volume or weight of the contraband may be less. A similar remark may be made as regards the standard of value or freight. The consequence is that, in order to justify condemnation, it suffices that the contraband should form more than half the cargo according to any one of the above standards. This may seem severe; but, on the one hand, any other system would make fraudulent calculations easy, and, on the other, it may be said that the condemnation of the vessel is justified when the carriage of contraband formed an important part of her venture a statement which applies to all the cases specified" (c).

“If a vessel is encountered at sea while ignorant of the outbreak Effect of of hostilities or of the declaration of contraband affecting her cargo, ignorance. the contraband may not be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war or of a declaration of contraband, if she left a neutral port after the notification of the outbreak of hostilities or of the declaration of contraband made in sufficient time to the Power to which such port belongs. A vessel is also deemed to be aware of a state of war if she left an enemy port after the outbreak of hostilities" (d)

The first paragraph of this Article (e) introduces a special form of the practice of pre-emption, which has long been observed under the British system. According to the practice of the British Prize Courts, if there was some doubt as to the contraband nature of the goods, the captor, instead of confiscating them, agreed to purchase them at a fair market price, together with a reasonable profit, and allowed freight to the vessel (f). This procedure was frequently applied also to absolute contraband goods, if they were the produce of the country exporting them, and were still in a raw state (g). The Naval Prize Act of 1864, s. 38, incorporated this right of pre-emption; and the Manual of Naval Prize Law of 1888, Article 84, says: "The carriage of goods conditionally contraband, and of such absolutely contraband goods as

(c) Parl. Papers, Miscell. No. 4 (1909).

(d) Art. 43. Cf. the Hague Convention, No. VI. (1907), relative to the status of enemy merchant ships at the outbreak of hostilities, supra,

Ꮃ .

P. 423.

(e) Cf. also Art. 29.

(f) Cf. The Haabet (1800), 2 C. Rob. 179.

(g) The Sarah Christina (1799), 1 C. Rob. 237.

48

Handing over contraband goods to belligerent warship.

UNNEUTRAL
SERVICE.

are in an unmanufactured state, and are the produce of the country exporting them, is usually followed only by the pre-emption of such goods by the British Government, which then pays freight to the vessel carrying the goods."

"A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship.

The delivery of the contraband must be entered by the captor in the logbook of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers.

The captor is at liberty to destroy the contraband that has thus been handed over to him " (h).

We have seen that contraband trading is forbidden by a belligerent, because it increases the means and resources of the enemy in the prosecution of his hostilities. That is, contraband trading assists the enemy-although the neutral trader undertakes his enterprise solely for the purpose of acquiring profit for himself. In so doing he identifies himself with the enemy, but only indirectly and only to a certain extent; therefore, if he is taken in the act by the other belligerent, he is liable to the penalties imposed, which may bring about the loss of his property hazarded in the adventure. If a neutral, instead of such partial identification with the enemy, entirely identifies himself, his acts, and his possessions with the interests of the enemy, he necessarily becomes one with the enemy, he divests himself completely of his neutral character, and in the eyes of the other belligerent becomes himself an enemy, and so is subject to all the liabilities of an enemy proper. Between these two cases there is an intermediate position, which arises out of the performance of what has been described as ' unneutral service'-'assistance hostile.' This involves an interference in the conflict of a character not merely commercial but also warlike; so that the penalty here will be generally severer than that imposed for contraband commerce; e.g., whereas in the latter case the banned goods alone may in certain circumstances be confiscated, in the former the vessel engaged in the forbidden service will herself be subject to condemnation. To show the connection

(h) Art. 44.

With regard to the contraband policy pursued during the Great War,

see Phillipson, Int. Law and the Great War, pp. 340 seq.; Manual of Emergency Legislation, passim.

mercen.

of unneutral service with contraband trading, we may refer to an American case that occurred in the war between Great Britain and the United States at the beginning of the nineteenth century. Although the general policy of the American Government, in The Comits diplomatic negotiations, then aimed to limit the catalogue of contraband by confining it strictly to munitions of war, excluding all articles of promiscuous use, in the remarkable case of The Commercen the Supreme Court of the United States was disposed to adopt all the principles of Sir W. Scott, as to provisions becoming contraband under certain circumstances. But as that was not the case of a cargo of neutral property, supposed to be liable to capture and confiscation as contraband of war, but of a cargo of enemy's property going for the supply of the enemy's naval and military forces, and clearly liable to condemnation, the question was, whether the neutral master was entitled to his freight as in other cases of the transportation of innocent articles of enemy's property; and it was not essential to the determination of the case to consider under what circumstances articles ancipitis usûs' might become contraband. On the actual question before the Court, it seems there would have been no difference of opinion among the American judges in the case of an ordinary war; all of them concurring in the principle, that a neutral, carrying supplies for the enemy's naval or military forces, does, under the mildest interpretation of international law, expose himself to the loss of freight. But the case was that of a Swedish vessel, captured by an American cruiser, in the act of carrying a cargo of British property, consisting of barley and oats, for the supply of the allied armies in the Spanish peninsula, the United States being at war with Great Britain, but at peace with Sweden and the other Powers allied against France. Under these circumstances a majority of the judges were of the opinion that the voyage was illegal, and that the neutral carrier was not entitled to his freight on the cargo condemned as enemy's property.

It was stated in the judgment of the Court, that it had been solemnly adjudged in the British Prize Courts, that being engaged in the transport service of the enemy, or in the conveyance of military persons in his employment, or the carrying of despatches, Hostile are acts of hostility which subject the property to confiscation. In aid.' these cases, the fact that the voyage was to a neutral port was not thought to change the character of the transaction. The principle of these determinations was asserted to be, that the party must be deemed to place himself in the service of the enemy State, and to assist in warding off the pressure of the war, or in favouring

its offensive projects. Now these cases could not be distinguished, in principle, from that before the Court. Here was a cargo of provisions exported from the enemy's country, with the avowed purpose of supplying the army of the enemy. Without this destination, they would not have been permitted to be exported at all. It was vain to contend that the direct effect of the voyage was not to aid the British hostilities against the United States. It might enable the enemy indirectly to operate with more vigour and promptitude against them, and increase his disposable force. But it was not the effect of the particular transaction which the law regards: it was the general tendency of such transactions to assist the military operations of the enemy, and to tempt deviations from strict neutrality. The destination to a neutral port could not vary the application of this rule. It was only doing that indirectly which was directly prohibited. Would it be contended that a neutral might lawfully transport provisions for the British fleet and army, while it lay at Bordeaux preparing for an expedition to the United States? Would it be contended that he might lawfully supply a British fleet stationed on the American coast? An attempt had been made to distinguish this case from the ordinary cases of employment in the transport service of the enemy, on the ground that the war of Great Britain against France was a war distinct from that against the United States; and that Swedish subjects had a perfect right to assist the British arms in respect to the former though not to the latter. But the Court held, that whatever might be the right of the Swedish sovereign, acting under his own authority, if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It was perfectly immaterial in what particular enterprise those armies might, at the time, be engaged; for the same important benefits were conferred upon the enemy of the United States, who thereby acquired a greater disposable force to bring into action against them. In The Friendship (i), Sir W. Scott, speaking on this subject, declared that "it signifies nothing, whether the men so conveyed are to be put into action on an immediate expedition or not. The mere shifting of drafts in detachments, and the conveyance of stores from one place to another, is an ordinary employment of a transport vessel, and it is a distinction totally unimportant whether this or that case may be connected with the immediate active service of the

(i) (1807), 6 C. Rob. 420.

enemy. In removing forces from distant settlements, there may be no intention of immediate action; but still the general importance of having troops conveyed to places where it is convenient that they should be collected, either for present or future use, is what constitutes the object and employment of transport vessels." It was obvious that the learned judge did not deem it material to what places the stores might be destined; and it must be equally immaterial what is the immediate occupation of the enemy's force. That force was always hostile to America, be it where it might. To-day it might act against France, to-morrow against the former country; and the better its commissary department was supplied, the more life and activity was communicated to all its motions. It was not therefore material whether there was another distinct war, in which the enemy of the United States was engaged, or not. It was sufficient that his armies were everywhere their enemies; and every assistance offered to them must, directly or indirectly, operate to their injury.

The Court was, therefore, of opinion that the voyage in which the vessel was engaged was illicit, and inconsistent with the duties. of neutrality, and that it was a very lenient administration of justice to confine the penalty to a mere denial of freight (k).

persons.

In 1807, during the war between Great Britain and Holland, Transport of military the former captured an American vessel, the Orozembo, whichchartered by a merchant at Lisbon ostensibly to take a cargo to America had received on board three Dutch military officers of distinction and two civil officials. It was proved that this took place with the knowledge of the charterer, and that the vessel had been specially fitted beforehand for the purpose. Condemnation was decreed on the ground that the vessel had been let out in the service of the enemy. In the course of judgment Sir W. Scott pointed out that in accordance with previous decisions a vessel hired by the enemy for the conveyance of military persons was to be regarded as a transport, and therefore liable to confiscation. As to the number of military persons necessary to subject the vessel to confiscation, it was difficult to define; since fewer persons of high quality and character might be of much more importance than a much greater number of persons of lower condition. To carry a veteran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore the

(k) The Commercen (1816), 1 Wheaton, 382.