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mental character to us as neutral traders and furnishers of foodstuffs.
Applied to foodstuffs and fuels it is a matter of great difficulty of enforcement, as such cargoes when imported in bulk into neutral countries go at once into the common stock of those countries and are not earmarked for the use of an enemy beyond neutral borders. This difficulty cannot be said to occur with respect to the doctrine of absolute contraband, the chåracter of such warlike stores designed for war alone, and for special national service, gives a distinct clue to its destination. As a general compromise upon the subject the doctrine of continuous voyage was accepted for the first time by several nations, in connection with the carriage of absolute contraband, while given up by us and others with respect to blockade and the carriage of conditional contraband.
Articles 33 and 34 of this Declaration discuss and define the destinations which make the article carried conditional contraband. Article 35 was framed to exclude the question of continuous voyage from being applied to conditional contraband. The wording of the article as shown by the general report was to prevent conditional contraband being liable to capture if bound for other than enemy territory, or, in other words, preventing the application of continuous voyage to conditional contraband bound to neutral ports. If the country at war, however, has no seaboard, a cargo bound to the enemy forces using an intervening port or sea-board country under Article 36 is liable to seizure, as the neutral port of destination in this case is construed to be an enemy port, being the only sea approach existing.
In Article 40 a much discussed question was settled as to the liability of the contraband carrier as well as the contraband goods to condemnation. By the law of nations at the close of the 18th century the act of carrying materials of war to a belligerent was regarded as a wrong for which both ves
sels and cargo were liable to condemnation. Since then the proportionate amount of contraband in the cargo to cause condemnation of the ship has varied with different countries, the general idea being that if the contraband part should be sufficiently large to make its carriage a determining factor in the voyage of the ship that its mission should be construed as a hostile venture and distinctively giving forbidden aid to the enemy. In some countries one-fourth of the cargo being contraband the ship was considered confiscable. With us the tendency has been to limit the confiscation of the ship to cases where fraud or bad faith on the part of the master or owner was discovered. It was generally claimed, however, and admitted at the London conference that in certain cases the confiscation of the contraband and the innocent part of the cargo belonging to the owner of the contraband was not enough. Finally, it was agreed that the degree of culpability should be judged by the proportionate contraband part of the cargo, and that part should be more than one-half of the cargo. As to the mode of reckoning, I can do no better than give the words of the distinguished General Reporter, M. Renault. He says:
Must the contraband form more than half the cargo in volume, weight, value or freight? The adoption of a single fixed standard gives rise to theoretical objections, and also to practices intended to avoid condemnation of the vessel in spite of the importance of the cargo. If the standard of volume or weight is adopted the master will ship innocent goods occupying space or weight sufficient to exceed the contraband. similar remark may be made as regards the standard of value or freight. The consequence is that in order to justify condemnation it is enough that the contraband should form more than half the cargo by any one of the above standards. This may seem harsh; but, on the one hand, any other system would make fraudulent calculations easy, and on the other, the con
demnation of the vessel may be said to be justified when the carriage of contraband formed an important part of her venture—a statement which applies to all the cases specified.” 10
In Article 44 of the Declaration of London upon this subject it is provided that a neutral vessel carrying less than half contraband, and hence not subject to condemnation, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent vessel of war, whose commander is at liberty to destroy the contraband thus handed over to him. The master must give the captor duly certified copies of all rele
This does not go as far as some of our treaties upon the subject; especially an old one with Prussia, still considered in force by the Empire of Germany. This requires the payment of the ruling market price of contraband goods at the enemy port to which the German vessel is bound, for all contraband surrendered. The loss by detention, etc., to the contraband carrier during such a transfer is to be paid also by the belligerent vessel of war. This treaty virtually creates a trade in contraband for which the belligerent must pay under circumstances which create an abnormal market rate.
10 A. J. I. L. Int. Naval Conference of London, Stockton, pp. 606, 607, 608, 609, etc.
UNNEUTRAL SERVICES.—DESTRUCTION OF NEUTRAL PRIZES.TRANSFER TO NEUTRAL FLAG.-CONVOY.—ENEMY
Unneutral services. The carrying of persons and dispatches for belligerent purposes was often classed under the head of contraband of war, but these acts are really not contraband acts. They are called by Hall analogues of contraband, but the term now in use, originally suggested by Dana, is unneutral acts or services.
These acts differ from contraband acts by a closer connection with belligerent movements; they are more directly warlike than contraband trade, and the association and identification with the enemy becomes more positive and aggressive. In fact, as the title suggests, they are more in the nature of service than any contraband transport of more or less warlike material.
While a contraband trade may simply be a continuation of commerce which is legitimate in time of peace, it seldom occurs that neutrals undertake to transport in time of peace troops of war for another nation, while a forwarding of hostile dispatches as such implies a warlike act.
No neutral ship would, for instance:
1. Transmit or repeat certain messages or information to or for a belligerent.
2. Carry certain dispatches for a belligerent. 3. Transport certain persons in the service of a belligerent.
4. Accompany naval or military forces as auxiliaries, that is, as colliers, supply or repair vessels.
Transmission of intelligence for an enemy.-If a neutral vessel is used by the enemy to repeat signals made between two fleets or portions of a fleet or from shore to fleet, it is manifest that such vessel is serving one belligerent to such an extent that the other can but regard her as an enemy vessel and treat her so while she is engaged in this unneutral service.
In the same manner a vessel which is engaged in laying a telegraph cable in war time for exclusively war purposes in the interest of an enemy is serving one belligerent most effectively at the expense of the other. These vessels, under the rules of the Declaration of London, are subject to condemnation and treatment as if they were enemy merchant vessels.
Cutting of cables.—The cutting and splicing of the South American cable off Iquique during the civil war in Chile was a matter of another kind. In this case the cable was American property laid for commercial purposes. The de facto and recognized Government of Chile, with whom the cable company had contracted to keep open the line under certain conditions, found itself cut off by the cable station at Iquique, at the time in the possession of the Congressionalists. In order to open communication for the government at Santiago, it was found necessary to cut the cables leading to Iquique and splice the line at sea, which was done under the protection of Admiral McCann and some of his vessels. · At that time the United States had not recognized the belligerency of the Congressionalists. With such a belligerency recognized, the right of a belligerent to cut a cable that is used to transmit information or dispatches of a hostile nature seems, in the light of recent events, well established. It may well be an important hostile measure.
Carriage of dispatches. The carriage of certain classes of dispatches for a belligerent is forbidden. These classes are of a military or naval nature, and are between a belligerent