File No. 763.72112/1702
Messrs. Henry Veeder , Charles J. Faulkner , jr., and Luther M. Walter , counsel for American packers, to the Secretary of State
Sir: On September 6 [16?], 1915, in the High Court of Justice of Great Britain, judgment of confiscation as prize was pronounced on shipments of Armour and Company, Swift and Company, Morris and Company, and Sulzberger and Sons Company, composing part of the cargoes of the Kim, Alfred Nobel, Björnstjerne Björnson , and Fridland . This judgment and the principles upon which it was based, are so contrary to the established principles of international law, and so subversive of the rights of neutrals, that we, on behalf of these claimants, desire to submit for your consideration our comments thereon.
The judgment is unsupported by fact, and proceeds upon inferences and presumptions. Direct evidence on behalf of the American firms interested was given that none of said shipments had been sold, consigned, or destined to the armed forces or the government of any enemy of Great Britain. This evidence was wholly uncontradicted. The court, ignoring these established facts, and admitting that there was no precedent of the English courts justifying the seizure and condemnation of goods on their way to a neutral port, based its judgment of condemnation on the grounds:
- That the goods were in excess of the normal consumption of Denmark, raised a presumption that they were destined for, i. e., eventually would find their way into; Germany.
- That, owing to the highly organized state of Germany, in a military sense, there was practically no distinction between the civilian and military population of that country, and therefore there is a presumption that the goods, or a very large proportion of them, would necessarily be used by the military forces of the German Empire.
- That the burden of proving that said goods were not destined for, i. e., would not eventually get into the hands of, the German forces, must be accepted and sustained by said American shippers.
That a larger quantity of goods than usual were being imported into Denmark is no proof that such goods, or such excess, was going to Germany. On a similar point, the same court, in the Antares case, March 8, 1915 (as reported in Lloyd’s List), pointed out that [Page 562] the export of American copper, for neutral countries contiguous to Germany, had increased, for a period during the war corresponding with a similar period before the war, from about seven millions to thirty-five millions, and the court said, “I am not saying for a moment that this is proof that this copper was intended for Germany.”
Certainly such inference is not proof, and furnishes no grounds for any presumption that such goods were not to be sold in Denmark to buyers there, or were being shipped by the American firms to Germany for sale there. In the instant cases, the court allowed the claims of certain Danish buyers who had purchased goods from the American firms, without reference to whether the Danish buyers intended to resell such goods to Germany. Are we to understand that under this decision American shippers may not ship to their branches or agents or regular consignees in Denmark, and there sell to whomsoever desires to purchase, while Danish buyers may purchase the same goods from American firms and resell them in Denmark to any purchaser, whether German or otherwise? Is this the distinction upon which condemnation is to be pronounced by British prize courts?
The assumption of the court that, by reason of the highly organized state of Germany in a military sense, all distinction between the civilian and military population of that country has been abrogated, and that therefore goods going to Germany were necessarily for the use of the armed forces of that country, is not proof that the goods which were the subject of condemnation in the instant cases were destined by the American firms interested to the armed forces or government of the enemy of Great Britain. The judgment in this respect entirely abrogates the distinction between absolute contraband, such as munitions of war, and conditional contraband, such as foodstuffs. It holds that all foodstuffs going to Germany are subject to seizure because, owing to the highly organized state of Germany in a military sense, the distinction between civilian and military population of that country no longer exists.
This is wholly contrary and repugnant to the fundamental principles of international law and subversive of the rights of neutrals. It is repugnant to the principles announced by the Government of this country through the Department of State on August 15, 1914, as a guide for its citizens. It is repugnant to principles always upheld by Great Britain, and to the express action of Great Britain, wherein she had, through her several contraband proclamations, in effect at the time of the seizures in the instant cases, declared foodstuffs to be conditional contraband. It is contrary to the action of Great Britain in the case of the Wilhelmina , in which foodstuffs were consigned direct to a German port, and in respect to which Sir Edward Grey stated, in his note to this Government of February 9, 1915:
They [the British Government] have not, so far, declared foodstuffs to be absolute contraband. They have not interfered with any neutral vessels on account of their carrying foodstuffs, except on the basis of such foodstuffs being liable to capture if destined for the enemy forces or governments. In so acting they have been guided by the general principle, of late universally upheld by civilized nations and observed in practice, that the civil populations of countries at war are not to be exposed to the treatment rightly reserved or combatants.
Likewise, the judgment of the court that the burden of proof that the goods were not eventually to come into the hands of the armed forces or Government of Germany must be sustained by the American firms interested, is contrary to the well-established principle that the captor must justify his seizure by affirmative proof (The Resolution, 2 Dall. 19).
In a similar case, that of the Arabia, the cargo of which was seized and confiscated by the judgment of a Russian prize court upon similar reasons, Mr. John Hay, then Secretary of State, telegraphed to the Ambassador of the United States to Russia protesting against such decision, refusing to recognize the principles upon which it was based or the policy which it indicated, in the following language:
When war exists between powerful states, it is vital to the legitimate maritime commerce of neutral states that there be no relaxation of the rule—no deviation from the criterion for determining what constitutes contraband of war, lawfully subject to belligerent capture; namely, warlike nature, use, and destination. Articles which, like arms and ammunition, are by their nature of self-evident warlike use, are contraband of war if destined to enemy territory; but articles which, like coal, cotton, and provisions, though of ordinarily innocent [use], are capable of warlike use, are not subject to capture and confiscation unless shown by evidence to be actually destined for the military or naval forces of a belligerent.
This substantive principle of the law of nations can not be overridden by technical rule of the prize court that the owners of the captured cargo must prove that no part of it may eventually come to the hands of the enemy forces. The proof is of an impossible nature; and it can not be admitted that the absence of proof in its nature impossible to make can justify the seizure and condemnation. If it were otherwise, all neutral commerce with the people of a belligerent state would be impossible; the innocent would suffer inevitable condemnation with the guilty.
The established principle of discrimination between contraband and non-contraband goods admits of no relaxation or refinement. It must be either inflexibly adhered to or abandoned by all nations. There is and can be no middle ground. The criterion of warlike usefulness and destination has been adopted by the common consent of civilized nations, after centuries of struggle in which each belligerent made indiscriminate warfare upon all commerce of all neutral states with the people of the other belligerent, and which led to reprisals as the mildest available remedy.
If the principle, which appears to have been declared by the Vladivostok prize court and which has not so far been disavowed or explained by His Imperial Majesty’s Government, is acquiesced in, it means, if carried into full execution, the complete destruction of all neutral commerce with the non-combatant population of Japan; it obviates the necessity of blockades; it renders meaningless the principle of the Declaration of Paris set forth in the imperial order of February 29 last, that a blockade, in order to be obligatory, must be effective; it obliterates all distinction between commerce in contraband and non-contraband goods; and is in effect a declaration of war against commerce of every description between the people of a neutral and those of a belligerent state.
This protest resulted in immediate relief to American commerce.
The judgment in the instant cases being based on principles so clearly at variance with those recognized both by the Government of the United States and hitherto by the Government of Great Britain—principles which do not admit of arbitration—we submit that, such judgment having been rendered, this Government should, without awaiting further appellate proceedings, take similar action to that taken by it in the case of the Arabia and make earnest protest against and refuse to recognize the judgment and the principles upon which it is based; and further make demand for reparation on behalf [Page 564] of these claimants for their losses and damages growing out of the seizure, detention, and confiscation of the shipments.
Luther M. Walter