66

alone sufficient for condemnation of the vessel. In this state of the authorities, therefore, their Lordships considered 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. Art. 41 of the German Prize Regulations is identical with Art. 40 of the Declaration. Prior to this, a ship carrying contraband could only be confiscated if the owner or the charterer of the whole ship, or the master, knew, or ought to have known, that there was contraband on board, and if that contraband formed more than a quarter of the cargo. Here knowledge is made the determining factor although there is a concession to the neutral if the proportion of contraband to the whole cargo is sufficiently small. In The Batavier V., Fauchille, Jurisp. Alle. 90, although the owners failed to rebut the presumption of a hostile destination, the ship was released because the contraband goods were of relative unimportance to the rest of the cargo. (See also The Brilliant, ibid. 95.)

Art. 40 of the Declaration was adopted by Italy. In The Kyzicos, Fauchille, Jurisp. Ital. 57, a Greek vessel, laden with absolute and conditional contraband, was consigned "to order" to a hostile destination, with irregular ship's papers, and when the owners of the vessel failed to rebut the presumption of hostile destination, it was held that when the contraband goods reached half the cargo in value, or weight, or volume, or freight, the vessel must be confiscated in accordance with the provisions of Art. 40 (y).

Freight. Freight is never paid to neutral shipowners in respect of the carriage of contraband, except as a matter of grace or of discretion.

The Katwyk, 1 B. & C. P. C. 282, was a Dutch vessel which left a Spanish port on the 16th of September, 1914, laden with iron ore consigned to Rotterdam and destined for Krupp's works at Essen. Iron ore had been declared conditional contraband on the 21st of September, 1914, and the cargo was formally seized as prize on the 4th of October. The cargo was condemned, but since it was innocent when the vessel commenced her voyage, Evans, P., said according to the principles which had been agreed upon in the Declaration of London -principles upon which I think it would be right for this Court to act, apart from the binding character of the Declaration-the ship could not be condemned by reason of the cargo being declared contraband after starting on her voyage. Prima facie, therefore, the owners of this ship, the Dutch company would be entitled to some freight." There was no reason why at that time the company should not have business transactions with Krupp and consequently the owners were entitled to such freight as might reasonably be allowed-see The Juno, 1 B. & C. P. C. 151.

In The Jeanne, 2 B. & C. P. C. 300, prior to the war the German s.s. Neuenfels sailed from Burma with a cargo of rice for consignees in Germany and Austria. After hostilities the Neuenfels took refuge in the port of Vigo, where, after delay, the rice was transhipped in the Scandinavian vessels Jeanne, Vera, Forsvik, and Albania. The rice

(y) See also The Evangelistria or Donatos, Fauchille Jurispr. Ital. 169;

The Atromitos, ibid. 238, and Decree, 3rd of June, 1915.

was condemned as conditional contraband the property of, and on its way to, the enemy. As Story, J., said in The Commercen, 1 Wheat. 382; Scott 973, the general rule that the neutral carrier of enemy's property is entitled to his freight is too firmly established to admit of discussion. "But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence the carrying of contraband goods to the enemy; the engaging in the coasting or colonial trade of the enemy; the spoliation of papers and the fraudulent suppression of enemy interests have been held to affect the neutral with the forfeiture of freight, and in cases of more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy and a breach of blockade, the penalty of confiscation of the vessel has also been inflicted." In The Prins Der Netherlandem, 3 B. & C. P. C. 696 and 943, Duke, P., allowed the owners of the vessel the full amount of freight claimed in respect of the carriage of cocoa originally laden on board the German s.s. Arnean in South America and transhipped to the Prins Der Netherlandem after the outbreak of war for delivery to Amsterdam, upon the ground that the shipowners unknowingly carried contraband and were not parties in intent to a contraband transaction. This decision was reversed by the Privy Council, their Lordships declaring that whilst the Court possessed a discretion to allow freight on contraband, such discretion ought not to turn merely on the question whether the shipowner knew, or did not know, the character of his cargo, still less that proof of his ignorance should be treated as a title to a decree for freight. The disallowance of freight on contraband does not rest, said Lord Sumner, on the theory of it being a penalty." "The term as used in this connection is not one implying that the carriage of contraband is attended with the usual incidents of the commission of an offence. Neutrals who carry contraband do not break the law of nations; they run a risk for adequate gain, and if they are caught they take the consequences. If they know what they are doing, those consequences may be very serious; if they do not, they may get off with some inconvenience or delay. This must suffice them. Having done their best to aid one belligerent by carrying contraband for him, they cannot ask that other shall pay the penalty for their own success in defeating the attempt by rewarding the neutral carrier as if his venture had succeeded. That would be to encourage the carrying of contraband, whereas, it is a thing to be deterred. Nor should ignorance of what he is doing be a safeguard to the carrier. If he is to be deterred, it must be made worth his while to know, in order that he may prefer to abstain."

Seizure of Contraband.-Formerly there was no uniform practice as to whether a vessel carrying contraband and not liable to condemnation should be allowed to proceed on giving up the contraband to the captor. By Art. 48 of the Declaration of London a general rule was established that all neutral captured ships must be sent in. This was subject to the two exceptions provided by Arts. 44 and 54 (supra, p. 44). These Articles, incorporated in the German Prize Code, were in the early days of the war of 1914 observed by German cruisers.

In The Maria, Fauchille, Jurisp. Alle. 34, a Dutch vessel laden with wheat destined to Belfast, held to be a base of operations and of supply for the English armed forces, the destruction of the vessel was held to be justified by the fact that the Maria could not follow her captor, the Karlsruhe, without risk of recapture owing to the proximity of enemy cruisers, that the Karlsruhe could not spare a prize crew and could not take her in without compromising the success of her operations. With the introduction of unrestricted submarine warfare, no attempt was made to observe the provisions of Arts. 44 and 54.

Export of Contraband.-The export of contraband, even though in the way of trade, has sometimes been a subject of complaint on the part of belligerents against a neutral State. So, during the Civil War, the United States complained of the refusal of the British Government to put a stop to contraband traffic between British ports and those of the Southern Confederacy (z). In 1870, Prussia also complained of the action of the British Government in allowing the sale and export by English firms of arms and ammunition to France (a). In 1904 Russia appears to have questioned the legality of British trade in contraband with Japan (b). It is true that most States, including Great Britain, warn their subjects of the penalties incident to contraband traffic (c); that some States even go so far as to prohibit the export of contraband from their territory (d); and, finally, that some writers are of opinion that a duty should be imposed on neutral Governments to prevent the export of contraband by their subjects (e). But so far there is, as we have seen (f), no duty on the part of neutral States to restrain contraband traffic (g), unless it involves a use of neutral territory for the preparation of an instrumentality of war (h), or a direct participation in some specific operation of war (i). It was on the latter ground, no doubt, that the British Government in 1870, whilst refusing to interfere with the export of coal to France generally, yet prohibited its export from British ports to the French Fleet in the North Sea (k). But in such cases the export of contraband is really incident to another kind of illegality, which is governed by separate and independent rules (1).

UNNEUTRAL SERVICE (m).

(i) THE CARRIAGE OF NAVAL OR MILITARY

PERSONS.

THE OROZEMBO.

[6 C. Rob. 430; Scott, 865 (1807).]

Case.] IN 1807, during war between Great Britain and Holland, the Orozembo, an American ship, was chartered by a merchant at Lisbon, ostensibly, to proceed in ballast to Macao and thence to take a cargo to America. Afterwards, by direction of the charterer, three military officers of distinction and also two persons employed in the civil departments of the Government of Batavia-who had come from Holland to take passage to Batavia by direction of the Dutch Government-were received on board, together with their attendants, the vessel having been specially fitted for their reception. In the course of her voyage she was captured by the British and sent in for adjudication. Condemnation of the vessel was prayed for, on the ground that she had been employed at the time of capture in the service of the enemy and for the purpose of transporting military persons to enemy territory. On behalf of the owner, it was contended that the master was ignorant of the service in which he was engaged, and that in order to warrant condemnation there must be some proof of delinquency in him or the owner. The vessel was condemned as a transport hired by the Dutch Government.

Judgment.] Lord Stowell, after referring to the facts, said that it had already been held that a vessel hired by the enemy for the conveyance of military persons was to be considered as a transport and as subject to condemnation. It might be difficult to define precisely the number of military persons required to

statutory powers of forbidding the export of warlike material; see the Customs Consolidation Act, 1853, s. 150, although this is really a measure of self-protection.

(m) The forms of unneutral service here described are sometimes treated

of under the head of analogous of contraband, see Hall, § 248; but the analogy is not very clear, the hostile association being in some cases more, and in other cases less, close than that involved in contraband carriage.

involve a vessel in guilt. But on the whole he agreed with what had been said in argument, that in view of the principle on which the law was built up number alone was not material. It might, for instance, be of much more assistance to one belligerent, and much more noxious to the other, to carry a few persons of higher quality than a much greater number of lower condition; and it was the consequences of such assistance that the belligerent was entitled to prevent and punish. In the present case there were three military persons, as well as two civil officers. Whether the same principle applied to the latter he was not then called upon to determine; but on principle it appeared reasonable that wherever it was of sufficient importance to the enemy that such persons should be sent out on the public service at the public expense it should afford ground of forfeiture against the vessel let for a purpose so intimately connected with hostile operations. As to the contention that there must be some proof of knowledge or delinquency on the part of the master in order to involve the vessel, that was not essential. It was sufficient if there was an injury arising to the belligerent from the employment in which the vessel was found; and if the service was injurious, it gave the belligerent a right to prevent the thing from being done, or at least repeated, by enforcing the penalty of confiscation. Moreover, the knowledge or privity of the owner or those emloyed to act for him would be just as effectual as that of the master; and, in the present case, the evidence appeared to justify the supposition that the owner, or those acting for him, knew of the nature of the transaction. At the same time, the principle on which he decided the case was that the carrying of military persons to a colony of the enemy, there to exercise their military functions, was in itself a cause of condemnation, without scanning too minutely the number of persons so carried; and that the ignorance of the master was no ground of exculpation.

According to the British practice (n), a neutral vessel, which is employed by one belligerent to carry combatants or intending combatants for purposes connected with the war, is liable to capture and condemnation by the other, together with her cargo; and this whether

(n) See Parl. Pap. 1909 [Cd. 4554].