CASE OF THE ALLANTON.

119

is necessary that the neutral vessel in question should be caught in flagrante delicto. Capture subsequent to the discharge of the unlawful cargo is not justifiable in law." In an even more striking sentence M. Sheftel observed that, according to Russian naval regulations in force, it was not permissible to seize a vessel for conveying contraband after she had discharged her cargo at the hostile port. The Russian regulations of March 27, 1900, regarding maritime prizes, declared: "Mercantile vessels of neutral nations are liable to be confiscated as prizes when captured in the act of conveying contraband to the enemy or to an enemy port." This clearly implies that, according to regulations, a vessel is not liable to be seized after discharge of her cargo at the hostile port. In the case of the Imina, Sir W. Scott said:

"Taking it, however, that they (the goods conveyed, ship timber) are of such a nature as to be liable to be considered contraband on a hostile destination, I cannot fix that character on them in the present voyage. 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's port. Under the present understanding of the law of nations you cannot take the proceeds on the return voyage. * If the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not generally held to attach."

**

It therefore follows that the Vladivostok prize court, in proceeding on the principle that a vessel is liable to be confiscated after she has conveyed contraband to a hostile port, decided contrary both to modern continental maritime law as enunciated by its greatest living exponent, to maritime law as enunciated a hundred years ago by Lord Stowell, and to Russian naval regulations of the present day. (International Law as interpreted during the Russo-Japanese War, Appendix F, p. 438.)

Decision of St. Petersburg court on appeal.-The supreme court at St. Petersburg, in the case of the Allanton on appeal, said:

The fact of the steamer Allanton having embarked a cargo at au enemy's port and from a Japanese company cannot serve as sufficient grounds for confiscation, inasmuch as, if the Japanese company be considered the owners of the cargo previous to its delivery to the holders of the bill of lading, it would yet not be liable to confiscation in virtue of Article II of the Maritime Prize Regulations, which provides that a neutral flag covers an enemy's cargo, provided that it is not contraband, whereas coal could be recognized as contraband only in such case if it were being conveyed to the enemy or to an enemy's port, which was not so

in the present case. The circumstances which, in the first instance, led to the surmise that the cargo of the steamer Allanton was destined for delivery to the enemy or to an enemy's port, are removed by virtue of the documents submitted at the trial of the case in the supreme prize court, and have no definite effect.

The delivery by the Allanton on her first voyage of a cargo of Cardiff coal to the Japanese port of Sasebo cannot serve as sufficient ground for the confiscation of the cargo subsequently shipped from Mororan to Singapore, as, in virtue of Article XI of the Prize Regulations, vessels of neutral nationality are liable to confiscation only in event of their being caught in the act of conveying contraband to the enemy or to an enemy's port, and by no means if they had on a previous occasion carried contraband to the enemy.

The route which was taken by the steamer Allanton from Mororan has been accepted as the shortest, as also the statement of Captain Motger to the effect that, in carrying coal not as contraband, but to a neutral port, he had no cause to fear detention of the vessel. Although, according to the decision of the Chief Hydrographic Department, the majority of vessels prefer the ocean route, owing to frequent fogs which occur in the Japanese Sea making it dangerous for navigation, but as it would appear from this decision that some vessels nevertheless take the route across the Japanese Sea, the route taken by the captain of the Allanton cannot serve as evidence against him. The discovery on board the vessel of the Japanese, Tatiki Miachara, if there had been any cause for suspicion in the beginning, in view of his possessing no documents establishing his identity, this suspicion is now removed, as on further investigation of the case it was not proved that he had acted as agent for the enemy's government, or had been intrusted with the delivery of the cargo of coal. The omission of entries in the official log book from the 15th of May, 1904, although an infringement of the regulations for keeping log books, is yet insufficient for disqualifying the evidence brought forward in regard to the steamer having been directed to Singapore, more especially as the entries in the other ship's log were properly made.

Admitting, on the foregoing grounds, that the steamer Allanton and her cargo were not liable to confiscation, the supreme prize court, guided by Article XXX of the Prize Regulations, imperially confirmed, then considered the question as to whether there were sufficient grounds for the detention of the steamer Allanton and her cargo, and whether the established conditions and rules were observed on such detention. The supreme court found that there were in every respect sufficient grounds for suspicion that her cargo was destined for the enemy or for the enemy's port.

U. S. COURT ON CARRYING CONTRABAND.

121

The Admiralty court at St. Petersburg rendered a decision in the appeal of the Allanton, October 9/22, 1904:

1. The steamer Allanton and cargo, consisting of coal, to be considered as not subject to confiscation and to be set free.

2. The arrest of the steamer and cargo to be considered as having been made on sufficient ground.

3. The decision of the Vladivostok prize court in that part which relates to the confiscation of the vessel to be reversed. (U. S. Foreign Relations, 1905, p. 754.)

Opinion of United States court on carriage of contraband. In the case of the sloop Ralph the court held the opinion that

Upon the general question of contraband it may be said: The transportation of contraband articles to one of the belligerents is in itself an assault for the time being upon the other belligerent, in the fact that it may furnish them with the weapons of war and thereby increase the resources of their power as against their adversary; and for that reason, upon a broad ground of self-preservation incident to nations as well as individuals, the parties aganist whom the quasi assault is made have a right to defend themselves against the threatened blow by seizing the weapon before it reaches the possession of their enemy.

The seizure of contraband is not only punishment, but it is also prevention, and the paramount purpose of its exercise is prevention, just as in self-defense on the part of persons it is to protect; but when the act is accomplished, the damage suffered, and the danger passed, then the incidents of self-defense cease. The extent to which the right to seize may be carried upon other property belonging to the offending party depends upon a variety of circumstances and conditions. The effect of the seizure may be confined to the contraband articles alone, but may extend beyond those to other property of the guilty party by way of punishment incident to the wrong of carrying contraband.

Upon that general doctrine of the subject of contraband there is a qualification which was recognized by the courts at the time the capture of this ship was made. The effect of that qualification is that the outgoing voyage must be free from the taint of fraud and misrepresentation made or practiced by persons in charge of vessel upon the rights of belligerents. (39, U. S. Court of Claims Reports, 204.)

So early as 1806, Mr. Madison, Secretary of State, wrote that the rule" that a vessel on a return voyage is liable to

capture by the circumstances of her having on the outward voyage conveyed contraband articles to an enemy's port " is an interpolation in the law of nations. Moore International Law Digest, p. 748.)

(7

(b) Conclusion as to liability for carriage of contraband. In Situation VI (b) a neutral merchant vessel is returning to a home port with the cargo received in exchange for a contraband cargo previously delivered to a belligerent port. The offense involved in the carriage of contraband is deposited with the contraband. If the neutral merchant vessel is not guilty of any offense on the return voyage the carriage of contraband on the outward voyage involves no penalty and the neutral merchant vessel should not be detained.

Liability of neutral vessel for service as collier.— Under ordinary circumstances coal in the time of war is conditional contraband and as such its liability to confiscation is determined by its destination. If destined for the enemy fleet it would without question be regarded as liable to capture until the cargo was deposited. The contraband cargo only would be liable to confiscation unless the owner of the vessel was also an owner in the cargo or unless the vessel had false papers or was involved in some manner other than as simple carrier of freight in the ordinary manner.

The neutral vessel under consideration in Situation VI (c) has been accompanying the fleet as collier and is returning to her home port after this service.

This act is not a simple act of carriage of contraband of which the guilt is deposited with the delivery of the contraband, but an act of service on the part of the neutral vessel. The service has been in aid of the belligerent as much as would be the service of one of the belligerent's own colliers, for the vessel has accompanied the fleet with the cargo of coal and is now returning from the service. Such an act involves participation in the actual war undertakings of State X. The neutral vessel which has thus accompanied a fleet could have no destination except such as that of the fleet and must be under the control

SERVICE AS COLLIER.

123

of the commander of the fleet and practically a part of the fleet. The belligerent has received more than the simple supply of coal. The collier has been at his service, accompanying the fleet, and giving a certainty of supply as demanded.

The collier has, on the other hand, received the protection of the fleet to the full extent. Its compensation has probably been certain and adequate. It has not merely furnished coal in the manner of an ordinary sale or even as an ordinary transaction in contraband. Up to the time of its return, i. e., till it had completed its service, it was practically under convoy of the belligerent fleet. The whole career of the vessel while engaged as a collier for the fleet was such as to identify the interests of the collier with those of the belligerent. The act was something more than the carriage of contraband. It was an act of unneutral service. It was an act of the nature of service “for a warlike purpose in aid of a foreign state" which under the British Foreign Enlistment Act of 1870 forfeits ship and equipment to the Government.

If the ship is guilty of an offense in thus being "employed in the military or naval service of any foreign state at war with any friendly state" (section 8, Act of 1870) which makes it liable to confiscation by its own government then the offense as concerns the belligerent against whom the vessel has served is certainly equal and an equal penalty would be justified, i. e., confiscation of the ship.

Further, the personnel of the collier has identified itself with the personnel of the belligerent and has practically entered the service of the belligerent. The personnel of the collier would therefore be liable to treatment of prisoners of war, as persons in the service of the enemy. The British and other neutrality laws make such service penal by municipal law so it would be no injustice to make the officers and crew liable to the laws of war.

It may be argued, however, that the vessel under consideration is returning from its service as collier accompanying the fleet and that it is not liable after the com