The Laws Of War, Affecting Commerce And Shipping Part 9

Under certain circ.u.mstances the _Captor_ is considered ent.i.tled to Freight, even though the goods are carried to his own country, and restored.

If the captor does anything to injure the property, or is guilty of misconduct, he may remain answerable for the effect of such misconduct or injury, in the way of set-off against him.[155]

No right of _visitation_ and search, of capture, nor any other kind of belligerent right, can be exercised on board a _public neutral_ vessel on the high seas. But _private_ vessels form no part of neutral territory, and when within the limits of another state, are not exempt from local jurisdiction.[156]

The right to take enemy's property on board a neutral ship has been much contested by particular nations, whose interests it strongly opposed. This rule has been steadily maintained in Great Britain, though in France and other countries it has been fluctuating. For the first time, England has voluntarily abandoned this right in the present war.

If a neutral vessel, having enemy's goods on board, is taken, and there is nothing unfair in the conduct of the neutral master, he will even be ent.i.tled to his reasonable demurrage. The captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods by right of war; and although the whole freight has not been earned by the completion of the voyage, yet as the captor, by his act of seizure, has prevented its completion, his seizure operates to the same effect as an actual delivery of the goods to the consignee, and subjects him to the payment of the full freight.[157] In such case, however, the neutral master must have acted _bona fide_, and with strictly neutral conduct.

[Sidenote: This Rule Changed by Convention.]

This Rule is often Changed by Convention; and it is generally stipulated that "_free ships shall make free goods_." The converse, though also sometimes the subject of treaty, does not of necessity hold, _enemy's ships do not make enemy's goods_. Goods of neutrals, found on enemy's ships, are bound to be restored.[158]

A neutral subject is at liberty to put his goods on board a merchant vessel, though belonging to a belligerent, subject nevertheless to the rights of the enemy who may capture the vessel; who has no right, according to modern practice, to condemn the neutral property. Neither will the goods of the neutral be subject to condemnation, although a rescue should be attempted by the crew of the captured vessel, for that is an event which the merchant could not have foreseen.[159]

[Sidenote: Neutral Goods on _Armed_ Hostile Vessels.]

In America, Neutral Goods laden on an _Armed_[160] Belligerent Vessel are still protected, but in England it is different. "If the neutral,"

says Sir Wm. Scott,

"puts his goods on board a ship of force, which will be defended by force, he betrays an intention to resist visitation and search, and so far adheres to the belligerent, and withdraws himself from his protection of neutrality."[161]

[Sidenote: The Sale and Purchase of Vessels by Neutrals.]

The Purchase of Ships from the enemy, is a liberty that has not been denied to neutral merchants, though by the regulation of France, it is entirely forbidden. The rule that this country has been content to apply is, that property so transferred, must be _bona fide_ and absolutely transferred; there must be a sale divesting the enemy of all further interest in it; and that any thing tending to continue his interest, vitiates a contract of this description altogether.[162]

Russia is reported to have several vessels of war in different parts of the world; some of these vessels have been sold, and others are said to be in the process of sale. I shall cite what Sir Wm. Scott says, on a case nearly similar.

"There have been many cases of enemy _merchant vessels_ driven into ports out of which they could not escape, and there sold, in which after much discussion, and some hesitation of opinion, the validity of the purchase has been sustained. But whether the purchase of a vessel, _built for war_, and employed as such, and rendered incapable of acting as a ship of war, by the arms of the other belligerent, and driven into a neutral port for shelter; whether the purchase of such a ship can be allowed, which shall enable the enemy so far to rescue himself from the disadvantage into which he has fallen, as to have the value restored to him by a neutral purchaser, is a question on which I shall wait for the authority of a superior court, before I admit the validity of such a transfer."[163]

It has been said that the sale must be absolute and unconditional; so that a sale under a condition to re-convey at the end of the war, is invalid.[164] Similarly, where the seller is bound by his own government under a penalty not to sell, except upon a condition of rest.i.tution at the end of the war, and the purchaser undertook to exonerate the seller, the sale was held invalid.[165]

SECTION II.

_Contraband of War_.

[Sidenote: Contraband of War.]

The general freedom of neutral commerce is subject to certain restrictions with respect to neutral commerce. Among these is the trade with the enemy in certain articles, called _Contraband of War_.

These are generally warlike stores, and articles which are directly auxiliary to warlike purposes. Writers on this subject have made distinctions between those things useful only for the purposes of war, those which are not so, and those which are susceptible of indiscriminate use in war and peace.

All seem to agree in excluding the first cla.s.s from neutral trade; and, in general, admitting the second. The chief difference is about the third cla.s.s. The last kind of articles--for example, money, provisions, ships, and naval stores, according to Grotius, are sometimes lawful articles of neutral trade, and sometimes not; and the question depends upon circ.u.mstances. This is perhaps the truest ground of decision, as we shall see in subsequent ill.u.s.trations.[166]

Thus, these articles become contraband, _ipso facto_, if carried to a besieged town, camp, or port. So in a _naval_ war, ships and materials for ships, are contraband, although timber and cordage may be used for other purposes, besides fitting out ships of war; and so horses and saddles are not of necessity warlike stores, except when comparing the quality, manufacture, or quant.i.ty attempted to be imported into the hostile state, with the circ.u.mstances and condition of the war, it appears (if not to be impossible) to be in the highest degree unlikely, that they should be designed for any other purposes besides the purposes of war.[167]

[Sidenote: Provisions, when Contraband.]

Common Provisions are not Contraband in general prize law, except in the single case of being sent to a beseiged or blockaded place.[168]

It is a modern practice, in order to remove all possible doubt as to what goods are contraband, for nations at war to enumerate them particularly in treaties or compacts with neutral states; and such treaties leave the neutral, with which they are made, at liberty to supply the enemy with all goods that are not enumerated in them. These treaties do not operate as a law; but like other treaties, are binding only between the nations that are parties to them.[169]

[Sidenote: Lord Stowell's Opinion on Contraband of War.]

The Opinions of our great English authority, Lord Stowell, on this subject, are contained in two judgments, of which the following is the substance:--

"In 1673, many unwarrantable rules were laid down by public authority respecting Contraband. It was expressly a.s.serted by a person of great knowledge and experience in the English Admiralty, that by its practice _corn, wine, and oil_, were liable to be deemed contraband. In much later times, many sorts of provisions, such as b.u.t.ter, salted fish, and rice, have been condemned as Contraband. The modern established rule was, that generally they are not contraband, but may become so under circ.u.mstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it; among the causes which tend to prevent provisions from being treated as contraband, one is that they are of the growth of the country which exports them.

"Another circ.u.mstance, to which some indulgence, by the practice of nations, is shown, is where the articles are in their native and unmanufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it, are directly contraband. Hemp is more favourably considered than cordage; and wheat is not considered so noxious a commodity as any of the final preparations of it for human use. But the most important destination is, whether the articles are destined for the ordinary uses of life, or for military uses. The nature and quality of the port to which the articles are going, is a test of the matter of fact on which the distinction is to be applied. If the port is a general commercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ship of war may be constructed in that port. On the contrary, if the great predominant character of a port is that of a port of naval equipment, it shall be contended that the articles were going for military use, although, merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption; for it being impossible to ascertain the final application of an article, _ancipitis usus_, it is not an injurious rule which deduces both ways the final use from immediate destination; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed, if at the time when the articles were going, a considerable armament was notoriously preparing, to which a supply of those articles would be eminently useful."[170]

In a later case he seems to have modified his opinion with respect to undoubted naval stores, either so by nature, or intended as such for the occasion. He says--

"The character of the port is immaterial, since naval stores, if they are to be considered as contraband, are so without reference to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of military equipment. The consequences of the supply may be nearly the same in either case. If sent to a mercantile port, they may be applied to immediate use in the equipment of privateers, or they may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied if going directly to a port of naval equipment."[171]

[Sidenote: Controversy between England and America on Contraband Provisions.]

The doctrine of the English Admiralty Court, as to provisions becoming contraband, was adopted by the Government in the instructions given to their cruisers, on the 8th June, 1793, directing them to stop all vessels laden wholly, or in part, with corn, flour, or meal, bound for France, and to send them into a British port to be purchased by Government; or to be released on condition that the master should.

give security to dispose of his cargo in the ports of some country in amity with his Britannic Majesty. This was resisted by the Neutral Powers, Sweden, Denmark, and especially the United States.

This order was justified upon the ground, that by the modern law of nations, all provisions are to be considered as contraband, and as such liable to confiscation, wherever depriving an enemy of these supplies is one of the means intended to be employed for reducing him to terms. The actual situation of France, (it was said,) was notoriously such, as to lead to the employing this mode of distressing her by the joint operations of the various powers engaged in the war; and the reasonings of the text writers applying to all cases of this sort were more applicable to the present case, in which the distress resulted from the unusual mode of war adopted by the enemy himself, in having armed almost the whole laboring cla.s.s of the French nation, for the purpose of commencing and supporting hostilities against almost all European Governments; but this reasoning was most of all applicable to a trade, which was in a great measure carried on by the then actual rulers of France, and was no longer to be regarded as a mercantile speculation of individuals, but as an immediate operation of the very persons who had declared war, and were then carrying it on against Great Britain.

This reasoning was resisted by the neutral powers--Sweden, Denmark, and especially the United States. The American Government insisted, that when two nations go to war, other nations who choose to remain at peace, retain their natural right to pursue their agriculture, manufactures, and ordinary vocations; to carry the produce of their industry for exchange to all countries, belligerent or neutral, (as usual;) to go and come freely without injury or molestation; in short, that the war, (amongst other) should be for neutral purposes, as if it did not exist; the only exceptions being trade in implements of war, or to a place blockaded by its enemy. That there were sufficient treaties to decide what were implements of war. Corn, flour, and meal, were not of the cla.s.s of contraband.

The result of this controversy was a treaty with the United States in 1794. It confined contraband to military and naval stores; and with respect to provisions not generally contraband, it was agreed,

"That whenever such articles became contraband by the Law of Nations, and should for that reason be seized, the same should not be confiscated, but the owners thereof should be speedily and completely indemnified; and the captors, or in their default, the Government under whose authority they act, should pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such detention."

The instructions of June, 1793, had been revoked previously to the signature of this treaty; but before its ratification, the British Government issued, in April, 1795, an order in council, instructing its cruizers to stop and detain all vessels laden wholly, or in part, with corn, flour, meal, and other provisions, and bound to any port in France, and to send them to such ports as might be most convenient, in order that such corn, &c., might be purchased on behalf of Government.

This last order was subsequently revoked, and the question of its legality became the subject of discussion in a mixed commission, const.i.tuted under the treaty, to decide upon the claims of American citizens, by reason of irregular or illegal seizures of their vessels and cargoes, under the authority of the British Government.

A full indemnification was allowed by the commissioners, under the 7th article of the Treaty of 1794, to the owners of vessels and cargoes seized under the orders in council, as well for the loss of a market as for the other consequences of their detention.

It was, however, urged on the part of the United States, that the 18th article of the Treaty of 1794, manifestly intended to leave the question where it was before, namely, that when _the law of nations_, existing at the time the case arises, p.r.o.nounces the articles contraband, they may for that reason be seized; when otherwise, not so. Each party was thus left free to decide what was contraband in its own courts of the law of nations, leaving any false appeal to that law to the usual remedy of reprisals and war.[172]

Since the ratification of this treaty, we have a decision of Lord Stowell, in 1799, on this very subject, in the case of the Haabet, which, however, arose on a question of insurance.

"The right of taking possession of provisions is no peculiar claim of this country; it belongs generally to belligerent nations: the ancient practice of Europe, or at least of several maritime states of Europe, was to confiscate them entirely. A century has now elapsed since this claim has been a.s.serted by some of them. A more mitigated practice has prevailed in later times, of holding such cargoes subject only to a right of pre-emption; that is, to a right of purchase, upon a reasonable compensation, to the individual whose property is thus diverted. This claim on the part of the belligerent cannot go beyond cargoes avowedly bound to the enemy's ports, or suspected on just grounds to have a concealed destination of that kind. The neutral can only expect a reasonable compensation. He cannot look to the price he would obtain in the enemy's port. An enemy, distressed by famine, may be driven by his necessities to pay a famine price; but it does not follow that the belligerent, in the exercise of his rights of war, is to pay the price of distress."[173]

"It is a mitigated exercise of war, on which any purchase is made; and no rule has established that such a purchase shall be regulated exactly on the same terms of profit which would have followed the adventure, if no such exercise of war had intervened; it is a _reasonable_ indemnification, and a _fair profit_, that is due, reference being had to the price originally paid by the exporter, and the expenses he has incurred."

[Sidenote: Neutral Vessels Transporting Enemy's Forces.]

Transporting the _Enemy's Forces_, subjects a Neutral Vessel to confiscation, if captured by the opposite belligerent. Sir Wm. Scott says, in the leading case on this subject--