CONTRABAND
I
CONCEPTION OF CONTRABAND
Grotius, III. c. 1, § 5--Bynkershoek, _Quaest. jur. publ._
I. cc, IX-XII--Vattel, III. §§ 111-113--Hall, §§ 236-247--Lawrence, §§
253-259--Westlake, II. pp. 240-265--Maine, pp. 96-122--Manning, pp.
352-399--Phillimore, III. §§ 226-284--Twiss, II. §§ 121-151--Halleck,
II. pp. 214-238--Taylor, §§ 653-666--Walker, §§ 73-75--Wharton, III.
§§ 368-375--Moore, VII. §§ 1249--1263--Wheaton, §§ 476-508
--Bluntschli, §§ 801-814--Heffter, §§ 158-161--Geffcken in
Holtzendorff, IV. pp. 713-731--Gareis, § 89--Liszt, § 42--Ullmann, §§
193-194--Bonfils, No. 1537-1588'15--Despagnet, Nos. 705-715 _ter_
--Rivier, II pp. 416-423--Calvo, V. §§ 2708-2795--Fiore, III. Nos.
1591-1601, and Code, Nos. 1827-1835--Martens, II. § 136--Kleen, I. §§
70-102--Boeck, Nos. 606-659--Pillet, pp. 315-330--Gessner, pp.
70-144--Perels, §§ 44-46--Testa, pp. 201-220--Lawrence, _War_, pp.
140-174--Ortolan, II. pp. 165-213--Hautefeuille, II. pp. 69-172
--Dupuis, Nos. 199-230, and _Guerre_, Nos. 137-171--Bernsten, §
9--Nippold, II. § 35--Takahashi, pp. 490-526--Holland, _Prize
Law_, §§ 57-87--U.S. Naval War Code, articles 34-36--Heineccius,
_De navibus ob vecturam vetitarum mercium commissis dissertatio_
(1740)--Huebner, _De la saisie des bâtiments neutres_, 2 vols.
(1759)--Valin, _Traité des prises_, 2 vols. (1763)--Martens, _Essai
sur les armateurs, les prises, et surtout les reprises_
(1795)--Lampredi, _Del commercio dei populi neutrali in tempo di
guerra_ (1801)--Tetens, _Considérations sur les droits réciproques
des puissances belligérantes et des puissances neutres sur mer_
(1805)--Pistoye et Duverdy, _Traité des prises maritimes_, 2 vols.
(1855)--Pratt, _The Law of Contraband of War_ (1856)--Moseley, _What
is Contraband and what is not?_ (1861)--Upton, _The Law of Nations
affecting Commerce during War_ (1863)--Lehmann, _Die Zufuhr von
Kriegskonterbandewaren, etc._ (1877)--Kleen, _De contrebande de
guerre et des transports interdits aux neutres_ (1893)--Vossen, _Die
Konterbande des Krieges_ (1896)--Manceaux, _De la contrebande de
guerre_ (1899)--Brochet, _De la contrebande de guerre_ (1900)--Hirsch,
_Kriegskonterbande und verbotene Transporte in Kriegszeiten_
(1901)--Pincitore, _Il contrabbando di guerra_ (1902)--Remy, _Théorie
de la continuauté du voyage en matière de blocus et de contrebande de
guerre_ (1902)--Knight, _Des états neutres au point de vue de la
contrebande de guerre_ (1903)--Wiegner, _Die Kriegskonterbande_
(1904)--Atherley-Jones, _Commerce in War_ (1906), pp. 1-91 and
253-283--Hold, _Die Kriegskonterbande_ (1907)--Hansemann, _Die
Lehre von der einheitlichen Reise im Rechte der Blockade und
Kriegskonterbande_ (1910)--Hirschmann, _Das internationale
Prisenrecht_ (1912), §§ 24-30--Westlake in _R.I._ II. (1870), pp.
614-655--Kleen in _R.I._ XXV. (1893), pp. 7, 124, 209, 389, and XXVI.
pp. 214-217 (1894)--Bar in _R.I._ XXVI. (1894), pp. 401-414--Brocher
de la Fléchère, in _R.I._ 2nd Ser. I. (1899), pp. 337-353--Fauchille
in _R.G._ IV. (1897), pp. 297-323--Kleen in _R.G._ XI. (1904), pp.
353-362--Gover in _The Journal of the Society of Comparative
Legislation_, new series, II. (1900), pp. 118-130--Kennedy and
Randall in _The Law Quarterly Review_, XXIV (1908), pp. 59-75,
316-327, and 449-464--General Report presented to the Naval Conference
of London by its Drafting Committee, articles 22-44.
[Sidenote: Definition of Contraband of War.]
§ 391. The term contraband is derived from the Italian "contrabbando,"
which, itself deriving from the Latin "contra" and "bannum" or "bandum,"
means "in defiance of an injunction." Contraband of war[813] is the
designation of such goods as by either belligerent are forbidden to be
carried to the enemy on the ground that they enable the latter to carry
on the war with greater vigour. But this definition is only a formal
one, as it does not state what kinds of goods belong to the class of
contraband. This point was much controverted before the Declaration of
London. Throughout the seventeenth, eighteenth, and nineteenth centuries
the matter stood as Grotius had explained it. Although he does not
employ the term contraband, he treats of the matter. He[814]
distinguishes three different kinds of articles. Firstly, those which,
as arms for instance, can only be made use of in war, and which are,
therefore, always contraband. Secondly, those, as for example articles
of luxury, which can never be made use of in war and which, therefore,
are never contraband. Thirdly, those which, as money, provisions, ships,
and articles of naval equipment, can be made use of in war as well as in
peace, and which are on account of their ancipitous use contraband or
not according to the circumstances of the case. In spite of
Bynkershoek's decided opposition[815] to this distinction by Grotius,
the practice of most belligerents until the beginning of the twentieth
century has been in conformity with it. A great many treaties have from
the beginning of the sixteenth century been concluded between many
States for the purpose of fixing what articles belonging to the class of
ancipitous use should, and what should not, be regarded between the
parties as contraband, but these treaties disagree with one another.
And, so far as they were not bound by a treaty, belligerents formerly
exercised their discretion in every war according to the special
circumstances and conditions in regarding or not regarding certain
articles of ancipitous use as contraband. The endeavour of the First and
the Second Armed Neutrality of 1780 and 1800 to restrict the number and
kinds of articles that could be regarded as contraband failed, and the
Declaration of Paris of 1856 uses the term contraband without any
attempt to define it.
[Footnote 813: Although--see above, §§ 173-174--prevention of carriage
of contraband is a means of sea warfare against the enemy, it chiefly
concerns neutral commerce and is, therefore, more conveniently treated
with neutrality.]
[Footnote 814: See Grotius, III. c. I, § 5:--"Sunt res quae in bello
tantum usum habent, ut arma: sunt quae in bello nullum habent usum, ut
quae voluptati inserviunt: sunt quae et in bello et extra bellum usum
habent, ut pecuniae, commeatus, naves, et quae navibus adsunt.... In
tertio illo genere usus ancipitis, distinguendus erit belli status...."]
[Footnote 815: See Bynkershoek, _Quaest. jur. publici._ I. c. X.]
It is by the Declaration of London that the Powers have, for the first
time in history, come to an agreement concerning what articles are
contraband. The distinction which Grotius made between three classes of
goods, while still recognised, has been merged by the Declaration of
London into the distinction between articles of absolute contraband,
articles of conditional contraband, and such articles as may under no
circumstances or conditions be considered contraband. This Declaration,
moreover, has put the whole matter of contraband upon a new basis, since
the Powers have by articles 22 to 44 agreed upon a common code of rules
concerning contraband.
[Sidenote: Absolute and conditional Contraband, and free Articles.]
§ 392. Apart from the distinction between articles which can be made use
of only in war and those of ancipitous use, two different classes of
contraband must be distinguished.
There are, firstly, articles which by their very character are destined
to be made use of in war. In this class are to be reckoned not only arms
and ammunition, but also such articles of ancipitous use as military
stores, naval stores, and the like. They are termed absolute contraband.
There are, secondly, articles which by their very character are not
destined to be made use of in war, but which under certain circumstances
and conditions can be of the greatest use to a belligerent for the
continuation of the war. To this class belong, for instance, provisions,
coal, gold, and silver. These articles are termed conditional or
relative contraband.
Although hitherto not all the States have made this distinction,
nevertheless they did make a distinction in so far as they varied the
list of articles which they declared contraband in their different wars;
certain articles, as arms and ammunition, have always been on the list,
whilst other articles were only considered contraband when the
circumstances of a particular war made it necessary. The majority of
writers have always approved of the distinction between absolute and
conditional contraband, although several insisted that arms and
ammunition only and exclusively could be recognised as contraband, and
that conditional contraband did not exist.[816] The distinction would
seem to have been important not only regarding the question whether or
no an article was contraband, but also regarding the consequences of
carrying contraband.[817]
[Footnote 816: See, for instance, Hautefeuille, II. p. 157, and Kleen,
I. § 90.]
[Footnote 817: See below, § 405, p. 510.]
The Declaration of London has adopted (articles 22 and 24) the
distinction between absolute and conditional contraband, but it
distinguishes, besides these two classes of articles, a third class
(article 27). To this class belong all articles which are either not
susceptible of use in war, or the possibility of the use of which in war
is so remote as practically to make them not susceptible of use in war.
These articles are termed _free articles_.[818]
[Footnote 818: But there are a number of other free articles, although
they do not belong to the articles characterised above; see below, §
396_a_.]
[Sidenote: Articles absolutely Contraband.]
§ 393. That absolute contraband cannot and need not be restricted to
arms and ammunition only and exclusively becomes obvious, if the fact is
taken into consideration that other articles, although of ancipitous
use, can be as valuable and essential to a belligerent for the
continuance of the war as arms and ammunition. The necessary machinery
and material for the manufacture of arms and ammunition are almost as
valuable as the latter themselves, and warfare on sea can as little be
waged without vessels and articles of naval equipment as without arms
and ammunition. But formerly no unanimity existed with regard to such
articles of ancipitous use as had to be considered as absolute
contraband, and States, when they went to war, increased or restricted,
according to the circumstances of the particular war, the list of
articles they considered absolute contraband.
According to the British practice[819] which has hitherto
prevailed--subject, however, to the prerogative of the Crown to order
alterations of the list during a war--the following articles were
considered absolute contraband:--
Arms of all kinds, and machinery for manufacturing arms;
ammunition, and materials for ammunition, including lead, sulphate
of potash, muriate of potash (chloride of potassium), chlorate of
potash, and nitrate of soda; gunpowder and its materials,
saltpetre and brimstone, also guncotton; military equipments and
clothing; military stores; naval stores, such as masts, spars,
rudders, ship timbers, hemp and cordage, sail-cloth, pitch and
tar, copper for sheathing vessels, marine engines and the
component parts thereof (including screw propellers,
paddle-wheels, cylinders, cranks, shafts, boilers, tubes for
boilers, boiler-plates and fire bars), maritime cement and the
materials used for its manufacture (as blue lias and Portland
cement), iron in any of the following forms: anchors, rivet-iron,
angle-iron, round bars of from 3/4 to 5/8 of an inch diameter,
rivets, strips of iron, sheet plate-iron exceeding 1/4 of an inch,
and Low Moor and Bowling plates.
[Footnote 819: See Holland, _Prize Law_, § 62.]
By articles 22 and 23 of the Declaration of London an agreement has been
reached according to which two classes of absolute contraband must be
distinguished. Article 22 enumerates eleven groups of articles which may
_always_, without special declaration and notice, be treated as absolute
contraband. These constitute the first class. The second--see article
23--consists of such articles exclusively used for war as are not
enumerated[820] amongst the eleven groups of the first class; these may
be treated as absolute contraband also, but only _after special
declaration and notification_. Such declaration may be published during
time of peace, and notification thereof must then be addressed to all
other Powers; but if the declaration is published after the outbreak of
hostilities, a notification need only be addressed to the neutral
Powers. Should a Power--see article 26--waive, so far as itself is
concerned, the right to treat as absolute contraband an article
comprised in the first class, notification thereof must be made to the
other Powers. The following are the groups of articles comprised in the
first class:--
(1) Arms of all kinds, including arms for sporting purposes, and
their distinctive component parts.
(2) Projectiles, charges, and cartridges of all kinds, and their
distinctive component parts.
(3) Powder and explosives specially prepared for use in war.
(4) Gun-mountings, limber boxes, limbers, military waggons, field
forges, and their distinctive component parts.
(5) Clothing and equipment of a distinctively military character.
(6) All kinds of harness of a distinctively military character.
(7) Saddle, draught, and pack animals suitable for use in war.
(8) Articles of camp equipment, and their distinctive component
parts.
(9) Armour plates.
(10) Warships, including boats, and their distinctive component
parts of such a nature that they can only be used on a vessel of
war.
(11) Implements and apparatus designed exclusively for the
manufacture of munitions of war, for the manufacture or repair of
arms, or war material for use on land or sea.
[Footnote 820: The Report of the Drafting Committee on article 23
recognises that at present it would be difficult to mention any articles
which could under article 23 be declared absolute contraband, but since
future contingencies cannot be foreseen, it was considered necessary to
stipulate the possibility of increasing the list of absolute contraband.
That only such additional articles could be declared absolute contraband
as by their very character are destined to be made use of in war, is a
matter of course.]
It is apparent that this list embodies a compromise, for it includes
several articles--such as saddle, draught, and pack animals suitable for
use in war--which Great Britain and other Powers formerly only
considered as conditional contraband.
[Sidenote: Articles conditionally Contraband.]
§ 394. There are many articles which are not by their character destined
to be made use of in war, but which are nevertheless of great value to
belligerents for the continuance of war. Such articles are conditionally
contraband, which means that they are contraband when it is clearly
apparent--see below, § 395--that they are intended to be made use of for
military or naval purposes. This intention becomes apparent on
considering either the destination of the vessel carrying the articles
concerned, or the consignee of the articles.
Before the Declaration of London neither the practice of States nor the
opinion of writers agreed upon the matter, and it was in especial
controversial[821] whether or no foodstuffs, horses and other beasts of
burden, coal and other fuel, money and the like, and cotton could
conditionally be declared contraband.
(1) That _foodstuffs_ should not under ordinary circumstances be
declared contraband there ought to be no doubt. There are even
several[822] writers who emphatically deny that foodstuffs could ever be
conditional contraband. But the majority of writers has always admitted
that foodstuffs destined for the use of the enemy army or navy might be
declared contraband. This has been the practice of Great Britain,[823]
the United States of America, and Japan. But in 1885, during her
hostilities against China, France declared rice in general as
contraband, on the ground of the importance of this article to the
Chinese population. And Russia in 1904, during the Russo-Japanese war,
declared rice and provisions in general as contraband; on the protest of
Great Britain and the United States of America, however, she altered her
decision and declared these articles conditional contraband only.
(2) The importance of _horses and other beasts of burden_ for cavalry,
artillery, and military transport explains their frequently being
declared as contraband by belligerents. No argument against their
character as conditional contraband can have any basis. But they were
frequently declared absolute contraband, as, for instance, by article 36
of the United States Naval War Code of 1900. Russia, which during the
Russo-Japanese War altered the standpoint taken up at first by her, and
recognised the distinction between absolute and conditional contraband,
nevertheless maintained her declaration of horses and beasts of burden
as absolute contraband. The Declaration of London, by article 22, No. 7,
declares them as absolute contraband.
(3) Since men-of-war are nowadays propelled by steam power, the
importance of _coal_, and eventually other fuel for waging war at sea is
obvious. For this reason, Great Britain has ever since 1854 maintained
that coal, if destined for belligerent men-of-war or belligerent naval
ports, is contraband. But in 1859 France and Italy did not take up the
same standpoint. Russia, although in 1885 she declared that she would
never consent to coal being regarded as contraband, in 1904 declared
coal, naphtha, alcohol, and every other kind of fuel, absolute
contraband. And she adhered to this standpoint, although she was made to
recognise the distinction between absolute and conditional contraband.
(4) As regards _money_, unwrought precious metals which may be coined
into money, bonds and the like, the mere fact that a neutral is
prohibited by his duty of impartiality from granting a loan to a
belligerent ought to bring conviction that these articles are contraband
if destined for the enemy State or its forces. However, the case seldom
happens that these articles are brought by neutral vessels to
belligerent ports, since under the modern conditions of trade
belligerents can be supplied in other ways with the necessary funds.
(5) As regards _raw cotton_, it is asserted[824] that in 1861, during
the Civil War, the United States declared it absolute contraband under
quite peculiar circumstances, since it took the place of money sent
abroad for the purpose of paying for vessels, arms, and ammunition. But
this assertion is erroneous.[825] Be that as it may, raw cotton should
not, under ordinary circumstances, be able to be considered absolute
contraband. For this reason Great Britain protested when Russia, in 1904
during the Russo-Japanese War, declared cotton in general as contraband;
Russia altered her standpoint and declared cotton conditional contraband
only.[826]
[Footnote 821: See Perels, § 45, and Hall, §§ 242-246, who give
bird's-eye views of the controversy.]
[Footnote 822: See, for instance, Bluntschli, § 807.]
[Footnote 823: The _Jonge Margaretha_ (1799), 1 C. Rob. 189.]
[Footnote 824: See Hall, § 246, p. 690, note 2; Taylor, § 662; Wharton,
III. § 373.]
[Footnote 825: See Moore, VII. § 1254, and Holland, _Letters to the
"Times" upon War and Neutrality_ (1909) pp. 108-112.]
[Footnote 826: According to the British practice which has hitherto
prevailed--see Holland, _Prize Law_, § 64--the list of conditional
contraband comprises:--Provisions and liquors for the consumption of
army and navy; money, telegraphic materials, such as wire, porous cups,
platina, sulphuric acid, and zinc; materials for the construction of a
railway, as iron bars, sleepers, and the like; coal, hay, horses, rosin,
tallow, timber. But it always was in the prerogative of the Crown to
extend or reduce this list during a war according to the requirements of
the circumstances.]
By articles 24 to 28 of the Declaration of London an agreement has been
reached by the Powers according to which two classes of conditional
contraband must be distinguished. Article 24 enumerates fourteen groups
of articles which may _always_, without special declaration and notice,
be treated as conditional contraband; these constitute the first class.
The second--see article 25--consists of articles which are not
enumerated either amongst the eleven groups of absolute contraband
contained in article 22 or amongst the fourteen groups of conditional
contraband contained in article 24, but which are nevertheless
susceptible of use in war as well as for purposes of peace; these may be
treated as conditional contraband also, but _only after special
declaration and notification_. Such declaration may be published during
time of peace, and notification thereof must then be addressed to all
other Powers; but if the declaration is published after the outbreak of
hostilities a notification need be addressed to the neutral Powers only.
Should a Power--see article 26--waive, so far as itself is concerned,
the right to treat as conditional contraband an article comprised in the
first class, notification thereof must be made to the other Powers. But
it is of course obvious, although not specially stated in article 26,
that a Power may treat as conditional contraband any article belonging
either to the first or second class of absolute contraband; in such a
case, however, special declaration and notification would seem to be
necessary. The following are the groups of articles comprised in the
first class of conditional contraband:--
(1) Foodstuffs.
(2) Forage and grain, suitable for feeding animals.
(3) Clothing, fabrics for clothing, and boots and shoes, suitable
for use in war.
(4) Gold and silver in coin or bullion; paper money.
(5) Vehicles of all kinds available for use in war, and their
component parts.
(6) Vessels, craft, and boats of all kinds; floating docks, parts
of docks and their component parts.
(7) Railway material, both fixed and rolling-stock, and material
for telegraphs, wireless telegraphs, and telephones.
(8) Balloons and flying machines and their distinctive component
parts, together with accessories and articles recognisable as
intended for use in connection with balloons and flying machines.
(9) Fuel; lubricants.
(10) Powder and explosives not specially prepared for use in war.
(11) Barbed wire and implements for fixing and cutting the same.
(12) Horseshoes and shoeing materials.
(13) Harness and saddlery.
(14) Field glasses, telescopes, chronometers, and all kinds of
nautical instruments.
This list represents a compromise, just as does the list of absolute
contraband of article 22. Those opponents of the Declaration of London
who object to foodstuffs being on the list of conditional contraband
forget that several times in the past--see above, p. 486
(1)--belligerents have declared foodstuffs absolute contraband.
[Sidenote: Hostile Destination essential to Contraband.]
§ 395. Whatever may be the nature of articles, they are never contraband
unless they are destined for the use of a belligerent in war. Arms and
ammunition destined for a neutral are as little contraband as other
goods with the same destination. As this hostile destination is
essential even for articles which are obviously used in war, such
hostile destination is all the more important for such articles of
ancipitous use as are only conditionally contraband. Thus, for instance,
provisions and coal are perfectly innocent and not at all contraband if
they are not purposely destined for enemy troops and naval forces, but
are destined for use by a neutral. However, the destination of the
articles must not be confounded with the destination of the vessel which
carries them. For, on the one hand, certain articles with a hostile
destination are considered contraband although the carrying vessel is
destined for a neutral port, and, on the other hand, certain articles,
although they are without a hostile destination, are considered
contraband because the carrying vessel is to touch at an intermediate
enemy port and is, therefore, destined for such port, although her
ultimate destination is a neutral port.
The Declaration of London, by articles 30 to 36, enacts very detailed
rules with regard to hostile destination, distinguishing clearly between
the characteristics of hostile destination of absolute contraband and
those of hostile destination of conditional contraband.
(1) The destination of articles of _absolute_ contraband is, according
to article 30, to be considered hostile if it be shown that they are
being sent either to enemy territory, or to territory occupied by the
enemy, or, further, to the armed forces of the enemy. And, according to
article 31, hostile destination of absolute contraband is considered to
be completely proved, firstly, when the goods are consigned to an enemy
port or to the armed forces of the enemy, and, secondly, when the
vessel is to call either at enemy ports only, or when she is to touch at
an enemy port or meet the armed forces of the enemy before reaching the
neutral port to which the cargo concerned is consigned.
(2) The destination of articles of _conditional_ contraband, on the
other hand, is, according to article 33, considered to be hostile if
they are intended for the use of the armed forces or of a government
department of the enemy State, unless in this latter case the
circumstances show that the articles concerned cannot in fact be used
for warlike purposes. Gold and silver in coin or bullion and paper
money, however, are in every case considered to have a hostile
destination if intended for a government department of the enemy State.
And, according to article 34, hostile destination of articles of
conditional contraband is, if the contrary be not proved, presumed when
the articles are consigned, firstly, to enemy authorities or to an enemy
contractor[827] established in the enemy country, who as a matter of
common knowledge supplies articles of this kind to the enemy, or,
secondly, to a fortified place of the enemy or to another place serving
as a base[828]--whether of operations or supply--for the armed forces of
the enemy. On the other hand, if the articles are not so consigned and
if the contrary be not proved, their destination is presumed to be
non-hostile. And in the case of a merchantman which can herself be
conditional contraband if bound to a fortified place of the enemy or to
another place serving as a base for the armed forces of the enemy, there
is no presumption of a hostile destination, but a direct proof is
necessary that she is destined for the use of the armed forces or of a
government department of the enemy State.
[Footnote 827: The French text of article 34 contains the words _à un
commerçant établi en pays ennemi et lorsqu'il est notoire que ce
commerçant fournit à l'ennemi des objets et materiaux de cette nature_.
The translation _to an enemy contractor_ has been objected to by
opponents of the Declaration of London, but it is absolutely correct
because it meets the meaning of the French text.]
[Footnote 828: The Report of the Drafting Committee on article 34 states
that the base concerned may be one of operations or supply. Opponents of
the Declaration of London object to article 34 on account of the alleged
ambiguity of the words _place serving as a base for the armed forces of
the enemy_, and assert that all seaports of Great Britain might be
treated as bases of supply for the armed forces because railways connect
them with other places which actually serve as bases of supply or
operations. This is surely erroneous, because the doctrine of continuous
voyages is not--see article 35 in contradistinction to article 30, and
below, § 403_a_--to be applied to conditional contraband.]
[Sidenote: Free Articles.]
§ 396. It is obvious that such articles as are not susceptible of use in
war may never be declared contraband, whether their destination be
hostile or not.
The Declaration of London, by article 27, expressly recognises this and,
in article 28--the so-called _free list_--enumerates seventeen groups of
articles which may never be declared contraband in spite of their
hostile destination, namely:--
(1) Raw cotton, wool, silk, jute, flax, hemp, and other raw
materials of the textile industries, and yarns of the same.
(2) Oil seeds and nuts; copra.
(3) Rubber, resins, gums, and lacs; hops.
(4) Raw hides and horns, bones, and ivory.
(5) Natural and artificial manures, including nitrates and
phosphates for agricultural purposes.
(6) Metallic ores.
(7) Earths, clays, lime, chalk, stone, including marble, bricks,
slates, and tiles.
(8) Chinaware and glass.
(9) Paper and paper-making materials.
(10) Soap, paint and colours, including articles exclusively used
in their manufacture, and varnish.
(11) Bleaching powder, soda, ash, caustic soda, salt cake,
ammonia, sulphate of ammonia, and sulphate of copper.
(12) Agricultural, mining, textile, and printing machinery.
(13) Precious and semi-precious stones, pearls, mother-of-pearl,
and coral.
(14) Clocks and watches, other than chronometers.
(15) Fashion and fancy goods.
(16) Feathers of all kinds, hairs, and bristles.
(17) Articles of household furniture and decoration, office
furniture and requisites.
This free list is of great importance to neutral trade, more
particularly as it not only comprises such articles as are not
susceptible of use in war, but likewise a number of articles, the
possibility of the use of which in war is so remote as practically to
make them not susceptible of use in war. The list guarantees to a number
of industries and trades of neutral States freedom from interference on
the part of belligerents, and it is to be expected that in time the list
will be increased.
[Sidenote: Articles destined for the use of the carrying Vessel, or to
aid the Wounded.]
§ 396_a_. Besides the seventeen groups of articles contained in the free
list, there are two other groups of free articles.
Firstly, those articles which serve exclusively to aid the sick and
wounded. They, according to article 29, No. 1, of the Declaration of
London, may never be treated as contraband even if their destination is
hostile. They may, however, in case of urgent military necessity and,
subject to the payment of compensation, be requisitioned if they are
destined to territory belonging to or occupied by the enemy or to the
armed forces of the enemy.
Secondly, articles intended for the use of the vessel in which they are
found or for the use of her crew and passengers during the voyage.
Hostile destination being essential before any kinds of articles may be
considered contraband, those articles which are carried by a vessel
evidently for her own use or for the use of her crew and passengers can
never be contraband, as is now specially stipulated by article 29, No.
2, of the Declaration of London. Merchantmen frequently carry a gun and
a certain amount of ammunition for the purpose of signalling, and, if
they navigate in parts of the sea where there is danger of piracy, they
frequently carry a certain amount of arms and ammunition for defence
against an attack by pirates. It will not be difficult either for the
searching belligerent man-of-war or for the Prize Court to ascertain
whether or no such arms and ammunition are carried _bona fide_.
[Sidenote: Contraband Vessels.]
§ 397. A neutral vessel, whether carrying contraband or not, can herself
be contraband. Such is the case when she has been built or fitted out
for use in war and is on her way to the enemy. Although it is the duty
of neutrals--see article 8 of Convention XIII., and above §§ 334 and
350--to employ the means at their disposal to prevent the fitting out,
arming, or the departure of any vessel within their jurisdiction, which
they have reason to believe is intended to cruise or to engage in
hostile operations against a belligerent, their duty of impartiality
does not compel them to prevent their subjects from supplying a
belligerent with vessels fit for use in war except where the vessel
concerned has been built or fitted out by order of a belligerent.
Subjects of neutrals may therefore--unless prevented from so doing by
Municipal Law, as, for instance, subjects of the British Crown by §§ 8
and 9 of the Foreign Enlistment Act, 1870--by way of trade supply
belligerents with vessels of any kind, provided these vessels have not
been built or fitted out by order of the belligerent concerned.
According to the practice which has hitherto prevailed, such vessels,
being equivalent to arms, used to be considered as absolute
contraband.[829] And it made no difference whether or no they were fit
for use as men-of-war, it sufficed that they were fit to be used for the
transport of troops and the like.
[Footnote 829: The _Richmond_ (1804), 5 C. Rob. 325. See also Twiss, II.
§ 148, and Holland, _Prize Law_, § 86.]
According to article 22, No. 10, article 24, No. 6, and article 34 of
the Declaration of London the law concerning contraband vessels will be
the following:--A distinction is made between warships on the one hand,
and, on the other, vessels and the like generally. According to article
22, No. 10, warships, including their boats and their distinctive
component parts of such a nature that they can only be used on a vessel
of war, may be treated as absolute contraband without notice. On the
other hand, according to article 24, No. 6, vessels, craft, and boats of
all kinds, and, further, floating docks, parts of docks and their
component parts may only be treated as conditional contraband, but may
be so treated without notice. And it must be specially observed that
whereas with regard to articles of conditional contraband generally,
there is a legal presumption established as to their hostile destination
in case they are consigned to enemy authorities or to a contractor
established in the enemy country, who, as a matter of common knowledge,
supplies articles of this kind to the enemy, article 34 expressly
exempts merchant vessels from this presumption in case it is sought to
prove that they themselves are contraband.
II
CARRIAGE OF CONTRABAND
See the literature quoted above at the commencement of § 391.
[Sidenote: Carriage of Contraband Penal by the Municipal Law of
Belligerents.]
§ 398. The guaranteed freedom of commerce making the sale of articles of
all kinds to belligerents by subjects of neutrals legitimate, articles
of conditional as well as absolute contraband may be supplied by sale to
either belligerent by these individuals. And the carriage of such
articles by neutral merchantmen on the Open Sea is, as far as
International Law is concerned, quite as legitimate as their sale. The
carrier of contraband by no means violates an injunction of the Law of
Nations. But belligerents have by the Law of Nations the right to
prohibit and punish the carriage of contraband by neutral merchantmen,
and the carrier of contraband violates, for this reason, an injunction
of the belligerent concerned. It is not International Law, but the
Municipal Law of the belligerents, which makes carriage of contraband
illegitimate and penal.[830] The question why the carriage of contraband
articles may nevertheless be prohibited and punished by the
belligerents, although it is quite legitimate so far as International
Law is concerned, can only be answered by a reference to the historical
development of the Law of Nations. In contradistinction to former
practice, which interdicted all trade between neutrals and the enemy,
the principle of freedom of commerce between subjects of neutrals and
either belligerent has gradually become universally recognised; but this
recognition included from the beginning the right of either belligerent
to punish carriage of contraband on the sea. And the reason obviously is
the necessity for belligerents in the interest of self-preservation to
prevent the import of such articles as may strengthen the enemy, and to
confiscate the contraband cargo, and eventually the vessel also, as a
deterrent to other vessels.
[Footnote 830: See above, § 296.]
The present condition of the matter of carriage of contraband[831] is
therefore a compromise. In the interest of the generally recognised
principle of freedom of commerce between belligerents and subjects of
neutrals, International Law does not require neutrals to prevent their
subjects from carrying contraband; on the other hand, International Law
empowers either belligerent to prohibit and punish carriage of
contraband just as it--see above, § 383--empowers either belligerent to
prohibit and punish breach of blockade.
[Footnote 831: The same applies to blockade-running and rendering
unneutral service.]
The Declaration of London has in no way altered the existing condition
of the matter. The fact that articles 22 and 24 give a list of articles
which, without special declaration and notice, may always be treated as
absolute and conditional contraband respectively, does not involve the
forbidding by International Law of the carriage of the articles.
Articles 22 and 24 are certainly part of International Law, yet they
merely embody an agreement as to what goods may--but they need not--be
treated as contraband.
[Sidenote: Direct Carriage of Contraband.]
§ 399. Carriage of contraband commonly occurs where a vessel is engaged
in carrying to an enemy port such goods as are contraband when they have
a hostile destination. In such cases it makes no difference whether the
fact that the vessel is destined for an enemy port becomes apparent from
her papers, she being bound to such port, or whether she is found at sea
sailing on a course for an enemy port, although her papers show her to
be bound to a neutral port. And, further, it makes no difference,
according to the hitherto prevailing practice of Great Britain and the
United States of America at any rate, that she is bound to a neutral
port and that the articles concerned are, according to her papers,
destined for a neutral port, if only she is to call at an intermediate
enemy port or is to meet enemy naval forces at sea in the course of her
voyage to the neutral port of destination;[832] for otherwise the door
would be open to deceit, and it would always be pretended that goods
which a vessel is engaged in carrying to such intermediate enemy places
were intended for the neutral port of ultimate destination. For the same
reason a vessel carrying such articles as are contraband when they have
a hostile destination is considered to be carrying contraband if her
papers show that her destination is dependent upon contingencies under
which she may have to call at an enemy port, unless she proves that she
has abandoned the intention of eventually calling there.[833]
[Footnote 832: See Holland, _Prize Law_, § 69.]
[Footnote 833: The _Imina_ (1800), 3 C. Rob. 167; and the _Trende
Sostre_ (1800), cited in the _Lisette_ (1806), 6 C. Rob. 391, note. See
also Holland, _Prize Law_, § 70.]
The Declaration of London distinguishes between carriage of absolute and
conditional contraband:--
As regards _absolute_ contraband, a vessel is, according to article 32,
considered to be carrying contraband whether the fact that she is
destined for an enemy port becomes evident from her papers, she being
bound for such port, or whether she is found at sea sailing for an enemy
port, although her papers show her to be bound for a neutral port. And,
according to article 31, No. 2, it makes no difference that the vessel
is bound for a neutral port and that the articles concerned are,
according to her papers, destined for a neutral port, if only she is to
touch at an intermediate enemy port or is to meet armed forces of the
enemy before reaching the neutral port for which the goods in question
are consigned.
As regards _conditional_ contraband, a vessel is, according to article
35, considered to be carrying contraband whether her papers show her to
be destined to an enemy port, or, being clearly found out of the course
to a neutral port indicated by her papers, she is unable to give
adequate reasons to justify such deviation.
Article 32 as well as article 35 stipulates that ship papers are
conclusive proof as to the destination of the vessel and of the cargo,
unless the vessel is clearly found out of the course indicated by her
papers, but the Report of the Drafting Committee of the Naval Conference
of London emphasises the fact that the rule of the conclusiveness of
ship papers must not be interpreted too literally, since otherwise fraud
would be made easy. Ship papers are conclusive proof--says the
Report--_unless facts show their evidence to be false_.
[Sidenote: Circuitous Carriage of Contraband.]
§ 400. On occasions a neutral vessel carrying such articles as are
contraband if they have a hostile destination is, according to her
papers, ostensibly bound for a neutral port, but is intended, after
having called and eventually having delivered her cargo there, to carry
the same cargo from there to an enemy port. There is, of course, no
doubt that such vessels are carrying contraband whilst engaged in
carrying the articles concerned from the neutral to the enemy port. But
during the American Civil War the question arose whether they may
already be considered to be carrying contraband when on their way from
the port of starting to the neutral port from which they are afterwards
to carry the cargo to an enemy port, since they are really intended to
carry the cargo from the port of starting to an enemy port, although not
directly, but circuitously, by a roundabout way. The American Prize
Courts answered the question in the affirmative by applying to the
carriage of contraband the principle of _dolus non purgatur circuitu_
and the so-called doctrine of continuous voyages.[834] This attitude of
the American Prize Courts has called forth protests from many
authorities,[835] British as well as foreign, but Great Britain has not
protested, and from the attitude of the British Government in the case
of the _Bundesrath_ and other vessels in 1900 during the South African
War it could safely, although indirectly only, be concluded that Great
Britain considered the practice of the American Prize Courts correct and
just, and that, when a belligerent, she intended to apply the same
principles. This could also be inferred from § 71 of Holland's _Manual
of Naval Prize Law_, which established the rule: "The ostensible
destination of a vessel is sometimes a neutral port, while she is in
reality intended, after touching, and even landing and colourably
delivering over her cargo there, to proceed with the same cargo to an
enemy port. In such a case the voyage is held to be 'continuous,' and
the destination is held to be hostile throughout." And provided that the
intention of the vessel is really to carry the cargo circuitously, by a
roundabout way, to an enemy port, and further provided, that a mere
suspicion is not held for a proof of such intention, I cannot see why
this application of the doctrine of continuous voyages should not be
considered reasonable, just, and adequate.
[Footnote 834: The so-called doctrine of continuous voyages dates from
the time of the Anglo-French wars at the end of the eighteenth century,
and is connected with the application of the so-called rule of 1756.
(See above, § 289.) Neutral vessels engaged in French and Spanish
colonial trade, thrown open to them during the war, sought to evade
seizure by British cruisers and condemnation by British Prize Courts,
according to the rule of 1756, by taking their cargo to a neutral port,
landing it and paying import duties there, and then re-lading it and
carrying it to the mother country of the respective colony. Thus in the
case of the _William_ (1806), 5 C. Rob. 385, it was proved that this
neutral vessel took a cargo from the Spanish port La Guira to the port
of Marblehead in Massachusetts--the United States being neutral--landed
the cargo, paid import duties there, then took in the chief part of this
cargo besides other goods, and sailed after a week for the Spanish port
of Bilbao. In all such cases the British Prize Courts considered the
voyages from the colonial port to the neutral port and from there to the
enemy port as one continuous voyage and confirmed the seizure of the
ships concerned. See Remy, _Théorie de la continuauté du voyage en
matière de blocus et de contrebande_ (1902); Hansemann, _Die Lehre von
der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande_
(1910), and Fauchille in _R.G._ IV. (1897), pp. 297-323. The American
Courts have applied the doctrine of continuous voyages not only to
carriage of contraband but also to blockade; see above, § 385 (4), where
the cases of the _Bermuda_ and the _Stephen Hart_ are quoted.]
[Footnote 835: See, for instance, Hall, § 247. But Phillimore, III. §
227, p. 391, says of the judgments of the Supreme Court of the United
States in the cases of the _Bermuda_ and the _Peterhoff_, that they
"contain very valuable and sound expositions of the law, professedly,
and for the most part really, in harmony with the earlier decisions of
English Prize Courts." On the other hand, Phillimore, III. § 298, p.
490, disagrees with the American Courts regarding the application of the
doctrine of continuous voyages to breach of blockade, and reprobates the
decision in the case of the _Springbok_.]
[Sidenote: Indirect Carriage of Contraband (Doctrine of Continuous
Transports).]
§ 401. It also happens in war that neutral vessels carry to neutral
ports such articles as are contraband if bound for a hostile
destination, the vessel being cognisant or not of the fact that
arrangements have been made for the articles to be afterwards brought by
land or sea into the hands of the enemy. And the question has arisen
whether such vessels on their voyage to the neutral port may be
considered to be carrying contraband of war.[836] As early as 1855,
during the Crimean War, the French Conseil-Général des Prises, in
condemning the cargo of saltpetre of the Hanoverian neutral vessel _Vrow
Houwina_, answered the question in the affirmative;[837] but it was not
until the American Civil War that the question was decided on principle.
Since from the British port of Nassau, in the Bahamas, and from other
neutral ports near the coast of the Confederate States, goods, first
brought to these nearer neutral ports by vessels coming from more
distant neutral ports were carried to the blockaded coast of the
Southern States, Federal cruisers seized several vessels destined and
actually on their voyage to Nassau and other neutral ports because all
or parts of their cargoes were ultimately destined for the enemy. And
the American Courts considered those vessels to be carrying contraband,
although they were sailing from one neutral port to another, on clear
proof that the goods concerned were destined to be transported by land
or sea from the neutral port of landing into the enemy territory. The
leading cases are those of the _Springbok_ and _Peterhoff_, which have
been mentioned above in § 385 (4), for the Courts found the seizure of
these and other vessels justified on the ground of carriage of
contraband as well as on the ground of breach of blockade. Thus, another
application of the doctrine of continuous voyages came into existence,
since vessels whilst sailing between two neutral ports could only be
considered to be carrying contraband when the transport first from one
neutral port to another and afterwards from the latter to the enemy
territory had been regarded as one continuous voyage. This application
of the doctrine of continuous voyages is fitly termed "doctrine of
continuous transports."
[Footnote 836: The question is treated with special regard to the case
of the _Bundesrath_, in two able articles in _The Law Quarterly Review_,
XVII. (1901), under the titles "The Seizure of the _Bundesrath_" (Mr. I.
Dundas White) and "Contraband Goods and Neutral Ports" (Mr. E. L. de
Hart). See also Baty, _International Law in South Africa_ (1900), pp.
1-44.]
[Footnote 837: See Calvo, V. § 2767, p. 52. The case of the Swedish
neutral vessel _Commercen_, which occurred in 1814, and which is
frequently quoted with that of the _Vrow Houwina_ (1 Wheaton, 382), is
not a case of indirect carriage of contraband. The _Commercen_ was on
her way to Bilbao, in Spain, carrying a cargo of provisions for the
English army in Spain, and she was captured by a privateer commissioned
by the United States of America, which was then at war with England.
When the case, in 1816, came before Mr. Justice Story, he reprobated the
argument that the seizure was not justified because a vessel could not
be considered to be carrying contraband when on her way to a neutral
port, and he asserted that the hostile destination of goods was
sufficient to justify the seizure of the vessel.]
[Sidenote: The Case of the _Bundesrath_.]
§ 402. This application of the doctrine of continuous voyages under the
new form of continuous transports has likewise been condemned by many
British and foreign authorities; but Great Britain did not protest in
this case either--on the contrary, as was mentioned above in § 385 (4),
she declined to interfere in favour of the British owners of the vessels
and cargoes concerned. And that she really considered the practice of
the American Courts just and sound became clearly apparent by her
attitude during the South African War. When, in 1900, the _Bundesrath_,
_Herzog_, and _General_, German vessels sailing from German neutral
ports to the Portuguese neutral port of Lorenzo Marques in Delagoa Bay,
were seized by British cruisers under the suspicion of carrying
contraband, Germany demanded their release, maintaining that no carriage
of contraband could be said to take place by vessels sailing from one
neutral port to another. But Great Britain refused to admit this
principle, maintaining that articles ultimately destined for the enemy
were contraband, although the vessels carrying them were bound for a
neutral port.[838]
[Footnote 838: See _Parliamentary Papers_, Africa, No. 1 (1900);
Correspondence respecting the action of H.M.'s naval authorities with
regard to certain foreign vessels.]
There is no doubt that this attitude of the British Government was
contrary to the opinion of the prominent English[839] writers on
International Law. Even the _Manual of Naval Prize Law_, edited by
Professor Holland[840] in 1888, and "issued by authority of the Lords
Commissioners of the Admiralty," reprobated the American practice, for
in § 72 it lays down the following rule: "... If the destination of the
vessel be neutral, then the destination of the goods on board should be
considered neutral, notwithstanding it may appear from the papers or
otherwise that the goods themselves have an ulterior destination by
transhipment, overland conveyance, or otherwise." And the practice of
British Prize Courts in the past would seem to have been in accordance
with this rule. In 1798, during war between England and the Netherlands,
the neutral ship _Imina_,[841] which had left the neutral port of
Dantzig for Amsterdam carrying ship's timber, but on hearing of the
blockade of Amsterdam by the British had changed her course for the
neutral port of Emden, was seized on her voyage to Emden by a British
cruiser; she was, however, released by Sir William Scott because she had
no intention of breaking blockade, and because a vessel could only be
considered as carrying contraband whilst on a voyage to an enemy port.
"The rule respecting contraband, as I have always understood it, is that
the articles must be taken _in delicto_, in the actual prosecution of
the voyage to an enemy port," said Sir William Scott.[842]
[Footnote 839: See, for instance, Hall, § 247, and Twiss in _The Law
Magazine and Review_, XII. (1877), pp. 130-158.]
[Footnote 840: In a letter to the _Times_ of January 3, 1900, Professor
Holland points out that circumstances had so altered since 1888 that the
attitude of the British Government in the case of the _Bundesrath_ was
quite justified; see Holland, _Letters to the "Times" upon War and
Neutrality_ (1909), pp. 114-119.]
[Footnote 841: 3 C. Rob. 167.]
[Footnote 842: It is frequently maintained--see Phillimore, III. § 227,
pp. 397-403--that in 1864, in the case of _Hobbs_ v. _Henning_, Lord
Chief Justice Erle repudiated the doctrine of continuous transports, but
Westlake shows that this is not the case. See Westlake's Introduction in
Takahashi, _International Law during the Chino-Japanese War_ (1899), pp.
xx-xxiii, and in _The Law Quarterly_ _Review_, XV. (1899), pp. 23-30.
See also Hart, _ibidem_, XXIII. (1907), p. 199, who discusses the case
of _Seymour_ v. _London and Provincial Marine Insurance Co._ (41
L.J.C.P. 193) in which the Court recognised the doctrine of continuous
transports.]
[Sidenote: Continental support to the Doctrine of Continuous
Transports.]
§ 403. Although the majority of Continental writers condemn the doctrine
of continuous transports, several eminent Continental authorities
support it. Thus, Gessner (p. 119) emphatically asserts that the
destination of the carrying vessel is of no importance compared with the
destination of the carried goods themselves. Bluntschli, although he
condemns in § 835 the American practice regarding breach of blockade
committed by a vessel sailing from one neutral port to another,
expressly approves in § 813 of the American practice regarding carriage
of contraband by a vessel sailing between two neutral ports, yet
carrying goods with a hostile destination. Kleen (I. § 95, p. 388)
condemns the rule that the neutral destination of the vessel makes the
goods appear likewise neutral, and defends seizure in the case of a
hostile destination of the goods on a vessel sailing between two neutral
ports; he expressly states that such goods are contraband from the
moment the carrying vessel leaves the port of loading. Fiore (III. No.
1649) reprobates the theory of continuous voyages as applied by British
and American Courts, but he asserts nevertheless that the hostile
destination of certain goods carried by a vessel sailing to a neutral
port justifies the vessel being regarded as carrying contraband, and the
seizure thereof. Bonfils (No. 1569) takes up the same standpoint as
Bluntschli, admitting the application of the theory of continuous
voyages to carriage of contraband, but reprobating its application to
breach of blockade. And the Institute of International Law adopted the
rule:[843] "_La destination pour l'ennemi est présumée lorsque le
transport va à l'un de ses ports, ou bien à un port neutre qui,
d'après_ _des preuves évidentes et de fait incontestable, n'est qu'une
étape pour l'ennemi, comme but final de la même opération commerciale._"
Thus this representative body of authorities of all nations has fully
adopted the American application of the doctrine of continuous voyages
to contraband, and thereby recognised the possibility of circuitous as
well as indirect carriage of contraband.
[Footnote 843: See § 1 of the _Règlementation internationale de la
contrebande de guerre_, _Annuaire_, XV. (1896), p. 230.]
And it must be mentioned that the attitude of several Continental States
has hitherto been in favour of the American practice. Thus, according to
§§ 4 and 6 of the Prussian Regulations of 1864 regarding Naval Prizes,
it was the hostile destination of the goods or the destination of the
vessel to an enemy port which made a vessel appear as carrying
contraband and which justified her seizure. In Sweden the same was
valid.[844] Thus, further, an Italian Prize Court during the war with
Abyssinia in 1896 justified the seizure in the Red Sea of the Dutch
vessel _Doelwijk_,[845] which sailed for the neutral French port of
Djibouti, carrying a cargo of arms and ammunition destined for the
Abyssinian army and to be transported to Abyssinia after having been
landed at Djibouti.
[Footnote 844: See Kleen, I. p. 389, note 2.]
[Footnote 845: See Martens, _N.R.G._ 2nd Ser. XXVIII. p. 66. See also
below, § 436.]
[Sidenote: Partial Recognition by the Declaration of London of the
Doctrine of Continuous Voyages.]
§ 403_a_. The Declaration of London offers a compromise in order to
settle the controversy respecting the application of the doctrine of
continuous voyages to the carriage of contraband, whether circuitous or
indirect carriage be concerned.
(1) On the one hand, article 30 recognises with regard to _absolute_
contraband the application of the doctrine of continuous voyages--both
to circuitous and indirect carriage of contraband--by enacting that:
"absolute contraband is liable to capture if it is shown to be destined
to territory belonging to or occupied by the enemy or to the armed
forces of the enemy. _It is_ _immaterial whether the carriage of the
goods is direct or entails transhipment or a subsequent transport by
land._"
(2) On the other hand, article 35 categorically rejects the doctrine of
continuous voyages with regard to _conditional_ contraband by enacting
that "conditional contraband is not liable to capture except when found
on board a vessel bound for territory belonging to or occupied by the
enemy, or for the armed forces of the enemy,[846] and when it is not to
be discharged in an intervening neutral port."
(3) However, in cases where the enemy country has no seaboard, article
36--in contradistinction to the provisions of article 35--expressly
recognises the doctrine of continuous voyages for _conditional_
contraband also by enacting that "notwithstanding the provisions of
article 35, conditional contraband, if shown to have the destination
referred to in article 33, is liable to capture in cases where the enemy
country has no seaboard."
[Footnote 846: The rule of article 35 came into question for the first
time during the Turco-Italian war. In January 1912, the _Carthage_, a
French mail-steamer plying between Marseilles and Tunis, was captured
for carriage of contraband by an Italian torpedo-boat and taken to
Cagliari, because she had an aeroplane destined for Tunis on board. As
the destination of the vessel was neutral, and as, according to article
24, No. 8, of the Declaration of London aeroplanes are conditional
contraband, France protested against the capture of the vessel, Italy
agreed to release her, and the parties arranged to have the question as
to whether the capture of the vessel was justified settled by the
Permanent Court of Arbitration at the Hague.]
III
CONSEQUENCES OF CARRIAGE OF CONTRABAND
See the literature quoted above at the commencement of § 391.
[Sidenote: Capture for Carriage of Contraband.]
§ 404. It has always been universally recognised by theory and practice
that a vessel carrying contraband may be seized by the cruisers of the
belligerent concerned. But seizure is allowed only so long as a vessel
is _in delicto_, which commences when she leaves the port of starting
and ends when she has deposited the contraband goods, whether with the
enemy or otherwise. The rule is generally recognised, therefore, that a
vessel which has deposited her contraband may not be seized on her
return voyage. British and American practice, however, has hitherto
admitted one exception to this rule--namely, in the case in which a
vessel has carried contraband on her outward voyage with simulated and
false papers.[847] But no exception has been admitted by the practice of
other countries. Thus, when in 1879, during war between Peru and Chili,
the German vessel _Luxor_, after having carried a cargo of arms and
ammunition from Monte Video to Valparaiso, was seized in the harbour of
Callao, in Peru, and condemned by the Peruvian Prize Courts for carrying
contraband, Germany interfered and succeeded in getting the vessel
released.
[Footnote 847: The _Nancy_ (1800), 3 C. Rob. 122; the _Margaret_ (1810),
1 Acton, 333. See Holland, _Prize Law_, § 80. Wheaton, I. § 506, note 2,
condemns this practice; Hall, § 247, p. 696, calls it "undoubtedly
severe"; Halleck, II. p. 220, defends it. See also Calvo, V. §§
2756-2758.]
It must be specially observed that seizure for carriage of contraband is
only admissible on the Open Sea and in the maritime territorial belts of
the belligerents. Seizure within the maritime belt of neutrals would be
a violation of neutrality.
The Declaration of London entirely confirms these old customary rules,
but does not recognise the above-mentioned British exception. Article 37
enacts that a vessel carrying goods liable to capture as absolute or
conditional contraband may be captured on the high seas or in the
territorial waters of the belligerents throughout the whole of her
voyage even if she is to touch at a port of call before reaching the
hostile destination. Article 38 enacts that a vessel may not be captured
on the ground that she has carried contraband on a previous occasion if
such carriage is in point of fact at an end.
[Sidenote: Penalty for Carriage of Contraband according to the Practice
hitherto prevailing.]
§ 405. In former times neither in theory nor in practice have similar
rules been recognised with regard to the penalty of carriage of
contraband. The penalty was frequently confiscation not only of the
contraband cargo itself, but also of all other parts of the cargo,
together with the vessel. Only France made an exception, since according
to an _ordonnance_ of 1584 she did not even confiscate the contraband
goods themselves, but only seized them against payment of their value,
and it was not until 1681 that an _ordonnance_ proclaimed confiscation
of contraband, but with exclusion of the vessel and the innocent part of
the cargo.[848] During the seventeenth century this distinction between
contraband on the one hand, and, on the other, the innocent goods and
the vessel was clearly recognised by Zouche and Bynkershoek, and
confiscation of the contraband only became more and more the rule,
certain cases excepted. During the eighteenth century the right to
confiscate contraband was frequently contested, and it is remarkable as
regards the change of attitude of some States that by article 13 of the
Treaty of Friendship and Commerce[849] concluded in 1785 between Prussia
and the United States of America all confiscation was abolished. This
article provided that the belligerent should have the right to stop
vessels carrying contraband and to detain them for such length of time
as might be necessary to prevent possible damage by them, but such
detained vessels should be paid compensation for the arrest imposed upon
them. It further provided that the belligerent could seize all
contraband against payment of its full value, and that, if the captain
of a vessel stopped for carrying contraband should deliver up all
contraband, the vessel should at once be set free. I doubt whether any
other treaty of the same kind was entered into by either Prussia or the
United States.[850] And it is certain that, if any rule regarding
penalty for carriage of contraband was generally recognised at all, it
was the rule that contraband goods could be confiscated. But there
always remained the difficulty that it was controversial what articles
were contraband, and that the practice of States varied much regarding
the question as to whether the vessel herself and innocent cargo carried
by her could be confiscated. For beyond the rule that absolute
contraband could be confiscated, there was no unanimity regarding the
fate of the vessel and the innocent part of the cargo. Great Britain and
the United States of America hitherto confiscated the vessel when the
owner of the contraband was also the owner of the vessel; they also
confiscated such part of the innocent cargo as belonged to the owner of
the contraband goods; they, lastly, confiscated the vessel, although her
owner was not the owner of the contraband, provided he knew of the fact
that his vessel was carrying contraband, or provided the vessel sailed
with false or simulated papers for the purpose of carrying
contraband.[851] Some States allowed such vessel carrying contraband as
was not herself liable to confiscation to proceed with her voyage on
delivery of her contraband goods to the seizing cruiser,[852] but Great
Britain[853] and other States insisted upon the vessel being brought
before a Prize Court in every case.
[Footnote 848: See Wheaton, _Histoire des Progrès du Droit des gens en
Europe_ (1841), p. 82.]
[Footnote 849: Martens, _R._ IV. p. 42. The stipulation was renewed by
article 12 of the Treaty of Commerce and Navigation concluded between
the two States in 1828; Martens, _N.R._ VII. p. 619.]
[Footnote 850: Article 12 of the Treaty of Commerce, between the United
States of America and Italy, signed at Florence on February 26,
1871--see Martens, _N.R.G._ 2nd Ser. I. p. 57--stipulates immunity from
seizure of such private property only as does not consist of contraband:
"The high contracting parties agree that in the unfortunate event of war
between them, the private property of their respective citizens and
subjects, with the exception of contraband of war, shall be exempt from
capture, or seizure, on the high seas or elsewhere, by the armed vessels
or by the military forces of either party; it being understood that this
exemption shall not extend to vessels and their cargoes which may
attempt to enter a port blockaded by the naval forces of either party."
See above, § 178.]
[Footnote 851: See Holland, _Prize Law_, §§ 82-87.]
[Footnote 852: See Calvo, V. § 2779.]
[Footnote 853: See Holland, _Prize Law_, § 81.]
As regards conditional contraband, those States which made any
distinction at all between absolute and conditional contraband, as a
rule confiscated neither the conditional contraband nor the carrying
vessel, but seized the former and paid for it. According to British
practice[854] hitherto prevailing, freight was paid to the vessel, and
the usual compensation for the conditional contraband was the cost price
plus 10 per cent. profit. States acting in this way asserted a right to
confiscate conditional contraband, but exercised pre-emption in
mitigation of such a right. Those Continental writers who refused to
recognise the existence of conditional contraband, denied, consequently,
that there was a right to confiscate articles not absolutely contraband,
but they maintained that every belligerent had, according to the
so-called right of angary,[855] a right to stop all such neutral vessels
as carried provisions and other goods with a hostile destination of
which he might have made use and to seize such goods against payment of
their full value.
[Footnote 854: See Holland, _Prize Law_, § 84. Great Britain likewise
exercised pre-emption instead of confiscation with regard to such
absolute contraband as was in an unmanufactured condition and was at the
same time the produce of the country exporting it.]
[Footnote 855: See above, § 365.]
The Institute of International Law, whose rules regarding contraband,
adopted at its meeting at Venice in 1896, restrict contraband to arms,
ammunition, articles of military equipment, vessels fitted for naval
operations, and instruments for the immediate fabrication of ammunition,
proposed a compromise regarding articles of ancipitous use. Although the
rules state that those articles may not be considered contraband, they
nevertheless give the choice to a belligerent of either exercising
pre-emption or seizing and temporarily retaining such articles against
payment of indemnities.[856]
[Footnote 856: It is of value to print here the _Règlementation
internationale de la contrebande de guerre_ adopted by the Institute of
International Law (_Annuaire_, XV. [1896] p. 230):--
§ 1. Sont articles de contrebande de guerre: (1) les armes de toute
nature; (2) les munitions de guerre et les explosifs; (3) le matériel
militaire (objets d'équipement, affûts, uniformes, etc.); (4) les
vaisseaux équipés pour la guerre; (5) les instruments spécialement faits
pour la fabrication immédiate des munitions de guerre; lorsque ces
divers objets sont transportés par mer pour le compte ou à la
destination d'un belligérant.
La destination pour l'ennemi est présumée lorsque le transport va à l'un
de ses ports, ou bien à un port neutre qui, d'après des preuves
évidentes et de fait incontestable, n'est qu'une étape pour l'ennemi,
comme but final de la même opération commerciale.
§ 2. Sous la dénomination de _munitions de guerre_ doivent être compris
les objets qui, pour servir immédiatement à la guerre, n'exigent qu'une
simple réunion ou juxtaposition.
§ 3. Un objet ne saurait être qualifié de contrebande à raison de la
seule intention de l'employer à aider ou favoriser un ennemi, ni par
cela seul qu'il pourrait être, dans un but militaire, utile à un ennemi
ou utilisé par lui, ou qu'il est destiné à son usage.
§ 4. Sont et demeurent abolies les prétendues contrebandes désignées
sous les noms soit de contrebande _relative_, concernant des articles
(_usus ancipitis_) susceptibles d'être utilisés par un belligérant dans
un but militaire, mais dont l'usage est essentiellement pacifique, soit
de contrebande _accidentelle_, quand lesdits articles ne servent
spécialement aux buts militaires que dans une circonstance particulière.
§ 5. Néanmoins le belligérant a, à son choix et à charge d'une équitable
indemnité, le droit de séquestre ou de préemption quant aux objets qui,
en chemin vers un port de son adversaire, peuvent également servir à
l'usage de la guerre et à des usages pacifiques.
* * * * *
§ 9. En cas de saisies ou répressions non justifiées pour cause de
contrebande ou de transport, l'État du capteur sera tenu aux
dommages-intérêts et à la restitution des objets.
§ 10. Un transport parti avant la déclaration de la guerre et sans
connaissance obligée de son imminence n'est pas punissable.]
[Sidenote: Penalty according to the Declaration of London for Carriage
of Contraband.]
§ 406. The Declaration of London offers by articles 39 to 44 a
settlement of the controversy respecting the penalty for carriage of
contraband which represents a fair compromise.
The chief rule is (article 39) that contraband goods, whether absolute
or conditional contraband, may be confiscated. The carrying vessel may
(article 40) likewise be confiscated if the contraband reckoned either
by value, weight, volume, or freight, forms more than half the cargo. If
the latter be not the case, and if the carrying vessel be therefore
released, she may (article 41) be condemned to pay the costs and
expenses incurred by the captor in respect of the proceedings in the
national Prize Court and the custody of the ship and cargo during the
proceedings. But whatever be the proportion between contraband and
innocent goods on a vessel, innocent goods (article 42) which belong to
the owner of the contraband and are on board the same carrying vessel,
may be confiscated.
If a vessel carrying contraband sails before the outbreak of war
(article 43), or is unaware of a declaration of contraband which applies
to her cargo, or has no opportunity of discharging her cargo after
receiving such knowledge, the contraband may only be confiscated on
payment of compensation, and the vessel herself and her innocent cargo
may not be confiscated nor may the vessel be condemned to pay any costs
and expenses incurred by the captor.[857] But there is a presumption
which is not rebuttable with regard to the _mens rea_ of the vessel. For
according to the second paragraph of article 43 a vessel is considered
to have knowledge of the outbreak of war or of a declaration of
contraband if she leaves an enemy port after the outbreak of
hostilities, or if she leaves a neutral port subsequent to the
notification of the outbreak of hostilities or of the declaration of
contraband to the Power to which such port belongs, provided such
notification was made in sufficient time.
[Footnote 857: It is obvious that the vessel must be brought into a port
and before a Prize Court if the captor desires to seize the contraband
against compensation. The question as to whether article 44 applies to
such a case, and whether, therefore, the neutral vessel may be allowed
to continue her voyage if the master is willing to hand over the
contraband to the captor, must be answered in the affirmative, provided
that the contraband, reckoned either by value, weight, volume, or
freight, forms less than half the cargo. For article 44 precisely treats
of a case in which the vessel herself is not liable to condemnation _on
account of the proportion of the contraband on board_ (see article 40).]
The question of pre-emption of conditional contraband is not mentioned
by the Declaration of London. There is, however, nothing to prevent the
several maritime Powers from exercising pre-emption in mitigation of
their right of confiscation; the future must show whether or no they
will be inclined to do this.
[Sidenote: Seizure of Contraband without Seizure of the Vessel.]
§ 406_a_. Hitherto the practice of the several States has differed--see
above, § 405--with regard to the question as to whether a vessel which
was not herself liable to condemnation might be allowed to proceed on
her voyage on condition that she handed over the contraband carried by
her to the captor. Great Britain and some other States answered it in
the negative, but several States in the affirmative. The Declaration of
London, although it upholds the general rule that, whatever may be the
ultimate fate of the vessel, she must be taken into a port of a Prize
Court, admits two exceptions to the rule:--
(1) According to article 44, a vessel which has been stopped for
carrying contraband and which is not herself liable to be confiscated on
account of the proportion of contraband on board, may--not must--when
the circumstances permit it, be allowed to continue her voyage in case
she hands over the contraband cargo to the captor. In such a case the
captor is at liberty to destroy the contraband handed over to him. But
the matter must in any case be brought before a Prize Court. The captor
must therefore enter the delivery of the contraband on the log-book of
the vessel so stopped, and the master of the latter must give duly
certified copies of all relevant papers to the captor.
(2) According to article 54, the captor may--see below, §
431--exceptionally, in case of necessity, demand the handing over, or
may proceed himself to the destruction, of any absolute or conditional
contraband goods found on a vessel which is not herself liable to
condemnation, if the taking of the vessel into the port of a Prize Court
would involve danger to the safety of the capturing cruiser or to the
success of the operations in which she is engaged at the time. But the
captor must, nevertheless, bring the case before a Prize Court. He must,
therefore, enter the captured goods on the log-book of the stopped
vessel, and must obtain duly certified copies of all relevant papers. If
the captor cannot establish the fact before the Prize Court that he was
really compelled to abandon the intention of bringing in the carrying
vessel, he must be condemned (see article 51) to pay the value of the
goods to their owners if the goods were contraband or if they were not.
And the same is valid in case (article 52) the seizure or destruction of
the goods is held by the Prize Court to have been justifiable, but not
the capture itself of the carrying vessel.