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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 de 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-Hungary, 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 de. struction 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.
In accordance with Article 54 of the Declaration of London, the captor has a right to require the giving up of such goods provided 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?
SOLUTION. 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,