Part IV. of contraband articles is always unlawful, and such articles may always be seized during transit at sea. Hence, while articles, not contraband, might be sent to Matamoras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband character destined, in fact, to a State in rebellion, or for the use of the rebel military forces, were liable to capture though primarily destined to Matamoras " (d). $ 501d. Hobbs v. Henning. The Bundesrath. On the other hand, the Court of Common Pleas, in a case arising in England out of the same voyage of the ship, came to the conclusion that goods contraband belonging to a neutral, are not liable to seizure unless in the actual prosecution of a voyage to an enemy's port. Nor is the rule affected by the fact that the shipper knows they are intended ultimately to reach an enemy's port (e). This decision was based on the language used by Lord Stowell in The Imina (ƒ), that goods going to a neutral port cannot come under the description of contraband. Early in the South African War (December, 1899, and January, 1900), the German mail steamer, Bundesrath, and other vessels belonging to the German East African line, were seized by English men-of-war and detained, pending search, on suspicion of carrying contraband of war, and of containing among their passengers men who were on their way to join the Boer armies. The German government demanded the immediate release of the vessels, and claimed through Count Hatzfeld that there was no justification for taking proceedings before a prize court because "according to the recognized principles of international law no question of contraband of war arises in trade between neutral ports." The destination of these vessels was Lorenzo Marques, a port belonging to Portugal, and consequently neutral, but it was notorious that reinforcements both of (d) The Peterhoff, 5 Wallace, 59. As far back as 1854, in the case of The Vrow Howina, the French prize court had condemned, during the Crimean War, part of the cargo of a Hanoverian ship captured off Cape Rocca, on a voyage from Lisbon to Hamburg, and containing saltpetre, which was described in the manifest and bills of lading simply as goods. The ultimate destination of the saltpetre was adjudged to be Russia, and the court laid down the principle that "La contrebande de guerre est saisissable sans pavillon neutre quand elle appartient à l'ennemi ou quand elle est dirigée vers les territoires, les armées ou les flottes de l'ennemi": Calvo, Droit International, 4th ed., vol. v. § 2767. See also the case of The Dodwyck, decided by the Italian prize courts during the war between Italy and Abyssinia, Archives Diplomatiques, Jan. 1897, p. 81. The judgment is set out in Ruys v. Royal Exchange Assurance Company, 2 Com. Cas. 207; and in the Law Reports (1897), 2 Q. B. 135. And see on the whole subject an article by Mr. E. L. de Hart, in the L. Q. R. vol. xvii. p. 193. 791. (e) Hobbs v. Henning, 17 C. B. N. S. But Mr. Justice Willes, a few years later, in delivering the judgment of the Court of Common Pleas in Seymour v. The London and Provincial Marine Insurance Company, 41 Law Journal, N. S. C. P. 192, another case arising out of the same voyage of The Peterhoff, held that the criterion of contraband was "the intention that the goods should in the course of the same transaction go on to the Confederate States," and that the profits should be obtained on delivery there. It seems difficult to reconcile this with Hobbs v. Henning. (f) 3 Rob. 167. men and material were constantly passing through it to the South Chap. III. African Republics, which possessed no sea-board of their own. In fact it presented a very close analogy to the position of Matamoras. Lord Salisbury upheld the proceedings of the naval officers, and refused to admit that the destination of the vessel was conclusive as to the destination of the goods on board, a principle, he said, "which cannot apply to contraband of war on board of a neutral vessel if such contraband was at the time of seizure consigned or intended to be delivered to an agent of the enemy at a neutral port or, in fact, destined for the enemy's country." The vessels were accordingly searched in circumstances of considerable difficulty owing to the way in which the cargo was stowed, but nothing was found of an absolutely contraband nature; and though there was reason to believe that among the passengers on board were a number of trained artillerymen, German and Flemish, the evidence as to their destination was not sufficient to justify further action. The vessels were accordingly released without waiting for the decision of a prize court, and a liberal sum of money was paid by the British government as compensation to the steamship company. The incident gave rise to some heated language in the Reichstag, and Count von Bülow made a long speech on the 19th of January, in which he took credit for a complete diplomatic victory; but it is remarkable that he made no allusion to the original German contention that a neutral vessel was entitled to convey without hindrance contraband of war to an enemy so long as the port at which it was intended to land was a neutral port. It remains to be seen whether in the future the British government will follow the American precedent which materially increases the rights of belligerents, but at the same time adds another to the restrictions on neutral commerce during war, and there is the further question of the view which the prize courts and admiralty judges may take in the face of the conflicting decisions quoted above (g). § 501e. Some writers, overlooking the fact that a neutral has rights as well Contraband trade no as a belligerent, have laid down the doctrine that the exportation of breach of contraband is a breach of neutrality. This opinion has generally been neutrality. adopted only by those whose views of international law are derived purely from speculation. The practice of nations in no way bears out such an assertion. In every war neutrals have traded in contraband, but with the risk of having the goods condemned if captured by the enemy (h). Few rules of international law are so certain as that a neutral government cannot be made responsible as for a breach of neutrality, because its subjects carry on a contraband trade, though Bismarck chose to protest more than once during the Franco-Prussian war against the supplies of arms and ammunition procured in England by the government of the French Republic. The trade must, however, be confined to subjects. If carried on by the government itself, (g) Parl. Papers, Africa, 1900 (No. 1). (h) See Letters of Historicus, Contraband. Parl. Papers, N. America, 1873 (No. 2), p. 19; Turkey, 1878 (No. 1), p. 46. Part IV. it then will amount to a violation of neutral duties (i). America has always maintained the right of exporting arms to belligerents in the way of trade (j); and during the civil war the Federal government purchased warlike stores from England to the value of over 2,000,0007. (k). $501f. Ships as contraband. § 501g. Coals and machinery. $ 501h. Food. Blockade of Formosa. A ship, theoretically considered, may or may not be contraband. If on its way to a belligerent port for the purpose of being sold to the belligerent, it will be contraband if it is adapted, or readily adaptable, for warlike use; equally so, doubtless, if it be adapted for the transportation of troops, or even perhaps of military material. As most ships may in some way be applied to such purposes, they are pretty sure to be condemned as contraband. Thus, where the captain had orders to sell if he could find a good purchaser, but otherwise to seek freight, the ship was condemned (1). The immense importance of coals and machinery in the naval operations of the present day has given rise to endless discussions as to whether they are contraband or not. Writers of the school of M. Hautefeuille refuse to consider such commodities as contraband (m), and the French government acted on this opinion during the war with Germany (n), while Count Bismarck remonstrated with Great Britain for permitting the export of coal to France (o). Lord Chief Justice Cockburn says, "Coal, too, though in its nature ancipitis usus, yet when intended to contribute to the motive power of a vessel, must, I think, as well as machinery, be placed in the same category as masts and sails, which have always been placed among articles of contraband" (p). But it is classed, as we have already seen, in the British Admiralty Manual among articles which are only contraband conditionally upon destination. On the 20th February, 1885, the French government gave notice, through the usual diplomatic channels, that it intended to treat rice bound for the open Chinese ports as contraband of war, on the ground that the stoppage of large supplies which were being forwarded to the northern ports of China would materially affect the government at Pekin. The British government, the Queen's ambassador at Pekin having refused to recognize this right, explained that it would not forcibly resist the seizure of rice, but that it protested against rice being treated generally as contraband irrespective of its final destination, and that the legality of any seizure must be determined in the first instance by the French prize courts, subject to ulterior diplomatic (i) Ortolan, Diplomatie de la Mer, vol. ii. cap. vi. Bluntschli, Le Droit International Codifié, § 765, p. 385. (j) Kent, by Abdy, p. 361. Webster's Works, vol. vi. p. 452. President's Message to Congress, 1st Sess. 34th Cong. (k) British Counter-case at Geneva. Parl. Papers, N. America (No. 4), 1872, p. 55. (^) See American Law Review, vol. v. P. 371. (n) Archives Diplomatiques, 1871-72, Pt. I. p. 269. (0) 2 Halleck (Baker), 238, n. (P) Parl. Papers, N. America, 1873 (No. 2), p. 15. Jurist, 1859, vol. v. Pt. II. p. 203. See, further, Wharton, Dig. § 369. action. The conclusion of peace, however, shortly afterwards pre- Chap. III. vented the question being further raised (q). The American minister at Berlin, in a despatch to Mr. Bayard, drew attention to the AngloFrench discussion, and pointed out that the real principle involved went to the extent that everything, the want of which might increase the distress of the civil population of the belligerent country, might be declared contraband of war. The damage to neutral trade might amount to destruction, and the advantages intended to be secured to neutrals by the declaration of 1856 would be practically nullified (r). In the Russo-Japanese War of 1904 the latter power has expressed its intention of treating not only rice, but all kinds of grain, fish, fishproducts, beans and bean-cake as contraband of war. The consequences remain to be seen. $502. tion of mili Of the same nature with the carrying of contraband Transportagoods is the transportation of military persons or de- tary persons spatches in the service of the enemy. and de spatches in service. A neutral vessel, which is used as a transport for the the enemy's enemy's forces, is subject to confiscation, if captured by the opposite belligerent. Nor will the fact of her having been impressed by violence into the enemy's service, exempt her. The master cannot be permitted to aver that he was an involuntary agent. Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yielding to such demands must seek redress from the government which has imposed the restraint upon him (s). As to the number of military persons necessary to subject the vessel to confiscation, it is difficult to define; since fewer persons of high quality and character may 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 (2) Cobbett, L. C. p. 225, note (k). In the same war the French refused to allow neutral mails to be landed at Formosa: Annual Register, 1885, p. 231. Part IV. greater, and therefore the belligerent has a stronger right to prevent and punish it; nor is it material, in the judgment of the Prize Court, whether the master be ignorant of the character of the service on which he is engaged. It is deemed sufficient if there has been an injury arising to the belligerent from the employment in which the vessel is found. If imposition is practised, it operates as force; and if redress is to be sought against any person, it must be against those who have, by means either of compulsion or deceit, exposed the property to danger; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the privity of the immediate offender (†). $503. Fraudulently carrying contraband despatches. The fraudulently carrying the despatches of the enemy will also subject the neutral vessel, in which they are transported, to capture and confiscation. The consequences of such a service are indefinite, infinitely beyond the effect of any contraband that can be conveyed. "The carrying of two or three cargoes of military stores," says Sir W. Scott, "is necessarily an assistance of a limited nature; but in the transmission of despatches may be conveyed the entire plan of a campaign, that may defeat all the plans of the other belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles the XIIth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that, in the contemplation of human events, it is a sort of evanescent quantity of which no account is taken; and the practice has been, accordingly, that it is in considerable quantities only that the offence of contraband is contemplated (u). The case of despatches is very different; it is impossible to limit a letter to so small a size as not to be capable of producing the most important consequences. It is a service, therefore, which, in what (t) The Orozembo, 6 C. Rob. 430. (u) The French rules of 1870 directed the ship to be confiscated if more than three-fourths of the cargo consisted of contraband. Barboux, Jurisp. du Conseil des Prises, 1870-71. Appendix, Art. 6. |