CIRCUMSTANCES UNDER WHICH VESSEL CARRYING CONTRABAND MAY BE CONDEMNED, A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume, or freight, forms more than half the cargo.-Declaration of London, Article 40. It was universally admitted that in certain cases the condemnation of the contraband is not enough, and that the vessel herself should also be condemned, but opinions differed as to what these cases were. It was decided that the contraband must bear a certain proportion to the total cargo. But the question divides itself into two parts: (1) What shall be the proportion? The solution adopted is the mean between those proposed, which varied from a quarter to three-quarters. (2) How shall this proportion be reckoned? Must the contraband 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 or 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. Report of Committee which drafted Declaration of London. Contra. * * * * saying [saving?] nevertheless as well the ships themselves which by virtue of this present treaty are to be esteemed free, and which are not to be detained on pretence of their having been loaded with prohibited merchandize, and much less confiscated as lawful prize. Treaty of Amity and Commerce concluded between the United States and Sweden, April 3, 1783, Article XIII. Contra. 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, leaving free the rest of the cargo and the ship, that the owners may dispose of them as they see proper. Treaty of Peace, Amity, Navigation and Commerce concluded between the United States and New Granada (Colombia), December 12, 1846, Article XIX. Contra. 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, leaving free the rest of the cargo and the ship, that the owners may dispose of them as they see proper. Treaty of Peace, Friendship, Commerce, and Navigation concluded between the United States and Bolivia, May 13, 1858, Article XIX. The prize courts cannot condemn enemy or neutral prizes except on the following grounds: 1. Prohibited transportation in time of war; Institute, 1887, p. 76. In order that a vessel may be condemned because of being engaged in transportation prohibited in time of war, it is necessary: 1. That the transportation be to an enemy destination: 2. That the object transported be itself prohibited, that is, contraband, or conditional contraband, of war: 3. That the contraband be seized in the very act of being transported, or that it be found on board a vessel when the latter is stopped. Institute, 1887, p. 76. Contra, to some extent. The vessel transporting them official correspondence and contraband to an enemy destination] shall not be condemned unless: 1. It offers resistance: 2. It transports enemy troops; 3. If the cargo in course of transportation to an enemy destination is composed principally of provisions for the war vessels or troops of the enemy. Institute, 1887, p. 77. In order that a vessel may be condemned because of being engaged in transportation prohibited in time of war, it is necessary: 1. That the shipment of contraband be destined for a belligerent; 2. * * *. 3. That the object transported be itself prohibited. 4. That the ship be caught in the act. Institute, 1896, pp. 142, 143. Contra. The vessel transporting them [contraband] shall not be condemned unless: 1. It offers resistance; 2. It transports illegally agents, soldiers or dispatches for a belligerent. Institute, 1896, p. 143. Contra. * * * the American Congress, in 1775, * declared, that all vessels, to whomsoever belonging, carrying provisions or other necessaries to the British army or navy within the colonies, should be liable to seizure and confiscation. Kent, vol. 1, p. 146; Journals of the Confederation Congress, 1, 241. Contra. By the ancient law of Europe, the ship, also, was liable to condemnation; and such a penalty was deemed just, and supported by the general analogies of law; for the owner of the ship had engaged it in an unlawful commerce, and contraband goods are seized and condemned ex delicto. But the modern practice of the courts of admiralty, since the age of Grotius, is milder; and the act of carrying contraband articles is attended only with the loss of freight and expenses. unless the ship belongs to the owner of the contraband articles, or the carrying of them has been connected with malignant and aggravating circumstances: and among those circumstances, a false destination and false papers are considered as the most heinous. In those cases, and in all cases of fraud in the owner of the ship, or in his agent, the penalty is carried beyond the refusal of freight and expenses, and is extended to the confiscation of the ship, and the innocent parts of the cargo. This is now the established doctrine; but it is sometimes varied by treaty, in like manner as all the settled principles and usages of nations are subject to conventional modification. Kent, vol. 1, p. 149. Contra. In general, where the ship and cargo do not belong to the same person, the contraband articles only are confiscated, and the carriermaster is refused his freight, to which he is entitled upon innocent articles which are condemned as enemy's property. But where the ship and the innocent articles of the cargo belong to the owner of the contraband, they are all involved in the same penalty. And even where the ship and the cargo do not belong to the same person, the carriage of contraband, under the fraudulent circumstances of false papers and false destination, will work a confiscation of the ship as well as the cargo. The same effect has likewise been held to be produced by the carriage of contraband articles in a ship, the owner of which is bound by the express obligation of the treaties subsisting between his own country and the capturing country, to refrain from carrying such articles to the enemy. In such a case, it is said that the ship throws off her neutral character, and is liable to be treated at once as an enemy's vessel, and as a violator of the solemn compacts of the country to which she belongs. Dana's Wheaton, pp. 638–644. Contra. ture. ** * It would seem that neutral vessels carrying contraband were, in early times, treated as wrong-doers, and deemed subject to forfeiSome relics of this practice remain. If the contraband cargo belongs to the owner of the vessel, the vessel is condemned. So, if the neutral vessel is bound by a treaty of her own country to abstain from the act in question, the vessel is condemned for the act, though the cargo be not the property of the owner of the vessel By the present practice of nations, if the neutral has done no more than carry goods for another which are in law contraband, the only penalty upon him is the loss of his freight, time, and expenses. * * * But, if she has no relations with the enemy's government, and, as a private merchant-vessel, is carrying * goods on private account, as merchandise, to the enemy's ports, to be put into the market there, or delivered into private hands, she is not, as the practice is now settled, liable to condemnation, whatever be the character of her cargo. It may be gunpowder, or provisions destined to a port hard pressed by siege. Her object is commercial; and the adapting of her cargo to the demands of its port of destination is allowed now to be a fair commercial enterprise. The probability, however great, that the gunpowder will at once or at last come into the hands of the enemy's government, or be otherwise used in war, and the chance that the provisions, whether they go into government hands or not, may enable the inhabitants the longer to support the siege,-none of these considerations make the enterprise contraband. The reason for the rule is that the capital and industry of the world are deeply and permanently involved in making, raising, and transporting for sale or consumption all articles, whether usable in war or not: and articles which all courts, treaties, and writers admit to be always contraband when destined to an enemy's port, are still also articles of utility and even necessity in peace; and in their production and transportation the capital and industry of the world are permanently involved. Gunpowder, for instance, smaller fire-arms, and even cannon, are necessary for peaceful purposes: and, if from these extreme instances, we pass through the scarcely distinguishable degrees of articles ancipitis usûs, it becomes apparent how strong and general is the motive for resisting restrictions upon this trade. The interests of peace and commerce, on the one hand, and those of war, on the other, have, in the conflict of their forces, rested at a practical line of settlement. The interests of peace have prevailed so far as to permit the carrier to transport contraband goods, subject to no other penalty than the loss of his commercial enterprise,-. e., his freight and expenses; while the interests of war have prevailed so far as to permit the belligerent to stop the contraband goods on their passage, and convert them to his own use. The advantage of this is, that the carrying-trade of the world may go on. subject to an ascertainable risk, which may be provided for by contract, and guarded against by insurance; and producers and merchants can continue their business and procure transportation without criminality, taking the risk of the capture and condemnation of noxious articles. At the same time, the belligerents have the further security of being able to condemn all the interests involved, whether vessel or cargo, if there have been fraudulent practices, or hostile service. Dana's Wheaton, Note 230. Contra. By the ancient laws of war, as established by the usages of European nations, the contraband cargo affected the ship, and involved it in the sentence of condemnation. The justice of this rule is vindi cated by Bynkershoek and Heineccius, and it cannot be said that the penalty was unjust in itself, or unsupported by the analogies of the law. Grotius does not particularly discuss the case of the ship carrying contraband, but alludes to the subject in very general terms. Soon after this time, a relaxation began to be introduced into treaties, 55565-18-25 but this relaxation, at first, applied only to cases in which the owner of the vessel might be supposed to be a stranger to the transaction. Subsequently, the stipulation in treaties became more general, although the relaxation was directed, in its particular application, as well as in its origin, only to such cases as afford a presumption that the owner was innocent, or the master deceived. By the modern practice of the prize courts of England and the United States, and not opposed, it is believed, by other nations, a milder rule has been adopted, and the carrying of articles contraband of war is now attended only with the loss of freight and expenses, except where the ships belong to the owner of the contraband cargo, or where the simple misconduct of carrying contraband articles, is connected with other circumstances which extend the offense to the ship also. Sir William Scott says, "Anciently, the carrying of contraband did, in ordinary cases, affect the ship, and athough a relaxation has taken place, it is a relaxation, the benefit of which can only be claimed by fair cases. The aggravation of fraud justifies additional penalties." Where the transportation of the contraband articles is prohibited by the stipulations of a treaty, to which the government of the neural ship-owner is a party, the forfeiture of the freight is extended to the ship, on the ground that the criminality of the act is enhanced by the violation of the additional duty imposed by the treaty. Halleck, pp. 571, 572. Contra. The ordinary penalty of carrying articles contraband of war, is the confiscation of the goods and the loss of the freight and expenses to the ship. This penalty is not to be averted by the allegation that the owners or master were ignorant of the true nature of the articles, or that, by the threat or violence of the enemy, they were compelled to receive and transport them. Such excuses, if allowed, would be constantly urged, and by robbing the prohibition of contraband of its penal character, would convert it into a mere nugatory threat. Halleck, p. 573. Contra. The injuriousness to a belligerent of contraband trade by a neutral, results from the nature of the goods conveyed, and not from the fact of transport. This distinction prevents the penalty which affects contraband merchandise from being extended as a general rule to the vessel in which it is. * * * If however the ship and the cargo belong to the same owners, or if the owner of the former is privy to the carriage of the contraband goods, the vessel is involved in their fate. Hall, pp. 692, 693. Contra. The [British] Admiralty Manual of 1888 further deals with it [the penalty for carrying contraband goods] as follows. 83. The vessel which carries [contraband] goods, if not owned by the owner of such goods, is not confiscated but forfeits her freight for such goods and all right to expenses the result of her detention. |