conditional contraband shall be liable to capture on board a vessel bound for a neutral port if the goods are consigned "to order," or if the ship's papers do not show who is the consignee 1 of the goods, or if they show a consignee of the goods in territory belonging to or occupied by the enemy.' By an order of March 30, 1916, this provision was also made applicable to absolute contraband.

The Allies went even beyond this, for the order of October 29, 1914, laid down the following further rules:— where it is shown . . . that the enemy Government is drawing supplies for its armed forces from or through a neutral country, [it may be directed] that in respect of ships bound for a port in that country, Article 35 of the said Declaration shall not apply. so long as such direction is in force, a vessel which is carrying conditional contraband to a port in that country shall not be immune from capture'; and the order of March 30, 1916, further provided that the destinations referred to in Article 30 (absolute contraband) and in Article 33 (conditional contraband) of the said Declaration shall... be presumed to exist, if the goods are 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.'

In all the cases covered by these provisions of these Orders in Council the burden of proving that the destination of the goods was innocent was laid upon the

owner.

However, by the Maritime Rights Order in Council of July 7, 1916, the Declaration of London was abandoned altogether, and it was provided in the simplest terms that the principle of continuous voyage or ultimate destination shall be applicable both in cases of contraband and of blockade.' This order also laid down

1 See The Kronprinzessin Victoria, (1918) 3 B. and C. P. C. 247.

Capture

for Car

Contra

band.

elaborate presumptions as to hostile destination which have already been mentioned.1

Certain new applications of the doctrine of continuous transports or indirect carriage of contraband were made by the British Prize Courts during the World War. Thus, in 1917, it was decided 2 that the doctrine of continuous transports was applicable even in a case where contraband goods, seized while on their way to a neutral country, had been intended, after having undergone a process of manufacture there, to be exported from the neutral to an enemy country. But the British Prize Court 3 expressed the view that it would not be in accordance with International Law 'to hold that raw materials on their way to citizens of a neutral country to be converted into a manufactured article for consumption in that country were subject to condemnation on the ground that the consequence might, or even would necessarily, be that another article of a like kind and adapted for a like use would be exported by other citizens of the neutral country to the enemy.'

III

CONSEQUENCES OF CARRIAGE OF CONTRABAND

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

§ 404. It has always been universally recognised by riage of 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; this commences when she leaves the port of starting, and ends when she has deposited the contraband goods, whether with the enemy or other

1 Above, § 395.

2 The Balto, (1917) 2 B. and C. P. C. 398.

3 The Bonna, (1918) 3 B. and C. P. C. 163.

wise. The rule was generally recognised, therefore, even prior to the Declaration of London, that a vessel which has deposited her contraband may not be seized on her return voyage. British and American practice had indeed admitted one exception to this rulenamely, in the case in which a vessel had carried contraband on her outward voyage with simulated and false papers.1 But no such exception had 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. Seizure for carriage of contraband was 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.

Article 37 of the unratified Declaration of London confirmed these old customary rules by providing 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. But Article 38 rejected the British and American practice by providing that a vessel might not be captured on the ground that she had carried contraband 2 on a previous occasion if it was in point of fact at an end.

1 The Nancy, (1800) 3 C. Rob. 122; The Margaret, (1810) 1 Acton 333. See Holland, Prize Law, § 80. Wheaton, i. § 506, n. b, condemns this practice; Hall, § 247, calls it

VOL. II.

20

'undoubtedly severe'; Halleck, ii. p. 220, defends it. See also Calvo, v. §§ 2756-2758.

2 But see below, § 428a.

Penalty for Carriage of

band

to the

During the World War, however, the Allies adopted Article 37, but did not adopt Article 38. Thus the British Order in Council of October 29, 1914, which replaced the order of August 20, 1914, provided that a neutral vessel, with papers indicating a neutral destination, which, notwithstanding the destination shown on the papers, proceeds to an enemy port,1 shall be liable to capture and condemnation if she is encountered before the end of her next voyage'; and this rule was re-enacted in the Maritime Rights Order in Council of July 7, 1916, by which the declaration was abandoned.

§ 405. In former times neither in theory nor in practice were similar rules recognised with regard to the Contra- penalty for carriage of contraband. The penalty was according frequently confiscation not only of the contraband Practice cargo itself, but also of all other parts of the cargo, hitherto together with the vessel. Only France made an excepprevail. ing. tion, 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; it was not until 1681 that an ordonnance proclaimed confiscation of contraband, and even then with exclusion of the vessel and the innocent part of the cargo.2 During the seventeenth century, however, the 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 alone became more and more the rule, certain cases excepted. During the eighteenth century, the right to confiscate contra

1 In The Alwina, (1916) 2 B. and C. P. C. 186, affirmed on appeal (3 B. and C. P. C. 54), it was held that a neutral vessel which had been carrying contraband with false papers is not liable to capture if in the meantime she had abandoned

the adventure, discharged the contraband cargo at a neutral port, and sold and delivered it to other buyers.

2 See Wheaton, Histoire des Progrès du Droit des Gens en Europe (1841), p. 82.

band was frequently contested, and it is remarkable as regards the change of attitude of some States that by Article 13 of the Treaty of Friendship and Commerce 1 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 that they should be paid compensation for their detention. It further provided that the belligerent might seize all contraband against payment of its full value, and that, if the captain of a vessel stopped for carrying contraband delivered 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; 2 and it is certain that, if any rule regarding the 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 what articles were contraband was controversial, and that the practice of States varied much 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

1 Martens, R., iv. p. 42. The stipulation was renewed by Article 13 of the Treaty of Friendship and Commerce of 1799 and by Article 12 of the Treaty of Commerce and Navigation concluded between the two States in 1828; Martens, R., vi. p. 679, and N. R., vii. p. 619. These treaties were the subject of diplomatic correspondence between the United States and Germany during the World War, Germany having sunk a neutral American vessel, the William P. Frye (see above, § 395), which was carrying

contraband. See A.J., ix. (1915), Special Supplement, pp. 180-193, and x. (1916), Special Supplement, pp. 345-352; Z.I., xxvi. (1915), pp. 184-197.

2 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 or attempt to break blockade, See above, § 178.