merce of this country, so contrary to acknowledged principles of international law and so intolerable to all neutrals. You should explain to the Russian Government that His Majesty's Government does not dispute the right of a belligerent to take adequate precautions for the purpose of preventing contraband of war, in the hitherto accepted sense of the words, from reaching the enemy; but they object to, and can not acquiesce in, the introduction of a new doctrine under which the well-understood distinction between conditional and unconditional contraband is altogether ignored, and under which, moreover on the discovery of articles alleged to be contraband, the ship carrying them is, without trial and in spite of her neutrality, subjected to penalties which are reluctantly enforced even against an enemy's ship (Parliamentary Papers, Russia, No. 1 (1905), p. 12.)

The Knight Commander case. The sinking of the Knight Commander in 1904 during the Russo-Japanese war has attracted general attention and caused much discussion. The Knight Commander was a British steamer and was captured by a Russian cruiser and sunk before adjudication by a prize court.

Attitude of the United States.—In regard to the rumored sinking of the Knight Commander during the Russo-Japanese war in 1904, the United States cabled its representatives in Russia:

DEPARTMENT OF STATE,

Washington, July 30, 1904. (Mr. Loomis instructs Mr. Eddy to call the attention of the minister of foreign affairs to the treaty of 1854, and that, as legitimate commerce is carried on by American ships with Japanese ports and the Far East, the United States Government, considering the above treaty and section 1, article 5, of the Russian proclamation of rules of conduct in the war between Russia and Japan, expects, and should the contingency arise, shall claim rights under that treaty or international law.

As it is represented that the Knight Commander was under American charter and was carrying American property, instructs him to inquire whether that vessel was sunk by the commander who made the seizure, and to inform the Russian Government that if such is the case the Government of the United States would view with the gravest concern the application of similar treatment to American vessels and cargoes, and that this Government reserves all rights of security, regular treatment, and reparation for American cargo on board the Knight Commander and in any seizure of American vessels.) (U. S. Foreign Relations, 1904, p. 734.)

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Decision of Vladivostok prize court.-The sinking of the Knight Commander during the Russo-Japanese war in 1904 was considered by the Russian prize court at Vladivostok, which rendered its decision on August 316, 1904. The decision gives the following statements:

The facts of the case are as follows: On July 11/24, about 6 a. m., a separate detachment of cruisers of the Pacific Ocean squadron under command of Rear-Admiral Jessen, consisting of cruisers Rossia (flagship), Gromoboi and Rurik, while in latitude 34° 21′ N., longitude 138° 53'.5 E., to southwest of entrance to Gulf of Tokio, perceived a merchant steamer. Rossia gave chase, and when within 15 or 20 cables hoisted signal "stop," and then sent, one after another, two blank shots, then two projectiles under her bow as steamer continued on her course at full speed for entrance of Tokio Gulf. The steamer then stopped and hoisted British commercial flag. By order of commander of detachment, Rossia hoisted signal "Master come on board with papers," but as this order was not obeyed, a party headed by Lieutenant Favrishenko and Sub-Lieutenant Aminoff was sent aboard to examine steamer's papers and cargo. Examination proved that J. R. Durant was master, that she was on voyage to Japan with cargo consisting of railway material, bridge material, machinery, and various articles. The master of the steamer was not able to present any documents of his cargo, but examination of the holds showed that they were filled with contraband exclusively, the other articles constituting an unimportant portion. After examination the officers returned to the cruiser, bringing the master and papers along. Having inquired of the master why there were no bills of lading amongst the papers, and learning there was coal for four days only, RearAdmiral Jessen informed the master that the steamer was subject to confiscation, and as she had not sufficient coal to take her into a Russian port, she would be destroyed. Half an hour was given for removal of the crew. After removal of crew she was sunk by explosion of cartridges at 9.15 a. m. On return of cruiser division to Vladivostok, the matter of sinking of steamer was submitted to the prize court. Examination of master's papers showed that steamer was British register, built in Yarrow in 1890, of 9,620 displacement, 4,305 and 2,716 registered tonnage and speed of 11 knots. Her registry was from Liverpool, No. 97801, and steamer belonged to Robert Low Greenshields, of Liverpool. From entries in log and testimony of master it was learned that until December, 1903, the vessel made voyages between Calcutta and other East Indian ports. In December she was chartered by the Austrian Lloyd for a trip to Trieste and Venice. From Venice steamer chartered by an Austrian firm in Trieste to carry coal for machinery and private cargo to Mes

sina, then from Palermo to load 25,000 cases of lemons and general cargo for New York, where the charter lapsed. In New York the steamer was not chartered by anyone, but gradually received various cargo, and was sent by orders of the agents of the ship's owner to Singapore, Manila, Shanghai, Yokohama, and Kobe, where this voyage was to end. In regard to the cargo for which the master, Durant, presented no bills of lading or even manifest, the court could only form a notion of that portion addressed to Japanese ports of Yokohama and Kobe, which was in the steamer at time of capture. Ship's papers being missing, the court took the evidence of the two boarding officers, Lieutenant Favrishenko and Baron Aminoff, in two private memorandum books, presented by the latter. From the data, when carefully confronted one side with the other, we may conclude that the cargo at moment of seizure of ship consisted of. the following articles: Rails, bridge materials, various railway material, steel, steel sheets, nails, wire, pipes, wheels, tar, acids, shovels, and a small quantity of assorted cargo consisting of paint, clothing, leather, sailcloth, tin, hardware, wood, and small articles, as ink, perfumery, soap. Thus it may be considered as fully proven that the Knight Commander was arrested by the Russian cruisers while carrying contraband of war into the enemy's ports.

After examination of the evidence the court reached the following conclusion:

Therefore the court feels convinced that the following is indubitably proven.

(1) The fact that the owner of the steamer Knight Commander having performed illegal acts, directed to make more effective the efforts of our antagonist by carrying to him at Chemulpo, the theater of war directly, articles of military contraband.

(2) The suppression by the master of said steamer of an entire file of important documents relating to his vessel and to her cargo as well as his undoubted knowledge that he was conveying articles of military contraband to the enemy; and

(3) The presence on said steamship at the moment of being seized of military contraband in quantity indubitably exceeding one-half of her entire cargo.

On these grounds, and taking into consideration the actual facts of the present case as provided for by articles 5, 8, 13, of the statutes of naval prizes, the prize court finds:

(1) That the Knight Commander was arrested in a legal manner in compliance with the rules enacted in articles 2, 3, 15-17 of the statutes; and

(2) That the said steamer having been caught conveying military contraband to the enemy in quantity exceeding one-half of the cargo, as well as the mentioned contraband, appear to be legal

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prizes, and decrees to adjudge the steamer Knight Commander and the contraband cargo that was in her at the time of her seizure as subject to confiscation as legal prizes.

Appeal from the Vladivostok decision. In the appeal from the decision of the Vladivostok court to the higher prize court, the attorney for the owners of the steamer and for the owners of the sunken cargo concludes, on review of the evidence, that

Therefore the only action that should have been taken in this case was to arrest the ship and bring her into the nearest Russian port to land the contraband, but in no case to sink the steamer. Under the circumstances when the steamer was arrested, taking her into a Russian port presented scarcely any difficulty whatever; for (1) because there was on the steamer, as seen from the record, about 120 tons of coal, which, allowing for a ten-knot speed, would have been sufficient for four days, distance of nearly 1,000 miles. Whereas the distance to the nearest Russian port, Kersakovsk or Saghalin, from Yokohama is considered 750 miles, and (2) though the vessel was stopped 15 miles off the entrance of the Gulf of Tokio, no enemy was seen nor was there any evidence of his proximity, whereas these circumstances exactly were deemed extraordinary and the steamer was sunk. The prize court in its decision with reference to the quantity of the cargo was guided by the same data as the naval authority, whereas had they acted in conformity with article 71, statutes on prizes, by virtue of which in similar cases the shipper must be summoned by publication, in such case most probably there would have been at the disposal of the court a sufficient number of proofs of the faulty character of the decision regarding the quantity of cargo adjudged military contraband.

Relying upon all the above statements, I have the honor to ask the highest prize court to revoke the decision of the Vladivostok prize court as incorrect, and to decree that the sinking of the Knight Commander was unjustifiable, and that the owners both of the steamer and cargo are entitled to receive remuneration for the sinking of the one and the other.

Decision on the appeal. The following telegram explains the action upon the appeal in the case of the Knight Commander:

AMERICAN EMBASSY,

St. Petersburg, December 5, 1905.

(Mr. Eddy reports that the decision in the case of the Knight Commander, rendered on Saturday, maintains the finding of the Vladivostok prize court in regard to condemnation of the vessel and cargo, that the protest of Mr. Berline concerning neutral

goods was allowed, and that that matter was referred to the Libau prize court for revision under article 88, naval prize regulations.) (U. S. Foreign Relations, 1905, p. 754.)

The article 88 above referred to is:

88. Matters concerning indemnification for losses arising as a result of the detention, destruction, perishing, or injury of merchant vessels and cargoes are transacted in port prize courts, and are begun only at the instance of parties who have sustained losses or their agents. The rights of parties in the matters mentioned are enjoyed by the persons who have suffered loss, or their agents, and by the judge-advocate as representative of the interests of the Government. (U. S. Foreign Relations, 1904, p. 746.)

Review of the case. There is no contention that the condition of the Knight Commander was bad, that its value was extremely small, that there was danger of recapture, or that the distance from a port was great, though it was maintained that there was coal enough only for four days, and on this ground the vessel was destroyed. As the court decision says:

Having inquired of the master why there were no bills of lading among the papers, and learning there was aboard coal for four days only, Rear-Admiral Jessen informed the master that the steamer was subject to confiscation, and as she had not sufficient coal to take her into a Russian port, she would be destroyed. Half an hour was given for removal of the crew. After removal of the crew she was sunk by explosion of cartridges at 9.15 a. m.

The naval officer thus constituted a "quarter-deck prize court" decided the neutral vessels liable to confiscation and destroyed vessel and cargo.

In the case of the Knight Commander the prize court at Vladivostok was largely military in character, made up as follows: "Major-General Knipper, chairman; Captain (second rank) Simonoff, Lieutenant-Colonel Egerman, Public Councillor Stein, Collegiate Secretary Cheborenko, Procurator Titular Councillor Lazarevsky, Collegiate Secretary Engelhardt, secretary."

Reciting certain facts in regard to cargo and voyage, this court says, "Thus it may be considered as fully proven that the Knight Commander was arrested by the Russian cruisers while carrying contraband of war into the enemy's ports."