which may be coined into money, bonds, and the like, the mere fact that a neutral is prohibited by his duty of impartiality from granting a loan to a belligerent ought to bring conviction that these articles are certainly contraband if destined for the enemy State or its forces. However, these articles are seldom brought by neutral vessels to belligerent ports, since under the modern conditions of trade belligerents can be supplied in other ways with the necessary funds. Be that as it may, in 1916, during the World War, the Allies, who at the beginning of the war had declared gold, silver, and paper money to be conditional contraband, proclaimed that they would thenceforth treat gold, silver, paper money, all negotiable instruments, and the like as absolute contraband. These articles figured as absolute contraband in the German list. (5) As regards raw cotton, it is asserted that in 1861, during the Civil War, the United States declared it absolute contraband under quite peculiar circumstances, since it took the place of money sent abroad for the purpose of paying for vessels, arms, and ammunition. But this assertion is erroneous.2 Be that as it may, raw cotton could not, prior to the World War, properly be considered absolute contraband. For this reason Great Britain protested when Russia, in 1904 during the Russo-Japanese War, declared raw cotton to be absolute contraband; but although Russia at first seemed inclined to give way to this protest, she finally adhered to her original attitude. Article 28 of the unratified Declaration of London put raw cotton on the free list, and during the World War 3 See the decision of the Supreme Prize Court in the case of The Calchas (May 7, 1905, see Hurst, i. p. 143); whereas in the case of The St. Kilda (Dec. 11, 1908, see Hurst, i. p. 202) this same court decided that raw cotton was absolute contraband. the Allies at first did not declare it contraband. But in time its importance for the manufacture of high explosives became so apparent that they declared to be absolute contraband: raw cotton, linters, cotton waste, cotton yarns, cotton piece-goods, and other cotton products capable of being used in the manufacture of explosives.'1 Cotton also figured as absolute contraband in the German list. By the unratified Declaration of London two classes of conditional contraband were distinguished. Article 24 enumerated fourteen groups of articles which might always, without special declaration and notice, be treated as conditional contraband. Article 25 consisted of articles which were not enumerated, either amongst the eleven groups of absolute contraband contained in Article 22, or amongst the fourteen groups of conditional contraband contained in Article 24, but were nevertheless susceptible of use in war as well as for purposes of peace; these might also be treated as conditional contraband, but only after special declaration and notification. With regard to this declaration and notification, the same procedure was to be followed as in the case of absolute contraband.2 But the list contained in the unratified Declaration of London was not adopted by Great Britain during the World War. While at first only slight alterations were made in it, it was varied by successive orders, and the final list contained in the proclamation of July 2, 1917, comprised some thirty-four kinds of articles classed as conditional contraband.3 Among them were bladders, boots and shoes suitable for use in war, casks, clothing suitable for use in war, docks, field-glasses, foodstuffs, forage, fuel (other than mineral oils, which were absolute contraband), glue, harness, 1 See Garner, ii. § 498. 2 See above, § 393. 3 London Gazette, July 3, 1917. horse-shoes, nautical instruments, certain oils and fats together with oleaginous seeds, nuts and kernels, railway, telegraph and telephone materials, vehicles available for use in war (other than motors, which were absolute contraband), vessels of all kinds (other than warships, which were absolute contraband). tion to Contra § 395. Whatever may be the nature of articles, they Hostile are never contraband unless they are destined 1 for the Destinause of a belligerent in war. Arms and ammunition essential destined for a neutral are as little contraband as other band. goods with the same destination. Hostile destination, which is essential even for articles which are obviously used in war, is all the more important for such articles of ancipitous use as are only conditionally contraband. Thus, for instance, provisions and coal are perfectly innocent and not at all contraband if they are destined for use by a neutral. However, the destination of the articles must not be confounded with the destination of the vessel which carries them. For, on the one hand, certain articles with a hostile destination are considered contraband although the carrying vessel is destined for a neutral port, and, on the other hand, certain articles, although they are without a hostile destination, are considered contraband because the carrying vessel is to touch at an intermediate enemy port and is, therefore, destined for such port, although her ultimate destination is a neutral port. 1 Goods are destined for the use of a belligerent in war, not only when they are shipped to an enemy consignee, but also when they are shipped, after the outbreak of war, by a neutral consignor to a neutral consignee with the intention that they should ultimately become the property of the enemy. The fact that at the time of capture the legal property in the goods had not passed from the consignor does not matter, because in such case capture is regarded as delivery and the goods The unratified Declaration of London, in Articles 30 to 36, comprised very detailed rules with regard to hostile destination, distinguishing clearly between the characteristics of hostile destination in the case of absolute contraband and of conditional contraband. (1) The destination of articles of absolute contraband was, according to Article 30, to be considered hostile if it were shown that they were being sent either to enemy territory, or to territory occupied by the enemy, or to the armed forces of the enemy; and, according to Article 31, hostile destination of absolute contraband was to be considered as completely proved, (i) when the goods were consigned to an enemy port or to the armed forces of the enemy, (ii) when the vessel was to call at enemy ports only, or was to touch at an enemy port, or meet the armed forces of the enemy, before reaching the neutral port to which the cargo concerned was consigned. (2) The destination of articles of conditional contraband, on the other hand, was, according to Article 33, considered to be hostile if they were intended for the use of the armed forces, or of a government department, of the enemy State, unless in this latter case the circumstances showed that the articles could not in fact be used for warlike purposes.1 Gold and silver in coin or bullion and paper money were, however, in every case to be regarded as having a hostile destination if intended for a government department of the enemy State. According to Article 34, hostile destination of conditional contraband was to be presumed, unless the contrary was proved, when the articles were consigned, (i) to enemy authorities, or to an enemy contractor established in the enemy country who as a 1 See The Constantinos, (1916) 2 B. and C. P. C. 140, where the Egyptian Prize Court held that the owner of certain conditional contraband consigned to Smyrna had established that it was for private consumption. matter of common knowledge supplied articles of this kind to the enemy, or, (ii) to a fortified place of the enemy or to another place serving as a base-whether of operations or supply-for the armed forces of the enemy.1 On the other hand, if the articles were not so consigned and if the contrary was not proved, their destination was presumed to be non-hostile. In the case of a merchantman which could herself be conditional contraband 2 if bound to a fortified place of the enemy, or to another place serving as a base for the armed forces of the enemy, there was to be no presumption of a hostile destination, but a direct proof was to be necessary that she was destined for the use of the armed forces, or of a government department, of the enemy State. At the outbreak of the World War, Great Britain, in concert with her Allies, by the Order in Council of August 20, 1914,3 adopted (among other articles) Articles 30, 31, 33, and 34 of the unratified Declaration of London without modification except that to the presumptions laid down in Article 34 with regard to the destination of conditional contraband was added a new presumption. This Order in Council was replaced by a new order of October 29, 1914, which again adopted these articles of the declaration, with an additional presumption that if goods which were 1 During the World War-see the British Note of February 19, 1915, to the United States in A.J., ix. (1915), Supplement, p. 176-Germany claimed to treat practically every town or port on the English East Coast as a fortified place and base of operations. Moreover, one of her cruisers sank the neutral Dutch vessel Maria in September 1914, while carrying grain (conditional contraband) from California Dublin and Belfast, on the ground that Dublin and Belfast served as bases for the armed forces of Great Britain. See Garner, ii. §§ 486, 508, to and text of the decision in Z. V., ix. 2 See below, § 397. |