Volume Ii Part 60 (1/2)

(1) According to article 44, a vessel which has been stopped for carrying contraband and which is not herself liable to be confiscated on account of the proportion of contraband on board, may--not must--when the circ.u.mstances permit it, be allowed to continue her voyage in case she hands over the contraband cargo to the captor. In such a case the captor is at liberty to destroy the contraband handed over to him. But the matter must in any case be brought before a Prize Court. The captor must therefore enter the delivery of the contraband on the log-book of the vessel so stopped, and the master of the latter must give duly certified copies of all relevant papers to the captor.

(2) According to article 54, the captor may--see below, -- 431--exceptionally, in case of necessity, demand the handing over, or may proceed himself to the destruction, of any absolute or conditional contraband goods found on a vessel which is not herself liable to condemnation, if the taking of the vessel into the port of a Prize Court would involve danger to the safety of the capturing cruiser or to the success of the operations in which she is engaged at the time. But the captor must, nevertheless, bring the case before a Prize Court. He must, therefore, enter the captured goods on the log-book of the stopped vessel, and must obtain duly certified copies of all relevant papers. If the captor cannot establish the fact before the Prize Court that he was really compelled to abandon the intention of bringing in the carrying vessel, he must be condemned (see article 51) to pay the value of the goods to their owners if the goods were contraband or if they were not.

And the same is valid in case (article 52) the seizure or destruction of the goods is held by the Prize Court to have been justifiable, but not the capture itself of the carrying vessel.

CHAPTER V

UNNEUTRAL SERVICE

I

THE DIFFERENT KINDS OF UNNEUTRAL SERVICE

Hall, ---- 248-253--Lawrence, ---- 260-262--Westlake, II. pp.

261-265--Phillimore, III. ---- 271-274--Halleck, II. pp.

289-301--Taylor, ---- 667-673--Walker, -- 72--Wharton, III. -- 374--Wheaton, ---- 502-504 and Dana's note No. 228--Moore, VII. ---- 1264-1265--Bluntschli, ---- 815-818--Heffter, -- 161A--Geffcken in Holtzendorff, IV. pp. 731-738--Ullmann, -- 192--Bonfils, Nos.

1584-1588--Despagnet, Nos. 716-716 _bis_--Rivier, II. pp.

388-391--Nys, III. pp. 675-681--Calvo, V. ---- 2796-2820--Fiore, III. Nos. 1602-1605, and Code, Nos. 1836-1840--Martens, II. -- 136--Kleen, I. ---- 103-106--Boeck, Nos. 660-669--Pillet, p.

330--Gessner, pp. 99-111--Perels, -- 47--Testa, p. 212--Dupuis, Nos. 231-238, and _Guerre_, Nos. 172-188--Bernsten, -- 9--Nippold, II. -- 35--Holland, _Prize Law_, ---- 88-105--U.S. Naval War Code, articles 16 and 20--Hautefeuille, II. pp. 173-188--Ortolan, II.

pp. 209-213--Mountague Bernard, _Neutrality of Great Britain during the American Civil War_ (1870), pp. 187-205--Marquardsen, _Der Trent-Fall_ (1862), pp. 58-71--Hirsch, _Kriegskonterbande und verbotene Transporte in Kriegszeiten_ (1897), pp.

42-55--Takahas.h.i.+, _International Law during the Chino-j.a.panese War_ (1899), pp. 52-72--Vetzel, _De la contrebande par a.n.a.logie en droit maritime internationale_ (1901)--Atherley-Jones, _Commerce in War_ (1906), pp. 304-315--Hirschmann, _Das internationale Prisenrecht_ (1912), ---- 31-32--See also the monographs quoted above at the commencement of -- 391, and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, articles 45-47.

[Sidenote: Unneutral service in general.]

-- 407. Before the Declaration of London the term _unneutral service_ was used by several writers with reference to the carriage of certain persons and despatches for the enemy on the part of neutral vessels. The term has been introduced in order to distinguish the carriage of persons and despatches for the enemy from the carriage of contraband, as these were often confounded with each other. Since contraband consists of certain goods only and never of persons or despatches, a vessel carrying persons and despatches for the enemy is not thereby actually carrying contraband.[858] And there is another important difference between the two. Carriage of contraband need not necessarily, and in most cases actually does not, take place in the direct service of the enemy. On the other hand, carriage of persons and despatches for the enemy always takes place in the direct service of the enemy, and, consequently, represents a much more intensive a.s.sistance of, and a much more intimate connection with, the enemy than carriage of contraband. For these reasons a distinct treatment of carriage of contraband, on the one hand, and carriage of persons and despatches, on the other, was certainly considered desirable by many publicists. Those writers who did not adopt the term _unneutral service_, on account of its somewhat misleading character, preferred[859] the expression _a.n.a.logous of contraband_, because in practice maritime transport for the enemy was always treated in a.n.a.logy with, although not as, carriage of contraband.

[Footnote 858: This was recognised in the case of the _Yangtsze Insurance a.s.sociation_ v. _Indemnity Mutual Marine a.s.surance Company_, L.R. (1908), 1 K.B. 910 and 2 K.B. 504.]

[Footnote 859: It was also preferred in the first edition of this work.

But it was necessary to abandon further resistance on account of the fact that after the official adoption, in the translation of the Declaration of London, of the term _unneutral service_ it was useless to oppose it.]

The Declaration of London puts the whole matter upon a new and very much enlarged basis, for Chapter III. treats in articles 45 to 47, under the heading _De l'a.s.sistance hostile_--the official English translation of which is _unneutral service_--not only of the carriage of persons for the enemy on the part of a neutral vessel, but also of the transmission of intelligence in the interest of the enemy, the taking of a direct part in the hostilities, and a number of other acts on the part of a neutral vessel. Accordingly the Declaration of London makes a distinction between two kinds of unneutral service, meting out for the one a treatment a.n.a.logous in a general way to contraband, and for the other a treatment a.n.a.logous to that of enemy merchant vessels. Carriage of individual members of the armed forces of the enemy and a certain case of transmission of intelligence in the interest of the enemy const.i.tute the first kind, and four groups of acts creating enemy character for the vessel concerned const.i.tute the second kind.[860]

[Footnote 860: Although--see above, ---- 173 and 174--prevention of unneutral service to the enemy is a means of sea warfare, it chiefly concerns neutral commerce, and is, therefore, more conveniently treated with neutrality.]

[Sidenote: Carriage of Persons for the Enemy.]

-- 408. Either belligerent may punish neutral vessels for carrying, in the service of the enemy, certain persons.

Such persons included, according to the customary rules of International Law hitherto prevailing, not only members of the armed forces of the enemy, but also individuals who were not yet members of the armed forces but who would have become so as soon as they reached their place of destination, and, thirdly, non-military individuals in the service of the enemy either in such a prominent position that they could be made prisoners of war, or who were going abroad as agents for the purpose of fostering the cause of the enemy. Thus, for instance, if the head of the enemy State or one of his cabinet ministers fled the country to avoid captivity, the neutral vessel that carried him could have been punished, as could also the vessel carrying an agent of the enemy sent abroad to negotiate a loan and the like. However, the mere fact that enemy persons were on board a neutral vessel did not in itself prove that these persons were carried by the vessel for the enemy and in his service.

This was the case only when either the vessel knew of the character of the persons and nevertheless carried them, thereby acting in the service of the enemy, or when the vessel was directly hired by the enemy for the purpose of transport of the individuals concerned. Thus, for instance, if able-bodied men booked their pa.s.sages on a neutral vessel to an enemy port with the secret intention of enlisting in the forces of the enemy, the vessel could not be considered as carrying persons for the enemy; but she could be so considered if an agent of the enemy openly booked their pa.s.sages. Thus, further, if the fugitive head of the enemy State booked his pa.s.sage under a false name, and concealed his ident.i.ty from the vessel, she could not be considered as carrying a person for the enemy; but she could be so considered if she knew whom she was carrying, because she was then aware that she was acting in the service of the enemy. As regards a vessel directly hired by the enemy, there could be no doubt that she was acting in the service of the enemy.

Thus the American vessel _Orozembo_[861] was in 1807, during war between England and the Netherlands, captured and condemned, because, although chartered by a merchant in Lisbon ostensibly to sail in ballast to Macao and to take from there a cargo to America, she received by order of the charterer three Dutch officers and two Dutch civil servants, and sailed, not to Macao, but to Batavia. And the American vessel _Friends.h.i.+p_[862]

was likewise in 1807, during war between England and France, captured and condemned, because she was hired by the French Government to carry ninety s.h.i.+pwrecked officers and sailors home to a French port.

[Footnote 861: 6 C. Rob. 430.]