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Article 29, Declaration of London, is substantially identical with section 56, Austro-Hungarian Manual, 1913.

The Panama," 176 U. S., 535.-In this case the court said: "Yet it must be admitted that arms and ammunition are not contraband of war, when taken and kept on board a merchant vessel as part of her equipment, and solely for her defence against enemies, pirates and assailing thieves,' according to the ancient phrase still retained in policies of marine insurance."

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CIRCUMSTANCES UNDER WHICH ABSOLUTE CONTRABAND LIABLE TO CAPTURE-PROOF OF

DESTINATION.

Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transhipment or a subsequent transport by land.

Proof of the destination specified in Article 30 is complete in the following cases:

(1) When the goods are documented for discharge in an enemy port, or for delivery to the armed forces of the enemy.

(2) When the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port for which the goods in question are documented.—Declaration of London, articles 30 and 31.

The articles included in the list in article 22 are absolute contraband when they are destined for territory belonging to or occupied by the enemy, or for his armed military or naval forces. These articles are liable to capture as soon as a final destination of this kind can be shown by the captor to exist. It is not, therefore, the destination of the vessel which is decisive, but that of the goods. It makes no difference if these goods are on board a vessel which is to discharge them in a neutral port; as soon as the captor is able to show that they are to be forwarded from there by land or sea to an enemy country it is enough to justify the capture and subsequent condemnation of the cargo. The very principle of continuous voyage, as regards absolute contraband, is established by article 30. The journey made by the goods is regarded as a whole.

As has been said, the obligation of proving that the contraband goods really have the destination specified in article 30 rests with the captor. In certain cases proof of the destination specified in article 31 is conclusive; that is to say, the proof may not be rebutted.

First case. The goods are documented for discharge in an enemy port; that is to say, according to the ship's papers referring to those goods, they are to be discharged there. In this case there is a real admission of enemy destination on the part of the interested parties themselves.

Second case. The vessel is to touch at enemy ports only, or she is to touch at an enemy port before reaching the neutral port for which the goods are documented, so that although these goods, according to the papers referring to them, are to be discharged in a neutral port, the vessel carrying them is to touch at an enemy port before reaching that neutral port. They will be liable to capture, and the

possibility of proving that their neutral destination is real and in accordance with the intentions of the parties interested is not admitted. The fact that before reaching that destination the vessel will touch at an enemy port would occasion too great a risk for the belligerent whose cruiser searches the vessel. Even without assuming that there is intentional fraud, there might be a strong temptation for the master of the merchant vessel to discharge the contraband, for which he would get a good price, and for the local authorities to requisition the goods.

The same case arises where the vessel, before reaching the neutral port, is to join the armed forces of the enemy.

For the sake of simplicity, the provision only speaks of an enemy port, but it is understood that a port occupied by the enemy must be regarded as an enemy port, as follows from the general rule in

article 30.

Report of committee which drafted Declaration of London.

Destination of contraband.-As has been said, the second element in the notion of contraband is destination. Great difficulties have arisen on this subject, which find expression in the theory of continuous voyage, so often attacked or adduced without a clear comprehension of its exact meaning. Cases must simply be considered on their merits so as to see how they can be settled without unnecessarily annoying neutrals or sacrificing the legimitate rights of belligerents. In order to effect a compromise between conflicting theories and practices, absolute and conditional contraband have been differently treated in this connection.

Articles 30 to 32 refer to absolute, and articles 33 to 36 to conditional contraband.

Report of committee which drafted Declaration of London.

The articles of contraband, before enumerated and classified, which may be found in a vessel bound for an enemy's port, shall be subject to detention and confiscation. * * *

Treaty of Peace, Amity, Navigation, and Commerce concluded between the United States and New Granada (Colombia), December 12, 1846, Article XIX.

The articles of contraband before enumerated and classified which may be found in a vessel bound to an enemy's port shall be subject to detention and confiscation. * * *

Treaty of Peace, Friendship, Commerce, and Navigation concluded between the United States and Bolivia, May 13, 1858, Article XIX.

During the war objects capable of being immediately employed for war purposes and transported by neutral or enemy national merchant vessels for the account of or destined to the enemy (contraband of war) are subject to seizure.

Institute, 1882, p. 51.

An enemy destination is presumed when the shipment goes to one of the enemy's ports, or to a neutral port which, according to incontestable proofs and indisputable facts, is only an intervening point, with ultimate enemy destination in the same commercial transaction.

Institute, 1896, p. 129.

During war, those objects which, made expressly for war, of immediate and special use therein in their existing state, and transported by sea for the account of or destined to a belligerent, come under the category of contraband of war, are subject to seizure.

Institute, 1897, p. 142.

The examination into the continuous nature of voyages is, or may be necessary in reference alike to blockade, trade with enemies, unneutral service, and carrying contraband, and, indeed, to all cases where the destination of the vessel or cargo is material. The right of the belligerent is to know the facts. The policy of the neutral is to conceal them. If the destination is really to a hostile port,—if that is the plan or scheme of the voyage.-it is, of course, immaterial what formal acts, intended to deceive, are interposed. If the plan of the voyage is, that the cargo be landed in a neutral port, and thence transshipped to its actual destination, it is to be expected that the neutral, whose object is to deceive, will be careful to go through all the forms which would be gone through with for a cargo actually destined to that neutral port. His object is to assimilate all the acts of a fictitious destination to those of a real destination. Such a cargo will be furnished with bills of lading and invoices, letters of instruction to the master or supercargo, and to the consignee in the neutral port.-all ostensibly contemplating an actual termination of the commercial enterprise there. That may be as well assumed, as it would be assumed that a spy would have not only no signs of his real character about him, but all the usual badges of an opposite character. The shipper may actually intend to have the goods landed in the neutral port, and stored there, and the employment of the vessel may cease there; and the mode, means, and time of transshipment to the real port of destination may be either planned by the shipper or left entirely to the discretion of his agent, and even a sale may be gone through with. All these facts are merely evidential, and consistent alike with an honest and a fraudulent intent. If a real hostile destination is proved aliunde, they make the fraudulent character of the scheme the more incontrovertible, while, if a hostile destination is disproved, they are natural and proper. It is the duty of the prize court to sift thoroughly all the facts, and detect the fraud if it exists; none of them having any conclusive and defined legal effect attached to them.

Dana's Wheaton, Note 231.

I am inclined to the opinion, that an actual intent to deliver articles capable of military use directly into military hands, condemns the articles, at all events, as a voluntary intervention of their owner in the war; and that, whether there be or be not such an intent, the belligerent may capture certain articles, because of their destination to a place where they will come under the enemy's control, and so may be used by the enemy in direct military operations.

Dana's Wheaton, Note 226.

When offense begins.

The inception of the voyage is held to complete the offense; and from the moment that the vessel, with the contraband articles on board, quits her port on a hostile destination, the capture may be legally made. It is by no means necessary to wait till the ship and

goods are actually endeavoring to enter the enemy's port. The voyage being illegal at its commencement, the penalty immediately attaches, and continues to the end of the voyage, or at least so long as the illegality exists.

Halleck, p. 573.

Offense may terminate during voyage.

It must be observed that the offense does not necessarily continue during the entire outward voyage, even where it was completed by the mere inception with contraband articles on board. "Where there is positive evidence," says Duer, "that, previous to the capture, the Voyage had been changed, by the substitution of an innocent port of destination, or that the original port, by capitulation or otherwise, had ceased to be hostile, as the goods were not contraband when seized, the capture is invalid, and restitution is decreed." Although the penalty is not averted by the possibility that the intention to prosecute an illegal voyage, which is in the progress of execution, will be changed before its completion, yet, if the intention, when the capture was made, had, in good faith, been abandoned, or was no longer capable of execution, the corpus delicti is extinguished, and the penalty cannot be sustained.

Halleck, p. 575; Duer, On Insurance, vol. 1, pp. 629, 571, 572.

In order to constitute the unlawfulness of the transportation of contraband, it is not necessary that the immediate destination of the ship and cargo should be to an enemy's country or port. If the goods are contraband and destined for the direct use of the enemy's army or navy, the transportation is illegal, and subject to the ordinary penalty. Thus, if an enemy's fleet be lying, in time of war, in a neutral port, and a neutral vessel should carry contraband goods to that port, not intended for sale in the neutral market, but destined to the exclusive supply of the hostile forces, such conduct would be a direct interposition in the war by furnishing essential aid in its prosecution, and consequently would be a flagrant departure from the duties of neutrality.

Halleck, p. 576.

The illegality of the transportation of contraband goods is not confined to an original importation into an enemy's country. The transportation of such articles from one port of the enemy to another, is equally unlawful, and is subject to be treated in the same manner of an original importation. It may equally and as directly tend to assist the enemy in the prosecution of the war.

Halleck, p. 575.

When penalty attaches.

It is universally admitted that the offence of transporting contraband goods is complete, and that the penalty of confiscation attaches, from the moment of quitting port on a belligerent destination; and a destination is taken to be belligerent if it is not clearly friendly; a vessel is not permitted to leave her course open to circumstances, and to make her destination dependent on contingencies. If in any contingency she may touch at a hostile port she is regarded as liable to capture; she can only save herself by proving that the contingent intention has been definitively abandoned.

Hall, p. 694.

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