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the vessel that has discovered them, in that case the latter, after receiving the merchandises which are good prize, shall immediately let the vessel go and shall not by any means hinder her from pursuing her voyage to the place of her destination. When a vessel is taken and brought into any of the ports of the contracting parties, if upon examination she be found to be loaded only with merchandises declared to be free, the owner, or he who has made the prize, shall be bound to pay all costs and damages to the master of the vessel unjustly detained. (Treaties and Conventions, 1776–1909, vol. 2, p. 1729.)
The treaty of the United States with Prussia of 1799, which is regarded as still operative, has a provision relating to the delivery of contraband, but the wording is somewhat different from that of the Swedish treaty. Article XIII of the Prussian treaty reads:
And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, ammunition, and military stores of every kind, no such articles, carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors, and it shall further be allowed to use in the service of the captors, the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.
All cannons, mortars, firearms, pistols, bombs, grenades, bullets. balls, muskets, flints, matches, powder, saltpeter, sulphur, cuirasses, pikes, swords, belts, cartouch boxes, saddles and bridles, beyond the quantity necessary for the use of the ship, or beyond that which every man serving on board the vessel, or passenger, ought to have, and, in general, whatever is comprised under the denomination of arms and military stores, or what description so ever, shall be deemed objects of contraband. (Ibid., p. 1491.)
The treaty of 1828 between the United States and Brazil has a somewhat different statement from that of earlier treaties.
ART. 18. The articles of contraband, before enumerated and classified, which may be found in a vessel bound for an enemy's port, shall be subject to detention and confiscation, leaving free the rest of the cargo and the ship, that the owners may dispose of them as they see proper. No vessel of either of the two nations shall be detained on the high seas on account of having on board articles of contraband, whenever the master, captain, or supercargo of said vessels will deliver up the articles of contraband to the captor, unless the quantity of such articles be so great and of so large a bulk that they can not be received on board the capturing ship without great inconvenience; but in this and all the other cases of just detention the vessel detained shall be sent to the nearest convenient and safe port, for trial and judgment, according to' law. (Ibid., vol. 1, p. 139.)
Article 19 of the treaty of 1846 between the United States and Colombia (ibid., p. 308) is identical with article 18 of the Brazilian treaty above mentioned.
The same may be said of Article 19 of the Bolivian treaty of 1858. (Ibid., p. 119.)
The treaty between the United States and Haiti of 1864, terminated in 1905, provided for the acceptance of the evidence of certificates and for delivery of contraband under certain restrictions.
Art. 23. To avoid all kind of vexation and abuse in the examination of the papers relating to the ownership of the vessels belonging to the citizens of the contracting parties, it is hereby agreed that when one party shall be engaged in war and the other party shall be neutral the vessels of the neutral party sball be furnished with passports, that it may appear thereby that they really belong to citizens of the neutral party. These passports shall be valid for any number of voyages, but shall be renewed every year.
If the vessels are laden, in addition to the passports above named, they shall be provided with certificates, in due form, made out by the officers of the place whence they sailed, so that it may be known whether they carry any contraband goods. And if it shall not appear from the said certificates that there are contraband goods on board, the vessels shall be permitted to proceed on their voyage. If it shall appear from the certificates that there are contraband goods on board any such vessel, and the commander of the same shall offer to deliver them up, that offer shall be accepted, and a receipt for the same shall be given, and the vessel shall be at liberty to pursue her voyage unless the quantity of contraband goods be greater than can be conveniently received on board the ship of war or privateer, in which case, as in all other cases of just detention, the vessel shall be carried to the nearest safe and convenient port for the delivery of the same.
In case any vessel shall not be furnished with such passport or certificates as are above required for the same, such case may be examined by a proper judge or tribunal; and if it shall appear from other documents or proofs, admissible by the usage of nations, that the vessel belongs to citizens or subjects of the neutral party, it shall not be confiscated, but shall be released with her cargo (contraband goods excepted) and be permitted to proceed on her voyage. (Ibid., p. 927.)
The United States has had similar provisions in treaties with France, 1800; with Central America, 1825; with Mexico, 1831; with Venezuela, 1836; with Peru, 1836; with Ecuador, 1839; and with San Salvador, 1850.
A late treaty containing a provision in regard to delivery of contraband was that of March 9, 1874, between the Argentine Republic and Peru:
XXIII. No vessel of either of the contracting parties shall be detained on the high seas for having articles of contraband on board, provided always the captain or supercargo of the said vessel deliver the articles of contraband to the captor, unless these articles should be numerous or of such great bulk that they can not, without serious inconvenience, be received on board the captor's vessel ; but in this and all the other cases of just detention the vessel detained shall be sent to the nearest convenient and secure port, to be there judged agreeably with the laws. (British and Foreign State Papers, vol. 69, p. 706.)
British rule.-The British Manual of Naval Prize Law of 1866 provided :
186. The commander will not be justified in taking out of a vessel any contraband goods he may have found on board, and then allowing the vessel to proceed; his duty is to detain the vessel, and send her in for adjudication, together with the contraband goods on board.
This clause appears in the manual prepared by Prof. Holland and issued by authority of the Lords Commissioners of the Admiralty in 1888 as No. 81.
Opinions of Text Writers.
105 American Navy Department order, 1898.—General Order 492 of the Navy Department of June 20, 1898, says:
The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel itself, or its cargo, is needed for immediate public use, it may be converted to such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court.
Opinions of text writers. There is much to be said against the practice by which officers whose functions are primarily executive are intrusted with functions which are in a measure judicial. In general, contraband should pass before a prize court. It is for the naval officer to make the capture, but for the court to determine its propriety and disposition.
Kleen says of confiscation without adjudication by a prize court:
Il n'est guère besoin de relever combien cet usage est peu compatible avec un bon règlement des prises. Sans doute, tout propriétaire particulier est libre de livrer, s'il le veut, sa propriété, même légale, à un belligérant ou à ses organes militaires, en supportant volontairement la perte; et s'il le fait, soit par crainte, indifférence ou insouciance, personne n'a qualité pour s'en plaindre. Mais une renonciation semblable à la protection de la loi ne saurait dans aucune hypothèse lui être imposée comme devoir. Aucun patron d'un navire neutre n'a le droit de livrer ainsi la propriété de son armateur sans le consentement de celui-ci, en s'autorisant d'un usage inique; et aucun croiseur n'a le droit de s'en emparer sans procédure qui prouve sa propre compétence et l'illégalité de l'objet. D'autre part, le propriétaire peut s'en rapporter au droit international pour protester contre toute confiscation qui se fait sans jugement régulier. Quant aux frais et aux retards qu’occasionnent les formalités juridiques, ils seront à la charge du contrevenant qui en est la cause, a savoir du neutre qui aurait rompu sa neutralité, ou bien du capteur qui aurait effectué une saisie injuste ou légère.
Afin de régler ces questions à l'amiable, plusieurs États ont conclu, surtout vers la fin du XVIII° siècle, des traités par lesquels les contractants se sont mutuellement concédé le droit de confisquer, en cas de guerre, la contrebande sur simple délivraison, sans procédure. Il est évident que ces actes conventionnels sont autant de preuves que la confiscation purement exécutive manque de fondement dans le droit international, puisqu' autrement il eût été superflu de s'en réserver le droit par traité spécial. Un tel traité est naturellement valide, mais il ne lie que ses parties. Un État qui ne s'est pas ainsi obligé, n'a pas besoin de tolérer que des confiscations non judiciaires aient lieu sous son pavillon par des belligérants. (La Neutralité, vol. 1, p. 450.)
Dana, in a note to Wheaton, states his opinion as follows:
Taking contraband goods out of neutral vessels.-It is for the interest of the neutral carrier, if he knows that the goods claimed by the visiting cruiser are contraband, to give them up and be permitted to go on his way, rather than to be carried into the belligerent's port to await adjudication upon them. In the seventeenth article of the treaty of 1800 between the United States and France, which expired in 1808, there is a provision that if the vessel boarded shall have contraband goods and shall be willing to surrender them to the cruiser she shall be permitted to pursue her voyage, unless the cruiser is unable to take them on board, in which case the vessel shall accompany her to port. This stipulation is common in the treaties between the United States and the other American Republics. Hautefeuille contends for this as a right of a neutral by international law; by which, however, he means that it should be the neutral's right, by justice and reason, in the author's opinion. No national act in diplomacy, or based on adjudication, and independent of treaty, has been produced or suggested by the distinguished author in affirmance of such a right. It is to be observed that as the captor must still take the cargo into port and submit it to adjudication, and as the neutral carrier can not bind the owner of the supposed contraband cargo not to claim it in court, the captor is entitled, for his protection, to the usual evidence of the ship's papers, and whatever other evidence induced him to make the capture, as well as to the examination on oath of the master and supercargo of the vessel. It may not be possible or convenient to detach all these papers and deliver them to the captor, and certainly the testimony of the persons on board can not be taken at sea in the manner required by law. Such a provision may be applicable to a case where the owner of the goods, or a person capable of binding him, is on board and assents to the arrangement, agreeing not to claim the goods in court, but not to a case where the owner is not bound. There may also be a doubt whether the ostensible owner or agent is really such, and so the captor may be misled. Indeed, a strong argument might be made from these considerations that the article in the treaty can only be applied to a case where there is the capacity in the neutral vessel to insure the captor against a claim on the goods. (Wheaton, International Law, Dana ed., p. 665n.)