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Application of Declaration.
97 plans of the fleet. The propriety of destruction, if otherwise legal, would in such case depend upon the proper interpretation of the clause of article 49, “ the operations in which she is at the time engaged." The interpretation of this clause, as set forth in the General Report of the International Naval Conference, is:
It is, of course, the situation at the moment when the destruc'tion takes place which must be considered in order to decide whether the conditions are or are not fulfilled. A danger which did not exist at the actual moment of the capture may have appeared sometime afterwards.
The United States fleet is sailing to make an attack upon a fortified port of State X, but it is not engaged in this attack, indeed it may never make the attack. It may be met by a fleet of State X and may be driven away. It may
receive orders to take other action. The war may come to an end before it reaches State X. Many other possible circumstances may arise which will make the contemplated attack upon the fortified port of State X impossible or unnecessary. The situation is not therefore such as to justify the destruction of the British merchantman on the ground that her preservation endangers the “success of the operations in which the belligerent vessel is at the time engaged.”
Article 54 gives the commander of the United States fleet certain rights as regards the contraband on board, provided the military necessity is such as contemplated in article 49.
ART. 54. 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, 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.
It is generally regarded as justifiable for a commander to assume such control as may be necessary over wireless telegraph apparatus within the zone of actual operations, though as wireless is now regarded as a necessary part of a vessel's equipment, this apparatus should in general not be destroyed. The commander of the fleet can therefore take necessary measures to make certain that the neutral vessel will not use the wireless equipment in an unneutral manner which would endanger the success of his military operations.
The protest of the British master against the destruction of his vessel is correct.
The commander of the United States fleet may, if military necessity or treaty provision justifies, take or destroy the contraband on board the merchant vessel, and he may take measures to assure himself that the wireless apparatus will not be put to unneutral use.
DELIVERY OF CONTRABAND AT SEA.
(It is granted in this situation that the Declaration of London is binding.)
There is war between the United States and State X. Great Britain is neutral. A British vessel, having on board articles of the nature of absolute contraband and bound for a port of State X, is met at sea by a United States cruiser. It is evident from the date of sailing and from the vessel's papers that she did not know of the outbreak of hostilities. The commander of the cruiser is remote from a prize court and does not wish to take the merchant vessel in. He requests her master to deliver the contraband. The master declines.
What should the commander of the cruiser do?
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.
Treaty provisions on delivery of contraband.—One of the earliest treaties providing for the delivery of contraband by a neutral master to a visiting belligerent is that of February 7/17, 1667/8, between Great Britain and the States-General of the United Netherlands.
XIV. If it should happen that any of the said French captains should make prize of a vessel laden with contraband goods, as hath been said, the said captains may not open nor break up the chests, mails, packs, bags, cask, or sell, or exchange, or otherwise alienate them, until they have landed them in the presence of the judges or officers of the Admiralty, and after an inventory by them made of the said goods found in the said vessels; unless the contraband goods making but a part of the lading, the master of the ship should be content to deliver the said contraband goods
unto the said captain, and to pursue his voyage;' in which case the said master shall by no means be hindered from continuing his course and the design of his voyage. (1 Chalmers Collection of Treaties, vol. 1, p. 167.)
The treaty with France of February 4, 1676–77, Article VII, stated :
If the vessel is laden but in part with contraband goods, and the master thereof offers to put them in the captor's hands, the captor shall not then oblige him to go into any port, but shall suffer him to continue his voyage.
The words “ agree, consent, and offer to deliver them to the captor " is the form used in some of the later treaties.
Similar provision appears in treaties between European States during the late seventeenth and during the eighteenth centuries. Article 26 of the treaty of Utrecht between Great Britain and France, 1713, is an example of the prevalence of this form of international agreeinent.
A provision in regard to the delivery of contraband by a neutral vessel in the treaty of 1782 between Russia and Denmark reads:
ART. XX. Que si par contre un navire visité se trouvoit surpris en contrebande, l'on ne pourra point pour cela rompre les caisses, coffres, balles & tonneaux qui se trouveront sur le même navire, pi détourner la moindre partie des marchandises; mais le capteur séra en droit d'amener le dit navire dans un port, où après l'instruction du procès faite par devant les juges de l'amirauté selon les règles & loix établies, & après que la sentence définitive aura été portée, la marchandise non-permise, ou reconnue pour contrebande, sera confisquée, tandis que les autres effets & marchandises, s'il s'en trouvoit sur le même navire, seront rendus, sans que l'on puisse jamais retenir ni vaisseau, ni effets, sous prétexte de frais ou d'amende. Pendant la durée du procès le Capitaine, après avoir délivré la marchandise reconnue pour contrebande, ne sera point obligé malgré lui, d'attendre la fin de son affaire; mais il pourra se mettre en mer avec son vaisseau & le reste de sa cargaison, quand bon lui semblera, & au cas qu'un navire marchand de l'une des deux Puissances en paix fat saisi en pleine mer, par un vaisseau de guerre, ou armateur, de ceile qui est en guerre, & qu'il se trouvật chargé d'une marchandise reconnue pour contrebande, il sera libre au dit navire marchand, s'il le juge à propos, d'abandonner d'abord la dite contrebande à son capteur, lequel devra se contenter de cet abandon volontaire, sans pouvoir retenir, molester ou inquiéter en aucune façon le Treaty Provisions.
navire, ni l'équipage, qui pourra dès ce moment poursuivre sa route en toute liberté. (De Martens, Recueil des Principaux Traités d'Alliance, etc., Tome II, 1779-1786, inclusive, p. 292.)
Russia also made similar treaties with Austria in 1873; with France in 1787; with the Two Sicilies and with Portugal in the same year; and with Sweden in 1801. Other European powers have made a few such agreements.
Orders to commanders and domestic regulations of much earlier date than 1782 allow a form of surrender of contraband by neutral masters and its acceptance by belligerent commanders.
Treaties of the United States.- The United States early made treaty agreements in regard to the handing over of contraband by a neutral vessel. One of the earliest of such treaties was negotiated with Sweden in 1783 and is still in force. The“ certificates” mentioned in the treaty are ships' papers which containa particular account of the cargo, the place from which the vessel sailed, and that of her destination ... which certificates shall be made out by the officers of the place from which the vessel shall depart.
Article 13 of the treaty with Sweden referring to the handing over of contraband is as follows:
If on producing the said certificates it be discovered that the vessel carries some of the goods which are declared to be prohibited or contraband and which are consigned to an enemy's port, it shall not, however, be lawful to break up the batches of such ships nor to open any chest, coffers, packs, casks, or vessels, nor to remove or displace the smallest part of the merchandises until the cargo has been landed in the presence of officers appointed for the purpose and until an inventory thereof has been taken; nor shall it be lawful to sell, exchange, or alienate the cargo or any part thereof until legal process shall have been had against the prohibited merchandises, and sentence shall have passed declaring them liable to confiscation, saving, nevertheless, as well the ships themselves as the other merchandises which shall have been found therein, which by virtue of this present treaty are to be esteemed free, and which are not to be detained on pretense of their having been loaded with prohibited merchandise and much less confiscated as lawful prize. And in case the contraband merchandise be only a part of the cargo, and the master of the vessel agrees, consents, and offers to deliver them to