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 nonsubject 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

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.

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

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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

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

January 4, 1906. Acting Secretary (signature). No. 10.

[Inclosure 2.]

Protest of Counsel Berline to the Supreme Prize Court.

(From Anatole M. Eerline, 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:

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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