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Published online by Cambridge University Press: 12 April 2017
At the beginning of the present war the belligerents, of course, set up prize courts. Germany enacted a new Prize Law Code and a new Prize Court Code. But no belligerent, with the exception of Great Britain, has yet published reports of prize cases. True, compared with the enormous amount of prize cases during the war of 1914–1918 in Great Britain, France, Germany and Italy, the number of British prize cases so far reported is comparatively very small. Yet it seems important to investigate these cases to which the science of international law has paid no attention up to now. It is proposed to give here a systematic study of these prize cases, from the points of view of substantive and formal prize law, and of the law of prize procedure.
1 Prisen-Ordnung, Aug. 28, 1939, Bl., R.G. I,No. 161 of Sept. 3,1939Google Scholar;English translation, C.C., H. War Law Service, 3rd vol. (Foreign Supp.), 65,569–65,576.Google Scholar
2 Prisen-Gerichts-Ordnung, Aug. 28, 1939, Bl., I, No. 161 of Sept. 3, 1939 Google Scholar;English translation, C. C. H., R.G. War Law Service, 3rd vol. (Foreign Supp.), 65,576–65,581.Google Scholar
3 See particularly the fundamental work by Verzijl, , Le droit des prises de lagrande guerre (Leiden, 1924)Google Scholar.For a brief digest of British prize cases see H. Hull, J. H. W., Digest of Cases decided in British Prize Courts 1914–1927 (London, 1937).Google Scholar
4 Lloyd’s Reports of Prize Cases 1914–1924 (10 vols., London);Google Scholar Trehern and Grant, British and Colonial Prize Cases (3 vols., London).Google Scholar
5 Dicisions du Conseil des Prises (Paris, I, 1916, II, 1923).Google Scholar
6 Entscheidungen des Oberprisengerichles in Berlin, I, 1918, II, 1921.Google Scholar
7 Sentenze delta Commissions deUe prede, 1915–1918 (Rome, 1927).Google Scholar
8 Lloyd’s Reports of Prize Cases (2nd Ser.), Vol. 1, No. 2, Jan., 1940, pp. 1–10; No. 2, May 2, 1940, pp. 11–26; No. 3, Aug. 19,1940, pp. 27–42; No. 4, Jan. 8,1941, pp. 43–56; No. 5, April 1, 1941, pp. 57–72.Google Scholar
9 They are not more than 34, of which 28 were decided in the British Prize Court in London,one in India, one in Newfoundland, two in Australia and two in South Africa.
10 Cf. "Seizure . . . does not affect the ownership of the thing seized. Before that can happen, the thing seized, be it ship or goods, must be brought into the possession of a lawfully constituted court of prize, and the captor must then ask and obtain its condemnation as prize." The Odessa (1915), 2 LI. P. C. 405. "The obligation is unquestioned to bring the prize in for condemnation." The Oscar II, [1920] A.C. 748.
11 2 and 3 Geo. 6. ch. 65. Reprinted in Burke, J., Loose-Leaf War Legislation (London,1939), pp. 25–29.Google Scholar
12 27 and 28 Vict. ch. 25.
13 4 and 5 Geo. 5. c.
14 5 and 6 Geo. 5. c. 57.
l5 A schedule of British prize courts overseas during the World War is to be found in Verzijl, op. cit., supra, note 3, annex to p. 8. Prize courts had been set up also in Zanzibar and Egypt. See Prize Courts Act, 1894, 57 and 58 Vict. c. 39.
16 Cf. The North Borneo Prize Court Order in Council (S.R. and O. 1939, No. 1136);Supreme Court of Palestine Order in Council (S.R. and O., No. 1137); Zanzibar (Prize Court) Order in Council (S.R. and O., No. 1138).
17 S.R. and O. 1939, No. 1466.
18 During the World War the Prize Court Rules, 1914, were in force.
19 1 LI., P.C. (2nd), 1 at p. 4. Google Scholar
20 See The Zamora, 4 LI., P.C. 62. For a fuller discussion see Kunz, Kriegsrecht und NeutralitcUsrecht(Vienna, 1935), pp. 183–186, and the literature there quoted.Google Scholar
21 Hull, op. cit., p. IV.
22 “This decision (in The Franciska, 10 Moo. P.C. 73) is, of course, binding upon their Lordships.” The Dusseldorf (1920), 9 LI. P.C. 12.Google Scholar “Their Lordships are bound by the decisions of their predecessors, which, consistent as they are, it is too late to overrule and impracticable to distinguish. The Kronprinsessan Margareta (1920), 8 LI. P.C. 241 Google Scholar
23 The Roumanian (1915), 2 LI. P.C. 378.Google Scholar
24 (1940), 1 LI. P.O. (2nd), pp. 53–54. Google Scholar
25 The Glenearn (1940), ibid., p. 63.
26 The Konsul Hendrik Fisser (1940), ibid., p. 24.
27 Ibid., p. 27.
28 Ibid., p. 1.
29 The Konsul Hendrik Fisser (1940), Ibid., p. 57.
30 See The Chateaubriand (1916), 5 LI. P.C. 24.
31 See The Odessa (1916), 1 A.C. 145 at 153–154.
32 In Great Britain by the Procurator-General.
33 The Vesta (1921), 10 LI. P.C. 106 at p. 139.Google ScholarPubMed Cf. also The Mome, 2 LI. P.C. 70Google Scholar; The Marie Glaeser, 1 LI. P.C. 56Google Scholar; The Hdkan (1917), 5 LI. P.C. 186Google Scholar; The Gutenfels, No. 2 (Egypt, 1915),1 Br. and Col. P.C. 102.Google Scholar
34 1 LI., P.C. (2nd), 1 at pp. 2, 5. Google Scholar
35 The Pomona, ibid., p. 1.
36 The Konsul Hendrik Fisser, ibid., p. 16; The Christoph von Doornum, ibid., p. 49.
37 The Rheingold, ibid., p. 19.
38 The Gabbiano, ibid., p. 27.
39 The Astoria, ibid., p. 53.
40 The Prins Knud, ibid., p. 57.
41 The Mowe, (1915), 2 LI. P.C. 70.Google Scholar
42 The Alwaki (1940), 1 LI., P.C. (2nd), p. 43. Google Scholar
43 Ibid., p. 6.
44 Cf. Prize Court Rules, 1914, Order 15,Rule 7.
45 Cf. for the “out of the ship’s mouth” doctrine, Deak and Jessup, Neutrality: I–The Origins, pp. 217–224 Google ScholarPubMed; the case, Hermanos, Dos, 1817 (Moore, Digest, VII, pp. 611–612)Google Scholar; Th.Baty, Britain and Sea Law (1911), pp. 60–70; Kunz, op. cit., supra, note 20, p. 187.Google Scholar
46 (1940), 1 LI. P.C. (2nd), p. 43. Google Scholar
47 Quoting Justice Story in The Harrison,1 Wheaton 298.
48 7 LI. P.C. 401, at p. 408.
49 8 LI. P.C. 382, at p. 388.
50 In the same sense Prize Court Rules, 1914, Order 18, Rule 1.
51 1 LI. P.C. (2nd), pp. 34–41.
52 4 LI. P.O. 1, at p. 114.
53 (1917), 6 LI. P.C. 121.
54 6 LI. P.C. 245, at p. 254.
55 6 LI. P.C. 89 at p. 101: “If there were suspicious circumstances justifying the seizure,the claimant is not entitled to either costs or damages.” Cf. also the resume of the practice ofthe London Prize Court as to costs, in The Australia (Ceylon, 1916), 2 Br. and Col. P.C.315. Google Scholar
56 Naval Prize Act, 1864, Art. 5.
57 1 LI., P.C. (2nd), p. 57. Google Scholar
58 The Hannah Boge (1 LI. P.C. (2nd), pp. 5, 8), was captured at sea, while on a voyage to Germany Google Scholar; the Cap Norte (ibid., p. 8), on a voyage from Buenos Aires to Hamburg, was seized by a Contraband Control Officer; the Bianca (ibid., p. 9), was captured on avoyage from Rotterdam to Lisbon;the Gloria (ibid., p. 11), bound from Buenos Aires toAntwerp and Hamburg was “seized near a contraband control station”; The Biscaya (ibid., p. 12) was“arrested and taken to a contraband control port”; The Henning Ollendorff (ibid., p. 12)and the Eilbech (ibid., p. 13) were captured; The Konsul Hendrik Fisser (ibid., p. 16) was stopped on the high seas while en route from Vigo to Germany, captured and brought into a British port under orders from the warship; The Rheingold (ibid., p. 18) was seized, while on a voyage from Durban to Dunkirk; The Leander (ibid., p.26) was captured.
59 The Pomona (ibid., p. 1)Google Scholar, The Elvira III (ibid., p. 8)Google ScholarPubMed, The Christoph von Doornum (ibid.,p. 49).Google ScholarPubMed
60 The Remo (ibid., p. 52)Google Scholar, The Sistiana (ibid., p. 55).Google Scholar
61 The Gudrun Maersk (ibid., p. 42)Google ScholarPubMed, The Astoria (ibid., p. 53)Google ScholarPubMed, The Kalo (ibid., p. 56)Google Scholar, The Prins Knud (ibid., p. 57).Google ScholarPubMed
62 1 LI., P.C. (2nd), p. 8. So-called “spoliation of documents,” which constitutes sufficient ground for capture. See The Ophelia (1915), 3 LI. P.C. 13Google Scholar; Lushington’s, Dr. decision in The Johanna Emilie (1854), Spinks 12.Google Scholar
63 1 LI. P.C. (2nd), p. 16.
64 The Benmacdhui (1 LI. P.C. (2nd), p. 6)Google Scholar; The Newfoundland (ibid., p. 10); The Egret (ibid., p. 10); The Havmby (ibid., pp. 10, 14); The Bassa (ibid., p. 13); The Glengarry (ibid.,p. 13); TheSoudan (ibid., p. 13); The Glenroy (ibid., p. 13); The Warwick Castle (ibid., p. 14);The Mataroa (ibid., p . 14); The Glenearn (ibid., p. 63).
65 The Alwaki and other vessels (ibid., p. 43). The neutral Italian ship, Gabbiano, was captured for carriage of contraband,had a prize crew put on board at Gibraltar and so arrived at Cardiff. Cargo from a neutral Danish vessel, The Inge Maersk (ibid., p. 15), wasseized at a contraband control station as absolute contraband.
66 Other than under the right of angary, and under other hypotheses mentioned in the previous paragraph.
67 Cf. German Prize Law Code, Aug. 28, 1939, Arts. 70, 71.Google Scholar
68 Supra, note 10.
69 Cf. also: “The effect of a condemnation is to divest the enemy subject of his ownership. . . and to transfer it to the Sovereign” (The Odessa, [1916] 1 A.C. 145, at p. 154).Google Scholar “Subject to condemnation in prize, the capture is for the Crown’s benefit.”Google Scholar The Oscar II,[1920] A.C. 748.Google ScholarPubMed See also The Sudmark (1918), 6 LI. P.C. 352. Google Scholar
70 , S.R. and O., 1918, No. 387. Google Scholar
71 Namely, an undertaking in writing by the proper officer of the Crown for payment into court on behalf of the Crown of theappraised value of the ship.
72 (1915), 4 LI. P.C. 1.
73 (1916), 4 LI. P.C. 62.
74 See also The Cardon (1916), 2 LI. P.C.264. Google ScholarPubMed
75 The Pellworm, Privy Council, 1922, 9 LI. P.C. 170, overruling the contrary holding by the prize court in The Pellworm (1920), 9 LI. P.C. 158.
76 1 LI., P.C. (2nd), p. 1.Google Scholar
77 Cf. the case of The Marie Leonhardt (1920), 3 Br. and Col. P.C. 761.Google Scholar
78 1 LI., P.C. (2nd), p. 6. Google Scholar
79 Ibid., p. 8. Thus also The Biscaya (ibid., p. 12).
80 1 LI., P.C. (2nd), p. 52. Google Scholar
81 Ibid., p. 55.
82 Ibid., p. 42: without appraisement, the Crown filing an undertaking for payment into court of the appraised value of the ship.
83 Ibid., p. 53: requisition and payment into court of appraised value.
84 Ibid., p. 56: requisition, appraisement of vessels and stores; undertaking by Crownfor payment into court.
85 See The Nicolae (1920), where the Rumanian Prize Court in the case of a Bolshevist vessel captured by Rumania in the Black Sea, on July 2,1919, had to deal with the question whether a state of war existed between Rumania and Soviet Russia (Verzijl, op. cit., pp.239–241).Google Scholar
86 The Inge Maersk, Feb. 22, 1940,Google Scholar 1 LI., P.C. (2nd), p. 15, was still the case of a neutral Danish vessel.Google ScholarPubMed
87 1 LI., P.C. (2nd), p. 42. Google Scholar
88 Ibid., p. 56.
89 Ibid., p. 53.
90 1 LI. P.O. (2nd), p. 57.
91 In The Zamora, [1916] 2 A.C. 77 at p. 108, the Privy Council laid down only the captor’s duty to bring in promptly the property seized for adjudication: “If the captors do not promptly bring in the property seized for adjudication, the court will, at the insistence of any party aggrieved, compel them to do so.” The Zamora decision further laid downas one condition for the requisition of the thing seized pendente lite that the right of requisition must be enforced by application to the prize court. It is furtherwell settled in British prize law,contrary to the practice of other States, that the release by the organs of the captor, during or after prize procedure, must be sanctioned by the prize court. See The Birkenfels and cargo (1915), Cases Decided in the Prize Courts of South Africa, 1914–1918 (Capetown, 1925),p. 39.
92 See The Roumanian (1914, 1915), 1 LI. P.C. 191, 2 LI. P.C. 387.Google ScholarPubMed
93 1 LI., P.C. (2nd), p. 63. Google Scholar
94 Cf. Kunz, Kriegsrecht und Neutralitatsrecht (Vienna, 1935), p. 114. Google Scholar
95 The Primavera (1916), Entsch. I, 194. Google Scholar
96 The Germania No. 2 (1917)Google Scholar, 4 LI. P.C. 263; The Oriental (1915), 1 LI. P.C. 575. Google Scholar
97 The Tolna (1920), Revue Generate de Droit International Public, 1920, p. 90. Google Scholar
98 1 LI., P.C. (2nd), p. 8. Google Scholar
99 Declaration of London, 1909, Art. 57. The Order in Council of Oct. 20, 1915, replaced the London Declaration, Art. 57, inBritish prize courts by the principles and rules observed by these courts prior to 1909.
100 “She was flying the German flag at the time of capture” (The Henning Oldendorff, 1 LI., P.C. (2nd), p. 12).Google Scholar
101 See The Odessa (1915), 2 LI., P.C. 405. Google Scholar
102 The Christoph von Doornum, 1 LI., P.C. (2nd), p. 49, at p. 51. Google Scholar
103 So already Lord Stowell in The Tobajo (1804), 5 C. Rob. 218. Google Scholar
104 1 LI., P.C. (2nd), p. 1. Google Scholar
105 Ibid., p. 9.
106 Ibid., p. 16.
107 1 LI., P.C. 56: “The court has no hesitation in pronouncing upon the authorities, upon principle, and upon grounds of convenience and practice, the claim of the neutral mortgagees of this captured vessel must be rejected. The same conclusion would be arrived at, if the claims wereby British subjects.” See also The Odessa, 2 LI. P.C. 405, where it was heldthat legal ownership, as the criterion of enemy character, means the property as opposed to any special rights created by contract, whether this contract was made before or after the outbreak of war, but that the power of the Crown to redress hardship caused to subjects by decrees of the prize court by the grant of bounty is unimpaired. But, as Sir Samuel Evans stated in The Marie Glaeser: “The prerogative of bounty is another matter; I have nothing to do with that; I am here merely to administer the law.”Google Scholar
108 1 LI., P.C. (2nd), p. 49. Google Scholar
109 5 Wall. 372: “In proceedings in prize and under principles of international law, mortgages on vessels captured/ure belli are to be treated only as liens, subject to being overridden by the capture.”
110 1 LI., P.C. (2nd), p. 78. Google Scholar
111 1 LI. P.C. at p. I l l : “WhatI have said as to the shareholders applies with greater force to those who have advanced sums of money, or rendered services, such as brokerage. As judge of the Prize Court, I cannot allow such claims.”
112 1 LI., P.C. (2nd), p. 57. Google Scholar
113 See The Chateaubriand (1916), 5 LI., P.C. 24. Google Scholar
114 See the cases: The Roland (1915), 2 LI. P.C. 253; The Palm Branch, 6 LI. P.C. 1; The Australia (Ceylon, 1916), 2 Br. andCol. P.C. 315.
115 1 LI., P.C. (2nd), p. 1. Google Scholar
116 See The Hamborn (1919), 7 LI., P.C, 67: condemnation of an enemy vessel; bunker coal being the property of the American time-charterers did not pass as part of the vessel.Google Scholar
117 1 LI., P.C. (2nd), p. 9. Google Scholar
118 1 LI., P.O. (2nd), p. 11. Google Scholar
119 In The Roland, Sir Samuel Evans stated:“According to prize law, property upon an enemy ship consigned to an enemyport is prima facie enemy property.” But in The Australia,the court held in a case where the cargo was not consigned to an enemy port that:“Sir Samuel Evans did not intend to engraft any such limitation upon the principle he was affirming.”
120 1 LI., P.C. (2nd), p. 6. Google Scholar
121 In the unreported case of The Durham Castle, Sept. 16, 1914.Google Scholar
122 1 LI., P.C. (2nd), p. 27. Google Scholar
123 Contrary to the prize courts of otherStates, British prize courts distinguish between ante bellum contracts, contracts made imminente bello, and post bellum contracts.Equally contrary to the practice of prize courts of other States, British prize courts, in deciding the question of ownership of captured cargo in cases of bona fide ante beUum contracts, apply the English municipal law. See particularly The Miramichi (1914), 1 LI. P.C. 157. As to taking into account the Sale of Goods Act 1893, see The Marquis Bacquehem (Egypt, 1915),2 Br. and Col. P.C. 96; on the f.o.b. clause, see The Sorfareren (1915), 4 LI. P.C. 174; on the c.i.f. clause, see The Miramichi, The Derfflinger (1918), 7 LI. P.C. 394, The Parchim (1915,1917), 4 LI. P.C. 375, 338, and The Australia (Ceylon, 1916), 2 Br. and Col. P.C. 315: “The effect of the shipment of goods f.o.b.is undoubtedly, as a general rule, to transfer the risk of loss of the property from the seller to the buyer and to put an end to the right of stoppage in transitu”; in a c.i.f. shipment “the goods are at the risk of the purchaser.” On the clause“no arrival, no sale”, see The Derfflinger, No. 2 (Egypt, 1915), 1 Br. and Col. P.C. 398.
124 4 LI., P.C. (1918), 388. Google Scholar
125 Relying on the authority of Johnson, v. Taylor Brothers & Co. Ltd.. [1920] A.C. 144 at pp. 155–156. Google Scholar
126 1 LI., P.C. (2nd), p. 63. Google Scholar
127 2 and 3 Geo. 6, ch. 89 (Sec. 2 gives the definition of an enemy), reprinted in J. Burke,Loose-Leaf War Legislation (London, 1939), pp. 213–222. Trading with the Enemy (Custodian) Order, 1939 (S.R. and O. 1939, No. 1198), ibid., p. 26. Cf. also Krusin & Rogers, The Solicitor’s Handbook of War Legislation (London, 1940), pp. 236–264, and the same,First Supplement (London, 1940), pp. 19–23.
128 Older cases: The Jan Frederik (1804),5 C. Rob. 128; The Baltica (1857), 11 Moore’s P.C. 141. World War cases: TheSouthfield (1915), 3 LI. P.C. 404; The Daksa (1917), 5 LI.P.C. 317. See The Kronprinseasan Margareta (1917), 6 LI. P.C. 222: “ I t is well established as a principle of prize law that during . . . imminent danger of hostilities, the property in cargoes of belligerent parties cannot change its national character in transitu; and that if neutrals purchase goods in transitu during a state of impending danger of war, the contract of purchase is held invalid.” The Kronprinseasan Margareta (1920), 8 LI. P.C. 241 at 257:“The law of prize . . . refuses to recognize transfers of the ownership of movables afloat from an enemy transferor to a neutral transferee when unaccompanied by actual delivery ofthe goods.” Cf. also The Vrow Margareta (1799), 1 C. Rob. 336.
129 Thus counsel for claimants, quoting The Roumanian, 2 LI. P.C. 378 at p. 394, the words“while at sea” in The Kronprinseasan Margareta, 8 LI. P.C. 241, at p. 257; he could also have quoted the words “transfer of goods at sea” in The Daksa, 5 LI. P.C. 317.
130 Thus the representative of the Crown,quoting The Roumanian, 2 LI., P.C. 378 at p. 403 Google Scholar, and the words: “so long as the original transitus is deemed to continue” in The Vesta(1921), 10 LI., P.C. 106 at p. 127. Google Scholar
131 Invoking The Bawean (1918), 7 LI. P.C. 113. Google Scholar
132 The Roumanian (1914), 1 LI. P.C. 197. Google Scholar
133 “Le pavilion couvre la marchandise.”Google Scholar
134 See The Aldworth (1914), 1 LI. P.C. 137, The Miramichi (1914), 1 LI. P.C. 157, The Roumanian (1915), 2 LI. P.C. 378; andin the present war the cases: The Benmacdhui, 1 LI.P.C. (2nd), 6; The Newfoundland,ibid., 10; The Egret, ibid., 10; The Bassa, ibid.,13; The Glengarry, ibid., 13; TheSoudan, ibid., 13; The Glenroy, ibid., 14; The Warwick Castle, ibid.,14; The Mataroa, ibid., 14.
135 British Orders in Council of March 11,1915, and Feb. 16,1917;Google Scholar French Decree of March 13, 1915.Google Scholar See Kunz, Kriegsrecht und Neutrdlitdtsrecht (Vienna, 1935), pp. 255–256. Google Scholar
136 Thus also the decision in The Dirigo and other vessels (1919), 8 LI. P.C. 395. Google Scholar
137 1 LI., P.C. (2nd), 6 at p. 7. Google Scholar
138 See The Schlesien No. 2 (1914), 2 LI.P.C. 92. Google Scholar
139 1 LI. P.C. (2nd), 1. Google Scholar
140 Kunz, Cf., op. cit., pp. 167–168. Google Scholar
141 (1914), 1 LI. P.C. 8: “I pronounce The Chile to have belonged at the time of seizure to enemies of the Crown, and to have been properly seized; and on the application of the Crown, I order that the ship be detained by the marshal until a further order is issued by the court.” Google Scholar
142 Still after the World War, judgments concerning the VIth Hague Convention of 1907 were rendered. In the case of The Tibor (France, Civil Tribunal of the Seine, March 4, 1932, Ann. Dig. P.I.L.C. 1931-1932 (London, 1938), pp. 440-441), a Hungarian vessel, seized by the French naval authorities on Aug. 1,1914, on her arrival at the port of Bordeaux, requisitioned by France, and lost during the war, compensation under Art. 2 of the Vlth Hague Convention of 1907 was granted. Contra: The Minna: Reinhold v. Belgian State, Brussels Court of Appeals, Jan. 16, 1924 (Ann. Dig. P.I.L.C. 1923-1924 (London, 1933), pp. 452-454); and The Neckar: L. Littlejohn & Co. v. U. S. (1926), 270 U. S. 215, Ann. Dig. P.I.L.C. 1925-1926 (London, 1929), pp. 483-484.
143 Misc. No. 19 (1925), Cd. 2654. Google Scholar
144 German yacht Elvira III, 1 LI. P.C. (2nd), 8; the Italian ships Remo (ibid., 52), and Sistiana (ibid., 55).
145 Ibid., 49.
146 Ibid., 1.
147 Ibid., 12.
148 See The Schlesien (1914), 2 LI. P.C. 92. Google Scholar
149 1 LI. P.C. (2nd), 9. Google Scholar
150 The question of cargo was held over also in the case of The Henning Oldendorff, 1 LI.P.C. (2nd), 12.
151 Ibid., 11.
152 London Gazette of Sept. 4, 1939, p. 6051, reprinted in C.C.H. War Law Service, III(Foreign Supp.), 65,552. Identical: contraband proclamations of New Zealand (ibid.,,555 and 65,605), Canada (ibid., 65,568), but also of France (ibid., 65,554). For Germany cf. Arts. 22–27 of the Prize Law Code, Aug. 28, 1939 (R.G. Bl. I, No. 161, Sept.3, 1939);but the amendment (C.C.H. War Law Service, op. cit., 65,553) follows closely the British contraband proclamation. Britain again instituted the system of “black lists,” ofthe“navicert” and so on, as in the World War. For later developments, see theseizure of German exports (S.R. and O., 1939, No. 1709, Nov. 27, 1939, C.C.H. War Law Service, op. cit.,65,557–65,558; French decree, Nov. 28, 1939, ibid., 65,559; Canadian proclamation, Dec.8, 1939, ibid., 65,585), and the British Extension of Blockade Orderin Council, Aug. 1, 1940(ibid., 65,587–65,588) (so-called “All-Europe” blockade).
153 1 LI. P.C. (2nd), 6. Google Scholar
154 Ibid., 10.
155 Ibid., 10.
156 1 LI. P.O. (2nd), 14. Google Scholar
157 See The Kim and other vessels (1915), 3 LI. P.C. 167: “It is, no doubt, incumbent upon the captor in the first instance to prove facts from which a reasonable inference of hostile destination can be drawn, subject to rebuttal by the claimants.”
158 It is typical of the British conception of prize law to hold: (1) that the “procedure and practice of the prize court (is) a domestic affair, in which no foreign neutral or enemy has any voice or right to interfere” (The Zamora (1915), 4 LI. P.C. 1); and(2) that “as to the modifications and onus of proof . . . these are matters really affecting rules of evidence and methods of proof in this court, and I fail to see how it is possible to contend that they are violations of any rule of international law”(TheKim (1915), 3 LI. P.C. 167). But as the rules of evidence concerning hostile destination and burden of proof are most intimately connected with substantive prize law, the recognition of new legal presumptions by British prize courts and the setting up, by these courts, of new judicial presumptions, constitute, in fact, a change of substantive prize law to the detriment of the claimants. Against this practice are: Kunz, op. cit., p. 187; Verzijl, op. cit., §§30, 111, 451 seq.; C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston, 1922), Vol. II, pp. 815–817.
159 An appearance had been entered by the National City Bank of New York, but was withdrawn.
160 See The Kim, loc. cit.: “The convenience of Copenhagen for transporting goods of Germany need hardly be mentioned.” Google Scholar
161 1 LI. P.C. (2nd), 15. Google Scholar
162 Thus, already, the London Declaration of 1909, Art. 31.
163 1 LI. P.C. (2nd), 43. Google Scholar
164 This judicial presumption of hostile destination was established during the World War. See The Kim, The Esrom (1919), 8 LI. P.C. 492 Google Scholar; The Hdkan (1916), 5 LI. P.C. 161. Google Scholar
