Free Articles. conditional contraband were consigned to or for an agent of the enemy State,' they had the hostile destination necessary to render them liable to capture. By an Order in Council dated March 30, 1916, it was further provided that this additional presumption should apply also to absolute contraband, and that both absolute and conditional contraband should be presumed to have the hostile destination necessary to render it liable to capture, if consigned to or for a person who during the present hostilities has forwarded imported contraband goods to territory belonging to or occupied by the enemy.' The burden of proving that goods which came within these provisions of this order had an innocent destination was placed upon the owner. However, by the Maritime Rights Order in Council of July 7, 1916, the Declaration of London was abandoned, and it was provided that the hostile destination required for the condemnation of contraband articles shall be presumed to exist, until the contrary is shown, if the goods are consigned to or for an enemy authority, or an agent of the enemy State, or to or for a person in territory belonging to or occupied by the enemy, or to or for a person who during the present hostilities has forwarded contraband goods to an enemy authority, or an agent of the enemy State, or to or for a person in territory belonging to or occupied by the enemy, or if the goods are consigned "to order," or if the ship's papers do not show who is the real consignee of the goods.' § 396. It is obvious that such articles as are not susceptible of use in war may never be declared contraband, whether their destination be hostile or not. The unratified Declaration of London, by Article 27, expressly recognised this, and in Article 28-in a socalled free list-enumerated seventeen groups of articles which might never be declared contraband in spite of their hostile destination. This free list was, however, not adopted by the Allies during the World War; several articles enumerated therein were declared contraband, and thereby the free list obviously lost all value. In the future, as in the past, it will remain for the belligerents to consider whether or no they will treat an article as free, provided that they do not violate the general principle that only such articles may be declared contraband as enable the enemy to carry on the war with greater vigour. 1 destined 396a. However, there are two groups of articles Articles which will always be recognised as free. for the Carrying to aid the In the first place, those articles which serve exclu- use of the sively to aid the sick and wounded may never be Vessel, or treated as contraband even if their destination is Wounded, hostile. They may, however, in case of urgent military necessity, and subject to the payment of compensation, be requisitioned, if they are destined to territory belonging to, or occupied by, the enemy, or to his armed forces. The unratified Declaration of London laid down this rule, and it was adopted during the World War. Secondly, articles intended for the use of the vessel in which they are found, or for the use of her crew and passengers during the voyage, can never be contraband. Hostile destination being essential before any kinds of articles may be considered contraband, those articles which are carried by a vessel manifestly for her own use, or for the use of her crew and passengers, must be free.2 Merchantmen frequently carry a gun and a certain amount of ammunition for the purpose of signalling, and, if they navigate in parts of the sea where there is danger of piracy, they frequently carry a certain amount of arms and ammunition for defence 1 See above, § 391. 2 Article 29 of the unratified VOL. II. 2 N Declaration of London comprised Contraband Vessels. against an attack by pirates. It will not be difficult either for the searching belligerent man-of-war or for the Prize Court to ascertain whether or no such arms and ammunition are carried bona fide. § 397. A neutral vessel, whether carrying contraband or not, can herself be contraband. Such is the case when she has been built or fitted out for use in war and is on her way to the enemy. Although it is the duty of neutrals 1 to employ the means at their disposal to prevent the fitting out, arming, or the departure of any vessel within their jurisdiction which they have reason to believe is intended to cruise or to engage in hostile operations against a belligerent, their duty of impartiality does not compel them to prevent their subjects from supplying a belligerent with vessels fit for use in war except where they have been built or fitted out by his order. Subjects of neutrals may therefore-unless prevented from so doing by Municipal Law, as, for instance, are British subjects by §§ 8 and 9 of the Foreign Enlistment Act, 1870-by way of trade supply a belligerent with vessels of any kind, provided that they have not been built or fitted out by his order. According to the practice which prevailed prior to the World War, such vessels, being equivalent to arms, used to be considered as absolute contraband; 2 and they need not necessarily have been fit for use as men-of-war; it sufficed that they were fit to be used for the transport of troops and the like. According to Articles 22, 24, and 34 of the unratified Declaration of London, a distinction was to be made between warships and other vessels. Warships, including their boats, and distinctive component parts 1 See Article 8 of Convention XIII., and above, §§ 334, 350. 2 The Richmond, (1804) 5 C. Rob. 325. See also Twiss, ii. § 148, and Holland, Prize Law, § 86. which by their nature could only be used on a vessel of war, might be treated as absolute contraband without notice. Vessels, craft, and boats of all kinds, and, further, floating docks, parts of docks and their component parts, might only be treated as conditional contraband, but might be so treated without notice. During the World War the Allies adopted these rules of the Declaration of London.1 II CARRIAGE OF CONTRABAND See the literature quoted above at the commencement of § 391. band the Muni gerents. § 398. The guaranteed freedom of commerce making Carriage the sale of articles of all kinds to belligerents by subjects of Contraof neutrals legitimate, articles of conditional as well Penal by as absolute contraband may be supplied by sale to cipal Law either belligerent by these individuals. Moreover, the of Bellicarriage of such articles by neutral merchantmen on the open sea is, as far as International Law is concerned, quite as legitimate as their sale. The carrier of contraband by no means 2 violates an injunction of the Law of Nations. But belligerents have, by the Law of Nations, the right to prohibit and punish the carriage of contraband by neutral merchantmen, and the carrier of contraband violates, for this reason, an injunction of the belligerent concerned. It is not International Law, but the Municipal Law of the belligerents, which makes carriage of contraband illegitimate and penal.3 The question why the carriage of contraband articles 1 See above, §§ 393, 394. 2 Most writers, especially British and American, nowadays agree with this statement, although there are still some left who assert that a carrier of contraband violates an injunction of International Law. It is to be regretted that Pyke, The * See above, § 296. Direct may be prohibited and punished by the belligerents, although it is quite legitimate so far as International Law is concerned, can only be answered by reference to the historical development of the Law of Nations. In contradistinction to former practice, which interdicted all trade between neutrals and the enemy, the principle of freedom of commerce between subjects of neutrals and either belligerent has gradually become universally recognised; but this recognition included from the beginning the right of either belligerent to punish carriage of contraband on the sea. And the reason obviously is the necessity for belligerents, in the interest of self-preservation, to prevent the import of such articles as may strengthen the enemy, and to confiscate the contraband cargo, and, in certain cases, the vessel also, as a deterrent to other vessels. The present condition of the matter of carriage of contraband is therefore a compromise. In the interest of the generally recognised principle of freedom of commerce between belligerents and subjects of neutrals, International Law does not require neutrals to prevent their subjects from carrying contraband;1 on the other hand, International Law empowers either belligerent to prohibit and punish carriage of contraband just as it empowers either belligerent to prohibit and punish breach of blockade.2 § 399. The simplest case of carriage of contraband Carriage occurs where a vessel is engaged in carrying to an enemy port such goods as are contraband and have a hostile destination. In such cases, it makes no difference band. 1 See Ex parte Chavasse, in re Grazebrook, (1865) 34 L. J. N. S., Bank. 17. The same applies to blockade-running and rendering unneutral service; see The Helen, (1865) L. R. 1 A. and E. 1. 2 See above, § 383. The destination of the cargo being hostile, it does not matter that the cargo is intended to be reshipped to a neutral country after having undergone a certain course of treatment. The hostile destination makes it contraband; The Axel Johnson, (1917) 2 B. and C. P. C. 532. |