As to absolute contraband, however, the prize council held that when consigned to neutral European ports or an enemy agent in neutral territory, especially if consigned

to order " or if the papers did not indicate the consignee the burden of proof that the ultimate destination was not the enemy rested upon the claimants and not upon the captor.1

3

Many cases involved the liability to capture of goods consigned to firms in Switzerland. When absolute contraband, the prize council uniformly condemned the goods if the consignee was a firm in constant commercial relations with Germany, or if the goods were consigned "to order," or if they were not on the Swiss embargo list; otherwise they were released.2 In such cases the fact that the final lap of the voyage was by land did not alter the situation. In the case of consignments "to order" the prize council asserted the right to examine into all the circumstances with a view to ascertaining the real destination of the goods. The case of the Nieuw-Amsterdam involved the liability to capture of certain portions of a cargo of food-stuffs shipped from New York to Amsterdam and Rotterdam by various American milling and manufacturing companies. The ports of Holland, the prize council said, must be assimilated to German ports if, in virtue of the Rhine navigation convention of October 17, 1868, goods laden on vessels which touch at Dutch ports might be freely transported by way of the Rhine to German territory. There was therefore sufficient presumption that goods destined to such ports were destined ultimately to Germany. Moreover, the measures adopted by the German government for the control of the food supply within German territory had, it was said, destroyed the distinction between goods intended for the State or its agents and those consigned to private persons. Consequently consignments of contraband goods to such persons were subject to the same rules of capture as consignments to the government or its agents.4

1 See, for exampie, the case of the Canellopoulas, 24 Rev. Gén., Jurispr., p. 55. The Peloponesos, ibid., 1917, p. 32. Cf. especially the cases of the Rioja, ibid., 1916, Jurisprudence, pp. 30, 62; the Achilleus, ibid., p. 32; the Grao, ibid., p. 105, and the Teresa-Fabregas, ibid., p. 36.

The Milano, ibid., p. 127. As to the introduction of contraband into Germany through Switzerland, see 45 Clunet, pp. 99 ff. See also ibid., p. 126 for the measures of the Swiss government to suppress this traffic.

A large number of other cases involving questions of contraband were decided by the French prize council, but it is impossible to consider them here. Among

508. German Cases. Owing to the small number of captures made by the naval forces of Germany, the German prize courts had occasion to render very few decisions. There were, however, some captures during the early days of the war before the German fleet was driven to cover; occasionally captures were afterwards made by raiders, and in a few instances these prizes were taken in for adjudication. The most important case involving the question of contraband was that of the Maria the circumstances of the sinking of which are set forth in the preceding chapter (sec. 486). The claimants contended that the cargo was intended for the use of private mills in Ireland which operated for private purposes. They argued, furthermore, that the sinking of the Maria took place before Dublin, to which more than half the cargo had been consigned, had been declared a naval base, and consequently the ship could not be said to have been destined to a prohibited place at the time of its destruction.1 The imperial prize court, however, asserted that while it had not been especially declared to be a naval base, it was in fact a base of operations and supply from the very beginning of the war, and inasmuch as the Maria intended to land first at Belfast, which had already been declared a naval base, the cargo was liable to condemnation, and for the reasons stated above both the cargo and ship were subject to destruction. The contention of the claimants that the cargo was intended for private mills was rejected on the ground that no proof was produced to show that the government authorities would not requisition the grain, after its delivery, for the use of the military or naval forces, and even if such proof had been furnished, there would have been nothing to prevent the public authorities from doing this. The fact that the cargo was consigned "to order" facilitated the free disposal of the cargo. In short, the court presumed from these facts not that the cargo was destined ultimately for the use of the armed or naval forces of the enemy, but that there was nothing to prevent its being taken by the

the more important may be mentioned the cases of the Insulinde, the Jiul, the Eir, the Joannina, the Atlas, the Fortuna, the Boeroe, the Barcelo, the Karimata, the Apollonia, the Agliastra, the Oranje Nassau, the Banda, the Cotentin, and the Achilleus. I have used the texts printed in the Rev. Gén. de Droit Int. Pub.

1 Belfast had been declared a base for the British fleet in August, 1914, but Dublin was not so declared until November 25.

government for such use; i.e., possible use and not actual destination was adopted as the test for condemnation.

The burden of proof was placed upon the claimants to show not only that the cargo was not intended for the use of the military or naval forces, but also that the government would not have requisitioned it, had it reached its destination. This evidence, of course, they could not furnish, and such as was produced was treated by the court as mere assertion. What the court insisted on was a guarantee that in the end the grain would not be used for the military or naval forces. Manifestly, under this decision all contraband destined for enemy territory was liable to seizure and condemnation regardless of whether consigned to a naval base or not. Thus the rule which distinguishes between conditional contraband consigned to certain places of military or naval importance and that consigned to enemy territory in general was in effect swept aside.1 The decision has been strongly criticised by high authority as being a virtual negation of the right of neutrals to transport conditional contraband to enemy territory for private consumption.2 The case was nearly identical with that of the William P. Frye, an American sailing vessel laden with grain and bound for English ports, which was sunk by a German cruiser in January, 1915. In this case, however, the German government agreed

1 The text of the decision may be found in the Zeitschrift für Völkerrect, Bd. IX, Heft 3 (1916), pp. 408 ff. An English translation of the decision is printed in the Amer. Jour. of Int. Law for October, 1916, pp. 927 ff.

Cf. H. R. Pyke in the Law Quar. Review, January, 1916, pp. 60 ff. In his judgment in the case of the Kim, Sir Samuel Evans, referring to the decision of the German prize court in the case of the Maria, said: "I refer to it, not because I look upon it as profitable or helpful (on the contrary, I agree with Sir Robert Finlay that it should rather be regarded as a 'shocking example), but because it is not uninteresting as an example of the ease with which a prize court in Germany hacks its way through bona fide commercial transactions when dealing with wheat which was shipped from America before the war, and which had also before the war been sold in the ordinary course of business to a well-known firm of British merchants." Trehern, Brit. and Col. Prize Cases, Vol. I, p. 490.

The case also bears some resemblance to that of the Wilhelmina where the British government defended the seizure of a cargo of conditional contraband laden on board a neutral vessel and consigned to a private firm in Hamburg. The two cases, however, are by no means analogous. Hamburg, unlike Dublin, was a fortified place, and, besides, the German government had taken over the control of the grain supply, thus abolishing the distinction between the military and civil population. This, of course, had not been done by the British government. Moreover, instead of destroying the Wilhelmina and its cargo, the captor took them in for adjudication, and the owners of the cargo were paid by the British government for the goods taken.

PROPOSAL TO ABOLISH CONTRABAND

313

to compensate the owners of both the ship and cargo in consequence of treaty stipulations, but there being no similar treaty between Germany and the Netherlands, the German government appears not to have made compensation to the Dutch owners. In the case of the Elida,1 however, the Imperial prize court dealt more generously with the claim of a Swedish firm for compensation on account of the seizure by a German torpedo boat of a Swedish steamer laden with a cargo of wood which had been sold by a Swedish firm to an English firm in Hull. The prize court at Kiel had released the ship and cargo on the ground that the seizure took place within the "zone of neutrality" proclaimed by Sweden, i.e., within four miles of the coast of Sweden,' and further because the cargo of wood was "timber" and not "fuel" and therefore not contraband according to the German list then in force. Nevertheless, the lower court refused to allow compensation to the owner of the steamer for damages sustained by the seizure and detention of the ship and cargo. The Imperial supreme prize court, however, reversed the decision of the lower court so far as it related to compensation and ruled that the claim for compensation was fully justified. The commander of the capturing vessel was in error in considering the cargo as "fuel" rather than "timber," and an incorrect interpretation by naval commanders of prize regulations could never be regarded as a sufficient justification for seizure.

§ 508a. Conclusion. It is probably safe to say that the majority of the controversies between belligerents and neutrals to which every war gives rise are connected with trade in contraband. It has therefore been proposed by some writers that neutral governments should forbid their nationals to engage in such traffic, and some even maintain that they are under an obligation to do so.2 In practice, the governments of certain States have occasionally undertaken to prevent the transportation to belligerents of contraband goods. Thus during

1 Text in the Zeitschrift für Völkerrecht, Bd. IX (1915), pp. 109 ff.

* Among them may be mentioned Kleen (Contrabande de Guerre, p. 52), Hautefeuille (Nations Neutres en Temps de Guerre), and Field (Outlines, sec. 964). Woolsey (Int. Law, p. 320) thinks all innocent trade with the enemy should be free, but that neutrals should pass stringent and effectual laws against contraband trade. Phillimore (Int. Law, Vol. III, secs. 227-241) seems to hold the same opinion.

the Franco-German war of 1870 the governments of Austria, Denmark, Spain, the Netherlands, Belgium, Switzerland, and Japan prohibited the exportation of arms and munitions of war to either belligerent, those of Belgium, Switzerland, and Japan considering that it was their duty to do so.1 During the same war the German government declared through its representatives at London and Washington that neutral governments were not permitted to allow their nationals to engage in such trade, but, on the contrary, it was their duty to prohibit it, because "the precepts of international law are binding upon States as well as upon individuals." During the SpanishAmerican war the governments of Brazil and Denmark likewise prohibited the exportation of war materials to either belligerent. These cases of prohibition, however, are exceptional, the general rule being that neutrals are under no obligation to forbid their nationals from engaging in contraband trade, whatever the character of the goods.2

Another proposal which goes to the other extreme is to remove all restrictions on trade in contraband and to exempt contraband goods from liability to capture. Such a proposal was made by the British delegation at the Second Hague Conference. In its memorandum it called attention to the lack of precise rules governing the question of what is and what is not contraband and the multiplicity of controversies to which trade in contraband goods gives rise. It also pointed out that the right of capture in such cases is out of harmony with modern conditions. In the days of sail boats, it was said, contraband consisted almost exclusively of articles used only for war purposes, and the

1 In 1870 the German government contended that it was the duty of neutral governments to prevent their subjects from engaging in contraband trade. Bluntschli, sec. 766. For an argument against the prohibition of trade in contraband see Baty, op. cit., pp. 33-35. The question was discussed by the Institute of International Law at its sessions of 1892, 1894, and 1896 (see the Rev. Gen. de Droit Int. Pub., Vol. III, pp. 648–658 for a review of the discussions). The proposal to prohibit trade in contraband was opposed by Lardy, Stoerk, and General den Beer Poortugael, but defended by Brusa. At the session of 1896, the Institute agreed to a proposal to abolish conditional contraband, reserving to belligerents a right of sequestration or preëmption at their pleasure and to neutrals an equitable indemnity. Annuaire, t. XV, pp. 205 et seq., and p. 231. At the Second Hague Conference of 1907 Admiral Sperry proposed in the name of the American delegation that the right of capture be limited to absolute contraband, and the Brazilian delegation made a similar proposal.

2 This question is considered more at length in secs. 548-552.