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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 unreasonably, since the gains for carriage of contraband being notoriously large it fair to visit knowledge of the noxious character of the cargo on the shipowner, when the contraband forms more 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
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, weight, volume, or freight, forms more than half the cargo.
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.
JAN 31 1912