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Opinions of Text Writers.
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, à 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.)
Consideration at Naval Conference.
Naval Conference of 1908–9.—The Austro-Hungarian proposition before the International Naval Conference in 1908 was as follows:
On pourrait déclarer, par exemple, d'une part, qu'il sera loisible au capitaine du navire neutre le livrer sur-le-champ la contrebande ou de la détruire, si, par là, il peut échapper à la saisie et, par conséquent, à la destruction de son bâtiment, d'autre part, que le capteur sera obligé de prendre possession des marchancises ou d'en permettre la destruction si, en laissant le navire neutre continuer sa route avec la contrebande à bord, il compromettrait sa propre sécurité ou le succès de ses opérations.
De pareils préceptes pourraient être, de même, établis quant aux matières du droit de prise.
Il est clair que la formule n'en pourrait être trouvée que lorsqu'un accord se sera produit sur les principes du régime, auquel les prises neutres devront être soumises. (British Parliamentary Papers, Miscellaneous, No. 5. International Naval Conference, 1909, p. 100.)
Report of British Delegation.—The report of the British Delegation to Sir Edward Gray:
18. Careful consideration was given to the question, raised in paragraph 33 of our instructions, whether any satisfactory arrangement could be devised for allowing the immediate removal by the captor of any contraband found on board a neutral vessel. Proposals were put forward by several delegations. The most farreaching one was one submitted by Austria-Hlungary, under which the neutral vessel carrying contraband was to be given the right to proceed on her way without further molestation if the master was ready to hand over the contraband to the captor on the spot, a proviso being added which made it necessary that the subsequent decision of a prize court should intervene in order either to validate the transaction or to decree compensation where the captor should have been proved to have acted wrongfully. In this form, the proposal did not meet with general support. It was objected that to concede an absolute right in the terms to the neutral would constitute an unjustifiable interference with the legitimate rights of belligerents, and that, moreover, the rule would be found in practice unworkable. The Conference therefore fell back upon the clause now embodied in the Declaration as article 44, which goes no further than authorizing the handing over of contraband, or its destruction, on the spot, by common agreement between captor and neutral, subject to the subsequent reference of the case to the prize court. It is not anticipated that it will be possible to apply this rule in very numerous instances, as, under modern conditions of maritime commerce, the transshipment or destruction of cargo on the high seas is likely in most cases to present serious or insuperable difficulties. But, so far as it goes, the rule may afford a welcome measure of relief in favorable circumstances. (Parliamentry Papers, Miscellaneous, No. 4, 1909, International Naval Conference, p. 97.)
Application of Declaration of London.--The fact that the British merchant vessel did not know of the outbreak of hostilities is covered by Article 43 of the Declaration of London.
ART. 43. If a vessel is met with at sea unaware of a state of war, or of a declaration of contraband affecting her cargo, the contraband is not to be condemned, except on payment of compensation; the vessel herself and the remainder of the cargo are exempt from condemnation and from the payment of the expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the opening of hostilities or of the declaration of contraband, has not yet been able to discharge the contraband.
The General Report, London Naval Conference, in reference to this article, states:
This provision has for its aim to protect neutrals who might, in fact, be carrying contraband, but against whom no charge could be made, which may happen in two cases. The first is that in which they do not know of the opening of hostilities; the second is that in which, though they know of this, they do not know of the declaration of the contraband a belligerent has made, in accordance with articles 23 and 25, and which is properly applicable to the whole or a part of the cargo. It would be unjust to capture the ship and condemn the contraband; on the other hand, the cruiser can not be bound to permit to go on to the cnemy goods suitable for use in the war and of which he may be in urgent need. These opposing interests are reconciled in the sense that the condemnation may take place only in payment of compensation. (See for a similar idea the convention of the 18th of October, 1907, in the rules for enemy merchant vessels in the outbreak of hostilities.)
The procedure, as outlined by the Declaration of London, 1909, Article 54, would apply only in case of exceptional necessity. This article says:
The captor has the right to require the delivery, or to proceed himself to the destruction of, goods liable to condemnation found on board a vessel not herself liable to condemnation, provided that
the circumstances are such as would, under article 49, justify the destruction of a vessel liable to condemnation. The captor must enter in the log book of the vessel stopped the articles handed over or destroyed, and must procure from the master duly certified copies of all relevant papers. When the delivery, or the destruction, has been effected, and the formalities complied with, the master must be allowed to continue his voyage. : The provisions of articles 51 and 52, respecting the obligations of a captor who has destroyed a neutral vessel, are applicable.
The General Report of the Conference further explains Article 54:
A cruiser encounters a neutral merchant vessel carrying contraband in a proportion less than that specified in article 40. The captain of the cruiser may put a prize crew on board the vessel and take her into a port for adjudication. He may, in conformity with the provisions of article 44, accept the delivery of the contraband which is offered to him by the vessel stopped. But what is to happen if neither of these solutions are reached? The vessel stopped does not offer to deliver the contraband and the cruiser is not in a position to take the vessel into one of her ports. Is the cruiser obliged to let the neutral vessel go with the contraband on board ? This has seemed excessive, at least in certain exceptional circumstances. These are in fact the same which would have justified the destruction of the vessel if she had been liable to condemnation. In such a case the cruiser may require the delivery or proceed to the destruction of the goods liable to condemnation. The reasons which warrant the destruction of the vessel would justify the destruction of the contraband goods, the more so is the considerations of humanity which may be invoked in case of a vessel do not here apply. Against an arbitrary demand by the cruiser there are the same guaranties as those which made it possible to recognize the right to destroy the vessel. The captor must, as a condition precedent, prove that he really found himself in the exceptional circumstances specified; failing this, he is penalized to the value of the goods delivered or destroyed, instant investigation as to whether they were or were not contraband.
Résumé.—The goods upon the neutral British vessel are of the nature of absolute contraband.
The vessel is evidently ignorant of the existence of hostilities. The contraband could not be condemned except with the payment of indemnity. There is no doubt that the articles of the nature of absolute contraband could be condemned on payment of indemnity.