rangement for change of destination had been made by order of the ship's supercargo who turned out to be an officer in the German Naval Reserve. Condemnation and sale were ordered for the reason that the ship was guilty of unneutral service in the sense of Article 46 of the Declaration of London, she being "under the orders or control of an agent of an enemy government."

The Leda, of which the Deutsch American Petroleum Company, a German concern, were registered owners, was captured after the outbreak of war; and in proceedings for her condemnation taken by the British Crown in the Court of Bermuda, an application was made for her release by the Standard Oil Company who averred that they were the beneficial owners of the Leda, inasmuch as they owned the entire capital stock of the registered owners who were merely one of their subsidiary companies formed in Germany to market the petroleum shipped by them to that country. The vessel, however, being under the German flag at the time of capture, the applications of the neutral company was without hesitation refused.

The law of the flag received an interesting application in the case of the Anastassios Koroncos decided in the Prize Court at Malta. Enemy goods, not contraband, the property of Turkish merchants, were being carried in a neutral Greek vessel to Malta for consignees there. The ship proceeded to discharge into lighters as customary in that port. Between the ship and the quay the goods. were seized as enemy property. The court approved the seizure and pronounced decree of condemnation and sale,

holding that when put overside into lighters, the goods were no longer covered by the neutral flag and, as enemy property seized afloat, were confiscable as prize.

Goods, seized as prize, had been consigned on an enemy vessel before the out

break of war by an enemy seller to a neutral purchaser, who accepted the bill of exchange. The terms of the contract contained the words "no arrival no sale." It was held by the Egyptian Prize Court in the case of the Derfflinger that these words constituted a condition inserted for the benefit of the seller, and did not prevent the property passing to the buyer on shipment and acceptance of the bill; the goods therefore being neutral property at the time of seizure, were released. The decision in the case of the Lutzow also decided in the Prize Court in Egypt, similarly turned on the question whether or not property in the goods seized had passed. A shipment was made by a German firm to Japan, the terms of the contract being delivery of the documents against the sellers' draft. The sellers drew on the London agency of a German bank for account of the buyers and the draft was marked for acceptance at the bank three days before the outbreak of war. The bank then parted with the documents. to the agents of the consignees. Owing to the outbreak of war the acceptance was never completed. The court, in these circumstances, found that the property in the goods had not passed to the consignees, and therefore the goods must be condemned as enemy property.

The Zamora and the Antares were Swedish and Norwegian vessels, respectively, which had been seized while carrying copper shipped by an American company, and brought into a British port. Subsequently, proceedings in prize were initiated, but before they came before the court for hearing, an ex parte application was made by the Crown for release of the copper to the British admiralty for use

by them. The court ordered that the value of the copper be paid into court and that thereupon it be delivered to the Crown; for owners of property captured or seized. as prize cannot demand by any rule of international law that the property be preserved for them in specie until the final de

cree determines whether it is to be released or condemned.

The doctrine of continuous voyage, whether by sea or overland, became part of the law of nations, both as regards the carriage of absolute and of conditional contraband before the outbreak of the present war. Accordingly in the cases of The Kim, The Alfred Nobel and other Norwegian and Swedish vessels which had been seized carrying large cargoes of meat and food from New York to Copenhagen, the Prize Court had laid on it the duty of determining the real as distinguished from the ostensible destination of the goods. The judgment of the President in these cases is an international document of great interest and importance. From it we extract the two cardinal rules evolved, which will, we infer, govern all similar seizures. First, and, on the one hand, captors must prove facts from which a reasonable inference of hostile destination may be drawn, but as regards the ultimate hostile destination of conditional contraband captors need only show a highly probable military or government destination and need not prove the particular enemy port or place of ultimate destination; and then, on the other hand, if after the outbreak of war, neutral shippers consign goods of a contraband nature "to order" without naming a consignee, it is a circumstance of suspicion which a prize court may take into account in considering whether the goods were really intended for a neutral consignee, or whether they had an ultimate hostile destination.

We conclude with drawing attention to the useful general rule laid down in the case of The Clan Grant, to the effect that the property of an enemy subject who is domiciled in an enemy country but has a house of trade in a neutral country will be treated as enemy property; and if the property belongs to a partnership then, in the absence of evidence to the contrary, it will be presumed to be divided proportionally between the partners, and the

The exact question presented appears not to have been decided by the Supreme Court of the United States. However, its opinion in the recent case of Central Vermont Ry. Company v. White, read in connection with its previous opinions in cases under the Act, indicates strongly that its decision will be in favor of the construction by the Federal courts of the common law rules governing questions as applicable and binding in the trial of cases under the Act in the courts of the States. While the Act abrogates the fellow servant rule of the common law and abolishes entirely the common law defense of contributory negligence and assumed risk in certain cases and allows contributory negligence in mitigation of damages and assumed risk as a complete. defense in others, it leaves the questions. of negligence, contributory negligence and assumed risk to be determined in any given case by the rules of the common law. If there could be any doubt about this from the terms of the Act itself, such

(1) 238 U. S. 507.

doubt is removed by the Supreme Court of the United States in the case of Seaboard Air Line Railway Company v. Horton. The Federal courts have never felt bound to follow the decision of State courts in the determination or application of common law principles in the trial of cases arising within the States, but have always exercised an independent judgment in such matters. This is very forcibly brought out in the opinion in the case of Baltimore & Ohio Railroad Company v. Baugh.3

We all know that there is no greater wilderness of conflicting and irreconcila

ble decisions of the courts than those construing and applying the principles of common law applicable to the liability of the employer for personal injuries to the employe. It is now settled that in suits. under the Act brought in State courts, by the pleadings and requests for proper instructions to the jury, based on the evidence, negligence, contributory negli

gence, assumed risk, last clear chance or subsequent negligence, proximate cause, and related subjects can all be made Federal questions open to review by the Supreme Court of the United States. It is unthinkable that the Supreme Court of the United States in such cases, with a

long list of its own decisions construing the common law applicable, will abandon its own views and seek out those of the court of last resort of the State from which the case comes and by them determine whether the case should be affirmed or reversed. Such a course would only tend to confusion and render impossible the uniform operation of the Act throughout all the States, evidently one of the main purposes of Congress in its passage.

After all it is the intention of Congress in adopting the Act, as such intention may be gathered, of course, from the language used, which must control the answer to the question presented. In the Central of Vermont Railway case, the state courts of Vermont had refused, over the objection of the Railway Company, to apply to the case which was brought under the Act, the Vermont rule of general law, which placed upon the plaintiff the burden of acquitting himself of contributory negligence. In the course of the opinion affirming the correctness of this ruling the Supreme Court of the United States says: "The United States courts have uniformly held that, as a matter of

general law, the burden of proving contributory negligence is on the defendant. The Federal courts have enforced that

principle even in trials in States which held that the burden is on the plaintiff. (Citing a number of cases.) Congress, in passing the Federal Employer's Liability Act evidently intended that the Federal statute should be construed in the light of these' and other decisions of the Federal courts. Such construction of the statute was, in effect, approved in Seaboard Air Line Railway Company v. Moore. If this is a correct statement, and no one

will question it, then Congress evidently

intended that the Act should be construed in the light of the decisions of the Federal courts, construing and applying the common law applicable to the terms embraced in our question. In the Horton case brought under the Act in a State court of North Carolina the trial court framed his instructions to the jury on the State law governing the duty of the railway company in furnishing the plaintiff a safe and suitable appliance with which to work, and also on the State law governing assumed risk. On writ of error the Supreme Court of the United States held that the instructions on the duty of the railway company and also on the as

(5) 228 U. S. 434.

LUMPKIN, J. W. A. Tapley, by his next friend, brought suit against the Georgia & Florida Railway Company, to recover damages for a personal injury. A verdict was rendered in his favor for $500. The defendant moved for a new trial, which was overruled, and it excepted.

[1] 1. Taking the allegations of the petition together, there was nothing in the overruling of the demurrer which requires a reversal.

[2] 2. While the court might have stated to the jury somewhat more explicitly the contentions of the defendant, when the entire charge is considered it cannot be held that he entirely omitted to refer to the contention that the plaintiff was asleep beside the track; and he informed them that the plaintiff must recover under the allegations of his petition, or not at all.

[3] 3. The plaintiff contended that he went to a flag station on the line of the defendant railway company and gave a signal for a passenger train to stop, for that purpose step

ping upon the track and using a lighted paper, it being dark; that the whistle was blown but the train did not stop, and while he was endeavoring to leave the track his foot was caught under the rail, and he was caused to fall in a position from which he could not entirely extricate himself before the train passed, and injured him; and that the catching of his foot was caused by the fact that the surface was not made level at that point where flagging was done and passengers boarded the train, and from the fact that the train did not stop, rendering it necessary for him to leave the track so as to endeavor to avoid injury. If the plaintiff had not become a passenger at the time of the injury, the measure of care due to him by the defendant was ordinary care. If he had become a passenger when the injury occurred, the measure of diligence due to him was extraordinary care. In the former event Civil Code 1910, § 2780, would be applicable. In the light of the pleadings and evidence, there was no error in giving it in charge. The suit was not entirely dependent upon the proposition that the plaintiff had become a passenger before he was injured, and it was not erroneous to give in charge the law as contained in that section, referring to injuries generally done to persons or property by the running of the locomotive or cars, or other machinery of a railroad company.

[4] 4. The court charged the jury that when a person presents himself at what is known as a "flag station," or a railroad station at which there is no ticket office, for the purpose of boarding a train which is running for the carriage of passengers, upon properly signaling an intention to get upon such passenger train, he would be considered as a passenger and would be entitled to the rights of a passenger. Later he made a more concrete application of the principle thus announced to the situation of the plaintiff, and instructed the jury that if the plaintiff presented himself at a point where the train was usually signaled, and did signal the passenger train and indicated that he desired to become a passenger, in contemplation of law he was thereafter to be treated as a passenger, and the railroad company would be bound to the use of extraordinary diligence in regard to him.

[5] Efforts to lay down a comprehensive definition of the word "passenger," or, in a single statement, to exhaust all possible circumstances under which the relation of carrier and passenger may exist, have not proved very successful. The varying facts under which