International Law. A Treatise Volume Ii Part 59

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 _Reglementation internationale de la contrebande de guerre_, _Annuaire_, XV. (1896), p. 230.]

And it must be mentioned that the att.i.tude of several Continental States has. .h.i.therto 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 Ma.r.s.eilles 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. .h.i.therto 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 att.i.tude 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 Progres 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 a.s.serted 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 Inst.i.tute 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 _Reglementation internationale de la contrebande de guerre_ adopted by the Inst.i.tute 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 materiel militaire (objets d'equipement, affts, uniformes, etc.); (4) les vaisseaux equipes pour la guerre; (5) les instruments specialement faits pour la fabrication immediate des munitions de guerre; lorsque ces divers objets sont transportes par mer pour le compte ou a la destination d'un belligerant.

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.

-- 2. Sous la denomination de _munitions de guerre_ doivent etre compris les objets qui, pour servir immediatement a la guerre, n'exigent qu'une simple reunion ou juxtaposition.

-- 3. Un objet ne saurait etre qualifie de contrebande a raison de la seule intention de l'employer a aider ou favoriser un ennemi, ni par cela seul qu'il pourrait etre, dans un but militaire, utile a un ennemi ou utilise par lui, ou qu'il est destine a son usage.

-- 4. Sont et demeurent abolies les pretendues contrebandes designees sous les noms soit de contrebande _relative_, concernant des articles (_usus ancipitis_) susceptibles d'etre utilises par un belligerant dans un but militaire, mais dont l'usage est essentiellement pacifique, soit de contrebande _accidentelle_, quand lesdits articles ne servent specialement aux buts militaires que dans une circonstance particuliere.

-- 5. Neanmoins le belligerant a, a son choix et a charge d'une equitable indemnite, le droit de sequestre ou de preemption quant aux objets qui, en chemin vers un port de son adversaire, peuvent egalement servir a l'usage de la guerre et a des usages pacifiques.

-- 9. En cas de saisies ou repressions non justifiees pour cause de contrebande ou de transport, l'etat du capteur sera tenu aux dommages-interets et a la rest.i.tution des objets.

-- 10. Un transport parti avant la declaration de la guerre et sans connaissance obligee 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 reb.u.t.table 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:--