International Law. A Treatise Volume Ii Part 58

-- 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 pa.s.sengers 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 pa.s.sengers 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 Munic.i.p.al 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. .h.i.therto 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 wars.h.i.+ps on the one hand, and, on the other, vessels and the like generally. According to article 22, No. 10, wars.h.i.+ps, 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 Munic.i.p.al 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 Munic.i.p.al 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 s.h.i.+p 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 s.h.i.+p papers must not be interpreted too literally, since otherwise fraud would be made easy. s.h.i.+p 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 att.i.tude 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 att.i.tude 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 Ma.s.sachusetts--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 s.h.i.+ps concerned. See Remy, _Theorie de la continuaute du voyage en matiere 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-General 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 Na.s.sau, 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 Na.s.sau 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 t.i.tles "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 a.s.serted 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 att.i.tude 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 att.i.tude 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 trans.h.i.+pment, 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 s.h.i.+p _Imina_,[841] which had left the neutral port of Dantzig for Amsterdam carrying s.h.i.+p'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 circ.u.mstances had so altered since 1888 that the att.i.tude 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 Takahas.h.i.+, _International Law during the Chino-j.a.panese 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 a.s.serts 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 a.s.serts 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 Inst.i.tute of International Law adopted the rule:[843] "_La destination pour l'ennemi est presumee lorsque le transport va a l'un de ses ports, ou bien a un port neutre qui, d'apres_ _des preuves evidentes et de fait incontestable, n'est qu'une etape pour l'ennemi, comme but final de la meme operation commerciale._"