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PRIZE COURT DECISIONS
(9) Articles and materials for the installation of telegraphs, telephones, or for the construction of railroads;
(10) Generally, everything intended for warfare by sea or land, as well as rice, provisions, and horses, beasts of burden, and other animals, which may be used for a warlike purpose, if they are transported on the account of, or are destined for, the enemy.
7. The following acts, forbidden to neutrals, are assimilated to contraband of war: The transport of the enemy's troops, of his dispatches and correspondence, the supply of transports and war ships to the enemy. Neutral vessels captured in the act of carrying contraband of this nature may, according to circumstances, be seized and even confiscated. (Rules of February 14, 1904.)
This Russian declaration in regard to contraband has called forth definite statements in regard to the position which certain neutral Governments proposed to assume. Various protests against the extreme position of Russia were lodged with that Government.
Prize court decisions.-Decisions have been made in accord with the Russian enumeration. These decisions of the Russian prize courts in some instances have been called in question. In some quarters this questioning of the decision of a prize court has been regarded as contrary to international comity if not to law. · Such statements have been quoted as that of Walker's in regard to the regular prize court:
That prize court can, by the nature of the case, be only the prize court of the captor, since, on the one hand, no independent belligerent will submit the legality of his conduct to the determination of third powers, and, on the other hand, no neutral third power can consistently with neutrality interfere between captor and captured. It has accordingly become well-recognized law that, in general, the jurisdiction of the prize court of the captor is in prize questions exclusive and the judgment of that court on a point within its competence is conclusive against the world. (Manual of Public International Law, p. 151.)
Prize courts, however, are not supposed to be prejudiced, though undoubtedly the local conditions may sometimes intluence judgments.
Sir William Scott, in the case of the Maria, in 1799, declared the purpose of the prize court to beto administer with indifference that justice which the law of nations holds out, without distinction to independent States, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. (1 C. Robinson's Admiralty Reports, 340.)
In supporting the position that a neutral nation is not bound to abide by the decision of a prize court, if such court is not properly constituted and does not respect international law, Mr. Balfour, in the House of Commons on August 11, 1904, said:
I must traverse the doctrine that when any prize court has given a decision, if the decision is contrary to the law of nations, it is to be accepted by the neutral. No neutral, doubtless, would desire to quarrel with the decision of a perfectly constituted prize court of a belliyerent country dealing with these matters; but if it be found that those prize courts do habitually condemn as contraband of war things which the law of nations says are not unconditional contraband of war, I do not think it would be possible for the neutral to sit down absolutely quiescent under a decision of that character.
Great Britain also acted in accord with this principle in asserting that she could not recognize as binding the decision of a prize court which should attempt to maintain the declaration of France in 1885 that rice bound for north China ports would be regarded as contraband. (Parliamentary Papers, France, No. 1, 1885.)
It must be observed that this position does not completely accord with the position taken in Holland's British Admiralty Manual of Prize Law, which asserts that
It is a part of the prerogative of the Crown during the war to extend or reduce the lists of articles to be held absolutely or conditionally contraband, subject, however, to any treaty engagements binding upon Great Britain. (No. 65.)
Nor does this clause of the Admiralty Manual accord with the position taken by other States during the RussoJapanese war in 1904. The States protesting against the classification of contraband made by Russia asserted that such classification could not be arbitrarily extended, but should be in accord with international law.
At the meeting of the Institute of International Law at Edinburgh, in September, 1904, the Lord Chancellor set forth the position which has met with growing favor. He said:
PROTESTS AGAINST RUSSIAN ATTITUDE.
Because two nations go to war they have no right to interrupt and interfere with the commerce of the world. They must recognize that people who are not engaged in the quarrel have a right to carry on their commerce.
Protests against Russian attitude, 1904-5.- Protests and representations of various degrees of directness were made in consequence of Russia's attitude on contraband in the Russo-Japanese war of 1904-5.
The Government of the United States sent the following communication:
DEPARTMENT OF STATE,
Washington D. C., June 10, 1904. To the Ambassadors of the United States in Europe:
GENTLEMEN: It appears from public documents that coal, naphtha, alcohol, and other fuel have been declared contraband of war by the Russian Government. These articles enter into general consumption in the arts of peace, to which they are vitally necessary. They are usually treated, not as “absolutely contraband of war,” like articles that are intended primarily for military purposes in time of war, such as ordnance, arms, ammunition, etc., but rather as “conditional contraband,” that is to say, articles that may be used for or converted to the purposes of war or peace, according to circumstances. They may rather be classed with provisions and food stuffs of ordinarily innocent use, but which may become absolutely contraband of war when actually and especially destined for the military or naval forces of the enemy.
In the war between the United States and Spain the Navy Department General Orders, No. 492, issued June 20, 1898, declared in article 19, as follows:
“The term contraband of war comprehends only articles having a belligerent destination.” Among articles absolutely contraband it declared ordnance, machine guns, and other articles of military or naval warfare. It declared as conditional contraband “coal, when destined for a naval station, a port of call, or a ship or ships of the enemy.” It likewise declared provisions to be conditionally contraband "when destined for the enemy's ship or ships, or for a place that is besieged."
The above rules as to articles absolutely or conditionally contraband of war were adopted in the naval war code promulgated by the Navy Department June 27, 1900. (Withdrawn February 4, 1904.)
While it appears that the documents mentioned that rice, food stuffs, horses, beasts of burden, and other animals which may be used in time of war are declared to be contraband of war only when they are transported for account of or destined to the enemy, yet all kinds of fuel, such as coal, naphtha, alcohol are classified along with arms, ammunition, and other articles intended for warfare on land and sea. The test in determining whether articles ancipitis usus are contraband of war is their destination for military uses of a belligerent. Mr. Dana in his notes to Wheaton's International Law, says:
“The chief circumstance of inquiry would naturally be the port of destination. If that is a naval arsenal, or a port in which vessels of war are usually fitted out, or in which a fleet is lying, or a garrison town, or a place from which military expedition is fitted out, the presumption of military use would be raised more or less strongly according to circumstances.”
In the wars of 1859 and 1870 coal was declared by France not to be contraband. During the latter war Great Britain held that the character of coal depended upon its destination and refused to permit vessels to sail with it to the French fleet in the North Sea. Where coal or other fuel is shipped to a port of a belligerent, with no presumption against its specific use, to condemn it as absolutely contraband would seem to be an extreme measure.
Mr. Hall, International Law, says:
“During the West African conference in 1884 Russia took occasion to dissent vigorously from the inclusion of coal among articles contraband of war, and declared that she would categorically refuse her consent to any articles in any treaty, convention, or instrument whatever which would imply its recognition as such."
We are also informed that it is intended to treat raw cotton as a contraband of war. While it is true raw cotton could be made into clothing for military uses of a belligerent, a military use for the supply of the army or garrison might possibly be made of foodstuff of every description which might be shipped from neutral ports to the nonblockaded ports of a belligerent. The principle under consideration might, therefore, be extended so as to apply to every article of human use which might be declared contraband of war simply because it might ultimately become in any degree useful to a belligerent for military purposes.
Coal or other fuel and cotton are applied for a great many innocent purposes. Many nations are dependent on them for the conduct of inoffensive industries, and no sufficient presumption of an intended warlike use seems to be afforded by the mere fact of their destination to a belligerent port. The recognition in principle of the treatment of coal and other fuel and raw cotton as absolutely contraband might ultimately lead to a total inhibition of the sale by neutrals to the people of belligerent States of all articles which could be finally converted to military uses. Such an extension of the principle, by treating coal and all other fuel and raw cotton as absolute contraband of war simply because they are shipped by a neutral to a nonblockaded port of a belligerent, would not appear to be in accord with the reasonable and lawful rights of a neutral commerce. I am your obedient servant,
VIEWS OF GREAT BRITAIN AND UNITED STATES.
Later in 1904 there was an exchange of views on the subject of the declaration of Russia between the Governments of Great Britain and the United States.
Mr. Choate to Lord Lansdoune.
London, June 24, 1904. My Lord: Referring to our recent interviews, in which you expressed a desire to know the views of my Government as to the order issued by the Russian Government on the 28th of February last, “making every kind of fuel, such as coal, naphtha, alcohol, and other similar materials, unconditionally contraband,” I am now able to state them as follows:
These articles enter into great consumption in the arts of peace, to which they are vitally necessary. They are usually treated not as “absolutely contraband of war," like articles that are intended primarily for military purposes in time of war, such as ordnance, arms, ammunition, etc., but rather as “conditionally contraband;" that is to say, articles that may be used for or converted to the purposes of war or peace according to circumstances. They may rather be classed with provisions and foodstuffs of ordinarily innocent use, but which may become absolutely contraband of war when actually and especially destined for the military and naval forces of the enemy. The recognition in principle of the treatment of coal and other fuel and raw cotton as absolutely contraband of war might ultimately lead to a total inhibition of the sale by neutrals to the people of belligerent states of all articles which could be finally converted to military uses. Such an extension of the principle, by treating coal and all other fuel and raw cotton as absolutely contraband of war simply because they are shipped by a neutral to a nonblockaded port of a belligerent, would not appear to be in accord with the reasonable and lawful rights of a neutral commerce.
I shall be glad to receive and transmit to my Government the views of His Majesty's Government on the same question as soon as your lordship shall have formulated them. I have, etc.,
JOSEPH H. CHOATE. Lord Lansdowne replied:
FOREIGN OFFICE, July 29, 1904. Your EXCELLENCY: I have the honor to acknowledge the receipt of your note of the 24th ultimo, containing the views of the United States Government with regard to the Russian regulations of the 28th February last, in which every kind of fuel, such as coal, naphtha, alcohol, and other similar materials is declared to be absolutely and unconditionally contraband of war..
I have the honor to inform Your Excellency, in reply to your request to be furnished with the views of His Majesty's Government on