IV. 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.
V. UNNEUTRAL SERVICE
I
THE DIFFERENT KINDS OF UNNEUTRAL SERVICE
Hall, §§ 248-253--Lawrence, §§ 260-262--Westlake, II. pp. 261-265--Phillimore, III. §§ 271-274--Halleck, II. pp. 289-301--Taylor, §§ 667-673--Walker, § 72--Wharton, III. § 374--Wheaton, §§ 502-504 and Dana's note No. 228--Moore, VII. §§ 1264-1265--Bluntschli, §§ 815-818--Heffter, § 161A--Geffcken in Holtzendorff, IV. pp. 731-738--Ullmann, § 192--Bonfils, Nos. 1584-1588--Despagnet, Nos. 716-716 bis--Rivier, II. pp. 388-391--Nys, III. pp. 675-681--Calvo, V. §§ 2796-2820--Fiore, III. Nos. 1602-1605, and Code, Nos. 1836-1840--Martens, II. § 136--Kleen, I. §§ 103-106--Boeck, Nos. 660-669--Pillet, p. 330--Gessner, pp. 99-111--Perels, § 47--Testa, p. 212--Dupuis, Nos. 231-238, and Guerre, Nos. 172-188--Bernsten, § 9--Nippold, II. § 35--Holland, Prize Law, §§ 88-105--U.S. Naval War Code, articles 16 and 20--Hautefeuille, II. pp. 173-188--Ortolan, II. pp. 209-213--Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-205--Marquardsen, Der Trent-Fall (1862), pp. 58-71--Hirsch, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1897), pp. 42-55--Takahashi, International Law during the Chino-Japanese War (1899), pp. 52-72--Vetzel, De la contrebande par analogie en droit maritime internationale (1901)--Atherley-Jones, Commerce in War (1906), pp. 304-315--Hirschmann, Das internationale Prisenrecht (1912), §§ 31-32--See also the monographs quoted above at the commencement of § 391, and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, articles 45-47.
[Sidenote: Unneutral service in general.]
§ 407. Before the Declaration of London the term unneutral service was used by several writers with reference to the carriage of certain persons and despatches for the enemy on the part of neutral vessels. The term has been introduced in order to distinguish the carriage of persons and despatches for the enemy from the carriage of contraband, as these were often confounded with each other. Since contraband consists of certain goods only and never of persons or despatches, a vessel carrying persons and despatches for the enemy is not thereby actually carrying contraband.[858] And there is another important difference between the two. Carriage of contraband need not necessarily, and in most cases actually does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always takes place in the direct service of the enemy, and, consequently, represents a much more intensive assistance of, and a much more intimate connection with, the enemy than carriage of contraband. For these reasons a distinct treatment of carriage of contraband, on the one hand, and carriage of persons and despatches, on the other, was certainly considered desirable by many publicists. Those writers who did not adopt the term unneutral service, on account of its somewhat misleading character, preferred[859] the expression analogous of contraband, because in practice maritime transport for the enemy was always treated in analogy with, although not as, carriage of contraband.
[Footnote 858: This was recognised in the case of the Yangtsze Insurance Association v. Indemnity Mutual Marine Assurance Company, L.R. (1908), 1 K.B. 910 and 2 K.B. 504.]
[Footnote 859: It was also preferred in the first edition of this work. But it was necessary to abandon further resistance on account of the fact that after the official adoption, in the translation of the Declaration of London, of the term unneutral service it was useless to oppose it.]
The Declaration of London puts the whole matter upon a new and very much enlarged basis, for Chapter III. treats in articles 45 to 47, under the heading De l'assistance hostile--the official English translation of which is unneutral service--not only of the carriage of persons for the enemy on the part of a neutral vessel, but also of the transmission of intelligence in the interest of the enemy, the taking of a direct part in the hostilities, and a number of other acts on the part of a neutral vessel. Accordingly the Declaration of London makes a distinction between two kinds of unneutral service, meting out for the one a treatment analogous in a general way to contraband, and for the other a treatment analogous to that of enemy merchant vessels. Carriage of individual members of the armed forces of the enemy and a certain case of transmission of intelligence in the interest of the enemy constitute the first kind, and four groups of acts creating enemy character for the vessel concerned constitute the second kind.[860]
[Footnote 860: Although--see above, §§ 173 and 174--prevention of unneutral service to the enemy is a means of sea warfare, it chiefly concerns neutral commerce, and is, therefore, more conveniently treated with neutrality.]
[Sidenote: Carriage of Persons for the Enemy.]
§ 408. Either belligerent may punish neutral vessels for carrying, in the service of the enemy, certain persons.
Such persons included, according to the customary rules of International Law hitherto prevailing, not only members of the armed forces of the enemy, but also individuals who were not yet members of the armed forces but who would have become so as soon as they reached their place of destination, and, thirdly, non-military individuals in the service of the enemy either in such a prominent position that they could be made prisoners of war, or who were going abroad as agents for the purpose of fostering the cause of the enemy. Thus, for instance, if the head of the enemy State or one of his cabinet ministers fled the country to avoid captivity, the neutral vessel that carried him could have been punished, as could also the vessel carrying an agent of the enemy sent abroad to negotiate a loan and the like. However, the mere fact that enemy persons were on board a neutral vessel did not in itself prove that these persons were carried by the vessel for the enemy and in his service. This was the case only when either the vessel knew of the character of the persons and nevertheless carried them, thereby acting in the service of the enemy, or when the vessel was directly hired by the enemy for the purpose of transport of the individuals concerned. Thus, for instance, if able-bodied men booked their passages on a neutral vessel to an enemy port with the secret intention of enlisting in the forces of the enemy, the vessel could not be considered as carrying persons for the enemy; but she could be so considered if an agent of the enemy openly booked their passages. Thus, further, if the fugitive head of the enemy State booked his passage under a false name, and concealed his identity from the vessel, she could not be considered as carrying a person for the enemy; but she could be so considered if she knew whom she was carrying, because she was then aware that she was acting in the service of the enemy. As regards a vessel directly hired by the enemy, there could be no doubt that she was acting in the service of the enemy. Thus the American vessel Orozembo[861] was in 1807, during war between England and the Netherlands, captured and condemned, because, although chartered by a merchant in Lisbon ostensibly to sail in ballast to Macao and to take from there a cargo to America, she received by order of the charterer three Dutch officers and two Dutch civil servants, and sailed, not to Macao, but to Batavia. And the American vessel Friendship[862] was likewise in 1807, during war between England and France, captured and condemned, because she was hired by the French Government to carry ninety shipwrecked officers and sailors home to a French port.
[Footnote 861: 6 C. Rob. 430.]
[Footnote 862: 6 C. Rob. 420.]
According to British practice hitherto prevailing, a neutral vessel was considered as carrying persons in the service of the enemy even if she were, through the application of force, constrained by the enemy to carry the persons, or if she were in bona-fide ignorance of the status of her passengers. Thus, in 1802, during war between Great Britain and France, the Swedish vessel Carolina[863] was condemned by Sir William Scott for having carried French troops from Egypt to Italy, although the master endeavoured to prove that the vessel was obliged by force to render the transport service. And the above-mentioned vessel Orozembo was condemned[864] by Sir William Scott, although her master was ignorant of the service for the enemy on which he was engaged: "... In cases of bona-fide ignorance there may be no actual delinquency; but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done or at least repeated," said Sir William Scott.[865]
[Footnote 863: 4 C. Rob. 256.]
[Footnote 864: See Phillimore, III. § 274, and Holland, Prize Law, §§ 90-91. Hall, § 249, p. 700, note 2, reprobates the British practice. During the Russo-Japanese War only one case of condemnation of a neutral vessel for carrying persons for the enemy is recorded, that of the Nigretia, a vessel which endeavoured to carry into Vladivostock the escaped captain and lieutenant of the Russian destroyer Ratzoporni; see Takahashi, pp. 639-641.]
[Footnote 865: It should be mentioned that, according to the customary law hitherto prevailing, the case of diplomatic agents sent by the enemy to neutral States was an exception to the rule that neutral vessels may be punished for carrying agents sent by the enemy. The importance of this exception became apparent in the case of the Trent which occurred during the American War. On November 8, 1861, the Federal cruiser San Jacinto stopped the British mail steamer Trent on her voyage from Havana to the British port of Nassau, in the Bahamas, forcibly took off Messrs. Mason and Slidell, together with their secretaries, political agents sent by the Confederate States to Great Britain and France, and then let the vessel continue her voyage. Great Britain demanded their immediate release, and the United States at once granted this, although the ground on which release was granted was not identical with the ground on which release was demanded. The Government of the United States maintained that the removal of these men from the vessel without bringing her before a Prize Court for trial was irregular, and, therefore, not justified, whereas release was demanded on the ground that a neutral vessel could not be prevented from carrying diplomatic agents sent by the enemy to neutrals. Now diplomatic agents in the proper sense of the term these gentlemen were not, because although they were sent by the Confederate States, the latter were not recognised as such, but only as a belligerent Power. Yet these gentlemen were political agents of a quasi-diplomatic character, and the standpoint of Great Britain was for this reason perhaps correct. The fact that the Governments of France, Austria, and Prussia protested through their diplomatic envoys in Washington shows at least that neutral vessels may carry unhindered diplomatic agents sent by the enemy to neutrals, however doubtful it may be whether the same is valid regarding agents with a quasi-diplomatic character. See Parliamentary Papers, 1862, North America, N. 5; Marquardsen, Der Trent Fall (1862); Wharton, § 374; Moore, VII. § 1265; Phillimore, II. §§ 130-130A; Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 187-205; Harris, The Trent Affair (1896).]
According to the Declaration of London neutral merchantmen may, apart from the case of the carriage of persons who in the course of the voyage directly assist the operations of the enemy, only be considered to render unneutral service by carrying such enemy persons as are actually already members of the armed forces of the enemy. Article 45 makes it quite apparent, through using the words "embodied in the armed forces," that reservists and the like who are on their way to the enemy country for the purpose of there joining the armed forces, do not belong to such enemy persons as a neutral vessel may not carry without exposing herself to punishment for rendering unneutral service to the enemy. And four different cases of carrying enemy persons must be distinguished according to the Declaration of London, namely: that of a neutral vessel exclusively engaged in the transport of enemy troops; that of a vessel transporting a military detachment of the enemy; that of a vessel transporting one or more persons who in the course of the voyage directly assist the operations of the enemy; that of a vessel transporting, on a voyage specially undertaken, individual members of the armed forces of the enemy.
(1) According to article 46, No. 4, a neutral vessel exclusively intended at the time for the transport of enemy troops acquires thereby enemy character. This case will be considered with others of the same kind below in § 410.
(2) In case a vessel, although she is not exclusively therefor destined, and although she is not on a voyage specially undertaken for that purpose, transports, to the knowledge of either the owner or the charterer or the master, a military detachment of the enemy, she is, according to article 45, No. 2, considered to render unneutral service for which she may be punished. Accordingly, if to the knowledge of either the owner or the charterer or the master, a neutral vessel in the ordinary course of her voyage carries a military detachment of the enemy, she is liable to be seized for unneutral service.
(3) In case a neutral vessel, to the knowledge of either the owner or the charterer or the master, carries one or more persons--subjects of one of the belligerents or of a neutral Power--who in the course of the voyage directly assist the operations of the enemy in any way, for instance by signalling or sending message by wireless telegraphy, she is, according to article 45, No. 2, likewise liable to seizure for rendering unneutral service.
(4) In case a neutral vessel carries individual members of the armed forces of the enemy, she is, according to article 45, No. 1, then only liable to seizure if she is on a voyage specially undertaken for such transport, that means, if she has been turned from her ordinary course and has touched at a port outside her ordinary course for the purpose of embarking, or is going to touch at a port outside her ordinary course for the purpose of disembarking, the enemy persons concerned. A liner, therefore, carrying individual members of the armed forces of the enemy in the ordinary course of her voyage may not be considered to be rendering unneutral service and may not be seized. However, according to article 47, a neutral vessel carrying members of the armed forces of the enemy while pursuing her ordinary course, may be stopped for the purpose of taking off such enemy persons and making them prisoners of war (see below, § 413).
[Sidenote: Transmission of Intelligence to the Enemy.]
§ 409. Either belligerent may punish neutral merchantmen for transmission of intelligence to the enemy.
According to customary rules hitherto in force, either belligerent might punish neutral vessels for the carriage of political despatches from or to the enemy, and especially for such despatches as were in relation to the war. But to this rule there were two exceptions. Firstly, on the ground that neutrals have a right to demand that their intercourse with either belligerent be not suppressed: a neutral vessel might not, therefore, be punished for carrying despatches from the enemy to neutral Governments, and vice versa,[866] and, further, despatches from the enemy Government to its diplomatic agents and consuls abroad in neutral States, and vice versa.[867] Secondly, on account of article 1 of Convention XI., by which postal correspondence is inviolable, except in the case of violation of blockade, the correspondence destined for, or proceeding from, the blockaded port. However, the mere fact that a neutral vessel had political despatches to or from the enemy on board did not by itself prove that she was carrying them for and in the service of the enemy. Just as in the case of certain enemy persons on board, so in the case of despatches, the vessel was only considered to be carrying them in the service of the enemy if either she knew of their character and had nevertheless taken them on board, or if she was directly hired for the purpose of carrying them. Thus, the American vessel Rapid,[868] which was captured in 1810 during the war between Great Britain and the Netherlands, on her voyage from New York to Tonningen, for having on board a despatch for a Cabinet Minister of the Netherlands hidden under a cover addressed to a merchant at Tonningen, was released by the Prize Court. On the other hand, the Atalanta,[869] which carried despatches in a tea chest hidden in the trunk of a supercargo, was condemned.[870]
[Footnote 866: The Caroline (1808), 6 C. Rob. 461.]
[Footnote 867: The Madison (1810), Edwards, 224.]
[Footnote 868: Edwards, 228.]
[Footnote 869: 6 C. Rob. 440.]
[Footnote 870: British practice seems unsettled on the question as to whether the vessel must know of the character of the despatch which she is carrying. In spite of the case of the Rapid, quoted above, Holland, Prize Law, § 100, maintains that ignorance of the master of the vessel is no excuse, and Phillimore, III. § 272, seems to be of the same opinion.]
According to the Declaration of London the carriage of despatches for the enemy may only be punished in case it falls under the category of transmitting intelligence to the enemy on the part of a neutral vessel. Two kinds of such transmission of intelligence must be distinguished:--
Firstly, according to article 46, No. 4, a neutral vessel exclusively intended for the transmission of intelligence to the enemy acquires thereby enemy character; this will be considered with other cases of the same kind below in § 410.
Secondly, according to article 45, No. 1, a neutral vessel may be seized for transmitting intelligence to the enemy if she is on a voyage specially undertaken for such transmission, that is to say, if she has been turned from her ordinary course and has touched or is going to touch at a port outside her ordinary course for the purpose of transmitting intelligence to the enemy. A liner, therefore, transmitting intelligence to the enemy in the ordinary course of her voyage may not be considered to be rendering unneutral service and may not be punished. However, self-preservation would in a case of necessity justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy.[871]
[Footnote 871: See below, § 413.]
The conception "transmission of intelligence" is not defined by the Declaration of London. It certainly means not only oral transmission of intelligence, but also the transmission of despatches containing intelligence. The transmission of any political intelligence of value to the enemy, whether or no the intelligence is in relation to the war, must be considered unneutral service, the case excepted in which intelligence is transmitted from the enemy to neutral Governments, and vice versa, and, further, from the enemy Government to its diplomatic agents and consuls abroad in neutral States. And it must be emphasised that, although a vessel may be seized and punished for unneutral service, according to article 1 of Convention XI. of the Second Hague Peace Conference the postal correspondence of neutrals or belligerents, whatever its character, found on board is inviolable.
[Sidenote: Unneutral Service creating Enemy Character.]
§ 410. In contradistinction to cases of unneutral service which are similar to carriage of contraband, the Declaration of London enumerates in article 46 four cases of such kinds of unneutral service as vest neutral vessels with enemy character.[872]
(1) There is, firstly, the case of a neutral merchantman taking a direct part in the hostilities. This may occur in several ways, but such vessel in every case loses her neutral and acquires enemy character, just as a subject of a neutral Power who enlists in the ranks of the enemy armed forces. But a distinction must be made between taking a direct part in the hostilities, for instance rendering assistance to the enemy fleet during battle, on the one hand, and, on the other, acts of a piratical character. If a neutral merchantman--see above, §§ 85, 181, and 254--without Letters of Marque during war and from hatred of one of the belligerents, were to attack and sink merchantmen of such belligerent, she would have to be considered, and could therefore be treated as, a pirate.
(2) There is, secondly, the case of a neutral vessel which sails under the orders or the control of an agent placed on board by the enemy Government. The presence of such agent, and the fact that the vessel sails under his orders or control shows clearly that she is really for all practical purposes part and parcel of the enemy forces.
(3) There is, thirdly, the case of a neutral vessel in the exclusive employment of the enemy. This may occur in two different ways: either the vessel may be rendering a specific service in the exclusive employment of the enemy, as, for instance, did those German merchantmen during the Russo-Japanese War which acted as colliers for the Russian fleet en route for the Far East; or the vessel may be chartered by the enemy so that she is entirely at his disposal for any purpose he may choose, whether such purpose is or is not connected with the war.[873]
(4) There is, fourthly and lastly, the case of a neutral merchantman exclusively intended at the time either for the transport of enemy troops or for the transmission of intelligence for the enemy. This case is different from the case--provided for by article 45, No. 1--of a vessel on a voyage specially undertaken with a view to the carriage of individual members of the armed forces of the enemy. Whereas the latter is a case of unneutral service rendered by a vessel which turns from her course for the purpose of rendering specific service, the former is a case in which the vessel is exclusively and for the time being permanently intended and devoted to the rendering of unneutral service. For the time being she is, therefore, actually part and parcel of the enemy marine. For this reason she is considered to be rendering unneutral service, and to have lost her neutral character, even if, at the moment an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence. The fact is decisive that she is for the time being exclusively intended for such unneutral service, whether or no she is at every moment really engaged in rendering such service. And it makes no difference, whether the vessel is engaged by the enemy and paid for the transport of troops or the transmission of intelligence, or whether she renders the service[874] gratuitously.
[Footnote 872: See above, § 89 (1), p. 113.]
[Footnote 873: Two cases of interest occurred in 1905, during the Russo-Japanese War. The Industrie, a German vessel, and the Quang-nam, a French vessel, were captured and condemned by the Japanese for being in the employ of Russia as reconnoitring vessels, although the former pretended to collect news in the service of the Chefoo Daily News, and the latter pretended to be a cargo vessel plying between neutral ports. See Takahashi, pp. 732 and 735.]
[Footnote 874: As regards the meaning of the term transmission of intelligence, see above, § 409.]
II
CONSEQUENCES OF UNNEUTRAL SERVICE
See the literature quoted above at the commencement of § 407.
[Sidenote: Capture for Unneutral Service.]
§ 411. According to customary rules hitherto prevailing, as well as according to the Declaration of London, a neutral vessel may be captured if visit or search establish the fact, or grave suspicion of the fact, that she is rendering unneutral service to the enemy. And such capture may take place anywhere throughout the range of the Open Sea and the territorial maritime belt of either belligerent.
Stress must be laid on the fact that mail steamers are on principle not exempt from capture for unneutral service. Although, according to article 1 of Convention XI., the postal correspondence of belligerents as well as of neutrals, whatever its official or private character, found on board a vessel on the sea is inviolable,[875] and a vessel may never, therefore, be considered to be rendering unneutral service by carrying amongst her postal correspondence despatches containing intelligence for the enemy, a mail steamer is nevertheless--see article 2 of Convention XI.--not exempt from the laws and customs of naval war respecting neutral merchantmen. A mail boat is, therefore, quite as much as any other merchantman, exposed to capture for rendering unneutral service.
[Footnote 875: See above, §§ 191 and 319.]
However this may be, capture is allowed only so long as the vessel is in delicto, that is during the time in which she is rendering the unneutral service concerned or immediately afterwards while she is being chased for having rendered unneutral service. A neutral vessel may not, therefore, be captured after the completion of a voyage specially undertaken for the purpose of transporting members of the armed forces of the enemy, or of transmitting intelligence for the enemy, or after having disembarked the military detachment of the enemy and the persons directly assisting the operations of the enemy in the course of the voyage whom she was transporting. And it must be specially emphasised that even such neutral vessel as had acquired--see article 46 of the Declaration of London--enemy character by rendering unneutral service, ceases to be in delicto after her unneutral service has come to an end. Thus, for instance, a neutral vessel which took a direct part in hostilities[876] may not afterwards be captured, nor may a vessel which has disembarked the agent of the enemy Government under whose orders or control she was navigating.
[Footnote 876: Provided she did not--see above, § 410 (1)--commit acts of a piratical character; for such acts she may always be punished.]
[Sidenote: Penalty for Unneutral Service.]
§ 412. According to the practice hitherto prevailing, a neutral vessel captured for carriage of persons or despatches in the service of the enemy could be confiscated. Moreover, according to British[877] practice, such part of the cargo as belonged to the owner of the vessel was likewise confiscated.[878] And if the vessel was not found guilty of carrying persons or despatches in the service of the enemy, and was not therefore condemned, the Government of the captor could nevertheless detain the persons as prisoners of war and confiscate the despatches, provided the persons and despatches concerned were in any way of such a character as to make a vessel, which was cognisant of this character, liable to punishment for transporting them for the enemy.
[Footnote 877: The Friendship (1807), 6 C. Rob. 420; the Atalanta (1808), 6 C. Rob. 440. See Holland, Prize Law, §§ 95 and 105.]
[Footnote 878: See, however, the Hope (1808), 6 C. Rob. 463, note.]
The Declaration of London recognises these three rules. Articles 45 and 46 declare any vessel rendering any kind of unneutral service to the enemy liable to confiscation, and likewise declare such part of the cargo as belongs to the owner of the confiscated vessel liable to confiscation. And article 47 enacts that, although a neutral vessel may not be condemned because there are no grounds for her capture, the capturing State may nevertheless detain as prisoners of war any members of the armed forces of the enemy who were found on board the vessel. The case of despatches found on board is not mentioned by article 47, but there ought to be no doubt--see below, § 413--that the old customary rule that, although the vessel may not be condemned because there is no ground for capture, any despatches for the enemy found on board may, in analogy with article 47, be confiscated, provided such despatches are not part of the postal correspondence carried on board.
It must be emphasised that the mere fact that a neutral vessel is rendering unneutral service, is not sufficient for her condemnation; for in addition mens rea is required. Now as regards the four kinds of unneutral service which create enemy character, mens rea is obviously always in existence, and therefore always presumed to be present. For this reason article 46, in contradistinction to article 45, does not mention anything concerning the knowledge by the vessel of the outbreak of hostilities. But as regards the other cases of unneutral service, article 45 provides that the vessel may not be confiscated if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers concerned. On the other hand, a vessel is deemed, according to article 45, to be aware of the existence of a state of war if she left an enemy port subsequent to the outbreak of hostilities, or a neutral port subsequent to the notification of the outbreak of hostilities to the Power to which such port belongs, provided that such notification was made in sufficient time.
Although the Declaration of London metes out the same punishment for the several kinds of unneutral service which it enumerates, it nevertheless makes a distinction, apart from the penalty, with regard to the treatment of the vessels captured for rendering unneutral service.
Article 45 provides for a neutral vessel captured for having rendered either of the two kinds of unneutral service mentioned in this article a treatment which is, in a general way, the same as that for a neutral vessel captured for the carriage of contraband. This means that the vessel does not lose her neutral character, and must under all circumstances and conditions be taken before a Prize Court, unless--see article 49 of the Declaration of London--the taking of her into a port of the capturing State would involve danger to the safety of the capturing vessel or to the success of the military operations in which she is engaged at the time. And an appeal from the national Prize Courts may be brought to the International Prize Court.
Article 46, on the other hand, provides, apart from the penalty, a treatment for a vessel captured for having rendered any of the four kinds of unneutral service enumerated in this article which, in a general way, is the same as that for a captured enemy merchantman. This means that such vessel acquires enemy character. Accordingly (see above, § 89) all enemy goods on the vessel may be seized, all goods on board will be presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Further, the rules of articles 48 and 49 of the Declaration of London concerning the destruction of neutral vessels do not apply. Again, no appeal may be brought from the national Prize Courts to the International Prize Court by the owner of the ship except concerning the one question only, namely, whether the act of which she is accused has the character of unneutral service.[879]
[Footnote 879: The question as to whether, if the vessel has been destroyed by the captor, the innocent owners of the neutral goods on board may claim compensation, has to be decided in the same way as the question as to whether the owners of neutral goods on a destroyed enemy merchantman have a claim to compensation; see above, § 194.]
[Sidenote: Seizure of Enemy Persons and Despatches without Seizure of Vessel.]
§ 413. According to the British[880] and American practice, as well as that of some other States, which has hitherto prevailed, whenever a neutral vessel was stopped for carrying persons or despatches for the enemy, these could not be seized unless the vessel were seized at the same time. The release, in 1861, during the American Civil War, of Messrs. Mason[881] and Slidell, who had been forcibly taken off the Trent, while the ship herself was allowed to continue her voyage, was based, by the United States, on the fact that the seizure of these men without the seizure of the vessel was illegal. Since, according to the Declaration of London, a neutral vessel rendering unneutral service of any kind is liable to be confiscated, it is evident that in such a case the enemy persons and despatches concerned may not be taken off the vessel unless the vessel herself is seized and brought into a port of a Prize Court. However, article 47 provides that any member of the armed forces of the enemy found on board a neutral merchant vessel may be taken off and made a prisoner of war, although there may be no ground for the capture of the vessel. Therefore, if a vessel carries individual members of the armed forces of the enemy in the ordinary course of her voyage,[882] or if she transports a military detachment of the enemy and the like without being aware of the outbreak of hostilities, the members of the armed forces of the enemy on board may be seized, although the vessel herself may not be seized, as she is not rendering unneutral service.
[Footnote 880: See Holland, Prize Law, § 104.]
[Footnote 881: See above, § 408, p. 519, note 3.]
[Footnote 882: Accordingly, in January 1912, during the Turco-Italian War, the Italian gunboat Volturno, after having overhauled, in the Red Sea, the British steamer Africa going from Hodeida to Aden, took off and made prisoners of war Colonel Riza Bey and eleven other Turkish officers. Although the Declaration of London is not yet ratified by Great Britain, she did not protest. The case of the Manouba ought likewise to be mentioned here. This French steamer, which plies between Marseilles and Tunis, was stopped on January 16, 1912, by an Italian cruiser in the Mediterranean, and twenty-nine Turkish passengers, who were supposed to be Turkish officers on their way to the theatre of war, were forcibly taken off and made prisoners. On the protest of France, the captives were handed over to her in order to ascertain whether they were members of the Turkish forces, and it was agreed between the parties that the case should be settled by an arbitral award of the Permanent Court of Arbitration at the Hague, Italy asserting that she had only acted in accordance with article 47 of the Declaration of London.]
The Declaration of London does not mention the case of enemy despatches embodying intelligence found on board such a neutral vessel as may not herself be captured for such carriage. For instance, in the case of a mail steamer pursuing her ordinary course and carrying a despatch of the enemy not in her mail bags but separately, the vessel may not, according to article 45, be seized. In this, and similar cases, may despatches be seized without the seizure of the vessel? It has been pointed out above, § 409, that, in a case of necessity, self-preservation would justify a belligerent in temporarily detaining such a liner for the purpose of preventing the intelligence from reaching the enemy. This certainly fits the case of a vessel transmitting oral intelligence. But if a vessel carried despatches, the necessity of detaining her ceases through seizure of the despatches themselves. The question--see above, § 412--as to whether in such cases the despatches may be seized without seizure of the vessel ought, therefore, in analogy with article 47 of the Declaration of London, to be answered in the affirmative.
Quite different from the case of seizure of such enemy persons and despatches as a vessel cannot carry without exposing herself to punishment, is the case[883] where a vessel has such enemy persons and despatches on board as she is allowed to carry, but whom a belligerent believes it to be necessary in the interest of self-preservation to seize. Since necessity in the interest of self-preservation is, according to International Law, an excuse[884] for an illegal act, a belligerent may seize such persons and despatches, provided that such seizure is not merely desirable, but absolutely necessary[885] in the interest of self-preservation, as, for instance, in the case where an Ambassador of the enemy on board a neutral vessel is on the way to submit to a neutral a draft treaty of alliance injurious to the other belligerent.
[Footnote 883: See Hall, § 253; Rivier, II. p. 390.]
[Footnote 884: See above, vol. I. § 129.]
[Footnote 885: See above, vol. I. § 130.]
VI. VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS
I
VISITATION
Bynkershoek, Quaest. jur. pub. I. c. 14--Vattel, III. § 114--Hall, §§ 270-276--Manning, pp. 433-460--Phillimore, III. §§ 322-344--Twiss, II. §§ 91-97--Halleck, II. pp. 255-271--Taylor, §§ 685-689--Wharton, III. §§ 325 and 346--Wheaton, §§ 524-537--Moore, VII. §§ 1199-1205--Bluntschli, §§ 819-826--Heffter, §§ 167-171--Geffcken in Holtzendorff, IV. pp. 773-781--Klüber, §§ 293-294--G. F. Martens, II. §§ 317 and 321--Ullmann, § 196--Bonfils, Nos. 1674-1691--Despagnet, Nos. 717-721--Rivier, II. pp. 423-426--Nys, III. pp. 682-692--Calvo, V. §§ 2939-2991--Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877--Martens, II. § 137--Kleen, II. §§ 185-199, 209--Gessner, pp. 278-332--Boeck, Nos. 767-769--Dupuis, Nos. 239-252, and Guerre, Nos. 189-204--Bernsten, § 11--Nippold, II. § 35--Perels, §§ 52-55--Testa, pp. 230-242--Ortolan, II. pp. 214-245--Hautefeuille, III. pp. 1-299--Holland, Prize Law, §§ 1-17, 155-230--U.S. Naval War Code, articles 30-33--Schlegel, Sur la visite des vaisseaux neutres sous convoi (1800)--Mirbach, Die völkerrechtlichen Grundsätze des Durchsuchungsrechts zur See (1903)--Loewenthal, Das Untersuchungsrecht des internationalen Seerechts im Krieg und Frieden (1905)--Atherley-Jones, Commerce in War (1906), pp. 299-360--Hirschmann, Das internationale Prisenrecht (1912), §§ 33-34--Duboc in R.G. IV. (1897), pp 382-403--See also the monographs quoted above at the commencement of § 391, Bulmerincq's articles on Le droit des prises maritimes in R.I. X-XIII. (1878-1881), and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, article 63.
[Sidenote: Conception of Right of Visitation.]
§ 414. Right of visitation[886] is the right of belligerents to visit and eventually search neutral merchantmen for the purpose of ascertaining whether these vessels really belong to the merchant marine of neutrals, and, if this is found to be the case, whether they are attempting to break a blockade, or carry contraband, or render unneutral service to the enemy. The right of visit and search was already mentioned in the Consolato del Mare, and although it has often[887] been contested, its raison d'être is so obvious that it has long been universally recognised in practice. It is indeed the only means by which belligerents are able to ascertain whether neutral merchantmen intend to bring assistance to the enemy and to render him unneutral services.[888]
[Footnote 886: It must be borne in mind that this right of visitation is not an independent right but is involved in the right of either belligerent--see above, § 314--to punish neutral vessels breaking blockade, carrying contraband, and rendering unneutral service.]
[Footnote 887: See, for instance, Hübner, De la saisie des bâtiments neutres (1759), I. p. 227.]
[Footnote 888: Attention should be drawn to the Règlement international des prises maritimes, adopted at Heidelberg in 1887 by the Institute of International Law; §§ 1-29 regulate visit and search. See Annuaire, IX. (1888), p. 202.]
[Sidenote: Right of Visitation, by whom, when, and where exercised.]
§ 415. The right of visit and search may be exercised by all warships[889] of belligerents. But since it is a belligerent right, it may, of course, only be exercised after the outbreak and before the end of war. The right of visitation on the part of men-of-war of all nations in time of peace in a case of suspicion of piracy--see above, vol. I. § 266 (2)--has nothing to do with the right of visit and search on the part of belligerents. And since an armistice does not bring war to an end, and since, on the other hand, the exercise of the right of visitation is not an act of warfare, this right may be exercised during the time of a partial as well as of a general armistice.[890] The region where the right may be exercised is the maritime territorial belt of either belligerent, and, further, the Open Sea, but not the maritime territorial belt of neutrals. Whether the part of the Open Sea in which a belligerent man-of-war meets with a neutral merchantman is near or far away from that part of the world where hostilities are actually taking place makes no difference so long as there is suspicion against the vessel. The question as to whether the men-of-war of a belligerent may exercise the right of visitation in the maritime territorial belt of an ally is one between the latter and the belligerent exclusively, provided such an ally is already a belligerent.
[Footnote 889: It should be mentioned that privateers could also exercise the right of visit and search. But since even such States as have not acceded to the Declaration of Paris in practice no longer issue Letters of Marque, such a case will no longer occur.]
[Footnote 890: But this is not universally recognised. Thus, Hautefeuille, III. p. 91, maintains that during a general armistice the right of visitation may not be exercised, and § 5 of the Règlement international des prises maritimes of the Institute of International Law takes up the same attitude. It ought, likewise, to be mentioned that in strict law the right of visit and search may be exercised even after the conclusion of peace before the treaty of peace is ratified. But the above-mentioned § 5 of the Règlement international des prises maritimes declares this right to cease "avec les préliminaires de la paix." See below, § 436.]
[Sidenote: Only Private Vessels may be Visited.]
§ 416. During the nineteenth century it became universally recognised that neutral men-of-war are not objects of the right of visit and search of belligerents.[891] And the same is valid regarding public neutral vessels which sail in the service of armed forces, such as transport vessels, for instance. Doubt exists as to the position of public neutral vessels which do not sail in the service of armed forces, but sail for other purposes, as, for instance, mail-boats belonging to a neutral State. It is asserted[892] that, if commanded by an officer of the Navy, they must be treated in the same way as men-of-war, but that it is desirable to ask the commanders to give their word of honour assuring the absence of contraband and unneutral service.
[Footnote 891: In former times Great Britain tried to extend visitation to neutral men-of-war. See Manning, p. 455.]
[Footnote 892: See, for instance, Gessner, p. 297, and Perels, § 52, IV.]
[Sidenote: Vessels under Convoy.]
§ 417. Sweden in 1653, during war between Great Britain and the Netherlands, claimed that the belligerents ought to waive their right of visitation over Swedish merchantmen if the latter sailed under the convoy of a Swedish man-of-war whose commander asserted the absence of contraband on board the convoyed vessels. The Peace of Westminster in 1654 brought this war to an end, and in 1756 the Netherlands, then neutral, claimed the right of convoy. But it was not until the last quarter of the eighteenth century that the right of convoy was more and more insisted upon by Continental neutrals. During the American War of Independence in 1780, the Netherlands again claimed that right, and when they themselves in 1781 waged war against Great Britain, they ordered their men-of-war and privateers to respect the right of convoy. Between 1780 and 1800 treaties were concluded, in which Russia, Austria, Prussia, Denmark, Sweden, France, the United States of America, and other States recognised that right. But Great Britain always refused to recognise it, and in July 1800 the action of a British squadron in capturing a Danish man-of-war and her convoy of six merchantmen for resistance to visitation called the Second Armed Neutrality into existence. Yet Great Britain still resisted, and by article 4 of the "Maritime Convention" of St. Petersburg of June 17, 1801, she conceded to Russia only that vessels under convoy should not be visited by privateers. During the nineteenth century more and more treaties stipulating the right of convoy were concluded, but this right was not mentioned in the Declaration of Paris of 1856, and Great Britain refused to recognise it throughout the century. However, Great Britain abandoned her opposition at the Naval Conference of London of 1908-9, and the Declaration of London proposes to settle the matter by articles 61 and 62 in the following way:--
Neutral vessels under the convoy of a man-of-war flying the same flag are exempt from search and may not be visited if the commander of the convoy, at the request of the commander of the belligerent cruiser which desires to visit, gives, in writing, all information as to the character of the convoyed vessels and their cargoes which could be obtained by search. Should the commander of the belligerent man-of-war have reason to suspect that the confidence of the commander of the convoy has been abused, he may not himself resort to visit and search, but must communicate with the commander of the convoy. The latter must investigate the matter, and must record the result of his investigation in a report, a copy of which must be given to the commander of the belligerent cruiser. Should, in the opinion of the commander of the convoy, the facts stated in the report justify the capture of one or more of the convoyed vessels, he must withdraw protection from the offending vessels, and the belligerent cruiser may then capture them.
In case a difference of opinion arises between the commander of the convoy and the commander of the belligerent cruiser--for instance, with regard to the question as to whether certain goods are absolute or conditional contraband or as to whether the port of destination of a convoyed vessel is an ordinary commercial port or a port which serves as a base of supply for the armed forces of the enemy and the like--the commander of the belligerent cruiser has no power of overruling the decision of the commander of the convoy. He can only protest and report the case to his Government, which will settle the matter by means of diplomacy.
[Sidenote: No Universal Rules regarding Mode of Visitation.]
§ 418. There are no rules of International Law which lay down all the details of the formalities of the mode of visitation. A great many treaties regulate them as between the parties, and all maritime nations have given instructions to their men-of-war regarding these formalities. Thereby uniform formalities are practised with regard to many points, but regarding others the practice of the several States differs. Article 17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of many of the above-mentioned treaties regulating the formalities of visitation: "Les navires d'Espagne, pour éviter tout désordre, n'approcheront pas de plus près les Français que la portée du canon, et pourront envoyer leur petite barque ou chaloupe à bord des navires français et faire entrer dedans deux ou trois hommes seulement, à qui seront montrés les passeports par le maître du navire français, par lesquels il puisse apparoir, non seulement de la charge, mais aussi du lieu de sa demeure et résidence, et du nom tant du maître ou patron que du navire même, afin que, par ces deux moyens, on puisse connaître, s'il porte des marchandises de contrebande; et qu'il apparaisse suffisamment tant de la qualité du dit navire que de son maître ou patron; auxquelles passeports on devra donner entière foi et créance."
[Sidenote: Stopping of Vessels for the Purpose of Visitation.]
§ 419. A man-of-war which wishes to visit a neutral vessel must stop her or make her bring to. Although the chasing of vessels may take place under false colours, the right colours must be shown when vessels are stopped.[893] The order for stopping can be given[894] by hailing or by firing one or two blank cartridges from the so-called affirming gun, and, if necessary, by firing a shot across the bows of the vessel. If nevertheless the vessel does not bring to, the man-of-war is justified in using force to compel her to bring to. Once the vessel has been brought to, the man-of-war also brings to, keeping a reasonable distance. With regard to this distance, treaties very often stipulate either the range of a cannon shot or half such width or even a range beyond a cannon shot; but all this is totally impracticable.[895] The distance must vary according to the requirements of the case, and according to wind and weather.
[Footnote 893: See above, § 211.]
[Footnote 894: See above, vol. I. § 268.]
[Footnote 895: See Ortolan, II. p. 220, and Perels, § 53, pp. 284, 285.]
[Sidenote: Visit.]
§ 420. The vessel, having been stopped or brought to, is visited[896] by one or two officers sent in a boat from the man-of-war. These officers examine the papers of the vessel to ascertain her nationality, the character of her cargo and passengers, and, lastly, the ports from and to which she is sailing. Instead of visiting the merchantman and inspecting her papers on board, the practice is followed, by the men-of-war of some States, of summoning the master of the merchantman with his papers on board the former and examining the papers there.
[Footnote 896: See above, vol. I. § 268, and Holland, Prize Law, §§ 195-216.]
If everything is found in order and there is no suspicion of fraud, the vessel is allowed to continue her course, a memorandum of the visit having been entered in her log-book. On the other hand, if the inspection of the papers shows that the vessel is carrying contraband or rendering unneutral service, or that she is for another reason liable to capture, she is at once seized. But it may be that, although ostensibly everything is in order, there is nevertheless grave suspicion of fraud against the vessel. In such case she may be searched.
[Sidenote: Search.]
§ 421. Search is effected[897] by one or two officers, and eventually a few men, in presence of the master of the vessel. Care must be taken not to damage the vessel or the cargo, and no force whatever must be applied. No lock must be forcibly broken open by the search party, but the master is to be required to unlock it. If he fails to comply with the demand he is not to be forced thereto, since the master's refusal to assist the search in general, or that of a locked part of the vessel or of a locked box in particular, is at once sufficient cause for seizing the vessel. Search being completed, everything removed has to be replaced with care. If the search has satisfied the searching officers and dispelled all suspicion, a memorandum is entered in the log-book of the vessel, and she is allowed to continue her voyage. On the other hand, if search brought contraband or another cause for capture to light, the vessel is seized. But since search can never take place so thoroughly on the sea as in a harbour, it may be that, although search has disclosed no proof to bear out the suspicion, grave suspicion still remains. In such case she may be seized and brought into a port for the purpose of being searched there as thoroughly as possible. But the commander of a man-of-war seizing a vessel in such case must bear in mind that full indemnities must be paid to the vessel for loss of time and other losses sustained if finally she is found innocent. Therefore, after a search at sea has brought nothing to light against the vessel, seizure should take place only in case of grave suspicion.
[Footnote 897: See above, vol. I. § 269, and Holland, Prize Law, §§ 217-230.]
[Sidenote: Consequences of Resistance to Visitation.]
§ 422. If a neutral merchantman resists visit or search, she is at once captured, and may be confiscated. The question as to whether the vessel only, or also her cargo, could be confiscated for resistance has hitherto been controversial. According to British[898] and American theory and practice, the cargo as well as the vessel was liable to confiscation. But Continental[899] writers emphatically argued against this and maintained that the vessel only was liable to confiscation.
[Footnote 898: The Maria (1799), 1 C. Rob. 340.]
[Footnote 899: See Gessner, pp. 318-321.]
According to article 63 of the Declaration of London, resistance to the legitimate exercise of the right of visit, search, and capture involves in all cases the confiscation of the vessel, which by her forcible resistance has acquired enemy character (see above, § 89). For this reason such goods on board as belong to the master or owner of the vessel are treated as enemy goods and may be confiscated. Enemy goods on board may now likewise be confiscated, although when they were first shipped the vessel bore neutral character. Further, all goods on board are now presumed to be enemy goods, and the owners of neutral goods on board will have to prove the neutral character of their goods. Lastly, no appeal may be brought from the National Prize Courts to the International Prize Court by the owner of the ship except concerning the one question only, namely, as to whether there was justification for capturing her on the grounds of forcible resistance.
It must be emphasised that visit and search do not take place after a vessel has been captured for resistance, for the mere fact of resisting has imposed enemy character upon her, and the question is now irrelevant whether visit and search would show her to be guilty or innocent.
[Sidenote: What constitutes Resistance.]
§ 423. According to the practice hitherto prevailing,[900] and also according to the Declaration of London, a mere attempt on the part of a neutral merchantman to escape visitation does not in itself constitute resistance. Such vessel may be chased and compelled by force to bring to, and she cannot complain if, in the endeavour forcibly to compel her to bring to, she is damaged or accidentally sunk. If, after the vessel has been compelled to bring to, visit and search show her to be innocent, she must be allowed to proceed on her course.
[Footnote 900: The Maria (1799), 1 C. Rob. 340.]
Resistance to be penal must be forcible resistance. It constitutes resistance, therefore, if a vessel applies force in resisting any legitimate action by the belligerent cruiser which requires her to stop and to be visited and searched. The term forcible resistance is not defined in detail by article 63 of the Declaration of London. It is, consequently, not certain whether the actual application of force only, or also the refusal, on the part of the master, to show the ship papers or to open locked parts of the vessel or locked boxes, and similar acts, constitutes forcible resistance. The International Prize Court, if established, would have to develop a practice which would decide these points.
[Sidenote: Sailing under Enemy Convoy equivalent to Resistance.]
§ 424. Wheaton excepted, all writers would seem to agree that the fact of neutral merchantmen sailing under a convoy of enemy men-of-war is equivalent to forcible resistance on their part, whether they themselves intend to resist by force or not. But the Government of the United States of America in 1810 contested this principle. In that year, during war between Great Britain and Denmark, many American vessels sailing from Russia used to seek protection under the convoy of British men-of-war, whereupon Denmark declared all such American vessels to be good and lawful prizes. Several were captured without making any resistance whatever, and were condemned by Danish Prize Courts. The United States protested, and claimed indemnities from Denmark, and in 1830 a treaty between the parties was signed at Copenhagen,[901] according to which Denmark had to pay 650,000 dollars as indemnity. But in article 5 of this treaty the parties "expressly declare that the present convention is only applicable to the cases therein mentioned, and, having no other object, may never hereafter be invoked by one party or the other as a precedent or a rule for the future."[902]
[Footnote 901: Martens, N.R. VIII. p. 350.]
[Footnote 902: See Wheaton, §§ 530-537, and Taylor, § 693, p. 790. Wheaton was the negotiator of this treaty on the part of the United States.--With the case of neutral merchantmen sailing under enemy convoy, the other case--see above, § 185--in which neutral goods are placed on board an armed enemy vessel is frequently confused. In the case of the Fanny (1814), 1 Dodson, 443, Sir William Scott condemned neutral Portuguese property on the ground that placing neutral property on board an armed vessel was equal to resistance against visitation. But the Supreme Court of the United States of America, in the of the Nereide (1815), 9 Cranch, 388, held the contrary view. The Court was composed of four judges, of whom Story was one, and the latter dissented from the majority and considered the British practice correct. See Phillimore, III. § 341, and Wheaton, § 529.]
Article 63 of the Declaration of London does not--as was pointed out above in § 423--define the term forcible resistance, but it is to be expected that the practice of the International Prize Court would consider the sailing under enemy convoy equivalent to forcible resistance.
[Sidenote: Resistance by Neutral Convoy.]
§ 425. Since Great Britain did not, before agreeing to the Declaration of London, recognise the right of convoy and had always insisted upon the right of visitation to be exercised over neutral merchantmen sailing under the convoy of neutral men-of-war, the question has arisen as to whether such merchantmen are considered resisting visitation in case the convoying men-of-war only, and not the convoyed vessels themselves, offer resistance. British practice has answered the question in the affirmative. The rule was laid down in 1799[903] and in 1804[904] by Sir William Scott in the cases of Swedish vessels captured while sailing under the convoy of a Swedish man-of-war.
[Footnote 903: The Maria, 1 C. Rob. 340.]
[Footnote 904: The Elsebe, 5 C Rob. 173.]
Since Great Britain--see above, § 417--has abandoned her opposition to the right of convoy and has agreed to articles 61 and 62 of the Declaration of London which lay down rules concerning the matter, the resistance by a neutral convoy to visitation may not, under ordinary circumstances, be considered to be resistance on the part of the convoyed neutral merchantman. If, however, the commander of a convoy, after having refused to give the written information mentioned in article 61 or to allow the investigation mentioned in article 62, forcibly resists visitation of the convoyed merchantmen by a belligerent cruiser, the question as to whether resistance by a convoy is equivalent to resistance by a convoyed vessel, may even under the Declaration of London arise.
[Sidenote: Deficiency of Papers.]
§ 426. Since the purpose of visit is to ascertain the nationality of a vessel, the character of her cargo and passengers, and the ports from and to which she is sailing, it is obvious that this purpose cannot be realised in case the visited vessel is deficient in her papers. As stated above in Vol. I. § 262, every merchantman ought to carry the following papers: (1) A certificate of registry or a sea-letter (passport); (2) the muster-roll; (3) the log-book; (4) the manifest of cargo; (5) bills of lading, and (6) if chartered, the charter-party. Now, if a vessel is visited and cannot produce one or more of the papers mentioned, she is suspect. Search is, of course, admissible for the purpose of verifying the suspicion, but it may be that, although search has not produced any proof of guilt, the suspicion is not dispelled. In such case she may be seized and brought to a port for thorough examination. But, with the exception of the case that she cannot produce either certificate of registry or a sea-letter (passport), she ought not to be confiscated for deficiency in papers only. Yet, if the cargo is also suspect, or if there are other circumstances which increase the suspicion, confiscation would be, I believe, in the discretion of the Prize Court.
The Declaration of London does not mention the point, and the International Prize Court would, therefore, have to evolve a system of rules to be applied in cases concerned.
[Sidenote: Spoliation, Defacement, and Concealment of Papers.]
§ 427. Mere deficiency of papers does not arouse the same suspicion which a vessel incurs if she destroys[905] or throws overboard any of her papers, defaces them or conceals them, and in especial in case the spoliation of papers takes place at the time when the visiting vessel comes in sight. Whatever her cargo may be, a vessel may at once be seized without further search so soon as it becomes apparent that spoliation, defacement, or concealment of papers has taken place. The practice of the several States has hitherto differed with regard to other consequences of spoliation, and the like, of papers, but confiscation is certainly admissible in case other circumstances increase the suspicion.[906]
[Footnote 905: The Hunter (1815), 1 Dodson, 480.]
[Footnote 906: See the case of the Apollo in Calvo, V. § 2989.]
The Declaration of London does not mention the case of spoliation of papers, and it would therefore be the task of the International Prize Court to evolve a uniform practice concerning the subject.
[Sidenote: Double and False Papers.]
§ 428. The highest suspicion is aroused through the fact that a visited vessel carries double papers, or false[907] papers, and such vessel may certainly be seized. But the practice of the several States has hitherto differed with regard to the question whether confiscation is admissible for the mere fact of carrying double or false papers. Whereas the practice of some States, as Russia and Spain, answered the question in the affirmative, British[908] and American[909] practice took a more lenient view, and condemned such vessels only on a clear inference that the false or double papers were carried for the purpose of deceiving the belligerent by whom the capture was made, but not in other cases.[910]
[Footnote 907: The Sarah (1801), 3 C. Rob. 330.]
[Footnote 908: The Eliza and Katy (1805), 6 C. Rob. 192.]
[Footnote 909: The St. Nicholas (1816), 1 Wheaton, 417.]
[Footnote 910: See Halleck, II. p. 271; Hall, § 276; Taylor, § 690.]
Since the Declaration of London does not mention the case of double or false papers, it would likewise be the task of the International Prize Court to evolve a uniform practice.
II
CAPTURE
Hall, § 277--Lawrence, § 191--Phillimore, III. §§ 361-364--Twiss, II. §§ 166-184--Halleck, II. pp. 362-391--Taylor, § 691--Moore, VII. §§ 1206-1214--Bluntschli, § 860--Heffter, §§ 171, 191, 192--Geffcken in Holtzendorff, IV. pp. 777-780--Ullmann, § 196--Rivier, II. pp. 426-428--Nys, III. pp. 697-709--Calvo, V. §§ 3004-3034--Fiore, III. Nos. 1644-1657, and Code, Nos. 1878-1889--Martens, II. §§ 126-137--Kleen, II. §§ 203-218--Gessner, pp. 333-356--Boeck, Nos. 770-777--Dupuis, Nos. 253-281, and Guerre, Nos. 205-217--Bernsten, § 11--Nippold, II. § 35--Perels, § 55--Testa, pp. 243-244--Hautefeuille, III. pp. 214-299--Holland, Prize Law, §§ 231-314--U.S. Naval War Code, articles 46-50--Atherley-Jones, Commerce in War (1906), pp. 361-646--Hirschmann, Das internationale Prisenrecht (1912), §§ 35-37--See also the monographs quoted above at the commencement of § 391, Bulmerincq's articles on Le droit des prises maritimes in R.I. X-XIII. (1878-1881), and the General Report presented to the Naval Conference of London on behalf of its Drafting Committee, articles 48-54.
[Sidenote: Grounds and Mode of Capture.]
§ 429. From the statements given above in §§ 368-428 regarding blockade, contraband, unneutral service, and visitation, it is obvious that capture may take place either because the vessel, or the cargo, or both, are liable to confiscation, or because grave suspicion demands a further inquiry which can be carried out in a port only. Both cases are alike so far as all details of capture are concerned, and in the latter case Prize Courts may pronounce capture to be justified, although no ground for confiscation of either vessel or cargo, or both, has been detected.
The mode of capture is the same as described above in § 184 regarding capture of enemy vessels.[911]
[Footnote 911: The Règlement international des prises maritimes, adopted by the Institute of International Law at its meeting at Heidelberg in 1887, regulates capture in §§ 45-62; see Annuaire, IX. (1888), p. 204.]
[Sidenote: Effect of Capture of Neutral Vessels, and their Conduct to Port.]
§ 430. The effect of capture of neutral vessels is in every way different from the effect of capture of enemy vessels,[912] since the purpose of capture differs in these two cases. Capture of enemy vessels is made for the purpose of appropriating them in the exercise of the right of belligerents to appropriate all enemy property found on the Open Sea or in the maritime territorial belt of either belligerent. On the other hand, neutral merchantmen are captured for the purpose of confiscation of vessel or cargo, or both, as punishment for certain special acts, the punishment to be pronounced by a Prize Court after a thorough investigation into all the circumstances of the special case. Therefore, although the effect of capture of neutral vessels is that the vessels, the individuals, and the goods thereon are placed under the captor's authority, her officers and crew never become prisoners of war. They are indeed to be detained as witnesses for the trial of the vessel and cargo, but nothing stands in the way of releasing such of them as are not wanted for that purpose. As regards passengers, if any, they have to be released as soon as possible, with the exception of those enemy persons who may be made prisoners of war.
[Footnote 912: See above, § 185.]
Regarding the conduct of captured neutral vessels to a port of a Prize Court, the same is valid as regards conduct of captured enemy vessels[913] to such port.
[Footnote 913: See above, § 193.]
[Sidenote: Destruction of Neutral Prizes.]
§ 431. That as a rule captured neutral vessels may not be sunk, burned, or otherwise destroyed has always been universally recognised just as that captured enemy merchantmen may not as a rule be destroyed. But up to the time of the agreement on the Declaration of London it was a moot question whether the destruction of captured neutral vessels was likewise exceptionally allowed instead of bringing them before a Prize Court. British[914] practice did not, as regards the neutral owner of the vessel, hold the captor justified in destroying a vessel, however exceptional the case may have been, and however meritorious the destruction of the vessel may have been from the point of view of the Government of the captor. For this reason, should a captor, for any motive whatever, have destroyed a neutral prize, full indemnities had to be paid to the owner, although, if brought into a port of a Prize Court, condemnation of vessel and cargo would have been pronounced beyond doubt. The rule was, that a neutral prize must be abandoned in case it could not, for any reason whatever, be brought to a port of a Prize Court. But the practice of other States did not recognise this British rule. The question became of great importance in 1905, during the Russo-Japanese War, when Russian cruisers sank the British vessels Knight Commander, Oldhamia, Icona, St. Kilda, and Hipsang, the German vessels Thea, and Tetardos, and the Danish vessel Princesse Marie. Russia paid damages to the owners of the vessels Icona, St. Kilda, Thea, Tetardos, and Princesse Marie, because her Prize Courts declared that the capture of these vessels was not justified, but she refused to pay damages to the owners of the other vessels destroyed, because her Prize Courts considered them to have been justly captured.
[Footnote 914: The Actaeon (1815), 2 Dodson, 48; the Felicity (1819), 2 Dodson, 381; the Leucade (1855), Spinks, 217. See Phillimore, III. § 333; Twiss, II. § 166; Hall, § 77; Holland, Letters to the "Times" upon War and Neutrality (1909), pp. 140-150.]
The Declaration of London proposes to settle the matter by a compromise. Recognising that neutral prizes may not as a rule be destroyed, and admitting only one exception to the rule, it empowers the captor under certain circumstances and conditions to demand the handing over, or to proceed himself to the destruction, of contraband carried by a neutral prize which he is compelled to abandon.
The very first rule of Chapter IV. of the Declaration of London, headed "Destruction of Neutral Prizes," is that of article 48, according to which, as a matter of principle, captured neutral vessels may not be destroyed, but must be taken into a port of a Prize Court. However, article 49 permits, as an exception to the rule, the destruction of such a captured neutral vessel as would herself be liable to condemnation, if the taking of the vessel into a 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 at the time of capture engaged.
There is, therefore, no doubt that a neutral prize may no longer be destroyed because the captor cannot spare a prize crew or because a port of a Prize Court is too far distant, or the like. The only justification for destruction of a neutral prize is danger to the captor or his operations at the time of capture. As regards the degree of danger required, it cannot be denied that the wording of article 49 does not provide any clue for a restrictive interpretation. But considering that article 51 speaks of an "exceptional necessity," it is hoped and to be expected that the International Prize Court would give such an interpretation to article 49 as would permit a resort to the sinking of neutral prizes in cases of absolute necessity only. Be that as it may, according to article 49 only such neutral prizes may be sunk as would be liable to confiscation if brought before a Prize Court. Sinking of captured neutral vessels--apart from neutral vessels which have acquired enemy character and may for this reason be sunk under the same conditions as enemy vessels--is, therefore, chiefly admitted in three[915] cases, namely: (1) When--see article 40 of the Declaration of London--the vessel carries contraband the value of which forms more than half the value of the cargo; (2) when a vessel has been captured for rendering those kinds of unneutral service which are enumerated by article 45 of the Declaration of London; (3) when--see article 21 of the Declaration of London--a vessel has been captured for breach of blockade. In no case, however, in which she is not liable to confiscation, may a neutral vessel under any circumstances and conditions be destroyed; she must always be abandoned if the capturing cruiser cannot take her into a port of a Prize Court.
[Footnote 915: Only such cases of possible confiscation of a neutral vessel are mentioned in the text as are in accordance with the Declaration of London. The practice of some States has hitherto admitted confiscation in other cases also, for instance, in case of deficiency, spoliation, or defacement of ship papers, and in case of double and false papers; see above, §§ 426-428. It will be the task of the International Prize Court to evolve a uniform practice with regard to such cases. Likewise the text does not enumerate the cases in which the sinking of a neutral vessel is permissible because she previously acquired enemy character; concerning this, see above, § 89.]
However this may be, when the captor feels compelled to resort to the destruction of a neutral prize, he must place in safety all persons found on the captured vessel, and he must take on board all the captured ship's papers which are relevant for the purpose of deciding the validity of the capture (article 50). And (article 51) if the captor fails to establish the fact before the Prize Court that he destroyed the prize in the face of an exceptional necessity, the owners of the vessel and cargo must receive full compensation without any examination of, and any regard to, the question as to whether or no the capture itself was justifiable. Compensation must likewise be paid in case the capture is held by the Prize Court to be invalid, although the act of destruction has been held to be justifiable (article 52). And in any case, the owners of neutral goods not liable to condemnation which have been destroyed with the vessel, may always and under all circumstances and conditions claim damages (article 53).
Thus many safeguards have been established against arbitrariness in resorting to the destruction of neutral prizes. On the other hand, it would seem to be going too far to insist on the captor letting the prize go with her contraband on board, if he be compelled to abandon the prize. For this reason article 54 empowers the captor of a neutral vessel herself not liable to confiscation, to demand the handing over, or to proceed himself to the destruction, of any goods liable to confiscation found on board, if the taking of the vessel into a port of a Prize Court would involve danger to the captor or to the success of the operations in which he is at the time of capture engaged. Details concerning such destruction have been given above in § 406_a_ (2).
[Sidenote: Ransom and Recapture of Neutral Prizes.]
§ 432. Regarding ransom of captured neutral vessels, the same is valid as regards ransom of captured enemy vessels.[916]
[Footnote 916: See above, § 195.]
As regards recapture of neutral prizes,[917] the rule ought to be that ipso facto by recapture the vessel becomes free without payment of any salvage. Although captured, she was still the property of her neutral owners, and if condemnation had taken place at all, it would have been a punishment, and the recapturing belligerent has no interest whatever in the punishment of a neutral vessel by the enemy.
[Footnote 917: See Hautefeuille, III. pp. 366-406; Gessner, pp. 344-356; Kleen, II. § 217; Geffcken in Holtzendorff, IV. pp. 778-780; Calvo, V. §§ 3210-3216.]
But the matter of recapture of neutral prizes is not settled, no rule of International Law and no uniform practice of the several States being formulated regarding it. Very few treaties touch upon it, and the municipal regulations of the different States regarding prizes seldom mention it. According to British practice,[918] the recaptor of a neutral prize is entitled to salvage, in case the recaptured vessel would have been liable to condemnation if brought into an enemy port.
[Footnote 918: The War Onskan (1799), 2 C. Rob. 299. See Holland, Prize Law, § 270.]
[Sidenote: Release after Capture.]
§ 433. Besides the case in which captured vessels must be abandoned, because they cannot for some reason or another be brought into a port, there are cases in which they are released without a trial. The rule is that a captured neutral vessel is to be tried by a Prize Court in case the captor asserts her to be suspicious or guilty. But it may happen that all suspicion is dispelled even before the trial, and then the vessel is to be released at once. For this reason article 246 of Holland's Prize Law lays down the rule: "If, after the detention of the vessel, there should come to the knowledge of the commander any further acts tending to show that the vessel has been improperly detained, he should immediately release her...." Even after she has been brought into the port of a Prize Court, release can take place without a trial. Thus the German vessels Bundesrath and Herzog, which were captured in 1900 during the South African War and taken to Durban, were, after search had dispelled all suspicion, released without trial.
That the released vessel may claim damages is a matter of course, and article 64 of the Declaration of London precisely enacts it. But it should be mentioned that, since Convention XII. stipulates only appeals against judgments of National Prize Courts, the International Prize Court would not have jurisdiction in a case of the release of a vessel without trial, and that the question of compensation could, therefore, be settled through the diplomatic channel only.
III
TRIAL OF CAPTURED NEUTRAL VESSELS
Lawrence, §§ 188-190--Maine, p. 96--Manning, pp. 472-483--Phillimore, III. §§ 433-508--Twiss, II. §§ 169-170--Halleck, II. pp. 393-429--Taylor, §§ 563-567--Wharton, III. §§ 328-330--Moore, VII. §§ 1222-1248--Wheaton, §§ 389-397--Bluntschli, §§ 841-862--Heffter, §§ 172-173--Geffcken in Holtzendorff, IV. pp. 781-788--Ullmann, § 196--Bonfils, Nos. 1676-1691--Despagnet, Nos. 677-682 bis--Rivier, II. pp. 353-356--Nys, III. pp. 710-718--Calvo, V. §§ 3035-3087--Fiore, III. Nos. 1681-1691, and Code, Nos. 1890-1929--Martens, II. §§ 125-126--Kleen, II. §§ 219-234--Gessner, pp. 357-427--Boeck, Nos. 740-800--Dupuis, Nos. 282-301, and Guerre, Nos. 218-223--Nippold, II. § 35--Perels, §§ 56-57--Testa, pp. 244-247--Hautefeuille, III. pp. 299-365--Atherley-Jones, _Commerce in War_ (1906), pp. 361-594--Hirschmann, _Das internationale Prisenrecht_ (1912), § 38--See also the monographs quoted above at the commencement of § 391, and Bulmerincq's articles on _Le droit des prises maritimes_ in R.I. X.-XIII. (1878-1881).
[Sidenote: Trial of Captured Vessels a Municipal Matter.]
§ 434. Although belligerents have, under certain circumstances, according to International Law, the right to capture neutral vessels, and although they have the duty to bring these vessels for trial before a Prize Court, such trials are in no way an international matter. Just as Prize Courts--apart from the proposed International Prize Court--are municipal[919] institutions, so trials of captured neutral vessels by these Prize Courts are municipal matters. The neutral home States of the vessels are not represented and, directly at any rate, not concerned in the trial. Nor is, as commonly maintained, the law administered by Prize Courts International Law. These Courts apply the law of their country. The best proof of this is the fact that the practice of the Prize Courts of the several countries has hitherto differed in many points. Thus, for instance, the question what is and what is not contraband, and, further, the question when an attempt to break blockade begins and when it ends, have hitherto been differently answered by the practice of different States.
[Footnote 919: See above, § 192. The matter is regulated so far as Great Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch. 25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Règlement international des prises maritimes, adopted in 1887 at Heidelberg by the Institute of International Law, provides in §§ 63-118 detailed rules concerning the organisation of Prize Courts and the procedure before them; see Annuaire, IX. (1888), p. 208.]
Many writers, however, maintain that Prize Courts are International Courts, and that the law administered by these courts is International Law. Lord Stowell again and again[920] emphatically asserted it, and the vast majority of English and American writers[921] follow him. But it is to be expected that the recognition of the difference between Municipal and International Law, as expounded above, Vol. I., §§ 20-25, and of the fact that States only, and neither their Courts nor officials nor citizens, are subjects of International Law, will lead to the general recognition of the fact that the law applied by National Prize Courts is not and cannot be International Law.
[Footnote 920: The Maria (1799), 1 C. Rob. 340; the Recovery (1807), 6 C. Rob. 341; the Fox and others (1811), Edwards, 311.]
[Footnote 921: See, for instance, Halleck, II. p. 411; Maine, p. 96; Manning, p. 472; Phillimore, III. §§ 433-436; Hall, § 277. On the other hand, Holland, Studies, p. 199; Westlake, II. p. 289; and Scott, Conferences, p. 467, distinctly agree with me.]
And matters will remain as they are even after the establishment of the International Prize Court and ratification of the Declaration of London. The law of this Declaration is certainly International Law, but it will be binding only upon the States, and they, on their part, must embody it in their Municipal Law so that their Prize Courts are obliged to administer such a law in prize cases as is in conformity with the Declaration of London. It will be the task of the International Prize Court[922] to control the National Prize Courts in that direction. A State which is a party to the Declaration and would nevertheless order its Prize Courts to apply a law which is in opposition to the Declaration of London, would commit an international delinquency, but its Prize Courts would be obliged to apply such law.
[Footnote 922: Trial before this Court is, of course, an international matter.]
[Sidenote: Result of Trial.]
§ 435. The trial of a captured neutral ship can have one or more of five results:--vessel and cargo can be condemned,[923] or the vessel alone, or the cargo alone; and the vessel and cargo can be released either with or without costs and damages. Costs and damages must be allowed when capture was not justified, and, after the ratification of the Declaration of London and the establishment of the International Prize Court, an appeal may, according to article 64 of the Declaration of London and article 4 of Convention XII., be brought before the International Prize Court if costs and damages are refused or inadequately allowed by a Prize Court. But it must be emphasised that capture might be justified, as, for instance, in the case of spoliation of papers, although the Prize Court did not condemn the vessel, and, further, that costs and damages are never allowed in case a part only of the cargo is condemned, although the vessel herself and the greater part of the cargo are released. That, in case the captor is unable to pay the costs and damages allowed to a released neutral vessel, his Government has to indemnify the vessel, there ought to be no doubt, for a State bears "vicarious" responsibility[924] for internationally injurious acts of its naval forces.
[Footnote 923: It would seem to be obvious that condemnation of the vessel involves the loss of the vessel at the date of capture; see Andersen v. Marten, L.R. (1907) 2 K.B. 248.]
[Footnote 924: See above, vol. I. § 163.]
[Sidenote: Trial after Conclusion of Peace.]
§ 436. It is a moot question whether neutral vessels captured before conclusion of peace may be tried after the conclusion of peace.[925] I think that the answer must be in the affirmative, even if a special clause is contained in the Treaty of Peace, which stipulates that captured but not yet condemned vessels of the belligerents shall be released. A trial of neutral prizes is in any case necessary for the purpose of deciding the question whether capture was justified or not, and whether, should condemnation not be justified, the neutral vessels may claim costs and indemnities. Thus, after the conclusion of the Abyssinian War, in December 1896, the Italian Prize Commission, in the case of the Doelwijk,[926] claimed the right to try the vessel in spite of the fact that peace had been concluded between the time of capture and trial, declared the capture of the vessel and cargo to have been justified, but pronounced that, peace having been concluded, confiscation of vessel and cargo would no longer be lawful.
[Footnote 925: See Perels, § 57, p. 309, in contradistinction to Bluntschli, § 862. But there is, of course, no doubt that a belligerent can exercise an act of grace and release such prizes. Thus, in November 1905, at the end of the Russo-Japanese War, the Mikado proclaimed the unconditional release of all neutral prizes captured after the signing but before the ratification of the Peace of Portsmouth. Thereby, three German vessels, two English, and one Norwegian escaped confiscation, which in strict law--see above, p. 534, note 4--would have been justified.]
[Footnote 926: See Martens, N.R.G. 2nd Ser. XXVIII. pp. 66-90.]
Different from the question whether neutral prizes may be tried after the conclusion of peace is the other question whether they may be condemned to be confiscated. In the above-mentioned case of the Doelwijk the question was answered in the negative, but I believe it ought to have been answered in the affirmative. Confiscation of vessel and cargo having the character of a punishment, it would seem that the punishment may be inflicted after the conclusion of peace provided the criminal act concerned was consummated before peace was concluded. But nothing, of course, stands in the way of a belligerent taking a more lenient view and ordering his Prize Courts not to pronounce confiscation of neutral vessels after the conclusion of peace.
The Declaration of London does not settle either the former or the latter question, and it would therefore be the task of the International Prize Court to evolve a uniform practice in the cases concerned.
[Sidenote: Protests and Claims of Neutrals after Trial.]
§ 437. Hitherto, if a trial led to condemnation, and if the latter was confirmed by the Court of Appeal, the matter as between the captor and the owner of the captured vessel and cargo was finally settled. But the right of protection,[927] which a State exercises over its subjects and their property abroad, may nevertheless have been the cause of diplomatic protests and claims on the part of the neutral home State of a condemned vessel or cargo, in case the verdict of the Prize Courts was considered to be not in accordance with International Law or formally or materially unjust. It is through such protests and claims that the matter, which was hitherto a mere municipal one, became of international importance. And history records many instances of cases of interposition of neutral States after trials of vessels which had sailed under their flags. Thus, for instance, in the famous case of the Silesian Loan,[928] it was the fact that Frederick II. of Prussia considered the procedure of British Prize Courts regarding a number of Prussian merchantmen captured during war between Great Britain and France in 1747 and 1748 as unjust, which made him in 1752 resort to reprisal and cease the payment of the interest of the Silesian Loan. The matter was settled[929] in 1756, through the payment of £20,000 as indemnity by Great Britain. Thus, further, after the American Civil War, articles 12-17 of the Treaty of Washington[930] provided the appointment of three Commissioners for the purpose, amongst others, of deciding all claims against verdicts of the American Prize Courts. And when in 1879, during war between Peru and Chili, the German vessel Luxor was condemned by the Peruvian Courts, Germany interposed and the vessel was released.[931]
[Footnote 927: See above, vol. I. § 319.]
[Footnote 928: See above, § 37.]
[Footnote 929: See Martens, Causes Célèbres, II. p. 167.]
[Footnote 930: See Martens, N.R.G. XX. p. 698.]
[Footnote 931: See above, § 404.]
The ratification of the Declaration of London and the establishment of the International Prize Court would finally do away with such grave international disputes.