tion 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. Danas Wheaton, pp. 639–644. When the cargo does not wholly consist of contraband goods, the innocent articles of innocent shippers are restored; but all the goods of the owner of the contraband articles, even those which are innocent share the same fate. Halleck, p. 573. The principle which, according to the English practice, governs the treatment of innocent merchandise found on board a ship engaged in the transport of contraband, is identical with that which affects the vessel itself. "The law of nations," said Lord Stowell, "in my opinion is, that to escape the contagion of contraband, the innocent articles must be the property of a different owner." Hall, p. 694. A Vessel which herself is Contraband is liable to be confiscated, together with such part of her Cargo as belongs to her Owner. Holland, p. 25. The Penalty for carrying Contraband Goods with Simulated Papers, or in disregard of express stipulations by Treaty, is confiscation not only of the Contraband Goods, but also of the Vessel, and any interest which her Owner has in the rest of the Cargo. Holland, p. 25. * * that portion of the cargo which belongs to the owners of the contraband, shall be condemned. Japanese Regulations 1904, Article 43. In the cargo, subject to confiscation are: (a) Articles which may be seized as absolute or relative contraband. (b) merchandise belonging to their owner. German Prize Rules, 1909, Article 42. Article 42, Declaration of London, is substantially identical with section 22, Austro-Hungarian Manual, 1913. The "Staadt Embden," 1 C. Rob., 26.-In this case the court condemned all the cargo, since the innocent portion belonged to the owners of the contraband. The court said: "The statement of the Kings Advocate is in my opinion the law of nations, upon this point. To escape from the contagion of contraband, the innocent articles must be the property of a different owner." The "Floreat Commercium," 3 C. Rob., 178.-In this case, of the condemnation of a ship, the cargo was condemned as belonging to the same owner. The "Eleonora Wilhelmina," 6 C. Rob., 331.-In this case the court stated as a general rule that the existence on board a vessel of contraband articles extends the taint to other parts of the cargo, being the property of the same owner. * * Carrington et. al. v. The Merchants Insurance Co., 8 Peters, 495.— The court said: “* the carriage of contraband goods to the enemy subjects them, if captured, in delicto, to the penalty of confiscation; but the vessel and the remaining cargo, if they do not belong to the owner of the contraband goods, are not subject to the same penalty." See also The Peterhoff, 5 Wall., 28. The "Bermuda," 3 Wall., 514.-In this case it was held that as the cargo had all been consigned to enemies and most of it was contraband, it must share the fate of the ship when that is condemned. The "Peterhoff," 5 Wall., 28.-In this case it was held that contraband articles contaminate the whole cargo belonging to the same owners. The "Hsiping," Russia and Japanese Prize Cases, vol. 2, p. 133.— Innocent goods belonging to the owner of the contraband and on board the same vessel were condemned, and innocent goods not belonging to the owner of contraband were released. See also The Pehping, id., p. 162; and Cargo ex Bawtry, id., p. 270, and The Paros, id., p. 301. Cargo Ex "Isiping," Russian and Japanese Prize Cases, vol. 2, p. 140. The court held it immaterial that innocent goods belonging to owner of contraband had different destination from contraband and were bound to neutral port. TREATMENT OF VESSEL CARRYING CONTRABAND AND OF HER CARGO, IF WITHOUT KNOWLEDGE OF HOSTILITIES OR WITHOUT OPPORTUNITY TO DISCHARGE CONTRABAND, AFTER KNOWLEDGE-WHEN KNOWLEDGE PRESUMED. If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the Power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities.Declaration of London, Article 43. This provision is intended to spare neutrals who might in fact be carrying contraband, but against whom no charge could be made. This may arise in two cases: The first is that in which they are unaware of the outbreak of hostilities; the second is that in which, though aware of this, they do not know of the declaration of contraband made by a belligerent, in accordance with articles 23 and 25, which is, as it happens, the one applicable to the whole or a part of the cargo. It would be unjust to capture the ship and condemn the contraband; on the other hand, the cruiser can not be obliged to let go on to the enemy goods suitable for use in the war of which he may stand in urgent need. These opposing interests are reconciled by making condemnation conditional on the payment of compensation. (See the convention of the 18th October, 1907, on the rules for enemy merchant vessels on the outbreak of hostilities, which expresses a similar idea.) Report of committee which drafted Declaration of London. It is likewise agreed that whatever shall be found to be laden by the subjects of either of the two contracting parties, on a ship belonging to the enemies of the other party, the whole effects, although not of the number of those declared contraband, shall be confiscated as if they belonged to the enemy, excepting nevertheless such goods. and merchandizes as were put on board before the declaration of war, and even six months after the declaration, after which term none shall be presumed to be ignorant of it, which merchandizes shall not in any manner be subject to confiscation, but shall be faithfully and specifically delivered to the owners, who shall claim or cause them to be claimed before confiscation and sale, as also their proceeds, if the claim be made within eight months, and could not be made sooner after the sale, which is to be public: provided, nevertheless, that if the said merchandizes be contraband, it shall not be in any wise lawful to carry them afterwards to a port belonging to the enemy. Treaty of Amity and Commerce concluded between the United States and So far as neutrals are concerned, the right to take prize cannot be exercised until the belligerents have notified the neutrals that war exists. Institute, 1882, p. 46. The right to take prize cannot be exercised as to vessels and cargoes until they have had knowledge of the existence of the war. There is no basis for the taking of prize if the master of the vessel or owner of the cargo proves that he did not have such knowledge. Institute, 1882, p. 46. Transportation under way before the declaration of war and without necessary knowledge of its imminence shall not be punishable. Institute, 1896, p. 131. The Commander should detain any Neutral Vessel which is engaged in the Carriage of Contraband, is acting in the service of the Enemy by carrying Military Persons or Despatches, or is engaged in Breach of Blockade; unless either: (1) He is satisfied that her Master was acting in ignorance that war had broken out; or (2) The Vessel is acting under a Licence from the British Government. Holland, p. 16. 44. When a ship upon being visited has no knowledge of the outbreak of hostilities or of the contraband declaration applicable to her cargo, the contraband may be seized by bringing in the ship, but it is subject to confiscation only with reimbursement for damages. while the ship and the other cargo are exempt from confiscation. * ** * The same holds when the master had acquired the information in question, but had not been able to discharge the contraband in a port; it is not to be accepted as an objection that he would have had to deviate from his course to do so. 45. In judging whether the knowledge in question existed, it is to be taken into consideration. (a) that the state of war is made known immediately in German, allied, and enemy ports, as far as they have telegraphic connection: (b) that the beginning of hostilities is made known immediately to neutral governments by telegraph and is by them immediately in the same way communicated to their port authorities; (c) that the declaration as to contraband is published in the German Empire upon the outbreak of hostilities and is communicated to allied and neutral governments by telegraph, who will communicate it to their port authorities etc. without delay; (d) that the contraband declaration will not become known in enemy ports at least for the present. 46. The captain can abstain from the seizure of a ship carrying contraband which is not herself liable to confiscation under 41, when the master is ready to deliver over the contraband to him. The delivery of the contraband is to be entered in the log-book of the ship visited, the master of the ship must deliver to the captain for the prize court proceedings an attested copy of all relevant papers. The captain is authorized to destroy the contraband so delivered to him. 47. Concerning the law for the seizure of the parts of the cargo mentioned under 42 without bringing in the ship, see 121. In case of No. 44 this law does not apply to the merchandise belonging to the owner of the contraband. German Prize Rules, 1909, Articles 44-47. If you encounter a vessel at sea which is without knowledge of the hostilities or of the declaration of contraband applicable to its cargo, you may nevertheless seize these contraband articles: but as the confiscation of said articles may later give rise to an indemnity, you will take care to draw up a very exact minute of the nature, weight, and value of the goods thus seized. In this case, the ship and the rest of its cargo, while being subject to seizure will be exempt from confiscation. The same rule applies if the master, after becoming aware of the outbreak of hostilities or of the declaration of contraband, has had no opportunity of discharging the contraband. French Naval Instructions, 1912, sec. 53. Section 54, French Naval Instructions. 1912, is substantially identical with paragraph 2. Article 43. Declaration of London. Article 43, Declaration of London, is substantially identical with section 23, Austro-Hungarian Manual, 1913. Contra as to enemy vessels. The "Ekaterinoslar." Russian and Japanese Prize Cases, vol. 2, p. 1.-Held that the fact that the vessel (Russian) was captured while still in ignorance of the outbreak of hostilities afforded no ground for claiming exemption either under the general principles of international law, or under the special provisions of the Japanese Ordinance. See also The Mukden, Russian and Japanese Prize cases, vol. 2, p. 12. The Hermes Russian and Japanese Prize Cases, vol. 2, p. 50.— This was a case of a neutral vessel which left a Japanese port with a cargo of coal for Port Arthur on the day that hostilities began but without knowledge thereof. Held that in view of such lack of knowledge neither the ship nor her cargo was liable to condemnation. 55565-18-26 |