6834. Generally there is a limitation?-There is for the protection of neutral property, but for no other purpose. There is the chance that neutral property is involved; if it were not for that, it would not be necessary at all.

6835. Then, as regards the destruction of prizes, what about the crews on board those ships?-They must take out the crews, and they may take out the cargoes if they have time to do so. 6836. It is against international law, then, to sink them without taking out the crews?—Yes.

6837. Therefore, that is another limitation to the power of a man-of-war making seizures and destroying vessels, because it crowds the ship?-Yes, and it takes time to transfer, too.

6838. Therefore, there are two limitations put by international law: One is the necessity of furnishing a prize crew to bring the prize into court, and the other is that if they resolve to destroy her they must crowd their ship with her crew?--Yes. There is no necessity where she is clearly enemy property to spare her; that is only the case where neutral property is involved.

6839. But there is an equal obligation to save the crew, is there not?-Certainly, always.

6840. Therefore, in either case that particular limitation applies?-Always. I may say that the criticism of the Admiralty on the navy maneuvers in 1888, which I think I mentioned just now, was, that when they pretended to take so many prizes in such a short time, they did not allow themselves time in which to transfer the crews and, therefore, must be taken to have sunk them.

Treaty provisions in regard to contraband cargo.—In an early treaty of the United States with Sweden and Norway, 1783, it is provided in regard to the seizure of neutral vessels with contraband

And in case the contraband merchandize be only a part of the cargo and the master of the vessel agrees, consents & offers to deliver them to the vessel that has discovered them, in that case the latter, after receiving the merchandizes which are good prize, shall immediately let the vessel go & shall not by any means hinder her from pursuing her voyage to the place of her destination. (Art. 13.)

Article XIII of the treaty with Prussia in 1799, which is still in effect, gives very liberal treatment.

And in the same case of one of the Contracting Parties being engaged in War with any other Power, to prevent all the difficulties and misunderstandings that usually arise respecting mer

TREATY PROVISIONS AS TO CONTRABAND.

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chandise of contraband, such as arms, ammunition, and military stores of every kind, no such articles, carried in the vessels, or by the subjects or citizens of either Party, shall be deemed contraband so as to induce confiscation or condemnation and loss of property to individuals. Nevertheless it shall be lawful to stop such vessels and articles and detain them for such length of time as the captors think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying however a reasonable compensation for the loss such arrest shall occasion to the proprietors, and it shall further be allowed to use in the service of the captors, the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.

In the treaty between the United States and Bolivia, 1858, is the following:

ARTICLE 19. The articles of contraband before enumerated and classified, which may be found in a vessel bound to an enemy's port, shall be subject to detention and confiscation, leaving free the rest of the cargo and the ship, that the owners of them may dispose of them as they see proper. No vessel of either of the two nations shall be detained on the high seas on account of having on board articles of contraband, whenever the master, captain, or super-cargo of said vessel will deliver up the articles of contraband to the captor, unless the quantity of such articles be so great, or of so large a bulk, that they cannot be received on board the capturing ship without great inconvenience; but in this, as well as in other cases of just detention, the vessel detained shall be sent to the nearest convenient port for trial and judgment according to law.

Article 18 of the Brazilian treaty of 1828 is practically the same, as is article 19 of the Colombian (New Grenada) treaty of 1846.

In article 23 of the treaty with Haiti of 1864 it is provided that

If it shall appear from the certificates that there are contraband goods on board any such vessel, and the commander of the same shall offer to deliver them up, that offer shall be accepted, and a receipt for the same shall be given, and the vessel shall be

at liberty to pursue her voyage unless the quantity of contraband goods be greater than can be conveniently received on board the ship of war or privateer, in which case, as in other cases of just detention, the vessel shall be carried to the nearest safe and convenient port for the delivery of the same.

Article XX of the treaty between the United States and Italy, February 26, 1871, states that

In order effectually to provide for the security of the citizens and subjects of the contracting parties, it is agreed between them that all commanders of ships of war of each party, respectively, shall be strictly enjoined to forbear from doing any damage to, or committing any outrage against, citizens or subjects of the other, or against their vessels or property; and if said commanders shall act contrary to this stipulation, they shall be severely punished, and made answerable in their persons and estates for the satisfaction and reparation of said damages, of whatever nature they may be.

Résumé. From the opinions, precedents, rules, treaties, etc., thus far stated it is evident that the treatment of neutral vessels in the time of war is not yet a fully settled question.

Situation V relates to one aspect of this question.

Situation V relates to the treatment of neutral vessels loaded for the most part with contraband overtaken by war vessels of the United States on the high seas when bound for a fortified port of State X when there is war between the United States and State X.

The vessels are in each case carrying contraband to the enemy of the United States, and in each the cargo is for the most part contraband.

These facts, however, do not change the status of the vessel unless the cargo and vessel belong to the same owner, in which case both vessel and cargo might be subject to like penalty; otherwise, unless the vessel were guilty of some other offense, the cargo only would be liable to penalty and the owner of the vessel would suffer sufficiently in the loss of freight and the delay caused by the capture and prize proceedings.

Considering these questions first upon the basis that the ship and cargo belong to different owners and that it is a simple act of commerce, it may be said that in each case

the penalty in general would be the loss of cargo for the owner of the contraband and the loss of freight for the owner of the vessel.

How would the fact that the commanding officer of the force overtaking the vessel bound with contraband for a fortified port of the enemy found the vessel carrying the contraband unseaworthy and not able to stand a voyage to a port where a prize court of the United States could sit affect the case?

If it were an enemy vessel he might as a military necessity sink the vessel and cargo after removing papers and crew and making proper survey, but no such penalty is prescribed for carriage of contraband by a neutral vessel. The commander under some treaties would be justified in removing the contraband from the vessel. This, in view of the circumstances, would be the best course if his ship could accommodate such a burden. He would also as a military necessity be justified in destroying the contraband if it was not possible to take it on board. In all cases he should bring in the papers relating to the cargo and observe the other naval regulations relating to such seizure. The vessel should be dismissed. Its penalty will be loss of freight.

If contraband cargo and vessel belong to the same owner both are liable to condemnation if sent to a prize court. It would, however, be exceedingly dangerous to allow officers occupied with the duties of war to pass judgment upon the relative cost of sending vessels to prize court as compared with the probable value of vessel and cargo, little of which could be examined in most cases. It would also impose a very serious burden upon the naval officer which he probably would not care to assume, particularly if the field of operations was remote from a prize court. The only safe course is to take on board or, in case of necessity, to destroy the contraband, retaining all necessary papers.

If, as he overtakes the neutral merchantman, the commanding officer discovers that he is in danger of immediate attack by the enemy, he should dismiss the mer

chantman unless he can spare a prize crew to send her in. He would under no circumstances be justified in compelling a neutral, engaged in commerce for which there is a fixed penalty, to run additional risks of war by accompanying his fleet. Nor would he be justified in taking upon his own vessel, about to be attacked, the crew and perhaps the passengers of the neutral vessel in order that he might sink the vessel. The conditions are such that he is not in a position to inflict the legitimate penalty on the vessel because of his own danger. He would not on this account be warranted in inflicting a greater penalty and in subjecting neutral persons to the hazards of war.

When the personnel of his fleet is so reduced that he cannot spare a crew to take the vessel in, he should dismiss the vessel, though he, in accordance with the treaties with certain states, may take or destroy the cargo, retaining the proper papers.

Conclusion. (a) If the contraband cargo and the seized neutral vessel have different owners, the contraband cargo, after proper survey, appraisal, and inventory, and with consent of the master, if in accordance with treaty provisions, may be taken, and the vessel, if guilty only of the carriage of contraband, should be dismissed, and the papers relating to the whole transaction should be forwarded to the prize court.

(b) If the master does not consent, the vessel and cargo are liable to the usual penalties for contraband trade.

(c) If the neutral vessel and contraband cargo belong to the same owner, the contraband cargo may be treated as in (a). The vessel, however, should if possible be sent to a prize court for adjudication, otherwise the vessel should be dismissed.

(d) Destruction, on account of military necessity, of a neutral vessel guilty only of the carriage of contraband entitles the owner to fullest compensation. Before destruction all persons and papers should be placed in safety.