regarding the fate of the vessel and the innocent part of the cargo. Great Britain and the United States of America 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, if the vessel sailed with false or simulated papers for the purpose of carrying contraband,2 or if the vessel was by a treaty with her flag State under an obligation not to carry the goods concerned to the enemy and the owner knew that his vessel was carrying contraband.3 To these as appears from The Hakan, decided in the British Prize Courts during the World War-British practice added a third case. After considering the practice of the past, the Privy Council felt that in this state of the authorities they ought to hold that knowledge of the character of the goods on the part of the owner of the ship is sufficient to justify the condemnation of the ship, at any rate where the goods in question constitute a substantial part of the whole cargo.' Some States allowed a vessel carrying contraband which was not herself liable to confiscation to proceed with her voyage on delivery of her contraband goods to the capturing cruiser; 5 but Great Britain and other States insisted upon the vessel being brought before a Prize Court in every case. 6 As regards conditional contraband, those States 1 The Kronprinsessan Margareta, (1917) 2 B. and C. P. C. 409; The Annie Johnson, (1917) 3 B. and C. P. C. 138; The Posteiro, (1917) 3 B. and C. P. C. 275; The Parana, (1919) 3 B. and C. P. C. 482; The Antwerpen, (1919) 3 B. and C. P. C. 486 n. 87. * See Holland, Prize Law, §§ 82 3 The Neutralitet, (1801) 3 C. Rob. 295; The Ringende Jacob, (1798) 1 C. Rob. 89; The Sarah Christina, (1799) 1 C. Rob. 237; The Franklin, (1801) 3 C. Rob. 217. (1916) 2 B. and C. P. C. 210 and, on appeal, 479, at p. 487. See Calvo, v. § 2779. • See Holland, Prize Law, § 81. which made any distinction at all between absolute and conditional contraband, frequently confiscated neither the conditional contraband nor the carrying vessel, but seized the former and paid for it. According to the British practice1 which prevailed from the end of the eighteenth century, freight was paid to the vessel, and the usual compensation for the conditional contraband was the cost price plus ten per cent. profit. States acting in this way asserted a right to confiscate conditional contraband, but exercised pre-emption in mitigation of such a right. Those Continental writers who refused to recognise the existence of conditional contraband, denied in consequence that there was a right to confiscate articles which were not absolute contraband; but they maintained that every belligerent had, according to the so-called right of angary,2 a right to stop all neutral vessels carrying provisions and other goods with a hostile destination of which he might have made use, and to seize such goods against payment of their full value. according tion of for Car § 406. The unratified Declaration of London offered Penalty by Articles 39 to 44 a settlement of the controversy to the respecting the penalty for carriage of contraband which Declararepresented a fair compromise. Contraband goods, London whether absolute or conditional contraband, might be confiscated (Article 39). The carrying vessel might Contra(Article 40) likewise be confiscated if the contraband, reckoned either by value, weight, volume, or freight, formed more than half the cargo.3 If this was not 1 See Holland, Prize Law, § 84. Great Britain likewise exercised preemption instead of confiscation with regard to such absolute contraband as was in an unmanufactured condition and was at the same time the produce of the country exporting it. 2 See above, § 365. 3 In The Lorenzo, (St. Lucia Prize Court), (1914) 1 B. and C. P. C. 226, it was correctly decided that under Article 40 of the Declaration of riage of band. the case, and the carrying vessel was therefore released, she might (Article 41) be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national Prize Court and the custody of the ship and cargo during the proceedings. But whatever might be the proportion between contraband and innocent goods on a vessel, innocent goods (Article 42) which belonged to the owner of the contraband and were on board the same carrying vessel might be confiscated. If a vessel carrying contraband sailed before the outbreak of war (Article 43), or was unaware of a declaration of contraband which applied to her cargo, or had had no opportunity of discharging her cargo after receiving such knowledge,1 the contraband might only be confiscated on payment of compensation, and the vessel herself and her innocent cargo might not be confiscated, nor might the vessel be condemned to pay any costs and expenses incurred by the captor. But there was to be a presumption which was not to be rebuttable with regard to the mens rea of the vessel. her condemnation. It was also held in this case in the court of first instance (at p. 226) and in The Maracaibo, (1916) 2 B. and C. P. C. 294, that, independently of the Declaration of London, it is now a rule of International Law that the carrying vessel may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo. It was further held in The Maracaibo, that this rule applies even when the owner of the vessel is ignorant of the contraband character of the goods. But doubts were expressed on this point in The Dirigo, (1919) 3 B. and C. P. C. 439. See also The Hillerod, (1917) 3 B. and C. P. C. 48; The Ran, [1919] P. 317, 3 B. and C. P. C. 621; The Kim, [1920] P. 319. 1 It seems to be obvious that Article 43 only applies to cargo which is neutral property. If enemy property, it may be condemned without compensation. See The Sorfareren, (1915) 1 B. and C. P. C. 580. 2 It is obvious that the vessel must be brought into a port and before a Prize Court if the captor desires to seize the contraband against compensation. The question whether Article 44 applied to such a case, and whether therefore the neutral vessel might be allowed to continue her voyage if the master was willing to hand over the contraband to the captor, must be answered in the affirmative, provided that the contraband, reckoned either by value, weight, volume, or freight, formed less than half the cargo. For Article 44 precisely treated of a case in which the vessel herself was not liable to condemnation on account of the proportion of the contraband on board (see Article 40). For according to the second paragraph of Article 43, a vessel was to be considered to have knowledge of the outbreak of war, or of a declaration of contraband, if she left an enemy port after the outbreak of hostilities, or if she left a neutral port after the notification of the outbreak of hostilities, or of the declaration of contraband to the Power to which such port belonged, provided that such notification was made in sufficient time. However, the declaration did not secure ratification. The question of pre-emption of conditional contraband was not mentioned by the Declaration of London. There is, however, nothing to prevent the several maritime Powers from exercising pre-emption in mitigation of their right of confiscation. Contra Seizure Vessel. § 406a. Prior to the Declaration of London, the practice seizure of of the several States had differed1 with regard to the band question whether a vessel which was not herself liable without to condemnation might be allowed to proceed on her of the voyage, on condition that she handed over the contraband carried by her to the captor. Great Britain and some other States answered it in the negative; but several States in the affirmative. The unratified Declaration of London, although it upheld the general rule that, whatever might be the ultimate fate of the vessel, she must be taken into a port of a Prize Court, admitted two exceptions to the rule : (1) According to Article 44, a vessel which had been stopped for carrying contraband and which was not herself liable to be confiscated on account of the proportion of contraband on board, might not mustwhen the circumstances permitted it, be allowed to continue her voyage in case she handed over the contraband cargo to the captor. In such a case, the captor was to be at liberty to destroy the contraband handed over to him. But the matter had in any case to be 1 See above, § 405. brought before a Prize Court. The captor had therefore to enter the delivery of the contraband on the log-book of the vessel so stopped, and the master had to give duly certified copies of all relevant papers to the captor. (2) According to Article 54, the captor might1 exceptionally, in case of necessity, demand the handing over, or might proceed himself to the destruction, of any absolute or conditional contraband goods found on a vessel which was 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 was engaged at the time. But the captor had nevertheless to bring the case before a Prize Court. He had, therefore, to enter the captured goods on the log-book of the stopped vessel, and obtain duly certified copies of all relevant papers. If the captor could not establish before the Prize Court that he was really compelled to abandon the intention of bringing in the carrying vessel, he was to be condemned (see Article 51) to pay the value of the goods to their owners whether contraband or not. However, the declaration has not been ratified. During the earlier part of the World War the Allies adopted the rules of the unratified declaration which have been mentioned in this and the preceding section; when, in July 1916, Great Britain and France abandoned the declaration altogether, they expressly retained Article 40. 1 See below, § 431. |