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No. 3A.
(SOUTH AFRICA.)
LAW OFFICERS to FOREIGN OFFICE.
Royal Courts of Justice,
January 8, 1900.
MY LORD,
WE were honoured with your Lordship's commands signified in Mr. Bertie's letters of the 6th instant transmitting to us the papers noted on the accompanying list, relating to the case of the German mail-steamer "Bundesrath" which had been arrested by Her Majesty's ship "Magicienne" and taken into Durban for adjudica- tion by the Prize Court on the ground that she was carrying contraband of war for the use of the enemy.
Mr. Bertie requested that we would favour your Lordship with our advice as to the answer which should be returned to the note of the 4th instant from the German Ambassador at this Court, and for any general observations which we might be able to offer on the case.
We have taken the matter into our consideration and have the honour to
Report-
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PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TÓ
That as regards the "Bundesrath
""
to B (5) in our Report of the 26th October, 1899, viz., that contraband of war on board
we adhere to the view indicated in our answer
of a neutral vessel which contraband was at the time of seizure consigned or intended
to be delivered to an agent of the enemy at a neutral port, or was, in fact, destined for the enemy's country is liable to seizure.
We do not consider that the passage cited from the " correctly states the law as applicable to such a case.
Manual of Prize Law"
It contains a direction which was
in practice adequate with reference to such wars as have been waged by this country
in the past, but is not correct if applied to the case which has now arisen of a war with a State the only access to which is through a neutral port, connected with it by a short line of railway.
The word "the destination of the vessel is conclusive as to the destination of the goods on board," quoted by Count Hatzfeldt in his letter of the 4th January, do not, in our opinion, correctly express the law.
No doubt where there is no evidence of another destination and no suspicion as to the fact that the goods are going to a neutral consignee, the destination of the vessel is conclusive.
We think that the law is correctly stated in paragraph 813 of Professor Bluntschli's "Codification of International Law" (2nd edition), and that the true question is one of fact, viz., whose at the time of seizure is the contraband, or what at the time of seizure is its true and bonâ fide destination.
If bond fide consigned to a neutral person at the neutral port the contraband cannot ordinarily be seized even though it can be afterwards sold to the enemy, though even with regard to such cases questions of difficulty might arise which we do not desire to prejudge.
If at the time of seizure it is the property of, or destined for, the enemy or his agent, it is liable to seizure.
This view is maintained and explained at length in Calvo's "International Law," 1896 edition, vol. iv., sections 2761-2769, pp. 42-48 ; and in Wheaton-Dana's edition of 1866, sections 505-508 and notes.
The cases of the “ Vrouw Houwina" in 1855 (Calvo, section 2767), where this view of the law was taken by the French Courts, and the case of the "Doelwijk" in 1896, where a similar decision was given by the Italian Courts, show the distinction between the two classes of cases.
We would particularly call attention to the passage in the Judgment of the Italian Court (at pp. 6353-4 of the “Gazzetta Ufficiale,") which is based not merely on the
• No. 235 B in Vol. V.
7361-25-31900 Wt 439 D&R
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