Foodstuffs and fuel.

In more recent years the chief battles took place over provisions and coals. Russia excluded foodstuffs from her list of contraband published in 1900. With regard to coal she followed France in maintaining the extreme view that it could in no case be regarded as contraband. Yet soon after the outbreak of her war with Japan in 1904 she declared both provisions and fuel to be unconditionally contraband, though afterwards, under strong pressure from Great Britain and the United States, she modified her position with regard to articles of food.

Lawrence, pp. 704, 705.

In order to establish the doctrine of conditional contraband it is not necessary to show that every rule of the English prize courts is correct. Harsh decisions may have been given from time to time. The conclusion that the captured goods were really destined for warlike use may have been reached in many cases on the strength of presumptions insufficient to bear the weight of the superstructure reared upon them. All this may be admitted; and yet the fact remains that, by consent so general as to be almost universal there are circumstances which will justify the seizure and condemnation as contraband of goods which are ordinarily innocent. Provisions are an excellent example. As a rule they are not captured; but if they are stopped on their way to an enemy's force, or a besieged place, they are taken without hesitation or scruple. The vast majority of publicists recognize the legality of such seizure, though some would impose a duty of compensation on the captor state. They thus admit in effect the proposition that what is not contraband at one time and under one set of conditions is contraband at another time and under another set of conditions. When this is allowed, the doctrine of conditional contraband is granted, and nothing remains but to settle its application. But it is just at this point that difficulties that till lately proved insuperable arose. Great Britain placed many articles ancipitis usus in her list of goods absolutely contraband. Naval stores supply a case in point. Masts and spars, boiler-plates and screw-propellers. are needed by peaceful merchantmen as well as by armed cruisers. Yet the Admiralty manual classed them with arms and ammunition. and ordered their capture if bound to a hostile port, a rule which naturally enough found no favor in the eyes of continental publicists. While such differences as these existed they were a danger to the peace of the civilized world. By the end of the nineteenth century it was felt that polemical discussion could do no further good. In the course of it a possibility of approximation had been revealed. It seemed evident that international agreement might be reached by way of a frank acceptance of the British and American doctrine of conditional contraband, in return for the transfer to the conditionally contraband class of many articles now deemed absolutely contraband by Great Britain. If these mutual concessions were once made, no insuperable difficulty would be presented by the further task of deciding what circumstances connected with the destination of the vessel and the special needs of the enemy should be deemed sufficient to support the presumption that the goods were destined for an essentially warlike use, and were therefore fit subjects of belligerent capture. Thus two lists would come into existence, not at the dictation

of belligerents anxious to make the utmost use of their naval power, or neutrals jealous of any interference with a lucrative commerce, but as the result of full discussion carried on with the view of arriv ing at conclusions just to all. The first list would consist of those things which were contraband in their own nature, and therefore liable to seizure and condemnation if found on their voyage to an enemy destination. The second list would include all other articles capable of military use; but they would not be deemed contraband of war unless it was clear they were about to be employed for warlike. purposes, and were not destined to supply the needs of a peaceful population.

Acting on these views the Hague Conference of 1907 made a persistent attempt to throw the law of contraband into the form of rules which would command general assent. It succeeded to the extent of drawing up a list of articles absolutely contraband; but it failed to agree on a corresponding list of articles conditionally contraband, and was obliged to give up its task. Its labors were, however, of the greatest service to the Naval Conference of 1908-1909, which adopted without alteration its predecessor's list of absolute contraband, and added to it two others, the first containing goods conditionally contraband and the second goods which may not be declared contraband at all. These are so important that we will give them at full length. They are not perfect; but they represent a pacific termination of agelong disputes and afford a firm base for future advances.

Lawrence, pp. 708-710; Holland, Manual of Naval Prize Law, p. 19; Deuxième Conférénce Internationale de la Paix, Acts et Documents, Vol. III, p. 1114.

But in addition to these there were other large classes of goods which varied in character. They could not be condemned merely for being what they were. It was necessary to know more about them than their nature and description. All manner of collateral circumstances must be taken into account. Whatever raised a presumption that they would be used for warlike purposes told against them. Whatever tended to show that they would be consumed by peaceful non-combatants told in their favor. It is for this reason that they were called goods conditionally contraband. Among them were provisions, money, coals, horses, and in recent times materials for the construction of railways and telegraphs. It is obvious that the noxious or innocuous character of such things as these depended on the use to which they were applied. Great Britain contended that they might lawfully suffer capture and condemnation when surrounding circumstances make it reasonably clear that they would be used for purposes of warfare. The immediate destination of the goods was held to be the best, though not the only, test of their final use. In the case of the Yonge Margaretha, Lord Stowell condemned a cargo of cheeses bound for Brest, a port of naval equipment, the cheeses being such as were used in the French navy. Should the voyage be intended to terminate at the enemy's fleet, or at a place where a portion of his army was encamped, there could be no doubt. that condemnation would follow capture. The views thus expressed were spoken of collectively as the doctrine of conditional contraband. Lawrence, p. 706; I. C. Rob., 194.

Views of continental publicists.

This doctrine [of conditional contraband] was strongly opposed by most of the publicists of the European continent. One of the most recent of them, M. Richard Kleen, in a work published in 1893, examined the English decisions and pronounced against their validity. He held nothing to be contraband but objects expressly made for war and fitted for immediate employment in warlike operations. These objects in their completed form, or in parts which can be fitted together without a further process of alteration or manufacture, were liable to capture if found on their journey to an enemy destination. But he added that articles which do not come under these categories can never under any circumstances become lawful prize as contraband of war. He combated with much vigor the views set forth in the Manual of Naval Prize Law drawn up in 1888 by Professor Holland for the British Admiralty, and declined to accept proof of the likelihood of hostile use as a sufficient reason for the seizure of goods capable in their own nature of innocent employment. Other continental writers, while questioning the validity of the doctrine of occasional contraband, make admissions which involved its principle. Bluntschli, for instance, declared that such things as engines, horses, and coal might be accounted contraband if it could be shown that they were destined for a warlike use. Heffter ranked them among prohibited goods when their transport to a belligerent by a neutral afforded assistance manifestly hostile in its nature. Ortolan maintained that res ancipitis usus might be treated as contraband in very exceptional cases; but he excepted from this exception provisions and other objects of first necessity. Klüber admitted the existence of doubtful cases, which must be ruled by surrounding circumstances. As late as 1896 the Institute of International Law first condemned unequivocally the theory of conditional or relative contraband, and then declared that a belligerent might seize on payment of an equitable indemnity "those articles which, being on their way to a port of his adversary, could serve equally for warlike and peaceful purposes."

These opinions conceded all that is essential in the British position. Lawrence, pp. 706-708; Kleen, Contrabande de Guerre, pp. 19-37; Droit International Codifié, sec. 805: Droit International, sec. 160; Diplomatie de la Mer, Vol. II. p. 179; Droit des Gens Moderne de l'Europe, sec. 288: Annuaire de l'Institut de Droit International, 1896, p. 231.

There are many articles which are not by their character destined to be made use of in war, but which are nevertheless of great value to belligerents for the continuance of war. Such articles are conditionally contraband, which means that they are contraband when it is clearly apparent-see below, sec. 395-that they are intended to be made use of for military or naval purposes. This intention becomes apparent on considering either the destination of the vessel carrying the articles concerned, or the consignee of the articles.

Before the Declaration of London neither the practice of States nor the opinion of writers agreed upon the matter, and it was in especial controversial whether or no foodstuffs, horses and other beasts of burden, coal and other fuel, money and the like, and cotton could conditionally be declared contraband.

Oppenheim, vol. 2, pp. 485 486.

Foodstuffs.

That foodstuffs should not under ordinary circumstances be declared contraband there ought to be no doubt. There are even several writers who emphatically deny that foodstuffs could ever be conditional contraband. But the majority of writers has always admitted that foodstuffs destined for the use of the enemy army or navy might be declared contraband. This has been the practice of Great Britain, the United States of America, and Japan. But in 1885, during her hostilities against China, France declared rice in general as contraband, on the ground of the importance of this article to the Chinese population. And Russia in 1904, during the Russo-Japanese war, declared rice and provisions in general as contraband; on the protest of Great Britain and the United States of America, however, she altered her decision and declared these articles conditional contraband only.

Oppenheim, vol. 2, p. 486.

Money, metals and securities.

As regards money, unwrought precious metals which may be coined into money, bonds and the like, the mere fact that a neutral is prohibited by his duty of impartiality from granting a loan to a belligerent ought to bring conviction that these articles are contraband if destined for the enemy State or its forces. However, the case seldom happens that these articles are brought by neutral vessels to belligerent ports, since under the modern conditions of trade belligerents can be supplied in other ways with the necessary funds. Oppenheim, vol. 2, p. 487.

Fuel.

Since men-of-war are nowadays propelled by steam power, the importance of coal, and eventually other fuel for waging war at sea is obvious. For this reason, Great Britain has ever since 1854 maintained that coal, if destined for belligerent men-of-war or belligerent naval ports, is contraband. But in 1859 France and Italy did not take up the same standpoint. Russia, although in 1885 she declared that she would never consent to coal being regarded as contraband, in 1904 declared coal, naphtha, alcohol, and every other kind of fuel, absolute contraband. And she adhered to this standpoint, although she was made to recognise the distinction between absolute and conditional contraband.

Oppenheim, vol. 2, p. 487.

According to the British practice which has hitherto prevailedsee Holland, Prize law, Sec. 64-the list of conditional contraband comprises: Provisions and liquors for the consumption of army and navy; money, telegraphic materials, such as wire, porous cups, platina, sulphuric acid, and zinc; materials for the construction of a railway, as iron bars, sleepers, and the like; coal, hay, horses, rosin, tallow, timber. But it always was in the prerogative of the Crown to extend or reduce this list during a war according to the requirements of the circumstances.

Oppenheim, vol. 2, p. 488 (note).

This list [of Article 24] represents a compromise, just as does the list of absolute contraband of article 22. Those opponents of the Declaration of London who object to foodstuffs being on the list of conditional contraband forget that several times in the past belligerents have declared foodstuffs absolute contraband.

Oppenheim, vol. 2, p. 489.

Ships.

*

*

A neutral vessel, whether carrying contraband or not, can herself be contraband. Such is the case when she has been built or fitted out for use in war and is on her way to the enemy. Although it is the duty of neutrals to employ the means at their disposal to prevent the fitting out, arming, or the departure of any vessel within their jurisdiction, which they have reason to believe is intended to cruise or to engage in hostile operations against a belligerent, their duty of impartiality does not compel them to prevent their subjects from supplying a belligerent with vessels fit for use in war except where the vessel concerned has been built or fitted out by order of a belligerent. Subjects of neutrals may therefore-unless prevented from so doing by Municipal Law, as, for instance, subjects of the British Crown by Secs. 8 and 9 of the Foreign Enlistment Act, 1870-by way of trade supply belligerents with vessels of any kind, provided these vessels have not been built or fitted out by order of the belligerent concerned. According to the practice which has hitherto prevailed, such vessels, being equivalent to arms, used to be considered as absolute contraband. And it made no difference whether or no they were fit for use as men-of-war, it sufficed that they were fit to be used for the transport of troops and the like.

Oppenheim, vol. 2, p. 494; Twiss, The Law of Nations, II, sec. 148; Holland, Prize Law, sec. 86.

*

*

It is part of the prerogative of the Crown during the war to extend or reduce the lists of Articles to be held * Conditionally Contraband, subject, however, to any Treaty Engagements binding upon Great Britain.

Holland, p. 21.

British list.

The list of Goods Conditionally Contraband comprises:-Provisions and Liquors fit for the consumption of Army or Navy (Jonge Margaretha, 1 C. Rob. 191. Haabet, 2 C. Rob. 174. Edwards, 4 C. Rob. 68. Ranger, 6 C. Rob. 125). Money. Telegraphic Materials, such as Wire, Porous Cups, Platina, Sulphuric Acid, and Zinc (see Parliamentary Papers, North America, No. 14, 1863, p. 5). Materials for the construction of a Railway, as Iron Bars, Sleepers, &c. Coals (see Lord Kingsdown's Speech in the House of Lords, May 26, 1861). Hay. Horses. Rosin (Nostra Signora de Begona, 5 C. Rob. 98). Tallow (Neptunus, 3 C. Rob. 108). Timber (Twende Brodre, 4 Č. Rob. 33).

Holland, p. 20.

List of conditional contraband proclaimed by the United States in 1898. Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs, and money, when such materials or money are destined