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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 continne 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 agreement.
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 carga ison, 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 trouvât 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
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, howerer, 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, sa ving, 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 the vessel that has discovered them, in that case the latter, after receiving the merchandises which are good prize, shall immediately let the vessel go and shall not by any means hinder her from pursuing her voyage to the place of her destination. When a vessel is taken and brought into any of the ports of the contracting parties, if upon examination she be found to be loaded only with merchandises declared to be free, the owner, or he who has made the prize, shall be bound to pay all costs and damages to the master of the vessel unjustly detained. (Treaties and Conventions, 1776-1909, vol. 2, p. 1729.)
The treaty of the United States with Prussia of 1799, which is regarded as still operative, has a provision relating to the delivery of contraband, but the wording is somewhat different from that of the Swedish treaty. Article XIII of the Prussian treaty reads:
And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, ammunition, and military stores of every kind, no such articles, carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors, and it shall further be allowed to use in the service of the captors, the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. 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.
All cannons, mortars, firearms, pistols, bombs, grenades, bullets. balls, muskets, flints, matches, powder, saltpeter, sulphur, cuirasses, pikes, swords, belts, cartouch boxes, saddles and bridles, beyond the quantity necessary for the use of the ship, or beyond that which every man serving on board the vessel, or passenger, ought to have, and, in general, whatever is comprised under the denomination of arms and military stores, or what description so ever, shall be deemed objects of contraband. (Ibid., p. 1491.)
Treaty Provisions. .
103 The treaty of 1828 between the United States and Brazil has a somewhat different statement from that of earlier treaties.
ART. 18. The articles of contraband, before enumerated and classified, which may be found in a vessel bound for an enemy's port, shall be subject to detention and confiscation, leaving free the rest of the cargo and the ship, that the owners may dispose of them as they see proper. No vessel of either of the two nations shall be detained on the high seas on account of having on board articles of contraband, whenever the master, captain, or supercargo of said vessels will deliver up the articles of contraband to the captor, unless the quantity of such articles be so great and of so large a bulk that they can not be received on board the capturing ship without great inconvenience; but in this and all the other cases of just detention the vessel detained shall be sent to the nearest convenient and safe port, for trial and judgment, according to law. (Ibid., vol. 1, p. 139.)
Article 19 of the treaty of 1846 between the United States and Colombia (ibid., p. 308) is identical with article 18 of the Brazilian treaty above mentioned.
The same may be said of Article 19 of the Bolivian treaty of 1858. (Ibid., p. 119.)
The treaty between the United States and Haiti of 1864, terminated in 1905, provided for the acceptance of the evidence of certificates and for delivery of contraband under certain restrictions.
ART. 23. To avoid all kind of vexation and abuse in the examination of the papers relating to the ownership of the vessels belonging to the citizens of the contracting parties, it is hereby agreed that when one party shall be engaged in war and the other party shall be neutral the vessels of the neutral party sball be furnished with passports, that it may appear thereby that they really belong to citizens of the neutral party. These passports shall be valid for any number of voyages, but shall be renewed every year.
If the vessels are laden, in addition to the passports above na med, they shall be provided with certificates, in due form, made out by the officers of the place whence they sailed, so that it may be known whether they carry any contraband goods. And if it shall not appear from the said certificates that there are contraband goods on board, the vessels shall be permitted to proceed on their voyage. If it shall appear from the certificates that there are contraband goods on board any such ressel, and the commander of the same shall offer to deliver them up, that offer shall be accepted, and a receipt for the same shall be given, and the vessel shall be at liberty to pursue her voyage unless the quantity of contraband goods be greater than can be conveniently received on board the ship of war or privateer, in which case, as in all other cases of just detention, the vessel shall be carried to the nearest safe and convenient port for the delivery of the same.
In case any vessel shall not be furnished with such passport or certificates as are above required for the same, such case may be examined by a proper judge or tribunal; and if it shall appear from other documents or proofs, admissible by the usage of nations, that the vessel belongs to citizens or subjects of the neutral party, it shall not be confiscated, but shall be released with her cargo (contraband goods excepted) and be permitted to proceed on her voyage. (Ibid., p. 927.)
The United States has had similar provisions in treaties with France, 1800; with Central America, 1825; with Mexico, 1831; with Venezuela, 1836; with Peru, 1836; with Ecuador, 1839; and with San Salvador, 1850.
A late treaty containing a provision in regard to delivery of contraband was that of March 9, 1874, between the Argentine Republic and Peru:
XXIII. No vessel of either of the contracting parties shall be detained on the high seas for having articles of contraband on board, provided always the captain or supercargo of the said vessel deliver the articles of contraband to the captor, unless these articles should be numerous or of such great bulk that they can not, without serious inconvenience, be received on board the captor's vessel ; but in this and all the other cases of just detention the vessel detained shall be sent to the nearest convenient and secure port, to be there judged agreeably with the laws. (British and Foreign State Papers, vol. 69, p. 706.)
British rule.—The British Manual of Naval Prize Law of 1866 provided :
186. The commander will not be justified in taking out of a vessel any contraband goods he may have found on board, and then allowing the vessel to proceed; his duty is to detain the vessel, and send her in for adjudication, together with the contraband goods on board.
This clause appears in the manual prepared by Prof. Holland and issued by authority of the Lords Commissioners of the Admiralty in 1888 as No. 81.