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Provision of Declaration of London, 1909.

127

It is evident that a single standard might be evaded with comparative ease. Suppose that the restriction should be that a vessel would be confiscated only when more than one-half its cargo by value was contraband. It might be possible to take as part of the cargo a single diamond which in weight or volume would constitute only an infinitesimal part of the cargo_would the vessel be exempt though the remainder of her cargo might be contraband! It would be manifestly easy to shift the freight rates so that the evidence might be misleading. It was therefore thought best to introduce in the Declaration of London several tests for determining the liability of the vessel.

Provision of the Declaration of London, 1909.The final form was embodied in article 40 of the Declaration of London.

ARTICLE 40.—A vessel carrying contraband may be con

demned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo. The General Report interprets this article as follows:

It was universally admitted, however, that in certain cases the condemnation of the contraband does not suffice, and that condemnation should extend to the vessel herself, but opinions differed as to the determination of these cases. It was decided to fix upon a certain proportion between the contraband and the total cargo.

But the question divides itself: (1) What shall be the proportion? The solution adopted is the mean between those proposed, which ranged from a quarter to three quarters. (2) How shall this proportion be reckoned? Must the contraband form more than half the cargo in volume, weight, value, or freight? The adoption of a single fixed standard gives rise to theoretical objections, and also encourages practices intended to avoid condemnation of the vessel in spite of the importance of the cargo. If the standard of volume or weight is adopted, the master will ship innocent goods sufficiently bulky, or weighty in order that the volume or weight of the contraband may be less. A similar remark may be made as regards the value or the freight. The consequence is that it suffices, in order to justify condemnation, that the contraband should form more than half the cargo according to any one of the points of view mentioned. This may seem severe; but, on the one hand, proceeding in any other manner would make fraudulent calculations easy, and, on the other, it may be said that the condemnation of the vessel is justified when the carriage of contraband formed an important part of her venture, which is true in each of the cases specified. (International Law Topics, Naval War College, 1909, pp. 89, 91.)

Nature of the cargo.In the situation under consideration the cargo consists of hay, canned meats, and flour. By Article 24 of the Declaration of London

The following articles and materials, susceptible of use in war as well as for purposes of peace, are, without notice, regarded as contraband of war, under the name of conditional contraband:

(1) Food.
(2) Forage and grain suitable for feeding animals.

The entire cargo would, if destined for warlike use, be of the nature of conditional contraband.

Destination of cargo.--In accordance with Article 33 of the Declaration of London

Conditional contraband is liable to capture if it is shown that it is destined for the use of the armed forces or of a Government department of the enemy State, unless in this latter case the circumstances show that the articles can not in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under article 24 (4). (International Law Topics, 1909, p. 79.)

Article 34 and the General Report bearing upon it attempts to define enemy destination. ARTICLE 34.-The destination referred to in Article 33 is presumed

to exist if the goods are consigned to enemy authorities or to a merchant, established in the enemy country, who, as a matter of common knowledge supplies articles and material of the kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place of the enemy, or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she her. self is contraband. In cases where the above presumptions do not arise, the destination is presumed to be innocent. The presumptions set up by this article may be rebutted.

Ordinarly contraband articles will not be directly addressed to the military or to the administrative authorities of the enemy State. The true destination will be more or less concealed. It

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is for the captor to prove it in order to justify the capture. But it has been thought reasonable to set up presumptions based on the nature of the person to whom the articles are destined, or on the nature of the place for which the articles are destined. It may be an enemy authority or a trader established in an enemy country who, as a matter of common knowledge, supplies the enemy Government with articles of the kind in question. It may be a fortified place of the enemy or a place serving as a base, whether of operations or of supply, for the armed forces of the enemy.

This general presumption may not be applied to the merchant vessel herself which is bound for a fortified place, except on condition that her destination for the use of the armed forces or for the authorities of the enemy State is directly proved, though she may in herself be conditional contraband.

In the absence of the preceding presumptions, the destination is presumed to be innocent. This is the ordinary law, according to which the captor must prove the illicit character of the goods which he claims to capture.

Finally, all the presumptions thus established in the interest of the captor or against him admit proof to the contrary. The national tribunals, in the first place, and, in the second, the International Court, will exercise their judgment.

British view.-Mr. Norman Bentwich, summing up the British view of the effect of these articles relating to the condemnation, says:

According to existing English prize law, the ship carrying contraband is subject to condemnation if she has made forcible resistance to the captor, if she carries false or simulated papers, or if there are other circumstances amounting to fraud, or if she belongs to the owner of the contraband cargo. In other cases the ship is restored after condemnation of the cargo, but no compensation is paid for the loss of freight or time caused by the detention. (Cf. The Ringende Jacob, 1 C. Rob., 92.) Other countries, however, have condemned the vessel when the proportion between the noxious and innocent part of the cargo exceeded a certain fraction; in some cases when it was more than half, in others when more than two-thirds, in others, again, when more than three-fourths. The Declaration has established a uniform rule in place of this diversity of practice, according to which the vessel may be condemned whenever the contraband, reckoned either by value, or by weight, or by volume, or by freight, forms more than half the cargo. Further, when the vessel can not be condemned because the contraband is less than half the cargo by any of these measures, but there are circumstances which incrimipate her in the carriage, and suggest knowledge by the master of

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the nature of her cargo, the shipowner may be condemned to pay the costs of the captor incurred in making and adjudicating upon his prize. The same penalty would presumably be imposed also when the vessel carried fictitious or fraudulent papers. Following the existing practice, innocent goods which belong to the owner of the contraband on board the same vessel may be condemned ; but innocent goods belonging to another shipper, even if he be an enemy subject, must be released, though no compensation again is paid to their owner for detention and loss of market. On the whole, the deterrent powers of belligerents against contraband trade have been increased by the Declaration, but not wreasonably, since the gains for carriage of contraband being notoriously large it is fair to visit knowledge of the noxious character of the cargo on the shipowner, when the contraband forms inore than half of the goods on board. (The Declaration of London, p. 80.)

Résumé.--It may happen that there may be treaty specifications existing between States that make a case fall under the first clause of Article 7 of the Convention relative to the Creation of an International Prize Court. This clause provides :

If a question of law to be decided is covered by a treaty in force between the belligerent captor and a power which is itself or whose subject or citizen is a party to the proceedings, the court is governed by the provisions of the said treaty.

The Declaration of London might be of no effect if the States at war, X and Y, should have a treaty containing a clause like that in Article XIII of the treaty of 1799 between the United States and Prussia:

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.

As the cargo consists of hay, canned meats, and flour, articles which may be of use to the general population of State Y, the actual destination to the use of the enemy forces must be shown. The consignee is a well-known commission merchant in a place that is not fortified and not defended. The presumption, unless it is well known that he furnishes the Government of Y, is therefore that

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the cargo is innocent. From the statement of Situation V it can not be inferred that the commission merchant regularly furnishes the Government. If there are other ports from which supplies would more naturally be obtained, the presumption would be that these supplies were innocent. The presumption of innocence would therefore be favorable to the release of the vessel. The general rule for the naval officer would be that in case of doubt a vessel should be sent to a prize court for adjudication.

The doubt, with only such data as given as proposed in Situation V, is too great to warrant destruction of the neutral vessel under the provisions of the Declaration of London.

Under the provisions of the Declaration of London, which are presumed to be binding in this situation as proposed, it is evident that the cargo is of the nature of conditional contraband only if having a hostile destination, and hence the vessel carrying this cargo, if the cargo is bound for warlike use, should be sent to a prize court. The consignment to a commission merchant, even though established in an unfortified place, whose location is such as to make transportation to military bases easy, might be sufficient to justify the commander in sending the vessel to a prize court. The presumption would be that the cargo was innocent. It would be for the captor to prove the contrary.

From the discussions upon articles 33 and 34 at the International Naval Conference, it is evident that the prize court would probably condemn the entire cargo as contraband of war under the provision of article 39, which states, “ contraband is liable to condemnation," if the destination of any part was hostile or if the commission merchant were an enemy contractor.

Contrary to the practice of many States in late years, and also in contravention of certain existing treaties, Article 40 provides :

A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weigbt, volume, or freight, forms more than half the cargo.

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