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XIII

CONTRABAND OF WAR

FOODSTUFFS; PRE-EMPTION; COAL; CONTINUOUS VOYAGES

BOTH Statesmen and writers have different views upon these four matters in connection with the exercise of belligerent right, which invariably give rise to controversy when anything in time of war turns upon them.

Specialists in International Law are not agreed as to the circumstances in which a belligerent State is entitled, if at all, to treat foodstuffs as contraband of war. Although there have been several recent wars, there are no recent precedents which enable us to ascertain the feeling of contemporary Governments with any certainty. The subject might be of vital importance to this country in certain contingencies.

According to current practice contraband is of two kinds : Absolute contraband, such as arms, machinery for manufacturing. arms, ammunition, and any materials which are of direct application in naval or military armaments; and conditional contraband, consisting of articles which are fit for, but not necessarily of direct application to hostile uses. It is not disputed that articles which are absolute contraband are liable to capture and confiscation. It is otherwise as regards conditional contraband.

Great Britain, on her side, has long and consistently held that provisions and liquors fit for the consumption of the enemy's naval or military forces are contraband. Her law, however, provides a palliative, in the case of "naval or victualling stores," for the penalty attaching to absolute contraband,

the Lords of the Admiralty being entitled to exercise a right of pre-emption over such stores, i.e. to purchase them without condemnation in a Prize Court; in practice, purchases are made at the market value of the goods, with an additional 10 per cent. for loss of profit.1

On the Continent no such palliative has yet been adopted; but moved by the same desire to distinguish unmistakable from, so to speak, constructive contraband, and to protect trade against the vexation of uncertainty, many continental jurists have come to argue conditional contraband away altogether. There are, however, unmistakable signs of a change of opinion, judging by the discussions on the subject in the Institute of International Law, a body exclusively composed of recognised International Jurists. The rules this body adopted in 1896, though they do not represent the unanimous feeling of its members, may be taken as the opinion of a large proportion of them. In any case the majority comprised German, Danish, Italian, Dutch, and French specialists. The rules contain a clause which, after declaring conditional contraband abolished, states that:

"Nevertheless the belligerent has, at his option and on condition of paying an equitable indemnity, a right of sequestration or pre-emption as to articles (objets) which, on their way to a port of the enemy, may serve equally in war or in peace."

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1 The Admiralty Manual of Naval Prize Law (1388), after giving a detailed list of articles which are absolutely contraband, describes them rather ambiguously as 'com. prised" in some supposititious wider list, and then it adds that goods are conditionally contraband (a list of which is also given) "which may be presumed " to be "intended to be used for purposes of war," and that this presumption arises when the "hostile destination of this vessel is either the enemy's fleet at sea or a hostile port used exclusively or mainly fer naval or military equipment."

Pre-emption is provided for by the Naval Prize Act, 1864, section 38 of which runs as follows:

"Where a ship of a foreign nation passing the seas laden with naval and victualling stores, intended to be carried to a port of any enemy of Her Majesty, is taken and brought into a port of the United Kingdom, and the purchase for the service of Her Majesty of the stores on board the ship appears to the Lords of the Admiralty expedient, without the condemnation thereof in a Prize Court, in that case the Lords of the Admiralty may purchase, on the account or for the service of Her Majesty, all or any of the stores on board the ship; and the Commissioner of Customs may permit the stores purchased to be entered and landed within any port."

Thus, on the one hand, the provisions as to pre-emption go beyond the Admiralty restrictions as to intention and destination, and apply a penalty to mere carriage of conditional contraband to any enemy port; and practice, on the other, applies pre-emption generally, though the combined construction of the Manual and the Act involves an essential distinction. The attention of the draftsmen of the new Manual is called to this confusion.

This addition was inserted at the suggestion of General den Beer Portugael, the chief Dutch authority on maritime law, whose own wording, of which the above text is a reduction, provided, furthermore, for the payment of the freight besides the value of the cargo, and for the adoption of the English proportion of 10 per cent. for loss of profit. The proposed rule, it is seen, goes beyond the directions of our Prize Act.2 To become binding in its existing form, either an alteration of the text of the Declaration of Paris or a modification of the clause would be necessary, seeing that under the Declaration of Paris "the neutral flag covers enemy goods, except contraband of war."

2 See note 1 above and p. 358.

In short it may be said that, in so far as the Continent is concerned, expert opinion is on the whole favourable to the recognition of conditional contraband, in the form of a right of sequestration or pre-emption, within the limits England has shown a disposition to set to it as against herself.

As regards coal, there is no essential difference between the position of coal to feed ships and provisions to feed men. Neither are per se contraband. At the West African Conference in 1884 the Russian representative protested against its inclusion among contraband articles, but the Russian Government included it in its declaration as to contraband on the outbreak of the Russo-Japanese war.1 In 1898 the Foreign Office replied to an inquiry of the Newport Chamber of Commerce on the position of coal that: "Whether in any particular case coal is or is not contraband of war, is a matter primâ facie for the determination of the Prize Court of the captor's nationality, and so long as such decision, when given, does not conflict with well-established principles of International Law, Her Majesty's Government will not be prepared to take exception thereto."

1 In reply to an observation on the part of Lord Lansdowne as to this change of view, Count Lamsdorff stated that "it was permissible for the Russian Government to change their views since 1884, during which time many developments and circumstances had occurred which had induced them to modify their opinion. At the commencement of a war every belligerent had hitherto exercised the right of announcing what would be considered as contraband of war, and the list of such articles necessarily varied with the resources of the adversary. Such a right hitherto enjoyed by other Powers could not well be denied to Russia, and the fact that His Majesty's Government had refused to allow coal to be given to the Russian fleet in British harbours proved conclusively that they also regarded coal as contraband of war." ."-SIR C. HARDINGE, Sept. 1, 1904.

The doctrine of continuous voyages gave rise during the Boer war to controversy with Germany, who at first declined to recognise the existence of any rule which could interfere with trade between neutrals, the German vessels in question having been stopped on their way to a neutral port. Prince von Bülow, in his explanatory speech in the Reichstag of January 19, 1900, however, qualified his protest. "I should wish," he said, "to take this opportunity of observing that we strove from the outset to induce the English Government, in dealing with neutral vessels consigned to Delagoa Bay, to adhere to that theory of International Law which guarantees the greatest security for the principle that for ships, consigned from a neutral State to a neutral port, the notion of contraband of war does not exist. To this the English Government demurred. We have not insisted, but reserved to ourselves the right of raising this question in the future, on the one hand, because it was essential to us to arrive at an expeditious solution of the pending difficulty, and on the other, because, in point of fact, the principle, here set up by us, has not yet met with universal recognition in theory and practice."

Trade between neutrals has, it is quite true, a primâ facie right to go on, in spite of war, without molestation. But if the ultimate destination of goods, though shipped first to a neutral port, is enemy's territory, then, according to the doctrine of "continuous voyages," the goods may be treated as if they had been shipped to the enemy's territory direct. The doctrine is entirely Anglo-Saxon in its origin and development. Only in

one case does it seem ever to have been actually put in force by a foreign Prize Court, namely, in the case of the Doelwijk, a Dutch vessel which was adjudged good prize by an Italian Court on the ground that, although bound for Djibouti, a French port, it was laden with a provision of arms of a model which had gone out of use in Europe, and could only be destined for the Abyssinians, with whom Italy was at war. Here, again, continental opinion is no longer universally antagonistic to the British view. When the subject was under discussion in the Institute of International Law in 1896, the only person who raised an objection to the principle of the doctrine was the distinguished French authority on maritime law, the late M. Desjardins, who declined to acknowledge that any theory of continuous voyages was known or, consistently with the existing law of neutrality, could be known to International Law; though he admitted that the penalties of contraband would be incurred. if the shipping to a neutral port were effected merely in order "to deceive the belligerent as to the real destination of the cargo." He proposed to acknowledge the doctrine only to this

extent.

Professor Fusinato, an eminent Italian deputy, who has since held the post of Italian Under- Secretary for Foreign Affairs, supported by two Italian Professors of International Law, Professors Catellani and Buzzati, argued against M. Desjardins' proposal that it would exclude the contingency of goods shipped to a neutral port, not for the purpose of defrauding the belligerent, but for that of being ultimately delivered to a belligerent not in possession of a seaport. Eventually the Institute adopted the following rule:

"Destination to the enemy is presumed, where the shipment is to one of the enemy ports, or to a neutral port, if it is unquestionably proved by the facts that the neutral port was only a stage (étape) towards the enemy as the final destination of a single commercial operation.”

The late Professor Perels, Director of the German Admiralty, submitted a project not essentially different from this. His wording of the final restriction was as follows: "The hostile destination must be determined with certainty, with due regard to special circumstances and by a close examination of the ship's documents."

Thus the consensus of learned opinion throughout Europe seems favourable to the adoption of the two Anglo-Saxon rules of "pre-emption" and "continuous voyages." The view of the German Government seems not to be that of their late eminent legal adviser in maritime matters, but this may only be an impression produced by the controversial warmth of the Chancellor.

NOTE ON CONTROVERSY BETWEEN THE BRITISH AND RUSSIAN GOVERNMENTS AS TO
DEFINITION OF CONTRABAND

Under the Rules which the Russian Government issued at the beginning of the war with Japan (February 14, 1904), the following articles were "deemed to be contraband of war":

Art. VI.-(1) Small arms of every kind, and guns, mounted or in sections, as well as armour-plates;

(2) Ammunition for firearms, such as projectiles, shell-fuses, bullets, priming, cartridges, cartridge-cases, powder, saltpetre, sulphur;

(3) Explosives and materials for causing explosions, such as torpedoes, dynamite, pyroxyline, various explosive substances, wire conductors, and everything used to explode mines and torpedoes;

(4) Artillery, engineering, and camp equipment, such as gun carriages, ammunition waggons, boxes or packages of cartridges, field kitchens and forges, instrument waggons, pontoons, bridge trestles, barbed wire, harness, etc.;

(5) Articles of military equipment and clothing, such as bandoliers, cartridge boxes, knapsacks, straps, cuirasses, entrenching tools, drums, pots and pans, saddles, harness, completed parts of military uniforms, tents, etc.;

(6) Vessels bound for an enemy's port, even if under a neutral commercial flag, if it is apparent from their construction, interior fittings, and other indications that they have been built for warlike purposes, and are proceeding to an enemy's port in order to be sold or handed over to the enemy;

(7) Boilers and every kind of naval machinery, mounted or unmounted. (8) Every kind of fuel, such as coal, naphtha, alcohol, and other similar materials.

(9) Articles and material for the installation of telegraphs, telephones, or for the construction of railroads.

(10) Generally, everything intended for warfare by sea or land, as well as rice, provisions, and horses, beasts of burden, and other animals, which may be used for a warlike purpose, if they are transported on the account of, or are destined for, the enemy.

In answer to an inquiry by Lord Lansdowne, Sir C. Scott telegraphed from St. Petersburg (March 7, 1904) the following further official declaration of the Russian Government :

All the articles enumerated in Art. VI. of the Rules . . . amongst which coal is included, are regarded as unconditionally contraband of war by the Imperial Government. With respect to section 10, its sense is confined to this-that the Imperial Government, if they should judge it indispensable in the circumstances of the war to forbid the conveyance of such articles to Japan or to Japanese armed forces, reserve to themselves the right to supplement the list of contraband articles by the addition of others.

The "Official Messenger," a few days later (March 18, 1904), published instructions to Commanders of warships, in which additions were made to section 10 of Art. VI., so as to include under foodstuffs and forage, all kinds of grain, fish, fish products, beans, bean-oil, and oilcakes. To the list of remaining articles intended for war were added machinery and parts thereof intended for the manufacture of cannons, small- arms, and projectiles.

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