form more than half the cargo in volume, weight, value, or freight? The adoption of a single fixed standard gives rise to theoretical objections, and also to practices intended to avoid condemnation of the vessel, in spite of the importance of the cargo. If the standard of volume or weight is adopted, the master will ship innocent goods occupying space, or of weight, sufficient to exceed the contraband. A similar remark may be made as regards the standard of value of freight. The consequence is that, in order to justify condemnation, it is enough that the contraband should form more than half the cargo by any one of the above standards. This may seem harsh; but, on the one hand, any other system would make fraudulent calculations easy, and, on the other, the condemnation of the vessel may be said to be justified when the carriage of contraband formed an important part of her venture a statement which applies to all the cases specified." 21 (2) It was recognized that it might be unjust to condemn a vessel carrying an amount of contraband more than onehalf its cargo, and to allow a vessel carrying an amount just below one-half its cargo to go free. "A kind of fine was proposed which should bear a relation to the value of the contraband articles. Objections of various sorts were brought forward against this proposal, although the principle of the infliction of some kind of pecuniary loss for the carriage of contraband seemed justified. The same object was attained in another way by providing that the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and of the custody of the vessel and of her cargo during the proceedings are to be paid by the vessel. The expenses of the custody of the vessel include in this case the keep of the captured vessel's crew. It should be added that the loss to a vessel by being taken to a prize port and kept there is the most serious deterrent as regards the carriage of contraband." "22

(3) The generally approved rule: "Article 42. Goods which belong to the owner of the contraband and which are

21 British Parliamentary Papers, Miscellaneous, No. 4 (1909), p. 51. 22 Id.

on board the same vessel are liable to condemnation”—was reaffirmed.

(4) Such penalties should not extend to vessels which are not in intent engaged in carrying contraband, as to vessels which are at sea unaware of the opening of hostilities, or to vessels which have had no opportunity to discharge contraband which they may have on board. At the same time it would not be reasonable to expect the captor to permit such a cargo to go on to his enemy. The provision is therefore made that in such cases the contraband may be condemned subject to payment of compensation (article 43). The innocent shipper and the innocent carrier are thus secured in their rights, while the belligerent rights of the captor are not denied.

(5) Under certain circumstances it might be of advantage to both the neutral carrier of contraband and the belligerent war ship if contraband cargo might be turned over to the belligerent war ship without the necessity of bringing it before a prize court. This might clearly be the case if the contraband on board a large neutral vessel were small in amount. To meet cases where the surrender of the contraband would be advantageous the following article was adopted:

"Article 44. A vessel, stopped because carrying contraband, and not liable to condemnation on account of the proportion of contraband, may, according to circumstances, be allowed to continue her voyage if the master is ready to deliver the contraband to the belligerent ship.

"The delivery of the contraband is to be entered by the captor on the log book of the vessel stopped, and the master of the vessel must give the captor duly certified copies of all relevant papers.

"The captor is at liberty to destroy the contraband which is thus delivered to him."

This is not a new principle. It is contained in numerous treaties. A treaty between the United States and Sweden in 1783 (article 13) provided for the immediate release of a vessel when "the master agrees, consents, and offers" to deliver the contraband to the belligerent commander. Provisions somewhat similar occur in the treaty with Prussia, 1799 (ar

ticle XIII); Brazil, 1828 (article 18); Columbia, 1846 (article 19); Bolivia, 1858 (article 19); Haiti, 1864 (article 23); and in other treaties. Some of these treaties provide that, if the cargo cannot be received on board the belligerent vessel, the neutral vessel must be sent to a prize court. As in any case the goods, whether sent in or destroyed, may be made the subject of prize court proceedings, it would seem in fact to make little difference what disposition the belligerent might make of them after they were handed over to him. The belligerent may therefore take the articles to port, use the articles, or, if their preservation unduly hampers his movements, he may destroy them. The responsibilty of the neutral master ceases from the time when he has delivered the contraband to the belligerent commander. If the neutral master denies the contraband nature of goods of which the surrender is requested by the belligerent, the neutral master may hand them over, and if the court finds the master's contention correct the master may obtain compensation.

PRE-EMPTION.

190. Under the doctrine of pre-emption, goods of the nature of conditional contraband have sometimes been intercepted by a belligerent when bound for an enemy destination and paid for with a fair profit.

"In strictness, every article which is either necessarily contraband, or which has become so from the special circumstances of the war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to pre-emption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent. on the amount. This mitigation of extreme belligerent privilege is also introduced in the case of products native to the exporting country, even when they are affected by an inseparable taint of contraband." 28

States not favorable to the doctrine of conditional contraband have admitted the doctrine of pre-emption. The rules

23 Hall, Int. Law (5th Ed.) p. 665.

of the Institute of International Law adopted in 1896 provided for pre-emption, while declaring the abolition of conditional contraband.24

24" 4. Sont et demeurent abolies les prétendues contrebandes désignées sous les noms soit de contrebande relative, concernant des articles (usus ancipitis) susceptibles d'être utilisés par un belligérant dans un but militaire, mais dont l'usage est essentiellement pacifique, soit de contrebande accidentelle, quand les dits articles ne servent spécialement aux buts militaires que dans une circonstance particulière. "§ 5. Néanmoins le belligérant a, à son choix et à charge d'une équitable indemnité, le droit de séquestre ou de préemption quant aux objets qui, en chemin vers un port de son adversaire, peuvent également servir à l'usage de la guerre et à des usages pacifiques."

XV Annuaire, 230.

191. Blockade is a measure of war by which the forces of one belligerent obstruct communication with a place or port of the enemy, and is, in general, applied to the prevention of communication by water.

Blockade is a measure of war aimed at an enemy, though to a large degree affecting neutrals.

"Blockade is to close an enemy's port, bay, or coast with force." The object of blockade is to cut off trade and other communication with the enemy. Blockade is not usually established with a view to the destruction or surrender of the place. The blockading forces are usually at such a distance from the place blockaded as not to imperil its physical safety, and they are seeking rather to bring pressure upon the place by preventing access and egress than to injure the place or its inhabitants by shot and shell.

Blockade is a war right, and exists in time of civil war as in the time of war between states. Pacific blockade, so called, as affecting third states, is not now regarded with favor.2 Blockade by insurgents is not permitted, as the insurgents,

1 Japanese Regulations Governing Captures at Sea, March 7, 1904, art. 21.

2 Ante, p. 235.