Chapter IV: Contraband (1)

I

CONCEPTION OF CONTRABAND

Grotius, III. c. 1, § 5--Bynkershoek, _Quaest. jur. publ._
I. cc, IX-XII--Vattel, III. §§ 111-113--Hall, §§ 236-247--Lawrence, §§
253-259--Westlake, II. pp. 240-265--Maine, pp. 96-122--Manning, pp.
352-399--Phillimore, III. §§ 226-284--Twiss, II. §§ 121-151--Halleck,
II. pp. 214-238--Taylor, §§ 653-666--Walker, §§ 73-75--Wharton, III.
§§ 368-375--Moore, VII. §§ 1249--1263--Wheaton, §§ 476-508
--Bluntschli, §§ 801-814--Heffter, §§ 158-161--Geffcken in
Holtzendorff, IV. pp. 713-731--Gareis, § 89--Liszt, § 42--Ullmann, §§
193-194--Bonfils, No. 1537-1588'15--Despagnet, Nos. 705-715 _ter_
--Rivier, II pp. 416-423--Calvo, V. §§ 2708-2795--Fiore, III. Nos.
1591-1601, and Code, Nos. 1827-1835--Martens, II. § 136--Kleen, I. §§
70-102--Boeck, Nos. 606-659--Pillet, pp. 315-330--Gessner, pp.
70-144--Perels, §§ 44-46--Testa, pp. 201-220--Lawrence, _War_, pp.
140-174--Ortolan, II. pp. 165-213--Hautefeuille, II. pp. 69-172
--Dupuis, Nos. 199-230, and _Guerre_, Nos. 137-171--Bernsten, §
9--Nippold, II. § 35--Takahashi, pp. 490-526--Holland, _Prize
Law_, §§ 57-87--U.S. Naval War Code, articles 34-36--Heineccius,
_De navibus ob vecturam vetitarum mercium commissis dissertatio_
(1740)--Huebner, _De la saisie des bâtiments neutres_, 2 vols.
(1759)--Valin, _Traité des prises_, 2 vols. (1763)--Martens, _Essai
sur les armateurs, les prises, et surtout les reprises_
(1795)--Lampredi, _Del commercio dei populi neutrali in tempo di
guerra_ (1801)--Tetens, _Considérations sur les droits réciproques
des puissances belligérantes et des puissances neutres sur mer_
(1805)--Pistoye et Duverdy, _Traité des prises maritimes_, 2 vols.
(1855)--Pratt, _The Law of Contraband of War_ (1856)--Moseley, _What
is Contraband and what is not?_ (1861)--Upton, _The Law of Nations
affecting Commerce during War_ (1863)--Lehmann, _Die Zufuhr von
Kriegskonterbandewaren, etc._ (1877)--Kleen, _De contrebande de
guerre et des transports interdits aux neutres_ (1893)--Vossen, _Die
Konterbande des Krieges_ (1896)--Manceaux, _De la contrebande de
guerre_ (1899)--Brochet, _De la contrebande de guerre_ (1900)--Hirsch,
_Kriegskonterbande und verbotene Transporte in Kriegszeiten_
(1901)--Pincitore, _Il contrabbando di guerra_ (1902)--Remy, _Théorie
de la continuauté du voyage en matière de blocus et de contrebande de
guerre_ (1902)--Knight, _Des états neutres au point de vue de la
contrebande de guerre_ (1903)--Wiegner, _Die Kriegskonterbande_
(1904)--Atherley-Jones, _Commerce in War_ (1906), pp. 1-91 and
253-283--Hold, _Die Kriegskonterbande_ (1907)--Hansemann, _Die
Lehre von der einheitlichen Reise im Rechte der Blockade und
Kriegskonterbande_ (1910)--Hirschmann, _Das internationale
Prisenrecht_ (1912), §§ 24-30--Westlake in _R.I._ II. (1870), pp.
614-655--Kleen in _R.I._ XXV. (1893), pp. 7, 124, 209, 389, and XXVI.
pp. 214-217 (1894)--Bar in _R.I._ XXVI. (1894), pp. 401-414--Brocher
de la Fléchère, in _R.I._ 2nd Ser. I. (1899), pp. 337-353--Fauchille
in _R.G._ IV. (1897), pp. 297-323--Kleen in _R.G._ XI. (1904), pp.
353-362--Gover in _The Journal of the Society of Comparative
Legislation_, new series, II. (1900), pp. 118-130--Kennedy and
Randall in _The Law Quarterly Review_, XXIV (1908), pp. 59-75,
316-327, and 449-464--General Report presented to the Naval Conference
of London by its Drafting Committee, articles 22-44.

[Sidenote: Definition of Contraband of War.]

§ 391. The term contraband is derived from the Italian "contrabbando," which, itself deriving from the Latin "contra" and "bannum" or "bandum," means "in defiance of an injunction." Contraband of war[813] is the designation of such goods as by either belligerent are forbidden to be carried to the enemy on the ground that they enable the latter to carry on the war with greater vigour. But this definition is only a formal one, as it does not state what kinds of goods belong to the class of contraband. This point was much controverted before the Declaration of London. Throughout the seventeenth, eighteenth, and nineteenth centuries the matter stood as Grotius had explained it. Although he does not employ the term contraband, he treats of the matter. He[814] distinguishes three different kinds of articles. Firstly, those which, as arms for instance, can only be made use of in war, and which are, therefore, always contraband. Secondly, those, as for example articles of luxury, which can never be made use of in war and which, therefore, are never contraband. Thirdly, those which, as money, provisions, ships, and articles of naval equipment, can be made use of in war as well as in peace, and which are on account of their ancipitous use contraband or not according to the circumstances of the case. In spite of Bynkershoek's decided opposition[815] to this distinction by Grotius, the practice of most belligerents until the beginning of the twentieth century has been in conformity with it. A great many treaties have from the beginning of the sixteenth century been concluded between many States for the purpose of fixing what articles belonging to the class of ancipitous use should, and what should not, be regarded between the parties as contraband, but these treaties disagree with one another. And, so far as they were not bound by a treaty, belligerents formerly exercised their discretion in every war according to the special circumstances and conditions in regarding or not regarding certain articles of ancipitous use as contraband. The endeavour of the First and the Second Armed Neutrality of 1780 and 1800 to restrict the number and kinds of articles that could be regarded as contraband failed, and the Declaration of Paris of 1856 uses the term contraband without any attempt to define it.

[Footnote 813: Although--see above, §§ 173-174--prevention of carriage of contraband is a means of sea warfare against the enemy, it chiefly concerns neutral commerce and is, therefore, more conveniently treated with neutrality.]

[Footnote 814: See Grotius, III. c. I, § 5:--"Sunt res quae in bello tantum usum habent, ut arma: sunt quae in bello nullum habent usum, ut quae voluptati inserviunt: sunt quae et in bello et extra bellum usum habent, ut pecuniae, commeatus, naves, et quae navibus adsunt.... In tertio illo genere usus ancipitis, distinguendus erit belli status...."]

[Footnote 815: See Bynkershoek, _Quaest. jur. publici._ I. c. X.]

It is by the Declaration of London that the Powers have, for the first time in history, come to an agreement concerning what articles are contraband. The distinction which Grotius made between three classes of goods, while still recognised, has been merged by the Declaration of London into the distinction between articles of absolute contraband, articles of conditional contraband, and such articles as may under no circumstances or conditions be considered contraband. This Declaration, moreover, has put the whole matter of contraband upon a new basis, since the Powers have by articles 22 to 44 agreed upon a common code of rules concerning contraband.

[Sidenote: Absolute and conditional Contraband, and free Articles.]

§ 392. Apart from the distinction between articles which can be made use of only in war and those of ancipitous use, two different classes of contraband must be distinguished.

There are, firstly, articles which by their very character are destined to be made use of in war. In this class are to be reckoned not only arms and ammunition, but also such articles of ancipitous use as military stores, naval stores, and the like. They are termed absolute contraband.

There are, secondly, articles which by their very character are not destined to be made use of in war, but which under certain circumstances and conditions can be of the greatest use to a belligerent for the continuation of the war. To this class belong, for instance, provisions, coal, gold, and silver. These articles are termed conditional or relative contraband.

Although hitherto not all the States have made this distinction, nevertheless they did make a distinction in so far as they varied the list of articles which they declared contraband in their different wars; certain articles, as arms and ammunition, have always been on the list, whilst other articles were only considered contraband when the circumstances of a particular war made it necessary. The majority of writers have always approved of the distinction between absolute and conditional contraband, although several insisted that arms and ammunition only and exclusively could be recognised as contraband, and that conditional contraband did not exist.[816] The distinction would seem to have been important not only regarding the question whether or no an article was contraband, but also regarding the consequences of carrying contraband.[817]

[Footnote 816: See, for instance, Hautefeuille, II. p. 157, and Kleen, I. § 90.]

[Footnote 817: See below, § 405, p. 510.]

The Declaration of London has adopted (articles 22 and 24) the distinction between absolute and conditional contraband, but it distinguishes, besides these two classes of articles, a third class (article 27). To this class belong all articles which are either not susceptible of use in war, or the possibility of the use of which in war is so remote as practically to make them not susceptible of use in war. These articles are termed _free articles_.[818]

[Footnote 818: But there are a number of other free articles, although they do not belong to the articles characterised above; see below, § 396_a_.]

[Sidenote: Articles absolutely Contraband.]

§ 393. That absolute contraband cannot and need not be restricted to arms and ammunition only and exclusively becomes obvious, if the fact is taken into consideration that other articles, although of ancipitous use, can be as valuable and essential to a belligerent for the continuance of the war as arms and ammunition. The necessary machinery and material for the manufacture of arms and ammunition are almost as valuable as the latter themselves, and warfare on sea can as little be waged without vessels and articles of naval equipment as without arms and ammunition. But formerly no unanimity existed with regard to such articles of ancipitous use as had to be considered as absolute contraband, and States, when they went to war, increased or restricted, according to the circumstances of the particular war, the list of articles they considered absolute contraband.

According to the British practice[819] which has hitherto prevailed--subject, however, to the prerogative of the Crown to order alterations of the list during a war--the following articles were considered absolute contraband:--

Arms of all kinds, and machinery for manufacturing arms;
ammunition, and materials for ammunition, including lead, sulphate
of potash, muriate of potash (chloride of potassium), chlorate of
potash, and nitrate of soda; gunpowder and its materials,
saltpetre and brimstone, also guncotton; military equipments and
clothing; military stores; naval stores, such as masts, spars,
rudders, ship timbers, hemp and cordage, sail-cloth, pitch and
tar, copper for sheathing vessels, marine engines and the
component parts thereof (including screw propellers,
paddle-wheels, cylinders, cranks, shafts, boilers, tubes for
boilers, boiler-plates and fire bars), maritime cement and the
materials used for its manufacture (as blue lias and Portland
cement), iron in any of the following forms: anchors, rivet-iron,
angle-iron, round bars of from 3/4 to 5/8 of an inch diameter,
rivets, strips of iron, sheet plate-iron exceeding 1/4 of an inch,
and Low Moor and Bowling plates.

[Footnote 819: See Holland, _Prize Law_, § 62.]

By articles 22 and 23 of the Declaration of London an agreement has been reached according to which two classes of absolute contraband must be distinguished. Article 22 enumerates eleven groups of articles which may _always_, without special declaration and notice, be treated as absolute contraband. These constitute the first class. The second--see article 23--consists of such articles exclusively used for war as are not enumerated[820] amongst the eleven groups of the first class; these may be treated as absolute contraband also, but only _after special declaration and notification_. Such declaration may be published during time of peace, and notification thereof must then be addressed to all other Powers; but if the declaration is published after the outbreak of hostilities, a notification need only be addressed to the neutral Powers. Should a Power--see article 26--waive, so far as itself is concerned, the right to treat as absolute contraband an article comprised in the first class, notification thereof must be made to the other Powers. The following are the groups of articles comprised in the first class:--

(1) Arms of all kinds, including arms for sporting purposes, and
their distinctive component parts.

(2) Projectiles, charges, and cartridges of all kinds, and their
distinctive component parts.

(3) Powder and explosives specially prepared for use in war.

(4) Gun-mountings, limber boxes, limbers, military waggons, field
forges, and their distinctive component parts.

(5) Clothing and equipment of a distinctively military character.

(6) All kinds of harness of a distinctively military character.

(7) Saddle, draught, and pack animals suitable for use in war.

(8) Articles of camp equipment, and their distinctive component
parts.

(9) Armour plates.

(10) Warships, including boats, and their distinctive component
parts of such a nature that they can only be used on a vessel of
war.

(11) Implements and apparatus designed exclusively for the
manufacture of munitions of war, for the manufacture or repair of
arms, or war material for use on land or sea.

[Footnote 820: The Report of the Drafting Committee on article 23 recognises that at present it would be difficult to mention any articles which could under article 23 be declared absolute contraband, but since future contingencies cannot be foreseen, it was considered necessary to stipulate the possibility of increasing the list of absolute contraband. That only such additional articles could be declared absolute contraband as by their very character are destined to be made use of in war, is a matter of course.]

It is apparent that this list embodies a compromise, for it includes several articles--such as saddle, draught, and pack animals suitable for use in war--which Great Britain and other Powers formerly only considered as conditional contraband.

[Sidenote: Articles conditionally Contraband.]

§ 394. There are many articles which are not by their character destined to be made use of in war, but which are nevertheless of great value to belligerents for the continuance of war. Such articles are conditionally contraband, which means that they are contraband when it is clearly apparent--see below, § 395--that they are intended to be made use of for military or naval purposes. This intention becomes apparent on considering either the destination of the vessel carrying the articles concerned, or the consignee of the articles.

Before the Declaration of London neither the practice of States nor the opinion of writers agreed upon the matter, and it was in especial controversial[821] whether or no foodstuffs, horses and other beasts of burden, coal and other fuel, money and the like, and cotton could conditionally be declared contraband.

(1) That _foodstuffs_ should not under ordinary circumstances be declared contraband there ought to be no doubt. There are even several[822] writers who emphatically deny that foodstuffs could ever be conditional contraband. But the majority of writers has always admitted that foodstuffs destined for the use of the enemy army or navy might be declared contraband. This has been the practice of Great Britain,[823] the United States of America, and Japan. But in 1885, during her hostilities against China, France declared rice in general as contraband, on the ground of the importance of this article to the Chinese population. And Russia in 1904, during the Russo-Japanese war, declared rice and provisions in general as contraband; on the protest of Great Britain and the United States of America, however, she altered her decision and declared these articles conditional contraband only.

(2) The importance of _horses and other beasts of burden_ for cavalry, artillery, and military transport explains their frequently being declared as contraband by belligerents. No argument against their character as conditional contraband can have any basis. But they were frequently declared absolute contraband, as, for instance, by article 36 of the United States Naval War Code of 1900. Russia, which during the Russo-Japanese War altered the standpoint taken up at first by her, and recognised the distinction between absolute and conditional contraband, nevertheless maintained her declaration of horses and beasts of burden as absolute contraband. The Declaration of London, by article 22, No. 7, declares them as absolute contraband.

(3) Since men-of-war are nowadays propelled by steam power, the importance of _coal_, and eventually other fuel for waging war at sea is obvious. For this reason, Great Britain has ever since 1854 maintained that coal, if destined for belligerent men-of-war or belligerent naval ports, is contraband. But in 1859 France and Italy did not take up the same standpoint. Russia, although in 1885 she declared that she would never consent to coal being regarded as contraband, in 1904 declared coal, naphtha, alcohol, and every other kind of fuel, absolute contraband. And she adhered to this standpoint, although she was made to recognise the distinction between absolute and conditional contraband.

(4) As regards _money_, unwrought precious metals which may be coined into money, bonds and the like, the mere fact that a neutral is prohibited by his duty of impartiality from granting a loan to a belligerent ought to bring conviction that these articles are contraband if destined for the enemy State or its forces. However, the case seldom happens that these articles are brought by neutral vessels to belligerent ports, since under the modern conditions of trade belligerents can be supplied in other ways with the necessary funds.

(5) As regards _raw cotton_, it is asserted[824] that in 1861, during the Civil War, the United States declared it absolute contraband under quite peculiar circumstances, since it took the place of money sent abroad for the purpose of paying for vessels, arms, and ammunition. But this assertion is erroneous.[825] Be that as it may, raw cotton should not, under ordinary circumstances, be able to be considered absolute contraband. For this reason Great Britain protested when Russia, in 1904 during the Russo-Japanese War, declared cotton in general as contraband; Russia altered her standpoint and declared cotton conditional contraband only.[826]

[Footnote 821: See Perels, § 45, and Hall, §§ 242-246, who give bird's-eye views of the controversy.]

[Footnote 822: See, for instance, Bluntschli, § 807.]

[Footnote 823: The _Jonge Margaretha_ (1799), 1 C. Rob. 189.]

[Footnote 824: See Hall, § 246, p. 690, note 2; Taylor, § 662; Wharton, III. § 373.]

[Footnote 825: See Moore, VII. § 1254, and Holland, _Letters to the "Times" upon War and Neutrality_ (1909) pp. 108-112.]

[Footnote 826: According to the British practice which has hitherto prevailed--see Holland, _Prize Law_, § 64--the list of conditional contraband comprises:--Provisions and liquors for the consumption of army and navy; money, telegraphic materials, such as wire, porous cups, platina, sulphuric acid, and zinc; materials for the construction of a railway, as iron bars, sleepers, and the like; coal, hay, horses, rosin, tallow, timber. But it always was in the prerogative of the Crown to extend or reduce this list during a war according to the requirements of the circumstances.]

By articles 24 to 28 of the Declaration of London an agreement has been reached by the Powers according to which two classes of conditional contraband must be distinguished. Article 24 enumerates fourteen groups of articles which may _always_, without special declaration and notice, be treated as conditional contraband; these constitute the first class. The second--see article 25--consists of articles which are not enumerated either amongst the eleven groups of absolute contraband contained in article 22 or amongst the fourteen groups of conditional contraband contained in article 24, but which are nevertheless susceptible of use in war as well as for purposes of peace; these may be treated as conditional contraband also, but _only after special declaration and notification_. Such declaration may be published during time of peace, and notification thereof must then be addressed to all other Powers; but if the declaration is published after the outbreak of hostilities a notification need be addressed to the neutral Powers only. Should a Power--see article 26--waive, so far as itself is concerned, the right to treat as conditional contraband an article comprised in the first class, notification thereof must be made to the other Powers. But it is of course obvious, although not specially stated in article 26, that a Power may treat as conditional contraband any article belonging either to the first or second class of absolute contraband; in such a case, however, special declaration and notification would seem to be necessary. The following are the groups of articles comprised in the first class of conditional contraband:--

(1) Foodstuffs.

(2) Forage and grain, suitable for feeding animals.

(3) Clothing, fabrics for clothing, and boots and shoes, suitable
for use in war.

(4) Gold and silver in coin or bullion; paper money.

(5) Vehicles of all kinds available for use in war, and their
component parts.

(6) Vessels, craft, and boats of all kinds; floating docks, parts
of docks and their component parts.

(7) Railway material, both fixed and rolling-stock, and material
for telegraphs, wireless telegraphs, and telephones.

(8) Balloons and flying machines and their distinctive component
parts, together with accessories and articles recognisable as
intended for use in connection with balloons and flying machines.

(9) Fuel; lubricants.

(10) Powder and explosives not specially prepared for use in war.

(11) Barbed wire and implements for fixing and cutting the same.

(12) Horseshoes and shoeing materials.

(13) Harness and saddlery.

(14) Field glasses, telescopes, chronometers, and all kinds of
nautical instruments.

This list represents a compromise, just as does the list of absolute contraband of article 22. Those opponents of the Declaration of London who object to foodstuffs being on the list of conditional contraband forget that several times in the past--see above, p. 486 (1)--belligerents have declared foodstuffs absolute contraband.

[Sidenote: Hostile Destination essential to Contraband.]

§ 395. Whatever may be the nature of articles, they are never contraband unless they are destined for the use of a belligerent in war. Arms and ammunition destined for a neutral are as little contraband as other goods with the same destination. As this hostile destination is essential even for articles which are obviously used in war, such hostile destination is all the more important for such articles of ancipitous use as are only conditionally contraband. Thus, for instance, provisions and coal are perfectly innocent and not at all contraband if they are not purposely destined for enemy troops and naval forces, but are destined for use by a neutral. However, the destination of the articles must not be confounded with the destination of the vessel which carries them. For, on the one hand, certain articles with a hostile destination are considered contraband although the carrying vessel is destined for a neutral port, and, on the other hand, certain articles, although they are without a hostile destination, are considered contraband because the carrying vessel is to touch at an intermediate enemy port and is, therefore, destined for such port, although her ultimate destination is a neutral port.

The Declaration of London, by articles 30 to 36, enacts very detailed rules with regard to hostile destination, distinguishing clearly between the characteristics of hostile destination of absolute contraband and those of hostile destination of conditional contraband.

(1) The destination of articles of _absolute_ contraband is, according to article 30, to be considered hostile if it be shown that they are being sent either to enemy territory, or to territory occupied by the enemy, or, further, to the armed forces of the enemy. And, according to article 31, hostile destination of absolute contraband is considered to be completely proved, firstly, when the goods are consigned to an enemy port or to the armed forces of the enemy, and, secondly, when the vessel is to call either at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port to which the cargo concerned is consigned.

(2) The destination of articles of _conditional_ contraband, on the other hand, is, according to article 33, considered to be hostile if they are intended 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 concerned cannot in fact be used for warlike purposes. Gold and silver in coin or bullion and paper money, however, are in every case considered to have a hostile destination if intended for a government department of the enemy State. And, according to article 34, hostile destination of articles of conditional contraband is, if the contrary be not proved, presumed when the articles are consigned, firstly, to enemy authorities or to an enemy contractor[827] established in the enemy country, who as a matter of common knowledge supplies articles of this kind to the enemy, or, secondly, to a fortified place of the enemy or to another place serving as a base[828]--whether of operations or supply--for the armed forces of the enemy. On the other hand, if the articles are not so consigned and if the contrary be not proved, their destination is presumed to be non-hostile. And in the case of a merchantman which can herself be conditional contraband if bound to a fortified place of the enemy or to another place serving as a base for the armed forces of the enemy, there is no presumption of a hostile destination, but a direct proof is necessary that she is destined for the use of the armed forces or of a government department of the enemy State.

[Footnote 827: The French text of article 34 contains the words _à un commerçant établi en pays ennemi et lorsqu'il est notoire que ce commerçant fournit à l'ennemi des objets et materiaux de cette nature_. The translation _to an enemy contractor_ has been objected to by opponents of the Declaration of London, but it is absolutely correct because it meets the meaning of the French text.]

[Footnote 828: The Report of the Drafting Committee on article 34 states that the base concerned may be one of operations or supply. Opponents of the Declaration of London object to article 34 on account of the alleged ambiguity of the words _place serving as a base for the armed forces of the enemy_, and assert that all seaports of Great Britain might be treated as bases of supply for the armed forces because railways connect them with other places which actually serve as bases of supply or operations. This is surely erroneous, because the doctrine of continuous voyages is not--see article 35 in contradistinction to article 30, and below, § 403_a_--to be applied to conditional contraband.]

[Sidenote: Free Articles.]

§ 396. It is obvious that such articles as are not susceptible of use in war may never be declared contraband, whether their destination be hostile or not.

The Declaration of London, by article 27, expressly recognises this and, in article 28--the so-called _free list_--enumerates seventeen groups of articles which may never be declared contraband in spite of their hostile destination, namely:--

(1) Raw cotton, wool, silk, jute, flax, hemp, and other raw
materials of the textile industries, and yarns of the same.

(2) Oil seeds and nuts; copra.

(3) Rubber, resins, gums, and lacs; hops.

(4) Raw hides and horns, bones, and ivory.

(5) Natural and artificial manures, including nitrates and
phosphates for agricultural purposes.

(6) Metallic ores.

(7) Earths, clays, lime, chalk, stone, including marble, bricks,
slates, and tiles.

(8) Chinaware and glass.

(9) Paper and paper-making materials.

(10) Soap, paint and colours, including articles exclusively used
in their manufacture, and varnish.

(11) Bleaching powder, soda, ash, caustic soda, salt cake,
ammonia, sulphate of ammonia, and sulphate of copper.

(12) Agricultural, mining, textile, and printing machinery.

(13) Precious and semi-precious stones, pearls, mother-of-pearl,
and coral.

(14) Clocks and watches, other than chronometers.

(15) Fashion and fancy goods.

(16) Feathers of all kinds, hairs, and bristles.

(17) Articles of household furniture and decoration, office
furniture and requisites.

This free list is of great importance to neutral trade, more particularly as it not only comprises such articles as are not susceptible of use in war, but likewise a number of articles, the possibility of the use of which in war is so remote as practically to make them not susceptible of use in war. The list guarantees to a number of industries and trades of neutral States freedom from interference on the part of belligerents, and it is to be expected that in time the list will be increased.

[Sidenote: Articles destined for the use of the carrying Vessel, or to aid the Wounded.]

§ 396_a_. Besides the seventeen groups of articles contained in the free list, there are two other groups of free articles.

Firstly, those articles which serve exclusively to aid the sick and wounded. They, according to article 29, No. 1, of the Declaration of London, may never be treated as contraband even if their destination is hostile. They may, however, in case of urgent military necessity and, subject to the payment of compensation, be requisitioned if they are destined to territory belonging to or occupied by the enemy or to the armed forces of the enemy.

Secondly, articles intended for the use of the vessel in which they are found or for the use of her crew and passengers during the voyage. Hostile destination being essential before any kinds of articles may be considered contraband, those articles which are carried by a vessel evidently for her own use or for the use of her crew and passengers can never be contraband, as is now specially stipulated by article 29, No. 2, of the Declaration of London. Merchantmen frequently carry a gun and a certain amount of ammunition for the purpose of signalling, and, if they navigate in parts of the sea where there is danger of piracy, they frequently carry a certain amount of arms and ammunition for defence against an attack by pirates. It will not be difficult either for the searching belligerent man-of-war or for the Prize Court to ascertain whether or no such arms and ammunition are carried _bona fide_.

[Sidenote: Contraband Vessels.]

§ 397. A neutral vessel, whether carrying contraband or not, can herself be contraband. Such is the case when she has been built or fitted out for use in war and is on her way to the enemy. Although it is the duty of neutrals--see article 8 of Convention XIII., and above §§ 334 and 350--to employ the means at their disposal to prevent the fitting out, arming, or the departure of any vessel within their jurisdiction, which they have reason to believe is intended to cruise or to engage in hostile operations against a belligerent, their duty of impartiality does not compel them to prevent their subjects from supplying a belligerent with vessels fit for use in war except where the vessel concerned has been built or fitted out by order of a belligerent. Subjects of neutrals may therefore--unless prevented from so doing by Municipal Law, as, for instance, subjects of the British Crown by §§ 8 and 9 of the Foreign Enlistment Act, 1870--by way of trade supply belligerents with vessels of any kind, provided these vessels have not been built or fitted out by order of the belligerent concerned. According to the practice which has hitherto prevailed, such vessels, being equivalent to arms, used to be considered as absolute contraband.[829] And it made no difference whether or no they were fit for use as men-of-war, it sufficed that they were fit to be used for the transport of troops and the like.

[Footnote 829: The _Richmond_ (1804), 5 C. Rob. 325. See also Twiss, II. § 148, and Holland, _Prize Law_, § 86.]

According to article 22, No. 10, article 24, No. 6, and article 34 of the Declaration of London the law concerning contraband vessels will be the following:--A distinction is made between warships on the one hand, and, on the other, vessels and the like generally. According to article 22, No. 10, warships, including their boats and their distinctive component parts of such a nature that they can only be used on a vessel of war, may be treated as absolute contraband without notice. On the other hand, according to article 24, No. 6, vessels, craft, and boats of all kinds, and, further, floating docks, parts of docks and their component parts may only be treated as conditional contraband, but may be so treated without notice. And it must be specially observed that whereas with regard to articles of conditional contraband generally, there is a legal presumption established as to their hostile destination in case they are consigned to enemy authorities or to a contractor established in the enemy country, who, as a matter of common knowledge, supplies articles of this kind to the enemy, article 34 expressly exempts merchant vessels from this presumption in case it is sought to prove that they themselves are contraband.

II

CARRIAGE OF CONTRABAND

See the literature quoted above at the commencement of § 391.

[Sidenote: Carriage of Contraband Penal by the Municipal Law of Belligerents.]

§ 398. The guaranteed freedom of commerce making the sale of articles of all kinds to belligerents by subjects of neutrals legitimate, articles of conditional as well as absolute contraband may be supplied by sale to either belligerent by these individuals. And the carriage of such articles by neutral merchantmen on the Open Sea is, as far as International Law is concerned, quite as legitimate as their sale. The carrier of contraband by no means violates an injunction of the Law of Nations. But belligerents have by the Law of Nations the right to prohibit and punish the carriage of contraband by neutral merchantmen, and the carrier of contraband violates, for this reason, an injunction of the belligerent concerned. It is not International Law, but the Municipal Law of the belligerents, which makes carriage of contraband illegitimate and penal.[830] The question why the carriage of contraband articles may nevertheless be prohibited and punished by the belligerents, although it is quite legitimate so far as International Law is concerned, can only be answered by a reference to the historical development of the Law of Nations. In contradistinction to former practice, which interdicted all trade between neutrals and the enemy, the principle of freedom of commerce between subjects of neutrals and either belligerent has gradually become universally recognised; but this recognition included from the beginning the right of either belligerent to punish carriage of contraband on the sea. And the reason obviously is the necessity for belligerents in the interest of self-preservation to prevent the import of such articles as may strengthen the enemy, and to confiscate the contraband cargo, and eventually the vessel also, as a deterrent to other vessels.

[Footnote 830: See above, § 296.]

The present condition of the matter of carriage of contraband[831] is therefore a compromise. In the interest of the generally recognised principle of freedom of commerce between belligerents and subjects of neutrals, International Law does not require neutrals to prevent their subjects from carrying contraband; on the other hand, International Law empowers either belligerent to prohibit and punish carriage of contraband just as it--see above, § 383--empowers either belligerent to prohibit and punish breach of blockade.

[Footnote 831: The same applies to blockade-running and rendering unneutral service.]

The Declaration of London has in no way altered the existing condition of the matter. The fact that articles 22 and 24 give a list of articles which, without special declaration and notice, may always be treated as absolute and conditional contraband respectively, does not involve the forbidding by International Law of the carriage of the articles. Articles 22 and 24 are certainly part of International Law, yet they merely embody an agreement as to what goods may--but they need not--be treated as contraband.

[Sidenote: Direct Carriage of Contraband.]

§ 399. Carriage of contraband commonly occurs where a vessel is engaged in carrying to an enemy port such goods as are contraband when they have a hostile destination. In such cases it makes no difference whether the fact that the vessel is destined for an enemy port becomes apparent from her papers, she being bound to such port, or whether she is found at sea sailing on a course for an enemy port, although her papers show her to be bound to a neutral port. And, further, it makes no difference, according to the hitherto prevailing practice of Great Britain and the United States of America at any rate, that she is bound to a neutral port and that the articles concerned are, according to her papers, destined for a neutral port, if only she is to call at an intermediate enemy port or is to meet enemy naval forces at sea in the course of her voyage to the neutral port of destination;[832] for otherwise the door would be open to deceit, and it would always be pretended that goods which a vessel is engaged in carrying to such intermediate enemy places were intended for the neutral port of ultimate destination. For the same reason a vessel carrying such articles as are contraband when they have a hostile destination is considered to be carrying contraband if her papers show that her destination is dependent upon contingencies under which she may have to call at an enemy port, unless she proves that she has abandoned the intention of eventually calling there.[833]

[Footnote 832: See Holland, _Prize Law_, § 69.]

[Footnote 833: The _Imina_ (1800), 3 C. Rob. 167; and the _Trende Sostre_ (1800), cited in the _Lisette_ (1806), 6 C. Rob. 391, note. See also Holland, _Prize Law_, § 70.]

The Declaration of London distinguishes between carriage of absolute and conditional contraband:--

As regards _absolute_ contraband, a vessel is, according to article 32, considered to be carrying contraband whether the fact that she is destined for an enemy port becomes evident from her papers, she being bound for such port, or whether she is found at sea sailing for an enemy port, although her papers show her to be bound for a neutral port. And, according to article 31, No. 2, it makes no difference that the vessel is bound for a neutral port and that the articles concerned are, according to her papers, destined for a neutral port, if only she is to touch at an intermediate enemy port or is to meet armed forces of the enemy before reaching the neutral port for which the goods in question are consigned.

As regards _conditional_ contraband, a vessel is, according to article 35, considered to be carrying contraband whether her papers show her to be destined to an enemy port, or, being clearly found out of the course to a neutral port indicated by her papers, she is unable to give adequate reasons to justify such deviation.

Article 32 as well as article 35 stipulates that ship papers are conclusive proof as to the destination of the vessel and of the cargo, unless the vessel is clearly found out of the course indicated by her papers, but the Report of the Drafting Committee of the Naval Conference of London emphasises the fact that the rule of the conclusiveness of ship papers must not be interpreted too literally, since otherwise fraud would be made easy. Ship papers are conclusive proof--says the Report--_unless facts show their evidence to be false_.

[Sidenote: Circuitous Carriage of Contraband.]

§ 400. On occasions a neutral vessel carrying such articles as are contraband if they have a hostile destination is, according to her papers, ostensibly bound for a neutral port, but is intended, after having called and eventually having delivered her cargo there, to carry the same cargo from there to an enemy port. There is, of course, no doubt that such vessels are carrying contraband whilst engaged in carrying the articles concerned from the neutral to the enemy port. But during the American Civil War the question arose whether they may already be considered to be carrying contraband when on their way from the port of starting to the neutral port from which they are afterwards to carry the cargo to an enemy port, since they are really intended to carry the cargo from the port of starting to an enemy port, although not directly, but circuitously, by a roundabout way. The American Prize Courts answered the question in the affirmative by applying to the carriage of contraband the principle of _dolus non purgatur circuitu_ and the so-called doctrine of continuous voyages.[834] This attitude of the American Prize Courts has called forth protests from many authorities,[835] British as well as foreign, but Great Britain has not protested, and from the attitude of the British Government in the case of the _Bundesrath_ and other vessels in 1900 during the South African War it could safely, although indirectly only, be concluded that Great Britain considered the practice of the American Prize Courts correct and just, and that, when a belligerent, she intended to apply the same principles. This could also be inferred from § 71 of Holland's _Manual of Naval Prize Law_, which established the rule: "The ostensible destination of a vessel is sometimes a neutral port, while she is in reality intended, after touching, and even landing and colourably delivering over her cargo there, to proceed with the same cargo to an enemy port. In such a case the voyage is held to be 'continuous,' and the destination is held to be hostile throughout." And provided that the intention of the vessel is really to carry the cargo circuitously, by a roundabout way, to an enemy port, and further provided, that a mere suspicion is not held for a proof of such intention, I cannot see why this application of the doctrine of continuous voyages should not be considered reasonable, just, and adequate.

[Footnote 834: The so-called doctrine of continuous voyages dates from the time of the Anglo-French wars at the end of the eighteenth century, and is connected with the application of the so-called rule of 1756. (See above, § 289.) Neutral vessels engaged in French and Spanish colonial trade, thrown open to them during the war, sought to evade seizure by British cruisers and condemnation by British Prize Courts, according to the rule of 1756, by taking their cargo to a neutral port, landing it and paying import duties there, and then re-lading it and carrying it to the mother country of the respective colony. Thus in the case of the _William_ (1806), 5 C. Rob. 385, it was proved that this neutral vessel took a cargo from the Spanish port La Guira to the port of Marblehead in Massachusetts--the United States being neutral--landed the cargo, paid import duties there, then took in the chief part of this cargo besides other goods, and sailed after a week for the Spanish port of Bilbao. In all such cases the British Prize Courts considered the voyages from the colonial port to the neutral port and from there to the enemy port as one continuous voyage and confirmed the seizure of the ships concerned. See Remy, _Théorie de la continuauté du voyage en matière de blocus et de contrebande_ (1902); Hansemann, _Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande_ (1910), and Fauchille in _R.G._ IV. (1897), pp. 297-323. The American Courts have applied the doctrine of continuous voyages not only to carriage of contraband but also to blockade; see above, § 385 (4), where the cases of the _Bermuda_ and the _Stephen Hart_ are quoted.]

[Footnote 835: See, for instance, Hall, § 247. But Phillimore, III. § 227, p. 391, says of the judgments of the Supreme Court of the United States in the cases of the _Bermuda_ and the _Peterhoff_, that they "contain very valuable and sound expositions of the law, professedly, and for the most part really, in harmony with the earlier decisions of English Prize Courts." On the other hand, Phillimore, III. § 298, p. 490, disagrees with the American Courts regarding the application of the doctrine of continuous voyages to breach of blockade, and reprobates the decision in the case of the _Springbok_.]

[Sidenote: Indirect Carriage of Contraband (Doctrine of Continuous Transports).]

§ 401. It also happens in war that neutral vessels carry to neutral ports such articles as are contraband if bound for a hostile destination, the vessel being cognisant or not of the fact that arrangements have been made for the articles to be afterwards brought by land or sea into the hands of the enemy. And the question has arisen whether such vessels on their voyage to the neutral port may be considered to be carrying contraband of war.[836] As early as 1855, during the Crimean War, the French Conseil-Général des Prises, in condemning the cargo of saltpetre of the Hanoverian neutral vessel _Vrow Houwina_, answered the question in the affirmative;[837] but it was not until the American Civil War that the question was decided on principle. Since from the British port of Nassau, in the Bahamas, and from other neutral ports near the coast of the Confederate States, goods, first brought to these nearer neutral ports by vessels coming from more distant neutral ports were carried to the blockaded coast of the Southern States, Federal cruisers seized several vessels destined and actually on their voyage to Nassau and other neutral ports because all or parts of their cargoes were ultimately destined for the enemy. And the American Courts considered those vessels to be carrying contraband, although they were sailing from one neutral port to another, on clear proof that the goods concerned were destined to be transported by land or sea from the neutral port of landing into the enemy territory. The leading cases are those of the _Springbok_ and _Peterhoff_, which have been mentioned above in § 385 (4), for the Courts found the seizure of these and other vessels justified on the ground of carriage of contraband as well as on the ground of breach of blockade. Thus, another application of the doctrine of continuous voyages came into existence, since vessels whilst sailing between two neutral ports could only be considered to be carrying contraband when the transport first from one neutral port to another and afterwards from the latter to the enemy territory had been regarded as one continuous voyage. This application of the doctrine of continuous voyages is fitly termed "doctrine of continuous transports."

[Footnote 836: The question is treated with special regard to the case of the _Bundesrath_, in two able articles in _The Law Quarterly Review_, XVII. (1901), under the titles "The Seizure of the _Bundesrath_" (Mr. I. Dundas White) and "Contraband Goods and Neutral Ports" (Mr. E. L. de Hart). See also Baty, _International Law in South Africa_ (1900), pp. 1-44.]

[Footnote 837: See Calvo, V. § 2767, p. 52. The case of the Swedish neutral vessel _Commercen_, which occurred in 1814, and which is frequently quoted with that of the _Vrow Houwina_ (1 Wheaton, 382), is not a case of indirect carriage of contraband. The _Commercen_ was on her way to Bilbao, in Spain, carrying a cargo of provisions for the English army in Spain, and she was captured by a privateer commissioned by the United States of America, which was then at war with England. When the case, in 1816, came before Mr. Justice Story, he reprobated the argument that the seizure was not justified because a vessel could not be considered to be carrying contraband when on her way to a neutral port, and he asserted that the hostile destination of goods was sufficient to justify the seizure of the vessel.]

[Sidenote: The Case of the _Bundesrath_.]

§ 402. This application of the doctrine of continuous voyages under the new form of continuous transports has likewise been condemned by many British and foreign authorities; but Great Britain did not protest in this case either--on the contrary, as was mentioned above in § 385 (4), she declined to interfere in favour of the British owners of the vessels and cargoes concerned. And that she really considered the practice of the American Courts just and sound became clearly apparent by her attitude during the South African War. When, in 1900, the _Bundesrath_, _Herzog_, and _General_, German vessels sailing from German neutral ports to the Portuguese neutral port of Lorenzo Marques in Delagoa Bay, were seized by British cruisers under the suspicion of carrying contraband, Germany demanded their release, maintaining that no carriage of contraband could be said to take place by vessels sailing from one neutral port to another. But Great Britain refused to admit this principle, maintaining that articles ultimately destined for the enemy were contraband, although the vessels carrying them were bound for a neutral port.[838]

[Footnote 838: See _Parliamentary Papers_, Africa, No. 1 (1900); Correspondence respecting the action of H.M.'s naval authorities with regard to certain foreign vessels.]

There is no doubt that this attitude of the British Government was contrary to the opinion of the prominent English[839] writers on International Law. Even the _Manual of Naval Prize Law_, edited by Professor Holland[840] in 1888, and "issued by authority of the Lords Commissioners of the Admiralty," reprobated the American practice, for in § 72 it lays down the following rule: "... If the destination of the vessel be neutral, then the destination of the goods on board should be considered neutral, notwithstanding it may appear from the papers or otherwise that the goods themselves have an ulterior destination by transhipment, overland conveyance, or otherwise." And the practice of British Prize Courts in the past would seem to have been in accordance with this rule. In 1798, during war between England and the Netherlands, the neutral ship _Imina_,[841] which had left the neutral port of Dantzig for Amsterdam carrying ship's timber, but on hearing of the blockade of Amsterdam by the British had changed her course for the neutral port of Emden, was seized on her voyage to Emden by a British cruiser; she was, however, released by Sir William Scott because she had no intention of breaking blockade, and because a vessel could only be considered as carrying contraband whilst on a voyage to an enemy port. "The rule respecting contraband, as I have always understood it, is that the articles must be taken _in delicto_, in the actual prosecution of the voyage to an enemy port," said Sir William Scott.[842]

[Footnote 839: See, for instance, Hall, § 247, and Twiss in _The Law Magazine and Review_, XII. (1877), pp. 130-158.]

[Footnote 840: In a letter to the _Times_ of January 3, 1900, Professor Holland points out that circumstances had so altered since 1888 that the attitude of the British Government in the case of the _Bundesrath_ was quite justified; see Holland, _Letters to the "Times" upon War and Neutrality_ (1909), pp. 114-119.]

[Footnote 841: 3 C. Rob. 167.]

[Footnote 842: It is frequently maintained--see Phillimore, III. § 227, pp. 397-403--that in 1864, in the case of _Hobbs_ v. _Henning_, Lord Chief Justice Erle repudiated the doctrine of continuous transports, but Westlake shows that this is not the case. See Westlake's Introduction in Takahashi, _International Law during the Chino-Japanese War_ (1899), pp. xx-xxiii, and in _The Law Quarterly_ _Review_, XV. (1899), pp. 23-30. See also Hart, _ibidem_, XXIII. (1907), p. 199, who discusses the case of _Seymour_ v. _London and Provincial Marine Insurance Co._ (41 L.J.C.P. 193) in which the Court recognised the doctrine of continuous transports.]

[Sidenote: Continental support to the Doctrine of Continuous Transports.]

§ 403. Although the majority of Continental writers condemn the doctrine of continuous transports, several eminent Continental authorities support it. Thus, Gessner (p. 119) emphatically asserts that the destination of the carrying vessel is of no importance compared with the destination of the carried goods themselves. Bluntschli, although he condemns in § 835 the American practice regarding breach of blockade committed by a vessel sailing from one neutral port to another, expressly approves in § 813 of the American practice regarding carriage of contraband by a vessel sailing between two neutral ports, yet carrying goods with a hostile destination. Kleen (I. § 95, p. 388) condemns the rule that the neutral destination of the vessel makes the goods appear likewise neutral, and defends seizure in the case of a hostile destination of the goods on a vessel sailing between two neutral ports; he expressly states that such goods are contraband from the moment the carrying vessel leaves the port of loading. Fiore (III. No. 1649) reprobates the theory of continuous voyages as applied by British and American Courts, but he asserts nevertheless that the hostile destination of certain goods carried by a vessel sailing to a neutral port justifies the vessel being regarded as carrying contraband, and the seizure thereof. Bonfils (No. 1569) takes up the same standpoint as Bluntschli, admitting the application of the theory of continuous voyages to carriage of contraband, but reprobating its application to breach of blockade. And the Institute of International Law adopted the rule:[843] "_La destination pour l'ennemi est présumée lorsque le transport va à l'un de ses ports, ou bien à un port neutre qui, d'après_ _des preuves évidentes et de fait incontestable, n'est qu'une étape pour l'ennemi, comme but final de la même opération commerciale._" Thus this representative body of authorities of all nations has fully adopted the American application of the doctrine of continuous voyages to contraband, and thereby recognised the possibility of circuitous as well as indirect carriage of contraband.

[Footnote 843: See § 1 of the _Règlementation internationale de la contrebande de guerre_, _Annuaire_, XV. (1896), p. 230.]

And it must be mentioned that the attitude of several Continental States has hitherto been in favour of the American practice. Thus, according to §§ 4 and 6 of the Prussian Regulations of 1864 regarding Naval Prizes, it was the hostile destination of the goods or the destination of the vessel to an enemy port which made a vessel appear as carrying contraband and which justified her seizure. In Sweden the same was valid.[844] Thus, further, an Italian Prize Court during the war with Abyssinia in 1896 justified the seizure in the Red Sea of the Dutch vessel _Doelwijk_,[845] which sailed for the neutral French port of Djibouti, carrying a cargo of arms and ammunition destined for the Abyssinian army and to be transported to Abyssinia after having been landed at Djibouti.

[Footnote 844: See Kleen, I. p. 389, note 2.]

[Footnote 845: See Martens, _N.R.G._ 2nd Ser. XXVIII. p. 66. See also below, § 436.]

[Sidenote: Partial Recognition by the Declaration of London of the Doctrine of Continuous Voyages.]