the number carried comprises only a few individuals, so long as their carriage is a service of State (o), or an entire detachment (p). Nor will it make any difference that the master was ignorant of the true character of such employment, so long as it was an actual engagement in the enemy service, whether exclusive or partial (q); or even that the employment originated in acts of violence or duress on the part of the other belligerent (r).

In The Greta, B. Y. B. I. L. 1922-23, p. 188, a German vessel, the claimants, who were residents and domiciled in Hong Kong, claimed the cargo on board the vessel, which to their knowledge was chartered during the Crimean War to transport two hundred and seventy Russian officers and men, who had been wrecked off the coasts of Japan. The vessel and cargo were both condemned by the Vice-Admiralty Court of Hong Kong. And the same rule would probably apply where a neutral vessel was employed to carry even civil officers, if they were despatched on the public service and at the public expense (s). But such a liability would not, it seems, attach where the persons in question, even though having a military character, were merely travelling in the ordinary way and as private passengers at their own expense (t). The practice of the United States on these points appears to be substantially the same as the British (u). Similar rules were enforced also by Japan during the Russo-Japanese War, 1904-5. So, in the case of The Nigretia, 2 R. & J. P. C. 201—a British vessel captured by the Japanese in 1904 whilst on a voyage from Shanghai to Vladivostok-both ship and cargo were condemned on the ground that the vessel had on board two Russian officers who had recently been released from China on parole, but who were then proceeding to a naval port of the enemy, and travelling with the connivance of the charterers under feigned names and under pretence of being in the service of the vessel (x). In the Yangtsze Insurance Association v. The Indemnity Marine Mutual Assurance Co., [1908] 1 K. B. 910; 2 K. B. 504, however, it was held by the Privy Council in a suit on a policy of insurance relating to this vessel-although only as a matter of construction-that the carriage of such persons did not amount to a breach of warranty against contraband of war contained in the policy, for the reason that contraband-in its natural sense, and in the absence of special circumstances or something in the text pointing to a wider meaning-only applied to goods and not to persons.

(0) The Orozembo, supra, p. 590. (p) The Friendship, 6 C. Rob. 420. In this case a neutral vessel, which had been employed to carry back to France a large number of shipwrecked officers and men belonging to the French navy, was held liable to condemnation as an enemy transport.

(q) The Orozembo supra,

(r) The Carolina, 4 C. Rob. 256.

(s) The Orozembo, supra.

(t) See Parl. Pap. 1909 [Cd. 4554], p. 9; and dictum of Lord Stowell in The Friendship, 6 C. Rob. at 429.

(u) See Wheaton (Dana), 637. (x) As to the practice of other States, both on this and allied topics, see Parl. Pap. 1909, [Cd. 4555] 103-107.

(a) DESPATCHES.

THE ATALANTA.

[6 C. Rob. 440; Scott, 867 (1808).]

Case.] IN 1807, during war between Great Britain and France, the Atalanta, a neutral ship, was captured whilst on a voyage from Batavia to Bremen. It appeared that at the Isle of France, a French possession at which the vessel had previously called, a packet containing despatches from the local authorities to the French Minister of Marine had been taken on board. These despatches were subsequently discovered by the captors concealed in a tea chest, which was itself deposited in a trunk belonging to the second supercargo. In these circumstances both ship and cargo were condemned, on the ground that the carrying of despatches for a belligerent by a neutral ship places the ship in the service of the former.

Judgment.] Lord Stowell observed that he was not called upon to decide what might be the consequences of a simple transmission of despatches, for the reason that the present case was a fraudulent one. But even the simple carrying of despatches for the enemy was a service highly injurious to the other belligerent. And this was so, even though such despatches related to operations not strictly military, for the reason that even civil operations might have an important bearing issue of the war. The consequences of the carriage of despatches were indeed far more serious than the carriage of contraband for in them there might be conveyed the entire plan of campaign. After referring to the authorities the learned judge came to the conclusion that the carrying of despatches for the enemy warranted the confiscation of the vessel. It was true that in ordinary cases of contraband the ship incurred no penalty but loss of freight, but inasmuch as despatches carried no freight it would be ridiculous to treat the mere confiscation of the despatches themselves as sufficient penalty. Hence it was necessary to resort to further measures, which could be no other

than the confiscation of the ship. With respect to the cargo, it appeared in the present case that the offence was as much the act of those who were the agents of the cargo as of the master of the vessel; and for this reason the decree of condemnation must also extend to the cargo.

According to the British practice, the carriage by a neutral vessel of enemy despatches relating directly or indirectly to the operations of war, either with the privity of the master or other persons responsible for the action of the vessel or under circumstances of fraud or concealment, renders the vessel liable to condemnation; and this penalty extends also to the cargo in a case where the latter belongs to the same owners, or where there is evidence of complicity on the part of the owners or their agents. But the penalty will not attach in a case where the master was ignorant either of the fact that despatches were being carried (y), or of their true character (z). Nor will any liability be incurred by the carriage of despatches from an enemy ambassador or consul in a neutral country to his Government (a); or even from the enemy Government to an ambassador or consul in a neutral country (b); for the reason that such despatches are necessary in the interests of the neutral and cannot be presumed to have a belligerent object. Nor, finally, was any such liability incurred by the carriage of despatches in the ordinary way of post; postal correspondence, whether found on board neutral or enemy ships, being declared to be inviolable by the H. C., XI., 1907 (c).

(b) MESSAGES AND SIGNALS.

THE HAIMUN.

[Takahashi, 387 (d); Lawrence, War and Neutrality, 83; Hershey, 116; Smith & Sibley, 82 (1904).]

Case.] IN 1904, during the Russo-Japanese war, the steamship Haimun flying the British flag, was chartered by a British war correspondent, equipped with special apparatus, and thereafter

employed, within the area of belligerent operations, for the purpose of procuring and forwarding information with respect to the war. This information was sent from the vessel by wireless telegraphy to a receiving station at Wei-ha-wei, and thence telegraphed to The Times of London and The New York Times over neutral cables. The correspondent in question was accredited to the Japanese headquarters and subject to all consequent restrictions. The Haimun was at different times visited and searched by the warships of each of the belligerents, and in particular by the Russian cruiser Bayan, which appears to have made a careful examination of the apparatus on board. The apparatus used was capable not only of sending messages, but also of intercepting messages sent by either belligerent; and even though such messages would ordinarily be in cipher, the information so obtained might, if improperly used, have materially influenced the conduct of hostilities. In these circumstances, on the 15th of April, an official note was addressed by the Russian Government both to Great Britain, the United States, and other Powers, containing the following intimation:-" In case neutral vessels, having on board correspondents, who may communicate news to the enemy by means of improved apparatus not yet provided for by the existing conventions, should be arrested off Kwan-tung, or within the zone of operations of the Russian fleet, such correspondents shall be regarded as spies, and the vessels provided with such apparatus shall be seized as lawful prize" (e). Both Great Britain and the United States, however, refused to accept this declaration as being in conformity with the existing law; and made a formal reservation of their rights, in the event of their subjects or citizens being arrested or their vessels seized under this declaration. In the result, no further action was taken in the matter by Russia. But Japan shortly afterwards forbade the Haimun to proceed north of a line drawn between Chefoo and Chemulpo.

The claim to treat the transmission of such messages as espionage was clearly indefensible (f). Nor, by existing usage, could exception be taken to the transmission of wireless messages from the high seas

(e) See Hall, § 188; Hansard, 4th ser. vol. cxxxiii. 676.

(f) Supra, p. 593; but see also infra,

p. 606.

to neutral territory, and thence by ordinary channels to some other neutral destination; although in naval warfare the transmission of such messages from any point within the area of belligerent operations might render the individuals who sent the messages, if they acted clandestinely or made false pretences, liable to the penalties of espionage, and the vessel itself, if the master were privy to the act, would be liable to condemnation on capture (g). But if it had been shown that information gained by the interception of messages had been communicated by those on board the Haimun directly to the enemy, this would have been a hostile act, which would have justified the condemnation of both vessel and her apparatus (h). So, during the same war, The Industrie, 2 R. & J. P. C., a German vessel, was captured and condemned by the Japanese, on the ground that, although purporting to be engaged in collecting war news for a newspaper at Chefoo, she was really employed in watching the movements of the Japanese Fleet and conveying military information in the interest of the enemy. The various questions arising, in war, in connection with the use of wireless telegraphy will be considered hereafter (i).

(iii) ENLISTMENT IN THE ENEMY SERVICE.

THE QUANG-NAM.

[Hurst & Bray 2; R. & J. P. C. 343 (1905).]

Case.] IN 1905, during the Russo-Japanese war, the Quangnam, a steamship belonging to a French company, shipped, at Saigon, a cargo of spirits, which she subsequently delivered to the Russian squadron lying at Kamranh Bay. After leaving the latter place she proceeded nominally on a voyage to Manilla, without cargo, but in fact shaped her course between Formosa and the Pescadores, after which she ran into Hatto Channel, where she was captured by a Japanese cruiser, and sent in for adjudication. It appeared that the course pursued by the vessel was such as would enable those on board to obtain information both as to the coastal defences of Japan and the movements of the Japanese fleet; whilst there was also evidence that she had been supplied at Saigon with coal from the Russian depôt. In view of these facts the vessel was condemned.

(g) Oppenheim, ii. § 356.

(h) Infra, p. 600.

(i) Infra, p. 606.