Volume Ii Part 59 (1/2)

Thus this representative body of authorities of all nations has fully adopted the American application of the doctrine of continuous voyages to contraband, and thereby recognised the possibility of circuitous as well as indirect carriage of contraband.

[Footnote 843: See -- 1 of the _Reglementation internationale de la contrebande de guerre_, _Annuaire_, XV. (1896), p. 230.]

And it must be mentioned that the att.i.tude of several Continental States has. .h.i.therto been in favour of the American practice. Thus, according to ---- 4 and 6 of the Prussian Regulations of 1864 regarding Naval Prizes, it was the hostile destination of the goods or the destination of the vessel to an enemy port which made a vessel appear as carrying contraband and which justified her seizure. In Sweden the same was valid.[844] Thus, further, an Italian Prize Court during the war with Abyssinia in 1896 justified the seizure in the Red Sea of the Dutch vessel _Doelwijk_,[845] which sailed for the neutral French port of Djibouti, carrying a cargo of arms and ammunition destined for the Abyssinian army and to be transported to Abyssinia after having been landed at Djibouti.

[Footnote 844: See Kleen, I. p. 389, note 2.]

[Footnote 845: See Martens, _N.R.G._ 2nd Ser. XXVIII. p. 66. See also below, -- 436.]

[Sidenote: Partial Recognition by the Declaration of London of the Doctrine of Continuous Voyages.]

-- 403_a_. The Declaration of London offers a compromise in order to settle the controversy respecting the application of the doctrine of continuous voyages to the carriage of contraband, whether circuitous or indirect carriage be concerned.

(1) On the one hand, article 30 recognises with regard to _absolute_ contraband the application of the doctrine of continuous voyages--both to circuitous and indirect carriage of contraband--by enacting that: ”absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy or to the armed forces of the enemy. _It is_ _immaterial whether the carriage of the goods is direct or entails trans.h.i.+pment or a subsequent transport by land._”

(2) On the other hand, article 35 categorically rejects the doctrine of continuous voyages with regard to _conditional_ contraband by enacting that ”conditional contraband is not liable to capture except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy,[846] and when it is not to be discharged in an intervening neutral port.”

(3) However, in cases where the enemy country has no seaboard, article 36--in contradistinction to the provisions of article 35--expressly recognises the doctrine of continuous voyages for _conditional_ contraband also by enacting that ”notwithstanding the provisions of article 35, conditional contraband, if shown to have the destination referred to in article 33, is liable to capture in cases where the enemy country has no seaboard.”

[Footnote 846: The rule of article 35 came into question for the first time during the Turco-Italian war. In January 1912, the _Carthage_, a French mail-steamer plying between Ma.r.s.eilles and Tunis, was captured for carriage of contraband by an Italian torpedo-boat and taken to Cagliari, because she had an aeroplane destined for Tunis on board. As the destination of the vessel was neutral, and as, according to article 24, No. 8, of the Declaration of London aeroplanes are conditional contraband, France protested against the capture of the vessel, Italy agreed to release her, and the parties arranged to have the question as to whether the capture of the vessel was justified settled by the Permanent Court of Arbitration at the Hague.]

III

CONSEQUENCES OF CARRIAGE OF CONTRABAND

See the literature quoted above at the commencement of -- 391.

[Sidenote: Capture for Carriage of Contraband.]

-- 404. It has always been universally recognised by theory and practice that a vessel carrying contraband may be seized by the cruisers of the belligerent concerned. But seizure is allowed only so long as a vessel is _in delicto_, which commences when she leaves the port of starting and ends when she has deposited the contraband goods, whether with the enemy or otherwise. The rule is generally recognised, therefore, that a vessel which has deposited her contraband may not be seized on her return voyage. British and American practice, however, has. .h.i.therto admitted one exception to this rule--namely, in the case in which a vessel has carried contraband on her outward voyage with simulated and false papers.[847] But no exception has been admitted by the practice of other countries. Thus, when in 1879, during war between Peru and Chili, the German vessel _Luxor_, after having carried a cargo of arms and ammunition from Monte Video to Valparaiso, was seized in the harbour of Callao, in Peru, and condemned by the Peruvian Prize Courts for carrying contraband, Germany interfered and succeeded in getting the vessel released.

[Footnote 847: The _Nancy_ (1800), 3 C. Rob. 122; the _Margaret_ (1810), 1 Acton, 333. See Holland, _Prize Law_, -- 80. Wheaton, I. -- 506, note 2, condemns this practice; Hall, -- 247, p. 696, calls it ”undoubtedly severe”; Halleck, II. p. 220, defends it. See also Calvo, V. ---- 2756-2758.]

It must be specially observed that seizure for carriage of contraband is only admissible on the Open Sea and in the maritime territorial belts of the belligerents. Seizure within the maritime belt of neutrals would be a violation of neutrality.

The Declaration of London entirely confirms these old customary rules, but does not recognise the above-mentioned British exception. Article 37 enacts that a vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage even if she is to touch at a port of call before reaching the hostile destination. Article 38 enacts that a vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end.

[Sidenote: Penalty for Carriage of Contraband according to the Practice hitherto prevailing.]

-- 405. In former times neither in theory nor in practice have similar rules been recognised with regard to the penalty of carriage of contraband. The penalty was frequently confiscation not only of the contraband cargo itself, but also of all other parts of the cargo, together with the vessel. Only France made an exception, since according to an _ordonnance_ of 1584 she did not even confiscate the contraband goods themselves, but only seized them against payment of their value, and it was not until 1681 that an _ordonnance_ proclaimed confiscation of contraband, but with exclusion of the vessel and the innocent part of the cargo.[848] During the seventeenth century this distinction between contraband on the one hand, and, on the other, the innocent goods and the vessel was clearly recognised by Zouche and Bynkershoek, and confiscation of the contraband only became more and more the rule, certain cases excepted. During the eighteenth century the right to confiscate contraband was frequently contested, and it is remarkable as regards the change of att.i.tude of some States that by article 13 of the Treaty of Friends.h.i.+p and Commerce[849] concluded in 1785 between Prussia and the United States of America all confiscation was abolished. This article provided that the belligerent should have the right to stop vessels carrying contraband and to detain them for such length of time as might be necessary to prevent possible damage by them, but such detained vessels should be paid compensation for the arrest imposed upon them. It further provided that the belligerent could seize all contraband against payment of its full value, and that, if the captain of a vessel stopped for carrying contraband should deliver up all contraband, the vessel should at once be set free. I doubt whether any other treaty of the same kind was entered into by either Prussia or the United States.[850] And it is certain that, if any rule regarding penalty for carriage of contraband was generally recognised at all, it was the rule that contraband goods could be confiscated. But there always remained the difficulty that it was controversial what articles were contraband, and that the practice of States varied much regarding the question as to whether the vessel herself and innocent cargo carried by her could be confiscated. For beyond the rule that absolute contraband could be confiscated, there was no unanimity regarding the fate of the vessel and the innocent part of the cargo. Great Britain and the United States of America hitherto confiscated the vessel when the owner of the contraband was also the owner of the vessel; they also confiscated such part of the innocent cargo as belonged to the owner of the contraband goods; they, lastly, confiscated the vessel, although her owner was not the owner of the contraband, provided he knew of the fact that his vessel was carrying contraband, or provided the vessel sailed with false or simulated papers for the purpose of carrying contraband.[851] Some States allowed such vessel carrying contraband as was not herself liable to confiscation to proceed with her voyage on delivery of her contraband goods to the seizing cruiser,[852] but Great Britain[853] and other States insisted upon the vessel being brought before a Prize Court in every case.

[Footnote 848: See Wheaton, _Histoire des Progres du Droit des gens en Europe_ (1841), p. 82.]

[Footnote 849: Martens, _R._ IV. p. 42. The stipulation was renewed by article 12 of the Treaty of Commerce and Navigation concluded between the two States in 1828; Martens, _N.R._ VII. p. 619.]

[Footnote 850: Article 12 of the Treaty of Commerce, between the United States of America and Italy, signed at Florence on February 26, 1871--see Martens, _N.R.G._ 2nd Ser. I. p. 57--stipulates immunity from seizure of such private property only as does not consist of contraband: ”The high contracting parties agree that in the unfortunate event of war between them, the private property of their respective citizens and subjects, with the exception of contraband of war, shall be exempt from capture, or seizure, on the high seas or elsewhere, by the armed vessels or by the military forces of either party; it being understood that this exemption shall not extend to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of either party.”

See above, -- 178.]