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The ship was condemned because :
“ Firstly, not only is Vladivostock an important Russian naval port used by Russia since the outbreak of the Russo-Japanese war as a base for her fleet, but it is also an established fact that Vladivostock has been made a military base depot, arms, provisions, coal, and other military supplies being collected there, while ordinary trade at the port has practically ceased. Therefore, the Prize Court was perfectly correct in holding that coal despatched to that port was destined for Russian military use, and in deciding accordingly that it was contraband of war, especially as the coal carried by this vessel was best Cardiff coal, for which the price in the Far East is ertremely high, so that there is no demand for it except for naval use in time of war. The destination for the military purposes of Russia is thus all the clearer. Although the appellant contends that the cargo of this vessel should be held to be intended for peaceful purposes, in accordance with the precedent of the judgment in the case of the Neptunus (3 C. Rob. p. 108), the nature of the goods in this case and the circumstances of their place of destination are entirely (lifferent from those in the case of the Neptunus, and it is therefore quite obvious that it can not be followed in this case.
“ Secondly, International Law recognizes the liability to condemnation of a vessel the object of whose voyage is, as in this case, the carriage of contraband of war, and the Higher Prize Court considers this rule to be in accordance with the needs of the case. Moreover, the whole of the cargo was contraband of war, and in spite of the fact that at the time of her departure from England, it was already clear that she was to proceed to Vladivostock, deceit was used in the charter-party and other ship's papers as to her destination, that is to say, she carried contraband of war by fraudulent devices."
See also The Aphrodite, Russian and Japanese Prize Cases, vol. 2, p. 210. The “ Scotsman,” Russian and Japanese Prize Cases, vol. 2, p. 256.-In this case the whole of the cargo was held to be contraband and the master of the vessel was found to have stated that the owner of the vessel would not incur any loss if the ship were condemned, as he had insured her for a suflicient sum, expecting a capture.
Held that the object of the ship was the carriage of contraband and she was condemned.
Tho" Barrtry,” Russian and Japanese Prize Cases, vol. 2, p. 265.In this case, of a neutral vessel going to an enemy's naval base and depot for supplies, the greater portion of the cargo was found to be contraband, and in the bills of lading and manifest the destination of the ship was falsely stated, although it was correctly given in the charter party. These false entries were made by the master, and the owner of the ship was not the owner of the cargo.
Held that the ship was liable to condemnation for carrying contraband with false papers and also because the object of her voyage was the carriage of contraband, and that the ship-owner was responsible for the fraudulent acts of the master.
The “M. S. Dollar," Russian and Japanese Prize Cases, vol. 2. p. 284.-This was a case of a British ship captured while carrying a cargo of fodder to Vladivostock with papers showing a destination to Moji; her course was also incorrectly shown in the logs. At the time of capture she was chartered by the owner of the cargo, Moji being the destination mentioned in the charter.
Held that the ship was liable to condemnation as the object of the voyage was the carriage of contraband and deception had been used.
See also The W ye field, Russian and Japanese Prize Cases, vol. 2, p. 291.
The " Paros," Russian and Japanese Prize Cases, vol. 2, p. 301.This was a case of a neutral ship carrying a cargo, the greater portion of which was contraband and bound to Vladivostock. All the ship's papers showed Hong Kong as the destination, but she was captured beyond that port and while pursuing a devious course to Vladivostock, which, it was admitted by the claimants, was the destination, with Hongkong only an alternative in case Vladivostock were blockaded.
Held that the ship was liable to condemnation, as the sole object of her voyage was the carriage of contraband, and she had employed fraudulent devices.
The " Tacoma," Russian and Japanese Prize ('ases, rol. 2, p. 314.--This was a case of the capture of a neutral vessel carrying a cargo of contraband to Vladivostock. The owners of the ship were not the owners of the cargo, but it appeared that the ship-owners had appointed as supercargo an agent of contractors for the Russian army; that a false destination was given in some of the ship's papers and that she was attempting to enter Vladivostock by way of a most dangerous route, considering the time of the year.
The ship was condemned on the grounds that its owners were privy to the carriage of the contraband and had employed fraudulent means to effect it.
The “ Henry Bolckou,” Russian and Japanese Prize C'ases, vol. 2, p..331.—This was the case of a neutral vessel which took on a cargo of flour at Shanghai and obtained a clearance for Hong Kong. The bills of lading and others papers gave the destination as Korsa koff, and it was alleged that the flour was intended for the “starving people” of that place. The ship did not take the direct route for Korsakoff, nor display the proper lights.
Held by the Higher Prize Court that the real destination was Vladivostock; that the flour was contraband, and that the carriage of contraband was the object of the voyage. The ship and cargo were condemned.
The “ Antiope,” Russian and Japanese Prize Cases, vol. 2, p. 387.- This was the case of a neutral ship captured while carrying to a Russian port what was found by the Prize Courts to be contraband foodstuffs.
Held by the Yokosuka Prize Court that the vessel should be released on the ground that its owners (who were not the owners of the cargo) were not fully aware of the fact of the carriage of cɔntraband.
Held by the Higher Prize Court that the vessel should be condemned on the ground that the object of her voyage was the carriage of contraband, concerning which carriage, the Court considered, from certain circumstances, the ship owners must have been fully aware.
PAYMENT OF COSTS AND EXPENSES IN EVENT OF RELEASE OF VESSEL CARRYING COX.
If a vessel carrying contraband is released, she may be con
demned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and the custody of the ship and cargo during the proceedings.-Declaration of London, Article 41.
It is not just that, on the one hand, the carriage of more than a certain proportion of contraband should involve the condemnation of the vessel, while if the contraband forms less than this proportion, it alone is confiscated. This often involves no loss for the master, the freight of this contraband having been paid in advance. Does this not encourage trade in contraband, and ought not a certain penalty to be imposed for the carriage of a proportion of contraband less than that required to entail condemnation? 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. Report of committee which drafted Declaration of London.
the act of carrying contraband articles is attended with the loss of freight and expenses, Kent, vol. 1, p. 149. the
penalty upon him [the carrier of contraband] is the loss of his freight, time and expenses. Dana's Wheaton, Note 230.
the carrying of articles contraband of war is now at. tended
with the loss of freight and expenses. Halleck, p. 572. The more common practice is to take the vessel with its cargo into a port of the captor, where the articles of contraband are duly condemned; but the vessel itself is ordinarily visited with no further penalty than loss of time, freight and expense. Hall, p. 693.
The vessel which carries contraband goods]
* * forfeits her freight for such goods and all rights to expenses the result of her Detention.
Holland, p. 24. Article 41, Declaration of London, is substantially identical with section 21, Austro-Hungarian Manual, 1913.
The "Mercurius," 1 C. Rob., 288.-In a note to this case, it is said: “ The penalty for carrying contraband has been mitigated to a forfeiture of freight and expenses."
The “ Neptunus,” 3 C, Rob., 108.—In this case the court allowed freight and expenses to the vessel since the contraband articles formed but a small proportion of the total cargo.
Hendricks v. Gonzalez, 67 Fed. Rep., 351.—The court said :—“Ordinarily the punishment of the ship [for carrying contraband] is satisfied by visiting upon her the loss of time, freight, and expenses which she incurs in consequence of her complicity."
LIABILITY TO CONDEMNATION OF GOODS BELONGING TO OWNER OF CONTRABAND AND ON
BOARD SAME VESSEL.
Goods which belong to the owner of the contraband and are
on board the same vessel are liable to condemnation.Declaration of London, Article 42.
The owner of the contraband is punished in the first place by the condemnation of his contraband property; and in the second by that of the goods, even if innocent, which he may possess on board the same vessel.
Report of committee which drafted Declaration of London.
saying [saving?] nevertheless as well the ships themselves, as the other merchandizes which shall have been found there. in, 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.
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 ('ommerce concluded between the
United States and New Granada (Colombia), December 12, 1846, Article
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, ('ommerce and Navigation concluded between
the United States and Bolivia, May 13, 18.58, Article XIX. Extension of rule.
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 obliga