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noxious commodities, must take the ill consequences resulting from such an association. They must proceed to some other port, where the enemy is not established, and where the obnoxious commodities consequently lose their contraband character, and become fair articles of general trade. For though sail cloths and hemp are most mischievous materials, if they be sailing to a hostile market, yet a belligerent nation interposes no objection against the transfer of such commodities from a neutral possessor to her own subjects, or to another neutral.”
Contraband is of an infectious nature, and contaminates the whole cargo, the innocence of any particular article not being usually admitted to exempt it from the general confiscation.
By the ancient law of Europe, contraband cargo rendered the ship also liable to condemnation. “Nor can it be said,” said Lord Stowell, in The Ringende Jacob (1 Rob. 89), “ that such a penalty is unjust, or not supported by the general analogies of law, for the owner of the ship has engaged it in an unlawful
But in the modern practice of the Courts of Admiralty in this country (and I believe of other nations also) a milder rule has been adopted, and the carrying of contraband articles is attended only with the loss of freight and expenses, except where the ship belongs to the owner of the contraband cargo, or where the simple misconduct of carrying a contraband cargo has been connected with other malignant and aggravating circumstances."
Of all the “ malignant and aggravating circumstances” operating against a ship charged with contraband, false destination and false papers are considered
as the most heinous. “ These,” said Lord Stowell, in The Neutralitet (3 Rob. 295), “ constitute circumstances of aggravation that have been held to except the cases out of the modern rule and include them in the ancient." In The Mercurius (1 Rob. 288), Lord Stowell said : "
Formerly, by the law of nations, the carrying of contraband articles of war worked a forfeiture of the ship. (Declaration of England and Holland against Spain, 17th of September, 1625, Art. 20; and treaty between England and France, November 3rd, 1653, Art. 15.) In modern practice, except where the contraband articles belong to the owner of the vessel, or where the case is attended by particular circumstances of aggravation, the penalty has been mitigated to a forfeiture of freight and expenses.”
In the case of The Charlotte, Lord Stowell said: “ The character of the port is immaterial, since naval stores, if they are to be considered as contraband, are so without reference to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of naval military equipment. The consequences of the supply may be nearly the same in either case.
If sent to a mercantile port, they may then be applied to immediate use in the equipment of privateers, or they may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied if going directly to a port of naval equipment.”
By the case of The Richmond, Brattel (5 Rob. 336), the carrying pitch and tar to a legal port with the intention of selling them there, and if not, of carrying them on to an enemy's port for sale, is illegal, and the intention of so doing being proved, and that the ul
terior destination was concealed, the vessel, the property of the same owners, was held liable in condemnation. So in the case of The Charlotte, Stromsten (1 Acton, 201), a Swedish ship laden with pitch, tar and deals, sailing under instructions to take British convoy from Lisbon in case the master should not be able to obtain a purchaser at Copenhagen for the ship and cargo, but afterwards detected entering a Dutch enemy's port, it was held by the Court of Appeal liable to condemnation with her
notwithstanding the protest of the master, alleging the impossibility of obtaining convoy, and that the deviation was occasioned by his apprehension of capture by French cruizers, the suspicious circumstances in the case being held to remove all favourable construction usually applied with respect to the general trade of Sweden in such articles. In The Jonge Tobias (1 Rob. 330) Lord Stowell said :-“Formerly, according to the old practice, this cargo would bave carried with it the condemnation of the ship; but in later times this practice has been relaxed, and an alteration has been introduced which allows the ship to go free, but subject to the forfeiture of freight on the part of the neutral owner.
This applies only to cases where the owners of the ship and cargo are different persons. Where the owner of the cargo has any interest in the ship, the whole of his property will be involved.”
No neutral state is bound by the law of nations to prohibit by its municipal law the exportation of contraband articles, and the only illegality of such importation consists in their liability to confiscation on capture by the other belligerent. (The Santissima Trinidad, 7 Wheat. 283.)
Contraband concealed in the outward voyage affects the ship on her return voyage. The rule holds, notwithstanding the vessel may have performed various different voyages and repeatedly changed her cargos at these several ports to which she may have traded from the time of her departure from her original port to the time of her return; nor is it necessary that the return cargo should be part proceeds of the contraband on the former voyage. “The principle," said Sir William Grant, in The Margaret (1 Acton, 335),
upon which this and other prize courts have generally proceeded in adjudication of cases of this nature appears simply to be this, that if a vessel carried contraband on the outward voyage, she is liable to condemnation on the homeward voyage.
It is by no means necessary that the cargo should have been purchased by the proceeds of this contraband."
In The Nancy (3 Rob. 122), persons convicted of sending contraband articles to a settlement of the enemy in the West Indies, with false papers for another destination, were not allowed further proof of the return cargo being the proceeds of the contraband articles. The question of contraband does not arise where the ship was going into a blockaded port with articles that would have been contraband if they had gone in, but the master changed the destination on hearing of the blockade. (The Imina, 3 Rob. 167.)
Contraband articles are not only prize themselves, but affect innocent parts of the cargo belonging to the same person.
Thus, in The Staadt Embden (1 Rob. 26), Lord Stowell condemned the whole cargo
of deals and masts, the latter being contraband in the judgment even of the most zealous advocates of neutral com
merce, on the ground “that no distinction could be made between these articles, because they were all the property of the same claimant; for although a mixture of contraband articles may not affect innocent articles the property of a different owner, it contaminates every part of the cargo belonging to the same person, and makes it subject to confiscation. The same principle is strongly enforced by Bynkershoeck throughout the whole of his twelfth chapter : “ Sed omnino distinguendum putem,” says he,
an licitæ et illicite merces ad eundem dominum pertineant, an ad diversos, si ad eundem. omnes rectè publicabuntur ob continentiam delicti."
The general rule, that wbere a capture is made of a cargo, the property of an enemy carried in a neutral ship, the neutral shipowner obtains against the captor those rights which he had against the enemy, does not apply to the case of contraband. “ If, said Lord Stowell, in The Emanuel (1 Rob. 296), “an enemy puts on board a neutral vessel a cargo belonging to himself, which is a contraband cargo, and that cargo is taken, it is condemnable to the captor; but the court will not consider itself as bound to enforce the payment of freight against the captors, although, at the same time, the neutral shipowner might have just reason to demand it from the enemy with respect to whom his contract has been performed, so far as he had not been disabled from fulfilling it by the very circumstance of the other contracting party having put a cargo of that species on board, and consequently exposed the vessel to hostile seizure; and the court may, in like manner, not consider itself under any obligation to say, in other instances, that the captors