Ambassador Meyer to the Secretary of State.

No. 503.]

Sir: In compliance with the department’s instructions cabled to me under date of April 18, I have the honor to inclose herewith a copy in Russian of the proceedings and decision of the supreme court in St. Petersburg in the case of the Knight Commander, as well as a copy in Russian of Mr. Berline’s protest as regards neutral goods, together with the translation into English of both these documents.

I have, etc.,

G. von L. Meyer.
[Inclosure 1.—Translation.]

decision.

By a ukase of His Imperial Majesty the supreme prize court at its session on November 19, 1905, at which were present the president, Adjutant-General-Admiral Kaznakoff, member of the admiralty council, and the following members of the admiralty council: Admiral Koupreanoff, Vice-Admiral Verkhovsky, Vice-Admiral Dykoft, Vice-Admiral de Livron; Senators, Actual Privy Counselor Grave and Privy Counselor Count Tisenhausen; also the member from the ministry for foreign affairs, Privy Counselor Martens, and the Acting Procurator, Privy Counselor Steblin-Kainensky; Acting Superior Secretary, State Counselor Sourine, heard the appeal in the decision of the Vladivostok prize court, rendered on July 24, 1904, in which the steamer Knight Commander and the cargo on said vessel when seized was condemned to be confiscated as being contraband of war.

The circumstances of the case are as follows: On July 11, 1904, about 6.30 o’clock in the morning, a detachment of cruisers, under the command of Rear-Admiral Jessen, consisting of the cruisers Rossia, under the command of Captain of the First Class Andreeff; the Gromoboi, under the command of Captain of the First Class Dabitch; and the Rurick, under the command of Captain of the First Class Troussoff, while cruising in the Pacific Ocean in latitude 34° 21′ north and 138° 53′ 5″ west, sighted a trading vessel. The Rossia steamed in pursuit, and when at a distance of 15 to 20 cable lengths hoisted the signal “stop,” and fired blank shots one after the other, and noticing that the steamer continued to steam at full speed in the direction of the Gulf of Tokyo, it fired two shots at the fore part of the steamer. Then only did the steamer heave to, and hoisted the British flag. By order, of the commander of the cruiser Rossia the signal for “the captain to come on board with his papers” was hoisted, but as this order was not carried out a detachment under the command of Lieutenant Gavrishenko and Midshipman Baron Aminoff was sent to examine the vessel, its manifest, and cargo. Upon reaching the vessel it was found that the steamer was named the Knight Commander, English, and, in command of Capt. J. K. Durant, was proceeding to Japan with a cargo consisting of railway material, parts of bridges, machinery, and mixed cargo. The captain could produce no papers. The examination of the holds made by the above-named officers showed that they contained almost exclusively [Page 1319] contraband of war, the balance of the cargo being comparatively very small. Having visited the steamer, Lieutenant Gavrishenko returned to the cruiser, together with the captain and documents.

Captain Durant being asked why he was not in possession of the cargo’s bills of lading, and learning from him that there was coal on the steamer for not more than four days, Rear-Admiral Jessen declared to the captain that as the steamer was subject to confiscation and there was not sufficient coal to take it to a Russian port, he would destroy her. Half an hour’s time was given for the crew to disembark.

At 8.32 Captain Durant returned to his vessel and at 9.15, as soon as the crew had left, the steamer was blown up.

Upon the return of the detachment of cruisers to port the case of the sinking of the said steamer was examined by the prize court of the port of Vladivostok.

Upon the presentation by Captain Durand to the court of the ship’s papers it was seen that the steamer Knight Commander, British flag, was built at Harrow, in 1890, had a displacement of 9,620 tons, gross tonnage of 4,305.53, registered tonnage being 2,716.32, speed 11 knots, registered at the port of Liverpool, No. 97801, and the property of Robert L. Greensheilds, of Liverpool. From the entries in the log book, supplemented by explanations given by Captain Durand, it was seen that up to December, 1903, the vessel plied between Calcutta and other ports of India. In December the vessel was chartered by the British Lloyd for one trip to Triest and Venice. In Venice the steamer was chartered by an Austrian firm at Triest to carry coal, machinery, and other cargo to Messina, and thence to Palermo with a cargo of 25,000 cases of lemons and other goods for New York, where the charter expired. In New York the vessel was not chartered, but,’ taking up various goods, it was sent by the agents of the shipowners to Port Singapore, Manila, Shanghai, Yokohama, and Kobe, where the present trip was to end.

With regard to the cargo, the captain not having been able to produce any bills of lading or either the ship’s manifest referring to it, the court could only form an opinion of that part of it which was addressed to Yokohama and Kobe, which was found on board the steamer at the time of its arrest by the Russian cruisers. At the same time, as Captain Durant could produce no documents concerning that portion of the cargo which was examined by the court to show its nature or quantity, and the court had only at its disposal the deposition of the officers of the imperial fleet, Lieutenant Gavishinko and Midshipman Baron Amirioff.

The explanations given by Captain Durant, the entries made in two private-letter books presented by the latter, and these, when carefully compared, showed that the cargo at the time of the seizure of the vessel consisted of the following articles: Rails, parts of bridges, various railway material, steel, steel sheets, nails, wire, tubes, wheels, tar, acids, shovels, and a small amount of mixed goods consisting of paint, clothing, leather, sail cloth, tin plates, hardware, timber, and small articles, such as ink, scents, soap, etc.

As stated above, the captain produced no manifest. When asked with regard to this, the captain stated that he gave the shipowners’ agents full powers to sign the manifests; that he saw some of he manifests for the first time at Shanghai at the office of Arnold Harberg, but that he never received copies of the bills of lading or manifests, nor did he sign a single bill of lading. Captain Durant could not recollect whether he took oath or not for the ship’s manifest, and could not explain otherwise the absence among his papers of the New York port “clearance papers.” The Vladivostok prize court found that the vessel should have been in possession of copies of bills of lading and in all cases of the ship’s manifest of cargo—that in America the execution of such formalities is absolutely required, which fact was confirmed by Captain Durand in his letter to the shipowners dated from Messina on March 3, 1904, and that consequently, without his signature, under oath of the manifest, in that it contains a correct list of the cargo taken on board and destined to parts mentioned in the manifest he would not be allowed to discharge in port. That he was allowed to discharge is shown by the fact that the Knight Commander discharged at Manila that part of the cargo destined thereto. That without his signature to the manifest he could not discharge such cargo is proved by the fact that at Manila he signed a manifest, under oath, which simply stated that he had not taken any goods on board.

That a manifest signed by the captain in New York and the clearance papers should have been on board is clear from the circumstances, firstly, that the Manila manifest and clearance papers were found among the documents presented [Page 1320] by Captain Durant, and secondly, on a leather case, bearing the inscription “Steamer Knight Commander, for the guidance and memory of the captain,” is given a full list of all the documents which the vessel must absolutely carry, and among them the ship’s manifest and clearance papers. Therefore Captain Durant could not fail to recollect whether or not he signed a manifest at New York, and could not be without a clearance paper of said port and without a manifest of the cargo duly signed by himself. The fact of Captain Durant’s statement that he could not recollect whether he signed them or that he must have lost these documents, as a reason for not possessing them, cannot be considered. The real explanation must be that Captain Durant destroyed them as compromising his vessel or at least intended to hide them.

The insincere explanations of Captain Durant can also be seen in his business correspondence with the shipowners, of which the court became acquainted through the press copy letter book produced by him together with other papers. From these books, recognized as belonging to him and containing copies of his (Captain Durant’s) letters, written in his own hand, the following expressions are to be remarked, which clearly show the true character of the vessel’s destination, as well as the correspondence with regard to the requirements of neutrality on the part of the shipowner and captain.

1.
Page 422 of press copy book: “New York, April 15, 1904. Stowage is progressing very slowly, thanks to the nature of the goods, for we were nearly two full days in stowing parts of bridge constructions weighing from 6 to 7 tons each. Our agents cabled to Chemulpo to prepare proper cranes for discharging purposes, but no reply has so far been received. I shall thus be obliged to get proper tackle and heavy pulleys in order to discharge this portion of the cargo and have an end of it, and perhaps may sell them at a profit. This class of cargo puts us to a great deal of trouble, as we are not outfitted with necessary pulleys and cordage.”
2.
Page 424: “New York, April 22. I regret to have to inform you that we are still stowing very slowly, thanks to the nature of the cargo with which we have to deal. We are stowing the bridge material in hold No. 1 in destination for Chemulpo.”
3.
Page 443: “Shanghai, June 19. As far as I have been able to ascertain from Mr. Arnold Karberg, the passage to Chemulpo at the present time is not without danger. They have strongly advised me, if I should still decide to try, to go south, then straight to the west before touching at any port. I have not the intention of throwing off the responsibility, but do not see either why we should want to meet a catastrophe. From your yesterday’s letter I was fully under the impression that we had not to discharge at Chemulpo. Our last sure port on the way hence will be Kobe. Be assured that I will carefully weigh these circumstances, as well as that of considering whether or not it will be safe to travel farther. I am afraid that the stem of our vessel will sit very low in the water when the cargo for Kobe (the actual) is discharged, as, when loading, holds No. 2,41 were the ones which took in the greater portion of the bridge material.”

From the above correspondence it is visible, firstly, that the vessel was far from being a passive arm in the transport of contraband of war to the enemy, but that, on the contrary, the owner of the vessel took a marked part in this operation; secondly, that in reality the carefully hidden destination of the vessel was Chemulpo and not Yokohama or Kobe—in other words, the acting Japanese army; and, thirdly, that the true nature of the cargo as well as its destination and that of the vessel were well known to Captain Durant. Meanwhile, in his explanations before the court of the different circumstances of the vessel’s voyage, Captain Durant, who was not aware that his letter-press copy books were in the hands of the court, declared that the parts of the bridge were destined to Kobe, and that he was not aware that railway material was contraband of war.

In view of the discrepancies in Captain Durant’s explanations before the court, as well as the hiding away of a whole lot of very important documents regarding the steamer and cargo, the summons to him to aid in establishing the quantitative relation of articles of contraband as compared with the total quantity of cargo on the steamer at the time of its arrest was not found possible by the court.

As regards two private notebooks, Nos. 4 and 5, in view of the fact that they only contain data relative to goods and their marks addressed to Yokohama and Kobe, without their weight or capacity; that they do not contain any information relative to the rails and in general to the railway material [Page 1321] which was found on board as being destined for Kobe; that relative to this material no documents or notes were presented to the court, nor the slightest indication shown about railway material, and that, after all, these notebooks Nos. 4 and 5 were private property, incomplete and insufficient, the only proofs in the absence of absolute proofs for determining the relative quantity of contraband cargo found on the Knight Commander were, for the court, the depositions of Lieutenant Gavrishenko and Midshipman Baron Aminoff, who searched the vessel. Having examined the fore holds, which were the largest, the first named saw that the cargo consisted of railway material in the form of parts unmounted, such as bridges, rails, tubes for boilers, car-body springs, with wheels as well as cogwheels, angle-iron bars, telegraph wire, and barrels of cement. The cargo in the after holds examined by both officers also, for the most part, consisted of railway material, iron tubes in large quantities occupying over one-third of the hold, as well as parts of machinery and their accessories, and, finally, the center hold also contained railway material in the form of car bodies or movable platforms.

In making the examination of the holds in company with Baron Aminoff, Lieutenant Gavrishenke came to the conclusion that the Knight Commander’s cargo was contraband, and if she carried noncontraband goods they were in very small quantity.

Therefore, in the opinion of the Vladivostok prize court, there remains absolutely proved:

1.
The actual illegal action on the part of the owner of the steamer Knight Commander in transporting to our enemy at Chemulpo, directly at the theater of operations, articles of contraband of war;
2.
The hiding by the captain of said steamer of a whole set of very important documents relating to his vessel and its cargo as well, as his evident knowledge of the fact that he was carrying articles of contraband of war to our enemy; and
3.
The finding on said steamer at the time of its seizure of contraband of war in quantities undoubtedly far exceeding half of the total cargo.

On this ground, and being guided by the facts in the present case provided for in sections 5, 8, and 13 of the Naval Prize Regulations, the prize court found:

1.
That the English steamer Knight Commander was properly captured within the observances of the rules provided for in sections 2, 3, 15, and 17 of the prize regulations, and
2.
That the said steamer which was carrying contraband of war destined to the enemy in quantities exceeding one-half of the total cargo, as well as the cargo, are properly legal prizes; and, therefore, on July 24, 1904, it resolved; that the steamer Knight Commander and the contraband of war “cargo” found on her at the time of the seizure, were legal subject to confiscation, as legal prizes.

Mr. Bajenoff, attorney for the owners of the vessel and of the cargo, appealed against this decision and stated:

1.
That section 36 of the instructions for the visiting and arrest of vessels had not been properly carried out, namely, the protocol of the search made on the vessel as well as the resolution for the sinking of the same, were not signed by Admiral Jessen, giving his reasons and the section of the instructions by which he destroyed the steamer.
2.
That Captain Durant was examined, although not under oath, but as a witness, which is an infringement of section 64 of the “regulations” which recognizes him as one of the parties and not subject to examination as a witness.

In examining the decisions of the court relative to the recognition of the steamer Knight Commander as a legal prize, the lawyer in his appeal, states:

1.
That the deductions made by the court from this correspondence as to the insincerity of the captain’s explanation and the reference to the obligations of neutrals can scarcely be considered convincing.
2.
That the accusation brought against the captain that he hid the documents can be but a supposition of the court, unsupported by any real facts.
3.
That in the evidence taken in forming its decision the court had not sufficient data for determining the quantity and quality of the cargo, and based its verdict upon the doubtfulness of the captain’s explanation found “as absolutely worthy of confidence for determining the relative quantity of cargo contraband of war on the Knight Commander the depositions of the officers, Gavrishenko and Aminoff, who examined the whole vessel.

[Page 1322]

In considering the value of this proof, Mr. Bajenoff in his appeal, finds that one can not but come to the conclusion that the examination of the vessel was very superficial, the examiners only took notice of such articles which, in their opinion, might be contraband of war, one of them it is seen, including even iron of every description, and the other railway material, which he saw in every article made of iron, and neither of them paid any attention to the other part of the cargo, which was considerable, as seen in books Nos. 5 and 6 attached to this case.

Only a superficial examination could result in such a way and indeed, in looking from above, through the hatchways, the holds 35 to 40 feet deep, one could see only articles on the top of the holds. The proof that the examination was only superficial is supported by the statement of Gavrishenko that “he had not time to open the cases as he was ordered to hasten his return to the cruiser.”

In conformity with the imperial instructions of February 14 of the present year, sections 7 and 9 of series 6, all kinds of steamship engines or boilers, both mounted or unmounted, as well as articles and material which may serve for telegraphs, telephones, or railways, are to be considered as contraband of war. “Hence it is clear that not all kinds of machinery and iron are contraband of war, but only those which have a special purpose.” From the deposition of the witnesses one may consider as more or less established that part of the cargo consisted of rails and bridge parts and that to the eye these formed about two-thirds of the contents of the two after holds of the vessel, while of the other five holds the cargo consisted mostly of iron articles, cases, barrels, etc., the destination of which could not be determined by the witnesses, and was not determined at all.

All this taken together could in no way justify the ground for considering the cargo as contraband of war, “even if the said rails and parts of bridges were a part of it” in quantity exceeding half the entire cargo, and this result not having in itself more or less exact figures or documentary evidence, and consequently the only measure which could be applied in the given case to the steamer was to seize and take her to the nearest port to be delivered as contraband of war (remark to section 37, section 2b), and in no case could the steamer be sunk.

Under the conditions in which the steamer was arrested it is difficult to believe that it was not possible to take her to the first Russian port, inasmuch as it is seen in the case that the vessel carried 120 tons of coal, which at a ten-knot speed would be sufficient for four days, namely, to cover a distance of about 1,000 miles, whereas the nearest Russian port, “Karsakoff, on the island of Sakhaline,” is considered to be about 750 miles distance from Yokohama, and secondly, because, although the vessel was seized at 15 miles from the entrance to the Gulf of Tokyo, the enemy was not visible and in general did not show himself, whereas these very circumstances were given as requiring the destruction of the steamer.

The prize court, in deciding the question of the cargo, was guided by that information which guided the navy administration; also, whereas, if they had followed Section I of the “prize regulations,” where in similar cases the owners of the cargo must be summoned through publication in the newspapers, the court would in all probability have been able to obtain sufficient information to have prevented it from making a wrong estimate in the quantity of cargo recognized as contraband of war.

In view of all the foregoing, the attorney, in appealing, asks the supreme prize court to reverse the decision of the Vladivostok prize court as being irregular, and to recognize the sinking of the steamer Knight Commander as unjustifiable, and to give satisfactory compensation both to the owners of the vessel as well as to the owners of the cargo on said vessel.

To this appeal the procurator of the Vladivostok prize court gave an explanation, in which he states that paragraph 40 of the “Instructions relative to the overhauling and seizure of vessels, as well as to bringing and delivering vessels and their cargo,” allows the commanders of the imperial navy, in some cases, to burn or sink the vessels which have been captured. The steamer Knight Commander, which was caught in the act of carrying contraband of war to the enemy’s ports, and on which all the necessary documents were missing, was undoubtedly subject to arrest. Consequently, in the face of the above-named extraordinary circumstances, the commander of the detachment of cruisers had the full right to order the vessel to be destroyed. In reference to section 5 of section 40 of the instructions, it is definitely said that “although [Page 1323] section 21 of the prize regulations of 1895 allows the burning or sinking of a captured vessel under the personal responsibility of the commander, yet the commander undergoes no responsibility when the captured vessel is undoubtedly subject to condemnation as a prize, and when the extraordinary circumstance in which the imperial vessel may find itself renders absolutely necessary the destruction of the arrested property.” In the present case such circumstances showed themselves in the lack of coal for transporting the steamer to a Russian port and the impossibility of furnishing the steamer with coal, in view of the strong swell and proximity to the enemy’s coast. At the same time such circumstance was due exclusively to the captain of the steamer Knight Commander, who, notwithstanding the two blank shots which were fired from the cruiser Rossia, continued his course at full speed toward the Gulf of Tokyo.

In section 3 of the “instructions” the results of such actions on the part of neutral steamers are determined as follows: “Any vessel which shows an open design to escape from a cruiser, and which obliges the latter to chase and use force to stop it, is subject to capture; at the same time, however, the commander of the cruiser may, if he finds it necessary, arrest the vessel temporarily and search it fully.” Consequently, in the present case the commander of the cruiser had only to make a preliminary search of the Knight Commander, and demand this on account of the distinct design of the Knight Commander to get away from the cruiser, and the party to the appeal has absolutely no ground for complaint. In ordering the search the commander acted upon his official authority, with a view of becoming thoroughly acquainted with destination of the captured steamer, as required by section 40 of the “instructions,” and the transferring of the crew and documents was executed in due form. The cargo could not be discharged from the vessel for the same reason which prevented the cruiser from furnishing the Knight Commander with coal.

Referring further to the above-named search of the steamer and its cargo by Lieutenant Gavrishenko and Midshipman Aminoff, the search is stated by the party in appeal as having been superficially made. The question presents itself, how in the absence of any documents on the steamer (the private note books can not of course be recognized as documents) the party in appeal would have conducted the search. The difficulty of such search is fully foreseen in paragraph 23 of the “instructions “in compliance with which the officers must first decide what cargo, in view of the absence of accurate documents, are to be considered as the most suspicious. In the absence of all documents the duty of the searching officers becomes difficult to the utmost degree, and only the owners of the vessel and of the cargo or their agents must bear the responsibility therefor; finally the blame must be laid to the captain of the vessel or on whomever it may please them to lay it, except on the searching officers. In reality “to make it obligatory in consequence of the absence of any data relative to the cargo “for the searching officers to examine all and every hold of the vessel and their contents, consisting of the cargo, and to clear the goods from the holds and open the cases, in general a very difficult task, and in the present case, taking all the circumstances into consideration relative to the cargo, part of which consisted of parts of bridges, which it took, with all the facilities which the port of New York could furnish, twenty days to put on board, is quite impossible. In order to obtain a more or less exact understanding of the cargo of the steamer it would be necessary to discharge it, to do which at sea was out of the question, and therefore the search of the steamer, as in fact has already been stated, was not obligatory in the present case and the search was carried out by the officers within the limits of possibility.

The results of the search were explained by the officers with the confidence that the great majority of the Knight Commander’s cargo consisted of contraband of war. Inasmuch as the captain was unable to present any documents to contradict this assurance, the information brought by the officers was the only element the commander could use for deciding as to the character of the captured steamer as well to the quantity of such cargo, and he decided that the steamer Knight Commander was a lawful prize.

The decision of the prize court confirmed this supposition, and therefore in this respect neither the commander of the cruiser nor the chief of the detachment can be called upon to assume any responsibility (sec. 40; sec. 5 of the instructions—remark). Let us now see what evidence the court had when it examined the present case. All the material proofs lay at the bottom of the sea. No bills of lading, no manifest, no documents whatever pertaining to the cargo were presented by Captain Durant. Among his papers two private notebooks, [Page 1324] relative to goods received on board, two spaces are remarked, evidently intended for the rails, parts of bridges, and, in general, all the railway material which was contraband of war. The summoning of the owner of the vessel would have thrown no light on the subject, for the fact that, as all the material proofs had disappeared, it would have been easy for him to invent documents which would have compromised our officers, as the rails and parts of bridges would have changed into common iron bars and building material for some foreign private person or firm in Japan, or the quantity of contraband of war would have been reduced so as to be less than half of the total cargo. In all prize cases the captors are considered as the respondent, and it is not for this party to prove the regularity of its acts, but for the other party to prove the irregularities. This is a universal rule. As no documents were found on board of the steamer at the time of its capture, and consequently the material proofs having disappeared can not be produced, they can not be recognized, and therefore in the present case the summons of the owners for them to present their proofs before the court would have been at the very least superfluous. The explanations given by Captain Durant, as far as they refer to the character of the cargo carried by the steamer could have still less weight in the court’s decision. Indeed, from his already, as representing the interests of the shipowners and the owners of the cargo, it was impossible to expect other explanations than those which could clear them, such a proposition the captain hastened to confirm, declaring before the court, contrary to the entries made in his own correspondence, that he had absolutely no knowledge that his vessel was transporting contraband of war, and so forth.

Besides that the case has signs of other evidence which does not give the court the possibility to avail itself of this part of Captain Durant’s explanations, namely, undoubtedly in the opinion of the court, the hiding by the captain of the documents which pertained to the cargo of the steamer.

The party in appeal explains the absence of the bills of lading from among the papers as due to the fact that they were sent in advance by post. Although in all other cases relative to the detention of neutral vessels which were examined by the court the captains presented copies of bills of lading and the manifest, but allowing even the explanation of the party in the appeal, it is asked why the latter did not find it necessary to explain likewise the absence of the manifests which, especially in view of the absence of the bills of lading, should absolutely have been in the possession of Captain Durant, signed by him on oath, as to their accuracy. Considering the bills of lading and manifests as of no importance it would be interesting to learn on what ground the party in appeal would desire the court to form its opinion of the steamer’s cargo when both vessels and cargo are destroyed. On one hand, the party in appeal considers these documents as having no special importance, on the other hand, several lines further on, in his appeal, he says that of course it would have’ been more convenient for Durant if he had possessed them or copies of them, with him, in that case it is doubtful whether the steamer would have been captured. In these words, placing the fate of the steamer and its cargo as dependent upon the possession of the first cargo documents, the party in appeal most clearly, contrary to his first declaration, establishes their paramount importance, in that it would have been preferable had Captain Durant been in possession of the cargo documents, one must agree with the party in appeal. But Captain Durant was not of that opinion, as he viewed it, if he had had the documents and the exact list of goods taken on board at New York, it would be far more unpleasant for him that the party in appeal thinks. The manifest of the port of Manila, which states that the Knight Commander took no goods on board at that port was present, it was not compromising, and it was found among the papers Captain Durant presented. It is a pity that this contradiction in the protest of the appeal party remains without explanation. Ending the examination of that part of the protest which deals with the total absence of cargo decuments on board the Knight Commander, I find it my duty to once more emphasize one circumstance remarked by the court in its decision: In the leather bag or portfolio bearing the inscription, Knight Commander, made for the safe keeping of the vessels’ documents, is printed the words “See that the general documents mentioned in the list are kept in this bag upon putting to sea and entering port.” And, as among the papers are mentioned the bills of lading and manifest, in view of such a clear reminder to the captain of this part of his duty there can be no excuse for its not having been carried out.

As has already been said in the question relative to the determination of the quantity of cargo of a contraband of war nature, the court could be guided [Page 1325] exclusively by the facts resulting from the search of the steamer made by Lieutenant Gavrishenko and Midshipman Aniinoff. Two private notebooks, beside this, that they do not contain a list of the articles forming the cargo, do not contain any data as to the weight dimensions of the articles they do mention, nor do the press copy books with the business correspondence of the captain. But if the court had really needed supplementary data in order to support its decision relative to the fact that the larger portion of the Knight Commander’s cargo was contraband of war, such data was given by Captain Durant to the court at the sitting of July 24. As seen in the protocol of this sitting, Captain Durant explained that the total cargo on board the vessel at the time of her capture weighed from 3,500 to 3,800 and perhaps even 4,000 tons. Let us consider the most favorable figure for Captain Durant, namely 5,000 tons. Deducting therefrom 385 tons for water supply and 110 tons for coal, or a total of 495 tons, there remain 3,505 tons of cargo. Of this amount, in accordance with Captain Durant’s statement, there were 1,000 tons of rails; the letters of Captain Durant to the shipowner show that alone the parts of bridges consigned to Chemulpo required twenty days to be put on board, from April 15 to May 5. Under ordinary circumstances in a well arranged port, a vessel puts about 200 tons on board daily. But let us suppose that on account of special difficulties, which appeared in stowing the heavy and bad-shaped parts of bridges, this daily placing on board amounted to an average of 100 tons or, let us say, even, 50 tons a day. Even in this case the amount placed on board in twenty days amounted to 1,000 tons of bridge parts, which, with 1,000 tons of rails, formed 2,000 tons—that is to say, more than half the above-named 3,505 tons of cargo on board the Knight Commander at the time of her capture by the Russian cruisers. Let us add to this weight, whatever it was, the car bodies and car wheels seen by Lieutenant Gavrishenko, as well as the T iron bars, telegraph wire, besides a lot of steel sheets, tar, and acids mentioned in books Nos. 4 and 5, and Ave must come to the conclusion to which the court also came with the information it possessed, namely, that the quantity of contraband or war cargo on board the Knight Commander at the time of her capture by the Russian cruiser was undoubtedly, and in a large degree, more than one-half of the total cargo, and, consequently, both the steamer and the illegal portion of the cargo should be condemned as legal prize subject to confiscation.

Referring to the decision of the court as to the illegal action of the owners of the steamer Knight Commander the party in appeal claims that from the quantity of letters only three were made note of, those most favorable to its deductions. Why did the party in appeal require the contents of all the letters which had no bearing on the voyage in dispute? It is difficult to say. It does not matter how many notes the court could have made from the letters, they would not have reduced the importance of those three which establish the part played by the owner of the vessel and the captain in the transport to the enemy of contraband of war. From the fact that against three witnesses who have seen an illegal action should the accused place a hundred witnesses to certify that they did not see anything, does not mean that the illegal action was not accomplished. Furthermore, the very wording of the court’s deductions from Captain Durant’s letters is such that, contrary to the opinion of the party in appeal, there remains no doubt as to the real character of the steamer’s last voyage and its relation to the obligations due by the shipowner and the captain.

Thus deciding in accordance with the important strength of the proofs in the case the court could not arrive at any other but the decision it rendered in recognizing the steamer Knight Commander and the cargo on it as contraband of war and a legal prize, subject to confiscation, which decision I find fully justified and proper.

Apart from the explanations given by the procurator of the prize court in reply to the protest of the shipowner’s appeal, there has also been received an explanation from the chief commander of the first squadron of the Pacific Ocean Fleet, in which Rear Admiral Jessen states:

1.
That section 36 of the “Instructions” clearly and definitely requires that the protocol should be signed by the members of the committee and the commander.
2.
That Captain Durant was examined without oath and that section 64 of the Regulations was not violated.
3.
The presence on the steamer of contraband of war was so evident that the court did not even touch the question of examining relative to the refusal to stop. When ordered to stop, the vessel started off at full speed, intending to [Page 1326] approach the coast, and did not stop until the fourth shot was fired. It is doubted whether the captain of neutral nationality would have risked his life if he had been transporting a neutral cargo.

The attorney for the owner of the Knight Commander of the steamship company “Ritsar,” Mr. Sheftel, supplementing the appeal filed by Mr. Bajenoff, presented a petition accompanied by 46 documents, stating:

1. That the prize court was duly bound to first of all decide the question as to the right to sink the vessel, and its duty in this connection had not been fulfilled, thus violating articles 50 and 74 of the Naval Prize Regulations.

2. That the true meaning of article 21 of the prize regulations, and remark to section 40 of the instructions, provides that only the enemy’s and not neutral ships may be sunk, and this is recognized by many authors and by institutes of international law.

3. That in sinking the Knight Commander there were lacking the extraordinary conditions which the law recognizes as acceptable for the sinking of vessels.

4. That in proof of the statement that neither the owner of the vessel nor the captain knew that contraband cargo was being carried on the steamer is the fact that the transport of the cargo was accepted before the declaration of war between Russia and Japan.

5. The false accusation of the captain by the court relative to his having destroyed the bills of lading and manifests and his hiding the destination of the cargo.

6. That in calculating the relation of contraband cargo as compared with the whole cargo there must be taken into account the total cargo taken on board the steamer at the time of loading, and not the quantity of cargo remaining on board the steamer at the time of the capture.

7. That the Vladivostok prize court in its decision determined what cargo, not being contraband, was subject to liberation.

8. That the amount of cargo at the time of the capture of the Knight Commander, including contraband of war, was in weight less than half of the cargo at the time of clearance. In support of this Attorney Sheftel presents documentary proof that at the time of the capture the Knight Commander carried 4,700 tons of dead cargo, 5,141 tons weight and capacity, as follows:

Tons.
Rails and rail fastenings 979
Parts of bridges 1,702
300 pairs of wheels and axles 212
400 wheels 59
Total 2,962

This quantity, as compared with the quantity of cargo on board when the steamer left New York, namely 6,857 tons, was less than half.

In this case Mr. Berline, attorney for the American Trading Company, Messrs. Wassermann and Healing, and the Methodist Missionary Society, made a special appeal, in which he shows: That the supposition of the court in explaining that the absence of cargo documents was due to their being hid by the captain, is not supported; on the contrary, it is denied by the presentation of copies of bills of lading; the latter shows the peaceful character of the cargo and its true destination; they have special importance in view of the superficial and insufficient search made by the officers. Much importance can not be given to the depositions of the officers in the protocols. The officers came to the conclusion that the cargo was contraband of war, when they only looked at the cargo through the hatches, and did not even examine the contents of the bales and cases; therefore their statement that the majority of the cargo was railway material, or even iron cargo, is without foundation and can not be accepted. All this information leads one to the assurance that the captain had no need to hide the cargo documents even if he had had them in his possession; this supposition can therefore have no weight for the decision of the court. Therefore the examination of the captain, although not under oath, was illegal, inasmuch as the captain represents the owners of the cargo and is party in the present case, and can not therefore be examined as a witness.

The statements made by the captain at the examination could not serve as condemning him, for the following reasons:

1.
Captain Durant was examined under circumstances which precluded all possibility of quietly and knowingly making his statements.
2.
His statement that he did not know the exact quantity of cargo according to categories is explained by his assertion that he never signed bills of lading, but only saw some of them at Shanghai (protocol No. 5).

Besides this the court has committed a very strong infringement of article 71 of the prize regulations, in that the cargo owners were not called through publication and were thereby deprived of giving their explanations and presenting documents to prove the true character and destination of the cargo.

Considering, in view of the foregoing, that the search of the steamer made by the officers of the Russian cruiser gave no accurate data with which to establish the contraband character of the cargo, that in view of this the sinking of the steamer was illegal and a sacrifice for his clients, Mr. Berline asks that they receive proper compensation. He asks:

1.
That the cargo which was on the Knight Commander belonging to Messrs. Wasserman, Healing, The American Trading Company, and the Methodist Missionary Society be considered as neutral and not subject to confiscation.
2.
That the decision of the Vladivostok prize court in this subject be reversed.
3.
That his clients be granted compensation for the value of the cargo sunk and for the losses sustained by them thereby.

To this petition Mr. Berline, sworn lawyer, attached in his capacity as attorney of the American Trading Company, besides his powers of attorney: (1) A sworn statement of Mr. Morse; (2) 11 bills of lading; (3) 11 invoices.

II.
In his capacity of attorney for Messrs. Wasserman: (1) His power of attorney; (2) the sworn deposition of Mr. Wasserman; (3) 3 copies of bills of lading.
III.
In his capacity of attorney for Healing: (1) Power of attorney; (2) sworn deposition of Mr. Kendilla; (3) 5 invoices; (4) sworn declaration, showing that the goods were American manufacture; and (5) copies of bills of lading.
IV.
In his capacity of attorney for the Methodist Missionary Society, a full power.

Besides the foregoing Mr. Sheftel, sworn lawyer, presented 17 petitions, in which in the names of the cargo owners and insurance companies he asks that they may receive compensation for the goods stated in the petitions, as non-subject to confiscation.

These petitions were in the names of: (1) The London and Provincial Maritime and General Insurance Company; (2) Same company “Insurance Company” in British possessions; (3) British and Foreign Maritime Insurance Company, Liverpool; (4) Chinese Insurance Company, of Commercial Steamers, London; (5) Hongkong and Shanghai Bank Association, London; (6) Switzerland General Insurance Company, Zurich; (7) London Insurance Association; (8) Tokio Maritime Insurance Company; (9) G. V. Taiser and others, Insurance; (10) G. V. Taiser and others, Insurance; (11) Maritime Insurance Company, London; (12) Mannheim Insurance Company; (13) Maritime Insurance Company, Liverpool; (14) Thames & Mersey Maritime Insurance Company; (15) Mutual Maritime Insurance Company, London; (16) The United States Lloyds Company; (17) Francis Mulling.

With these documents and petitions, powers of attorney were presented made in the name of Mr. Sheftel, sworn lawyer.

Considering the decision of the Vladivostok prize court, together with the appeals filed against it, with the circumstances of the case, and the laws, the supreme prize court finds:

In conformity with article 11 of the Naval Prize Regulations, vessels of neutral nationality are subject to confiscation as prizes when these vessels are caught in the act of carrying as cargo to the enemy or the enemy’s ports, articles of contraband of war in quantities exceeding in their total capacity or weight half of the whole cargo. The cargo is confiscated in conformity with part 1, section 12, when it consists of contraband of war in transit to the enemy or enemy’s ports.

The real and clear sense of the law shows that in order to confiscate a vessel carrying articles of contraband of war, not pertaining to firearms and ammunition or components for explosives, it is necessary to establish that the bulk of this cargo exceeds in measurement or weight half the full cargo, for the confiscation of the cargo itself it is not necessary to establish the relative quantity of the contraband cargo, as the confiscation of the cargo is made dependent exclusively of the fact whether the cargo is really contraband of war, independently of the fact as to the quantity transported (Art. I, sec. 12). This distinction must absolutely be kept in view in deciding the present case, and [Page 1328] thus in order to recognize the confiscation of the cargo carried by the steamer Knight Commander it is sufficient to establish that it consisted of contraband of war, and is being carried to an enemy’s port, in which event the quantity of the cargo is without importance. In order to establish the right of confiscation of the vessel it is necessary to show that the contraband portion of the cargo carried by the vessel exceeded one-half of the total cargo.

Referring in this respect first of all to the appeal made by Mr. Bajenoff, attorney for the shipowners, in which he does not discuss the question that the vessel was carrying goods to the enemy’s ports, and to the facts in the case that the Knight Commander at the time of its capture carried contraband of war exceeding in capacity or weight one-half of the whole cargo, the superior court finds that the explanations given by the other lawyer, Mr. Sheftel, in his appeal in favor of the shipowners, that at the time of the capture of the Knight Commander it carried 5,141 tons of cargo, of which there were 979 tons of rails and rail fastenings and 1,702 tons of bridges, which amounted in total to 2,681 tons, namely, 111 tons more than one-half of the total cargo; if one further considers that rails and parts of bridges evidently form material for the construction of railroads, as is clear in regard to rails from their very denomination, and with regard to the parts of bridges, from their material of which they were manufactured and their weight, directed to the same railroad company in Chemulpo as were the rails. Such like material, in conformity with sections 8 and 9 of the Imperial Instructions of February 14, 1904, is contraband of war.

One can not but come to the conclusion that the decision of the Vladivostok prize court recognizing the steamer Knight Commander a legal prize, fully conforms to the circumstances of the law in the case and that not only does the party in appeal not strengthen itself, but weakens its defense. It is not useless to add that the above calculations of the attorney for the appeal relative to the quantity of cargo on the Knight Commander, consisting of rails and parts of bridges is confirmed and shown by the procurator of the prize court in the explanation made in the appeal petition, was based-upon the deposition made by Captain Durant.

Referring now to the examination of other appeals against the regularity of the Vladivostok prize court’s decision, relative to the objections made to the confiscation of the vessel, the supreme prize court finds that these objections were as follows:

1.
That only an enemy, and not a neutral vessel, may be sunk.
2.
That the prize court in not deciding the question as to the legality of sinking the steamer Knight Commander violated the law.
3.
That at the time of the sinking of the steamer there were not present those conditions the existence of which by law are necessary for recognizing the sinking as legal.
4.
That the accusation of the court against Captain Durant as to his hiding the destination of the cargo as well as concealing and destroying the manifests and bills of lading were improper.

All the above objections, in the opinion of the supreme prize court, even in the event of their correctness could not induce the prize court to change its decision because, as it is stated above, the confiscation of the vessel is due exclusively to the presence of the conditions provided for in clause 1, section 11, of the Naval Prize Regulations, and consequently the absence of the conditions indicated in the objections of the party in appeal in deciding the question as to whether the vessel was subject to confiscation, has no importance.

But independently of this, the supreme prize court finds that all these objections are improper in the present case.

First of all must be remarked that the question as to the regularity of the sinking of the vessel did not pertain to the examination of the prize court, in absolute conformity with article 58 of the Naval Prize Regulations, but in accordance with the real sense of article 21 of the Naval Prize Regulations, and article 299 of the Naval Military Criminal Statutes it may pertain to the examination of the naval authorities and the criminal court, inasmuch as the sinking of a vessel is allowed under the personal responsibility of the naval authorities, therefore, to judge whether in the present case the naval authorities sufficiently examined the extraordinary circumstances, which decided them to sink the vessel or whether these circumstances were insufficient, can only be judged by the commanding authority who ordered the sinking of the vessel, and not the prize court.

[Page 1329]

Besides this, in conformity with the same article 21 of the Naval Prize Regulations and clause 40 of the instructions relative to the manner in which the capture of vessels is to be effected based on article 26 of the prize regulations confirmed by the council of the admiralty, the fear that the vessel may fall into the hands of the enemy and the distance of a home port to which such vessels may be brought are conditions which justify the sinking of a vessel. The presence of these conditions in the sinking Knight Commander were duly established by an act on July 11, 1904; the question raised in the appeals that the sinking of neutral vessels is illegal is rejected in conformity with articles 11 and 21, which together clearly explain the irregularity of this point; in conformity with article 11 trading vessels of neutral nationality may be subject to capture; in accordance with the same article 21 all captured vessels may be sunk in extraordinary cases; thus, according to Russian law in force, the Russian prize court alone can properly decide this question, and the objections raised in the appeal are negative.

We can not, however, agree with the declaration made by the shipowners’ attorney that the Russian law, in allowing “neutral vessels” to be sunk, is contrary to the principles of international law, if even in a double sense a “neutral vessel” is such as is neutral only through its nationality, although nowise neutral in its acts. In support of his position, the attorney cites a whole lot of passages from authors who declare themselves against the legality of destroying vessels of neutral nationality. But the views taken by authors or learned men, although very authoritative, do not make it an obligatory rule of international law. It is well to adhere to such opinions, but one is not obliged to accept their execution.

Not citing the opposite view, it is not found unnecessary to draw attention to an article by Professor Holland (Revue de droit international, 1905, No. 3) which expresses a doubt whether the sinking of a vessel of neutral nationality should be considered a violation of the principles of international law, especially in view of the circumstances that not only Russian law but also the laws of France, the United States, and Japan admit the sinking of neutral prizes.

But not stopping within the limits of various authorities it is necessary to examine the questions from the very root. All agree that the principle of international law relative to maritime prizes should be based upon established compromises between the interests of the belligerents on the one side and neutrals on the second part—compromises which should guarantee the rights of all. From this point of view the destruction of a captured vessel of neutral nationality should not be admitted excepting in case of absolute necessity to the interests of the hostile parties. These cases may, of course, occur much more seldom for the powers which luckily possess ports everywhere than for those which are in less favorable conditions, notwithstanding the most gross violation of neutrality by them and would likewise in some conditions entirely prevent the belligerents from putting obstacles in the way of ammunition being brought to the enemy, which it is evident would be irregular and on the part of the other belligerent party who would be in more favorable conditions, it would be an injustice.

In point of view of international law, based upon the above said compromises between the belligerents and neutrals, does not even present itself as very comprehensible, wherefore several writers declare the admittance of the sinking of neutral vessels on which the cargo belongs to neutral owners and even the refusal of compensation for this cargo; but do not admit the sinking of the vessels of neutral owners which carry contraband of war in destination of the enemy’s or for an enterprise carried out by the enemy, while in principle the center of weight of the question leads to the point that the legal interests of the owners should not suffer if it should occur in the interest of the belligerents that the vessel should have to be destroyed. But, in the existing Naval Prize Regulations of Russia, the most stringent defend the legal interests of the owners, these interests can scarcely suffer, inasmuch as if the captured cargo was to be confiscated in favor of the crown, by destroying it, it is not the owners who suffer, but the crown, which not only is deprived of the possibility of using the cargo, the crown besides this having to pay compensation (art. 44) if, on the contrary, the prize destroyed turns out that it must be returned to the owners (arts, 28–30 and 32). Regarding in part the [Page 1330] objections made by the attorney of the shipowner that in allowing a naval authority to destroy a vessel amounts to giving him the right to decide the case in the place of a prize court—this objection presents itself more or less as a misunderstanding, as, according to the regulations relative to prizes, the instructions to naval authorities relating to the destruction of vessels has but the character of a practical measure called for in cases of necessity; but does not in any way lessen the instructions to prize courts relative to the right of the destruction of property. On the contrary articles 21 and 74 stipulate that the case should be referred to a prize court for confirmation or liberation. But once the prize court has decided its compensation, the right of capture must, of course, be considered as belonging to the crown from the time of its capture, and not from the time it was recognized as liable to confiscation, just the same as an inheritance belongs to the heirs from the time of the opening of the inheritance and not from the time the court probated it. In fact, the problem of prize courts consists in that they must recognize the prize—that is to say, if the capture was lawful or illegal; or in other words, to confirm the rights of capture or to refuse to confirm it. In general, prize courts do not create rights, but only confirm them.

The supreme prize court can not find just either the last objection made by the shipowners’ attorney in that the Vladivostok prize court unjustly accused Captain Durant of concealing the port of destination of the cargo, as well as the bills of lading and the manifests. The circumstances of the case as shown in the decision of the prize court, the finding of the court that Captain Durant was insincere, is fully upheld. The circumstances are given in the decision of the court as taken from the statements of Captain Durant’s press copy books, together with the statements made by Captain Durant before the court, namely, that Durant was aware of the destination of the bridge parts to Chemulpo, and at the court, not knowing that the press copy books were in the hands of the prize court, he declared that these parts of bridges were for port Kobe. Finally, one can not accept the objection raised in the appeal that in calculating the quantity of the relative portions of the contraband of war one should determine its relation to the whole cargo taken on board the vessel. This objection is absolutely rejected by the sense of article 11 of the prize regulations, clearly shown, that account is taken only in the quantity of cargo on the vessel when captured, whether the cargo discharged was contraband or not, is not taken into consideration.

Passing on to the examination of the appeal of Mr. Bajenoff, the supreme court finds that the resolution of the Vladivostok prize court recognizes as subject to confiscation the cargo of the steamer Knight Commander, consisting of rails and railway material, machinery, telegraph wire, steel sheets, shovels, boiler tubes, parts of bridges, etc. Among these articles rails, parts of railway bridges, in conformity with section 9 of the imperial instructions of February 14, 1904, are recognized as contraband of war when they are being transported to a port of the enemy, consequently there can be no doubt as to the proper decision of the prize court in this respect, inasmuch as wire may be used for the construction of railway, telegraph, and telephone lines; and in the absence of all documents to show that this class of goods was not being transported for such a purpose, the court was fully justified in recognizing this material as contraband of war.

Referring to the petitions presented by Attorneys Berline and Sheftel in the names of the various owners of the cargo, in which they ask compensation for the value of the goods on the Knight Commander which were not contraband of war, the supreme prize court finds that all these petitions at the present time can not be examined by it; therefore, in conformity with articles 58 and 88 of the Naval Prize Regulations relative to compensation for losses in consequence of the destruction of trading vessels with their cargoes, these must be referred to prize courts, and may be addressed to the supreme prize court only for appeal against the decision of a prize court (art. 89).

In view of this, the above-named petitions of the cargo owners were presented directly to the supreme prize court, and those which were not presented to the Vladivostok prize court must be left without a hearing by the supreme court; at the same time the supreme court finds it necessary to state that the mention made in clause 2 of the Vladivostok prize court’s decision of July 24, 1904, of various kinds of goods, excepting rails and parts of bridges, in case of appeals by the cargo owners to a prize court for compensation for losses caused by the destruction of the cargoes, will not be an obstacle to the decision [Page 1331] of the question whether these individually defined cargoes for which, on account of destruction, compensation is asked, pertain in the present case to articles which, in conformity with sections 7 and 9 of article 6 of the instructions of February 14, 1904, are not admitted to be contraband of war.

The supreme prize court can not leave without reply to the charge made by the party in appeal as to the violation of article 64 of the naval regulations by the Vladivostok prize court in examining Captain Durant in the capacity of witness, who in the present instance was considered as a party, in conformity with section 36 of the Admiralty Council Instructions, which recognize the lawfulness of the captain of the Knight Commander notwithstanding the fact that the protocol for its capture is not signed by the commander of the cruiser detachment.

These objections the supreme prize court can not recognize, first, because, although the captain of a captured vessel, according to article 60 of the prize regulations, may be considered, in the absence of the owners, a party in the matter of confiscation, nevertheless his examination as a member of the crew of the captured vessel is allowed, according to the judgment of the prize court, on the ground of article 64 of the same regulations. Apart from this objection, it can not have any importance, because Captain Durant did not refuse to be examined by the prize court. The objection raised as to the violation of article 36 of the instructions is not worthy of consideration, because this required that the protocol relative to the capture of the vessel should be legalized by the signature of the commander of the capturing vessel, and this manner of action was carefully carried out in the case of the Knight Commander, as this vessel was captured by the cruiser Rossia, whose commander signed the order for the capture of the vessel.

In view of all the above, the supreme prize court, after listening to the verbal explanations of the acting procurator, as well as of the attorneys, Sheftel and Berime, in behalf of the shipowners and cargo owners, decided:

1.
To maintain the decision of the Vladivostok prize court and to leave the appeal made by Attorney Bajenoff, in behalf of the owner of the steamer Knight Commander, without consideration.
2.
To leave the petitions of the attorneys, Sheftel and Beliine, in behalf of the cargo owners of goods noncontraband of war, and for compensation for losses, with examination.

Original bears proper signatures.

True copy. Acting Secretary Sonrine. This copy has been granted to Mr. Berline, sworn lawyer, upon his personal request made at the chancery of the ministry of marine.


Acting Secretary (signature).
No. 10.
[Inclosure 2.]

Protest of Counsel Berline to the Supreme Prize Court.

(From Anatole M. Berline, sworn lawyer, residing Moika N. 55, attorney for the American Trading Company, Messrs. Wasserman & Healing, and the Missionary Methodist Association.)

petition.

Supplementary to the appeal already made by the present petitioners, I have the honor to declare that the decision of the Vladivostok prize court, which pronounced the sinking of the steamer Knight Commander legal and considered the cargo as being subject to confiscation, is irregular, and I claim subject to change on the following basis:

The main reason for the sinking of the steamer was the absence of cargo documents; in conformity with the instructions for the visitation and arrest of vessels (clause 2) the chief documents, obligatory for English vessels, called the manifest and bills of lading, which, for the cargo in destination of Kobe and Yokohama, were lacking. The absence of the “papers” of the charter party can not be brought as a charge against the captain, inasmuch as in accordance with the circumstances of the case it is visible that the steamer carried freight belonging to the firms of Wasserman, Healing, and the American Trading Company, as well as of the Methodist Missionary Society’s churches and of other [Page 1332] firms, most of which are conducting regular trade with Japan; therefore one can not suppose that because the manifest was missing it was intended to conceal the ownership to the cargo; most certainly it can not be considered that the missionary society had the intention of transporting contraband goods. The nature of the goods do not change because of the fact that the steamer for this trip was chartered by the firm of “Howard, Hulder, Rowel & Co.” The conclusion of the protocol that the vessel was arrested because it was chartered by the said firm “for the transportation of various railway and other material to Japan”—that is to say, that it was engaged in carrying military contraband—is not in any way confirmed; nothing in the case shows that Messrs. Howard, Hulder, Rowel & Co. went out of their business as ordinary steamship agents— that is to say, accepted various kind of goods without any ulterior object. Information as to the cargo was contained, however, in the captain’s books Nos. 4 and 5. The court, however, in designating these books as private, did not recognize their existence as pertaining to the case, nor as worthy of confidence. It is incomprehensible, however, why the court considered the captain’s press-letter copy book (without doubt it had the same character, which book, in the opinion of the court, is the main proof which throws insincerity on the part of the captain and demonstrates that the cargo was consigned to Chemulpo for the use of the Japanese Army). Furthermore, this book contains an entry which does away with this supposition, namely, “Until your letter of yesterday I was under the impression that we had to discharge at Chemulpo.”

The supposition advanced by the court, claiming that the missing cargo documents were hidden by the captain, is not in any way supported; on the contrary, it is denied by the copies of the bills of lading I have herewith presented; the latter show the peaceful nature of the cargo and its real destination. In our belief they have special importance, especially in view of the superficial and insufficient search which was made by the officers. On the ground of this search, the commander of the cruiser detachment, and later on the Vladivostok prize court, found that a large portion of the cargo consisted of contraband of war. Referring to the protocol drawn up after the search, we remark the following: No. 1, Lieutenant Gavrishenko says: “The nature of the cargo, as far as I could see in the hatchways, was railway material,” but he omits to state in what way he arrived at this conclusion. According to a list of articles which he submitted, as in his opinion consisting of railway material, it is seen that many of them (boiler tubes, cogwheels, coal, iron bars, telegraph wire, and barrels with cement) might have no relation at all with railways. He states: “In the center hatchway were many cases of various dimensions.” It is clear that these cases were not opened, and, their contents not having been examined, the character of said contents could not be determined. “In the after hatchway the cargo was also mostly railway material, although there were bales, as I have had explained, of wrapping paper and cases.” It is entirely incomprehensible to us how Lieutenant Gavrishenko could come to the conclusion that the larger part of the cargo was railway material, if he says there were bales, the contents of which were explained to him by the captain. At the same time he adds that most of the railway material consisted of machinery which he could not define, as it was stowed at the very bottom of the hold, but he supposes (without giving his reasons therefor) that these were pumps. In other holds there were carefully packed bales and cases, which were not examined, but which were taken for granted as being railway material. It is difficult to recognize oneself to consider such a search as carrying any weight. Referring to protocol No. 2, drawn up by Midshipman Aminoff, we see that it also bears a superficial and obscure character. Midshipman Aminoff, in three places of the protocol, declares that he saw several articles, some of which appeared to him as parts of trucks. He only “peeped” into the foreholds; the iron he saw appeared to him to be railway car springs; he did not open any of the cases in the holds. He, however, does not go as far as Gavrishenko (who declares that the total cargo-was railway material), but simply states that “the cargo was exclusively of iron.” (It must be remarked that a cargo of iron is not by any means contraband of war.)

From the foregoing it is evident that these protocols can not be given serious consideration. The deduction, that the cargo was railway material, was arrived at by the officers in question at a great distance from the cargo, no proper inspection having been made; a large portion of the cargo, in bales and cases, were not even opened nor examined and was unknown to them; thus, that the [Page 1333] cargo was mostly railway material or even iron can not be in any way considered in the light on which they make their declarations. The data to hand brings one to the conclusion that the captain had no need whatever to conceal the cargo documents, if he had them. This supposition of the court can not consequently have any weight on which to base the decision.

Regarding the deposition of the captain we must remark that his examination, although not under oath, was illegal, inasmuch as the captain is the representative of the cargo owners and of the parties in this case, and can not therefore be examined in the capacity of a witness.

The captain’s deposition can not serve as convictory evidence, for the following reasons:

(1)
Captain Durant was examined under circumstances which precludes the possibility of making his deposition of any legal weight.
(2)
His deposition that he did not know the exact quantity of cargo, by various categories is explained by his deposition that he never signed any bills of lading, but only saw some of them at Shanghai (protocol No. 5).

Furthermore the court allowed a most irregular infringement as to article 71 of the instructions relative to prizes, namely, that the owners of goods were not summoned through publication and were thereby prevented from giving explanations and presenting their documents proving the true character and destination of the cargo.

Finally, in considering the decision of the Vladivostok prize court, we find the following inaccuracies:

In its decision the prize court (par. 2) found that the cargo carried by the vessel (a list thereof follows) is subject to confiscation as forming contraband of war. Whereas among the goods in the list were steel sheets intended to be used in making tin cases for conserves; in the railway material were included steel and tubes intended for an electric railway, neither of which could be contraband of war. In paragraph 3 the decision finds that the said cargo at the time of seizure formed more than half of the vessel’s total cargo, a fact which is “not proven,” while on the contrary it appears doubtful when examining the bills of lading herewith presented. In the decision of the Vladivostok prize court we find the following considerations: “From this data one may conclude that the cargo on the said vessel at the time of its seizure consisted of the following articles: Rails, various parts of railway bridges, steel, steel sheets, nails, wire, tubes, wheel grease, acids, shovels, and a small quantity of mixed goods. (List of goods follows, which in no way can be classed as contraband of war.) Thus it may be considered fully proved that the vessel Knight Commander was arrested by Russian cruisers while transporting contraband of war to the enemy’s ports.

One can not agree wih such a conclusion if one but considers separately the list of goods given as “various railway material” and in view of its in-definiteness we will not look into it; steel sheets intended for the manufacture of conserve cans, tubes intended for electric railroad, tar, acids, nails, and shovels can not be recognized as contraband of war, as they are not mentioned in the declaration. There only remain rails and parts of bridges which form conditional contraband in case they are intended for the enemy.

In view of the facts laid forth, that the examination of the vessel by the officers of the Russian cruiser gave no exact facts for establishing the contraband character of the cargo, and in view of this that the sinking of the steamer was illegal and an injustice to my clients, as well as opposed to all the rules of civilized warfare, I consider them subject to compensation, and have the honor to ask—

(1)
That the cargo on the steamer Knight Commander, belonging to the companies “Wasserman” Healing, American Trading Company, and the Methodist Missionary Society, be considered neutral and not subject to confiscation.
(2)
That the decision of the Vladivostok prize court be reversed in this respect; and
(3)
That my clients be compensated for the value of the lost cargo and that damages for losses be allowed them.