 
contraband. But though two of the above mentioned conditions 
are fulfilled, the destination was entirely different in the two 
cases. The innocent articles were consigned to Tientsin or 
Ohin-Huang-Tao, which were neutral territoiy, the contraband 
articles to Newchwang, so that, the destinations of the two being 
different, the third condition was not fulfilled. It is necessary 
to consider upon what precedent the Prize Couil based its 
condemnation of innocent articles which were found to have a 
different destination from the contraband articles ; and further, 
whether there was any rule or doctrine to be followed. There 
does exist such a precedent. This precedent, however, regards 
the destination of the ship as the destination of the cargo ; 
and, where a vessel whose destination is enemy territory carries 
goods consigned to neutral territory en route, there is a pre- 
cedent (the " Peterhof "■•■) for the condemnation of innocent 
articles with contraband, based on the doctrine {see the Manual 
of English Prize Lawf) that the destination of that cargo is 
held to be not the neutral territoiy to which it was actually 
consigned, but the destination of the vessel, that is, enemy 
territory. But there is no precedent for the condemnation by 
the Prize Court of iunOcent articles, while recognising clearly 
that they were consigned to a different place from the con- 
traband, on the ground that they were carried in the same 
ship. 

Under Article 43 of the Japanese Regulations relating ta 
Capture at Sea, J " articles which arc contraband of war, and 
" that portion of the cargo which belongs to the owners of 
" the contraband, shall be condemned " ; and it may be said 
that, as the text makes no question of the identity of the 
ilestinations of the various parts of the cargo, goods carried.! 
in the same ship must be condemned. But the provisions 
of this Article must be applied in conjunction with the pro- 
visions of Articles 13, 14, and 15. Articles 13 and 14 

t 5 Wallace, 28. f See note on p. 146. + App. B. 



The " Hsiping," Claim of Tetig Ming Cheng and Others. 149 

determine what goods in certain circnmstances are contraband 
of war, and only when goods conie under these two Articles 
can they be held to be contraband of war within the meaning 
of Article 43. Now, as for the destination of goods mentioned 
in Articles 13 and 14, Article 15 only states that the general 
rule shall be that the destination of a ship is the destination 
of her cargo, so that the destination of the cargo will not 
necessarily be the destination of the ship, and the ship may 
be bound for enemy territory while the cargo has a destination 
to other than enemy territory. Therefore, if goods are to be 
considered contraband under the provisions of Articles 13 and 
14, they must certainly have a destination in euemy territory. 
^^^lere the destination of cargo is in other than enemy territory, 
even if the destination of the carrying vessel is enemy territory, 
such cargo cannot be said to be contraband under Articles 13 
and 14. If it is established that, once articles are determined 
to be contraband or otherwise from their nature and destination, 
there is no question of the destination of the carrying vessel, 
then the purport of the provisions of Article 43 is clearly 
that only innocent cargo which has the same destination as 
the contraband is condemned. The fact that in the text no 
distinction is made as to the destination of such cargo must, 
in view of the words of Article 15 that the general rule is to 
be that the destination of a ship is the destination of her 
cargo, be interpreted as meaning that the rule principally 
applies to the ordinary case, i.e., the case where the destination 
of the ship and of the cargo are the same. 

To sum up, if, as provided bj^ English Prize Law, the 
destination of the vessel is looked upon as the destination of the 
cargo, even innocent articles which actually have a different 
destination from contraband articles may Ije properly condemned ; 
but, under our Prize Eegulations, which recognise a destination 
of cargo other than the destination of the vessel, innocent 
articles that have a different destination from that of the 
contraband, though carried in the same vessel, may not be 
condemned. Nevertheless, the Prize Court, though mthout any 
precedent to follow, and contrarj?^ to the intention of our Prize 
Regulations, condemned goods despatched to Tientsin and 
Chin-Huang-Tao, on the ground that they belonged to the 
same owner as the contraband destined for Newchwang. This 
decision cannot be supported, and there are thus grounds for 
the appeal, and on this point the decision should be reversed, 
and the goods claimed by the appellants released. 



The reasons for the decision in this case are as follows : — 

International law, as at present constituted, recognises the 

liability to capture and condemnation of contraband of war 

consigned to enemy territory, even when it belongs to neutrals, 

as Avell as the liability to condemnation, together Avith the 



150 The " Hsiping," Claim of Teng Ming Cheng and Others. 

■contraband, of innocent articles carried on ■ tlie same ship 
and belonging to the same owners as the contraband of- war. 
.Although it goes without saying that Newchwang is in Chinese 
territory; and not in Russia, it is clear from the reports of 
the Japanese Consul at Newchwang, that after the occupation 
lof. that place by the Russians a Civil Administration Office was 
. established there, and the (Jivil Administration flag flown, until 
July 25th, 1904 ; that on the morning of that day this flag was 
suddenly lowered and the Consular flag hoisted; and that on 
the arrival af the Japanese troops the French natioaial, fliag was 
displayed. It is an apparent fact that at the time of the c&pture 
of the articles in question Newchwang was practically under 
Russian administration, and not only was it a place where large 
numbers of Rtissian troops Avere stationed, but it was also a 
•military base depot. Therefore goods dispatched thither must 
■ be regarded as goods destined for the enemy territory. 
Accordingly, if the goods now in question were contraband of 
war they must be condemned. 

Lead, being the material of bullets and necessary for their 
mamifacture, is, of course, contraband of war, whether or not 
a factory for munitions of war was established at Newch- 
wang. The table of imports and exports suffices to show that 
large imports of lead took place in 1902 and 1903, but as this 
was subsequent to the Russian occupation of Newchwang it 
does not prove that the normal Chinese demand was large, or 
that the lead in this case was not contraband of war. 

As regards the zinc, brass plates, and German silver plates, 
they were metals •which in their existing state could be applied 
to military p\irposes, and therefore the decision of the Prize 
Court, which held them to be contraband of war witliout 
discussing their form or quantity, was right. 

Iron wheels, iron bars, old iron, bulk iron, al^d timber are 
inaterials which may be employed directly for military purposes, 
and cannot, as contended by the appellants, be regarded in the 
same light as paper or oil. 

Floiir, liquors, jam, pineapples, cheese, and other food-stuff'H 
and beverages mentioned in the list of cargo, and condemned by 
the Prize Court, are articles principally suited to the European 
demand, and since, as the appellants do not deny, the number 
of European and American residents engaged in peaceful occu- 
jjations at Newchwang, at the time of the "Hsiping's" capture, 
was, owing to the Russian army being still in possession, very 
small, it is quite right to hold these goods to have been destined, 
upon their arrival, for the use of the enemy forces. 

According to the bills of lading, lay far the greater part of 
the cargo belonged to the merchant, Teng Ming Cheng, and the 
quantity being very large, the deduction is inevitable that it was 
shipped with the object of supplying the Russian Army and in 
the hope of making large profits. In connection with this point 
several documents have been produced, but as they all came 



The " Hsiping," Claim of Teng Ming Gheiig and Others. 15i 

into existence subsequently to the capture of tlie ship they must 
be treated as drawn up by interested parties in consultation, and 
cannot be relied upon. It is not unusual for persons who possess 
business establishments, and are honestly engaged in business, to 
run risks and embark on irregular transactions for the sake of 
large profits, and it is not surprising that traders, whose sole 
object is to make profits, should act in such a way. Therefore, 
even supposing that the whole of the goods in question belonged 
to Chinese merchants other than Teng Ming Cheng, who had 
been engaged jn trade in sii ch co mmodities at NfiS'chwang for 
many^ears past, there is nothing imlawful in their condemna- 
tion. 

Although it is not at first sight unreasonable to argue that 
rice must be considered as intended for ordinary Chinese con- 
sumption, rather than as supplied for iise by Europeans or 
Americans, yet it was plain at the seat of war that rice could 
also be used to supply the demands of Europeans, and was, 
especially in the absence of flour, suitable food for Russians. 
Consequently the decision of the Prize Court holding it to be 
contraband was right. 

With regard to the silver coins, it is stated in the Consul's 
report that when the Russian Government first commenced the 
■construction of the Manchurian railway they made all payments 
in coin, but, after a year or two, they also employed the rouble 
paper currency, showing the Chinese the equal value of coin and 
paper money, and obtaining their confidence ; that the coinage 
was gradually withdrawn and paper money issued in increased 
quantities, so that about the year 1902 Russian coins were seldom 
seen in circulation in Manchuria, in spite of which the paper 
roubles had an exchange value in the interior of Manchuria of 
from 1 dol. 30 c. to 1 dol. 40 c, as the Russo-Chinese Bank, 
which was by this time established in all the important towns 
of Manchuria, exchanged paper roubles for silver at market 
rates ; that when rumours of a war between Japan and Russia 
became rife in the autumn of 1903, a report spread ajnongst 
the Chinese that should war break out and Russia suffer a single 
defeat, the Russian paper money would lose its exchange value 
and become mere waste paper, and therefore the circulation of 
paper was greatly affected between November and December, 
1903, and February, 1904, the date of the outbreak of the war, 
so that paper of the value of 1 dol. 30 c. or i dol. 40 c. fell at 
times to 1 dol. 10 c, though, owing to the efforts of the branches 
of the Russo-Chinese Bank to maintain the credit of paper 
money, it did not go out of circulation entirely ; that after the 
news of the defeats at Nanshan and "Tehlisu reached Kaiping 
and Newchwang, the Chinese who had hoarded Russian paper 
money vied with one another in their efforts to sell it, and, 
consequently, the paper rouble fell to 70 or 80 cents, but as it 
could at any time be exchanged at current rates for silver taels 
at Tientsin and Shanghai and other places, silver smelters in 



152 The " Hsiping," Claim of Teng Ming Cheng and Others. 

the Yingkow markets bought up Russian paper in all directions, 
when it was low, and made enormous profits by sending it to 
Shanghai to be exchanged. 

According to this report, even at the outbreak of the Russo- 
Japanese war suspicions existed amongst the Chinese generally 
as regards the circulation of rouble notes, Avhich showed a ten- 
deijcy to gradually lose credit, and when the news of the defeats 
at Nanshan and Tehlisu reached Yingkow, a great fall restilted, 
in spite of the attempts of the Russo-Chinese Bank to maintain 
confidence. It was an inevitable result that as the news of the 
continued Japanese successes became more and more known, the 
circulation of paper roubles should cease amongst the Chinese 
generally, and it is thus clear that at the time of the importa- 
tion of these silver coins the Rvissian forces were not in a position 
to use rouble notes in obtaining military supplies or coolies, 
and, consequently, silver coins, current in China, had become 
indispensable to the Russian army. 

Further, in the report on Russian rouble notes prepared by 
. the Japanese. Consul-General at Tientsin, it is stated that not 
only had a large number of Chinese entertained suspicions since 
the commencement of the Russo-Japanese war in regard to 
the system of exchange, but also fear of counterfeiting greatly 
damaged credit, and, though rouble notes could not be said to 
be entirely out of circulation, as a very small number of them 
passed amongst Russian subjects and contractors to the Russian 
Government, yet they were treated by all the banks at Tientsin, 
not as currency, but as valuable documents. In view of this 
statement, it must be held that after the Russian defeats at 
Nanshan and Tehlisu rouble notes were not current amongst 
Chinese generally, and were no more than a species of goods 
dealt in by persons who hoped, by taking advantage of the fall 
in their value, to secure large profits. These notes could there- 
fore not be used by the Russian army when purchasing goods 
-or in paying the wages of labour, and the need of the Russian 
army for silver coinage, current in China, becomes increasingly 
clear. 

Although the principal trade of Newchwang, which is beans, 
l)ean-refuse and oil, continixed in spite of the outbreak of the 
Russo-Japanese war, it was possible in other districts to take 
advantage of the need of the Russian army for silver coins, 
cprrent in China, and make large profits by buying up the 
increased issue of rouble notes at a low price, and it is illogical 
to contend that, because the bean trade was still carried on, the 
coins in question could not be destined for the military use of 
the enemy. Deduction shows it to be a natural tendency that, 
at such an opportimity, the Chinese, who are skilful at making 
profits, and, even bankers, neglecting their ordinary business, 
should run all risks, and attempt to import silver coins in 
order to buy paper roubles from the Russian army at low rates,, 
and make enormous profits. Not only was the silver in this 



The " Hsiping," Claim of Teng Aliiig Cheng and Others. 153 

case shipped tlirougli Teng Ming Cheng, who was attempting 
to smuggle a full cargo of contraband into Newchwang, and 
placed by him on board the same vessel and at the same time as 
the contraband of war, but it is clear, as shown above, that its 
destination was a Rvissian base depot and that silver was indis- 
pensable to the Russian army, and this Court therefore holds 
that it was imported, in common with the rest of the contraband 
cargo carried by the vessel, for the use of the Russian armj-. 
Accordingly the decision of the Prize Court condemning it was 
right. 

Persons attempting the illicit carriage of contraband 
necessarily endeavour to avoid suspicion and conceal their 
actions, and, consequently, the fact that the usual steps at the 
Shanghai Customs were publicly taken in connection with the 
ejcportation is not sufficient evidence to rebut this finding. The 
evidence cited by the appellants merely suflices to show that 
small silver coins were imported into Newchwang every year, 
but no ground is shown for adopting the contention that the 
coins in this case were supplied for ordinary trading purposes, or 
for disregarding the fact that an opportunity existed for making 
a large profit. It goes withoiit saying that silver coins were not 
used for Russian militarj' and naval purposes alone, but vi'ere 
also employed in business transactions by Chinese generally, \>\\i 
the circumstances suffice to show clearly that the silver coins 
which the appellants attempted to import were destined for the 
tise of the Russian nailitary forces. This being so, silver coins 
may be held to be contraband of war, just in the same way as 
foodstuffs, such as rice, flour, or other comestibles, would be held 
to be contraband under similar circumstances. 

The reason for which foodstuffs, currency, &c. arriving in 
enemy territory and destined for the enemy's military use are 
contraband is that they may be expected to add to the enemy's 
fighting strength, and therefore it is not a necessary condition 
that the destination should be a military port or a blockaded 
port, though the fact that such destination is a military or a 
blockaded port is a circumstance which helps to show that 
goods dispatched thither are contraband of war. Therefore the 
appellants' arguments in regard to this point cannot be adopted. 
The cargo consigned to Tientsin and Chin-Huang-Tao was, 
as shown by the bills of lading, placed at the disposal of Teng 
Ming Cheng, and is therefore considered to be his property. 
It is held by the doctrines of International Law, and considered 
by this Court to be in accordance with general principles, that 
when contraband of war is captured and innocent goods 
belonging to the owner of the contraband are found on board 
the same vessel, the innocent goods may be condemned, even 
though their port of destination be not the same as that of the 
contraband. This is simply one of the penalties inflicted on 
the owner of the contraband for his attempt to import it into 
enemy territoiy, and therefore no reason exists for making 



.154 The " Hsiping," Claim of Teng Ming Cheng arid Others. 

a distinction in the judgment as to the port of destination of 
the .innocent goods. Tientsin and Chin-Huang-Tao being 
neutral territory, the goods consigned to those places' are not 
ebntraband, but they belong to Teng Ming Cheng, who 
attempted to ship a cargo of contraband and land it at Newch- 
wang, and must consequently be condemned along with the 
contraband as a penalty for his act. 

Judgment is therefore given as follows : — 

This appeal is dismissed. 



155 

CARGO Ex "HSIPTNG." 
CLAIM OF YU SHENG CHANG. 

GoudAiional contraband — Silver coins — Consignment to port occupied by 
the enemy— Condemnation. 

The " Hsiping " liad on board 17 boxes of small silver coins consigned 
to Newchwang. 

Held on the facts that they were intended for the use of the enemy 
. forces, and must therefore be condemned as conditional contraband. 

A British ship named the "Hsiping" sailed on July 11th, 
1 904 j- from Shanghai for Newchwang, via Chin-Huang-Tao, 
with a general cargo. She was captured by a Japanese war- 
ship on- July 14th off Kaimin Island, near the Shantung 
Peninsula, on the ground that she was carrying contraband, and 
taken before the Prize Court at Sasebo. 

Among the cargo were 17 cases of silver coins consigned to 
Newchwang', for which a' claim was entered by the firm of 
Yu Sheng Chang. The claim was dismissed, and the coins 
were- condemned by the Prize Court on the ground that they 
were conditional contraband. The claimants appealed to the 
Higher Prize Court, but the appeal was dismissed and the 
decision of the Prize Court at Sasebo upheld. The decisions 
of the Prize Court and of the Higher Prize Court are not 
reported as the case is practically identical with Teng Ming 
Cheng's claim (p. 140), but it has been thought desirable to 
print an extract from the Judgment, giving the arguments on 
appeal. 

Arguments on Appeal/'^ 

This is an appeal against the decision of the Sasebo Prize 
Court of December 17, 1904, condemning 17 boxes of small 
silver coins consigned to Yu Sheng Chang on board the 
" Hsiping." 

The points relied on in support of the appeal are as 
follows' : — 

(1) The claimants are bankers and also carry on a wholesale 
dealer's business. When NewchAvang merchants export to 
Shanghai soya beans, bean-cake, bean-oil, &c., the claimants 
advance the amount of the documentary bills, and receive 
payment of the amount of the bills at Shanghai from the 
■persons liable. To transmit this money to Newchwang, they 
buy a bill on Newchwang or send cash. In the case also of 
an advance on bills for merchandise exported to places other 
than Shanghai, payment of the amount of the bills is sometimes 

* Published in the Official Gazette, Tokio, December 25th, 1905. 



15(1 The " Hsiping," Claim of Yu Sheng Chang. 

received in Shanghai. This is because Shanghai is the centre 
of Chinese commerce and the centre of the money market. 
Also when the claimants themselves export beans, bean-cake, &c. 
to Shanghai, they receive payment of the price at Shanghai, and 
this is the case too when they export to places other than 
Shanghai. The silver coins in this case were money that the 
Shanghai agents of the claimarts had received at Shanghai in 
respect of such transactions as the above, had exchanged at the 
bureau de 'change and had despatched to the head office at 
Newchwcing. The special reason for sending actual silver coins 
was that it is usual at Newchwang, in the season for exporting 
beans, bean-cake, &c., for exporting firms to use small silver 
^jinage in paying for the goods and the exporters, who were 
customers of the claimants' bank, looked to the claimants for 
their supply of silver coin, and therefore it was necessary for the 
claimants to be provided therewith. This is one of the reasons 
for the despatch of actual silver coins in this case. Further, 
when silver coin is plentiful at Newchwang and the Shanghai 
rate of exchange on Newchwang is low, there is no need for the 
claimants' agent to send silver coin, but when silver coin is 
scarce at Newchwang and the Shanghai rate of exchange on 
Newchwang is high, it is commercially advantageous, and 
indeed necessary, for the payment of freight, insurance, &c., 
to remit actual cash. This is a second reason for the despatch 
of silver coins in the present case. 

(2) The despatch by the claimants' agent to the head office 
at Newchwang of the silver coins in this case was in connection 
with the ordinary business of a banker, and had no connection 
whatever with the Russian army. If purely business conduct 
like this is to be deemed improper, and the goods in transit to 
be condemned, it amounts to the deprivation of business rights ; 
and, in particular, the deprivation of the ordinary business 
rights of a neutral subject in his own country, which is entirely 
contrary to the precedents and doctrines of International Law in 
time of war. 

(3) As for the voyage of the " Hsiping " to Newchwang and 
other ports, it was announced in the Shanghai newspapers, and 
the British Consul sanctioned the departure of the vessel in 
order to carry goods for Newchwang, while the Shanghai 
Customs officially passed through the Customs the goods for 
Newchwang. Therefore the claimants' agent, withoi\t any 
anxiety whatever, and viewing the matter as an ordinary trans- 
action, shipped the silver coins in question by this steamer. 
Thus the capture, to say nothing of the condemnation, of the 
coins was an utter surprise to him. There was no need to 
employ such very open methods in forwarding the coins, and 
the mere fact that they were employed is more than enough 
to indicate that there was nothing to conceal. 

(4) The Prize Court stated as a reason for its decision that, 
as Newchwang was occupied at the time by the Russian forces, 



The " Hsiping," Claim of Yu Sheng 'Chang. 157 

and was also a base of supply, and as at this period the war 
notes used by the Russian forces had fallen considerably in 
value owing to the successive defeats of the Russian army and 
navy, it was clear that those forces required Chinese cun^ency, 
particularly such small metallic currency as the silver coins in 
this case, and therefore the conclusion must be that this silver 
coin upon reaching Newchwang was intended for the use of the 
Russian forces. But not only is it very harsh to hold that, by 
reason of Newchwang being a base of supply, all goods imported 
into Newchwang were intended for such use, but it is also 
contrary to the facts. Though Newchwang was occupied by 
Russian troops at that time, the telegraphic Newchwang Market 
Reports for July of that year from the Newchwang branch of 
the Mitsui Bussau Company, show that business at Newchwang 
had not on that account come to a standstill, but was being 
carried on ; and the fact will be clear upon the publication of 
the Annual Trade Returns for China for 1904. Even supposing 
such silver coin as that now in question to be necessary to the 
Russian forces, there is no reason why it should be put to their 
use irrespective of its ownership, nor indeed Avas it possible. 
Where the clainiants, who are bankers, sent to Newchwang, 
their place of business, from Shanghai, the source of tlieir 
supply of capital, silver coin required for that business, it 
ought to be inferred that that silver coin was to be employed iu 
tlieir banking business. To break down this natural inference, 
the strongest reasons and proofs are necessary. To give a 
decision contrary to this natural inference on such vague facts 
as are set forth in the decision of the Prize Court would be 
contrary to the laws of evidence. 

(5) Silver coin is what is called conditional contraband, and 
is only held to be contraband in cases where (a) it is destined 
for the enemy's army or navy, or (b) it is destined for enemy 
territory, and may, from the circumstances of its place of 
destination, be regarded as intended for the use of the army 
and navy on reaching enemy territory. Therefore, evidence to 
show that it must be considered as destined for the enemy's 
army and navy, or intended for their use, must be given by 
anyone who maintains that it is contraband. In case (6), to 
argue that goods are intended for the use of the enemy's forces 
solely because they are sent to territory occupied by the 
enemy, is to deduce from the existence of the first of the two 
conditions necessary in case (b), the existence of the second 
condition; and the result is to make the second condition un- 
necessary. The result of this ai-gument is that in the second 
case there would be no difference between conditional contra- 
band and absolute contraband, and the spirit of the distinction 
between the two would be entirely destroyed. It may be said 
that the Prize Court did not base its conclusion that the goods 
Avere contraband on the sole ground that they were consigned 
to territory occupied by the enemy, but that it gave reasons in 



158 The " Hsiping," Claim of Yu Sheng, Chang. 

support of its view that this silver coin was for the use of \ the 
Russian army, but currency can he utilised by anybody in any 
circumstance, and its use is not con^ned to the Russian army 
and naAry. Therefoi'e, as there is no special reason for sus- 
pecting the use of this. coin by that army and navj^ alone the 
supplementary reason in the Prize Court decision, replying- to 
the question, " Why is the silver coin, in this case regarded as 
" intended for the Russian forces?" that "It is to be so 
" regarded because - there is a demand for: its use in those. 
" forces," is what is known as solving a question by a question. 
Further, although the burden of proof did not rest on the ■, 
claimants, they demonstrated exhaustively, from various facts; 
and evidence, that the silver coin was. not only not destined for 
the Russian forces, but also was not available for their use, 
being sent by the claimants to meet their own banking business 
requirements; and the procurators brought forward no re- 
butting evidence. In spite of this the -Prize Court -rejected^ 
the claimant's explanations and adopted the prociirators'' views. - 
A judgment which disregards the. evidence in suchi a ^way 
cannot stand. ,. • . 

, (6) Though it is an undoubted fact that Newchwang was 
under the influence of Riissia, not only at the time of the capture 
biit also before the outbreak of the^ Russo-Japanese war, there 
are no reasons for not regarding this occupied territory in. the 
same light as ordinary occupied territory. Newchwang, being' 
as regards the Powers a commercial port, is not a naval port or 
a closed port, nor can it be regarded in the same light as 
ordinary occupied territory in wartime, such as, for instance, 
Shuang-tao Wan, Pigeon Bay, Hsiao-ping Tao, &c., near Port 
Arthur. If conditional contraband, that is, goods mentioned in 
Art. 14 of the Regulations relating . to Capture at Sea,® were 
despatched to Shuang-tao Wan, Pigeon Bay, Hsiao-ping Tao, 
&c., nobody would object to their being regarded as immediately 
destined for the Russian forces and condemned as contraband ; 
but to treat such a case, and the case of goods consigned to 
Newchwang on the same footing, is not the true spirit inj which 
the Japanese Regulations relating to Capture at Sea* and 
International Law treat neutral goods. In this particular case, 
the silver coin being ciirreney, and current both among Chinese 
and the native and foreign merchants at Newchwang, the 
circumstances are very difEerent from other contraband articles, 
such as provisions, &c., and there is a reason for holding it not 
to be for military use. In the case of provisions, for instance, 
there is a great difference between Jthose intended for the use ot 
Russians and those for' the use of Chinese, so that Avhere largfe 
quantities of provisions suitable . for Russians are sent .to- 
Newchwang, they may be regarded as contraband ; but the use 
of currency is not confined to troops^ while the silver coin, in 

*App.B; 



The " Hsiping," Claim of Yu Sheng Chang. 159 

this case was not excessive in quantity for the purposes of an 
enormous trade in beans, bean-cake, bean-oil, &c., and. cannot 
be regarded in the same light as provisions, and treated as 
intended for militarj^ use. 

(7) Newchwang being a commercial port, attention must 
also be paid to the legal status of the traffic in beans, bean- 
cake, &c. The Japanese Minister to China reported on 18th 
April, 1904, to the Japanese Government that, as the result of 
negotiation, beans, bean-cake, &c., might be exported from 
Newchwang under guarantee that they were not supplied for 
warlike use, and Japan welcomed their export from Newchwang- 
to Japanese ports. ' In short, although^ Newchwang was a place 
occupied by Russian forces, the trade in beans, bean-cake, &c. 
was recognised by Japan, by Russia, and by China, and all the 
other neutral countries, and therefore this case cannot be 
decided on the sole ground that Newchwang was territory 
occupied by Russia. As the trade in beans, beau-cake, &c. was 
recognised and permitted by all the Powers, the receipt by 
merchants of the price of goods sold as a result of such trade 
also falls within the limits of permitted trade. Therefore, silver 
coin received as the price of beans, bean-cake, &c., and not 
intended for the Russian forces, is not liable to condemnation. 
The evidence shows that this silver coin represented the price 
of beans, bean-cake, &c. which had been sold, or were intended 
for the purchase of similar articles, that thej' were small silver 
coins necessary ■ for such purchase, and that throughout the 
traiisaction the boundaries of harmless trade were not over- 
stepped. In short, since it is the intention of International 
Law and the Prize Regulations to respect the rights of neutral 
subjects, an impartial judgment on the' unchallenged evidence 
which has been produced should be given. 



The substance of the Procurators' reply was as follows :-— 
(1) In order that a certain article- may be regarded as 
applicable to the enemy's military or naval use, and condeixmed 
as contraband of war, it is by no means necessary to prove by 
evidence that it was so intended. When from the character 
of the goods, their place of import, and other circumstances in 
general, it is iiif erred that they are applicable to the enemy's 
military or naval use, the Court has unfettered discretion so to 
decide. The silver coin in this case is made in China, and 
circulates not only in Newchwang but in all parts of Manchuria, 
and, being all of one sort, namely, small silver coins, is most 
convenient for .paying coolies' wages or for purchasing articles 
required in every household. It is most inconvenient for use in 
large -transactions of sale or, purchase. That is, while con- 
venient for payiiig small amounts, it is most inconvenient for 
paying large sums. When these silver coins were imported 
into Newchwang, not only was Newchwang occupied by the - 
Russian forces, but it was a place relied on as a source, of- 



160 The " Hsiping," Claim of Yu Sheng Chang. 

military supplies by tlie enemy army and navy at Port Arthur, 
and in all parts of Manchuria, so that the provisions and other 
stores required by the enemy army and navy. were principally 
supplied from this place. As a result of the successive defeats 
of the Russian land and sea forces the war notes circulated and 
employed in the Newchwang district and in aU parts of Man- 
churia had considerably depreciated in value, and this quickly 
brought about difficulty in the payment of the price of requi- 
sitioned articles, and the hire of men and horses, in short, in 
the payment of small sums of money. Thus Chinese currency, 
in particular such small metallic currency as the silver coins in 
this case, was found indispensable, and Newchwang, the source 
supplying military requirements, was looked to for the supply 
thereof. In order to explain the necessity, at this time, for 
them to undergo many difficulties, to face extraordinary risks, 
and to pay fees and insurance, in sending several hundred 
thousand dollars in small metallic currency to Newchwang, the 
claimants state that it was the result of exchange dealings, that 
it was to supply funds for the purchase of beans, bean oil and 
bean-cake exported from Newchwang, or that it was profitable 
to ship coin from Shanghai because the margin betAveen silver 
and paper in Newchwang had increased, and the rate of ex- 
change of silver as coiupared with paper money had gone up as 
much as 20 to 30 per cent. But the Newchwang district, having 
been for a long time occupied by the Russian forces, the beans, 
bean-cake, and so forth, exported thence were either requi- 
sitioned as military stores or fiiel, or their export strictly 
forbidden in order to embarrass the enemy, and in consequence 
the export of beans, &c., the most common articles of export 
from Newchwang to Shanghai and district, had almost entirely 
ceased. On the other hand, Newchwang presented a condition 
where Russia's military requirements were gi-owing larger and 
larger, and, apart from ordinary imports, the import of pro- 
visions and other indispensable articles was increasing all the 
time. Accordingly, exports did not balance imports, and in 
Shanghai bills on Newchwang became plentiful, and bills on 
Shanghai were naturall}'^ tight ; so that bills on Newchwang 
could be bought easily and cheaply in Shanghai, and, therefore, 
in sending to Newchwang moneys received out of transactions 
in Shanghai, rather than despatching actual metallic currency, 
which was both risky to convey and required outlays of fees, 
charges and other expenses, there was nothing so convenient 
and profitable as to purchase Avith those moneys bills on 
Newchwang, and to send such bills. There could be no reason 
Avhy able Chinese bankers like the claimants should reject a 
convenient and profitable method and go out of their way to 
seek loss and risk by methods inconvenient and unprofitable. 
Not only this, but the export of beans, bean-cake, and so forth, 
which usually form the staple export of Newchwang, had, as 
explained above, almost ceased, and, therefore, there was no 
necessity to provide the capital needed for their purchase, while, 



The " Hsiping," Claim of Yu Sheng Chang. 161 

tlie margin between paper and silver at Newchwang being very 
large, the statement that it was profitable to send actual silver 
coin is a mere allegation of the claimants, unsupported by- 
evidence,, and hardly credible. There is therefore no ground 
for recognising, from any point of view, the necessity for the 
claimants' sending actual silver coin, and it is plain without 
further argument that, bearing in mind the need of the Russian 
army for Chinese silver coins, and especially the small metallic 
currency in this case, to fulfil their warlike requirements, the 
claimants, though there was no need, from a business point of 
view, to do so, took great trouble to get together several 
hundred thousand small coins, facing the risks of transport, 
-and paying charges, insurance premiums and freight, and sent 
them to Newchwang for the purpose of supplying an urgent 
need of the Russian forces. Even conceding something, and 
allowing that the silver coin in this case was not specially 
imported for the purpose of supplying an urgent need of the 
Russian forces, it cannot but be inferred that the silver coin on 
arrival at Newchwang would certainly have been applied to the 
use of the Russian army. The Prize Court, therefore, held 
rightly that the silver coin in this case was such as would, on 
arrival at Newchwang, immediately have been applied to the 
use of the enemy forces, and the claimants' appeal is groundless. 

(2) It is argued that as the silver coin in this case was 
indispensable for business ptirposes in Newchwang, as well as 
necessary to the Russian forces, it was wrong to decide that it 
was intended for the Russian forces, because it was necessary 
to them without considering for what other purposes it was 
necessary. But the Prize Court did not arrive at its decision 
solely because this silver coin was necessary to the Russian 
forces.' The reasons given, that conditions in Newchwang at 
the time of import compelled the claimants to send actual 
silver coin, and the other circumstances alleged, are not 
sufficient to establish that this silver coin was, as the claimants 
assert, imported solely for business purposes, and the Prize 
Court determined that, as the need of the Russian forces was 
so pressing, it would on reaching Newchwang have been put to 
their use, and did not arbitrarily decide that it would be put 
to this use solely because it was necessary to the Russian forces, 
without considering in what other ways it was necessary for 
business purposes. The claimants' arguments are, therefore, 
groundless, and the decision of the Prize Court was correct. 
This appeal should be dismissed. 

The appeal was dismissed* in a judgment which was, 
mutatis mutandis, identical with that in the last case. 

* Similar decisions -were given in seven other cases in which different 
claimants claimed various parcels of silver coins. 



E 12750 



162 



THE "PEEPING." 

Neutral ship — Cargo partly contraband and partly innocent — Consignment 
to pott occupied ly the enemy — Contraband cargo not belonging to the 
owners of the ship— Absence of fraud on the part of the owners— 
Belease of the ship and innocent cargo not belonging to the owners of 
contraband — Captwfe justified. 

A. nevttral Ship was captured on a voyage to a port occupied by the 
Eussian forces. Shecarried a cargo, the greater part of which was held to 
:be contraband, and part innocent. The contraband cargo did not belong to 
the owners of the ship, and no fraud was employed in connection with its 
caiTiage. 

Held that the circumstances of the case justified the capture, but 
that the ship and such of the innocent cargo as did not belong to the Owners 
-of contraband should be released. 

The "Pehping," a ship owned by an English company 
with its head office in China, and flying the Chinese fia.g, 
left Shanghai on July 15th, 1904, on a voyage via Chin- 
Hnang-Tao to Newchwang, which was then occupied by the 
Russian forces, and was captured on July 17th by a Japanese 
wa:rship. She had on board a cargo consisting of goods, the 
greater part of which were susceptible of use for warlike 
purposes, while some could not be so used.® Some of the cargo 
was consigned to neutral territory. The case came before the 
"Sasebo Prize Court on August 11th, 1904, when judgment was 
given releasing the ship and the goods contained in the list 
referred to in the decision. 

Decision of the Sasebo Prize Gou'rt.'\ 

The steamship " Pehping " and the goods mentioned in the 
following. list, forming part of her cargo, are hereby released : — 

Miscellaneous articles ; history books ; sacks ; whisky ; 
Dutch gin ; loaf sugar ; clothing, hats, and books ; army 
equipments, 'cotton and hats.:]: 

Facts- and, Reasons. 

The "Pehping" is a merchantman flying the Chinese flag, 
belonging to the Chinese Engineering and Mining Co., Ltd., 
a British jointiStock company with its head office at Tientsin, 
China. Her usual Jiome port is Shanghai, and she is employed 
in the carriage of passengers and freight. The ship left 
Shanghai -on July 15th, 1904, with a cargo consisting of iron, 
silver coin, provisions, beverages, &c., besides the goods 

* -For a list of the other aitioles on board, and the places to which they 
were consigned, see p. 164. 

t Published in the Official Gazette, Tokio, August 16th, 1904. 

J The first three items were coneigned-to- Newchang, the next three to 
Chin-Huang-Tao, and the remainder to Tientsin. 



The "J'dipingy 163 

mentioned in the above list, and on her way to Newchwang, 
which was then occupied by the Russians, was captured by the 
Japanese man-of-war " Hongkong Maru " in lat. 37° 35' N. 
and long. 122° 23' E. on July 17tli at 10 a.m., on suspicion of 
being engaged in carrying contraband of war. 

The Jibove facts appear from the statement of Lieutenant T. 
Iwamuro, representing the captain of the •'* Hongkong Maru " ; 
the evidence given by A. McTaggart, master, Chang Liu-yung, 
compradore, and H. C. Atkinson, first mate of the ship ; and 
the certificate of registry, bill of lading, and manifest. 

The substance of the argument of the Proctira tor was that the 
capture having been made on the high seas, and the greater part 
of the cargo, which consisted of iron, provisions, beverages, ^c, 
being contraband of war consigned to Newchwang, which was 
then occupied by the enemy, the capture was lawful. But the 
ship and goods mentioned in the above list should be released. 

After giving due consideration to the case, the Court finds 
that as the "Hongkong Maru," captured the "Pehpiug" in 
lat. 37° 35' N. and long. 122° 23' E.,,that is, about 10 miles 
north-east of Wei-hai-wei, the capture was made on the high 
seas ; and as the greater part of the cargo consisted of iron, 
silver coin, rice, flour, various beverages, &c., consigned to New- 
chwang, which was then occupied by the enemy, the act of the 
" Hongkong Maru " in captiiring the steamship with her cargo, 
suspecting that these goods were intended for ,the use of the 
eneniy's army and navy, and therefore contraband of war, was 
justified. T he ship, however, was a neutral vessel, and carried 
no contrabanH goods belonging to the owners of the ship, and as 
it cannot be said that she used any fraudulent devices in 
carrying the contraband, it is proper to release her. The goods 
mentioned in the above list, forming part of her cargo, are not 
contraband, nor do any of them belong to the owners of the 
contraband on board ; and consequently it is also proper to 
release them. Judgment is therefore given as above stated. 



L 2 



164 



CARGO Ex " PEHPING." 
CLAIM OF TENG MING CHENG AND OTHERS. 

Absolute contraband — Iron and iron-ware — Conditional contraband — Food- 
stuffs — Beverages — Silver coins — Destination for port in neutral territory, 
but oeewpied by the enemy — Thread — Sheeting — Cloth — Playing cards^ — 
Cigarettes — Property of the owners of contraband — Different destination 
to that of the contraband — Condemnation — Evidence of ownership. 

The " Pehping " had on board a quantity of iron, iron-ware, foodstuffs, 
beverages, thread, sheeting, cloth, cigarettes and playing cards, consigned 
to Newchwang, and also goods consigned to other Chinese ports. 

Held that Newchwang was a Russian base dep6t, that the iron and ii'on- 
■ware should be condemned as absolute contraband, the foodstuffs and 
beverages as conditional contraband, and the remaining goods as the property 
of owners of contraband. 

This was a claim by a mimber of persons alleging them- 
selves to be owners of various parcels of cargo captured on the 
" Pehping." 

The "Pehping" was a merchant vessel belonging to the 
Chinese Engineering and Mining Company, but sailed under 
the Chinese flag. She sailed on July 15th, 1904, from Shanghai 
with a general cargo for Newchwang via Chin-Huang-Tao, and 
was captured on July 17th, off Wei-hai-Wei, by the Japanese 
warship "Hong Kong Maru." The ship and part of the cargo 
were released on August 11th, by the Sasebo Prize Court, (see 
p. 162). Some of the remainder of the cargo was the subject 
of the present claim. 

On the 17 th December the Sasebo Prize Court condemned 
the whole of the goods, on the ground that some of the goods 
consigned to Newchwang were contraband and that the remainder 
belonged to the same owner Teng Ming Cheng. 

The decision of the Sasebo Prize Court being substantially 
similar to that of the Higher Court, is not printed. The articles 
condemned as property of the owners of contraband aud not as 
being themselves contraband are shown on the list by an asterisk. 

Ooods consigned to 'Newchwang. 

Bombay gray cotton-thread® ; American gray shirtings® ; 
China cloth® ; small silver coins ; cigarettes® ; claret ; pro- 
visions ; " Tansan " water ; starch ; butter ; iron ; iron-ware ; 
gin ; liqueurs ; sugar ; salt beef ; brandy ; Vermouth ; sliced 
ham ; playing cards® ; beer ; tomatoes ; jam ; tongue ; garlic ; 
table salt ; chocolate ; milk ; black tea ; cod-liver oil ; sardines ; 
whisky ; marmalade ; spirits ; biscuits ; cheese ; fruit ; tomato 
catsup ; peppermint ; rum ; liqueurs ; gin ; smoked ham ; 
salmon ; acid ; rice ; wheat flour ; Mexican dollars. 

* Condemned as the property of owners of contraband goods. 



The " Pehping," Claim of Teng Ming Cheng and Others. X65 

The other goods, being destined for the neutral ports 
Chin-Huang-Tao and Tientsin, were condemned as being the 
property of owners of contraband goods. Their nature being 
therefore immaterial, the enumeration is omitted. The claimants 
appealed from the decision of the Sasebo Prize Court to the 
Higher Prize Court, which dismissed the appeal on December 
25th, 1905. 

Decision of the Higher Prize Court. '^' 

This is an appeal against the decision of the Sasebo Prize 
Court of December 17th, 1904, condemning the goods set out in 
the annexed list.! 

[The arguments used in support of the appeal were similar 
to those employed in the case of the " Hsiping " (claim of Teng 
Ming Cheng and others:]:), and are" therefore not reproduced.] 

The substance of the Procurator's reply was as foUows : — 

Contraband of war consists, broadly spealdng, of two classes 
(1) articles used for war which are destined to the enemy country 
or a place where there are enemy forces, and (2) articles sus- 
ceptible of use in war as well as for purposes of peace which are 
destined to the enemy forces, or being dispatched to enemy 
territory, are to be considered from the nature of their destination 
as intended for the use of the armed forces of the enemy. 

The first class is called absolute contraband, the second 
conditional contraband ; but conditions attach to each, and 
once they become contraband there is no distinction between 
the first and second classes, each being equally contraband. 
Therefore, the appellants' argument that the words " owner of 
the articles which are contraband," in Article 43 of the 
Japanese Eegulations relating to Capture at Sea,§ refer to 
the owner of absolute contraband, i.e., the first class, and 
does not include the owner of contraband of the second-class, 
though possibly a proper interpretation of Article 82 of the 
Manual of English Prize Law,|| is entirely wrong as an interpre- 
tation of Article 43 of the Japanese Regulations. For not only 
is the wording different, but assuming that the act of carrying 
contraband is a service to the enemy, it is quite unimportant 
whether the articles conveyed are of the first or second class, 
and there is accordingly no reason for making any distinction 
betwen the two classes. In the present case, iron and iron- 
ware are of the first class ; rice, flour, vdnes, sugar, silver coins, 
&c. are of the second class, so that the conditions under which 
they are considered as contraband are different. But not a 

* Published in the Official Gazette, Tokio, Feb. 19, 1906. 
t See above. 
X See p. 140. 
§ Appendix B. 

II The reference is apparently to Professor Holland's "Manual of Naval 
Prize Law," 1888 edition, p. 24 



166 The " Pehping," Claim of Teng Ming Cheng and Others. 

single word of explanation is given by the appellants regarding 
tlie iron and iron-ware, and no argument is necessary on mis 
point, as presumably no objection is raised to their condemna- 
tion. As for the provisions, beverages,- coins, &c. belonging to 
the second-class, it is maintained that, though consigned to 
Newchwang, they were not consigned to the enemy army or navy, 
nor were they intended for the use of that army and navy ; but 
there is no proof of these assertions, nor does the evidence 
support them. Although trade in contraband articles is an 
open mercantile act within the right's of neutral commerce, it 
is the usual thing, since there is a risk of capture, for those 
engaged in the carriage of contraband, to assume the appearance 
of ■■ ordinary peaceful traffic in order to avoid that risk. This 
is particularly so with articles belonging to the second class. 

Since the bills of lading, &c., were naturally not made out- so 
as to, show a destination to the enemy forces, it is impossible 
to prove by documentary e-vidence that the articles in question 
were , destined for or to be delivered to the enemy forces ; 
but, from tlie nature, quantity and destination of the goods, 
and, the suri'ounding circumstances generally, it is not difficult 
to detei-inine that the bargo in this case was destined for the 
eneihy forces. Lord Stowell says* that the question whether 
goods were oh the way to a place where it may be regarded as 
almost certain that they would be put to military use is a most 
important test in determining whether they are contraband. 
In the present case the " Pehping " took on board at Shanghai 
pro-visions, beverages, coins, &c., with Newchwang as her 
final destination, and was captured en route for Chin-Huang- 
Tao, an intermediate port of call, at about 8 a.m., on July l7th, 
19t)4:, ofE Chefoo. Now it is clear that Newchwang, which was 
at that time occupied by the Russian army and an important 
supply depot, was what Lord Stowell calls a place where it may 
be regarded as almost certain that the articles in question would 
be put to military use. The provisions and beverages in 
particular are suitable for the requirements of Europeans and 
Americans, whereas at that time, the number of Americans and 
Europeans in Newchwang, apart from the Russian troops, hardly 
exceeded ten. Moreover, as a result of the successive defeats 
of the Russian forces by laud and sea, their war notes had 
lost credit, and it is an obvious fact that there was a great 
demand for Chinese currency, particularly small silver coins, 
such as those in the present case. For the supply of such 
coins the Russians looked to Newchwang, so that it cannot 
but be considered that these goods, on arrival at Newchwang, 
would immediately be delivered to the enemy forces. It may 
be said that the China cloth and cigarettes in the list of cargo 
are things which cannot be contraband, but the document relied 

* The reference is apparently to the ease of the "lohge Margaretfca^" 
1 C. Rob., at pp. 194-1^5. 



The " Pehping," Olaim of Terig Ming Cheng and Others. 167 

upon to prove the ownership of these articles was drawn up 
after the case had arisen, and there is no other corroborative 
evidence, for which reason it was not admitted by the Prize 
Court. Inasmuch as they were held to be the property of 
Teng Ming Cheng, they were properly condemned as cargo 
belonging to the owner of contraband. 

Since the goods consigned to Tientsin and Chin-Huang -Tao 
were not condemned by the Prize Court,, as being contraband,, 
there is no ground for the objection that it was wrong to 
condemn them because they could hot be considered contraband. 
But it must be admitted that these goods ought not to be 
condemned. The condemnation of innocent articles belonging 
to the owners of contraband is' intended only to repress the 
carriage of contraband, and is certainly confined to cases 
where the two are carried in the same ship and have the same 
destination, such being the provisions of Articles 82 and 72 of 
the Manual of English Prize Law.® Article 72 provides that 
the destination of the ship determines the destination of the 
cargo. Therefore, when a ship's destination is enemy territory, 
even in cases wliere from the doc^^ments on board or other 
evidence it may appear that the cargo is not going to enemy 
territory, but via enemy territory to a final destination in neutral 
territory, or to be discharged at an intermediate neutral port, the 
destination of that cargo must still be deemed to be enemy 
territory. No destination of the cargo other than the destination 
of the ship is recognised. Consequently, the case where contra- 
band and innocent articles are consigned to different places, i.e., 
have different destinations, does not arise, and innocent articles 
belonging to the same owner are condemned under Article 82 
as a measure designed to repress the carriage of contraband. 
This is approved by the precedents and practice of International 
Law^ The Japanese Regulations relating to Capture at Sea"]" 
took their principles from the Manual of English Prize Law,* but 
Ai'ticle 15 only provides that the general rule shall be that the 
destination of a ship is the destination of her cargo, and does 
not refuse to recognise a destination of the cargo other than the 
destination of the ship. It follows that cargo, such as that in 
the present case, which has been proved by the ship's papers 
and other reliable evidence to have been destined for Tientsin 
or Chin-Huang-Tao, although the ship's destination was New- 
chwang, must still be recognised as destined for Tientsin or Chin- 
Huang-Tao. Once this is recognised, the articles in question, 
though on board the same ship as contraband goods consigned 
to an enemy port, cannot be called goods belonging to the same 
owner as the contraband, for the reason that in determining 
the ownership of cargo, so long as there is no special contract, 

* The reference is apparently to Professor Holland's " Manual of Naval 
Pi-ize Law," 1888 edition, pp. 24 and 22. , 

t Appendix B. 



168 The " Pehping," Claim of Teng Meng Cheng and Others. 

it is the usual legal principle to assume that the ownership, 
of goods vests in the consignee from the moment they, are 
pat in the hands of a forwarding agent, even if the con- 
signors are the same, so that in so far as the consignees are 
different the goods cannot be said to belong to the same 
owner. Otherwise, if tlie measure adopted to repress the 
carriage of contraband is to afEect the consignor, " owner " 
would have to be construed as meaning the consignor, not the 
consignee, which amounts to saying that transference of 
ownership as regards contraband is not recognised. This is 
unreasonable. 

Since it is not an ofEence to trade in contraband articles, 
as explained above, there can be no reason whatever why the 
ownership thereof should not be transferred by sale and pur- 
chase. Once it is transferred it is obvious that, though the 
vendor, i.e.., the' consignor, may be the same, when the buyers, 
i.e., consignees, are different, the articles have not the same 
owners. The finding in the present case that this cargo upon 
reaching Newchwang would be delivered to the Russian forces 
and applied to their use is a recognition of sale and purchase. 
This being so, it is clear without discussion that cargo consigned 
to Tientsin and Chin-Huang-Tao and contraband consigned to 
Newchwang cannot be described as belonging to the same 
owners. Articles 15 and 43 of the Japanese Regulations relating 
to Capture at Sea,* like Article 72 of the Manual of English 
Prize Law,! are intended to apply only to the case where there 
is identity of destination and of ownership. The decision of 
the Prize Court disregarded this intention, and followed neither 
the Manual of English Prize Law,t the precedents of Inter- 
national Law, nor the Japanese Regulations relating to Capture 
at Sea.* The Court observed that in Article 15 the existence 
of a destination of the cargo other than the destination of the 
ship is recognised, but held that under Article 43 all goods 
which have the same consignor, but different destinations and, 
therefore, different consignees, .belong to the same owner, and 
condemned goods which were intended for discharge in the 
neutral territory of Tientsin or Chin-Huang-Tao, The decision 
was therefore wrong. 

The reasons for the decision o£ this Court are as follows :— - 
International law, as at present constituted, recognizes the 
liability to capture and condemnation of contraband of war 
consigned to enemy territory even when it belongs to neutrals, 
as well as the liability to condemnation, witli the contraband, 
of innocent articles carried on the same ship which belong 
to the same owners as the contraband of war. Although 
it goes without saying that Newchwang is in Chinese territory 
and not in Russia, it is clear from the reports of Mr. 
Segawa, Consul at Newchwang, that after the occupation 

* Appendix B. t See note on p. 167, 



The " Pehping," Claim of Teng Ming Cheng, and Others. 169 

of that place by the Russians a Civil Administration Office was 
established there and the Civil Administration flag flown until 
July 25th, 1904 ; that on the morning of that day this flag was 
suddenly lowered and the Consular flag hoisted ; and that on 
the arrival of the Japanese troops the French national, flag was 
displayed. At the time of the capture of the articles in question 
Newchwang was practically under Russian administration, and 
not _ only was it a place where a large number of troops were 
stationed, but it was also a military base depot. Therefore, 
goods dispatched to that port must be regarded as goods destined 
for enemy territory. Accordingly, if the goods now in question 
were contraband of war, they must be condemned. Iron and 
ironware are not only materials for the construction of vessels and 
warships, but are materials which may be employed directly for 
military purposes, and must therefore be held to be contraband 
of war. Flour, liquors (alcoholic), and the other foodstuffs and 
beverages detailed in the list of cargo,® are commodities for the 
most part suited to the European demand, and since, as the 
appellants do not deny, the number of European and American 
residents engaged in peaceful occupations at Newchwang at the 
time of the " Pehping's " capture was very small, owing to 
the Russian army being still in possession, it is quite proper 
to hold that these goods were destined, upon their arrival, 
for the use of the enemy forces. According to the biUs of 
lading, by far the greater part of the cargo belonged to the 
finn of Teng Ming Cheng, and the quantity being very large, 
the deduction is inevitable that it was carried with the 
intention of supplying it to the Rtissian anny in the hope 
of making large profits. In regard to this point, several 
documents have been produced, but as they all came into 
existence subsequently to the capture, they may be con- 
sidered to have been drawn up by parties interested after 
consultation, and cannot be relied upon. Many precedents 
exist, in which persons who possess business establishments, 
and are honestly engaged in business have run risks and 
attempted irregular transactions for the sake of obtaining large 
profits, and it is not surprising that traders, engaged solely in 
obtaining profits without any other thought, should follow 
such precedents. Even supposing therefore that these goods 
belonged entirely to Chinese merchants, other than Teng Ming 
Cheng, who had been engaged in trade in such commodities at 
Newchwang for manj^ years past, there is nothing to prevent 
their condemnation. Although there is at first sight reason in 
the argument that rice shoiild be regarded as destined for the 
ordinary Chinese consumption rather than as being supplied 
for European and American demand, yet it was an apparent 
fact that at the seat of the war rice could also meet European 
demands, and was, especially in the absence of flour, suitable 

* See p. 164. 



170 The "Pehping," Claim of Teng Ming Cheng and' Others. 

food for Russians. Consequently, the original decision, w-hicj. 
lield it to be contraband of war, was correct. 

(The judgment then gives reasons for holding silver coins to 
be contraband of war ; as they are the same as in the case of 
the " Hsiping,"* they are omitted.) 

The cargo despatched for Tientsin and Chin-IIuang-Tao 
was, as shown by the bills of lading, placed at the disposal 
of Teng Ming Cheng, and is therefore considered to be his 
property. It is held by the doctrines of international law, and 
considered by this Court to be in accordance with general 
principles, that when contraband of war is seized and non- 
contraband belonging to the owner of the contraband is found 
on board the same vessel, the non-contraband maj' be con- 
demned even though its port of discharge is not the same as 
that of the contraband. For this is simply one of the penalties 
inflicted on the owner of the contraband cargo for his act. in 
attempting to land it in enemy territory, and, no reason exists 
for maldng a distinction as to the place where the non- 
contraband cargo is to be discharged. Although Tientsin and 
Chen-Huang-Tao are neutral territory, and the goods to be 
discharged there are, therefore, not contraband, yet they belong 
to Teng Ming Cheng, who attempted to carry a cargo of con- 
traband and land it at Newchwang, and must consequently 
be condenmed with the contraband as a penalty for his act.. 

The decision is accordingly given as follows :■ — 
This appeal is dismissed. 



Other claims in respect of various parcels of provisions and 
silver coins for Newchwang were rejected by the Sasebo Prize 
Court and the Higher Prize Court upon the same grounds as 
those set out in the case of the "Hsiping" (see p. 149 ante}. 

* See p. 151. 



171 



THE "GEORGE." 

Blockade — -Capture on outward voyage after breach of bloikade inwards — 
Effective blochade. 

During the blockade of Port Arthur a neutral ship reached that port 
with a cargo of provisions. She was captiored on the return voyage by the 
blockading fleet. 

Held that the facb that she had succeeded in reaching Port Arthur was 
no evidence that the blockade was not effective. A vessel found to have 
broken blockade may be condemned without inquiry into other circum- 
stances. Ship condemned. 

The "George," a small French steamer of 170 tons, left 
Ta;ku on August 16th, 1904, with a cargo of provisions and 
liquors for Port Arthur. The master was aware that. that port 
was then blockaded by the Japanese fleet. The ostensible 
destination of the " George " was Wei-hai-wei. On August 18th 
she arrived off Port Arthur and anchored under one of the 
forts. On the 18th and 19th she transhipped her cargo to a 
Russian steamer, and took on board a passenger from. Port 
Arthur. On the I'Jth she left for Taku in ballast and was 
captured the same night, about 5 miles S.E. of the Lao-tieh-shan 
promontory, by a Japanese torpedo boat on blockading duty. 

A claim for the release of the ship was made by the owner, 
Auguste Vernon, a' French citizen. 

The case came before the Sasebo Prize Court- on October 
21st, 1904, when judgment was given condemning the vessel. 

Decision of the Saseio Prize Courtf'- 
The steamer " George " is hereby condemned. 

Facts and Reasons. 

The " George "is the property of Auguste Vernon; a French 
citizen. She flies the French flag and is employed in the 
transport of freight and passengers in the seas of northern 
China, with Taku as her usual home port. The master of 
the ship, though aware that Port Arthur was blockaded 
by the Japanese fleet, shipped a cargo of provisions and 
liquors with the object of transporting them to that port, 
and left Taku on August 16th, 1904, under the pretence of 
going to Wei-hai-wei. On the 18th of the same month the 
steamer arrived off Port Arthur, cast anchor 100 or 120 metres 
off shore, beneath a certain fort, and on that day and the next 
, (19th) transhipped the whole of her cargo to a Russian 
steamer. She then took on board a Turk and cleared from 
Port Arthur. On her way to Taku on the night of the 19th 

* Published in the Official Gazette, 'tbkio, February 2Sth, 1905. 



172 The "George." 

she was captured about 5 miles south-east of the Lao-tieh-shan 
promontory by the Japanese torpedo boat No. 65, which was 
on blockading duty there. At that time she had no cargo on 
board. 

The above facts appear from the statement and certificate 
as to money and valuables found on board the prize submitted 
by Lieutenant S. Fujimura, I.J.N., representing the com- 
manding officer of torpedo boat No. 65, from the evidence of 
Charles Grustave Sloss, the master of the " George," the mate 
Ma Liang, the boatswain Ku Yu Chi, the chief engineer Wang 
Fu Lin, and the Turkish passenger, and from the certificate 
of registration of the Tientsin Custom House, the certificate of 
registry, &c. 

The substance of the claimant's argument was as follows : — - 
The " George " is the property of a neutral. She was not 
chartered by the enemy as a transport, nor was she making 
a voyage under enemy licence, nor under the protection of 
his men-of-war. She was not carrying any contraband of war 
to the enemy, nor was she guilty of any hostile action against 
the Japanese Empire. Furthermore, the blockade cannot be 
considered effective, as she was able to reach Port Arthur 
and was on her return voyage, after she had effected entrance 
into the port, and was not about to break the blockade. She 
cannot, therefore, be considered guilty of breach of blockade. 
For the above reason she should be released. 

The substance of the argument of the Procurator was as 
follows : — 

The steamer in question was guilty of a breach of blockade, 
as it is clear that the blockade was actually and effectively 
maintained at that time. She should therefore be condemned. 



The conclusion of the Court is as follows : — 

The claimant argued that the blockade of Port Arthur was 
not effective at the time of the capture of the " George," and, 
consequently, she cannot be held guilty of breach of blockade. 
But there is no doubt that the blockade of the southern coasts 
of the Liaotung Peninsula was effectively enforced, not only at 
the time of the capture of the vessel, but at all times since the 
declaration of blockade was made by the Commander-in-Chief 
of the Japanese Combined Fleet on May 26th, 1904, and the 
" George " which had sailed to a place off Port Arthur without 
any proper cause, clearly violated the blockade. As it is a 
recognised rule of International Law that a vessel which is 
guilty of breach of blockade is liable to condemnation irrespec- 
tive of other facts, there is no need to examine the claimant's 
other arguments. 

Judgment is therefore given as above. 



The"Oeorge." 173 

The owner appealed to the Higher Prize Court. Judgment 
was given on J'ebruary i7th, 1905, dismissing the appeal. 

Decision of the Higher Prize Court.'^ 

The appeal was based on the following grounds : — 
It is a fundamental rule of International Law that a vessel 
cannot be condemned for breach of blockade, unless such 
blockade has been properly and effectively maintained. In this 
case the vessel had already visited Port Arthur without any 
hindrance being offered to her, and without running any 
danger, and this fact proves that the blockade was not effec- 
tively maintained. The " George " was a small vessel of only 
170 tons, and the blockade of so large an area was not effective 
in her case. She ought, therefore, to be released. 

The appeal is dismissed for the following reasons : — 
It appears, on examining the facts, that the blockade 
declared by the Commander-in-Chief of the Combined Fleet on 
May 26th, 1904, was carried out by a force fully sufficient to 
effect its object. At the time of the capture of this vessel 
more than 60 warships and torpedo boats were directly employed 
in blockade work, distributed over a line about 20 nautical 
miles long along the coasts round Port Arthur, at distances 
varying from 5 to 10 nautical miles from the shore. More- 
over, the maiii squadron of seven warships in the neighbourhood 
of Round Island, and four auxiliary cruisers and seven gun- 
boats in the neighbourhood of Lao-tieh-shan, were also engaged 
in patrolling and maintaining the blockade. It is clear that 
the blockade was effectively maintained, and that the " George " 
only succeeded in reaching Port Arthur by eluding the vigi- 
lance of the blockading fleet. It cannot therefore be said that 
she ran no danger at that time. On her return she tried to 
elude the blockading fleet by coming out at night, but was 
captured. Therefore the appellant's contention that the 
blockade of the southern coasts of the Lao-tieh-shan Peninsula 
was in part not effective, cannot be maintained, and the decision 
of the Sasebo Prize Court was correct. 
The appeal is therefore dismissed. 

* Published in the Official Gazette, Tokio, February 25th, 1905. 



174. 



THE "SISHAN." 

Neutral ship — Capture on suspicion of intention, to break hlockade or carry 
contraband — Stich intention, if it existed, either abandoned or not put 
into execution — Failure to produce papers — Presence on board of super- 
cargo with full control — Itelease ordered but capture justified. 

A neutral ship was captured in a neutral port witli a cargo of live stock 
and provisions, .^ter having made a voyage which took her close to the 
bloc!^ded oo^t, and having endeavoured to obtain clearance for a voyage to 
another neutral port by which she would again pass by the same coast. 
She had a supercargo on board with full authority, and her master, when 
asked for his papers, stated that they were at the British Consulate, whereas 
in fact they were on board. 

Held, that the capture was justifiable, but tha,t, as any intention to 
break blockade or carry contraband on the first voyage had been abandoned, 
and any such intention on the second projected voyage had not been put 
into execution, the ship and cargo should be released. 

The ■" Sislian," a British ship, left Hongkong on September 
25th with a cargo of live stock and provisions for Newchwang. 
She had on board a supercargo v/ho had full powers. On 
arrival at Newchwang, after passing near Port Arthur, she 
endeavoixred to dispose of her cargo, but failed, and then tried 
to obtain clearance for Chefoo, on which voyage she would 
again pass near Port Arthur. She was, however, captured in 
the harbour. When asked to produce his papers, the master 
falsely stated that they were at the British Consulate. The 
supercargo and first officer were reported to have stated that 
the ship had attempted to run the blockade on the voyage 
to Newchwang, and would make another attempt. 

The case came on before the Sasebo Prize Court on October 
.26th, 1904, when the ship was released, although her capture 
on suspicion was justified. 

Decision of the Saseho Prize Court/''' 
The steamship " Sishan " and her cargo are hereby released. 

Facts and Reasons. 

The steamship " Sishan " belongs to Samuel Spitzer, a 
British subject, and is a merchant ship registered at Hongkong, 
flying the British flag, and principally employed in carrying 
cargo. She took on board a cargo of cows, sheep and other 
provisions, and left Hongkong September 25th, bound for 
Newchwang. She passed near Port Arthur at night and 
entered Newchwang on October 2nd, 1904. 

She immediately tried to- sell her cargo, and landed the 
cows and sheep, which were, however, taken back to the ship, 
as she was unable to make a bargain. She then tried to obtain 



* Published in the Official Gazette, Tokio, November 10th, 1904. 



The "Sishan:' 175 

.clearance for Chefoo ; but before she could procure the certificate, 
she was suspected by the Imperial man-of-war ■" Tsukushi," 
which was in port, visited, and captiired in the port on Octobej- 
7th, on the ground that she was engaged in the carriage of 
contraband of war. At the time of tlie visit the master did 
•net produce her papers, which were actually in the ship, 
sayiug that they were then at tlie British Consulate. 

The above facts appear- from the statement of Lieutenant 
K. Hara, representing the Captain of the man-of-war " Tsukushi "; 
the evidence given by James Cartridge, master, John Plage, 
first officer, David Fotheringham, second officer, and Robert 
Boucher, third officer, of the " Sishan," H. K. Struve, a passenger, 
and Adolph Spitzer, and from the bills of lading produced by 
the witnesses, &c. 

The substance of the argument of the Procurator was that 
the ship's papers were not kept in good order, and in the 
absence of special reasons, the case might properly be construed 
as a continuous voyage with a cargo of contraband of war. 
Her capture, therefore, is lawful ; but, as the result of the 
examination in the Prize Court, facts have been addiiced showing 
that this case cannot be considered as a continuous voyage with 
a cargo of contraband of war, and consequently the ship and 
cargo should be released. 



The conclusion of the Court is as follows : — 

The " Sishan" was purchased by Adolph Spitzel, as agent 
of his nephew, Samuel Spitzel, an American, and Adolph 
Spitzel had full control of her. The cargo, which consisted 
of provisions appropriate for militar^'^ use, was purchased by 
the said Adolph Spitzel with the purpose of carrying the 
same to any place where it would command the highest price, 
and thus make the greatest profit. He took on board the ship 
his countryman, Struve, as supercargo, agreeing to give hiin 
part of the profit. The ship left Hongkong, bound for New- 
chwang, the said Adolph Spitzel having full power of direction 
and control. At that time, Port Arthur being strictly blockaded 
by the Navy, the Russian forces there were short of provi- 
sions, and rumours were rife at Hongkong, Shanghai, &c., that 
the object of the ship was to smuggle the goods into Port 
Arthur, and these -rumours even jfound their way into the 
newspapers. When the ship arrived at Newchwang, an attempt 
was made to dispose of the cargo, but it failed. The ship then 
tried to clear from Newchwang, ostensibly for Chefoo, which 
cannot be reached Avithout passing near Port Atthur ; but the 
supercargo, Struve, who had full power together with the 
owner of the cargo, informed Bush Brothers, his agents, that 
the cargo would be taken to Port Arthur. The first ofiicer of 
the ship. Chambers, also stated at the British Consulate at 
Newchwang that the ship had attempted to run the blockade 



176 The " Sishan" 

on her way from Hongkong to Newcliwang, but did not 
succeed, and tliat ttey were going to make another attempt 
to reach. Port Arthur under the pretence that they were going 
to Chefoo. The Imperial man-of-war " Tsukushi " sent an officer 
to the ship, and at the time of his visit the master did not 
give any satisfactory explanation to account for the irregularity 
of her papers, the uncertainty as to her destination, or the fact 
that her nominal master had no power to act as such. It was 
therefore proper for the " Tsukushi " to capture the ship on the 
suspicion that she had not abandoned the intention which she 
had had since her departure from Hongkong of smuggling her 
goods into Port Arthur, and that under pretence of going to 
Chefoo she was still trying to achieve her original object. As 
the result of the examination by this Prize Court, however, it 
must be concluded that the ship at the time of her arrival at 
Newchwang had abandoned her first project of running the 
blockade and smuggling her goods into Port Arthur. For, even 
if she had had such a project, she did not carry it out, and actually 
made the voyage mentioned in her papers. On her arrival at 
Newchwang she attempted to sell her goods, and failing in this 
attempt, she tried to clear for Chefoo. She cannot, therefore, 
be considered to have attempted to break the blockade, nor can 
her case be held to be one of continuous voyage with a cargo 
of contraband of war. Again, she cannot, on account of her 
trying to clear from Newchwang for Chefoo, be held guilty of 
attempting to break the blockade or of carrying contraband of 
war ; for, even if she had any such intention, she did not begin 
to carry it out. Further, as regards the irregularity of her 
papers and lack of proper authority of her master, satisfactory 
explanations may be considered as having been given. The ship 
and cargo ought therefore to be released, although her captm-e 
was lawful. Judgment has therefore been given as stated 
above. 



177 



THE "FUPING." 

Blockade — Intention to break blockade — Capture in neighbourhood of blockaded 
area — Cargo of munitions, provisions and military stores — Condemnation 
of ship and cargo. 

A neuti-al ship was captui-ed about 40 miles from Port Arthur, pro- 
ceeding towards that p6rt and out of the course to the port for which she 
was ostensibly bound, with a Russian officer on board, and with a quantity of 
paper currency, ammunition, and other stoi-es suitable for military purposes. 

Held that ship and cargo were liable to condemnation. 

On October 8th, 1904, the " Fiipiiig," a Gennan ship, left 
Taku with Chefoo as her ostensible destination. She had on 
board a Russian officer, a quantity of paper currency, and a 
cargo of ammunition and military stores. 

On October 11th, at a point 5 miles north of Cape Rocky, she 
took on board a further cargo of boots and provisions consigned 
by the owners to Port Arthur. On the next day she was 
captured by a Japanese torpedo boat detailed for the duty of 
maintaining the blockade in longitude 120° 55' E. and latitride 
38° 34' N., that is, about 40 miles from Port Arthur, making 
for that port and out of the course to Chefoo. 

Papers found on board showed clearly that a great part of 
the cargo was destined for Port Arthur. 

No claim was made except in respect of the paper currency, 
and the case as to the ship and cargo came before the Sasebo 
Prize Court on December 6th, 1904, when both were con- 
demned. 

Decision of the Sasebo Prize Gourt,^ 

The steamship "Fuping" is condemned, together with the" 
cargo detailed in the attached list. 

Facts and Reasons. 

The "Fuping" is owned by Telge, Schroeter & Co., a 
Gennan firm of Tientsin, China, flies the German flag, and is 
engaged in the carriage of passengers and goods. 

Although the master, Frank Gray, Avas aware that Port 
Arthur was at the time blockaded by the Japanese fleet, he 
loaded a cargo of munitions of war, gunpowder, and food- 
stuffs, destined by the owners of the vessel to be conveyed 
by deceptive means to Port Arthur. He also took on board 
Captain Wassili Juliewitsch Eckardt, an officer of the Russian 
Army on the active list, and, under the pretence that he was 
proceeding to Chefoo, but with the real object of reaching 
Port Arthur, set .sail from. Taku on October 8th, 1904. On 
October 11th, at a point 5 nautical miles north of Cape Rocky, 

* Published in the Official Gazette, Tokio, December 12th, 1904. 
e 12750 j( 



178 The " Fuping." 

he took on board from two junks boots and shoes of Russian 
manufacture and food-stuffs, which had been separately de- 
spatched by the owners of the vessel to Port Arthur, and, 
carrying a full cargo, as detailed in the attached list, left on the 
same day after 2 p.m. Whilst making for Port Arthur the 
vessel was captured at about 9 a.m. next day, at a spot about 
10 nautical miles north of North Hwang-Ching Island in 
longitude 120° 55' E., latitude 38° 34' N.; by the Japanese 
torpedo boat " Shirataka," which was engaged in maintaining 
the blockade. 

The above facts .appear from the written statement of 
Lieutenant Kawazoe Masahara, I.J.N., the officer effecting the 
capture, from the certificate concerning the transfer of passengers, 
from the evidence of Trank Gray, master, James Duncan, first 
officer, Alexander liobeftsbu, chief engineer, and Captain 
Wassili JuUewitsch Eckardt, of the Russian Army, passenger on 
board the "Fuping," the Chip's log, the certificate of registry, 
the master's journal, tlie cleai-ance certificate, and the certificate 
of Colonel Ogorodnikov of the Russian Army. 

The substance of tlie Procurator's argument was that as it 
is absolutely clear that at the time' bi capture the blockade was 
effective, this stekmship, which was making for the blockaded 
area, must be held to have broken the blockade, and that 
accordingly the vessel and her cargo should be condemned. 

The conclusion of the Court is as follows: — 
It is a general rule of International Law that if while a 
blockade is effective a vessel be found in the neighbourhood of 
the blockaded area, and clearly proceeding towards it, she may 
be considered to have broken the blockade ; and that the cargo, 
with the exception of cargo belonging to persons absolutely 
ignorant of the circumstances, may be condemned with the 
vessel. It is an undoubted fact that the blockade of the 
southern portion of the Liao-tung Peninsula, declared by the 
Commander-in-Chief of the combined Japanese fleet on May 
26th, 1904, has usually been effectively enforced. It is there- 
fore clear that this stea:mship, which was making for Port 
Arthur as above described, may be held to have broken the 
blockade. Again, not only is the cargo found to belong to the 
owners of thevessel, btit by tlie 6ertificate of Colonel Ogorodnikov; 
commanding the Russian garrison at Peking, which was handed 
by the owners of the vessel to the master, it is placed beyond 
doubt that all the cargo in this ' case was to be sent' to Port 
Arthur. It cannot, therefore, be contended that its owners did 
not know the circumstances. Accordiugly this vessel, with the 
cargo carried by her, as detailed in the attached list, should be 
condemned. 

As no claim has been filed within, the period which was 
fixed and advertised by tlie Court, judgment is given as above 



The "Fuping." 



179 



ou the Procurator's application without recourse to the process 
of investigation, in accordance with the last paragraph of 
Article 16 of the Prize Court Regulations.'- 



1 


List of 


Cargo. 




Nature of Goods. 


Number of 
Packages. 


Nature of Goods. 


Number of 
Packages. 


Boiled beef - 

Corned beef' 

MiUet- 

TermiceUi - 

Sausages 

Salt beef '-=-.' - 

Drugs - - • - 

Boots .and shoes - 

Cheese 


1,026 

1,085 ' 

1,043 

720 

25 

11 

35 

98 

18 

- 


Soap - - 
Smoked hams - - -- 
Tinned Soup - ■ 
Tinned vegetables, 
Sulphuric acid - 
Tea ' - 
Military weapons 
Ammunition, materials, 
gunpowder, &c. 


61 

34 

5 

88 

38 

1 

8 

1,091 



App. A. 



M 'J. 



180 

THE "FUPING." 
ECKARDT'S CLAIM. 

Blockade — Paper currency on hoard ship condemned for breach of blockade— - 
■ Property of enemy Government in charge of a military officei Privity tv 
intended breach of blockade — Condemnation. 

Sixty-seven thousand paper roubles were f oiuid in the baggage of a Russian 
officer, Captain Eckardt, on board a neutral ship captured in an obvious 
attempt to break the blockade of Port Arthur. There was some evidence 
that they formed part of a large amount of Russian Govei-nment funds. 

Held that the roubles were liable to condemnation, because (1) Eckai-dt 
was privy to the attempt to break the blockade, and (2) because they were 
Government property on board a vessel guilty of breach of blockade. 

The " Fiiping," a German ship, was captiired about 40 miles 
from Port Arthur, for which she was making, witli a carga 
of ammunition and military stores. She was condemned for 
breach of blockade {see p. 177). 

A claim was made by a Russian officer. Captain Eckardt, 
for the release of 67,000 roubles in Russian paper currency. 

It was proved''-' that Eckardt had on board as personal 
baggage three portmanteaux and two matting packages, and 
that when the capture was effected he thrcAv the two latter 
overboard. Amongst the documents on board was found a 
certificate by Colonel Ogorodnikov, commander of the Russian 
garrison at Peking, containing instructions for delivery of the 
cargo to the Russian authorities at Port Arthur. The master and 
chief engineer gave evidence that they had been informed that 
Eckardt had with him a large sum in paper roubles and had 
instructions, in the event of meeting a Japanese warship, to 
destroy the paper money and documents, and, if possible, to 
set fire to the ship and cargo. Statements to the same effect 
were also found in a letter from the master to one George. 

Eckardt, in his evidence, admitted that he had been 
requested by the Russian Consul at Tientsin to deliver the 
two matting parcels to the Russian Consul at Chefoo, and, in 
case of capture to destroy them and burn the ship and cargo, 
but he alleged that when he went on board he was merely 
going as a passenger to Chefoo and had no knowledge of any 
intention to brealv the blockade, that the instructions to destroy 
the cargo were only received after he went on board, and that 
the 67,000 roubles were his private property and not part of 
any larger sum. 

Evidence was taken from Colonel Ogorodnikov, and Lieu- 
tenant Restringal, another Russian officer alleged to have been 

* The judgments do not contain any clear account of the evidence the 
statement of facts in the text above is mainly derived from a comparison of 
the argiiments as reported below. 



The " Fuping" Eckardt's Claivi. 181 

present when Eckardt received the money, but their statements, 
though confirming Eckardt's denial that the 67,000 roubles were 
Government money or part of any larger sum, did not agree as 
to the som-ce of the 67,000 roubles. 

The Sasebo Prize Court, before which the case came on 
May loth, 1905, refused to attach credence to th(> evidence given 
hj the claimant and his witnesses and condemned the roubles. 

Decision of the Saseho Prize Courts 

Sixty-seven thousand roubles in Russian currencj^ carried by 
the " Fuping " are condemned. 

Facts and Reasons. 

The 67,000 paper roubles were taken on board the " Fuping " 
by the claimant at Tientsin, China, on October 8th, 1904, for 
Port Arthur, which was then a Russian base, and the claimant 
himself embarked on the same day for the same port. On 
October 12th in long. 120° 55' E. an(3 lat. 38° 34' N., about 
10 nautical miles north of the Hwang-Chin g Islands, the 
""Fuping" was captured by the Japanese torpedo boat 
" Shirataka," with, the roubles on board. 

These facts appear from the written statement of Lieutenant 
Kawazoe Masahara, I.J.N. , the officer effecting the capture, 
the evidence of Frank Gray, master, James Duncan, first officer, 
Alexander Robertson, chief engineer, Captain Wassili Juliewitsch 
Eckardt, passenger, the ship's log, the certificate of registry, the 
master's journal, a letter from the master to one George, and a 
■certificate of Colonel Ogorodnikov of the Russian Ai'my. 

The substance of the claimant's argument was as follows : — 
Of the 67,000 roubles, 4,000 were drawa by the claimant 
in the middle of September from a deposit at the Russo-Chinese 
T3ank at Tientsin, and the remainder were sent by his agent, 
Pavlovich, from Liao-Yang. The whole was thus personal 
property and not part of the cargo. 

The claimant sailed on the "Fuping" from Tientsin to 
reach Chefoo on his way back to Russia, and had no intention 
of going to Port Arthur. Even if he had intended to go to 
Port Arthitr the money which was in the claimant's personal 
Isaggage can only be condemned if it is proved that it was 
jiot his private property. The money should, therefore, be 
released. 

The substance of the argument of the Procurator was that 
this money was not private property, but the property of the 
State, and must be condemned with the rest of the cargo 
-consigned to Port Arthur. 

* Published in the Official Gazette, Tokio, September 25th and 26th, 
1!)05. 



182 The "Fuping" Eekardt's Claim. 

The conclusioii of the Court is as follows :-—• ■ ■ -- . - ^ 

It is recognised by international law and practice ■ thiat 
goods carried by a ship wlflch commits a breach of blockade are 
liable to condemnation iinless tliey belong to persons entirely 
ignorant of the intention to break the blockade. 

The " Fuping " has been condemned for breach of blockade^ 
and it is clear from the certificate of the Russian 'Colonel 
Ogorodnikov, and the letter of the master to George, that the 
ship intended to break the blockade and carry a cargo to the 
Russian authorities at Port Arthur, and that the claimant had 
on board official docmiients and 400,000 roubles, some of which 
he threw overboard at the time of the capture, and of which 
the 67,000 roubles in question are the remainder. 

The claimant argued that he left Tientsin for Cliefoo on hi& 
way home, and had no intention to go to Port Arthur, and that,, 
even if he had any such intention, the money, which was in his- 
personal luggage, was his private property. It is however clear 
from Colonel Ogorodnikov's certificate and the master's letter to- 
Gredrge that the claimant was proceeding from Taku to Port 
Arthur uiidbr official instructions. It further appears from the 
claimant's evidence on his examination that he had- received 
two matting parcels from the Consul at Tientsin, 'with instruc- 
tions that in the event of m^eeting a Japanese warship they 
should be burned with the rest of the cargo. Consequently,, 
when the " Fuping" was stopped by the Japanese torpedo boat, 
the claimant threw these parcels overboard. From these circum- 
stances . it is obvious that the claimant Avas on board the 
"Fuping" as supervisor. 

Even if the money in question was in the claimant's personal 
baggage, it differs from the rest of the cargo only in the method 
of packing and shipment, and the argument that it must there- 
fore be private property cannot be accepted. 

In order to prove that this money was private property the 
claimant relies upon the written statements of the Russian 
Colonel Ogorodnikov and Lieutenant Restringal, and a certificate 
of Laptev, the Russian Consul at Tientsin. But Laptev and 
Ogorodnikov were parties to the breach of blockade by the 
"Fuping," and no credence can be given to their evidence. 

For the above reasons the money must be held, to be property 
of the State consigned to Port Arthur \\pon a ship guilty of 
breach of blockade. 

Even assuming that the money was the property of the 
claimant, it was on board a blockade runner and destined for 
Port Arthur, and must therefore be taken to be intended for 
the military purposes of the enemy. It cannot therefore be 
released. 

Judgment is therefore given as stated above. 

The claimant appealed to the Higher Prize Court. Judgment 
was given on September 5th, 1906, dismissing the appeal. 



The " Fuping," Eekardt's Claim. 183 

Decision of the Higher GourtJ'' 

The principal arguments in support of this appeal were as 
follows : — 

The Sasebo Prize Court found that it was clear from 
Ogorodnikov's certificate and from the letter of the master of 
the ship to one George that the claimant left Taku for Port 
Arthur under official instructions. But it does not appear who 
handed this certificate to the master, nor does any one of the 
documents in the case mention its place of origin, nor, again, 
does this certificate contain a single reference to the claimant. 
That is to say, the Prize Court did not follow the evidence, and 
arrived at a wrong conclusion as to the facts. As for the letter 
addressed by the master to George, not only is its meaning 
extremely vague, but also, judging from the master's statement,, 
be had heard from someone that the claimant waB carrying a 
large amount in roubles, and wrote this in a letter, whicli 
cannot be construed as evidence that the claimant was carrying 
Russian public money. Moreover, there is no evidence that 
these 67,000 roubles were part of this large amount in roubles. 
The Prize Court found that the claimant went on board as 
supervisor because he had been entrusted by the Russian Consul 
at Tientsin with two straw matting j)ackages, and had been 
requested to burn certain articles. But the claimant received 
the Consul's requests by letter after going on board, so that 
to find from these facts that he was on board the " Fuping " 
as supervisor is to find facts without reasons. Again, if the 
claimant was on board." the "Fuping" as supervisor under 
official instructions, there is no reason why Ogorodnikov should 
give a certificate to the master ; he would probably have given 
it to the claimant for the master. Yet, as a matter of fact, 
the claimant had never seen such certificate, nor did he hear 
of it from the master, and until he went on board the 
" Fuping " he did not even know him by sight. The original 
decision was therefore wrong, as the facts were found arbitrarily 
and without regard to the evidence. The Prize Court held that 
the fact that the notes were in the claimant's portmanteau was 
not sufficient to prove that they were private property, but 
it is a principle in mercantile law that the ship's cargo 
and passengers' hand-luggage are entirely different things. 
There was a certificate of goods and a manifest, and the 
claimant's hand-baggage, being of its nature such as would not 
appear in a list of cargo, does not appear therein. The fact 
that this paper currency was in a passenger's hand-baggage is 
clear evidence that it was private property, and the burden 
of proof must lie with the party who seeks to maintain the con- 
trary. But the Prize Court found that, though it was in 
a hand-bag, it only differed in the method of packing and 

* Published in the Official Gazette, ToMo, September 26th, 1905. 



184 The " Fwping," Eekardt's Claim. 

shipment, and was the same as ordinary goods. Sucli a finding 
is contrary to reason, and cannot be supported. 
• The Prize Court improperly refused to accept Ogorodnikov's 
evidence, upon the ground that no faith could be put in his 
statements, as he was privy to the attempt to run the blockade. 
But that evidence tallied with the evidence of Lieutenant 
Restringal, to the effect that he was present when the claimant 
received some 30,000 roubles from Pavlovich and about the 
same siim from the Russian Post Office. The original decision 
was wrong in that it declared the paper currency in this 
case liable to condemnation as being public property, carried 
by a vessel guilty of breach of blockade, and destined for 
Port Arthur, without having any evidence to show that it 
was public money and not private property. The Prize Court 
found from the fact that the claimant threw overboard two 
small parcels that the Rxissian paper money in this case was 
j)art of a sum of 400,000 roubles, but the packages thrown 
away by the claimant were parcels addressed by the Riissian 
Consul at Tientsin to the Russian Consul at Chefoo, entrusted 
to him for delivery, and were not received from Ogorodnikov, 
nor were they Russian paper currency. As for these small 
parcels entrusted by the Consul to the claimant, seeing that, 
while dealing with them as requested, he did not comply 
with the request to burn the whole of the cargo, it is clear that 
the two parcels and the cargo in general were entirely different 
matters, and the latter was in no way connected with the 
claimant. The Prize Court was wrong in deciding that what 
the claimant threw away was Russian pajter money, and that 
it is the rest of the money which is now the subject of this 
claim ; such a conclusion is arbitrary and imsupported bj' 
evidence. According to the last paragraph of the original 
decision, the paper money in this case, even if it did belong to 
the claimant, was carried in a ship guilty of breach of blockade 
and destined for Port Artliur, and was intended for the enemy's 
military use, and therefore liable to condemnation. Biit in 
this the decision is clearly in conflict with principles which are 
recognised as rules and usages of International Law, since 
according to those principles goods belonging to a person 
entirely ignorant of the intended breach of blockade ought not 
to be condemned, and in any case passengers' luggage cannot 
be treated as cargo. Again, it is clearly stated on the 
claimant's ticket that he was going to Chefoo, and the master 
told the "boy" that he was a passenger for Chefoo. Also, in 
order to draw out money on deposit at the Russo-Chinese Bank 
at Chefoo the claimant carried his cheque book. In spite of 
this evidence, the Prize Court based on grounds which do not 
amount to direct proof a conclusion that the claimant was 
going to Port Artlmr under official instructions. Such a decision 
cannot be supported, and the original decision should be set 
aside, and the 67,000 roubles of Russian paper currency released. 



The "Fuping," Eckardt's Claim. 185 

The substance of tlie replj'^ of the Procurators of the 
Sasebo Prize Court was as follows : — Though the claimant's 
name is, of course, not mentioned in Ogorodnikov's certifi- 
cate, it cannot be argtied therefrom that as it contains no 
reference to the claimant it does not constitute evidence. 
In this certificate, "the bearer of this, the British subject," 
Gray," means the master of the " Fuping," and though 
the delivery of the cargo to the Ru-ssian authorities in Port 
Arthur was entrusted to the master, the charge of secret 
military papers and paper currency would not be entrusted to 
him, to say nothing of the discretion to adopt the drastic 
measure of blowing .up the vessel to escape capture if a 
Japanese warship should be encountered en route. It is not 
surprising that in a certilicate borne by the master there is no 
reference to the duties of Eekardt, who may be regarded as 
supervisor of the " Fuping" at the time, and was invested with 
secret duties. Viewed in conjunction with the wording of the 
master's letter to George, the evidence is sutEcient to show that 
the claimant was in possession of secret documents and paper 
money at the time of capture, and the conclusion of the Prize 
Court was quite legitimate. Nor was the conclusion reached 
solely on Ogorodnikov's certificate ; there were other grounds, viz., 
that the claimant went on board as a Russian military officer, 
and was charged with the duty of blowing up and sinking the 
cargo, and even the ship, if a Japanese warship was encountered 
en route and capture was inevitable. The assertion that the 
claimant received a request by letter from the Russian Consul 
at Tientsin after embarking is merely a verbal statement of the 
claimant, and he produced no letter from the Consul to verify 
it. Further, under the circumstances, to run the blockade and 
import military supplies into Port Arthur was a most dangerous 
task, and attended by inost serious consequences. It would, 
therefore, be natural that the order to perform such an 
important task as the burning of secret documents and paper 
money, and if there were time, the sinking of the ship, should 
be given by the Colonel himself, and there was no reason why 
he should cause the Consul to give it. As for the statement 
that the order was given by letter after the claimant had gone 
on board, that such was the fact is most improbable for the 
obvious reason that the blowing up of a vessel cannot be 
effected without proper preparations. It is clear that the 
claimant was in receipt of instructions from Colonel Ogorod- 
nikov, and was not an ordinary passenger, but went on board 
as a supervisor, carrying, beside the ordinary cargo, which 
•consisted of military supplies, a few secret documents and a 
large amount of paper money. The claimant says that the 
packets which he threw away were parcels addressed by the 
Russian Consul in Tientsin to the Russian Consul in Chefoo, 
.and were not Russian paper money. But since it is plain from 
ihe master's statement, Ogorodnikov's certificate, and otlicr 



186 The " Fuping;' Eckardt's Claim, 

evidence, that tlie " Fuping " from the outset intended to run 
the blockade and would not call at Chefoo, there was no reason 
to entrust him with packets addressed to the Consul at. Chefoo. 
Further, as there is only a verbal statement of the claimant that 
the contents of the packets was not Russian paper money, this 
story cannot be accepted. 

The claimant explains that it was for the very reason that 
he saw no grounds for burning the whole of the cargo that 
he did not comply with the request to do so, though he did 
destroy the packets entrusted to him by the Consul at Tientsin. 
But if he had received instructions to biirn the cargo if a 
Japanese warship was met en route^. it is most improbable, since 
both the packets and the rest of the goods equally came from 
the Russian authorities, that there should be any reason for 
carrying out one part of his instructions and not complying 
with the rest. In his reply to the examination of the Prize 
Court assessor in charge of the case, Eckardt stated that he 
threw the packets into the sea, but was unable to carry out 
the destruction of the vessel owing to the suddenness of the 
capture. A ground of appeal which runs counter to the 
claimant's own statements cannot be accepted. 

Though there is, of coiirse, a distinction between a ship's 
cargo and passengers' hand-luggage, nevertheless, when, as in 
the present case, the enemy Government charters a ship for the 
carriage of militaiy supplies to a blockaded port, and when a 
military officer, sent on board for the purpose of carrying out 
special measures in case of emergency, carries, either in packages 
or in his trunk, most important documents and paper currency, 
it is a very superficial argument to say that they are not cargo 
because they are not entered in the manifest. Hand-luggage 
means articles in constant daily use by a passenger and ig 
distinguishable from cargo by its nature, not by whether it 
appears in the manifest, or pays freight, and so on. Therefore, 
even assuming that the 67,000 roubles were not a part of the 
400,000 roubles of public property, they must still be regarded 
as cargo, being indistinguishable fi'om the two matting parcels, 
equally articles carried by the claimant, which are said to hav^ 
been thrown overboard at the time of capture, and which the 
claimant himself does not maintain to have been hand-luggage 
and private property, although, like the portmanteau, they 
were not in the manifest. Besides, as the claimant had other 
money for daily use and ordinary travelling expenses, it Avas 
correct to consider as cargo the portmanteau filled with paper 
money as well as the two matting parcels. It is clear from 
the evidence of the master and the chief engineer that the 
claimant carried as hand-luggage three portmanteaux and two 
matting parcels. That he went on board with the intention 
of returning to Tientsin when his task was completed, and. had 
not taken a passage on the return journey tp Russia via Shanghai,. 
is also clear from the statement of the Chinaman employed by 



The " Fuping," Bekardi's Claim. 187 

the claimant as his" boy." Since, therefore, there was absolutely 
no need to carry such a large sum of paper money as private 
funds, it was a fair conchision that it was part of the 400,000 
roubles to be sent to Port Arthur for military expenses. 

Even making a concession, and assuming it to be' the 
claimant's private money, as argued above, it is to be regarded 
as cargo, and it is proper that it should be condemned, since 
the claimant was undoubtedly aware of the intended breach of 
blockade. The claimant says that the fact that he was to 
go to Chefoo is clearly stated on his ticket, but if it is 
assumed that the "Fuping" was actually going to Chefoo, then 
not one. article of her cargo woidd be contraband, as anybody — 
to say nothing of the Russian Consul or a Russian military 
officer like the claimant — would know, and, if it was not 
contraband and if there was no intention to run the blockade, 
why did the Russian Consul at Tientsin ask him to burn the 
cargo if the " Fuping" encountered a Japanese warship; and 
why did the claimant consent? Is it not obvious from the 
claimant's actions that fi-om the time he went on board the 
" Fuping," the vessel was meant to run the blockade and enter 
Port Arthur ? There is no need to point out that it is useless 
to attack a decision that a breach of blockade had been committed, 
where the facts are as clear as in the present case, although the 
vessel engaged in running the blockade or carrying contraband 
has used the common device of fixing as its ostensible destination 
a -neighbouring neutral port. For the above reasons this appeal 
is groundless and should be dismissed. 

The reasons for the decision in this case are as follows : — 
It is an undisputed fact that the " Fuping " was captured 
while on a voyage with the intention of running the blockade of 
Port Arthur and carrying military supplies. The appellant 
maintains that he had embarked as a passenger from Tientsin to 
Chefoo on his journey home, and had no intention of going to 
Port Arthur, but if the object of the " Fuping's " journey was 
to run the blockade of Port Arthur there was no reason to take 
oh board an ordinary passenger, nor was there any reason for 
the appellant to embark. In the master's letter to George it li 
actually stated " . . . we have on board a Russian officer 
"' with papers and 400,000 roubles for Port Arthur . . ." 
ahd " In order to prevent the capture of the ship together with 
," the military supplies she cariies, his plan is to blow up the 
"'' ship ; in fact, he is determined to do so at all costs" 
According to the master's evidence, the officer had three large 
hand-bags as luggage. He had heard, he said, from someone 
in Taku that the officer carried a large sum in roubles. ,The 
officer's name was Eckardt. Accbrding to the evidenc^ of 
the chief engineer, he also had heard from someone thatth^ 
6fficer had a large sum in roubles. The appellant himself^ 
When examined by the Prize Court assessor in charge of the 



188 The " Fupinrj," Eekardt's Claim. 

case, stated that lie was entrusted with two matting parcels 
hj the Russian Consul at Tientsin, and was requested, if a 
Japanese warship was encountered en route, to burn them, 
and, by some means or other, to burn as well all the other 
goods on board, and, if the capture were not too sudden, 
to destroy the ship. Upon this evidence, there is no room 
for doubt that the appellant embarked on the " Fuping," 
carrying a large sum of Russian public money, and charged 
with special duties, to proceed to Port Arthur, and that he did 
not embark as an ordinary passenger in order to proceed to 
Chefoo. The appellant points out that the request from the 
Oonsul at Tientsin was received by letter after he had gone on 
board the "Fuping," and that he was quite unaware of the 
•circumstances before going on board. But to burn the whole 
of a ship's cargo, and to blow up and sink the ship herself 
requires proper preparations, and is not the sort of thing that 
he woidd be suddenly requested to do after going on board. 
If the appellant really was an ordinary passenger, there was no 
reason to entrust him with such duties, and no reason for the 
appellant to accept the trust and to decide to carry it out. The 
appellant wishes to prove from the ticket, and the evidence of 
his " boy " and the master, that he was proceeding to Ohefoo on 
his way back to Russia ; but, even if evidence of this sort were 
not a common device to conceal another object, we have no 
more than the appellant's individual statement, and this cannot 
be regarded as proof. It is therefore certainly not a baseless 
or arbitrary inference that the appellant embarked on the 
" Fuping " carrying documents and a large amount of Russian 
paper money, charged with the duties of taking them to Port 
Ai'thur, and, if by chance occasion should arise t'?i route, of 
■carrying out emergency measures to prevent them and the other 
military supplies from being seized by a Japanese warship ; 
and that the 67,000 roubles which are the subject of this 
appeal, together with what was in the matting parcels thrown 
overboard by the appellant, make up the 400,000 roubles of 
Russian public money mentioned in the master's statement. 

Though the appellant states that the matting parcels 
entrusted to him by the Russian Consul in Tientsin were 
addressed to the Consul at Cliefoo, and were not paper money, 
if what he says were true, there would be no need to ask 
him to burn them if a Japanese warship was encountered 
en route ; and it is impossible to see why, since it is clear from 
his requesting the appellant to burn the cargo that the Consul 
knew the " Fuping's " intention was to run the blockade, he 
should entrust the matting parcels for Chefoo to a ship that 
was going to run such risks. 

Even supposing tliat the 67,000 roubles were not part 
of the 400,000 roubles mentioned in the master's statement, 
it is clear from the appellant's intention to burn the whole 
of the cargo on board if the unexpected should happen en route, 



The " Fuping" E,:kar<ies Claim. 183 

that the roubles were goods shipped on a blockade-runner^ 
and shipped with knowledge of the facts. They are, there- 
fore, properly liable to condemnation without deciding whether 
they were private or public property. 

The appellant wishes to prove, from the fact that this paper 
money was in his own portmanteau, that it was private property^ 
being hand-luggage. But in the case of a person who, like the 
appellant, is proceeding on a voyage with the object of taking; 
a large sum of public money to a blockaded port, the mere fact 
that he had it in his portmanteau does not siiffice to prove 
that the paper money is not cargo but private property. 

The appellant also argued that the original decision was 
wrong in that, although the evidence of Ogorodnikov with 
reference to the origin of this paper money tallied with the 
evidence of Lieutenant Restringal, the Court refused to accept 
it. But the appellant, when examined by the Prize Court 
assessor in charge of the case, stated that he took delivery of 
30,000 roubles of the amount from a Vladivostock merchant 
named Wassilief, brought about 4,000 roubles from Liaoyang„ 
and received 33,000 roubles as railway contract money. 
Ogorodnikov, on the other hand, declares that the whole cf the 
67,000 roubles was what Garetski, proprietor of the Vladivostock 
Theatre, at the request of Wassilief, the building contractor 
of the theatre, had remitted through his agent Pavlovich to the 
appellant, who was an associate of Wassilief. The appellant 
says he received 33,000 from Ogorodnikov. Ogorodnikov and 
Restringal state, on the contrary, that the theatre proprietor's 
agent Pavlovich himself paid it to the appellant. These state- 
ments are, therefore, conflicting, and no credence can be 
attached to them. The fact that the statements of the appellant 
and others are entire fabrications may be said to prove that 
this paper money was not really his private property. 

The case being as explained above, the Prize Coiirt 
properly decided that this paper money was public property 
despatched for Vladivostock and shipped in a vessel guilty of 
breach of blockade and therefore was liable to condemnation. 
The decision was certainly not wrong, as the appellant contends. 
Though there are other points which the appellant raised, it 
is unnecessary to deal with them in detail. 

The appeal is therefore dismissed. 



190 



THE "VETERAN." 

Sloekade—2ireutr.al ship found in the neighbourhood -of the blockade coast — 
Course directed towards the blockaded port and not for the port, shown 
on herpapersi — Evidence of .intention . to break the blockade— rRiiial 
doctrines as to what amounts to breash of bl6pkade — Cargo belonging, to 
the charterers of the ship — Condemnation. 

A neutiul ship was captured about 70 miles from Poi-fc Arthur heading 
for that port on a coui-se which was 2^ points pfE the course f pr the port 
shown on her papers. There were other circumstances giving grounds for 
suspicion that she intended to atteihpt to rtm the blockade. 

Held that the ship was liable ttr condemnation, having been found in the 
neighbourhood of the blockaded xjoast with the intention of attempting to 
reach it, and the cargo, as belonging to the charterers of the ship, who were 
aware of the intention to run the blockade. 

TKe "Veteran" left Tsingtau- on November 17tli, 1904. 
Before leaving she was painte.d. an inconspiraous colour, and 
after leaving, the master removed her bell, which was not subse- 
qiiently struck. Off Wei-hai-wei the course was changed to 
north-east, and the master refused to give an j' explanation to 
the crew. Her course was subsequently changed again and 
she was captured at about 4 a.m. on October 19th, 60 or 70 miles 
from Port Arthur, heading straight for that port, by one of the 
Japanese men-of-war detailed to maintain, the blockade, and 
cmising in the neighbourhood. Her papers were made out for 
Newchwang, but one parcel of her cargo was addressed to 
Port Arthur, and at the time of capture her course was 2|- points 
■east of the course for Newchwang. Her logs showed some con- 
tradictory entries, and the master's explanation that the course 
was adopted for reasons of safe naA^gation was not accepted at 
the hearing. 

A claim was entered by the owner for the release of the ship. 

The case came before the Sasebo Prize Court on March 1st, 
1905, when the ship was condemned. 

Decision of the Sasehb Brize Court ^^ 
The steamship "Veteran" is hereby condemned. 

Facts and Reasons. 

The "Veteran" is the property of Edward Eichwede, a 
German subject, residing at Chefoo, China, flies the German 
flag, and is engaged chiefly in the carriage of goods. She was 
chartered at Tsingtau, China, on November 6th, 1904, by a 
German firm, Diederichsen, Jebsen, & Co., of that place, and left 
Tsingtati at midnight of November 17th, 1904, after taking on 
board a full cargo of furs for protection against cold, long boots, 



* Published in the Official Gazette, Tokio, July 19th, 1905. 



The " Veteranr 191 

soap, tobacco, -matches, medicines, provisions, &c., consigned to 
Port Arthur by that firm. Her real intention was to proceed to 
Port Arthur, but it was represented to the Chinese crew that 
she was bound for Chefoo, and her papers were not in order. 
After she left Tsingtau the master caused the ship's -bell to be 
taken down, arid its striking was then discontinued, so as to 
enable the steamer to accomplish her voyage secretly. When 
she came ofE Wei-hai-wei on the following night, the ISth, the 
course was suddenly changed to north-east. The boatswain, 
Waugteijui, and others of "the Chinese crew began to sxispect 
that she was going to Port Arthur, and demanded of the master 
the -reason of the change of course. The master, however, 
instead of giving them any answer, instantly assaulted and 
wounded them, and, threatening them with his pistol, still kept 
on the altered course. While the ship was proceeding north- 
west f west, i.e., in the direction of Port Arthur, she was 
captured in lat. 38° 6' 30" N., long. 122° 40' 30" E., at about 
4 o'clock a.m. on the 19th, bj' the Japanese man-of-war 
" Tatsuta," which was on blockade duty. 

These facts are proved by the written statement of 
Lieutenant S. Ohara, acting prize officer ; affidavits of Carl 
Edlar, master of the "Veteran," An-ton- Mueller, first officer, 
M^ax Hase, chief engineer, Phillip Bluns, second officer, 
Wangteijui, boatswain, Wangshihyu and Wangchishan, quarter- 
masters, Kutelei, head fireirian, Haushing-ying, fireman, the 
certificate of registry, originals of the ship's log and engineer's 
log, the report by the counsellor in charge of the case a,s to 
the place where the ship's bell was taken down, an opinion, 
given in writing, by K. Hirano, staff engineer, as to the 
damage in the engrrie-room and injury to the guide-rod of the 
"Veteran," and the charter-party produced by the attorney for 
the claimant. 

The claimant argued that the steamer should be released, 
alleging that the object of the " Veteran," when she left Tsingtau 
on November 17th, 1904, was to go first to Newchwang, next 
to call at Tientsin, and finally to proceed to Chefoo, the place 
of residence of the claimant. This -fact was proved, by the 
charter-party between the claimant, who is the owner of the 
stea^mer, and Diederichsen, Jebsen, & Co., the bills of lading, &g. 
One part of the 6argo was to be delivered to Baudinel &. Co., 
Newchwang, one part to be sent to Telge and Schroeter 
Tientsin, and another part to the Newchwang branch office 
of Diederichsen, Jebson, & Co., but none was consigned to 
Port Arthur. It appears that the steamer's course was a 
little too far to seaward and too far to the north-east from 
thie Shantung Promontory to Newchwang, but there was some- 
thing wrong with her engines at that time, and her speed 
vias thereby reduced. Further, the steamer was in danger of 
being blown ashore by the north-west wind, so her course was 
purposely shaped more to the northward and eastward than:the 



192 The '' Veteran:' 

usual route to Newcliwang. She did not, however, proceed toward 
Port Arthur. The Procurator argues that the words, " To Port 
Arthur," which were Avritten on the cases of milk and soap, 
Avhich formed part of her cargo, are proof that she was secretly 
attempting to go to Port Arthur ; but it is unreasonable to 
suppose that anj'one iiitendin-g to run the blockade would write 
such directions as to prove his own offence. Thus the fact that 
there was this address should rather be taken as a proof that no 
such intention was entei-tained by the owner. The action of 
the master in having the ship's •bell taken down after her 
departure was not for the purpose of escaping notice, but 
becaiise the bell bore the inscription " Thales," the former name 
of the ship. It was taken down simply with a superstitious 
idea of ensuring her future good luck. The ship's papers, in 
which Newchwang was mentioned as the port of destination, 
-were complete and true, and there Avas no great inconsistency 
between the ship's destination, clearly shown in these papers, 
and the course which she in fact took. Moreover, the 
steamer was captured about 60 or 70 miles from Port Arthur, 
which is too far to allow of her being considered as attempting 
to pass the line of blockade and run into the prohibited area. 
For the above reasons, the capture of the ship was unjustifiable, 
and even supposing that collusiou had existed between the 
charterer and the master, and that they intended to ]'un the 
blockade, the claimant, the owner of the ship, had no knowledge 
of it, and therefore the ship should be released, although the 
cargo may be condemned. 

The substance of the argument' of the Procurator is that 
the "Veteran" attempted to run the blockade of Port Arthur, 
and it was an obvious fact that the blockade was at that time 
actually effective, so that she should bo condemned. 



The conclusion of the Court is as follows : — 

It has been recognised both in the doctrine and practice of 
International Law that when a blockade is effectively maintained, 
any ship, aware of the existence of the blockade, which proceeds 
with the intention of entering the blockaded area, is to be 
considered a blockade runner and condemned, whether her 
owner knew of the intention or not. There is no doubt in the 
present case that the blockade of the southern coast of the 
Liaotung Peninsula, declared by the Commander-in-Chief of 
the Japanese Combined Fleet on May 26th, 1904, was at that 
time effectively enforced. It has been the common practice of 
those who attempt to run blockades to prepare various false 
papers in order to escape capture. Of the papers of this 
steamer, the bills of lading are only for one part of the cargo, 
while there are some inconsistencies between the engineer's 
original log and the copy. Moreover, the papers relating to the 



The " Veteran." 193 

cargo, which, were produced By the claimant, do not correspond 
with the actual goods. All the papers cannot, therefore, be 
taken as being in order. The claimant, in giving his explanation 
of the steamer's not having taken the usual Newchwang route 
after rounding the Shantung Promontory, stated that the speed 
was reduced at that time on account of some defects in her 
engines, and that she was in fear of being blown ashore. 
However, when the statements of the Chinese who were working 
in the engine-room at that time, the original of the engineer's 
log, and the other evidence above mentioned as to whether or 
not defects existed in her engines are considered, not only 
is it impossible to accept the above explanation, but it becomes 
evident that she was captured while making for Port Arthur, 
after a sudden turn to the north-east off Wei-hai-wei. The 
fact that she was captured 60 to 70 nautical miles from Port 
Arthur does not exclude the conclusion that she was proceeding 
with the intention of running into the blockaded area. As 
to other points raised by the claimant, the Court does not see 
any necessity to do more than refer to the facts cited above. 

For the above reason, the Court cannot but assume that the 
charterer and the master, knowing that Port Arthur was actually 
blockaded by the Japanese fleet, attempted to run the blockade 
and smuggle cargo into that port. 

Judgment is therefore given as stated above. 

From this decision the claimant appealed to the Higher 
Prize Court, which dismissed the appeal on July 6th, 1905. 

Decision of the Higher Prize Court.* 

The main grounds of the appeal were as follows : — 
(i) The Prize Court decided that the mere fact that this 
vessel suddenly changed her course off Wei-hai-wei, in a north- 
easterly direction and proceeded on her voyage, was strong 
proof of her intention to run the blockade and make for Port 
Arthur. There was not the slightest ground for this con- 
clusion, since, in order to make for Port Arthur from a point 
off Wei-hai-wei, a vessel mast proceed at once to the north. 
Why, then, should such a vessel turn to the north-east, heading 
in the direction of the Bay of Corea, so as to enter Port Arthur 
by a devious course, turning almost through the four points of 
the compass ? Further, the most suitable time for running a 
blockade is in the darkness of the night, so that if the vessel 
had such an intention, she would, when off Wei-hai-wei, have 
made use of the middle of the night for entering Port Arthur. 
It is contrary to common sense to suppose that she would steer a 
north-easterly course, and be found at daylight at the place 



* Published in the Official Gazette, Tokio, July 19th, 1905. 

e 12750 K 



194 The " Veteran." 

wliere this ship was captured, apparently simply awaiting 
discovery by Japanese warships. The Prize Court's conclusion 
and decision as to the facts are therefore submitted to be 
erroneous. 

(2) The place of capture was about 70 nautical miles from 
the line of blockade, so that it cannot be inferred that she meant 
to pass the line of blockade and enter the port. Although the 
Japanese warship presumably captured the vessel in accordance 
with her so-called preventive right, the appellant submits that 
this was an abuse of that right, because where the distance of 
the , place of capture from the line of blockade is, as in the 
present case, as much as 70 nautical miles, the ship is not 
" a ship which having crossed the line of blockade, enters the 
" blockaded area, or tries to do so " within the meaning of 
Article 29 (1) of the Regulations relating to Capture at Sea.® 
Therefore, even assuming that the vessel had the blockaded 
port as her destination, it would not be in accordance with the 
true principles of International Law to take that fact into 
consideration, as there would be ample opportunity for a 
suspension or change of her intention. This argument is the 
more forcible in a case where it was uncertain whether the 
destination was the blockaded port or not. In short, it is 
essential that the place of capture should be in the neighbour- 
hood of the line of blockade, and the right of preventive capture 
cannot be recognised where the ship has not yet approached 
the line of blockade. 

The Japanese Regulations relating to Capture at Sea® are 
nothing more than instructions from the Imperial Headquarters, 
and neither foreign, nor even Japanese, subjects are under any 
obligation to become acquainted with or to conform to them. 
The ship cannot therefore be supposed to have known what 
principles the Government would apply in regard to blockade. 
Consequently, although it is stated in the decision of tlie Prize 
Court that "It is recognised both in the doctrine and practice 
" of International Law that any ship, aware of the existence of 
" a blockade, which proceeds with the intention of entering 
" the blockaded area is to be considered a blockade mnner," 
it is denied that the doctrine and practice of International Law 
regard an uncompleted action as a breach of blockade. Accord- 
ing to the continental principle, only an actual breach of 
blockade is punishable, while no cognisance is taken of actions 
which are not overt or completed. Such being the case, this 
vessel, which was at a point 70 nautical miles distant from 
the line of blockade, should clearly not be condemned for a 
breach of blockade, and the original decision should therefore 
be reversed and the " Veteran " released. 



* App. B. 



The " Veteran:' 195 

The substance of the argument of the Procurator of the 
Sasebo Prize Court was : (1) It was argued that the mere fact that 
that vessel proceeded on her voyage after changing her course in 
a north-easterly direction off Wei-hai-wei was held to be proof 
of her intention to rvm the blockade and make for Port Arthur, 
and that such a conclusion was groundless ; but the finding 
of the Prize Court that the ship was making for Port Arthur 
was not based solely on the one circumstance of the change of 
her course to the north-east, but on the following facts.: that 
the master of the vessel, in order to proceed in the direction 
of Port Arthur and carry out his voyage in secret, removed the 
ship's bell, after which the hours were not struck ; that, after 
the sudden change of course to the north-east upon reaching 
a point ofE Wei-hai-wei, when the head fireman and the Chinese 
crew suspected that the vessel was making for Port Arthur 
and asked the master for the reason for the change of course, 
he made no answer, but violently assaulted them, and intimi- 
dated them by discharging his pistol ; and that the vessel, 
after holding on the course described above, later turned and 
proceeded N.W. by i W., that is, in the direction of Port 
Arthur. The first change of course to the north-east was, it is 
true, not only a detour but practically going in a reverse 
direction ; but this was because warships had been sighted 
ahead, and the vessel was taking to flight in order to escape 
observation. The subsequent course N.W. by i W. was straight 
towards Port Arthur. 

It was also argued that when off Wei-hai-wei a blockade 
runner would have used the middle of the night for entering 
Port Arthur, and that it is unreasonable to suppose that she 
Avould steer a north-easterly course, and be found at daylight, 
apparently awaiting discovery by Japanese warships. But the 
time of the capture, according to the master's statement and 
the ship's log, was 4 a.m., and the written statement of the 
capturing officer puts it at 4.55 a.m. Whichever time is 
taken, the period between 4.5 a.m. and 4.55 a.m. on November 
19th is before daybreak, so that it was reasonable to conclude 
that the ship" intended to take advantage of the darkness of 
night and proceed secretly to Port Arthur. 

The appellant, putting the distance of the place of capture 
at about 70 miles from the line of blockade, bases on this fact 
an argument that Article 29 (1) of the Regulations relating to 
Capture at Sea® does not apply. But this argument is based 
upon a false hypothesis as to the facts ; for, though it is 
true that the place of capture was some 60 to 70 nautical 
miles from the harbour mouth of Port Arthur, what evidence 
is there to support the assertion that it was 70 miles from the 
line of blockade ? The line of blockade means the tisual course 
taken by the warships cniising on the look-out in order to 

* App. B. 

N 2 



196 The " Veteran." 

render the blockade effective ; and as it is notorious that the 
enemy had at that time laid mechanical mines in the offing 
10 nautical miles from Laotiehshan, it is not difficult to infer 
that the line upon which the Japanese warships engaged on 
blockade duty cruised was 20 or 30 nautical miles further out 
than this. Such being in fact the case, it cannot be denied 
that the place of capture, though it may have been 60 to 70 
nautical miles from the harbour mouth of Port Arthur, was 
not only in the neighbourhood of the line of blockade, but 
exceedingly close to it. It is, therefore, evident that this case 
would come under Article 29 (2) of the Regulations as to Capture 
at Sea,® and that the capture was not only no abuse of preventive 
rights, biit a perfectly lawful act. Again, coming to the 
objection that this is not a case under Article 29 (Ij of the 
Regulations, since there was ample opportunity for suspension 
or change of her intention, and that the proper legal principle 
would be to leave her intention out of consideration, this is a 
criticism of a finding wliich did not form part of the original 
decision and need not be answered. 

It was contended that, according to the continental principle, 
only the actual running of a blockade is punished, while 
actions which are not overt and uncompleted are not recognised ; 
and it was argued that the capture was therefore unlawful. But, 
in the laws which serve as precedents and in practice also, 
there are at present two systems of International Law generally 
recognised by civilised powers, the English and the continental 
systems, the most widely practised of which is the English 
system. That Japan adopted the English system was generally 
known to all nations from the time of the war of 1894. As, 
therefore, our system is different from the continental, why 
should it not have different results ? Thus it need hardly be 
argued that it is wrong to criticise a decision based on the 
English system on the gi-oi\nd that it does not accord with a 
different system, that is, the continental. The present appeal 
is, therefore, entirely without legitimate grounds and should be 
dismissed. 

The reasons for the decision in this case are as follows : — 
The " Veteran," was the property of Edward Eichwede, a 
German subject resident at Ohefoo. On November 17th, 1904, 
at midnight the master, although fully aware of the existence 
of the blockade, sailed from Tsingtaii, and on the 19tli, at 
about 4 a.m., the vessel was captured by the Japanese warship 
" Tatsuta," engaged on blockade duty, in lat. 38° 6' 30" N. 
and long. 122° 40' 30" E. These are facts as to which there is 
no dispute. 

The first argument of the appellant is that whereas the 
Prize Court found that the mere fact that the vessel suddenly 

* App. B, 



The " Fetdmn.** 197 

changed her course off Wei-hai-wei and proceeded north-east 
was proof of her intention to run the blockade and make for 
Port Arthur, there were no grounds for this conclusion. But a 
telegram was addressed by the Commander-in-Chief of the 
combined squadrons to the Commandant of the Sasebo Naval 
Station in the following terms : " At 3 a.m. on November 19th 
when about 32 nautical miles S. by E. f E. from Round 
Island (Yuan-tao), we observed a steamship on our port 
quarter, proceeding to the north-east; after a short time 
we lost sight of her lights, and I therefore immediately 
despatched the ' Tatsuta ' in search. The ' Tatsuta ' dis- 
covered her at 5 a.m.," that the change of course off Wei- 
hai-wei was undoubtedly made because the " Veteran," having 
sighted a Japanese warship, wished to escape from view. This 
becomes still more evident in the light of the evidence of the 
helmsman, Wong, having regard to the fact that there was a 
difference of about one hoixr in the times on board the " Tatsuta " 
and the "Veteran." These facts alone are more than enough 
to support the conclusion that the vessel, even before her 
change of course, was secretly proceeding towards Port Arthur, 
otherwise, if she had no idea of running the blockade, there 
would have been no need for flight, and certainly none for 
a change which might almost be called a reversal of her 
course. 

Again, if she were proceeding to Newchwang, the course to 
be taken, inmaediately after sighting the Shantung Kao Point 
Lighthouse, 4 miles to the west, is north-west, facing the centre 
of the Laotiehshan waterworks. But, in view of her position 
when discovered by the Japanese ships at 3 a.m. on the 19th, 
taking the range of visibility of her side-lights to be the ordinary 
range of 2 nautical miles, her course was inclined about 2i points 
to the east of the route' to Newchwang, and the harbour mouth of 
Port Arthur would be exactly the point for which she was 
heading at that time. It is stated that the reason she took an 
unusual course was to avoid the danger of approaching too near 
to the coast, in consequence of speed having been reduced 
owing to a defect in her engines. But the course described in 
the ship's log does not agree with-the facts, and the draft of the 
engine-room log does not agree with the fair copy, so that no 
conclusions can be drawn therefrom. There is no doubt that 
there was at the time only a very light wind from the north-west, 
and, judging from the relation between ship and wind and ship 
and shore, even supposing speed to have been slightly reduced, 
it cannot be admitted that there was anything to make it 
necessary to take such a circuitous course to avoid the danger 
of approaching the shore. For supposing that the route to 
Newchwang was being taken, the wind was nothing more than a 
very light head-wind, there was no land astern to be approached, 
and the relative position of the land to port was such that it 
would gradually recede as the vessel advanced. 



198 The " Veteran:' 

Apart from the above reasons, tliere is the fact that on the 
day after the departure from Tsingtau the ship's bell was removed, 
and the crew were not subsequently informed of the time. 
When the course was suddenly changed ofE Wei-hai-wei, and the 
head fireman and the Chinese crew, suspecting that the vessel 
was making for Port Arthur, asked the master for the reason for 
the change, he made no reply, but violently assaulted them, 
and intimidated them by discharging his pistol. The vessel 
held on her changed course as before and later changed her 
course again and proceeded in the direction of Port Arthur. 

Further, there were obvious traces that the vessel had a few 
days before been repainted a dark ash colour, even down to the 
lifeboats, and at the time of capture both masthead and 
side-lights gave only a very dim light, while all portholes and 
openings whence light could emerge were tightly closed. 
These facts all point to an attempt to evade the blockading 
sc|uadron and bring the secret voyage to a successful conclusion. 
In conjunction with the fact that at the time of capture the 
vessel was steaming directly towards Port Arthur, they are 
sufficient to show that it was intended to take advantage of the 
night to run the blockade, and accomplish her secret voyage 
to Port Arthur. 

The second argument of the appellant was that, as the place 
of capture was about 70 nautical miles from the line of blockade, 
it was impossible to conclude that the ship intended to pass the 
line of blockade and enter the port, and that the capture was 
an abuse of preventive rights, as Article 29 (1) of the Regulations 
relating to Capture at Sea* does not apply. It was also argued 
that, even assuming the blockaded port to have been the objective, 
where the distance of the place of capture from the port was as 
great as in this case, there was ample opportunity for a change or 
suspension of the intention, and according to the true principle of 
International Law, the intention should be left out of con- 
sideration. _ But at the time the blockading vessels were 
stationed about 10 nautical miles from the coast, and cruising 
still further o\it in the fulfilment of their duties, as is evident 
from the fact that this vessel was discovered by the squadron 
which was maintaining the blockade by cruising some 30 
nautical. miles south of Round Island (Yuan-tao), which is itself 
22 nautical miles from the coast. Thus the place of capture 
may be regarded as in -the neighbourhood of the blockaded area, 
and the " Veteran " was therefore clearly engaged in breaking 
the blockade, so that the second point of the appeal is also 
groundless. 

Moreover, since International Law recognises that a ship 
that is making an attempt to break the blockade may be 
captured, the third point of the appeal is also groundless. 

The appeal is therefore dismissed. 

* App. B. 



199 



CARGO ex "VETERAN." 

The cargo, given in the annexed list, which belonged to 
the charterers, Diederichsen, Jebsen & Co., was condemned 
on the same day as the ship. The arguments . and judgment 
are identical with those in the case of the ship, except for the 
following passages at the beginning and end of the judgment 
respectively : — 

It is recognised by the rules and practice of International 
Law that goods on board a ship which is guilty of breach of 
blockade, are liable to condemnation unless the owner had no 
knowledge of the intention of the ship. 

It is evident that, not only were the goods in question on 
board a ship gtiilty of breach of blockade, but that all of them 
belong to the charterer who attempted the breach of blockade. 
The whole of the goods should therefore be condemned. 



List of Cargo Annexed to the Prize Court Decision. 

Consignors — Diederichsen, Jebsen & Co., TsingLau; consigned 

" to order." 

No. 

1. Furs, 89 bundles. 

2. Fur overcoats, 130 bundles. 

3. Top boots, 60 cases. 

4. Cotton pants, 40 bundles. 

5. Cotton undershirts, 19 bundles. 

6. Salt beef, 1,859 barrels. 

7. Salt vegetables, 339 barrels. 

8. Tea, 300 chests. 

9. Potatoes, 379 sacks. 

10. Tinned milk, 325 cases. 

11. Tinned meat, 1,454 cases. 

12. Tobacco, 68 cases. 

13. Cigarettes, 3 cases. 

14. Matches, 78 cases. 

15. Soap, 1,600 cases. 

16. Medicaments, 12 barrels. 

17. „ (packed in matting), 1 package. 

18. Sulphuric acid, 96 cases. 

19. Medical requisites, 74 cases. 

An appeal in the case of the cargo was dismissed by the 
Higher Prize Court on the same day as the appeal in the case 



200 Cargo ex " Veteran." 

of the ship. The only relevant passage in the judgment which 
is not identical with that in the case- of the ship is as follows : — 
" Moreover, the cargo in this case consisted of things 
for which there was at the time an urgent demand in Port 
Arthur, and, as it belonged in its entirety to the charterers, it 
may be presumed that they and the master, while fully aware of 
the existence of the blockade, had planned to break it. The 
decision of the Prize Court condemning the whole of tlie cargo 
was therefore correct." 



201 



THE "NIGEETIA." 

Unneutral service — Carriage of contraband persons — JSnewby officers released 
hy a neutral Power on parole — Privity of the master and charterer — 
Evidence — Gondemnaiion. 

A neutral ship was captured on a voyage to Vladivostock, having on 
board two Russian naval officers, who had formerly belonged to a^ destroyer 
which had taken refuge and been blown up in a Chinese harbour, and 
who had subsequently been released on parole by the Chinese Government. 
She had been chartered by a Russian subject, who arranged for the passage 
of the officers as clerks or supercargoes. The Court found that bolh the 
charterer and the master were aware of their true character. 

Held, that the ship was liable to condemnation. 

In tlie autumn of 1904 tlie Russian destroyer " Rasto- 
ropni " escaped from Port Artliiir and eventually took refuge in 
th.e Chinese port of Chefoo, where she was blown up by order 
of her commander. Two of her of&cers were released by the 
Chinese Government on giving their parole that they would 
take no further part in hostilities. In October 1904 Serebrenik, 
a Russian subject, chartered the " Nigretia " from her owners, 
a British firm, one of the terms of the charter being that the 
ship should proceed to Vladivostock and should carry a super- 
cargo and two passengers, to be sent on board by Serebrenik. 
Three passengers were accordingly sent on board, who were 
represented as being Germans and employees of Serebrenik. 
Two of these were, in fact, the officers of the " Rastoropni." 
The cargo consisted of kerosene oil. 

The ship sailed from Shanghai on December 16th, 1904, 
and was captured near the Tsushima Straits on December 19th, 
on suspicion of carrying contraband persons. 

The master (presumably on behalf of the owners) claimed 
the release of the ship. 

It appears from the arguments that the master swore that 
he did not know the true character of the officers, and supposed 
that they were German employees, but the Court held that he 
and Serebrenik were both privy to the carriage, and that this 
was the real object of the voyage. 

The case came before the Sasebo Prize Court on April 17th, 
1905, when judgment was given condemning the ship. 

Decision of tlie Sasebo Prize Court.'^ 
The steamship " Nigretia " is hereby condemned. 

Facts and Reasons. 

The steamship " Nigretia " is the property of Messrs. Allen 
& Co., Newcastle-on-Tyne, England, and is a merchant ship 

* Published in the Official Gazette, Tokio, November 16th, 1905. 



202 The " Nigretia/' 

flying the British flag, chiefly engaged in the carriage of goods. 
On October 22nd, 1904, Alexander Serebrenik, a Russian 
subject, made a contract at Shanghai with MoUer & Co., agents 
for Allen & Co., for chartering this ship, and put on board 
70,000 cases of kerosene oil. He also arranged for the passage, 
under the alias of Friedrich Pilsener, German subject, of 
Lieutenant Paul Michaelovich Plen, the commander of the 
Russian destroyer " Rastoropni," which had lately escaped 
from Poj-t Artluir and been blown up at Chefoo, of Sub- 
Lieutenant Orongi Valentinovich Sieveliov, also an ofiicer of the 
destroyer, under the alias of Ivan Gorshalki, German subject, 
and of Serge Politika, a Russian merchant, pretending that 
they were his clerks or supercargo, and giving each of them 
letters, in which he asked them to manage some commercial 
matters. The ship left Shanghai on the 16th of December, 
and when she had reached the Straits of Tsushima she was 
captured by the Japanese man-of-war " Tsushima," on suspicion 
of carrying contraband persons, at 2 p.m. on the 19th, in 
lat. 35" 18' N. and long. 129° 50' E. 

The above facts are proved by the written statement of 
T. Sento, captain of the " Tsushima," by the evidence of 
Samuel Harrison, master of the " Nigretia," Lieutenant Plen, 
Sub-Lieutenant Sieveliov, and the Russian merchant Serge 
Politika, by the certificate of registry, the charter party, the 
bill of lading, and the letters given to the three passengers by 
Alexander Serebrenik. 

The main points of the argviment of the claimant were as 
follows : — • 

The claimant took on board three persons, i.e., Plen, Sieveliov, 
and Politika, in accordance with the charter party, which 
stipulated that the ship should take on board one supercargo 
and two passengers. The master believed the charterer's word, 
and thought that Plen and Sieveliov were Germans. They 
were not in the imiform of Russian officers, but pretended to 
be Germans, and concealed their true character by talking 
German among themselves. Consequently the master did not 
know they were Russians, and there is nothing to prove that he 
knew. There was, therefore, no fault on the part of the master in 
respect of the embarkation of the two Russian officers. Besides, 
these two officers, having been released by the Chinese Govern- 
ment on parole, no longer had the status of naval officers and 
were not contraband persons. 

For the above reasons this ship should not be condemned 
for the carriage of contraband persons. 

The main point of the argument of the Public Procurator 
was as follows : — Plen and Sieveliov are Russian naval officers, 
and the ship which carried them should be condemned for the 
carriage of contraband persons. 



The " Nigretia." 203 

The conclusion of the Court is as follows : — 
It has been generally admitted by the doctrine and practice 
of_ modern International Law, that a neutral ship which carries 
military persons for a belligerent State is liable to condemnation 
for the carriage of contraband persons, unless it is proved that 
the master was not in fault and did not know the fact. The 
stpamship " Nigretia " attempted to carry two Russian naval 
officers to Vladivostock, and undoubtedly she was engaged in the 
carriage of contraband persons. The claimant contends that 
he did not know that the two persons who embarked in his ship 
were Russian naval officers, and he was not to blame for such 
ignorance ; that this matter was the act of the charterer, and 
so the ship should not be condemned. But there is nothing to 
prove that the master did not know the fact, and even supposing 
that he did not, it cannot be held that he was not to blame, 
because he was reckless in taking them on board as Germans, 
and believing the charterer's word. 

^_ The claimant further contends that the Russian naval officers 
being persons released by the Chinese Government on parole, 
had no longer the status of combatants, and consequently were 
not contraband persons. But whether they gave their parole 
to the Chinese Government or not makes no difference so far 
as their status of combatants is concerned. Moreover, con- 
sidering the fact that they attempted to go secretly to Vladi- 
vostock, the base of a Russian squadron, under assumed names, 
it cannot be doubted that they were on a military mission or 
were going to render military service. As the foregoing reasons 
show, this ship was engaged in the carriage of combatant 
persons, and should therefore be condemned. 

Judgment is therefore given as stated above. 



From this decision the claimant appealed to the Higher 
Prize Court. 

The appeal was dismissed on November 2nd, 1905. 

Decision of the Higher Prize Court.''' 

The claimant's appeal against the decision of the Sasebo 
Prize Court is based upon the following grounds : — 

(1) The steamship "Nigretia," having been chartered at 
Shanghai by a Russian subject, Alexander Serebrenik, on 
October 22nd, 1904, left Shanghai for Vladivostock on 
December 16th in the same year, with a cargo of 70,000 cases 
of kerosene oil. It is true that she took on board two Russian 
naval officers. Lieutenant Plen and Sub-Lieutenant Sieveliov, 
believing that the former was Friedrich Pilsener, a German 

* Published in the Official Gazette, Tokio, November 16th, 190S. 



^04 ^he " Nigretia:' 

subject, and the latter was Ivan Gorschalki, also a German 
subject. But tbis was because the charter party stipulated 
that she should take on board one supercargo and two 
passengers ; and on the day before her departure the ship was 
notified that two persons would embark as supercargoes, and on 
the next day two supercargoes came on board. The charterer, 
Serebrenik, told the master that these two persons were Germans 
in his employ, and it is needless to say that the master did not 
suppose they were Russian combatants, or discover anything 
suspicious about them. The above facts are proved by the 
evidence of Lieutenant Plen and Sub-Lieutenant Sieveliov, by 
the written statement of the charterer, Alexander Serebrenik, 
by the charter party, and the exhibits in the case. 

The Prize Court wrongly decided that the ship had engaged 
in the carriage of contraband persons. In the decision it was 
stated that there was nothing to prove that the master did 
not know that the persons who came on board were combatants ; 
and that, even supposing he did not, it cotild not be held that 
he was fi'ee from blame, because he was reckless in taking 
them on board as Germans, and believing the charterer's word. 
But it is a general rule of evidence that the burden of proof 
rests with the party who affirms and not with the party who 
denies. The same rule should be applied to questions relating 
to international law. Even supposing the law requires that, 
in a case like this, the claimant should produce evidence in the 
first instance, the above-mentioned evidence amply proves his 
ignorance. Therefore, before it can be held that he had know- 
ledge of the fact, sufficient evidence must be given by the 
party who makes that assertion. The decision of the Prize 
Court, in the absence of any evidence that the master had know- 
ingly engaged in the carriage of combatants, must be regarded 
as wrong, because it was not in conformity with the fundamental 
principle of the law of evidence. 

(2) Plen and Sieveliov were officers of the Russian destroyer 
" Rastoropni," and for this reason they are alleged to be 
contraband -persons. But before coming on board this ship 
they had been set free by the Chinese Government, on giving 
their parole that they woiild not subsequently take part in the 
war, and consequently it must be held that they were no longer 
combatants. " Contraband persons " means, as provided in the 
Japanese Regulations relating to Capture at Sea,® the enemy's 
troops and all other persons who are carried for the purpose of 
being employed in the military affairs of the enemy state. Hence, 
although a person may formerly have been a combatant, he 
cannot be regarded as such after having given his parole 
and expressed his intention not to take part in this war. It 
follows a ship carrying such a person is not liable to condemna- 
tion. 

* App. B., see Art. XI, 



The"Nigretia." 205 

(3) Even granting that the two officers were contraband 
persons, yet this ship should not be condemned. The reason 
why a ship carrying contraband persons is liable to condemna- 
tion is that the act is not an Ordinary commercial incident, but 
a hostile act undertaken-to assist one of the belligerents. Inter- 
national Law holds such an act to be unneutral service. In order 
to convict a ship of such action, the following facts must be 
proved : (a) The object of the voyage must be the carriage of 
contraband persons ; (6) the owner of the ship or her master 
must be engaged in the service under contract with the enemy 
Government or at the wish of the enemy G-overnment ; (c) the 
persons must be taken on board in the capacity of combatants. 
That the object of this ship's voyage was ordinary commerce is 
proved by the charter party, and by the fact that the object 
was the carriage of kerosene oil, which is not contraband. 
There is no proof that this ship intended to assist the enemy 
tate. Consequently the condition (a) is not fulfilled in this 
case. The carriage was undertaken at the request of Serebrenik, 
a private person, and not under contract with the enemy 
Government nor at their wish. The necessary condition (b) is 
not, therefore, fulfilled either. The master was imder no 
obligation to inquire whether or not the passengers in plain 
clothes were combatants. The two officers, Plen and Sieveliov, 
called themselves Germans, and, being in ordinary dress, they 
could not be taken for combatants. Thus the necessary condition 
(c) is not fulfilled. In short, the ship did not carry contraband 
persons, and so she should not be condemned. 

The main points of the reply of the Procurators of the 
Sasebo Prize Ootirt, were as follows : — 

(1) The master did not give any proof of his statement that 
he did not know that the two persons who came on board were 
Russian naval officers. Moreover, in the letters given by the 
charterer to each of the officers, which were shown by them 
to the master at the time of their embarkation, the following 
statement appears : " This is a good opportunity not easily to be 
obtained lately. ... I hope for your safe return. ..." Such 
wording would not be used by an employer to his ordinary 
business employees, yet the master took the two persons on 
board as Germans in the charterer's employ, recklessly accept- 
ing his word. Hence, the master cannot be regarded as free 
from blame. 

(2) Though the two officers, Plen and Sieveliov, had been 
set free by the Chinese Government on giving parole not to take 
part in the war again, they have not for that reason lost their 
status of military persons, and it cannot be taken for granted 
that they would observe their parole and not take part in future 
operations. On the contrary, it must be held that they were 
escaping in order to take part in the war in breach of their 
parole, because not only were they going to Vladivostock, the 



206 The " Nigretia." 

only Russian naval base in the East at that, time, but their 
hostile intentions are sufficiently proved by the fact that they 
professed to be ordinary neutral traders, concealing their 
nationalitj", names, and status. Besides, the fact that Serebrenik, 
the charterer of this ship, and the master colluded in the 
fraud is clearly proved by the provision in article 16 of the 
charter party, by the fact that Serebrenik gave the two officers 
letters entrusting them with the disposal of the cargo, and by 
the master's statement when he was examined by the councillor 
in charge of this case in the Prize Court. 

(3) To make a -contract with the enemy Government, or 
to act at it§ wish, is not a condition necessary to constitute the 
offence of unneutral service of which the carriage of con- 
traband persons is an example. When the owner of a ship, 
her charterer, or her master carries contraband persons, or 
despatches them with hostile intent, then the abov^e charge may 
be supported, as shown by many precedents. The claimant con- 
tends that he was free from blame, because Plen and Sieveliov 
came on board in plain clothes. This contention might be 
admitted in the case of an ordinary passenger ship with a fixed 
service, but cannot be maintained in the case of a cargo ship 
bound for a naval port of a belligerent. To sum up, with 
regard to unlawful carriage by sea, neutrals who engage in 
that trade cannot escape their responsibilities, whether they 
knew the circumstances or not, nor upon the ground that 
they acted under threat and against their will. Moreover, in 
this case the charterer, the master, and the combatants were 
all in collusion. For the above reasons this appeal should be 
dismissed. 



The reasons for the decision of this Court are as follows : — 
The steamship " Nigretia " left Shanghai for Vladivostock, 
having on board two Russian naval officers. Lieutenant Plen and 
Sub-Lieutenant Sieveliov, and a cargo of 70,000 cases of kerosene 
oil. The claimant contends that as these two persons had been 
released by the Chinese Government on parole, they were no 
longer combatants, and consequently cannot be regarded as 
contraband persons. But military persons, released on parole, 
cannot be held to have lost their military status. And even 
though they had given their parole, it does not necessarily 
follow that they would observe it. In the present case these 
two persons attempted a secret voyage to a naval port of the 
enemy state, making false statements as to their nation- 
ality and names, and concealing their status as enemy com- 
batants. This clearly shows that they were on some warlike 
mission or going to join in military service, and undoubtedly 
they were contraband persons. 

The facts that Serebrenik, the charterer of the ship caused 
the two Russian combatants to embark under false names, 



The " Nicjretia." 207 

Pilsener and G-orschalki, as Germans, and gave them letters 
entrusting them with the superintendence of landing the 
cargo and the payment of accounts, in order to make it appear 
that they were business employees, and not enemy combatants, 
are amply proved by the evidence taken before the Prize 
Court, of the passenger Politika, the said Plen and Sieveliov, 
and of the master of the ship, and by the letters given to Plen 
and Sieveliov by Serebrenik, and by the charter party. In 
view of these facts, it mxist be held that the object of the 
ship's voyage was the carriage of combatant persons. When 
the object of a ship's voyage is the caiTiage of combatant 
persons, her condemnation is permitted by International Law. 
Besides, the above-mentioned documentary evidence proves that 
the master of this ship knew that the two persons were Russian 
combatants, and even on that ground alone this ship may 
lawfully be condemned. Hence, the decision of the Prize 
Court condemning this ship was right. As to the other grounds 
of appeal there is no need to deal with them. 

This appeal is therefore dismissed. 



208 



THE "NiaRETlA." 

PETITION OB^ MITSUBISHI GOSHI KMSHA 
AND OTHERS. 

Neutral ship — Carriage of contraband persons — Condemnation — Petition to 
establish a lien for salvage — Absolute right of captors— Jurisdiction of 
Japanese Prize Courts — Rejection. 

A petition was presented by certain Clunese subjects to establish a lien 
upon a ship condemned for the carriage of contraband persons. 

Held that the Japanese Prize Courts had no jurisdiction to entertain 
such a petition, the rights of the captors being absolute. 

The "Nigretia," a British ship, was captured on December 
19th, 1904, and condemned for having rendered unneutral 
service. 

The facts are set out in the report of the case of the ship. 
The petitioners in this case having formerly chartered the ship 
had a lien for expenses of salvage, and asked to have their right 
recognised. 

The petition was rejected by the Sasebo Prize Court on 
April 17th, 1904. 

Decision of the Sasebo Prize Court/* 
This petition is hereby rejected. 

Facts and Reasons. 

The substance of the argument of the petitioners is as 
follows : — 

The petitioners chartered the British steamship " Nigretia," 
from April 14th to November 24th, 1904. On October 19th the 
ship stranded near Toungry Pagoda, about 67 nautical miles 
down the river Kiukiang, whereupon the petitioners took steps 
for her salvage and thereby spent 4,379.50 yen. The above 
being expenditure for general salvage, the petitioners claim a 
preferential right against the ship for the said amount. The 
ship, however, after the expiration of the term of charter by the 
petitioners, was captured by the Japanese man-of-war "Tsushima" 
on December 19th, 1904, in lat. 35° 18' N. and long. 129° 50' E. 
The reason for the capture is immaterial to the petitioners, 
since, as explained above, they acquired an actual preferential 
right against the ship, and are entitled to set up that right 
against any third party. Anyone who has acquired any right 
to the ship must recognise the preferential right of the petitioners. 
It may be argued that, although the petitioners' right is good 
under civil law, it cannot be claimed in a case such as capture 
under public law. But the jurisprudence of International Law 
has developed lately and tends more and more to respect the 

* Published in the Ofi,cial Gazette, Tokio, November 16th, 1905, 



The " Nigretia," Petition of Mitsubishi Ooshi Kaisha. 209 

rights of private persons. In Article 16 of the Japanese Prize 
Court Regulations® it is stipulated that, not only those who 
claim the ownership of things captured, but those who have an 
interest in them, are entitled to present a petition. Consequently 
it must be admitted that anyone who claims a preferential right, 
like the petitioners, is also entitled to the protection of the 
above regulation. The preferential right in question being 
an actual right recognised by law, and not based upon a 
voluntary contract like a mortgage, the claim to it cannot be 
part of a fraixdulent design, and therefore it should reasonably be 
protected. Moreover, the right of capture will not be affected 
in any degree by giving protection to this right. For the above 
reasons, judgment should be given admitting the petitioners' 
preferential right against the steamship " Nigretia " to the 
amount of 4,379.57 yen, the expenditure on her salvage. 

The substance of the argument of the Procurator was as 
follows : — The petitioners are not parties wlio have any interest, 
in this ship. Even supposing they had an interest, this petition, 
not being a claim for the condemnation or release of the ship, 
but for the recognition of a preferential right against the ship, 
based upon certain obligations, should not be adjudicated on 
by a Prize Court. It should therefore be rejected. 



After due consideration the Court concludes as follows : — 
Although the petitioners spent the sum of 4,379 ' 57 yen for 
the salvage of the steamship "Nigretia," the Japanese regula- 
tions do not recognise any preferential right against things 
captured. Moreover, according to International Law, the 
right of a captor being absolute," no right of a third party 
either in rem or ex contractu can be set up against it. The 
petitioners contend that as Article 16 of tlie Japanese Prize 
Court Regulations •■■ admits the right to enter a claim not only 
to one who claims the ownership of the thing captured, but 
also to those who have an interest in it, the preferential right 
in question should be protected by that regulation. But 
though the said regulation provides that the right to claim is 
not limited to owners, yet it does not necessarily follow that a 
preferential right against the thing captured is protected by 
that provision. For the aboAi^e reasons, the claim of the peti- 
tioners for the recognition of a preferential right against the 
ship is untenable. 

Judgment is therefore given as stated above. 

From this decision the petitioners appealed to the Higher 
Court. The appeal was heard and dismissed on the 2nd November 
1905. 

* App. A. 

c 12750 



210 The " Nigretia," Petition of Mitsubishi Goshi Kaisha. 

Decision of the Higher Prize Gourt.^ 

An appeal has been entered on beKalf of the petitioners 
against the original decision, requesting the recognition of their 
preferential right to the amount of 4,379.57 yen for salvage 
expenses against the British steamship "J^igretia," based upon 
the following reasons : — 

The question whether or not a preferential right, as claimed 
by the petitioners, can be claimed against a captured ship, is 
the main issue in this case. The Prize Court ruled that the 
Japanese regulations do not recognise any preferential rights 
against things captured, and that according to International 
Law, the right of a captor being absolute, no right of a third 
party either in rem or ex contractu can be set up against it. 
But in Article 16 of the Japanese Prize Court Regulations® it 
is provided that when the Procurator gives his opinion in 
writing in favour of condemnation, or when the Prize Coiirt 
thinks that the Procurator's opinion in favour of immediate 
release is unreasonable, the Court shall proceed to issue a public 
advertisement, and that in such advertisement it shall be' stated 
that those who have an interest are entitled to file a petition in 
writing within thirty days, inclusive of the day following the 
date of advertisement. According to this provision the right 
to petition is given generally to those who are interested in the 
condemnation, and it is evident that the expression "parties 
interested" does not 'mean only the owners. The holder of 
a preferentiiil right being undoubtedly an interested party, it is 
needless to say that the petitioners should be included among 
" parties interested " within the meaning of the above provision. 
Although the above provision is in such broad terms, the Prize 
Court took a narrow view, interpreting the words "parties 
interested " to mean owners, and ruled that a preferential right 
is not recognised in the Japanese Regulations. This ruling was 
undoubtedly wrong. 

Not only was the original decision mistaken in the interpre- 
tation of the Japanese Prize Court Regulations, but it does not 
accord with the principles of International Law. The Prize 
Court held that according to International Law, the right of a 
captor being absolute, no right of a third party either in rem 
or ex contractu can be set up against it. But such a principle 
has not yet been affirmed in International Law. On the 
contrary, there are some jurists who maintain that such a right 
as is claimed by this petition should be respected, because it is 
a right accruing from the salvage of a ship. 

From a legal point of view, it is agreed in the laws and 
regulations of all nations that the expenses of general salvage, 
such as those in this case, give rise to a preferential right against 
the ship, and there is no law or regulation which has any con- 

* App. A. 

t Published in the Official Qc^^iette, Tokio, November 16lh, 1905. 



The " Nigretid," Petition of Mitsubishi Goshi Kaiska. 21 1 

trary provisioa. Consequently, the above rule must be held as 
an international rule. A preferential right, being a ri^t in rem, 
may be claimed against a ship wherevel- she is ; and nothing 
subject to such a right can be the object of absolute ownership. 
Hence, in the condemnation of a ship which is subject to a 
preferential right, the captor must admit that right. Generally 
speaking, the condemnation of contraband of war, &c., as pro- 
vided by Articles 42 and 43 of the Japanese Regtdations 
relating to Capture at Sea,* is a penalty inflicted upon a 
person who has committed an unlawful act. It is therefore obvious 
that a third party with a right in rem, who had nothing 
to do with the unlawful act, ought not to be affected by this 
penalty. Consequently, a third party, such as the appellants, 
who have a right in rem against the thing captured, shotdd 
be protected according to International Law. Therefore, the 
decision of the Prize Court rejecting the claim of the peti- 
tioners as groundless must be regarded as unreasonable. 

As to the form of this petition, the Procurator of the Prize 
Court argued that since it was not for the release of a ship, but 
for the recognition of a preferential right against a ship, it was 
not in due form. But as explained before, a petition is a claim to 
be filed according to Article 16 of the Prize Court Regulations,"]" 
by a party whose interest may be injured by the condemnation 
of a ship, her cargo, or anything else ; hence a claim requesting 
redress for, or protection from, such injury should be admitted 
by the Court without regard to its form. Since the Prize 
Court Regulations do not provide that the form of a petition 
must necessarily be a prayer for the release of the thing 
captured, the Procurator's view that the form is thus limited, 
cannot be admitted as a correct interpretation of the spirit of 
the above regulations. If a ship or a cargo were sunk by a 
Japanese man-of-war without any jurisdiction, the petition 
to be instituted by the owner of that ship or cargo would 
certainly be in a form demanding the recovery of damages. 
If such petition were rejected on the ground that it was not in 
a form praying for release, then the right party would have 
no remedy at all. 

It may be argued that the questions within the juris- 
diction of Prize Courts are limited to two, namely, whether 
to release or whether to condemn, since Article 13 of the 
Prize Court Regulations")" provides that the assessor in charge 
of a case shall investigate the facts which are necessary in order 
to decide whether the whole or a part of the things captured 
should be condemned or released. But the above article 
merely prescribes the procedure for examination of the facts in 
general and ordinary cases, and does not govern the form of a 
petition, and cannot "be made the ground for deciding whether 
or not a petition is in due form. 

* App. B. t App. A. 

2 



212 The " Nigretia," Petition of Mitsubishi Qoshi Kaisha. 

Again, it may be argued that a petition cannot be allowed 
■unless its object is a decision as to whetber or not condemnation 
is reasonable. But this petition is for the recognition of a 
preferential right, on the ground that the petitioner has that 
right against the thing captured ; in other words, the main 
point of this petition is the argument that the condemnation of 
this ship in the same manner as an ordinary ship not subject 
to such a right is unreasonable. Hence, this petition must 
be held to be a petition as to whether or not condemnation 
is reasonable. Therefore, this petition is in proper form and 
has legal grounds, and its rejection by the Prize Court was 
unreasonable. 

The substance of the reply of the Procurator of the Sasebo 
Prize Court is as follows : — 

The function of the Japanese Prize Court is to consider and 
decide whether a thing captured should be condemned or 
released, and the Court has no authority to decide qiiestions 
relating to prefei-ential rights as claimed by the petitioners. 
Moreover, the Japanese regulations have no provisions admit- 
ting preferential rights. Hence, this petition praying for the 
recognition of preferential rights against this ship is ground- 
less. The petitioners have put forward several arguments, but 
they are nothing more than the repetition of the same argument, 
and have no substance. Therefore, this appeal should be 
rejected. 

The reasons of decision by the Highet Prize Court are 
as follows : — 

The appellants contend that the original decision rejecting 
the petition for the recognition of a preferential right against 
the steamship " Nigretia " is unreasonable. But a Prize Court 
has no jurisdiction to examine petitions for the recognition of 
preferential rights ; hence the rejection of such a petition by the 
Prize Court was quite reasonable. The appellants' argument 
that they are interested parties, and that a third party who has 
a right in rem, such as this preferential right, should be 
protected, need not therefore be considered. 

This appeal is therefore dismissed. 



213 

CARGO ex "NIGRETIA." 
SEREBRENIK'S CLAIM. 

Unneutral service — Carriage of contraband persons — Carriage arranged hy 
charterer — Cargo belonging to charterer — Condemnation, 

A Russian subject chartered a British ship, put on board a cargo of 
kerosene, and arranged for the passage of two Russian officers to 
Vladivostook. The ship was captured and condemned. 

Held, that the cargo was also liable to condemnation. 

The " Nigretia," a British ship, was chartered by a Russian 
subject for a voyage to Vladivostock with a cargo of kerosene. 
It was a term of the charter-party that she should carry a super- 
cargo and two passengers, to be sent on board by the charterer. 
Three persons were accordingly sent on board, and were repre- 
sented as being Germans and employees of the charterer. Two 
of them were in fact Russian officers. The ship was captured 
in the course of her voyage, and condemned as having rendered 
unneutral service {see p. 201). The charterer, Serebrenik, 
claimed the release of the cargo, which was his property. 
The case came before the Sasebo Prize Court, which found 
that Serebrenik had arranged for the passage of the two 
officers, with full knowledge of their status. Judgment was 
given on April 17th, 1904, condemning the cargo. 

Decision of the Sasebo Prize Gourtf^ 

Seventy thousand cases of kerosene oil, carried by the 
steamship " Nigretia," are hereby condemned. 

Facts and Reasons. 

The 70,000 cases of kerosene oil in this case were shipped 
in the " Nigretia," which was chartered at Shanghai, China, by 
the claimant, Alexander Serebrenik, and despatched to Vladivos- 
took on December 16th, 1904. The claimant arranged for the 
" Nigretia " to take on board two Russian naval officers, 
Lieutenant Plen, the commander of the Russian destroyer 
" Rastoropni," which had lately escaped from Port Arthur and 
been blown up at Chefoo, under the alias of Friedrich Pilsener, 
a German subject, and Sub-Lieutenant Sieveliov, also an officer 
of the " Rastoropni," under the alias of Ivan Gorschalki, a 
German subject, together with Serge Politika, a Russian mer- 
chant. Serebrenik pretended that they were his clerks or 
supercargoes, and gave each of them letters entrusting them 
with the management of some commercial matter. When the 
ship was captured by the Japanese man-of-war " Tsushima," 

* Published in the Official Gazette, Tokio, November 16th, 1905. 



214 Cargo ex " Nigretia," Serehrenik's Claim. 

on suspicion of carrying contraband persons, at 2 p.m. on 
December 19th, 1904 m lat. 35° 18' N. and long. 129° 50' E., 
the cargo was captured at the same time. 

The above facts are proved by the written statement of 
Captain Sento, oi the "Tsushima," by the evidence of 
Samuel Harrison, master of the " Nigretia," Lieutenant Plen, 
Sub-Lieutenant Sieveliov, and Serge Politika, by the certificate 
of registry, the charter-party, and the letters given to the three 
passengers by Alexander Serebrenik. 

The substance of the argument of the claimant was as 
follows : — 

Kerosene oil, the cargo in this case, is not contraband of 
war. Though it is the property of a subject of the enemy 
state, it was on board a neutral ship and its destination was 
not a blockaded port. It is therefore not liable to condemnation 
and should, therefore, be released. 

The principal argument of the Procurator was as follows : 
The claimant attempted to carry two Russian naval officers 
to enemy territory under the pretext that they were his clerks 
or supercargoes ; -that is to say, he engaged in the carriage of 
contraband persons. The cargo belonging to him should, 
therefore, be condemned. 

After dae consideration, the Court concludes as follows : — 

According to the principles of modern International Law, 
when a ship renders unneutral service, she is liable to condemna- 
tion, and when the owner of her cargo took part in such service, 
his cargo is also liable to condemnation. The cargo in ques- 
tion was shipped on the " Nigretia " by the claimant, Alexander 
Serebrenik, who attempted to carry two Russian naval officers 
on board her to Vladivostock. He was, in fact, the person who 
planned and executed the carriage of these officers. The goods 
belonging to him should therefore be condemned, whether 
they are contraband of war or not. 

Judgment is therefore given as above. 



The claimant appealed to the Higher Prize Court. Judg- 
ment was given on November 2'nd, 1905, dismissing the 
appeal. 

Decision of the Higher Prize Court.* ^ 

This appeal is one against the decision of the Saselao 
Prize Court,, condemning 70,000 cases of kerosene oil carried 

* PubliBhed in the Official Gaxette, Tokio, November 16th, 1908. 



Cargo ex " Nigretia," SerehreniWs Claim. 215 

oa hoard the steamship " Nigretia." The appellant's argument 
was as follows : — 

During the month of Novemher, 1904, the claimant entered 
into a contract witli a Russian merchant, A. L. Kiuotovski, who 
had his main office at Harbin and a branch office at Vladi- 
vostock, managed by one Haymann, for the sale of 150,000 
cases of kerosene oil. He bought the oil at Shanghai, and 
made preparations for shipping it on the steamship " Nordpol," 
but as her licensed capacity was limited to 90,000 cases, 
only 90;000 cases were put on board. The remaining 60,000 
cases were shipped on the "Nigretia," with a further 10,000 
cases which the claimant bought on speculation to sell at Vladi^ 
vostock. Tlije whole cargo was despatched to Vladivostock on 
December 16th, 1904. It is true that the claimant arranged 
for the passage of Lieutenant Plen and Sub-Lieutenant Sieveliov 
on the " Nigretia," and entrusted them with commercial matters, 
believing that the former was Friedrich Pilsener, and the 
latter Ivan Gorschalki, both German subjects. He was, how- 
ever, entirely unaware that they were Russian naval officers, 
as is proved by the evidence of Samuel Harrison, the master 
of the " Nigretia," and of Plen and of Sieveliov, by the charter- 
paa-ty, and by other documents in the case. In spite of this, 
the Prize Court found that the claimant planned and executed 
the carriage of the two Russian naval officers under the pretence 
that they were his clerks or supercargo. This finding was based 
on a wrong view of the facts. Further, the Prize Court went 
too far in deciding that, when the owner of a cargo has taken 
part in unneutral service the cargo is liable to condemnation. 
In the case of unneutral service, the law as to condemnation is 
quite different from that in the case of the carriage of con- 
traband. In the former case the general' principle is to condemn 
the ship only and to release the cargo, while in the latter the 
cargo only is liable to condemnation and the ship is released. 
The only exception to this principle is when s'liip and cargo 
belong to the same owner, or when the cargo consists of enemy 
goods, in which cases both the ship and the cargo are liable 
to condemnation. This principle is admitted by international 
practice, and embodied in the Japanese Regulations relating 
to Capture at Sea,* Article 42, paragraph 2, Article 46, and 
Article 47. The doctrine laid down by the Prize Court does 
not g.pply to this case, as the owner of the ship was not the 
owner of the cargo. 

The substance of the argument of the Procurator of the 
Sasebo Prize Court was as follows : — 

The claimant contended that though he arranged for the 
passage on the " Nigretia " of two Germans, Friedrich Pilsener 

*.. A^pJL . 



216 Cargo ex " Nigretia," Serehrenik's Claim. 

and Ivan Gorschalki, in connection with, his oil and other 
business, he did not know that they were Russian naval 
officers. But a man must be well acquainted with a person 
to whom he gives charge of his commercial business, and it 
cannot be conceived that the claimant would employ these 
persons without full knowledge of their names, nationality, 
and status. In view of the fact that the claimant handed to 
the two officers letters, and of the words in those letters : " This 
" is a good opportunity not easily to be obtained lately. . . . 
" I hope for your safe return . . .", it is evident that the 
claimant attempted to send the two officers to Vladivostock 
knowing that they were Russian naval officers, but pretending 
they were his clerks or supercargo. 

The claimant admitted that when a ship has rendered 
unneutral service she may be condemned, but contended that to 
condemn her cargo is a violation of a fundamental rule of 
International Law. But it is a rule of Liternational Law that 
a ship which has rendered unneutral service is hable to con- 
demnation, and that when the owner of the cargo has taken 
part in the offence, the cargo may also be condemned. The 
claimant was the person who planned and executed the passage 
of the two Russian naval officers to Vladivostock, under the 
disgiiise of ordinary merchants, and therefore undoubtedly 
took part in the unneutral service rendered, and consequently 
the goods belonging to him maybe condemned. For the above 
reasons this appeal should be dismissed. 



The reasons for the decision of this Court are as follows : — 
The " Nigretia " left Shanghai for Vladivostock, having on 
board two Russian naval' officers, Lieutenant Plen and Sub- 
Lieutenant Sieveliov, and a cargo of 70,000 cases of kerosene 
oil. The fact that Serebrenik, the charterer of the ship,, 
arranged the passage of these Russian officers as Germans of 
the names of Pilsener and Gorschalki, and gave them letters 
entrusting them with the superintendence of landing the cargo 
and the payment of accounts, in order to make it appear that 
they were his employees, and not Russian officers, is fully 
established by the evidence of the passenger Politika, of Plen 
and Sieveliov, and of the master of the ship, by the letters given 
to Plen and Sieveliov by Serebrenik, and by the charter-party. 
In view of these facts, it must be inferred that the object 
of the voyage was the carriage of contraband persons. The 
cargo belonging to the person who has used a ship for the 
special purpose of carrying contraband persons may be con- 
demned according to International Law. Hence, the decision 
of the Prize Court condemning this cargo was right, and this 
appeal must be dismissed. 



217 



THE "KING ARTHUR." 

Blochade — Ship entering blockaded port — Capture after leaving — Entry 
alleged to have been owing to capture by enemy warship — Effective 
blockade — Blockade raised after the capture but before the hearing of the 
case — Condemnation. 

A neutral ship was captui-ed after having entered and left a blockaded 
port. She alleged that she had been bound for a neutral port, but was 
captured by the enemy and taken into the blockaded port, but this account 
was not accepted by the Court. The effectiveness of the blockade was also 
disputed. 

Held that the fact that ships occasionally eluded the vigilance of the 
blockading fleet did not prove that the blockade was not effective, and that 
the ship was liable to condenmation. 

If a ship is captured before a blockade is raised, it is no reason for 
her release that the blockade is raised before the hearing before the Prize 
Court. 

The facts of the case are fully stated in the judgment. 

The case came before the Sasebo Prize Court on March 9th, 
1905, on a claim by the owner for the release of the ship and 
compensation 'for the losses resulting from her capture. 

By that date Port Arthur had been captured and the blockade 
had come to an end. Judgment was given condemning the 
ship. 

Decision of the Sasebo Prize Court.^ 

The steamship " King Arthur " is condemned. The claim 
for compensation in respect of damage and expenses is 
dismissed. 

Facts and Reasons. 
The steamship "King Arthur" is owned by the claimant 
Alonzo Albert Cox, a British subject. Her usual home port is 
Bombay. She flies the British flag, and is engaged in the 
carriage of merchandise, the owner being also her master. 
Having shipped 50,000 sacks of flour, she left Bombay on 
November 8th, 1904, ostensibly bound for Newchwang, in 
China, though her master intended to import the cargo into 
Port Arthur and was aware that that port was at. the time 
blockaded by the Japanese fleet. On December 12th, 1904, 
she met a Russian man-of-war at a point about 5 or 6 nautical 
miles off the promontory of Lao-tieh-shan, in the Liaotung 
Peninsula, and was conducted by her into Port Arthur, where 
she discharged her cargo. On December 19th she left Port 
Arthur, having taken on board one, Pauli, a German merchant, 
and three other persons, and having at her own instance under- 
taken to take charge of a large amount of correspondence, and 

* Published in the Official Gazette, Tokioj July 28th, 1905. 



218 The " King Arthur." 

was approaching Chefoo, in Cliina, when she was sighted by 
the Japanese man-of-war " Asagiri," which was engaged in 
blockade duty, at a point about 12 nautical miles off Chefoo. 
She was ordered to stop, and conducted to the Chang Shan 
group of islands in China, where, at 8 a.m. on the 21st, she 
was captured by the Japanese man-of-war " Otowa." At the 
time in qiiestion there was no cargo on board. 

The above facts are established by the written statement 
of Sub-Lieutenant Kitamura Matakichi, representing the com- 
mander of the Japanese man-of-war " Otowa," by the certificate 
as to valuables, by the evidence of Cox, the master and owner 
of the " King Arthur," of Triplet, the chief officer, Leckie, 
the second officer, Turner, the third officer, Phillips, the chief 
engineer, Johnson, the second engineer. Cooper, the third 
engineer, Morriee, the boatswain, and of Pauli, Liesecke, Ober- 
beck, and Wachner, passengers on the vessel, by the ship's 
certificate of registry, the ship's log, the engineer's log, the 
cleai-ance certificates, the certificate of capture given by the 
Russian amthorities at Port Arthur, the correspondence entrusted 
to the master of the vessel by residents at Port Arthur, and by 
the letter addressed to the master by Malchinko, a Russian 
lailitary officer. 

The substance of the claimant's contention was that the 
"King Arthur " was captured by a Russian man-of-war while 
on her way to Newchwang and taken into Port Arthur, and did 
not commit a breach of blockade inwards, and that this fact is 
established by the certificate of capture . given by the Russian 
ajuthorities. Further, she entered and left Port Ai'thur freely 
and without being prevented from doing so by Japanese men- 
of-war, and met a Japanese man-of-war for the first time after 
she had left Port Arthur and had arrived off Chefoo ; it cannot 
therefore be said that the blockade of the Liaotung Peninsula 
was effective. Even assuming that the blockade was effective, 
and that the " King Arthur " committed a breach of it, the 
blockade of Port Arthur was raised before the hearing of this 
case, and consequently, following the precedent in the case of 
tlie "Lisette,"® the blockade having been raised, there is no 
need to impose a punishment for the prevention of future 
offences. For these reasons the vessel ought to be released. 
The release of the vessel and her equipment is accordingly 
requested and compensation for damage and expenses. 



The substance of the Procivraior's argument was that the 
" King Arthur " clearly committed a breach of blockade, and 
that it was also clear that the blockade at the time in question 
was effective. In view of these facts the vessel ought to be 

* Rep.Qiiefl in 6 ChmBtoplier Robinson, p. 387 {in that case the blockade 
had been raised before the capture of the ship). 



The '■ King Arthur." 219 

adjudged a prize. The claim for damage and expenses should 
be dismissed. 



After due consideration the Court concludes as follows : — 

It is a matter of common knowledge that in every year the 
middle of December is a time when navigation to Newchwang 
is stopped. It is impossible to believe that the " King Arthur " 
was attempting to import to Newchwang a large quantity of 
flour for which there was no definite order. Moreover, she did 
not take the tisual course for Newchwang, but reached a point 
5 or 6 nautical miles off the Lao-tieh-shan promontory. The 
natural inference from these two facts is that her destination 
was not Newchwang. 

Again, the master has stated that up to the time the vessel 
left Port Arthur he thought that she would be condemned by 
Russia, but, in view of the facts that he arranged to give 
passages to four German merchants who wished to leave Port 
Arthur, and that at his own instance he undertook to take 
charge of a large amount of correspondence, it is clear that it 
was settled from the first that the vessel was to leave Port 
Arthur after discharging her cargo, and that it is not the 
fact that this was decided only after permission to leave had 
been received from the Russian authorities. 

Moreover, although it is a settled principle of International 
Law that a captured vessel must undergo examination by a 
Prize Court, not only was no Prize Court examination held, but 
no investigation of any kind was conducted by the Russian 
authorities, and in spite of this fact no protest whatever was 
made by the master. The certificate of capture given by the 
Russian naval authorities at Port Arthur, referred to by the 
claimant, is a document on which no reliance can be placed. 
It was clearly intended as a means on the one hand of enabling 
the vessel to leave Port Arthur in security, and on the other 
hand of accomplishing the importation of £be cargo. The fact 
is therefore clearly established that the " King Arthur " was not 
captured by a Russian man-of-war, but left Port Arthur after 
having secretly conveyed cargo into that port. 

Again, the claimant argued that the " King Arthur " freely 
entered and left Port Arthur, and that, therefore, the blockade 
was not effective, but there is no doubt as to the fact that the 
blockade of the Liaotung Peninsula declared by the Commander- 
in-Chief of the Japanese fleet on May 2.6th 19G4, was on the 
whole effective, and it is a settled rule of International Law that 
even if one or two vessels occasionally elude the vigilance of a 
blockading fleet and run the blockade, the effectiveness of the 
blockade is not thereby impaiced. The claimant aiSQ cited 
the precedent of the " Lisette,"® and contended that the " King 

* Reported in 6 Christopher Bohinson, p. 387. 



220 The " King Arthur." 

Arthur " ouglit to be released because the blockade of the 
Liaotung Peninsula was raised before the decision of this Court 
has been delivered ; but the portion of the decision in question 
which is cited by him consists only of a supplementary reason 
given for the release of a vessel in a case where the capture 
occurred after the raising of the blockade, and cannot be 
applied as a precedent in a case like that of the "King Arthur," 
which was captured while the blockade was still in existence. 
The case of the " Charlotte Sophia,"* which, like the " Lisette," 
committed a breach of blockade, but which was captured during 
the continuance oE the blockade, is a precedent which m.ore 
closely applies to the case of the " King Arthur." In view 
of the above considerations, it is correct to hold that the 
" King Arthur " entered and left Port Arthur without good 
cause for doing so, and having, therefore, committed a breach 
of the effective blockade established by the Japanese fleet, must 
according to International Law be condemned, together with 
her eq[uipment. Although the claimant asks for compensation 
for damages and expenses incurred on account of the capture 
of this vessel, this does not come within the jurisdiction of a 
Prize Court, and the claim must be dismissed. 
Judgment is accordingly given as above. 

From this decision the owners appealed to the Higher Prize 
Court. The appeal was dismissed on July ILth 1905. 



Decision of the Higher Prize Gourt.'f 

The substance of the appeal of the claimant was as follows : — 

Firstly, this vessel was seized by a Russian torpedo boat 
whilst on a voyage to Newchwang, and taken into Port Arthur, 
and had not broken the blockade. It was found in the original 
decision that, having loaded 50,000 sacks of flour belonging 
to the claimant, she left Bombay on November 8th 1904, 
ostensibly bound for Newchwang, in China, although the 
claimant intended to import the cargo into Port Arthur, and 
was aware that that port was at the time blockaded by the 
Japanese fleet, and that on December 12th of the same year 
she met a Russian man-of-war at a point 5 or 6 nautical miles 
off the promontory of Lao-tieh-shan, in the Liaotung Penin- 
sula, and was taken by her into Port Arthur, where she 
discharged her cargo. It was also held that " it was settled 
" from the first that the vessel was to leave Port Ai-thur after 
" discharging her cargo, and that it was not the fact that this 
" was decided only after permission to leave had been received 
" from the Russian authorities." But there was no proof of 

* See 6 Christopher Robinson, p. 204 n. 

t Published in the Official Ganette, Tokio, July 28th, 1905. 



The " King AHhur." 221 

this amongst the documents cited by the Court, and the only 
ground for so holding was that, whilst the master stated that up 
to the time that he received permission to leave Port Arthur he 
thought that the vessel would be condemned by the Russian 
Authorities, yet he arranged, before receiving permission to 
leave, to give passages to German merchants who wished to 
leave Port Arthur, and at his own instance undertook to take 
charge of a large amount of correspondence. It is provided 
in Article 66 of the Japanese Regulations relating to Capture 
at Sea"'* that, " in deciding whether a ship ought to be captured 
or not, the commander shall be guided by the nature of 
" the ship, her equipment, her cargo, the ship's papers, the master 
" and crew, and their testimony, &c.," and it is also a principle 
of International Law that evidence in prize cases is confined to 
the ship's papers and the statements of the master, officers, and 
other persons on board the vessel at the time of capture, and 
should not extend beyond these limits, and also that the onus 
of producing evidence that a neutral has committed an act in 
breach of neutrality lies with the captor. In spite of this, the 
Prize Court reversed the onus of producing evidence, arbitrarily 
held the ship's papers to be false, prejudged the case by holding 
that the appellant had committed a breach of blockade and so 
found the facts against the weight of the evidence. Not only 
was the decision contrary to the text of the Regulations relating 
to Capture at Sea and to the principles of International Law, but 
it was also in contravention of the fundamental principles of 
ordinary law. 

Secondly, the Prize Court stated that, as the middle of 
December is a time when navigation to Newchwang is always 
stopped, it is not credible that the importation of a large quantity 
of flour was being attempted at such a time ; but this vessel left 
Bombay on November 8th, and she could easily have reached 
Newchwang before the middle of December, but her machinery 
was damaged on the way, and she was delayed by the repairs. 
In view of the fact that, in spite of this delay, it was on 
December 12th that she was seized by the Russian warship, it 
is unreasonable to say that it is not credible that she was 
attempting to carry goods into Newchwang in the season at 
which she must have known navigation was stopped. Again, 
as the import of flour into the North China districts is 
increasing greatly year by year, the quantity of flour carried by 
this vessel was not so extraordinary as to afford ground for 
holding that it was not for import intoTSTewchwang. 

Thirdly, the decision of the Prize Court stated that it might 
be deduced that as this vessel reached a point 5 or 6 nautical 
miles off Lao-tieh-shan, which was not on the usual course for 
Newchwang, her destination was not Newchwang, but the 
vessel's departure in a greater or less degree from the ordinary 

*:App. B. 



222 The " King Arthur." 

course was due to the fact that, owing to defects in her 
machinery, her steaming power was diminished. Moreover, it 
appears from the chart that this was the direct route from 
Bombay to Newchwang, and was a suitable route for ordinary 
merchant vessels to follow. Therefore the reasoning of the 
Prize Court in regard to this point was faulty. 

Fourthly, it was held by the Prizp Court that, "although 
it is a settled principle of International Law that a captured 
vessel must undergo examination by a Prize Court, not only 
was no Prize Court examination held, but no investigation of 
any kind was conducted by the Russian authorities, and in 
spite of this fact no protest whatever was made by the 
" master. . . . The fact is therefore clearly established that 
the ' King Arthur ' was not captured by a Russian man-of- 
" war, but left Port Arthur after having secretly conveyed 
cargo into that port." But the reason that this vessel under- 
went no Prize Court or other investigation at Port Arthur by 
the Russian authorities was that, in the then condition of 
the Russian forces at Port Arthur, her condemnation would 
only have been a source of trouble to them, and would not 
only have been of no advantage, but rather a disadvantage. 
For it was an obvious fact at that time that Port Arthur 
could not be held for long, and the most suitable plan, instead 
of condemning a small vessel like this, was to take out the 
provisions and send the vessel herself away at once. On his 
part also, the appellant, wishing to leave such a dangerous 
place as soon as possible, hastily escaped from the port, and it 
is a misconception of the facts to hold him responsible for a 
breach of International Law in consequence thereof. 

Fifthly, although the Prize Court stated that this vessel 
had broken the blockade, the appellant had, as already stated, 
absolutely no intention of breaking the blockade. Even if 
he had, the blockade of Port Arthur at the time was not 
effective. In order that a blockade may be effective under Inter- 
national Law, it must be maintained by ships of war, held in 
readiness and placed so close together that if a ship enters the 
area she is in manifest danger. In the Declaration of Paris of 
1856 it is stated that, to render a blockade effective, sufficient 
force must be used in its maintenance to prevent access to 
the enemy's coast. Therefore, when the blockading warships 
are used for other purposes, or for other reasons watch is not 
kept, even if it be for a short time only, a neutral is free to 
trade inside the area, as thfe provisions of Article 21 of the 
Regulations relating to Capture at Sea* admit. In the 
present case, according to the original decision, the " King 
Arthur " met a Russian warship at a spot 5 or 6 nautical miles 
off Lao-tieh-shan, in the Liaotung Peninsula, and was con- 
ducted by her into Port Arthur. H the enemy's vessels could 

* App. B. 



The " King Arthur." 22^ 

cruise on the high seas as far as 5 or 6 nautical miles from the 
blockaded port, could at will seize a merchant vessel, take her 
into port, and there land her cargo, and send her out again, a 
state of blockade cannot be said to have existed. Farther, this 
vessel, after leaving Port Arthur, was first discovered by a 
Japanese warship only 12 nautical miles off Chefoo, and until 
then saw no signs of the presence of Japanese warships. 
In view of the fact that an enemy vessel could proceed thus 
far from port and seize a merchant vessel, and that on a fine 
day that merchant vessel freely left port and was able to 
proceed as far as a point ofE Chefoo, it is clear that the 
blockade of Port Arthm" at the time was not effective. 

Sixthly, it is established by the decision in the case of the 
" Lisette,"* that when a blockade has been raised there is 
no longer any need to impose a punishment for the preven- 
tion of future offences, so that although a vessel which has 
broken a blockade is liable to capture at any time prior to the 
completion of her return voyage, yet if the blockade has been 
raised before the capture of the vessel she should neither be 
captured nor punished. Although the "King Arthur" was 
captured prior to the official notification of the raising of the 
blockade, she was not dealt with by the Prize Court till after 
the reason for inflicting punishment had ceased. The object of 
the capture by a belligerent of a neutral vessel which has com- 
• mitted a breach of blockade is not the acquisition of money 
or the infliction of punishment on the neutral owner, but merely 
the enforcement of the blockade, and therefore although the 
" King Arthur " was captured before the raising of the blockade, 
yet as her offence could not be repeated she should be released 
in the same way as a vessel captured after the raising of the 
blockade. 

The substance of the reply of the Procurator of the Sasebo 
Prize Court was as follows : — 

(1) Although the appellant produced a certificate of capture 
from the Russian naval authorities at Port Arthur and stated 
that the vessel was seized and detained by a Russian warship, 
and that her cargo of flour was condemned, and that she had 
not, therefore, broken the blockade, it was the usual course 
adopted by vessels breaking a blockade and illicitly importing 
goods into Port Arthur to make a signal on arrival off Laa- 
tieh-shan, and to enter the port conducted by the torpedo boat 
which came out of the harbour, as was done in the case of the 
" George," already adjudicated upon by this Court.| If the 
" King Arthur" was really captured, it is a settled principle of 
International Law that neither she nor her cargo should be con- 
demned without a decision being given by a Prize Court. But 
the master, who is the appellant, clearly stated that not only was 

* Reported in 6 Cliristoplier Itobiiisoii,.p. 387, see p. 395. 
t p. 171, ante. 



224 The " King Arthur." 

no- decision given by a Russian Prize Court in regard to this 
vessel, but also that she underwent no investigation whatever at 
the hands of the Russian authorities. On the contrary, before 
the landing of the cargo had been completed, the master had 
arranged to give passages to four German merchants who 
wished to leave Port Arthur, and had of his own accord taken 
charge of a large amount of correspondence. These facts afford 
clear evidence that the master knew beforehand that he would 
leave port on the completion of the landing of the cargo. From 
this it would appear certain that the certificate was given, on 
the one hand as an artifice to enable the vessel to leave safely, 
and on the other hand for use as evidence that the carriage of 
the cargo to Port Arthur had been completed. Moreover, the 
A'oyage took place at a time when the port of Newchwang was 
icebound and navigation to it was stopped, a fact which must 
be known to all sailors, and was known to the ma.ster of the 
" King Arthur." It must therefore be held that the capture 
of this vessel by a Japanese warship took place as she was 
leaving Port Arthur after carrying goods to that port, with an 
ostensible destination to Newchwang. 

The appellant argued that as the vessel entered and left Port 
Arthur freely, the blockade cannot be said to have been effective, 
and that in order that the blockade of a port may be effective 
a suflficient force must be employed, that is to say, it is a 
necessary condition of an effective blockade that sufficient naval 
force should be employed really to prevent access to the 
enemy's coastline. There is, however, no doubt that the 
blockade of the southern coasts of the Liaotung Peninsula 
declared by the Commander-in-Chief of the Japanese fleet was 
usually effectively maintained by a sufficient naval force, and 
though certain vessels have from time to time run the risk and 
succeeded in entering or leaving the blockaded area in safety, 
it cannot on that account be said that the blockade was not 
effective. Both the doctrines and precedents of International 
Law agree on this, and therefore it cannot be argued that the 
blockade was ineffective from the single fact that this vessel 
eluded the vigilance of the blockading fleet and succeeded in 
entering the blockaded area. 

The case of the "Lisette, "■■•'■ which was captured after the 
raising of the blockade, is not a precedent applicable to a 
case like the present, where the capture took place whilst the 
blockade was still in existence and being enforced. There are 
therefore no grounds for this appeal, and the decision of the 
Prize Court was right. This appeal should be dismissed. 

The reasons for the decision of the Court are as follows : — 
The appellant appears to argue that the Prize Court based 
its finding that the vessel had not been captured by a Russian 

* Reported in 6 Christopher Robinson, at p. 387. 



The " King Arthur." 225 

warship, but had broken the blockade, merely on the fact that, 
prior to the permission to leave being granted, she had arranged 
to give passages to G-erman merchants who wished to leave 
Port Arthur, and had of her own accord undertaken to take charge 
of a large quantity of correspondence, and that there was no 
other evidence admissible. But in support of the finding it is 
clear from the large amount of evidence cited by the Court that 
the decision was not based upon that fact alone. Accordingly, 
the first argument in the appeal fails. 

The period during which navigation is habitually stopped 
at Newchwang commences between November 27th and Decem- 
ber 6th, and this vessel left Bombay on November 8th. Her 
greatest speed according to the records is about 7^ knots, 
and even if she had proceeded direct, without calling at any 
port and without any breakdown in her engines, about 29 
days would be required for the voyage by the shortest route 
between Bombay and Newchwang, 5,250 nautical miles, and 
the vessel's arrival at Newcliwang would necessarily have been 
subsequent to the stoppage of navigation. It is absolutely 
incredible that under such circumstances it was intended to 
import into Newcliwang a large quantity of flour which had 
not been ordered, and, moreover, from the fact that the 
vessel reached a spot 5 or 6 nautical miles off Lao-tieh-shan, 
which was not on the ordinary route to Newchwang, it may 
be inferred that the vessel's destination was not Newchwang. 
The appellant's statement in the written reasons for appeal 
that the vessel's departure in a greater or less degree from 
the ordinary route was the result of damage to the engines, 
which diminished her steaming power, and his statement, when 
examined as master, that it was caused by the drift of currents, 
the helmsman's lack of skill, and an error in the compass, 
are contradictory, and amount to no more than excuses quite 
unworthy of reliance. The Prize Court was tlierefore right in 
holding that this vessel's destination was not Newchwang, and 
both the second and third points of the appeal are groixndless. 

It is a settled principle of International Law that in pro- 
ceedings connected with captured vessels and cargo a Prize Court 
investigation must be held, and they may not be arbitrarily 
condemned. Even if the condition of the Russian forces at the 
time of the vessel's arrival at I'ort Artbur was as suggested by 
the appellant, yet it cannot be tliought that the Russian navy 
arbitrarily condemned the cargo of a neutral vessel without 
investigation by a Prize Court. Therefore, the appellant's con- 
tention that this vessel was seized by a Russian warship and 
had not intended to carry goods to Port Arthur nor broken the 
blockade, is not worthy of credence, and the fourth point of the 
appeal is groundless. 

The blockade of the southern coasts of the Liaotung 
Peninsula declared by the Commander-in-Chief of the Japanese 
combined fleet on May 26th, 1901, was thereafter enforced by 

e 12750 1. 



22t1 The " King AHhur." : 

a sufBcient . force to attain its, object. A large' number of 
warabips were usually distributed and engaged in tlie direct 
blockade of the coast for, a distance of about 20 nautical miles 
in tbe neighbourhood of Port Artbur, and on ;tbe day when 
this vessel entered Port Arthur three tjattleships, ten cruisers, 
and nine . torpedo-boat destroyers, and, on -December 19th, the 
date of the vessel's capture, nine destroyers, eight cruisers, 
and one battleship, were stationed, at points about 10 nautical 
miles from the coast, and also patrolled elsewhere in the course 
of their blocTsading , duties. It is, therefore, clear that the 
blockade was effectively maintained. That this vessel siicceeded 
in arriving off Port Arthur was merely due to the fact that she 
elitded the vigilance of the blockading fleet and succeeded in 
passing the blockaded line, and it cannot be said that she ran 
no clanger at the time. Accordingly the appellant's contention 
that the blockade of the southern coasts of the Liaotung 
Peninsula was ineffective is contrary to the facts, and the fifth 
point of the appeal is groundless. 

The liability to condemnation of a vessel which has com- 
mitted a breach of blockade, whether the blockade is still in 
force or not at the time of trial, so long as she is captured after 
the blockade is established, and while the blockade is still in 
existence, is recognised by International Law. Therefore, the 
sixth point of appeal is also groundless. 

The appeal is, therefore, dismissed. 



227 



Cases of Carriage of Welsh Coal to Vladivostock. 

The " Roseley," the " Lethingtori," the " Wilhelmina," the 
"OaHey," the "Burma," the ' " Siam," the "Apollo," the 
" Sylviana,". the " Powderham," the " Severus," the " Romulus," 
the " iEasby Abbey," the "Vegga," the " Venus," the "Aphro- 
dite " and the " Harbarton " were all neutral ships captured 
whilst carrying coal to Vladivostock. They were all condemned 
with' their- cargoes. As the arguments and the decisions are 
substantially the' same, only the cases of the "Rosfeley" (in 
which the owners of the vessel were not the owners of the cargo) 
and the "Aphrodite" (in which the cargo was at any rate 
shipped by the owners of the vessel) are printed in full. The 
case of the claim to the cargo on board the " Wilhelmina " is 
also printed, as the decision was given partly on the ground of 
the absence of proof of the claimant's interest. 



p 2 



228 



THE "ROSELEi;" 

Neutral ship — VondiUonal Contraband — Welsh coal — Destination for a naval 
and military base of the enemy — Liability of ship carrying contraband 
under charter — False papers — Unusual course adopted. 

A Bi'itish ship was captured carrjdng a cargo of Welsh coal to 
Vladivostock, with papers showing a destination for a neutral port, and 
following an unusual course. She was at the time chartered by the owner- 
of the cargo. 

Held that the cai-go was contraband, and that, even if the owner of 
the ship was ignorant of the intention to carry contraband, he was liable for 
acts of the the master, and that the ship should be condemned, either on 
the ground that the object of the voyage was the carriage of contraband, or 
on the ground that fi-aud liad been employed. 

The. " Roselej'' " was chartered by Pyeman, Watson, & Co., who 
shipped on hoard her a cargo of Welsh coal for Vladivostock. 
The charter was for a voyage to Hong Kong, Shanghai, or 
Kiaochow, and at Hong Kong clearance was obtained for 
Shanghai. She did not call at Shanghai, and was captured 
Avhilst pursuing a circuitous course for Vladivostock. 

The owner claimed the release of the ship, and the case came 
before the Sasebo Prize Court, which gave judgment on the 
10th April, 1905, condemning the ship. 

Decision of the Saseho Prize Court:^ 

The steamship " Roseley " is condemned. 

Facts and Reasons. 

The steamship " Roseley " is a vessel owned by the 
claimant, a British subject, William Robert Rae, flying the' 
British flag, and engaged, in the carriage of goods. At the 
beginning of November, 1904, the master, David M. Robertson,, 
took on board at Barry, England, 6,462 tons of Welsh coal, 
with the object of carrying it to \'ladivostock. False statements, 
were made in the charter-party to the effect that the vessel was- 
to proceed to Hong Kong, Shanghai, or Kiaochow Bay, China, 
and in the bills of lading, ship's log. &c., to the effect that she 
was to proceed to Shanghai. She left Barry on the 11th Novem- 
ber, and called at Singapore and Hong Kong. At both places 
she obtained- clearance certificates for Shanghai, stating that 
she was bound for that port. She left Hong Kong on the 
5th January, 1905, and did not call at Shanghai, but proceeded 
towards Vladivostock, deliberately taking a roundabout route 



* Published in the 0§icial Gazette, Tokio, August 26th audi 28tliij, 1905- 



The "Roseleyr 229 

to make it appear that she was bound for- Shimonoseki. 
She passed through the eastern channel of those sti-aits,* and 
then suddenly changed her course, and was proceeding towards 
Vladivostock, when, at 12.15 a.m. on the I2th, she was captured 
in latitude 36° 18' north, longitude 130° 52' east, by the 
Japanese warship " Tokiwa," on the ground that she was 
carrj'ing contraband of war. 

These facts are established by the written statement of 
Lieutenant Ando Masataka, I.J.N., representing the command- 
ing officer of the " Tokiwa," by the evidence of David M. 
Robertson, master, Adam Harry IJrown, first officer, and Robert 
James Thomson, first engineer of the " Roseley, " by the ship's 
certificate of registry, by the ship's log, the clearance certificates, 
the charter-party, and the bills of lading. 

The substance of the argument of the claimant was 
that he was the owner of the steamship " Roseley," aad 
concluded a charter-party on the 1st November, 1904, with 
Pyeman, Watson, & Co., of London, agents for E. A. Grapowski, 
a Russian subject in England, by which the vessel was to 
carry coal from the port of Barry, England, to Hong Kong 
Shanghai, or Kiaochow Bay. The vessel's voyage to a port 
other than the destination indicated in the charter-party was 
the act of the charterer or the consignor ; the claimant, who was 
the owner, had no cognizance thereof. Further, as the cargo 
was not the property of the claimant, the vessel should not be 
condemned witli the cargo,, even if the latter were contraband 
of war. That the claimant, at the time of the vessel's departure 
from Barry, was absolutely unaware that she woiild proceed to 
a destination other than those indicated in the charter-party, 
and that therefore the failure to give Madivostock as the 
destination in the ship's paper cannot be regarded as a fraudulent 
device to escape capture. Even if it were considered as a step 
taken to attain that object, it was the act of the charterer, who 
had possession of the vessel, and had powei- to give orders to, 
and to exercise control over, the crew, or of the consignor, and 
the claimant had no connection with it. Therefore the vessel 
could not be held to have carried contraband of war by using 
fraudulent devices, and accordingly a decision releasing her is 
requested. 



The substance of the Procurator's argument was that it was 
clear that the coal carried by the vessel was despatched to 
Vladivostock, a Russian military base, and was to be used for the 
military purposes of the enemy. It was therefore contraband 
of war, and as there were false statements in the ship's papers, 
the vessel which carried it should be condemned. 



* This evidently means Tsushima, Straits. 



230- The " Boseley." 

The conclusion of the Court is as follow :-— 
, Tlie liability to condemnation of a vessel carrying contraband 
of war by fraudulent devices is recognised alike by the rules and 
practice of international law.; Not only was the cargo of this' 
vessel Welsh coal, which is at present principally used on 
ships of war, but Viadivostock, its destination,' ' was a base 
of the Russian fleet. In the light of these facts, it is beyond 
doubt that is Avas intended for warlike purposes, and it is 
therefore ^Tield. to be contraband of war. Altliough it is clear 
that, from the moment of ' her departure from Barry, the 
destination of . the vessel ' which carried this cargo was 
Viadivostock, yet, ' in ■ the' charter-party, bills of ' lading, and 
ship's log, neutral ports, such as Hong Kong and Shanghai^ 
Avere given as her destination, and she should therefore be held 
to have carried contraband of war by fraudulent devices. 

Although the claimant' contends that the voyage of this 
vessel to. a place other than her destination was planned by 
the charterer, Avho had possession of and exercised controlling 
power over .the vessel. Or by the consignor, and that the 
claimant Avas noV dognizant thereof, the, fd,ct"4s clearly 
established by the wording of the charter-party itself that 
the contract Avas not of 'the nature of a lease, and therefore 
possession and control of the vessel Avere hot transferred to the 
charterer, but remained with the claimant. Therefore since the 
master had the intention of proceeding to VladiA^ostock from the 
moment of his departure ftom Barry, aiid proceeded towards 
that port, the claimantV b^ing the employer of the master, 
cannot escape^ responsibility for his acts. Accordingly it must 
also be held that the claim'aiit was concerned in the act of the 
master in preparing false ship's papers. 

The claimant contends that the omission of Viadivostock 
in the ■ ship's papers "did not arise from any intention 
to avoid capture, and that therefore it cannot be said to 
be a . fraudulent device; .but the vessel, in her course to 
Viadivostock, did not take the Avestern channel of the Tsushima 
Straits, which Avas the ordinary course, but passed tlirough the ' 
eastera channel, making it appear as if she was' going to 
SMmono^ekiv anr] then 'Suddenly changed her course, and was 
finally captured Avhilst endeavouring to reach Viadivostock, as 
is clearly, established by the statement of the master. These 
facts place it beyond doubt that the false statements in the ship's 
papers were made in order to avoid capture. 

The. vessel having carried contraband of Avar by fi-audulent 
desvices, tliqre is no necessity to investigate the question of the 
person in ;whom tlie : ownership of the coal carried by her is 
A'estedj and the vessel -should be condemned. ' 

Judgment is therefore given as above stated. 

From this decisiQii. the claimant appealed. The appeal was 
dismissed on the 8th August, 1905. 



The "Roseley." 231 

Deiision of the Higher Prize OdurtS* 

.;T]ie; substantial groiiuds of the appeal of the claimant 
were — 

iFirstly, the sole reason given in the original decision for 
condemning this vessel was that she had carried contraband of 
war, using false ship's pkpers and employing fraudiilent devices 
to conceal her destination ; but so long as the contraband of 
Avar does not belong to thfe shipowner, only the cargo should be 
condemaled, and the vesseh should not be condemned. For the 
vessel to be liable to condemnation it is indispensable, not only 
that -the^ contraband of war should be placed on board the 
vessel by the use of fi-audulent devices,' but also that the 
shipowner ■ should have "participated in such' devices, i.e., 
that there should be- a concerted plan. In spiie of the 
fact that the shipowner in this case did not participate, the 
original > decision improperly condemned the vessel merely on 
the strength of a deduction, based upon the principles of the 
civil law, that a shipowner Cannot plead ignorance of the acts 
of the master. 

Secondly, the mere failure to enter the destination in the 
ship's papers does not amount to a fraudulent device which 
justifies' the icondemnation of a A-essel ; it is necessary that tlie 
papers should be prepared with the intention of escaping 
capture bj' deceiving the warships of a belligerent Avhen visited 
or searched, and that the falsification should be sufficient to- 
deceive. y.No evidence 'exists that the papers of this vessel 
were prepared with such a purpose, and thej'^ were clearly 
insufficient ' to attain the object of escaping capture. The 
condemnation of this vessel was, therefore, improper. 

- Thirdly, the shipowner- having hired the vessel to the owners 
of tlie Cargo to be lised'^for the carriage of coal, aud having 
determined upon Hong^: Kong, Shanghai, or Kiaochow Bay as 
the destination, and ' concluded a charter-party, Avas not privy 
to the vessel's despatch to a different destination. If this 
charter be. held to have been of the nature of a contract of lease 
as in English law, . the charterer haid temporarily tlip rights, of 
posfiigsston and control of the vessel. Even supposing that this 
arguiEEkent cannot be accepted j and the case be treated as an 
ordinary 'poiltract of carriage, as the voyage intended by the 
shipowiiier Avas that inserted in the contract, it cannot be 
said ; \k»$ he conspired and assisted in the carriage of 
coatiaband of Avar because the master carried into effect the 
intention. of the charterer. Further, in the case of an act in 
contraventioo: of Interiiational Law, such as the carriage of 
coutnabanidjoi.war by fraudulent deyices, since such action is not 
Avithin the scope of the authority of the master as the owner's 

* Published in the Official- Gazette, Tokio', August 26th ahd '28th, 1905. 



232 The "Roseley." 

agent, the owner should not be held responsible for it so loiTg as 
there is no evidence of a concerted plot. 

Fourthly, at the time of the vessel's departui-e the charterer 
ordered the master to proceed to Vladivostock by any route he 
liked, unless he was given orders to the contrary on his arrival 
at Hong Kong. Consequently it would appear that at the time of 
this vessel's sailing Vladivostock had not yet been definitely 
decided upon as her destination, but that Vladivostock would 
only definitely become her destination if no special orders were 
given upon lier arrival at Hong Kong. It is therefore not in 
the least suspicious that, in the bills of lading and clearance 
certificates draAvn up at her port of departure. Hong Kong was 
given as her destination. It cannot, therefore, be held that 
papers conceal iag her destination were purposely prepared with 
the wrongful intention of avoiding capture by a belligei'ent. 
Again, the obtaining of clearance certificates for Shanghai at 
Singapore and Hong Kong amounted to no more than the 
making of an untrue statement to the authorities concerned 
in order to facilitate the departure of the vessel. This was 
done not only for fear that the British authorities would at the 
-time forbid the departure of the vessel for Vladivostock, but 
,also because it was feared that trouble would be caused in 
connection with tlie procedure necessaiy to leave port if such a 
certificate were persistently demanded. It was obviously no 
part of a plan to escape capture by Japanese Avarships. A 
■clearance certificate is not an important ship's paper, and is 
not included in the list of ship's papers of European and 
American countries, given in Articles 177 to 191 of the 
British Prize Regulations,® a fact wliich is sufficient ground 
for the deduction that no country attaches weight to clearance 
certificates. The infliction on a vessel of the severe punish- 
ment of condemnation, merely on account of the fact that a 
false port of destination was entered in her clearance certifi- 
cate, is, therefore, not in accordance with the principles of 
modern International Law. 

Fifthly, the cargo of this vessel was not contraband of war, 
for, although it was despatched for Vladivostock, that place 
had the nature both of a military port and a commercial 
port, and such goods should, in accordance with the precedent 
of the case of the "Neptunus,"! which occurred during the war 
between England and Holland, be regarded as being imported 
to Vladivostock as a commercial port. Moreover, the statement 
contained in the original decision that at the time of the vessel's 
departure from Barry the Russian Government had despatched 
representatives to England, and had caused them to despatch 
large quantities of coal to Vladivostock as a preparation for the 

* The reference is to the Naval Prize Manual, 1888, p. 51. 
f Separated in 3 Christopher Robinson, p. 108. 



The " Rosdeijr 233 

eastward movement of the Baltic Fleet, was not foiinded on 
proper evidence, and was therefore irregular. 

For tlie above reasons the original decision should be 
reversed, and the vessel should be released. 

The substance of the reply of the Procurator of the Sasebo 
Prize Court was as follows : — 

Firstly, the shipowner, being the employer of the master, 
must take the responsibility for the acts of the master in con - 
nection with the discharge of his duties, whether he was aware 
of them or not, and whether he was connected with them or 
not, and therefore he cannot evade responsibility on the ground 
that he was not connected with the act of the master of this 
vessel in preparing false ship's papers, especially as according 
to the master's own statement at the time of the vessel's 
departure from Barry, England, Pyeman, Watson & Co., the 
agents of the charterers of the vessel and agents of the claimant, 
handed to the master bills of lading in which the destination 
was given as Shanghai, and at the same time verballj' ordered 
him to go to Vladivostock. 

Secondly, as the question whether the coal carried by this 
vessel was contraband of war or not is determined by its 
destination, if the destination were not inserted in the ship's 
papers, or if a false destination were inserted, a belligerent 
warship visiting or searching the vessel would be deceived 
thereby, and therefore, whatever be the reason for drawing 
up such papers, they were undoubtedly none the less false 
papers. When the vessel was proceeding towards Vladivostock 
she did not take the ordinary route through the. western 
channel of the Tsushima Straits, but purposely passed through 
the eastern channel, making her destination appear to be 
Shimonoseld, and then suddenly changed her course, and was 
endeavotiring to proceed to Vladivostock when she was captured 
by a Japanese warship. This is admitted by the master himself, 
and it is, therefore, clear that the entry of a false destination 
and the omission to enter the true destination in the bills of 
lading, official log, and clearance certificates were really 
measures taken to escape capture by a Japanese warship. 

Thirdly, as it is clear from the wording that the contract of 
charter of the vessel was not a contract for the lease of the 
vessel, but was of the nature of a contract of carriage, the 
rights of possession and control of the vessel did not pass to 
the charterer, but remained with the claimant. Moreover, as 
the master of the vessel at the time of his departure from 
Barry had already formed the intention of proceeding to 
Vladivostock, and as he attempted to reach it, the claimant,, his 
employer, cannot escape the responsibility for it, especially as 
Pyeman, Watson, & Co., the agents of the claimant, had, at the 
time of the vessel's departure, ordered the master to proceed to 



234 The "EoseUy." 

VladivostocTc., The original dedisionbeiiig 'correct, aiid there' 
being no grounds whatever for the appeal, it should' be dismissed. 
-■'- The reasons' for the decision of the Court are as follows *:^- 

Firstly, not only is Vladivostock an important Russian naival 
port iised by Russia since the outbreak of the Russo-Japanese 
wai-as a base for her fleet, but it is also' 'an established iadt that 
Vladivostock has been made a military base depot, arms,'_pi-o- 
visions, codl, and other military supplies beiflg collected' there, 
wbile ordinary trade at the port has practically ceased.' There- 
fore the Prize Court was perfectly correct in holding that coal 
despatched to that port was destined for Russian- military us6, 
and in deciding 'accordinglyi that it was contraband of war; 
especially as the coal carried by tliib 'V^essel was best Cardiff 
coal, for which, the price in the Far East is extremely high, so 
that .there is no demand for it ■ eicept 'for naval' use- in Isinle 
of war. The destination for the military purposes of Russia is 
thus all the 1 clearer. Although, the appellant contends that 
the cargo of this vessel should be held to be intended foir- 
peaceful purposes, in accordance with the precedent of the 
judgment in the case of the " Neptunus,"® the nature of the 
goods in this, case and the circumstances of their place of 
destination are entirely. different from those in the case of the 
"Neptunus,.':' akd it is therefore quite obvious- that it cannoli'be' 
followed in this case. ' 

Secondly, International Law i^ecognises the liability to' con - 
denmation of a vessel' the object of whoSe voyage is, as in this 
case, the icarriage of contraband of ' war, aaid the Higher Prize' 
Court considers this rule' to be in accordance with the needs of 
the case.- Moreover, the 'whole - of the cargo was contraband of 
war, and, in spite. of the fact that at' the time of her departure 
from -England it was already clear that 'she- was to proceed to, 
Vladivostock, deceit Avas . used in the charter-party an'd otber 
ship's. pape^rs as to her destination/ that is to say, she carried- 
contraband of war by fraudulent devices. ■ '' 

The decision condemning the vessel wais, therefore, perfectly 
proper, -and there is no need to discuss the grounds, of appeal in- 
detail, . . ' ■ '• ■ ^ ./ . ' . 

The appeal is therefore dismissed"/- i -^ • - ■'■ 

' ■ * 3 Christb^her RoKinson, p. 108. 



235 
CARGO ex " ROSELEY." 

Ciytiditional conirahand — Welsh coal — ■Destination fof a'naval and military 
hase of the enemy' — Evidence-^— Doctrine of Preemption. 

A (iargo of . Welsh coal was captured on a British ship bound for 
Vladivostock. - r 

Held that the cargo was liable to oondemnatioh as contraband. 

Pre-emption is not a i-ecognised rule of International Law. 

A. prize court is not bound by strict rul6s of evidence, but may draw 
infeVences from circumstances generally known. 

On Jamiaiy 12th, 1905, Japanese warships captured the 
" Roseley," a British ship, carrying a cargo of Welsh coal,, iu 
the southern portion of the Sea; of Japan. She left Hong Kong 
with a clearance fox Shanghai, but did not, call there, and when 
captured was heading for VladivoSjtock. The vessel was taken 
before .thQ Sasebo, Prize , Court, and separate proceedings were 
instituted against ship and cargo. The case against the ship 
is reported at p. 228. 

Decision of the Sasebo Prize Court/' 

6,462 tons of coal, carried by the steamship " Roseley," , are 
cpndemned. , '' ,, . , 

>. : Facts and Reasons. 

These gopds were shipped at Barry, England, at the, beginning 
of November," 1901, on board the .British steamship " Roseley,,", 
chartered ;bj;' Pyernan,, Watson, & Co., and were despatched thenge . 
on the lltk .Noyemb^r for "\^3,divostqck. They were captured 
with the "Roseley "wlien tMt vessel was seized, at 12.15 a.m. 
on the. 12th Jam^ry, 1.905, in latitrxle 36° ,18' nortlx, longitude 
130° 52' east, by the Japanese w,arship " Tpkiwa," on the 
ground that she was parrying contraba^nd of war. , ; 

These 1 facts are establisjied', by the written sta,tement of 
Lieutenant, AndojV[^s^taka„l.J.,N., ty the evidence of Pavid M,., 
Robertson,^ master,, Adam ^epry Brown, first officer, and Robei;t 
James Tliorjison,' first engineer of the "Roseley," by the ship's 
certificate of registry, the ship's log^ the clearance certificates,' 
the charter-party, and the bills of lading. 

The substance pf the claimants' argument was that during 
N6vember,'1904, the claimants, on behalf of E. A. Grapowski,, a 
Rxissian subject resident at Glasgow, chartered the " Roseley," 
owned b/ William Robert Rea, of Belfast, and, loading her with 
this cargo of coal, despatched it to Vladivostock. Coal should, 
under the Japanese Regulations relating to Capture at Sea,| 
be held to tie contraband pf waE only when it is destined for , 
the enemy's arniy Pr navy, or when, after reaching the enemy's 

* Published in the Official Gazette, Toklo, August 26th and 28th, 1905. 
t App. B. 



236 Cargo ex " Roseley." 

territory, it might from the circumstances of its place of desti- 
nation be regarded as intended for the use of the enemy's 
army or navy. It is clear, from the precedent afforded by the 
case of the " Neptunus,"''-' that when coal is .carried to a port 
like Vladivostock, which is both a commercial and a military 
port, it should be held to be carried to Vladivostock in its 
character of a commercial port, especially when, as in this 
case, its use was not restricted to military purposes alone, but 
might also have been intended for industrial purposes. Again, 
even if these goods be regarded as enemy goods, they should be 
exempt from capture under Article 2 of the Declaration of Paris 
of 1856. 

The release of the goods was therefore requested. 

The substance of the Procurator's argument was that these 
goods, beiug despatched to Vladivostock, a base of the Russian 
navy, were clearly destined for the military use of the enemy, 
were contraband of war, and should be condemned. 



The conclusion of the Court is as follows :— 

Welsh coal, which was the cargo in this case, is at 
present principally used for warships, and Vladivostock, its 
destination, was a base of the Russian fleet. Moreover, it is an 
established fact that at the time the " Roseley " sailed from 
Barry the Russian Government had sent agents to England, and 
caused them to send large quantities of coal to Vladivostock as 
a preparation for the eastward movement of the Baltic Fleet, 
Accordingly there is no doubt that the c-oal in this case was 
destined for the military use of the enemy at Vladivostock, and 
was, therefore, contraband of war. The contention of the 
claimants that when goods are carried to a port like Vladivos- 
tock, which is both a commercial and a military port, they 
should be regarded as carried to it in its character of a com- 
mercial port, and that this coal was therefore not contraband, 
cannot be adopted. The other contentions have no direct con- 
nection with the decision of the case and need not be discussed 
in detail. Consequently the goods in this case, being con- 
traband of war, may properly be condemned in accordance 
with the fundamental rules of International Law, and judgment 
is, therefore, given as above. 



From this decision the claimants appealed to the Higher 
Prize Court. The appeal was dismissed on the 20th September, 
1905. 

* Reported in 3 Christopher Robinson, p. 108. 



Cargo ex " Eoseley." 237 

Decision of the Higher Prize Court.''^ 

This was an appeal from tlie decision of the Sasebo Prize 
Court on April 10th, 1905, condemning 6,462 tons of coal 
carried by the steamship " Roseley." 

The purport of the appeal is that the decision of the Sasebo 
Prize Court should be reversed and the 6,462 tons of coal 
carried by the " Roseley " should be released. The grounds of 
appeal were as follows : — 

Firstly, though there is a great deal of argument at the 
present time as to whether coal is contraband of war or not, 
the Japanese Prize Regulations have adopted the view that it is 
contraband only in cases where it is clearly destined for the 
enemy's military use. Even assuming this view to be consonant 
with the principles of International Law, the destination of the 
goods in this case was Vladivostock, and that port is a great 
mercantile port and a place where various trades and industries 
are carried on and foreign firms are established, besides being 
the sole naval station of Eastern Russia. Consequently, the 
carriage of coal, which is not absolute contraband, to such a 
port, is not sufficient ground for holding that it is destined for 
military use. The proper conclusion, following the precedent 
made bj'' the decision in the " Neptunus "| during the Anglo- 
Diitch War of 1788, is to regard such goods as imported to 
Vladivostock as a commercial port for peaceable use. 

Secondly, the Prize Court in its decision says : " It is an 
" established fact that at the time the ' Roseley ' sailed from 
" Barry, the Russian Government had sent agents to England and 
" caused them to ship large quantities of coal to Vladivostock as 
" a preparation for the eastward voyage of the Baltic Fleet." 
What evidenc(; is there to support this conclusion ? Although, 
in the admission of evidence, a Prize Com-t is not bound by a 
definite law of evidence^ but may rely upon proof by inference, 
it is a general principle of Prize Court procedure in Inter- 
national Law that it is not allowed to admit, and apply as 
materials for a judgment, facts outside the ship's papers and 
the statements of the crevf, &c., of the captured vessel. It 
is beyond dispute that a decision thus given in contravention of 
a general principle of public law is wrong. 

Thirdly, although in I'egard to the treatment of conditional 
contraband in a neutral ship, the English and the Continental 
Tiews differ somewhat in purport, it would appear that there is 
no difference in their general spirit. The English _ pract ice is. 
to condemn and pay compensation for goods' which are regarded 
as contraband on the ground that they are destined for an 
enemy's warships or troops. Under the Continental system,, 
as laid down at the International Conference on International 

* Published in the Official Gazette, Tokio, August 28th, 1905. 
t Reported in 3 Christopher Bobinsori, p. 108. 



238 Cargo ex"Roseley" 

Law, a belligerent State has the fight to capture goods available 
for iise both in war and peace in transitu to an enemy port, 
subjebt to the' condition 6i making compensation. In view of 
thei fact -tllkt- recent opinion and' practice in regard to the 
treatment of conditional contraband have' an increasingly liberal 
tendency, it vrould be extremely harsh fer Japan alone td run 
counter to the above practice and to condeimi forthwith coal 
dispatched to a port, which is both naval and commercial, 
without attaching any condition whatever, in view of the fact 
.that coal is available for use both in peace and war. In view 
,.of the fact that our Prize Regulations are based on the English 
system,- it is particularly desirable that proper care should be 
exercised in dealing with conditional contraband belonging to 
a neiitral. 

The substance of the Procurator's reply was as follows :- — 

Firstly, Cardiff coal is at the present time mainly iised foi: 
-warships, and its destination, Vladivostock, is a naval port and 
since the outbreak of war only nominally a mercantile port. 
The fact that Vladivostock was the base of a Russian squadron, 
and that the coal required for the squadron's use was entirely 
supplied by imports to that port, make it clear that the coal in 
this case would, on reaching the port, immediately have been 
applied to military use, so that it is beyond doubt contraband 
of war. Since Vladivostock does not really possess, like 
Amsterdam, the character of a commercial port as well as that 
of a naval port, the judgment in the case of the " Neptunus ""■■■ 
does not apply to this case. 

Secondly, since there are no special rules binding a Prize 
Court as to the admission of evidence, a Prize Court may in 
arriving at its findings of facts draw inferences from the ship's 
papers, the statements of the crew, and other general circum 
stances. Facts thus established are not vitiated on the ground that 
they extend beyond the ship's papers and the crew's statements, 
particularly when the findings of the Court are evident facts. 

Thirdly, where coal destined for enemy territory is intended 
for military use, not only does the practice of International Law 
recognise that it is contraband, and liable to condemnation, 
but our own Regulations relating to Capture at Seaf expressly 
provide the same, so that the Prize Court rightly recognised 
this fact and condemned the coal in the present case. Con- 
demnation subject to compensation and conditional seizure or 
pre-emption, referred to by the claimants, are no Vftiore than 
the practice of a particular country, or theory, and are not to 
be considered as the rules and practice of International Law, 
so that the Prize Court was not wrong in not being guided 
thereby. The original decision being correct, there is no 
ground for the appeal, and it should be dismissed. 

* Reported in 3 Chriatopher Robinson, p. 108. f App.' B. 



Cargo ex " Eoseley." ' 239 

The reasons for the decision of the Court are as follows : — 

Firstly, it is manifest that Vladivostock is a Russian naval 
pert of prime importance.. From the outbreak of the Russo- 
Japanese war, Russia not only made that port a base of its 
fleet, but also a base of supplies, collecting arms, provisions, 
Qpal, and other wai-like siipplies, and ordinary trade there 
practically came to a standstill The Prize Court was, there- 
fore, not wrong in regarding coal sent to that port as destined 
for the warlike use of Russia, and in deciding that it was 
contraband, especially as the coal in this case, being best Welsh 
coal, which is extremely expensive in the East, and therefore 
not in demand except for use by warships in time of war, was 
without doubt to be applied to military use. The appellant 
argues that, following the precedent of the " Neptunus,"* the 
cargo in this case should be regarded as intended for peaceful 
consumption ; but the character of the goods in this case and 
that of the " Neptunus " are entirely different, as are the 
conditions of the places of consignment, so that it is needless 
to say that it cannot be admitted as a precedent for the present 
case. The first point of the claimants' appeal therefore fails. 

Secondly, since, in its finding as to facts, a Prize Court 
may without restriction rely upon inference from the ship's 
papers, the statements of the master and crew, and other facts 
and circumstances, the second point of the appeal, which argued 
that the Prize Court was wrong in admitting and utilising as 
materials for its judgment facts beyond the ship's papers and 
the statements of the crew, also fails. 

Thirdly, it is a; universal principle of International Law that 
all contraband maybe condemned. Capture subject to compen- 
sation, preemption, or condemnation with compensation, which 
the appellant hopes for, must be regarded as no more than a 
special custom or theory, or a practice agreed upon in a special 
treaity; and cannot yet be regarded as a rule of International 
Law., The original decision cannot be objected to upon the 
ground that it did not adopt this principle. 
This appeal is, therefore, dismissed. 



* Reported in 3 Christopher Robinson, p. 108. 



240 



THE "APHRODITE." 

Conditional contraband — Welsh coal— Destination for a naval and military 
base of the enemy — Liability of ship where carriage of contraband is object 
of the voyage — False papers — Vessel not taking direct course. 

A neutral ship was despatched to Vladivostook by her owners with 
Welsh coal deliverable to order, the shipowners being the consignors. In 
the clearance and other papers a false destination was inserted, and the 
vessel took a roundabout course. 

Ship and cargo coMdemned. 

The "Aphrodite," belonging to the Cornhill Steamship 
Company of 81, Gracechurch Street, London, sailed from Cardiff 
on December 22nd, 1904, with a. cargo of 5,600 tons of best 
Welsh coal. The ow ners of the " Aphrodite " were the con- 
sigiiffregf the cpaL^YhicFjva ^ma^^H^^era^eJ^^Q Qfider.''^^^^^ M 
Cardiff, Saigon was inserted in the clearance and bill of health 
as the destination ; at Saigon, Singapore Avas given as the 
destination. She left Singapore on February 8th, and up to 
February 20th Shanghai was insei-ted in the log as the destina- 
tion, but after that date it was given as Vladivostook. On March 
6th, 1905, the " Aphrodite " was captured by the " Nippon 
Maru " when making for Vladivostook by the Soya Straits in the 
neighbourhood of the Iterup (Vries) Straits. The master of the 
"Aphrodite" had apparently written in pencil on the bills of 
lading that the coal was for the shipowners' account until it was 
handed over to the Russian Navy. 

The case came before the Yokosuka Prize Court .^ A claim. 
was entered^ by.the. sljipiaaiiers for both ship and cargo. 
Judgment was given on May 4th, l^'OS, "cdildemning both ship 
and cargo. 

Decision of the Yohosuka Prize Court.^^ 

The British steamship "Aphrodite," with her cargo of about 
5,600 tons of Cardiff coal, is condemned. 

Facts arid Reasons. 

The " Aphrodite " was a merchant vessel owned by the 
claimants, her port of registry being London, and she flew the 
British flag. She shipped at Cardiff a cargo of about 5,600 tons 
of screened Cardiff coal, with the object of carrying it to. 
Vladivostook, the claimants themselves being the consignors. 
The cargo was made deliverable to order. 



* Published in the Official Gazette, Tokio, August 39th, 1905. 



The "Aphrodite." 241 

The vessel left Cardiff on December 22nd, with a clearance 
certificate and bill of health giving her destination as Saigon. 
In the ship's log also her destination was entered as Saigon, but 
at Singapore she stated that she was proceeding to Shanghai, 
and obtained a clearance certificate accordingly. She left 
Singapore on February 8th, 1905, and till February 20th her 
destination was entered in the ship's log as Shanghai ; after 
that date it was given as Vladivostock. Taking a roundabout 
route, she was proceeding on a course to take her to Vladivostock 
by the Soya Straits, when she was captured by the Japanese 
warship "Nippon Maru " on March 6th 1905, in the neighbour- 
hood of the Iterup (Vries) Straits. 

The above facts appear from the written statement of 
Lieutenant Nakajima Denzo, representing the commanding 
officer of the " Nippon Maru," from the evidence of that 
officer and of F. 0. Edmunds, master of the "Aphrodite," the 
vessel's certificate of registry, the ship's log, the bills of lading, 
the clearance certificates and the bills of health. 

The main points of the claimants' arguments were that the 
carriage of coal by a subject of a neutral country to Vladivostock, 
a belligerent port, was a public commercial undertaking open 
to neutral commerce, and that no argument was required to prove 
it to be a legitimate act iiuder International Law. Coal is not 
absolute contraband of war, and the case of the "Neptunus"'* 
captured during the war between England and Holland in 1798, 
shows that when it is carried to a port like Vladivostock, which 
has the dual capacity of a commercial port and a naval port, it 
should properly be held to be carried to Vladivostock in its 
capacity as a commercial port, and should not be regarded as 
intended for military use. This rule applies when, as in this case, 
the goods are not suitable for military purposes alone, but for a 
wide variety of industrial purposes. Even assuming that the 
goods in this case, being in course of transit to the enemy 
country, were enemy goods, they were under the protection of a 
neutral flag, and, by Ai'ticle 2 of the Declaration of Paris of 
1856, should be exempt from capture. 

The omission of Vladivostock, the vessel's objective, and the 
insertion of Saigon or Shanghai in the clearance certificates at 
the ports of departure and call, in spite of the fact that 
Vladivostock was the destination of the vessel, were not due to a 
deliberate attempt to escape capture ; this may be deduced from 
the statement in the bills of lading that the cargo was to be 
delivered to order at Vladivostock, and from the entries in the log 
from February 21bt to March 2nd, stating that the vessel was on a 
voyage from Singapore to Vladivostock. The absence of a 
clearance certificate for Vladivostock was due to the fact that 
on account of the troublesome nature of the procedure necessary 

* Reported in 6 Christopher Robinson, p. 108. 
e 12750 o 



243' T^e"Aphfod&;b.*^ 

at that time to obtain one, in order to save trouble, lier destina- 
tion was not clearly indicated to the authorities concerned.. 
Though it is impossible to understand with what intention the 
master wrote in pencil on the bills of lading that the cargo of 
coal was on the shipowners' account until it was handed over 
to the Russian Navy, and signed the statement, it is clear that, 
even if the master did it when his mind was in a normal con- 
dition, it was absolutely ultra vires for him arbitrarily to make 
such endorsements, and the endorsements have no validity, and 
the owners should accordingly not be made responsible. Although 
the master spoke as if the cargo in this case was owned by the 
shipowners, it is clear that this was only his own impression, 
and that its owners were the firm of Messrs. Harris and Dickson, 
of London. The release of the vessel and her cargo was 
accordingly requested. 

The conclusion of the Court is as follows : — 

It is a well-established fact that Vladivostock is an important 
Russian naval port in the Far East, and at present a base of the 
Russian fleet, and also that the Russian Government have made 
it a military base depot, since the commencement of the 
Russo-Japanese war, and have exerted every eifort to collect 
military supplies there, ordinary trade having almost entirely 
ceased. Therefore goods, such as coal or provisions, which may 
be contraband of war or not according to circumstances, must, 
when carried to Vladivostock, be held to be intended for military 
purposes, unless there be clear evidence to the contrary, par- 
ticularly when, as in this case, the cargo consists of best Cardiff 
coal, which is practically used in the Far East for naval purposes 
alone, and as to the destination of which for warlike purposes no 
serious doubt exists ; it may, therefore, properly be held to be 
contraband. 

The " Neptunus ""■•'' cited by the claimants was the case of an 
attempt to carry tallow to Amsterdam, and not' only were the 
circimistances of that case quite different from those of the 
present one, but the reasons for that judgment are in reality 
reasons for holding this cargo to be contraband of war. For 
Amsterdam at that time was principally a commercial port, 
and its circumstances were very different from those of Vladivo- 
stock. Brest, which is referred to in the judgment, bore more 
resemblance to Vladivostock as it now is. 

In spite of the fact that Vladivostock had been decided on 
as the destination of this vessel prior to her departure from 
Cardiff, the authorities at that port were informed that she was 
proceeding to Saigon, a nexitral port, and a clearance certificate 
and bill of health were obtained accordingly, and false entrie s 
were made in the ship's log, On her departure from Singapore 
it was stated afresrtliat she was bound for Shanghai, and a 

* Reported in 6 CLristopher Robinson, j), 108, 



The " Aphrodite." 243 

clearance certificate obtained. From her departure from that 
port on Febiia'ary 8th, 1905, till February 20th, her destination 
was entered in the ship's log as Shanghai, but, instead of 
proceeding to Saigon or Shanghai, she took a circuitous route 
and endeavoured to reach Vladivostock by means of the Soya 
Straits. Such acts as these did not arise from excusable 
carelessness, or from conveniences of navigation or procedure, 
but from a fraudulent plan deliberately to conceal her destination 
a nd to^void capture. Although the true destiiifalion" was 
entered in theTmrbf lading and in part of the official log, it 
cannot be held for that reason that this vessel did not employ 
frg^idulgaL devices. Ta sum up, the " Aphrodi1;e" carried^ 
co^^Sa^-e^war by the employment of Trauduient devic^"" 
The liability to'c"ohlIe5mation,T:0gS!her with her 1^ cargo, 

of a vessel which has been guilty of such conduct, is recognized 
both by the doctrines and practice of International Law. For 
these reasons this vessel and her cargo are liable to condemnation, 
and there is therefore no necessity to discuss the claimants' other 
arguments. Judgment is accordingly given as above. 



The claimants appealed from the above decision. The 
appeal was dismissed by the Higher Prize Court on 
August 8th, 1905. 

Decision of the Higher Prize Gourt.'^ 

The main points of the appeal of the claimants were as 
follows : — 

It is unreasonable to regard the cargo of this ship as contra- 
band of war, as it was being carried to Vladivostock, the only 
Russian commercial port in the Far East, and was intended for 
peaceful purposes. The ship belongs to a different person from 
the owner of the cargo, and there is nothing to prove that she 
took her cargo on board fraudulently. She is therefore not liable 
to condemnation, even though her cargo may be contraband of 
war. 

The penalty for carrying contraband is, as a rule, only the 
condemnation of the colitraband cargo, when it does not belong to 
the owner of the ship, and the ship merely suffers the loss of 
time, freight and expenses, but is not liable to condemnation. 
Even though contraband of war was Ibaded by fraudulent 
devices, she is not liable to condemnation, unless there is proof 
that her owner was privy to the fraud. The above is a principle 
of modern International Law, and is adhered to by England, and 
the Japanese Regulations relating to Capture at Sea| are also 
founded on this principle. In this case, there is nothing to show 

* Published in the Official Gaxette, Tokio, August 31st, 1905. 
t App. B. 

Q 2 



244 The " Aphrodite.'^' 

that the owner was privy to the fraud, but the Prize Court 
decreed the condemnation of the ship together with her cargo, 
as contraband of war, without inquiring into the question 
whether or not the owner was a party to the fraud. This 
decision was therefore unreasonable. 

The mere fact that the ship's final destination was not stated 
in the clearance and the bill of health is not sufficient to entail 
the condemnation of the ship. In order to prove that charge, 
the papers m\ist be made out with intent to evade capture by a 
belligerent ]nan-of-war, and they must be adequate for the 
piirpose. In this case, there is nothing to show that the ship's 
papers were prepared with that intention. On the contrary, the 
absence of such intention is shown by the insertion of 
Vladivostock as the destination in the bill of lading, and by the 
express statement, " bound for Vladivostock from Singapore," 
entered in the log from February 21st to March 2nd. The 
omission of the name of Vladivostock as the destination in 
the clearance and in the bill of health was merely in order to 
avoid difficulties with the British authorities. Hall says that 
generally falsity of papers is regarded with leniencj'-, and is only 
considered to be noxious when there is reason to believe that the 
fictitious documents were framed in order to deceive the 
capturing belligerent, and that they would therefore fraudulently 
oust the rights of the captors, if admitted as genuine.® Accord- 
ing to this opinion, the papers in this case do not show fraud 
sufficient to entail the condemnation of the ship. 

According to the principle adopted in the Japanese Regula- 
tions relating to Capture at Sea,| coal is regarded as contraband- 
of war only Avhen there is no doubt that it is intended for 
the military purposes of the enemy. Granting that this is in 
conformity with the fundamental principles of International 
Law, Vladivostock, the destination of this ship, is the only 
Russian commercial port as well as her only na^'al port in the 
Far East. It would, therefore, be unreasonable to draw the 
conclusion that coal, which is not absolute contraband of war, 
is intended for naval use, even when bound for that place. 
Such a cargo should be dealt with according to the rule laid 
down in the case of the " Neptunus "if in the Anglo-Dutch War 
of 1798, and be treated as consigned to Vladivostock as a com-- 
mercial port, and intended for peaceful purposes. The Prize 
Court was wrong both in fact and in the application of the above 
case when it regarded Vladivostock as a purely naval port and 
compared it to Brest, the naval port mentioned in the 
"Neptunus." The Prize Court ignored the fact that ordinary 
trade is still being carried on at Vladivostock, and it also held 
that Cardiff coal is chiefly used in the Far East for naval 



* W. E. Hall, " International Law," 4th edition, p. 760, 

t App. B. 

j Reported in 6 Christopher Robinson, p. 108, 



the "Aphrodite." 245 

purposes, notwithstanding the fact that it is used for industrial 
as well as military purposes both in the West and in the Far 
East. These findings were not founded on the evidence and 
cannot be supported. 

As to the treatment of conditional contraband on board a 
neutral ship, the English usage is to subject it to pre-emption, 
and according to the Continental principle adopted by the 
Institute of International Law, the belligerent is only allowed to 
capture on giving compensation or to make a purchase (pre- 
emption). It would be very harsh if Japan should condemn 
goods unconditionally, without regard to the above-mentioned 
principle and usage. The claimants therefore urge that due 
regard should be paid to the fact that this cargo, if contraband 
at all, was only conditional contraband, the property of neutrals, 
as the Japanese prize law is founded on the English system. 

For the above reasons, the decision of the Prize Court should 
be reversed and the ship and her cargo released. 

The following were the main points of the Procurator's 
reply :— 

It is not disputed that the ship is the property of the 
claimants, the Cornhill Steamship Co., and it may be inierred 
from the absence of any charter-party, and from the statements 
of the master and the biU of lading, that they were also the 
consignors of the cargo. When the owner of the ship is the 
consignor of the cargo, it is proper to hold that he is the owner 
of the cargo, until the contrary is proved. The cargo in this 
case is double-screened Cardiff coal of the best quality, which is 
rarely used in the Far East except for naval purposes, and its 
destination, VTadivostock, is the , only naval base of the enemy 
in the East. If all these facts are taken into account there can be 
no doubt that this cargo was intended for the use of the enemy 
navy. Besides, the master pretended when he obtained a clear- 
ance on leaving England, that Jihe destination of the cargo was 
Saigon, and, when leaving Singapore, that it was Shanghai ; and 
he made similar false statements in the log. 

The ship's papers which contain the false statement about 
her destination are the log, the clearance and the bills of health 
obtained in different ports. Moreover, the ship belongs to the 
same owners as the captured ship " Venus,"® and the nature of 
her cargo, the place of her ' destination, and the fraudulent 
devices resorted to by this ship, are exactly the aame**as in' the 
case of the " Venus." Hence it must be concluded that the false 
statements in the clearance and in the other papers were made 
to the authorities by her owners Or their representative, as was the 
case with the "Venus " ;' and, consequently, there is no doubt 
that the owners were privy to the fraud committed by the ship. 

* See .p. 254. 



246 The " Aphrodite:" 

The clearance and the bill of health are important papers 
which a captor must examine in order to ascertain a ship's 
destination. There was fraud in those papers, and false state- 
ments in the ship's log, and it is beyond doubt that these 
fraudulent devices were resorted to for the purpose of misleading 
the captor. 

It is certain that double-screened Cardiff coal of the best 
quality is rarely used in the Far East for any purpose other 
than naval, and Vladivostock is undoubtedly the enemy's naval 
base, even granting it is also a commercial port. Therefore, 
this cargo must be taken as intended for the use of the enemy 
navy. 

It is admitted by modern International Law that a belligerent 
has the right to condemn contraband goods, even if they can be 
usedfor peaceful as well as military purposes. Payment of com- 
pensation on condemnation of conditional contraband is a matter 
dependent on special treaty or special usage, and is not yet 
entitled to be regarded as the rule o;f International Law. For 
these reasons, the appeal is groundless, and should be dismissed. 



The reasons for the decision of the Court are as follows : — 
Vladivostock is an important Russian naval port, and it is 
well known that since the outbreak of the Russo-Japanese War, 
the Russian Government have made it the base of their squadron 
and a military depot, where arms, provisions, coal, and other war 
material were accumulated in large quantities, and that ordinary 
trade had almost entirely ceased. So it was not unreasonable that 
the Prize Court should regard the coal consigned to Vladivostock 
as contraband of war intended for the use of the Russian forces. 
Moreover, being Cardiff coal of the best quality, which is very 
costly in the Far East and rarely required except for navies in 
time of war, it is beyond doubt that this coal was intended for 
the Russian navy. The appellants argued that the precedent of 
the " Neptunus ""■" should be followed, and the cargo be regarded 
as intended for peaceful use ; but the nature of this cargo and 
the circumstances of its destination are entirely different from 
those in the " Neptunus "® case, so it is needless to say that that^ 
case cannot be followed here. 

It is the established rule of International Law that all con- 
traband of war is liable to condemnation. Pre-emption and 
capture on condition of giving compensation, which are suggested 
by the appellants, are matters dependent on special treaty or 
special usage, or indeed merely doctrines of certain jurists, and 
are not yet admitted as the rule of International I jaw. The 
non-observance of such usage or doctrines by the Prize Court 
cannot be regarded as contrary to International Law. 

* Reported ia 6 CliriBtoptier Eobiusou, p. 108. 



The " Aphrodite:* 247 

According to International Law, wten the object of a ship's 
voyage is the carriage of contraband of war, as in this case, the 
ship may be condemned, and this Court, deems that penalty 
reasonable. The whole cargo of this ship was canfe^nd of 
war, and althoiigET the owners gave orders to the master at the 
time of her departure to proceed to Vladivostock . a false dest i- 
natio n was given iiL the log, clearance, and other papers, 
thai is to'say,' she carried contraband of war by fraudulent 
(jevices. ^ , , «---« ...„.«_ _ 

-*— HPO!r these reasons the decision of the Prize Court condemning 
both ship and cargo was quite right. There is no need to deal 
with the other points raised by the appellants. 

The appeal in this case is therefore dismissed. 



248 



THE " WILHELMINA." 

The " Wilhelmina " was a Dutch, ship owned by the Gulf of 
Holland Steamship Company. 

In August 1904, she took on board a cargo of steam coal at 
Cardiff for Vladivostock. After delivering this cargo to the 
Eussian aiithorities the master received orders from the ship 
owners on December 1st, 1904, to go to Shanghai to take another 
cargo of coal for Vladivostock. He left Vladivostock on 
December 12th, 1904, and reached Shanghai on the 24th. 

On the 28th he received an order from the owners to take on 
board a cargo of steam coal, and under the direction of Alexander 
Belfield & Co. he shipped a cargo of 6,897 tons of Welsh coal 
for Astoria, U.S.A., and obtained a clearance certificate for 
Astoria from the Dutch Consul at Shanghai. The ship sailed 
on January 13th, 1905. She was captured on January 16th in 
latitude 35° 2' N. and longitude 129° 24' E. about 15 miles east 
of the Korean Island of ChyoUyong. There was no charter- 
party nor biU of lading on board. 

The owners of the ship claimed her release before the Sasebo 
Prize Court. The ship was condemned on May 26th, 1905, on 
the ground that the cargo was contraband, and. that fraudulent 
devices had been employed in its carriage, and also upon the 
ground that the owners must be held to be owners of the 
cargo.* 

An appeal to the Higher Prize Court was dismissed on 
August 26th, 1905, for the same reasons. 



CARGO ex " WILHELMINA." 

Neutral ship — Cargo of coal — Destination for naval base of the enemy — 
Charter-party not on hoard at the time of captwe — Proof of interest of 
the claimant in the cargo. 

A neutral ship was captured carrying a cai'go of coal to Vladivostock. 
The cargo was claimed by a person alleging himself to be the owner of the 
cargo and charterer of the ship. He produced a chaiiier-party which was 
not on board at the time of captm-e, and which was dated subsequently to 
the order given to the master to load the cargo. 

Held that the claimant had not proved his interest in the cargo, and that 
the latter was contraband. 

The " Wilhelmina," a Dutch ship, carried a cargo of Welsh coal 
to Vladivostock in 1904, and the master there received orders 
from the owners on December 1st to go to Shanghai to take on 
board another cargo of coal. He accordingly went to Shanghai, 

* See the case of the claim to the cargo. 



(largo 6x " Wilhelmma.'* ' 249 

took a cargo of 6,897 tons of coal on board and left after obtain- 
ing clearance for Astoria, U.S.A., on January 13th, 1905. The 
ship was captured proceeding to Vladivostock on January 16th. 
There was no charter-party nor biU of lading on board at the 
time of capture. 

A claim way made to the cargo by Daniel Milberg who 
produced a charter-party between himself and the owners, dated 
December 9th, 1904. , The case was heard by the Sasebo Prize 
Court and the cargo was condemned on May 16th, 1905. 

Decision of the Sasebo Prize Court. 
The cargo on board the '" Wilhelmina " is condemned. 

Facts and Eeasons. 

The claimant produced a charter-party concluded on 
9th December 1904, between the claimant and Porter the agent 
of the owners of the " Wilhelmina," and argued that he had 
chartered the ship and was the owner of the cargo. But, having 
regard to the papers found on the ship and the evidence of the 
master, the facts as represented by the charter-party cannot be 
true, so that the conclusion of the claimant cannot be accepted. 
Further, no charter-party nor bill of lading was found on the 
ship, and as the master took on board the cargo at Shanghai by 
the orders of the shipowners which he received at Vladivostock 
and Shanghai, it must be taken that the cargo belonged to the 
shipowners. As, therefore, the claimant has no interest in the 
cargo the claim must be dismissed. 

The cargo in this case is Welsh coal, which at this time is 
mainly required for warships. Its destination was Vladivostock, 
the base of the Russian Fleet. On her last voyage the ship 
carried a cargo of coal from Cardiff and delivered it to the 
Russian authorities at Vladivostock. It is therefore clear that 
the cargo was intended, for the enemy's military purposes and it 
is therefore contraband, and so liable to condemnation according 
to International Law. 

Judgment is therefore given as stated above. 

An appeal to the Higher Prize Court was dismissed on 
August 26th, 1905, on the first of the grounds given by the 
Sasebo Prize Court. " 



THE "LETHINGTON." 



The " Lethington " was a British ship owned by Robert Rea. 
On November 1st, 1904, she was chartered by Pyeman, Watson 
& Co. as agents for E. A. Grapovski, a Russian subject. She 
took on board a cargo of 6,495 tons of Welsh coal at Cardiff 
and sailed on November 11th, 1904. The charter-party and 



250 The " Lethington:' 

bills of lading gave the destination as Hong Kong, Shangliai 
or Kiaochau Bay, but the master was told to proceed from 
Hong Kong to Vladivostock unless he received orders to the 
contrary. At Hong Kong the vessel obtained a clearance for 
Shanghai, but proceeded directly towards Vladivostock and' 
was captured 18 miles west of Oki Island on January 12th, 1905. 
The owners claimed the release of the ship, but she was 
condemned by the Sasebo Prize Court on April 10th, 1905, 
and an appeal to the Higher Prize Court was dismissed on 
August 8th, 1905. 



THE "OAKLEY. 



The facts in the case of the " Oakley " are identical with 
those in the " Lethington," except that she left Cardiff on 
November 17th, 1904, and was captured on January l8th, 1905, 
in latitude 34° 22' N., and longtitude 129° 55' E. The decisions 
of the Sasebo Prize Court condemning the ship and of the 
Higher Prize Court dismissing an appeal by the owners were 
given on the same days as in the case of the " Lethington." 



THE "BURMA" AND THE "SIAM." 

The " Burma " was an Austrian ship owned by a Hungarian 
Company. On November 11th, 1904, she was chartered by 
Mann, George & Co. and left Cardiff with a cargo of 4,000 tons 
of Welsh coal on November 19th. The bills of lading were 
"to order "and the destination given in the charter-party , as 
Hong Kong, Shanghai or Kiaochau Bay. She reached Hong 
Kong on January 9th, 1905, where she obtained clearance, for 
Kiaochau Bay. After following a circuitous course she was 
captured off Cape Shukubi on January 25th, 1905. 

The owners made a claim for the release of the ship before, 
the Sasebo Prize Court. Judgment was given on April 28th, 
1905, condemning the ship for carrying contraband with false 
papers. 

The facts in the case of the " Siam " which was captured 
near the Tsugaru Straits on January 31st, 1905, were otherwise 
exactly similar to those in the case of the " Burma." 

In both cases appeals were carried to the Higher Prize Court 
and dismissed on August, 26th, 1905. 

No claims were made in respect of the cargo. 



THE "APOLLO. 



The " Apollo " cleared fi-om Barry on December 7th, 1904, with 
a cargo of 5,770 tons of screened Welsh coal. The shipowners 



The "Apollo." 2S1 

were the consignors of the cargo and the shipment was made 
deliverable to order. The " Apollo " obtained a clearance and 
bill of health for Bangkok. She called at Port Said, Colombo 
and Singapore, where she obtained a clearance for Shanghai. 
She did not take the direct route, but endeavoured to reach 
Vladivostock by the Soya Straits and was captured on February 
14th, 1905, in the neighbourhood of the Iterup (Vries) Straits by 
the Japanese warship " Hong KongMaru." The bills of lading 
gave Vladivostock as the destination of the cargo. 

The Yokosuka Prize Court condemned both the " Apollo " 
and her cargo on Jime 1st, 1905. 

The owners appealed to the Higher Prize Court, but the 
appeal was dismissed on August 26th, 1905. 



THE "SYLVIANA." 



The " Sylviana " was a British ship owned by Furness, 
Withy & Co., Ltd. On December 14th, 1904, she left Barry 
wdth a cargo of 6,534 tons of Welsh coal deliverable to the 
shipowners' order. At Hong Kong she obtained a clearance for 
Shanghai, and continued to enter Shanghai, as the destination in 
the log, but on arrival ofE Shanghai she changed her course and 
was captured on her way to Vladivostock in latitude 33° 35' N. 
and longitude 128° 45' E. 

She was condemned by the Sasebo Prize Court on May 15th, 
1905, and an appeal to the Higher Prize Court was dismissed 
on August 26th, 1905. 



THE "POWDERHAM." 



The " Powderham " was a British ship owned by the 
Powderham Steamship Company of Pljonouth. She took on 
board a cargo of 4,000 tons of Welsh coal and left Plymouth 
on November 12th, 1904, with orders tp deliver the cargo 
at Vladivostock. She was captured on February 19th in 
latitude 34° 41' N., longitude 129° 3' E., proceeding to Vladivos- 
tock. The master stated that the ship was chartered by Pyeman, 
Watson & Co., and that the cargo was their property, but no 
documentary evidence of these facts was produced. There 
was no charter-party nor bill of lading on board, the master 
stating that he had destroyed the latter on leaving Hong Kong 
as they were made out with that port as the destination. 

The ship was condemned by the Sasebo Prize Court on 
June 11th, 1905, and an appeal to the Higher Prize Court, 
was dismissed on September 5th, 1905. 



252 

THE "SEVERUS." 

The " Severus " was a German steamship owned by 
Anderson of Hamburg. On November 24th, 1904, she left 
Cardiff with a cargo of 3,845 tons of Welsh coal consigned by 
the Powell Dufferin Colliery Co. to order at Manila. She also 
obtained clearance for Manila, bnt after calling at Labuan she 
did not touch at Manila, but proceeded on a course for Vladi- 
vostock, and was captured after passing the Iterup (Vries) Straits 
on February 23rd, 1905. The master stated that he was making 
for Olga Bay. 

The case came before the Yokosuka Prize Court on a 
claim by the shipowners. The Court attached importance 
to the fact that the master of the " Romulus," which belonged, 
to the same owner and was also captured carrying a cargo of 
coal, had stated that the " Romulus " was going to Olga Bay 
to obtain a pilot for Vladivostock, and upon this evidence, 
coupled with the fact that Manila was obviously a false destina- 
tion, held that the true destination of the " Severus " was also 
Vladivostock. 

The ship was accordingly condemned on April 28th, 1905. 



THE " ROMULUS." 



The " Romulus " was a German steamship owned by 
Anderson of Hamburg. 

On December 11th, 1904, she left Cardiff with a cargo of 
3,500 tons of Welsh coal deliverable to order of the Powell 
Dufferin Colliery Co. at Hong Kong. Hong Kong was also 
given as the destination in the clearance certificate and 
manifest. 

She called at Labuan on February 1st, 1905, and passed 
through the Iterup (Vries) Straits, but being damaged by 
drift ice she came back and was proceeding to Vladivostock 
through the Tsugarii Straits when she was captured on 
February- 26th. 

The owners claimed the release of the ship before the 
Yokosuka Prize Court. There was evidence that the crew had 
been offered extra wages to go to Vladivostock, and the master 
stated that he had orders to call at Olga Bay for a pilot for 
Vladivostock, though he alleged that this intention had been 
abandoned owing to the damage caused by the ice. 

The Court held that the damage done was insignificant and 
that the ship was making for Vladivostock at the time of capture, 
and accordingly condemned the ship on May 16th, 1905. 



253 

THE "EASBY ABBEY." 

The British steamship " Easby Abbey " belonged to Pyeman, 
Watson & Co., of Cardiff. In accordance with a charter-party 
made in London on November 24th, 1904, between the o^vners 
and Mann, George & Go., the " Easby Abbey " loaded a cargo of 
4,005 tons of screened Welsh coal at Port Talbot. In the 
charter-party, the agreement with the crew, and the bills of 
lading, the destination was given as Hong Kong, Shanghai or 
Kiaochau Bay, and in tJie bills of lading " to order " was 
inserted instead of the name of a consignee. 

The vessel left Port Talbot on December 7th, 1904. At 
Hong Kong, Kiaochau Bay was inserted in the clearance as her 
destination. After leaving Hong Kong the " Easby Abbey " 
made for Vladivostock by the Soya Straits, and arrived ofE the 
south end of Iterup (Vries) Island on February 26th, 1905. Here 
she was surrounded by drift ice, and her hull was damaged ; 
she accordingly lay to, and while endeavouring to repair the 
damage was captured on the following day by the Japanese 
warship " Nippon Maru." On being visited by an officer fi-om 
the "Nippon Maru," the master of the "Easby Abbey" stated 
that she was bound for Shanghai, but afterwards admitted to 
him that her real destination was Vladivostock. 

A claim was entered for the release of the ship by Pyeman, 
Watson & Co., the owners, but the ship was condemned by the 
Yokosuka Prize Court on May 4th, 1905. 

The claimants appealed to the Higher Prize Court, but the 
appeal was dismissed on August 8th, 1905. 

Separate proceedings were taken in the Yokosuka Prize 
Cotirt in respect of the cargo of coal carried by the " Easby 
Abbey, " the release of which was claimed by Mann, Greorge & Co. 
The coal was condemned as contraband by the Yokosuka Prize 
Court on May 4th, 1905, and an appeal to the Higher Prize 
Court against such decision was dismissed on August 8th, 1905. 



THE "VEGGA." 



The " Vegga " was a Swedish ship owned by the Vegga 
Steamship Co. She took on board a cargo of 3,615 tons of 
Welsh coal and left Barry on December 10th, 1904, giving out 
that her destination was Saban,Plonay Island. After calling at 
that port she proceeded to Labuan and thence to Hong Kong, 
where she obtained a clearance for Shanghai. After leaving Hong 
Kong she entered Vladivostock as her destination in the log 
and was captured on March 3rd, 1905, in latitude 34° 10' N., 
longitude 127° 43' E. 

The owners claimed the release of the ship before the Sasebo 
Prize Court, alleging that the cargo was the property of Harris, 



254 The "Vegga." 

Dickson & Co., and produced a bill of lading which was not on 
board at the time of capture. It was admitted that Vladivostock 
had been determined upon as her "destination from the outset. 

The Sasebo Court condemned the ship on June lOtli, 1905, 
upon the ground that the owners were also owners of the cargo, 
and an appeal . to the Higher Prize Court was dismissed on 
September 5th, 1905, on the ground that fraudulent devices 
had been eniployed in the carnage of contraband, so that the 
question of ownership was not material. 



THE "VENUS." 



The "Venus" cleared from CardifE with a cargo of about 
5,200 tons of screened Welsh coal on December 25th, 1904. The 
shipowners were the consignors of the coal and the shipment 
was made deliverable " to order." A.t Cardiff the " Venus " gave 
her destination as Saigon in the clearance and bill of health. 
At Port Said she again gave Saigon as her destination. At 
Singapore she shipped a crew, and gave her destination as 
Shanghai for that purpose. Shanghai was also inserted as the 
destination in the clearance and the receipt for light dues. From 
the time the " Venus " left Singapore up to the date of her 
capture, Shanghai was inserted in the log as the destination. 
Avoiding the. direct route, the "Venus" was making for 
Vladivostock by the Soya Straits when she was captured by the 
Japanese warship " Nippon Maru " at 1 p.m. on March 4th, 1905, 
in the neighbourhood of the Iterup (Vries) Straits ; two days 
before the capture of the "Aphrodite." 

The Yokosuka Prize Court condemned both the " Venus " 
and her cargo on May 4th, 1905. 

The owners appealed to the Higher Prize Court, but the 
appeal was dismissed on August 8th, 1905. 



THE "HARBARTON. 



The "Har barton " was a British ship owned by the Hartland 
and Bartlett Steamship Co., Ltd. On November 11th, 1904, she 
was chartered by Mann, George & Co., and left Cardiff on 
November 30th, 1904, with a cargo of 5,000 tons of Welsh coal. 
In the charter-party her destination was given as Hong Kong, 
Shanghai or Kiaochau Bay, and the bills of lading were made 
out "to order" at Kiaochau Bay. She left Hong Kong on . 
February 10th, 1905, having obtained a clearance for Kiaochau 
Bay and continued to enter that port as her destination in the 
ship's log. On March 1st she attempted to pass the Iterup 
(Vries) Straits, but was obliged to turn back on account of the 



The " HarbaHon." 255 

weather ; on the 3rd she succeeded in passing the straits, but 
was unable to proceed on account of the drift ice, and returned 
through the straits. On March 18th she was captured whilst 
making a course for Vladivostock, in latitude 45° 13' N. and 
longitude 149° 6' E. 

The owners claimed the release of the vessel before the 
Yokosiika Prize Court, which gave judgment condemning the 
ship on June 7th, 1905, and an appeal to the Higher Prize Court 
was dismissed un August 28th, 1905. 



256 



THE "SCOTSMAN." 

Neutral ship — Conditional contraband — Rice — Destination for a base of the 
enemy forces — Owners of the ship not owners of the cargo — Evidence of 
complicity — Condemnation. 

A neutral sMp was captured oarrying a cargo of rice to Vladivostock. 
The owners were not owners of the cargo, which was consigned " to order." 
There was no falsification of papers, but the charter-party was not on board, 
and, when produced, showed that the owners had the light to an ice-breaker 
free of charge. All the ice-breakers at Vladivostock were in the service of 
the Russian Government. The sum paid by the charterers was considerable, 
and the ship was insured at a heavy premium. The course followed by the 
ship was not the direct coui'se to "Vladivostock. 

Held that the cargo was contraband, and the complicity of the owners in 
the enterprise was a reasonable inference, and that the ship should therefore 
be condemned. 

The "Scotsman," a British ship of 1,679 tons, was chartered 
by a firm, R. Perez & Co., at Shanghai, to carry a cargo of 
Saigon rice to Vladivostock, in January 1905. Whilst on her 
course to that port by a circuitous route, she was captured in 
the Straits of Tsugaru. There was no charter-party nor a copy 
of it on board, but the other ship's papers showed Vladivostock 
as the destination, the bills of lading being made out " to order." 
When the charter-party was produced, it was found to contain 
a clause entitling the ship to the "service of an ice-breaker free of 
charge if required, and it appeared that all the ice-breakers were 
in the service of the Russian Government. The sum of 6,250?.. 
was paid by the charterers, and the master stated that the 
owners, anticipating capture, had insured the ship at a heavy 
premium. 

The owners, the London Steamship Co., Ltd., made a claim 
for the release of the ship. The claim was heard by the 
Yokosuka Prize Court on the 7th June 1905, and dismissed. 

Decision of the Yokosuka Prize CourtS' 
The British steamship " Scotsman " is condemned. 

Faots and Reasons. 

The "Scotsman" is the property of the claimants, and is a 
merchantman, registered at London, flying the British flag. 
According to the charter-party entered into at Shanghai, China, 
on the 4th January 1905, between Dodwell & Co. of Shanghai, 
agents for the claimants, and R. Perez & Co., the ship loaded 
at Saigon about 20,000 bags (about 134,000 poods in weight) of 
Saigon rice, with the object of carrying it to Vladivostock. The 

* Published in the Oficial Gazette, Tokio, September 28th, 1905, 



The " Scotsman." 257 

consignors were P. Rose and P. Weil, of Saigon, agents of 
R. Perez & Co., and the bills of lading were made out "to 
order." The charter-party was not on board. On the 24th 
January 1905 the ship left Saigon for Vladivostock, and arrived 
at Hongkong on the 29th of the same month. After leaving 
the latter port on the 1st of February, she purposely t ook a 
c ircuitous r oute, and while attempting To ' proceVd'To "VTaSi- 
vo§tocli~^ the Straits of Tsugaru, at 7 p.m. on the 14th 
February she was captured by the Japanese Torpedo Boat No. 30 
near the Shiokubi lighthouse, in the Straits of Tsugaru. 

The above facts appear from the statement submitted by 
Lieutenant R. Tominaga, representing the commanding officer 
of Torpedo Boat No. 30, the evidence given by Lieutenant N. 
Nagasama, representing the commanding officer of Torpedo 
Boat No. 30, and Edward Albert Mackenzie, master of the 
" Scotsman," the certificate of registry, the clearances from 
Saigon and Hongkong, the manifest, bill of lading, log-book, 
charter-party produced by the claimants, certificate of R. Perez 
prepared at the Spanish Considate at Shanghai, &c. 

The substance of the claimants' argument was as follows : — 
Even if the cargo is contraband of war, the ship should not 
be condemned with it, for the cargo was not the property of the 
owners of the ship. Moreover, the owners had no knowledge 
of the carriage of contraband of war. The destination of the 
ship and cargo to Vladivostock was clearly stated in the ship's 
papers, and no false statement was made in them. The charter- 
party was not on board at the time of capture, because the 
contract was concluded at Shanghai while she was at Saigon, 
and there was no time to forward it. 

Moreover, rice, even thoxigh it is destined for a port where 
the enemy forces are concentrated, may be used for other than 
military purposes, as, for instance, the support of the civil 
population. The unreasonableness of including rice among 
contraband goods has been pointed out by many Continental 
jurists. In England also, during the South African War, 
Professor Holland, after stating the English usage, argued that 
provisions should be contraband of war only when clearly 
destined for the enemy army, navy, or forts, and even in such 
cases the right of pre-emption should be exercised. During the 
Franco-Chinese War, in 1885, when France, on grounds of 
military necessity, abandoned her traditional principle and 
declared rice contraband of war, England made a strong protest 
and insisted upon the unreasonableness of including it among 
contraband goods. In the Chino-Japanese War England and 
France adopted an attitude of unqualified opposition to China 
when the latter country declared rice contraband of war, and to 
this question Japan, it seems, did not object. Thus almost all 
the Powers agree in not considering rice contraband of war, and 
this principle is generally recognised by jurists. 

e 12750 R 



258 The " Scotsman." 

Admitting that Japan declared rice contraband, tEis was 
only during the Russo-Japanese War, and only when clearly 
destined for the enemy forces, and it is proper that when rice 
is carried to a port like Vladivostock, which has the dual 
character of a commercial and a naval port, it should be 
considered as destined for Vladivostock in its character of a 
commercial port, and not as intended for military use. This 
is clear from the decision in the case of the " Neptunus,"* 
captured in 1798 during the Anglo-Dutch War. Moreover, 
rice is not a usual food for Russians, while on the other 
hand there are many foreigners residing at Vladivostock 
who ordinarily use it. With regard to the doubt as to the 
consignee, this was owing to the fact that the bill of lading was 
prepared in the form making the cargo deliverable " to order," 
and there is nothing strange in this. For the above reasons, 
the ship should be released. 

The conchision of the Court is as foUows : — 

Vladivostock is the only Russian naval port in the East, and 
is actually the base of a Russian squadron. Since the outbreak 
of the Russo-Japanese War the Russian Government has made 
it a depot where they have been vigorously collecting military 
stores, and ordinary trade there has almost ceased. These 
are conspicuous facts, and any goods such as rice, the 
cargo in this case, which are contraband of war or not 
according to circumstances, should be considered, when con- 
signed to Vladivostock, as intended for military use, unless there 
is strong evidence to the contrary. 

This conclusion is further justified in this case, since, 
in spite of the statement in the bill of lading that the cargo 
was to be delivered to order, the master states that upon his 
arrival at Vladivostock he was to be informed as to the con- 
signee by an ice-breaker ; and in the charter-party there is an 
article to the effect that the ship was entitled, on arrival at 
Vladivostock, to the services of an ice-breaker free of charge if 
one should be required. Now, according to the Handbook of 
Siberia, 1901-1902, published by the authority of the Russian 
Maritime Provinces, the ice-breakers of Vladivostock belong to 
the Siberian Squadron of the Russian Navy. 

The gross tonnage of this ship is 1,679 tons, and according 
to the manifest the value of her cargo was about 210,000 francs ; 
but the charterer paid the exorbitant sum of 6,2501. sterling 
for her voyage from Saigon to Vladivostock. Again, according 
to the statement of the master, he thought that the owners paid 
a high rate of insurance for this voyage, anticipating the 
capttire of the ship, so that it is impossible to consider the 
shipment in this case as an ordinary mercantile transaction. 

* Reported in 3 Christopher RoMuson, p. 108, 



The " Scotsman." 259 

Although, the claimaats argtied that rice is not a usual food 
for Russians, yet, according to the food Regulations of Russia, 
rice is used by the Russian forces as food, and it is a well-known 
fact that the Russian forces in the East are employing Chinese, 
Koreans, and others, who eat rice as their usual food. Taking 
these facts into account, the rice on board this ship must be 
assumed to be military stores belonging to the Russian Govern- 
ment, and consequently it is proper to consider it as contraband 
of war. 

The claimants cite the opinion of Continental jurists and 
of the British writer. Professor Holland, and instances in the 
Franco-Chinese and Chino-Japanese Wars, and state that almost 
all the Powers agree in not considering rice as contraband of 
war, and that the principle is generally recognised by jurists. 
But Professor Holland and other British jurists affirm that rice 
should be considered contraband when clearly destined for the 
enemy armj'-, navy, or forts. In the present war, when Russia 
declared rice absolute contraband. Great Britain made a protest 
in which she stated that she would consent to the belligerents 
including rice among conditional contraband, but that to declare 
it absolute contraband was against International Law and usage 
{see Pari. Paper, Russia No. 1 of 1905, p. 9, instructions given 
to Sir Charles Hardinge, Ambassador accredited to St. Peters- 
burg, by Lord Lansdowne, British Minister of Foreign Affairs, 
dated the 1st June 1904). From these one can easily see what 
the British principle is. The same principle is maintained by 
the United States of America, as is clear fi-om the practice of 
that State and from the opinion of her jurists. Russia, too, 
in this war declared rice contraband, as has been stated. Thus 
the argument of the claimants that all Powers agree in holding 
rice as non-contraband is entirely groundless. In the case in 
the Franco-Chinese War, cited by the claimants. Great Britain 
protested, as she did to Russia, against France declaring rice 
absolute contraband, but not to her treating it as conditional 
contraband. Again, admitting the instance in the Chino- 
Japanese War cited by the claimants, yet Japan, in Article 10 
of her Regulations relating to Capture at Sea at that time,''-' 
included provisions among conditional contraband, and no 
alteration was made during that war. 

The claimants also argued that the ship did not carry 
her charter-party because there was no time to forward it. 
But according to that document, the contract was concluded, 
at Shanghai on the 4th January 1905, while the ship was at 
Kobe ; and as the ship left Saigon for Vladivostock on the 24th 
of the same month, arrived at Hongkong on the 29th and left 
on the 1st -February, there was sufficient time to receive it, 
and yet it was not on board. Moreover, the owners, as has 

* See Takabashi, " International Law during the Chino-Japanese War," 
p. 178, 

B 2 



260 The " Scotsman:' 

been stated, chartered the ship to carry rice to Vladivostock, 
paying an exorbitant sum of money ; they also paid a very high 
rate of insurance, expecting capture by Japanese men-of-war. 
According to the master's statement, he was to be told who was 
the consignee by an ice-breaker belonging to the Russian 
Navy, and in the charter-party there is an article entitling the 
ship to receive assistance from an ice-breaker free of charge. 
According to the master's statement, he received orders from 
the owners concerning this voyage, a nd the ship j^ urposely to ok 
a circuitQjia. course. in going to Vladivostock. The cargo con- 
siste'^ranothing but rice^which"!!^ contraband of war. Con- 
sidering these facts, it may be assumed that the owners not 
only kneiw that the cargo consisted of military stores belonging 
to the Russian Government, but that they deliberately engaged 
in the enterprise. In other words, the claimants employed 
their ship to assist the enemy ; and when a ship is guilty of 
such an act she is liable to condemnation with the contraband 
cargo. This is recognised both in the theory and practice of 
International Law. 

As this ship is liable to condemnation for the above reasons, 
there is no need to answer the other points of the claimants' 
argument. 

Judgment is therefore given as stated above. 

From this decision the owners appealed to the Higher Prize 
Court. The appeal was dismissed on the 5th September 1905. 

Decision of the Higher Prize Court.- 

The substance of the appellants' argument was as follows :— 

The decision of the Yokosuka Prize Court, given on the 

7th July 1905, condemning the " Scotsman," is wrong ; and the 

owners reqiiest that it be over-ruled and a new decision given 

releasing the ship for the following reasons : — 

The carriage of the cargo by this ship was a legitimate 
mercantile transaction which neutrals are at liberty to embark 
on, and the condemnation of the ship with the cargo by the 
Prize Court on the ground that she was assisting the enemy 
was unreasonable. 

A ship which undertakes the carriage of contraband goods 
undertakes a mercantile transaction, so that, excepting the case 
in which the owner of the ship and the owner of the cargo are 
the same, the ship should not be condemned. On the other 
hand, in the case of an owner who has rendered unneutral 
service, the punishment is condemnation of the ship. This 
is a general rule of International Law. The Prize Court, 
however, ignored this rule and gave a decision condemning the 



* Published in the Official Gazette, Tokio, September 28th, 1905. 



The '' Scotsman." 261 

snip ou tlie ground that tlie ship was liable to condemnation 
witli tlie contraband cargo for having rendered assistance to 
the enemy. The decision is, therefore, unlawful. 

With regard to the penalty for carrying contraband, the 
general rule of International Law is not to inflict any punish- 
ment upon the ship except the loss of time, expense, and freight. 
But sometimes, when the owner of the ship is also the owner 
of the contraband cargo, or when the ship employs fraudulent 
devices in carrying the conti'aband cargo, the ship is condemned 
witli the cargo. In such cases the collusion of the owner in 
the carriage of contraband is clear, and as he is guilty of illegal 
condiict, the ship used for the purpose is of course liable to 
condemnation. But in this case the ship carried merchandise 
belonging to another person, and was not engaged for the 
carriage of contraband. Even if it be admitted that the cargo 
was contraband, she did not carry it knowingly or by fraud. 
Yet the Prize Court held that she intended to assist the enemy 
and decreed her condemnation, as if she were guilty of \ni- 
neutral service. This was wrong. 

In carrying the cargo from Saigon to Vladivostock, the ship 
did not employ fraudulent devices. This is clear from her 
papers, in which it was stated that she was bound for Vladi- 
vostock, and tu none of which was a false destination mentioned. 
Thus there is no doubt that she never tried to conceal her 
destination. Yet the Prize Court, summing up the facts set 
forth in the decision, held that the ship was not engaged in a 
mercantile transaction, but was guilty of unneutral service, as 
she carried cargo knowing it to be military stores belonging to 
the enemy. The decision was, therefore, based upon a misin- 
terpretation of the facts. 

Vladivostock is Russia's only naval port in the East, but at 
the same time it is her only commercial port. Its trade was 
not suspended when this cargo was carried, and merchants of 
neutral States were carrying on business there. When goods, 
useful in peace as well as in war, are in transit to a port 
having the dual character of a commercial and a naval port, 
the practice is to consider them as carried to that place in its 
character of a commercial port. This is clear from the decision 
in the case of the " Neptunus,"''* captured in 1798 during the 
Anglo-Dutch War. It is, therefore, contrary to precedent to 
consider this ship as engaged in the carriage of contraband. 

Ice-breakers belong to the Russian Government, but they 
Ijreak ice for vessels of all nationalities that go in or out of 
Vladivostock, and give them other assistance in time of war as 
well as of peace. Therefore, the fact that there was an article 
in the charter-party stating that the ship was entitled to the 
assistance of an ice-breaker free of charge when recxuired, or 
that the master thought he vsrould learn from such a vessel who 

* Reported in 3 Chriatoplier Robinson, p. 108. 



2Qt the " Scotsman:' 

the consignee was, is no reason for holding that the cargo of 
this ship was military stores destined for the Russian forces. 

The payment of a large sum for the charter of the ship and 
the payment of a high rate of insurance by the owner are 
occurrences common in time of war. Especially when a ship 
has to make a voyage to a bellifgerent port lying near the theatre 
of war, higher rates of charter and insurance will be charged 
than in time of peace, in order to provide against war risks 
ill addition to the ordinary risks of the sea. This is a mer- 
cantile practice generally recognised, and there is nothing 
strange in it. To consider it extraordinary is a gross mistake 
of fact. 

The ship was not provided with a charter-party because 
there was no time to forward it, the place where the contract 
was signed being far distant from the place where the ship was 
lying. Even if it be admitted that there was sufficient time, 
the default was only negligence of the agent and cannot be 
considered as an attempt to deceive on the part of the owner. 
The absence of the charter-party from a ship's papers is no ground 
for assuming Lhat the conduct of the owners was fraudulent. 
Moreover, the omission of the charter-party is not sufficient to 
deceive a captor. ^ 

The reason why the ship, in going to Vladivostock, took a 
circuitous course through the Pacific Ocean was, as is clear from 
the statement of the master, that the China Sea and the Sea of 
Japan are very rough at that season. A navigator is free to 
change the course according to the weather, and even the owner . 
cannot interfere with this. There is nothing strange in this ship's 
taking a circuitous route. 

Thus none of the facts on which the Prize Court based its 
decision justify the inference that the claimants attempted to 
assist the enemy. 

It may be that rice is included in the provisions used by the 
Russian forces, but it is an undisputed fact that it is not a usual 
food for Russians. Moreover, although the Russian forces 
employed Koreans and Chinese in North Korea and Manchuria, 
at Vladivostock and its vicinity there were, as a matter of fact, 
no such coolies employed. It is, therefore, wrong to consider 
the cargo of this ship as intended for the food of such coolies, 
and the facts mentioned by the Prize Court are not sufficient to 
prove this cargo to be militarj' stores. Rice, even when carried 
to a port where the enemy forces are concentrated, is not 
necessarily intended for their use, but is also useful for the 
support of the civil population, and if its supply were entirely 
cut off the people woiild be reduced to starvation. For this 
reason tlie impropriety of including rice among contraband 
goods is generally recognised. . The cargo of this ship should 
be considered as innocent merchandise, as there is no proof that 
it was intended for the Russian forces, and consequently the 
condemnation of the ship was not right. 



The " Scotsman:' 263 

_ The substance of the answer of the Procurator of the Yokosuka 
Prize Coui-t was as follows : — 

(1> It is alleged that this ship was engaged to carry her 
cargo imder a charter-partj^ ; but as she was not provided with 
a duplicate of that document, a paper which a ship ought to 
carry, the burden of explaining this serious omission lies, 
according to International Law, upon the claimants. But the 
claimants have not been able to give any explanation. Admitting 
that the so-called charter-party produced after the capture of 
the ship was genuine, it is clear from the articles of the contract, 
from the master's statement in connection with them, and from 
the conduct of the ship, that the owner or his agent was privy 
to the carriage of this cargo knowing it to be contraband of 
war. And the majority of jurists agree that in such a case the 
penalty of condemnation should be inflicted upon the ship as 
well as upon the cargo. The decision of the Prize Court was, 
therefore, proper. 

(2) The carriage of contraband goods is not theoretically a 
natural right of neutrals, but a belligerent is entitled to interfere, 
and at the the same time to prevent re|)etition in future by 
inflicting penalties. There are many cases in which an owner 
takes a Few contraband goods in good faith, when it is practicallj'- 
impossible to prove intention or collusion on the part of an owner. 
Hence, the general rule is to take some obvious facts as the 
criterion in drawing an inference and not to trouble to investigate 
other circumstances. In this case the records clearly show that 
the owner was well aware of the enterprise, and assisted in 
prosecuting it ; and there is no reason given in the claimants' 
appeal for supposing that he was not guilty of unneutral conduct. 
With regard to the incompleteness of the ship's papers and other 
suspicious acts, the claimants should have given reasonable 
explanations in order to avoid the consequences ; but, as above 
stated, they have produced no such explanations. They allege 
that it was the fault of the agent ; but the aggrieved belligerent 
has nothing to do with the consequence to the owner of the agent's 
fault. • Moreover, the claimants only repeat their formal arguments 
and have nothing new to say on this point, a fact which leads to" 
the inference that it was not a mistake, but was done with 
intention. It is probable that the reason the ship was not 
provided with a duplicate of the charter-party was either that no 
such contract had been concluded, and tlie sale of the cargo was 
on the account of the owner of the ship, or else that the wording 
of the contract showed too clearly the illegal nature of the 
cargo and the collusion of the owner in the carriage. 

For the above reasons the appeal has no justification and 
should be rejected. 

* 

The decision of this Court is as follows : — 
When food-stuffs, such as the rice in question, are destined 
for the enemy army or navy, or when they are destined for 



264 The " Scotsman:' 

enemy territority. under such circumstances that it can be 
inferred that they are intended for his military forces, they are 
contraband of war and liable to condemnation. This is recog- 
nised by International Law. As to the destination to Vladivostock 
of this cargo of Saigon rice there is no dispute, and Vladivostock 
is an important Russian naval port. Since the outbreak of the 
war Russia has made it not only the base of a sqtiadron, but 
also a depot where she has-been collecting arms, provisions, coal, 
and other military stores ; and ordinary trade there has almost 
ceased. These are well-knoWn facts. In the charter-party of 
the "Scotsman" there is an article providing that on arrival at 
Vladivostock the ship should be entitled, if necessary, to the 
service of an ice-breaker free of charge to open a passage for 
her, whether in or outside the port. It is clear that the ice- 
breaker, as admitted by the claimants, belongs to the Russian 
Government. According to the statement of the master, he 
expected on his arrival at Vladivostock to receive infoi-mation 
from an ice-breaker as to who was the consignee. According to 
the manifest, the cargo was worth about 210,000 francs, but the 
sum paid by the charterers for the voyage from Saigon to 
Vladivostock was 6,250L In view of these facts, this cargo 
cannot be regarded as ordinary- merchandise carried to Vladi- 
vostock. The claimants state that when this cargo was being 
carried to Vladivostock, trade there was not suspended, but was 
being carried on as usual ; but as they have not prod\iced any 
evidence, the statement cannot be taken as true. Again, the 
claimants argue that the rice, the cargo of this ship, should be 
regarded, following the case of the " Neptunus " "•■■■ as intended 
for peaceful purposes. But the case of the " Neptunus " and the 
present are quite different in the circumstances of the place of , 
destination ; hence the former cannot be taken as a precedent. 
In a word, the Prize Court was right in considering that the 
Saigon rice, the cargo of this ship, was contraband of war. 
Relying on the facts above mentioned, which lead the Court to 
infer that the Saigon rice consigned to Vladivostock was not 
ordinary merchandise, and the fact that the whole of the cargo 
was rice, which is contraband, and on the statement of the 
master that the owner would not incur any loss if the ship were 
condemned, as he had insured her for a sufficient sum, expecting I 
a capture, the Court can safely conchide that the object of this 
ship was the carriage of contraband of war. The liability to 
condemnation of a ghip whose object is the carriage of contraband 
of w;ar is recognised by International Law, and this Court 
considers that rule to be reasonable. For the reasons explained 
above, the decision of the Prize Court condemning this ship is 
just, so that there is no need to deal with the other points of the 
appeal. ♦ 

The appeal is therefore dismissed. 

* Reported in 3 Ohristopliei' Robinson, p. 108. 



26S 



THE "BAWTRY." 

Neutral ship — Conditional contraband — Food- stuffs — Beverages — Materials 
for building and fitting ships — Materials for railway construetimi — 
Destination for a base of the enemy forces — Entry of false destination in 
ship's papers — Condemnation. 

A neutral ship was captured wMle carrying to Vladivostock a general 
cargo consigned " to order," including food-stuffs, beverages, materials for 
railway construction and for building and fitting ships. Tie master stated 
that the consignees were the Russo-Chinese Bank. In the bills of lading 
and manifest her destination was entered as Hakodate. The charter-party 
showed the destination as Vladivostock. 

Held that the ship was liable to condemnation for carrying conditional 
contraband with false papers. 

Held also (by the Higher Prize Court) that the ship was liable to 
condemnation, because the object of her voyage was the carriage of 
contraband. 

A shipowner is responsible for the fraudulent acts of the master. 

The " Bawtry " was a British ship, belonging to the 
Imperial Steamship Co., Ltd., the managers of which were 
Messrs. Sivewright, Bacon, & Co. Under a charter-party entered 
into at Shanghai she took on board at Hong Kong and Kiaochau 
a general cargo of shipbuilding materials, railway materials, 
provisions, and miscellaneous goods. She sailed from Kiaochau 
on January 14th, 1905, for Vladivostock. In some of the papers 
her destination was given as Hakodate, but the charter-party 
showed that the destination was Vladivostock. 

Decision of the Sasebo Prize Court.® 
The steamship " Bawtry " is hereby condemned. 

Facts and Reasons. 

The " Bawtry " is the property of the Imperial Steamship 
Co., Ltd., the claimants, and is a merchantman engaged in the 
carriage of goods. She flies the British flag. The ship was char- 
tered on the 15th of December 1904, at Shanghai, by Diederichsen, 
Jebsen, & Co., and took on board, at Hong Kong and Kiaochau, 
materials for building and fitting vessels, railway materials, 
provisions, beverages, &c., together with a large quantity of 
miscellaneous goods. She left Kiaochau on the 14th of January 
1905, for Vladivostock, with bills of lading, manifest, &c., giving 
her destination as Hakodate, with the object of evading capture 
by a Japanese man-of-war. On the 17th of January, whilst on 
her way to Vladivostock, she was captured by the Japanese 
man-of-war " Tokiwa," in lat. 34° 58' N., and long. 130° 38' E., 
on the ground that she was carrying contraband of war. 



* Published in the Official Gazette, Tokio, December 15th, 1906. 



266 The ^' Bawtry:' 

The above facts appear from the statement submitted by- 
Lieutenant Y. Torisaki, representing the captain of the 
" Tokiwa," the evidence given by Harry RatchfE Shotton, master 
of the " Bawtry," and Otto Meyer, supercargo, the certificate of 
registry, the log, charter-party, bills of lading, manifest, &c. 

The substance of the claimants' argument was as follovrs : — 
The ship was chartered by Diederichsen, Jebsen, & Co., and 
undertook to carry a cargo to Vladivostock. The cargo was not 
the property of the owners, and, if there was contraband on 
board, the owners of the ship should not be punished by 
her condemnation unless it is proved that they shipped i-t by 
fraudulent devices. Moreover, the entry of Hakodate in some 
of the ships' papers as the port of destination was the act of the 
master or of the consignors, and as the owners took no part in 
it they are not responsible. 

The substance of the argument of the Procurator was as 
follows : 

The ship undertook the carriage of contraband of war, 
alleging a false destination with the object of evading capture 
by a Japanese man-of-war. Assuming that the fraud was the 
act of the master, the owner cannot escape responsibility, for 
the master agreed to the enterprise as his representative. The 
ship should, therefore, be condemned. 

The conclusion of the court is as follows : — 

The penalty for the carriage of contraband of war is limited 
in ordinary cases to the condemnation of the cargo, but when 
fraudulent devices are employed in order to evade capture by a 
belligerent, the ship is condemned as well as the cargo. This 
is generally recognised by the rules and usage of International 
Law. The " Bawtry" attempted to import into Vladivostock, a 
Russian naval base, materials for building and equipping ships, 
provisions, beverages^ railway materials, &c. ; and, from the fact 
that she stated her destination as Hakodate, it is clear that she 
undertook the carriage of contraband of war by fraudulent 
devices. If fraudulent devices are used in the carriage of 
contraband of war, the ship is. liable to condemnation, whether 
the contraband goods are the property of the owner of the ship 
or not, and whether the owner himself employed fraudulent 
devices or not. The claimants argue that, as the fraud was the 
act of the master or the consignors, and as the owners took no 
part, they are not responsible for it. But stating a false 
destination in the bills of lading, manifest, &c:, was, tinder the 
circumstances, and according to the master's confession, clearly 
the act of the master. If it was the act of the master, the 
owner, whose representative the master is, must be responsible 
for it. 

Judgment is therefore given as stated above. 



fhe " Bawtry':^ 261 

An appeal by the claimants to the Higher Prize Conrt was 
dismissed on November 30th, 1905. 

Decision of the Higher Prize Court."'' 

The grounds of the claimants' appeal were as follows : — 

The Prize Court condemned the ship for having carried 
contraband of war by fraudulent devices. In reference to the 
act which was regarded by the Prize Court as fraudulent, the 
decision says that in the bills of lading and the manifest the 
destination of the ship was falsely stated as Hakodate, no 
mention being made of Vladivostock, the real destination, and 
that this was the fraudulent device adopted to evade capture by 
Japanese men-of-war. To render a ship liable to condemnation, 
as being guilty of fraud, there must be collusion between the 
owner and the shipper in conspiring to delude the cap,tor and 
carry contraband of war ; and the means vised must be calculated 
to achieve the object. In the present case the owner agreed to 
the charter of the ship at Shanghai by Diederichsen, Jebsen, 
& Co., to be employed for the carriage of various goods to 
Vladivostock. This fact is clear from the charter-party. In the 
bills of lading and manifest, the ship's destination was stated as 
Hakodate instead of Vladivostock. But it is apparent from the 
evidence that these documents were prepared by the master and 
the charterer or the shippers, and that the owners had no part 
in the fraud. It is true that the master is always considered as 
the representative of the owner, but it has been argued by 
Grotius and other great scholars, and is recognised by modern 
International Law, that the owner should not be held responsible 
for unlawful and arbitrary acts of the master, such as those 
in this case. Even if it is admitted that the owners were 
responsible for this act of the master, the ship's destination 
to Vladivostock was clearly stated in the charter-party, and the 
false statements in the bills of lading and the manifest were 
not designed to evade capture. Consequently, tlie ship cannot 
be said to be guilty of fraud. 

The goods on board this ship were not absolute contraband, 
but only contraband if intended for the enemy's military 
use. The Prize Court held the goods to be contraband on the 
ground that they were consigned to Vladivostock, a base of 
the Russian navy. Vladivostock is a Russian naval port, but 
at the same time it is the only Russian commercial port in the 
East. When goods such as those under consideration, which 
are useful both in peace and in war, are being carried to a port 
like Vladivostock, according to International Law they should 
be considered as destined for Vladivostock in its character of a 
commercial port, and intended for peaceful purposes. The ship 
should, therefore, be released. 

* Published in the Official Gazette, Tokio, December 16th, 1905. 



268 the "Bawtry}' 

The substance of the answer of the Procurators of the Sasebo 
Prize Court was as follows : — 

When a neutral vessel carries contraband of war, a belligerent 
may capture her and condemn the contraband goods and all 
non-contraband goods belonging to the owner of the contraband ; 
when the vessel carries false papers or gives a false destination, 
or is the property of the owner of the contraband goods, the 
penalty of condemnation extends to the vessel. This is the 
principle, recognised alike in the theory and practice of Inter- 
national Law. In the present case, more than one half of the 
goods were shipped by the charterers, Diederichsen, Jebsen, & Co., 
who conspired with the master in order to evade capture by 
Japanese men-of-war, and falsely stated the destination as 
Hakodate in the bills of lading and manifest. This is clear, and 
must be considered to be a fraud of the gravest character. 
According to law, the owner is responsible for the acts of the 
master. In the present case the master's attempt to evade capture 
by Ja.panese men-of-war was made for the benefit .of the owners, 
and they cannot escape responsibility on the ground that they 
gave him no such orders. 

The present position of Vladivostock is quite different to 
that of Amsterdam at the time of the Anglo-Dutch War. Since 
the outbreak of the Russo-Japanese War, and especially since 
the fall of Port Arthur, Vladivostock has lost all the character- 
istics of a commei'cial port. In reference to this the master states 
that he understands Vladivostock to be at present an important 
depot for the Russian Army and Navy. Moreover, Diederichsen, 
Jebsen, & Co., the charterers of this ship, had on a previous 
occasion attempted to run the blockade of Port Arthur with the 
steamship " Veteran,""*' and it is evident that in this enterprise 
the firm were attempting to make a large profit by carrying 
contraband of war. The Prize Court was, therefore, right in 
condemning the ship, and this appeal should be dismissed. 

The decision of the Court is as follows : — 

Since the destination of the ship was Vladivostock, the 
arms and materials for building and equip j)ing ships on board 
are clearly contraband of war. Moreover, Vladivostock is an 
important Russian naval port. Since the outbreak of this war, 
Russia has made it not only the base of a squadron, but also a 
depot where she has been collecting arms, provisions, coal, and 
other warlike stores, and trade there has been almost suspended. 
This is a conspicuous fact, and consequently provisions, railway 
materials, &c., on board this ship, must be considered contra- 
band of. war, as being intended for Russian military use. The 
claimants argue that the cargo of the ship, following the case of 
the "Neptunus," j should be regarded as intended for peaceful 

* See p. 190 ante. 

t Reported in 3 Christoplier Bobinson, p. 108. 



The "Bawtry." 269 

purposes. But that case cannot be taken as a precedent, either 
with regard to the absolute contraband mentioned above, or to 
the conditional contraband, as it was quite different fi-om this 
case in respect of the conditions of the place of destination. 

When the object of a voyage is, as in this case, the 
carriage of contraband of war, the ship is liable to condemnation. 
This is recognised by International Law, and this court considers 
it to be fair and just. For another stronger reason, this ship is 
liable to condemnation, because,"hbtwithstanding that her voyage 
to""V'ladivostock was decided upon before she left Shanghai, the | 
f alse de stinat ion of Hakodate was inserted in the biUs of lading I 
and manifest ; that is to say, she was engaged in the carriage of j 
contraband of war by the employment of fraudulent devices. I 

For these reasons the Prize Court was right in condemning \| 
this ship. 

This appeal is therefore dismissed. 



270 



CARGO ex " BAWTRY." 
KOBRITZ'S CLAIM. 

Contrahcmd — Food stuffs — Beverages— Materials for railway construction — 
Shipbuilding materials — Destination to a base of the enemy forces 
— Non-contraband goods belonging to the owner of the contraband — 
Condemnation. 

Shipbuilding materials, materials for railway constmction, foodstufEs 
and beverages, forming part of the cargo of a neutral ship captured while on 
a voyage to Yladivostock, were consigned " to order " and were stated by 
the master to be for the Russo-Ohinese Bank at that port. 

Held to be contraband and condemned. Other goods belongLug to the 
same claimant were condemned as belonging to the owner of the contraband. 

The " Bawtry " was a British ship belonging to the Imperial 
Steamship Company, Ltd. She sailed on January 14th, 1905, for 
Vladivostock from Kiaochau with a general cargo of shipbuild- 
ing materials, railway materials, foodstuffs and miscellaneous 
goods, which she had taken on board at Hong-Kong and 
Kiaochau. She was captured on January 17th by the Japanese 
warship " Tokiwa " on suspicion of carriage of contrabrand. 
Some of her papers gave the destination as Hakodate, but the 
charter-party showed it to be Vladivostock. The " Bawtry " 
was taken before the Prize Com't at Sasebo. 

The goods comprised in this case were claimed by Herman 
Kobritz, an Austrian subject, resident at Shanghai. These 
goods had been shipped by Kobritz at Kiaochau and were 
merely consigned " to order." A list of the goods appears at 
page 273. According to the master's statement they were 
consigned to the Rnsso-Chinese Bank. 

Judgment was given on July 10th, 1905, condemning all the 
goods. 

Decision of the Sasebo Prize Gourt.^' 

The cargo as set forth in the annexed list carried in the 
British steamship " Bawtry " is condemned. 

Facts and Reasons. 

The cargo in this case was shipped on board the "Bawtry" 
at Kiaochau, and was to be delivered at the Russian port of 
Vladivostock. The ship left Kiaochau on January 14th, 
1905. These goods were captured on January 17th, when the 

* Published in the Official Gazette, Tokio, Dec. 15th, 1904, 



Cargo ex " Bawtry," Kohritz's Claim. 271 

" Bawtry " was captured by the Japanese warship " Tokiwa " in 
lat. 34° 58' N., long. 130° 28' E., on the ground that she was 
carrying contraband of war. 

The above facts appear from the written statement of 
Lieutenant Torisaki, representing the officer commanding the 
" Tokiwa," the evidence of Harry RatclifEe Shotton, master of 
the "Bawtry," and Otto Meyer, supercargo, the ship's certificate 
of registry, the log, charter-party, bills of lading and manifest. 

The substance of the claimant's argument was as follows : — 

More than half of the cargo in the present case was 
applicable only for use in Lime of peace, and was not contraband. 
Although among the goods there was a certain amount of 
conditional contraband, which could indirectly supply military 
needs as well, there was no single article of absolute contraband. 
Moreover, it is a principle which the European Continental 
Powers have followed up to the present time that the notion of 
contraband is limited to articles for purely military use, and 
does not include so-called conditional contraband. This 
principle was put into practice in the Danish War of 1864, the 
Franco-German War of 1870, and the Russo-Turkish War of 
1877, and is to-day a practically established rule of International 
Law, the English principle alone being different. The resolu- 
tions of the Institute of International Law at Venice in 1896® 
naiTowly circumscribed the notion of contraband, and laid down 
rules defining contraband as consisting only of absolute contra- 
band, and not recognizing conditional contx-aband. These are 
the opinions of a body of jurists, and worthy of every respect. 
Although the Japanese Prize Regulations,! in Article 14, 
recognise conditional contraband, those regulations are only 
instructions to Japanese naval officers, and not rules of Inter- 
national Law. Consequently, even if it be granted that there 
was a certain amount of conditional contraband in the cargo in 
this case, it is not liable to condemnation. 

Even assuming for the moment that conditional contra- 
band may also be condemned, the cases in which it may lie 
condemned are only those in which there is sufficient proof to 
justify regarding it as in fact destined for the enemy's military 
and naval needs. But in the case of the present cargo there 
is no such evidence, and it is wrong to decide that it was 
intended for military purposes by inference from the single fact 
that Vladivostock is in enemy territory. 

The cargo in the present case being neutral property is 
not liable to capture. Even assuming it to be enemy property 
inasmuch as it was not contraband of war, it should be released 
in accordance with the provisions of Article 3 of the Declaration 

* Anniiah-e de I'lnstitut de Droit International, Vol. X5 (1896), p. 23Q, 
t App. B, 



272 Cargo ex " Bawtry," Kobritz's Claim. 

of Paris. The claimant accordingly requests the release of tlie 
cargo. 



The substance of the Procurator's argument was as follows : — 

Of the cargo in this case, the foodstuffs and beverages, the 
material for railway construction, and the material for building 
and fitting ships, were undoubtedly shipped to Vladivostock, 
a base of the enemy forces, and according to the master's state- 
ment were consigned to the Russo-Chinese Bank. They were, 
therefore, applicable by the enemy to use for purposes of the 
war, and thus were contraband of war, and ought to be 
condemned. The remaining noa-contraband articles should be 
condemned therewith, as belonging to the owner of contraband 
goods. 

The conclusion of the Court is as follows : — 

By the Admiralty Orders No. 1 of 1904« and No. 1 of 1905,1 
Japan clearly declared and publicly notified the articles which 
would beheld to be contraband during the Russo-Japanese war. 
There is, therefore, no doubt as to what is contraband. The 
claimant adduced two or three Continental precedents and 
some resolutions of jurists, and maintained that the notion of 
contraband is confined to articles useful only for military 
purposes. But precedents and theory alike in England, 
America, and on the Continent of Europe clearly show that this 
is not the case. Different nations adopt different principles, 
and the decision as to what is contraband of war varies 
accordingly. The claimant's contention cannot therefore be 
adopted. 

The cargo in the annexed list was in every case consigned by 
the claimant " to order, " and despatched to Vladivostock. Of 
this cargo, Nos. 1, 13-17, 24, 110, 113, 122, 127-129, and 134 
were foodstuffs or beverages, Nos. 2-10 material for railway 
construction, Nos. 19, 22, 58, 95-97, 245, 252, 253 material for 
obuilding and fitting ships. Considering the character of these 
goods in the light of the fact that Vladivostock was Russia's sole 
naval station in the East, and that according to the master's 
statement the consignees of the cargo were the Russo-Chinese 
Bank, it is evident that the above cargo was intended for the 
use of the enemy forces at that port. It was, therefore, con- 
traband, and should accordingly be condemned. The remaining 
cargo, thotigh not contraband, is to be regarded as belonging 
to the owner of the above-mentioned contraband articles, and is, 
for that reason, properly liable to condemnation. The remaining 
contentions of the claimant need not, therefore, be considered. 
Judgment is therefore given as stated above. 

* App. D. t -^PP- E. 



Cargo ex " Bawtry." Kobritz's Claim. 273 

List of Goods annexed to the decision of the Sasebo 
Prize Court. ''^' 
Goods condemned as Foodstuffs or Beverages. 
No. in Monition. - Description. 

1, 113 - - Wheat flour. 

13-17 - - Black tea. 

24, 134 - Rice. 

110 - Rum. 

122 - - - Cube sugar. 

127, 128 - - Sardines. 

129 - Butter. 

Ooods condemned as Materials for Railway construction. 

2 - - Rails. 

3 - - - - Fish plates. 

4 - Fittings. 

5 - ^ Wheels and axles. 

6 - Axle boxes. 

7 - Containers. 

8 - - - Cars. 

9, 10 - - - Point rails. 

Goods condemned as Materials for iuilding or fitting Ships. 
19 - _ . . Steel rope. 

22 - - Rope. 

58 - ,. - Iron plates. 

95 - _ _ _ Wire netting. 

96 _ . _ _ Rivets. 

97 - - Nails. 
245, 252 and 253 - - Iron sheets. 

Goods held not to he Contraband, but condemned as the property 
of the Owner of Contraband. 



11, 12, 101 


_ 


- Matches. 


18 


- 


Emery wheels. 


20 


- 


- Lubricating oil. 


21 - 


_ 


Cotton waste. 


23 - 




- Window glass. 


53-55, 112, 


123-126 


Soap. 


59-62, 238- 


-256 - 


Iron and zinc sheets. 


102 


_ 


- Paint brushes. 


103 


- 


Copying press. 


104 


- 


- Book-binding tools. 


105 


- 


Re-niade paper. 


107, 109 - 


- 


- English paper. 


108 


_ 


- Toilet essences. 


111 


- 


Cigarettes. 


257 


- 


Iron roof sheeting. 



* The list has been re-arranged according to the grounds upon which the 
goods were condemned. 

e 12750 S 



274 Cargo ex " Baiotry," Kohritz's Claim. 

The claimant appealed to the Higher Prize Court from the 
above decision. The appeal was dismissed on November 30th, 
1905. As the reasons given by the Higher Prize Court for 
their decision were the same as those given by the Sasebo Prize 
Court, the case is not reported. 

Similar claims in respect of part of the cargo of the 
" Bawtry " were entered by (1) Diederichsen, Jebsen & Co., and 
(2) Henry Shotton^ master of the " Bawtry," acting on behalf 
of various other persons and firms. In each claim some of 
the goods claimed were condemned as contraband, and the 
remainder as belonging to the owner of the contraband. 

In each case there was an appeal to the Higher Prize Court, 
which was dismissed. 

No point was raised in either claim, which was not raised in 
Kobritz's claim, and the judgments were similar. 

The cases are, therefore, not reported, and only the list 
appended to Shotton's claim is printed, as this includes all the 
items which were separately claimed by Diederichsen, Jebsen 
&Co. 

List of Cargo annexed to the decision on Shotton's claim, 
excluding the items separately dealt with on Kobritz's claim. 

Goods condemned as Foodstuffs or Beverages. 

No. in Monition. Description of Cargo. 



35 




- Sauce. 


39,429 - 




Brandy. 


40 




Liquem-s. 


114 




Tinned beef. 


115 




- Champagne. 


131, 235 - 




- Salt. 


135 




Sugar. 


231 




- Wine. 


258, 511 - 




Starch. 


426 




Tinned lobster. 


428 




Sardines. 


551 




- Chocolate. 


lods condemned 


as Material for building and fitting S) 


46, 47, 52, 


64, 


92, 93, 178, Screws. 


347, 370 


1, 499, 536. 


130, 318 - 




Rivets. 


139, 171, 345, 


394, 409 - Iron wire. 


177, 262, 


274 


:, 287, 292, Iron nails. 


535. 






216 




Wire netting. 


230 - 




Rigging.. 


234 




- Brass and copper plates, 



1. in Monition. 


237, 


546- 


275, 


288, 293, £ 


321 


_ 


322, 


323- 


326, 


415- 


349 




356 




362 


. 


363 


, 


368 




398 


_ 


512 






Ooods cc 


264 





Cargo ex " Bawtry," Shotton's Claim. 275 

Description of Cargo. 

- Brass sheets. 

- Washers. 

- Fasteners. 
Bent iron. 
Iron ware. 
Sail cloth. 

- Galvanised steel rope. 
Pulley blocks. 
Metal tubes. 
Tin sheets. 
Asbestos and rubber goods. 

- Tarred rope. 



Small arms ammunition. 
Rifles. 



Goods condemned as Harness. 
309, 338 & 412 Spurs, stirrups, bits and chains, 

Goods condemned as Material for Telephones. 
478 - Telephones. 

Goods held not to be Contraband, hut condemned as the property 
of an Owner of Contraband. 

25, 132 - - - Clothing. 

26 - - - Wooden utensils. 

27, 28 - Hats. 

29, 37, 42, 68, 91, 204, Enamelled ware. 
213,260,261, 311,316, 

422, 445, 450, 517. 

30, 32, 34, 38 Piece goods. 

31, 44 - - Waterproof cloth. 
33, 272, 406 - - Pens. 

36, 270, 310, 448, 490 - Cotton goods. 
41 - - Linen. 

43 - - Silk tissue. 
45, 301, 411, 413, 414, 498, Paper._ 

506, 518. 
48 - - Soda. 

49, 333 - Hydrochloric acid. 

50 - - - Nitric acid. 

51 - - - - Hemp., 

s 2 



276 Cargo ex " Bawtry" Shottons Claim. 

No. in Monition. Description of Cargo. 



56 


Iron girders. 


57 


Window glass. 


63 - . . - 


Roof guttering. 


65, 72, 315, 336, 361 


Spades. 


66, 193, 463, 475, 476, 


Scales. 


527. 




67 - - - 


Bicycle parts. 


69, 157, 158, 227, 268, 269, 


Metal ware. 


380, 381, 386, 438, 500, 




501. 




70, 117, 148, 203, 391 - 


Heating irons. 


71 - . . - 


Furniture. 


73 - - - 


Mucilage, brushes. 


74,77-79 


Machinery. 


75 - 


Photographic films. 


76 - - - 


Photographic paper. 


80,304,403 - 


Chamber utensils. 


81 - 


Chloride of lime. 


82 - . . - 


Iron guttering. 


83 


Cotton tissues. 


84 - - - 


Delft pottery. 


85 


Sunshades. 


86, 94 - 


Cotton. 


87 


Emery cloth. 


88, 526, 533 - 


Glass. 


89, 90, 273, 282, 424, 430, 


Woollen goods. 


451, 530, 541. 




116 - - - 


Table knives. 


118 - - 


Brushes. 


119, 143, 153, 155, 162 - 


Sewing machines. 


120 - - - 


Cocoanut matting. 


121, 407, 457 ^ 


Stoves and fittings. 


133 - 


Cigarettes. 


136-138 


Matches. 


139 - - - 


Iron wire. 


140 - 


Shavings. 


141, 146, 192, 198 - 


Meat mincers. 


142, 149. 167, 179, 514 


Perambulator parts. 


144, 19i), 222, 477 - 


Springs. 


145, 108, 184, 194, 195, 


Saws. 


205, 382. 




147, 191 ... 


Horseshoe nails. 


151, 289, 503 - 


Cutlery. 


152 . - - - 


Brass balls. 


154, 159, 161, 164, 304 - 


Planes. 


156 - - - 


Dripping pans. 


160 - - - - 


Sewing machine needles. 


163, 170, 196, 200, 201 - 


Yard measures. 



Cargo ex " Baiotry," Shotton's Claim. 277 

No. in Monition. Description of Cargo. 



165, 166, 


173- 


175, 


183, 


Iron-ware. 


185, 188, 


190, 


215, 


219, 




220, 223, 


226, 


263, 


265, 




276, 281, 


326, 


350, 


365, 




415, 418, 


419, 


436, 


461, 




462, 464, 466, 


467, 




472-474, 


480, 


481, 


483, 




485-487, 


531, 


532. 






169, 441 


_ 


_ 


- 


Tools. 


172, 300, 


306, 


374, 


423, 


Oil cookers. 


484. 










180 


- 


- 


- 


Sandpaper. 


181 


- 


- 


- 


Emery cloth. 


182 




- 


- 


Vices. 


186 


_ 


- 


- 


Iron anvils. 


187 




- 


- 


Iron hammers. 


189 


- 


- 


- 


Files. 


197 


_ 


. 


- 


Rulers. 


202,211,372,373 - 


- 


Axes. 


206, 207 


- 


- 


- 


Sewing machines. 


208 


- 


- 


- 


Drawing pins. 


209 


- 


- 


- 


Copying press. 


210 


_ 


- 


- 


Kitchen ranges and tiles. 


212 


- 


- 


- 


Scythes. 


214 


_ 


- 


- 


Merchandise. 


218 


- 


- 


- 


Iron shafting. 


221 


- 


- 


- 


Copper sheets. 


224 




. 




Patterns. 


225 


- 


- 


_ 


Palm-oil. 


228, 233 - 


- 


- 


- 


Straps. 


232 


_ 


- 


- 


Filings. 


236 


_ 


- 


- 


Iron bars. 


259 


- 


- 


- 


Clay slabs. 


266, 267, 489 - 


. 


. 


Paper collars, cuffs, shirts. 


271, 491 - 


. 


- 


- 


Boots. 


277, 280, : 


286, 


335, 


342, 


Grindstones and frames. 


360, 468 


,469, 


,471. 




C ' 


283 


- 


- 


- 


Top boots. 


284 


- 


- 


- 


Window glass. 


285 


_ 


_ 


- 


Plate glass... 


290, 302, 355 - 


- 


- 


Iron door hinges^ 


291 




- 


- 


AgriculturaJ. implements. 


294 




_ 


- 


Zinc roofing. 


295 


_ 


- 


- 


Galvanized iron soof gutters, 


296 


- 


- 


- 


Scythe fastenings. 


297, 454 - 


_ 


_ 


_ 


Boot 4rees. 


298 




» 


_ 


Wire netting door mats. 


303 


_ 


- 


- 


Galvanized basins. 



278 Cargo ex " Bawtry," Shotton's Claim. 

No. in Monition. Description of Cargo. 



305 _ - - - Machinery parts. 

307 _ - - - Clay paving tiles. 

308 _ - - - Candles. 

312 - - - Boots and signboard. 

313 - - - - Stove fittings. 

314 . - - - Iron grating stands. 
317, 343, 456 - - Iron screws. 

319 - _ - - Lacquered wire netting. 

320 _ . _ - Galvanised wire netting. 

327 - - Sieves. 

328 Slop-pails. 

329 - Iron-ware, brass-ware, strop- 

leatber, &c. 

330 - - - Metal-ware grindstones, Hair- 

clippers. 

331 - Hand tools, galvanized iron- 

ware. 

332 - - - Sand. 

334 - - Copper sulphate crystals. 

337 - - - Drills. 

339 - Steel stone-cutter's saws. 

340 - - Iron rakes. 

341 - _ - - Oast-iron plugs. 
344 - - - - Dyes (dry). 
346 . - - _ Zinc pails. 
348, 378 - - Wire. 

351 - - Hammers. 

352 _ - - _ Hats and samples. 

353, 544 - - Cast-iron pumps and fittings. 

354 - - Piston-rod and piston. 

357 . - - - Crude petroleum. 

358 - - - _ String. 

359 _ _ - . Iron screwdrivers. 

366 • - - - - Hand tools. 

367 _ _ - Iron rakes. 

369, 416, 437, 439, 444 Glass-ware and lanterns. 

370 . - - - Steel screws. 

371 - - - - Iron dye-mortar. 

375 _ - - - Canvas hosepiping. 

376 - _ - - India-rubber, circular sheets. 

377 - - - - Paper, emery. 
379 _ - - - Iron clothes rackr 
383, 443, 488 - - - Perfumes. 

384 . ► _ - Perfumes, jiowder, &c., 

catalogues. 

385 - -* - Toilet cream, powder, soap. 

387 - Gum-arabic. 

388 - - - Pure starch. 





Cargo ex 


" Bawtry," Shotton's Claim. 279 


No. in Monition. 


Description of Oargo. 


389 


_ 


"Siph-ons for casks. 


390 


- 


- Keys. 


392 


- 


- Beds. 


393 


- 


Wall-paper. 


395 


_ 


Iron chains. 


396 




- Anvils. 


397 


_ 


- Rivets. 


399 


_ 


- Collars, cuffs, and shirts. 


400 


. 


- Wooden and cast-iron ware. 


401 




- Lamp stands. 


402 


- 


Wash-basins, &c. 


404 




Wash-hand stand and fittings. 


405 


- 


- Wash-basins, mirrors, water 
j^gs. 


408 


_ 


- White cardboard. 


410 


_ 


- Brass wire. 


417 


. 


- Bath tubs and brushes. 


420 


. 


- Lamps. 


421 


. 


- Concave lenses. 


427 


_ 


Cocoanut oil. 


431-' 


i35 


Zinc-ware. 


440 


- 


- Pottery, tin lanterns, mirrors, 
glass, tinware. 


-;42 


- 


Ciystal glass-ware. 


446 


_ 


- Tooth-wash, tooth-powder. 


447 


- 


Leather goods. 


449 




Fire extinguishers. 


452 


_ 


Aluminium and copper kettles. 


453 


_ 


Iron bolts. 


455 




- Cocoanut, powdered, advertis- 
ing devices. 


458 


- 


- Iron grating bars. 


459 




- Iron grating frame. 


460 


_ 


- Steel-ware. 


465 


_ 


- Ice machine. 


470 


_ 


- Carpet sweeper. 


479 


_ 


- Pumps. 


482 


- 


- Wringer. 


492 


_ 


- Aniline dyes. 


493 


„ 


Zinc sheets. 


494 


_ _ 


- Lime. 


495 


- 


- Steel pens, metal mirrors, 
printed matter. 


496 


_ 


- -" Wire rope. 


497 


_ _ 


- Decimal scales. 


502 


_ 


- Steel. 


504 




- Book-binding cardboard. 


605 


- 


- Powder and dyes. 



280 Cargo ex " Bawtry," Shotton's Claim. 



1. in Monition. 


Description of Cargo. 


507 


- Pencils, coloured pencils, 




coloured inks, printed matter. 




notice-books. 


508 


- Oil paper. 


509 


- Green dye (dry). 


510 


- Cotton, and cotton and silk 




fabrics. 


513 


- Wire netting. 


515 


- Paper bags. 


516 


Iron safes. 


519 


- Aluminium pots and pans, 




pencils, coloured pencils. 


520 


Rubber erasers, penholders, &c. 


521 


Cabinet-work, paper, ink, &c. 


522 


Matbematical instruments, set 




squares, T-squares. 


523 


- India-rubber slabs. 


524 


- Spiral piping. 


525 


- Lamps. 


528 


- Drawing instruments, sta- 




tionery. 


529 


- Porcelain. 


537 


- Iron bedsteads. 


538 


- Iron wasbstand and bedsteads. 


539 


- Bent-wood furniture. 


540 


- Citric acid crystals. 


542 


- Steel-ware. 


543 


- Wire-ware. 


545 


- Brass-ware, workmen's tools. 




bedstead. 


546 


- Brass sheeting. 


547 


- Tin sheeting. 


548 


- Screws. 


549 


- Packing paper. 


550 


- Pig-iron. 


552 


- Dry goods. 


. 553 


- Brass balls. 


554 


- Tin plates. 



281 

CARGO ex "BAWTRY." 
BEDIGER'S CLAIM. 

Non-contraband goods — Neutral ship carrying contraband with false papers 
— Ownership different from that of the contraband goods — Release. 

A neutral ship was captured carrying on a voyage to Vladivostock with a 
cargo of which a considerable part was conditional contraband. The ship 
was carrying false papers. 

Held that non-contraband goods belonging to a person who was not the 
owner of any of the contraband should be released. 

The " Bawtry " was a British ship belonging to the Imperial 
Steamsliip Company, Ltd. She sailed on January 14th, 1905, 
for Vladivostock from Kiaochau with a general cargo of mis- 
cellaneous goods, many of which were contraband. The cargo 
had been shipped at Hong Kong and Kiaochau, and in some of 
the ship's papers a false destination to Hakodate was inserted, 
but the charter-party showed the real destination to be Vladi- 
vostock. The "Bawtry" was captured on January 17th by the 
Japanese warship "Tokiwa," on suspicion of carriage of contra- 
band. The ship and a large portion of the cargo were 
condemned in other^proceedings. 

Among the cargo were four cases of dry goods shipped by 
Karl Bediger, a German subject, resident at Kiaochau, and to 
these goods H. Shotton, master of the " Bawtry," entered a claim 
on behalf of Bediger. The goods were not contraband, and 
Bediger was not the owner of any goods on board the " Bawtry " 
which were held to be contraband. 

The case came before the Sasebo Prize Court, and judgment 
was given on July 10th, 1905, releasing the goods. 

Decision of the Sasebo Prize Court. ''^ 

Four cases of dry goods on board the " Bawtry " are 
released. 

Facts and Reasons. 

The cargo in the present case — four cases of dry goods — was 
shipped at Kiaochau, China, together with a large quantity 
of contraband articles belonging to other consignors and 
consignees, by the "Bawtry," which sailed from that place on 
January 14th, 1905, and was to be carried to Vladivostock ; it 
was captured, with the ship, by the Japanese warship " Tokiwa," 
in lat. 34° 58' N., long. 130° 28' E., on the 17th of the same 
month. 

* Published in the Official Gazette, Tokio, December 15th, 1905. 



282 Cargo ex " Bawtry," Bediger's Claim. 

The above facts appear from the written statement of 
Lieutenant Torisaki, representing the commander of the 
" Tokiwa," the evidence of Harry Ratcliffe Shotton, master of 
the "Bawtry," the ship's certificate of registry, the charter- 
party, mate's log, bills of lading, manifest, &c. 

The main points of the argument of the claimant were as 
follows : 

The claimant was the owner of the cargo in question, and 
that cargo was not contraband. Even if there were contraband 
articles among the " Bawtry' s " cargo, none of therh. were the 
property of the claimant, and therefore this cargo did not belong 
to an owner of contraband goods ; consequently, in accordance 
with Article 2 of the Declaration of Paris of 1856, it should not 
be condemned, but should be released. 

The substance of the Procurator's argument was that, though 
this cargo was not contraband, it should be regarded as belonging 
to the same owner as contraband goods carried in the same ship, 
and should therefore be condemned. 



This court considers that as the cargo which is the subject 
of this claim was not contraband, and as the consignor and 
consignee were different from those of the contraband articles 
on the " Bawtry," there is nothing whatever to show that the 
owner was the same as that of the contraband. It was no more 
than ordinary cargo shipped to enemy territory in a neutral 
vessel, and ought properly to be released. 

Judgment is therefore given as stated above. 



283 

THE " M. S. DOLLAR." 
CLAIM OF ROBERT DOLLAR. 

Practice^Glaim in language other than Japanese — Japanese Prize Court 
Regulations — Rejection. 

The owners of the " M. S. Dollar" presented a claim to the Sasebo 
Prize Court in English. 

Held by the Tokosuka Court, under whose jurisdiction the ship was, that 
the claim could not be eatei-tained. 

The " M. S. Dollar " was captured by a Japanese warship 
and taken before the Yokosuka Prize Court. The owner entered 
a claim drawn up in English instead of Japanese, and presented 
it to the Sasebo Prize Court. The claim was sent on to the 
Yokosuka Prize Court, and rejected on March Snd, 1905. 

Decision of the Yokosuha Prize Gourt''^ 

In the case of the steamship " M. S. Dollar " and her cargo, 
the above-named Robert Dollar has entered a claim in English 
under date of the 2nd of February, 1905, and the following 
decision has been given : — 

This claim is hereby rejected. 

Facts and Reasons. 

It is set forth in Art. 26 (c) of the Prize Court Regulations! 
that, in Prize Courts and the Higher Prize Court, the Japanese 
language shall be used ; and no exception is provided for. 
The claim being in English is contrary to this article, and is 
unlawful. It cannot, therefore, be accepted. 

The claim was addressed to the Sasebo Prize Court, but 
the case of the " M. S. Dollar " not being in the jurisdiction of 
that Court, the claim was sent to this Court, which has decided 
the case. 

* Published in the Official Gazette, Tokio, March 23rd, 1905. 
t App. A. 



284 



THE "M. S. DOLLAR." 

Neutral ship — Conditional contraband — Fodder — Destination for naval and 
military base of the enemy — Liability of ship carrying contraband under 
charter — False papers. 

A British ship was captured carrying a cargo of fodder to Vladivostock 
with papers showing a destination to Moji ; her course was also incorrectly 
stated in the logs. At the time of capture she was chartered by the owner 
of the cargo, Moji being the destination mentioned on the charter. 

Held that the ship was liable to condemnatioh as the object of the 
voyage was the carriage of contraband and deception had been used. 



The " M. S. Dollar " was chartered by one Hart of San Fran- 
cisco, who shipped on board a cargo of hay, barley, and oats for 
Vladivostock. The charter stated the voyage to be to Moji, and 
this port was stated to be her destination in other papers. The 
logs purporting to record the voyage were also false. She 
followed a circuitous course, and was captured near Cape Tappi 
on a course to Vladivostock. 

The owners claimed the release of the ship, and the case 
came before the Yokosuka Prize Court, which gave judgment 
on the 28th April, 1905. 

Decision of the Yohosuka Prize Court." 
The British steamship " M. S. Dollar " is condemned. 

Facts and Reasons. 

The "M. S. Dollar" is a merchant vessel owned by the 
claimants, having her port of registry at Victoria, British 
Columbia, and flying the British flag. Under a charter-party 
concluded at San Francisco, United States of America, on 
the 8th December, 1904, between the M. S. Dollar Steamship 
Company, as agents for the claimants, and Harry J. Hart, of 
San Francisco, she took on board a cargo of fodder (about 26,200 
trusses of hay, 14,600 bags of barley, and 32,200 bags of oats) 
with the object of carrying it to Vladivostock. The ship's papers 
all gave the destination as Moji, and in the bills of lading the 
cargo was made deliverable to order. She left San Francisco 
on the 31st of that month, passed through the Mushiri Channel, 
and proceeded towards the Soya Straits, when, being hindered 
by drift ice, she turned south, and came out through the Iterup 
(Vries) Straits. But in the official log, the ship's log, and the 
engineer's log the course she had taken was concealed, and 
entries were made as if she had proceeded direct from San 
Francisco to the Tsugaru Straits. She was proceeding on a 
course to Vladivostock, when, on the 27th January, 1905, she 

* Published in the Official Gaxette, Tokio, September 11th, 1905. 



The " M. S. Dollar:' 285 

was seized in the neighbourhood of Cape Tappi (Tatsutohi) by 
the Japanese warship " Asama." 

These facts are established by the written statement of 
Lieutenant Kokura Unosuke, I.J.N. , representing the com- 
manding officer of the " Asama," by the evidence of that officer, 
of Charles Cross, the master, and the crew of the "M. S. 
Dollar," and of the witnesses Edward Clarence Davis and 
R. Stanley Dollar, by the vessel's certificate of registry, the 
charter-party, the bills of lading, the manifest, the San Francisco 
clearance certificate, the bills of health, the official log, the 
ship's log, and the engineer's log, by the correct ship's log, put 
forward by the master after he had confessed the concealed 
facts, and by the statements of the claimants' attorney. 

The substance of the claimants' argument was as follows : — 

Under the charter-party, the claimants allowed the charterers 
to use the vessel for the carriage of goods from San Francisco 
to Moji, and the attempt to send the vessel to a port other than 
the destination indicated in the charter-party was the act of the 
charterer, and was entirely unknown to the shipowners. The 
cargo did not belong to the shipowners, and therefore, even if 
the cargo were contraband of war, this vessel should not be 
condemned with the cargo. Although Vladivostock, which was 
a port of call, was not mentioned in the ship's papers, so that 
they must be admitted to have been incomplete, this should not 
be held to be part of a deceptive plan to avoid capture. Even 
if it should be regarded as a step taken to effect an illicit voyage, 
it was an act planned by the charterer, fearing the capture of 
his goods, and so long as the shipowners were unaware of the 
circumstances the penalties therefor should not be extended to 
the vessel. Moreover, the cargo in this case, not being absolute 
contraband of war, should properly be considered, when carried 
to such a port as Vladivostock, which is both a commercial 
and a naval port, unless there is evidence to the contrary, to 
be carried there in its character of a commercial port, and 
should not be regarded as intended for military purposes. This 
is clear on referring to the precedent afforded by the decision 
in the case of the " Neptunus,"® captured in 1798 during the 
war between England and Holland, especially as the cargo in 
this case was not such as to be useful for fodder for military 
forces alone. Accordingly the vessel should be released. 

After due consideration the conclusion of the Court is as 
follows : — 

It is a well-known fact that Vladivostock is an important 
Eussian naval port in the Far East, and at the present time 



* Reported in 3 Christoplier Eobinson, p. 108, 



286 The " M. 8. Dollar." 

it not only serves as a base for the Russian fleet, but from 
the commencement of the war between Japan and Russia the 
Russian Government have made it a military base depot, and 
have exerted every effort to collect military supplies there ; 
consequently ordinary trade has almost entirely died out. 
Therefore, articles such as fodder, of which the cargo of this 
vessel was composed, which are contraband of war or not, 
according to circumstances, may, when carried to Vladivostock, 
properly be regarded as intended for military purposes, unless 
there is clear proof to the contrary. The case of the " JSTeptunuSj" 
cited as a precedent by the claimant, was a case of attempting to 
carry tallow to Amsterdam, and not only were the circumstances 
of that case different from those of the present case, but the 
reasons on which that decision was based may rather be held to 
be reasons for regarding the cargo in the present case as 
contraband. For Amsterdam was at that time primarily a 
commercial port, and its character was very different from 
the present character of Vladivostock, as above set forth. The 
port of Brest, mentioned in the decision i-eferred to, in its 
condition at that time more nearly resembled Vladivostock as it 
now is. When the quantity of this vessel's cargo, the fraudulent 
devices employed in its carriage, and the master's statements are 
considered in conjunction, it is placed beyond all doubt that the 
cargo was to be carried to the enemy forces, and it is therefore 
correct to consider it to be contraband of war. 

Again, not only is it clear, as above stated, from the 
evidence of the master and other members of the crew, that 
this vessel's port of destination was Vladivostock, but in the 
correct ship's log the facts connected with the vessel's arrival 
north of Kunashiri Island, on the 23rd January, and her change 
of course on account of the obstruction caused by drift ice, are 
stated at length. In all the ship's papers produced at the time 
of the capture Moji is given as the port of destination, although 
the real facts subsequent to her change of course were entered in 
the correct log. Entries were made in the official log, the ship's 
log, and the engineer's log concealing the course that had been 
taken by the vessel, and making it appear as if the vessel had 
proceeded direct from San Francisco to the Tsugaru Straits ; 
and on the visit of the officer representing the coimnanding 
officer of the " Asama," and in reply to the questions of the 
assessor in charge of the case, the master and crew did not 
readily disclose the facts, and it was only after repeated 
questioning, subsequent to the capture, that they confessed 
the truth. These facts afford ample grounds for concluding 
that a deceptive plan had been formed with considerable, 
precautions to avoid capture. In short, the " M. S. Dollar " was 
carrying contraband of war by means of fraudulent devices. 
The liability to condemnation of a vessel which has so acted, 
together with the contraband cargo, whether the owners are 
connected with such acts or not, is recognised alike by the 



The " M. S. Dollar." 287 

doctrines and the usages of International Law. For the above 
reasons the vessel should be condemned, and there is no need 
to discuss the claimants' other arguments. Judgment is, there- 
fore, given as stated. 

The claimants appealed from the above decision to the 
Higher Prize Court. The appeal was dismissed on August 26th, 
1905. 

Decision of the Higher Prize Gourt.'^ 

The substance of the appeal was that the decision given by the 
Yokosuka Prize Coiirt condemning the steamship " M. S. Dollar " 
was wrong, and that the decision should be reversed and the 
vessel released, for the following reasons : — 

Firstly, the vessel was not owned by the owners of the cargo, 
and as the contraband of war was not placed on board by 
deceptive means, she should not be condemned with the cargo, 
even if the latter were held to be contraband of war. 

Secondly, the sole reason stated by the Prize Court for 
condemning the vessel was that she had carried contraband 
of war by fraudulent devices, and that a vessel which has 
acted in such a way may be condemned with her contraband 
cargo, whether the shipowners were parties to those %,cts or not. 
It is a principle of modern International Law that the penalty 
in cases of the carriage of contraband of war shoiild, so long 
as the contraband cargo is not the property of the shipowners, 
end with the condemnation of the cargo ; the vessel should not 
be punished by condemnation, but should incur only the loss of 
time, freight, and expenses ; when contraband has been placed, 
onboard by deceptive means, the vessel cannot.be condemned 
unless it is clear that the owners of the vessel were parties to 
the deceptive acts. This doctrine is at present adopted by 
England, and the Japanese Prize Regulationst follow it. hi 
order to hold that a vessel has carried contraband of war by 
deceptive means, it must be shown that the owners were privy 
to the deception, that is to say, that there was a conspiracy, and 
in this case there are most certainly no facts to show a con- 
spiracy on the part of the shipowners. The Prize Court was 
wrong in holding that the vessel should be condemned with the 
cargo without investigating the facts and without inquiring 
whether the shipo-wners had been parties to the deceptive acts 
or not. 

Thirdly, the mere non-insertion of the destination in the 
ship's papers does not amount to a fraudulent device such as to 
warrant the condemnation of a vessel. For this it is necessary 
that the papers should have been prepared with the intention 

* Published ia the-O/^mZ-ljWeifoy Tokio, September 12tb, 1905, 
t App. B. 



288 The ■' M. S. Dollar." 

of attempting to escape capture by deceiving a belligerent 
warship when visited or searched, and they must be sufficiently 
falsified to succeed in deceiving her. Not only is there no sign 
that any of this vessel's papers were drawn up with such 
intention, but they were clearly insufficient to attain the object 
of escaping capture, and therefore this vessel should not be 
condemned. 

Fourthly, the shipowners hired the vessel to the owners of 
the cargo to be used for the carriage of oats, barley, and ha;y, 
and fixed Moji, in Japan, as her destination, and concluded a 
charter-party, and therefore the owners had no previous know- 
ledge of her despatch to a different destination. The charter- 
party in this case should be interpreted according to the law of 
the place where it was made, that is, English law, and in English 
law such charter-parties are of the nature of leases, the posses- 
sion and control of the vessel passing temporarily to the 
charterers. Even if this interpretation be not accepted, and it 
be held to be an ordinary contract of carriage, the intention 
of the owners obviously was that the route inserted in Ihe 
charter should not be departed from, and, therefore, even thoiigh 
the charterers secretly ordered the master to go to Vladivostock, 
and the master obeyed the order and carried it out, it requires 
no argument to show that the shipowners cannot be said to have 
participated in his acts or to have conspired or assisted in the 
carriage of contraband of war. Although it may be said that by 
the ordinary principles of law the master is the owners' agent, 
if is clear that the ownei-s are not responsible for the arbitrary 
acts of the master outside the limit of his ordinary official 
authority, especially in the case of an action in contravention of 
International Law, such as the carriage of contraband of war by 
deceptive means. For the above reasons it is clear that, what- 
ever entries may have been made in the ship's papers other than 
the charter-party, the owners should not be held responsible 
therefor. Even if there were false entries in the papers, the 
owners cannot be held responsible for them, so long as there is 
no evidence to show that the act . was the result of their 
participation in a conspiracy. 

Fifthly, the principle of the Japanese Regulations relating 
to Capture at Sea* is to make oats, barley, and hay contraband 
of war only when they are clearly carried for the military use of 
the enemy. Assuming this doctrine to be in accordance with 
the principles of International Law, Vladivostock, the desti- 
nation of this vessel's cargo, besides being Russia's sole military 
port in the Far East, is also her sole commercial port, and 
therefore oats, barley, and hay, which are not absolute con- 
traband of war, ought not to be held to be for military use 
merely because they are being carried to that port. In accord- 
ance with the precedent of the decision in the case of the 

* App. B. 



The " M. 8. Dollar." 28\i 

" Neptunus"® which occurred during the war between England 
and Holland of 1798, they should be regarded as being carried 
to Vladivostock in its character of a commercial port, and should 
properly be held to have been intended for peaceful use 
Consequently the cargo of this vessel was not contraband of 
war, and the vessel which carried it should not be condemned. 

_ The substance of the reply of the Procurator of the Yokosuka 
Prize Court Avas as follows : — 

Firstly, although this vessel was carrying a full cargo of 
fodder to Vladivostock, an important port for the collection of 
the enemy's military supplies, the port of Moji was entered as the 
port to which she was carrying it in the manifest, charter-party, 
bills of lading, and clearance certificates. Moreover, in the 
official log, ship's log, and engineer's log, the fact that she had 
passed through the Kurile Islands and proceeded towards the 
Soya Straits was not entered, but entries were made as if she 
had pursued the same course throughout and proceeded direct 
from her port of departure to the Tsugaru Straits, and the true 
course was concealed. These facts being clear, the original 
decision which held that the vessel when carrying contraband 
of war, and condemned her, was right. 

_ Secondly, it is clear from the report that the decision of the 
Prize Court, condemning the vessel, was based on the fact that 
entries had been made in the charter-party and other ship's 
papers which were false in important particulars as to the 
destination of the contraband cargo. Since the charter-party 
was concluded between the shipowners and the charterer, the 
fact of the shipowners' participation in the deception is 
established, and therefore there is no need to decide whether 
proof of the owners' collusion is necessary to justify the 
condemnation of a ship on the ground of fraud. 

Thirdly, the destination of the cargo was entered as Moji 
in the charter-party and bills of lading, and when the official 
log and ship's log were examined, in order to decide the truth 
or falsity of these entries, entries were found in both of them 
suggesting that the vessel had proceeded by the ordinary route 
from her port of departure to Moji. Tf the entries in the papers 
connected with the navigation were correct, the entries in the 
papers connected with the cargo were also correct, and a decision 
would have to be given releasing the vessel with her cargo ; 
but since the falsity of all these entries has been proved by the 
confession of the master and the ship's log, which had been con- 
cealed, the Prize Court was right in condemning the vessel on 
the ground that false entries were madte in these important 
ship's papers. 

* Reported in 3 Christopher Robinson, p. 108. 
e 12750 T 



290 The"M.S. Dollar." 

Fourthly, there is no doubt that a charter-party is not a 
lease, and accordingly the master should not obey the orders of 
the charterer. There is no evidence in support of the appellants' 
contention that it was contrary to the orders of the shipowners, 
and in obedience to the charterer's orders, that the master 
refrained from going to Moji, and attempted to go to Vladi- 
vostock. For the above reasons the appeal should be dismissed. 

The reasons for the decision in this case are as follows : — 

Firstly, not only is Vladivostocli an important Russian military 
port, used by Russia since the outbreak of the Russo-Japanese 
war as a base for her fleet, but it is also an established fact that 
Vladivostock has been made a military base depot, arms, provi- 
sions, coal, and other military supplies being collected there, 
while ordinary trade at the port has practically ceased. In 
view of the quantity of barley, oats, and hay carried by this 
vessel, and of the fact that she attempted to take the most 
dangerous route via the Soya Straits, and employed fraudulent 
devices, it is clear that the cargo was fodder destined for Russian 
military use, and therefore the Prize Court was perfectly 
correct in holding it to be contraband of war. Although the 
appellants contend that the cargo of this vessel should be held 
to be intended for peaceful purposes in- accordance with the 
judgment in the case of the "Neptimus,"* the circumstances 
of the place of destination in this case are entirely different from 
those in the case of the "Neptunus," and therefore it cannot 
be adopted as a precedent in this case. 

Secondly, International Law recognises the liability to 
condemnation of a vessel, the object of the voyage of which is, 
as in the present case, the carriage of contraband of war, and the 
Higher Prize Court considers this rule to apply to this case, 
especially as the whole of the cargo was contraband. Further, 
it is clear that from the time of the vessel's departure from San 
Francisco she was intended to proceed to Vladivostock and 
deceit was used as to the destination in the charter-party and 
other ship's papers ; that is to say, she carried contraband of 
war by the employment of fraudulent devices. 

For the reasons set forth above, the original decision 
condemning the vessel was perfectly right, and consequently 
there is no need to discuss the grounds of appeal in detail. 

The appeal in this case is therefore dismissed. 

* Repoi-ted in 3 Christopher Robinson, p. 108. 



291 



THE "WYEFIELD." 

Neutral ship — Conditional contraband — Barley, oats, hay — Destination for a 
base of the enemy forces — Owners of the ship not owners of the cargo — ■ 
Falsification of papers — Condemnation. 

A neutral ship was captured carrying a cargo of barley, oats, and hay to 
Tladivostock. Although the charter-party and bills of lading which were 
on boai'd showed that the destination was Yladivostock, no mention of that 
port was made in other papers, which gave the destination as " Moji " or 
" Moji via ports." The owners of the ship were not the owners of the 
cargo. 

Held that the ship was liable to condemnation, as the whole object of 
the voyage was the carriage of contraband, and deception had been used. 

The " Wyefield " -was chartered at San Francisco to carry a 
cargo of barley, oats, and hay to A'^ladivostock. She attempted 
to reach that port by the Soya Straits, but was obliged, by drift 
ice, to alter her course, and was captured while attempting to 
pass through the Tsugaru Straits. The bills of lading and 
charter-party showed Yladivostock as her destination, but the 
clearance certificate and bill of health described the voyage as 
" to Moji " or " Moji via ports." 

The owners, the Western Steamship Company of Nanaimo, 
British Columbia, claimed the release of the vessel. The case 
came before the Yokosuka Prize Court, which condemned the 
ship on the 28th April 1905. 

Decision of the Yokosuka Prize Court. 
The British steamship " Wyefield " is condemned. 

Facts and 'Reasoyis. 

The " Wyefield " is a merchant vessel owned by the 
claimants, registered at Victoria, British Columbia, and flies 
the British merchant flag. Under a charter-party, concluded 
at San Francisco, United States of America, on the 17th 
December 1904, between the claimants and Harry J. Hart, of 
San Francisco, she took on board a cargo of fodder (about 64,400 
bags of barley, 900 bags of oats, and 10,300 trusses of hay) at 
San Francisco, with the object of carrying it to Yladivostock, 
under bills of lading showing it to be deliverable to order. 
She left San Francisco on the 31st December, and being 
hindered by drift ice in her attempt to pass through the Soya 
Straits turned south, and was shaping "a course to reach 
Yladivostock via the Tsugaru Straits when she was captvired 
in the neighbourhood of Cape Shiwokubi on the 30th January 
1905 by the Japanese warship "Musashi." 

As regards the ship's papers, although in the bills of lading 
and the charter-party " for Yladivostock " is inserted, in the case 

T 2 



292 The " WyefieW 

of the sh-ip's log, the clearance certificates and bills of health 
obtained at San Francisco and Oomox " for Moji, Japan, via 
ports," is given, and Vladivostock, the destination of the whole 
of the cargo, is not mentioned. Further, the ship's manifest 
has " for Moji, via Oomox," and in one place only gives 
Vladivostock as the destination of the -cargo. In explanation 
of this the claimants state that the master, after leaving Comox, 
arbitrarily altered "Moji " to " Vladivostock." 

The above facts are proved by the written statement of 
Lieutenant Yasumura Kaiichi, the officer representing the 
commander of the "Musashi," the evidence of that officer and 
of Alexander Watson, master, and Charles Henry Webb, first 
mate of the " Wyefield," by the ship's certificate of registrj"^, the 
charter-party, the bills of lading, the freight list, the clearance 
certificates, and the bills of health. 

The substance of the claimants' argument was as follows : — 

The ship's voyage was from San Francisco, United States of 
Ainerica, as the port of departure, to Moji, Japan, as the port of 
final destination, but with liberty to call at Vladivostock, in 
Russia, and other convenient ports on the coast. No argument 
is required to prove that the carriage to Vladivostock of the 
barley, oats, and hay owned by the charterer, even during the 
war between Japan and Russia, was a proper act for a vessel 
of a neutral country to perform. In this case all the vessel's 
papers were in order, and there was nothing that could be 
considered a deception. Even if it be gi-anted for the moment 
that the cargo was such as could be considered to be contraband 
of war, the rule that the ship should not be treated in the same 
Avay as the cargo is a general rule of International Law, and is 
also recognised by the Japanese Regulations relating to Capture 
at Sea.* Accordingly a decision releasing the vessel is requested. 

The conclusion of the Court is as follows : — 

Vladivostock is not only an important Russian naval port in 
the Far East, and actuallj' a base of the Russian fleet, but it is, 
moreover, a well-known fact that it has been used as a military 
base depot during the war by the Russian Government, who 
have been making every effort to collect military supplies there, 
while ordinary trade has almost entirely ceased. Therefore 
goods such as fodder, which may or may not be contraband 
of war according to circumstances, must, when despatched to 
Vladivostock, be regarded as intended for military purposes, 
unless there be clear proof to the contrary. When the quantity 
of this vessel's cargo, the fact that fraudulent devices were 
employed in its carriage, and the statements of the master are 
considered, there can be no room for doubt that the cargo 

* App. B. 



The " Wyefidd." 293 

was to be carried to the enemy forces, and it must therefore 
be held to be contraband of war. 

In spite of the fact that from the time of the vessel's de- 
parture from San Tirancisco it was determined that she was 
chartered' for Vladivostock, and that all the cargo was to be 
landed at Vladivostock, " for Moji " was inserted in the manifest ; 
and when making out the vessel's clearances and bills of 
health the fact that her destination was Vladivostock was care- 
fully concealed, and " for Moji, Japan," was inserted, in order 
to make it appear that her cargo was for Moji. 

Abundant grounds are thus afforded for considering that 
this was done merely as a fraudulent device to avoid capture. 
Even though " for Vladivostock " was given in one or two of 
the ship's papers, it cannot be held that this fact atones for the 
fraudulent statements inserted in the rest of the ship's papers, 
and that no deceit was practised. Again, although the claimants 
argue that the words " for Moji, via ports " would include a 
call at Vladivostock, and the fact that the vessel was to go to 
Vladivostock was therefore not concealed, it is not reasonable to 
hold that Vladivostock is, as a matter of course, included in the 
meaning of " for Moji, via ports " in the case of a voyage from 
America to Moji, and such an explanation cannot be accepted. 
To sum up, the " Wyefield " was carrying contraband of war by 
the employment of fraudulent devices, and both the doctrines 
and practice of International Law recognise that a ship which 
has been guilty of such fraudulent acts should be condemned 
with her contraband cargo. Judgment is accordingly given as 
above stated. 



The claimants appealed from this decision to the Higher 
Prize Court. The appeal was heard on the 26th August 1905 
and was dismissed. 

Decision of the Higher Prize Court. 
The substance of the appellants' argument was as follows: — 

Firstly, as this vessel did not belong to the owners of the 
cargo, and as contraband of war was not carried by the employ- 
ment of fraudulent devices, the ship should not be condemned 
with the cargo, even if the latter is held to be contraband of war. 

Secondly, the sole reason put forward by the Prize Court 
for condemning the ship was that she had carried contraband 
of war by fraudulent devices, and that a vessel which has been 
guilty of such fraudulent acts should be condemned with her 
contraband cargo. It is a principle of modern International 
Law that in cases of the carriage of contraband of war, so long 
as the contraband is not the property of the shipowners, the 
penalty should end with the condemnation of the cargo, and 
that the vessel should not be punished by condemnation, 
incurring only the loss of time and freight, and expenses. Even 



294 The " WyejieUr 

when contraband has been carried by fraudulent devices, the ship 
cannot be condemned unless it is evident that the owners were 
parties to the deception. Tlus doctrine is at present adopted by 
England, and the Japanese Prize Regulations* also follow it. 
Therefore, before it can be held that a vessel has carried 
contraband of war by the employment of fraudulent devices, the 
owners must be shown to have been parties to the fraud, that 
is to say, there must have been a plot, and there are certainly 
no facts in this case to show any plot on the part of the ship- 
owners. The Prize Court was wrong in deciding arbitrarily 
and without investigating the facts that this vessel was guilty of 
fraud and that she should be condemned with her cargo. 

Thirdly, the mere omission of the destination from the 
ship's papers does not amount to fraud which warrants the con- 
demnation of the ship ; it is necessary that the papers should 
have been prepared with the intention of attempting to escape 
capture by deceiving belligerent warships in case of visit or 
search, and they must be so falsified as to succeed in deceiving 
tlie warship. Not only is there no sign that any of this vessel's 
papers were drawn up with such an intention, but they were 
clearly insufficient to attain the object of escaping capture, and 
therefore the vessel should not be condemned. 

Fourthly, San Francisco, U.S.A., was the port of departure, 
and Moji, Japan, the final destination of the ship, which in- 
tended to call at Vladivostock and other convenient coast, ports 
on the way. No argument is necessary to prove that, as a 
charter-party had been concluded with Harry J. Hart, of San 
Francisco, the consignor, for the vessel to call at Vladivostock, 
it was legitimate for a neutral vessel to carry barley, oats, and 
hay owned by him to that port. In some of the ship's papers, 
i.e., the charter-party and bills of lading, it was clearly stated 
that the vessel was to call at Vladivostock, and in the clearajice 
certificate, bills of health, manifest, and official log " Moji, via 
ports " was clearly inserted, and therefore the ship's papers 
were all in order and there was not a single statement that can be 
considered false. If, as held by the Prize Court, the clearance 
certificates and other papers had been drawn up with Moji, 
Japan, deliberately given as the destination in order to conceal 
her destination for Vladivostock, why should her destination 
for Vladivostock have been clearly stated in the charter-party 
and bills of lading, which are the most important among the 
ship's papers ? In view of this fact, it is obvious that there was 
no Avrongful intention of concealing her destination for that 
port, and it is therefore! contended that the ship did nothing 
that can be considered fraud ident. 

Fifthly, the principle of the Japanese Prize Regulations® is 
to make barley, oats, and hay contraband of war only where 
they are clearly supplied for the enemy's military use. Even if 

* App. B. 



The " WyejieUr 295 

this doctrine be held to be in accordance with the principles of 
International Law, Vladivostock, the destination of this cargo, in 
addition to being Russia's sole military port in the Far East, is 
also her sole commercialr port, and therefore, even if oats, 
barley, and hay, which are not absolute contraband of war, are 
carried to that port, it is improper to hold them to be intended 
for military use ; they should, in accordance with the precedent 
of the decision in the case of the " Neptunus,"* which occurred 
during the war between England and Holland of 1798, be 
regarded as being carried to Vladivostock in its character of a 
commercial port, and should properly be held to have been 
intended for peaceful purposes. Consequently the cargo was 
not contraband of war, and the vessel which carried it should 
not be condemned. 

The substance of the reply of the Procurators of the Yokosuka 
Prize Court was as follows : — 

Firstly, although the claimants contend that the carriage of 
contraband of war was not effected by fraudulent devices, so 
that the vessel should not be condemned, yet the facts stated 
below clearly show the employment of fraudulent devices, and 
it is a general rule of International Law that under such circum- 
stances the vessel cannot escape condemnation, even though her 
owners were not the owners of the cargo. 

(1) Although the sole object of the voyage was the carriage 
of the whole cargo to Vladivostock, in many of the ship's papers 
Moji, a port of call on the return voyage, was inserted as her 
destination. This was a plan to prevent the spread of rumours, 
on her departure from San Francisco, that she was bound for 
Vladivostock, and to deceive, if possible, any ships which might 
visit her. 

(2) The insertion of Moji in the manifest as the landing 
place of the cargo, although it was determined from the first 
that her cargo should be landed at Vladivostock, was a clear 
fraud, committed with the object of concealing her desti- 
nation, and for this the shipowners or their agents were 
responsible. 

Secondly, although the claimants contended that the owners 
of the vessel had no knowledge of the falsification of the sliip's 
papers, it is not possible, according to the English Merchant 
Shipping Acts, for charterers legally to prepare such papers. 
Moreover, in the case of the falsification of papers the difference 
between the cases of hona fides and mala fides on the part of the 
shipowner has never been put forward, even in theory, as a 
gi-ourid for differentiation in treatment. 

Thirdly, although the claimants apparently argue that the 
falsity of this ship's papers was a trifling matter, a false state- 
ment as to the destination is a serious fraud, and even if the 

* Reported in 3 Christopher Robiason, p. 108. 



296 The " WyefieW 

means employed were clumsy, the fact can be made no ground 
for lenience. Moreover, the plan in this case was prepared with 
much foresight, and no other object can be found for it except 
that of deceiving visiting officers. 

Fourthly, the destination of the voyage was Vladivostock, 
and the insertion of Moji as her place of destination and as the 
landing place of her cargo, while it was to be landed at Vladi- 
vostock, was an indisputable fraud. The argument of the 
claimants that Moji was from the first fixed as the ship's desti- 
nation can only be said to be the statement of someone who does 
not understand the nature of a charter-party. For the above 
reasons this appeal should be dismissed. 

The reasons for the decision of the Court in this case are as 
follows : — 

Firstly, not only is Vladivostock an important Russian naval 
port, used by Russia since the outbreak of the Russo-Japanese 
war as a base for her fleet, but it is an established fact that 
Vladivostock has also been made a military base depot, arms, 
provisions, coal, and other military supplies being collected 
there, while ordinary trade at the port has practically ceased. 
Moreover, in view of the quantity of the barlej'', oats, and hay 
carried by this vessel, and of the fact that she attempted to take 
the most dangerous route, via the Soya Straits, and used 
fraudulent devices, it is clear that the cargo was destined for 
Russian military use, and therefore the Prize Court was per- 
fectly correct in holding it to be contraband of war. Although 
the appellants contend that in accordance with the precedent 
of the case of the " Neptunus,"* the cargo should be held to be 
intended for peaceful purposes, the circumstances of the place 
of destination in this case are entirely different from those in 
the case of the " Neptunus." It is therefore obvious that that 
case cannot be adopted as a precedent. 

Secondly, International Law recognises the liability to con- 
demnation of a vessel the object of whose voyage is, as in this, 
case, the carriage of contraband of war, and this Court considers, 
that the rule is suited to the circumstances. The whole of the 
cargo in this case was contraband, and although it was clear 
from the time of the vessel's departure from San Francisco that 
she was to proceed to Vladivostock, fraud was used as to the 
destination in the clearance certificate, log, and other ship's 
papers, that is to say, contraband of war was carried by the 
employment of fraudulent devices. 

For these reasons the original decision condemning the 
vessel was perfectly proper, and there is no need to discuss the 
grounds of appeal seriatim. 

The appeal in this case is therefore dismissed. 

* Reported in 3 Christopher Robinson, p. 108. 



297 



CARGO ex "WYEFIELD." 

Conditional contraband — Barley, oats, hay — Destination for a hase of the 
enemy's forces — Condemnation. 

A British ship was captured carrying a full cargo of barley, oats, and 
hay to Vladivostock. 

Held that the cargo was contraband. 

The facts of the case sufficiently appear from the judgment. 
The cargo -was claimed by the charterer, H. J. Hart, of San 
Francisco. 

Decision of the Yohosuka Prize Court. 

(54,400 bags of barley, 10,300 trusses of hay, and 900 bags 
of oats carried by the steamship " Wyefield " are condemned. 

Facts and Reasons. 

' The cargo in this case was despatched by the claimant, and 
shipped on board the British steamship " Wyefield," with the 
object of carrying it to the port of Vladivostock, in accord- 
ance with a charter-party concluded on the 17th December 1904 
between the claimant and the Western Steamship Company of 
British Columbia, the owners of the ship. The ship's log and 
the clearance certificate and bill of health received at San 
Francisco and Comox stated that the vessel was bound for Moji 
in Japan, via ports, and said nothing about Vladivostock, the 
real destination of the cargo. The bills of lading stated that 
the cargo was deliverable to order. While the cargo was in 
transit to Vladivostock it was captured with the ship by the 
Japanese man-of-war " Musashi," on the 30th January 1905, 
near Cape Shiwokubi. 

These facts are proved by the written statement of Lieutenant 
Yasumura Kaiichi, the officer representing the commander of 
the "Musashi," the evidence of Alexander Watson, the master 
of the " Wyefield," the charter-party, the bills of lading, the 
freight liF:t, the ship's log, the bill of health, and the clearance 
certificate. 

The claimant contended that the carriage of this cargo to 
Vladivostock, a port in the territory of a belligerent State, was 
an open mercantile transaction permissible to neutral trade, and 
was a legitimate enterprise recognjped as such by International 
Law. The cargo in question was by nature absolutely innocent, 
and, being simply fodder, could only be regarded as contraband 
if it had been intended for the enemy forces. The question as 
to whether the cargo in question was actually intended for the 
enemy forces or not is a question of fact, and its destination for 
Vladivostock, a port which has a dual character, that of a 
commercial port and that of a military port, is no proof that it 
was specially intended for military purposes. Even if it be 



298 Cargo ex " Wyefield." 

held that this is not the case, it is quite clear from the decision, 
given in the case of the " Neptunus,"* captured during the war 
between England and Holland in 1798, that it is correct in the 
present instance to hold that the cargo was being carried to 
Vladivostock in its character of a commercial port. This view 
should certainly be adopted, because the purposes to which the 
cargo could be applied were not limited to military use. The 
conclusion reached, therefore, is that the cargo in question is 
not contraband, and, although it may be presumed to be enemy ' 
goods, as it was carried under a neutral flag it cannot, under 
Article 2 of the Declaration of Paris of 1856, be condemned, 
and should accordingly be at once released. 

The conclusion of the Court is as follows : — 

It is a well-known fact that Vladivostock is an important 
Russian naval port and that it not only serves as a naval base, 
but that ever since the war between Japan and Eussia began 
the Russian Government have made it a military base depot, 
and exerted all their efforts to collect military stores there, and 
that consequently ordinary trade has almost ceased. Therefore, 
goods such as fodder, which are contraband or not according to 
circumstances, when despatched to Vladivostock, must be 
regarded as intended for military use unless there is clear proof 
to the contrary. In the case of the " Neptunus,"® cited by the 
claimants, the question was that of carrying tallow to Amsterdam. 
Not only were the circumstances of that case quite diiferent 
from those of the present, but the reasons on which the judg- 
ment was based may be held to be reasons for regarding the 
cargo in the present case as contraband. At the time in 
question Amsterdam was primarily a commercial port, and the 
character of the place was very different from the present 
character of Vladivostock, while the port of Brest mentioned in 
the judgment more nearly resembled the port of Vladivostock 
in present circumstances. When the quantity of the cargo, the 
means adopted for carrying it, and the statement of the master 
of the vessel are considered in conjunction with one another, it 
becomes clear that it is correct to hold that the cargo in 
qiiestion was contraband. This being the case, even if it is 
carried under a neutral flag, it is liable to condemnation both 
accoi'ding to the Declaration of Paris of 1856 and according to 
the doctrines and practice of International Law. Judgment is 
accordingly given as stated above. 

* Reported in 3 Christopher Robinson, p. 108. ' 



290 



THE "EASTRY." 

Neutral ship — Capture^Carriage of contraband with false papers on a 
previous voyage— Release. 

A neutral ship having succeeded on a former occasion in carrying a cargo 
of coal to Vladivoatock was subsequently captured carrying a cargo of coal 
to Singapore. 

Held that as she was not carrying contraband at the time of capture she 
should be released. 

The " Eastry," a Britisli ship, which had succeeded in 
carrying a cargo of coal to Vladivostock in November 1904, 
was captured on suspicion of carrying contraband on the 7th 
February 1905. On examination it was found that her desti- 
nation was Singapore. She was released on the 12th February 
by order of the Yokosuka Prize Court, apparently before any 
formal claim had been made. 

The facts siifficiently appear from the judgment. 

Decision of the Yokosuka Prize Court f^ 

The British steamship " Eastry " is released, together with 
the 3,725 tons of coal carried by her. 

Facts and Reasons. 

The steamship " Eastry " has her port of registry at West 
Hartlepool, England, is owned by William John Sivewright, a 
British subject domiciled at West Hartlepool, Durham, England, 
and is a steel steam vessel of 1,924 '27 registered tonnage. She 
proceeded to Vladivostock towards the end of November 1904, 
carrying a cargo of Cardiff coal with false papers, and on her 
return voyage from that port was visited near the Tsushima 
Straits, on the 8th December last, by the Japanese warship 
" Matsushima." Afterwards she went to Hong Kong via Woosung 
and Moji, and whilst at that port was chartered by Dodwell & Co., 
of Yokohama, on the 20th January 1905, for the voyage from 
Muroran to Singapore. She left Hong Kong on the 21st January 
and reached Muroran on the 1st February, and, after loading 
3,725 tons of Yubari coal despatched by the Hokkaido Tanko 
Railway Companj'^ to Petersen, Simons & Co., of Singapore, and 
also 560 tons of the same coal for bunker purposes, left Muroran 
for Singapore at 8 a.m. on the 7th February. She was visited 
by the Japanese warship "Matsushima" at 3 p.m. on the 
7th February in the Tsugaru Straits, in latitude 41° 43' north, 
longitude 141° 5' east, and was seized on the suspicion of being 
bound for Vladivostock carrying contraband of war. 

* Published in the Official Gazette, Tokio, February 16th, 1905. 



300 The " Eastry." 

The above facts are clear from the written statement in 
regard to the capture of the " Eastry " put in by Lieutenant 
Taira Saneo, Imperial Japanese Navy, the representative of the 
officer in command of the " Matshushima," from the evidence of 
W. G. Horsford, master of the " Eastry," and of 0. M. Poole, of 
Dodwell & Co., Yokohama, a telegram despatched by the officer 
in command of the "Matsushima" in reply to an inquiry by 
the assessor in charge of the case, the " Eastry' s " certificate 
of registry, the ship's log, and the charter-party. 

The commanding officer of the Japanese warship " Matsu- 
shima," in view of the fact that this vessel had on a previous 
voyage carried contraband of war to Vladivostock under false 
papers, inferred that her real object in again avoiding the 
central channel and trying to pass the Tsugaru Straits by 
keeping close in to the shore was to proceed to Vladivostock, as 
before, with false papers, pretending to be on a voyage to 
Singapore, and accordingly he captured her. But the Court, on 
examining closely the ship's papers found on board the vessel, 
and also all the persons interested, finds it to be undoubtedly 
the fact that the charterer on this voyage was quite different 
from the charterer on the occasion when she proceeded to 
Vladivostock, and, in addition to this, that the coal carried by 
her was despatched by the Hokkaido Tanko Railway Company 
to Petersen, Simons & Co., of Singapore, and that the vessel's 
destination also was Singapore. Therefore the present voyage 
cannot be considered as one on which contraband of war was 
carried. Judgment is accordingly given as above stated. 



301 



THE "PAROS." 

Neutral ship — Absolute contraband— Cement — Field blacksmith's tools — 
Materials for building and fitting ships — Materials for naval ordnance 
— Conditional contraband — Provisions — Telephone wire — Owners of ship 
not owners of the cargo — False entries in ship's papers — Carriage of 
contraband the sole object of the voyage — Condemnation of ship and 
cargo. 

A neutral ship was captured after passing through the Soya Straits on 
her way to Vladivostock with a cargo including (a) cement, field black- 
smith's tools, sheet iron, iron nails, asbestos sheets, white metal bearings, 
rubber, packing for machinery, solder, tin, wire rope, linoleum, copper 
tubing, iron tubes, copper sulphate, zinc sheets, copper, copper sheets, and 
brass sheets ; and (6) telephone wire, rock salt, milk, butter, cheese, and 
wheat. The charter-party, manifest, bills of lading, clearance certificate, 
and bill of health and log, all showed Hongkong as the destination. It 
was admitted by the claimants that the destination was Yladivostock, and 
Hongkong only an alternative in case Vladivostock was blockaded. 

Held that the articles enumerated above in para, (a) were absolute con- 
traband, those jn para. (6) conditional contraband destined for a base of the 
enemy forces, and that the remainder of the goods belonged to the owners 
of the contraband, and therefore the whole cargo was liable to condemnation. 

Held that the sole object of the voyage was the carriage of contraband, 
and that fraudulent devices had been employed, and that the ship was 
therefore liable to condemnation. 

The " Parqs," a German steamship, was chartered by Kunst 
and Albers to carry a miscellaneous cargo from Hambiirg to 
Vladivostock. Particulars of the cargo are set out in the 
decision of the Prize Court. The papers were uniformly made 
out, and many parcels of the cargo were addressed, to Hong- 
kong. The claimants alleged that the reason for this was that 
Hongkong was to be an alternative destination in case 
Vladivostock should be blockaded. Hongkong was, however, 
still entered as the destination in the log for three weeks after 
leaving that port. The ship pursued a devious course, and was 
captured near the Iterup Straits about 350 miles from Vladi- 
vostock. The master admitted that the intention throughout 
was to evade the Japanese cruisers and reach Vladivostock. 

The owners of the ship claimed the release of the ship, 
and Kunst and Albers claimed the release of the cargo. The 
case came before the Yokosuka Prize Court, and the two claims 
were dealt with together. Judgment was given on the 10th 
May 1905, condemning both ship and cargo. 

Decision of the Yokosuka Prize Court.^ 

The German steamship " Paros " and the following articles 
of her cargo are condemned : — 

387 cases - Iron, thin, bent, for fixing plugs. 
413 „ - String. 

* Published in the Official Gazette, Tokio, November 18th, 1905, 



302 


The"Farosr 




230 barrels 


- Iron wire. 




580 coils - 


- Steel rope. 




25 cases 


- Linoleum. 




600 „ 


Window glass (contents of one case 
rently somewhat damaged). 


appa- 


250 „ 


- Scales (Russian "pood " scales). 




81 „ 


Solder-tin. 




10 cases 


- Iron articles. 




60 „, 


- Rubber articles. 




29 packageg 


s Manufactured goods. 




37 cases 


Pumps. 




51 „ 


Field blacksmith's tools. 




5,842 


- Copper ingots. 




92 barrels 


Zinc sheeting. 




. 132 cases 


do. 




1 case - 


- Steam pressure gauge. 




16 cases 


Tin-plated sheets. 




13 „ 


- Socks. 




102 „ 


- Saws. 




100 „ 


- Canvas hose. 




300 „ 


Screw punches. 




5,003 „ 


Iron nails. 




314 „ 


- Iron screws.- 




739 bales 


Cleaning wool. 




53 barrels 


Pickaxes, spades, hammers. 




10 „ 


- Hammers. 




23 „ 


- Copper sulphate. 




660 cases 


White metal axle bearings,- 




500 tins - 


- Soda. 




17 bundles 


- Tarpaulin. 




12 cases 


Copper tubes. 




15 „ 


- Copper sheets. 




52 „ 


do. 




49 „ 


Copper sheets and brass sheeting. 




18 „ 


- Brass sheeting. 




300 „ 


- Milk. 




1 case - 


- Chocolate. 




20 cases 


Infants' food powder. 




40 „ 


- Butter. 




41 „ 


- Cheese. 




100 „ 


- Sardines. 




5 „ 


- Gelatine. 




5 „ 


- Cigars. 




226 „ 


Pickles. 




10 „ 


- Plants. 




120 „ 


- Liqueurs. 




150 „ 


- Brandy (Cognac). 




30 „ 


- Rum. 




1 case 


Derrick. 




2 cases 


- Stays. 





The " Paros." 



303 



33 cases 
5 „ 
8 „ 
1 case - 
1 „ - 

1 „ - 

2 cases 
1 case - 
1 „ - 

. 1 . - 

3 cases 

5 „ 
1 tin 
5 cases 

25 „ 

13 „ 

13 „ 
3 „ 

50 „ 
50 „ 
65 bales 
6,100 bags 
1 package 

1 „ 

870 cases 
291 bundles 

10 „ 
100 „ 
225 cases 

25 „ 
100 „ 
4,561 bundles 
7,767 cases 
500 barrels 
195 cases 
20 „ 



Stairs and banisters. 

Revolving doors. 

Pottery. 

Photographic chemicals. 

Coffee grinders. 

Samples, woollen dusters. 

Samples and catalogues. 

Furs and samples. 

Miscellaneous goods. 

Samples, linoleum. 

Desiccated milk. 

Mineral water. 

Confectionery. 

Oatmeal. 

Grain (wheat). 

Plums. 

Potato flour. 

Cherries. 

Pears. 

Dried apples. 

Soft leather. 

Salt. 

Empty bags. 

String and needles. 

Iron sheets. 

Machinery packing. 

Horse hair. 

Vegetable wool (fibre ?). 

Asbestos sheets. 

Olive oil. 

Dyes. 

Iron tubes. 

do. 
Alcohol. 
Cement. 
Coffee. 



Facts and Reasons. 

This steamship, the " Paros," is a merchant vessel owned 
by the claimants, the Deutsche Levant Linie Company, regis- 
tered at the German port of Hamburg and flying the German 
flag. Under a charter-party, concluded at Hamburg on the 
§6th October 1904, between the claimants, the Deutsche 
Levant Linie, and the firm of " Pinkernele and Company, 
representing the claimants Kunst and Albers, she took on 
board at Hamburg the goods of the claimants, Kunst and 
Albers, set forth in the above list, with other goods for 
carriage to Vladivostock. The charter-party, manifest, bills 
of lading, and the outside of a large number of the cases of 



304 The"Paros:' 

cargo all showed the destination as Hongkong, and the con- 
signees were described on the bill of lading as Melchers 
aud Company, Hongkong. She left Hamburg on the 24th 
November 1904, reached Labuan, Borneo, on the 15th January 
1905, and in obtaining her port clearance and bill of health 
falsely stated to the local authorities that her destination was 
Hongkong. Sailing from that port on the 19th, she took a 
particularly devious course, through the Surigao Channel, 
all the while making false entries " for Hongkong " in the 
logs. After passing the Soya Straits with the intention of. 
secretly proceeding to Vladivostock, she was sighted while on her 
voyage off the Iterup (Vries) Strait early in the morning of 
February 10th by the Japanese warship " Hong-kong Maru," 
and finally captured by her in the afternoon of the same day. 

The above facts appear from the statement of Lieutenant 
Abe, I.J.N., representing the commanding officer of the " Hong- 
kong Maru," from the evidence of Lieutenant Abe, Paul 
Niemann, master of the " Pares," Ernst Junge, chief engineer, 
and August Gese, manager of the Nagasaki branch of the 
firm of Kunst and Albers, as well as from copies of letters 
from Kunst and Albers to Gese, the ship's certificate of registry, 
logs, charter-party, articles of agreement, bills of lading, the 
Labuan port clearance and bill of health, &c. 

The substance of the claimants' argument was as follows : — 

The vessel in this case was owned by the Deutsche Levant 
Linie of Hamburg, Germany, and the goods were owned by the 
firm of Kunst and Albers, also of Hamburg, and were con- 
signed to that firm's Vladivostock. branch. This firm has over 
20 branches in various places, importing merchandise into 
Russian territory, as well as Japan, China, &c. Merchandise 
such as the goods shipped in this vessel are imported to various 
places by the said firm year by year, and this cargo was not 
specially intended to augment the enemy's warlike strength, 
nor was it, for the most part, contraband of war. Even sup- 
posing that there were one or two things which might be 
deemed to be contraband, if the object of their importation was 
the carrying on of ordinary general business, therfe was no 
reason for their capture, and they ought properly to be released 
in accordance with the text of Articles 2 and 3 of the Declaration 
of Paris of 1856. 

Vladivostock has had the dual character of a naval and 
a commercial port ever since it was declared a free port in 1865, 
and therefore, in accordance with precedents in International 
Law, the goods in this case, being in transit to that port, are 
not liable to capture under the rules applicable to conditional 
contraband. 

The owners of the ship were different from the owners of the 
goods, and the ship had received instructions from the owners 
at the time of sailing from Hamburg to carry the goods to 



Tke " Faros." 305 

Vladivostock, if possible, but if a blockade of that port should 
be declared, tlien to proceed to Hongkong. It was for this 
reason that " For Hongkong " was written in the charter-party, 
manifest, bills of lading, and on the cases of cargo, so that the 
insertion of these words was not in any way a fraud deliberately 
contrived at the time of departure fi'om Hanibvirg. Further, 
the fact that at Labuan the master obtained his clearance and bill 
of health giving her destination as Hongkong, and that from 
the time of sailing from there up to the day of capture, i.e., for 
21 days, the ship's logs were written up " for Hongkong," was 
due to the anticipation of a blockade of Vladivostock, arid 
cannot be described as deceptive conduct justifying the con- 
demnation of the ship. 

To sum up, the greater part of the cargo was not contraband, 
the owners of the ship were not the owners of the cargo, and 
there was no deceptive conduct to justify the capttire of the 
vessel, and therefore the release of both vessel and cargo is 
claimed. 

The conclusion of the Court is as follows : — 

The goods in this case were in transit for Vladivostock, and 
consequently the cement and field blacksmith's tools, which are 
war materiel, the sheet iron (iron plates of 1 to 4 milli- 
metres in thickness), iron nails, asbestos sheets, white metal 
bearings, rubber, packing for cloth machinery, solder, tin, wire 
rope, linoleum, copper tubing and iron tubes, which are 
materials for the building and fitting of ships, and the 
copper siolphate, zinc sheets, copper, copper sheets and brass 
sheets, which are materials for naval ordnance, are what is 
called absolute contraband, and therefore unquestionably liable 
to capture according to International Law. The iron wire 
(telephone wire), rock salt, milk, butter, cheese, and wheat are 
goods which may be contraband or not according to circum- 
stances. When they are sent to a place like Vladivostock, which 
was an important Russian naval station in the East, and at 
the time the base of the Russian fleet, and had been, from the 
beginning of the war, a base depot where warlike stores were 
being collected, while ordinary trade hadi practically come to a 
standstill, they must be regarded as intended for military use 
unless there is clear proof to the contrary. Further, as Kunst 
and Albers, the consignees of the goods in Vladivostock, were 
in ordinary times contractors for supply to the Russian Govern- 
ment, it is natural to conclude that as soon as the goods reached 
that place they would be delivered to the Govermnent. Accord- 
ingly they must be regarded as contraband of war. 

The claimants argued that as the goods in this case were m 
transit for Vladivostock, which possessed the dual character of a 
naval station and a commercial port, they ought, in conformity 
with precedents in International Law, to be exempt from capture 
under the rules applicable to conditional contraband. This 

e ]2750 U 



306 The" Faros.]' 

argument has no valid grounds. On the contrary, the doptrines 
arid precedents of International Law recognise that, when goods 
which may be conditional contraband are sent to such a place 
as Vladivostock is at the present time, they are in the ordinary 
way liable to condemnation as contraband. 

The scales, confectionery, and so on, though not by nature 
contraband of war, belong to the claimants who own the contra- 
band goods set forth above. Where there are non-contraband 
goods in a ship carrying contraband, if their owner is the 
owner of the contraband, then, even when the vessel flies 
the flag of a neutral state, it is recognised by the doctrines and 
precedents of International Law that all the goods may be con- 
demned. The Declaration of Paris of 1856, which the claimants 
invoke, does not cover the case of this claim. 

The claimants explained that the reason for writing " for 
Hongkong " on the charter-party, manifest, and bills of lading, 
and on the cases of cargo, was that instructions had been 
received from the shipowners, prior to sailing from Hamburg, 
to proceed to Hongkong if Vladivostock should be blockaded, 
so that there was no fratid deliberately contrived at the time the 
ship left Hamburg. But that Vladivostock was the ship's 
objective from the beginning is clear from copies of letters sent 
before the ship left Hamburg by the claimants, Kunst and 
Albers, to their Nagasaki agent, August Gese, and, further, the 
claimants' attorney himself states that the siiip's intention was 
to proceed to Vladivostock so long as that port was not 
blockaded. Consequently tlie insertion of the words '.' for 
Hongkong" in all the documents in spite of the fact that 
according to the usual course of shipping business the real 
destination, Vladivostock, should have laeen declared,. must be 
regarded as a deliberate attempt to conceal the ship's real 
destination. The claimants also allege that it was in antici- 
pation of the possibility of the blockade of Vladivostock that 
the master of the ship, in obtaining his port clearance and bill 
of health at Labvian, stated his destination to be Hongkong, and 
for as long as the three weeks after leaving and up to the 
time of capture, wrote "for Hongkong " in both,, logs. But the 
master stated in his evidence before the assessors that the object 
of all this was to niakS^the Japanese cruisers and the general 
public believe they were going to Hongkong, and thus to 
escape capture. He fm-ther stated, "It was our intention, if we 
" got safely out of the Surigao Straits into the Pacific, to take a 
" devious course far from the shore, and, after sunset, to take 
advantage of the darkness and pass through the Tsugaru 
" Straits without lights." And again, "Though we did all we 
" could to avoid capture, once, we had the sword at our.'throat 
" near Iterup, we thought it was all up, and signalled to the 
" 'Hongkong Maru ' that we were for Vladivostock." It is 
therefore clear that all the various fraudulent devices mentioned 
above were the outcome of a deliberate intention to smuggle 



The"Parosr 307 

contraband. The doctrines and practice of International Law 
alike recognise that, wkere a ship is guilty of such fraudulent 
conduct, she is liable to condemnation whether the owners were 
privy to such conduct or not, and whether the contraband cargo 
belonged to the shipowners or not. 

For the above reasons the vessel and the cargo set forth 
above are condemned, and judgment is given accordingly. 



From this decision the claimants appealed to the Higher 
Prize Court. The appeal was heard on the 2nd November 
1905, and was dismissed. 

Decision of the Higher Prize Court:''' 

The main points upon which the appellants rely in support 
of their request that the judgment of the Prize Court should be 
reversed and the ship and her cargo released are as follows : — 

In this case only the ship belongs to the German company, 
the "Deutsche Tjcvant Linie" ; her cargo is not owned by that 
company, as was admitted by the Prize Court. According to 
Article 43 (2) of the Japanese Regulations relating to Capture 
at Sea,t it is laid down that when the owner of a ship carrying 
contraband is also the owner of the contraband the ship is 
liable to condemnation. Applying that principle to this case, 
although there may be contraband articles among the goods, the 
ship is not liable to condemnation, as the owners of the ship 
are not the owners of the contraband. 

The Prize Court, in order to avoid this conchision, held 
that both doctrine and practice in International Law recognise 
that a ship which has been guilty of the slightest fraudulent 
act is liable to condemnation irrespective of whether the ship- 
owner is or is not priw to stich action and whether the 
contraband cargo belongs to the shipowners or not. But the 
claimants do not admit that this is either the correct doctrine 
or the practice. On the contrary, they submit that, according to. 
the spirit of Articles 43 and 44 of the Japanese Regulations 
relating to Capture at Sea,t and the precedents of International 
Law, when the OAvner of the contraband and the owner of the 
ship are not the same, the ship is only liable to condemna- 
iti'on where the owner of the ship has been privy to the acts 
■of fraud. The immunity of innocent parties from restraint 
"is a general' principle, from which even International Law 
is not allowed to depart, and this principle is clearly the 
foundiation of the Japanese Regulations. 

In the charter-party the destination is clearly _ stated as 
"Vkdiv-oSto'ck,. arid it is declared that it was only in case of 



* P^ilWisiied in the Official Gazette, ToMo, November 18tli, 1905. 
•f App.B. 

U 2 



308 The"Paros." 

a blockade of tliat port ttat the ship was to discharge at 
Honglvoag. Inasmiich as blockade is recognised by Inter- 
national Law, the conclusion of a charter-party in such terms, 
having regard to the extension of the zone of operations which 
was at that time taking place, was a proper measure of precaution, 
and does not indicate any wrongful intention or fraud. Even 
supposing that the subsequent conduct was not in all respects 
proper, nevertheless, since there was no concealment in the 
charter-party, which is the principal guide to the destination, it 
cannot be said that any fraudulent devices were employed in 
respect of the loading of the vessel. The statement of the 
master, adopted by the Prize Court as being against the 
claimants, related, after all, only to the measures taken in order 
to achieve the object of the charter-party as stated above, and 
does not enable the inference to be drawn that there was any 
wrongfuk intention at the time of loading. 

In the Declaration of Paris of 1856 it is laid down in 
Article 2 that goods carried in a ship flying a neutral flag are 
not liable to capture unless they are contraband ; and in 
Article 3, that neutral goods carried in a vessel flying an enemy 
flag are not liable to capture unless they are contraband. It is 
clear that the intention of this Declaration is to restrict the 
liability to capture to contraband of war. The goods in the 
present case are neutral goods, and carried in a neutral vessel. 
Consequently, although among the goods in this case there 
may be some contraband articles, as the Prize Court has found, 
the goods which are not contraband ought to be released in 
accordance with the spirit of the Declaration of Paris. The 
Prize Court laid down the proposition that it is recognised by 
the doctrine and precedents of International Law that where 
there are non-contraband goods on board a ship carrying 
contraband, if their owner is also the owner of contraband, 
then, although the vessel flies the flag of a neutral state, all 
such goods may be condemned, so that the Declaration of Paris 
cited by the claimants did not apply to the case of this claim. 
But it is clear from numerous new decisions which have been 
given since the outbreak of the Russo-Japanese war that 
the precedents and doctrines of International Law are not 
necessarily to be followed exactly. Since International Law- 
to-day has advanced to the stage of minimising as far as 
possible the injury which private property is likely to suffer 
in time of war, it is right that the intention of the Declaration 
of Paris should be applied to the case of this claim, and that all 
goods other than contraband of war be released. 

As Vladivostock is a commercial port, which has been 
declared a free port. since 1860, the rules of International Law 
relating to what is called " conditional contraband " should be 
applied to the goods in this case. That is, where the same port 
possesses the characters both of a naval and of a commercial 
port, the rules relating to conditional contraband should b^ 



The " Paros." 369 

applied and the goods exempted from captiire. In answer to 
the claimants' arguments on tliis point, the Prize Court put 
forward the opinion that this argument had no valid grounds, 
and that, on the contrary, according to the doctrine and 
precedents of International Law, when goods which may be 
conditional contraband are sent to a place in the position of 
Vladivostock at the present time, it is recognised that they are 
in the ordinary way liable to condemnation. But, so long as a 
blockade as recognised by International Law does not exist, 
there is of course no restriction upon the freedom of neutral 
commerce, so that in the case of persons like the claimants, 
who have numerous l^ranches in the interior of Siberia, and 
import the same articles year by year, it is proper that an 
inference should be drawn in their favour, and the precedent 
in the case of the " Neptunus, "■'•'■ captured during the Anglo- 
Dutch war of 1798, is applicable to this claim. 

The substance of the Procurator's reply was as follows :-- - 
The charter-party in this case gives the destination simply 
as Hongkong, and there is no mention of Vladivostock. That 
such wording was fraudulent is quite certain, as explained in 
the decision of the Prize Court. There is therefore no doubt 
that the whole of the fraudulent conduct in this case originated 
in a conspiracy with the shipowners. To justify the condem- 
nation of the vessel on the ground of fraudulent conduct, it is 
unnecessary to decide the question whether the shipowners Avere 
or were not parties thereto. Again, that the Declaration of 
Paris of 1856 does not purport to forbid entirely the capture of 
cargo which is not absolute contraband, is clear from the 
instructions as to Prize Law issued by France, the country 
which took the leading part in framing the Declaration, the 
opinions of Ortolan, which form the foundation of the French 
doctrine of International Law, the Prize Court decisions of 
•England, which in the main agreed with that Declaration, and 
the doctrines now most generally accepted in the latter country. 
That is to say, in the present case, the Declaration of Paris does 
not cover the question at issue, where cargo which is not contra- 
band belongs to the owner of contraband. The Court_ was 
right in stating that doctrine and precedents in International 
LaAV alike recognise the liability to condemnation of ship and 
cargo in such a case, and in proceeding to declare both as good 
prize, and the, appeal on this point is therefore groundless. 

Furthermore, it is clear, as shown in the decision _ of the 
Prize Court, that the goods in this case Avere of three descriptions, 
absolute contraband , conditional contraband belonging to the 
owner of the former, and non- contraband ; that the claimants, 
the owners of the goods, had a branch in Vladivostock, the 
destination of the goods, and were carrying on the business of 



* Reported in 3 Chiistopher Robinson, p. 108. 



310' the^Paros." 

supplying tlie Russian Government, and that Vladivostock was 
the only Eussian base of supplies in the East. Consequently, 
even assuming, as the claimants contend, that Vladivostock also 
possessed the character of a n^ercantile port, that fact would in 
no way affect the conclusion ishat the absolute contraband, and 
the conditional, contraband as well, were for Russian military 
use. The original decision was therefore correct, and the appeal is 
groundless. 

The reasons for the decision of the Court are as f oUows : — 
The goods in this case were all in transit for Vladivos- 
tock. The cement, the field blacksmith's tools, being military 
materiel ; the iron sheeting, nails, linoleum, &c. being materials 
for the building and fitting of ships ; the zinc sheeting, copper, 
copper sheeting, brass sheeting, ^c, being material for naval 
ordnance, are absolute contraband, and therefore unquestionably 
liable to capture. Such provisions as rock-salt, mUk, butter, 
cheese, pickles, grain, &c., where conveyed to a place like Vladi- 
vostock, which was an important Eussian naval station, and at 
the same time a base of supplies, while ordinary trade was almost 
at a standstill, are also imdoubtedly, according to International 
Law, to be I'egarded as contraband and liable to capture. 
The claimants state that as Vladivostock combined the two 
characters of a naval and a commercial port, goods despatched 
thither should be released in accordance with the precedent 
in the case of the " Neptunus ""'■■' ; but the nature of the ports of 
destination in this case and the " Neptunus " case were different, 
so that the latter cannot be adopted as a precedent for the 
present case. 

The whole of the cargo was despatched by the charterers, 
Kunst and Albers, to their Vladivostock branch. The greater 
part of it being contraband, it must be concluded that the 
object of the vessel's voyage was the carriage of contraband. 
International Law" recognises the liability to condemnation 
of the vessel, in such a case, to say nothing of the fact that, 
although from the time of sailing from Hamburg it was 
already clear that the voyage was to Vladivostock, the desti- 
nation was falsely stated in the charter-party and the other 
ship's papers, so that the contraband of war was carried by the 
employment of fraudulent devices. The appellants state that as 
it was clearly stated in the charter-party that the destination 
was Vladivostock, and the ship was to discharge at Hongkong 
only if ■ Vladivostock was blockaded, the destination was not 
falsely given. But the provision in the charter-party is that 
the phip is " to proceed via the Suez Canal to Hongkong, and 
if this cannot be done the vessel to proceed to some neigh- 
bouring place Avhich she can reach in safety." This is most 
evidently a false statement as to the destination. 



Reported in 3 Chiistoplier Robinson, p. 108. 



fhe"Paros:' 311 

Thougi. there are a few non-contraband articles included in 
the cargo, they belong to persons who had planned to carry 
the contraband. Their liability "to condemnation with the con- 
traband is recognised bj^ International Law, and cannot be said 
to be*contrary to the Declaration of Paris of 1856. 

Upon the facts as above set fortli, the ship and cargo were 
properly condemned, and the appeal is groundless. 

This appeal is therefore dismissed. 



312 



THE "SAXON PRINCE." 

9 

Neutral ship — Capture on suspicion of carrying contraband — Cargo of rail- 
way material — Failure to stop on svmvmons — Cargo described in clearance 
certificate as " ballast" — Bill of lading made out to port already passed 
— Release — Capture justified'. 

A neutral sMp was oaptui-ed whilst on a voyage to Muroran, with a cargo 
of railway material, on the suspicion that her destination was Vladivostock. 
The bill of lading for the cargo was made out to Shanghai, and the clearance 
certificate obtained from the British Consulate at that port stated that the 
ship was in ballast. On being summoned by a Japanese warship, she failed 
to stop until fired upon. 

Held that, although the circumstances justified the capture, on proof of 
the time facts she should be released. 

The " Saxon Prince," a Britisli sliip belonging to tlie Prince 
Line, left New York with a general cargo. After calling and 
discharging cargo at Singapore and Shanghai she left the latter 
port cm March 7th, 1905, with some railway material for Muroran. 
Her clearance stated that the cargo was ballast and her destina- 
tion Mnroran. The bill of lading for the railway material gave 
Shanghai as its destination. She was captured on March 10th 
by the Japanese warship " Akashi," near the Straits of Corea, 
on suspicion that her real destination was Vladivostock. On 
being signalled to slie had failed to stop until fired upon. 
The case came before the Prize Court at Sasebo, and judg- 
ment was given on March 16th, 1905, releasing both ship and 
cargo. 

Decision of the Sasebo Prize Court."' 

The British steamship "Saxon Prince" and her cargo are 
hereby released. 

Pacts and Beasons. 

The "Saxon Prince" is the property of the Prince Line 
Company, of Newcastle-on-Tyne, England. She flies the British 
flag and is employed principally in tLe carriage of cargo. At 
New York she took in a cargo consisting of various kinds 
of goods, and left that port on December llth, lb04. She first 
went to Singapore via St. Vincent and Durban, Natal, and 
thence to Shanghai. At Singapore and Shanghai she landed 
part of her cargo. Her remaining cargo was railway material 
destined for Muroran, but she obtained at the British Consulate- 
General in Shanghai a clearance, stating that her cargo was 
ballast and her destination Muroran. She left Shanghai at 
about noon on March 7th, 1905, and on her way to Muroran, 
on the 10th of the same month, at 12.45 a.m., she was cap- 
tured by the Japanese man-of-war " Akashi " in lat. 34° 13' N. 



* Published in the Official Gazette, Tokio, March 22nd, 1905. 



The " Saxon Prince.'* 313 

and long. 130° 20' E. on suspicion that she was carrying 
contraband of war to Vladivostock. 

The above facts appear from the statement of Lieutenant K. 
Miyano, I.J.N., representing the captain of the "Akashi"; 
the evidence given by the master of the " Saxon Prince," 
B. W. Jamieson, the first mate, J. R. Gray, and the chief 
engineer, J. R. Smith, the certificate of registry, the log, bill of 
lading, manifest, clearance issued by the British Consulate- 
General at Shanghai, &c. 

The substance of the opinion of the Procurator is as 
follows : — 

By reason of the contradictions in the ship's papers and the 
route she took, the suspicion that she was attempting a secret 
voyage to Vladivostock was very natural, and consequently her 
capture was lawful. But as the result of the explanation made 
to this Court, it became clear that her destination was Muroran. 
The ship and her cargo should therefore be released at once. 

After due consideration the conclusion of the Court is as 
follows : — 

In the bill of lading of the railway material found on board 
at the time of the ship's capture the destination of the goods is 
given as Shanghai, and in the clearance issued by the British 
Consulate-General at Shanghai the cargo is given as ballast. 
Moreover, when the ship was passing the Strait of Tsushima 
and was signalled to stop by the man-of-war " Akashi," she did 
not respond to the signal, and she stopped only on being fired 
upon. Such being the facts, the action of the "Akashi" in 
capturing her, on suspicion that she was carrying contraband of 
war to Vladivostock under the pretence of going to Muroran, 
was proper. But as the result of the examination held by this 
Court, it appears that the railway material forming the cargo of 
the ship was to be supplied to the Hokkaido Tanko Tetsudo Kaisha 
(the Hokkaido Colliery Railroad Company) by the Mitsui Bussan 
Kaisha, and was shipped for Muroran by the United States Steel 
Manufacturing and Exporting Company of New York, U.S.A., 
to the order of the Mitsui Bussan Kaisha. This is clear from the 
contract between the Hokkaido Tanko Tetsudo Kaisha and the 
Mitsui Bussan Kaisha relating to the supply of rails and appur- 
tenances, the invoice received by the Mitsui Bussan Kaisha from 
the United States Steel Manufacturing and Exporting Company, 
the consignor of the goods tmder -consideration, telegrams from 
the Hokkaido Tanko Tetsudo Kaisha and the American Trading 
Company of Yokohama addressed to this Court, and letters 
addressed to the master, by the owner of the ship and his agent, 
as to the voyage to Muroran. Therefore the ship and cargo 
ought to be released, although their capture was lawful. 
Judgment has therefore been given as stated above. 



314 



THE "TACOMA." 

Neutral ship — Contraband — Salt heef, steel bars, machinery fittings — Destina- 
tion for a port used as a base by the enemy — Privity of the owners — 
Employment of fraudulent devices — False papers — Suspicious route — 
Condemnation. 

A neutral ship was captured on a voyage to Vladivostock, whicli was 
used as a base of supplies for tlie Russian forces, with a cargo of salt beef, 
steel bars, and machinery fittings. The owners of the ship were not the 
owners of the cargo. In some of the ship's papers a false destination was 
given, and she was captured on a route which was considered most dangerous 
at the time of year. 

Held that the cargo was contraband and that the owners of the ship 
were privy to the carriage of the contraband and had employed fraudulent 
devices to efPeot it. 

Ship condemned. 

The "Tacoma," an United States sliip, left Seattle for Vladi- 
vostock on January 5tli, 1905, with a cargo of salt beef, steel 
bars, and machinery fittings. The salt beef had been purchased 
in the United States by a Russian merchant named Demby and 
the Ebiky Company, both of Shanghai, who had entered into 
contracts with Major-General Dessino, of the Russian Army, then 
resident at Shanghai, for the supply of such articles to Vladivos- 
tock. It was consigned by Charles Nelson & Co., of San Francisco, 
to the Russo-Ohinese Bank at Vladivostock. The steel bars and 
machinery fittings were the propertj' of a Russian subject named 
Boleman, who sailed in. the "Tacoma" in the capacity of 
supercargo, and were also consigned to Vladivostock. Boleman 
was Demby's" representative and agent for the purpose of 
purchasing goods in America to be shipped to the Far East, and 
was also charged by the Ebiky Company with the duty of 
inspecting beef purchased in America for Vladivostock, and of 
arranging for its delivery to the consignee, travelling on the 
ship in which it was carried. 

The master of the " Tacoma " received instructions in 
writing from the owners to proceed to Vladivostock, or, if that 
port was closed owing to blockade or ice, then to Shanghai. 
The port of destination was given in the bill of lading as 
Vladivostock ; in the clearance and bill of health obtained at 
Seattle, and in the copy of the manifest submitted to the 
Custom House, it was given as Shanghai, and in the other copy 
of the manifest as "Shanghai, via ports." In the freight bill 
the part where the port of destination is entered was torn off. 
In the ship's log and engineer's log the destination was given as 
Shanghai. 

The " Tacoma " passed through the Boussole Strait, and was 
detained by floating ice in the Sea of Okhotsk for about 10 days 
After getting clear, she was about to proceed to Vladivostock by 



'"the " Tacoma:' 3l5. 

the Soya (La Perouse) , Strait when she was captured, on March 
14th, 1905, by the Japanese warship " Takachiho." 

A claim for the release of the ship was entered by her owners, 
the North-Western Steamship Co., Ltd., of Seattle. The case 
came before the Yokosuka Prize Court on June 1st, 1905, when 
judgment was given condemning the ship.* 

Decision of the Yokosuka Prize Court.'\ 
The United States steamship "Tacoma" is condemned. 

Facts and Reasons. 

The " Tacoma " is a merchantman owned .by the claimants, 
flying the United States flag and registered at Seattle, in the 
State of Washington. She took on board at Seattle about 9,000 
barrels of salt beef, part of which was given to the crew as food 
during the voyage, a quantity of steel bars, and a case of 
machinery fittinga for carriage to Vladivostock. The salt beef 
had been purchased in America by a Russian merchant named 
Demby and the Ebiky Goinpany, both of Shanghai, who had 
entered into contracts in November 1904 with Major-Greneral 
Dessino, of Shanghai, to supply Vladivostock with such goods. 
It was consigned by Charles Nelson and Company, of ' San 
Francisco, in the State of California, to the llusso-Chinese Bank 
at Vladivostock. The steel bars and machinery fittings were the 
property of Alexander Georgevitch Boleman, a Russian subject, 
the supercargo of the ship, who was on board in that capacity 
in accordance with the orders of the claimants. Boleman is the 
representative and agent of Demby, with full power to purchase 
goods to be supplied to the Government establishments, private 
persons, and companies. He was also intrusted by the Ebiky 
Company with the duty of inspecting salt beef to be purchased 
in America for carriage to Vladivostock, and of delivering it to 
the consignee, travelling on the ship in which the beef is carried. 
Before leaving Seattle the master received instructions, dated 
January 2nd, 1905, from the owner of the ship to proceed to 
Vladivostock, or, if the port was closed owing to blockade or 
ice, then to Shanghai. In spite of these instructions, he 
gave his port of destination as Shanghai when obtaining his 
clearance and bill of health. In the copy of the manifest 
submitted to the Custom House the port of destination was 
stated to be Shanghai, and in the other copy of the manifest 
it was given as " Shanghai, via ports." In the freight bill the 
part where the port of destination is entered is torn off. On 
January 5th, 1905, the ship left Seattle ; and in the ship's log 
and the engineer's log her destination is given as Shanghai. 
On the way she called at Dutch Harbour, and left there on 

* For the decision in the case of the cargo, ««e p. 320. 
t Published in the Official Gazette, Tokio, June 15th, 1905. 



316 The " Taeoma.'' 

January 19th after coaling. Slie steered along tlie Aleutian 
ArchipelagO; passed the Boussole Strait, and entered the Sea 
of Okhotsk. She then attempted to proceed to Vladivostock, 
but was hindered by floating ice, and drifted about for 10 days. 
On March 13th the conditions improved, and she was about 
to resume her voyage to her destination when, on March 14th, 
at 8 a.m., she was captured by the Japanese man-of-war 
" Takachiho " at a point about 40 miles south-west of Cape 
Shibetonitara, Shikotan Island. 

The above facts appear from the statement submitted by 
Lieutenant Ukawa, representing the captain of the " Takachiho " ; 
from the evidence of the same officer, of S. S. Knowlton, master 
of the " Tacoma, " and Alexander Georgevitch Boleman, super- 
cargo of the ship ; from the papers found in the possession of 
Boleman, the certificate of registry, the bill of lading (which, 
according to the master, is at once a bill of lading and a charter- 
party, but from its natm-e is considered to be the former), the 
clearance, bill of health, two copies of the manifest, freight bill, 
ship's log, engineer's log, a letter from the owners to the master, 
dated Januarj' 2nd, 1905, &c. 

The substance of the claimants' argument was that the cargo 
of the " Tacoma " is not the jjroperty of the shipowners, and 
consequently she is not liable to condemnation, even if the cargo 
is contraband of war. The owners instructed the master by a 
written document, dated January 2nd, 1905, to proceed to 
Vladivostock, or, if it was impossible to get there on account of 
blockade or ice, then to Shanghai ; and they also caused it to be 
stated in the bill of lading that the ship was bound to Vladivostock. 
These facts show that the owners undertook the carriage of the 
cargo in good faith, that the master gave the port of destination 
as Shanghai in the manifest, clearance, &c., in Adew of his 
instructions in the event of his being unable to reach 
Vladivostock, and that it was not a device to evade capture. 
The discrepancy as to the port of destination in the different 
papers is apparent at a glance, and is not calculated to deceive 
a captor, so that it cannot properly be considered as a fraudulent 
device. Salt beef is not absolute contraband, and when such 
an article is carried to a port like Vladivostock, which is both 
a naval and a commercial port, it ought to be considered as 
destined for Vladivostock' in its character of a commercial port, 
and not as supplied for military purposes, unless there is 
evidence to the contrary. This is clear from the case of the 
" Neptunus,"* captured during the war between England and 
Holland of 1798. The steel bars and machinery fittings are 
the property of Boleman, a Russian, at whose reqviest they were 
carried together with the other goods, and they too are not 
contraband of war. The ship should therefore be released. 

* Bepoi'ted in 6 Christopher Robinson at p. 108. 



The"Tacoma:' 317 

The conclusion of the Court is as follows : — 
There is no doubt that the salt beef was intended for the 
military use of the enemy. Major-General Dessino, of the Russian 
Army, who is residing at Shanghai and assisting the military 
operations of the enemy, had ordered the Russian merchant 
Demby and the Ebiky Company, of Shanghai, to buy it in 
America and forward it to Vladivostock, which is an important 
Russian base and a central supply depot. These contracts were 
made between the General and Demby and the Ebiky Company 
in November 1904. The beef was thus intended . for military 
purposes, and was consigned to the Russo-Chinese Bank at 
Vladivostock, and it is therefore right to consider it as con- 
traband of war. The steel bars and machinery fittings, which 
are the property of Boleman, are materials for shipbuilding, and 
there being no doubt tliat they were consigned to Vladivostock, 
it is clear that they, too, are contraband. Moreover, the facts 
that the ship obtained her clearance and bill of health when she 
left Seattle under the pretence that she was bound for Shanghai, 
although Vladivostock had been decided on as her destination 
before her departure ; that the freight bill was torn off at the 
part where the port of destination was entered ; that a false 
statement that she was bound for Shanghai was entered in the 
ship's log and engineer's log, and that the ship attempted to 
proceed to Vladivostock via the Soya Strait,''- taking a route which 
is considered the most dangerous in winter on account of snow, 
wind, and ice, are more than pardonable negligence or steps 
taken for convenience of navigation, and must be considered as 
devices employed to conceal the port of destination and to elude 
capture. The fact that the true port of destination is mentioned 
in the bill of lading and in the letter from tlie owiiers of the ship 
to the master is not enough to prove that the ship did not 
employ fraudulent devices. The intention to deceive is more 
apparent in view of the written statement and evidence of the 
officer representing the captain of the " Takachiho," in which 
he says that when the ship was visited the master attempted to 
put aside the two documents above-mentioned as not necessary, 
and to hide them from the visiting officer. According to the 
evidence of Boleman, the. claimants asked him to join the ship 
as supercargo, knowing that he was intrusted with special duties 
by the Ebiky Company. The above-mentioned letter, which the 
claimants gave to the master before his departure, shows also 
that they named various routes to Vladivostock and asked him 
to select one with the object of escaping capture by Japanese 
men-of-war. In view of all these facts, it is clear that the 
claimants provided the ship with full knowledge of the nature 
of the cargo to be carried. In other words, the claimants 
employed the ship to assist the enemy. The ship having 
employed fraudulent devices and assisted the enemy, she must 

* La Perouse Strait, 



318 The " Taeoma." 

he condemned, together with her cargo, which is contraband 
•of war, since condemnation in such cases is recognised both by 
■the theory and practice of International Law. Such being the 
grounds for condemnation, there is no need to consider the 
arguments of the claimants, and judgment is given as above. 



The owners appealed to the Higher Prize Court. Judgment 
was given on August 8th, 1905, dismissing the appeal. 



Decision of the Higher Prize CourV' 

This is an appeal against the decision given by the Yokosuka 
Prize Court on June 1st, 1905, condemning the United States 
steamship "Taeoma," which was captured by the Japanese 
man-of-war " Takachiho " on March 14tli, 1905, at a point about 
40 miles south-west of Cape Shibetonitara, Shikotan Island. 

The substance of the appellants' argument was that in 
undertaking the carriage of the cargo they did nothing which 
was not legitimate for neutral commerce ; that in carrying out 
this undertaking they did not employ fraudulent devices, nor 
was there anything to show that they had assisted the enemy. 
The Prize Court, however, found that the ship had employed 
fraudulent devices and assisted the enemy, and condemned her, 
together with the cargo. This decision was therefore wrong, 
and should be reversed. 

The substance of the argument of the Procurator of the 
Yokosuka Prize Court was that the ship made a false statement 
as to her destination. The greater part of her papers, too, were 
false and misleading. There was evidence to show that the 
owners of the ship were privy to 'the undertaking to supply 
provisions for military uses, and attempted to assist the enemy. 
They cannot therefore be absolved from responsibility. 

.The decision of the Court is as follows : — 

The, salt" beef on^ board was purchased in America by the 
Russian merchant Demby through the Ebiky Company, of 
Shanghai, to the order of Major-General Dessino, of the -Russian 
Army, who is residing at Shanghai and assisting the military 
pperations of the enemy. This is evident frOm the contracts 
and letter of authorisation found in the possession of Alexander 
Georgevitch Boleman, the supercargo of the " Taeoma," : and 
.horn. the. evidence given by him. .The salt beef was eonsigned 
to Yladivostock to the Jlusso-Chinesa-Bank,.as,is clear from' the 

* Publisbecl in the OjlHcial fl««ette,, Tddo, August 31st, 1905, 



The " Tacoma:' • 319 

letter given by the owners of the ship to the master, under date 
of January 2nd, 1905, and from the evidence of the master, 
Knowlton, and the above-mentioned Boleman. Vladivostock is 
a port which Russia used as a base of operations from the 
outbreak .of the Russo-Japanese War, and is an important 
supply depot. The consignees of these goods, too, were the 
Russo-Chinese Bank, which has an intimate connection with the 
Russian Government in the Far East. Thus it is clear that 
the salt beef in question was intended for military use at 
the place to which it was consigned, and consequently it is 
contraband of war. According to International Law, a ship 
which carries a cargo of contraband of war, knowing it to be 
such, may be condemned, together with the cargo! Now it 
wiU be seen from the evidence of Boleman and from the above- 
mentioned documents found in his possession that he was 
intrusted with the duty of inspecting and purchasing salt beef 
in America, which was subsequently shipped in the " Tacoma," 
and that the owners of the ship appointed him supercargo of 
the ship with full knowledge of the circumstances. Thus the 
owners must be considered to have attempted to carry contra- 
band of war with full knowledge of the facts, and to have assisted 
the enemy. Further, the owners of the " Tacoma " tried to land 
theTiirgb at Vladivostock, a base of the enemy, by the employ- 
ment of fraudulent devices, by concealing the poi't of destination, 
as is shown by the facts that the clearance and bill of health were 
obtained, when leaving Seattle, on the pretence that the ship 
was bound for Shanghai, notwithstanding the fact that the 
owners had given' to the master a letter designating the, port of 
destination as Vladivostock ; that the freight bill which is to 
be signed by the consignee was torn ofE at the part where the 
place of destination was mentioned ; and that not only was a 
false statement that she was bound for Shanghai made in the 
ship's log and engineer's log, but an attempt .was made to 
reach Vladivostock by the Soya Strait,® a route considered most 
'dangerous in winter, from wind, snow, ice, &c., notwithstanding 
that there is a more convenient route, at that season, by the 
Strait of Tsugaru. From whatever point of vi^ew the decision 
appealed from is regarded, it was perfectly right. 
This appeal is therefore dismissed. 



* La Peijouse Strait. 



320 

CARGO ex "TACOMA." 
CHARLES NELSON & CO.'S CLAIM. 

Contrahwnd — Salt beef, steel bars, machinery fittings — Destination for a port 
used as a base by the enemy — Condemnation. 

A neutral ship was captured on a voyage to Vladivostock, which was 
used by the Russians as a military and naval base and supply depot. Her 
cargo consisted of salt beef, steel bars, and machinery fittings. 

Held that the beef must be condemned as intended for the military use 
of the enemy, and the steel bars and machinery fittings as materials for 
shipbuilding consigned to enemy territory. 

The " Tacoma," an United States ship, was captured on a 
voyage from Seattle to Vladivostock on March 14th, 1905. Her 
cargo consisted of salt beef, steel bars, and machinery fittings. 
The salt beef had been purchased in the United States by a 
Russian merchant named Lemby and the Ebiky Company, both 
of Shanghai, who had entered into contracts with Major-General 
Dessino, of the Russian Army, then resident at Shanghai, for 
the supply of such articles to Vladivostock. It was consigned 
by Charles Nelson & Co., of San Francisco, to the Russo- 
Chinese Bank at Vladivostock. The steel bars and machinery 
fittings were the property of a Russian subject named BoJeman, 
who sailed in the "Tacoma" in the capacity of supercargo, 
and were also consigned to Vladivostock, and apparently by 
Charles Nelson & Co. 

A claim for the release of the cargo was entered by the 
consignors. The case came before the Yokosuka Prize Court 
on June 1st. 1905, when judgment was given condefmning the 
cargo. 

Decision of the Yokosuka Frize Court." 

The cargo on board the United States steamship " Tacoma," 
consisting of about 8,990 barrels of salt beef, 15 steel bars, nine 
bundles of steel bars, and one case of machinery fittings, is 
hereby condemned. 

Facts and Reasons. 

Of -the goods under consideration, which were shipped by 
the claimants, about 8,990 barrels of salt beef (when the cargo 
was loading at Seattle there were about 9,000 barrels of salt 
beef, but part of it was given to the ship's crew as food during 
the voyage) were purchased in America, to be shipped to 
Vladivostock, by a Russian merchant named Demby, and the 
Ebiky Company, both of Shanghai, under contracts entered 
into in November 1904 by Demby and the Ebiky Company 

* Published in the Official Gazette, Tokio, June 30th, 1905. 



TU " Taeoma," Charles Nelson & Go.'s Claim. 3L'l 

■vvitli Major-General Dessino, of the Russian Army, also of 
Shanghai. The steel bars and machinery fittings are the pro- 
perty of Alexander Georgevitch Boleman. The cargo was 
shipped, by the claimants at Seattle in the "Taeoma," to be 
carried to Vladivostock. The consignee of the salt beef was 
the Russo-Chinese Bank, Vladivostock. The " Taeoma " left 
Seattle on January 5th, 1905, and called on her way at Dutch 
Harbour. She left that port on January 19th, steered along the 
Aleutian Archipelago, passed the Boussole Channel, and entered 
the Sea of Okhotsk. She then attempted to proceed to Vladi- 
vostock, but was hindered by floating ice blocking her way, and 
drifted about for ten days. On March 13th the conditions 
improved, and she was about to resume her voyage to her 
destination when, on March 14th, at 8 a.m., the cargo, together 
mth the ship, was captured by the Japanese man-of-war 
" Takachiho," at a point about 40 miles south-west of Cai)e 
Shibetonitara, Shikotan Island. 

The above facts appear from the written statement siih- 
mitted by Lieutenant Ukawa, representing the captain of 
the " Takachiho " ; ft'om the evidence of the same officer, of 
S. S. Knowlton, master of the " Taeoma," and of Alexander 
Georgevitch Boleman, who had chai-ge of the cargo ; and from 
tlie papers found in the possession of Boleman, the bill of 
lading, which according to the master is at once a bill of lading 
and a charter-party, but from its nature is considered to be the 
former, two copies of the manifest, freight bill, &c. 

The substance of the claimants' argument was that the> 
goods in question are not from their nature contraband of war ; 
that in cases where such goods are to be carried to a port like 
Vladivostock, which has the dual cliaracter of a naval and a 
commercial port, they ought, unless there is evidence to the 
contrary, to be considered as- destined for Vladivostock in its 
character of a commercial port, and not as supplied for military 
use; that this is evident from the case of the " Neptunus,"® 
which was captured during the -war between England and 
Holland in 1798 ; that in the case of the goods in question this 
is the more necessary, since their use is not confined to military 
purposes. The steel bars and machinery fittings are the pro- 
perty of Boleman, a Russian, by wliose request they were car- 
ried, together with the other goods, and they too are not contra- 
band of war. The cargo should therefore be released, 

The conclusion of the Court is as follows : — 

TJiere can be no doubt that llie salt beef in question was 
intended for the enemy, to be used for military purposes, as 
it was consigned to Vladivostock, an inqiortant Russian base 
and supply depot, and had been bought by the Russian mer- 

* Reported iu 6 Christoplisr Robinson, at p. 108. 
c liTiO X 



32^ The" Tacoma," Charles Nelson & Go.'s Gldifn, 

chant Demb'y and the Ebiky Company to the order of Major- 
General Dessino, of the Russian AriiiyJ who was residing at 
Shanghai and assisting the military operations of the enemy, 
and was consigned' to- the Russo-Chinese Bank at Vladivostock. 
The beef must therefore be considered as contraband of war. 
The steel bars and machinery fittings, which are the property of 
Boleman, are all materials for shipbuilding, and as there is Ho 
doubt that they were consigned to Vladivostock, it is eieai- that 
they, too, are contraband :of war. . Goods which are contraband 
of war maybe condemned, even though they are carried tinder 
a neutral flag. This is recognised by the Declaratidn of = Paris 
of 1856, by International Law, and iii practice. 

Since the goods under coiiBideration^ may be condemned 
on the above grotfnds. there is no need to replj' to the arguments 
of the claimants, and judgment is given as above. 



323 



THE "INDUSTRIE." 

• ' • ■ ~ ' I ,■ 1 - ,• . 

Neu^-al ship^-Unneutrai Semce — Ship emplayeA to bhiain intelligence as to 
' the movements of ' one helligerent for'the pwrpose of reporting to the other 
■ > i ; — -Co/itdemmation. ■ 

^ A "neutral ship was captured ' after cruising for some days in the 
Tieighbourhood of the Japanese Fleet. She' was oStehsibly employed for 
collecting news for a iOhinesfe papefj'but was fbund by =the Court' to be, 
in fact, engaged in obtaining intelligence as to the Japanese fleet for the 
Russian Government. 
Ship condemned. 

i ' The " Industrie," owned by a German subject, J^ Block, was 
chartered by an American, li. R. MacDiarmid, the proprietor of 
the Ghefoo Daily News, a paper expressing pro-Russian views. 
She. sailed from Shanghai. to. Tsushima',, .returned to Shanghai, 
and then proceeded to cruise in the neighbourhood -of - the 
Japanese fleet, where she was captured. She had on board a 
German subject piirportirig to act as correspondent of the 
.Ghefoo Daily News, but both he and the master in their 
evidence before the Court were disposed to accept the sugges- 
tion that the ship was under contract of sale to the- Riissian 

' Government, and that any news obtained would be supplied to 

., the Russian authorities. 

- The owner made a claim for the release of the ship, and the 
case came before the Sasebo Prize Court, which gave judgment 
condemning the ship on July 13th, 1905. 

Deeision of the Sasebo Prize Court J'^ 
The steamship " Industrie " is herebj^ condemned, 

Facts and Reason^. 

The " Industrie "is the property of Jui-gen Block; a German 

merchant, and is employed as a salvage vessel and tug. She 

was registered at Hamburg, and flies the German flag On 

February 8th, 1905, the proprietor of the Ghefoo Daily News, 

: R.-'R. MacDiarmid, an American residing at Ghefoo, chartered 

the ship at Shanghai for three months, at the rate of 1,500 

taels a month, for the purpose of obtaining news. One Adolph 

Bannier, a German, was on board as war correspondent, at a 

monthly salary of 400 dollars.. With the object of collecting 

information as to the movements -of the Japanese Fleet, and 

reporting it to the Russian Government through MacDiarmid, 

-the "Industrie " left Shanghai on February 19th, 1905, and 

.' proceeded toward Tstishima via the Saddle Islands, reaching a 

:,point 40 miles south-west of the island on March 3rd, 1905. 

She then returned to Shanghai, arriving on the 13th. On the 

J-TT ' '-^ ■ : 1 , . 

* Published in the Official Gazette, Tokio, December 16th, lyOS. 

S 2 



324 The " Industrie." 

15tla she again left Shanghai and reached North Shin Island. 
Korea, on the 2.3rd. From the .23rd to the 27th she reconnoitred 
Quelpart and Anderson Island and the surrounding seas, and 
on the 27th at dawn she proceeded to Kadock Island. There 
she sighted a Japanese fleet about 5 miles to the eastward. 
After ascertaining the types, names, &c. of the ships, siie pro- 
ceeded to Fusan, with the object of cabling the infonnation to 
MacDiaruiid. On her way to Fusan, at 3 p.m. the same day, 
she was captured by the Japanese man-of-war " Kasuga," 2 miles 
south of Kadock Island, on suspicion of being engaged in 
collecting intelligence in order to assist the enemy. 

The above facts appear from the statement submitted by 
Lieutenant S. Oimikado, representing the captain of the 
" Kasuga," the evidence of Uddine and Schuested, the master 
and first mate of the " Industrie," and Bannier, the war corre- 
spondent, the certificate of registiy, the contract for the sale of 
the ship, the log, &c. 

The substance of the claimant's ai-gument was as follows : — 
The Procurator suggests that the Ghefoo Daily News is a 
newspaper published under tlie patronage of the Eussian 
Government, and that MacDiarmid chartered this ship to send 
her to the base of the Japanese fleet, under the control of the- 
correspondent Bannier, with the object of collecting and 
reporting military intelligence to the enemy. But the true- 
position is as follows : — 

(1) The Ghefoo Daily Netcs is not published under the 
patronage of the Russian Government. 

(2) Bannier is a temporary employee of MacDiannid, and is 
merely an ordinary newspaper correspondent. As such, he was 
observing impartially the movements of both the Japanese and 
the Russian fleets, but he never watched the actions of the 
Japanese fleet as a spy for Russia. 

(3) The owner of tlie ship did not agree to her charter for 
use as a scouting vessel in the interest of Russia. There is no 
evidence in support of the allegation of the Procurator that a 
contract for the sale of the ship was concluded between the 
owner and the Russian Major-General Dessino. That no such 
contract was concluded may be inferred from several letters 
which have passed between the claimant and MacDiarmid since 
January 13th, 1905, and from the letter of the Kawasaki 
Dockyard, Kobe, dated March 4th. 

(4) Newspaper correspondence is a work of pult)lic interest, 
and does not constitute unnevitral service. 

Co) Neutral ships should not be captured, except m cases 
of contraband or blockade running. Before a neutral vessel 
can be condemned for unneutral service, such service mxist be 
an accomplished fact and there must be evidence to prove it. 
Jn this case there is no such evidence. The ship is an innocent 
neutral vessel, and should be I'eleased. 



The " Industrie:' 325 

The substance of tlie argument of tlie Procurator was as 
follows : — 

The ship is ostensibly an ordinary newspaper correspondent's 
vessel, but in reality she was engaged under a secret agreement 
between the Russian Government and MacDiarmid, to scout 
and report the movements of the Japanese fleet. She should 
therefore be condemned. 

The conclusion of the Court is as follows : — 

To watch one of the belligerents and report military secrets 
to the other constitutes unneutral service, and International Law 
allows the condemnation of vessels employed for such a purpose. 
The claimant alleges that the " Industrie " was reporting for 
the Chef 00 Daily News, that that newspaper was not under the 
patronage of the Russian Government, and that the reporter on 
board the vessel was an ordinary newspaper correspondent, who 
watched impartially the movements of both the Japanese and 
the Russian fleets. But the Chefoo Daily News is a small paper 
which first appeared about the time of the outbreak of the 
Russo-Japanese War, and had not suflicient means to send out 
a ship for its own purposes. It is also notorious that the 
newspaper advocated the Russian cause, and deliberately gave 
publicity in its columns to anything disadvantageous to Japan. 
Moreover, in answer to the question whether he did not think 
it true that the Chefoo Daily News was an organ of the Russian 
Government, Bannier said, " I did not know that before, bixt 
" your question makes me think it is possible that the Chefoo 
" Daily News is receiving the patronage of the Russian Govern- 
" ment, as it is a small paper. At any rate, I cannot affirm that 
" the newspaper is not receiving patronage from tlie Russian 
" Government." He also answered another question as follows : 
" I think that my reports would be transmitted to the Russian 
" Consul at Chefoo or Shanghai and thence to the Russian 
" Government. I did not know that when I left Shanghai, and 
" ray intention was to report all that I saw not only of the 
" Japanese but also of the Russian fleet. I think, therefore, that 
" all my reports might assist the Russian Government." From 
these statements of Bannier, from similar statements of Uddine, 
the master, and from the fact that there was no vessel of the 
Russian fleet to be seen in the Eastern seas at that time, it is 
reasonable to infer that the Russian Government took advantage 
of the fact that the Chefoo Daily Neios was a neutral paper, 
subsidised it, and sent the vessel to watch the Japanese fleet 
and to report military secrets whilst ostensibly collecting news 
for the paper, and that the claimant knew of the scheme. The 
ship must, therefore, be held to have been employed to watch 
the movements of the Japanese fleet and. to report them to the 
enemy. Consequently, she must be condemned. The other 
arguments of the claimant need not be dealt with. 

Decision is therefore given as above. 



326 The " Industrie." 

From this decision- tlie claimant appealed to the Higher 
Prize Court. 

The appeal was dismissed on November 30th, 1905. ■ , 



Decision of the Higher Prize Cotirt.'^ 

The grounds of appeal were as follows : — 

The Prize Court assumed' that, the ship was chartered hy 
MacDiarmid, the proprietor of the Ghefoo ■ Daily News, a 
newspaper published under thie patronage . of the Russian 
Government, and , was sent under the direction of Bannier to 
the base of the Japanese Fleet, in order to collect information 
and report it for the use of the Russian authorities. This 
assumption was based upon the following grounds : that the 
Ghefoo Daily News was a small newspaper established recently, 
that it had not sufficient means to send out a vessel on its own 
account, and that it always published articles partial to Russia. 
These grounds are, however, mere allegations of the Prize Court, 
unsupported by any of the evidence in the case. In order to 
escape the difficulty of finding evidence to support the allegatioiis 
the Court called them notorious facts. The assumptions cf the 
Prize Court must therefore be held to be unjustifiable. 

The Prize Court in finding the above facts, quoted state- 
ments of Bannier . arid of the master Uddine. But these 
statements have no value as' evidence to prove those facts. 
To a question by the Councillor in charge, Bannier answered : 
" I did not know that before. Bit your questions make me 
think it is possible* . . ." The answer of Uddine was, 
" There was nothing in Block's behaviour to arouse my 
" suspicion, but from the questions I have heard in this 
" Court, it is probable. . . ." Thus, these two witnesses 
merely admitted the possibility of facts of which they had 
uo knowledge, in response to the leading questions of the 
Councillor. They both stated that they had no knowledge 
or idea of the alleged facts, and it is absurd to infer the 
existence of the facts fi'om such statements. 

The claimant had the " Industrie " insured for two mouths 
and a half fi'om February 17th, 190.5, and in the insurance policy 
it was provided that the vessel would not be insured north of 
Otaru, south of the Philippines, or east of Yezo, that she Avould 
not proceed beyond Moji, and that if she were sold within one 
month from the date, half the premium would be returned. 
In the charter-party concluded between the claimant and 
MacDiarmid special provisions were made in anticipation of 
the possibility of saving vessels in distress. In a letter from 
MacDiarmid to Bannier it was stated that the vessel might 
be inspected by a buyer at Moji or any other Japanese port. 

* Published in the Official Ganette, Tokio, December 18th, 1905. 



The " Industrie:' 327 

Seven thousand taels were asked for tlie charter of the vessel 
for three months, but this was reduced to 1,500 taels a month. 
Negotiations were, going ;on with the Kawa^alii Dockyard for 
the sale of the vessel, and there was hope of a favourable 
conclusion, and in negotiating with MacDiarmid the claimant 
had this expectation in mind. He believed that the vessel 
was at Moji on February 24th, 1905. When he heard that a 
vessel had ran ashore in the Pescadores and that French 
cruisers were in the Gulf of Siam, he expressed his regret that 
the vessel was in Japan, on the ground that she would have 
made a profit in the south. The vessel intended to sail towards 
the Philippines. All these facts appear from the documents 
produced as evidence by the claimant, and are sufficient to 
prove that the "Industrie " was not scouting for the benefit of 
Russia, but was really employed for getting war news for 
the paper. According to an affidavit sworn by MacDiarmid,, 
lie was acting as an agent for collecting news for several 
American papei'S, so that he had sufficient income and means,, 
and had no intention, to injure -lapan. Consequently, there is. 
no reason ■ to suppose that he was to be indemnified by the 
Russian Government. The Prize Court was therefore wrong^n 
its conclusions as to the facts. 



The substance of the answer of the Procurators of the 
Sasebo Prize Court was as follows : — 

It is clear from the statement of the master that on March 3rd, 
1905, the " Indiistrie " came to a point 40 miles S.W. of 
Tsushima'; that she returned to Shanghai on the 13th, but left 
again on the 15th, arriving at North Shin Island, Korea, on the 
23rd, and that from that day to the morning of the 27th she 
was reconnoitring Anderson Island and Quelpart and the 
surrounding seas. Moreover, Adolph Bannier, who was on 
board the "Industrie " as correspondent and had the control of 
the vessel, stated in his evidence that, as the Chefoo Daily 
News was a Bmall newspaper, it might be that it was receiving 
the patronage of the Russian Government ; that he thought 
that his reports would be transmitted to the Russian Govern- 
ment through the Russian Consul at Chefoo or Shanghai, and 
that his reports might be of use to the Russian Govern- 
ment. The clear inference from these statements is that the 
"Industrie" was not collecting news in the ordinary way, but 
that her. object was to watch the movements of the Japanese 
Fleet and to report them to the Russian Government. Again, 
what the Prize Court stated as a notorious fact was that the 
Chefoo Daily News has always been partial to Russia and had 
repeatedly published items directed against Japan, this is, of 
course, clear from the articles in the paper. The Court did not 
give the other two reasons alleged. This is evident if the 
decision be read intelligently. 



32H Tlui " Indusii-ie." 

In time of war the base of the main body of a belligerent 
fleet and its movements are secret, as anyone of intelligence 
knows. A neutral, as a matter of honour, should not divulge 
any such news, even if he learns it accidentally, and miich less 
should be attempt to find it out. The "Industrie" is a small 
craft of about 100 tons, but she braved rough weather and 
stormy seas, and cruised aboxit the coast of Korea for several 
days. Her intention could only be to discover the whereabouts 
of the Japanese Fleet. Moreover, it was common knowledge 
that at that time there was not a single Russian man-of-war to 
be seen in the Eastern seas. Thus Bannier's contention that he 
intended to watch both fleets impartially was untenable, and in 
answer to the questions of the Councillor in charge of the case, 
he said that this might be so, or that he thought it was a fact. 
These statements are in harmony with the facts, and it was not 
unreasonable for the Prize Court to take them as evidence. 

The facts that the vessel was insured, that there was ati 
agreement to sell the vessel, &c., are not sufficient to prove that 
she was an ordinary vessel without any wrongful intention. 
Cn the other hand, in his evidence the master stated as follows : 
" There was nothing in Block's behaviour to arouse m.y 
" suspicions, hut from the questions 1 have heard in this Court 
" I believe it is true that the Daily News is an organ of the 
" Russian Government, that the " Industrie " has been sold to 
" the Russian Government and is to be delivered at Vladi- 
" vostock, and that if she was captured on the way the Russian 
" Government were to pay 85,000 taels." "At first Block 
"" ordered me to proceed to Japan to collect news, but his 
" intention might be to send the vessel to Vladivostock with 
'' false papers in order to evade capture. . . ." Again, in 
I'eply to the following question : " According to the information 
" obtained by this Court, a contract for the sale of the 
" 'Industrie ' for 1-35,000 taels was concluded between Block 
■" and Major-General Dessino, of Shanghai, and the price was to 
" be paid on the delivmy of the vessel at Vladivostock, but 
" owing to fear of capture by Japanese men-of-war it was 
" provided that in that event the Russian Government would 
" pay Block 85,000 taels. Do you think this true ? " Bamiier 
nusvvered : " I did not take part directly in that business. 
" Therefore, I cannot positively assert it to be true, but I think 
" it is." Bannier also stated : " Before leaving Shanghai, Block 
" once told me that if orders to go to Vladivostock were sent 
" ,to any port where the ' Industrie ' was lying, I was to go to 
"that port." "I never told the master that the vessel was 
" going to Vladivostock, but at the time of leaving Shanghai 
" she was furnished with charts of the vicinity of Vladivostock, 
" so the master and I thought we were going to Vladivostock, 
" and these charts were furnished, I think, by Block's order." 
From these statements, it must be inferred that the vessel was 
purchased by the Russian Government, and that under a secret 



The " Iitduslrle:' 320 

agreement between the owner, Block and tlie newspaper pro- 
prietor, MacDiarmid, she was to collect information as to the 
Japanese Fleet under the guise of a newspaper vessel, and to 
cable the information she obtained. 

For the above reasons, the condemnation of the vessel by 
the. Prize Court was right and the appeal should be dismissed. 

The reasons for the decision of this Court are as follows :— 

The claimant argues that the " Industrie" wns chartered by 
MacDiarmid, the proprietor of the Ghefoo Daily News, to be 
employed to collect news for his paper. But she cruised about 
the Straits of Korea, and at last found the Japanese Fleet in the 
neighbourhood of Chinkai Wan. While her destination was 
osiensibly Moji, the owner, before her departure from Shanghai, 
gave notice of his iatention that she was to go to Vladivostock, 
and furnished her with charts of its vicinity. The Ghefoo 
Daily News has always been partial to Russia, and publishes 
articles injurious to Japan. ]\loreover, in the examination 
before the Prize Court, in answer to the question : " According 
" to the information obtained by tliis Court, a contract for the 
" sale of the ' Industrie ' for 135,000 taels was concluded between 
" Block and Major-General Dessino, of Shanghai, and the price 
" was to be paid on the delivery of the vessel at Vladivostock, 
" but owing to fear of capture by Japanese men-of-war it was 
" provided that in that event the Russian Government would 
"pay Block 85,000 taels. Do 3^01^ think this true?" Bannier 
answered : " I did not take part dii-ectly in that business 
" Therefore I cannot positively assert it to be true, but I think 
" it is." To another question, " Do you really think that the 
" Russian Government will pay 85,000 taels, and that the 
" Chef 00 Daily Neics was the organ of that Government? " he 
answered: "I think that is true." He also stated: "Having 
" heard that the Russian Government agreed to pay Block 
" 85,000 taels, and that the Ghefoo Daily News had been 
" receiving a subsidy from the Russian Government, I now 
" think that my reports would be transmitted to that Govern- 
" ment through the Russian Consul at Chefoo or Shanghai, 
"... and, therefore, all my reports might assist 
" the Russian Government." The master also made similar 
statements. Taking into consideration these facts and the 
statements of Bannier and the master, it may be assumed that 
the vessel had been sold to the Russian Government, and that 
while on her way to Vladivostock she attempted, in the interest 
of the Russian Government, to obtain secret information about 
the Japanese Fleet, under the pretext of collecting news for 
the Press. The claimant argues that the Prize Court was 
wrong in taking the statements of Bannier and tlie master as 
facts, alleging that the statements were only elicited by sug- 
gestions made in leading questions by the Councillor in charge 



330 The " Industrie." 

of- the case; But the statements were true, as disclose^ by 
Baimier anditlie master in their examinatioiij and it is qfuite^ 
proper to accept them as faets. As to the policy of insucrance, the' 
charter-par tj'^, the letters of MacDiarmid and the claimant,- &c., - 
to which the' claimant refers to prove that this vessel was 
merelj' collecting news for a -paper, thejr are not sufficient to 
rebut the presumption raised by the facts in the case. 

For the above reasons it is clear that this ship attempted to 
discover military secrets, and was employed by the eneniy ; and, 
"-therefore, the Prize Court was right in condemning her. 

The appeal is therefore dismissed. ' - ^ 



331 



THE "HENRY BOLCKOW." 

Conditional Contraband — Flour — False papers — Consignee undisclosed-^ 
Circuitous coiMfe^^Lights. 

A neutral vessel loaded a cargo of floiu- at Shanghai and obtained a 
clearance for Hong Kong. The bills of lading and other papers gave the 
destination ■ as Eorsakoft'. The cargOjwas alleged to be intended for the 
civil population at Korsakoff, who were on the verge of starvation. The shixj 
did not take the direct route, or display the proper lights. 

Held by the Prize Court that the flour was intended for the use of the 
military forces at Korsakoff, and was, therefore, contraband ; as fraudulent 
devices were employed the ship was condemned. 

Held by the Higher Prize Court that the real destination was 
Vladivostock, and that the flour was contraband and the carriage of 
contraband was the object of the voyage. Condemnation upheld. 

The " Henry Bolckow " was a Norwegian vessel belonging 
to Otto Vros, who was also master of the ship. On March 17th, 
1905, she loaded a cargo of flour at Shanghai consigned to 
Korsakoff by Melchers & Co. of Shanghai, who gave the 
master a letter saying the flour was intended for the starving 
people there. No consignee was named. A clearance was 
obtained for Hong Kong. There was no manifest. 

On leading Shanghai on March 18th, the "Henry Bolckow" 
first went south-east and then turned northward, passing ovitside 
Japan, and attempted to pass westward through Boussole Strait. 
Being prevented from so doing by drift ice, she then tried the 
Iterup Straits, where she Avas captured on April 7tli by the 
Japanese warship " Kumano Maru." 

A claim for the release of the ship was entered by the 
own^r. The case came before the Yokosuka Prize Court on 
June 28th, 1905, when judgment was given condemning the 
ship._. 

Decision of the Yokosuka Prize Court:-'' 

The Norwegian steamship " Henry Bolckow " is hereby 
condemned. 

Facts and Reasons. 

The steamship " Henry Bolckow " is a merchant yhip, 
registered at Tensberg, Norway, and entitled to sail under the 
Norwegian flag for six months reckoned from October 20th, 
1904. On March 17th, 1905, the claimant, as master of the 
shipj' received on board about 18,190 sacks of American 
flour from the consignors, Melchers & Co., at Shanghai, 
for Korsakoff, Sakhalin. In order to conceal her destination 
the ship obtained a clearance from the Shanghai Customs^ 

* Published in the Official Gazette, Tokio, December 21sfc, 1905. 



332 The " Henry Bulekow." 

for Hong Kong, and also got a certificate, by tlie Norwegian 
Consul at Shanghai, endorsed upon the list of the crew, to the 
effect that her destination was Hong Kong. Under instructions 
from Melchers & Co. to carry the cargo with dispatch and 
to shape her course to the east of Jajjan, she left Shanghai 
about 1 p.m. on the 18th of the same mouth, and instead of 
going to Hong Kong, took a soiith-easterly course, and after 
passing Tori Shima (Panafiden Island) and Yamome Iwa (Lot's 
Wife) through the north of Oki-no-Erabu, proceeded north-east. ' 
Approaching Hokkaido in the early part of April, she tried 
several times to pass through Boussole Strait, north-east of Urruj) 
Island, but being prevented each time by floating ice, stood 
to the southward, and while intending to pass through tlie 
Iteriip Straits she was discovered by the Japanese man-of-war 
" Kumano Maru," at about 2 p.m. on April 7th in lat. 45° 10' N. 
and long. 149° 29' E., and captured as a ship carrying provisions 
intended for the military iise of the enemy. At the time of 
capture she had on board a copy of an imperfect bill of lading, 
but no clearance nor manifest. She had frequently in violation 
ot the rules relating to navigation failed to carry lights when 
she was approaching Japan. 

The above facts appear from the written statement of Sub- 
Lieutenant S. Toriyama, representing the captain of the 
" Kumano Maru," the evidence of Otto Vros, the master, 
A.Amusen, first mate, S.Lee, chief engineer, Ohuanchengsheng, 
boatswain, Changhsiangyuan, Changhsiaolin, quartermasteis, 
Asbeng Asan, Achuan, sailors of the " Heniy Bolckow," and of 
Lieutenant S. Toriyama, and from the telegraphic answer of 
the Vice-Minister of Foreign Affairs, the ship's log, tlie 
certificate of registry, the provisional certificate of nationality*, a 
letter to the master from Melchers & Co., a telegram attached to 
the letter, and the list of the crew. 

The main points of the claimant's argument were as 
follows : — 

The claimant is the owner as well as the master of the ship. 
She took on board about 18,190 sacks of American flour on 
March 17th at the request of Melchers & Co., at Shanghai, and 
while on her way to Korsakoff, Sakhalin, in order to carry the 
cargo there, she was captured by the Japanese man-of-war 
" Kumano Maru " on April 7th in the vicinity of the Iterup 
Channel. The cargo was bought and shipped by Melchers & 
Co. at the request of the Det Ostasiatick Co., of Copenhagen, 
for the relief of the starving people at Korsakoff, Sakhalin, 
and not for military use. Hence the ship cannot be held to 
have been engaged in the carriage of contraband of war. The 
mention of Hong Kong as the destination in the list of the crew 
was for the purpose of concealing from the crew the fact that she 
was bound for Korsakoff ; that it was not made in order to 
evade capture is proved by the fact that Korsakoff was given in 



The " Henry Bolckoio." 333 

the bill of lading as the destination. The ship committed no 
act justifying condemnation, and should, therefore, be released. 

The conclusion of the Court is as follows : — 

The claimant contends that the American flour, the cargo of this 
ship, was to be transported to Korsakoff for the starving peoj^le 
there, but he denies any kno'ivledge as to who the starving- 
people were. In the letter fi-om Melchers & Co. to the master, 
it is stated that the cargo was to be supplied to the starving 
people of Korsakoff, Sakhalin, and not to any other place than 
Sakhalin, and that the correctness of the above statement would 
be certified by the consul ; but it would have been impossible 
for the consul to give such a certificate, seeing that he had 
actually mentioned in the list of tlie crew that the ship was bound 
for Hong Kong. Moreover, in the letter, the words " starving 
people " are imderlined, which shows that the statement Avas 
purposely made in order to escape capture, and therefore cannot 
be taken as a true statement. Although there was ample time 
for supplying evidence as to who the consignee was, none was 
given on this point, nor was there any trustworthy proof of the 
statement that the cargo was intended for the starving people. 
On the other hand, the port of Korsakoff is an important 
defensive place in the southern part of Sakhalin Island. The 
strength of the garrison has been increased since the outbreak 
of the Russo-Japanese War, and the volunteer system has been 
established. On March 31st, 1904 (O.S.;, the Viceroy of the Far 
East issued a special ordinance to encourage volunteers, and stipu- 
lated that exiles, who would become volunteers, should receive 
a reduction of their punishments. As the result of these steps, 
the military force at Korsakoff has of late increased immensely. 
Some of the civil residents of the place, whose number was 
very small even in time of peace, liave remoAed since the war 
to other places, expecting an attack from the Japanese Army, 
the remainder have enlisted as volunteers, and it is a fact 
that now only a very small portion of them remain there. 
Although Korsakoff was definitely decided on as the ship's 
destination at the time of lier departure from Shanghai, a 
clearance was obtained from the Custom House for Hong Kong ; 
and a similar false statement o£ destination in the crew list 
was obtained from the Norwegian Consul. Although instructed 
to cany the cargo with dispatcli, she did not take the nearest 
route, but tried by way of the Pacific Ocean to pass through 
J3oussole Strait or Iterup Strait, and when prevented hv 
floating ice, still strove to navigate that difficult passage. 
She also in violation of the sailing rules, when approaching- 
Japan, failed to carry the proper lights. These steps can only 
have been taken to evade capture by the Japanese Navy. 
When the above facts are taken into consideration it is evident 
that the cargo of this ship was not for ordinary trade nor to 
be supplied to starving people, but was being carried for the 



f 334 The " Henry Bolckow." 

.military use of tke enemy. Hence it may -be regarded as con- 
traband of war; ; As stated above the ship obtaiiied a olearaiice 
by a false statement as to her destination ; she purposely took 
a roundabout course with a. false statement of destination in the 
;, list, of the crew; she. failed to cany lights^ injvioliation of the 
-sailings rules ;: and she was not provided with bills of lading or 
manifest In short, she carried cpntKiband of iwar ■ by means of 
fraudulent devices. Both the theory and the practice of Intei*- 
national Law allow the, condemnation of a ship' under such 
y circumstances. ■ - ' : - - 

i For these, iieasons, the ship is, liable to condemnation. As 
to the .other; points raised by the claimant, no explanation is 
■ necessary. . • • . . , ■ ' 



The ownfer of the "Henry Bolckow" appealed fi-oni tlie 
above decision to the Higher Prize Court. The appeal was 
dismissed on November 30th, 1905. 

Decision of the Higher Prize Gourti''^ 
The substance pf the appellant's argument was as follows :^ 
It was a well-known, .fact, and was reported by all • the 
reliable ne'vrspapers of Europe, that a severe famine had been 
. caixsed in the Island of Sakhalin owing to an insufficient supply 
of fish, that there was no flour, and that there were occurring 
cases of dSjath from starvation- The appellant carried the 
American flour on board this ship with the object of supplying 
Korsakoff, in tjie island of Sakhalin, Avhieh was in this pitiable 
condition, and <iid not undert{ike the carriage of the flour with 
the intention of supplying it to the Russian forces,' even though 
he may not have been acquainted with the precise details 
concerning the people for whom it was intended and the famine 
with which they were threatened. Consequently his proceeding 
was a legitimate commercial transaction open to neutral 
copimerce and justified by International Law. He certainly 
could not be held to have engaged in the carriage of contraband 
of war. In prder tO: find the vessel's cargo contraband of war 
aiid to hold that ,the claimant had carried such eargo knowing 
it to be contraband, the Prize Court set out a series of facts in 
explanation of.thei:? decision, namely, that the port of Korsakoff 
Avas an important defensive position in the southern part of 
Sakhalin, that it was fiUed with garrison troops and- volunteers, 
that the ordi^niary population had for the most part left that 
place and removed elsewhere, and so forth. These explanations, 
even if taken as true, afford no test of the propriety or otherwise 
of the claimant's action. Once it is admitted that Korsakoff was 
not a military, port, the claimant was justified in undertaking the 

* Published in the 0^«iaZ (So!«e<fe, Tokio, December 21st, 1908. 



The "' Henry Bolahowr 335 

.carriage of goods for that port ; .and the ijature of the defensive 
preparations underteiken at the.;portof destination, is no ground 
for holding that he had suddenly ehanged his, original. innocent 
iitterttion with r regard to the cargo and engaged. in the carriage 
of contraband. As regards, tlie identity of the consignee, -the 
cl9.imai^t would be informed of this by the owner of the goods 
immediately upon, his notifying by. telegraph his arrival at the 
port in question. Prior to his arrival the claimant would 
have no means of knowing who the consignee was, and there is 
nothing surprising in such ignorance, .The eriticism upon him 
mado by the Prize Court because he could , not give evidence on 
this point is to blame him for not doing, what was impossible. 

■ The Prize Court based its view that the cargo of the " Henry 
Bolckow" was not intended foi: ordinary commercial use, such 
as supply to a starving population would be, but was- carried 
entirely for the military use of the enemy, on. the circumstances 
that a false destination was indicated in the list of the crew, that 
the regular and shortest route was not taken, but a difficult and 
circuitous course followed, and that contrary to rule side-lights 
were from time to time not displayed, and so forth, and upon 
such facts the Court held that the vessel employed fraudulent 
devices to avoid capture by the Japanese Navy, and that she was 
carrying contraband of war. None of fliese circumstances can 
be regarded under International Law as. proceedings calculated 
to deceive a captor. When the vessel cleared from Shanghai, 
Hong Kong was declared as her destination and the same entry 
made in the list of the crew. This was merely an untruthful 
declaration made to the authorities concerned to prevent the crew 
refusing to proceed to the iidorthem seas. That it was not with 
intent to evade capture by a Japanese warship is clear fi-om the 
fact that in the most important of the ship's papers, viz., the 
bills of lading, Korsakoff was specified as the destination. 

Secondly, the choice of a route could. not be called a fraudu- 
lent device calculated ' to deceive a captor. Properly speaking, 
a fraudulent device to evade capture must be an expedient 
capable of deceiving the captor on an occasion when the 
carriage jof contraband has been detected. Such a proceeding 
as taking a circuitous course instead of the regular route was no 
more than an attempt to avoid encountering a captor in order 
to escape the inconvenience of visit and search, and could not 
really be considered as a fraudulent stratagem., to evade capture 
by misleading the captor. Even assuming that at times the 
sidelights were extinguished at night during the voyage in seas 
unfrequented by passing vessels, this was done from the point of 
view of economy. The lighting of lamps being chiefly designed 
with the object of avoiding collisions, and there being no real 
harm in extinguishing them from time to time in seas where the 
passage of ships is extremely rare, and there exists no danger of 
collision, it is almost regarded by navigators as, a usual practice, 
and therefore it was wrong to hold such a proceeding to be an act 



336 The " Henry Bolehow." 

calculated to deceive a captor. The fact that the vessel had 
no clearance certificate was due, as certified by the Shanghai 
Customs, to the rule at that port not to issue clearance certificates, 
and the fact that the vessel was not provided with a manifest 
was not unusual, and by no means peculiar to this ship. Con- 
sequently, the absence of a clearance certificate and a manifest 
cannot immediately be assumed to be a fraudulent device to 
elude capture. 

The substance of the reply of the Procurator of the Yokosuka 
Prize Court was that both in the bills of lading produced by 
the claimant, who was the master of this vessel, and in the 
letter addressed to the master by the consignor, it was stated 
that the vessel's destination was Korsakoff. Among other things 
the letter stated that the cargo of the vessel was not meant for 
supply to any belligerent, nor was it destined for any port outside 
Sakhalin, but was for the starving people of Korsakoff in that 
island. The words "starving people" were underlined. The 
claimant alleged that these statements were triie. The Prize 
Court accepted the statement that the destination was Korsakoff, 
but held that the statement that the goods were for supply to a 
population on the verge of starvation was false, and that they 
were intended for supply to the military forces in that island. 
He himself was convinced that the statements referred to were 
botli false, that the real destination was Vladivostock, and that 
the cargo was for supply to the Russian commtmications depot 
at that port. 

Although the claimant alleged that it was well known, and 
leported by reliable Eiiroj)ean newspapers, that there was no 
flour in Saldiaiin and that some cases of death by starvation had 
occurred, he produced no proof to show in what newspapers such 
statements had appeared . 

If the fact of tlie famine was estaljlished and the cargo was 
intended for Saldiaiin, it was impossible to explain why the 
vessel carefully avoided the short and safe route via the Tsushima 
Straits and across the Sea of Japan, and selected instead such a 
circuitous and dangerous route as she took, viz : — Proceeding 
south-east from Shanghai, emerging into the Pacific by way of 
the nortli of Okinawa, and attempting in the face of floating ice 
to traverse the Boussole Strait or Iterup Strait. 

The explanation of the claimant was that it was to avoid the 
inconvenience of visit and search ; but the jjroper course when 
engaged in an honest transaction would be to comply with the 
proper formalities, to provide one's self fully with all the papers 
rehitive to the cargo and with the certificate of the proper 
autliorities, to make the voyage openly by the regular route, and 
if subjected to a visit to explain the facts to the officers. Tliis 
might be called inconvenient, but such inconvenience was hardly 
worth mentioning in comparison with the trouble of a clandestine 
voyage by a circuitous and perilous route. In view of tlxe 



The " Henry Bolckow:' 337 

vessel's intentional choice of such a roundabout and dangerous 
course there could be no douljt that the statements in the bills 
of lading and in the master's letter were entirely false, and that 
the real destination was some port outside the island of Salchalin. 

It was a notable fact that at the time of this vessel's capture 
the number of ships secretly carrying military supplies to 
Vladivostock was enormous and that the route they traversed or 
attempted to traverse was in each case from the China seas 
round by the Pacific through the Soya Straits, and the course 
selected by this vessel was precisely the ordinary route adopted 
for smuggling military supplies to Vladivostock. 

It was therefore plain that the destination of the cargo of 
this ship was Vladivostock, and that it consisted of military 
supplies for Russia. In view of the fact that the object of 
inserting a false destination in the bills of lading was to convey 
Russian military supplies to Vladivostock, the vessel was properly 
condemned, and there are no grounds for the appeal. 

The reasons for the decision in this case are as follows : — 

The appellant stated that the American flour which foi-med" 
the cargo of the vessel was being carried to the port of Korsakoff 
for the population of the island of Sakhalin, Avho were on the 
verge of starvation, and was not intended for supplj)- to the 
Russian forces. At the time of sailing from Shanghai the vessel 
obtained permission from the Customs to leave upon a false 
declaration that her destination was Hong Kong, and Hong Kong 
was also entered as her- destination in the service books of the 
crew, but she did not call at Hong Kong. Despite the fact that 
it was alleged that her destination was the commercial port of 
Korsakoff and that the object in view was the urgent relief of 
famine, the vessel did not arrange to arrive as soon as possible 
by proceeding openly by the regular and safe route of the Japan 
Sea. Instead, she made a lengthy circuit through the Pacific 
and attempted to pass through Boussole Strait, and, when 
prevented by floating ice, she made a fresh attempt to traverse 
the Iterup Strait. From time to time she extinguished her 
side-lights contrary to rule, and also was not provided with a 
clearance certificate or manifest. 

Judging from these facts and from the statements of the 
crew, one is forced to the conclusion that the cargo was not 
being carried to the port of Korsakoff for the purpose of 
supplying the starving population, but was being transported to 
Vladivostock, an important Russian military port and base depot, 
for the military use of the enemy. That is to say, the object of 
the voyage was the carriage of contraband of war. "I'he liability 
to condemnation of a vessel, the object of whose voyage is, as in 
this case, the carriage of contraband of war, is recognised by 
International Law, and the Higher Prize Court considers this to 
be in accord with correct principles. Further, not only was the 

e 12750 Y 



338 The " Henry Bolelww." 

entire cargo contraband of war, bnt, as above stated, fraudulent 
devices were employed in the act of its carriage. As there 
is clearly no foundation for the appeal in this case it is ■ not 
necessaty to go into particular explanations with regard to 
each grouhd of appeal. 

The appeal is therefore dismissed. 



339 



CARGO ex "HENRY BOLCKOW." 

Conditional Conti-ahand — Flour — false pa/pers — Consignee undisclosed — 
Circuitotis bourse — Lights. 

A neutral vessel loaded a cargo of flour at Shanghai. The bills of 
iadiag gave the destination as Karsakoff, bat in some of the ship's papers 
Hong Eong was given. The flour was alleged to be for the civil population 
of Korsakoff, who were on the verge of starvation. The ship , took a 
•circuitous course. 

Held that the flour was intended for the use of the military forces at 
Xoi-sakoff, and was therefore condemned as contraband. 

The " Henry Bolckow " was a Norwegian stiip belonging to 
Otto Vros, wlio was also its master. On IVTarch 17tli, 1905, 
Melchers & Co:, of Shanghai, shipped oh hoaird the "Henry 
Bolckow " 18,190 sacks of America;n flour for Korsakoff and in- 
structed the captain to fcarry it there with dispatch and to shape 
his course to the eastward of Japan. A clearance was obtained 
for Hong Kong, and an entry of Hong Kong as the destination 
was made on the list 6f the crew by the Norwegian Consul. 
The bill of lading ga;ve Korsakoff ; no manifest was carried 
on board. From Shailghai the vessel took a south-easterly course 
fit first and then het,ded northward to the east of Japan. She 
was captured on April 7th, 1905, by the Japanese warship 
^' Kumano Maru " while intending to pass through Iterup 
Strait, having been prevented from passing through Boussole 
Strait by floating ice. 

The case came bdf ore the Yokosuka Prize Court. A claim 
for the cai'go'was entered by Melchers & Co., of Shanghai. 
Jvidgment was giveii by the Prize Court on June 28th, 1905, 
when the flOTir was condemned as contraband. As the argu- 
ments and the decision are practically identical with those in 
the proceedings relating to the ship* they are not reported at 
length, but are considerably abridged. 

Decision.^ 

Eighteen thousand one hundred and ninety bags of American 
flour, carried by the Norwegian steamship "Henry Bolckow," 
are condemned. 

Facts and Reasons. 

This flour was shipped on board the steamship " Henry 
Bolckow " at Slianghai on March 17th, 1905, for conveyance to 
Korsakoff, Sakhalin. Its destination was concealed, the Customs 
authorities at Shanghai being informed that the vessel was 

* See p. 331. 

t Published in the Offic/nl Ckizett,:, Tokio, July 20fch, 1905. 

Y 2 



340 Cargo ex " Henry Bolckow." 

bound for Hong Kong, and a certificate being obtained from the 
Norwegian Consul on the list of the crew to the same effect, 
Melchers & Co., the consignors, ordered the vessel to proceed 
as quickly as possible by the route east of Japan, and she left 
Shanghai on March 18th. She was hindered in several attempts 
to reach Korsakoff by drift ice, and was finally captured on 
April 7th in lat. 45° 10' N., long. 149" 29' E., by the Japanese 
warship " Kumano Maru." 

The Court, after hearing the Procurator's argument, based 
its decision on the following grounds : — 

The master stated, when examined, that the flour was carried 
to Korsakoff for the starving people there, but he knew nothing 
as to the actual facts of tlie famine, nor did he know who was 
the consignee of the flour. The only evidence to show that the 
flour was destined for starving people in Saldialin was a letter 
addressed by the consignors to the master, which, in view of 
the internal evidence, cannot be accepted as being a correct 
statement of the case. On the contrary, Korsakoff is an 
important defensive position in the southern part of Sakhalin. 
Russia had increased her garrison there since the commence- 
ment of the war, and had collected volunteers ; the civil 
population had diminished considerably, some moving to other 
parts for fear of a Japanese attack, and others joining the 
volunteers. When leaving Shanghai, the fact that the vessel's 
destination was Korsakoff was concealed ; in spite of the 
consignors' orders the shortest course was not taken ; and when 
off the coasts of Japan lights were at times not displayed, in 
contravention of the regulations. Clearly this was done in 
order to avoid capture, and, fraudulent devices having been 
employed, it is manifest that the cargo was in fact destined for 
the use of the enemy forces. It may therefore be held to be 
contraband, and, even though carried under a neutral flag, may 
be condemned in accordance with International I^aw.* 



There was no appeal from the decision condemning the cargo. 



THE "LINCLUDEN." 

Contract to carry fodder to naval base — Alteration of destination during the 
voyage — Release — Capture jiistifiable. 

A neutral ship agreed to carry a cargo of grain to Vladivostock, and 
shipped the grain and started on her voyage accordingly. At an inter- 
mediate port the owners directed the master to proceed to another port at 
which they had agreed to dispose of the cargo. While making for this port 
she was captured on suspicion of carrying contraband. Her papers were in 
order. 

Held that the capture was justifiable as the papers afforded no con- 
clusive proof of the change of destination, but that as the ship was not, in 
fact, on her way to an enemy port, the grain was not contraband and both 
ship and cargo should be released. 

Decision. 

The facts of this case are set out in the judgment. The 
case came before the Sasebo Prize Court and judgment was 
given on May 21st, 1905. releasing the " Lincluden " and her 
oargo, on the recommendation of the Procurator. 

Decision of the Saseho Prize Court."' 
The steamship " Lincluden " and her cargo are released. 

Facts and Reasons. 

The "Lincluden" is the property of the Lincluden Steam- 
ship Company of Manchester, flying the British flag and 
employed in the carriage of goods. On January 11th, 1905, the 
master, oinder authority from the owner, agreed with the crew at 
Savona, Ita/ly, to take in a cargo at a Black Sea port and carry 
it to Vladivostock, Russia. The ship sailed on the same day 
and arrived at Nicolaiev on the 23rd. She took in at Nicolaiev 
about 3,607 tons of barley with a bill of lading in which the 
consignor was given as P. Hosner and the consignee " to order" 
at Tsingtao, China. She sailed from Nicolaiev on the 26th, 
and arrived at Woosung, China, on May 12th, via Constanti- 
nople, Port Said, and Labuan. At Woosung, the master 
received orders from the owner directing him to Strachan & Co., 
Kobe. The ship left port, en route for Kobe, on May 13th. On 
the 16th, at 9.30 a.m., she was captured by the Japanese man-of- 
Tvar " Sado Maru " in latitude 33° 10' N. and longitude 127° 37' E. 
on suspicion that she was transporting contraband of war. 

The above facts appear from the statement of Lieutenant 
T. Kimura, representing the captain of the " Sado Maru "; from 

* Published in the O^icial Gazette, Tokio, June 15th, 1905. 



342 The "Linduden:' 

the evidence of C. H. Laying and T. G. Sambridge, master and 
first mate of tlie " Lincluden," and from th.e certificate of 
registry, log-booky ship's journal, bill of lading, manifest and 
clearance from Shangbai, from the telegram from the owner 
addressed to the master, the letter from Dodwell & Co.,. 
Shanghai, addressed W'thfe master, and the telegrams from 
Strachan & Co., Yokohama, aiddressed to this Court;, 

, The substance of the opinion of the , Erocurator was as 
fellows : — ' ' 

This ship took in a cargo of barley, and left port intending 
to, proceed to yia(Jiyos,tOGk ; she was capturgd on the suspicion 
<of carrying contraband and cannot maintain that such capture 
was not justified. The result of the examination in this -Court,, 
is to show that on the way she altered her destination, and at 
the time of capture was making for Kobe. She was not, there- 
fore, carrying contraband of war, and ought to be released 
immediately. 

The conclusion of the Court is as follows : — _ 

The original intention of the ship, under the contractsr 
entered into by the master and crew, was to cany barley to 
Vladivostock,a Russian naval base, so that, at first, her object 
was the carnage of contraband. It is a common practice with 
vessels engaged in illegal voyages to falsify the true destination 
in their papers in order to escape capture. In this case, although 
the ship's journal, the clearance from Shanghai, and the letters, 
and telegrams addressed to the master, state that she was bound 
to- Kobe, they do not amount to conclusive proof that she had 
altered her origiaal intention. The action of the "Sado Maru " 
in capturing the ship was therefore justifiable, but the investi- 
gation made by this Court shows that there can be no doubt 
that she had actually/abandoned her original intention of going; 
to Vladivostock, and was on her way to Kobe to deliver the' 
-cargo to Strachan & Co. The ship and her cargo should there- 
fore be released, although her capture was justifiable. 



313 



THE "QUANG-NAM." 

Neutral skip — Unneutral Seroice — Employment by the enemy government for 
reconnaissance — Condsm,nation — Evidence — Admissibility of oharter- 
p'arty not on board at the time of captivre — Practice — Claim by charterer. 

A neutral ship was captured in a locality where information as to the 
Japanese defences might be obtained. Her movements previous to her 
capture did not suggest an ordinary mercantile voyage, and the charter- 
party was not on board. Her officers stated in their evidence that they 
suspected that she was chartered by the Russian Government. 

Held upon the facts that the ship was being employed by the enemy 
government, and was therefore liable to condemnation. 

Held by the Sasebo Prize Com-t that a charter-party, which was not on 
board at the time of capture, could not be admitted as evidence. 

Held by the Higher Prize Court that a charter-party, authenticated by 
the judge of a court before which proceedings had been brought upoir it, 
was admissible, and was evidence that the charterers had an interest sufficient 
to enable them to make a claim. 

The-" Quang-nam " was a cargo boat belonging to a Fi-encli 
company, and was chartered by Motte & Co., of Saigon. 

On April 23rd, 1905, she left Saigon with a cargo of spirits, 
which she delivered to the Russian Baltic Fleet in Kamranh 
Bay. She proceeded to Shanghai withoiit cargo, and there took 
on board a further quantity of Welsh coal, and left ostensibly 
for Manila via Hong-Kong. She sailed between Formosa and 
the Pescadores Islands, and entered the Hatto Channel, where 
she was captured by a Japanese man-of-war. 

The charterers made a claim before the Sasebo Prize Court, 
and produced a charter-party, which was not on board at the 
time of capture. The evidence of the officers showed that 
they suspected that the ship was chartered by the Russian 
Government. 

The Prize Court delivered judgment on November 28th, 
1905, condemning the ship as being engaged in reconnoitring 
for the enemy government, and holding that as the charter- 
party was not on board it was not admissible, and that the 
claimants had not proved any interest in the ship. 

Decision of the Sasebo Prise Courtr 
This claim is hereby rejected. 

Facts and Reasons. 
The^teamship "Quang-nam " is the property of the China 
Coast Navigation Company of Paris, and is engaged in the 
carriage of cargo; she was registered at Saigon, Cochin-China, 
and flies the French flag. During the month of April, 1905, she 
took On board at Saigon 800 cases of spirits, and left that place 
on the 23rd. Calling at Kamranh Bay on the following day, 

* Published in the Official Gazette, Tokio, March 2;!nd, 1906. 



344 The " Quanrj-nam." 

the 24th, she delivered this cargo to the Second Pacific Squadron 
of the Russian Fleet, which was lying at anchor there, and 
leaving the bay on the 26th she went to Shanghai by way of 
Hong-Kong. At Shanghai she took no cargo, except 130 tons of 
Welsh coal for her own use, and left there on May 12th, 
representing her destination as Manila. After shaping her 
course between Formosa and the Pescadores, she turned and ran 
into Hatto Channel, and was captured by the Japanese man-of- 
war "Bingo Maru " on May 16th, north of Kosei Island, on the 
ground that she was engaged in the reconnaissance service of 
the enemy. 

The above facts are proved by the written statement of 
Captain S. Arikawa of the " Bingo Maru," the report of the visit 
made by Lieutenant K. Yasumura, the written report of Assistant 
Engineer M. Tsubotichi on his investigation of the engine-room 
of'the " Quang-nam," the evidence of Paul Buisco, master, 
Phillip A. Paory, first officer, Arnest Oarochy, second officer, 
A. Castalogy, first engineer, Charl E. Pealamiss, second engineer, 
Leopold Brazy, third engineer, all of the " Quang-nam," the 
certificate of registry, the ship's log, and the engineer's log. 

The substance of the claimants' argument was as follows : — 
The " Quang-nam " is the property of the Cliina Coast 
Navigation Company of Paris, and runs between Saigon, Manila, 
Philippine Islands, Iloilo and Cebu. According to a charter- 
party between the claimants and the above company for the use 
of the ship for carrying goods, she took on board at Saigon in 
April 1905 a cargo consisting of cases of spirits, and proceeded 
to Kamranh Bay, where she delivered her cargo. On her voyage 
from Kamranh Bay to Manila by way of Hong-Kong and 
Shanghai her engines were damaged, so she steamed into the 
Pescadores Channel with the object of finding a harbour or 
some other ship and making the necessary repairs. She was, 
however, captured by the Japanese man-of-war on May 16th in 
the above channel. The ship is a neutral ship, and both the 
xjwners and the charterers are neutral subjects. Besides 
130 tons of coal loaded at Shanghai, she took on board neither 
contraband persons, goods nor despatches, and the master and 
others did not know that the vicinity of the Pescadores Islands 
was included in the zone which had been declared to be an 
" area of Naval Defence." Hence, the ship should not have 
been captured. The written opinion of the Procurator shows 
that he regarded the ship as employed by the Russian Govern- 
ment to reconnoitre the defences of Japan, and the movements 
of the Japanese fleet, on behalf of the enemj^. .But the master 
and other officers of this ship had previously only served in 
merchant ships, and the crew were all deck hands, so none of 
them could have been competent to perfoinn such service as 
military reconnaissance. The statements of the master, first 
officer, and engineera do not agree with each other in some 
important points, but the fact that the engines were damaged on 



Tlie " Q uang-nam ." 345 

the voyage from Shanghai to Manila is proved by a report 
forwarded by the master to the French £!onsnl. at Nagasaki. 
Article 37 (5) of the Japanese Regulations relating to Capture 
at Sea* provides that a ship which is scouting or carrying 
information for the benefit of the hostile State, or the conduct 
of which is such as to assist the enemy in some other way, is to 
be captured. According to this article, it is evident that there 
must be clear grounds on which to charge a ship with having 
acted in the interest of the enemy. Article 23 of the Rules as 
to Capture at Sea, agreed upon by the Institute of Inter- 
national Law at Turin in 1882,| provided regulations as to the 
capture of neutral ships, and laid down that when a neutral 
ship has taken part or intended to take part in the war, she may 
be condemned. In the present case it has not been proved 
that the Tnaster really acted with the object of benefiting the 
snemy. Therefore the ship should be released, as she cannot 
be condenmed under the above cited regulations. 

The substance of the arguments of the Procurator was as 
follows : — 

The charter-party produced by the claimants, being a private 
document which might be prepared at any time, cannot be 
relied upon. Consequently, the claimants are not parties 
entitled to make a claim, and therefore their claim should be 
dismissed. On the merits, it may be inferred that this ship was 
chartered by the Russian Government and was engaged in 
reconnoitring the defences of Japan and the movements of the 
Japanese fleet, for the benefit of the enemy. Hence she is 
liable to condemnation. 

The conclusion of the court is as follows : — 

The claimants alleged that the ship was chartered by them 
from the China Coast Navigation Company, and to prove this 
-allegation they produced a charter-party between Motte and 
Ascory, the general agent of the China Coast Navigation 
Company at Saigon, and also referred to the power of attorney 
^iven to Motte. But the charter-party was not found on board 
the " Quang-nam " at the time of capture, and being a private 
document which might be prepared at any time by the signatories 
•cannot be relied upon. The power of attorney proves that Motte 
made a statement in the presence of a notaiy, biit it is no proof 
of the truth of that statement. These papers caimot therefore 
be accepted. There is nothing else to show that the claimants 
have any interest in this case, and the claim should, therefore, 
be dismissed. 

In view of the fact that the ship took on board at Saigon on 
April 22nd, 1905, 800 cases of spirits, and sailing to Kamranh 

* App. B. 

f Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. 



ol(j The " Quang-nam/" 

Bay, without any manifest; or charter-party, and' delivered tlljis 
Gargo' to the Russian Second Pacific Squadron, which was at 
anchor there, and in view of the statements of the master " I ihink 
"' the Welsh coal taken on board came from a Russian coaling 
'■ depotj" and, " I believe the ship was chartered by the Russian 
Government," there cannot be any doubt that the ship was 
chartered by the Russian Government. That she ptirposely 
chose the difficult passage between Formosa and tile Peseiadores 
on the pretence of going to Manila, and ran into Hatto Channel, 
was evidently for the purpose of reconnoitring the defences near 
th()se islands, and the movements of the Japanese Squadron. 
Moreover, the facts that at Saigon she took on board Welsh coaL 
wliich she had nfever 'before used, that she sailed from Kamranli 
Bay to Shanghai byway of Hong-Kong without any cargo, and 
thait, at Shanghai, no cargo was loaded, but 130 tons of Welsh 
(3oal were taken' on board, when she had more than sufficient coal 
for the voyage to Manila, must be regarded as evidence of steps 
taken in order to carry out the service of reconnaissance. When 
a ship, though neutral, has taken part in reconnoitring the 
defences and the movements of a squadron for the assistance of 
the enemy, as in this case,. her condemnation is allowed by 
International Law. For these reasons, this ship should be 
condemned. 

Judgment is therefore gi^ren as stated above.. -■ 



From this decision the claimants appealed to the' Higher 
Prize Court, and produced a chart«r-party authenticated by the 
judge of the Saigon Court, before whom proceedings had been 
taken in respect of it. The Higher Court admitted this as 
evidence of the claimants' interest. The decision was given on 
March 12th, 1906j dismissing the appeal. 

*" ' Decision of the Higher Prize Court/' 

The main grounds of the claimants' appeal were as 
follows : — 

Firstly, the Prize Court in its, judgment states: "The 
'' claimants alleged that the ship was chartered by, them from 
" the China Coast Navigation Company, and to prove this 
!' allegation they produced a charter-party between Motte and 
" Ascory, the general agent of the China Coast Navigation 
*' Company at Saigon, and also refen-ed to the power of 
" attorney given by Motte. But the charter-party was not 
" found on board the "Quang-nam" at the time of capture^ 
" and, being a private' document which might be .pfep9,red at 
" any time by the' signatories, cannot be relied upon. Tlie 
" power of attorney proves that Motto made a statement in the 

* Published in the Official Gazette, Tokio, March 22nd,'i9()6, 



The " Qiiang^nam" 347 

V presence of a notary, but it is no proof of the ti'nth. of the 
"' statement. These papers ' cannot, therefore, be accepted. 
" There is nothing else to show that the claimants 'have any 
"interest' in this' case, arid the claim should therefore be 
"dismissed." The conclusion that the charter-party was hot 
genuine and that accordingly the claimants had not proved that 
they had any interest in this case, being based on the single 
circumstance that thd charter-party between the claimants and 
the China Coast Navigation Company was not on board at the 
time of capture, and is a private document which might have 
*been drawn up subsequently, Avas unjustifiable aiid a misinterpre- 
tation of Ai-ticle 26 of the Prize Court Hegulations.*' 

Secondly, although at first sight itmay be asked why the claim 
was made by the charterers, who would ordinarily have but little 
interest, instead of by the owners of the vessel, this is easily 
understood on reference to the provisions of the charter-party 
between the claimants and the Cornpany. By Clause 15 the 
claimants agreed to indemnify the shipowners in case of damage 
by sea, capture, &c:, arising out of the circumstances of the ship's 
voyage, and further, if delivery of the vessel was not made on 
the day of the expiry of the charter or within a period of grace of 
15 days, the charterers were to pay to the shipowners 24,000L, as 
the price of the vessel, which would then become tlie property 
of the charterers. By Clause 14, the charterers were under 
obligation to give security for that amount, and, as ihej actually 
depos^ited this in a local bank, the shipowners suffer no harm by 
the capture. Again, it is clearly stated in the last paragraph of 
Clause 15 that the making of a claim in respect of the ship was 
part of the duty and obligation of the charterers. Moreover^ 
n'hen they received the news of the capture of the " Quang-nam " 
by a Japanese warship, the China Coast Navigation Companj^ 
immediately instituted proceedings in the Saigon District Court 
against the claimants, based on the charter-party, claiming 
delivery of the deposited money, and those proceedings are still 
pending in that Court, as appears from the local pi-ess. These 
points prove that the claimants are the charterers, and they 
suffice to show that they are interested parties. 

Thirdly, the power of attorney of Motte, the claimants, 
representative in this case, was drawn up by a notary public and 
atithenticated by a judge of the Saigon District Court; Motte 
owns the " Hotel de I'Univers," a large wine and provision store, 
;ind a large hotel in Saigon, and is one of the leadiiig men in that 
district, so that it is impossible to impute to a man in his position 
smch fraudulent conduct as the deliberate making of a false 
stat!i?ment before a notary public, the deception of an official by 
causi^ng him to set down what was lalse in a notarial act relating 
to hi,s rights and duties, and the obtaining of a judge's 
'authentication thereto. Such an act, according to the provisions 

* App. A. 



318 llie " Quang-iiaiu." 

•of the French Penal Code as to forgery of documents, material 
deeds, &c., constitutes the offence of " Forgery of Official 
Documents," as appears from cases before the French Supreme 
Court and the opinion of authorities on Criminal Law. 
In the German Criminal Code this is expressly provided. 
M. Boissonnade's Draft Criminal Code and the Bill for the 
revision of the Criminal Code recently presented to Parliament 
•contain the same clause. Is it likely that a man would go so far 
■as to break the law in order to maintain rights which he does 
not possess ? If, as the Prize Court lield, the claimants made 
this claim without having any interest, their action would be 
incapable of any sensible explanation. For, if such were the 
<;ase, and the claimants obtained the release.of the " Quang-nam," 
it is obvious that all the advantage would accrue to the 
shipowners, the China Coast Navigation Company. 

Fourthly, the final paragraph of the Prize Court's judgment 
is as follows : — " When a ship, though neutral, has taken part 
in reconnoitring the defences and the movements of a 
squadron for the assistance of the enemy, as in this case, 
her condemnation is allowed by International Law. For 
these reasons, this ship should be condemned." But in 
giving its reasons for this finding the court said : "In view of 
the statements of the master, ' I think the Welsh coal taken 
' on board came from a Russian coaling depot,' and ' I 
' believe the ship was chartered by the Russian Government,' 
there cannot be any doubt that the ship was chartered by the 
Russian Government. That she purposely chose the difficult 
passage between Formosa and the Pescadores on the pretence 
of going to Maiiila, and ran into Hatto Channel, was evidently 
for the purpose of reconnoitring the defences near those 
islands, and the movements of the Japanese squadron. 
Moreover, the fact that at Saigon she took on board Welsh 
coal, which she had never before used, that she sailed fi'om 
Kamranh Bay to Shanghai by way of Hong-Kong without 
any cargo, and that, at Shanghai, no cargo was loaded, but 
130 tons of Welsh coal were taken on board, when she had 
more than sufficient coal for the voyage to Manila, must be 
regarded as evidence of steps taken in order to carry out the 
service of reconnaisance." From this statement it is clear 
that the decision was only reached by laying stress upon vague 
statements of the master and the nature of the coal. 

Fifthly, as stated in the claim, the vessel did not carry g, 
single article of contraband. The master, crew, and the fevv" 
other persons on board were all engaged in merchent shipping, 
and were not fit for such duties as military reconnaissance. 
Again, it is an indisputable fact that on the voyage from 
Shanghai to Manila the ship was obliged to stop owiiig to 
damage to her machinery. The evidence in support of this 
consists of the statement in a report addressed by the master 
to the French Consul at Nagasaki, dated .July 13tli, 1905. 



The " Quang-nam." 349 

Agincourt Island was sighted at 3 p.m. on May 15th, 
Having sustained damage to the condenser, we directed our 
course west of Formosa," the answer of the first officer to the- 
question, " Do you consider that there was any reason to make 
for the Royal® Channel ? " ". . . . I think they probably 
" went there in order to repair the damaged parts of the 
" machinery," and the statement in the evidence of the third 
engineer, " The defects in the machinery appeared before the 
" vessel neared the Pescadores. These troubles were the 
" entrance of seawater into the condenser, and the leakage 
" of steam from the valve. It was the chief engineer who 
" asked the master to stop the ship. The master replied that 
" he would drop anchor presently." 

It is clear from the report of the visiting officer that the ship 
did not fly any false colours, but only the French flag, and it is 
a mere supposition that she deliberately took the dangerous; 
course between Formosa and the Pescadores, turned, and entered 
the Royal"'-' Channel, for the purpose of reconnoitring the con- 
dition of the defences and the movements of the Japanese 
squadron in the vicinity of those islands. Such a conclusion,, 
as there is no evidence to support it, is undoubtedly wrong. 
If the " Quang-nam " was really guilty of unneutral service, why 
were not the master and the other persons on board punished ? 
The reason for on]j condemning the ship must have been because 
those on board were not to blame. 

Sixthly, that neutral shipping may not be captured unless 
actually taking part, or intending to take part, in the war,, 
is expressly provided by Article 23 of the Rules as to Capture at, 
Sea, agreed upon by the Institute of International Law at Turin 
in 1882.1 Article 37 (5) of the Japanese Regulations relating to 
Capture at Sea,:j: which speaks of " a ship in regard to which 
" there is good reason to believe that she is scouting or 
" carrying information for the benefit of the hostile State, or 
'■ that her conduct is such as to assist the enemy," undoubtedly 
refers only to a case where the conduct which is of assistance 
to the enemy is active in its character and clearly proved. 
Articles 37 (5) and 47 of these Regulations do not apply to 
a case like the present, where it is not established that the 
master's conduct in attempting to enter the Japanese area 
of naval defence, to which neither charterer nor shipowner was 
privy, was really designed to assist the enemy. The Declaration 
of Paris of 1856 abolished privateering and, by declaring it 
wrong to capture any goods except contraband on board a ship 
flying a neutral flag, including even enemy property, adopted 
the principle of the immunity of such goods. Both theory and 
practice in modern International Law on the subject of capture 
at sea lay great stress on contraband of war, while recognizing 

* Apparently the same as the Hatto Channel. 

t Annuaire de I'lnstitut de Droit International, 1882-3, p. 213. 

X App. B. 



350 The " Quang-nam." 

tlvat it is difficult to capture and condemn a neutral vessel not 
carrying contraband. Since, therefore, in the present case 
throughout thp records , of the proceedings there is no proof 
whatever beyond, the contradictory statement of the crew, the 
decision of the Prize Court was quite unjustfiable. The release 
of the ship;is therefore claimed. 



The substance of the reply of the Procurator of the Sasebo 
Prize Court was as follows :— 

Firstly, the charter-party is an important ship's paper, which 
defines the authority given by the owner in respect of the 
voyage and other matters, and it is usual to have it on board. 
The charter-party between the China Coast Navigation Company 
and the claimants which the claimants produce was not on 
board at the time of capture, nor is there anything which 
sufficiently explains why it was not on board. The master in 
his evidence stated : "I am aware that the ship was chartered 
■" by the Russian Government . . . She had no charter- 
■" party. I think that was probably because she was engaged 
■" by the Russian Government," and "I thought before we left 
" Saigon that she was chartered by the Russian Government. 
" I -believe this to be so because I think the coal taken on board 
" came from a Russian Government coaling depot." The first 
officer, in his evidence, said: "Though I never heard that 
" the ship was sold to the Russian Government, I used to hear 
'' vague talk of a charter. The master would know the details." 
The first , engineer, in his evidence, said: "Though I heard 
" vague rumours that the vessel was chartered by the Russian 
" Government, I cannot assert that this was the fact." Thus 
the personal opinions of all the crew were that the vessel was 
under charter to the Russian Government, and none of them 
said a word to the effect that she was chartered by the claimants. 
There is no difficulty in inferring frojn these statements and 
circumstances that a genuine charter-party did not exist, to say 
nothing of the fact that a charter-party is only a private docu- 
ment, which can be drawn up at any time by the signatories, so 
that its authenticity cannot be guaranteed. The Prize Court 
was, therefore, right in rejecting the charter-party, and in 
refusing to accept its terms as evidence of the facts, and this 
ground of appeal fails. 

Secondly, the reasons for not attaching any weight to the 
charter-party produced by the claimants are as given above. 
If no weight can be attached to this document, the fact that it 
is said that legal proceedings have been commenced in respect 
of the charter-party and are still pending in the Saigon Courts 
is not alone sufficient to prove that such a charter-party in fact 
exists. Besides, the allegation that proceedings have been 
commenced between the signatories is only a statement of the 
claimants, and there is nothing to prove that it is true. 



The " Quang-nam." 351 

Thirdly, by the notarial deed — the power of attorney- 
produced by the claimants, they authorize their attorney to 
present a, claim before this Prize Court and to take all legal 
steps incident thereto ; its purpose is to affirm the appointment 
as attorney, and it is clear from the nature and text of the 
docmnent that it does not state whether the grantor of the 
power was the owner or charterer of the vessel. Therefore, 
even if the power of attorney contains a statement that the" 
claimants possess the authority of a charterer, this cannot be 
made, proof. of the existence of a charter-party, especially as tlie 
wording about the charterer's, though it may prove that the 
claimants made a declaration before a notary public, does not 
prove that that declaration was true. The claimants cite 
the. text of German and other codes in order to show that 
a declaration made before a notary public is sure to be true, 
but as it is obvious that this has nothing to do with the present 
case, there is no need to discuss it further. 

Fourthly, the master in his evidence said : " Thoiighl cuimot 
" say definitely why we went near the Pescadores, I think yoti 
" probably know" ; and later, "I think the Welsh coal taken 
" on board came from a Russian Government coaling depot," 
and "I believe the ship was chartered by the Russian Goveru- 
" ment." The first officer said : " Though there was a defect in 
" the machinery, it was apparently no obstacle to navigation, 
" so we continued under steam. It was a slight defect, and the 
" damage was not such as to make it necessary to go into port 
" or obtain assistance from another ship and aixange for 
" repairs." The first engineer said: " Nobody consulted me 
" about entering Keelung to repair the defects . . . We 
" sighted a vessel proceeding between Formosa and the 
" Pescadores, and followed in her track for about half a day. 
" But this was not for the purpose of asking for help in 
" repairing our machinery." 

Jiidging from these statements, and from the facts, viz. : 
that the vessel sailed from Kamranh Bay via Hong-Kong to 
Shanghai without a cargo, that she took no cargo there either, 
but took on board a large amount of Welsh coal as if for her 
own use ; that she announced her destination as Manila, but 
deliberately chose the dangerous' course between Fomiosa and 
the Pescadores, and then turned and entered the Pashan'-'- 
Channel ;. that it is well known that there are a naval port and 
fortifications in the Pescadores and they are a locality of military 
importance, it is clear beyond all doubt that the vessel 
approached the Pescadores not in order to repair defects in her 
machinery, but solely in order to reconnoitre the state of the 
Japanese defences and the movements of the fleet, in the 
interests of Russia. The decision of the Prize Court was 
therefore correct in recognizing the above-mentioned facts and 

* Apparently the same as the Hatto Channel. 



352 llie " Quang-nam." 

declaring the vessel liable to condemnation ; and tlie appeal 
should be dismissed. 

The reasons for the decision of this Court are as follows : — 
The charter-party, authenticated by the President of the 
Saigon Court, which was produced by the appellants for the 
first time in this court, affords material upon which it might be 
held that they have an interest in the ship. The ship sailed 
from Saigon for Shanghai via Hong-Kong. After handing 
over to the Russian Baltic Fleet in Kamranh Bay all the cargo 
shipped at Saigon, she continued her voyage without a single 
article of cargo. On this voyage she used Welsh coal, which she 
had never used before, and which, in the East, is never used by 
ordinary merchant ships ; and further, although she had a large 
store of coal which would not be exhausted even after reaching 
Manila, she took on board at Shanghai a further 130 tons of 
Welsh coal. From Shanghai, though nominally bound for 
Manila, she took a course between Formosa and the Pescadores, 
during which she deliberately turned and made for the Pashan 
Channel. The master, in his evidence, stated : " The ship is a 
" French ship. Up to the time of sailing from Saigon, I did not 
" hear that she had been sold to the Russian Government. But 
" I knew later that she was chartered to the Russian Govern- 
" ment. . . . I thought, before we left Saigon, that she was 
" chartered by the Russian Government. I believe this to be 
" so because I thinlc that the Welsh coal taken on board came 
" from a Russian Government coaling depot. But as there was 
" no charter-party I cannot say definitely. . . . Though I cannot 
" say definitely why we went near the Pescadores, I think 
" you probably know. . . . However many times you ask me, 
" though there is nothing to prevent me from giving the 
" reason why we went near the Pescadores to this Court, I will 
" not give it, as it would do me harm later on my return home. 
" The ship had no charter-party. I think this may have been 
" because she was chartered by the Russian Government." 
The first officer and the first and third engineers also made 
statements to the effect that they had heard vaguely that the 
ship was chartered by Russia. Putting together these various 
facts and statements, it is impossible to avoid the conclusion 
that the ship was chartered by the Russian Government and 
attempted to discover Japanese military secx-ets in the interests 
of the enemy. The appellants say that all her crew were 
engaged only in merchant shipping, and were not qualified for 
such duties as military reconnaissance ; but military recon- 
naissance does not necessarily require the services of persons 
who possess special knowledge on military subjects, and there is 
no reason for saying that the crew of a merchant ship are not 
qualified for that duty. The appellants state that the ship 
approached the Pescadores because, owing to defects in the 
machinery, it was necessary either to get help from another 
vessel or to enter a port and effect repairs. But it is clear, from 



The " Quang-nam.^' 353 

th.e report on the condition of the ship by Engineer Tsubouchi 
of the " Bingo Maru," that the defect was not such as to make it 
necessary for the ship to anchor for repairs, and it is also 
obvious from the statements of the master already quoted that it 
was not for the purpose of r'epairs that they went near the 
Pescadores. The Prize Court was therefore right in holding 
thai this vessel was engaged in the duty of reconnoitring the 
condition of our defences and the movements of our fleet in the 
interests of the enemy, and in condemning her accordingly. 

The appeal is therefore dismissed. 



12750 



354 



THE "OREL." 

Enemy ship — Hospital- ship equipped by officially recognised relief society and 
commissioned by enemy Government — Use for military purposes — 
Condemnation. 

A Russian ship was chartered and equipped by the Russian Red Cross 
Society for use as a hospital ship. She was officially commissioned by the 
Russian Govei-mnent and her name was notified to the Japanese Govern- 
ment. In the course of her employment as a hospital ship she perfonned 
certain services to the Russian Fleet which were held to amount to use for 
military purposes. 

Ship and money on board her condemned. 

The " Orel," a steamer belonging to the Russian Volunteer 
Fleet, was chartered at the outbreak of the war by the Russian 
Red Cross Society for iise as a hospital ship. The Japanese 
Government were requested to extend to her the privileges 
conferred on hospital ships by The Hague Convention No. 3, of 
July 29th, 1899,1 for the adaptation to maritime warfare of the 
principles of the Geneva Convention of August 22nd, 1864, 
and acceded to the reqtiest. She was then equipped as a 
hospital ship in France, and having been commissioned by 
the Russian Government accompanied the Second Division of 
the Baltic Fleet on its voyage to the Far East. In the 
course of the voyage, she conveyed on one occasion orders 
from the Commander-in-Chief to a ship of the squadron, 
and at Cape Town she received instructions to purchase a 
quantity of insidated wire. After the arrival of the fleet in 
the Far Eastern waters she took on board, for carriage to 
Vladivostock, the master and three members of the crew of 
the British steamship " Oldhamia," which had been captured 
by the Baltic Fleet and afterwards destroyed.* When the 
fleet was nearing the Straits of Tsushima, she took iip a 
position to the flank of the leading ships, such as would be 
occupied by a vessel engaged in reconnaissance. During the 
battle of Tsushima she was stopped, about 10 miles from 
the scene of the action, by a Japanese cruiser, and afterwards 
captured on the ground that she had taken part in military 
operations. 

Art. 2 of the above convention of July 29th, 1899, 
provides that " Hospital ships, equipped wholly or in part 
at the expense of private individuals or officially recognized 
relief societies, shall likewise be respected and exempt 
from capture, if the belligerent Power to whom they belong 
has given them an official commission and has notified 
their names to the hostile Power at the commencement of 
or during hostilities, and in any case before they are 
employed. 

* See vol. 1, Russian Cases, p. 146. 

t For text see Blue book (Misc.) No. 1 of 1899, p. 349, 



The " Orel." 355 

"Such ships imist be provided with a document from 
'' the proper authorities declaring that the vessels have been 
" under their control while fitting out and on final departure." 

Art. 4 provides inter alia that " The Governments under- 
" take not to use these ships for any military purpose." 

No claim was entered for the release of the ship. At 
the instance of the Procurator, the case was heard by the 
Sasebo Prize Court on July 25th, 1905, when judgment was 
given condemning the ship. 

Decision of the Saseho Prize Court.^" 
The hospital ship " Orel " is condemned. 

Facts and Reasons. 

The "Orel," the hospital ship in this case, is a steamer 
belonging to the Russian Volunteer Fleet, and was formerly 
engaged in the carriage of passengers and cargo under the 
Russian merchant flag, Avith Odessa as her usual home port. 
After the outbreak of the Russo-Japanese war, she was chartered 
by the Russian Red Cross Society, for use as a hospital ship, on 
May 29th, 1904. The Russian Government requested the 
Japanese Government through the French Minister in Japan 
that the exemptions stipulated in Arts. 1 to 5 of The Hague 
Convention No. 3, of July 29th, 1899, for the adaptation to 
maritime warfare of the principles of the Geneva Convention of 
August 22nd, 1864, should be allowed to the "Orel." As the 
above request was agreed to by the Japanese Government, she 
was equipped as a hospital ship at Toulon, and having obtained 
the certificate of the chief naval expert, the superintendent of 
the Forges et Chantiers at La Seyne, France, and the commission 
of the Russian Government, she was attached to the Second 
Russian Pacific Squadron and joined it at Tangier, in French 
territory in Africa. In the course of her eastward voyage with 
the squadron, she followed and overtook the " Malaya," a steamer 
attached to the fleet, on November 21st, 1904, by order of the 
Commander-in-Chief, and communicated to her an order that 
she should keep within signal distance. On May 21st, 1905, 
she received on board, by order of the Commander-in-Chief, 
Alex. Stewart, master of the British steamship " Oldhamia,"! 
which had been captured by the " Oleg," a warship belonging 
to the squadron, and three others, with the object of carrying 
them to Vladivostock, although they were in good health. She 
was also instructed at Capetown or in its neighbourhood by a 
staff oflicer of the squadron to purchase 10,000 feet of conducting 
wire (2 millimetres in diameter) and 1,000 feet of conducting wire 
(1 millimetre in diameter), both well insulated. Moreover, when 

* Published in the Official Gazette, Tokio, August 1st, 1906. 
t See vol. 1, Russian Oases, p. 145. 

Z 2 



356 The " Onir 

the Russian Second and Third Squadrons were proceeding towards 
the Straits of Tsushima in two or three columns, the "Orel" 
and the other hospital ship, the " Kostroma," took up positions 
on either side of the leading warships of the squadrons, forming 
a triangle with the foremost men-of-war. She was ordered to 
stop by the Japanese man-of-war" Sado Maru " when 10 nautical 
miles west of Okino Shima, at 3.30 p.m. on May 27th, 1905, 
while the battle was going on between the Russian squadrons 
and the Japanese fleet near Okino Shima, and was taken to 
Miura Bay in the province of Tsushima, where she was captured 
as having taken part in military operations. 

The facts are proved by the written statement of Lieutenant- 
Commander K. Haji, representing the captain of the " Sado 
Maru," by the commission issued by the Russian Ambassadoi in 
France, the certificate of the chief naval expert, the superinten- 
dent of the Forges et Chantiers, at La Seyne, by the communica- 
tion from the French Minister Plenipotentiary in Japan to the 
Japanese Minister for Foreign Affairs, by the evidence of Jacob 
Constantinovich Lafmatov, master ; Alexander Bayelmann, first 
mate ; Jacob Mulitanovski, head surgeon ; and Baron Waritel 
Ostensaken, treasurer of the " Orel," by the certificate of 
registry, the ship's log, the evidence of Alex. Stewart, master 
of the " Oldhamia," and the certificate produced by the master 
and three other members of her crew. 

The substance of the argument of the Procurator was that as 
this hospital ship had evidently been employed by the enemy 
for military purposes she should be condemned, together with 
her equipment. 

The conclusion of the Court is as follows : — 

A hospital ship is only exempt from capture if she fulfils 
certain conditions and is engaged solely in the humane work of 
aiding the sick and wounded. That she is liable to capture, 
should she be used by the enemy for military purposes, is 
admitted by International Law, and is clearly laid down by the 
stipulations of The Hague Con\-ention No. 3 of July 29th, 1899, 
for the adaptation to maritime warfare of the principles of the 
Geneva Convention of August 22nd, 1864.® Although the 
"Orel" had been lawfully equipped and dxie notification 
concerning her had been given by the Russian Government to 
the Japanese Government, yet her action in communicating the 
orders of the Commander-in-Chief of the Russian Second Pacific 
Squadron to other vessels during her eastward voyage with the 
squadron, and her attempt to carry persons in good health, i.e. 
the master and three other members of the crew of a British 
steamship captured by the Russian fleet, to Vladivostock M'-hich 



Blue book (Misc.) No. 1, 1899, p. 349, 



The "Orel" 357 

is a naval port in enemy territory, were evidently acts in aid of 
tlie military operations of the enemy. Further, when the facts 
that she was instructed by the Russian squadron to purchase 
munitions of war, and that she occupied the position usually 
assigned to a ship engaged in reconnaissance, are taken in 
consideration, it is reasonable to assume that she was constantly 
employed for military purposes on behalf of the Russiail 
squadron. She is, therefore, not entitled to the exemptionB laid 
down in The Hague Convention for the adaptation to maritime 
warfare of the principles of the Geneva Convention,"''' and may 
be condemned according to International Law. 

As no claim in this case has been entered within the peiiod 
fixed and notified by this Court, judgment is given as above at 
the request of the Procurator without recourse to the process of 
investigation, in accordance with the last clause of Art. 16 of 
the Prize Court Regulations. t 

A claim was entered by the Second Commissioner of the 
Russian Red Gross Society, who sailed in the " Orel " in charge 
of the hospital work, for the release of a sum of money on 
board, which was to have been expended in paying the salaries 
of the Red Cross officials and defraying the expenses of the 
ship. The case was heard by the Sasebo Prize Court on 
July 31st, 1905, when judgment was given condemning the 
money. The claim was withdrawn after the close of the oral 
proceedings. 

Decision of the Saseho Prize Court.'^ 

French currency to the amount of 54,560 francs 83 centimes, 
and Russian currency amoimting to 2,486 roubles 44 kopecks, 
belonging to the hospital ship " Orel," are condemned. 

Facts and Reasons. 

This money was supplied by the Russian Red Cross Society 
to the hospital ship " Orel " for the payment of the salaries of 
the officials of the Society and all other expenses of the ship. 

[The judgment then states the facts in the same terms as 
those employed in the case of the ship (p. 356).] 

The substance of the Procurator's argument was that as the 
Russian Red Cross Society's hospital ship " Orel " was evidently 
iemploy«i by the enemy for military purposes, the money found 
■on board to defray her expenses should be condemned along 
with the ship, as forming part of her equipment. 



* Blue Book .(Misc.) No. 1, 1899, p. 349. 

t App. A. 

I Published in the Official Gazette, Tokio, August 5th, 1905, 



358 , The "Orel." 

The conclusion of the Court is as follows : — 

When a hospital ship loses her right to enjoy the privilege 
of inviolability and is captured, all her equipment is also liable 
to condemnation. 

[The judgment then repeats the grounds on which the ship 
was condemned, as given on p. 356.] 

The money in question, forming the administrative fund of 
the ship, is as indispensable a part of her equipment as the 
medical apparatus, sanitary materials, provisions, &c., and must 
be condemned together with the ship. 

In this case. Baron Waritel Ostensaken, Second Commissioner 
of the Russian Red Cross Society, who was in charge of the 
hospital work and treasurer, entered a claim for the release 
of the money, but the claim was withdrawn after the close of 
the oral proceedings. 

Judgment is therefore given as above. 



359 



THE " LYDIA." 

Neutral ship — Cargo partly contraband — Destination to a military port of 
the enemy — Employment of fraudulent devices — Carriage of contraband 
the object of the voyage — Temporary abandonment of voyage owing to 
damage — Condemnation. 

A neutral sliip sailed with a cargo, pai't of wHcli was held, to be contra- 
band, to a poi-t which was a Russian coastal fortress and base of supplies for 
the Russian Army. She was chartered to one of her part owners, and the 
consignees of the cargo were partners in the firm who were the other part 
owners. During the first part of her voyage she carried papers giving a 
neutral port as her destination, but after leaving that port papers giving the 
true destination were substituted. Owing to damage to her steertng-gear she 
XDut back, intending to go to a neutral port for repairs, but sustained further 
damage and was compelled to put into a Japanese port, where she was captured. 

Held that the object of her voyage was the. .carriage of contraband, that 
she had employed fraudulent devices to affect it, and that her original 
object had not been abandoned. 

Ship condemned. 



The " Lydia " was a German ship owned jointly by H. W. 
Dieckmann and the firm of T. and F. Eimbecke. She was 
chartered by H. W. Dieckmann, and left Hamburg on April 8th, 
1905, for Nicolaievsk,® with a cargo consisting of various 
articles, some of which were held to be contraband,! consigned 
to Noebel & Co., who were partners in the firm of T. and 
F. Eimbecke. The papers carried when the ship left Hamburg 
gave her destination as Hong Kong, but a duplicate set, in -which 
the true destination was given, was sent by mail to that port 
and there siibstituted for the original papers. She left Hong 
Kong on Jvlj 9th, 1905, and on the 16th encountered a typhoon, 
in which her steering-gear was damaged. On the 20th she 
managed to rig a temporary steering-gear, and tried to go to 
Nagasaki, but as she was not properly under control it was 
decided at a conference of the officers to make for Shanghai, 
and she accordingly went about and steamed 250 miles in that 
direction. On July 23rd her steering-gear broke down again, 
and she applied for assistance to the signal station on Cape 
Kyamu, Loochoo Island. With the assistance of a Japanese 
ship she put into Naha Harbour, whei'e she was captured on 
July 26th, 1905, on suspicion of carrying contraband of war. 

A claim for her release was entered by the owners, and the 
case came before the Sasebo Prize Court on November 10th, 
1905, when judgment was given condemning the ship. 

* There are several places of this name. The one referred to in this 
case is at the mouth of the Amur River, 

t For the decision in the case of the cargo, see p. 36V, 



360 The '\Lydia." 

Decision of the Sasebo Prize Gourt.'^ 
The steamsliip " Lydia " is condemned. 

Facts and Reasons. 

The "Lydia" is a merchant ship owned jointly by the 
claimants, Theodor and F. Eimbecke and H. Wilhelm Dieclonann, 
sails under the German flag, and is engaged in the can-iage of 
goods. She was chartered by H. Wilhebn Dieckmann, one of 
the owners, and loaded at Hamburg a cargo of machine oil, 
cylinder oil, grease, axle-grease, acetic acid, oil-cans, washers, 
belting iron, leather belting, emery, hemp ropes, and salt, to be 
carried to Nicolaievsk.j The manifest and bills of lading were 
prepared in two different forms, one giving the destination as 
Hong Kong, the other as Nicolaievsk. The " Lydia " left Ham- 
burg on April 8th, 1905, having on board the documents giving 
the destination as Hong Kong only, in order to show that she 
was bound for that port. She arrived at Hong Kong on June 
4th, 1905, and received there the manifest and bills of lading 
giving Nicolaievsk as her destination, which had been sent by 
the owners by mail. She left Hong Kong for Nicolaievsk on 
July 9th, and took a roundabout course, east of Formosa and 
south of Loochoo. On July 16th she encountered a typhoon, 
and on the 17th her steering-gear was damaged and she was 
compelled to drift. On the 20th she managed to rig a temporary 
steering-gear, and tried to reach port at Nagasaki. But as she 
was not properly under control, it was decided to seek shelter 
at Shanghai, and when she was near the main island of Loochoo, 
on the 23rdi her steering-gear broke down again, and she was 
unable to move. She therefore gave up the idea of going to 
Shanghai, and asked for help from the signal station on Cape 
Kiyanau in Loochoo. Finally, she put into port at Naha with 
the assistance of the Japanese merchantman " Futami Alaru," 
and was captured by the Japanese man-of-war " Nippon Maru " 
on July 26th, 1905, while at anchor there, on the ground that 
she was carrying contraband of war. 

The above facts are proved by the written statement of 
Captain H. Narikawa, of the " Nippon Maru," by the evidence 
of R. Eichter, master, Franz Bolmann, first mate, and Hans 
Ostermann, second mate, of the " Lydia," by the certificate of 
registry, the manifest, the bills of lading, the sliip's log, the 
charter-party, and the bill of health. 

The substance of the claimants' argument was as foUows : — 

The " Lydia " was not captured in the course of her voyage 

to Nicolaievsk, but while at anchor at Naha Port. She had 



* Published in the Official Gazette, Tokio, March 3rd, 1906. 
t There are several places of this name. The one refeiTed to in this 
case is at the mouth of the Amur River. 



The " Lydiar 361. 

applied for help to the signal station on Cape Kiyamu, Loochoo, 
after having given up the idea of going to Nicolaievsk and 
steamed back about 250 miles in the direction of Shanghai. 
Even admitting that she had engaged in the carriage of contra- 
band her original object had been abandoned, and she is, 
therefore, not liable to condemnation. 

In order to decide whether a ship has committed an ofFence 
according to International Law, the actual facts and circumstances 
must be taken as the grounds of the judgment, and it is not 
right to draw conclusions from uncertain possibilities, such as 
that the " Lydia " might have resumed her voyage after the 
completion of her repairs. Even admitting that the conclusion 
might be drawn, it would be about October 15th before she could 
be repaired and made seaworthy at Shanghai ; and as the sea 
would be ice-bound by that time, she would not be able to 
proceed to Nicolaievsk before April 1906. The treaty of peace 
between Japan and Russia has now been signed, and the 
exchange of ratifications will shortly take place. To condemn 
this ship at such a time, because of events which may possibly 
take place some time next year, would be most unreasonable. 

Even supposing that the above contentions are groundless, 
the cargo of this ship consists modffy of agrici^ltural goods, and 
contains no contraband of war. It should, therefore, not be 
condemned, and the ship should also escape condemnation. 

There are some articles among the cargo which may perhaps 
be considered contraband of war, but they were shipped by 
inadvertence and not with any guilty intention. Further, the 
ship does not belong to the owner of the cargo, so even if the 
contraband goods are condemned, the ship and the innocent 
cargo should escape. For the above reasons, this ship should 
be released. 

The substance of the argument of the Procurator was as 
follows : — 

Some of the goods on board, such as belting iron, machine 
oil, leather belting and table salt are contraband of war, because 
they are con-signed to Nicolaievsk, and the ship employed 
fraudulent devii;es in the carriage of contraband. Further, the 
ship and cargo belong to the same owner. She should, therefore, 
be condemned. 



The conclusion of the Court is as follows :— 

It is admitted by the principles and practice of International 
Law that a ship which carries contraband of war by the 
employment of fraudulent devices is liable to condemnation. 
Some of the goods on board the " Lydia," such as machine oil, 
cylinder oil, grease, wheel grease, acetic acid, oil-cans, washers, 
belting iron, leather belting, emery, and hemp ropes, are 



S62 The"Lydia:' 

materials for building or fitting ships, and table salt and 
salt are provisions. Nicolaievsk, tte destination of the " Lydia " 
is an important coastal fortress guarding, in conjunction with 
Vladivostock, the Russian littoral provinces, and since the 
over-sea communications of Vladivostock were cut by the 
Japanese fleet in May and July of this year, Nicolaievsk has 
become the chief port of entry for military materials. The 
goods in question are, therefore, undoubtedly contraband of war, 
as intended for the military use of the enemy. Further, 
although Nicolaievsk had been decided on as her destination 
when she left Hamburg, the "Lydia" sailed for Hong Kong 
with a manifest and bills of lading in which Hong Kong was 
given as her destination. These measures were taken for the 
purpose of evading capture by the Japanese squadron, which 
was cr>iising between Singapore and Hong Kong at that time. 
In other words, the " Lydia " carried contraband of war by the 
employment of fraudulent devices, and consequently is liable to 
condemnation. The claimants contend that she had given up her 
voyage to Nicolaievsk, and that even supposing she had not, 
her repairs would not be completed until about October 15th, 
1905, and that as the sea would be ice-bound by that time, 
she could not sail for her (!Bbtination before April 1906, and, 
therefore, it would be unreasonable to condemn her on such 
a remote possibility. But the master, R. Richter, said, wheii 
examined by the councillor in charge of this case : " The ship 
" was to go directly to Nicolaievsk if temporary repairs could be 
" made at Loochoo." It is thus evident that the master had not 
given up the idea of going to Nicolaievsk at the time of her 
capture. It is a rule of International Law that a ship, which 
has begun an act of carriage of contraband of war, is liable to 
condemnation, provided that her original intention had not been 
abandoned at the time of capture. The capture of the " Lydia " 
was, therefore, justifiable even assuming that the necessary 
repairs would prevent her sailing until April 1906. Moreover 
her repairs at Shanghai would not take so long as was stated bj 
the claimants, and she could have arrived at Nicolaievsk before 
the sea was frozen over.- For the above reasons, the contentions 
of the claimants are groundless and judgment is given as 
above. 

The claimants appealed to the Higher Prize Court. Judgment 
was given on March 12th, 1906, dismissing the appeal. 

Decision of the Higher Prize CourtJ* 

This is an appeal against the decision of the Sasebo Prize 
Court given on November 10th, 1905, condemning the steam- 
ship " Lydia." 

* Published in tKe Official Gazette, Tokio, March 22nd, 1906' 



'fhe"Lydia:' 363 

The principal arguments of the appellants were as follows : — 
On Jvly 16th, 1905, the "Lydia" encountered a typhoon, in 
Lat. 27° 40' N. and Long. 131° 2' E., while on her way to 
Nicolaievsk, and on July 17th the sea was so heavy that her 
steering-gear was damaged. After drifting for three days, she 
managed to rig a temporary steering-gear on the 20th, but as 
she was unable to get to Nicolaievsk in her unseaworthy 
condition, it was decided at a conference of the ship's officers, 
held from 5 to 8 p.m., to go to Shanghai. The ship's position 
at noon on that day was in lat. 26° 45' N. and long. 131° 35' E. 
In accordance with this decision, she steamed back for three 
days, covering 250 miles. Her temporary steering-gear broke 
down again, near Loochoo Island, between 1 and 4 p.m. on July 
23rd, and she was disabled. So she signalled for help to the 
signal station on Cape Kiyamu, and was taken to Naha Port by 
the " Futami Maru " at 5 p.m. on the 24th. Finally, she was 
captured by the Japanese man-of-war " Nippon Maru" on July 
26th, while at anchor there. She was, therefore, not captured on 
her way to Nicolaievsk, but while at anchor at Naha Port, after 
having given up her voyage and gone back about 250 miles 
towards Shanghai. According to International Law, a ship that 
has begun the carriage of contraband of war for the use of 
the army or navy of the enemy is exempt from capture, if she 
has abandoned her purpose. This ship should therefore be 
released. The Prize Court refused to find that she turned back 
towards Shanghai, quoting the master's statement that " the 
"' ship was to go directly to Nicolaievsk if temporary repairs 
" could be made at Loochoo." But there is no doubt that she 
actually sailed back about 250 miles towards Shanghai. The 
statement of the master quoted above is too obscure to be true, 
and possibly, as contended by the master in the Prize Court, it 
may be due to a mistake of the interpreter. Even supposing 
that the master stated that the ship was to go to Nicolaievsk, 
the fact that she turned back towards Shanghai is evidence to 
the contrary. According to the principles of evidence, the fact 
should be accepted in preference to the master's statement. 
Moreover, in the ship's log, which was seized at the time of 
capture, and in which no subsequent alteration could be made, 
it is clearly mentioned that the decision to go back to Shanghai 
was made at a conference of the ship's officers, held from 5 to 
8 p.m. on July 20th, and there is no doubt that in the absence of 
exceptional circumstances the master would not alter that 
decision at his sole discretion. Even accepting as evidence the 
statement of the master, if the whole sentence be read carefully, 
it may be inferred that the voyage to Nicolaievsk was abandoned. 
For he says : " The ship was to go directly to Nicolaievsk if 
" temporary repairs could be made at Loochoo, but as it was 
" impossible to find a smith, I intended to go to Nagasaki." 
This shows that as the repairs could not be made at Loochoo, 
she was unable to go to Nicolaievsk. Being made in answer to 



364 The " Lydia.^' 

a hypothetical question of the Councillor, " What did yoil 
intend to do if the repairs could be made at Loochoo," it was a 
conditional statement. Hence, the fact that this ship actually 
turned back to Shanghai, and the statement in the log, cannot 
be upset by such a statement. 

The main points of the argument of the Procurator of ihe 
Sasebo Prize Court, were as follows : — 

The "Lydia" is the common property of Theodor and F, 
Eimbecke and H. Wilhelm Dieckmann, so there was no 
necessity for a charter-party to one of the joint owners, 
Dieckmann ; but in order to evade capture bj'^ Japanese men-of- 
war, a charter was made, and the manifest was p