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In accordance with Article 54 of the Declaration of London, the captor has a right to require the giving up of such goodsprovided that the circumstances are such as would, under Article 49, justify the destruction of a vessel liable to condemnation
That is, if the observance of the rule requiring that captured neutral vessels should be sent to a prize court for adjudication,
would involve danger to the ship of war or to the success of the operations in which she is at the time engaged.
The simple wish of the commander not to send such a vessel to a prize court when the vessel is innocent and when the cargo has become contraband without the knowledge of the master of the vessel would not be sufficient ground for requiring the giving up of the goods or for proceeding to the destruction of the goods.
The simple fact of remoteness from the prize court may make it inconvenient, expensive, or inexpedient to send the British vessel in, but such grounds are not sufficient to justify the use of force against a neutral vessel.
In such circumstances, if the master prefers the delay and the adjudication of the prize court to the delivery of the goods to the commander of the cruiser, he is free to make such a decision and to decline to deliver the goods. The commander of the cruiser would, under such conditions, be obliged to decide whether to send in or to release the neutral vessel.
In absence of exceptional necessity, and if the contraband is not voluntarily delivered, the commander of the cruiser should either send to a prize court or else release the neutral vessel.
PROPORTION OF CONTRABAND.
(It is granted in this situation that the Declaration of London is binding.)
X and Y are at war and a neutral vessel bound to an unblockaded port of Y is stopped on the high seas by a cruiser of State X.
The cargo consists of hay, canned meats, and flour, respectively, one-eighth, two-eighths, and five-eighths of the cargo in value, and the cargo is consigned to a wellknown commission merchant in the port of destination, which is not a fortified place, a military or a naval base, although there are several such bases at a distance of from 200 to 500 miles, all connected by rail.
Considering the provisions of the Declaration of London and the explanations thereof given in the General Report to the Conference, what action should the cruiser of X State take? Would a prize court probably condemn any or all of the cargo?
Would the vessel herself probably be a good prize?
If there were no treaty provisions to the contrary or regulations in contravention, and unless he is reasonably convinced of the enemy destination of the cargo, the captain of the cruiser of State X should allow the neutral vessel to proceed.
The prize court would probably not condemn the cargo. The neutral vessel would probably not be good prize.
NOTES. Review of attitude up to 1908.-It is evident from treaties, conventions, regulations, and opinions that there has been great diversity in the attitude toward penalizing a vessel for the carriage of contraband. The early practice has been gradually modified till the vessel if not involved beyond the simple act of carriage has generally been subject only to the loss and delay consequent upon the adjudication of the prize. Of course, false papers, resistance to visit and search, participation of the owner or captain in the venture otherwise than as carriers, involves penalities for the vessel. There could not be said to be any absolutely uniform rule in international law upon the subject of penalty for the carriage of contraband. As Prof. Oppenheim said in 1906 :
For beyond the rule that absolute contraband can be confiscated there is no unanimity regarding the fate of the vessel and the innocent part of the cargo. Great Britain and the United States of America confiscate the vessel when the owner of the contraband is also the owner of the vessel; they also confiscate such part of the innocent cargo as belongs to the owner of the contraband goods; they, lastly, confiscate the vessel, although her owner is 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. Some States allow such vessel carrying contraband as is not herself liable to confiscation to proceed with her voyage on delivery of her contraband goods to the seizing cruiser, but Great Britain and other States insist upon the vessel being brought before a prize court in every case. (2 Oppenheim, International Law, p. 443.)
The further divergence in practice and opinion is shown in the attitude of the powers which took part in the International Naval Conference of 1908-9 at London.
Early practice and opinion as to nature of penalty.In early times it was the practice to confiscate the ship carrying contraband. The theory was that the goods became of service to the enemy only by the transportation to the enemy. It was held that the vessel transporting contraband should therefore be as justly liable to confiscation as the contraband itself. Bynkershoek maintained that penalty for carriage of contraband should attach to the vessel as well as to the goods. (Quaestiones Juris Publici, Lib. I, cap. 2.) Heineceius also maintains that vessel and contraband fall under the same law. Earlier writers who mention the subject at all in general are of the same opinion. Grotius does not make any special mention of the penalty to which the vessel would be liable because she had carried contraband. There seem to have been variations in practice in the late middle ages, but there was no recognition of neutral rights as such.
A British proclamation of 1625, aimed against the King of Spain, after enumerating articles considered contraband, says:
And therefore if any person whatsoever, after three months from the publication of theis presentes, shall, by anie of his Majesties owne shippes, or the shippes of anie his subjects authorized to that effect, be taken sayling towards the places aforesaid, having on board anie of the things aforesaid, or returning thence in the same voyage, having vented or disposed of the said prohibited goods, his Majestie will hould both the shipps and goods soe taken for lawful prize, and cause them to be ordered as duely forfeited, whereby as his Majestie doth putt in practice noe innovation, since the same course hath been held, and the same penalties have been heretofore inflicted by other States and Princes, upon the like occasions, and avowed and maintayned by publique wrytings and apologies, so nowe his Majestie is in a manner inforced thereunto, by proclamations set forth by the King of Spaine and the Archduchesse, in which the same and greater severity is professed against those that shall carry or have car. ried without limitation the like commodities into theis bis Maj. esties domynions. (Robinson, Collectanea Maritima, p. 66.)
The French ordinance of 1584 embodied the principles of ordinances as early as the year 1400. The provision making a neutral ship good prize for carriage of enemy goods seems to have been introduced about 1543. This was set forth in the ordinance of 1584 as article 69. The ordinance of 1681 strengthened this rule.
The treaty of Utrecht, 1713, between Great Britain and France makes definite provision in contravention of the principle of confiscation :
Art. XXVI. But if one party, on the exhibiting the abovesaid certificates, mentioning the particulars of the things on board, should discover any goods of that kind which are declared contraband or prohibited, by the nineteenth article of this treaty, designed for a port subject to the enemy of the other, it shall be unlawful to break up the hatches of that ship wherein the same shall happen to be found, whether she belong to the subjects of Great Britain or of France, to open the chests, packs, or casks therein, or to remove even the smallest parcel of the goods, unless the lading be brought on shore in the presence of the officers of the court of admiralty and an inventory thereof made; but there shall be no allowance to sell, exchange, or alienate the same in any manner, unless after that due and lawful process shall
have been had against such prohibited goods, and the judges of the admiralty, respectively, shall, by a sentence pronounced, have confiscated the same; saving always, as well the ship itself, as the other goods found therein, which by this treaty are to be esteemed free; neither may they be detained on pretense of their being, as it were, infected by the prohibited goods, much less shall they be confiscated as lawful prize; but if not the whole cargo, but only part thereof shall consist of prohibited or contraband goods, and the commander of the ship shall be ready and willing to deliver them to the captor who has discovered them, in such case the captor, having received those goods, shall forthwith discharge the ship, and not hinder her by any means freely to prosecute the voyage on which she was bound.
The practice and opinion of the eighteenth century was not uniform. Treaties also show the variation as during the seventeenth century. Article XXVI of the treaty of Utrecht mentioned above became in effect Article XIII of the treaty of 1778 between the United States and France. Article XIII of the treaty of 1800 between the same powers, after enumerating articles contraband of war, said:
All the above articles, whenever they are destined to the port of an enemy, are hereby declared to be contraband and just objects of confiscation; but the vessel in which they are laden, and the residue of the cargo, shall be considered free and not in any manner infected by the prohibited goods, whether belonging to the same or a different owner.
Pillet, reviewing the attitude toward the carriage of contraband, says:
La sanction de l'interdiction du commerce de la contrebande de guerre est dans la confiscation des marchandises de contrebande, confiscation qui doit être régulièrement prononcée par le tribunal des prises compétent. Cette confiscation doit-elle s'étendre même aux marchandises qui n'ont pas le caratère de contrebande, lorsqu'elles sont comprises dans le même chargement?
L'ordonnance française de 1778 admettait que la cargaison entière ainsi que le navire peuvent être confisqués lorsque la contrebande y figure pour les trois quarts de l'ensemble. Ailleurs, cette proportion est abaissée à la moitié. La jurisprudence la plus sévère, celle de l'Angleterre, admet d'autres cas encore dans lesquels la marchandise innocente devra partager le sort de la marchandise illicite. Il est fort à souhaiter que cette nouvelle application de la doctrine de l'infection hostile disparaisse complètement. Étendue à la totalité de la carga ison, la confiscation